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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
FOR ANNUAL AND TRANSITION REPORTS PURSUANT TO SECTIONS 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1997
COMMISSION FILE NUMBER: 0-21213
LCC INTERNATIONAL, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 54-1807038
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
7925 JONES BRANCH DRIVE
MCLEAN, VA 22102
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
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REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (703) 873-2000
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT: NOT APPLICABLE
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
CLASS A COMMON STOCK, PAR VALUE $.01 PER SHARE
(TITLE OF CLASS)
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports) and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
--- ---
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
Based upon the closing price of the registrant's common stock as of March
16, 1998, the aggregate market value of the common stock held by non-affiliates
of the registrant is $121,669,080.*
As of March 16, 1998, the registrant had outstanding 7,077,333 shares of
Class A Common Stock, par value $.01 per share, (the "Class A Common Stock") and
8,460,984 shares of Class B Common Stock, par value $.01 per share, (the "Class
B Common Stock").
DOCUMENTS INCORPORATED BY REFERENCE
List hereunder the following documents incorporated by reference and the
Part of the Form 10-K into which the document is incorporated:
(1) Portions of the definitive Proxy Statement for the Annual Meeting
of the Stockholders to be held on May 19, 1998 (the "Proxy Statement") to
be filed within 120 days after the end of the registrant's fiscal year are
incorporated by reference into Part III, Items 10 -- 13 of this Form 10-K.
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* Solely for purposes of this calculation, all executive officers and directors
of the registrant and all shareholders reporting beneficial ownership of more
than 5% of the registrant's common stock are considered to be affiliates.
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This Annual Report on Form 10-K ("Form 10-K") contains certain
forward-looking statements within the meaning of Section 27A of the Securities
and Exchange Act of 1934, which statements can be identified by the use of
forward looking terminology, such as "may", "will", "expect", "anticipate",
"estimate", or "continue" or the negative thereof or other variations thereon or
comparable terminology. The Company's actual results could differ materially
from those anticipated in these forward-looking statements as a result of
certain factors, including those set forth elsewhere in this Form 10-K. See the
"Risk Factors" section of Item 1 "Business" for cautionary statements
identifying important factors with respect to such forward looking statements,
including certain risks and uncertainties, that could cause actual results to
differ materially from results referred to in forward looking statements. Unless
the context indicates or requires otherwise, references in this Form 10-K to the
"Company" are to (1) the combined operations of the Company's predecessor, LCC,
L.L.C., a Delaware limited liability company, and its subsidiaries (the "Limited
Liability Company") prior to the date of the merger of the Limited Liability
Company into LCC International, Inc., a Delaware corporation formed in June 1996
("LCC International"), as described below (the "Merger") and (2) LCC
International and its subsidiaries, after the Merger. Definitions of technical
and other terms are set forth in the Glossary appearing elsewhere herein.
References herein to wireless telecommunications or similar terms are not
intended to include satellite transmission, which some consider to be a
"wireless" technology.
PART I
ITEM 1. BUSINESS
GENERAL
The Company is one of the world's largest independent providers of RF
engineering and program management services and products to the wireless
telecommunications industry. The Company has provided these services, along with
related proprietary software tools and field measurement and analysis equipment,
to operators of more than 200 wireless systems in more than 40 countries. In
1997, the Company also began providing asset management services. The Company
intends to leverage its leadership position and its relationships with major
wireless customers to expand its current service and product offerings and to
benefit from the expected significant growth in wireless networks worldwide.
The Company has provided services and products to seven of the ten largest
U.S. cellular system operators; large international cellular operators,
including British Telecom, France Telecom and Mannesmann; companies building or
proposing to build PCS systems, including AT&T Wireless Services and Pacific
Bell Mobile Services; operators of ESMR systems, including Nextel
Communications; and operators of two-way messaging systems, such as PageNet. The
customers listed above each contributed 5% or more of the Company's consolidated
revenues (10% or more in the case of Nextel) during one or more of fiscal years
1991 through 1997. Many of the Company's major customers have entered into
partnerships with international wireless operators, which has enabled the
Company to obtain significant new business from such operators. The Company also
has established working relationships with two major telecommunications
equipment vendors, pursuant to which the Company provides services and products
on a subcontract basis. The Company derives a significant portion of its
revenues from its international customers (approximately 37.2% in 1997).
A substantial number of new wireless network licenses have been awarded
worldwide over the last five-years, and the Company expects a significant number
of additional wireless licenses to be awarded in the next few years. In
addition, many existing systems are continuing to grow; the Company estimates
that operators of wireless networks operating at capacity add a new cell site,
requiring additional RF engineering services, for every approximately 1,500 new
subscribers added. Furthermore, competition among operators of wireless networks
is generating greater requirements for operational quality and efficiency.
Construction of new networks, and expansion and optimization of existing
networks, require substantial amounts of RF engineering services and products
and provide new opportunities for asset management services.
The Company's approximately 480 professionals provide engineering and
program management solutions to operators of a wide range of wireless networks,
incorporating all major wireless technologies available today, including TDMA
(which includes IS-54 and IS-136), GSM, CDMA, iDEN, AMPS and ETACS. The
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Company provides services and/or products for operators involved in all four
phases of wireless system development: (i) Phase 1 -- bidding for the licenses
necessary to build and operate the system; (ii) Phase 2 -- design and build-out
of the system; (iii) Phase 3 -- optimization and enhancement of the system to
meet the requirements of an increasing subscriber base and to provide increased
quality and coverage; and (iv) Phase 4 -- achievement of greater efficiencies in
providing service in order to compete in areas where there are multiple system
operators.
BACKGROUND
The Company's business commenced in 1983 in a corporation named LCC,
Incorporated (presently named Cherrywood Holdings, Inc. ("Cherrywood")), a
Kansas corporation organized in 1983 and wholly owned by Dr. Rajendra and Neera
Singh and certain Singh family trusts. In 1994, Cherrywood transferred the
business to Telcom Ventures, L.L.C. ("Telcom Ventures"), a Delaware limited
liability company, for a 75% interest in Telcom Ventures. At the same time,
certain entities formed by The Carlyle Group, a Washington, D.C.-based
investment group (the "Carlyle Investors"), acquired a 25% interest in Telcom
Ventures in consideration of a cash contribution. Telcom Ventures then formed
the Limited Liability Company and transferred the business to the Limited
Liability Company in exchange for a 99% interest in the Limited Liability
Company. Cherrywood and TC Group, L.L.C. ("TC Group"), an affiliate of the
Carlyle Investors, received direct interests of 0.75% and 0.25%, respectively,
in the Limited Liability Company. LCC International was formed in June 1996 for
the purpose of effecting an initial public offering of equity interests in the
Limited Liability Company, which was accomplished in September 1996 by the
Merger in connection with completion at that time of the initial public offering
of the Class A Common Stock (the "Offering"). Prior to the Merger, Telcom
Ventures transferred its interest in the Limited Liability Company to RF
Investors, L.L.C. ("RF Investors"), a Delaware limited liability company of
which Telcom Ventures owns 99% and Cherrywood and TC Group own 0.75% and 0.25%,
respectively. Since the Offering, Cherrywood and TC Group have transferred to RF
Investors the shares of the Company which they received as a result of the
Merger.
In June 1994, the Limited Liability Company and Telcom Ventures entered
into a Note Purchase Agreement with a then unrelated third party, MCI
Telecommunications Corporation ("MCI"), which provided for the issuance of a $20
million subordinated note by the Limited Liability Company and of a $30 million
subordinated note by Telcom Ventures (the "Telcom Ventures Note") to MCI in
return for cash in such amounts. These notes are convertible, under certain
circumstances, into 2,841,099 shares of Class A Common Stock (see note 13 to the
Consolidated Financial Statements). Immediately prior to the Merger in September
1996, the Telcom Ventures Note was assumed by the Limited Liability Company (the
"MCI Note Assumption") and the $30 million principal repayment obligation and
interest thereon became the sole obligation of the Limited Liability Company
and, following the Merger, the sole obligation of the Company. Immediately
following the Offering, the Company made a loan of $3.5 million to Telcom
Ventures to assist Telcom Ventures in paying certain taxes due in connection
with the MCI Note Assumption. The loan is repayable over five-years, with equal
annual principal payments over the term of the loan. Interest accrues at the
rate of LIBOR plus 1.75% and is payable annually.
The Company issued 3,162,500 shares of Class A Common Stock in the Offering
at an initial public offering price of $16.00 per share. The total proceeds of
the Offering, net of underwriting discounts and offering expenses, were
approximately $44.8 million. The Company used approximately $16.2 million of the
proceeds for repayment of outstanding amounts under the Credit Facility (defined
below), $3.5 million to fund the loan to Telcom Ventures, approximately $6.85
million for vendor financing and approximately $11.85 million to fund a portion
of the ETP Acquisition (defined below) purchase price. Of the approximately $6.4
million balance of such proceeds, approximately $2.0 million has been used for
working capital and the remainder has been invested in various short term
investments pending use for other acquisitions, strategic financing or
investments in customers and equipment vendors, working capital and general
corporate purposes.
In December 1996, the Company, through its newly formed wholly-owned
subsidiary LCC Europe AS (formerly known as LCC International AS) ("LCC
Europe"), a Norwegian limited liability company, acquired the business of
European Technology Partner AS ("ETP"), a Norwegian limited liability company
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(the "ETP Acquisition"), which consisted of the design, development, manufacture
and sale and license of hardware and software products for the testing,
monitoring and management of the operations of wireless telecommunications
networks. As consideration for the ETP Acquisition, LCC Europe paid $13.075
million (including acquisition costs) and assumed substantially all of the
liabilities of the ETP business.
In December 1996, through its newly formed subsidiary, Microcell
Management, Inc. ("Microcell Management"), the Company acquired the business of
Microcell, L.L.C., which consisted of the acquisition, development, lease and
management of RF transmission towers. As consideration therefor, Microcell
Management paid $290,000, $200,000 of which was used by Microcell, L.L.C. to pay
an outstanding loan from the Company.
INDUSTRY BACKGROUND
Overview
Wireless telecommunications networks use a variety of radio frequencies to
transmit voice and data. Wireless telecommunications networks include two-way
radio applications, such as cellular, wide band and narrow band PCS and ESMR
networks, and one-way radio applications, such as paging services. Each
application operates within a distinct radio frequency block. Although cellular
represents the largest segment of the wireless communications industry, other
wireless technologies are expected to grow significantly.
Types of Wireless Communications
Cellular. A cellular network is a telephone system based on a grid of
"cells" deployed primarily at 800 and 900 MHz. Each cell contains transmitters,
receivers and antennas, and is connected to switching gear and control
equipment. The cellular industry is well established in the developed world. In
some countries, the cellular network provides significantly improved access to
the local and international wireline telephone network compared to existing
wireline telephone service.
PCS. In 1993, the FCC allocated a portion of the radio spectrum for the
provision of a new wireless communications service, commonly known as PCS. In
the U.S., PCS differs from traditional cellular service principally in that PCS
systems operate at a higher frequency range. Licenses to operate PCS networks
were awarded in the United States through auctions conducted during 1995 (the A-
and B-blocks, which involved licenses for large areas known as MTAs) and 1996
(the C-block, which involved licenses for smaller metropolitan and rural areas
known as BTAs); additional licenses were awarded through auctions concluded in
early 1997 (the D-block, E-block and F-block, which also involved licenses for
BTAs).
ESMR. Enhanced Specialized Mobile Radio is a mobile communication service
that relies on specialized mobile radio frequencies that have been historically
limited to two-way voice communications in small local networks (such as for
taxi or messenger dispatch). As a result of advances in digital technology, ESMR
operators have begun to design and deploy digital mobile networks that increase
the frequency capacity of ESMR systems to a level that is intended to be
competitive with that of cellular and PCS systems. Companies such as Nextel
Communications (in the U.S.), Clearnet Communications (in Canada) and Tricom (in
Mexico) have acquired licenses for ESMR two-way radio channels in their
respective operating areas and are offering wireless voice services over their
networks.
Paging. Paging is a method of wireless telecommunications that uses an
assigned radio frequency to contact a paging subscriber anywhere within a
service area. Each paging subscriber is assigned a distinct telephone number
which a caller dials to activate a subscriber's pager (a pocket-size radio
carried by the subscriber). The radio signal causes the pager to emit a beep or
vibrate and to provide the subscriber with information from the caller in the
form of a voice, time, numeric or alphanumeric message. "Two-way" data
applications, which allow the subscriber to acknowledge and reply to messages
and therefore require system designs akin to cellular and PCS networks, have
been implemented.
Other. Wireless cable, wireless local loop (a system that eliminates the
need for a wire loop connecting users to the public switched telephone network),
satellite, and wireless high speed data services represent other areas of the
wireless communications industry being developed by operators in the U.S. and
abroad.
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Wireless Technologies
Most traditional cellular systems historically transmitted voice and data
signals over analog-based systems, which use one continuous electronic signal
that varies in amplitude or frequency over a single radio channel. Digital
systems, on the other hand, convert voice or data signals into a stream of
digits that is compressed before transmission, enabling a single radio channel
to carry multiple simultaneous signal transmissions. This enhanced capacity,
along with enhancements in digital protocols (discussed below), allows
digital-based wireless technologies to offer new and enhanced services, such as
greater call privacy and single number (or "find me") service, and more data
transmission features, such as "mobile office" applications (including
facsimile, electronic mail and connecting notebook computers with computer/data
networks).
Digital signal transmission is accomplished through the use of frequency
management technologies, or "protocols." Two common protocols used in cellular
and other networks "manage" the radio channel either by dividing it into
distinct time slots (a method known as Time Division Multiple Access, or "TDMA")
or by assigning specific coding instructions to each packet of digitized data
that comprises a signal (a method known as Code Division Multiple Access, or
"CDMA"). In the U.S., the FCC has intentionally avoided mandating a universal
digital signaling protocol, and three principal digital signal protocols (which
are incompatible with each other) are currently being used in the U.S. for PCS
networks: GSM, CDMA and TDMA. European Union countries generally have agreed to
adopt GSM as a common standard protocol for cellular and PCS transmission and
approximately 60 countries, including virtually all countries in Western Europe,
have issued or propose to issue GSM 900 or 1800 MHz licenses. The universal GSM
standard is designed to allow subscribers to roam throughout Europe and wherever
else GSM technology has been adopted. Other wireless technologies are also
presently in use for a variety of different types of transmission. The Company
has expertise in all these technologies.
Operation of Two-Way Wireless Systems
Two-way wireless service areas are divided into multiple regions called
"cells," each of which contains a base station consisting of a transmitter, a
receiver and signaling equipment. The cells are typically configured on a grid
pattern, although terrain factors (including natural and man-made obstructions)
and signal coverage patterns may result in irregularly shaped cells and overlaps
or gaps in coverage. Cellular system cells generally have a radius ranging from
two miles to 25 miles. PCS system cells have a radius ranging from approximately
one-quarter mile to approximately 12 miles, depending on the PCS technology
being used and the terrain. Since each cell site requires engineering services,
growth in the number of cell sites is one of the key drivers of demand for the
Company's products and services. The base station in each cell is connected by
microwave, fiber optic cable or telephone wires to a switch, which uses
computers and specially developed software to control the operation of the
wireless telephone system for its entire service area. The switch controls the
transfer of calls from cells within the system and connects calls to the local
landline telephone system or to a long distance telephone carrier.
Wireless transmission requires a certain signal strength for the parties to
hear each other or for data to be received. The signal strength of a
transmission between a handset and a base station declines as the handset moves
away from the base station, so the switch and the base stations monitor the
signal strength of calls in progress. When the signal strength of a call
declines to a predetermined level, the switch may "hand off" the call to another
base station that can establish a stronger signal with the handset. Hand-off to
an adjacent system must be effected through an appropriate technical interface
when a handset leaves the service area of the wireless service provider. The
quality of wireless transmission depends in part on signal strength, limitations
imposed by the terrain and interference from other uses of radio signals.
Transmission quality is measured in the field at various locations so that
adjustments can be made to enhance quality.
Each wireless network is planned and laid out to meet a certain level of
subscriber density and traffic demand and to provide a certain geographic
coverage. Each transmission over the wireless network requires a certain amount
of radio frequency, so a system's capacity is limited by the amount of frequency
that is available. The same frequency can be reused by each separate
transmitter, subject to certain interference limitations. The design of each
wireless system involves placement of transmission equipment in locations that
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will make optimal use of available frequency based upon projected subscriber
usage patterns, subject to availability of such locations and ability to use
them for wireless transmissions under applicable zoning requirements.
After a wireless system has been installed, the system's capacity can be
increased in various ways, by (i) adding available frequency capacity to cells
as required, if such capacity is available, (ii) using directional antennae to
divide a cell into discrete multiple sectors or coverage areas, thereby reducing
the required distance between cells using the same frequency, or (iii) "cell
splitting" (i.e., dividing a single cell into a number of smaller cells served
by lower-power transmitters, thereby increasing the ability to reuse radio
frequencies and increasing the number of calls that can be handled in a given
area). Additional solutions are being designed to increase network capacity and
coverage, including (i) the introduction of microcells, which can be placed very
close together to increase frequency reuse and the total capacity of the
wireless network and which can be placed within buildings, train stations and
other structures to provide coverage where none was available before and (ii)
the introduction of digital technologies, which increase the number of
conversations which can be transported on a single radio carrier from two to
potentially more than ten times, depending on the type of digital technology
deployed.
Engineering Services and Products for the Wireless Industry
The planning, geographic layout, build out and operation of a wireless
network requires significant RF engineering work. The RF engineer must design
the wireless network to meet the operator's requirements for transmission over
the wireless network, which requirements are based upon a projected level of
subscriber density and traffic demand and the coverage area specified by the
operator's license or cost-benefit decisions. In addition to meeting basic
transmission requirements, the RF network design must make optimal use of
available radio frequency and result in the highest possible signal quality for
the greatest portion of projected subscriber usage within existing constraints.
These constraints may be imposed by cost parameters, terrain, limitations in the
license, interference with other operators, availability of cells, applicable
zoning requirements and other factors. The complexity of network design and
large number of variables requires the RF engineer to rely on advanced
technology including specially-developed software design tools. As the design is
implemented and the network is built out, the system's performance must be
tested in the field with field measurement and analysis equipment so that
optimization adjustments can be made.
Set forth below is a description of the life cycle of a typical wireless
system:
Phase 1 pursuit of the licenses necessary to build and operate the
system
Phase 2 design and build-out of the system
Phase 3 optimization and enhancement of the system to meet the
requirements of an increasing subscriber base and to provide
increased quality and coverage
Phase 4 achievement of greater efficiencies in providing service in
order to compete in areas where there are multiple system
operators
Phase 1. In Phase 1, the pursuit of the licenses necessary to build and
operate the system, a rough engineering design is often required to determine
construction costs and revenue generating ability of the system.
Phase 2. A substantial amount of engineering services are required for
Phase 2, the actual design and build-out of the wireless system. Detailed site
location designs are prepared, interference to or from co-located antennae is
checked, site performance is measured after completing construction and,
finally, the site is optimized to work with neighboring sites. Wireless network
operators (even the few which have sizable internal engineering staffs)
typically rely on outside RF engineering companies, such as the Company, for
Phase 2. Depending on the size of the system, this phase can involve from four
RF engineers for a typical small system, to 15 RF engineers for a typical
medium-sized system and up to 100 RF engineers for a nationwide deployment (all
of whom require software design and field measurement tools) over a period of 12
to 24 months. The Company believes that the number of RF engineers is limited.
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Phase 3. As the number of subscribers handled by the wireless system
increases, the system enters Phase 3, in which RF engineering services are
necessary to expand the system by adding cell sites or using other techniques to
increase system coverage and capacity. The system must also be optimized to meet
the increased subscriber usage from the new cell cites and to provide increased
quality and coverage. In network expansions, the operator typically continues to
rely on the RF engineering company, such as the Company, to design the expansion
and make optimization adjustments to the existing system. Since each new cell
site requires additional RF engineering, the increase in cell sites is a key
driver of the demand for RF engineering services and products.
Phase 4. Eventually the system will enter Phase 4, in which the operator
must achieve greater efficiencies in service provision in order to compete in
areas where there are multiple system operators. In most European countries and
Australia, certain systems have entered Phase 4. In the U.S., with the
construction of new PCS systems in areas that already have two cellular systems
and with the rollout of a national ESMR system by Nextel, wireless networks are
reaching Phase 4. Competing systems in Phase 4 generally have the same network
coverage; thus, competition is focused primarily on price and call quality.
SERVICES, SYSTEMS & PRODUCTS AND ASSET MANAGEMENT
Background
In the early 1980's, when the FCC began to issue licenses for cellular
systems, wireless system design was an unsophisticated process. Since minimal
data had been collected on system performance and limited engineering had been
done, the Company (following its formation in 1983) worked to develop a standard
method of applying design engineering principles to wireless system design. The
method included the development of software to accelerate and automate the
design process, and use of such software with digitized system coverage maps,
enabling the engineer to measure the effect of changes to various system
parameters or use of different locations for cell sites. Over time, the Company
gathered significant amounts of data on various system configurations, improving
the ability of its engineering models to predict system coverage. The Company
also developed a large staff of RF engineers experienced in conducting the
design analysis. Moreover, because the field measurement and analysis equipment
required for verification and measurement of wireless system performance in the
field was generally unsophisticated, the Company created its own field
measurement and analysis equipment. Originally, RF engineering focused
principally on the cellular industry. Although the services provided by various
wireless technologies may be similar, the engineering requirements of each
system are different. As new wireless technologies were introduced, the Company
developed engineering solutions for the different forms of wireless
transmissions, and modified its field measurement and analysis equipment and
software products to function with differing wireless technologies. As a
complement to the foregoing activities, the Company has expanded its services to
include program management services involving the deployment or management, on a
turnkey basis, of wireless systems. These services include systems integration,
site acquisition, site engineering, construction management, installation and
commissioning, and customer training services. In addition, through Microcell
Management, the Company now offers wireless network operators the opportunity to
finance and outsource the ownership and maintenance of the transmission towers
utilized in their networks.
Services
RF Engineering Services. Through its Services Group the Company provides a
variety of RF engineering and other services over the four phases of the life
cycle of a wireless telecommunications system, as follows:
Phase 1 Services. The Company's engineers help prepare applications
for network system operators seeking licenses in formal government license
grant processes. The Company also has assisted foreign governments in
preparing Requests for Proposals ("RFPs") and analyzing responses thereto.
Phase 1 services include the following:
- preparation of the technical response to a government tender
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- preliminary design
- coverage parameters
- propagation maps
- technical requirements
- advice on strategic issues relating to license tender responses
- preparation of RFPs and analysis of responses
- refinement of system objectives and translation into technical
requirements
- evaluation of responses on technical, cost and regulatory compliance
grounds
The Company has assisted in preparing winning applications in several
(approximately eight) license tender processes worldwide, including the second
nationwide cellular license in Germany and the first cellular license in Bombay,
India. The Company's involvement in successful tenders has generally led to
follow-on contracts with winning applicants as they implement new systems.
Phase 2 Services. Services in Phase 2 include some or all of the
following:
- analysis of customer expectations for network coverage, capacity and
other requirements
- development of necessary databases for network design, including
digitized maps of terrain and buildings
- use of software tools to prepare network design, including analysis of
interference and other technical factors affecting coverage, capacity and
performance
- identification and rank of desirable cell sites
- preparation of regulatory filings (FCC, Federal Aviation Administration
and others) required for system deployment
- assistance with systems deployment, including site acquisition and
construction management services
- measurement of network performance
- optimization of system
Phase 3 Services. The Company's services are used by existing system
operators to plan system expansions to accommodate subscriber growth (the
Company estimates that operators of wireless networks operating at capacity
require a new cell site for approximately each additional 1,500
subscribers), incorporate improvements in technology, improve system
performance and achieve efficient use of available radio spectrum. The
Company also assists in capacity expansion planning and technology
changeovers, such as conversion from analog to digital technology. In Phase
3 the Company provides some or all of the following:
- identification of additional cell sites
- integration of new cell sites with existing cell sites
- measurement of network performance, including "benchmarking" (i.e.,
evaluation of the performance of an operator's system against that of its
competitors)
- optimization of system
- technology migration analysis and implementation
Phase 4 Services. As multiple service providers offer competing
services in the same service area, network operators will require
additional engineering services focusing on the achievement of cost savings
and quality enhancements within the existing coverage area. These services
include the following:
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- system analysis and network management, including redistribution or
elimination of cell sites
- cost management
- measurement of network performance, including "benchmarking"
- technology and network upgrades
The Company is currently working with several existing customers to further
define the types of services that such customers will require during Phase 4,
although there can be no assurance that the Company will provide any such
services.
Most of the Company's RF engineers are based in McLean, Virginia, but spend
significant periods (approximately one to nine months per year) at customer
sites. The Company is one of the world's largest independent providers of RF
engineering and wireless network design services. The Company believes that its
large number of RF engineers enables it to respond quickly to customers who may
require the Company to staff a major project on a timely basis. In addition, the
Company believes that the wide-ranging experience of its RF engineers, including
exposure to and participation in the standards-setting process for new digital
technologies, helps the Company understand the changing marketplace for wireless
communications and for engineering services and products to support the wireless
industry. Since a large number of its RF engineers work on customer sites, the
Company is able to develop an understanding of many of the issues of importance
to its customers and uses this information in planning. The Company also
believes that the various nationalities of its RF engineers provides the Company
with an understanding of different practices in business and wireless telephony
in many countries around the world that will assist the Company in continuing to
pursue international opportunities.
The Company provides engineering services on a contract basis, usually in a
customized plan for each client. The Company generally charges for engineering
services on a time and materials basis, although Phase 1 services or other
projects of short duration may involve a fixed price or success fee. The
Company's revenues also include reimbursement for expenses, including the living
expenses of engineers on customer sites.
Program Management Services. The Company offers its customers a "one stop
shopping" approach to Phase 2 system build-outs and Phase 3 network expansions
by packaging program management services in a customized plan for each client.
To provide these services the Company has affiliated with commercial real estate
firms (for site acquisition), architectural engineering firms and contracting
and construction firms. The Company provides these services on a contract basis,
on a time and materials basis or for a fixed price per cell site.
Revenues from RF engineering and program management services represented
approximately 58.8% of revenues for 1997.
Systems & Products
Software Tools. The Company's software tools are used by the Company's
engineers and by customers to design wireless networks, optimize the performance
of an existing network, adapt networks to demand growth and environmental
changes and migrate networks to new technologies. Approximately one-third of the
Company's revenues from software tools is generated by the Company's use of the
tools (which are typically charged to customers separately from engineering
services) in conjunction with engineering service projects, particularly large
build-outs or enhancements during Phase 2 or Phase 3. As these software tools
are used by the Company's engineers, a database for the customer network is
generated based upon the actual design. The software and database are used by
the customer pursuant to a license following implementation of the network,
become the foundation of the customer's design environment and record of network
design, and are critical to subsequent expansion or enhancement of the system.
The other approximately two-thirds of the Company's software revenues is
generated by licensing of the software to customers, which use the tools in
network design and generate their own design specific databases.
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<PAGE> 10
The Company's software offerings include:
<TABLE>
<S> <C>
ANET(R)............ DOS-based software for network design. Allows
users to locate, move and configure cell
sites on computer screens, run propagation
analyses, change frequency or power settings,
analyze cell hand-offs, conduct interference
analysis, manipulate other variables and run
analysis of system parameters under varying
conditions. Accepts input from the Company's
field measurement products.
CellCAD(R)......... UNIX-based software for network design with
same functionality as ANET(R) plus microcell
and CDMA design capability.
CellSIGHT(R)....... Allows user to generate a series of
customized spreadsheet programs based upon
data received from the switch, to organize
and display statistics and other data, to
generate and store reports, and to filter
data and information into a database.
Interfaces with ANET(R) and CellCAD(R)
products.
</TABLE>
The Company plans to release during the third quarter of 1998 a next
generation software for network design and optimization. This product will
combine the functionalities of ANET(R) and CellCAD(R), providing multi-platform
compatibility and allowing users to analyze multiple technologies.
Another component of the Company's software offerings is its database
services. Databases are maintained for virtually all of the U.S. and many other
parts of the world and include data useful in designing and implementing
wireless networks, including data regarding terrain, building heights, land-use,
highways and secondary roads, traffic volume, political boundaries, demographics
and other parameters. Customers use a combination of these data sources in
designing their wireless networks. The Company believes that as the need for
more efficient system design becomes more important in the wireless industry,
databases with precise information will become more important.
The Company provides its software tools to customers under license
agreements that call for license fees on a per workstation basis. As of December
31, 1997, the Company had software license agreements in effect with
approximately 75 customers. Typically, customers license the software for
between one to five-years, with the right to annual renewals thereafter. In some
cases, the Company will grant a perpetual license to software for a fixed fee
payable at the commencement of the licenses. The number of work stations
licensed by LCC's current customers range up to approximately 200, with an
average of 14. The Company generally warrants that the software will perform
substantially in the manner specified in its documentation. Many customers
purchase maintenance support following expiration of the warranty period as well
as contract for installation and training services.
Field Measurement and Analysis Products. The Company's field measurement
and analysis products are used both by the Company's engineers and by customers
in connection with system design and build out and the maintenance and
improvement of operational systems. The Company's revenues from field
measurement and analysis products are generated from sales or monthly rentals to
customers and associated maintenance and upgrade fees.
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The Company's field measurement and analysis product lines are as follows:
<TABLE>
<S> <C>
EXP-2001(R)........ Modular vehicle mounted measurement system
used to measure RF system parameters for
field diagnostics, troubleshooting and RF
analysis. Linked to Global Positioning System
receivers, permitting identification of
changes in system performance based on time
and location. Information captured into
laptop computer for subsequent analysis.
RSAT-2000(R)....... Performs similar functions as EXP-2001(R),
but also provides real-time data for on-site
troubleshooting.
MSAT-2000(TM)...... Performs similar functions as the RSAT-
2000(R) but is lightweight and portable for
use inside buildings.
PENCAT(TM) Five pound pen-based collection and analysis
tool used with the MSAT-2000(TM) for
real-time data collection, display and
post-processing analysis.
DeskCAT(TM) Analysis tool used for post-processing
analysis of data collected from the EXP-
2001(R).
LL-2000(R) Analysis tool used to measure the quality of
the "uplink" from the wireless network to the
Public Switched Telephone Network.
TX-1500(TM) Continuous wave test transmitter used to
simulate cell sites from which test
transmissions are emitted, allowing
validation of predicted coverage.
CellAD Autonomous collection and analysis tool that
is installed in taxis, delivery and other
fleet vehicles and roams a wireless network
collecting statistics regarding system
quality, including call success rate, call
completion rate and call set up time.
Champ Collection and analysis tool installed at a
mobile switching center to continuously
monitor and report on the quality and
performance of a wireless network.
Auryst(TM) Audio quality analysis system which uses MOS
scores to measure network audio quality from
a subscriber's point of view.
</TABLE>
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<PAGE> 12
<TABLE>
<S> <C>
Benchmarker(TM) A modular vehicle mounted measurement system
equipped with test phones, Auryst(TM)audio
quality modules, scan receivers, specialized
data collection software for real -- time
operation and diagnostic display and a laptop
PC, which allow operators to simultaneously
gather detailed engineering data on their own
networks while collecting analyses of all
other networks in a market.
</TABLE>
Each of the EXP-2001(R), RSAT-2000(R) and MSAT-2000(TM) is designed for use
in wireless systems employing any of the major access technologies (TDMA, CDMA,
GSM, iDEN, etc.) and may be utilized by network operators to measure the
performance of other wireless systems. To support the RSAT-2000(R), EXP-
2001(R)and LL-2000(R) products, the Company offers a DOS-based software package
called Cellular Measurement Analyst, a corresponding UNIX-based product called
CellQUEST and a Windows-based product called DeskCAT(TM), each of which provides
comprehensive data analysis functions for coverage, interference, calls-
in-progress and call quality. These programs organize, edit and analyze RF and
navigation data for both digital and analog measurements. They provide detailed
reports, multi-colored graphs and high resolution on-screen graphic displays
which can be generated on a laptop computer for immediate field analysis.
The Company provides its field measurement and analysis products to
customers primarily through sales and to a lesser extent through monthly
rentals. The Company generally warrants that the field measurement and analysis
products will perform substantially in the manner specified in their
documentation for a period of 12 months following delivery thereof. The Company
offers various extended maintenance and support programs to customers.
Revenues from Systems & Products represented approximately 41.2% of
revenues for 1997.
Asset Management
Since January 1997, the Company, through Microcell Management, has been
offering wireless network operators the following arrangements with respect to
the transmission towers utilized in their networks: (i) Microcell Management
will build a multi-tenant tower to the initial committed operator's
specifications and will lease space thereon to such operator and other
operators, (ii) Microcell Management will purchase existing multi-tenant towers
from operators and lease back space to the existing users thereof as well as to
new operators or (iii) Microcell Management will lease space on an existing
tower owned or to be built by it.
Leasing of tower space may provide a network operator with financial
benefits, including lower capital and operating costs. Third party tower
ownership also facilitates zoning and resolution of co-location issues among
tenants. At December 31, 1997, Microcell Management owned 21 revenue-producing
towers (each with at least one contractually committed tenant), and had 55
additional towers in process of site acquisition or construction.
CUSTOMERS AND BACKLOG
Customers
The Company has provided services and products to seven of the ten largest
U.S. cellular system operators; large international cellular operators,
including British Telecom, France Telecom, Mannesmann and Korea Mobile Telecom;
companies building or proposing to build PCS systems, including AT&T Wireless
Services and Pacific Bell Mobile Services; operators of ESMR systems, including
Nextel Communications; and operators of two-way messaging systems. Many of the
Company's major customers have entered into partnerships with international
wireless operators, which has enabled the Company to receive significant new
business from such international wireless operators. The Company also has
established working relationships
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<PAGE> 13
with two major telecommunications equipment vendors, pursuant to which the
Company provides services and products on a subcontract basis.
In 1997, Nextel Communications and Lucent Technologies accounted for
approximately 13.8% and 10.1%, respectively, of the Company's revenues and were
the only customers accounting for 10% or more of the Company's revenues. The
Company has an agreement with Nextel Communications pursuant to which Nextel
Communications is committed to pay a minimum amount until October 1999 for the
purchase of RF engineering services in connection with the design and operation
of its digital mobile telephone systems in the United States (including Alaska
and Hawaii), Puerto Rico and/or the U.S. Virgin Islands.
The Company's existing and targeted customer base includes operators of all
forms of wireless communications services, operating a variety of different
network platforms and access technologies in diverse geographic markets. The
Company's experience includes the following projects:
- The Company has designed analog cellular systems throughout the U.S.,
including substantially all of the largest MSAs, as well as in several
other countries.
- The Company has designed TACS/ETACS analog cellular systems in the United
Kingdom and Spain.
- In the U.S., the Company is assisting its cellular customers in
implementing the emerging North American digital cellular standards
(i.e., TDMA, CDMA and others).
- The Company has designed, or is currently designing, GSM digital cellular
networks in the U.S., Germany, France, Italy, Spain, Portugal, Malaysia
and other nations.
- The Company has designed, or is currently designing, ESMR systems
throughout the U.S. and in Brazil, Canada, Mexico and China.
- In the U.S., the Company is supporting narrowband PCS clients with
INFLEXION(TM) and REFLEX(TM) standards.
Backlog
The Company has entered into long-term contracts with customers for the
provision of the Company's services and products. As of December 31, 1997 the
Company had a total backlog of $42.9 million, consisting of $19.7 million
relating to services and $23.2 million relating to systems and products. The
Company includes in its backlog only committed fees or purchase prices specified
in contracts which have been executed by the Company to the extent that the
Company contemplates recognition of the related revenue.
The principal portion of the Company's present backlog arises from Nextel
Communications, which represents approximately $12.1 million (or 28.2%) of the
overall backlog. In addition, it represents approximately $10.6 million (or
53.8%) and $1.5 million (or 6.5%), respectively, of the portions of the total
backlog relating to services and systems and products. Since the Company's
backlog is subject to significant timing uncertainties, the Company cannot
accurately predict the portion of the backlog that will be filled within the
current year, but expects that it will not fill at least $13.0 million of its
overall backlog in 1998. There can be no assurance that the contracts included
in the backlog will actually generate the specified revenues or that the actual
revenues will be generated within any particular period.
SALES AND MARKETING
The Company markets its products to operators of wireless
telecommunications networks in North America, Europe, Asia, the Middle East and
Latin America through its direct sales force based at its headquarters in
McLean, Virginia and in Oslo, Norway. The members of the systems and products
direct sales force are compensated based on factors such as revenues generated
compared to revenues forecasted, receivables collected and the blend of products
and services sold. The Company markets its program and management services
primarily through its RF engineers and other technical professional staff with
support for the marketing of services from the systems and products direct sales
force. Customers generally have
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<PAGE> 14
engineers involved in their procurement decisions, and the Company's engineers
work closely with the customer's engineers to help them understand the Company's
services and products and their advantages compared to those of the competition.
The Company also utilizes independent distributors and sales agents to
supplement its sales force outside the U.S. where business practices or customs
make it most effective to proceed through local companies. The Company utilizes
the offices of its German subsidiary to supplement its European sales efforts
and the offices of its Brazilian subsidiary to supplement its Latin American
sales efforts and has established a regional sales office in the Asia-Pacific
region.
Additional business from existing customers is pursued through the joint
efforts of both the direct sales force member primarily responsible for the
product sale and of the RF engineers and other technical staff who have
developed a service relationship and worked closely with the customer's
engineers. This combination gives the Company an advantage in pursuing follow-on
business.
The Company generates sales leads for new customers through referrals from
existing customers (including referrals to international wireless operators with
which such customers have entered into partnership arrangements) and other
industry suppliers, its reputation in the industry, contacts with bidders for
new wireless licenses and others in the industry and other sources, which
include advertising, use of explanatory literature and publications and
participation in conferences and trade shows. The Company utilizes various
strategies to attract business from new customers, particularly various
arrangements in which Phase 1 services are provided for a reduced fee or with a
success-based contingent arrangement, coupled with a commitment from, or
understanding with, the customer to retain the Company in connection with Phase
2 services and products should the customer be awarded the applicable licenses.
In addition to obtaining business directly from wireless network operators,
the Company has also established working relationships with major
telecommunications equipment vendors, pursuant to which the Company provides RF
engineering services and related products, on a subcontract basis. The Company
is seeking to establish additional relationships with telecommunications
equipment vendors.
Purchases of the Company's services or products by customers often entails
an extended decision-making process for the customer because of the substantial
costs and strategic implications associated with selecting the Company's
services and products. Senior management of the customer is often involved in
this process, given the importance of the decision as well as the risks faced by
the customer if the Company's services and products do not meet the customer's
particular needs. Therefore, large procurements of the Company's services and
products involve lengthy selling cycles, often as long as nine months.
RESEARCH AND DEVELOPMENT
The Company intends to continue developing new services and products and
enhance existing ones to maintain its position as a leader in RF engineering and
wireless network design. The Company is presently developing a number of new
products, including software tools and upgrades of field measurement and
analysis products. The Company's research and development efforts are focused on
making its existing products easier to use, adding functionality, making the
products compatible with different technologies and enabling the products to
interface with other products offered by the Company or other parties. In
December 1996 the Company acquired the business of ETP and currently sells
products specifically for use in connection with Phase 4, and is engaged in the
further development of the technological capabilities of these products. The
Company recently announced the introduction of Benchmarker(TM), a vehicle
mounted measurement system which allows operators to simultaneously gather
detailed engineering data on their own networks while collecting analyses of all
other networks in a market. The Company has also developed its next generation
software product, which it expects to be available for commercial use in the
third quarter of 1998. The Company believes that its experience in providing a
range of engineering and wireless network services gives it an advantage in
developing products for use by engineers providing wireless network design
services.
MANUFACTURING AND PRODUCT ASSEMBLY
The Company assembles field measurement and analysis products by obtaining
standard parts and components from a variety of computer and electronic vendors
and specially configuring these components to
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<PAGE> 15
produce the field measurement and analysis products. It also engages third party
contractors to assemble certain of these products based on the Company's design
specifications. The proprietary aspects of the Company's systems are primarily
in the product design, the software provided with the equipment and the specific
applications development designed for the customer. Equipment assembly, testing
and quality control are performed by the Company at its McLean, Virginia and
Oslo, Norway facilities. Certain components used in the Company's products are
presently available from limited sources. To date, the Company generally has
been able to obtain supplies of these components in a timely manner from these
sources. The Company began the development and assembly of its own field
measurement and analysis products in early 1992 and took over performance of the
bulk of its development and assembly in 1994. The Company experienced a stagnant
demand for its field measurement and analysis products during 1994 (reflected in
revenues from field measurement and analysis products for 1995) when it devoted
its resources to enhancing its own field measurement and analysis product
development capabilities rather than developing new products.
COMPETITION
The current market for wireless network design services, related software
tools and field measurement and analysis equipment and program and asset
management services is highly competitive. Many companies offer such services
and products, and the Company believes that the number of other independent
firms providing a combination of these services and products to wireless network
operators throughout the world is increasing.
Services
Engineering Services. The Company's competition in the provision of RF
engineering services consists of (i) companies such as Mobile Systems
International, Inc., Moffett, Larson & Johnson P.C. and Comsearch, Inc., which
provide a full range of RF engineering services (as well as related software),
(ii) companies that provide only a portion of the engineering services, which
generally act as a supplement to a wireless operator's in-house engineering
staff, (iii) telecommunications equipment vendors, which provide RF engineering
services through subcontractors as part of larger turnkey projects, and (iv) the
internal staffs of wireless network operators. The Company believes that it is
able to compete effectively against competitors in RF engineering services
procurements based upon its leadership position, pricing, reputation,
experience, ability to provide its customers "one-stop-shopping," ability to
deploy quickly a large number of RF engineers to a project, its databases for
many geographic areas, its technological tools, and its relationships with major
wireless operators. In particular, the Company believes that its existing
customer base gives it a significant advantage in obtaining additional business
for its existing and new products and services. The Company has been less
successful in competing where the customer has a strong internal staff of
wireless network operators or where RF engineering services are packaged with
large equipment procurements.
Program Management Services. Competition for the provision of program
management services is highly fragmented consisting of (i) equipment vendors
that provide program management services as part of larger turnkey projects,
(ii) companies with experience in project management in other industries, (iii)
the internal staffs of wireless network operators and (iv) small firms that
focus on a limited number of the entire range of activities involved in wireless
network deployment and expansion.
SYSTEMS & PRODUCTS
Software Tools. The Company's competition for the provision of software
tools consists of (i) the companies that provide the full range of RF
engineering services along with related software, particularly Mobile Systems
International, Inc. and Comsearch, Inc., which compete vigorously with the
Company in this area, (ii) a limited number of companies that have developed
software tools but generally do not provide engineering services and (iii) the
internal staffs of wireless network operators. The Company believes that its
experience in providing a range of engineering and network services gives it an
advantage in developing software tools for use by engineers providing network
design services, particularly because of the experience it receives as a result
of the use of the products by its own engineers. The Company believes that
competition depends on such factors as functionality, price product performance
and reputation. The most successful of the
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<PAGE> 16
Company's competitors in this area have been European companies, and the Company
has been enhancing the functionality of its software tools in the GSM area to
compete more effectively for European customers. In pursuing international
business the Company has been flexible with the terms of its software licenses
in markets where standard license terms differ from those used in the U.S.
Field Measurement and Analysis Equipment. The Company's competition for
the provision of field measurement and analysis products consists of (i) full
service companies and equipment vendors, particularly those specializing in
field measurement and analysis products, principally Safeco Technologies, Inc.,
Comarco, Inc. and Erisoft and (ii) small independent entrepreneurial companies.
As is the case with its software tools, the Company believes that its experience
in providing a range of engineering and network services gives it an advantage
in developing field measurement and analysis tools for use by engineers
providing network design services, particularly because of the feedback it
receives as a result of the use of the products by its own engineers. The
Company believes that competition depends on such factors as functionality,
price product performance, reputation and compatibility with software tools. The
Company is designing a series of products to make the Company's field
measurement and analysis tools compatible with software products from other
companies.
ASSET MANAGEMENT
Competition for the provision of asset management services is highly
fragmented consisting of (i) independent transmission tower owners and
operators, the largest of which, American Tower Corp. and American Tower
Systems, own approximately 800 transmission towers each, (ii) wireless network
operators, (iii) companies (such as utility providers) that operate their own
private communication networks, (iv) broadcasters and (v) site developers.
SOFTWARE PROTECTION AND TECHNOLOGY LICENSES
The Company regards its software as proprietary and has implemented
protective measures both of a legal and a practical nature to ensure that the
software retains that status. The Company derives protection for its software by
licensing only the object code to customers and keeping the source code
confidential. Like many other companies that license software, the Company does
not have patent protection for its software. It therefore relies upon the
copyright laws to protect against unauthorized copying of the object code of its
software, and upon copyright and trade secret laws for the protection of the
source code of its software. Despite this protection, competitors could copy
certain aspects of the Company's software tools or field measurement and
analysis products, or obtain information which the Company regards as trade
secrets. In addition, the Company enters into confidentiality agreements with
its employees, distributors, and customers, and limits access to and
distribution of its software, documentation, and other proprietary information.
There can be no assurance that the steps taken by the Company to protect its
proprietary rights will be adequate to deter misappropriation of its technology.
Further, there can be no assurance that any patent issued to the Company or the
copyrights registered by the Company can be successfully defended. In any event,
the Company believes that factors such as technological innovation and expertise
and market responsiveness are more important than the legal protections
described above.
RISK FACTORS
CHANGES ADVERSELY IMPACTING DEMAND FOR THE COMPANY'S PRODUCTS AND SERVICES
The wireless telecommunications industry is undergoing a number of
significant changes that are adversely impacting demand for the Company's RF
engineering and related services and products. Such changes include (i)
increased use of in-house engineers by operators of mature wireless networks,
(ii) increasing dependence of wireless network operators on equipment vendors
for design services and financing and (iii) delays in deployment of networks.
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<PAGE> 17
Increased Use of In-House Engineers by Operators of Mature Wireless
Networks
Over the last few years, operators of several mature wireless networks have
reduced the amount of engineering services purchased from the Company and have
replaced such services with those provided by their own engineers. The Company
expects this trend to continue and to affect other types of wireless networks
both within the U.S. and internationally.
Increasing Dependence of Wireless Network Operators on Equipment Vendors
for Design Services and Financing
Wireless network operators, particularly PCS operators and new
international licensees, are increasingly dependent on equipment vendors to
provide turnkey solutions for the design and deployment of wireless networks and
to provide vendor financing for the entire project. Vendors of wireless
telecommunications equipment have been conditioning the availability of
financing for services or products, other than those principally offered by the
vendor, on being granted the right to select the providers of such services and
products, including RF engineering and network design. The Company believes that
the need of PCS and other wireless operators for vendor financing and the
packaging of services by equipment vendors is making the vendor a competitor of
the Company (since the vendor is providing engineering services, generally
through a subcontract arrangement) and is causing the vendor to replace the
wireless operator as a customer of the Company. While the Company has
established relationships with major telecommunications equipment vendors
pursuant to which the Company provides services and products for the wireless
telecommunications projects for which such vendors act as prime contractors,
such arrangements often are less profitable for the Company than direct sales to
the end user since the vendor often submits a comparatively lower bid for the
engineering work to secure or increase its profits on equipment sales. In
addition, working through a prime contractor weakens the relationship with the
network operator and may reduce the Company's ability to obtain continuing
business.
Delays in Deployment of Networks
The Company believes that demand for its services and products has been and
will continue to be affected by any delays or difficulties in deployment of
networks in the U.S. and abroad. A significant portion of the Company's revenues
is generated from new licensees for designing and building out networks. For
example, in the U.S. the pace of PCS network deployment has been slower than
expected, due in significant part to various levels of difficulty experienced by
holders of PCS licenses in raising the necessary financing. Pocket and NextWave,
the two top bidders in the C-block broadband PCS auction, had agreements with
the Company pursuant to which the Company was to provide services and products
aggregating $115 million over a five-year period beginning in 1996. Both of
these customers failed to pay substantial amounts owing with respect to services
and products provided by the Company and, on April 1, 1997, Pocket announced
that it had voluntarily sought court protection under Chapter 11 of the U.S.
Bankruptcy Code. The Company has suspended all work with respect to Pocket and
NextWave. (See Item 7, "Management's Discussion and Analysis of Financial
Condition and Results of Operations -- Cash Flows"). Accordingly, orders for
network design and deployment from PCS licensees are subject to uncertainty. See
"-- Risks Associated with Strategic Relationships, Strategic Financing and
Acquisitions."
RISKS FROM COMPETITION
The current market for wireless network design services, related software
tools, field measurement and analysis equipment and program management services
is highly competitive. Many companies offer such services and products, and the
Company believes that the number of other independent firms providing a
combination of these services and products to wireless network operators
throughout the world is increasing. Wireless operators themselves and system
equipment vendors are also developing capabilities competitive with those
provided by the Company. See "-- Changes Adversely Impacting Demand for the
Company's Products and Services -- Increased Use of In-House Engineers by
Operators of Mature Wireless Networks" and "-- Increasing Dependence of Wireless
Network Operators on Equipment Vendors for Design Services and Financing." Some
of the Company's competitors are part of large corporate groups or alliances
with greater
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resources and broader technology bases than those of the Company. In addition,
some of the Company's competitors have been founded by or have recruited senior
engineering executives from current or potential Company customers and may have
better relationships with those current or potential customers than are
available to the Company. Recently, as a result of increased competition, the
Company has experienced a decline in the prices it can charge for its software
tools and field measurement and analysis equipment. There can be no assurance
that competitive factors will not have an adverse effect on the Company's
business.
SUBSTANTIAL LEVERAGE
The Company had $50.0 million of debt obligations as of December 31, 1997,
consisting of the notes held by MCI. The two MCI notes, which are due in 2000,
are exchangeable for Common Stock of the Company. The Company has previously
deferred the exercise of its option to cause the notes to be converted into
2,841,099 shares of Common Stock but presently intends to do so in August 1998.
However, if there is a default under such MCI notes prior to this exchange, or
if there is a default under the Credit Facility, there would be a material
adverse effect on the Company. The Credit Facility prohibits the Company from
incurring additional debt and contains numerous other restrictive covenants. See
Item 7, "Management's Discussion and Analysis of Financial Condition and Results
of Operations -- Existing Indebtedness."
RAPID TECHNOLOGICAL CHANGES
The market for wireless network system design services and tools is
characterized by rapid change and improvements in technology. The Company's
future success will depend in part on its ability to enhance its current
products, to introduce new products that keep pace with technological
developments and to address the increasingly sophisticated needs of its
customers. There can be no assurance that the Company will be successful in
developing and marketing in a timely manner product enhancements or new products
that respond to the technological advances by others, or that its products and
services will adequately and competitively address the needs of the changing
marketplace. Technological changes with respect to software tools and field
measurement and analysis equipment have resulted in the shortening of product
cycles, and if the Company is not ready to introduce new competitive products,
the Company's operating results could be adversely affected. In the past, the
Company's operating revenues from sales of software tools and field measurement
and analysis equipment have been adversely affected by this trend. In
particular, approximately four years ago, customer requirements for UNIX-based
products emerged at a time when the Company's UNIX-based products were still
being developed, and the Company's revenues from software tools for 1994 were
adversely affected. In order to remain competitive, the Company may be required
to expend a greater percentage of its revenues on product innovation and
research and development or technology acquisition than historically has been
the case.
In addition, the Company believes that, as the number of wireless networks
in the U.S. increases with the addition of PCS license holders and other
competitors (Phase 4), operators will experience greater price competition and
place greater emphasis on containing costs and system efficiency. The Company's
customers will require new network engineering services and products to increase
system efficiency and manage costs in the Phase 4 multiple-operator environment.
Although the Company has and is continuing to develop such services and
products, there can be no assurance that the Company will be able to offer such
services and products in a timely manner.
DEPENDENCE ON PROFESSIONAL STAFF; NEED FOR ADDITIONAL QUALIFIED TECHNICAL
PERSONNEL
The Company receives the majority of its revenues from the efforts of
approximately 480 professionals. The success of the Company's business therefore
depends on its ability to attract, hire and retain professional staff. Moreover,
to continue its growth at its current rate, the Company needs to attract
additional RF engineers and other technical professionals. There are a limited
number of RF engineers, and such individuals are sought both by RF engineering
companies such as the Company and by wireless network operators. Competition for
such personnel is intense, which has at times caused the Company to experience
difficulty in recruiting and retaining qualified technical personnel. In the
program management area, although the number of available professionals is
greater, the Company has less experience in hiring such professionals. There can
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be no assurance that the Company will not experience difficulties in retaining
and augmenting its professional staff.
DEPENDENCE ON SIGNIFICANT CUSTOMERS AND LARGE CONTRACTS
The Company derived approximately 55.0% of its revenues from its ten
largest customers in the year ended December 31, 1997. Nextel Communications,
the Company's largest customer in the year ended December 31, 1997, accounted
for approximately 13.8% of its revenues. Lucent Technologies accounted for an
additional 10.1% of the Company's revenues. Although such major customers
generally have differed from year to year as work under existing contracts is
completed and services under new contracts are commenced, the Company depends on
having large contracts from some customers each year to meet its expected
revenues. There can be no assurance that the Company will continue to receive
large contracts from customers. In addition, the Company's contracts typically
have provisions that permit customers to terminate their respective contracts
under various circumstances, which include nonperformance or unsatisfactory
performance by the Company. There can be no assurance that customers under any
of the Company's other long-term contracts will not attempt to cancel or
renegotiate their contracts with the Company.
LENGTHY SALES CYCLE
Purchases of the Company's products or services by customers often entail
an extended decision-making process for the customer because of the substantial
costs and strategic implications associated with selecting wireless network
deployment services and products. Senior management of the customer is often
involved in this process, given the importance of the decision as well as the
risks faced by the customer if the Company's services and products do not meet
the customer's particular needs. Therefore, large procurements of the Company's
services and products involve lengthy selling cycles, resulting in a relatively
high cost of new business generation. See "-- Sales and Marketing."
SIGNIFICANT FLUCTUATIONS IN QUARTERLY RESULTS; UNCERTAINTIES RELATING TO
BACKLOG
The Company's quarterly revenues and operating results have varied
considerably in the past and are likely to vary considerably from quarter to
quarter in the future. Fluctuations in the Company's revenues depend on a number
of factors, some of which are beyond the Company's control. These factors
include, among others, the timing of issuance of new licenses by governmental
agencies, the length of sales cycles, changes in pricing policy by the Company
or its competitors, the timing of contracts and customer budget changes. In
addition, even after contracts are entered into, the timing of delivery of
services and products depends in part on the customer's readiness to receive the
services and the pace of the build-out of the customer's network, which in turn
depend on a number of business decisions by the customer and provision of
services and equipment by providers other than the Company. The Company's
backlog was reduced significantly in early 1997 as a result of the cessation and
reduction, respectively, of the services to be provided to Pocket and NextWave
(see Item 7 "Management's Discussion and Analysis of Financial Condition and
Results of Operations -- Cash Flows). The Company establishes its expenditure
levels for product development and other operating expenses in large part on its
expected future revenues. As a result, should revenues fall below expectations,
operating results are likely to be adversely affected.
DEPENDENCE ON PROPRIETARY TECHNOLOGY
The Company relies on a combination of copyrights, trademarks, trade
secrets, non-disclosure and other contractual agreements and technical measures
to protect its proprietary rights in its products. There can be no assurance
that others will not independently develop similar products or duplicate the
Company's products. There can also be no assurance that the steps taken by the
Company will prevent misappropriation of this technology. In addition, effective
copyright, trademark or trade secret protection may be unavailable or limited in
certain circumstances. There can be no assurance that third parties will not
assert infringement claims against the Company in the future or that any such
claims will not require the Company to enter into royalty arrangements or result
in costly litigation involving the imposition of damages or injunctive relief
against the Company, any of which could adversely affect the Company's business.
19
<PAGE> 20
TRADE ACCOUNT RECEIVABLES
The Company is subject to credit risk in the form of trade account
receivables. As of December 31, 1997, the Company had trade account receivables,
net of allowances for doubtful accounts, of $30.6 million. The Company's
existing and potential customer base is diverse and includes start-up companies
and foreign enterprises. Although the Company believes that the diversity of its
customer base has historically minimized the risk of incurring material losses
due to concentrations of credit risk, it may be exposed to a declining customer
base in periods of market downturns, severe competition, or international
developments. As part of the special charge of $30.1 million recorded by the
Company at December 31, 1996 (see Item 7 "Management's Discussion and Analysis
of Financial Condition and Results of Operations -- Cash Flows"), the Company
fully reserved for its aggregate $12.4 million receivable exposure from Pocket
and NextWave and in 1997 realized $3.9 million thereof. In addition, the
economic downturn and exchange rate fluctuations in the Asia-Pacific region has
resulted in certain of the Company's customers experiencing difficulty in
arranging in a timely fashion needed additional financing and hard currency to
satisfy U.S. dollar denominated liabilities to the Company. As a result of the
uncertainty associated with the collection of amounts due, the Company recorded
additional reserves of approximately $2.9 million during the fourth quarter to
cover potential Asia-Pacific region exposure. See Item 7 "Management's
Discussion and Analysis of Financial Condition -- Year Ended December 31, 1997
compared to Year Ended December 31, 1996 -- General and Administrative." The
Company frequently is unable to enforce a policy of receiving payment within 30
days of issuing bills, especially in the case of customers who are in the early
phases of business development. In addition, many of the Company's foreign
customers are not accustomed to paying their suppliers on terms as attractive as
those typically existing in the United States. See "Risk Factors -- Risks of
International Operations." Generally, the Company does not require collateral or
other security to support customer receivables.
RISKS OF INTERNATIONAL OPERATIONS
Approximately 37.2% of the Company's revenues for 1997 were generated
outside of the United States, and the Company expects this segment of its
business to increase as a percentage of its revenues. Licensing software and
selling other products and services in foreign countries is subject to various
risks inherent in international business activities. Risks include those
presented by general economic and political conditions in each country, the
effect of applicable foreign tax structures, tariff and trade regulations,
difficulties in obtaining local business licenses, the need to manage a
geographically diverse organization and difficulties in complying with a variety
of foreign laws and regulations. In addition, adverse changes in the regulatory
environments in foreign countries, including delays in deregulation or
privatization affecting the pace at which licenses are awarded to wireless
network system operators, affect the level and timing of the demand for the
Company's services and products. Providing products and services outside the
United States carries the additional risk of currency fluctuations and foreign
exchange controls imposed by certain countries. Foreign customers may be
accustomed to paying their suppliers, including the Company, on terms and
conditions less attractive than is typical in the United States, and collection
of accounts receivable due from foreign customers can be more difficult than
from domestic customers. In addition, the economic downturn and exchange rate
fluctuations in the Asia-Pacific region has resulted in certain of the Company's
customers experiencing difficulty in arranging in a timely fashion needed
additional financing and hard currency to satisfy U.S. dollar denominated
liabilities to the Company. As a result of the uncertainty associated with the
collection of amounts due, the Company recorded additional reserves of
approximately $2.9 million during the fourth quarter to cover potential Asia-
Pacific region exposure. See Item 7 "Management's Discussion and Analysis of
Financial Condition -- Year Ended December 31, 1997 compared to Year Ended
December 31, 1996 -- General and Administrative."
RISKS ASSOCIATED WITH STRATEGIC RELATIONSHIPS, STRATEGIC FINANCING AND
ACQUISITIONS
Risks Associated with Strategic Relationships and Strategic Financing
There are a number of risks associated with the Company's plans to pursue
opportunities to enter into strategic relationships with new wireless operators
or to extend financing to customers in return for new business opportunities.
There can be no assurance that the Company will receive the anticipated
business, that
20
<PAGE> 21
the business will be of the anticipated level or that profits from the new
business will offset any possible losses on the investment made or financing
extended by the Company to enter into such relationship. A loan to or investment
in a customer will be subject to many of the same risks to which the customer is
subject in seeking to operate and grow its businesses, and there can be no
assurance that the customer will be able to repay or return the Company's
investment within an acceptable period. The Company's first two arrangements
with customers under this strategy were Pocket and NextWave, the two top bidders
in the recently-concluded C-block auction for broadband PCS licenses, as part of
arrangements involving the Company receiving contracts for new business over a
five-year period. Both of these companies experienced delays in obtaining
adequate financing for the capital intensive build-out of their systems and
failed to pay substantial amounts owing with respect to services and products
provided by the Company. On April 1, 1997, Pocket announced that it had
voluntarily sought court protection under Chapter 11 of the U.S. Bankruptcy
Code. The Company has suspended all work with respect to Pocket and NextWave.
The Company recorded a special charge of $30.1 million pre-tax ($24.5 million
after tax) to fully reserve for its exposure with Pocket and NextWave, of which
it has received $3.9 million. See Item 7, "Management's Discussion and Analysis
of Financial Condition and Results of Operations -- Cash Flows."
Risks Relating to Acquisitions
The Company's intention to engage in acquisitions to acquire companies that
have developed or are developing complementary products and services is subject
to the risks that the assets being acquired or additional professional staff
being recruited to perform services will not perform as expected, that the
acquired entity will have unanticipated liabilities and that the returns
realized by the Company ultimately will not support the investments made or
indebtedness incurred in such acquisitions.
Restrictions Affecting the Company's Ability to Engage in Strategic
Financings or Acquisitions
There are several restrictions and other factors affecting the Company's
ability to engage in strategic financings or acquisitions. The Company cannot
predict the extent to which additional capital may be required to engage in such
transactions, there can be no assurance that the Company will be able to obtain
such additional capital on terms acceptable to the Company. In addition, the
Credit Facility contains certain restrictions with regard to, among other
things, acquisitions, capital expenditures and incurrence of additional
indebtedness that may limit the ability of the Company to complete certain
acquisitions. See Item 7, "Management's Discussion and Analysis of Financial
Condition and Results of Operations -- Existing Indebtedness." The Carlyle Group
Investors also have certain rights that limit the ability of the Company to
incur debt above specified ratios or amounts. See "-- Control of the Company by
RF Investors." Moreover, in seeking to make investments in wireless operators or
acquire other companies, the Company will be competing with organizations that
are larger, have access to more substantial capital resources or are pursuing
other strategic goals. There can be no assurance that the Company will be
successful in completing these transactions.
RISKS ASSOCIATED WITH CONSTRUCTION AND ACQUISITION OF TRANSMISSION TOWERS
The success of the Company's asset management business depends on its
ability to construct and acquire transmission towers. The Company's ability to
construct new towers can be affected by a number of factors beyond its control,
including zoning and local permitting requirements, Federal Aviation
Administration considerations, availability of tower components and construction
equipment, skilled construction personnel and bad weather conditions. There can
be no assurance that the Company will be able to overcome these barriers to
construct new towers. With respect to the Company's acquisition of transmission
towers, the Company competes with certain wireless service providers,
broadcasters, site developers and other independent tower owners and operators
to acquire towers, and expects such competition to increase. Increased
competition for acquisitions may result in fewer acquisition opportunities and
higher acquisition prices.
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<PAGE> 22
RISKS ASSOCIATED WITH DAMAGE TO TRANSMISSION TOWERS
The Company's transmission towers are subject to risks associated with
natural disasters such as tornadoes, hurricanes and earthquakes. The Company
maintains insurance to cover the estimated cost of replacing damaged towers
(subject to certain caps). The Company also maintains third party liability
insurance to protect the Company in the event of an accident involving a tower.
A tower accident for which the Company is uninsured or underinsured, or damage
to a tower or group of towers, could have a material adverse effect on the
Company's business.
DEPENDENCE ON KEY PERSONNEL; MANAGEMENT OF GROWTH
Dependence on Key Personnel
The success of the Company depends to a significant degree upon the
contribution of its executive officers and other key personnel. The Company
recently hired a new Chief Executive Officer following the resignation of its
former Chief Executive Officer. With the exception of the new Chief Executive
Officer, none of the Company's executive officers has an employment agreement
with the Company, other than an agreement terminable at will. There can be no
assurance that the Company will be able to retain its key managerial and other
key personnel or to attract suitable replacements or additional personnel if
required.
Management of Growth
To manage its growth effectively, the Company must continue to strengthen
its operational, financial and management information systems, and expand, train
and manage its work force. Failure to do so effectively and on a timely basis
would have an adverse effect upon the Company's business.
CONTROL OF THE COMPANY BY RF INVESTORS
RF Investors owns all of the outstanding shares of Class B Common Stock,
which represents 92.2% of the combined voting power of both classes of Common
Stock. Accordingly, RF Investors and its equity holders are able, without the
approval of the Company's public stockholders, to (i) elect all of the Company's
directors, (ii) amend the Company's certificate of incorporation (the
"Certificate of Incorporation") with respect to most matters or effect a merger,
sale of assets, or other major corporate transaction, (iii) defeat any
non-negotiated takeover attempt, (iv) sell RF Investors' shares of Common Stock
without participation in such sale by the Company's public stockholders, (v)
determine the amount and timing of dividends paid, if any, with respect to
Common Stock and (vi) otherwise control the management and operations of the
Company and the outcome of virtually all matters submitted for a stockholder
vote. RF Investors may also, by converting its shares of Class B Common Stock
into shares of Class A Common Stock, obtain a sufficient number of shares of
Class A Common Stock (54.5% of the total outstanding shares of Class A Common
Stock (based upon the number of shares of Class B Common Stock held by RF
Investors on March 16, 1998)) to determine the outcome of any vote with respect
to any matter on which the holders of Class A Common Stock are entitled to vote
together as a class. Dr. Rajendra and Neera Singh, who with certain Singh family
trusts indirectly own 75% of Telcom Ventures (collectively, the "Singh Family
Group"), are also directors or executive officers of the Company, and Mark Ein,
a designee of the Carlyle Investors, who are the 25% indirect owners of Telcom
Ventures, also is a director of the Company. The Telcom Ventures and RF
Investors limited liability company agreements provide that, for as long as the
Carlyle Investors collectively own at least 5% of the total membership interests
of Telcom Ventures, Telcom Ventures shall vote any and all shares of the Company
held by it, and shall cause RF Investors to vote any and all shares held by it,
from time to time: (i) to elect as directors of the Company up to two persons
recommended by the Carlyle Investors upon the request of the Carlyle Investors,
and (ii) not to take any of the following actions without the consent of the
Carlyle Investors: (a) approve any amendment to the Certificate of Incorporation
or the Bylaws of the Company; (b) approve the incurrence by the Company of any
debt (or the granting of security relating to the incurrence of debt) if as a
result of such incurrence, the debt to equity ratio of the Company exceeds 6:1
or, if as a result of such debt incurrence, the total outstanding debt of the
Company exceeds $50 million plus or minus, as the case may be, the cumulative
net income or the net losses of the Company after January 1994;
22
<PAGE> 23
(c) approve any new affiliated party transactions in excess of $150,000 or
modifications to existing transactions, subject to certain limited exceptions;
(d) approve the appointment as independent accountants of the Company of a firm
other than one of the "big six" accounting firms; or (e) approve certain events
relating to the bankruptcy or insolvency of the Company. The RF Investors and
Telcom Ventures limited liability company agreements provide for certain rights
of the Carlyle Investors to cause the distribution to the Carlyle Investors,
beginning September 30, 1999, of up to 25% of the Common Stock held by RF
Investors. Such a distribution would still leave RF Investors with voting
control of the Company.
RELATIONSHIP WITH TELCOM VENTURES; POTENTIAL CONFLICTS OF INTEREST
Telcom Ventures, RF Investors' parent, is principally engaged in making
investments in wireless system operators and emerging wireless technologies.
Directors of Telcom Ventures and its subsidiaries who are also directors or
officers of the Company have certain fiduciary obligations to each organization.
Telcom Ventures and directors of Telcom Ventures and its subsidiaries who are
also directors and officers of the Company are in positions involving the
possibility of conflicts of interest with respect to certain transactions
concerning the Company. In addition, the Company and Telcom Ventures and certain
of Telcom Ventures' subsidiaries have entered and will enter into arrangements
which provide for certain transactions and relationships between the parties or
which otherwise affect the Company. The Company, RF Investors, Telcom Ventures,
and Telcom Ventures' owners (Cherrywood, the Singh Family Group and the Carlyle
Investors) (in each case as defined herein and collectively, the "Telcom
Ventures Group") have entered into an agreement (the "Intercompany Agreement"),
effective with the Offering, whereby, among other things, (i) the Singh Family
Group is limited in its ability to compete with the Company in its traditional
lines of business and (ii) Telcom Ventures is limited in its ability to invest
in entities whose primary business is to compete with the Company in its
traditional lines of business, in each case until the earlier of (i) the date on
which the Telcom Ventures Group no longer possesses 51% or more of the
outstanding voting power of the Company or (ii) the occurrence of certain
termination events specified in the Formation Agreement among the Telcom
Ventures Group. Each of the Carlyle Investors (but not its affiliates) is
limited in its ability to invest in entities whose primary business is to
compete with the Company in its traditional line of business (excluding the
program management business) until the earlier of (i) the date on which such
Carlyle Investor no longer owns, directly or indirectly, an interest in the
Company or (ii) the occurrence of certain termination events specified in the
Formation Agreement among the Telcom Ventures Group. The Company is free to
pursue investment opportunities on its own, but is obligated to refer to Telcom
Ventures investment opportunities prior to offering such opportunities to any
other third party. If Telcom Ventures does not elect to pursue the investment
opportunity within five days, the Company will be free to offer the opportunity
to third parties. There can be no assurance that the Intercompany Agreement will
eliminate or reduce conflicts of interest or inconsistent fiduciary obligations.
EMPLOYEES
As of December 31, 1997, the Company employed 827 full-time employees. The
Company believes that relations with its employees are good. None of its
employees is part of any collective bargaining unit. The Company believes that
its future growth and success will depend upon its ability to attract and retain
skilled and motivated personnel.
ITEM 2. PROPERTIES
At December 31, 1997 the Company leased approximately 155,000 square feet
of office space in McLean, Virginia pursuant to a lease entered into in May
1996, with an initial annual rent of approximately $2.9 million. The term of
this lease is ten years, with two five-year renewal options. The Company entered
into another lease in May 1996 for approximately 10,000 square feet of office
space in McLean, Virginia, with an initial annual rent of approximately
$153,700. The Company occupied a portion of this office space in 1997 and
expects to occupy or sublease additional portions thereof in 1998. The term of
this lease is five-years with three five-year renewal options. The Company
believes that its facilities will be adequate for its needs for the foreseeable
future.
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<PAGE> 24
ITEM 3. LEGAL PROCEEDINGS
The Company is party to various legal proceeding and claims incidental to
its business. The Company does not believe that these matters will have a
material adverse effect on the Company.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON STOCK AND RELATED STOCKHOLDER MATTERS
Since completion of the Offering in September 1996, the Class A Common
Stock has been quoted on the Nasdaq National Market under the trading symbol
"LCCI." As of March 27, 1998, there were 73 stockholders of record of the Class
A Common Stock and, in excess of 2,700 beneficial holders thereof, and two
stockholders of record of the Class B Common Stock. The following table
summarizes the high and low closing sale prices of the Class A Common Stock by
fiscal quarter for 1996 and 1997 as reported on the Nasdaq National Market:
<TABLE>
<CAPTION>
QUARTER ENDED: 1996
- -------------- ------------------
<S> <C>
September 30 (from September 25)**.......................... $18.25 to $20.00
December 31................................................. $13.625 to $19.25
QUARTER ENDED: 1997
- ------------------------------------------------------------ ------------------
March 31.................................................... $7.75 to $18.875
June 30..................................................... $8.75 to $15.875
September 30................................................ $13.625 to $21.875
December 31................................................. $12.50 to $25.00
</TABLE>
The Company has never paid any cash dividends on Common Stock and the
Company does not anticipate paying dividends on the Common Stock, cash or
otherwise, in the foreseeable future. In addition, the Credit Facility prohibits
the payment of dividends by the Company without the consent of the lenders
thereunder. Future dividends, if any, will be at the discretion of the Board of
Directors and will depend upon, among other things, the Company's operations,
capital requirements and surplus, general financial condition, contractual
restrictions and such other factors as the Board of Directors may deem relevant.
- ---------------
** The Class A Common Stock began trading on the NASDAQ Stock Market on
September 25, 1996. Prior to that time there was no established trading
market for the Class A Common Stock.
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<PAGE> 25
ITEM 6. SELECTED FINANCIAL DATA
Set forth below are (i) selected consolidated financial data as of and for
each of the years in the five-year period ended December 31, 1997, which have
been derived from the Company's audited Consolidated Financial Statements and
(ii) unaudited pro forma net income (loss) and net income (loss) per share data
prepared as if the Company was treated as a Subchapter C Corporation for Federal
and state income tax purposes from January 1, 1995. The selected consolidated
financial data set forth below should be read in conjunction with Item 7,
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and the Consolidated Financial Statements and related notes thereto
included, or incorporated by reference, elsewhere in this Form 10-K.
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
-------------------------------------------------
1993 1994 1995 1996 1997
------- ------- ------- -------- --------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
Revenues:
Service revenues.................................... $30,712 $41,063 $64,016 $ 93,156 $ 91,289
Product revenues.................................... 29,595 34,992 40,445 48,414 63,959
------- ------- ------- -------- --------
Total revenues.................................... 60,307 76,055 104,461 141,570 155,248
------- ------- ------- -------- --------
Cost of revenues:
Cost of service revenues............................ 21,087 29,185 45,682 65,801 66,837
Cost of product revenues............................ 14,571 18,739 22,448 29,533 40,869
------- ------- ------- -------- --------
Total cost of revenues............................ 35,658 47,924 68,130 95,334 107,706
------- ------- ------- -------- --------
Gross profit.......................................... 24,649 28,131 36,331 46,236 47,542
------- ------- ------- -------- --------
Operating expenses:
Sales and marketing................................. 4,146 4,987 5,823 6,475 7,645
General and administrative.......................... 5,799 8,802 10,108 11,964 16,380
Research and development............................ 1,455 2,560 3,007 8,609 4,570
Special charge (credit)............................. -- -- -- 30,050 (3,894)
Non-cash compensation............................... -- 3,255 4,646 7,005 580
Depreciation and amortization....................... 1,838 2,020 3,699 5,039 8,044
------- ------- ------- -------- --------
Total operating expenses.......................... 13,238 21,624 27,283 69,142 33,325
------- ------- ------- -------- --------
Operating income (loss)............................... 11,411 6,507 9,048 (22,906) 14,217
------- ------- ------- -------- --------
Other income (expense)
Interest, net....................................... 146 (221) (2,193) (2,125) (2,601)
Other............................................... (231) 721 1,027 2,376 1,194
------- ------- ------- -------- --------
Total other income (expense)...................... (85) 500 (1,166) 251 (1,407)
------- ------- ------- -------- --------
Income (loss) before income taxes..................... 11,326 7,007 7,882 (22,655) 12,810
Provision (benefit) for income taxes................ 829 2,037 3,142 (11,371) 5,235
------- ------- ------- -------- --------
Net income (loss)..................................... $10,497 $ 4,970 $ 4,740 $(11,284) $ 7,575
======= ======= ======= ======== ========
Net income per share:
Basic............................................... $ 0.51
========
Diluted............................................. $ 0.47
========
Unaudited Pro Forma Data:
Pro forma net income (loss)......................... $ 4,729(1) $(20,769)(1)
======= ========
Pro forma net income (loss) per share:
Basic............................................. $ 0.42(1) $ (1.70)(1)
======= ========
Diluted........................................... $ 0.39(1) $ (1.70)(1)
======= ========
Consolidated Balance Sheet Data (at year-end):
Working capital..................................... $ 4,682 $31,503 $17,649 $ 37,237 $ 46,981
Licenses and other intangibles, net................. -- 1,797 3,745 10,540 10,530
Total assets........................................ 55,417 58,586 62,041 114,947 111,018
Long term obligations............................... 655 23,930 28,627 51,860 51,038
Equity (deficit).................................... 12,270 13,938 (244) 8,477 20,202
</TABLE>
- ---------------
(1) Unaudited pro forma net income (loss) has been adjusted to reflect the pro
forma effects as if the Company was a Subchapter C Corporation in 1995.
Unaudited pro forma net income (loss) is net of a provision (benefit) for
income taxes at an assumed effective income tax rate of 40% for its U.S.
operations and 28%, beginning in 1996, for its Norwegian subsidiary. The
amount of the pro forma provision (benefit) for income taxes was $3,153,000
and ($1,886,000) for the years ended December 31, 1995 and 1996,
respectively. Weighted average shares used in the computation of pro forma
net income per share was as follows:
<TABLE>
<CAPTION>
BASIC DILUTED
------ -------
<S> <C> <C>
1995..................................................... 11,364 14,205
====== ======
1996..................................................... 12,211 12,211
====== ======
</TABLE>
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<PAGE> 26
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following discussion and analysis should be read in conjunction with
the Company's Consolidated Financial Statements and the notes thereto and the
other financial data appearing elsewhere in this Form 10-K.
OVERVIEW
The Company is one of the world's largest independent providers of RF
engineering and program management services and products to the wireless
telecommunications industry. The Company has provided these services, along with
related proprietary software tools and field measurement and analysis equipment,
to operators of more than 200 wireless systems in more than 40 countries.
The Company's revenues are generated through contracts for RF engineering
and program management services, licenses of the Company's software products and
sales of the Company's field measurement and analysis products. The Company
provides engineering services on a contract basis, usually in a customized plan
for each client and generally charges for engineering services on a time and
materials or fixed price basis. The Company generally provides program
management services on a time and materials or fixed price basis. The Company's
revenues also include reimbursement for expenses, including the living expenses
of engineers on customer sites. The software tools used by the Company's
engineers, which are used as part of the customer's system after completion of
the project pursuant to a license, are recorded as product, not service
revenues. Revenues from software tools are earned under license arrangements,
which in the U.S. often consists of monthly or annual fees per workstation or
per cell site and which are for a fixed term that requires renewal by the
customer to retain the software. The Company charges an up-front fee in many
cases outside the U.S. where customers are not accustomed to paying annual
licensing fees for software. A portion of the revenues from licensing software
to customers, apart from those associated with engineering design services
contracts, consists of upgrades or additional software modules developed by the
Company following the initial licensing. Revenues from field measurement and
analysis equipment consist primarily of one-time payments, although there are
some periodic rental payments and there may be additional charges for equipment
maintenance and upgrades.
In December 1996, through the formation of a new subsidiary, Microcell
Management, Inc. ("Microcell"), the Company entered the wireless infrastructure
asset management business to acquire, develop and manage RF transmission towers.
Capitalized cost related to tower development was $2.9 million at December 31,
1997. Expenses of $0.9 million were incurred in calendar 1997 related to the
asset management business and are included in general and administrative
expenses in the accompanying consolidated statement of operations.
Service revenues consist of revenues from engineering design services and
program management services (approximately 58.8% of 1997 revenues). Systems and
product revenues consist of revenues from software tools and field measurement
and analysis products (approximately 41.2% of 1997 revenues). The Company
derives a significant portion of its revenues from its international customers
(approximately 37.2% in 1997). Since almost all of the Company's contracts are
denominated in U.S. dollars, the Company does not generally maintain currency
hedge agreements.
Cost of revenues consists of costs associated with engineering design
services and program management services as well as costs associated with the
production of field measurement and analysis equipment, licensing of software
and related maintenance costs. Sales and marketing expenses consist of salaries,
sales commissions, bonuses, travel and other expenses required to implement the
Company's marketing, sales and customer support plans. General and
administrative expenses consist of the compensation, finance, information
systems, professional services and office and occupancy costs required to manage
the Company's business. Non-cash compensation consists of awards under a program
for key employees adopted in 1994. Such plan was accounted for as a variable
plan, and therefore, to the extent that the deemed fair market value of the
Company increased, compensation expense increased accordingly. In connection
with the Company's initial public offering in September 1996, the Company
granted stock options to replace the awards granted under this plan. (See note
15 to the Consolidated Financial Statements).
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<PAGE> 27
The key drivers of the Company's growth have historically been (i) the
issuances of new or additional wireless telecommunications licenses by
governmental authorities to wireless operators, (ii) increases in the number of
cell sites operated and the number of subscribers served by wireless network
operators, (iii) the introduction of new services or technologies, (iv) the
increasing complexity of the systems deployed by wireless network operators, and
(v) the expansion and optimization of existing systems by wireless network
operators.
To keep pace with the subscriber growth currently anticipated by most
industry analysts, the Company expects that there will continue to be
significant investment by network system operators over the next few years in
design services, program management services, software tools and field
measurement analysis equipment. The Company expects that as system build-out is
completed and areas begin to have multiple network operators, the demand for
traditional design and build RF engineering services, particularly in the U.S.,
will change.
Although the Company's revenues from the sales of products and services are
primarily derived from the design, build-out and optimization of wireless
systems, increased emphasis has been placed on products and services which
assist in achieving network efficiency and cost savings. The Company's
acquisition of ETP in December 1996 has facilitated the Company's development of
hardware and software products and services designed to enhance system
performance by providing automated data collection, analysis and optimization
capabilities.
The Company has experienced fluctuations in revenues in each of the past
several years, with greater revenues in the second half of its calendar year and
lesser amounts in the first half. This trend may or may not continue as the
Company broadens its product and service offerings. A significant portion of the
Company's software license agreements are concluded in the last month of the
calendar quarter, generally with a concentration of such revenues in the final
ten business days of that month. The Company believes that these revenue
fluctuations are caused primarily by customer buying patterns. In any case, due
to the relatively fixed nature of certain costs, including personnel and
facilities expenses, a decline or shortfall in quarterly and/or annual revenues
typically results in lower profitability.
RESULTS OF OPERATIONS
The following table sets forth certain items as a percentage of revenues
from the Company's audited consolidated statements of operations for the years
ended December 31, 1995, 1996, and 1997. The table and discussion which follows
provides information which management believes is relevant to an assessment and
understanding of the Company's consolidated results of operations and financial
condition. The discussion
27
<PAGE> 28
should be read in conjunction with the consolidated financial statements and
accompanying notes thereto included elsewhere herein.
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
--------------------------
1995 1996 1997
------ ------ ------
<S> <C> <C> <C>
Revenues:
Service revenues.......................................... 61.3% 65.8% 58.8%
Product revenues.......................................... 38.7 34.2 41.2
----- ----- -----
Total revenues.................................... 100.0 100.0 100.0
Cost of revenues............................................ 65.2 67.3 69.4
----- ----- -----
Gross profit................................................ 34.8 32.7 30.6
----- ----- -----
Operating expenses:
Sales and marketing....................................... 5.6 4.6 4.9
General and administrative................................ 9.7 8.5 10.5
Research and development.................................. 2.9 6.1 2.9
Special charge (credit)................................... -- 21.2 (2.5)
Non-cash compensation..................................... 4.4 4.9 0.4
Depreciation and amortization............................. 3.5 3.6 5.2
----- ----- -----
Total operating expenses.......................... 26.1 48.9 21.4
----- ----- -----
Operating income (loss)..................................... 8.7 (16.2) 9.2
----- ----- -----
Other income (expense):
Interest income........................................... 0.6 0.7 0.5
Interest expense.......................................... (2.7) (2.2) (2.1)
Other..................................................... 0.9 1.7 0.7
----- ----- -----
Total other income (expense)...................... (1.2) 0.2 (0.9)
----- ----- -----
Income (loss) before income taxes........................... 7.5 (16.0) 8.3
Provision (benefit) for income taxes........................ 3.0 (8.0) 3.4
----- ----- -----
Net income (loss)........................................... 4.5% (8.0)% 4.9%
===== ===== =====
</TABLE>
YEAR ENDED DECEMBER 31, 1997 COMPARED TO YEAR ENDED DECEMBER 31, 1996
Revenues. Revenues for 1997 were $155.2 million, compared to $141.6
million for 1996, an increase of $13.6 million or 9.7%. Service revenues were
$91.3 million, compared to $93.2 million for the prior year, a decrease of $1.9
million, or 2.0%. The decrease was primarily the result of a $6.8 million or
41.2% decrease in program management service revenue as a result of the decrease
in chargeability from ceasing all work for Pocket and NextWave during the first
quarter of 1997. Engineering design services revenue increased $4.9 million or
6.4% primarily as a result of an increase in chargeable hours. Product revenues
were $64.0 million, compared to $48.4 million the prior year, an increase of
$15.6 million or 32.1%. The increase was primarily the result of an increase in
field measurement and network analysis product revenues due to strong sales in
North America, the acquisition of ETP in December 1996 and new product
introductions during 1997.
Cost of Revenues. Cost of revenues were $107.7 million for 1997, compared
to $95.3 million for 1996, an increase of $12.4 million or 13.0%. As a
percentage of total revenues, cost of revenues was 69.4% and 67.3% for 1997 and
1996, respectively. Total cost of service revenues as a percentage of service
revenues increased to 73.2%, as compared to 70.6% for the prior year. The
increase was primarily due to greater compensation and related costs, in part,
as a result of the increase in the number of professional personnel between
years. Total cost of product revenues as a percentage of product revenues
increased to 63.9%, compared to 61.0% for the
28
<PAGE> 29
prior year. The increase was primarily due to a change in software products mix
between years favoring lower margin products.
Gross Profit. Gross profit was $47.5 million, compared to $46.2 million
for the prior year, an increase of $1.3 million or 2.8%. As a percentage of
total revenues, gross profit was 30.6% and 32.7% for 1997 and 1996,
respectively. Service gross profit decreased to $24.5 million, compared to $27.3
million for the prior year, a decrease of $2.8 million or 10.6%. As a percentage
of service revenues, service gross profit was 26.8% and 29.4% for 1997 and 1996,
respectively. The decrease in service gross profit was primarily due to the
decrease in chargeability from ceasing all work for Pocket and NextWave. Product
gross profit increased to $23.1 million, compared to $18.9 million for the prior
year, an increase of $4.2 million or 22.3%. As a percentage of product revenue,
product gross profit was 36.1% and 39.0% in 1997 and 1996, respectively. The
dollar increase in product gross profit was primarily the result of increased
field measurement and network analysis product revenues. The decline in product
gross profit as a percentage of product revenues was primarily due to the change
in software products mix between years.
Sales and Marketing. Sales and marketing expenses were $7.6 million,
compared to $6.5 million for the prior year, an increase of $1.1 million or
18.1%. The increase was primarily attributable to marketing expenses of ETP
which was acquired in December 1996. As a percentage of total revenues, sales
and marketing expenses increased to 4.9%, compared to 4.6% for the prior year.
General and Administrative. General and administrative expenses were $16.4
million, compared to $12.0 million for the prior year, an increase of $4.4
million or 36.9%. The increase was primarily the result of costs associated with
the Company's Microcell Management, Inc. subsidiary ($0.9 million) which was
established in December 1996, costs related to the Company's Brazilian
operations ($0.8 million) which were new in 1996 and an increase in the
allowance for doubtful accounts due to the continued aging of receivables from
the Company's Asia-Pacific customers. The economic downturn and exchange rate
fluctuations in the Asia-Pacific region has resulted in certain of the Company's
customers experiencing difficulty in arranging in a timely fashion needed
additional financing and hard currency to satisfy U.S. dollar denominated
liabilities to the Company. As a result of the uncertainty associated with the
collection of amounts due, the Company recorded additional reserves of
approximately $2.9 million to cover potential Asia-Pacific region exposure and
established procedures to require downpayment or use of letters of credit for
certain Asia-Pacific sales.
Research and Development. Research and development expenses were $4.6
million, compared to $8.6 million for the prior year, a decrease of $4.0 million
or 46.9%. The decrease is primarily due to the inclusion of $5.6 million of
in-process research and development expenses in 1996 as a result of the purchase
of substantially all the assets and liabilities of ETP in December 1996.
Excluding this item, research and development expenses increased $1.6 million or
52.1%. The increase is due primarily to research and development costs related
to ETP ($1.2 million) and costs related to the Company's field test measurement
and analysis products.
Special Charge (credit). During September 1997, the Company recognized an
approximate $3.9 million recovery of the $30.1 million special charge recorded
in December 1996 related to Pocket and NextWave. Of the $3.9 million, $2.0
million represents payments received through June 1997 under the revised payment
schedule established with NextWave on April 15, 1997 and $1.9 million represents
additional payments of $2.0 million received in April 1997 from NextWave, net of
related expenses. For financial reporting purposes, income recognition of the
entire $3.9 million balance was deferred pending the lapse in the third quarter
of a 90 day window during which such funds could have been subject to being
treated as preference payments recoverable by NextWave had it filed for
protection under the bankruptcy laws. (See "Management's Discussion and Analysis
of Financial Condition and Results of Operations -- Cash Flows").
Non-Cash Compensation. Non-cash compensation was $0.6 million, compared to
$7.0 million for the prior year, a decrease of $6.4 million or 91.7%. The
balance recorded in the prior year includes additional compensation expense as a
result of the increase in the deemed fair market value of the Company. In
addition, certain awards became fully vested and related expense recognition was
completed during 1997. Awards under the related compensation plans were
converted to stock options in connection with the Company's initial public
offering in September 1996.
29
<PAGE> 30
Depreciation and Amortization. Depreciation and amortization expense was
$8.0 million, compared to $5.0 million for the prior year, an increase of $3.0
million or 59.6%. The increase was primarily the result of an increase in the
amount of capitalized software development costs, the acquisition of ETP and
related amortization of intangibles and a generally higher capital asset base as
compared to the prior year.
Interest Expense, Net. Interest expense, net was $2.6 million in 1997
compared to $2.1 million for the prior year, an increase of $0.5 million or
22.4%. Interest expense in 1997 results from $50.0 million of convertible
subordinated debt ($30.0 million of which was assumed from Telcom Ventures in
September 1996 as a result of the merger of LCC, L.L.C. with and into the
Company), whereas during the prior year, the Company had a total of $20.0
million debt outstanding under its convertible subordinated debt instrument and
up to an additional $20.0 million outstanding under the Company's credit
facility. All amounts outstanding under the credit facility were paid from the
proceeds of the Company's initial public offering in September 1996. The
increase in interest expense, net results from the change in amount and mix of
the debt as well as related interest rates.
Other Income. Other income was $1.2 million in 1997, compared to $2.4
million in 1996, a decrease of $1.2 million or 49.7%. The decrease is primarily
due to the gain recorded on the sale of the Company's 50.5% interest in Telemate
S.A. in January 1996 ($0.5 million) and a decrease in the amount of income
recognized from the Company's 33 1/3% investment in Koll Telecommunications
Services, L.L.C. in 1997 as compared to the prior year.
Provision (Benefit) for Income Taxes. The provision for income taxes was
$5.2 million in 1997, compared to a benefit of $11.4 million for the prior year.
The provision for income taxes was recorded in 1997 based on an effective income
tax rate of 40% for the Company's U.S. operations and various effective tax
rates ranging from 28% to 59% for the Company's foreign operations. The
provision for income taxes was recorded through September 26, 1996 assuming that
the Company was a Limited Liability Corporation. In addition, the Company
recorded a one-time deferred tax benefit of $8.7 million in 1996 as a result of
its conversion from a Limited Liability Corporation to a Subchapter C
Corporation in connection with the merger of LCC, L.L.C. with and into the
Company prior to the initial public offering in September 1996.
Net Income (loss). Net income was $7.6 million in 1997 compared to a net
loss of $11.3 million for the prior year. As a percentage of total revenues, net
income increased to 4.9% from (8.0%) in the prior year. Adjusting for the
special charge recorded by the Company in 1996, non-cash compensation,
in-process research and development, 1996 earnings from the Pocket and NextWave
engagements, the recovery of special charge in 1997 and assuming an effective
tax rate of 40.0% in 1996, net income would have been $5.6 million compared to
$7.7 million for 1996.
YEAR ENDED DECEMBER 31, 1996 COMPARED TO YEAR ENDED DECEMBER 31, 1995
Revenues. Revenues for 1996 were $141.6 million, compared to $104.5
million for 1995, an increase of $37.1 million or 35.5%. Service revenues were
$93.2 million, compared to $64.0 million for the prior year, an increase of
$29.2 million, or 45.5%. The increase was primarily the result of an $18.0
million or 30.6% increase in engineering design services revenue due to the
generation of additional chargeable hours in 1996, in part due to demand from
the PCS market. Program management services revenues increased $11.2 million or
213.5%. Calendar 1996 was the first full year of contract work for program
management, which initiated operations in 1995. Product revenues were $48.4
million, compared to $40.4 million the prior year, an increase of $8.0 million
or 19.7%. The increase was primarily the result of a $5.0 million or 23.7%
increase in field measurement and network analysis product revenues due to
strong sales in North America and an increase of $3.0 million or 15.3% in
software licensing revenue as a result of several large sales in 1996.
Cost of Revenues. Cost of revenues were $95.3 million for 1996, compared
to $68.1 million for 1995, an increase of $27.2 million or 39.9%. As a
percentage of total revenues, cost of revenues was 67.3% and 65.2% for 1996 and
1995, respectively. Total cost of service revenues as a percentage of service
revenues decreased to 70.6%, as compared to 71.4% for the prior year. The
decrease was primarily due to start-up costs incurred by the program management
division in 1995, the year operations were initiated. Total cost of product
revenues
30
<PAGE> 31
as a percentage of product revenues increased to 61.0%, compared to 55.5% for
the prior year. The increase was primarily due to the change in mix of product
revenues between years.
Gross Profit. Gross profit was $46.2 million, compared to $36.3 million
for the prior year, an increase of $9.9 million or 27.3%. As a percentage of
total revenues, gross profit was 32.7% and 34.8% for 1996 and 1995,
respectively. Service gross profit increased to $27.3 million, compared to $18.3
million for the prior year, an increase of $9.0 million or 49.2%. As a
percentage of service revenues, service gross profit was 29.4% and 28.6% for
1996 and 1995, respectively. Engineering design services gross profit increased
$5.6 million or 28.7% and program management services gross profit increased
$3.4 million or 296.6%. The increase in engineering design services gross profit
was primarily due to revenue growth. The increase in program management services
gross profit was the result of the start-up of the business in 1995 and
accompanying investment in business development. Product gross profit increased
to $18.9 million, compared to $18.0 million for the prior year, an increase of
$0.9 million or 4.9%. As a percentage of product revenue, product gross profit
was 39.0% and 44.5% in 1996 and 1995, respectively. Software gross profit
decreased to 37.9% of software sales, compared to 43.3% the prior year, as the
result of the investment in product development.
Sales and Marketing. Sales and marketing expenses were $6.5 million,
compared to $5.8 million for the prior year, an increase of $0.7 million or
11.2%. The increase was primarily attributable to sales commissions paid to
agents due to an increasing level of sales in Asia-Pacific where the Company
makes extensive use of agents. As a percentage of total revenues, sales and
marketing expenses decreased to 4.6%, compared to 5.6% for the prior year,
primarily as a result of a greater rate of increase in revenues relative to the
growth in sales and marketing expenses.
General and Administrative. General and administrative expenses were $12.0
million, compared to $10.1 million for the prior year, an increase of $1.9
million or 18.4%. The increase was primarily the result of an increase in the
allowance for doubtful accounts due to higher revenues and due to the aging of
outstanding receivables.
Research and Development. Research and development expenses were $8.6
million, compared to $3.0 million for the prior year, an increase of $5.6
million or 186.3%. Research and development includes expenses of $5.6 million
incurred by the Company in 1996 as the result of the purchase of substantially
all of the assets and liabilities of ETP on December 30, 1996. Based upon an
independent appraisal of the fair market value of certain of the assets acquired
and liabilities assumed, approximately $5.6 million of the purchase price of
$13.1 million was allocated to in-process research and development expenses
resulting in a one-time, non-recurring charge to 1996 earnings. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations -- Liquidity, Capital Resources and Other Financial Data" and note 4
to the Consolidated Financial Statements. Management believes that the
acquisition of ETP will enhance the Company's ability to provide wireless
operators with quality measurement systems which provide automated quality
monitoring and benchmarking. ETP's software portfolio assists operators in the
monitoring, analysis, maintenance and optimization of their wireless networks.
Special Charge. The Company recorded a special charge of $30.1 million
pre-tax ($24.5 million after tax) to fully reserve for its exposure with Pocket
and NextWave. The $30.1 million special charge consists of a reserve against the
Company's aggregate receivable exposure at December 31, 1996 of $12.4 million,
recognition of the other than temporary impairment of the Company's investments
of $11.5 million and accruals of approximately $6.2 million related to loss
contracts under which the Company was obligated to perform at December 31, 1996.
(See "Management's Discussion and Analysis of Financial Condition and Results of
Operations -- Cash Flows.")
Non-Cash Compensation. Non-cash compensation was $7.0 million, compared to
$4.6 million for the prior year, an increase of $2.4 million or 50.8%. The
increase was primarily the result of vesting of certain portions of the awards
of non-cash compensation under the program for key executives adopted in 1994
and an increase in the deemed fair market value of the Company.
Depreciation and Amortization. Depreciation and amortization expense was
$5.0 million, compared to $3.7 million for the prior year, an increase of $1.3
million or 36.2%. The increase was primarily the result of
31
<PAGE> 32
increased depreciation expense ($0.5 million) resulting from increased capital
additions and additional amortization ($0.8 million) resulting from decreased
deferred software costs related to the development of software tools and field
measurement and analysis products.
Interest Expense, Net. Interest expense, net was $2.1 million in 1996,
compared to $2.2 million in 1995, a decrease of $0.1 million or 3.1%. The
decrease was due primarily to a $0.3 million increase in interest income to $0.9
million in 1996 as a result of the investment of funds received in connection
with the Offering in September 1996. Interest expense was $3.1 million, compared
to $2.8 million in the prior year, an increase of $0.3 million or 8.2%. The
increase was the result of the assumption of $30.0 million of convertible
subordinated debt from Telcom Ventures in September 1996 in connection with the
Merger (see notes 2 and 13 to the Consolidated Financial Statements).
Other Income. Other income was $2.4 million in 1996, compared to $1.0
million in 1995, an increase of $1.4 million or 131.4%. The increase resulted
from the gain on sale of the Company's 50.0% interest in Telemate S.A. ($0.5
million) and recognition of income related to distribution rights for the
Company's hardware and software products granted with the sale ($1.2
million -- see note 10 to the Consolidated Financial Statements).
Provision (Benefit) for Income Taxes. The provision (benefit) for income
taxes was $(11.4) million compared to $3.1 million in the prior year. The
provision for income taxes was recorded through September 26, 1996 and in all of
calendar 1995 assuming that the Company was a Limited Liability Corporation. In
addition, the Company recorded a one-time deferred tax benefit of $8.7 million
in 1996 as a result of its conversion from a Limited Liability Corporation to a
Subchapter C Corporation in connection with the merger of LCC, L.L.C. with and
into the Company prior to the initial public offering in September 1996.
Net Income (Loss). Net income was $(11.3) million for 1996, compared to
$4.7 million for 1995, a decrease of $16.0 million. As a percentage of total
revenues, net income decreased to (8.0)% from 4.5% in the prior year. Adjusting
net income (loss) for non-cash compensation, in-process research and development
and the special charge recorded by the Company, net income would have been $7.7
million as compared to $7.5 million for 1995.
LIQUIDITY, CAPITAL RESOURCES AND OTHER FINANCIAL DATA
Additions to property and equipment were $8.8 million for 1997, compared to
$3.3 million for 1996 and $4.2 million for 1995. Of the $5.5 million increase
from 1996 to 1997, approximately $2.0 million was due to the move of the
Company's headquarter operations (see below), $0.4 million was the result of
additions made by ETP which was acquired in December 1996 and $3.0 million was
due to additions made by Microcell. Approximately $2.9 million of the Microcell
additions represent costs related to the acquisition and development of RF
transmission towers. The Company anticipates a significant continuing commitment
for capital expenditures for its Microcell subsidiary. This effort is currently
expected to be funded from the Company's working capital. Approximately $0.2
million of the $0.9 million decrease from 1995 to 1996 was due to a decrease in
cost related to the ongoing upgrade of the Company's financial information
systems software (cost of $0.9 million in 1995 and $0.7 million in 1996). The
remainder of the decrease from 1995 to 1996 represented changes in the amount of
ongoing additions to office furniture and computer equipment, largely in support
of the Company's revenue base. In May 1996, the Company entered into 10-year and
5-year facility lease agreements effective March 1, 1997 and July 1, 1997,
respectively, and moved into new office space during the first and second
quarter of 1997. This move resulted in a consolidation of the Company's
headquarter operations, decreased office facilities administration costs and an
increase in property and equipment additions in 1997 as compared to 1996.
Additions to investments in joint ventures were $0.8 million for 1996 compared
to $0.4 million for 1995. The $0.4 million increase in investments in joint
ventures from 1995 to 1996 was primarily the result of additional contributions
by the Company to Koll Telecommunications Services, L.L.C. ("Koll"). Koll
provides site acquisition and construction management services to operators of
wireless communications systems (see note 10 to the Consolidated Financial
Statements). No contributions were made by the Company to Koll during calendar
1997. Under the Company's software development programs, software development
costs (primarily wages and contractor fees) are capitalized after establishing
32
<PAGE> 33
the commercial and technological feasibility of the product in accordance with
Statement of Financial Accounting Standards No. 86, "Accounting for the Costs of
Computer Software to be Sold, Leased or otherwise Marketed."
<TABLE>
<CAPTION>
1995 1996 1997
---- ---- -----
(IN MILLIONS)
<S> <C> <C> <C>
Additions to property and equipment...................... $4.2 $3.3 $ 8.8
Investments in joint ventures............................ 0.4 0.8 0.0
Software development costs............................... 2.9 3.2 4.2
---- ---- -----
$7.5 $7.3 $13.0
==== ==== =====
</TABLE>
CASH FLOWS
Cash and cash equivalents were $15.8 million at December 31, 1997, an
increase of $2.1 million from December 31, 1996. The increase was due primarily
to payments made for the acquisition of ETP ($10.5 million) and for additions to
property and equipment and capitalized software (total of $13.0 million), as
well as the investment of available cash on hand ($1.7 million), offset by cash
provided by operations ($22.7 million), cash received from the exercise of stock
options and from the issuance of shares under the Company's Employee Stock
Purchase Plan ($3.6 million) and cash received from Telcom Ventures under the
terms of the Company's $3.5 million loan ($1.0 million). In September 1996, in
connection with its initial public offering the Company issued 3,162,500 shares
of Class A Common Stock at an initial public offering price of $16.00 per share.
The net proceeds to the Company (after deducting discounts, commissions and
other expenses of the offering) were approximately $44.8 million. As of December
31, 1996, approximately $16.2 million of this amount was used to pay all
remaining amounts outstanding under the Credit Facility (as defined below), $3.5
million was advanced to Telcom Ventures to assist in paying certain taxes due in
connection with the assumption by the Company of the Telcom Ventures Note,
approximately $6.85 million was used for vendor financing and approximately
$11.85 million was being held to fund the portion of the ETP Acquisition
purchase price due at closing. The balance of approximately $6.4 million was
invested in various short-term investments and cash equivalents. As of December
31, 1997, approximately $2.0 million of the balance of $6.4 million at December
31, 1996 had been used for working capital with the remainder invested in tax
exempt municipals and overnight repurchase agreements.
During December 1997, the Company increased its allowance for doubtful
accounts due to the continued aging of receivables from its Asia-Pacific
customers. Asia-Pacific export revenues were $16.7 million, $17.6 million and
$19.2 million for the years ended December 31, 1995, 1996 and 1997,
respectively. The economic downturn and exchange rate fluctuations in the
Asia-Pacific region during the latter part of calendar 1997 has resulted in
certain of the Company's customers experiencing difficulty in arranging in a
timely fashion needed additional financing and hard currency to satisfy U.S.
dollar denominated liabilities to the Company. As a result of the uncertainty
associated with the collection of amounts due, the Company recorded additional
reserves of approximately $2.9 million to cover potential Asia-Pacific region
exposure and established procedures to require downpayment or use of letters of
credit for certain Asia-Pacific sales.
In December 1996, the Company, through its newly formed subsidiary,
Microcell, acquired certain of the assets and liabilities of Microcell
Management, LLC. Microcell provides consulting services to the wireless
telecommunications industry and offers a package to finance the construction of
RF transmission towers on a sale-leaseback or build-to-suit basis. Assets
acquired included contracts rights of $393,000, which are being amortized on a
straight-line basis over the 10 year life of the related contract.
In December 1996, the Company, through its wholly-owned subsidiary LCCI AS,
acquired the business of ETP for $13.1 million, including $250,000 of
acquisition costs. ETP designs, develops, manufactures and sells and licenses
hardware and software products for the testing, monitoring and management of the
operations of wireless telecommunications networks. Exclusive of the acquisition
costs, (i) $10.45 million was paid in January 1997 in satisfaction of a note
agreement dated December 30, 1996, (ii) $1.4 million is being held in escrow for
two years as security for ETP's indemnity obligations under the asset purchase
agreement,
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<PAGE> 34
and (iii) $667,000 and $308,000 will be paid in January 1998 and 1999,
respectively. Payments under (i) and (ii) above were made in January 1997 from
the remaining net proceeds of the Offering.
Net cash used in operations was $3.1 million for 1996. Net cash used in
investing activities was $15.2 million, consisting primarily of cash paid for
additions to property and equipment ($3.3 million), increase in capitalized
software ($3.2 million), increase in short-term investments ($6.1 million), and
loans convertible into shares of common stock ($5.6 million), partially offset
by the proceeds of the sale of the Company's interest in Telemate S.A. and
certain distribution rights ($3.8 million). Net cash provided by financing
activities was $25.5 million, primarily representing net proceeds from the
Offering of $44.9 million, partially offset by a $20.0 million reduction in
short-term debt under the Credit Facility.
Dividends paid during 1996 were $16.9 million, all by the Limited Liability
Company. In September 1996, the Limited Liability Company received $16.9 million
as repayment of its loans to Telcom Ventures. Also in September 1996, the
Company advanced $3.5 million to Telcom Ventures to assist in the payment of
taxes due in connection with the assumption by the Company of $30.0 million of
convertible subordinated debt from Telcom Ventures (see notes 2 and 13 to the
Consolidated Financial Statements). In November 1997, the Company received
approximately $1.0 million from Telcom Ventures representing payment of $0.7
million principal and approximately $0.3 million interest under the terms of the
$3.5 million advance. No dividends were paid by the Company in 1997.
In November 1996, the Company entered into master service, convertible note
and stock option agreements with Communication Consulting Services, Inc.
("CCS"), a provider of radio frequency engineering services in connection with
the design, optimization and operation of wireless systems. Under the
convertible note agreement, the Company loaned CCS a total of approximately $0.6
million. Interest accrues on the loan at a variable rate equal to the prime rate
plus 1.5%. The loan was convertible, at the Company's option, into shares
representing 50.0% of the capital stock of CCS. The stock option agreement gave
the Company an option to purchase an additional 10%, for a total purchase price
of $0.15 million. On April 7, 1997 the Company exercised both the conversion
right in the convertible note and the 10% purchase right set forth in the stock
option agreement.
In March 1996, the Company made investments in Pocket and NextWave of $6.5
million and $5.0 million, respectively. The $6.5 million investment in Pocket
consisted of loans convertible into shares of non-voting common stock upon the
satisfaction of certain conditions. In connection with this investment, The
Company obtained a commitment from Pocket for the purchase of services and
products aggregating $65.0 million over the subsequent five-year period. The
$5.0 million investment in NextWave consisted of an equity investment. In
connection with this investment, the Company obtained a commitment from NextWave
for the purchase of services and products aggregating $50.0 million over the
subsequent five-year period. Through December 31, 1996, revenues recognized
under the commitments with Pocket and NextWave were approximately $2.2 million
and $12.5 million, respectively, and related amounts receivable were
approximately $2.2 million and $10.6 million, respectively. Included in the
amounts receivable are notes receivable from Pocket and NextWave of
approximately $950,000 and $5.9 million, respectively. The notes bear interest
at prime plus 2%, and were payable upon maturity of the notes on March 31, 1997.
Both customers are development stage enterprises pursuing the build-out and
operation of networks obtained in the auction of C-Block licenses by the FCC and
subject to risks typically associated with start-up entities, such as (i) the
uncertainty of securing sufficient financing, (ii) competition from other
providers of telecommunications services, (iii) dependence on key vendors and
strategic operation of its PCS networks and (iv) delays encountered in the
development and successful operation of their PCS networks.
On March 31, 1997, Pocket failed to pay interest due the Company under the
$6.5 million convertible loan agreement and failed to pay principal and interest
due the Company under the $950,000 note agreement. Also on March 31, 1997,
NextWave failed to pay principal and interest due under the $5.9 million note
agreement. In addition, on April 1, 1997, Pocket announced that it had
voluntarily sought court protection under Chapter 11 of the U.S. Bankruptcy
Code. Given these developments and the uncertainty related to Pocket's and
NextWave's ability to meet their future obligations under the agreements
outlined above, the Company fully reserved its exposure with these customers and
has consequently recorded a special charge of
34
<PAGE> 35
$30.1 million pre-tax ($24.5 million after tax) at December 31, 1996. The $30.1
million special charge consisted of a reserve against the Company's aggregate
receivable exposure at December 31, 1996 of $12.4 million (net payments of $0.4
million received in January 1997), the recognition of an other than temporary
impairment of the Company's investments of $11.5 million and accruals of
approximately $6.2 million related to loss contracts under which the Company was
obligated to perform at December 31, 1997. The Company experienced lower than
historical margins in the first two quarters of calendar year 1997 as a result
of the decision to suspend work performed for these two customers.
On April 15, 1997, the Company and NextWave agreed to a revised payment
schedule for amounts outstanding under the note receivable and other receivables
due from NextWave to the Company. Under the terms of the agreement, the Company
was to receive approximately $1.0 million per month from May 15, 1997 through
May 15, 1998. In addition, under certain circumstances, in the event of the sale
or issuance of any debt or equity instruments/securities or the sale of any
assets by NextWave, the Company would be entitled to a prepayment equal to 30%
of the gross proceeds from such transaction(s). In May and June 1997, the
Company agreed to defer NextWave's obligations to prepay the foregoing
obligations out of the proceeds of NextWave's debt or equity financings to
August 20, 1997. Payments of $2.0 million were received under the revised
payment schedule through June 30, 1997. NextWave has failed to make the $1.0
million monthly payments which were due July 15, 1997 through October 15, 1997,
as well as any payment that would have been due on August 20, 1997 related to
any debt or equity financings.
During September 1997, the Company recognized an approximate $3.9 million
recovery of the $30.1 million special charge. Of the $3.9 million, $2.0 million
represents the payments received through June 1997 under the revised payment
schedule and $1.9 million represents additional payments received in April 1997
from NextWave, net of related expenses. For financial reporting purposes, the
recovery of the $3.9 million balance was deferred pending the lapse in the third
quarter of a 90 day window during which such funds could have been subject to
being treated as preference payments recoverable by NextWave had it filed for
protection under the bankruptcy laws.
Working capital was $47.0 million at December 31, 1997, compared to $37.2
million at December 31, 1997, an increase of $9.8 million or 26.2%, The increase
in working capital was primarily due to a decrease in notes payable, accounts
payable and accrued expenses, a net increase in cash and cash equivalents and
short-term investments primarily as a result of cash flow from operations, all
offset by a net decrease in receivables and deferred income taxes.
Working capital was $37.2 million at December 31, 1996, compared to $17.6
million at December 31, 1995, an increase of $19.6 million or 111.0%. The
increase was primarily due to the net proceeds of the Offering, increase in
receivables and recognition of deferred tax assets as a result of (i) the
conversion of the Company to a Subchapter C Corporation effective September 27,
1996 in connection with the Offering, (ii) the allocation of approximately $5.6
million of the purchase price for the ETP Acquisition to in-process research and
development expenses and (iii) the special charge of $30.1 million related to
Pocket and NextWave, all offset by an increase in accrued expenses and the
establishment of a note payable for the purchase of ETP (see notes 2, 4, 9 and
11 to the Consolidated Financial Statements).
In February 1998 the Company adopted a stock repurchase program pursuant to
which the Company is authorized to purchase, through open market transactions,
privately negotiated transactions, or in such other manner as will comply with
the provisions of the Securities Exchange Act of 1934, and the rules and
regulations thereunder, up to one million shares of Class A Common Stock. The
actual timing and blocks of shares to be purchased will depend on a variety of
factors, including price and market conditions. As of March 30, 1998, the
Company had not purchased any shares pursuant to this program.
EXISTING INDEBTEDNESS
In June 1994, the Company and Telcom Ventures sold $20 million and $30
million, respectively, of notes to MCI, which notes are exchangeable, at certain
times, consisting of 45 day periods commencing in June and August of 1997, 1998,
and 1999, into 2,841,099 shares of the Company's Class A Common Stock. The $30
million owed by Telcom Ventures was assumed by the Company in connection with
its initial public offering
35
<PAGE> 36
in September 1996. On October 23, 1997, the Company announced that it had agreed
with MCI to defer the Company's option to convert the notes in 1997. As part of
the agreement, interest payable under the notes was reduced from 6.8% to 4.4%
per annum. The notes are also convertible upon the happening of specified
corporate events, including certain tender offers, sale of substantially all of
the Company's assets, and are partially convertible (up to 1 million shares) in
the event of an underwritten public offering during certain periods in 1998. The
Company presently intends to exercise its option in August 1998 to cause the
notes to be exchanged into Class A Common Stock. Events of default under the
notes (which would cause such notes to become due and payable) include
non-payment and bankruptcy.
Effective May 30, 1995, the Company entered into a credit facility with
Nomura under which Nomura agreed to purchase from the Company up to $15.0
million of variable rate guaranteed senior secured notes (the "Nomura Notes"),
$10.0 million of which were issued on June 5, 1995. The Nomura Notes were
secured by substantially all the assets of the Company and a pledge of all of
Telcom Ventures' membership interest in the Company. Chase Manhattan Bank Co.,
N.A. ("Chase") purchased the Nomura Notes in March 1996, and became the lender
under these notes. Also in March 1996, the Company borrowed an additional $10.0
million from Chase (the "March 1996 Facility"), resulting in a total outstanding
balance of $20.0 million.
In June 1996, the Company entered into a new credit facility with Chase, as
Administrative Agent, (the "Credit Facility") which replaced the March 1996
Facility. The Credit Facility consists of a revolving loan and letter of credit
facility in an aggregate principal amount not to exceed $20.0 million. The
revolving loan commitment will expire in September 1999. Subject to certain
restrictions on the minimum permitted amount of any prepayment and the
requirement that certain notices of prepayment be given to Chase, the principal
of the revolving loans is prepayable without penalty or premium, so long as the
lenders are compensated for losses, costs and expenses attributable to any
prepayment of any loan accruing interest at the fixed rate on a date other than
the last day of the applicable interest period. Interest under the Credit
Facility accrues at the Company's election (subject to certain restrictions and
limitations contained in the credit agreement), at either (i) the variable rate
equal to the higher of (a) the Federal Funds Rate plus 0.50%, and (b) the
announced prime commercial lending rate of Chase, or (ii) the fixed rate for a
designated period of time (1, 2, 3 or 6 months) equal to the rate at which U.S.
dollar deposits are offered to leading banks in the London interbank market plus
1.25%.
The payment and performance of the obligations of the Company under the
Credit Facility are secured by substantially all of the assets of the Company,
including the stock and membership interests of its subsidiaries. The Credit
Facility requires that the Company satisfy certain financial tests, including
the maintenance of certain leverage, debt service and other financial ratios,
and that the Company meet certain minimum quarterly operating cash flow
requirements. The Credit Facility also contains certain restrictive covenants
which impose restrictions and/or limitations on the operations and activities of
the Company including, among other things: the incurrence of indebtedness, and
the terms thereof, the creation or incurrence of liens, investments and
acquisitions, sales of assets, declaration or payment of dividends on or other
payments or distributions to stockholders and capital expenditures. The Credit
Facility provides for various events of default, including interest or principal
payment default, breach of any condition or covenant that (in certain cases)
continues unremedied for 30 days, materially adverse events, the rendering of
one or more material judgments against the Company or any subsidiary thereof
which is not vacated, satisfied, discharged, or stayed within 30 days, and
certain events relating to the bankruptcy or solvency of the Company. In
addition, the Credit Facility provides for an event of default if, without the
prior written consent of lenders, (i) the Company sells, leases, assigns,
transfers or otherwise disposes of any of its assets, other than in the ordinary
course of business and in other limited circumstances, (ii) the Company merges
with another corporation other than a wholly-owned subsidiary, (iii) any person
or two or more persons acting in concert (other than Dr. Rajendra Singh, Neera
Singh, any trusts for their benefit or for the benefit of their family members,
and any of their respective affiliates which are controlled by any one or more
of them) acquire beneficial ownership of more than 25% of the voting stock of
the Company, or (iv) during any period of 12 consecutive months, individuals who
at the beginning of such 12-month period were directors of the Company (or other
persons nominated by such individuals) cease for any reason to constitute a
majority of the Board of Directors of the Company.
36
<PAGE> 37
In September 1996 in connection with the Merger, the Credit Facility was
transferred from the Limited Liability Company to LCC International and amended
and restated. Also in September 1996, approximately $16.2 million of the
proceeds of the Offering was used to pay all amounts outstanding under the
Credit Facility. Effective December 30, 1996 the Credit Facility was amended to
revise the financial ratios and certain other covenants contained therein for
the effect of the special charge recorded by the Company. Effective December 15,
1997, the Credit Facility was amended to "carve-out" a separate credit facility
for ETP (the "ETP Credit Facility") in the aggregate principal amount of $2.5
million. ETP and Microcell executed the amended credit facility as parties and
guarantors of the Company's obligation. The Company has pledged 65% of the
equity of ETP and 100% of the Company's equity of Microcell to Chase as security
for repayment under the facility. (See notes 4 and 12 to the Consolidated
Financial Statements). Also, effective December 31, 1997, the Company obtained a
waiver for non-compliance with the covenant limiting the Company's capital
expenditures and one of its financial ratios. The Company was in compliance with
all other financial covenants and ratios. No amounts were outstanding under the
Credit Facility at December 31, 1996, or during the period January 1, 1997
through December 31, 1997 with the exception of amounts, if any, outstanding
under the ETP Credit Facility. Approximately $1.4 million was outstanding under
the ETP Credit Facility at December 31, 1997.
The Company believes that its cash and cash equivalents, short-term
investments, cash flow from operations and available credit will be sufficient
to satisfy current and anticipated future capital requirements of the Company.
IMPACT OF THE YEAR 2000 ISSUE
Many computer systems and software products currently in use by businesses
and government organizations are coded to accept two digits, rather than four,
to specify the year. Such computer systems and software products will be unable
to properly interpret dates beyond the year 1999, which could lead to business
disruptions (the "Year 2000 Issue"). As a result, in less than two years,
computer systems and/or software used by many companies may need to be upgraded
to properly interpret dates beyond 1999. The Company's technical personnel are
in the process of assessing the impact of the Year 2000 Issue on the Company's
products.
Based on a recent assessment of its internal computer systems, the Company
determined that it will be required to modify or replace portions of its
internal software so that its computer systems will properly utilize dates
beyond December 31, 1999. Although the Company is in the process of performing
its Year 2000 modifications and expects to have its internal computer system
year 2000 compliant by the end of 1998, if such modifications are not completed
timely, the Year 2000 Issue could have a material impact on the operations of
the Company.
The Company has initiated formal communications with all of its significant
suppliers and large customers to determine the extent to which the Company is
vulnerable to those third parties' failure to remediate their own Year 2000
Issue. However, there can be no guarantee that the systems of other companies on
which the Company's systems rely will be timely converted, or that a failure to
convert by another company, or a conversion that is incompatible with the
Company's systems, would not have material adverse effect on the Company.
The Company will utilize both internal and external resources to reprogram,
or replace, and test software for Year 2000 modifications. The total cost of the
program is being funded through operating cash flows. Costs associated with the
purchase of new software will be capitalized. The total cost associated with the
required modifications and conversions is not expected to be material to the
Company's consolidated results of operations and financial position.
INFLATION
The financial statements are presented on a historical cost basis and do
not fully reflect the impact of prior years' inflation. It is estimated that the
cost of replacing equipment today is greater than its historical cost.
Accordingly, depreciation expense would be greater if the expense were stated on
a current cost basis.
37
<PAGE> 38
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
INDEPENDENT AUDITORS' REPORT
The Board of Directors
LCC International, Inc. and Subsidiaries:
We have audited the accompanying consolidated balance sheets of LCC
International, Inc. and Subsidiaries (the "Company") as of December 31, 1996 and
1997, and the related consolidated statements of operations, shareholders'
equity (deficit), and cash flows for each of the years in the three-year period
ended December 31, 1997. In connection with our audits of the consolidated
financial statements, we have also audited the related financial statement
schedule. These consolidated financial statements and financial statement
schedule are the responsibility of the Company's management. Our responsibility
is to express an opinion on these consolidated financial statements and
financial statement schedule based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of LCC
International, Inc. and Subsidiaries as of December 31, 1996 and 1997, and the
results of their operations and their cash flows for each of the years in the
three-year period ended December 31, 1997, in conformity with generally accepted
accounting principles. Also in our opinion, the related financial statement
schedule, when considered in relation to the consolidated financial statements
taken as a whole, presents fairly, in all material respects, the information set
forth therein.
KPMG PEAT MARWICK LLP
Washington, D.C.
February 9, 1998
F-1
<PAGE> 39
LCC INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
YEARS ENDED DECEMBER 31, 1995, 1996, 1997
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
1995 1996 1997
-------- -------- --------
<S> <C> <C> <C>
Revenues (notes 6 and 9):
Service revenues.......................................... $ 64,016 $ 93,156 $ 91,289
Product revenues.......................................... 40,445 48,414 63,959
-------- -------- --------
Total revenues.............................................. 104,461 141,570 155,248
-------- -------- --------
Cost of revenues:
Cost of service revenues.................................. 45,682 65,801 66,837
Cost of product revenues.................................. 22,448 29,533 40,869
-------- -------- --------
Total cost of revenues...................................... 68,130 95,334 107,706
-------- -------- --------
Gross profit................................................ 36,331 46,236 47,542
-------- -------- --------
Operating expenses:
Sales and marketing....................................... 5,823 6,475 7,645
General and administrative................................ 10,108 11,964 16,380
Research & development (notes 3 and 4).................... 3,007 8,609 4,570
Special charge (credit) (note 9).......................... -- 30,050 (3,894)
Non-cash compensation (note 15)........................... 4,646 7,005 580
Depreciation and amortization............................. 3,699 5,039 8,044
-------- -------- --------
Total operating expenses.................................... 27,283 69,142 33,325
-------- -------- --------
Operating income (loss)..................................... 9,048 (22,906) 14,217
-------- -------- --------
Other income (expense):
Interest income........................................... 625 925 700
Interest expense.......................................... (2,818) (3,050) (3,301)
Other..................................................... 1,027 2,376 1,194
-------- -------- --------
Total other income (expense)................................ (1,166) 251 (1,407)
-------- -------- --------
Income (loss) before income taxes........................... 7,882 (22,655) 12,810
Provision (benefit) for income taxes (note 11).............. 3,142 (11,371) 5,235
-------- -------- --------
Net income (loss)........................................... $ 4,740 $(11,284) $ 7,575
======== ======== ========
Net income per share:
Basic..................................................... $ 0.51
--------
Diluted................................................... $ 0.47
========
Pro forma income (loss) data (unaudited) (note 3):
Income (loss) before income taxes......................... $ 7,882 $(22,655)
Pro forma provision (benefit) for income taxes (note
11).................................................... 3,153 (1,886)
-------- --------
Pro forma net income (loss) (unaudited)................... $ 4,729 $(20,769)
======== ========
Pro forma net income (loss) per share (unaudited):
Basic..................................................... $ 0.42 $ (1.70)
======== ========
Diluted................................................... $ 0.39 $ (1.70)
======== ========
</TABLE>
The accompanying notes are an integral part of the Consolidated Financial
Statements.
F-2
<PAGE> 40
LCC INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
ASSETS:
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------
1996 1997
-------- --------
<S> <C> <C>
Current assets:
Cash and cash equivalents (note 5)........................ $ 13,732 $ 15,838
Short-term investments (note 3)........................... 6,934 8,619
Receivables, net of allowance for doubtful accounts of
$17,942, and $15,426 at December 31, 1996 and 1997
Trade accounts receivable (note 9)........................ 35,563 30,643
Due from related parties and affiliates (note 6).......... 2,244 1,375
Unbilled receivables (note 9)............................. 9,819 11,695
Inventory (note 7)........................................ 6,387 7,400
Deferred income taxes, net (note 11)...................... 12,755 9,874
Prepaid expenses and other current assets................. 4,413 1,315
-------- --------
Total current assets............................... 91,847 86,759
Property and equipment, net (note 8)........................ 5,952 10,531
Software development costs, net of accumulated amortization
of $2,676 and $5,855 at December 31, 1996 and 1997........ 5,069 6,133
Notes receivable (notes 9 and 10)........................... 602 --
Investments in joint ventures (note 10)..................... 1,650 1,300
Deferred income taxes, net (note 11)........................ 4,584 1,513
Other assets (notes 4 and 9)................................ 5,243 4,782
-------- --------
$114,947 $111,018
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY:
Current liabilities:
Note payable (notes 4 and 12)............................. $ 10,445 $ --
Accounts payable.......................................... 6,218 4,994
Accrued expenses (note 9)................................. 15,569 9,895
Accrued employee compensation and benefits................ 7,727 9,038
Deferred revenue.......................................... 4,951 4,650
Income taxes payable (note 11)............................ 7,446 7,507
Obligations under incentive plans, current (note 15)...... 448 1,106
Other current liabilities (note 4)........................ 1,806 2,588
-------- --------
Total current liabilities.......................... 54,610 39,778
Convertible subordinated debt (note 13)..................... 50,000 50,000
Obligations under incentive plans, net of current portion
(note 15)................................................. 807 --
Other liabilities (note 4).................................. 1,053 1,038
-------- --------
Total liabilities.................................. 106,470 90,816
-------- --------
Commitments and contingencies (notes 1, 10, 11, 14, 15, 16
and 17)
Shareholders' Equity:
Preferred Stock:
10,000 shares authorized; -0- shares issued and
outstanding............................................ -- --
Class A common stock; $.01 par value:
70,000 shares authorized; 6,066 shares and 6,644 shares
issued and outstanding at December 31, 1996 and 1997,
respectively........................................... 61 66
Class B common stock; $.01 par value:
20,000 shares authorized; 8,461 shares issued and
outstanding at December 31, 1996 and 1997.............. 85 85
Paid-in capital........................................... 28,353 33,210
Retained deficit.......................................... (16,422) (8,847)
Cumulative foreign currency translation adjustment........ (100) (1,512)
Note receivable from shareholder (note 6)................. (3,500) (2,800)
-------- --------
Total shareholders' equity......................... 8,477 20,202
-------- --------
$114,947 $111,018
======== ========
</TABLE>
The accompanying notes are an integral part of the Consolidated Financial
Statements.
F-3
<PAGE> 41
LCC INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY (DEFICIT)
YEARS ENDED DECEMBER 31, 1995, 1996, AND 1997
(IN THOUSANDS)
<TABLE>
<CAPTION>
CUMULATIVE NOTES
COMMON STOCK FOREIGN RECEIVABLE
----------------- CURRENCY FROM
PREFERRED PAID-IN RETAINED TRANSLATION SHAREHOLDER MEMBERS'
STOCK CLASS A CLASS B CAPITAL (DEFICIT) ADJUSTMENT (NOTE 6) CAPITAL TOTAL
--------- ------- ------- ------- --------- ----------- ----------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Balances at December 31,
1994.................... $-- $-- $-- $ -- $ -- $ (39) $ -- $13,977 $ 13,938
Loan to member (note
6).................... -- -- -- -- -- -- (9,382) -- (9,382)
Dividends paid.......... -- -- -- -- -- -- -- (9,500) (9,500)
Net income.............. -- -- -- -- -- -- -- 4,740 4,740
Cumulative foreign
currency translation
adjustment............ -- -- -- -- -- (40) -- -- (40)
--- --- --- ------- -------- ------- ------- -------- --------
Balances at December 31,
1995.................... -- -- -- -- -- (79) (9,382) 9,217 (244)
Dividends paid.......... -- -- -- -- -- -- -- (16,950) (16,950)
Net income -- pre-merger
(note 2).............. -- -- -- -- -- -- -- 5,138 5,138
Cumulative foreign
currency translation
adjustment............ -- -- -- -- -- (132) -- -- (132)
Loan to member.......... -- -- -- 1,640 -- -- (7,568) -- (5,928)
Repayment of loan to
member................ -- -- -- -- -- -- 16,950 -- 16,950
Assumption of
subordinated debt
(notes 2 & 13)........ -- -- -- (30,000) -- -- -- -- (30,000)
Merger of LCC, L.L.C.
into LCC
International, Inc.
(note 2).............. -- -- 114 (2,920) -- 211 -- 2,595 --
Net proceeds of initial
public offering (note
2).................... -- 61 (29) 44,725 -- -- -- -- 44,757
Loan to shareholder
(notes 2 and 6)....... -- -- -- -- -- -- (3,500) -- (3,500)
Exercise/issuance of
stock options (note
15)................... -- -- -- 14,908 -- -- -- -- 14,908
Net (loss) -- post
merger................ -- -- -- -- (16,422) -- -- -- (16,422)
Cumulative foreign
currency translation
adjustment............ -- -- -- -- -- (100) -- -- (100)
--- --- --- ------- -------- ------- ------- -------- --------
Balances at December 31,
1996.................... -- 61 85 28,353 (16,422) (100) (3,500) -- 8,477
Payment from
Shareholder........... -- -- -- 261 -- -- 700 -- 961
Exercise/issuance of
stock options......... -- 5 -- 4,148 -- -- -- -- 4,153
Issuance of common
stock................. -- -- -- 448 -- -- -- -- 448
Net income.............. -- -- -- -- 7,575 -- -- -- 7,575
Cumulative foreign
currency translation
adjustment............ -- -- -- -- -- (1,412) -- (1,412)
--- --- --- ------- -------- ------- ------- -------- --------
Balances at December 31,
1997.................... $-- $66 $85 $33,210 $ (8,847) $(1,512) $(2,800) $ -- $ 20,202
=== === === ======= ======== ======= ======= ======== ========
</TABLE>
The accompanying notes are an integral part of the Consolidated Financial
Statements.
F-4
<PAGE> 42
LCC INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
YEARS ENDED DECEMBER 31, 1995, 1996, AND 1997
(IN THOUSANDS)
<TABLE>
<CAPTION>
1995 1996 1997
-------- -------- --------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income (loss)........................................... $ 4,740 $(11,284) $ 7,575
Adjustments to reconcile net income (loss) to net cash
provided by (used in) operating activities:
Depreciation and amortization............................. 3,699 5,039 8,044
Provision for doubtful accounts........................... 622 2,937 4,115
Non-cash compensation..................................... 4,646 7,005 580
In-process research & development......................... -- 5,605 --
Special charge (credit)................................... -- 30,050 (3,894)
Income (loss) from investments in joint ventures, net..... (732) (346) 350
Gain on disposition of joint venture, net................. -- (514) --
Changes in operating assets and liabilities:
Trade, unbilled, and other receivables.................. (12,260) (23,378) (200)
Accounts payable and accrued expenses................... (2,411) 8,809 (5,587)
Inventory............................................... (377) (1,154) (947)
Other current assets and liabilities.................... 6,704 (14,359) 10,502
Other noncurrent assets and liabilities................. 126 (11,538) 2,116
-------- -------- --------
Net cash provided by (used in) operating activities......... 4,757 (3,128) 22,654
-------- -------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Proceeds from sales of investment securities.............. 357 558 --
Purchase of investment securities......................... (682) (6,714) (1,685)
Purchases of property and equipment....................... (4,222) (3,263) (8,791)
Increase in capitalized software.......................... (2,876) (3,177) (4,243)
Investment in joint ventures.............................. (350) (787) --
Issuance of notes receivable.............................. -- (5,602) --
Proceeds from sale of investment in joint venture......... -- 3,800 --
-------- -------- --------
Net cash used in investing activities....................... (7,773) (15,185) (14,719)
-------- -------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from issuance of common stock, net............... -- 44,902 448
Proceeds from exercise of options......................... -- -- 3,207
Proceeds from line of credit/note......................... 10,000 10,000 --
Payments on line of credit/note........................... -- (20,000) (10,445)
Distributions and loans to member......................... (9,382) (5,928) --
Repayment of loans to member.............................. -- 16,950 --
Payments of dividends..................................... (9,500) (16,950) --
Loan to shareholder....................................... -- (3,500) --
Repayment of loan to shareholder.......................... -- -- 961
-------- -------- --------
Net cash (used in) provided by financing activities......... (8,882) 25,474 (5,829)
-------- -------- --------
Net (decrease) increase in cash and cash equivalents........ (11,898) 7,161 2,106
Cash and cash equivalents at beginning of period............ 18,469 6,571 13,732
-------- -------- --------
Cash and cash equivalents at end of period.................. $ 6,571 $ 13,732 $ 15,838
======== ======== ========
Supplemental disclosures of cash flow information:
Cash paid during the year for:
Interest................................................ $ 2,372 $ 3,749 $ 3,286
Income taxes............................................ 506 3,535 1,317
Supplemental schedule of non-cash investing and financing
activities:
Assumption of convertible debt (notes 2 and 13)........... $ -- $ 30,000 $ --
In December 1996, the Company purchased substantially all
of the assets and liabilities of European Technology
Partner AS, for a note payable of $10,445 and certain
future obligations, including acquisition costs, of
approximately $2,630. Assets of $9,800, including cash
of $150 and liabilities of $2,300 were assumed in
conjunction with the acquisition (note 4).
</TABLE>
The accompanying notes are an integral part of the Consolidated Financial
Statements.
F-5
<PAGE> 43
LCC INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
(1) DESCRIPTION OF OPERATIONS
LCC International, Inc. and subsidiaries (also referred to herein as the
"Company") is a leading provider of integrated services and products relating to
the design and engineering of wireless communications systems. The services and
products provided by the Company are as follows:
Services
Engineering and design services -- The Company provides engineering and
design services for cellular phone system operators, personal communication
system ("PCS") operators and other wireless communication system providers.
Program management services -- The Company provides construction management
services related to the build-out of wireless communications systems.
Products
Software products -- The Company develops and markets proprietary software
and data, which support the design and operation of wireless communications
systems.
Hardware products -- The Company designs, assembles and sells field
measurement and network analysis tools used in the implementation, testing and
maintenance of wireless communications systems.
In December 1996, through the formation of a new subsidiary, Microcell
Management, Inc. ("Microcell"), the Company entered the wireless infrastructure
asset management business to acquire/ develop and manage RF transmission towers.
Microcell incurred expenses of $0.9 million in calendar 1997 which are included
in general and administrative expenses in the accompanying consolidated
statement of operations.
The Company operates in a highly competitive environment subject to rapid
technological change and emergence of new technologies. Future revenues are
dependent upon the re-engineering of existing wireless communications systems,
introduction of existing wireless technologies into new markets, the entrance of
new wireless providers into existing markets, the introduction of new
technologies and the retention of existing professional staff. Although the
Company believes that its services and products are transferable to emerging
technologies, rapid changes in technology could have an adverse financial impact
on the Company.
(2) MERGER AND INITIAL PUBLIC OFFERING
The Company is the successor to the business formerly conducted by LCC,
L.L.C. ("LCC"). Effective September 27, 1996, in connection with the Company's
initial public offering of Class A Common Stock, LCC merged with and into LCC
International, Inc. The Company is the surviving company in the merger, and owns
all of the assets and rights and is subject to all of the obligations and
liabilities of LCC. Immediately prior to the merger, LCC assumed $30.0 million
of convertible subordinated debt from Telcom Ventures, L.L.C. ("Telcom
Ventures"), its parent company. The repayment obligation for principal and
interest became the sole obligation of LCC and, following the merger, the sole
obligation of the Company. The $30.0 million of convertible subordinated debt
assumed from Telcom Ventures and the $20.0 million of existing convertible
subordinated debt (see note 13) are due to a third party investor and are
convertible at certain specified times, including during the 45 day period
commencing on June 27, 1997, the 45 day period commencing on August 27, 1997
("Company Conversion Right"), and the respective periods in 1998 and 1999, and
upon certain extraordinary events, such as merger or sale of all assets of the
Company, tender offer for more than 25% of the Common Stock or distribution of
assets representing 5% or more of the total assets of the Company. Any
conversion of one note must include the conversion of the other. The Company
presently
F-6
<PAGE> 44
LCC INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
intends to exercise the Company Conversion Right in August 1998 to cause the
convertible subordinated debt to be converted into 2,841,099 shares of Class A
Common Stock.
Effective with the merger, the Company converted to a Subchapter C
Corporation under the Internal Revenue Code of 1986, as amended. As of September
30, 1996, the Company recorded a one-time deferred income tax benefit of $8.7
million as a result of the change in its tax status from a Limited Liability
Corporation to a Subchapter C Corporation. The income tax benefit has been
recorded as a reduction of income tax expense in the accompanying 1996
consolidated statement of operations (see note 11).
On September 30, 1996, the Company completed its initial public offering,
which involved the sale of 6,037,500 shares (3,162,500 shares were sold by the
Company and 2,875,000 shares were sold by the selling shareholder) of Class A
Common Stock at $16.00 per share. Net proceeds to the Company, after deducting
underwriting discounts, commissions and other expenses of the offering were
approximately $44.8 million.
(3) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Principles of Consolidation
The accompanying consolidated financial statements include the accounts of
the Company and its subsidiaries. All significant intercompany transactions and
balances have been eliminated in consolidation.
Cash Equivalents
Cash equivalents include all highly liquid investments purchased with
original maturities of three months or less.
Short-Term Investments
Short-term investments consist of municipal bonds with maturity dates of
more than three months from the date of acquisition. The portfolio of municipal
bonds held by the Company of $6.9 million and $8.6 million at December 31, 1996
and 1997, respectively, has been classified based on management's intentions as
to future investment activity. Such investments are not intended to be held to
maturity and are classified as "available for sale" and carried at market value
with temporary unrealized gains (losses) charged directly to shareholders'
equity. At December 31, 1996 and 1997, the market value of the municipal bonds
held by the Company approximated its cost. Other short-term investments are
carried at cost plus accrued interest which approximates their market value. All
short-term investments have maturity dates of one year or less.
Concentration of Credit Risk
Financial instruments that potentially expose the Company to concentration
of credit risk consist primarily of trade receivables. The Company sells its
services and products globally. Generally, the Company does not require
collateral or other security to support customer receivables. The Company
performs ongoing credit evaluations of its customers' financial condition and
maintains reserves for potential credit losses. The Company had the following
significant concentrations of trade receivables from customers located outside
the United States at December 31, 1996 and 1997:
<TABLE>
<CAPTION>
1996 1997
-------- --------
(IN THOUSANDS)
<S> <C> <C>
Latin America..................................... $3,482 $ 2,818
Europe............................................ 5,009 3,697
Middle East....................................... 931 1,423
Asia-Pacific...................................... 8,950 11,158
</TABLE>
F-7
<PAGE> 45
LCC INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
The Company's existing and potential customer base is diverse and includes
start-up companies and foreign enterprises. Although the Company believes that
the diversity of its customer base has historically minimized the risk of
incurring material losses due to concentrations of credit risk, it may be
exposed to a declining customer base in periods of market downturns, severe
competition, or international developments (see notes 9 and 19).
During December 1997, the Company increased its allowance for doubtful
accounts due to the continued aging of receivables from its Asia-Pacific
customers. The economic downturn and exchange rate fluctuations in the
Asia-Pacific region during the latter part of calendar 1997 has resulted in
certain of the Company's customers experiencing difficulty in arranging in a
timely fashion needed additional financing and hard currency to satisfy U.S.
dollar denominated liabilities to the Company. As a result of the uncertainty
associated with the collection of amounts due, the Company recorded additional
reserves of approximately $2.9 million to cover potential Asia-Pacific region
exposure.
Revenues generated from one customer were approximately $14.7 million,
$15.2 million, and $21.4 million, or 14.0%, 10.8%, and 13.8% of total revenues
for 1995, 1996, and 1997, respectively. In addition, revenues from another
customer were approximately $14.2 million and $15.6 million or 10.0% and 10.1%
of total 1996 and 1997 revenues, respectively.
Inventory
Inventory, net of allowances for obsolete and slow moving inventory,
consisting of parts and accessories, and field measurement and network analysis
tools is stated at the lower of cost, determined on an average cost basis, or
market value.
Property and Equipment
Property and equipment are stated at cost, less an allowance for
depreciation. Replacements and major improvements are capitalized; maintenance
and repairs are charged to expense as incurred.
Depreciation is calculated using the straight-line method over the
estimated useful lives of the assets which range from eighteen months to seven
years. The costs of leasehold improvements are capitalized and amortized using
the straight-line method over the shorter of their useful lives or the terms of
the respective leases.
Goodwill and Recovery of Long-Lived Assets
Cost in excess of the fair value of net assets acquired is amortized on a
straight-line basis over ten years.
The Company's policy is to review its long-lived assets for impairment
whenever events or changes in circumstances indicate that the carrying amount of
an asset may not be recoverable. The Company recognizes an impairment loss when
the sum of the expected future cash flows is less than the carrying amount of
the asset.
Research and Development Expenditures
The Company capitalizes software development costs, principally wages and
contractor fees, when incurred, after establishing the commercial and
technological feasibility of the product. These costs are amortized using the
greater of the ratio of current product revenue to total current and anticipated
product revenue or the straight-line method over the software's estimated
economic life, generally ten to forty-eight months. During 1995, 1996 and 1997,
the Company recognized software amortization costs of approximately $0.9
million, $1.9 million and $3.3 million, respectively.
F-8
<PAGE> 46
LCC INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
The Company periodically performs an evaluation of the net realizable value
of its capitalized software development costs. This evaluation requires
considerable judgment by management with respect to certain external factors
including, but not limited to, anticipated future revenues, estimated product
economic life, and changes in technology. No capitalized software development
costs were written off in 1996. Approximately $130,000 and $90,000 of software
development costs were written off in 1995 and 1997, respectively.
All other research and development expenditures are expensed in the period
incurred.
Investments in Joint Ventures
The Company uses the equity method of accounting for its investments in,
advances to and equity in the earnings and losses of its joint ventures.
Revenue Recognition
The Company's principal sources of revenues are engineering and design
services, program management services, sales of field measurement and network
analysis tools and software license agreements. The Company recognizes revenues
from long-term fixed price contracts using the percentage-of-completion method,
based on individual contract costs incurred to date compared with total
estimated contract costs. Anticipated contract losses are recognized as soon as
they become known and estimable. The Company recognizes revenues from software
licenses either at the time the software is delivered and accepted or ratably
over the contract term depending on the nature of the license arrangement.
Generally, revenues on sales of field measurement and network analysis tools is
recognized at the time the merchandise is shipped. Revenues from consulting and
other software related services is recognized as such services are rendered.
Revenues from post contract customer support (maintenance) agreements is
recognized ratably over the period during which the services are to be
performed. Revenues earned but not yet billed is reflected as unbilled
receivables in the accompanying consolidated balance sheets. The Company expects
substantially all unbilled and billed receivables to be collected in one year.
Income Taxes
Deferred income taxes are determined on the asset and liability method in
accordance with Statement of Financial Accounting Standards ("SFAS") No. 109.
Under this statement, temporary differences arise as a result of the differences
between the reported amounts of assets and liabilities and their tax basis.
Deferred tax assets are reduced by a valuation allowance when, in the opinion of
management, it is more likely than not that some portion or all of the deferred
tax assets will not be realized. Deferred tax assets and liabilities are
adjusted for the effects of changes in tax laws and rates on the date of
enactment.
Certain of the Company's international operations are subject to local
income taxation. Currently, the Company is subject to taxation on income from
certain operations in Europe, Latin America, the Far East, the Middle East and
the non-U.S. portions of North America where the Company has subsidiaries, has
established branch offices or has performed significant services that constitute
a "permanent establishment" for tax reporting purposes. Foreign taxes account
for a significant portion of the provision for income taxes as reflected in the
Company's consolidated statements of operations (see note 11). The foreign taxes
paid or accrued by the Company represent a potential credit for the Company
against its Federal income taxes.
Pro Forma Income (Loss) Data (Unaudited)
The accompanying pro forma information has been prepared as if the Company
was treated as a Subchapter C Corporation for Federal and state income tax
purposes from January 1, 1995.
F-9
<PAGE> 47
LCC INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
Pro forma net income (loss) per share information has been computed by
dividing pro forma net income (loss) by the pro forma weighted average number of
common shares outstanding (basic earnings per share) and potential dilution from
outstanding stock options after applying the treasury stock method and assumed
conversion of the Company's convertible subordinated debt, if dilutive (diluted
earnings per share).
Foreign Currency Translation
Gains and losses on translation of the accounts of the Company's foreign
operations where the local currency is the functional currency are accumulated
and included in the cumulative foreign currency translation adjustment within
the accompanying consolidated statement of shareholders' equity (deficit).
Foreign currency transaction gains and losses are recognized currently in the
consolidated statements of operations.
Pervasiveness of Estimates
The preparation of the consolidated financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
Stock-Based Compensation
In October 1995, the Financial Accounting Standards Board ("FASB") issued
SFAS No. 123, Accounting for Stock-Based Compensation, which establishes
financial accounting and reporting standards for stock-based compensation plans.
This statement establishes a fair value based method of accounting for stock
based compensation plans.
The Corporation will continue to account for stock-based compensation plans
using the method of accounting prescribed by APB Opinion No. 25, Accounting for
Stock Issued to Employees. The Corporation will make pro-forma disclosures of
net income as if the fair value based method of accounting as defined in SFAS
No. 123 had been applied (see note 15).
Impact of Recently Issued Accounting Pronouncements
In February 1997, the FASB issued Statement of Financial Accounting
Standards No. 129 (SFAS No. 129), "Disclosure of Information about Capital
Structure." The Company is required to adopt provisions of this Statement for
the year ending December 31, 1997. This Statement continues the previous
requirements to disclose certain information about an entity's capital structure
found in APB Opinions No. 10, "Omnibus Opinion 1966," No. 15, "Earnings per
Share," and FASB Statement No. 46, "Disclosure of Long-Term Obligations," for
entities that were subject to the requirements of those standards. As the
Company has been subject to the requirements of each of those standards,
adoption of SFAS No. 129 had no impact on the Company's financial statements.
In June 1997, the FASB issued Statement of Financial Accounting Standards
No. 130 (SFAS No. 130), "Reporting Comprehensive Income." SFAS No. 130
established standards for the reporting and display of comprehensive income and
its components in the financial statements. The Company is required to adopt the
provisions of the Statement for the year ending December 31, 1998. Earlier
application is permitted; however, upon adoption the Company will be required to
reclassify previously reported annual and interim financial statements. The
Company has not completed its analysis of the impact on the financial statements
that will be caused by the adoption of this statement.
F-10
<PAGE> 48
LCC INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
In June 1997, the FASB issued Statement of Financial Accounting Standards
No. 131 (SFAS No. 131), "Disclosure about Segments of an Enterprise and Related
Information." SFAS No. 131 requires the Company to present certain information
about operating segments and related information, including geographic and major
customer data, in its annual financial statements and in condensed financial
statements for interim periods. The Company is required to adopt the provisions
of this Statement for the year ending December 31, 1998. Earlier application is
permitted; however, upon adoption the Company will be required to restate
previously reported annual segment and related information in accordance with
the provisions of SFAS No. 131. The Company has not completed its analysis of
the impact on the financial statements that will be caused by adoption of this
Statement.
Reclassification of Prior-Years' Balances
Prior-years' balances have been reclassified to conform with the
current-year presentation.
(4) ACQUISITION OF EUROPEAN TECHNOLOGY PARTNER AS
On December 30, 1996, the Company acquired the business of European
Technology Partner AS ("ETP"), a Norwegian limited liability company, pursuant
to the terms of an Asset Purchase Agreement, dated as of December 30, 1996,
between ETP and LCC International AS ("LCCI AS"), a Norwegian limited liability
company and a wholly-owned subsidiary of the Company. Pursuant to the Asset
Purchase Agreement, ETP transferred substantially all of its assets and
liabilities to LCCI AS.
As consideration for the acquisition of ETP's business, LCCI AS paid $13.1
million, including $250,000 of acquisition costs. Exclusive of the acquisition
costs, (i) $10.5 million was paid in January 1997 in satisfaction of a note
agreement dated December 30, 1996, (ii) $1.4 million is being held in escrow for
two years as security for ETP's indemnity obligations under the Asset Purchase
Agreement, and (iii) $667,000 and $308,000 will be paid in January 1998 and
January 1999, respectively.
The acquisition has been accounted for using the purchase method of
accounting, and, accordingly, the purchase price has been allocated to the
assets purchased and the liabilities assumed based upon their fair values at the
date of acquisition as determined by an independent appraisal. The appraisal
allocated $3.0 million to the tangible and identifiable intangible assets net of
liabilities assumed, $4.5 million to the cost in excess of net assets acquired
("goodwill") and $5.6 million to in-process research and development. Such
in-process research and development represents a non-recurring charge to 1996
earnings. Goodwill is included in other assets in the accompanying consolidated
balance sheet.
The Company assumed ETP's rights and obligations under a credit facility
with a Norwegian Bank in the total principal amount of approximately $1.1
million. Under the facility, the bank has a first priority security interest in
accounts receivable and other assets up to the amount of the facility. At
December 31, 1996, approximately $109,000 was outstanding under the facility at
an interest rate of 7.5%. The facility is cancelable upon 14 days notice by the
bank. This facility was closed during calendar 1997.
F-11
<PAGE> 49
LCC INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
If the acquisition of ETP had occurred on January 1, 1995, management
estimates the Company's results of operations for the years ended December 31,
1995 and 1996 would have been as follows:
<TABLE>
<CAPTION>
PRO FORMA
--------------------------
1995 1996
----------- -----------
(IN THOUSANDS, EXCEPT PER
SHARE DATA -- UNAUDITED)
<S> <C> <C>
Revenues....................................... $108,609 $147,970
Net income (loss).............................. 3,384 (17,248)
Net income (loss) per share:
Basic..................................... $ 0.30 $ (1.41)
======== ========
Diluted................................... $ 0.30 $ (1.41)
======== ========
</TABLE>
The unaudited pro forma data above has been prepared based on assumptions
management deems appropriate, and the results are not necessarily indicative of
those that might have occurred had the transactions become effective at the
beginning of the respective years. Pro forma net income (loss) and pro forma net
income (loss) per share do not include the $5.6 million non-recurring in-process
research and development charge described above, and for purposes of computing
pro forma net income (loss) per share, assumes effective tax rates of 40% and
28% for U.S. and Norwegian activity, respectively.
(5) CASH AND CASH EQUIVALENTS
At December 31, cash and cash equivalents consisted of the following:
<TABLE>
<CAPTION>
1996 1997
-------- --------
(IN THOUSANDS)
<S> <C> <C>
Cash in banks.................................... $ 593 $ 2,859
Overnight repurchase agreements.................. 5,639 1,195
Short-term commercial paper...................... -- 11,699
Short-term money market funds.................... 7,500 85
------- -------
$13,732 $15,838
======= =======
</TABLE>
The fair value of overnight repurchase agreements, short-term commercial
paper and short-term money market funds approximate their carrying value.
(6) RELATED PARTY TRANSACTIONS
During 1996 and 1997, the Company provided services and products to Telcom
Ventures and various other companies owned, in part, by Telcom Ventures or its
members, as well as the Telemate joint venture until its sale in January 1996
(see note 10). Revenues earned during 1996 and 1997 for services and products
provided to these customers were approximately $2.0 million and $1.5 million,
respectively. Trade accounts receivables from these related parties were
$819,000 and $811,000 at December 31, 1996 and 1997, respectively, and are
included in due from related parties and affiliates in the accompanying
consolidated balance sheets. Also included in due from related parties and
affiliates are unbilled receivables and advances to employees aggregating
approximately $614,000 and $533,000 at December 31, 1996 and 1997, respectively.
During calendar 1996 and 1997, program management services were provided to the
Company by Koll Telecommunications Services L.L.C. ("Koll") (see note 10), a
joint venture of the Company.
During 1996 and 1997, the Company made certain payments on behalf of Telcom
Ventures and its members which consisted primarily of payroll services, fringe
benefit payments, facility related charges,
F-12
<PAGE> 50
LCC INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
business insurances, interest and foreign tax payments. At December 31, 1996 and
1997, outstanding amounts associated with these payments totaling $811,000 and
$31,000, respectively, are included in due from related parties and affiliates
within the accompanying consolidated balance sheets.
At December 31, 1995, notes receivable of approximately $1.4 million
consisted of two promissory notes due from an entity owned approximately 4.5
percent by a 100 percent-owned subsidiary of Telcom Ventures, and approximately
15.0 percent by a member of Telcom Ventures. The notes carried interest at
approximately 16.5 percent and were payable monthly. Late payments were subject
to an additional charge of 2.0 percent on the entire unpaid principal balance
and any outstanding interest. The notes and all outstanding interest were paid
in September 1996.
In May 1995, the Company entered into a revolving promissory note with
Telcom Ventures under which it had advanced approximately $9.4 million to Telcom
Ventures as of December 31, 1995. The note carried a variable interest rate of
prime plus 3.0 percent, escalating at .25 percent increments at various
intervals over the term of the debt. At December 31, 1995, the note had an
interest rate of prime plus 3.25 percent or 11.75 percent. Outstanding principal
together with all accrued interest was due May 30, 2001. The outstanding note
balance and associated accrued interest (total of $16.9 million) was paid in
September 1996.
In September 1996, the Company loaned $3.5 million to Telcom Ventures to
assist in the payment of taxes due in connection with the assumption by the
Company of $30.0 million of convertible subordinated debt from Telcom Ventures
(see note 2). The note is payable over five-years with equal annual principal
payments over the term. Interest will accrue at the rate of LIBOR plus 1.75% and
will be payable annually. In November 1997, the Company received approximately
$1.0 million from Telcom Ventures representing payment of $0.7 million principal
and approximately $0.3 million interest under the terms of the note. The note is
reflected as a reduction of shareholders' equity in the accompanying statement
of shareholders' equity (deficit).
On January 30, 1997, a significant customer of the Company acquired 81% of
the outstanding shares of Wireless Ventures of Brazil, Inc. ("WVB"), an operator
of specialized mobile radio systems in Brazil, for $186 million in the
customer's stock. WVB was principally owned by Telcom Ventures.
(7) INVENTORY
At December 31, 1996 and 1997, inventory consisted of the following:
<TABLE>
<CAPTION>
1996 1997
-------- --------
(IN THOUSANDS)
<S> <C> <C>
Field measurement and network analysis tools....... $1,641 $4,249
Parts and accessories.............................. 5,488 4,190
------ ------
7,129 8,439
Less reserve for obsolete and slow moving
inventory........................................ (742) (1,039)
------ ------
$6,387 $7,400
====== ======
</TABLE>
F-13
<PAGE> 51
LCC INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
(8) PROPERTY AND EQUIPMENT
At December 31, 1996 and 1997, property and equipment consisted of the
following:
<TABLE>
<CAPTION>
1996 1997
-------- --------
(IN THOUSANDS)
<S> <C> <C>
Computer equipment............................. $ 11,544 $ 13,271
Furniture and office equipment................. 3,505 4,218
Purchased computer software.................... 3,272 4,618
Leasehold improvements......................... 1,301 3,057
RF transmission towers......................... -- 2,880
Vehicles....................................... 163 186
-------- --------
19,785 28,230
Less accumulated depreciation and
amortization................................. (13,833) (17,699)
-------- --------
$ 5,952 $ 10,531
======== ========
</TABLE>
(9) SPECIAL CHARGE
In March 1996, the Company made investments in Pocket Communications, Inc.
("Pocket", formerly known as DCR Communications, Inc.) and NextWave Telecom,
Inc. ("NextWave") of $6.5 million and $5.0 million, respectively. The $6.5
million investment in Pocket consists of loans convertible into shares of
non-voting common stock upon the satisfaction of certain conditions. In
connection with this investment, the Company obtained a commitment from Pocket
for the purchase of services and products aggregating $65.0 million over the
subsequent five-year period. The $5.0 million investment in NextWave consists of
an equity investment. In connection with this investment, the Company obtained a
commitment from NextWave for the purchase of services and products aggregating
$50.0 million over the subsequent five-year period. Through December 31, 1996,
revenues recognized under the commitments with Pocket and NextWave were
approximately $2.2 million and $12.5 million, respectively, and related amounts
receivable were approximately $2.2 million and $10.6 million, respectively.
Included in the amounts receivable are notes receivable from Pocket and NextWave
of approximately $950,000 and $5.9 million, respectively. The notes bear
interest at prime plus 2%, and were payable upon maturity of the notes on March
31, 1997. Both customers are development stage enterprises pursuing the buildout
and operation of networks pursuant to licenses obtained in the auction of
C-Block licenses by the FCC and are subject to risks typically associated with
start-up entities, such as (i) the uncertainty of securing sufficient financing,
(ii) competition from other providers of telecommunications services, (iii)
dependence on key vendors and strategic partners, and (iv) delays encountered in
the development and successful operation of their PCS networks.
On March 31, 1997, Pocket failed to pay interest due the Company under the
$6.5 million convertible loan agreement and failed to pay principal and interest
due the Company under the $950,000 note agreement. Also on March 31, 1997,
NextWave failed to pay principal and interest due under the $5.9 million note
agreement. In addition, on April 1, 1997, Pocket announced that it had
voluntarily sought court protection under Chapter 11 of the U.S. Bankruptcy
Code. Given these developments and the uncertainty related to Pocket's and
NextWave's ability to meet their future obligations under the agreements
outlined above, the Company fully reserved its exposure with these customers and
has consequently recorded a special charge of $30.1 million pre-tax ($24.5
million after tax or $2.01 per share) at December 31, 1996. The $30.1 million
special charge consists of a reserve against the Company's aggregate receivable
exposure at December 31, 1996 of $12.4 million (net of payments of $0.4 million
received in January 1997), the recognition of an other than temporary impairment
of the Company's investments of $11.5 million and accruals of approximately $6.2
million related to loss contracts under which the Company was obligated to
perform at December 31, 1996.
F-14
<PAGE> 52
LCC INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
On April 15, 1997, the Company and NextWave agreed to a revised payment
schedule for amounts outstanding under the note receivable and other receivables
due from NextWave to the Company. Under the terms of the agreement, the Company
was to receive approximately $1.0 million per month from May 15, 1997 through
May 15, 1998. In addition, under certain circumstances, in the event of the sale
or issuance of any debt or equity instruments/securities or the sale of any
assets by NextWave, the Company would be entitled to a prepayment equal to 30%
of the gross proceeds from such transaction(s). In May and June 1997, the
Company agreed to defer NextWave's obligations to prepay the foregoing
obligations out of the proceeds of NextWave's debt or equity financing to August
20, 1997. Payments of $2.0 million were received under the revised payment
schedule through June 30, 1997. NextWave has failed to make the $1.0 million
monthly payments which were due July 15, 1997 through October 15, 1997, as well
as any payment that would have been due on August 20, 1997 related to any debt
or equity financing.
During September 1997, the Company recognized an approximate $3.9 million
recovery of the $30.1 million special charge. Of the $3.9 million, $2.0 million
represents the payments received through June 1997 under the revised payment
schedule and $1.9 million represents additional payments received in April 1997
from NextWave, net of related expenses. For financial reporting purposes, the
recovery of the $3.9 million balance was deferred pending the lapse in the third
quarter of a 90 day window during which such funds could have been subject to
being treated as preference payments recoverable by NextWave had it filed for
protection under the bankruptcy laws.
(10) INVESTMENTS IN JOINT VENTURES
The Company's investment in joint ventures at December 31, 1996 and 1997
consisted of a 33 1/3 percent interest in Koll, which was formed in October 1994
with two other unrelated entities. Koll provides site acquisition and
construction management services to operators of wireless communications systems
in the United States. The Company's interest in Koll was received in exchange
for an initial cash investment of $150,000. During 1996 the Company contributed
an additional $587,000. No contribution was made by the Company during 1997.
Operating costs and expenses of the Company include services provided by Koll,
in the amount of $206,000 and $37,000 in 1996 and 1997, respectively.
The unaudited condensed financial statements of Koll as of and for the
years ended December 31, 1995, 1996 and 1997 were as follows:
<TABLE>
<CAPTION>
1995 1996 1997
------ ------- ------
(IN THOUSANDS)
<S> <C> <C> <C>
CONDENSED STATEMENTS OF OPERATIONS
Revenues.................................................. $3,017 $20,143 $8,422
Cost and expenses......................................... 2,908 18,287 8,982
------ ------- ------
Net income (loss)......................................... $ 109 $ 1,856 $ (560)
====== ======= ======
CONDENSED BALANCE SHEETS
Current assets............................................ $1,841 $ 6,969 $3,826
Noncurrent assets......................................... 82 329 2,608
Current liabilities....................................... 726 2,487 2,799
Stockholders' equity...................................... 1,197 4,811 3,635
</TABLE>
The Company had a 50.0 percent interest in Telemate S.A. ("Telemate"),
which provides consulting services in connection with the implementation and
operation of mobile communications systems in certain countries in Europe, Asia
and Latin America. The Company provided design engineering services and software
products to Telemate. Revenues earned related to these services were
approximately $1.8 million in 1995.
F-15
<PAGE> 53
LCC INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
In January 1996, the Company sold its 50.0 percent interest in Telemate and
granted certain distribution rights for the Company's software and hardware
products for $3.8 million. Approximately $1.4 million of the proceeds were
received for the Company's investment in Telemate, resulting in a gain of
approximately $514,000, which was recognized by the Company and included in
other income in its calendar 1996 first quarter results. The remaining proceeds
of $2.4 million were recorded as deferred revenue and were amortized to other
income over the 24 month life of the distribution agreement.
During 1996, the Company entered into master service, convertible note and
stock option agreements with Communication Consulting Services, Inc. ("CCS"), a
provider of radio frequency engineering services in connection with the design,
optimization and operation of wireless systems. Under the master service
agreement, CCS provided the Company with radio frequency engineers effective
November 1, 1996. Under the convertible note agreement, the Company loaned CCS a
total of approximately $602,000 which, at December 31, 1996, was included in
long-term notes receivable in the accompanying consolidated balance sheet.
Interest accrued on the loan at a variable rate equal to the prime rate plus
1.5%. Interest was payable in arrears on the last day each of March 1997, June
1997, September 1997, and December 1997. The entire principal balance, together
with any unpaid interest, was due January 2, 1998. The loan was convertible, at
the Company's option, into shares representing 50% of the authorized capital
stock and/or equity securities of CCS. The stock option agreement gives the
Company an option to purchase an additional 10% of the common stock of CCS for a
total purchase price of $150,000. On April 7, 1997, the Company exercised both
the conversion right in the convertible note and the 10% purchase right set
forth in the stock option agreement.
(11) INCOME TAXES
The provision (benefit) for income taxes consists of the following:
<TABLE>
<CAPTION>
1995 1996 1997
------ -------- ------
(IN THOUSANDS)
<S> <C> <C> <C>
Current:
Federal............................................ $ -- $ 2,052 $ --
State and local.................................... 345 292 --
Foreign............................................ 2,797 3,624 1,497
------ -------- ------
3,142 5,968 1,497
------ -------- ------
Deferred:
Federal............................................ -- (14,024) 1,775
State and local.................................... -- (1,746) 572
Foreign............................................ -- (1,569) 1,391
------ -------- ------
-- (17,339) 3,738
------ -------- ------
Total......................................... $3,142 $(11,371) $5,235
====== ======== ======
</TABLE>
The 1997 income tax provision does not include a $0.4 million tax benefit
related to exercising stock options which was recorded directly to paid-in
capital.
Income before income taxes included the following components:
<TABLE>
<CAPTION>
1995 1996 1997
------ -------- -------
(IN THOUSANDS)
<S> <C> <C> <C>
Domestic............................................... $1,531 $(22,742) $ 7,678
Foreign................................................ 6,351 87 5,132
------ -------- -------
Total........................................ $7,882 $(22,655) $12,810
====== ======== =======
</TABLE>
F-16
<PAGE> 54
LCC INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
A reconciliation of the statutory Federal income tax rate and the effective
income tax rate for the years ended December 31, 1995, 1996 and 1997 follows.
<TABLE>
<CAPTION>
1995 1996 1997
----------- ----------- -----
PRO FORMA PRO FORMA
----------- -----------
(UNAUDITED) (UNAUDITED)
<S> <C> <C> <C>
Statutory Federal income tax rate.................. 35.0% (35.0)% 35.0%
Effect of:
State and local income taxes, net of Federal
tax benefit................................. 5.0 (0.6) 2.9
Foreign....................................... 23.0 9.5 11.2
Tax credits, net.............................. (23.0) (9.0) (10.1)
Other......................................... -- -- 4.3
Valuation Allowance........................... -- 26.8 (2.4)
----- ----- -----
Effective income tax rate.......................... 40.0% (8.3)% 40.9%
===== ===== =====
</TABLE>
F-17
<PAGE> 55
LCC INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
The tax effects of temporary differences that give rise to significant
portions of the deferred tax assets and deferred tax liabilities at December 31,
1996 and 1997 are presented below:
<TABLE>
<CAPTION>
1996 1997
------- -------
(IN THOUSANDS)
<S> <C> <C> <C>
Deferred tax assets:
Accounts receivable, principally due to allowance
for doubtful accounts............................. $ 1,941 $ 4,242
In-process research and development................. 1,569 1,569
Special charge:
Receivables 4,653 2,769
Investment 4,334 1,884
Accruals 2,339... 11,326 371 5,024
----- -----
Inventory valuation method.......................... 886 886
Property and equipment.............................. 509 275
Non-cash compensation............................... 5,767 3,852
Accruals:
Vacation 398 428
Incentive compensation 229 417
Accrued expenses 896... 1,523 2,234 3,079
--- -----
Telemate S.A. sale, principally due to differences
in recognition of income on sale of distribution
rights............................................ 452 --
Net operating loss carryforward..................... -- 2,191
Foreign tax credit carryforward..................... 1,118 2,774
Other............................................... 295 405
------- -------
Total gross deferred tax assets.......................... 25,386 24,297
Less valuation allowance............................ (5,809) (10,476)
------- -------
Net deferred tax assets............................. 19,577 13,821
------- -------
Deferred tax liabilities:
Software development costs..................... (2,085) (2,311)
Other.......................................... (153) (123)
------- -------
Total gross deferred liabilities.................... (2,238) (2,434)
------- -------
Net deferred tax assets............................. $17,339 $11,387
======= =======
</TABLE>
The components giving rise to the net deferred tax assets described above
have been included in the accompanying balance sheet as of December 31, 1996 and
1997 as follows:
<TABLE>
<CAPTION>
1996 1997
------- -------
<S> <C> <C>
Current asset............................................... $12,755 $ 9,874
Noncurrent asset............................................ 4,584 1,513
------- -------
$17,339 $11,387
======= =======
</TABLE>
At December 31, 1997, the Company had $5.9 million of U.S. Federal and
state operating loss carryforwards which expire in varying amounts between 2011
and 2012, foreign tax credits for U.S. tax purposes of $2.8 million that expire
between 2001 and 2002, and $2.9 million of foreign operating loss carryforwards
which expire between 2006 and 2007.
F-18
<PAGE> 56
LCC INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
In addressing the realizability of deferred tax assets, management
considers whether it is more likely than not that some portion or all of the
deferred tax assets will not be realized. The ultimate realization of deferred
tax assets is dependent upon the generation of future taxable income during the
periods in which those temporary differences become deductible. Management
considers the scheduled reversal of deferred tax liabilities, projected future
taxable income and tax planning strategies in making this assessment. A
valuation allowance has been provided for deferred tax assets which management
believes are not more likely than not to be realized, including the portion of
the special charge (see note 9) which generated a capital loss and certain
foreign tax credit carryforwards.
Effective September 27, 1996, the Company converted to a Subchapter C
Corporation under the Internal Revenue Code of 1986, as amended ("IRC"). As a
result, the Company recorded a one-time deferred income tax benefit of $8.7
million due to the change in tax status. The benefit is reflected in net income
for the year ended December 31, 1996 as a reduction of the provision for income
taxes. In conjunction with the acquisition of the assets of ETP, the Company
recorded a deferred income tax benefit of approximately $1.6 million as a result
of the allocation of approximately $5.6 million of the purchase price to
in-process research and development expenses (see note 4). The benefit is
recorded as a reduction of the provision for income taxes for the year ended
December 31, 1996. Also, as a result of the reserves recorded related to the
Company's receivables from, investments in and contract costs associated with
Pocket and NextWave, the Company recorded a deferred income tax benefit of $5.5
million, net of a valuation allowance of $5.8 million (see note 9). The net
benefit of $5.5 million is recorded as a reduction of the provision for income
taxes for the year ended December 31, 1996. Prior to September 27, 1996, the
Company was a Limited Liability Company and was not directly subject to U.S.
Federal income taxes and certain state income taxes. Rather, the members were
responsible for Federal income taxes and certain state income taxes on their
proportionate share of taxable income. U.S. state and local income tax expense
was generated from activities conducted in the several states that did not
recognize the limited liability company as a flow-through entity and, therefore,
required the Company to be taxed as if it were a corporation.
Foreign income tax expense is generated from business conducted in
countries where the Company has subsidiaries or has established branch offices
or has performed significant services that constitute a "permanent
establishment" for tax reporting purposes.
The unaudited pro forma provisions (benefits) for income taxes presented in
the consolidated statements of operations for the years ended December 31, 1995
and 1996, represent an estimate of the taxes that would have been recorded had
the Company been a Subchapter C corporation as of January 1, 1995. The unaudited
pro forma provisions (benefits) for income taxes for the years ended December
31, 1995 and 1996 consists of the following:
<TABLE>
<CAPTION>
1995 1996
----------- -----------
(IN THOUSANDS)
PROFORMA PROFORMA
(UNAUDITED) (UNAUDITED)
----------- -----------
<S> <C> <C>
Federal................................................ $ 736 $(2,140)
State.................................................. 604 (232)
Foreign................................................ 1,813 486
------ -------
Total............................................. $3,153 $(1,886)
====== =======
</TABLE>
(12) NOTE PAYABLE
In May 1995, the Company entered into a $15.0 million financing facility
with Nomura Holding America Inc. ("Nomura"). At December 31, 1995, $10.0 million
had been drawn against the facility. Under the terms
F-19
<PAGE> 57
LCC INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
of the facility, at each six-month anniversary of issuance while the facility
remained outstanding, the original interest rate of prime plus 3.0 percent
increased by .25 percent. At December 31, 1995, the facility carried an interest
rate of prime plus 3.25 percent or 11.75 percent. All unpaid principal and
interest due under the facility was payable no later than May 30, 1997. The
facility was secured by the pledging of substantially all of the Company's
assets and Telcom Ventures' membership interest in the Company and was
guaranteed by Telcom Ventures. In March 1996, LCC's financing facility with
Nomura was purchased by Chase Manhattan Bank, N.A. ("Chase"). Also in March
1996, additional draws aggregating $10.0 million were made by LCC, resulting in
a total outstanding balance under the facility of $20.0 million.
In June 1996, LCC entered into a new credit facility with Chase which
replaced the March 1996 Facility. Under the new credit facility, Chase extended
(1) a revolving loan and letter of credit facility in an aggregate principal
amount not to exceed the lesser of $12.5 million or 80% of LCC's receivables
which were deemed "eligible" as a basis for obtaining credit, minus the
aggregate amount of letter of credit obligations outstanding at such time, and
(2) a term loan in the principal amount of $7.5 million. The availability of
revolving loans and letters of credit was scheduled to expire on May 15, 1999.
The term loan was scheduled to amortize in 20 equal quarterly installments with
the final principal installment due on May 15, 2001. Interest on the loans was
to accrue at LCC's election at either (1) a variable rate determined with
reference to the higher of (a) the Federal funds rate plus one-half of one
percent and (b) the announced prime commercial lending rate of Chase; or (2) a
fixed rate determined with reference to the London Interbank Market. The payment
and performance of the obligations of LCC under the credit facility were secured
by substantially all the assets of LCC. The credit facility contained certain
covenants which include the maintenance of debt service and other financial
ratios as well as a restriction on the declaration or payment of dividends. The
credit facility was guaranteed by Telcom Ventures. The guarantee terminated upon
consummation of the Company's initial public offering (see note 2).
In September 1996, the credit facility with Chase was transferred from LCC
to the Company and was amended and restated to reflect the transactions
contemplated by the merger of LCC with and into the Company immediately prior to
the closing of the Company's initial public offering (see note 2). The credit
facility consists of a revolving loan and letter of credit facility in an
aggregate principal amount not to exceed $20.0 million. The limitation on the
amount of outstanding principal based on a calculation of "eligible" receivables
as required in the May 1996 credit facility was eliminated. The revolving loan
commitment expires in September 1999. Interest under the credit facility accrues
at the Company's election (subject to certain restrictions and limitations) at
either (i) the variable rate equal to the greater of (a) the Federal funds rate
plus one-half of one percent, and (b) the announced prime commercial lending
rate of Chase, or (c) a fixed rate for a designated period of time determined by
reference to the London Interbank Market. The credit facility contains certain
covenants which include the maintenance of financial ratios as well as a
restriction on the declaration or payment of dividends. In September 1996,
approximately $16.2 million of the proceeds of the Company's initial public
offering was used to pay all amounts outstanding under the Company's credit
facility with Chase. Effective December 30, 1996, the Credit Facility was
amended to revise the financial ratios and certain other covenants contained
therein for the effect of the special charge recorded by the Company (see note
9).
Effective December 15, 1997, the Credit Facility was amended to "carve-out"
a separate credit facility for ETP (the "ETP Credit Facility") in the aggregate
principal amount of $2.5 million. ETP and Microcell executed the amended credit
facility as a party and guarantor of the Company's obligation and the Company
has pledged 65% of the equity of ETP and 100% of the equity of Microcell to
Chase as security for repayment under the facility. Also, effective December 31,
1997, the Company obtained a waiver for non-compliance with the covenant
limiting the Company's capital expenditures and one of its financial ratios. The
Company was in compliance with all other financial covenants and ratios. No
amounts were outstanding under the Credit Facility at December 31, 1996, or
during the period January 1, 1997 through December 31, 1997 with
F-20
<PAGE> 58
LCC INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
the exception of amounts, if any, outstanding under the ETP Credit Facility.
Approximately $1.4 million was outstanding under the ETP Credit Facility at
December 31, 1997 and is included in other current liabilities in the
accompanying 1997 consolidated balance sheet.
(13) CONVERTIBLE SUBORDINATED DEBT
In June 1994, the Company issued to MCI Telecommunications Corporation
("MCI") a $20.0 million convertible Subordinated Note Due 2000 (the
"Subordinated Note"). The Subordinated Note bore interest at a rate equal to 6.8
percent, payable semiannually. The entire principal amount of the Subordinated
Note is due in June 2000. Upon the occurrence of certain specified events
(including any merger of the Company with another company or any sale of
substantially all of the Company's assets), the Subordinated Note will
automatically be exchanged for 1,136,440 shares of the Company's Class A Common
Stock. In addition, the investor has the right to exchange the Subordinated Note
for 1,136,440 shares of the Company's Class A Common Stock: (1) at any time
during the 45-day period commencing on the third through fifth anniversaries of
the issuance of the Subordinated Note; and (2) upon the occurrence of certain
other specified events. The investor also has the right to exchange a portion of
the Subordinated Note and of the Telecom Ventures Subordinated Note (as defined
below) for up to 1,000,000 shares of the Company's Class A Common shares of
Stock during certain periods in 1998 in the event of an underwritten public
offering of the Company's Class A Common Stock. The Company has the right to
exchange the Subordinated Note for 1,136,440 shares of the Company's Class A
Common Stock: (1) if the investor does not exchange the Subordinated Note during
the 45-day period commencing on the third through fifth anniversaries of the
issuance of the Subordinated Note; and (2) upon the occurrence of certain other
specified events.
In June 1994, Telcom Ventures issued a $30.0 million convertible
Subordinated Note Due 2000 (the "Telcom Ventures Subordinated Note") to the same
investor. The Telcom Ventures Subordinated Note bore interest at a rate equal to
6.8%, payable semiannually. Upon the occurrence of certain specified events
(including any merger of the Company with another company or any sale of
substantially all of the Company's assets), the Telcom Ventures Subordinated
Note will automatically be exchanged for 1,704,659 shares of the Company's Class
A Common Stock. In addition, the investor has the right to exchange the Telcom
Ventures Subordinated Note for 1,704,659 shares of the Company's Class A Common
Stock: (1) at any time during the 45-day period commencing on the third through
fifth anniversaries of the issuance of the Telcom Ventures Subordinated Note;
and (2) upon the occurrence of certain other specified events. Telcom Ventures
had the right to exchange the Telcom Ventures Subordinated Note for a 12.0
percent membership interest in the Company: (1) if the investor does not
exchange the Telcom Ventures Subordinated Note during the 45-day period
commencing on the third through fifth anniversaries of the issuance of the
Telcom Ventures Subordinated Note; and (2) upon the occurrence of certain other
specified events. The investor also has the right to exchange a portion of the
Telcom Ventures Subordinated Note and of the Subordinated Note for up to
1,000,000 shares of the Company's Class A Common Stock during certain periods in
1998 in the event of an underwritten public offering of the Company's Class A
Common Stock. The Company fully and unconditionally guaranteed the obligations
of Telcom Ventures under the Telcom Ventures Subordinated Note.
Effective September 27, 1996, in connection with the Company's initial
public offering of Class A Common Stock, the Company assumed the $30.0 million
Telecom Ventures Subordinated Note from Telcom Ventures. As a result of this
assumption the Company has the exclusive right to exercise all Telecom Ventures'
rights under the Telecom Ventures Subordinated Note and is solely responsible
for the payment of interest and principal thereunder (see note 2).
On October 23, 1997, the Company announced that it had agreed with MCI to
defer the Company's option to convert the notes in 1997. As part of the
arrangement, interest payable under the notes was reduced from 6.8% to 4.4% per
annum.
F-21
<PAGE> 59
LCC INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
(14) HEALTH AND RETIREMENT PLANS
The Company has a defined contribution profit sharing plan under Section
401(k) of the IRC that provides for voluntary employee contributions of 1.0 to
15.0 percent of compensation for substantially all employees. The Company makes
a matching contribution of 50.0 percent of an employee's contribution up to 6.0
percent of each employee's compensation. Company contributions and other
expenses associated with the plan were approximately $419,000, $454,000 and
$633,000 for the years ended December 31, 1995, 1996, and 1997, respectively.
The Company is self-insured for group health life, and short and long-term
disability claims up to certain stop losses.
(15) INCENTIVE PLANS
At December 31, 1996 and 1997, the Company had two stock-based incentive
plans, an employee stock purchase plan and an employee stock option plan, which
are described below. The Company applies APB Opinion No. 25 and related
interpretations in accounting for its plans. Accordingly, no compensation cost
has been recognized for its fixed stock option plans and employee stock purchase
plan. Had compensation cost for the Company's stock-based compensation plans and
employee stock purchase plan been determined on the fair value at the grant
dates for awards under those plans, consistent with Financial Accounting
Standards Board Statement No. 123 ("SFAS No. 123"), the Company's net income
(loss) and net income (loss) per share would have been reduced to the pro forma
amounts indicated below.
<TABLE>
<CAPTION>
1995 1996 1997
----------- ----------- ------
(PRO FORMA) (PRO FORMA)
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C>
Net income (loss)
As reported......................................... $4,729 $(20,769) $7,575
Pro forma........................................... 4,729 (21,099) 5,522
Net income (loss) per share
As reported:
Basic.......................................... $ 0.42 $ (1.70) $ 0.51
Diluted........................................ 0.39 (1.70) 0.47
Pro forma:
Basic.......................................... $ 0.42 $ (1.73) $ 0.37
Diluted........................................ 0.39 (1.73) 0.35
</TABLE>
Net income (loss) reflects only options granted in 1995, 1996 and 1997.
Therefore, the full impact of calculating compensation cost for stock options
under SFAS No. 123 is not reflected in the pro forma net income (loss) amounts
presented above as compensation cost is reflected over the options' vesting
period of up to five-years and compensation cost for options granted prior to
January 1, 1995 is not considered.
The per share weighted-average fair value of stock options granted during
1996 and 1997 was $4.25 and $8.41, respectively, on the date of grant using the
Black Scholes option-pricing model with the following weighted-average
assumptions:
<TABLE>
<CAPTION>
1996 1997
--------- ---------
<S> <C> <C>
Expected dividend yield................................ 0% 0%
Risk-free interest rate................................ 6.4% 6.0%
Expected life.......................................... 2-6 years 2-8 years
Volatility............................................. 48.0% 65.0%
</TABLE>
F-22
<PAGE> 60
LCC INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
Under the Company's Employee Stock Purchase Plan, 360,000 shares of Class A
Common Stock were available for purchase by eligible employees of the Company
beginning in 1997. Rights to purchase shares are deemed granted to participating
employees as of the beginning of each applicable period, as specified by the
Compensation and Stock Option Committee of the Company's Board of Directors. The
purchase price for each share is not less than 85% of the fair market value of
the share of Class A Common Stock on the first or last trading day of such
period, whichever is lower. Under the Employee Stock Purchase Plan, the Company
sold 65,448 shares to employees in 1997. Compensation cost of $161,000 would
have been recognized under SFAS No. 123 for the fair value of the employees
purchase rights and is included in proforma net income above for 1997.
Compensation cost was estimated using the Black Scholes model with the following
assumptions: dividend yield of 0%; expected life of 3 months; expected
volatility of 65%; and a risk free rate of 3%. The weighted average fair value
of those purchase rights granted in 1997 was $2.46.
In April 1994, the Company adopted the Phantom Membership Plan (the
"Phantom Membership Plan"). Under the Phantom Membership Plan, the Members
Committee was authorized to grant awards ("Phantom Membership Awards") to those
employees of the Company whose responsibilities and decisions, in the Members
Committee's opinion, affect the long-term sustained growth and profitability of
the Company. Each Phantom Membership Award entitled the recipient thereof to
receive, no later than May 1 of each year, an annual award based on a specified
percentage of the Company's net income for the preceding fiscal year. The
Phantom Membership Plan also included a long-term award. Under the long-term
award, once a Phantom Membership Award was fully vested, the recipient had the
right to require the Company to purchase, and the Company had the right to
require such recipient to sell, all or any portion of the recipient's Phantom
Membership Award based on the fair market value of the Company as defined under
the Phantom Membership Plan. In connection with the Company's initial public
offering, all long-term awards granted under the Phantom Membership Plan were
replaced with options granted under the 1996 Employee Stock Option Plan and the
annual award feature of the Phantom Membership Plan was terminated. The options
vest over the original vesting period of the Phantom Membership Plan awards,
generally the third or fifth anniversary of the date of grant.
Compensation expense related to the annual award feature of the Phantom
Membership Plan was $608,000, and $764,000 for 1995 and 1996, respectively, the
liability for which is included in accrued expenses in the accompanying
consolidated balance sheets. Non-cash compensation related to the long-term
award feature of the Phantom Membership Plan, including compensation expense for
membership awards converted to stock options under the 1996 Employee Stock
Option Plan, was $4.6 million, $7.0 million, and $0.6 million for 1995, 1996,
and 1997, respectively, the liability for which was included in obligation under
incentive plans at December 31, 1995 and paid-in capital at December 31, 1996
and 1997 in the accompanying consolidated balance sheets.
In March 1996, LCC adopted an Employee Option Plan for certain key
executives under which the Members' Committee granted options for up to an
aggregate six percent interest in the Company. Options representing
approximately a 6.0% interest were outstanding as of March 15, 1996. The Options
were granted at an exercise price equal to fair market value at time of grant,
and generally became exercisable at 20% a year over a five-year period.
Unexercised options generally expire 10 years after issuance.
In connection with its initial public offering, the Company established the
1996 Employee Stock Option Plan, which authorized the issuance of up to
3,224,000 shares of Class A Common Stock pursuant to options granted under the
plan. Options to purchase approximately 580,000 shares of Class A Common Stock
at the offering price of $16 were granted to approximately 260 employees of the
Company under the Company's 1996 Employee Stock Option Plan. The options vest
with respect to one-third of the shares subject to option on each of the first
three anniversaries of the date of grant. Unexercised options generally expire
10 years after issuance. In addition, options to purchase up to an aggregate of
approximately 2,160,000 shares of Class A Common Stock were issued under the
1996 Employee Stock Option Plan to certain employees of the
F-23
<PAGE> 61
LCC INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
Company to replace the options granted by LCC in connection with the Employee
Option Plan (see above) and the Phantom Membership Awards under the LCC
Membership Plan adopted in 1994 (see above). The exercise price and number of
options granted were intended to maintain a comparable value with the
options/awards under the previous plans.
Also in connection with the Company's initial public offering, the Company
established the 1996 Director's Stock Option Plan and the Employee Stock
Purchase Plan. The Director's Plan provides for the "formula" grant of options,
and authorizes the issuance of up to 60,000 shares of Class A Common Stock and
250,000 shares of Class B Common Stock. The option exercise price for options
granted under the Director's Plan is 100% of the fair value of the shares on the
date of grant. Each eligible director who is not eligible to hold shares of
Class B Common Stock was granted an initial option to purchase 10,000 shares of
Class A Common Stock in connection with the offering. Each eligible director who
is eligible to hold shares of Class B Common Stock and who was a director as of
the offering was granted an initial option to purchase 35,000 shares of Class B
Common Stock in connection with the offering, and will be granted additional
options to purchase 22,500 shares of Class B Common Stock as of each of the next
four annual meetings of the stockholders of the Company if the director
continues to be an eligible director. Options granted with respect to Class A
Common Stock will become immediately exercisable with respect to directors who
were directors of the Company prior to July 1, 1996, and will become exercisable
with respect to one-third of the shares of Class A Common Stock that are subject
to the options on each of the first three anniversaries of the date of grant
subject to acceleration of vesting on a change of control with respect to
directors who became directors of the Company after July 1, 1996.
The Company has reserved 85,000 shares of Class A Common Stock for issuance
pursuant to options to be granted to a person or entity designated by one of the
investors in the Company. The option exercise price for these options will be
100% of the fair market value of the Class A Common Stock that was granted in
connection with the Offering, and an additional option will be granted to
purchase 15,000 shares of Class A Common Stock on the date of grant of the
option. An initial option to purchase 25,000 shares of Class A Common Stock was
granted in connection with the Offering, and an additional 15,000 shares of
Class A Common Stock on each of the next four anniversaries of the initial date
of grant. Options granted will vest immediately. The options will expire no
later than the fifth anniversary of the date of grant.
Changes in stock options outstanding were as follows:
<TABLE>
<CAPTION>
1996 1997
------------------------------- -------------------------------
WEIGHTED- WEIGHTED-
NUMBER OF AVERAGE NUMBER OF AVERAGE
SHARES EXERCISE PRICE SHARES EXERCISE PRICE
-------------- -------------- -------------- --------------
(IN THOUSANDS) (PER SHARE) (IN THOUSANDS) (PER SHARE)
<S> <C> <C> <C> <C>
Balance at beginning of year..... -- $ -- 2,813 $ 8.54
Granted.......................... 2,825 8.57 418 15.54
Exercised........................ -- -- (531) 6.08
Terminated....................... (12) 16.00 (191) 13.08
----- -----
Balance at end of year........... 2,813 8.54 2,509 9.89
===== =====
</TABLE>
F-24
<PAGE> 62
LCC INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
The following table summarizes information about options at December 31,
1997.
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING OPTIONS EXERCISABLE
---------------------------------------------------- ---------------------------------
WEIGHTED AVG. WEIGHTED AVG. WEIGHTED AVG.
RANGE OF NUMBER AT REMAINING EXERCISE NUMBER AT EXERCISE
EXERCISE PRICES DECEMBER 31, 1997 CONTRACTUAL LIFE PRICE DECEMBER 31, 1997 PRICE
--------------- ----------------- ---------------- ------------- ----------------- -------------
(IN THOUSANDS) (IN YEARS) (IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
$4.00................. 945 8.7 $ 4.00 783 $ 4.00
$9.16-$12.13.......... 740 7.9 10.35 235 10.50
$14.88-$16.00......... 676 8.4 15.74 206 16.00
$18.00-$20.38......... 148 9.4 18.55 -- --
----- -----
2,509 8.5 9.89 1,224 7.26
===== =====
</TABLE>
In September 1994, the Company adopted an Incentive Compensation Plan (the
"Incentive Compensation Plan"). Under the Incentive Compensation Plan, the
Members Committee was authorized to grant awards ("Incentive Awards") to those
employees of the Company whose responsibilities and decisions, in the Members
Committee's opinion, affect the long-term sustained growth and profitability of
the Company.
Each Incentive Award entitles the recipient thereof to receive a cash
payment on the date specified in the corresponding award agreement. To date, all
Incentive Awards granted under the Incentive Compensation Plan are payable on
the third anniversary of the grant thereof. At the discretion of the Members
Committee, participating employees may borrow a portion of the total amount of
their Incentive Awards.
As of December 31, 1994 and 1995, 20 and 60 employees, respectively, had
been granted Incentive Awards under the Incentive Compensation Plan. No new
grants were made in 1996 or 1997. Compensation expense accrued in connection
with the distribution of the value of vested Incentive Awards was $635,000,
$541,000, and $409,000 for the years ended December 31, 1995, 1996, and 1997,
respectively, which has been included in obligations under incentive plans, net
of current portion in the accompanying consolidated balance sheets.
(16) LEASE COMMITMENTS
The Company leases office facilities and certain equipment, principally in
the United States, under operating leases expiring on various dates over the
next ten years. The lease agreements include renewal options and provisions for
rental escalations based on the Consumer Price Index and require the Company to
pay for executory costs such as taxes and insurance. The lease agreements also
allow the Company to elect an early out provision by giving notice and paying
certain lease termination penalties.
Benefits associated with a rent abatement period and certain lease
incentives for office facilities are reflected ratably over the period of the
lease. For leases which have been terminated (see below), the applicable portion
of the benefit has been offset against the lease termination penalty. The total
deferred rent benefit was approximately $351,000 and $289,000 at December 31,
1996 and 1997, respectively.
In November 1995 and December 1996, the Company gave notice of early lease
termination to two of its landlords and recorded the lease termination penalties
thereon in its calendar 1995 and 1996 financial statements. In May 1996, the
Company entered into 10-year and 5-year facility lease agreements effective
March 1, 1997 and July 1, 1997, respectively.
F-25
<PAGE> 63
LCC INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
Future minimum rental payments under non-cancelable operating leases,
excluding executory costs, are as follows:
<TABLE>
<CAPTION>
(IN THOUSANDS)
--------------
<S> <C>
1998........................................................ $ 3,655
1999........................................................ 3,679
2000........................................................ 3,726
2001........................................................ 3,732
2002........................................................ 3,706
Thereafter.................................................. 15,500
-------
$33,998
=======
</TABLE>
Rent expense under operating leases was approximately $3.5 million, $5.0
million and $5.3 million for the years ended December 31, 1995, 1996, and 1997,
respectively.
(17) CONTINGENCIES
The Company is party to various legal proceedings and claims incidental to
their business. Management does not believe that these matters will have a
material adverse effect on the consolidated results of operations or financial
condition of the Company.
(18) EARNINGS PER SHARE
During 1997 the Company adopted Financial Accounting Standards Board
Statement No. 128, "Earnings per Share" ("SFAS No. 128"). SFAS No. 128
supersedes Accounting Principles Board Opinion No. 15, "Earnings per Share" and
its related interpretations and promulgates new accounting standards for the
computation and manner of presentation of the Company's earnings per share data.
Under SFAS No. 128 the Company is required to present basic and diluted earnings
per share. Basic earnings per share excludes dilution and is computed by
dividing income available to common stockholders by the weighted average number
of common shares outstanding for the period. Diluted earnings per share reflects
the potential dilution that could occur if securities or other contracts to
issue common stock were exercised or converted into common stock or resulted in
the issuance of common stock that shared in the earnings of the Company. The
reconciliation of the basic and diluted earnings per share computations for the
years ended December 31, 1995, 1996 and 1997 are as follows:
<TABLE>
<CAPTION>
1995 1996 1997
------------------------------ ------------------------------ ------------------------
PRO FORMA PRO FORMA PER
NET PER SHARE NET PER SHARE NET SHARE
INCOME SHARES AMOUNT (LOSS) SHARES AMOUNT INCOME SHARES AMOUNT
--------- ------ --------- --------- ------ --------- ------ ------ ------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
BASIC EPS
Net income (loss) available
to common shareholders... $4,729 11,364 $0.42 $(20,769) 12,211 $(1.70) $7,575 14,740 $0.51
===== ====== =====
EFFECT OF DILUTIVE SECURITIES
Convertible debt........... 816 2,841 -- -- -- --
Stock option plans......... -- -- -- -- -- 1,215
------ ------ -------- ------ ------ ------
DILUTIVE EPS
Net income (loss)
available to common
stockholders and
assumed conversions.... $5,545 14,205 $0.39 $(20,769) 12,211 $(1.70) $7,575 15,955 $0.47
====== ====== ===== ======== ====== ====== ====== ====== =====
</TABLE>
F-26
<PAGE> 64
LCC INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
The Company's convertible subordinated debt, which is exchangeable into 2.8
million shares of the Company's Class A Common Stock, was outstanding during
calendar 1996 and 1997, but was not included in the computation of diluted
earnings per share because the effect of which would have been anti-dilutive.
Options to purchase 2.8 million shares of Class A Common Stock were outstanding
during 1996 but were not included in the computation of diluted earnings per
share because the effect of which would have been anti-dilutive.
(19) GEOGRAPHIC DATA
The Company maintains subsidiaries in France, Germany, Brazil, Norway,
Columbia and the United Kingdom. Net revenues generated by these subsidiaries
was $4.6 million, $2.7 million and $15.5 million during calendar 1995, 1996 and
1997, respectively. The remaining sales to Europe and principally all of the
export sales to Latin America, Middle East-Africa and Asia-Pacific are U.S.
services and products.
Export sales by geographic region are as follows:
<TABLE>
<CAPTION>
1995 1996 1997
------- ------- -------
(IN THOUSANDS)
<S> <C> <C> <C>
North America.................................... $ 3,330 $ 2,965 $ 3,302
Latin America.................................... 8,200 10,588 8,703
Europe........................................... 9,290 9,715 9,713
Middle East-Africa............................... 3,310 1,473 1,404
Asia-Pacific..................................... 16,730 17,598 19,156
------- ------- -------
Total export sales............................... $40,860 $42,339 $42,278
======= ======= =======
</TABLE>
F-27
<PAGE> 65
LCC INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
(20) QUARTERLY DATA (UNAUDITED)
<TABLE>
<CAPTION>
1996
------------------------------------------
1ST 2ND 3RD 4TH
QUARTER QUARTER QUARTER QUARTER
-------- -------- -------- ---------
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C>
Revenues.............................................. $27,088 $33,276 $37,856 $ 43,350
Operating income (loss)............................... 2,561 1,854 2,644 (29,965)
Income (loss) before income taxes..................... 3,187 1,603 2,569 (30,014)
Net income (loss)..................................... 2,479 542 10,881 (25,184)
Pro forma net income (loss) per share:
Basic............................................... $ 0.17 $ 0.08 $ 0.13 $ (1.73)
======= ======= ======= ========
Diluted............................................. $ 0.15 $ 0.08 $ 0.12 $ (1.73)
======= ======= ======= ========
</TABLE>
<TABLE>
<CAPTION>
1997
------------------------------------------
1ST 2ND 3RD 4TH
QUARTER QUARTER QUARTER QUARTER
-------- -------- -------- ---------
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C>
Revenues.............................................. $34,370 $37,300 $40,493 $ 43,085
Operating income...................................... 1,111 2,609 10,437 60
Income before income taxes............................ 770 2,006 9,911 123
Net income............................................ 390 1,129 5,583 473
Net income per share:
Basic............................................... $ 0.03 $ 0.08 $ 0.38 $ 0.03
======= ======= ======= ========
Diluted............................................. $ 0.02 $ 0.07 $ 0.32 $ 0.03
======= ======= ======= ========
</TABLE>
See note 9 with respect to the special charge recorded by the Company in
December 1996 and note 3 with respect to the additional allowance for doubtful
accounts recorded by the Company in December 1997 as a result of the economic
downturn in the Asia-Pacific region.
(21) FAIR VALUE OF FINANCIAL INSTRUMENTS
The following table presents the carrying amount and estimated fair value
of the Company's financial instruments in accordance with SFAS No. 107
"Disclosure about Fair Value of Financial Instruments".
<TABLE>
<CAPTION>
1996 1997
------------------------- --------------------------
CARRYING ESTIMATED FAIR CARRYING ESTIMATED FAIR
AMOUNT VALUE AMOUNT VALUE
-------- -------------- -------- ---------------
(IN THOUSANDS)
<S> <C> <C> <C> <C>
Assets:
Notes receivable -- long term................. $ 602 $ 602 $ -- $ --
Notes receivable from shareholder............. 3,500 3,500 2,800 2,800
Liabilities:
Note payable.................................. 10,445 10,445 -- --
Convertible subordinated debt................. 50,000 52,560 50,000 41,196
Off balance sheet -- letters of credit.......... 69 76 67 77
</TABLE>
F-28
<PAGE> 66
LCC INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
The carrying amounts of financial instruments, including cash and cash
equivalents, accounts and notes receivable, the note payable as of December 31,
1997 and accounts payable approximated fair value as of December 31, 1996 and
1997 because of the relatively short duration of these instruments.
Notes receivable from shareholder -- the carrying value of the note
receivable approximated the fair value as the receivable is treated as a deemed
dividend.
Convertible subordinated debt -- the fair value at December 31, 1996 and
1997 is based on the fair market value of the Class A Common Stock assuming
conversion into 2,841,099 shares.
Letters of credit -- the fair value of letters of credit was estimated
based on fees currently charged for similar agreements or the estimated cost to
terminate or settle the obligations.
Financial guarantees are conditional commitments issued by the Company to
guarantee the payment of certain liabilities of unconsolidated affiliates. No
such guarantees were outstanding at December 31, 1996 or 1997.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Reference is made to the information set forth under the caption "Election
of Directors" appearing in the Proxy Statement to be filed within 120 days after
the end of the Company's fiscal year, which information is incorporated herein
by reference.
ITEM 11. EXECUTIVE COMPENSATION
Reference is made to the information set forth under the caption "Election
of Directors -- Executive Compensation" appearing in the Proxy Statement to be
filed within 120 days after the end of the Company's fiscal year, which
information is incorporated herein by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Reference is made to the information set forth under the caption
"Beneficial Ownership of Common Stock" appearing in the Proxy Statement to be
filed within 120 days after the end of the Company's fiscal year, which
information is incorporated herein by reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Reference is made to the information set forth under the caption "Election
of Directors -- Compensation Committee Interlocks and Insider Participation"
and -- "Certain Relationships and Related Transactions" appearing in the Proxy
Statement to be filed within 120 days after the end of the Company's fiscal
year, which information is incorporated herein by reference.
F-29
<PAGE> 67
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a)(1) The following consolidated financial statements of registrant and
its subsidiaries and report of independent auditors are included in
Item 8 hereof.
Report of Independent Auditors.
Consolidated Statements of Operations -- Years Ended December 31,
1995, 1996, and 1997.
Consolidated Balance Sheets as of December 31, 1996 and 1997.
Consolidated Statements of Shareholders' Equity (Deficit) -- Years
Ended December 31, 1995, 1996 and 1997.
Consolidated Statements of Cash Flows -- Years Ended December 31,
1995, 1996 and 1997.
Notes to Consolidated Financial Statements.
(a)(2) Except as provided below, all schedules for which provision is made
in the applicable accounting regulations of the Securities and
Exchange Commission either have been included in the Consolidated
Financial Statements or are not required under the related
instructions, or are inapplicable and therefore have been omitted.
Schedule II -- Valuation and Qualifying Accounts
(a)(3) The following exhibits are either provided with this Report or are
incorporated herein by reference:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
------- -------------------
<C> <S> <C>
3.1 -- Restated Certificate of Incorporation of the Company.*
3.2 -- Amended and Restated Bylaws of the Company.*
4.1 -- Form of Class A and Class B Common Stock certificates.*
4.2 -- LCC International, Inc. 1996 Directors Stock Option Plan.*
4.3 -- LCC International, Inc. 1996 Employee Stock Option Plan.*
4.4 -- LCC International, Inc. 1996 Employee Stock Purchase Plan.*
4.5 -- Amendment No. 1 to LCC International, Inc. Employee Stock
Purchase Plan**
10.1 -- [Intentionally omitted]
10.2 -- [Intentionally omitted]
10.3 -- [Intentionally omitted]
10.4 -- [Intentionally omitted]
10.5 -- 1994 LCC, L.L.C. Incentive Compensation Plan.*
10.6 -- [Intentionally omitted]
10.7 -- [Intentionally omitted]
10.8 -- Subordinated Note due 2000 by Telcom Ventures, L.L.C.
payable to MCI Telecommunications Corporation dated June 28,
1994.*
10.9 -- Subordinated Note due 2000 by LCC, L.L.C. payable to MCI
Telecommunications Corporation dated June 28, 1994.*
+10.10 -- Agreement dated November 15, 1994 by and between LCC, L.L.C.
and Pacific Bell Mobile Services.*
</TABLE>
F-30
<PAGE> 68
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
------- -------------------
<C> <S> <C>
++10.11 -- Amended and Restated Service Agreement, dated as of October
1, 1996, by and between TSI, a division of LCC
International, Inc., and Nextel Communications, Inc.****
++10.12 -- Amended and Restated Software License Agreement, dated as of
October 1, 1996 by and between LCC, a division of LCC
International, Inc., and Nextel Communications, Inc.****
10.13 -- Amended and Restated Shareholders' Rights Agreement dated
February , 1996 between NextWave Telecom Inc. and LCC,
L.L.C.*
10.14 -- Letter Agreement dated March , 1996 between NextWave
Telecom, Inc. and LCC, L.L.C.*
+10.15 -- Letter Agreement dated March 12, 1996 between NextWave
Telecom, Inc. and LCC, L.L.C.*
10.16 -- Subscription Agreement dated March , 1996 between NextWave
Telecom, Inc. and LCC, L.L.C.*
10.17 -- [Intentionally omitted]
10.18 -- Convertible Loan and Investment Agreement dated March 20,
1996 by and between LCC, L.L.C. and DCR Communications,
Inc.*
+10.19 -- Letter Agreement dated March 20, 1996 by and between LCC,
L.L.C. and DCR Communications, Inc.*
10.20 -- Agreement dated May 17, 1996, between LCC, L.L.C. and
West*Park Associates Limited Partnership for office space at
7925 Jones Branch Drive, McLean, Virginia, 22102.*
10.21 -- Agreement dated May 17, 1996, between LCC, L.L.C. and
West*Park Associates Limited Partnership for office space at
7927 Jones Branch Drive, McLean, Virginia, 22102.*
10.22 -- Letter Agreement dated May 31, 1996 between LCC
International, Inc. and Arno Penzias.*
10.23 -- [Intentionally omitted]
10.24 -- Security Agreement dated June 14, 1996 among LCC, L.L.C.,
LCC Design Services, L.L.C. and LCC Development Company,
L.L.C., in favor of The Chase Manhattan Bank (National
Association).*
10.25 -- Intellectual Property Security Agreement dated June 14, 1996
by LCC, L.L.C. in favor of The Chase Manhattan Bank
(National Association).*
10.26 -- Pledge Agreement dated June 14, 1996 among LCC, L.L.C., LCC
Design Services, L.L.C. and LCC Development Company, L.L.C.,
in favor of The Chase Manhattan Bank (National
Association).*
10.27 -- Intercompany Agreement dated as of August 27, 1996 among
Telcom Ventures, L.L.C., LCC, L.L.C., LCC International,
Inc., Cherrywood Holdings, Inc., Rajendra Singh, Neera
Singh, certain trusts for the benefit of members of the
Singh family, Carlyle-LCC Investors I, L.P., Carlyle-LCC
Investors II, L.P., Carlyle-LCC Investors III, L.P.,
Carlyle-LCC IV (E), L.P., MDLCC, L.L.C. and TC Group,
L.L.C.*
10.28 -- Registration Rights Agreement dated July 25, 1996 among LCC
International, Inc., RF Investors, L.L.C. and MCI
Telecommunications Corporation.*
</TABLE>
F-31
<PAGE> 69
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
------- -------------------
<C> <S> <C>
10.29 -- Form of Indemnity Agreement between LCC International, Inc.
and each of Rajendra Singh, Neera Singh, Piyush Sodha, Mark
D. Ein, Arno A. Penzias, J. Michael Bonin, Kathryn M.
Condello, Peter A. Deliso, Richard Hozik, Frank F.
Navarrete, Donald R. Rose, Gerard L. Vincent and Louis R.
Olsen.*
10.30 -- Overhead and Administrative Services Agreement dated August
27, 1996 between LCC International, Inc. and Telcom
Ventures, L.L.C.*
10.31 -- Agreement of Merger dated September 15, 1996 between LCC,
L.L.C. and LCC International, Inc.*
10.32 -- Form of LCC International, Inc. Directors Stock Option Plan
stock option agreement for directors who will receive Class
B Common Stock.*
10.33 -- Amended and Restated Securityholders Agreement dated July
25, 1996 among Telcom Ventures, L.L.C., LCC, Incorporated,
TC Group, L.L.C., LCC, L.L.C. and MCI Telecommunications
Corporation.*
10.34 -- Amendment to Subordinated Note due 2000 by Telcom Ventures,
L.L.C. payable to MCI Telecommunications Corporation dated
July 25, 1996.*
10.35 -- Amendment to Subordinated Note due 2000 by LCC, L.L.C.
payable to MCI
10.36 -- Telecommunications Corporation dated July 25, 1996.* Form of
Promissory Note by Telcom Ventures, L.L.C. to LCC
International, Inc.*
10.37 -- Form of Stock Option Agreement between LCC International,
Inc. and the Carlyle Option Designees.*
10.38 -- Form of LCC International, Inc. 1996 Employee Stock Option
Plan incentive stock option agreement.*
10.39 -- Form of LCC International, Inc. 1996 Employee Stock Option
Plan non-incentive stock option agreement.*
10.40 -- Form of LCC International, Inc. 1996 Employee Stock Option
Plan non-incentive stock option agreement (for employees who
had been eligible to participate in the LCC, L.L.C. 1994
Phantom Membership Plan or the LCC, L.L.C. 1996 Employee
Option Plan).*
10.41 -- Form of LCC International, Inc. Directors Stock Option Plan
stock option agreement for directors who will receive Class
A Common Stock (other than Mark D. Ein).*
10.42 -- Form of LCC International, Inc. Directors Stock Option Plan
stock option agreement for Mark D. Ein.*
10.43 -- Form of Phantom Membership Plan Exchange Agreement.*
10.44 -- Revolving Credit Note dated June 14, 1996 by LCC, L.L.C. to
The Chase Manhattan Bank (National Association) in the
amount of $12,500,000.*
10.45 -- Term Note dated June 14, 1996 by LCC, L.L.C. to The Chase
Manhattan Bank (National Association) in the amount of
$7,500,000.*
10.46 -- Letter Agreement dated August 22, 1996 between LCC
International, Inc. and Arno Penzias.*
10.47 -- [Intentionally omitted]
10.48 -- Form of Notice of Assignment of Subordinated Note Due 2000
from Telcom Ventures, L.L.C. and LCC International, Inc. to
MCI Telecommunications Corporation.*
</TABLE>
F-32
<PAGE> 70
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
------- -------------------
<C> <S> <C>
10.49 -- Form of Second Amendment to Subordinated Note Due 2000 by
Telcom Ventures, L.L.C. and LCC International, Inc. payable
to MCI Telecommunications Corporation.*
10.50 -- Form of Third Amendment to Subordinated Note Due 2000 by
Telcom Ventures, L.L.C. and LCC International, Inc. payable
to MCI Telecommunications Corporation.*
10.51 -- Amendment to Amended and Restated Securityholders Agreement
dated September 19, 1996 among Telcom Ventures, L.L.C., LCC,
Incorporated, TC Group, L.L.C., LCC, L.L.C. and MCI
Telecommunications Corporation.*
10.52 -- Series D Convertible Debenture Due March 27, 2001 by DCR
Communications, Inc. dated March 27, 1996.*
10.53 -- Series D Convertible Debenture Due May 10, 2001 by DCR
Communications, Inc. dated May 10, 1996.*
10.54 -- Form of Amended and Restated Credit Agreement dated as
September , 1996 among LCC International, Inc., LCC Design
Services, L.L.C., LCC Development Company, L.L.C., The
Lenders Signatory hereto and The Chase Manhattan Bank as
Administrative Agent.*
10.55 -- Form of $20 Million Revolving Credit Note of LCC,
International, Inc. to The Chase Manhattan Bank dated
September , 1996.*
10.56 -- Form of Subordination and Intercreditor Agreement dated as
of September , 1996 by and among The Chase Manhattan Bank,
as administrative agent, MCI Telecommunications Corporation
and LCC International, Inc.*
10.57 -- Asset Purchase Agreement, dated as of December 30, 1996,
between European Technology Partner AS and LCC International
AS***
10.58 -- First Amendment Agreement, dated as of December 30, 1996,
among LCC International, Inc., LCC Design Services, L.L.C.,
LCC Development Company, L.L.C., The Lenders Signatory
Thereto and The Chase Manhattan Bank as Administrative
Agent.****
10.59 -- Second Amendment to Subordinated Note Due 2000 and Amendment
to Registration Rights Agreement, dated October 23, 1997, by
and between the Company and MCI as to the Note amendment,
and among the Company, MCI and RF Investors as the
Registration Rights Agreement amendment.*****
10.60 -- Fourth Amendment to Subordinated Note Due 2000 and Amendment
to Registration Rights Agreement, dated October 23, 1997, by
and between the Company and MCI as to the Note amendment,
and among the Company, MCI and RF Investors as the
Registration Rights Agreement amendment.*****
10.61 -- Employment Agreement dated as of January 15, 1998 by and
between the Company and Geoffrey Carroll.******
10.62 -- Form of LCC International, Inc. 1996 Employee Stock Option
Plan Non-Incentive Stock Option Agreement for Geoffrey
Carroll.******
10.63 -- Second Amended and Restated Credit Agreement dated as of
December 15, 1997 among LCC International, Inc., LCC Europe
AS, LCC Design Services, L.L.C., LCC Development Company,
L.L.C., Microcell Management, Inc., The Lenders Signatory
Thereto and The Chase Manhattan Bank as Administrative
Agent.
</TABLE>
F-33
<PAGE> 71
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
------- -------------------
<C> <S> <C>
11 -- Calculation of Pro Forma Net Income (Loss) Per Share.
21 -- Subsidiaries of the Company.
23.1 -- Consent of KPMG Peat Marwick LLP.
27 -- Financial Data Schedule.
</TABLE>
- ---------------
* Incorporated by reference to the Exhibits on the Company's Registration
Statement on Form S-1 (Registration No. 333-6067)
** Incorporated by reference to the Exhibits to the Company's Registration
Statement on Form S-8 (File No. 333-17803) which was filed with the
Securities and Exchange Commission on December 13, 1996.
*** Incorporated by reference to the Exhibits to the Company's Current Report
on Form 8-K which was filed with the Securities and Exchange Commission
on January 14, 1997.
**** Incorporated by reference to the Exhibits to the Company's Annual Report
on Form 10-K which was filed with the Securities and Exchange Commission
on April 15, 1997.
***** Incorporated by reference to the Exhibits to the Company's Current Report
on Form 8-K which was filed with the Securities and Exchange Commission
on October 27, 1997.
****** Incorporated by reference to the Exhibits to the Company's Current Report
on Form 8-K which was filed with the Securities and Exchange Commission
on January 21, 1998.
+ Confidential treatment has been granted for certain portions of this
document. The copy filed as an exhibit omits the information subject to
the confidential treatment request.
++ Confidential treatment has been granted for certain portions of this
document. The copy filed as an exhibit omits the information subject to
the confidential treatment request.
++ (b) Financial Statement Schedules.
Schedule II -- Valuation and Qualifying Accounts
Schedules not listed above have been omitted because the information
required to be set forth therein is not applicable or is shown in the financial
statements or notes thereto.
(b) None.
(c) Exhibits to this Form 10-K are attached or incorporated by reference as
stated above.
(d) None.
F-34
<PAGE> 72
GLOSSARY OF TERMS
"A-block auction " -- An auction held by the FCC to award 30 MHz PCS
licenses for 51 MTAs. The A-block auction, held in conjunction with the B-block
auction, was concluded in March 1995, and licenses were awarded on June 23,
1995.
"alphanumeric " -- A message or other type of readout containing both
letters ("alphas") and numbers ("numerics"). In cellular, "alphanumeric memory
dial" is a special type of dial-from-memory option that displays both the name
of the individual and that individual's phone number on the cellular phone
handset. The name also can be recalled by using the letters on the phone keypad.
By contrast, standard memory dial recalls numbers from number-only locations.
"AMPS " -- Advanced Mobile Phone Service. The United States analog cellular
standard.
"analog " -- A method of storing, processing and transmitting information
through the continuous variation of a signal.
"antenna " -- A device for transmitting and/or receiving signals.
"B-block auction " -- An auction held by the FCC to award 30 MHz PCS
licenses for 51 MTAs. The B-block auction, held in conjunction with the A-block
auction, was concluded in March 1995, and licenses were awarded on June 23,
1995.
"base station " -- A central radio transmitter/receiver that maintains
communications with the mobile phone within a specified range.
"Broadband PCS " -- High frequency, next generation wireless services.
"BTA " -- Basic Trading Area. A service area designed by Rand McNally and
adopted by the FCC to promote the rapid deployment and ubiquitous coverage of
PCS and providers. There are 493 BTAs in the United States.
"C-block auction " -- An auction held by the FCC to award 30 MHz PCS
licenses for 493 BTAs to entrepreneurial businesses having gross revenues of
less than $125 million in each of the last two years and total assets of less
than $500 million. Bidding credits and installment payment options were granted
to small businesses having average gross revenues for the preceding three years
of less than $40 million. The C-block auction was concluded in May 1996.
Licenses were awarded in late 1996 and early 1997.
"CDMA " -- Code Division Multiple Access. A digital wireless transmission
technology for use in wireless telephone communications. CDMA is a spread
spectrum technology in which calls are assigned a pseudo random code to encode
digital bit streams. The coded signals are then transmitted over the air on a
frequency between the end user and a cell site, where they are processed by a
base station. CDMA allows more than one wireless user to simultaneously occupy a
single RF band.
"cell " -- The basic geographic area covered by a single
transmitter/receiver in a wireless phone system.
"cellular network " -- A telephone system based on a grid of "cells"
deployed primarily at 800 and 900 MHz. Each cell contains transmitters,
receivers and antennas, and is connected to switching gear and control
equipment.
"cell-splitting " -- Adding a cell to overlap coverage of an existing site,
which adds capacity to the area served by that existing site.
"channel " -- A single path, either RF or voice, for transmitting
electrical signals.
"D-block auction " -- An auction held by the FCC to award 10 MHz PCS
licenses for 493 BTAs. The D-block auction, held in conjunction with the E-block
and F-block auctions, was concluded on January 14, 1997.
"DCS " -- Digital Communications Service. A GSM-based system in the
1800/1900 band.
F-36
<PAGE> 73
"digital " -- A method of storing, processing and transmitting information
through the use of distinct electronic or optical pulses that represent the
binary digits 0 and 1. Digital transmission/switching technologies employ a
sequence of discrete, distinct pulses to represent information, as opposed to
the continuously variable analog signal.
"digital protocols " -- Methodologies that serve to manage the
communication for digital signal transmission. CDMA and TDMA are examples of
high level digital protocols.
"E-block auction " -- An auction held by the FCC to award 10 MHz PCS
licenses for 493 BTAs. The E-block auction, held in conjunction with the D-block
and F-block auctions, was concluded on January 14, 1997.
"ESMR " -- Enhanced Specialized Mobile Radio is a radio communications
system that employs digital technology with a multi-site configuration that
permits frequency reuse but used in the SMR frequencies, offering enhanced
dispatch services to traditional analog SMR users.
"ETACS " -- Enhanced Total Access Cellular System. The European analog
cellular standard.
"F-block auction " -- An auction held by the FCC to award 10 MHz PCS
licenses for 493 BTAs. The F-block auction, held in conjunction with the D-block
and E-block auctions, was concluded on January 14, 1997.
"FCC " -- Federal Communications Commission. The government agency
responsible for regulating telecommunications in the United States.
"frequency " -- The number of cycles per second, measured in hertz, of a
periodic oscillation or wave in radio propagation.
"Global Positioning System " -- A satellite-based network provided by the
U.S. government which allows the user thereof to pinpoint precisely his or her
location at any place in the world.
"GSM " -- Global System for Mobile Communications. A distributed open
networking architecture standard for digital wireless systems world-wide. GSM is
a TDMA technology which assigns calls into multiple time slots.
"hand-off " -- The act of transferring communication with a mobile unit
from one base station to another. A hand-off transfers a call from the current
base station to the new base station.
"hertz " -- A measurement of electromagnetic energy, equivalent to one
"wave" or cycle per second.
"iDEN " -- Integrated Dispatch Enhanced Network. iDEN is a technology and a
network solution for providing communications services in the SMR spectrum.
"INFLEXION " -- A technology for providing voice narrowband PCS developed
by Motorola.
"infrastructure equipment " -- Fixed infrastructure equipment consisting of
base stations, base station controllers, antennas, switches, management
information systems and other equipment making up the backbone of the wireless
communication system that receives, transmits and processes signals from and to
subscriber equipment and/or between wireless systems and the public switched
telephone network.
"IS-54 " -- The first U.S. Digital Cellular Standard, based on TDMA and
adopted by the CTIA in 1990.
"IS-136 " -- North American Interim Standard-digital TDMA system
specification.
"KHz " -- Kilohertz (one thousand hertz).
"LMDS " -- Local Multipoint Distribution System. A fixed broadband
point-to-multipoint system. Initially designed as an alternative multichannel
video programming service, LMDS has emerged as an alternative for offering local
exchange service, wireless telephony, data, internet access, video and other
broadband services.
"MHz " -- Megahertz (millions of hertz).
F-37
<PAGE> 74
"microcells " -- Cell sites with small coverage radius. Antenna heights are
generally low, being 40 feet in height or less and typically have a service area
of 1/4 to 2 miles.
"microcell site " -- comprised of a microcell base station and electrical
and transmission termination equipment. This equipment provides the radio
interface between the PCS network and the customer's handset, and differs from
the mini base station in its reduced physical dimensions and included integrated
antennas. These units are the size of a medium-sized suitcase, allowing mounting
on walls and poles.
"MTA " -- Major Trading Area. A PCS area designed by Rand McNally and
adopted by the FCC. There are 51 MTAs in the United States.
"MTSO " -- Mobile Telephone Switching Office. The central computer that
connects a wireless phone call to the public switching telephone network (PSTN).
The MTSO controls the entire system's operations, including monitoring calls,
billing and handoffs.
"Narrowband PCS " -- Identifier given by the FCC for PCS spectrum in the
900 MHz frequency range. 50/50 KHz (paired), 50/12.5 KHz (paired) and 50 KHz
(unpaired) were recently auctioned by the FCC and purchased by companies such as
PageNet, Inc., Mtel, and AT&T Corporation. Narrowband PCS is expected to provide
advanced data and voice communications for devices traditionally known as radio
pagers, including acknowledgment and two-way paging capability.
"network equipment " -- The fixed infrastructure consisting of base
stations, base station controllers, mobile switching centers and related
information processing control points that manages communications between the
mobile unit and the public switched telephone network.
"PCS " -- Personal Communications Services. FCC terminology describing
intelligent, digital wireless, personal two-way communications systems at the
1900 MHz band.
"PCS 1900 " -- 1900 MHz GSM-based digital cellular radio technology.
"Public Switched Telephony Network " -- The wireline telephone network.
"REFLEX(TM) " -- Two way narrowband PCS protocol developed by Motorola.
"RF " -- Radio frequency. Frequencies of the electromagnetic spectrum that
are associated with radio wave propagation.
"SMR " -- Specialized Mobile Radio, referring to systems that serve
non-public special mobile communication markets (for example, taxi cabs). Recent
FCC rulings have permitted these operators to offer cellular-like services to
the public.
"switch " -- A central facility capable of routing calls from one point to
another. Usually a point of connection to the PSTN.
"TDMA " -- Time Division Multiple Access. A digital wireless transmission
technology that converts analog voice signals into digital data and puts more
than one voice channel on a single RF channel by separating the users in time.
"UNIX " -- A multiuser, multitasking operating system.
"uplink " -- The radio path from a handset or mobile user to the cell site.
"wireless " -- A radio-based system allowing transmission of telephone
and/or data signals through the air without a physical connection, such as a
metal wire or fiber optic cable.
"wireless local loop " -- A system that eliminates the need for a wire loop
connecting users to the public switched telephone network, which is used in
conventional wired telephone systems, by transmitting voice messages over radio
waves for the "last mile" connection between the location of the customer's
telephone and a base station connected to the network equipment.
F-38
<PAGE> 75
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized as of the th day
of March, 1998.
LLC INTERNATIONAL, INC.
By: /s/ RICHARD HOZIK
------------------------------------
Richard Hozik
Senior Vice President, Treasurer
and Chief Financial Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities indicated and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<C> <S> <C>
/s/ GEOFFREY S. CARROLL President and Chief March 30, 1998
- --------------------------------------------------- Executive Officer
Geoffrey S. Carroll (Principal Executive
Officer) and Director
/s/ RICHARD HOZIK Senior Vice President, March 30, 1998
- --------------------------------------------------- Treasurer and Chief
Richard Hozik Financial Officer
(Principal Financial
Officer)
/s/ RAJENDRA SINGH Chairperson of the Board of March 30, 1998
- --------------------------------------------------- Directors
Rajendra Singh
/s/ NEERA SINGH Director March 30, 1998
- ---------------------------------------------------
Neera Singh
/s/ MARK D. EIN Director March 30, 1998
- ---------------------------------------------------
Mark D. Ein
/s/ ARNO A. PENZIAS Director March 30, 1998
- ---------------------------------------------------
Arno A. Penzias
</TABLE>
F-39
<PAGE> 76
SCHEDULE II
VALUATION AND QUALIFYING ACCOUNTS
(IN THOUSANDS)
<TABLE>
<CAPTION>
COLUMN C
-----------------------------------
COLUMN A COLUMN B ADDITIONS COLUMN D COLUMN E
- -------------------------------------- ------------------- ----------------------------------- ------------- -------------
BALANCE AT CHARGED TO CHARGES TO BALANCE AT
DESCRIPTION BEGINNING OF PERIOD COSTS AND EXPENSES OTHER ACCOUNTS DEDUCTIONS(1) END OF PERIOD
- -------------------------------------- ------------------- ------------------ -------------- ------------- -------------
<S> <C> <C> <C> <C> <C>
Year ended December 31, 1995
Allowance for doubtful accounts..... $ 2,796 $ 622 $-- $ 287 $ 3,131
Year ended December 31, 1996
Allowance for doubtful accounts..... 3,131 15,942 -- 1,131 17,942
Year ended December 31, 1997
Allowance for doubtful accounts..... 17,942 4,115 -- 6,631 15,426
</TABLE>
- ---------------
(1) Deduction for write-off of receivables to allowance account.
F-40
<PAGE> 77
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- ----------- -------------------
<C> <C> <S>
3.1 -- Restated Certificate of Incorporation of the Company.*
3.2 -- Amended and Restated Bylaws of the Company.*
4.1 -- Form of Class A and Class B Common Stock certificates.*
4.2 -- LCC International, Inc. 1996 Directors Stock Option Plan.*
4.3 -- LCC International, Inc. 1996 Employee Stock Option Plan.*
4.4 -- LCC International, Inc. 1996 Employee Stock Purchase Plan.*
4.5 -- Amendment No. 1 to LCC International, Inc. Employee Stock
Purchase Plan.**
10.1 -- [Intentionally omitted]
10.2 -- [Intentionally omitted]
10.3 -- [Intentionally omitted]
10.4 -- [Intentionally omitted]
10.5 -- 1994 LCC, L.L.C. Incentive Compensation Plan.*
10.6 -- [Intentionally Omitted]
10.7 -- [Intentionally Omitted]
10.8 -- Subordinated Note due 2000 by Telcom Ventures, L.L.C.
payable to MCI Telecommunications Corporation dated June 28,
1994.*
10.9 -- Subordinated Note due 2000 by LCC, L.L.C. payable to MCI
Telecommunications Corporation dated June 28, 1994.*
+10.10 -- Agreement dated November 15, 1994 by and between LCC, L.L.C.
and Pacific Bell Mobile Services.*
++10.11 -- Amended and Restated Services Agreement, dated as of October
1, 1996, by and between TSI, a division of LCC
International, Inc., and Nextel Communications, Inc.****
++10.12 -- Amended and Restated Software License Agreement, dated as of
October 1, 1996 by and between LCC, a division of LCC
International, Inc., and Nextel Communications, Inc.****
10.13 -- Amended and Restated Shareholders' Rights Agreement dated
February , 1996 between NextWave Telecom Inc. and LCC,
L.L.C.*
10.14 -- Letter Agreement dated March , 1996 between NextWave
Telecom, Inc. and LCC, L.L.C.*
+10.15 -- Letter Agreement dated March 12, 1996 between NextWave
Telecom, Inc. and LCC, L.L.C.*
10.16 -- Subscription Agreement dated March , 1996 between NextWave
Telecom, Inc. and LCC, L.L.C.*
10.17 -- [Intentionally omitted]
10.18 -- Convertible Loan and Investment Agreement dated March 20,
1996 by and between LCC, L.L.C. and DCR Communications,
Inc.*
+10.19 -- Letter Agreement dated March 20, 1996 by and between LCC,
L.L.C. and DCR Communications, Inc.*
10.20 -- Agreement dated May 17, 1996, between LCC, L.L.C. and
West*Park Associates Limited Partnership for office space at
7925 Jones Branch Drive, McLean, Virginia, 22102.*
10.21 -- Agreement dated May 17, 1996, between LCC, L.L.C. and
West*Park Associates Limited Partnership for office space at
7927 Jones Branch Drive, McLean, Virginia, 22102.*
10.22 -- Letter Agreement dated May 31, 1996 between LCC
International, Inc. and Arno Penzias.*
10.23 -- [Intentionally omitted]
10.24 -- Security Agreement dated June 14, 1996 among LCC, L.L.C.,
LCC Design Services, L.L.C. and LCC Development Company,
L.L.C., in favor of The Chase Manhattan Bank (National
Association).*
</TABLE>
F-41
<PAGE> 78
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- ----------- -------------------
<C> <C> <S>
10.25 -- Intellectual Property Security Agreement dated June 14, 1996
by LCC, L.L.C. in favor of The Chase Manhattan Bank
(National Association).*
10.26 -- Pledge Agreement dated June 14, 1996 among LCC, L.L.C., LCC
Design Services, L.L.C. and LCC Development Company, L.L.C.,
in favor of The Chase Manhattan Bank (National
Association).*
10.27 -- Intercompany Agreement dated as of August 27, 1996 among
Telcom Ventures, L.L.C., LCC, L.L.C., LCC International,
Inc., Cherrywood Holdings, Inc., Rajendra Singh, Neera
Singh, certain trusts for the benefit of members of the
Singh family, Carlyle-LCC Investors I, L.P., Carlyle-LCC
Investors II, L.P., Carlyle-LCC Investors III, L.P.,
Carlyle-LCC IV (E), L.P., MDLCC, L.L.C. and TC Group,
L.L.C.*
10.28 -- Registration Rights Agreement dated July 25, 1996 among LCC
International, Inc., RF Investors, L.L.C. and MCI
Telecommunications Corporation.*
10.29 -- Form of Indemnity Agreement between LCC International, Inc.
and each of Rajendra Singh, Neera Singh, Piyush Sodha, Mark
D. Ein, Arno A. Penzias, J. Michael Bonin, Kathryn M.
Condello, Peter A. Deliso, Richard Hozik, Frank F.
Navarrete, Donald R. Rose, Gerard L. Vincent and Louis R.
Olsen.*
10.30 -- Overhead and Administrative Services Agreement dated August
27, 1996 between LCC International, Inc. and Telcom
Ventures, L.L.C.*
10.31 -- Agreement of Merger dated September 15, 1996 between LCC,
L.L.C. and LCC International, Inc.*
10.32 -- Form of LCC International, Inc. Directors Stock Option Plan
stock option agreement for directors who will receive Class
B Common Stock.*
10.33 -- Amended and Restated Securityholders Agreement dated July
25, 1996 among Telcom Ventures, L.L.C., LCC, Incorporated,
TC Group, L.L.C., LCC, L.L.C. and MCI Telecommunications
Corporation.*
10.34 -- Amendment to Subordinated Note due 2000 by Telcom Ventures,
L.L.C. payable to MCI Telecommunications Corporation dated
July 25, 1996.*
10.35 -- Amendment to Subordinated Note due 2000 by LCC, L.L.C.
payable to MCI Telecommunications Corporation dated July 25,
1996.*
10.36 -- Form of Promissory Note by Telcom Ventures, L.L.C. to LCC
International, Inc.*
10.37 -- Form of Stock Option Agreement between LCC International,
Inc. and the Carlyle Option Designees.*
10.38 -- Form of LCC International, Inc. 1996 Employee Stock Option
Plan incentive stock option agreement.*
10.39 -- Form of LCC International, Inc. 1996 Employee Stock Option
Plan non-incentive stock option agreement.*
10.40 -- Form of LCC International, Inc. 1996 Employee Stock Option
Plan non-incentive stock option agreement (for employees who
had been eligible to participate in the LCC, L.L.C. 1994
Phantom Membership Plan or the LCC, L.L.C. 1996 Employee
Option Plan).*
10.41 -- Form of LCC International, Inc. Directors Stock Option Plan
stock option agreement for directors who will receive Class
A Common Stock (other than Mark D. Ein).*
10.42 -- Form of LCC International, Inc. Directors Stock Option Plan
stock option agreement for Mark D. Ein.*
10.43 -- Form of Phantom Membership Plan Exchange Agreement.*
10.44 -- Revolving Credit Note dated June 14, 1996 by LCC, L.L.C. to
The Chase Manhattan Bank (National Association) in the
amount of $12,500,000.*
10.45 -- Term Note dated June 14, 1996 by LCC, L.L.C. to The Chase
Manhattan Bank (National Association) in the amount of
$7,500,000.*
10.46 -- Letter Agreement dated August 22, 1996 between LCC
International, Inc. and Arno Penzias.*
10.47 -- [Intentionally omitted]
10.48 -- Form of Notice of Assignment of Subordinated Note Due 2000
from Telcom Ventures, L.L.C. and LCC International, Inc. to
MCI Telecommunications Corporation.*
</TABLE>
F-42
<PAGE> 79
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- ----------- -------------------
<C> <C> <S>
10.49 -- Form of Second Amendment to Subordinated Note Due 2000 by
Telcom Ventures, L.L.C. and LCC International, Inc. payable
to MCI Telecommunications Corporation.*
10.50 -- Form of Third Amendment to Subordinated Note Due 2000 by
Telcom Ventures, L.L.C. and LCC International, Inc. payable
to MCI Telecommunications Corporation.*
10.51 -- Amendment to Amended and Restated Securityholders Agreement
dated September 19, 1996 among Telcom Ventures, L.L.C., LCC,
Incorporated, TC Group, L.L.C., LCC, L.L.C. and MCI
Telecommunications Corporation.*
10.52 -- Series D Convertible Debenture Due March 27, 2001 by DCR
Communications, Inc. dated March 27, 1996.*
10.53 -- Series D Convertible Debenture Due May 10, 2001 by DCR
Communications, Inc. dated May 10, 1996.*
10.54 -- Form of Amended and Restated Credit Agreement dated as
September , 1996 among LCC International, Inc., LCC Design
Services, L.L.C., LCC Development Company, L.L.C., The
Lenders Signatory hereto and The Chase Manhattan Bank as
Administrative Agent.*
10.55 -- Form of $20 Million Revolving Credit Note of LCC,
International, Inc. to The Chase Manhattan Bank dated
September , 1996.*
10.56 -- Form of Subordination and Intercreditor Agreement dated as
of September , 1996 by and among The Chase Manhattan Bank,
as administrative agent, MCI Telecommunications Corporation
and LCC International, Inc.*
10.57 -- Asset Purchase Agreement, dated as of December 30, 1996,
between European Technology Partner AS and LCC International
AS.***
10.58 -- First Amendment Agreement, dated as of December 30, 1996,
among LCC International, Inc., LCC Design Services, L.L.C.,
LCC Development Company L.L.C., The Lenders Signatory
Thereto and The Chase Manhattan Bank as Administrative
Agent.****
10.59 -- Second Amendment to Subordinated Note Due 2000 and Amendment
to Registration Rights Agreement, dated October 23, 1997, by
and between the Company and MCI as to the Note amendment,
and among the Company, MCI and RF Investors as the
Registration Rights Agreement amendment.*****
10.60 -- Fourth Amendment to Subordinated Note Due 2000 and Amendment
to Registration Rights Agreement, dated October 23, 1997, by
and between the Company and MCI as to the Note amendment,
and among the Company, MCI and RF Investors as the
Registration Rights Agreement amendment.*****
10.61 -- Employment Agreement dated as of January 15, 1998 by and
between the Company and Geoffrey Carroll.******
10.62 -- Form of LCC International, Inc. 1996 Employee Stock Option
Plan Non-Incentive Stock Option Agreement for Geoffrey
Carroll.******
10.63 -- Second Amended and Restated Credit Agreement dated as of
December 15, 1997 among LCC International, Inc., LCC Europe
AS, LCC Design Services, L.L.C., LCC Development Company,
L.L.C., Microcell Management, Inc., The Lenders Signatory
Thereto and The Chase Manhattan Bank as Administrative
Agent.
11 -- Calculation of Pro Forma Net Income (Loss) Per Share.
21 -- Subsidiaries of the Company.
23.1 -- Consent of KPMG Peat Marwick LLP.
27 -- Financial Data Schedule.
</TABLE>
- ---------------
* Incorporated by reference to the Exhibits on the Company's Registration
Statement on Form S-1 (Registration No. 333-6067)
** Incorporated by reference to the Exhibits to the Company's Registration
Statement on Form S-8 (File No. 333-17803) which was filed with the
Securities and Exchange Commission on December 13, 1996.
F-43
<PAGE> 80
*** Incorporated by reference to the Exhibits to the Company's Current Report
on Form 8-K which was filed with the Securities and Exchange Commission
on January 14, 1997.
**** Incorporated by reference to the Exhibits to the Company's Annual Report
on Form 10-K which was filed with the Securities and Exchange Commission
on April 15, 1997.
***** Incorporated by reference to the Exhibits to the Company's Current Report
on Form 8-K which was filed with the Securities and Exchange Commission
on October 27, 1997.
****** Incorporated by reference to the Exhibits to the Company's Current Report
on Form 8-K which was filed with the Securities and Exchange Commission
on January 21, 1998.
+ Confidential treatment has been granted for certain portions of this
document. The copy filed as an exhibit omits the information subject to
the confidential treatment request.
++ Confidential treatment has been granted for certain portions of this
document. The copy filed as an exhibit omits the information subject to
the confidential treatment request.
F-44
<PAGE> 1
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of December 15, 1997
among
LCC INTERNATIONAL, INC.
LCC EUROPE AS
LCC DESIGN SERVICES, L.L.C.
LCC DEVELOPMENT COMPANY, L.L.C.
MICROCELL MANAGEMENT, INC.
THE LENDERS SIGNATORY HERETO
and
THE CHASE MANHATTAN BANK
as Administrative Agent
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE 1. DEFINITIONS; ACCOUNTING TERMS ............................................................. 2
Section 1.01. Definitions ..................................................................... 2
Section 1.02. Accounting Terms ................................................................ 23
ARTICLE 2. THE CREDIT ................................................................................ 23
Section 2.01. Loans ........................................................................... 23
Section 2.02. The Notes ....................................................................... 24
Section 2.03. Purpose ......................................................................... 24
Section 2.04. Borrowing Procedures ............................................................ 24
Section 2.05. Optional Prepayments and Conversions ............................................ 25
Section 2.06. Interest Periods; Renewals ...................................................... 25
Section 2.07. Changes of Commitments .......................................................... 26
Section 2.08. Certain Notices ................................................................. 26
Section 2.09. Minimum Amounts ................................................................. 26
Section 2.10. Interest ........................................................................ 27
Section 2.11. Fees ............................................................................ 27
Section 2.12. Payments Generally .............................................................. 28
ARTICLE 3. THE LETTERS OF CREDIT ..................................................................... 28
Section 3.01. Letters of Credit ............................................................... 28
Section 3.02. Purposes ........................................................................ 29
Section 3.03. Procedures for Issuance of Letters of Credit .................................... 29
Section 3.04. Participating Interests ......................................................... 29
Section 3.05. Payments ........................................................................ 30
Section 3.06. Further Assurances .............................................................. 31
Section 3.07. Obligations Absolute ............................................................ 31
Section 3.08. Cash Collateral Account ......................................................... 32
Section 3.09. Letter of Credit Fees ........................................................... 32
ARTICLE 4. YIELD PROTECTION; ILLEGALITY; ETC. ........................................................ 33
Section 4.01. Additional Costs ................................................................ 33
Section 4.02. Limitation on Fixed Rate Loans .................................................. 34
Section 4.03. Illegality ...................................................................... 35
Section 4.04. Certain Conversions Pursuant to Sections 4.01 and 4.03 .......................... 35
Section 4.05. Certain Compensation ............................................................ 36
Section 4.06. Taxes ........................................................................... 37
ARTICLE 5. CONDITIONS PRECEDENT ...................................................................... 38
Section 5.01. Documentary Conditions Precedent ................................................ 38
Section 5.02. Additional Conditions Precedent ................................................. 40
Section 5.03. Deemed Representations .......................................................... 40
ARTICLE 6. REPRESENTATIONS AND WARRANTIES ............................................................ 41
Section 6.01. Organization, Good Standing and Due Qualification. .............................. 41
Section 6.02. Power and Authority; No Conflicts ............................................... 41
Section 6.03. Legally Enforceable Agreements .................................................. 41
Section 6.04. Litigation ...................................................................... 41
Section 6.05. Financial Statements ............................................................ 42
Section 6.06. Ownership and Liens ............................................................. 43
Section 6.07. Taxes ........................................................................... 43
Section 6.08. ERISA ........................................................................... 43
Section 6.09. Subsidiaries and Affiliates ..................................................... 44
Section 6.10. Credit Arrangements ............................................................. 44
Section 6.11. Material Contracts .............................................................. 44
Section 6.12. Proprietary Rights .............................................................. 45
</TABLE>
-i-
<PAGE> 3
<TABLE>
<CAPTION>
<S> <C> <C>
Section 6.13. Hazardous Materials ............................................................. 45
Section 6.14. No Default on Outstanding Judgments or Orders ................................... 46
Section 6.15. No Defaults on Other Agreements ................................................. 46
Section 6.16. Labor Disputes and Acts of God .................................................. 46
Section 6.17. Governmental Regulation ......................................................... 46
Section 6.18. No Forfeiture ................................................................... 46
Section 6.19. Solvency ........................................................................ 46
Section 6.20. MCI Note Purchase Documents ..................................................... 47
Section 6.21. NextWave Investment Documents: DCR Investment Documents ........................ 48
Section 6.22. ETP Acquisition Documents ....................................................... 48
Section 6.23. Security Documents .............................................................. 48
Section 6.24. Senior Debt ..................................................................... 48
ARTICLE 7. AFFIRMATIVE COVENANTS ..................................................................... 49
Section 7.01. Maintenance of Existence ........................................................ 49
Section 7.02. Conduct of Business ............................................................. 49
Section 7.03. Maintenance of Properties ....................................................... 49
Section 7.04. Maintenance of Records .......................................................... 49
Section 7.05. Maintenance of Insurance ........................................................ 49
Section 7.06. Compliance with Laws ............................................................ 50
Section 7.07. Right of Inspection ............................................................. 50
Section 7.08. Reporting Requirements .......................................................... 50
Section 7.09. Additional Guarantors ........................................................... 54
Section 7.10. After Acquired Real Property .................................................... 54
Section 7.11. Certain Collateral Issues ....................................................... 54
ARTICLE 8. NEGATIVE COVENANTS ........................................................................ 55
Section 8.01. Debt ............................................................................ 55
Section 8.02. Guaranties ...................................................................... 56
Section 8.03. Liens ........................................................................... 56
Section 8.04. Leases .......................................................................... 57
Section 8.05. Sale and Leaseback .............................................................. 58
Section 8.06. Investments ..................................................................... 58
Section 8.07. Restricted Payments ............................................................. 58
Section 8.08. Sale of Assets .................................................................. 59
Section 8.09. Transactions with Affiliates .................................................... 59
Section 8.10. Mergers ......................................................................... 59
Section 8.11. Acquisitions .................................................................... 60
Section 8.12. No Activities Leading to Forfeiture ............................................. 60
Section 8.13. Capital Expenditures ............................................................ 60
Section 8.14. Amendments or Waivers of Certain Documents ...................................... 60
Section 8.15. Restrictions .................................................................... 60
ARTICLE 9. FINANCIAL COVENANTS ....................................................................... 61
Section 9.01. Fixed Charge Coverage Ratio ..................................................... 61
Section 9.02. Minimum Net Worth ............................................................... 61
Section 9.03. Current Ratio ................................................................... 61
Section 9.04. Cash Flow Leverage Ratio ........................................................ 61
ARTICLE 10. EVENTS OF DEFAULT ........................................................................ 61
Section 10.01. Events of Default .............................................................. 61
Section 10.02. Remedies ....................................................................... 64
ARTICLE 11. UNCONDITIONAL GUARANTY ................................................................... 64
Section 11.01. Guarantied Obligations ......................................................... 64
Section 11.02. Performance Under This Agreement ............................................... 65
Section 11.03. Waivers ........................................................................ 65
Section 11.04. Releases ....................................................................... 66
Section 11.05. Marshaling ..................................................................... 67
Section 11.06. Liability ...................................................................... 67
Section 11.07. Unconditional Obligation ....................................................... 67
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C>
Section 11.08. Election to Perform Obligations ................................................ 68
Section 11.09. No Election .................................................................... 68
Section 11.10. Severability ................................................................... 68
Section 11.11. Other Enforcement Rights ....................................................... 68
Section 11.12. Delay or Omission; No Waiver ................................................... 69
Section 11.13. Restoration of Rights and Remedies ............................................. 69
Section 11.14. Cumulative Remedies ............................................................ 69
Section 11.15. Survival ....................................................................... 69
Section 11.16. No Setoff, Counterclaim or Withholding: Gross-Up .............................. 69
Section 11.17. Payment in Applicable Currency ................................................. 69
ARTICLE 12. THE ADMINISTRATIVE AGENT ................................................................. 70
Section 12.01. Appointment, Powers and Immunities of Administrative Agent ..................... 70
Section 12.02. Reliance by Administrative Agent ............................................... 70
Section 12.03. Defaults ....................................................................... 71
Section 12.04. Rights of Administrative Agent as a Lender ..................................... 71
Section 12.05. Indemnification of Administrative Agent ........................................ 71
Section 12.06. Documents ...................................................................... 72
Section 12.07. Non-Reliance on Administrative Agent and Other Lenders ......................... 72
Section 12.08. Failure of Administrative Agent to Act ......................................... 73
Section 12.09. Resignation or Removal of Administrative Agent ................................. 73
Section 12.10. Amendments Concerning Agency Function .......................................... 73
Section 12.11. Liability of Administrative Agent .............................................. 73
Section 12.12. Transfer of Agency Function .................................................... 74
Section 12.13. Non-Receipt of Funds by the Administrative Agent ............................... 74
Section 12.14. Withholding Taxes .............................................................. 74
Section 12.15. Several Obligations and Rights of Lenders ...................................... 75
Section 12.16. Pro Rata Treatment of Loans, Etc ............................................... 75
Section 12.17. Sharing of Payments Among Lenders .............................................. 75
Section 12.18. Security Documents ............................................................. 76
Section 12.19. Collateral ..................................................................... 76
Section 12.20. Amendment of Article 12 ........................................................ 76
ARTICLE 13. MISCELLANEOUS ............................................................................ 77
Section 13.01. Amendments and Waivers ......................................................... 77
Section 13.02. Usury .......................................................................... 77
Section 13.03. Expenses ....................................................................... 77
Section 13.04. Survival ....................................................................... 78
Section 13.05. Assignment; Participations ..................................................... 78
Section 13.06. Notices ........................................................................ 79
Section 13.07. Setoff ......................................................................... 79
Section 13.08. JURISDICTION: IMMUNITIES ...................................................... 80
Section 13.09. Table of Contents : Headings ................................................... 81
Section 13.10. Severability ................................................................... 81
Section 13.11. Counterparts ................................................................... 81
Section 13.12. Integration .................................................................... 81
Section 13.13. GOVERNING LAW .................................................................. 81
Section 13.14. Confidentiality ................................................................ 81
Section 13.15. Treatment of Certain Information ............................................... 82
Section 13.16. Reaffirmation .................................................................. 82
Section 13.17. Revised Schedules .............................................................. 83
Section 13.19. Refund of Taxes ................................................................ 83
Section 13.18. Judgment Currency .............................................................. 83
</TABLE>
EXHIBITS
Exhibit A1 Revolving Credit Note
Exhibit A2 Swingline Note
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Exhibit B Form of Compliance Certificate
Exhibit C1 Opinion of Counsel to the LCC
Consolidated Entities
Exhibit C2 Opinion of Norwegian Counsel to the
Subsidiary Borrower
SCHEDULES
Schedule 6.04 Litigation
Schedule 6.07 Taxes
Schedule 6.09 Subsidiaries and Affiliates
Schedule 6.10 Credit Arrangements
Schedule 6.11 Material Contracts
Schedule 6.12 Proprietary Rights
Schedule A Schedule A to the Security Agreement
Schedule B Schedule A to the Intellectual Property Security Agreement
Schedule C Schedule A to the Pledge Agreement
-iv-
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of December 15, 1997
among LCC INTERNATIONAL, INC., a corporation organized under the laws of
Delaware and successor by merger to Old LCC (including its successors and
assigns, the "Borrower"); EUROPEAN TECHNOLOGY PARTNER AS, a limited liability
company organized under the laws of Norway (including its successors and
assigns, the "Subsidiary Borrower"); LCC DESIGN SERVICES, L.L.C., a limited
liability company organized under the laws of Delaware, LCC DEVELOPMENT COMPANY,
L.L.C., a limited liability company organized under the laws of Delaware, and
MICROCELL MANAGEMENT, INC., a corporation organized under the laws of Delaware
(the "New Subsidiary Guarantor") (each of the foregoing entities, together with
each of the Subsidiaries of the Borrower which shall become a party hereto as a
"Subsidiary Guarantor" from time to time in accordance with Section 7.09 hereof,
are referred to herein collectively as the "Subsidiary Guarantors" and, together
with the Borrower and the Subsidiary Borrower, the "Obligors"); each of the
financial institutions which is a signatory hereto as a "Lender" or which shall
become a party hereto as a "Lender" from time to time (individually a "Lender"
and collectively the "Lenders"); and THE CHASE MANHATTAN BANK, a bank organized
under the laws of New York and successor by merger to The Chase Manhattan Bank
(National Association), as administrative agent for the Lenders (in such
capacity, together with its successors in such capacity, the "Administrative
Agent").
WHEREAS, the Borrower, LCC Design Services, L.L.C., LCC Development
Company, L.L.C., the Lenders and the Administrative Agent have entered into that
certain Amended and Restated Credit Agreement dated as of September 30, 1996 (as
amended by that certain First Amendment Agreement dated as of December 30, 1996,
the "Existing Credit Agreement"), pursuant to which the Lenders have extended
credit to the Borrower in the aggregate amount of $20,000,000 evidenced by the
Revolving Credit Notes issued by the Borrower and the Letters of Credit issued
thereunder and guarantied by LCC Design Services, L.L.C. and LCC Development
Company, L.L.C.;
WHEREAS, the Borrower, the Subsidiary Borrower, the Subsidiary Guarantors,
the Lenders and the Administrative Agent have entered into this Agreement to
amend and restate the Existing Credit Agreement to provide for, among other
things, the extension of credit in Norwegian Krone in an aggregate amount of
$2,500,000 to the Subsidiary Borrower, the addition of the New Subsidiary
Guarantor as a "Subsidiary Guarantor" thereunder and modifications of certain
covenants and definitions contained therein; and
WHEREAS, the Obligors have requested that the Lenders make loans to the
Borrower and the Subsidiary Borrower, the repayment of which will be guarantied
by the Subsidiary Guarantors; each Obligor will receive direct economic and
financial benefits from the Debt incurred under this Agreement and the other
Facility
<PAGE> 7
Documents and the incurrence of such Debt is in the best interest of such
Obligor; and each Obligor acknowledges that the Lenders would not provide the
financing hereunder but for the joint and several obligations of such Obligor.
ARTICLE 1. DEFINITIONS; ACCOUNTING TERMS.
Section 1.01. Definitions. As used in this Agreement the following terms
have the following meanings (terms defined in the singular to have a correlative
meaning when used in the plural and vice versa):
"Acceptable Acquisition" means any Acquisition which meets all of the
following conditions: (a) the aggregate consideration paid for such Acquisition
and for all prior Acquisitions during the same Fiscal Year does not exceed
$6,000,000; (b) such Acquisition relates to the Business and, if required by the
organizational documents of the Person making such Acquisition, has been
approved in good faith by the Board of Directors or the Members Committee of
such Person; (c) no Default or Event of Default exists or would exist after
giving effect to such Acquisition; and (d) after reviewing historical financial
statements of the business being acquired and considering the pro forma position
of the LCC Consolidated Entities subsequent to such Acquisition, the Borrower
believes in good faith that the LCC Consolidated Entities will continue to be in
compliance with the financial covenants contained in Article 9 on a pro forma
basis.
"Acceptable Investment" means any Investment which meets all of the
following conditions: (a) the aggregate consideration paid for such Investment
and for all prior Investments during the same Fiscal Year does not exceed
$1,000,000 (exclusive of Investments otherwise permitted under Section 8.06);
(b) such Investment relates to the Business and, if required by the
organizational documents of the Person making such Investment, has been approved
in good faith by the Board of Directors or the Members Committee of such Person;
(c) no Default or Event of Default exists or would exist after giving effect to
such Investment; and (d) after reviewing historical financial statements of the
business being invested in and considering the pro forma position of the LCC
Consolidated Entities subsequent to such Investment, the Borrower believes in
good faith that the LCC Consolidated Entities will continue to be in compliance
with the financial covenants contained in Article 9 on a pro forma basis.
"Acquisition" means any transaction pursuant to which any LCC Consolidated
Entity (a) acquires a majority of the voting Capital Stock (or warrants, options
or other rights to acquire such Capital Stock) of any Person, (b) causes or
permits any Person to be merged into such LCC Consolidated Entity, in any case
pursuant to a merger, purchase of assets or any reorganization providing for the
delivery or issuance to the holders of such Person's then outstanding Capital
Stock, in exchange for such Capital Stock, of cash or Capital Stock of any LCC
Consolidated Entity, or a combination
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<PAGE> 8
thereof, or (c) purchases all or substantially all of the business or assets of
any Person.
"Additional Costs" shall have the meaning assigned to such term in Section
4.01.
"Administrative Agent" shall have the meaning assigned to such term in the
introductory paragraph hereof.
"Affiliate" means any Person: (a) which directly or indirectly controls, or
is controlled by, or is under common control with, any LCC Consolidated Entity;
(b) which directly or indirectly beneficially owns or holds 20% or more of any
class of voting Capital Stock of any LCC Consolidated Entity; (c) 20% or more of
the voting Capital Stock of which is directly or indirectly beneficially owned
or held by any LCC Consolidated Entity; or (d) which is a partnership in which
any LCC Consolidated Entity is a general partner. The term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting Capital Stock, by contract, or otherwise.
"Agreement" means this Second Amended and Restated Credit Agreement, as
amended or supplemented from time to time. References to Articles, Sections,
Exhibits, Schedules and the like refer to the Articles, Sections, Exhibits,
Schedules and the like of this Agreement unless otherwise indicated.
"Assigned Agreements" shall have the meaning assigned to such term in the
Security Agreement.
"Assumption Agreements" means the Assumption Agreements in the form of
EXHIBIT J to the Existing Credit Agreement delivered under Section 7.09.
"Banking Day" means any day on which commercial banks are not authorized or
required to close in New York, New York and, whenever such day relates to a
Fixed Rate Loan or notice with respect to any Fixed Rate Loan, a day on which
dealings in Dollar or Norwegian Krone deposits are also carried out in the
London or Norwegian interbank market.
"Borrower" shall have the meaning assigned to such term in the introductory
paragraph hereof.
"Business" means the business, anywhere in the world, of (i) wireless
telecommunications network planning, design, engineering and consulting
(including, without limitation, construction management services, site
acquisition services and system deployment services), (ii) engineering advice
and management services relating to the acquisition of wireless
telecommunications systems, (iii) developing,
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<PAGE> 9
providing, distributing and marketing of specialized cellular and other wireless
telecommunications software for photogrammetry, planning, system management,
optimization, fraud control, billing, customer information and other functions,
(iv) developing, producing, distributing and marketing of wireless
telecommunications measurement and evaluation hardware, (v) acquiring,
constructing and operating monopole towers for supporting cell sites and base
stations in a wireless network and (vi) any other business functionally
interrelated with or incidental to any of the foregoing.
"Capital Expenditures" means, with respect to any Person, any expenditure
of such Person to acquire, construct or lease fixed or capital assets or
additions to equipment (including renewals, improvements, capitalized repairs,
replacements and incurrence of obligations under Capital Leases) which has been
or should be capitalized on the books of such Person in accordance with GAAP
but, in any event, excluding all amounts expended with respect to the design,
development, introduction and marketing of new products and services or
improvements to existing products and services (including, without limitation,
software development costs).
"Capital Lease" means any lease which has been or should be capitalized on
the books of the lessee in accordance with GAAP.
"Capital Stock" means (a) any shares, interests, participations or other
equivalents of or interests in (however designated) corporate stock, including,
without limitation, shares of preferred or preference stock, (b) any limited
liability company interests, membership interests or other equivalent interests
or participations (however designated) in any limited liability company and (c)
any general or limited partnership interests or other interests or
participations in any partnership, joint venture, trust or similar entity, in
each case whether or not evidenced by stock certificates or similar instruments.
"Cash Flow Leverage Ratio" means, at any date of determination thereof, the
ratio of (a) Consolidated Debt to (b) Consolidated EBITDA for the four most
recently ended Fiscal Quarters.
"'class' of Loans" shall have the meaning assigned to such term in Section
2.01 (c).
"Closing Date" means the date this Agreement has been executed by the
Borrower, the Subsidiary Borrower, the Subsidiary Guarantors, the Lenders and
the Administrative Agent.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
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<PAGE> 10
"Collateral" means all of any Obligor's right, title and interest in and to
Property in which such Obligor has granted a Lien to the Administrative Agent
under any Facility Document.
"Commitments" means the Revolving Credit Commitments and the Swingline Loan
Commitments.
"Compliance Certificate" means the compliance certificate in the form of
EXHIBIT B to be delivered by the Borrower under the terms of this Agreement.
"Consolidated Capital Expenditures" means, with respect to any fiscal
period, the aggregate amount of Capital Expenditures made by the LCC
Consolidated Entities for such period, as determined on a consolidated basis in
accordance with GAAP.
"Consolidated Current Assets" means, at any date of determination thereof,
all assets of the LCC Consolidated Entities treated as current assets, as
determined on a consolidated basis in accordance with GAAP.
"Consolidated Current Liabilities" means, at any date of determination
thereof, all liabilities of the LCC Consolidated Entities treated as current
liabilities (other than the current portion of the Notes), as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Debt" means, at any date of determination thereof, the
aggregate amount of Debt of the LCC Consolidated Entities, as determined on a
consolidated basis in accordance with GAAP.
"Consolidated EBIT" means, with respect to any fiscal period, the sum of
(a) Consolidated Net Income for such period, plus (b) the aggregate amount of
(i) Consolidated Income Tax Expense and (ii) Consolidated Interest Expense, to
the extent that such aggregate amount was deducted in the computation of
Consolidated Net Income for such period.
"Consolidated EBITDA" means, with respect to any fiscal period, the sum of
(a) Consolidated EBIT for such period, plus (b) the aggregate amount of (i)
depreciation and amortization expense, (ii) non-cash accruals under the Phantom
Membership Plan, (iii) in process research and development expense related to
the purchase of all the assets of Old ETP up to $5,605,000 and (iv) reserves
taken during the Fiscal Year ending on December 31, 1996 against receivables,
promissory notes and investments in DCR and NextWave up to $30,050,000, to the
extent that such aggregate amount was deducted in the computation of
Consolidated EBIT for such period.
"Consolidated Fixed Charges" means, with respect to any fiscal period, the
sum of (a) Consolidated Interest Expense accrued during such period, plus
5
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(b) Consolidated Principal Payments due during such period, plus (c)
Consolidated Income Tax Expense accrued during such period.
"Consolidated Income Tax Expense" means, with respect to any fiscal period,
the amount of taxes accrued by the LCC Consolidated Entities during such period,
as determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, with respect to any fiscal period,
the amount of interest accrued on, and with respect to, Consolidated Debt during
such period (including, without limitation, amortization of debt discount and
financing fees and imputed interest on Capital Leases) plus all finance charges,
premiums and other fees, charges and expenses extracted from any LCC
Consolidated Entity in exchange for the forbearance from the collection of money
during such period, as determined on a consolidated basis in accordance with
GAAP.
"Consolidated Net Income" means, with respect to any fiscal period, net
income of the LCC Consolidated Entities for such period (but in any event
excluding income resulting from the reversal of reserves taken against
receivables, promissory notes or investments in DCR or NextWave), as determined
on a consolidated basis in accordance with GAAP.
"Consolidated Net Worth" means, at any date of determination thereof, the
sum of (i) all amounts which would be included under stockholders' equity on a
consolidated balance sheet of the LCC Consolidated Entities plus (ii)
Consolidated Subordinated Debt, as determined on a consolidated basis in
accordance with GAAP.
"Consolidated Principal Payments" means, with respect to any fiscal period,
all principal due on Consolidated Debt during such period (including, without
limitation, imputed principal on Capital Leases), as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Rentals" means, with respect to any fiscal period, all rental
expense due under the leases (other than Capital Leases) of the Consolidated
Entities during such period, as determined on a consolidated basis in accordance
with GAAP.
"Consolidated Subordinated Debt" means, at any date of determination
thereof, the Debt under the MCI Subordinated Notes and any other indebtedness of
any LCC Consolidated Entity for borrowed money which is subordinated to the
Obligations on terms and conditions acceptable to the Required Lenders, as
determined on a consolidated basis in accordance with GAAP.
"Currency Protection Agreement" means any foreign exchange contract,
currency swap agreement or other financial agreement or arrangement between one
or more Lenders and an Obligor designed to protect against fluctuations in
currency values.
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<PAGE> 12
"Current Ratio" means, at any date of determination thereof, the ratio of
(a) Consolidated Current Assets to (b) Consolidated Current Liabilities.
"DCR" means Pocket Communications, Inc., a Maryland corporation, formerly
known as DCR Communications, Inc.
"DCR Debentures" means the Series D Debentures in the principal amount of
$6,500,000 issued by DCR to Old LCC pursuant to the DCR Investment Agreement, as
amended or supplemented from time to time.
"DCR Investment Agreement" means the Convertible Loan and Investment
Agreement dated as of March 20, 1996 between Old LCC and DCR, as amended by that
certain First Amendment to Convertible Loan and Investment Agreement dated May
10, 1996 and as further amended or supplemented from time to time.
"DCR Investment Documents" means (a) the DCR Investment Agreement, (b) the
DCR Debentures, (c) the Services Agreement dated as of March 20, 1996 between
DCR and Old LCC, (d) the Software License Agreement dated as of March 20, 1996
between DCR and Old LCC, (e) the Articles of Incorporation of DCR, (f) the
By-Laws of DCR, (g) the Stockholders Agreement dated January 20, 1995 among each
of the holders of DCR's Class A Common Stock and (h) the other agreements and
instruments to be executed pursuant to the terms of each of such DCR Investment
Documents as each may be amended or supplemented from time to time.
"Debt" means, with respect to any Person: (a) indebtedness of such Person
for borrowed money; (b) indebtedness for the deferred purchase price of Property
or services (except trade payables in the ordinary course of business); (c)
Unfunded Benefit Liabilities of such Person; (d) all reimbursement obligations
(whether contingent or otherwise) of any outstanding letters of credit issued
for the account of such Person; (e) obligations arising under acceptance
facilities; (f) liabilities under Guaranties of Debt of any other Person; (g)
obligations secured by any Lien on Property of such Person; (h) obligations of
such Person as lessee under Capital Leases; (i) the net obligations of such
Person in respect of Interest Rate Protection Agreements and Currency Protection
Agreements; and (j) all Capital Stock of such Person subject to repurchase or
redemption during the term of this Agreement, other than at the sole option of
such Person.
"Default" means any event which with the giving of notice or lapse of time,
or both, would become an Event of Default.
"Default Rate" means, with respect to the principal of any Loan and, to the
extent permitted by law, any other amount payable by any Obligor under this
Agreement, any Note or any other Facility Document that is not paid when due
(whether at stated maturity, by acceleration or otherwise), a rate per annum
during the period from and including the due date, to, but excluding the date on
which such
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amount is paid in full equal to two percent (2%) above the Variable Rate as in
effect from time to time plus the Interest Margin (if any); provided that, if
the amount so in default is principal of a LIBO Rate Loan and the due date
thereof is a day other than the last day of the Interest Period therefor, the
"Default Rate" for such principal shall be, for the period from and including
the due date and to but excluding the last day of the Interest Period therefor,
two percent (2%) above the interest rate for such LIBO Rate Loan as provided in
Section 2.11 and, thereafter, the rate provided for above in this definition;
provided further that, if the amount so in default is principal of a NIBO Rate
Loan, the "Default Rate" for such principal shall be two percent (2%) above the
interest rate for such NIBO Rate Loan as provided in Section 2.1 1.
"Denomination Date" means, in relation to any borrowing, conversion or
renewal in Norwegian Krone, the date that is three Banking Days before the date
such borrowing, conversion or renewal is made.
"Dollar Equivalent" means, with respect to an amount of Norwegian Krone on
any date, the amount of Dollars that may be purchased with such amount of
Norwegian Krone at the Spot Exchange Rate with respect to Norwegian Krone on
such date.
"Dollars" and the sign "$" mean lawful money of the United States of
America.
"Domestic Cash Equivalents" means (a) direct obligations of the United
States of America or any agency thereof with maturities of one year or less from
the date of acquisition, (b) commercial paper of a domestic issuer rated at
least "A-1" by Standard & Poor's Corporation or "P-1" by Moody's Investors
Service, Inc., (c) certificates of deposit, time deposits, repurchase
agreements, reverse repurchase agreements and bankers' acceptances with
maturities of one year or less from the date of acquisition issued by any
commercial bank operating within the United States of America having capital and
surplus in excess of $500,000,000 or (d) money market or mutual funds whose sole
investments are comprised of investments permitted under the foregoing clauses
(a) through (c).
"Domestic Plan" means any employee benefit or other plan established or
maintained, or to which contributions have been made, by the Consolidated
Entities or any ERISA Affiliate and which is covered by Title IV of ERISA, other
than a Multiemployer Plan.
"Domestic Subsidiary" means any Subsidiary of the Borrower which is not a
Foreign Subsidiary.
"Environmental Laws" means any and all domestic, foreign, federal, state
and local statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, licenses, agreements with Governmental Authorities or other
governmental restrictions relating to the environment or to emissions,
discharges, releases or
8
<PAGE> 14
threatened releases of pollutants, contaminants, or industrial, toxic or
hazardous substances or wastes into the environment including, without
limitation, ambient air, surface water, ground water, or land, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling of pollutants, contaminants, or industrial,
toxic or hazardous substances or wastes.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, including any rules and regulations promulgated
thereunder.
"ERISA Affiliate" means any corporation or trade or business which is a
member of any group of organizations (i) described in Section 414(b) or (c) of
the Code of which any LCC Consolidated Entity is a member, or (ii) solely for
purposes of potential liability under Section 302(c)(11) of ERISA and Section
412(c)(11) of the Code and the lien created under Section 302(f) of ERISA and
Section 412(n) of the Code, described in Section 414(m) or (o) of the Code of
which any LCC Consolidated Entity is a member.
"ETP Asset Purchase Agreement" means the Asset Purchase Agreement dated as
of December 30, 1996 between Old ETP and the Subsidiary Borrower, as amended or
supplemented from time to time.
"ETP Asset Purchase Documents" means (a) the ETP Asset Purchase Agreement,
(b) the Promissory Note dated December 30, 1996 issued by the Subsidiary
Borrower in favor of Old ETP, (c) the Escrow Agreement dated as of December 30,
1996 among Old ETP, the Subsidiary Borrower, Industriinvestor AS and Haavind &
Haga and Wikborg, Rein & Co., as Escrow Agents, (d) the Bank Guarantee dated as
of the Closing Date issued by the Issuing Lender in favor of Old ETP, (e) the
Employment Agreements dated as of December 30, 1996 between the Subsidiary
Borrower and each of Eirik Lund, Morten Andersen and Tore Nilsen, (f) the
Indemnity Agreements dated as of December 30, 1996 between the Subsidiary
Borrower and each of Industriinvestor AS, Morten Andersen, Tore Nilsen and Eirik
Lund and (g) the other agreements and instruments to be executed pursuant to the
terms of each such ETP Acquisition Document, as each may be amended or
supplemented from time to time.
"Event of Default" shall have the meaning assigned to such term in Section
10.01.
"Existing Credit Agreement" shall have the meaning assigned to such term in
the recitals hereof.
"Facility Documents" means this Agreement, the Notes, the Letters of
Credit, the Assumption Agreements, the Interest Rate Protection Agreements, the
Currency
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<PAGE> 15
Protection Agreements, the Subordination Agreement and the Security Documents,
as each may be amended or supplemented from time to time.
"Federal Funds Rate" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight federal funds transactions as
published by the Federal Reserve Bank of New York for such day (or for any day
that is not a Banking Day, for the immediately preceding Banking Day).
"Fiscal Quarter" means any calendar quarter.
"Fiscal Quarter Net Worth Increase Amounts" means, with respect to each
Fiscal Quarter, (a) if such Fiscal Quarter ends after December 31, 1996, the
greater of (i) Zero Dollars ($0) and (ii) 50% of Consolidated Net Income for
such Fiscal Quarter plus (b) subsequent to the Initial Public Offering, 75% of
the proceeds (net of underwriting commissions and discounts and reasonable fees
and expenses) from the issuance of Capital Stock of the Borrower (other than via
the conversion of the MCI Subordinated Notes) or from the incurrence of
Consolidated Subordinated Debt during such Fiscal Quarter plus (c) 100% of
income resulting from the reversal of reserves taken against receivables,
promissory notes or investments in DCR or NextWave during such Fiscal Quarter.
"Fiscal Year" means any calendar year.
"Fixed Charge Coverage Ratio" means, at any date of determination thereof,
the ratio of (a) the result of (i) Consolidated EBITDA for the four most
recently ended Fiscal Quarters minus (ii) Consolidated Capital Expenditures for
such four most recently ended Fiscal Quarters to (b) Consolidated Fixed Charges
for such four most recently ended Fiscal Quarters
"Fixed Rate Loan" means any LIBO Rate Loan or NIBO Rate Loan.
"Foreign Cash Equivalents" means: (a) direct obligations of, or obligations
fully guarantied or insured by, the government of the country in which any
Foreign Subsidiary is incorporated or has its principal place of business with
maturities of one year or less from the date of acquisition; and (b) direct
demand obligations issued by the principal banking institutions located in any
such country.
"Foreign Plan" means any pension plan or other deferred compensation plan,
program or arrangement maintained by any Foreign Subsidiary which may or may
not, under applicable local law, be required to be funded through a trust or
other funding vehicle.
"Foreign Subsidiary" means any Subsidiary of the Borrower which was
organized under the laws of a jurisdiction other than the United States of
America, any state thereof or the District of Columbia.
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<PAGE> 16
"Forfeiture Proceeding" means any action, proceeding or investigation
affecting any LCC Consolidated Entity or any Affiliate before any Governmental
Authority or the receipt of notice by any such party that any of them is a
suspect in or a target of any governmental inquiry or investigation, which may
result in an indictment of any of them or the seizure or forfeiture of any of
their respective Properties.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect from time to time, applied on a basis consistent with
those used in the preparation of the financial statements referred to in Section
6.05(a) (except for changes concurred in by the LCC Consolidated Entities'
independent public accountants).
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Guaranty" means, with respect to any Person, guaranties, endorsements
(other than for collection in the ordinary course of business) and other
contingent obligations of such Person with respect to the obligations of any
other Person (including, but not limited to, an agreement to purchase any
obligation, stock, assets, goods or services or to supply or advance any funds,
assets, goods or services, or an agreement to maintain or cause such Person to
maintain a minimum working capital or net worth or otherwise to assure the
creditors of any such other Person against loss).
"Hazardous Materials" means any and all pollutants, contaminants, toxic or
hazardous wastes or any other substances, the removal of which is required or
the generation, manufacture, refining, production, processing, treatment,
storage, handling, transportation, transfer, use, disposal, release, discharge,
spillage, seepage, or filtration of which is restricted, prohibited or penalized
by any applicable law.
"Initial Public Offering" means the initial public offering of the Capital
Stock of the Borrower.
"Intellectual Property Security Agreement" means the Intellectual Property
Security Agreement dated as of June 14, 1996 between the Borrower and the
Administrative Agent, as amended or supplemented from time to time.
"Interest Margin" means, for each type and class of Loan, (a) if such Loan
is a Variable Rate Loan, 0.00% per annum or (b) if such Loan is a Fixed Rate
Loan, 1.25% per annum.
"Interest Period" means, with respect to any Fixed Rate Loan, the period
commencing on the date such Fixed Rate Loan is made, converted from a Variable
Rate Loan or renewed, as the case may be, and ending, as the Borrower or the
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<PAGE> 17
Subsidiary Borrower may select pursuant to Section 2.07, on (a) in the case of
LIBO Rate Loans, the numerically corresponding day in the first, second, third,
or sixth calendar month thereafter or (b) in the case of NIBO Rate Loans, the
numerically corresponding day in the first or second week or the first, second,
third, or sixth calendar month thereafter, provided that each such Interest
Period determined on the basis of calendar months which commences on the last
Banking Day of a calendar month (or on any day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall end on the
last Banking Day of the appropriate calendar month.
"Interest Rate Protection Agreement" means an interest rate swap, cap or
collar agreement or similar arrangement between one or more Lenders and an
Obligor providing for the transfer or mitigation of interest risks either
generally or under specific contingencies.
"Investment" means any loan or advance to any Person or any purchase or
other acquisition of any capital stock, assets, obligations or other securities
of any Person, or any capital contribution to, investment in, or other
acquisition of any interest in, any Person.
"Issuing Lender" means The Chase Manhattan Bank, a bank organized under the
laws of New York, acting in its capacity as a Lender hereunder.
"Judgment Currency" shall have the meaning assigned to such term in Section
13.18 hereof.
"Judgment Currency Conversion Date" shall have the meaning assigned to such
term in Section 13.18 hereof.
"Koll" means Koll Telecommunications Services, L.L.C., a Delaware limited
liability company.
"LCC Consolidated Entities" means the Borrower and the Subsidiaries of the
Borrower.
"LCC Predecessor Entities" means LCC, Incorporated, LCC International
Corporation, Eurofon Incorporated, Eurofon Incorp. & Co. KG and Eurofon of
France S.A.R.L. and Telecom Solutions, Incorporated.
"Lender" shall have the meaning assigned to such term in the introductory
paragraph hereof.
"Lending Office" means, for each Lender and for each type of Loan, the
lending office of such Lender (or of an affiliate of such Lender) designated as
such for such type of Loan on its signature page hereof or such other office of
such Lender (or of
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an affiliate of such Lender) as such Lender may from time to time specify to the
Administrative Agent and the Borrower or the Subsidiary Borrower, as applicable,
as the office by which its Loans of such type are to be made and maintained.
"Letter of Credit Availability" means, at any date of determination
thereof, the amount by which (a) the lesser of (i) the result of (A) the
aggregate amount of the Revolving Credit Commitments as of such date, minus (B)
the unpaid aggregate principal amount of the Revolving Credit Loans then
outstanding and (ii) $5,000,000 exceeds (b) the aggregate amount of the Letter
of Credit Obligations at such date.
"Letter of Credit Funding" shall have the meaning assigned to such term in
Section 3.05(b) hereof.
"Letter of Credit Obligations" means, at any date of determination thereof,
all liabilities of the Borrower with respect to Letters of Credit, whether or
not any liability is contingent, including (without limitation) the sum (without
duplication) of (a) the aggregate amount available to be drawn under the Letters
of Credit then outstanding plus (b) the aggregate amount of all unpaid
Reimbursement Obligations.
"Letters of Credit" shall have the meaning assigned to such term in Section
3.01(a) hereof.
"LIBO Base Rate" means with respect to any Interest Period for a LIBO Rate
Loan: the rate per annum (rounded upwards, if necessary, to the nearest 1/16 of
one percent (1%)) quoted at approximately 11:00 a.m. London time by the
principal London branch of the Reference Lender two Banking Days prior to the
first day of such Interest Period for the offering to leading banks in the
London interbank market of Dollar or Norwegian Krone deposits in immediately
available funds, for a period, and in an amount, comparable to the Interest
Period and principal amount of the LIBO Rate Loan which shall be made.
"LIBO Rate" means, for any LIBO Rate Loan for any Interest Period therefor,
a rate per annum (rounded upwards, if necessary, to the nearest 1/100 of one
percent (1 %)) reasonably determined by the Administrative Agent to be equal to
the quotient of (i) the LIBO Base Rate for such LIBO Rate Loan for such Interest
Period, divided by (ii) one minus the Reserve Requirement for such LIBO Rate
Loan for such Interest Period.
"LIBO Rate Loan" means any Loan when and to the extent the interest rate
therefor is determined on the basis of the definition "LIBO Rate."
"Lien" means any lien (statutory or otherwise), security interest,
mortgage, deed of trust, priority, pledge, charge, conditional sale, title
retention agreement, financing lease or other encumbrance or similar right of
others, or any agreement to give any of the foregoing.
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"Loan" means any loan made by a Lender pursuant to Section 2.01.
"Material Adverse Effect" means any material adverse effect on (a) the
business, profits, Properties or condition of the LCC Consolidated Entities,
taken as a whole, (b) the ability of any Obligor to perform their respective
obligations under each of the Facility Documents to which it is a party, (c) the
binding nature, validity or enforceability of any of the Facility Documents or
(d) the validity, perfection, priority or enforceability of the Liens in favor
of the Administrative Agent securing the Obligations hereunder, which, in each
case, arises from, or reasonably could be expected to arise from, any action or
omission of action on the part of any LCC Consolidated Entity or the occurrence
of any event or the existence of any fact or condition in respect of any LCC
Consolidated Entity or any of their respective Properties.
"Material Contract" means any written or oral contract, instrument,
agreement, commitment, obligation, plan or arrangement to which any LCC
Consolidated Entity is a party, a copy of which would be required to be filed
with the Securities and Exchange Commission as an exhibit to a registration
statement pursuant to Item 601(b)(10) of Regulation S-K of the Securities and
Exchange Commission if such LCC Consolidated Entity were registering securities
under the Securities Act.
"Material Contract Termination" means, at any date of determination
thereof, that (a) during the 90 day period ending on such date, one or more
revenue-producing contracts between any LCC Consolidated Entity and another
Person or other Persons have been terminated by the other Person or not renewed
or extended by the other Person(s) pursuant to a renewal or extension option
therein contained, (b) such contracts represented, in the aggregate, more than
5% of the gross revenues of the LCC Consolidated Entities during the then most
recently ended Fiscal Year and (c) giving effect to the gross revenues
reasonably anticipated during the-then current Fiscal Year, the reasonably
anticipated gross revenues of the LCC Consolidated Entities for the then current
Fiscal Year will be less than 85% of those set forth for the then-current Fiscal
Year in the operating plan delivered to the Lenders.
"Material Revenue-Producing Contract" means any revenue-producing contract
between any LCC Consolidated Entity and another Person or other Persons which
represents more than 2.5% of the gross revenues of the LCC Consolidated Entities
during the then most recently ended Fiscal Year and, in the case of any new such
revenue-producing contract, any revenue-producing contract entered into during
such Fiscal Year which would represent more than 2.5% of the gross revenues of
the LCC Consolidated Entities for the then current Fiscal Year as set forth in
its operating plan.
"MCI" means MCI Telecommunications Corporation, a Delaware corporation.
"MCI Note Purchase Agreement" means that certain Revolving Credit Note
Purchase Agreement dated as of June 27, 1994 among the Parent, the other
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<PAGE> 20
members of Old LCC and MCI, as amended by that certain Waiver and Amendment
dated as of May 30, 1995.
"MCI Note Purchase Documents" means the MCI Subordinated Notes, the MCI
Securityholders Agreement and the other agreements and instruments to be
executed pursuant to the terms of each of such MCI Note Purchase Documents.
"MCI Securityholders Agreement" means the Amended and Restated
Securityholders Agreement dated as of July 25, 1996 among the Parent, LCC,
Incorporated, TC Group, L.L.C., Old LCC and MCI, as amended by that certain
Amendment to Securityholders Agreement dated as of September 29, 1996.
"MCI Subordinated Guaranty" means the Guaranty dated June 27, 1994 by the
Borrower in favor of MCI pursuant to which Old LCC guarantied the obligations of
the Parent under the MCI Subordinated Telcom Note.
"MCI Subordinated LCC Note" means that certain convertible Subordinated
Note Due 2000 in the principal amount of $20,000,000 issued by Old LCC to MCI
pursuant to the MCI Note Purchase Agreement, as amended by that certain
Amendment to Subordinated Note due 2000 dated as of July 25, 1996 and as further
amended by the Second Amendment to Subordinated Note due 2000 dated as of
October 23, 1997.
"MCI Subordinated Notes" means (a) the MCI Subordinated LCC Note and (b)
the MCI Subordinated Telcom Note.
"MCI Subordinated Telcom Note" means that certain convertible Subordinated
Note Due 2000 in the principal amount of $30,000,000 issued by the Parent to MCI
pursuant to the MCI Note Purchase Agreement, as amended by that certain
Amendment to Subordinated Note due 2000 dated as of July 25, 1996 among the
Parent, the Borrower and MCI, as further amended by that certain Second
Amendment to Subordinated Note due 2000 dated as of September 27, 1996 among the
Parent, Old LCC and MCI, as further amended by the Third Amendment to
Subordinated Note due 2000 dated as of September 27, 1996 among the Parent, Old
LCC and MCI and as further amended by the Fourth Amendment to Subordinated Note
due 2000 dated as of October 23, 1997 between the Borrower and MCI.
"Merger" means the merger of Old LCC with and into the Borrower, with the
Borrower being the surviving entity.
"Multiemployer Plan" means a Plan defined as such in Section 3(37) of ERISA
to which contributions have been made by any LCC Consolidated Entity or any
ERISA Affiliate and which is covered by Title IV of ERISA.
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<PAGE> 21
"New Subsidiary Guarantor" shall have the meaning assigned to such term in
the introductory paragraph hereof.
"NextWave" means NextWave Telecom Inc., a Delaware corporation.
"NextWave Investment Agreement" means the Subscription Agreement dated as
of March 12,1996 between NextWave and Old LCC, as amended or supplemented from
time to time.
"NextWave Investment Documents" means (a) the NextWave Investment
Agreement, (b) the NextWave Series B Common Stock Warrant dated March 12,
1996,(c) the Services Agreement dated as of March 12, 1996 between NextWave and
Old LCC, (d) the Letter Agreement dated as of March 12, 1996 between NextWave
and Old LCC, (e) the Restated Certificate of Incorporation of NextWave, (f) the
By-Laws of NextWave, (g) the Amended and Restated Shareholders' Rights Agreement
dated as of February 1996 among NextWave and each of the holders of its Series A
Common Stock, its Series B Common Stock and its Series C Common Stock, (h) the
Amended and Restated Stockholders' Voting Agreement dated as of February 1996
among NextWave and each of the holders of its Series A Common Stock, its Series
B Common Stock and its Series C Common Stock, (i) the Amended and Restated
Escrow Agreement dated as of January 1996 among NextWave, certain investors in
NextWave and Chemical Bank, as Escrow Agent, (j) the Confidential Private
Placement Memorandum dated December 1995 of NextWave and (k) the other
agreements and instruments to be executed pursuant to the terms of each such
NextWave Investment Document, as each may be amended or supplemented from time
to time.
"NIBO Base Rate" means with respect to any Interest Period for a NIBO Rate
Loan: the rate per annum (rounded upwards, if necessary, to the nearest 1/16 of
one percent (1%)) quoted at approximately 11:00 a.m. Norwegian time by the
principal Norwegian branch of the Reference Lender two Banking Days prior to the
first day of such Interest Period for the offering to leading banks in the
Norwegian interbank market of Norwegian Krone deposits in immediately available
funds, for a period, and in an amount, comparable to the Interest Period and
principal amount of the NIBO Rate Loan which shall be made.
"NIBO Rate" means, for any NIBO Rate Loan for any Interest Period therefor,
a rate per annum (rounded upwards, if necessary, to the nearest 1/100 of one
percent (1%)) reasonably determined by the Administrative Agent to be equal to
the quotient of (i) the NIBO Base Rate for such NIBO Rate Loan for such Interest
Period, divided by (ii) one minus the Reserve Requirement for such NIBO Rate
Loan for such Interest Period.
"NIBO Rate Loan" means any Loan when and to the extent the interest rate
therefor is determined on the basis of the definition "NIBO Rate."
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"Norwegian Krone" and the sign "NOK" means lawful money of the Kingdom of
Norway.
"Norwegian Krone Equivalent" means, with respect to an amount of Dollars on
any date, the amount of Norwegian Krone that may be purchased with such amount
of Dollars at the Spot Exchange Rate with respect to Dollars on such date.
"Notes" means the Revolving Credit Notes and the Swingline Notes.
"Obligation Currency" shall have the meaning assigned to such term in
Section 13.18 hereof.
"Obligations" means the unpaid principal of and interest on (including
interest accruing on or after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, whether or
not a claim for post-filing or post-petition interest is allowed in such
proceeding) the Notes and all other obligations and liabilities of any Obligor
to the Administrative Agent or any Lender, whether direct or indirect, absolute
or contingent, due or to become due, or now existing or hereafter incurred,
which may arise under, out of, or in connection with, this Agreement, any Note,
any Letter of Credit, any Interest Rate Protection Agreement, any Currency
Protection Agreement, any other Facility Document and any other document made,
delivered or given in connection therewith or herewith, whether on account of
principal, interest, Guaranties, reimbursement obligations, fees, indemnities,
costs, expenses (including, without limitation, all fees and disbursements of
counsel to the Administrative Agent or any Lender) or otherwise.
"Obligors" shall have the meaning assigned to such term in the introductory
paragraph hereof.
"Old ETP" means European Technology Partner AS, a Norwegian corporation,
prior to the closing under the ETP Asset Purchase Agreement.
"Old LCC" means LCC, L.L.C., a Delaware limited liability company, prior to
the effectiveness of the Merger.
"Parent" means Telcom Ventures, L.L.C., a Delaware limited liability
company.
"Participating Interest" means, with respect to each Letter of Credit, (a)
in the case of the Issuing Lender, its interest in such Letter of Credit after
giving effect to the granting of any participating interest therein pursuant
hereto and (b) in the case of each Participating Lender, its undivided
participating interest in such Letter of Credit.
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"Participating Lender" means, with respect to any Letter of Credit, any
Lender (other than the Issuing Lender) with respect to its Participating
Interest in each Letter of Credit.
"Payor" shall have the meaning assigned to such term in Section 12.13.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Phantom Membership Plan" means the LCC, L.L.C. 1994 Phantom Membership
Plan, as may amended or supplemented from time to time.
"Pledge Agreement" means the Pledge Agreement dated as of June 14, 1996
among the Obligors and the Administrative Agent, as amended or supplemented from
time to time.
"Prime Rate" means that rate of interest from time to time announced by The
Chase Manhattan Bank as its prime commercial lending rate.
"Principal Office" means the principal office of the Administrative Agent,
presently located at 270 Park Avenue, New York, New York 10017.
"Pro Forma Balance Sheet" shall have the meaning assigned to such term in
Section 6.05(c).
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, and whether tangible or intangible.
"Proprietary Rights" means all of the following along with all income,
royalties, damages and payments thereon (including damages and payments for past
or future infringements or misappropriations thereof), the rights to sue and
recover for past infringements and misappropriations thereof and any and all
corresponding rights that, now or hereafter, may be secured throughout the
world: (i) patents, patent applications, patent disclosures and inventions
(whether or not patentable and whether or not reduced to practice) and any
reissues, continuations, continuations-in-part, revisions, extensions or
reexaminations thereof; (ii) trademarks, service marks, trade dress, trade names
and corporate names and registrations, renewals and applications for
registration thereof, together with the goodwill associated therewith; (iii)
copyrights and copyrightable works and registrations, renewals and applications
for registration thereof; (iv) mask works and registrations and applications for
registration thereof; (v) computer software (including all databases, data and
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<PAGE> 24
documentation); (vi) trade secrets and other confidential information (including
ideas, formulas, compositions, inventions, know-how, manufacturing and
production processes and techniques, research and development information,
drawings, specifications, designs, plans, proposals, technical data,
copyrightable works, financial and marketing plans and customer and supplier
lists and information); (vii) other intellectual property rights; and (viii)
copies and tangible embodiments thereof (in whatever form or medium).
"Purchase Money Lien" means a Lien on any Property acquired by any LCC
Consolidated Entity or placed on any Property of any LCC Consolidated Entity in
order to finance the acquisition or construction of such Property or the
construction of improvements located on such Property, or the assumption of any
Lien on Property existing at the time of the acquisition of such Property or of
the Person holding such Property or a Lien incurred in connection with any
conditional sale or other title retention agreement or a Capital Lease.
"Reference Lender" means The Chase Manhattan Bank (or, with respect to
Fixed Rate Loans, if The Chase Manhattan Bank no longer quotes on the London or
Norwegian interbank market, such successor leading bank in the London or
Norwegian interbank market which shall be reasonably appointed by the
Administrative Agent and shall be reasonably acceptable to the Borrower).
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System as the same may be amended or supplemented from time to time.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System as the same may be amended or supplemented from time to time.
"Regulatory Change" means, with respect to any bank, any change after the
date of this Agreement in United States federal, state, municipal or foreign
laws or regulations (including without limitation Regulation D) or the adoption
or making after such date of any written interpretations, directives or requests
applying to a class of banks of which such bank is a member, of or under any
United States, federal, state, municipal or foreign laws or regulations (whether
or not having the force of law) by any court or governmental or monetary
authority charged with the interpretation or administration thereof.
"Reimbursement Obligation" means the obligation of the Borrower to
reimburse the Issuing Lender in accordance with the terms of this Agreement for
the payment made by the Issuing Lender under any Letter of Credit.
"Required Lenders" means, at any time while no Obligations are outstanding,
Lenders having at least 51% of the aggregate amount of the Commitments and, at
any time while Obligations are outstanding, Lenders holding at least 51% of the
aggregate amount of Obligations.
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"Required Payment" shall have the meaning assigned to such term in Section
12.13.
"Reserve Requirement" means for any Fixed Rate Loan for any Interest Period
therefor, the average maximum rate (expressed as a decimal) at which reserves
(including any marginal, supplemental or emergency reserves) are required to be
maintained during such Interest Period under Regulation D by member banks of the
Federal Reserve System in New York City with deposits exceeding $1,000,000,000
against "Eurocurrency liabilities" (as such term is used in Regulation D).
Without limiting the effect of the foregoing, the Reserve Requirement shall
reflect any other reserves required to be maintained by such member banks by
reason of any Regulatory Change against (i) any category of liabilities which
includes deposits by reference to which the LIBO Base Rate or NIBO Base Rate for
Fixed Rate Loans is to be determined as provided in the definition of "LIBO Base
Rate" or "NIBO Base Rate" in this Section 1.01 or (ii) any category of
extensions of credit or other assets which include Fixed Rate Loans.
"Restricted Payment" means, with respect to any Person, (a) the declaration
or payment of any dividends by such Person, or the purchase, redemption,
retirement or other acquisition for value of any of its Capital Stock now or
hereafter outstanding, or the making of any distribution of assets to its
stockholders, partners or members as such whether in cash, assets or in
obligations of such Person, or the allocation or other setting apart of any sum
for the payment of any dividend or distribution on, or for the purchase,
redemption, retirement or other acquisition of any shares of its Capital Stock,
or the making of any other distribution, by reduction of capital or otherwise,
in respect of any shares of its Capital Stock (including, without limitation,
any distributions made with respect to measurement shares for which stock
appreciation rights or phantom rights have been issued but in any event
excluding non-cash accruals under the Phantom Membership Plan) or (b) the making
of payments of interest on, or payments or prepayments of principal of, or
payments (or setting apart of money for a sinking or other analogous fund) for
the purchase, redemption, retirement or other acquisition of principal or
interest, on the MCI Subordinated Notes.
"Revolving Credit Commitment" means, with respect to each Lender, the
obligation of such Lender to make its Revolving Credit Loans under this
Agreement in the aggregate principal amount set forth in SCHEDULE I, as such
amount may be reduced or otherwise modified from time to time.
"Revolving Credit Commitment Percentage" means, as to any Lender at any
date of determination thereof, the percentage of the aggregate Revolving Credit
Commitments constituted by such Lender's Revolving Credit Commitment at such
date.
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"Revolving Credit Loan" means any loan made by a Lender pursuant to Section
2.01(a).
"Revolving Credit Notes" means the promissory notes issued by the Borrower
in the form of EXHIBIT A1 hereto evidencing the Revolving Credit Loans made by a
Lender hereunder and all promissory notes delivered in substitution or exchange
therefor, as amended or supplemented from time to time.
"Revolving Credit Termination Date" means September 24, 1999.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Agreement" means the Security Agreement dated as of June 14, 1996
among the Obligors and the Administrative Agent, as amended or supplemented from
time to time.
"Security Documents" means the Security Agreement, the Intellectual
Property Security Agreement, the Pledge Agreement and each other security
document that may from time to time be delivered to the Administrative Agent
(including all financing statements, fixture filings, mortgages, assignments and
stock certificates delivered to the Administrative Agent).
"Significant Subsidiary" means any Subsidiary of the Borrower other than a
Subsidiary of the Borrower which, if aggregated with all other Subsidiaries of
the Borrower which are not Obligors and considered as a single Subsidiary, would
not meet the definition of a "significant subsidiary" contained in Regulation
S-X of the Securities and Exchange Commission, as in effect on the date hereof.
"Spot Exchange Rate" means, on any date of determination thereof, (a) with
respect to Norwegian Krone, the spot rate at which Dollars are offered on such
day by the principal London branch of the Reference Lender at approximately
11:00 a.m. (London time) and (b) with respect to Dollars, the spot rate at which
Norwegian Krone is offered on such date by the principal London branch for
Dollars at approximately 11:00 a.m. (London time). For purposes of determining
the Spot Exchange Rate in connection with a borrowing, conversion or renewal in
Norwegian Krone, such Spot Exchange Rate shall be determined as of the
Denomination Date for such borrowing, conversion or renewal with respect to
transactions in Norwegian Krone that will settle on the date of such borrowing,
conversion or renewal.
"Subordination Agreement" means the Subordination and Intercreditor
Agreement dated as of September 30, 1996 among MCI, the Administrative Agent and
the Borrower, as amended or supplemented from time to time.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, limited liability company or other entity of which at least a
majority of the Voting
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Stock having ordinary voting power (absolutely or contingently) for the election
of directors or other persons performing similar functions are at the time owned
directly or indirectly by such Person. "Wholly-Owned Subsidiary" means, with
respect to any Person, any such corporation, partnership, limited liability
company or other entity of which all of such Capital Stock are so owned by such
Person.
"Subsidiary Borrower" shall have the meaning assigned to such term in the
introductory paragraph hereof.
"Subsidiary Guarantors" shall have the meaning assigned to such term in the
introductory paragraph hereof.
"Swingline Loan" means any loan made by a Lender pursuant to Section
2.01(b).
"Swingline Loan Commitment" means, with respect to each Lender, the
obligation of such Lender to make its Swingline Loans under this Agreement in
the aggregate principal amount set forth in SCHEDULE I, as such amount may be
reduced or otherwise modified from time to time.
"Swingline Loan Termination Date" means September 24, 1999.
"Swingline Notes" means the promissory notes issued by the Subsidiary
Borrower in the form of EXHIBIT A2 hereto evidencing the Swingline Loans made by
a Lender hereunder and all promissory notes delivered in substitution or
exchange therefor, as amended or supplemented from time to time.
"Taxes" shall have the meaning assigned to such term in Section 4.06
hereof.
"Termination Date" means, with respect to any Revolving Credit Loan, the
Revolving Credit Termination Date and, with respect to any Swingline Loan, the
Swingline Loan Termination Date.
"'type' of Revolving Credit Loans" shall have the meaning assigned to such
term in Section 2.01(c).
"'type' of Swingline Loans" shall have the meaning assigned to such term in
Section 2.01(c).
"UCP" means the Uniform Customs and Practice for Documentary Credits (1993
Revision), International Chamber of Commerce, Publication No. 500.
"Unconditional Guaranty" shall have the meaning assigned to such term in
Section 11.01.
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"Unfunded Benefit Liabilities" means, with respect to any Domestic Plan or
Foreign Plan, the amount (if any) by which the present value of all benefit
liabilities (within the meaning of Section 4001(a)(16) of ERISA or within the
meaning of any similar foreign law) under such Domestic Plan or Foreign Plan
exceeds the fair market value of all assets of such Domestic Plan or Foreign
Plan allocable to such benefit liabilities, as determined on the most recent
valuation date of such Domestic Plan or Foreign Plan and in accordance with the
provisions of ERISA or such similar foreign law for calculating the potential
liability of any LCC Consolidated Entity or any ERISA Affiliate under Title IV
of ERISA or such similar foreign law.
"Variable Rate" means, for any day, the higher of (a) the Federal Funds
Rate for such day plus 1/2 of one percent and (b) the Prime Rate for such day.
"Variable Rate Loan" means any Revolving Credit Loan when and to the extent
the interest rate for such Revolving Credit Loan is determined in relation to
the Variable Rate.
"Voting Stock" means, with respect to any Person, the Capital Stock of such
Person of any class or classes, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of members of the
Board of Directors (or Persons performing similar functions, including, without
limitation, the members of any members' committee or similar committee of a
limited liability company) of such Person, including in any event, without
limitation, any membership interest or other interest in a limited liability
company which is ordinarily, in the absence of contingencies, entitled to vote
or consent with respect to matters affecting the management or conduct of
business of such limited liability company.
Section 1.02. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP, and all financial
data required to be delivered hereunder shall be prepared in accordance with
GAAP.
ARTICLE 2. THE CREDIT.
Section 2.01. Loans. (a) Subject to the terms and conditions of this
Agreement, each of the Lenders severally agrees to make revolving credit loans
(the "Revolving Credit Loans") to the Borrower from time to time from and
including the Closing Date to but excluding the Revolving Credit Termination
Date, in such amounts that the sum of (i) the aggregate principal amount of such
Lender's Revolving Credit Loans at any one time outstanding plus (ii) such
Lender's pro rata share of the Letter of Credit Obligations then outstanding
does not exceed the amount of its Revolving Credit Commitment. The Revolving
Credit Loans shall be due and payable on the Revolving Credit Termination Date.
(b) Subject to the terms and conditions of this Agreement, each of the
Lenders severally agrees to make a swingline loan (the "Swingline Loans") to the
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Subsidiary Borrower from time to time from and including the date hereof to and
including the Swingline Termination Date, in an amount up to but not exceeding
in the aggregate principal amount, the amount of its Swingline Commitment. The
Swingline Loans shall be due and payable on the Swingline Termination Date.
(c) The Loans shall be outstanding as Revolving Credit Loans or
Swingline Loans (each a "class" of Loans). The Revolving Credit Loans may be
outstanding at the Borrower's option as Variable Rate Loans or LIBO Rate Loans
(each a "type" of Revolving Credit Loans) and the Swingline Loans may be
outstanding at the Subsidiary Borrower's option as LIBO Rate Loans or NIBO Rate
Loans (each a "type" of Swingline Loans). Each type of Loans of each Lender
shall be made and maintained at such Lender's Lending Office for such type of
Loans.
(d) The Swingline Loans shall be made in Norwegian Krone in an amount
equal to the Norwegian Krone Equivalent of the Dollar amount specified in the
notice of each borrowing pursuant to Section 2.08, as determined by the
Administrative Agent as of the Denomination Date for such borrowing (which
determination shall be conclusive absent manifest error). For purposes of
determining the amount outstanding under any Lender's Swingline Loan
Commitments, each Swingline Loan shall be the Dollar Equivalent for such
Swingline Loan as of the Denomination Date.
Section 2.02. The Notes. The Revolving Credit Loans of each Lender shall be
evidenced by a single promissory note in favor of such Lender in the form of
EXHIBIT A1, dated September 30, 1996, duly completed and executed by the
Borrower. The Swingline Loans of each Lender shall be evidenced by a single
promissory note in favor of such Lender in the form of EXHIBIT A2, dated the
Closing Date, duly completed and executed by the Subsidiary Borrower.
Section 2.03. Purpose. The Borrower and the Subsidiary Borrower shall use
the proceeds of the Loans for general corporate purposes including, without
limitation, working capital, Acceptable Investments and Acceptable Acquisitions.
Such proceeds shall not be used for the purpose, whether immediate, incidental
or ultimate, of buying or carrying "margin stock" within the meaning of
Regulation U.
Section 2.04. Borrowing Procedures. The Borrower or the Subsidiary
Borrower, as applicable, shall give the Administrative Agent notice (which may
be telephonic if confirmed by telex, telecopy or other writing) of each
borrowing to be made hereunder as provided in Section 2.08. Not later than 12:00
noon New York, New York time on the date specified for such borrowing hereunder,
each Lender shall, through its Lending Office, subject to the conditions of this
Agreement, make the amount of the Loan to be made by it on such day available to
the Administrative Agent at the Principal Office in immediately available funds
for the account of the Administrative Agent. The amount so received by the
Administrative Agent shall, subject to the conditions of this Agreement, be made
available to the Borrower or the
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Subsidiary Borrower, as applicable, in immediately available funds, on the date
specified for such borrowing in such Person's notice, by the Administrative
Agent by crediting an account of the Borrower or the Subsidiary Borrower, as
applicable, designated by such Person and maintained with the Administrative
Agent at the Principal Office.
Section 2.05. Optional Prepayments and Conversions. The Borrower or the
Subsidiary Borrower, as applicable, shall have the right to make prepayments of
principal without penalty or premium, or to convert one type of Revolving Credit
Loans into another type of Revolving Credit Loans or to convert one type of
Swingline Loans into another type of Swingline Loans, at any time or from time
to time; provided that: (a) the Borrower or the Subsidiary Borrower, as
applicable, shall give the Administrative Agent notice of each such prepayment
or conversion as provided in Section 2.08; and (b) Fixed Rate Loans may be
prepaid or converted only on the last day of an Interest Period for such Fixed
Rate Loans unless the Borrower or the Subsidiary Borrower, as applicable, agrees
to provide to the Administrative Agent for the account of each Lender
compensation in accordance with Section 4.05.
Section 2.06. Interest Periods; Renewals. (a) In the case of each Fixed
Rate Loan, the Borrower or the Subsidiary Borrower, as applicable, shall select
an Interest Period of any duration in accordance with the definition of Interest
Period in Section 1.01, subject to the following limitations: (i) no Interest
Period may extend beyond the Termination Date; (ii) notwithstanding clause (i)
above, no Interest Period shall have a duration less than one month (or, in the
case of NIBO Rate Loans, two weeks), and if any such proposed Interest Period
would otherwise be for a shorter period, such Interest Period shall not be
available; (iii) if an Interest Period would end on a day which is not a Banking
Day, such Interest Period shall be extended to the next Banking Day, unless such
Banking Day would fall in the next calendar month in which event such Interest
Period shall end on the immediately preceding Banking Day; and (iv) no more than
ten Interest Periods of each Lender may be outstanding at any one time.
(b) Upon notice to the Administrative Agent as provided in Section
2.08, the Borrower or the Subsidiary Borrower, as applicable, may renew any
Fixed Rate Loan on the last day of the Interest Period therefor as the same type
of Loan with an Interest Period of the same or different duration in accordance
with the limitations provided above. If the Borrower or the Subsidiary Borrower,
as applicable, shall fail to give notice to the Administrative Agent of such a
renewal, (i) in the case of a Fixed Rate Loan denominated in Dollars, such Fixed
Rate Loan shall automatically become a Variable Rate Loan on the last day of the
current Interest Period and (ii) in the case of a Fixed Rate Loan denominated in
Norwegian Krone, such Fixed Rate Loan shall automatically be a NIBO Loan
denominated in Norwegian Krone having an Interest Period of one month.
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Section 2.07. Changes of Commitments. The Borrower or the Subsidiary
Borrower, as applicable, shall have the right to reduce or terminate the amount
of unused Commitments at any time or from time to time, provided that: (i) the
Borrower or the Subsidiary Borrower, as applicable, shall give notice of each
such reduction or termination to the Administrative Agent as provided in Section
2.08; and (ii) each partial reduction shall be in an aggregate amount at least
equal to $1,000,000. The Commitments once reduced or terminated may not be
reinstated.
Section 2.08. Certain Notices. Notices by the Borrower or the Subsidiary
Borrower, as applicable, to the Administrative Agent of each borrowing pursuant
to Section 2.04, each prepayment or conversion pursuant to Section 2.05 and each
renewal pursuant to Section 2.06, and each reduction or termination of the
Commitments pursuant to Section 2.07 shall be irrevocable and shall be effective
only if received by the Administrative Agent not later than 11:00 a.m. New York,
New York time, and (a) in the case of borrowings and prepayments of, conversions
into and (in the case of Fixed Rate Loans) renewals of (i) Variable Rate Loans,
given the same Banking Day; and (ii) Fixed Rate Loans, given three Banking Days
prior thereto; and (b) in the case of reductions or termination of the
Commitments, given three Banking Days prior thereto. Each such notice shall
specify the class and type of the Loans to be borrowed, prepaid, converted or
renewed and the amount thereof (subject to Section 2.10) (and, in the case of a
conversion, the type of Loan to result from such conversion, and, in the case of
a Fixed Rate Loan, the Interest Period therefor) and the date of the borrowing,
prepayment, conversion or renewal (which shall be a Banking Day). Each such
notice of reduction or termination shall specify the amount of the Commitments
to be reduced or terminated. The Administrative Agent shall promptly notify the
Lenders of the contents of each such notice.
Section 2.09. Minimum Amounts. Except for borrowings which exhaust the full
remaining amount of the Commitments, prepayments or conversions which result in
the prepayment or conversion of all Loans of a particular type or class or
conversions made pursuant to Section 4.04, each borrowing, prepayment,
conversion and renewal of principal of Loans of a particular type shall be in an
amount not less than (i) $250,000 in the aggregate for all Lenders in the case
of Variable Rate Loans and (ii) $1,000,000 (or the Dollar Equivalent thereof) in
the aggregate for all Lenders (plus increments of $100,000 (or the Dollar
Equivalent thereof) in excess thereof) in the case of Fixed Rate Loans unless
such minimum amount is waived by the Required Lenders (borrowings, prepayments,
conversions or renewals of or into Loans of different types or, in the case of
Fixed Rate Loans, having different Interest Periods at the same time hereunder
to be deemed separate borrowings, prepayments, conversions and renewals for the
purposes of the foregoing, one for each type or Interest Period). Anything in
this Agreement to the contrary notwithstanding, the aggregate principal amount
of Fixed Rate Loans having concurrent Interest Periods shall be at least equal
to $500,000 (or, in the case of NIBO Rate Loans, the Dollar Equivalent of
$100,000).
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Section 2.10. Interest. (a) Interest shall accrue on the outstanding and
unpaid principal amount of each Loan for the period from and including the date
of such Loan to but excluding the date such Loan is due at the following rates
per annum: (i) for a Variable Rate Loan, at a variable rate per annum equal to
the Variable Rate plus the Interest Margin and (ii) for a Fixed Rate Loan, at a
fixed rate equal to the LIBO Rate or NIBO Rate plus the Interest Margin. If an
Event of Default shall exist, interest shall accrue on the outstanding principal
amount of any Loan and any other amount payable by the Borrower or the
Subsidiary Borrower hereunder, under any Note or under any other Facility
Document to the fullest extent permitted by law from and including such due date
to but excluding the date such amount is paid in full or such Event of Default
is cured at the Default Rate.
(b) The interest rate on each Variable Rate Loan shall change when the
Variable Rate changes and interest on each such Variable Rate Loan shall be
calculated on the basis of a year of 365/366 days for the actual number of days
elapsed. Interest on each Fixed Rate Loan shall be calculated on the basis of a
year of 360 days for the actual number of days elapsed. Promptly after the
determination of any interest rate provided for herein or any change therein,
the Administrative Agent shall notify the Borrower, the Subsidiary Borrower and
the Lenders.
(c) Accrued interest shall be due and payable in arrears upon any
repayment of principal or conversion and (i) for each Variable Rate Loan, on the
fifteenth day of each March, June, September and December commencing the first
such date after such Variable Rate Loan; and (ii) for each Fixed Rate Loan, on
the last day of the Interest Period with respect thereto and, in the case of an
Interest Period greater than three months or 90 days, at three-month intervals
after the first day of such Interest Period; provided that interest accruing at
the Default Rate shall be due and payable from time to time on demand of the
Administrative Agent.
Section 2.11. Fees. (a) The Borrower shall pay to the Administrative Agent
for the account of each Lender a commitment fee on the daily average of the
unused Revolving Credit Commitments to the Borrower of such Lender minus such
Lender's pro rata share of Letter of Credit Obligations for the period from and
including the date hereof to the earlier of the date all of the Revolving Credit
Commitments are terminated or the Revolving Credit Termination Date at a rate
per annum equal to 1/4 of one percent, calculated in each case on the basis of a
year of 360 days for the actual number of days elapsed. The Subsidiary Borrower
shall pay to the Administrative Agent for the account of each Lender a
commitment fee on the daily average of the unused Swingline Commitments to the
Subsidiary Borrower of such Lender for the period from and including the date
hereof to the earlier of the date all of the Swingline Commitments are
terminated or the Swingline Termination Date at a rate per annum equal to 1/4 of
one percent, calculated in each case on the basis of a year of 360 days for the
actual number of days elapsed. The accrued commitment fees shall be due and
payable in arrears upon any reduction or termination of the Revolving Credit
Commitments or the Swingline Commitments, as
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applicable, and on the fifteenth day of each March, June, September and
December, commencing on the first such date after the Closing Date.
(b) The Borrower shall pay to the Administrative Agent for its own
account the fees set forth in the fee letter dated as of the Closing Date
between the Borrower and the Administrative Agent.
Section 2.12. Payments Generally. All payments under this Agreement, the
Revolving Credit Notes and the other Facility Documents shall be made in Dollars
and all payments under the Swingline Notes shall be made in Norwegian Krone, in
each case in immediately available funds not later than 11:00 a.m. New York, New
York time on the relevant dates specified above or in such Facility Document
(each such payment made after such time on such due date to be deemed to have
been made on the next succeeding Banking Day) by, unless the Administrative
Agent agrees to accept payment by other means, the debiting by the
Administrative Agent for the account of the applicable Lending Office of each
Lender, or by any Lender for whose account any such payment is to be made, of
the amount of any such payment from any ordinary deposit account of the Borrower
or the Subsidiary Borrower, as applicable, with the Administrative Agent or such
Lender, as the case may be, and the Administrative Agent so doing shall promptly
notify the Borrower or the Subsidiary Borrower, as applicable, and any Lender so
doing shall promptly notify the Administrative Agent which in turn shall
promptly notify the Borrower or the Subsidiary Borrower, as applicable. The
Borrower or the Subsidiary Borrower, as applicable, shall, at the time of making
each optional payment under this Agreement, any Note or any other Facility
Document, specify to the Administrative Agent the principal or other amount
payable by the Borrower or the Subsidiary Borrower under this Agreement, such
Note or such other Facility Document to which such payment is to be applied (and
in the event that it fails to so specify, or if a Default or Event of Default
has occurred and is continuing, the Administrative Agent may apply such payment
as it may elect in its sole discretion (subject to Section 11.16)). If the due
date of any payment under this Agreement, any Note or any other Facility
Document would otherwise fall on a day which is not a Banking Day, such date
shall be extended to the next succeeding Banking Day and interest shall be
payable for any principal so extended for the period of such extension. Each
payment received by the Administrative Agent hereunder, under any Note or any
other Facility Document for the account of a Lender shall be paid promptly to
such Lender, in immediately available funds, for the account of such Lender's
Lending Office.
ARTICLE 3. THE LETTERS OF CREDIT.
Section 3.01. Letters of Credit. (a) Subject to the terms and conditions of
this Agreement, the Issuing Lender, on behalf of the Lenders, and in reliance on
the agreement of the Lenders set forth in Section 3.04, agrees to issue on any
Banking Day prior to the Revolving Credit Termination Date, for the account of
the Borrower, irrevocable documentary and standby letters of credit or bank
guarantees in such
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form as may from time to time be approved by the Issuing Lender acting
reasonably (together with the applications therefor, the "Letters of Credit");
provided that on the date of the issuance of any Letter of Credit, and after
giving effect to such issuance, the Letter of Credit Obligations shall not
exceed the Letter of Credit Availability.
(b) Each Letter of Credit shall (i) have an expiry date no later than
the earlier of (A) one year from the date of issuance provided that such Letter
of Credit may automatically renew for subsequent one year terms upon the failure
of the Issuing Lender to provide sixty days' prior written notice of termination
to the Borrower and (B) the Revolving Credit Termination Date, (ii) be
denominated in Dollars, (iii) be in a minimum face amount of $100,000 and (iv)
provide for the payment of sight drafts when presented for honor thereunder in
accordance with the terms thereof and when accompanied by the documents
described therein or when such documents are presented, as the case may be.
Section 3.02. Purposes. The Borrower shall use the Letters of Credit for
the purpose of securing obligations incurred in the ordinary course of business.
Section 3.03. Procedures for Issuance of Letters of Credit. The Borrower
may from time to time request that the Issuing Lender issue a Letter of Credit
by delivering to the Issuing Lender at its address for notices specified herein
an application therefor in such form as may from time to time be approved by the
Issuing Lender acting reasonably, completed to the reasonable satisfaction of
the Issuing Lender, and such other certificates, documents and other papers and
information as the Issuing Lender may reasonably request. Upon receipt of any
application, the Issuing Lender will process such application and the
certificates, documents and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and shall
promptly issue the requested Letter of Credit in such customized form as may
reasonably be requested by the Borrower (but in no event shall the Issuing
Lender issue any Letter of Credit later than five Banking Days after receipt of
the application therefor and all such other certificates, documents and other
papers and information relating thereto) by issuing the original of such Letter
of Credit to the beneficiary thereof or as otherwise may be agreed by the
Issuing Lender and the Borrower. The Issuing Lender shall furnish a copy of such
Letter of Credit to the Borrower promptly following the issuance thereof.
Section 3.04. Participating Interests. In the case of each Letter of
Credit, effective as of the date of the issuance thereof, the Issuing Lender
agrees to allot and does allot to each other Lender, and each such Lender
severally and irrevocably agrees to take and does take a Participating Interest
in such Letter of Credit in a percentage equal to such Lender's pro rata share
of the Letter of Credit Obligations (calculated based on its Revolving Credit
Commitment Percentage). On the date that any Lender becomes a party to this
Agreement in accordance with Section 12.05, Participating Interests in any
outstanding Letter of Credit held by the transferor Lender from which such
transferee Lender acquired its interest hereunder shall be
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proportionately reallotted between such transferee Lender and such transferor
Lender. Each Participating Lender hereby agrees that its obligation to
participate in each Letter of Credit, and to pay or to reimburse the Issuing
Lender for its participating share of the drafts drawn thereunder, is absolute,
irrevocable and unconditional and shall not be affected by any circumstances
whatsoever, including, without limitation, the occurrence and continuance of any
Default or Event of Default, and that each such payment shall be made without
any offset, abatement, withholding or other reduction whatsoever.
Section 3.05. Payments. (a) In order to induce the Issuing Lender to issue
the Letters of Credit, the Borrower hereby agrees to reimburse the Issuing
Lender, unless such Reimbursement Obligation has been accelerated pursuant to
Section 10.02, by not later than 1:00 p.m., New York City time, on each date
that the Borrower has been notified by the Issuing Lender that any draft
presented under any Letter of Credit is paid by the Issuing Lender, for (i) the
amount of the draft paid by the Issuing Lender and (ii) the amount of any taxes,
fees, charges or other reasonable costs or expenses whatsoever incurred by the
Issuing Lender in connection with any payment made by the Issuing Lender under,
or with respect to, such Letter of Credit. Each such payment shall, subject to
the next sentence hereof, be made to the Issuing Lender at its office specified
in Section 12.06, in lawful money of the United States and in immediately
available funds by not later than 1:00 p.m., New York City time, on the day that
payment is made by the Issuing Lender (or, if such drawing occurs after 1:00
p.m. New York City time, on the next succeeding Banking Day). If such payment is
not made in full, all amounts remaining unpaid by the Borrower under this
Section 3.05 shall, to the extent otherwise permitted hereunder, automatically
be deemed to be a borrowing as Revolving Credit Loans bearing interest at the
Variable Rate plus the Interest Margin. Except as otherwise permitted by the
preceding sentence, interest on any and all amounts remaining unpaid by the
Borrower under this Section 3.05 at any time from the date such amounts become
payable (whether at stated maturity, by acceleration or otherwise) until payment
in full shall be payable to the Issuing Lender on demand at a fluctuating rate
per annum equal to the Default Rate.
(b) In the event that the Issuing Lender makes a payment (a "Letter of
Credit Funding") under any Letter of Credit and is not reimbursed in full
therefor on the date of such Letter of Credit Funding, in accordance with the
terms hereof, the Issuing Lender will promptly through the Administrative Agent
notify each Participating Lender that acquired its Participating Interest in
such Letter of Credit from the Issuing Lender. No later than the close of
business on the date such notice is given if such notice is given, each such
Participating Lender will transfer to the Administrative Agent, for the account
of the Issuing Lender, in immediately available funds, an amount equal to such
Participating Lender's pro rata share of the unreimbursed portion of such Letter
of Credit Funding (calculated based on its Revolving Credit Commitment
Percentage), together with interest, if any, accrued
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thereon from and including the date of such transfer at a rate per annum equal
to the Federal Funds Rate plus two percent (2%).
(c) Whenever, at any time after the Issuing Lender has made a Letter
of Credit Funding and has received from any Participating Lender such
Participating Lender's pro rata share of the unreimbursed portion of such Letter
of Credit Funding, the Issuing Lender receives any reimbursement on account of
such unreimbursed portion or any payment of interest on account thereof, the
Issuing Lender will distribute to the Administrative Agent, for the account of
such Participating Lender, its pro rata share thereof; provided, however, that
in the event that the receipt by the Issuing Lender of such reimbursement or
such payment of interest (as the case may be) is required to be returned, such
Participating Lender will promptly return to the Administrative Agent, for the
account of the Issuing Lender, any portion thereof previously distributed by the
Issuing Lender to it.
Section 3.06. Further Assurances. The Borrower hereby agrees to do and
perform any and all acts and to execute any and all further instruments from
time to time reasonably requested by the Issuing Lender more fully to effect the
purposes of this Agreement and the issuance of the Letters of Credit hereunder.
Section 3.07. Obligations Absolute. The payment obligations of the Borrower
under Section 3.05 shall be unconditional and irrevocable and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances,
including, without limitation, the following circumstances:
(a) the existence of any claim, set-off, defense or other right which
the Borrower may have at any time against any beneficiary, or any transferee, of
any Letter of Credit (or any Persons for whom any such beneficiary or any such
transferee may be acting), the Issuing Lender or any Participating Lender, or
any other Person, whether in connection with this Agreement, any other Facility
Document, the transactions contemplated herein, or any unrelated transaction;
(b) any statement or any other document presented under any Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect
or any statement therein being untrue or inaccurate in any respect, provided
that this subparagraph (b) shall not relieve the Issuing Lender of any liability
determined to have resulted from the gross negligence or willful misconduct of
the Issuing Lender;
(c) payment by the Issuing Lender under any Letter of Credit against
presentation of a draft or certificate which does not comply with the terms of
such Letter of Credit, provided that this subparagraph (c) shall not relieve the
Issuing Lender of any liability determined to have resulted from the gross
negligence or willful misconduct of the Issuing Lender; or
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(d) any other circumstances or happening whatsoever, whether or not
similar to any of the foregoing, provided that this subparagraph (d) shall not
relieve the Issuing Lender of any liability determined to have resulted from the
gross negligence or willful misconduct of the Issuing Lender.
Section 3.08. Cash Collateral Account. If the Commitments are duly
terminated and all amounts owing under this Agreement, the Notes and the
Reimbursement Obligations become due and payable pursuant to Section 10, the
Borrower shall deposit with the Administrative Agent, on the date such
obligations become due and payable, an amount in cash or Domestic Cash
Equivalents equal to the Letter of Credit Obligations as of such date and the
Letter of Credit fees in accordance with Section 3.09. Such amount shall be
deposited in a cash collateral account to be established by the Administrative
Agent, for the benefit of the Issuing Lender and the Participating Lenders, and
shall constitute collateral security for the Letter of Credit Obligations and
other amounts owing hereunder. All amounts in such cash collateral account shall
be maintained pursuant to a cash collateral account agreement which shall grant
to the Administrative Agent a security interest in all such funds and in any
investments made therewith or proceeds thereof to secure payment to the
Administrative Agent of Reimbursement Obligations with respect to outstanding
Letters of Credit. In the event that the Administrative Agent makes any Letter
of Credit Funding, the Administrative Agent may withdraw funds on deposit to
make reimbursement of such Letter of Credit Funding, in an amount equal to such
Letter of Credit Funding. Upon payment by the Borrower of all Reimbursement
Obligations with respect to Letters of Credit or the termination or other
expiration of all Letters of Credit, remaining funds on deposit in the cash
collateral account shall be returned promptly to the Borrower.
Section 3.09. Letter of Credit Fees. (a) The Borrower agrees to pay the
Administrative Agent, for the account of the Issuing Lender and the
Participating Lenders, a non-refundable letter of credit fee of (a) with respect
to each documentary Letter of Credit, an amount equal to one-half of one percent
of the face amount under such documentary Letter of Credit payable on payment
thereof and (b) with respect to each standby Letter of Credit, an amount
computed at the rate of one and one quarter percent per annum of the aggregate
undrawn amount under each standby Letter of Credit, calculated on the basis of a
year of 360 days for the actual number of days elapsed, payable in arrears on
the fifteenth day of each March, June, September and December, commencing on the
first such date after the Closing Date.
(b) The Borrower agrees to pay the Issuing Lender, for its own
account, its normal and customary administration, amendment, transfer, payment
and negotiation fees charged in connection with its issuance and administration
of letters of credit.
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ARTICLE 4. YIELD PROTECTION; ILLEGALITY; ETC.
Section 4.01. Additional Costs. (a) The Borrower or the Subsidiary
Borrower, as applicable, shall pay directly to each Lender from time to time on
demand such amounts as such Lender may determine (and reasonably substantiate)
to be necessary to compensate it for any costs which such Lender determines are
attributable to its making or maintaining any Fixed Rate Loans under this
Agreement or its Notes or its obligation to make any such Fixed Rate Loans
hereunder, or any reduction in any amount receivable by such Lender hereunder in
respect of any such Fixed Rate Loans or such obligation (such increases in costs
and reductions in amounts receivable being herein called "Additional Costs"),
resulting from any Regulatory Change relating to any such Fixed Rate Loans or
such obligation which: (i) changes the basis of taxation of any amounts payable
to such Lender under this Agreement or its Notes in respect of any of such Fixed
Rate Loans (other than taxes imposed on the overall net income of such Lender or
of its Lending Office for any of such Fixed Rate Loans by the jurisdiction in
which such Lender has its principal office or such Lending Office); or (ii)
imposes or modifies any reserve, special deposit, deposit insurance or
assessment, minimum capital, capital ratio or similar requirements relating to
any extensions of credit or other assets of, or any deposits with or other
liabilities of, such Lender (including any of such Fixed Rate Loans or any
deposits referred to in the definition of "LIBO Base Rate" or "NIBO Base Rate"
in Section 1.01); or (iii) imposes any other condition affecting this Agreement
or its Notes (or any of such extensions of credit or liabilities). Each Lender
will notify the Borrower or the Subsidiary Borrower, as applicable, of any event
occurring after the date of this Agreement which will entitle such Lender to
compensation pursuant to this Section 4.01(a) as promptly as practicable after
it obtains knowledge thereof and determines to request such compensation. If any
Lender requests compensation from the Borrower or the Subsidiary Borrower, as
applicable, under this Section 4.01(a), or under Section 4.01(c), the Borrower
or the Subsidiary Borrower, as applicable, may, by notice to such Lender (with a
copy to the Administrative Agent), require that such Lender's affected Fixed
Rate Loans with respect to which such compensation is requested be converted in
accordance with Section 4.04. If any taxes are imposed for which the Borrower or
the Subsidiary Borrower, as applicable, would be required to make a payment
under this Section 4.01, the applicable Lender shall use its best efforts to
avoid or reduce such taxes by taking any appropriate action (including, without
limitation, assigning its rights hereunder to a related entity or a different
Lending Office).
(b) Without limiting the effect of the foregoing provisions of this
Section 4.01, in the event that, by reason of any Regulatory Change, any Lender
either (i) incurs Additional Costs based on or measured by the excess above a
specified level of the amount of a category of deposits or other liabilities of
such Lender which includes deposits by reference to which the interest rate on
Fixed Rate Loans is determined as provided in this Agreement or a category of
extensions of credit or other assets of such Lender which includes Fixed Rate
Loans or (ii) becomes
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subject to restrictions on the amount of such a category of liabilities or
assets which it may hold, then, if such Lender so elects by notice to the
Borrower or the Subsidiary Borrower, as applicable (with a copy to the
Administrative Agent), the obligation of such Lender to make or renew Fixed Rate
Loans, and to convert Variable Rate Loans to Fixed Rate Loans hereunder shall be
suspended until the date such Regulatory Change ceases to be in effect (and all
affected Fixed Rate Loans held by such Lender then outstanding shall be
converted in accordance with Section 4.04).
(c) Without limiting the effect of the foregoing provisions of this
Section 4.01 (but without duplication), the Borrower or the Subsidiary Borrower,
as applicable, shall pay directly to each Lender from time to time on request
such amounts as such Lender may determine to be necessary to compensate such
Lender for any costs which it determines are attributable to the maintenance by
it or any of its affiliates pursuant to any law or regulation of any
jurisdiction or any interpretation, directive or request (whether or not having
the force of law and whether in effect on the date of this Agreement or
thereafter) of any court or governmental or monetary authority of capital in
respect of its Loans hereunder, its obligation to make Loans hereunder or its
obligation to issue, or participate in, any Letter of Credit (such compensation
to include, without limitation, an amount equal to any reduction in return on
assets or equity of such Lender to a level below that which it could have
achieved but for such law, regulation, interpretation, directive or request).
Each Lender will notify the Borrower or the Subsidiary Borrower, as applicable,
if it is entitled to compensation pursuant to this Section 4.01(c) as promptly
as practicable after it determines to request such compensation.
(d) Determinations and allocations by a Lender for purposes of this
Section 4.01 of the effect of any Regulatory Change pursuant to subsections (a)
or (b), or of the effect of capital maintained pursuant to subsection (c), on
its costs of making or maintaining Loans, its obligation to make Loans or its
obligation to issue, or participate in, any Letter of Credit, or on amounts
receivable by, or the rate of return to, it in respect of Loans or such
obligation, and of the additional amounts required to compensate such Lender
under this Section 4.01, shall be conclusive, provided that such determinations
and allocations are made on a reasonable basis.
Section 4.02. Limitation on Fixed Rate Loans. Anything herein to the
contrary notwithstanding, if:
(a) the Administrative Agent determines (which determination shall be
conclusive) that quotations of interest rates for the relevant deposits referred
to in the definition of "LIBO Base Rate" or "NIBO Base Rate" in Section 1.01 are
not being provided in the relevant amounts or for the relevant maturities for
purposes of determining the rate of interest for any Fixed Rate Loans as
provided in this Agreement; or
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(b) the Required Lenders determine (which determination shall be
conclusive) and notify the Administrative Agent that the relevant rates of
interest referred to in the definition of "Fixed Base Rate" in Section 1.01 upon
the basis of which the rate of interest for any Fixed Rate Loans is to be
determined do not adequately cover the cost to the Lenders of making or
maintaining such Fixed Rate Loans; or
(c) in the case of Fixed Rate Loans denominated in Norwegian Krone,
any Lender shall determine (which determination shall be conclusive) and notify
the Administrative Agent that Norwegian Krone is not available in the relevant
amounts or for the relevant period, or that a change in national or
international controls has occurred which would, in the opinion of such Lender,
make it impracticable for such Lender to make, fund or maintain its Fixed Rate
Loans to be made in Norwegian Krone or for the Subsidiary Borrower to pay the
principal of or interest on such Fixed Rate Loans as provided in this Agreement;
then the Administrative Agent shall give the Borrower or the Subsidiary
Borrower, as applicable, and each Lender prompt notice thereof, and so long as
such condition remains in effect, the Lenders shall be under no obligation to
make or renew affected Fixed Rate Loans or to convert Variable Rate Loans into
affected Fixed Rate Loans and the Borrower or the Subsidiary Borrower, as
applicable, shall, on the last day(s) of the then current Interest Period(s) for
the outstanding affected Fixed Rate Loans, either prepay such Fixed Rate Loans
or convert such Fixed Rate Loans into Variable Rate Loans in accordance with
Section 2.05.
Section 4.03. Illegality. Notwithstanding any other provision in this
Agreement, in the event that it becomes unlawful for any Lender or its Lending
Office to honor its obligation to make, maintain or renew Fixed Rate Loans
hereunder or convert Variable Rate Loans into Fixed Rate Loans, then such Lender
shall promptly notify the Borrower or the Subsidiary Borrower, as applicable,
thereof (with a copy to the Administrative Agent) and such Lender's obligation
to make or renew Fixed Rate Loans and to convert other Variable Rate Loans into
Fixed Rate Loans hereunder shall be suspended until such time as such Lender may
again make, renew, or convert and maintain such Fixed Rate Loans and such
Lender's outstanding Fixed Rate Loans, as the case may be, shall be converted in
accordance with Section 4.04.
Section 4.04. Certain Conversions Pursuant to Sections 4.01 and 4.03. If
Fixed Rate Loans are to be converted pursuant to Section 4.01 or 4.03, such
Lender's Fixed Rate Loans shall be automatically converted into Variable Rate
Loans on the last day(s) of the then current Interest Period(s) for such
Lender's Fixed Rate Loans (or, in the case of a conversion required by Section
4.01 or 4.03, on such earlier date as such Lender may specify to the Borrower
with a copy to the Administrative Agent) and, unless and until such Lender gives
notice as provided below that the circumstances specified in Section 4.01 or
4.03 which gave rise to such conversion no longer exist:
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(a) to the extent that such Lender's Fixed Rate Loans have been so
converted, all payments and prepayments of principal which would otherwise be
applied to such Lender's Fixed Rate Loans shall be applied instead to its
Variable Rate Loans; and
(b) all Fixed Rate Loans which would otherwise be made or renewed by
such Lender as Fixed Rate Loans shall be made instead as Variable Rate Loans and
all Variable Rate Loans of such Lender which would otherwise be converted into
Fixed Rate Loans shall remain as Variable Rate Loans.
If such Lender gives notice to the Borrower or the Subsidiary Borrower, as
applicable (with a copy to the Administrative Agent) that the circumstances
specified in Section 4.01 or 4.03 which gave rise to the conversion of such
Lender's Fixed Rate Loans pursuant to this Section 4.04 no longer exist (which
such Lender agrees to do promptly upon such circumstances ceasing to exist) at a
time when Fixed Rate Loans are outstanding, such Lender's Variable Rate Loans
shall be automatically converted, on the first day(s) of the next succeeding
Interest Period(s) for such outstanding Fixed Rate Loans to the extent necessary
so that, after giving effect thereto, all Fixed Rate Loans held by the Lenders
holding Fixed Rate Loans and by such Lender are held pro rata (as to principal
amounts, types, classes and Interest Periods) in accordance with their
respective Commitments.
Section 4.05. Certain Compensation. The Borrower and the Subsidiary
Borrower, as applicable, shall pay to the Administrative Agent for the account
of each Lender, upon the request of such Lender through the Administrative
Agent, such amount or amounts as shall be sufficient (in the reasonable opinion
of such Lender) to compensate it for any loss, cost or expense which such Lender
determines is attributable to:
(a) any payment, prepayment, conversion or renewal of a Fixed Rate
Loan made by such Lender on a date other than the last day of an Interest Period
for such Fixed Rate Loan (whether by reason of acceleration or otherwise); or
(b) any failure by the Borrower or the Subsidiary Borrower, as
applicable, to borrow, convert into or renew a Fixed Rate Loan to be made,
converted into or renewed by such Lender on the date specified therefor in the
relevant notice under Sections 2.04, 2.05 or 2.07, as the case may be.
Without limiting the foregoing, such compensation shall include an amount
equal to the present value of the excess, if any, of: (i) the amount of interest
which otherwise would have accrued on the principal amount so paid, prepaid,
converted or renewed or not borrowed, converted or renewed for the period from
and including the date of such payment, prepayment or conversion or failure to
borrow, convert or renew to but excluding the last day of the then current
Interest Period for such Fixed Rate Loan (or, in the case of a failure to
borrow, convert or renew, to but excluding
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the last day of the Interest Period for such Fixed Rate Loan which would have
commenced on the date specified therefor in the relevant notice) at the
applicable rate of interest for such Fixed Rate Loan provided for herein; over
(ii) the amount of interest (as reasonably determined by such Lender) such
Lender would have bid in the London interbank market (if such Loan is a Fixed
Rate Loan) for Dollar or Norwegian Krone deposits for amounts comparable to such
principal amount and maturities comparable to such period. A determination of
any Lender as to the amounts payable pursuant to this Section 4.05 shall be
conclusive absent manifest error.
Section 4.06. Taxes. Each of the Borrower and the Subsidiary Borrower
covenants and agrees that:
(a) All payments on account of the principal of and interest on the
Loans and the Notes, and all other amounts payable by the Borrower or the
Subsidiary Borrower hereunder, under any Note or under any other Facility
Document, including without limitation amounts payable under Section 4.06(b),
shall be made without any set-off or counterclaim and free and clear of and
without reduction by reason of, all present and future income, stamp,
registration and other taxes and levies, imposts, deductions, charges,
compulsory loans and withholdings whatsoever (other than taxes imposed on the
overall net income of any Lender, or of its applicable Lending Office, by the
jurisdiction in which such Lender's principal office or its applicable Lending
Office is located), and all interest, penalties or similar amounts with respect
thereto, now or hereafter imposed, assessed, levied or collected by any country
or any political subdivision or taxing authority thereof or therein or by any
federation or association of or with which any country may be a member or
associated or by any jurisdiction from which any payment hereunder or under any
Note is made or any taxing authority thereof or therein, on or in respect of
this Agreement, the Loans, any Note, any other Facility Document, the recording,
registration, notarization or other formalization of any thereof, the
enforcement thereof or the introduction thereof in any judicial proceedings, or
on or in respect of any payments of principal, interest, premiums, charges, fees
or other amounts made on, under or in respect of any thereof (hereinafter called
"Taxes"), all of which will be paid by the Borrower or the Subsidiary Borrower,
as applicable, for its own account, prior to the date on which penalties attach
thereto;
(b) The Borrower and the Subsidiary Borrower, as applicable, shall
indemnify each Lender against, and reimburse each Lender on demand for, any
Taxes and any loss, liability, claim or expense, including interest, penalties
and reasonable legal fees (net of any refunds or tax credits for such Taxes
which such Lender shall actually receive or utilize), which such Lender may
incur at any time arising out of or in connection with any failure of the
Borrower or the Subsidiary Borrower, as applicable, to make any payments of
Taxes when due;
(c) In the event that the Borrower or the Subsidiary Borrower is
required by applicable law, decree or regulation to deduct or withhold Taxes
from any
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amounts payable to any Lender on, under or in respect of this Agreement, the
Loans, any Note or any other Facility Document, the Borrower and the Subsidiary
Borrower, as applicable, shall pay to such Lender such additional amount(s) as
may be required, after the deduction or withholding of Taxes, to enable such
Lender to receive from the Borrower or the Subsidiary Borrower, as applicable,
an amount equal to the amount stated to be payable by the Borrower or the
Subsidiary Borrower, as applicable, to such Lender under this Agreement, its
Note held by such Lender or under any other Facility Document;
(d) The Borrower and the Subsidiary Borrower, as applicable, shall
furnish to each Lender the official tax receipts in respect of each payment of
Taxes required under this Section 4.06 within 30 days after the date such
payment is due pursuant to applicable law, and the Borrower and the Subsidiary
Borrower, as applicable, shall promptly furnish to each Lender at its request
any other information, documents and receipts that such Lender may, in its
reasonable discretion from time to time, require to establish to its
satisfaction that full and timely payment has been made of all Taxes required to
be paid under this Section 4.06; and
(e) In the event that the payments by the Borrower or the Subsidiary
Borrower, as applicable, hereunder become exempt from or not subject to Taxes,
the Borrower or the Subsidiary Borrower, as applicable, will, upon the
reasonable request of any Lender, furnish to such Lender either a certificate
from each appropriate taxing authority or an opinion of counsel reasonably
acceptable to such Lender, in either case stating that payments hereunder are
exempt from or not subject to Taxes.
ARTICLE 5. CONDITIONS PRECEDENT.
Section 5.01. Documentary Conditions Precedent. The obligations of the
Lenders to make the Loans constituting the initial borrowing and of the Issuing
Lender to issue the initial Letter of Credit are subject to the condition
precedent that the Administrative Agent shall have received on or before the
Closing Date each of the following, in form and substance satisfactory to the
Administrative Agent and its counsel:
(a) counterparts of this Agreement duly executed by each of the
Borrower, the Subsidiary Borrower, the Subsidiary Guarantors, the Lenders and
the Administrative Agent;
(b) the Swingline Notes duly executed by the Subsidiary Borrower;
(c) evidence that all actions necessary or appropriate (or, in any
event, as may be requested by the Administrative Agent) to create, perfect or
protect the Liens created or purported to be created by the Security Agreement,
the Intellectual Property Security Agreement and the Pledge Agreement have been
taken including, without limitation, (i) the execution of financing statements
(UCC-1) by the
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New Subsidiary Guarantor, (ii) the execution of supplements to the Intellectual
Property Security Agreement by each of the Obligors, (iii) the delivery of stock
certificates representing all of the outstanding Capital Stock of the New
Subsidiary Guarantor held by the Borrower and representing 65% of the
outstanding voting Capital Stock of the Subsidiary Borrower together with
undated stock powers executed in blank, (iv) the delivery of a secured
promissory note in a principal amount not less than $10,000,000 (representing
advances made by the Borrower to the Subsidiary Borrower to acquire
substantially all of the assets of Old ETP) in suitable form for transfer by
endorsement and delivery and the assignment of all collateral granted in
connection therewith, (v) a secured promissory note representing all loans and
advances by the Borrower to the New Subsidiary Guarantor in suitable form for
transfer by endorsement and delivery and the assignment of all collateral
granted in connection therewith and (vi) all promissory notes representing all
loans and advances by the Borrower to NextWave or DCR in suitable form for
transfer by endorsement and delivery;
(d) evidence that the Subordination Agreement shall have been amended
to increase the maximum permissible "Senior Debt" to an amount not less than
$22,500,000;
(e) certificates or other evidence of casualty and business
interruption insurance policies covering all of the Property subject to the Lien
of the Administrative Agent under the Security Documents with appropriate loss
payable endorsements indicating assignment of proceeds thereunder to the
Administrative Agent and certificates or other evidence of liability insurance
with appropriate endorsements indicating the coverage of the Administrative
Agent as an additional insured, in each case containing endorsements requiring
at least 30 days prior written notice to the Administrative Agent of
noncancellation, nonrenewal or other material change and which shall provide
such other terms and conditions as the Administrative Agent may reasonably
require;
(f) a certificate of the Secretary of each of the Obligors dated the
Closing Date, attesting to all corporate or limited liability company action
taken by such Obligor, including resolutions of its Board of Directors or
Members Committee authorizing the execution, delivery and performance of each of
the Facility Documents to which it is a party and each other document to be
delivered pursuant to this Agreement;
(g) a legal opinion of Peter Deliso, Esq., General Counsel to the LCC
Consolidated Entities, in substantially the form of EXHIBIT C1 and as to such
other matters as the Administrative Agent may reasonably request;
(h) a legal opinion of Wikborg, Rein & Co., Norwegian counsel to the
Subsidiary Borrower, in substantially the form of EXHIBIT C2 and as to such
other matters as the Administrative Agent may reasonably request;
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(i) evidence of the repayment in full of all indebtedness owed to DNB
Bank, Norway under that certain line of credit entered into with Old ETP and
assumed by the Subsidiary Borrower and the release or assignment of all
collateral granted in connection therewith;
(j) certified complete and correct copies of the ETP Acquisition
Documents (including all exhibits, schedules and disclosure letters referred to
therein or delivered pursuant thereto and all amendments thereto, waivers
relating thereto and other side letters or agreements affecting the terms
thereof);
(k) certified complete and correct copies of each of the financial
statements referred to in Section 6.05; and
(l) an initial borrowing notice of the Borrower or the Subsidiary
Borrower, as applicable, relating to the Loans to be made and the Letters of
Credit to be issued on the Closing Date together with a letter from such Person
containing wire transfer instructions and account information relating to the
funds to be made available by the Lenders to the Borrower or the Subsidiary
Borrower, as applicable, on the Closing Date.
Section 5.02. Additional Conditions Precedent. The obligations of the
Lenders to make any Loans pursuant to a borrowing which increases the amount
outstanding hereunder (including the initial borrowing) or to issue any Letters
of Credit shall be subject to the further conditions precedent that on the date
of such Loans or the issuance of such Letters of Credit the following statements
shall be true: (a) the representations and warranties contained in Article 6 and
in each of the other Facility Documents are true and correct on and as of the
date of such Loans or the issuance of such Letter of Credit as though made on
and as of such date (provided that any representations and warranties which
speak to a specific date shall remain true and correct as of such specific
date); and (b) no Default or Event of Default has occurred and is continuing, or
would result from such Loans or the issuance of Letters of Credit.
Section 5.03. Deemed Representations. Each notice of borrowing or request
for the issuance of a Letter of Credit hereunder and acceptance by the Borrower
or the Subsidiary Borrower, as applicable, of the proceeds of such borrowing or
the benefit of such Letter of Credit shall constitute a representation and
warranty that the statements contained in Section 5.02 are true and correct both
on the date of such notice or request and, unless the Borrower or the Subsidiary
Borrower, as applicable, otherwise notifies the Administrative Agent prior to
such borrowing or such issuance, as of the date of such borrowing or such
issuance.
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ARTICLE 6. REPRESENTATIONS AND WARRANTIES.
Each of the Obligors hereby represents and warrants that:
Section 6.01. Organization, Good Standing and Due Qualification. Each of
the LCC Consolidated Entities is a corporation, partnership or limited liability
company duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization, has the corporate, partnership or limited
liability company power and authority to own its assets and to transact the
business in which it is now engaged or proposed to be engaged and is duly
qualified as a foreign corporation, partnership or limited liability company and
is in good standing under the laws of each other jurisdiction in which such
qualification is required and in which such failure to so qualify or be in good
standing could not reasonably be expected to have a Material Adverse Effect.
Section 6.02. Power and Authority; No Conflicts. The execution, delivery
and performance by each of the Obligors of the Facility Documents to which it is
a party have been duly authorized by all necessary limited liability company,
corporate and partnership action and do not and will not: (a) require any
consent or approval of its members which has not been obtained; (b) contravene
its organizational documents; (c) violate any provision of, or require any
filing (other than the filings required pursuant to the terms of the Security
Documents), registration, consent or approval under, any law, rule, regulation
(including, without limitation, Regulation U), order, writ, judgment,
injunction, decree, determination or award presently in effect having
applicability to the Parent or any of its Subsidiaries; (d) result in a breach
of or constitute a default or require any consent under any indenture or loan or
credit agreement, or any other agreement, lease or instrument to which the
Parent or any of its Subsidiaries is a party or by which their respective
Properties may be bound or affected; (e) result in, or require, the creation or
imposition of any Lien (other than as created under the Security Documents),
upon or with respect to any of the Properties now owned or hereafter acquired by
the Parent or any of its Subsidiaries; or (f) cause the Parent or any of its
Subsidiaries to be in default under any such law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award or any such indenture,
agreement, lease or instrument.
Section 6.03. Legally Enforceable Agreements. Each Facility Document to
which any Obligor is a party is, or when delivered under this Agreement will be,
a legal, valid and binding obligation of such Obligor enforceable against such
Obligor in accordance with its terms, except to the extent that such enforcement
may be limited by applicable bankruptcy, insolvency and other similar laws
affecting creditors' rights generally and general principles of equity
(regardless of whether such enforceability is considered in a proceeding at law
or in equity).
Section 6.04. Litigation. Except as set forth on SCHEDULE 6.04, there are
no material actions, suits or proceedings pending or, to the knowledge of any
Obligor,
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threatened, against or affecting any LCC Consolidated Entity before any
Governmental Authority.
Section 6.05. Financial Statements.
(a) The consolidated balance sheets of the Borrower and its
Subsidiaries as at December 31, 1996, 1995 and 1994, and the related
consolidated statements of income, cash flows and shareholders' equity (or
members' capital) of the Borrower and its Subsidiaries, for the Fiscal Years
then ended, and the accompanying footnotes, together with the opinion on the
consolidated statements of KPMG Peat Marwick, independent certified public
accountants, and the interim unaudited consolidated balance sheet of the LCC
Consolidated Entities as at September 30, 1997, and the related statements of
income and cash flow of the Borrower and its Subsidiaries, for the nine month
period then ended, copies of which have been furnished to each of the Lenders,
are complete and correct in all material respects and fairly present the
financial condition of the LCC Consolidated Entities at such dates and the
results of the operations of the LCC Consolidated Entities for the periods
covered by such statements, all in accordance with GAAP consistently applied.
(b) The combined balance sheets of the LCC Predecessor Entities as at
December 31, 1993, 1992 and 1991, and the related combined statements of income,
cash flows and shareholders' equity of the LCC Predecessor Entities, for the
Fiscal Year then ended, and the accompanying footnotes, together with the
opinion thereon of KPMG Peat Marwick, independent certified public accountants,
copies of which have been furnished to each of the Lenders, are complete and
correct in all material respects and fairly present the financial condition of
the LCC Predecessor Entities at such dates and the results of the operations of
the LCC Predecessor Entities for the periods covered by such statements, all in
accordance with GAAP consistently applied.
(c) The balance sheet of Old ETP as at December 31, 1995 and the
related consolidated statement of income of Old ETP for the Fiscal Years then
ended, and the accompanying footnotes, together with the opinion on the
statements of KPMG Peat Marwick, independent certified public accountants, and
the interim unaudited consolidated balance sheet of Old ETP as at September 30,
1996, and the related statements of Old ETP for the nine month period then
ended, copies of which have been furnished to each of the Lenders, are complete
and correct in all material respects and fairly present the financial condition
of Old ETP at such dates and the results of the operations of Old ETP for the
periods covered by such statements, all in accordance with GAAP consistently
applied.
(d) The most recent operating plan delivered to the Lenders for the
LCC Consolidated Entities for their current and subsequent Fiscal Years,
including budget, personnel, facilities, capital expenditure and research and
development
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projections, on an annual basis, and projected income and cash flow statements
for each such Fiscal Year, on an annual basis, incorporating the items detailed
in such operating plan for each such Fiscal Year, and accompanied by a
description of the material assumptions used in making such operating plan, have
each been prepared in good faith and are based on reasonable estimates for the
operating performance of the LCC Consolidated Entities on and after the Closing
Date.
(e) Except as set forth in the consolidated balance sheet of the LCC
Consolidated Entities as of September 30, 1997, there are no liabilities of any
LCC Consolidated Entity, fixed or contingent, which are material but are not
reflected in such financial statements or in such notes and which would be
required to be recorded in such financial statements or notes in accordance with
GAAP. No information, exhibit or report furnished by any LCC Consolidated Entity
to the Administrative Agent or any Lender in connection with the negotiation of
this Agreement or any other Facility Document contained any material
misstatement of fact or omitted to state a material fact or any fact necessary
to make the statements contained therein not materially misleading. Since
September 30, 1997, there has been no change which could reasonably be expected
to have a Material Adverse Effect.
Section 6.06. Ownership and Liens. Each of the LCC Consolidated Entities
has title to, or valid leasehold interests in, all of its Properties reflected
in the financial statements referred to in Section 6.05 (other than any
Properties disposed of in the ordinary course of business), and none of the
Properties owned or leased by any LCC Consolidated Entity is subject to any
Lien, except as may be permitted hereunder and except for the Liens created by
the Security Documents; provided that no Obligor is making any representation or
warranty with respect to Liens affecting the fee interest in real Property
leased to any LCC Consolidated Entity and not owned by another LCC Consolidated
Entity.
Section 6.07. Taxes. Except as set forth on SCHEDULE 6.07 or as otherwise
permitted under Section 7.06, each of the LCC Consolidated Entities has filed
(or obtained extensions for) all tax returns (domestic, foreign, federal, state
and local) required to be filed and has paid or provided adequate reserves for
all taxes, assessments and governmental charges and levies shown thereon to be
due, including interest and penalties. The charges, accruals and reserves on the
books of the LCC Consolidated Entities in respect of taxes, assessments and
other governmental charges are adequate.
Section 6.08. ERISA. Each Domestic Plan, Foreign Plan and, to the best
knowledge of each Obligor, Multiemployer Plan, is in compliance in all material
respects with, and has been administered in all material respects in compliance
with, the applicable provisions of ERISA, the Code and any other applicable
domestic, foreign, federal, state or local law, and no event or condition is
occurring or exists concerning which any LCC Consolidated Entity would be under
an obligation to
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furnish a report to the Lenders in accordance with Section 7.08(j). Each of the
LCC Consolidated Entities and the ERISA Affiliates has fulfilled its obligations
under the minimum funding standards of ERISA, the Code and any other applicable
domestic, foreign, federal, state or local law.
Section 6.09. Subsidiaries and Affiliates. As of the Closing Date, SCHEDULE
6.09 sets forth the name of (a) each Subsidiary of each LCC Consolidated Entity,
in each case showing (i) the jurisdiction of organization of each such
Subsidiary and (ii) percentage of such LCC Consolidated Entity's ownership in
such Subsidiary and (b) each Affiliate of each LCC Consolidated Entity, in each
case showing (i) the percentage of such Affiliate's ownership interest in such
LCC Consolidated Entity, (ii) the percentage of such LCC Consolidated Entity's
ownership interest in such Affiliate, and (iii) the percentage of the common
controlling person's interest in such LCC Consolidated Entity and such
Affiliate. All of the outstanding shares of Capital Stock of each LCC
Consolidated Entity are validly issued, fully paid and nonassessable. Except as
set forth on SCHEDULE 6.09, no LCC Consolidated Entity owns or holds the right
to acquire any shares of stock or any other security or interest in any other
Person.
Section 6.10. Credit Arrangements. As of the Closing Date, SCHEDULE 6.10 is
a complete and correct list of all credit agreements, indentures, purchase
agreements, Guaranties, Capital Leases and other investments, agreements and
arrangements presently in effect providing for or relating to extensions of
credit (including agreements and arrangements for the issuance of letters of
credit or for acceptance financing) in respect of which any LCC Consolidated
Entity is in any manner directly or contingently obligated; and the maximum
principal or face amounts of the credit in question, outstanding and which can
be outstanding, are correctly stated, and all Liens of any nature given or
agreed to be given as security therefor are correctly described or indicated in
such Schedule (except that Liens permitted under Section 8.03 are described as
of September 30, 1996).
Section 6.11. Material Contracts. As of September 30, 1996, SCHEDULE 6.11
contains a complete and correct list of all revenue-producing contracts and all
Material Contracts between any LCC Consolidated Entity and another Person or
other Persons. Each of the LCC Consolidated Entities and, to the knowledge of
the Borrower, each other party thereto have in all material respects performed
all the obligations required to be performed by them to date, have received no
notice of default and are not in default under any Material Contract now in
effect to which any LCC Consolidated Entity is a party or by which it or its
Property may be bound. Except as set forth on SCHEDULE 6.11, each of the
Material Contracts is in full force and effect with no default, anticipated or
threatened default or failure of performance or observance of any obligations or
conditions contained therein, and none of the foregoing parties nor any LCC
Consolidated Entity has provided any notice of default or of its intention to
terminate any Material Contract.
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Section 6.12. Proprietary Rights. As of the Closing Date, SCHEDULE 6.12
contains a complete and accurate list of (a) all patents, registered and
unregistered trademarks, registered service marks, and registered copyrights
owned or filed by any LCC Consolidated Entity (other than the Subsidiary
Borrower) and (b) all licenses and other rights granted by any third party to
any LCC Consolidated Entity (other than the Subsidiary Borrower) with respect to
any Proprietary Rights used in the conduct of its business (excluding shrink
wrap licenses held by any LCC Consolidated Entity with respect to software for
internal use), the unavailability of which could reasonably be expected to have
a Material Adverse Effect. Except for licenses granted to customers and
distributors in the ordinary course of business and except as set forth on
SCHEDULE 6.12, no LCC Consolidated Entity (other than the Subsidiary Borrower)
has granted licenses or other rights to any third party with respect to any
Proprietary Rights. Each of the LCC Consolidated Entities owns or has sufficient
right to use pursuant to a valid and enforceable license all Proprietary Rights
necessary for the conduct of its business without infringing the rights of
others except for such infringements as could not reasonably be expected to have
a Material Adverse Effect. No loss or expiration of any Proprietary Right, the
loss or expiration of which could reasonably be expected to have a Material
Adverse Effect, is pending or, to the knowledge of each Obligor, threatened.
Each of the LCC Consolidated Entities has taken reasonable and appropriate steps
to protect and preserve the confidentiality of its trade secrets and
confidential information as outlined on SCHEDULE 6.12. Except as set forth on
SCHEDULE 6.12, (i) no LCC Consolidated Entity has received notice from any
Person asserting the invalidity, misuse or unenforceability of any Proprietary
Rights owned or used by any LCC Consolidated Entity and to the best knowledge of
each Obligor, no such claims are threatened and there are no grounds for the
same, (ii) within the last five years, no LCC Consolidated Entity has received a
notice of nor is aware of any facts which in any LCC Consolidated Entity's
reasonable judgment indicate a reasonable likelihood of any conflict with the
asserted Proprietary Rights of others, (iii) to the best knowledge of each
Obligor, the conduct of each LCC Consolidated Entity's business has not
infringed or misappropriated and does not infringe or misappropriate any
Proprietary Rights of other Persons, nor would any future conduct as presently
proposed infringe any Proprietary Rights of other Persons, and the Proprietary
Rights owned by any LCC Consolidated Entity are not currently being infringed or
misappropriated by other Persons, except in each case for such infringements as
could not reasonably be expected to have a Material Adverse Effect.
Section 6.13. Hazardous Materials. Each of the LCC Consolidated Entities is
in compliance with all Environmental Laws in effect in each jurisdiction where
it is presently doing business. No LCC Consolidated Entity is subject to any
liability under any Environmental Law.
In addition, no LCC Consolidated Entity has received any (i) notice from
any Governmental Authority by which any of its present or previously-owned or
leased real Properties has been designated, listed, or identified in any manner
by any Governmental Authority charged with administering or enforcing any
Environmental
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Law as a Hazardous Material disposal or removal site, "Super Fund" clean-up
site, or candidate for removal or closure pursuant to any Environmental Law,
(ii) notice of any Lien arising under or in connection with any Environmental
Law that has attached to any revenues of, or to, any of its owned or leased real
Properties, or (iii) summons, citation, notice, directive, letter, or other
written or oral communication from any Governmental Authority concerning any
intentional or unintentional action or omission by such LCC Consolidated Entity
in connection with its ownership or leasing of any real Property resulting in
the releasing, spilling, leaking, pumping, pouring, emitting, emptying, dumping,
or otherwise disposing of any Hazardous Material into the environment resulting
in any violation of any Environmental Law.
Section 6.14. No Default on Outstanding Judgments or Orders. As of the
Closing Date, each of the LCC Consolidated Entities has satisfied all judgments
and no LCC Consolidated Entity is in default with respect to any final judgment,
writ, injunction, decree, rule or regulation of any Governmental Authority.
Section 6.15. No Defaults on Other Agreements. Except for the MCI Note
Purchase Documents, no LCC Consolidated Entity is a party to any indenture, loan
or credit agreement or any lease or other agreement or instrument or subject to
any corporate, partnership or limited liability company restriction which could
have a Material Adverse Effect. No LCC Consolidated Entity is in default in any
respect in the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any agreement or instrument material to its
business to which it is a party.
Section 6.16. Labor Disputes and Acts of God. Neither the Business nor the
Properties of any LCC Consolidated Entity are affected by any fire, explosion,
accident, strike, lockout or other labor dispute, drought, storm, hail,
earthquake, embargo, act of God or of the public enemy or other casualty
(whether or not covered by insurance), which could have a Material Adverse
Effect.
Section 6.17. Governmental Regulation. Neither any LCC Consolidated Entity
nor any Affiliate is subject to regulation under the Public Utility Holding
Company Act of 1935, the Investment Company Act of 1940, the Interstate Commerce
Act, the Federal Power Act or any statute or regulation limiting its ability to
incur indebtedness for money borrowed as contemplated hereby.
Section 6.18. No Forfeiture. Neither any LCC Consolidated Entity nor any
Affiliate is engaged in or proposes to be engaged in the conduct of any business
or activity which could result in a Forfeiture Proceeding and no Forfeiture
Proceeding against any of them is pending or threatened.
Section 6.19. Solvency. The present fair saleable value of the assets of
each of the Borrower and the Subsidiary Borrower after giving effect to all the
transactions contemplated by the Facility Documents and the funding of the
Commitments and the
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issuance of the Letters of Credit hereunder exceeds the amount that will be
required to be paid on or in respect of the existing Debts and other liabilities
(including contingent liabilities) of each of the Borrower and the Subsidiary
Borrower as they mature. The Property of each of the Borrower and the Subsidiary
Borrower does not constitute unreasonably small capital for each of the Borrower
and the Subsidiary Borrower to carry out its business as now conducted and as
proposed to be conducted including the capital needs of each of the Borrower and
the Subsidiary Borrower. Neither the Borrower nor the Subsidiary Borrower
intends to, nor does either the Borrower or the Subsidiary Borrower believe that
it will, incur Debts beyond its ability to pay such Debts as they mature (taking
into account the timing and amounts of cash to be received by each of the
Borrower and the Subsidiary Borrower, and of amounts to be payable on or in
respect of Debt of each of the Borrower and the Subsidiary Borrower). The cash
available to each of the Borrower and the Subsidiary Borrower, after taking into
account all other anticipated uses of the cash of each of the Borrower and the
Subsidiary Borrower, is anticipated to be sufficient to pay all such amounts on
or in respect of Debt of the Borrower when such amounts are required to be paid.
Neither the Borrower nor the Subsidiary Borrower believes that final judgments
against it in actions for money damages will be rendered at a time when, or in
an amount such that, either the Borrower or the Subsidiary Borrower will be
unable to satisfy any such judgments promptly in accordance with their terms
(taking into account the maximum reasonable amount of such judgments in any such
actions and the earliest reasonable time at which such judgments might be
rendered). The cash available to the each of the Borrower and the Subsidiary
Borrower after taking into account all other anticipated uses of the cash of
each of the Borrower and the Subsidiary Borrower, is anticipated to be
sufficient to pay all such judgments promptly in accordance with their terms.
Section 6.20. MCI Note Purchase Documents. Each of the Lenders and the
Administrative Agent has received a complete and correct copy of the MCI Note
Purchase Documents (including all exhibits, schedules and disclosure letters
referred to therein or delivered pursuant thereto) and all amendments thereto,
waivers relating thereto and other side letters or agreements affecting the
terms thereof. Each of the MCI Note Purchase Documents to which it is a party
has been duly executed and delivered by Old LCC and the Parent and, to the best
knowledge of the Borrower, MCI and is in full force and effect. Each of the
representations and warranties of Old LCC and the Parent set forth in each of
the MCI Note Purchase Documents is true and correct in all material respects as
of the Closing Date. Each of the MCI Note Purchase Documents to which it is a
party is a legal, valid and binding obligation of the Borrower and the Parent
and, to the best knowledge of the Borrower, MCI enforceable against the Borrower
and the Parent, and, to the best knowledge of the Borrower, MCI in accordance
with its terms, except to the extent that such enforcement may be limited by
applicable bankruptcy, insolvency and other similar laws affecting creditors'
rights generally. Each of the MCI Note Purchase Agreement and the MCI
Subordinated Guaranty has been terminated and no party thereto has any further
rights or obligations thereunder.
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Section 6.21. NextWave Investment Documents; DCR Investment Documents. Each
of the Lenders and the Administrative Agent has received a complete and correct
copy of the NextWave Investment Documents and the DCR Investment Documents
(including all exhibits, schedules and disclosure letters referred to therein or
delivered pursuant thereto) and all amendments thereto, waivers relating thereto
and other side letters or agreements affecting the terms thereof. Each of the
NextWave Investment Documents and the DCR Investment Documents has been duly
executed and delivered by Old LCC and, to the best knowledge of the Borrower,
DCR and is in full force and effect. To the best knowledge of the Borrower, each
of the representations and warranties of NextWave and DCR set forth in each of
the NextWave Investment Documents and the DCR Investment Documents is true and
correct in all material respects as of the Closing Date. Each of the NextWave
Investment Documents and the DCR Investment Documents is a legal, valid and
binding obligation of the Borrower and, to the best knowledge of the Borrower,
NextWave and DCR, respectively, enforceable against the Borrower and, to the
best knowledge of the Borrower, NextWave and DCR, respectively, in accordance
with its terms, except to the extent that such enforcement may be limited by
applicable bankruptcy, insolvency and other similar laws affecting creditors'
rights generally.
Section 6.22. ETP Acquisition Documents. Each of the Lenders and the
Administrative Agent has received a complete and correct copy of the ETP
Acquisition Documents (including all exhibits, schedules and disclosure letters
referred to therein or delivered pursuant thereto) and all amendments thereto,
waivers relating thereto and other side letters or agreements affecting the
terms thereof. Each of the ETP Acquisition Documents has been duly executed and
delivered by the Subsidiary Borrower and, to the best knowledge of the Borrower,
Old ETP and is in full force and effect. To the best knowledge of the Borrower,
each of the representations and warranties of Old ETP set forth in each of the
ETP Acquisition Documents is true and correct in all material respects as of the
Closing Date. Each of the ETP Acquisition Documents is a legal, valid and
binding obligation of the Subsidiary Borrower and, to the best knowledge of the
Borrower, Old ETP enforceable against the Subsidiary Borrower and, to the best
knowledge of the Borrower, Old ETP in accordance with its terms, except to the
extent that such enforcement may be limited by applicable bankruptcy, insolvency
and other similar laws affecting creditors' rights generally.
Section 6.23. Security Documents. The Security Documents are effective to
create in favor of the Administrative Agent for the benefit of the Lenders a
legal, valid and enforceable Lien on and security interest in all right, title
and interest of each Obligor in the Collateral securing the Obligations. Except
for Liens permitted under Section 8.03 entitled to priority by law, the
Administrative Agent has a fully perfected and continuing first priority Lien on
and security interest in the Collateral, free from all Liens other than Liens
permitted under Section 8.03.
Section 6.24. Senior Debt. The obligations of the Borrower hereunder and
under the other Facility Documents constitute "Senior Debt" under and as defined
in
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the Subordination Agreement and in the MCI Subordinated Notes with respect to
the MCI Subordinated Notes.
ARTICLE 7. AFFIRMATIVE COVENANTS.
So long as any Obligation shall remain unpaid, any Letter of Credit shall
remain outstanding or any Lender shall have any Commitment, the Borrower shall,
and shall cause each of its Subsidiaries to:
Section 7.01. Maintenance of Existence. Preserve and maintain its
corporate, partnership or limited liability company existence and good standing
in the jurisdiction of its organization and qualify and remain qualified as a
foreign corporation, partnership or limited liability company in each
jurisdiction in which such qualification is required, except with respect to (a)
sales or other dispositions permitted under Section 8.08 and (b) mergers and
consolidations permitted under Section 8.10.
Section 7.02. Conduct of Business. Continue to primarily engage in the
Business.
Section 7.03. Maintenance of Properties. Maintain, keep and preserve all of
its Properties (including, without limitation, its Proprietary Rights) necessary
or useful in the proper conduct of the Business in good working order and
condition, ordinary wear and tear excepted.
Section 7.04. Maintenance of Records. Keep adequate records and books of
account, in which complete entries will be made in accordance with GAAP,
reflecting all financial transactions of such LCC Consolidated Entity; provided
that, with respect to each of the Foreign Subsidiaries, such entries may be made
in accordance with generally accepted accounting principles in effect in its
jurisdiction of organization until such time that such entries are consolidated
with the entries of the Borrower and its Domestic Subsidiaries.
Section 7.05. Maintenance of Insurance. Maintain insurance with financially
sound and reputable insurance companies or associations rated "A" or better by
A.M. Best Company, Inc. in such amounts and including such coverages (including,
without limitation, casualty, workers compensation, liability and business
interruption insurance) as are acceptable to an insurance broker of national
reputation selected by the Borrower and reasonably acceptable to the Required
Lenders and, in any event, as are usually carried by companies engaged in the
same or a similar business and similarly situated, which insurance shall name
the Administrative Agent as loss payee or additional insured, as its interest
may appear, and shall contain a clause requiring the insurer to give not less
than 30 days' notice to the Administrative Agent in the event of cancellation of
the policy for any reason whatsoever.
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Section 7.06. Compliance with Laws. Comply in all material respects with
all applicable laws, rules, regulations and orders (including, without
limitation, any Environmental Law), such compliance to include, without
limitation, paying before the same become delinquent all taxes, assessments and
governmental charges imposed upon it or upon its Property; provided, however,
that no delinquency with respect to the payment of any tax, assessment or
governmental charge shall represent a violation of this Section 7.06 so long as
(a) the obligation of any LCC Consolidated Entity to pay such tax, assessment or
other governmental charge is being contested in good faith by appropriate
proceedings and (b) adequate reserves in the good faith and reasonable judgment
of the Borrower have been established with respect thereto.
Section 7.07. Right of Inspection. At any reasonable time and from time to
time, permit the Administrative Agent or any Lender or any agent or
representative thereof, to examine and make copies and abstracts from the
records and books of account of, and visit the Properties of, such LCC
Consolidated Entity, and to discuss the affairs, finances and accounts of such
LCC Consolidated Entity with its officers and directors and independent
accountants.
Section 7.08. Reporting Requirements. Furnish directly to each of the
Lenders:
(a) as soon as available and in any event within 120 days after the
end of each Fiscal Year, consolidated and unaudited consolidating balance sheets
of the LCC Consolidated Entities as of the end of such Fiscal Year and
consolidated and unaudited consolidating statements of income, cash flows and
members' capital of the LCC Consolidated Entities for such Fiscal Year, all in
reasonable detail and stating in comparative form the respective figures for the
corresponding date and period in the prior Fiscal Year and all prepared in
accordance with GAAP and accompanied by an opinion on the consolidated
statements acceptable to the Lenders by KPMG Peat Marwick or other independent
accountants of national standing selected by the LCC Consolidated Entities;
(b) as soon as available and in any event within 45 days after the end
of each of the first three Fiscal Quarters, consolidated and consolidating
balance sheets of the LCC Consolidated Entities as of the end of such Fiscal
Quarter and consolidated statements of income, cash flows and members' capital
of the LCC Consolidated Entities for the period commencing at the end of the
previous Fiscal Year and ending with the end of such Fiscal Quarter, all in
reasonable detail and stating in comparative form the respective figures for the
corresponding date and period in the previous Fiscal Year and all prepared in
accordance with GAAP and certified by the president or the chief financial
officer of the LCC Consolidated Entities (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements
referred to above, a Compliance Certificate of the president or chief financial
officer
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of the Borrower (i) certifying that to the best of his knowledge no Default or
Event of Default has occurred and is continuing or, if a Default or Event of
Default has occurred and is continuing, a statement as to the nature thereof and
the action which is proposed to be taken with respect thereto and (ii) with
computations demonstrating compliance with the covenants contained in Article 9;
(d) simultaneously with the delivery of the annual financial
statements referred to in Section 7.08(a) for the Fiscal Year ending on December
31, 1996 and each Fiscal Year ending thereafter, a certificate of the
independent public accountants who audited such statements (i) certifying to the
effect that, in making the examination necessary for the audit of such
statements, they have obtained no knowledge of any condition or event which
constitutes a Default or Event of Default, or if such accountants shall have
obtained knowledge of any such condition or event, specifying in such
certificate each such condition or event of which they have knowledge and the
nature and status thereof and (ii) with computations demonstrating compliance
with the covenants contained in Article 9;
(e) simultaneously with the delivery of the financial statements
referred to in Section 7.08(a) and Section 7.08(b), a narrative explanation
signed by the president or the chief financial officer of the Borrower of any
material variance from the LCC Consolidated Entities' budget for the Fiscal Year
that is reflected in such financial statements;
(f) not later than the 30th day following the commencement of each
Fiscal Year, (i) a projected consolidated balance sheet of the LCC Consolidated
Entities for such Fiscal Year and the next four Fiscal Years on an annual basis
and (ii) an operating plan for the LCC Consolidated Entities for such Fiscal
Year and the next four Fiscal Years, including budget, personnel, facilities,
capital expenditure and research and development projections on an annual basis
and a projected consolidated income and cash flows statement for such Fiscal
Years on an annual basis, incorporating the items detailed in such operating
plan for such Fiscal Years, and accompanied by a description of the material
assumptions used in making such operating plan;
(g) promptly after the commencement thereof, notice of all material
actions, suits, and proceedings before any Governmental Authority against or
affecting any LCC Consolidated Entity or any of their respective Properties;
(h) as soon as possible and in any event within 10 days after any LCC
Consolidated Entity knows or has reason to know of the occurrence of each
Default or Event of Default a written notice setting forth the details of such
Default or Event of Default and the action which is proposed to be taken by the
LCC Consolidated Entities with respect thereto;
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(i) as soon as possible, and in any event within 10 days after any LCC
Consolidated Entity knows or has reason to know that any of the events or
conditions specified below with respect to any Domestic Plan, Foreign Plan or
Multiemployer Plan has occurred or exists, a statement signed by a senior
financial officer of such LCC Consolidated Entity setting forth details
respecting such event or condition and the action, if any, which such LCC
Consolidated Entity or an ERISA Affiliate proposes to take with respect thereto
(and a copy of any report or notice required to be filed with or given to the
PBGC or any other Governmental Authority by such LCC Consolidated Entity or an
ERISA Affiliate with respect to such event or condition): (i) any reportable
event, as defined in Section 4043(b) of ERISA, with respect to a Domestic Plan,
as to which the PBGC has not by regulation waived the requirement of Section
4043(a) of ERISA that it be notified within 30 days of the occurrence of such
event (provided that a failure to meet the minimum funding standard of Section
412 of the Code or Section 302 of ERISA including, without limitation, the
failure to make on or before its due date a required installment under Section
412(m) of the Code or Section 302(e) of ERISA, shall be a reportable event
regardless of the issuance of any waivers in accordance with Section 412(d) of
the Code) and any request for a waiver under Section 412(d) of the Code for any
Domestic Plan; (ii) the distribution under Section 4041 of ERISA or under any
similar foreign law of a notice of intent to terminate any Domestic Plan or
Foreign Plan or any action taken by such LCC Consolidated Entity or an ERISA
Affiliate to terminate any Domestic Plan or Foreign Plan; (iii) the institution
by the PBGC or any other Governmental Authority of proceedings under Section
4042 of ERISA or under any similar foreign law for the termination of, or the
appointment of a trustee to administer, any Domestic Plan or any Foreign Plan,
or the receipt by such LCC Consolidated Entity or any ERISA Affiliate of a
notice from a Multiemployer Plan that such action has been taken by the PBGC
with respect to such Multiemployer Plan; (iv) the complete or partial withdrawal
from a Multiemployer Plan by such LCC Consolidated Entity or any ERISA Affiliate
that results in liability under Section 4201 or 4204 of ERISA (including the
obligation to satisfy secondary liability as a result of a purchaser default) or
the receipt by such LCC Consolidated Entity or any ERISA Affiliate of notice
from a Multiemployer Plan that it is in reorganization or insolvency pursuant to
Section 4241 or 4245 of ERISA or that it intends to terminate or has terminated
under Section 4041A of ERISA; (v) the institution of a proceeding by a fiduciary
or any Multiemployer Plan against such LCC Consolidated Entity or any ERISA
Affiliate to enforce Section 515 of ERISA, which proceeding is not dismissed
within 30 days; (vi) the adoption of an amendment to any Domestic Plan that
pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA would result
in the loss of tax-exempt status of the trust of which such Domestic Plan is a
part if such LCC Consolidated Entity or an ERISA Affiliate fails to timely
provide security to the Domestic Plan in accordance with the provisions of said
Sections; (vii) any event or circumstance exists which may reasonably be
expected to constitute grounds for such LCC Consolidated Entity or any ERISA
Affiliate to incur liability under Title IV of ERISA or under Section 412(c)(11)
or 412(n) of the Code with respect to any Domestic Plan; and (viii) the Unfunded
Benefit Liabilities of one or more Domestic
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Plans and Foreign Plans increase after the date of this Agreement in an amount
which is material in relation to the financial condition of the Consolidated
Entities; provided, however, that such increase shall not be deemed to be
material so long as it does not exceed during any consecutive 3 year period
$500,000;
(j) promptly after the request of any Lender, copies of each annual
report filed pursuant to Section 104 of ERISA with respect to each Domestic Plan
(including, to the extent required by Section 104 of ERISA, the related
financial and actuarial statements and opinions and other supporting statements,
certifications, schedules and information referred to in Section 103) and each
annual report filed with respect to each Domestic Plan under Section 4065 of
ERISA; provided, however, that in the case of a Multiemployer Plan, such annual
reports shall be furnished only if they are available to such LCC Consolidated
Entity or an ERISA Affiliate;
(k) promptly after the sending or filing thereof, copies of all proxy
statements, financial statements and reports which any LCC Consolidated Entity
sends to its holders of Capital Stock, and copies of all regular, periodic and
special reports, and all registration statements which such LCC Consolidated
Entity files with the Securities and Exchange Commission or any Governmental
Authority which may be substituted therefor, or with any national securities
exchange;
(l) promptly after becoming aware of the existence of any violation or
alleged violation of any Environmental Law by any LCC Consolidated Entity and
with respect to any real Property owned or leased by any LCC Consolidated
Entity, prompt written notice of and a description of the nature of such
violation or alleged violation, what action such LCC Consolidated Entity is
taking or proposes to take with respect thereto and, when known, any action
taken, or proposed to be taken, by any Governmental Authority with respect
thereto;
(m) simultaneously with the delivery of the financial statements
referred to in Section 7.08(a) and Section 7.08(b), a report describing any
unscheduled termination, material amendment or material default under any
Material Revenue-Producing Contract (whether or not constituting a Material
Contract Termination), and the entering into of any new Material
Revenue-Producing Contract;
(n) at least once a Fiscal Year, a report of a reputable insurance
broker with respect to all insurance maintained by the LCC Consolidated Entities
together with a certificate of insurance evidencing the effectiveness of the
policies of insurance required to be maintained pursuant the provisions of
Section 7.05;
(o) simultaneously with the delivery of the financial statements
referred to in Section 7.08(a) and Section 7.08(b), a report, with respect to
each LCC Consolidated Entity, as to any new location or relocation of inventory
or equipment, any new interests in real Property acquired, any new interests in
Proprietary Rights obtained and any new equity interests acquired, together with
such financing
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statements, mortgages, assignments and stock certificates as may be necessary to
perfect the Lien of the Administrative Agent under the Security Documents;
(p) promptly after the commencement thereof or promptly after any LCC
Consolidated Entity knows of the commencement or threat thereof, notice of any
Forfeiture Proceeding;
(q) damage to all or any part of the Property of any LCC Consolidated
Entity by casualty or damage or taking of all or any part of any LCC
Consolidated Entity by condemnation that would cause business interruption or
would cause monetary loss in excess of $500,000 not otherwise covered by
insurance; and
(r) such other information respecting the condition or operations,
financial or otherwise, of any LCC Consolidated Entity as the Administrative
Agent or any Lender may from time to time reasonably request.
Section 7.09. Additional Guarantors. Promptly upon any Person(s) becoming a
Significant Subsidiary, cause such Significant Subsidiary to become a
"Subsidiary Guarantor" and thereby an "Obligor" hereunder pursuant to the
Assumption Agreement and deliver such proof of corporate, partnership or limited
liability company action, incumbency of officers, opinions of counsel and other
documents as is consistent with those delivered by the Obligors pursuant to
Article 5 or as the Administrative Agent shall have reasonably requested.
Section 7.10. After Acquired Real Property. Promptly upon acquiring any
material interest in any real Property or, in the case of monopole towers
acquired or constructed by the New Subsidiary Guarantor, on March 31, 1998,
cause each Obligor to (a) immediately provide written notice thereof to the
Administrative Agent, setting forth with specificity a description of the
interest acquired, the location of such real Property, any structures or
improvements thereon and the fair market value of such real Property; (b) as
soon as practicable thereafter, execute and deliver to the Administrative Agent
a mortgage or trust deed in a form reasonably acceptable to the Administrative
Agent, together with such of the other documents and instruments as the
Administrative Agent shall have reasonably requested; (c) deliver a mortgagee
policy of title insurance for such real Property in an amount no less the fair
market value of such real Property; and (d) deliver such proof of corporate,
partnership or limited liability company action, incumbency of officers,
opinions of counsel and other documents as the Administrative Agent shall have
reasonably requested.
Section 7.11. Certain Collateral Issues. Promptly on March 31, 1998, cause
the Subsidiary Borrower to (a) secure its obligations under this Agreement, the
Swingline Notes and the other Facility Documents pursuant to a security
agreement in form and substance reasonably acceptable to the Administrative
Agent together with such other documents and instruments as the Administrative
Agent shall have reasonably requested and (b) deliver such proof of corporate,
partnership or limited
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liability company action, incumbency of officers, opinions of counsel and other
documents as the Administrative Agent shall have reasonably requested.
ARTICLE 8. NEGATIVE COVENANTS.
So long as any Obligation shall remain unpaid, any Letter of Credit shall
remain outstanding or any Lender shall have any Commitment, the Borrower shall
not, and shall cause each of its Subsidiaries not to:
Section 8.01. Debt. Create, incur, assume or suffer to exist any Debt,
except:
(a) Debt of the LCC Consolidated Entities under this Agreement, the
Notes, the Letters of Credit, the Interest Rate Protection Agreements, the
Currency Protection Agreements and the other Facility Documents;
(b) Debt described on SCHEDULE 6.10 but no renewals, extensions or
refinancings thereof;
(c) Debt consisting of Guaranties permitted pursuant to Section 8.02;
(d) Consolidated Subordinated Debt;
(e) Debt under documentary and standby letters of credit exclusive of
the Letters of Credit so long as the aggregate reimbursement obligations under
such letters of credit together with the aggregate reimbursement obligations of
all outstanding letters of credit described on Schedule 6.10 does not exceed at
any time $750,000;
(f) Debt of (i) any Obligor (other than the Subsidiary Borrower) to
any other Obligor (other than the Subsidiary Borrower), (ii) the Borrower to any
of its Subsidiaries so long as such Debt is subordinated to the Obligations on
terms and conditions acceptable to the Required Lenders and (iii) any Subsidiary
of the Borrower to the Borrower so long as (A) such Debt is evidenced by a
promissory note on terms reasonably acceptable to the Required Lenders which
promissory note shall be pledged to the Administrative Agent as collateral for
the Obligations and (B) the aggregate principal amount of all such Debt does not
exceed at any time $1,000,000;
(g) accounts payable to trade creditors for goods or services which
are not aged more than 120 days from billing date and current operating
liabilities (other than for borrowed money) which are not more than 120 days
past due, in each case incurred in the ordinary course of business and paid
within the specified time, unless contested in good faith and by appropriate
proceedings; and
(h) Debt of any LCC Consolidated Entity secured by Purchase Money
Liens permitted by Section 8.03(i) and any renewals, extensions or refinancings
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thereof so long as the aggregate principal amount of all such Debt together with
all Debt then outstanding secured by Purchase Money Liens described on SCHEDULE
6.10 does not exceed at any time $1,000,000.
Section 8.02. Guaranties. Assume, guarantee, endorse or otherwise become
directly or contingently responsible or liable for any Guaranty, except:
(a) Guaranties by the Subsidiaries of the Borrower of the Obligations;
(b) Guaranties by the Borrower of the Debt of other Persons so long as
the aggregate amount of such Debt does not exceed at any time $1,000,000; and
(c) Guaranties by endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business.
Section 8.03. Liens. Create, incur, assume or suffer to exist any
Lien, upon or with respect to any of its Properties, now owned or hereafter
acquired, except:
(a) Liens in favor of the Administrative Agent on behalf of the
Lenders securing the Obligations under this Agreement, the Notes, the Letters of
Credit, the Interest Rate Protection Agreements, the Currency Protection
Agreements and the other Facility Documents;
(b) Liens for taxes or assessments or other government charges or
levies if not yet due and payable or if due and payable if they are being
contested in good faith by appropriate proceedings and for which appropriate
reserves are maintained;
(c) Liens imposed by law, such as mechanic's, materialmen's,
landlord's, warehousemen's and carrier's Liens, and other similar Liens,
securing obligations incurred in the ordinary course of business which are not
past due for more than 60 days, or which are being contested in good faith by
appropriate proceedings and for which appropriate reserves have been
established;
(d) Liens under workmen's compensation, unemployment insurance, social
security or similar legislation (other than ERISA);
(e) Liens, deposits or pledges to secure the performance of bids,
tenders, contracts (other than contracts for the payment of money), leases
(permitted under the terms of this Agreement), public or statutory obligations,
surety, stay, appeal, indemnity, performance or other similar bonds, or other
similar obligations arising in the ordinary course of business;
(f) judgment and other similar Liens arising in connection with court
proceedings that do not exceed $500,000 in the aggregate; provided that the
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execution or other enforcement of such Liens is effectively stayed and the
claims secured thereby are being actively contested in good faith and by
appropriate proceedings;
(g) easements, rights-of-way, restrictions and other similar
encumbrances which, in the aggregate, do not materially interfere with the
occupation, use and enjoyment by any LCC Consolidated Entity of the Property
encumbered thereby in the normal course of its business or materially impair the
value of the Property subject thereto;
(h) Liens described on SCHEDULE 6.10 provided that such Liens shall
secure only those obligations which they secure on the date hereof;
(i) Liens on Domestic Cash Equivalents securing the reimbursement
obligations of any LCC Consolidated Entity under letters of credit permitted
under Section 8.01(e); and
(j) Purchase Money Liens; provided that (i) the Person owning any
Property subject to such Lien is acquired or any Property subject to such Lien
is acquired or constructed by any LCC Consolidated Entity and the Lien on any
such Property is created within 120 days of such acquisition or construction;
(ii) the obligation secured by any Lien so created, assumed or existing shall
not exceed 100% of the lesser of cost or fair market value as of the time of
acquisition or construction of the Property covered thereby to such LCC
Consolidated Entity acquiring or constructing the same; (iii) each such Lien
shall attach, in the case of an acquisition, only to the Property so acquired,
Property associated with such Property, fixed improvements thereon and the
proceeds thereof and, in the case of construction, only to the Property so
constructed, Property associated with such Property, the land thereunder, the
fixed improvements attached thereto and the proceeds thereof; and (iv) the
obligations secured by such Lien are permitted by the provisions of Section
8.01(h) and the related expenditure is permitted under Section 8.13.
Section 8.04. Leases. Create, incur, assume or suffer to exist any
obligation as lessee for the rental or hire of any Property, except:
(a) leases existing on the date of this Agreement and any extensions
or renewals thereof;
(b) Capital Leases permitted by Section 8.01, Section 8.03 and Section
8.13; and
(c) other leases, provided that Consolidated Rentals during any Fiscal
Year shall not exceed $7,500,000.
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Section 8.05. Sale and Leaseback. Sell, transfer or otherwise dispose of
any real or personal Property to any Person and thereafter directly or
indirectly lease back the same or similar Property.
Section 8.06. Investments. Make any Investment, except:
(a) in Domestic Cash Equivalents and Foreign Cash Equivalents;
(b) in Property to be used or useful in the ordinary course of
business of such LCC Consolidated Entity;
(c) in stock, obligations or securities received in settlement of
trade debts (created in the ordinary course of business and not, in any event,
in excess of $500,000) owing to such LCC Consolidated Entity;
(d) to or in any Obligor (other than the Subsidiary Borrower) or in
any corporation, limited partnership or limited liability business entity that
concurrently with such Investment is or becomes an Obligor (other than the
Subsidiary Borrower);
(e) in loans or advances by the Borrower to the Parent to assist the
Parent in paying certain taxes due in connection with the assumption of the MCI
Subordinated Telcom Note by the Borrower so long as (i) the aggregate amount of
such loans or advances does not exceed $3,500,000 at any time and (ii) such
loans and advances are evidenced by a promissory note on terms reasonably
acceptable to the Required Lenders and which promissory note shall be pledged to
the Administrative Agent as collateral for the Obligations;
(f) in connection with an Acceptable Acquisition;
(g) in connection with an Acceptable Investment;
(h) in NextWave or DCR pursuant to the terms of the NextWave
Investment Documents and the DCR Investment Documents, respectively; and
(i) in loans incurred in the ordinary course of business or advances
to employees which in the aggregate do not exceed $750,000 at any time.
Section 8.07. Restricted Payments. Make any Restricted Payment, except:
(a) the declaration and payment of cash dividends by a Subsidiary of
the Borrower on its Capital Stock to the Borrower or to a Wholly-Owned
Subsidiary of the Borrower; and
(b) so long as no Default or Event of Default shall have occurred and
be continuing, or would result from any of the following payments, payments by
the
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Borrower of accrued interest on the MCI Subordinated Notes on and not prior to
the respective due dates thereof.
Section 8.08. Sale of Assets. Sell, lease, assign, transfer or otherwise
dispose of any of its now owned or hereafter acquired Property (including,
without limitation, shares of stock and indebtedness, receivables and leasehold
interests); except:
(a) for inventory disposed of in the ordinary course of business;
(b) for Proprietary Rights licensed in the ordinary course of
business;
(c) the sale or other disposition of Property no longer used or useful
in the conduct of its business;
(d) the sale or other disposition of Property during each Fiscal Year
so long as the aggregate consideration for such disposition and all other
dispositions made during such Fiscal Year does not exceed $500,000; and
(e) any LCC Consolidated Entity may effect a merger, consolidation or
transfer of substantially all of its Property permitted by Section 8.10.
Section 8.09. Transactions with Affiliates. (a) Make any Investment in an
Affiliate except as otherwise permitted under Section 8.06; (b) transfer, sell,
lease, assign or otherwise dispose of any Property to any Affiliate; (c) merge
into or consolidate with or purchase or acquire Property from any Affiliate
except as otherwise permitted under Section 8.10; or (d) enter into any other
transaction directly or indirectly with or for the benefit of any Affiliate
(including, without limitation, Guaranties and assumption of obligations of any
Affiliate); provided that (x) any Affiliate who is an individual may serve as a
director, member of a membership committee, officer or employee of any LCC
Consolidated Entity and receive reasonable compensation for his or her services
in such capacity and (y) any LCC Consolidated Entity may enter into transactions
(other than Investments by such LCC Consolidated Entity in any Affiliate not
permitted under Section 8.06) in the ordinary course of business if the monetary
or business consideration arising therefrom would be substantially as
advantageous to such LCC Consolidated Entity as the monetary or business
consideration which would obtain in a comparable arm's length transaction with a
Person not an Affiliate.
Section 8.10. Mergers. Merge or consolidate with, or sell, assign, lease or
otherwise dispose of (whether in one transaction or in a series of transactions)
all or substantially all of its Property (whether now owned or hereafter
acquired) to, any Person, or acquire all or substantially all of the Property or
the business of any Person (or enter into any agreement to do any of the
foregoing), except that:
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(a) any Wholly-Owned Subsidiary of the Borrower may merge into or
consolidate with or transfer substantially all of its Property to the Borrower
or any other Wholly-Owned Subsidiary of the Borrower; and
(b) any LCC Consolidated Entity may effect any Acquisition permitted
by Section 8.11.
Section 8.11. Acquisitions. Make any Acquisition other than an Acceptable
Acquisition.
Section 8.12. No Activities Leading to Forfeiture. Engage in or propose to
be engaged in the conduct of any business or activity which could result in a
Forfeiture Proceeding.
Section 8.13. Capital Expenditures. Make or commit to make any Capital
Expenditure if the aggregate amount of Consolidated Capital Expenditures
incurred during any Fiscal Year would exceed $7,500,000.
Section 8.14. Amendments or Waivers of Certain Documents. Amend,
supplement, otherwise change, waive or otherwise relinquish (or agree to any
amendment, supplement, other change, waiver or other relinquishment of) any term
of (a) any terms of Consolidated Subordinated Debt (including, without
limitation, any MCI Note Purchase Document) or (b) if such amendment,
supplement, change, waiver or relinquishment could have an adverse effect on the
rights or interests of the Lenders hereunder or under any of the other Facility
Documents, any terms of any NextWave Investment Document, any DCR Investment
Document, the Merger Agreement or the organizational documents of any Subsidiary
Guarantor without, in each case, obtaining the prior written consent of the
Required Lenders to such amendment, supplement, change, waiver or
relinquishment.
Section 8.15. Restrictions. Enter into or suffer to exist, any agreement
with any Person other than the Lenders that (a) prohibits, requires the consent
of such Person for or limits the ability of (i) any LCC Consolidated Entity to
pay dividends or make distributions to any other LCC Consolidated Entity, pay
liabilities owed to any other LCC Consolidated Entity, make loans or advances to
any other LCC Consolidated Entity or transfer any of its Property to any other
LCC Consolidated Entity, (ii) any LCC Consolidated Entity to create, incur,
assume or suffer to exist any Lien upon any of its Property or (iii) any Obligor
to enter into any modification or supplement of any Facility Document; or (b)
contains financial covenants which, taken as a whole, are more restrictive on
the LCC Consolidated Entities than the financial covenants contained in Article
9.
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ARTICLE 9. FINANCIAL COVENANTS.
So long as any Obligation shall remain unpaid, any Letter of Credit shall
remain outstanding or any Lender shall have any Commitment and as determined as
of the end of each Fiscal Quarter:
Section 9.01. Fixed Charge Coverage Ratio. The LCC Consolidated Entities
shall maintain at all times a Fixed Charge Coverage Ratio of not less than 2.00
to 1.00.
Section 9.02. Minimum Net Worth. The LCC Consolidated Entities shall
maintain at all times Consolidated Net Worth of not less than the sum of (a)
$58,000,000 plus (b) the aggregate sum of the Fiscal Quarter Net Worth Increase
Amounts calculated for each Fiscal Quarter ending after the Closing Date.
Section 9.03. Current Ratio. The LCC Consolidated Entities shall maintain
at all times a Current Ratio of not less than 1.75 to 1.00.
Section 9.04. Cash Flow Leverage Ratio. The LCC Consolidated Entities shall
maintain at all times a Cash Flow Leverage Ratio of not greater than 3.00 to
1.00.
ARTICLE 10. EVENTS OF DEFAULT.
Section 10.01. Events of Default. Any of the following events shall be an
"Event of Default":
(a) the Borrower or the Subsidiary Borrower shall: (i) fail to pay the
principal of any Note or any Reimbursement Obligation on or before the date when
due and payable; or (ii) fail to pay interest on any Note or any fee or other
amount due hereunder on or before the date when due and payable;
(b) any representation or warranty made or deemed made by any LCC
Consolidated Entity in this Agreement or in any other Facility Document or which
is contained in any certificate, document, opinion, financial or other statement
furnished at any time under or in connection with any Facility Document shall
prove to have been incorrect in any material respect on or as of the date made
or deemed made;
(c) any LCC Consolidated Entity shall: (i) fail to perform or observe
any term, covenant or agreement contained in Section 2.03 or 3.02 or Article 8
or 9; or (ii) fail to perform or observe any term, covenant or agreement on its
part to be performed or observed (other than the obligations specifically
referred to elsewhere in this Section 10.01) in any Facility Document and such
failure shall continue for 30 consecutive days after any Obligor shall have
obtained actual knowledge or notice from the Administrative Agent or any Lender
thereof;
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(d) any LCC Consolidated Entity shall: (i) fail to pay any
indebtedness in excess of $500,000, including but not limited to indebtedness
for borrowed money (other than the payment obligations described in (a) above),
of such LCC Consolidated Entity, or any interest or premium thereon, when due
(whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise); (ii) fail to perform or observe any term, covenant or condition on
its part to be performed or observed under any agreement or instrument relating
to any such indebtedness, when required to be performed or observed (taking into
account applicable grace periods), if the effect of such failure to perform or
observe is to accelerate, or to permit the acceleration of, after the giving of
notice or passage of time, or both, the maturity of such indebtedness; or any
such indebtedness shall be declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled required prepayment), prior to the
stated maturity thereof; or (iii) a "Default" or "Event of Default" shall have
occurred under any MCI Note Purchase Document, whether or not waived;
(e) any LCC Consolidated Entity: (i) shall generally not, or be unable
to, or shall admit in writing its inability to, pay its debts as such debts
become due; or (ii) shall make an assignment for the benefit of creditors,
petition or apply to any tribunal for the appointment of a custodian, receiver
or trustee for it or a substantial part of its assets; or (iii) shall commence
any proceeding under any bankruptcy, reorganization, arrangement, readjustment
of debt, dissolution or liquidation law or statute of any jurisdiction, whether
now or hereafter in effect; or (iv) shall have had any such petition or
application filed or any such proceeding shall have been commenced, against it,
in which an adjudication or appointment is made or order for relief is entered,
or which petition, application or proceeding remains undismissed for a period of
90 days or more; or shall be the subject of any proceeding under which its
assets may be subject to seizure, forfeiture or divestiture (other than a
proceeding in respect of a Lien permitted under Section 8.03(b)); or (v) by any
act or omission shall indicate its consent to, approval of or acquiescence in
any such petition, application or proceeding or order for relief or the
appointment of a custodian, receiver or trustee for all or any substantial part
of its Property; or (vi) shall suffer any such custodianship, receivership or
trusteeship to continue undischarged for a period of 90 days or more;
(f) one or more judgments, decrees or orders for the payment of money
in excess of $500,000 in the aggregate shall be rendered against any LCC
Consolidated Entity and such judgments, decrees or orders shall continue
unsatisfied and in effect for a period of 30 consecutive days without being
vacated, discharged, satisfied or stayed or bonded pending appeal;
(g) any event or condition shall occur or exist with respect to any
Domestic Plan, Foreign Plan or Multiemployer Plan concerning which any LCC
Consolidated Entity is under an obligation to furnish a report to the Lenders in
accordance with Section 7.08(i) hereof and as a result of such event or
condition,
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together with all other such events or conditions, such LCC Consolidated Entity
or any ERISA Affiliate has incurred or in the opinion of the Lenders is
reasonably likely to incur a liability to a Domestic Plan, a Foreign Plan, a
Multiemployer Plan, the PBGC, a Section 4042 Trustee or any other Governmental
Authority (or any combination of the foregoing) which is material in relation to
the financial position of the LCC Consolidated Entities; provided, however, that
any such amount shall not be deemed to be material so long as all such amounts
do not exceed $500,000 in the aggregate during the term of this Agreement;
(h) the Unfunded Benefit Liabilities of one or more Domestic Plans or
Foreign Plans have increased after the date of this Agreement in an amount which
is material (as specified in Section 7.08(i)(viii) hereof);
(i) (i) any Person or two or more Persons acting in concert (other
than Dr. Rajendra Singh, Neera Singh, any trusts for their benefit or the
benefit of their family members and any of their respective affiliates
controlled by them) shall have acquired beneficial ownership (within the meaning
of Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934) of more than 25% of the Voting Stock of the Borrower; or
(ii) during any period of 12 consecutive months, commencing before or after the
date of this Agreement, individuals who at the beginning of such 12-month period
were directors or members of the Members Committee (or persons nominated by such
individuals) of the Borrower cease for any reason to constitute a majority of
the Board of Directors or the Members Committee of the Borrower;
(j) any Forfeiture Proceeding shall have been commenced or the
Borrower shall have given the Administrative Agent or any Lender written notice
of the commencement of any Forfeiture Proceeding as provided in Section 6.08(o);
(k) (i) any Security Document shall for any reason cease to create in
favor of the Administrative Agent a legal, valid and enforceable perfected
first-priority Lien in the Collateral as security for the Obligations except for
Liens permitted under Section 8.03 entitled to priority by law; or (ii) any
Facility Document shall cease to be in full force and effect or shall be
declared null and void, or the validity or enforceability thereof shall be
contested by any LCC Consolidated Entity or any such Person shall deny it has
any further liability or obligation under the Security Documents or any such
Person shall fail to perform any of its obligations thereunder;
(l) damage to all or any part of the Property of any LCC Consolidated
Entity by casualty or damage or taking of all or any part of the Property of
such LCC Consolidated Entity that would cause business interruption or would
cause monetary loss in excess of $500,000 not otherwise covered by insurance; or
(m) the occurrence of a Material Contract Termination.
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Section 10.02. Remedies. If any Event of Default shall occur and be
continuing, the Administrative Agent shall, upon request of the Required
Lenders, by notice to the Borrower and the Subsidiary Borrower, (a) declare the
Commitments to be terminated, whereupon the same shall forthwith terminate and
so shall the obligations of the Issuing Lender to issue any Letter of Credit,
(b) declare the outstanding principal of the Notes, all interest thereon and all
other amounts payable under this Agreement, the Notes and the other Facility
Documents to be forthwith due and payable, whereupon the Notes, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower and the Subsidiary Borrower and/or
(c) direct the Borrower to pay to the Administrative Agent an amount to be held
as cash security in the cash collateral account held by the Administrative Agent
under Section 3.08 equal to the Letter of Credit Obligations then outstanding;
provided that, in the case of an Event of Default referred to in Section
10.01(e) or Section 10.01(i) above, the Commitments shall be immediately
terminated, and the Notes, all interest thereon and all other amounts payable
under this Agreement shall be immediately due and payable without notice,
presentment, demand, protest or other formalities of any kind, all of which are
hereby expressly waived by the Borrower and the Subsidiary Borrower. If an Event
of Default shall occur and be continuing, the Administrative Agent and each
Lender may exercise all of the rights and remedies conferred in this Agreement
and in each of the other Facility Documents; it being expressly understood that
no such remedy is intended to be exclusive of any other remedy or remedies; but
each and every remedy shall be cumulative and shall be in addition to every
other remedy given in this Agreement or the other Facility Documents or now or
hereafter existing at law or in equity or by statute, and may be exercised from
time to time as often as may be deemed expedient by the Administrative Agent and
such Lender.
ARTICLE 11. UNCONDITIONAL GUARANTY.
Section 11.01. Guarantied Obligations. Each of the Borrower (as to the
Swingline Notes) and the Subsidiary Guarantors (each of the foregoing entities
individually a "Guarantor" and collectively the "Guarantors"), jointly and
severally, in consideration of the execution and delivery of this Agreement by
the Lenders and the Administrative Agent, hereby irrevocably and unconditionally
guarantees to the Administrative Agent, for the benefit of the Lenders, as and
for such Guarantor's own debt, until final payment has been made:
(a) the due and punctual payment in full in cash in the applicable
currency of the Obligations, in each case when and as the same shall become due
and payable, whether at maturity, pursuant to mandatory or optional prepayment,
by acceleration or otherwise, all in accordance with the terms and provisions of
this Agreement and the other Facility Documents, it being the intent of the
Guarantors that the guaranty set forth in this Section 11.01 (the "Unconditional
Guaranty") shall be a guaranty of payment and not a guaranty of collection; and
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(b) the punctual and faithful performance, keeping, observance, and
fulfillment by each Obligor of all duties, agreements, covenants and obligations
such Obligor contained in each of the Facility Documents to which it is a party.
Section 11.02. Performance Under This Agreement. In the event any Obligor
fails to make, on or before the due date thereof, any payment of the principal
of, or interest on, the Notes, the Letter of Credit Obligations or the other
Obligations, or if any Obligor shall fail to perform, keep, observe, or fulfill
any other obligation referred to in clause (a) or clause (b) of Section 11.01
hereof in the manner provided in the Notes, the Letters of Credit or in any of
the other Facility Documents, and any such failure shall remain uncured at the
expiration of any applicable cure period provided herein or in the other
Facility Documents, the Guarantors shall cause forthwith to be paid the moneys,
or to be performed, kept, observed, or fulfilled each of such obligations, in
respect of which such failure has occurred.
Section 11.03. Waivers. To the fullest extent permitted by law, each
Guarantor does hereby waive:
(a) notice of acceptance of the Unconditional Guaranty;
(b) notice of any borrowings under this Agreement, or the creation,
existence or acquisition of any of the Obligations, subject to such Guarantor's
right to make inquiry of the Administrative Agent to ascertain the amount of the
Obligations at any reasonable time;
(c) notice of the amount of the Obligations, subject to each
Guarantor's right to make inquiry of the Administrative Agent to ascertain the
amount of the Obligations at any reasonable time;
(d) notice of adverse change in the financial condition of the
Borrower, the Subsidiary Borrower, any other guarantor or any other fact that
might increase each Guarantor's risk hereunder;
(e) notice of presentment for payment, demand, protest, and notice
thereof as to the Notes or any other Facility Document;
(f) notice of any Default or Event of Default;
(g) all other notices and demands to which each Guarantor might
otherwise be entitled (except if such notice or demand is specifically otherwise
required to be given to each Guarantor hereunder or under the other Facility
Documents);
(h) the right by statute or otherwise to require any or each Lender or
the Administrative Agent to institute suit against the Borrower, the Subsidiary
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Borrower or any other guarantor or to exhaust the rights and remedies of any or
each Lender or the Administrative Agent against the Borrower, the Subsidiary
Borrower or any other guarantor, each Guarantor being bound to the payment of
each and all Obligations, whether now existing or hereafter accruing, as fully
as if such Obligations were directly owing to each Lender by each Guarantor;
(i) any defense arising by reason of any disability or other defense
(other than the defense that the Obligations shall have been fully and finally
performed and indefeasibly paid) of the Borrower or the Subsidiary Borrower or
by reason of the cessation from any cause whatsoever of the liability of the
Borrower or the Subsidiary Borrower in respect thereof; and
(j) any stay (except in connection with a pending appeal), valuation,
appraisal, redemption or extension law now or at any time hereafter in force
which, but for this waiver, might be applicable to any sale of Property of each
Guarantor made under any judgment, order or decree based on this Agreement, and
each Guarantor covenants that it will not at any time insist upon or plead, or
in any manner claim or take the benefit or advantage of such law.
Until all of the Obligations shall have been paid in full, each of the
Guarantors hereby agrees to completely subordinate any right of subrogation,
reimbursement, or indemnity whatsoever in respect thereof and any right of
recourse to or with respect to any Property of the Borrower or the Subsidiary
Borrower. Nothing shall discharge or satisfy the obligations of any Guarantor
hereunder except the full and final performance and indefeasible payment in cash
in the applicable currency of the Obligations by such Guarantor, upon which each
Lender agrees to transfer and assign its interest in the Notes and the other
Facility Documents to such Guarantor without recourse, representation or
warranty of any kind (other than that such Lender owns its Notes and that such
Notes are free of Liens created by such Lender). All of the Obligations shall in
the manner and subject to the limitations provided herein for the acceleration
thereof forthwith become due and payable without notice.
Section 11.04. Releases. Each of the Guarantors consents and agrees that,
without notice to or by such Guarantor and without affecting or impairing the
obligations of such Guarantor hereunder, each Lender or the Administrative
Agent, in the manner provided herein, by action or inaction, may:
(a) compromise or settle, extend the period of duration or the time
for the payment, or discharge the performance of, or may refuse to, or otherwise
not, enforce, or may, by action or inaction, release all or any one or more
parties to, any one or more of the Notes or the other Facility Documents;
(b) grant other indulgences to the Borrower or the Subsidiary Borrower
in respect thereof;
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(c) amend or modify in any manner and at any time (or from time to
time) any one or more of the Notes, the Letters of Credit and the other Facility
Documents in accordance with Section 13.01 or otherwise;
(d) release or substitute any one or more of the endorsers or
guarantors of the Obligations whether parties hereto or not; and
(e) exchange, enforce, waive, or release, by action or inaction, any
security for the Obligations (including, without limitation, any of the
collateral therefor) or any other guaranty of any of the Obligations.
Section 11.05. Marshaling. Each of the Guarantors consents and agrees that:
(a) neither the Administrative Agent nor any Lender shall be under no
obligation to marshal any assets in favor of each Guarantor or against or in
payment of any or all of the Obligations; and
(b) to the extent the Borrower, the Subsidiary Borrower or any other
guarantor makes a payment or payments to any Lender, which payment or payments
or any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside, or required, for any of the foregoing reasons or for
any other reason, to be repaid or paid over to a custodian, trustee, receiver,
or any other party under any bankruptcy law, common law, or equitable cause,
then to the extent of such payment or repayment, the Obligations or part thereof
intended to be satisfied thereby shall be revived and continued in full force
and effect as if said payment or payments had not been made and such Guarantor
shall remain liable for such Obligation.
Section 11.06. Liability. Each of the Guarantors agrees that the liability
of such Guarantor in respect of this Article 11 shall not be contingent upon the
exercise or enforcement by any Lender or the Administrative Agent of whatever
remedies such Lender or the Administrative Agent may have against the Borrower,
the Subsidiary Borrower or any other guarantor or the enforcement of any Lien or
realization upon any security such Lender or the Administrative Agent may at any
time possess.
Section 11.07. Unconditional Obligation. The Unconditional Guaranty set
forth in this Article 11 is an absolute, unconditional, continuing and
irrevocable guaranty of payment and performance and shall remain in full force
and effect until the full and final payment of the Obligations without respect
to future changes in conditions, including change of law or any invalidity or
irregularity with respect to the issuance or assumption of any obligations
(including, without limitation, the Notes and the Letter of Credit Obligations)
of or by the Borrower, the Subsidiary Borrower or any other guarantor, or with
respect to the execution and delivery of any agreement (including, without
limitation, the Notes and the other Facility Documents) of the Borrower, the
Subsidiary Borrower or any other guarantor.
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Section 11.08. Election to Perform Obligations. Any election by any of the
Guarantors to pay or otherwise perform any of the obligations of any Obligor
under the Notes or under any of the other Facility Documents, whether pursuant
to this Article 11 or otherwise, shall not release such Obligor from any of its
other obligations under the Notes, the Letters of Credit or any of the other
Facility Documents.
Section 11.09. No Election. The Administrative Agent shall have the right
to seek recourse against any one or more of the Guarantors to the fullest extent
provided for herein for such Guarantor's obligations under this Agreement
(including, without limitation, this Article 11) in respect of the Notes, the
Letters of Credit and the other Facility Documents. No election to proceed in
one form of action or proceeding, or against any party, or on any obligation,
shall constitute a waiver of the Administrative Agent's right to proceed in any
other form of action or proceeding or against other parties unless the
Administrative Agent has expressly waived such right in writing. Specifically,
but without limiting the generality of the foregoing, no action or proceeding by
any Lender or the Administrative Agent against any Obligor under any document or
instrument evidencing obligations of such Obligor to such Lender or the
Administrative Agent shall serve to diminish the liability of any of the
Guarantors under this Agreement (including, without limitation, this Article 11)
except to the extent that the Administrative Agent or such Lender finally and
unconditionally shall have realized payment by such action or proceeding,
notwithstanding the effect of any such action or proceeding upon such
Guarantor's right of subrogation against any Obligor.
Section 11.10. Severability. Subject to applicable law, each of the rights
and remedies granted under this Article 11 to the Administrative Agent may be
exercised by the Administrative Agent without notice by the Administrative Agent
to, or the consent of or any other action by, any Lender, provided that the
Administrative Agent will promptly thereafter give each Lender notice of any
exercise of rights and remedies by the Administrative Agent under this Article
11.
Section 11.11. Other Enforcement Rights. The Administrative Agent may
proceed, as provided in Article 11 hereof, to protect and enforce the
Unconditional Guaranty by suit or suits or proceedings in equity, at law or in
bankruptcy, and whether for the specific performance of any covenant or
agreement contained herein (including, without limitation, in this Article 11)
or in execution or aid of any power herein granted; or for the recovery of
judgment for the obligations hereby guarantied or for the enforcement of any
other proper, legal or equitable remedy available under applicable law. Each of
the Lenders shall have, to the fullest extent permitted by law and this
Agreement, a right of set-off against, any and all credits and any and all other
Property of any Guarantor, now or at any time whatsoever with, or in the
possession of, such Lender, or anyone acting for such Lender, as security for
any and all obligations of such Guarantor hereunder and such Lien shall be
deemed permitted for all purposes under Article 8 hereof.
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Section 11.12. Delay or Omission; No Waiver. No course of dealing on the
part of any Lender or the Administrative Agent and no delay or failure on the
part of any such Person to exercise any right hereunder (including, without
limitation, this Article 11) shall impair such right or operate as a waiver of
such right or otherwise prejudice such Person's rights, powers and remedies
hereunder. Every right and remedy given by the Unconditional Guaranty or by law
to any Lender or the Administrative Agent may be exercised from time to time as
often as may be deemed expedient by such Person.
Section 11.13. Restoration of Rights and Remedies. If any Lender or the
Administrative Agent shall have instituted any proceeding to enforce any right
or remedy under the Unconditional Guaranty, under any Note held by such Lender,
or under any Security Document, and such proceeding shall have been discontinued
or abandoned for any reason, or shall have been determined adversely to such
Lender or the Administrative Agent, then and in every such case each such
Lender, the Administrative Agent, the Borrower, the Subsidiary Borrower and the
Guarantors shall, except as may be limited or affected by any determination in
such proceeding, be restored severally and respectively to its respective former
positions hereunder and thereunder, and thereafter, subject as aforesaid, the
rights and remedies of such Lender or the Administrative Agent shall continue as
though no such proceeding had been instituted.
Section 11.14. Cumulative Remedies. No remedy under this Agreement
(including, without limitation, this Article 11), the Notes, the Letters of
Credit or any of the other Facility Documents is intended to be exclusive of any
other remedy, but each and every remedy shall be cumulative and in addition to
any and every other remedy given under this Agreement (including, without
limitation, this Article 11), the Notes, the Letters of Credit or any of the
other Facility Documents.
Section 11.15. Survival. The obligations of the Guarantors under this
Article 11 shall survive the transfer and payment of any Obligation until the
indefeasible payment in full of all the Obligations and the expiration and
termination of the Letters of Credit and the Commitments.
Section 11.16. No Setoff, Counterclaim or Withholding: Gross-Up. Each
payment by a Guarantor shall be made without setoff or counterclaim and without
withholding for or on account of any present or future taxes imposed by any
Governmental Authority. If any such withholding is so required, such Guarantor
shall make the withholding and pay the amount withheld to the appropriate
Governmental Authority before penalties attach thereto or interest accrues
thereon.
Section 11.17. Payment in Applicable Currency. Any payment of a Guarantied
Obligation required to be made pursuant to this Agreement shall be made in the
currency in which such Guarantied Obligation is required to be made pursuant to
this Agreement, any Note or any other Facility Document.
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ARTICLE 12. THE ADMINISTRATIVE AGENT.
Section 12.01. Appointment, Powers and Immunities of Administrative Agent.
Each Lender hereby irrevocably (but subject to removal by the Required Lenders
pursuant to Section 12.09) appoints and authorizes the Administrative Agent to
act as its agent hereunder and under any other Facility Document with such
powers as are specifically delegated to the Administrative Agent by the terms of
this Agreement and any other Facility Document, together with such other powers
as are reasonably incidental thereto. The Administrative Agent shall have no
duties or responsibilities except those expressly set forth in this Agreement
and any other Facility Document, and shall not by reason of this Agreement be a
trustee for any Lender. The Administrative Agent shall not be responsible to the
Lenders for any recitals, statements, representations or warranties made by any
LCC Consolidated Entity or any of their respective officers and officials or by
any other Person contained in this Agreement or any other Facility Document, or
in any certificate or other document or instrument referred to or provided for
in, or received by any of them under, this Agreement or any other Facility
Document, or for the value, legality, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Facility Document
or any other document or instrument referred to or provided for herein or
therein, for the perfection or priority of any collateral security for the
Obligations or for any failure by any Obligor to perform any of their respective
obligations hereunder or thereunder. The Administrative Agent may employ agents
and attorneys-in-fact and shall not be responsible, except as to money or
securities received by it or its authorized agents, for the negligence or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. Neither the Administrative Agent nor any of its directors,
officers, employees or agents shall be liable or responsible to any Lender for
any action taken or omitted to be taken by it or them hereunder or under any
other Facility Document or in connection herewith or therewith, except for its
or their own gross negligence or willful misconduct.
Section 12.02. Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely upon any certification, notice or other communication
(including any thereof by telephone, telex, telegram or cable) believed by it to
be genuine and correct and to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent may deem and treat each Lender as the holder of the
Obligations attributable to it for all purposes hereof unless and until a notice
of the assignment or transfer thereof satisfactory to the Administrative Agent
signed by such Lender shall have been furnished to the Administrative Agent but
the Administrative Agent shall not be required to deal with any Person who has
acquired a participation in any Obligation from a Lender. As to any matters not
expressly provided for by this Agreement or any other Facility Document, the
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder in accordance with instructions signed by the
Required Lenders, and such
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instructions of the Required Lenders and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders and any other holder of
all or any portion of any Obligation.
Section 12.03. Defaults. The Administrative Agent shall not be deemed to
have knowledge of the occurrence of a Default or Event of Default (other than
the non-payment of principal of or interest on the Loans and the Letter of
Credit Obligations to the extent the same is required to be paid to the
Administrative Agent for the account of the Lenders) unless the Administrative
Agent has received notice from a Lender or the Borrower specifying such Default
or Event of Default and stating that such notice is a "Notice of Default." In
the event that the Administrative Agent receives such a notice of the occurrence
of a Default or Event of Default, the Administrative Agent shall give prompt
notice thereof to the Lenders (and shall give each Lender prompt notice of each
such non-payment). The Administrative Agent shall (subject to Section 12.08)
take such action with respect to such Default or Event of Default which is
continuing as shall be directed by the Required Lenders; provided that, unless
and until the Administrative Agent shall have received such directions, the
Administrative Agent may take such action, or refrain from taking such action,
with respect to such Default or Event of Default as it shall deem advisable in
the best interest of the Lenders; and provided further that the Administrative
Agent shall not be required to take any such action which it determines to be
contrary to law.
Section 12.04. Rights of Administrative Agent as a Lender. With respect to
its Commitments and the Obligations held by it, The Chase Manhattan Bank in its
capacity as a Lender hereunder shall have the same rights and powers hereunder
as any other Lender and may exercise the same as though it were not acting as
the Administrative Agent, and the term "Lender" or "Lenders" shall, unless the
context otherwise indicates, include The Chase Manhattan Bank in its capacity as
a Lender. The Chase Manhattan Bank and its affiliates may (without having to
account therefor to any Lender) accept deposits from, lend money to (on a
secured or unsecured basis), and generally engage in any kind of banking, trust
or other business with, any LCC Consolidated Entity (and any of its their
respective affiliates) as if it were not acting as the Administrative Agent, and
The Chase Manhattan Bank may accept fees and other consideration from any LCC
Consolidated Entity and any of their respective affiliates for services in
connection with this Agreement or otherwise without having to account for the
same to the Lenders. Although The Chase Manhattan Bank and its affiliates may in
the course of such relationships and relationships with other Persons acquire
information about any LCC Consolidated Entity, their respective affiliates and
such other Persons, the Administrative Agent shall have no duty to disclose such
information to the Lenders.
Section 12.05. Indemnification of Administrative Agent. The Lenders agree
to indemnify the Administrative Agent (to the extent not reimbursed under
Section 13.03 or under the applicable provisions of any other Facility Document,
but without
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limiting the obligations of any Obligor under Section 13.03 or such provisions),
ratably in accordance with the aggregate unpaid principal amount of the
Obligations attributable to the Lenders (without giving effect to any
participations, in all or any portion of the Obligations, sold by them to any
other Person) (or, if no Obligations are at the time outstanding, ratably in
accordance with their respective Commitments), for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be imposed
on, incurred by or asserted against the Administrative Agent in any way relating
to or arising out of this Agreement, any other Facility Document or any other
documents contemplated by or referred to herein or the transactions contemplated
hereby or thereby (including, without limitation, the costs and expenses which
the Obligors are obligated to pay under Section 13.03 or under the applicable
provisions of any other Facility Document but excluding, unless a Default or
Event of Default has occurred, normal administrative costs and expenses incident
to the performance of its agency duties hereunder) or the enforcement of any of
the terms hereof or thereof or of any such other documents or instruments;
provided that no Lender shall be liable for any of the foregoing to the extent
they arise from the gross negligence or wilful misconduct of the party to be
indemnified.
Section 12.06. Documents. The Administrative Agent will forward to each
Lender, promptly after the Administrative Agent's receipt thereof, a copy of
each report, notice or other document required by this Agreement or any other
Facility Document to be delivered to the Administrative Agent for such Lender.
Section 12.07. Non-Reliance on Administrative Agent and Other Lenders. Each
Lender agrees that it has, independently and without reliance on the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
LCC Consolidated Entities and decision to enter into this Agreement and that it
will, independently and without reliance upon the Administrative Agent or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under this Agreement or any other Facility Document.
The Administrative Agent shall not be required to keep itself informed as to the
performance or observance by the Obligors of this Agreement or any other
Facility Document or any other document referred to or provided for herein or
therein or to inspect the Properties or books of any LCC Consolidated Entity.
Except for notices, reports and other documents and information expressly
required to be furnished to the Lenders by the Administrative Agent hereunder,
the Administrative Agent shall not have any duty or responsibility to provide
any Lender with any credit or other information concerning the affairs,
financial condition or business of any LCC Consolidated Entity (or any of their
respective affiliates) which may come into the possession of the Administrative
Agent or any of its affiliates. The Administrative Agent shall not be required
to file this Agreement, any other Facility Document or any document or
instrument referred to herein or therein, for record or give notice of this
Agreement,
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any other Facility Document or any document or instrument referred to herein or
therein, to anyone.
Section 12.08. Failure of Administrative Agent to Act. Except for action
expressly required of the Administrative Agent hereunder, the Administrative
Agent shall in all cases be fully justified in failing or refusing to act
hereunder unless it shall have received further assurances (which may include
cash collateral) of the indemnification obligations of the Lenders under Section
12.05 in respect of any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action.
Section 12.09. Resignation or Removal of Administrative Agent. Subject to
the appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving written notice
thereof to the Lenders and the Borrower, and the Administrative Agent may be
removed at any time with or without cause by the Required Lenders; provided that
the Borrower and the other Lenders shall be promptly notified thereof. Upon any
such resignation or removal, the Required Lenders shall have the right to
appoint a successor Administrative Agent. If no successor Administrative Agent
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Administrative Agent's giving
of notice of resignation or the Required Lenders' removal of the retiring
Administrative Agent, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent, which shall be a bank
which has an office in New York, New York. The Required Lenders or the retiring
Administrative Agent, as the case may be, shall upon the appointment of a
successor Administrative Agent promptly so notify the Borrower and the other
Lenders. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. After any retiring Administrative Agent's resignation or removal
hereunder as Administrative Agent, the provisions of this Article 12 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as the Administrative Agent.
Section 12.10. Amendments Concerning Agency Function. The Administrative
Agent shall not be bound by any waiver, amendment, supplement or modification of
this Agreement or any other Facility Document which affects its duties hereunder
or thereunder unless it shall have given its prior consent thereto.
Section 12.11. Liability of Administrative Agent. The Administrative Agent
shall not have any liabilities or responsibilities to any Obligor on account of
the failure of any Lender to perform its obligations hereunder or to any Lender
on account of the
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failure of any Obligor or any other Lender to perform its obligations hereunder
or under any other Facility Document.
Section 12.12. Transfer of Agency Function. Without the consent of the
Obligors or any Lender, the Administrative Agent may at any time or from time to
time transfer its functions as Administrative Agent hereunder to any of its
offices wherever located, provided that the Administrative Agent shall promptly
notify the Borrower and the Lenders thereof.
Section 12.13. Non-Receipt of Funds by the Administrative Agent. Unless the
Administrative Agent shall have been notified by a Lender or the Borrower
(either one as appropriate being the "Payor") prior to the date on which such
Lender is to make payment hereunder to the Administrative Agent of the proceeds
of a Loan or the Borrower or the Subsidiary Borrower is to make payment to the
Administrative Agent, as the case may be (either such payment being a "Required
Payment"), which notice shall be effective upon receipt, that the Payor does not
intend to make the Required Payment to the Administrative Agent, the
Administrative Agent may assume that the Required Payment has been made and may,
in reliance upon such assumption (but shall not be required to), make the amount
thereof available to the intended recipient on such date and, if the Payor has
not in fact made the Required Payment to the Administrative Agent, the recipient
of such payment (and, if such recipient is the Borrower or the Subsidiary
Borrower and the Payor Lender fails to pay the amount thereof to the
Administrative Agent forthwith upon demand, the Borrower or the Subsidiary
Borrower) shall, on demand, repay to the Administrative Agent the amount made
available to it together with interest thereon for the period from the date such
amount was so made available by the Administrative Agent until the date the
Administrative Agent recovers such amount at a rate per annum equal to the
average daily Federal Funds Rate for such period.
Section 12.14. Withholding Taxes. Each Lender represents that it is
entitled to receive any payments to be made to it hereunder without the
withholding of any tax and will furnish to the Administrative Agent such forms,
certifications, statements and other documents as the Administrative Agent may
request from time to time to evidence such Lender's exemption from the
withholding of any tax imposed by any jurisdiction or to enable the
Administrative Agent to comply with any applicable laws or regulations relating
thereto. Without limiting the effect of the foregoing, if any Lender is not
created or organized under the laws of the United States of America or any state
thereof, in the event that the payment of interest by the Borrower or the
Subsidiary Borrower is treated for U.S. income tax purposes as derived in whole
or in part from sources from within the U.S., such Lender will furnish to the
Administrative Agent Form 4224 or Form 1001 of the Internal Revenue Service, or
such other forms, certifications, statements or documents, duly executed and
completed by such Lender as evidence of such Lender's exemption from the
withholding of U.S. tax with respect thereto. The Administrative Agent shall not
be obligated to make any payments hereunder to such Lender in respect of any
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Obligation until such Lender shall have furnished to the Administrative Agent
the requested form, certification, statement or document.
Section 12.15. Several Obligations and Rights of Lenders. The failure of
any Lender to make any Loan to be made by it on the date specified therefor
shall not relieve any other Lender of its obligation to make its Loans on such
date, but no Lender shall be responsible for the failure of any other Lender to
make a Loan to be made by such other Lender. The amounts payable at any time
hereunder to each Lender shall be a separate and independent debt, and each
Lender shall be entitled to protect and enforce its rights arising out of this
Agreement, and it shall not be necessary for any other Lender to be joined as an
additional party in any proceeding for such purpose.
Section 12.16. Pro Rata Treatment of Loans, Etc. Except to the extent
otherwise provided: (a) each borrowing under Section 2.01 shall be made from the
Lenders, each reduction or termination of the amount of the Commitments under
Section 2.08 shall be applied to the Commitments of the Lenders, and each
payment of commitment fee accruing under Section 2.12(a) shall be made for the
account of the Lenders, pro rata according to the amounts of their respective
unused Commitments; (b) each conversion under Section 2.05 of Loans of a
particular type (but not conversions provided for by Section 4.04), shall be
made pro rata among the Lenders holding Loans of such type according to the
respective principal amounts of such Loans by such Lenders; (c) each prepayment
and payment of principal of or interest on Loans of a particular type, a
particular class and a particular Interest Period shall be made to the
Administrative Agent for the account of the Lenders holding Loans of such type,
class and Interest Period pro rata in accordance with the respective unpaid
principal amounts of such Loans of such type, class and Interest Period held by
such Lenders; and (d) each prepayment and payment of fees under Section 3.09(a)
and Letter of Credit Obligations shall be made pro rata in accordance with the
pro rata share of the Lenders in the Letter of Credit Obligations held by each
of them.
Section 12.17. Sharing of Payments Among Lenders. If a Lender shall obtain
payment of any principal of or interest on any Obligation held by it through the
exercise of any right of setoff, banker's lien, counterclaim, or by any other
means, it shall promptly purchase from the other Lenders participations in (or,
if and to the extent specified by such Lender, direct interests in) the
Obligations of the other Lenders in such amounts, and make such other
adjustments from time to time as shall be equitable to the end that all the
Lenders shall share the benefit of such payment (net of any expenses which may
be incurred by such Lender in obtaining or preserving such benefit) pro rata in
accordance with the unpaid principal and interest on the Obligations held by
each of them. To such end the Lenders shall make appropriate adjustments among
themselves (by the resale of participations sold or otherwise) if such payment
is rescinded or must otherwise be restored. Each of the Obligors agrees that any
Lender so purchasing a participation (or direct interest) in the
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Obligations held by the other Lenders may exercise all rights of setoff,
banker's lien, counterclaim or similar rights with respect to such participation
(or direct interest). Nothing contained herein shall require any Lender to
exercise any such right or shall affect the right of any Lender to exercise, and
retain the benefits of exercising, any such right with respect to any other
indebtedness of any Obligor or its affiliates.
Section 12.18. Security Documents. Subject to the foregoing provisions of
this Section 12, the Administrative Agent shall, on behalf of the Lenders: (a)
execute any and all of the Security Documents on behalf of the Lenders; (b) hold
and apply any and all Collateral, and the proceeds thereof, at any time received
by it, in accordance with the provisions of the Security Documents and this
Agreement; (c) exercise any and all rights, powers and remedies of the Lenders
under this Agreement or any of the Security Documents, including the giving of
any consent or waiver or the entering into of any amendment, subject to the
provisions of Section 12.03; (d) execute, deliver and file financing statements,
mortgages, deeds of trust, lease assignments and other such agreements, and
possess instruments on behalf of any or all of the Lenders; and (e) in the event
of acceleration of the Borrower's or the Subsidiary Borrower's obligations
hereunder, use its best efforts to sell or otherwise liquidate or dispose of the
Collateral and otherwise exercise the rights of the Lenders thereunder upon the
direction of the Required Lenders.
Section 12.19. Collateral. Notwithstanding Section 12.18, the
Administrative Agent and the other Lenders agree, as among themselves, that the
Administrative Agent shall not, without the consent of the Required Lenders,
make any sale or disposition of the Collateral pursuant to any of the Security
Documents. The Administrative Agent acknowledges to the other Lenders that it is
acting in an agency capacity hereunder and that the security interest in the
Collateral granted under the Security Documents secures the Obligations held by
all of the Lenders. In the event of any Default or Event of Default, the
Administrative Agent will apply and/or pay over to the Lenders any net proceeds
derived from the Collateral pro rata on the basis of the aggregate unpaid
principal and interest of the Obligations held by the Lenders. The
Administrative Agent will be reimbursed or properly indemnified by the Lenders
in the event the Administrative Agent is requested by the Lenders to take or
omit to take any action with respect to the Collateral (any such reimbursement
or indemnification to be pro rata as provided in Section 12.05). The
Administrative Agent shall have the right to retain counsel to advise it as to
any action or decision with respect to the Collateral and shall be reimbursed by
the other Lenders for the cost of the same (to the extent the Administrative
Agent is not reimbursed by any Obligor) prior to distributing any of the
Collateral or any proceeds thereof (any such reimbursement to be pro rata as
aforesaid).
Section 12.20. Amendment of Article 12. Each of the Obligors hereby agrees
that the foregoing provisions of this Article 12 constitute an agreement amount
the Administrative Agent and the Lenders and that any and all of the provisions
of this
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Article 12 may be amended at any time by the Administrative Agent and the
Required Lenders without the consent or approval of, or notice to, such Obligor.
ARTICLE 13. MISCELLANEOUS.
Section 13.01. Amendments and Waivers. Except as otherwise expressly
provided in this Agreement, any provision of this Agreement may be amended or
modified only by an instrument in writing signed by the Borrower, the Subsidiary
Borrower (if affected), the Administrative Agent and the Required Lenders, or by
the Borrower and the Administrative Agent acting with the consent of the
Required Lenders and any provision of this Agreement may be waived by the
Required Lenders or by the Administrative Agent acting with the consent of the
Required Lenders; provided that no amendment, modification or waiver shall,
unless by an instrument signed by all of the Lenders or by the Administrative
Agent acting with the consent of all of the Lenders: (a) increase or extend the
term, or extend the time or waive any requirement for the reduction or
termination, of the Commitments; (b) extend the date fixed for the payment of
principal of or interest on any Loan, any Letter of Credit Obligation or any fee
payable hereunder; (c) reduce the amount of any payment of principal thereof or
the rate at which interest is payable thereon or any fee payable hereunder, (d)
alter the terms of this Section 12.01; (e) amend the definition of the term
"Required Lenders"; (f) waive any of the conditions precedent set forth in
Article 5 hereof; (g) discharge any Guarantor from the Unconditional Guaranty
under Article 11 hereof; or (h) release all or any part of the Collateral in
excess of $500,000 and provided, further, that any amendment of Article 12 or
any amendment which increases the obligations of the Administrative Agent
hereunder shall require the consent of the Administrative Agent. No failure on
the part of the Administrative Agent or any Lender to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof or preclude
any other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
Section 13.02. Usury. Anything herein to the contrary notwithstanding, the
obligations of the Obligors under this Agreement, the Notes and the other
Facility Documents shall be subject to the limitation that payments of interest
shall not be required to the extent that receipt thereof would be contrary to
provisions of law applicable to a Lender limiting rates of interest which may be
charged or collected by such Lender.
Section 13.03. Expenses. Each of the Obligors (including, insofar as it is
responsible for such expenses, the Subsidiary Borrower) shall reimburse the
Administrative Agent on demand for all reasonable costs, expenses and charges
(including, without limitation, reasonable fees and charges of external legal
counsel for the Administrative Agent) in connection with the preparation of, and
any amendment, supplement, waiver or modification to (in each case, whether or
not consummated), this Agreement, any other Facility Document and any other
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<PAGE> 83
documents prepared in connection herewith or therewith. Each of the Obligors
shall reimburse the Administrative Agent and each Lender for all reasonable
costs, expenses and charges (including, without limitation, reasonable fees and
charges of external legal counsel for the Administrative Agent and each Lender)
in connection with the enforcement or preservation of any rights or remedies
during the existence of a Default or Event of Default (including, without
limitation, in connection with any restructuring or insolvency or bankruptcy
proceeding). Each of the Obligors agrees to indemnify the Administrative Agent
and each Lender and their respective directors, officers, employees and agents
from, and hold each of them harmless against, any and all losses, liabilities,
claims, damages or expenses incurred by any of them arising out of or by reason
of any investigation or litigation or other proceedings (including any
threatened investigation or litigation or other proceedings) arising out of or
relating to this Agreement or any other Facility Document or to any actual or
proposed use by the Borrower of the proceeds of the Loans or the Letters of
Credit or to the performance or enforcement of this Agreement or the other
Facility Documents, including, without limitation, the reasonable fees and
disbursements of counsel incurred in connection with any such investigation or
litigation or other proceedings (but excluding any such losses, liabilities,
claims, damages or expenses incurred by reason of the gross negligence or wilful
misconduct of the Person to be indemnified).
Section 13.04. Survival. The obligations of the Obligors under Sections
4.01, 4.05, 13.03 and 13.18 shall survive the repayment of the Obligations and
the termination of the Commitments and the Letters of Credit.
Section 13.05. Assignment; Participations.
(a) This Agreement shall be binding upon, and shall inure to the
benefit of, the Borrower, the Subsidiary Borrower, the Guarantors, the
Administrative Agent, the Lenders and their respective successors and assigns,
except that the Borrower, the Subsidiary Borrower and the Subsidiary Guarantors
may not assign or transfer its rights or obligations hereunder except as
otherwise permitted under Section 8.10(c). Each Lender may assign or sell
participations in all of its rights and obligations hereunder or any part of its
rights and obligations hereunder to another financial institution or other
entity; provided that any assignment or participation by any Lender of its
rights and obligations in respect of the Letters of Credit shall require the
prior consent of the Issuing Lender, such consent not to be unreasonably
withheld, in which event (i) in the case of an assignment, upon notice thereof
by the Lender to the Borrower or Subsidiary Borrower with a copy to the
Administrative Agent, the assignee shall have, to the extent of such assignment
(unless otherwise provided therein), the same rights, benefits and obligations
as it would have if it were a Lender hereunder; and (ii) in the case of a
participation, the participant shall have no rights under the Facility Documents
and all amounts payable by the Borrower and the Subsidiary Borrower under
Article 4 shall be determined as if such Lender had not sold such participation.
The agreement executed by such Lender in favor of the
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<PAGE> 84
participant shall not give the participant the right to require such Lender to
take or omit to take any action hereunder except action directly relating to (i)
the extension of a payment date with respect to any portion of the principal of
or interest on any amount outstanding hereunder allocated to such participant,
(ii) the reduction of the principal amount outstanding hereunder allocated to
such participant or (iii) the reduction of the rate of interest payable on such
amount or any amount of fees payable hereunder to a rate or amount, as the case
may be, below that which the participant is entitled to receive under its
agreement with such Lender. Such Lender may furnish any information concerning
any LCC Consolidated Entity or any of their respective affiliates in the
possession of such Lender from time to time to assignees and participants
(including prospective assignees and participants); provided that such Lender
shall require any such prospective assignee or such participant (prospective or
otherwise) to agree in writing to maintain the confidentiality of such
information. In connection with any assignment or sale of a participation
interest pursuant to this paragraph (a), the assigning or selling Lender shall
pay the Administrative Agent an administrative fee for processing such
assignment or participation in the amount of $5,000.
(b) In addition to the assignments and participations permitted under
paragraph (a) above, any Lender may assign and pledge all or any portion of the
Obligations held by it to (i) any affiliate of such Lender or (ii) any Federal
Reserve Bank as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any Operating Circular issued by
such Federal Reserve Bank. No such assignment shall release the assigning Lender
from its obligations hereunder.
Section 13.06. Notices. Unless the party to be notified otherwise notifies
the other party in writing as provided in this Section, and except as otherwise
provided in this Agreement, notices shall be given in writing to the
Administrative Agent, to the Lenders, to the Borrower, to the Subsidiary
Borrower and to the Subsidiary Guarantors by ordinary mail, hand delivery,
overnight courier or telecopier addressed to such party at its address on the
signature page of this Agreement. Notices shall be effective: (a) if given by
mail, 72 hours after deposit in the mails with first class postage prepaid,
addressed as aforesaid; and (b) if given by telecopier, when the telecopy is
transmitted to the telecopier number as aforesaid; provided that notices to the
Administrative Agent shall be effective upon receipt.
Section 13.07. Setoff. Each of the Obligors, in addition to (and without
limitation of) any right of setoff, banker's lien or counterclaim a Lender may
otherwise have, each Lender shall be entitled, at its option, to offset balances
(general or special, time or demand, provisional or final) held by it for the
account of such Obligor at any of such Lender's offices, in Dollars, in
Norwegian Krone or in any other currency, against any amount payable by such
Obligor to such Lender under this Agreement, such Lender's Notes, any Letter of
Credit or any other Facility Document which is not paid when due (regardless of
whether such balances are then due to
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<PAGE> 85
such Obligor), in which case it shall promptly notify the Borrower and the
Administrative Agent thereof; provided that such Lender's failure to give such
notice shall not affect the validity thereof. Payments by any Obligor hereunder
shall be made without setoff or counterclaim.
SECTION 13.08. JURISDICTION; IMMUNITIES. (A) EACH OF THE OBLIGORS HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE OR UNITED STATES
FEDERAL COURT SITTING IN NEW YORK COUNTY OVER ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT, NOTE, ANY LETTER OF CREDIT OR ANY OTHER
FACILITY DOCUMENT, AND EACH OF THE OBLIGORS HEREBY IRREVOCABLY AGREES THAT ALL
CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN
SUCH NEW YORK STATE OR FEDERAL COURT. EACH OF THE OBLIGORS IRREVOCABLY CONSENTS
TO THE SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES OF SUCH PROCESS TO SUCH PERSON AT ITS ADDRESS SPECIFIED IN
SECTION 13.06. EACH OF THE OBLIGORS AGREES THAT A FINAL JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
EACH OF THE OBLIGORS FURTHER WAIVES ANY OBJECTION TO VENUE IN SUCH STATE AND ANY
OBJECTION TO AN ACTION OR PROCEEDING IN SUCH STATE ON THE BASIS OF FORUM NON
CONVENIENS. EACH OF THE OBLIGORS FURTHER AGREES THAT ANY ACTION OR PROCEEDING
BROUGHT AGAINST THE ADMINISTRATIVE AGENT OR ANY LENDER SHALL BE BROUGHT ONLY IN
NEW YORK STATE OR UNITED STATES FEDERAL COURT SITTING IN NEW YORK COUNTY.
(B) EACH OF THE OBLIGORS WAIVES ANY RIGHT IT MAY HAVE TO JURY TRIAL.
THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY EACH OF THE
OBLIGORS AND EACH OF THE OBLIGORS ACKNOWLEDGES THAT NO PERSON ACTING ON BEHALF
OF ANOTHER PARTY TO THIS AGREEMENT HAS MADE ANY REPRESENTATIONS OF FACT TO
INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS
EFFECT. EACH OF THE OBLIGORS FURTHER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED
(OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS AGREEMENT
AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL. SELECTED OF ITS
OWN FREE WILL AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH
COUNSEL.
(c) Nothing in this Section 13.08 shall affect the right of the
Administrative Agent or any Lender to serve legal process in any other manner
permitted by law or affect the right of the Administrative Agent or any Lender
to bring any action or proceeding against any Obligor or its Property in the
courts of any other jurisdictions.
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<PAGE> 86
(d) To the extent that any Obligor has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether from
service or notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its Property, such Obligor
hereby irrevocably waives such immunity in respect of its obligations under this
Agreement, the Notes, the Letters of Credit and the other Facility Documents.
Section 13.09. Table of Contents; Headings. Any table of contents and the
headings and captions hereunder are for convenience only and shall not affect
the interpretation or construction of this Agreement.
Section 13.10. Severability. The provisions of this Agreement are intended
to be severable. If for any reason any provision of this Agreement shall be held
invalid or unenforceable in whole or in part in any jurisdiction, such provision
shall, as to such jurisdiction, be ineffective to the extent of such invalidity
or unenforceability without in any manner affecting the validity or
enforceability thereof in any other jurisdiction or the remaining provisions
hereof in any jurisdiction. Without limiting the foregoing, to the extent that
mandatory and non-waivable provisions of applicable law (including but not
limited to any applicable business corporation and partnership laws) otherwise
would render the full amount of any Guarantor's obligations under this Agreement
and under the other Facility Documents invalid or unenforceable, the respective
obligations of such Guarantor under this Agreement and under the other Facility
Documents shall be limited to the maximum amount which does not result in such
invalidity or unenforceability.
Section 13.11. Counterparts. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument, and any party hereto may execute this Agreement by signing any such
counterpart.
Section 13.12. Integration. The Facility Documents set forth the entire
agreement among the parties hereto relating to the transactions contemplated
thereby and supersede any prior oral or written statements or agreements with
respect to such transactions.
SECTION 13.13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
INTERPRETED AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCE
WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO SUCH LAWS
OR RULES ARE DESIGNATED, THE UCP AND AS TO MATTERS NOT GOVERNED BY THE UCP, THE
LAWS OF THE STATE OF NEW YORK.
Section 13.14. Confidentiality. Each Lender and the Administrative Agent
agrees (on behalf of itself and each of its affiliates, directors, officers,
employees and
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representatives) to use reasonable precautions to keep confidential, in
accordance with safe and sound banking practices, any non-public information
supplied to it by the Borrower pursuant to this Agreement which is identified by
the Borrower as being confidential at the time the same is delivered to such
Lender or the Administrative Agent, provided that nothing herein shall limit the
disclosure of any such information (i) to the extent required by applicable
statute, rule, regulation or judicial process, (ii) to counsel for any of the
Lenders or the Administrative Agent, (iii) to bank examiners, auditors or
accountants, (iv) in connection with any litigation to which any one or more of
the Lenders is a party or (v) to any assignee or participant (or prospective
assignee or participant) so long as such assignee or participant (or prospective
assignee or participant) agrees in writing to use reasonable precautions to keep
such information confidential; and provided finally that in no event shall any
Lender or the Administrative Agent be obligated or required to return any
materials furnished by the Borrower. The obligations of the Lenders and the
Administrative Agent under this Section 13.14 shall survive the repayment of the
Obligations and the termination of the Commitments and the Letters of Credit.
Section 13.15. Treatment of Certain Information. Each of the Obligors (a)
acknowledges that services may be offered or provided to it (in connection with
this Agreement or otherwise) by each Lender or by one or more of their
respective subsidiaries or affiliates and (b) acknowledges that information
delivered to each Lender by any LCC Consolidated Entity or any affiliate may be
provided to each such subsidiary and affiliate.
Section 13.16. Reaffirmation. Each of the Obligors acknowledges that the
Liens granted to the Administrative Agent under the Security Documents in the
Collateral secure all Obligations of each of the Obligors under this Agreement,
the Notes, the Letters of Credit and the other Facility Documents, including,
without limitation, all liabilities and obligations under the Loans as herein
modified and increased and all of the Letter of Credit Obligations. Each of the
Obligors hereby expressly grants, bargains, conveys, assigns, transfers,
mortgages, hypothecates, pledges and grants a continuing security interest to
the Administrative Agent in all right, title and interest of such Obligor in and
to the "Collateral" as defined in each of the Security Agreement, the
Intellectual Property Security Agreement and the Pledge Agreement. All
references to "Note" or "Notes" in any Facility Document shall be deemed to be
to the Notes issued hereunder. All references to "Loan" or "Loans" in any
Facility Document shall be deemed to be to the Loans incurred hereunder. All
references to "Commitment" or "Commitments" in any Facility shall be deemed to
be to the Commitments granted hereunder. All references to "Secured Obligations"
in any Facility Document shall be deemed to include all liabilities and
obligations under the Loans as herein modified and increased and all of the
Letter of Credit Obligations. Each of the Obligors further acknowledges and
reaffirms all of its other respective obligations and duties under the Facility
Documents to which it is a party.
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<PAGE> 88
Section 13.17. Revised Schedules. Each of the Administrative Agent, the
Lenders and the Obligors hereby agrees that (a) Schedule A to the Security
Agreement is hereby amended and restated as set forth on SCHEDULE A hereto, (b)
Schedule A to the Intellectual Property Security Agreement is hereby amended and
restated as set forth on SCHEDULE B hereto and (c) Schedule A to the Pledge
Agreement is hereby amended and restated as set forth on SCHEDULE C hereto.
Section 13.19. Refund of Taxes. The obligations of each Obligor under this
Agreement, the Notes, the Letters of Credit and the other Facility Documents to
make payments in Dollars or in Norwegian Krone (the "Obligation Currency") shall
not be discharged or satisfied by any tender or recovery pursuant to any
judgment expressed in or converted into any currency other than the Obligation
Currency, except to the extent that such tender or recovery results in the
effective receipt by the Administrative Agent or a Lender of the full amount of
the Obligation Currency expressed to be payable to them under this Agreement,
the Notes, the Letters of Credit and the other Facility Documents. If for the
purpose of obtaining or enforcing judgment against any Obligor in any court or
in any jurisdiction, it becomes necessary to convert into or from any currency
other than the Obligation Currency (such other currency being hereinafter
referred to as the "Judgment Currency") an amount due in the Obligation
Currency, the conversion shall be made, at the Norwegian Krone Equivalent or
Dollar Equivalent, in the case of Norwegian Krone or Dollars, and, in the case
of other currencies, the rate of exchange (as quoted by the Administrative Agent
or if the Administrative Agent does not quote a rate of exchange on such
currency, by a known dealer in such currency designated by the Administrative
Agent) determined, in each case, as on the day immediately preceding the day on
which the judgment is given (such Banking Day being hereinafter referred to as
the "Judgment Currency Conversion Date").
(b) If there is a change in the rate of exchange prevailing between
the Judgment Currency Conversion Date and the date of actual payment of the
amount due, each Obligor covenants and agrees to pay such additional amounts, if
any, as may be necessary to ensure that the amount paid in the Judgment
Currency, when converted at the rate of exchange prevailing on the date of
payment, will produce the amount of the Obligation Currency which could have
been purchased with the amount of Judgment Currency stipulated in the judgment
or judicial award at the rate of exchange prevailing on the Judgment Currency
Conversion Date.
(c) For purposes of determining the Norwegian Krone Equivalent or
Dollar Equivalent or rate of exchange for this Section 13.18, such amount shall
include any premium and costs payable in connection with the purchase of the
Obligation Currency.
Section 13.18. Judgment Currency. If a Lender shall become aware that it is
eligible for a refund in respect of Taxes actually paid by the Borrower or the
Subsidiary Borrower pursuant to Section 4.06, it shall promptly notify the
Borrower
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<PAGE> 89
or the Subsidiary Borrower, as applicable, of the availability of such refund
and shall, within 30 days after receipt of a request by the Borrower or the
Subsidiary Borrower, as applicable, apply for such refund or shall furnish to
the Borrower or the Subsidiary Borrower, as applicable, such forms, duly
completed, as will enable the Borrower or the Subsidiary Borrower, as
applicable, to claim such refund on its own behalf. If any Lender receives a
refund in respect of any Taxes paid by the Borrower or the Subsidiary Borrower,
as applicable, pursuant to Section 4.06, it shall repay such refund within 30
days after receipt, to the Borrower or the Subsidiary Borrower, as applicable,
net of all reasonable out-of-pocket expenses of such Lender and without
interest; provided that the Borrower or the Subsidiary Borrower, as applicable,
agrees to return to such Lender the amount paid by it to the applicable Lender
with respect to such refund (plus applicable penalties, interest or other
charges) in the event such Lender is required to repay such refund.
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<PAGE> 90
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
BORROWER:
LCC INTERNATIONAL, INC., A DELAWARE CORPORATION
By /s/ Piyush Sodha
-----------------------------------
Name: Piyush Sodha
Title: President & CEO
Address for Notices:
7925 Jones Branch Drive
McLean, Virginia 22102
Attention: Chief Financial Officer
Telecopier No.: (703) 527-9433
with a Copy to:
7925 Jones Branch Drive
McLean, Virginia 22102
Attention: General Counsel
Telecopier No.: (703) 527-9433
[SIGNATURE PAGE TO CREDIT AGREEMENT]
<PAGE> 91
SUBSIDIARY BORROWER:
LCC EUROPE AS (F/K/A EUROPEAN
TECHNOLOGY PARTNER AS), A NORWEGIAN
CORPORATION
By : /s/ Piyush Sodha
--------------------------------
Name: Piyush Sodha
Title: Chairman
Address for Notices:
c/o LCC International, Inc.
7925 Jones Branch Drive
McLean, Virginia 22102
Attention: Chief Financial Officer
Telecopier No.: (703) 527-9433
with a copy to:
c/o LCC International, Inc.
7925 Jones Branch Drive
McLean, Virginia 22102
Attention: General Counsel
Telecopier No.: (703) 527-9433
[SIGNATURE PAGE TO CREDIT AGREEMENT]
<PAGE> 92
SUBSIDIARY GUARANTORS:
LCC DESIGN SERVICES, L.L.C., A DELAWARE
LIMITED LIABILITY COMPANY
By /s/ Piyush Sodha
-----------------------------------
Name: Piyush Sodha
Title: President & CEO
LCC DEVELOPMENT COMPANY, L.L.C., A
DELAWARE LIMITED LIABILITY COMPANY
By /s/ Piyush Sodha
-----------------------------------
Name: Piyush Sodha
Title: President & CEO
MICROCELL MANAGEMENT, INC., A DELAWARE
CORPORATION
By /s/ Piyush Sodha
-----------------------------------
Name: Piyush Sodha
Title: President & CEO
Address for Notices:
c/o LCC International, Inc.
7925 Jones Branch Drive
McLean, Virginia 22102
Attention: Chief Financial Officer
Telecopier No.: (703) 873-2300
with a copy to:
c/o LCC International, Inc.
7925 Jones Branch Drive
McLean, Virginia 22102
Attention: General Counsel
Telecopier No.: (703) 527-9433
[SIGNATURE PAGE TO CREDIT AGREEMENT]
<PAGE> 93
ADMINISTRATIVE AGENT:
THE CHASE MANHATTAN BANK
By /s/ Alan J. Aria
-----------------------------
Name: Alan J. Aria
Title: Vice President
Address for Notices:
4 Chase Metrotech Center
13th Floor
Brooklyn, NY 11245
Attention: New York Agency
with a copy to:
999 Broad Street
Bridgeport, Connecticut 06604
Attention: Alan Aria
[SIGNATURE PAGE TO CREDIT AGREEMENT]
<PAGE> 94
LENDERS:
THE CHASE MANHATTAN BANK
By /s/ Alan J. Aria
--------------------------------
Name: Alan J. Aria
Title: Vice President
Lending Office and Address for
Notices:
999 Broad Street
Bridgeport, Connecticut 06604
Attention: Alan Aria
Telecopier No.: (203) 382-6573
[SIGNATURE PAGE TO CREDIT AGREEMENT]
<PAGE> 95
SCHEDULE I
Revolving Credit Commitments
The Chase Manhattan Bank $20,000,000
Swingline Loan Commitments
The Chase Manhattan Bank $ 2,500,000
<PAGE> 96
Exhibit A 1
REVOLVING CREDIT NOTE
$20,000,000 New York, New York
September 30, 1996
For value received, LCC INTERNATIONAL, INC., a corporation organized
under the laws of Delaware (the "Borrower"), hereby promises to pay to the order
of THE CHASE MANHATTAN BANK (the "Lender") at the principal office of The Chase
Manhattan Bank at 1 Chase Manhattan Plaza, New York, New York 10081, as
administrative agent for the Lender (in such capacity, together with its
successors in such capacity, the "Administrative Agent"), for the account of the
appropriate Lending Office of the Lender, the principal sum of Twenty Million
and 00/100 Dollars ($20,000,000) or, if less, the amount loaned by the Lender to
the Borrower pursuant to the Credit Agreement referred to below, in lawful money
of the United States of America and in immediately available funds, on the
date(s) and in the manner provided in the Credit Agreement referred to below.
The Borrower also promises to pay interest on the unpaid principal balance
hereof, for the period such balance is outstanding, at said principal office for
the account of said Lending Office, in like money, at the rates of interest as
provided in the Credit Agreement described below, on the date(s) and in the
manner provided in said Credit Agreement.
The date and amount of each type of Revolving Credit Loan made by the
Lender to the Borrower under the Credit Agreement referred to below, and each
payment of principal thereof, shall be recorded by the Lender on its books and,
prior to any transfer of this Revolving Credit Note (or, at the discretion of
the Lender, at any other time), endorsed by the Lender on the schedule attached
hereto or any continuation thereof.
This is one of the Revolving Credit Notes referred to in that certain
Amended and Restated Credit Agreement dated as of September 30, 1996 (as amended
or supplemented from time to time, the "Credit Agreement") among the Borrower,
LCC Design Services, L.L.C., a Delaware limited liability company, LCC
Development Company, L.L.C., a Delaware limited liability company (collectively,
the "Subsidiary Guarantors"), each of the lenders which is signatory thereto
(including the Lender) and the Administrative Agent and evidences the Revolving
Credit Loans made by the Lender thereunder which shall, in the aggregate amount
among all such Revolving Credit Notes, not exceed $20,000,000. All terms not
defined herein shall have the meanings given to them in the Credit Agreement.
<PAGE> 97
The Credit Agreement provides for the acceleration of the maturity of
principal upon the occurrence of certain Events of Default and for prepayments
on the terms and conditions specified therein.
The Borrower waives presentment, notice of dishonor, protest and any
other notice (except as provided in the Facility Documents) with respect to this
Revolving Credit Note.
This Revolving Credit Note is secured in accordance with, and entitled
to the benefits of, the Security Documents.
All obligations evidenced by this Revolving Credit Note are guarantied
by the Subsidiary Guarantors pursuant to, and subject to the terms and
conditions of, Article 11 of the Credit Agreement.
This Revolving Credit Note shall be governed by, and interpreted and
construed in accordance with, the laws of the State of New York.
LCC INTERNATIONAL, INC., a Delaware corporation
By: /s/ Piyush Sodha
------------------------
Name: Piyush Sodha
Title: President & CEO
2
<PAGE> 98
<TABLE>
<CAPTION>
Amount of Amount of Balance Notation
Date Loan Payment Outstanding By
- ---- --------- --------- ----------- --------
<S> <C> <C> <C> <C>
</TABLE>
<PAGE> 99
Exhibit A 2
SWINGLINE NOTE
$2,500,000 New York, New York
December 15, 1997
For value received, LCC EUROPE AS (F/K/A EUROPEAN TECHNOLOGY PARTNER
AS), a corporation organized under the laws of Norway (the "Subsidiary
Borrower"), hereby promises to pay to the order of THE CHASE MANHATTAN BANK (the
"Lender") at the principal office of The Chase Manhattan Bank at 270 Park
Avenue, New York, New York 10017, as administrative agent for the Lender (in
such capacity, together with its successors in such capacity, the
"Administrative Agent"), for the account of the appropriate Lending Office of
the Lender, the Norwegian Krone Equivalent of the principal sum of Two Million
Five Hundred Thousand and 00/100 Dollars ($2,500,000) or, if less, the amount
loaned by the Lender to the Subsidiary Borrower pursuant to the Credit Agreement
referred to below, in Norwegian Krone and in immediately available funds, on the
date(s) and in the manner provided in the Credit Agreement referred to below.
The Subsidiary Borrower also promises to pay interest on the unpaid principal
balance hereof, for the period such balance is outstanding, at said principal
office for the account of said Lending Office, in like money, at the rates of
interest as provided in the Credit Agreement described below, on the date(s) and
in the manner provided in said Credit Agreement.
The date and amount of each type of Swingline Loan made by the Lender
to the Subsidiary Borrower under the Credit Agreement referred to below, and
each payment of principal thereof, shall be recorded by the Lender on its books
and, prior to any transfer of this Swingline Note (or, at the discretion of the
Lender, at any other time), endorsed by the Lender on the schedule attached
hereto or any continuation thereof.
This is one of the Swingline Notes referred to in that certain Second
Amended and Restated Credit Agreement dated as of December 15, 1997 (as amended
or supplemented from time to time, the "Credit Agreement") among LCC
International, Inc., a Delaware corporation (the "Borrower"), the Subsidiary
Borrower, LCC Design Service, L.L.C., a Delaware limited liability company, LCC
Development Company, L.L.C., a Delaware limited liability company, Microcell
Management, Inc., a Delaware corporation, each of the lenders which is signatory
thereto (including the Lender) and the Administrative Agent and evidences the
Swingline Loans made by the Lender thereunder which shall, in the aggregate
amount among all such Swingline Notes, not exceed $2,500,000. All terms not
defined herein shall have the meanings given to them in the Credit Agreement.
<PAGE> 100
The Credit Agreement provides for the acceleration of the maturity of
principal upon the occurrence of certain Events of Default and for prepayments
on the terms and conditions specified therein.
The Subsidiary Borrower waives presentment, notice of dishonor, protest
and any other notice (except as provided in the Facility Documents) with respect
to this Swingline Note.
All obligations evidenced by this Swingline Notes are guarantied by the
Subsidiary Borrower pursuant to and subject to the terms and conditions of,
Article 11 of the Credit Agreement.
This Swingline Note shall be governed by, and interpreted and construed
in accordance with, the laws of the State of New York of the United States of
America.
LCC EUROPE AS (F/K/A EUROPEAN TECHNOLOGY
PARTNER AS), A NORWEGIAN CORPORATION
By: /s/ Piyush Sodha
----------------------
Name: Piyush Sodha
Title: Chairman
<PAGE> 101
<TABLE>
<CAPTION>
Amount of Amount of Balance Notation
Date Loan Payment Outstanding By
- ---- --------- --------- ----------- --------
<S> <C> <C> <C> <C>
</TABLE>
<PAGE> 102
Exhibit B
COMPLIANCE CERTIFICATE
FOR THE FISCAL PERIOD ENDING
[ ] [ ], 19[ ]
<TABLE>
<S> <C>
FIXED CHARGE COVERAGE RATIO (calculated for the period of the
four most recently ended Fiscal Quarters)
(a) Consolidated EBIT $
----------
(b) Consolidated Depreciation $
----------
(c) Consolidated Amortization $
----------
(d) Old ETP R&D Expense $
----------
(e) Consolidated EBITDA ((a) + (b) + (c) + (d)) $
----------
(f) Consolidated Capital Expenditures $
----------
(g) Consolidated Principal Payments $
----------
(h) Consolidated Interest Expense $
----------
(i) Consolidated Income Tax Expense $
----------
(j) Consolidated Fixed Charges ((g) + (h) + (i)) $
----------
(k) Fixed Charge Coverage Ratio ((e)-(f)/(j))
-----------
(l) Required Ratio 2.00
CONSOLIDATED TANGIBLE NET WORTH (calculated as of
the end of the most recently ended Fiscal Quarter)
(a) Consolidated Subordinated Debt $
----------
(b) Consolidated Net Worth $
----------
(c) Consolidated Intangible Assets $
----------
(d) Consolidated Tangible Net Worth ((a) + (b)) $
----------
(e) Required Amount ($58,000,000+(iv)+(v)) $
----------
(i) Greater of Consolidated Net income
and Zero Dollars ($0) $
----------
</TABLE>
<PAGE> 103
<TABLE>
<S> <C>
(ii) Net Proceeds of Capital Stock Issuances and
Consolidated Subordinated Debt Incurrences $
----------
(iii) Reversal of NextWave and DCR Reserves $
----------
(iv) Fiscal Quarter Net Worth Increase Amount
[((i)*.50) +((ii)*.75)+((iii)*1.00)] $
----------
(v) Aggregate of Prior Fiscal Quarter Net Worth
Increase Amounts $
----------
CURRENT RATIO (calculated as of the end
of the most recently ended Fiscal Quarter)
(a) Consolidated Current Assets $
----------
(b) Consolidated Current Liabilities $
----------
(c) Current Ratio ((a)/(b))
-----------
(d) Required Ratio 1.75
CASH FLOW LEVERAGE RATIO (calculated for the period of the
four most recently ended Fiscal Quarters)
(a) Consolidated Debt $
----------
(b) Consolidated EBITDA $
----------
(c) Cash Flow Leverage Ratio ((a)/(b))
-----------
(d) Required Ratio 3.00
</TABLE>
I, [ ], the [ ] of LCC International, Inc., in my capacity as
such, hereby certify that, to the best of my knowledge, the information
contained herein is true and correct and no Default or Event of Default has
occurred and is continuing on the date hereof.
Date: [ ] [ ], 199[__] LCC INTERNATIONAL, INC., A
DELAWARE CORPORATION
By:
Name:
Title:
<PAGE> 104
Exhibit C 1
LCC
LCC INTERNATIONAL, INC.
7925 Jones Branch Drive
McLean, Virginia 22102
(703) 873-2000
Fax (703) 873-2100
December 15, 1997
The Chase Manhattan Bank,
as Administrative Agent
4 Chase Metrotech Center
Brooklyn, New York 11245
Each of the Lenders signatory to the
Credit Agreement referred to below
Ladies and Gentlemen:
I have acted as counsel to LCC International, Inc., a corporation organized
under the laws of Delaware (the "Borrower"), and its Subsidiaries, in connection
with the execution and delivery of that certain Second Amended and Restated
Credit Agreement dated as of December 15, 1997 (the "Credit Agreement") among
the Borrower, European Technology Partner AS, LCC Design Services, L.L.C., LCC
Development Company, L.L.C., Microcell Management, Inc., each of the lenders
signatory thereto and The Chase Manhattan Bank, as Administrative Agent. Except
as otherwise defined herein, all terms used herein and defined in the Credit
Agreement shall have the meanings assigned to them therein.
In connection with this opinion, I have examined executed copies of the Facility
Documents and such other documents, records, agreements and certificates as I
have deemed appropriate. I have also reviewed such matters of law as I have
considered relevant for the purpose of this opinion.
Based upon the foregoing, I am of the opinion that:
1) Each of the LCC Consolidated Entities is a corporation,
partnership or limited liability company duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its organization, has the corporate,
partnership or limited liability company power and authority
to own its assets and to transact the business in which it is
now engaged or proposed to be engaged and is duly qualified as
a foreign corporation, partnership or limited liability
company and is in good standing under the laws of each other
jurisdiction in which such qualification is required and in
which the failure to so quality or be in good standing could
reasonably be expected to have a Material Adverse Effect.
2) Each of the Facility Documents to which it is a party has been
duly executed and delivered by such Obligor. The execution,
delivery and performance by each of the Obligors of the
Facility Documents to which it is a party have been duly
authorized by all necessary corporate, partnership and limited
liability company action and do not and will not: (a) require
any consent or approval of its members which has not been
obtained; (b) contravene its organizational documents; (c)
violate any provision of, or require any filing (other than
the filings required pursuant to the terms of the Security
Documents), registration, consent or approval under, any law,
rule, regulation (including, without limitation, Regulation
U), order, writ, judgment, injunction, decree, determination
or award presently in effect having applicability to the
Parent or any of its Subsidiaries; (d) result in breach of
or constitute a default or require any consent under
<PAGE> 105
any indenture or loan or credit agreement, or any other
agreement, lease or instrument to which the Parent or any of
its Subsidiaries is a party or by which their respective
Properties may be bound or affected; (e) result in, or
require, the creation or imposition of any Lien (other than as
created under the Security Documents), upon or with respect to
any of the Properties now owned or hereafter acquired by the
Parent or any of its Subsidiaries; or (f) cause the Parent or
any of its Subsidiaries to be in default under any such law,
rule, regulation, order, writ, judgment, injunction, decree,
determination or award of any such indenture, agreement, lease
or instrument.
3) Each Facility Document to which any Obligor is a party is a
legal, valid and binding obligation of such Obligor
enforceable against such Obligor in accordance with its terms,
except to the extent that such enforcement may be limited by
applicable bankruptcy, insolvency and other similar laws
affecting creditors' rights generally and general principles
of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
If you have any questions, please call me.
Sincerely,
/s/ Peter A. Deliso
Peter A. Deliso
Vice President, Corporate Affairs
& General Counsel
<PAGE> 106
Exhibit C2
Chase Manhattan Bank, As Administrative Agent
4 Chase Metrotech Center
USA
Our ref.: TPD/hco December 15, 1997
Your ref.:
Ladies and Gentlemen:
We have acted as counsel to LCC International, Inc., a corporation organized
under the laws of Delaware ("LCC"), and LCC Europe AS (former European
Technology Partner AS), a corporation organized under the laws of Norway
("LCCE") in connection with the execution and delivery of that certain Second
Amended and Restated Credit Agreement dated as of 15 December 1997 (the "Credit
Agreement") among LCC, LCCE, LCC Design Services, L.L.C., LCC Development
Company, L.L.C., Microcell Management, Inc., each of the lenders signatory
thereto and the Chase Manhattan Bank, as Administrative Agent. Except as
otherwise defined herein, all terms used herein and defined in the Credit
Agreement shall have the meanings assigned to them therein.
In connection with this opinion, we have examined executed copies of the Credit
Agreement, the Revolving Credit Facility and the Security Agreement dated 16
June 1996 executed by LCCE in favor of LCC (collectively, the "Documents") and
such other documents, records, agreements and certificates as we have deemed
appropriate. We have also reviewed such matters of law as we have considered
relevant for the purpose of this opinion.
Based upon the foregoing, we are of the opinion that:
1. LCCE is duly incorporated, validly existing and in good standing under
Norwegian law, has the corporate power and authority to own its assets
and to transact the business in which it is now engaged or proposed to
be engaged.
2. The execution, delivery and performance by LCCE of the Documents to
which it is a party and the borrowings by LCCE under the Documents have
been duly authorized by all necessary corporate actions and do not and
will not: (a) require any consent or approval of its stockholder; (b)
contravene its Articles of Association; (c) violate any provision of,
or require any filing, registration, consent or approval under, any
Norwegian law, rule, regulation (including without limitation, any
exchange control law or regulation),
<PAGE> 107
order, writ, judgment, injunction, decree, determination or award
presently in effect having applicability to LCCE; (d) result in a
breach of or constitute a default or require any consent under any
indenture or loan or credit agreement or any other agreement, lease or
instrument to which LCCE is a party or by which it or its Properties
may be bound or affected; (e) result in, or require, the creation or
imposition of any Lien, upon or with respect to any of the Properties
now owned or hereafter acquired by LCCE; or (f) cause LCCE to be in
default under any such law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award or any such indenture,
agreement, lease or instrument. According to Norwegian Law a
joint-stock company may not be liable, by debt or guarantee
commitments, for a foreign parent company's liabilities. The agreements
are only valid or binding, if, and to the extent, the Norwegian
subsidiary is the actual borrower.
3. Each Document has been duly executed and delivered by LCCE. Each
Document to which LCCE is a party is a legal, valid and binding
obligation of LCCE enforceable against LCCE in accordance with its
terms, except to the extent that such enforcement may be limited by
applicable bankruptcy, insolvency or other similar laws affecting
creditors' rights generally.
4. The choice of law provisions in each of the Documents would be enforced
by the courts of Norway, provided that any such choice of law provision
or enforcement provision is contrary to mandatory Norwegian law.
5. To the best of our knowledge (after due inquiry), there are no actions,
suits or proceedings pending or threatened, against or affecting LCCE
before any Governmental Authority.
6. No withholding tax or documentary stamp tax or intangible tax or any
other tax under the applicable laws or Norway is or will be due in
connection with the transactions contemplated under the Documents.
7. LCCE is not subject to regulation under any statute or regulation
limiting its ability to incur indebtedness for money borrowed as
contemplated by the Documents.
8. We hereby confirm that Mr. Piyush Sodha as Chairman of the Board of
Directors of LCCE is authorized to execute and sign the Documents on
behalf of LCCE.
9. The opinions hereby expressed are confirmed to and given on the basis
of Norwegian law as currently in force and applied by the Courts of
Norway. We have made no investigation of and express no opinions as to
the laws of any jurisdiction other than Norway.
Yours sincerely WIKBORG, REEN & CO.
/s/ Anders Monrad
Anders Monrad
<PAGE> 108
SCHEDULE 6.04
LITIGATION, ETC.
1. Katyl v. LCC. L.L.C., Arco No.-96-042-3, EEOC No. 10B-95-0117. This
case involves a charge of national origin discrimination (East Indian)
filed on October 12, 1995. Ms. Katyl claims that she was denied
promotions and ultimately laid off because of her nationality. If she
prevails she would be entitled to back pay and benefits retroactively
to her date of termination (9/12/95), compensatory and punitive damages
capped at $300,000 and attorney fees. On September 30, 1997, the
Company received notice from the EEOC that it had dismissed the claim
and adopted the finding of the Arlington County Human Rights Commission
that "no reasonable grounds" existed for the claim. Ms. Katyl may
pursue her claim in federal or state court, provided the suit is filed
on or before December 26,1997.
2. Taylor v. LCC. Inc., ARCO No. 96-145-E, EEOC No. 10B-96-0082. On May
15, 1996, former LCC employee Sherry Taylor filed a complaint with the
Arlington County Human Rights Commission alleging sex discrimination
and sexual harassment in violation of Chapter 31 of the Arlington
County Code. The Company appears to have a meritorious defense, and the
case remains pending with the Commission.
3. GBR v. Eurofon Incorp. & Co. KG, (Landgericht Dusseldorf, Germany).
Plaintiff Landlord filed a complaint against Eurofon seeking DM 110,000
on breach of contract claim for failure to pay rent. Eurofon has filed
a motion seeking postponement of the case until the Appellate Court in
Dusseldorf decides a similar claim. The decision regarding postponement
is pending.
4. ABS Capital Partners ("ABS"). On November 27, 1996, the Company
received a letter from an attorney purporting to represent ABS. The
letter asserts, in substance, that ABS and Microcell Management, LCC
had agreed that ABS would receive 75% of Microcell's membership in
exchange for up to $10 million in capital funding from ABS, and that
LCC had "interfered" with that agreement by refusing to approve the
transaction under the terms of the joint venture agreement between LCC
and the other Microcell shareholders. No correspondence has been
received on this claim since January, 1997 and to our knowledge, no
suit has been filed.
5. LCI International/Trademark Claim. On November 6, 1996, the Company
received a letter from counsel for LCI International, Inc. ("LCI")
alleging that the Company's purported use of the names "LCC
International" and "LCCI" violates LCI's rights to use the trademark
"LCI International" in connection with the marketing, sale and
distribution of telecommunications products and services. The company
has responded to LCI's claims, and believes it has a meritorious
defense. Sporadic correspondence continues on this matter. To our
knowledge, no suit has been filed.
6. RCC Consultants, Inc. v. LCC International. At Law No. 96-1395 (Circuit
Court for the County of Arlington). On December 20, 1996, RCC
Consultants, Inc. ("RCC") filed a motion for judgment against LCC
seeking $88,000.00 on a breach of contract claim alleging that LCC had
failed to pay for certain site acquisition services. LCC counterclaimed
against RCC, alleging breach of and seeking damages in the amount of
$25,000. The company believes it has a meritorious defense to RCC's
claims.
7. Armor Cape & Pond Inc. v. LCC International. At Law No. 162099 (Circuit
Court for the County of Fairfax). On June 20, 1997 Armor Cape & Pond,
Inc. ("ACP') filed a motion for judgment against LCC seeking $42,800,
plus interest, on a breach of contract claim alleging that LCC had
failed to pay for certain architectural and engineering services. The
company believes it has a meritorious defense to all but $20,000 of the
claim.
<PAGE> 109
8. See Schedule 6.07 for a description of certain foreign and state taxes owing
by the LCC Consolidated Entities.
<PAGE> 110
SCHEDULE 6.07
TAXES
1. LCC, L.L.C. has approximately $8,889,000 in its Accrued Foreign Tax
liability account at September 30, 1997. Approximately $658,000 of this
amount represents estimated accrued interest on outstanding foreign
taxes. The balance, approximately $8,231,000, represents liabilities
which have been accrued for Income Tax, Branch Profits Tax, and
Withholding Tax for approximately 27 countries.
2. LCC, L.L.C. has approximately $1,482,000 in its Accrued State and Local
Tax Liability Account at September 30, 1997. Approximately $50,000 of
this amount represents estimated accrued interest on the outstanding
state and local taxes. The balance, approximately $1,432,000,
represents liabilities which have been accrued for Income Tax, Sales &
Use Tax, Payroll Tax, Property Tax, and Local Gross Receipts Tax.
<PAGE> 111
SCHEDULE 6.09
SUBSIDIARIES, AFFILIATES
SUBSIDIARIES
1. LCC Design Services, L.L.C.
Address: 7925 Jones Branch Drive
McLean, Virginia, 22102
Jurisdiction of Formation: Delaware
Ownership: The Borrower owns 99% and LCC Development Company, L.L.C.
owns 1% of the issued and outstanding membership interests in LCC
Design Services, L.L.C. LCC Design Services, L.L.C. owns 1% of the
issue and outstanding membership interest in LCC Development Company,
L.L.C.
2. LCC Europe Gmbh
Address: Grafenberger Allee 99
40000 Dusseldorf, Germany
Jurisdiction of Formation:Germany
Ownership: The Borrower owns 80% of the partnership
interests of Eurofon Incorp. & Co. KG.
3. Eurofon de France S.A.R.L.
Address: 7 BD Romain Rolland, B.P. 87
92128 Montrouge Cedex, France
Jurisdiction of Formation: France
Ownership: The Borrower owns 100% of the partnership
interests of Eurofon de France S.A.R.L.
4. LCC, United Kingdom:
Address: c/o 2300 Clarendon Blvd., Suite 800
Arlington, VA 22201
Jurisdiction of Formation: United Kingdom
Ownership: The Borrower owns 99% and LCC Design Services owns 1% of the
ordinary shares of LCC, United Kingdom.
5. LCC Development Company, L.L.C.:
Address: 2300 Clarendon Blvd., Suite 800
Arlington, VA 22201
Jurisdiction of Formation: Delaware
<PAGE> 112
Ownership: The Borrower owns 99% and LCC Design Services L.L.C. owns 1%
of the issued and outstanding membership interests in LCC Development
Company, L.L.C. LCC Development Company, L.L.C. owns 1% of the issued
and outstanding membership interests in LCC Design Services, L.L.C.
6. Microcell Management L.L.C.
Address: 8365 Cherry Lane
Laurel, MD 20707
Jurisdiction of Formation: Maryland
Ownership: The Borrower owns a 83.75% interest in
Microcell.
7. LCC do Brazil Ltda.
Address: Rue Frei Caneca
1380- Conj. 82
Sao Paulo, SP 01307-002
Brazil
Jurisdiction of Formation: Brazil
Ownership: The Borrower owns a 100% interest in LCC do
Brazil Ltda.
8. Communication Consulting Services ("CCS")
Address: 631 East Butterfield Rd.
Unit 301
Lombard, IL 60148
Jurisdiction of Formation: Illinois
Ownership: The Borrower owns a 60% interest in CCS.
9. LCC Asia Pacific LTD PTE
Address: Centrako Business Centre
6 Battery Road, #22-00
Singapore 049909
Jurisdiction of Formation: Singapore
Ownership: The Borrower owns 100% interest in LCC Asia Pacific.
Registration is pending, with the anticipated formation date of
December 20, 1997.
10. European Technology Partners A.S. ("ETP').
Address: Solheimveien 30
P.O. Box 447
N-1471 Skarep, Norway
Jurisdiction of Formation: Norway
<PAGE> 113
Ownership: The Borrower owns 100% interest in ETP.
AFFILIATES
1. Telcom Ventures, L.L.C.
Address: 2300 Clarendon Blvd., Suite 800
Arlington, Virginia, 22201
Jurisdiction of Formation: Delaware
Ownership: Cherrywood Holdings, Inc. (formerly LCC, Incorporated) owns
75% and Carlyle (as that term is defined in the Formation Agreement
dated November 16, 1993 ("Carlyle")) owns 25% of the issued and
outstanding membership interests in Telcom Ventures. Telcom Ventures
owns 99% of the issued and outstanding membership interests in RF
Investors, L.L.C., which in turn owns all of the outstanding shares of
Class B Common Stock of LCC International, Inc., which represents
approximately 93.9% of the combined voting power of both classes of
Common Stock of the Borrower.
2. Cherrywood Holdings, Inc. (formerly LCC, Incorporated)
Address: 2300 Clarendon Blvd., Suite 800
Arlington, Virginia, 22201
Jurisdiction of Formation: Kansas
Ownership: Cherrywood Holdings, Inc. owns 75% of the issued and
outstanding membership interests in Telcom Ventures, L.L.C., which in
turn owns 99% of the issued and outstanding membership interests in RF
Investors, L.L.C.
3. The Carlyle Group
Address: 7915 Jones Branch Drive
McLean, VA 22102
Jurisdiction of Formation: Delaware
Ownership: The Carlyle Group owns 25% of the issued and outstanding
membership interests in Telcom Ventures, L.L.C., which in turn owns 99%
of the issued and outstanding membership interests in RF Investors,
L.L.C.
4. RF Investors, L.L.C.
Address: 2300 Clarendon Blvd.
Arlington, VA 22201
Jurisdiction of Formation: Delaware
Ownership: RF Investors owns all of the outstanding shares of Class B
Common Stock, which represents 94.8% of the combined voting power of
both classes of Common Stock of LCC International, Inc.
<PAGE> 114
5. Koll Telecommunications Services, L.L.C.
Address: 5000 Birch Street, Suite 330
Newport Beach, CA 92660
Jurisdiction of Formation: Delaware
Ownership: The Borrower owns 33 1/3% of the issued and
outstanding membership interests in Koll.
6. This list of Affiliates lists only Subsidiaries of the Borrower,
Affiliates in which the Borrower has an ownership interest, and
Affiliates which directly own the Borrower, RF Investors, L.L.C., or
Telcom Ventures, L.L.C. This list does not include affiliates or
related parties of the Singh family.
OTHER SECURITYHOLDINGS
1. NextWave Telecom Inc.: The Borrower holds 1,666,666 shares
of Series B Common Stock of NextWave Telecom Inc., and warrants to purchase an
additional 123,356 shares of Series B Common Stock at $3.00 per share.
2. DCR: On March 20, 1996, LCC, L.L.C. executed a Convertible
Note and Investment Agreement with DCR for two loans of up to $6.5 million,
approximately $6.5 million of which is outstanding.
<PAGE> 115
SCHEDULE 6.10
CREDIT ARRANGEMENTS
DEBT
1. The Borrower owes $20 million in principal under the Subordinated Note
due 2000 executed by LCC, L.L.C. in favor of MCI Telecommunications
Corporation plus accrued interest.
2. The Borrower has assumed the obligations of Telcom Ventures under a
Subordinated Note due 2000 in the principal amount of $30 million in
favor of MCI Telecommunications Corporation.
3. As of the Closing Date, The Borrower had issued Letter of Credit for
the benefit of CTC Cellular in the amount of $66,946.40 secured by CD #
3300077055707 maturing on 11/28/96.
4. The Borrower has entered into an agreement with Dana Commercial Credit
with respect to financing the purchase of certain computer equipment in
amounts less than $50,000.
LIENS*
As of September 30, 1996, Liens publicized by the following financing statements
(copies of which are held by the Administrative Agent):
1. UCC-1 financing statement # 92-225660 filed on November 18, 1992 with the
Secretary of State of Texas against LCC, Incorporated secured by DARR Equipment
Co.
2. UCC-1 financing statement # 940527 7204 filed on May 27, 1994 with the
Virginia State Corporation Commission against LCC, Incorporated secured by
Advanced Computer Concepts.
3. UCC-1 financing statement # 940613 7169 filed on June 13, 1994 with the
Virginia State Corporation Commission against LCC, Incorporated secured by
Pitney Bowes Credit Corporation.
4. UCC-1 financing statement # 94-11297017 filed on November 29, 1994 with the
Virginia State Corporation Commission against LCC, Incorporated secured by
Pitney Bowes Credit Corporation.
5. UCC-1 financing statement # 54682 filed on November 30, 1994 with Arlington
County, Virginia against LCC, Incorporated secured by Aristidis Kopsidas
together with attachments thereto.
6. UCC-1 financing statement # 941214 7168 filed on December 14, 1994 with the
Virginia State Corporation Commission against LCC, Incorporated secured by
Aristidis Kopsidas together with attachments.
7. UCC-1 financing statement # 94-248131 filed on December 27, 1994 with the
Secretary of State of Texas against LCC, Incorporated secured by Plank Co.
8. UCC-1 financing statement # 950224 7117 filed on February 24, 1995 with the
Virginia State Corporation Commission against LCC, Incorporated secured by
Pitney Bowes Credit Corporation.
9. UCC-1 financing statement # 950509 7087 filed on May 9, 1995 with the
Virginia State Corporation Commission against LCC, Incorporated secured by
Pitney Bowes Credit Corporation.
<PAGE> 116
10. UCC-1 financing statement # 55401 filed on June 20, 1995 with Arlington
County, Virginia against LCC, L.L.C. secured by AT&T Capital Services Corp.
covering MAR/2957B Asset # 700953.
11. UCC-1 financing statement # 950620 7701 filed on June 20, 1995 with the
Virginia State Corporation Commission against LCC, L.L.C. secured by AT&T
Capital Services Corp. covering MAR/2957B Asset # 700953.
12. UCC-1 financing statement # 55453 filed on July 5, 1995 with Arlington
County, Virginia against LCC, L.L.C. secured by AT&T Capital Services Corp.
covering MAR/2957B Asset # 692818.
13. UCC-1 financing statement # 55454 filed on July 5, 1995 with Arlington
County, Virginia against LCC, L.L.C. secured by AT&T Capital Services Corp.
covering MAR/2957D Asset # 711130.
14. UCC-1 financing statement # 950705 7312 filed on July 7, 1995 with the
Virginia State Corporation Commission against LCC, L.L.C. secured by Telogy,
Inc. together with attachments thereto.
15. UCC-1 financing statement # 55477 filed on July 10, 1995 with Arlington
County, Virginia against LCC, L.L.C. secured by Telogy, Inc. covering HP 8594E.
16. UCC-1 financing statement # 950717 7050 filed on July 17, 1995 with the
Virginia State Corporation Commission against LCC, Incorporated secured by
Pitney Bowes Credit Corporation.
17. UCC-1 financing statement # 950824 7805 filed on August 24, 1995 with the
Virginia State Corporation Commission against LCC, Incorporation secured by AT&T
Capital Services Corporation.
18. UCC-1 financing statement # 55634 filed on August 28, 1995 with Arlington
County, Virginia against LCC, Incorporated secured by AT&T Capital Services
Corp. covering MAR/2957D, MAR/2957B & MAR/8593E.
19. UCC-1 financing statement #9509227248 filed on September 22, 1995 with the
Virginia State Corporation Commission against LCC, L.L.C. secured by Telogy,
Inc.
20. UCC-1 financing statement # 55753 filed on September 25, 1995 with Arlington
County, Virginia against LCC, L.L.C. secured by Telogy, Inc. covering MAR/2957D.
21. UCC-1 financing statement # 56263 filed on February 23, 1996 with Arlington
County, Virginia against LCC, L.L.C. secured by AT&T Capital Services Corp.
covering MAR/2967D.
22. UCC-1 financing statement #9603227216 filed on March 22, 1996 with the
Virginia State Corporation Commission against LCC, L.L.C. secured by Telogy,
Inc.
23. UCC-1 financing statement # 56393 filed on March 25, 1996 with Arlington
County, Virginia against LCC, L.L.C. secured by Telogy, Inc.
24. UCC-1 financing statement # 56433 filed on April 2, 1996 with Arlington
County, Virginia against LCC, Inc. secured by AT&T Capital Services Corp.
covering MAR/2031.
25. UCC-1 financing statement # 960402 7832 filed on April 2, 1996 with the
Virginia State Corporation Commission against LCC, Incorporated secured by AT&T
Capital Services Corp.
26. UCC-1 financing statement # 56580 filed on May 9, 1996 with Arlington
County, Virginia against LCC, Inc. secured by AT&T Capital Services Corp.
covering WAV/3600D.
<PAGE> 117
27. UCC-1 financing statement # 960510 7817 filed on May 10, 1996 with the
Virginia State Corporation Commission, against Telcom Ventures, L.L.C. secured
by Nomura Holding America Inc.
28. UCC-1 financing statement # 57092 filed on August 29, 1996 with Arlington
County, Virginia against LCC, Inc. secured by AT&T Capital Corporation covering
R&S SME03.
* In addition, there are numerous filings of Chase Manhattan
Bank (National Association) as Administrative Agent pursuant to the Credit
Agreement date June 14, 1996 among LCC, L.L.C., LCC Design Services L.L.C., LCC
Development Company, L.L.C., the Lenders signatory thereto, and Chase Manhattan
Bank (National Association) as Administrative Agent.
INVESTMENTS
1. The Borrower owns 33.33% of Koll Telecommunications Services, L.L.C., a
Delaware limited liability company ("Koll").
2. The Borrower owns 1,666,666 shares of Series B Common Stock of NextWave
Telecom Inc. and warrants to purchase 123,356 shares of series B Common
Stock.
3. The Borrower has executed a Convertible Note and Investment Agreement
with Pocket Communications, Inc. for two loans of up to $6.5 million,
approximately $6.5 million of which is outstanding.
4. The Borrower has received a Promissory Note, dated December 31, 1996,
from Pocket Communications, Inc., in the original principal amount of
$948,990.86. The principal amount has not been increased, but Pocket
continues to owe the Borrower additional amounts for services rendered
during 1996 and 1997. Please refer to the Borrower's Annual Report on
Form 10-K, Part II, Item 7, "Cash Flows" for discussion regarding these
amounts.
5. The Borrower has received a Promissory Note, dated December 31, 1996
from NextWave Telecom, Inc., in the original principal amount of
$10,000,000. As of the Closing Date, approximately $5.9 million is
outstanding under the Note. NextWave continues to owe the Borrower
additional amounts for services rendered during 1996 and 1997. Please
refer to the Borrower's Annual Report on Form 10-K, Part II, Item 7,
"Cash Flows" for discussion regarding these amounts.
6. The Borrower has received a Promissory Note, dated September 26, 1996,
from Telecom Ventures, L.L.C., in the principal amount of $3,500,000.
7. The Borrower has extended a revolving credit note to Microcell
Management, Inc., dated December 31, 1996, in the maximum principal
amount of $35,000,000.
8. The Borrower has extended a revolving credit note to European
Technology Partners AS, dated June 16, 1997, in the maximum principal
amount of $10,000,000.
<PAGE> 118
GUARANTEES
1. The Borrower has guaranteed the obligations of Microcell Management,
Inc. under its Master Construction Agreement, dated May 15, 1997, with
PrimeCo Personal Communications, L.P. ("The MCA") and certain leases
and related documents issued thereunder.
2. The Borrower has guaranteed the payment obligations of Microcell
Management, Inc. under certain purchase orders for tower equipment
issued to the Fort Worth Tower Company.
<PAGE> 119
SCHEDULE 6.11
CONTRACTS
ALL REVENUE PRODUCING CONTRACTS
1. Agreement dated May, 1989 between LCC, Incorporated and Metrocel
Cellular Telephone Company.
2. Agreement dated August 29, 1989 between LCC, Incorporated and GTE
Mobilenet Service Corp.
3. Agreement dated May 15, 1990 as amended between LCC, Incorporated and
Hutchison Microtel Limited as amended.
4. Agreement dated March 1, 1991 and amended December 1, 1992 between LCC,
Incorporated and Bay Area Cellular Telephone Company.
5. Agreement dated March 26, 1991 between LCC, Incorporated and Alltel
Mobile Communications, Inc. as amended December 12, 1995.
6. Agreement dated April 26, 1991 and amended June 1, 1992 between LCC,
Incorporated and Telecom Securicor Cellular Radio Limited d/b/a
Cellnet.
7. Technical Collaboration Agreement Dated May 3, 1991 Between LCC, L.L.C.
and BPL Systems and Projects, Ltd.
8. Agreement dated June 27, 1991 between LCC, Incorporated and Telcel,
Radiomovil Dipsa, S.A. de C.V.
9. Agreement dated September 1, 1991 between LCG, Incorporated and
Sistemas Telefonicos Portatiles Celulares, S.A. de C.V.
10. Agreement dated September 1, 1991 between LCC, Incorporated and Santa
Cruz Cellular Telephone Company.
11. Agreement dated November 1, 1991 between LCC, Incorporated and
Telecomunicaciones del Golfo, S.A. de C.V.
12. Agreement dated November 1, 1991 between LCC, Incorporated and Bell
South Enterprises, Inc.
13. Agreement dated December 19, 1991 between LCC, Incorporated and
BellSouth Cellular Corp. on behalf of itself and its affiliate American
Cellular Communications Corporation and more particularly on behalf of
Indianapolis Telephone Company.
14. Agreement dated December 19, 1991 between LCC, Incorporated and
BellSouth Cellular Corp. on behalf of itself and its affiliate
BellSouth Mobility Inc. and more particularly on behalf of BellSouth
Mobility's Region 2.
15. Agreement dated December 19, 1991 between LCC, Incorporated and
BellSouth Cellular Corp. on behalf of itself and its affiliate American
Cellular Communications Corporation and more particularly on behalf of
Madison Cellular Telephone Company.
<PAGE> 120
16. Agreement dated December 19, 1991 between LCC, Incorporated and
BellSouth Cellular Corp. on behalf of itself and its affiliate American
Cellular Communications Corporation and more particularly on behalf of
Milwaukee Telephone Company.
17. Agreement dated December 19, 1991 between LCC, Incorporated and
BellSouth Cellular Corp. on behalf of itself and its affiliate
BellSouth Mobility Inc. and more particularly on behalf of BellSouth
Mobility's Region 3.
18. Agreement dated January 1, 1992 between LCC, Incorporated and
Southwestern Bell Mobile Systems, Inc. d/b/a Cellular One Chicago.
19. Agreement dated January 1, 1992 between LCC, Incorporated and
Southwestern Bell Mobile Systems, Inc. d/b/a Cellular One Boston.
20. Agreement dated January 1, 1992 and amended January 1, 1993 between
LCC, Incorporated and Southwestern Bell Mobile Systems, Inc. d/b/a
Cellular One Baltimore/Washington.
21. Lease Agreement dated January 12, 1992 between GBR and Eurofon Incorp.
& Co. KG.
22. Agreement dated January 31, 1992 and amended March 1, 1993 between LCC,
Incorporated and McCaw Cellular of California Inc.
23. Agreement dated January 31, 1992 between LCC, Incorporated and
Pittsburgh Cellular Telephone Company.
24. Agreement dated February 19, 1992 between LCC, Incorporated and
Motorola, Inc.
25. Agreement dated February 20, 1992 between LCC, Incorporated and
Exportables Ltda.
26. Agreement dated May 8, 1992 between LCC, Incorporated and Pacific
Northwest Cellular, Inc.
27. Amendment to International ANET Software License and Service Agreement,
June 1, 1992 between Cellnet and LCC, Incorporated.
28. Agreement dated July 1, 1992 between Telecom Solutions Incorporated and
Fleet Call, Inc.
29. Agreement dated July 15, 1992 between LCC, Incorporated and Comcast
Cellular Communications, Inc.
30. Software Agreement dated September 4, 1992 between CTCC Compani
Telephonos de Chili Cellular and LCC, Incorporated.
31. Service Agreement dated September 22, 1992 between Korean Mobile
Telecom and LCC, Incorporated.
32. Software License Agreement dated September 30, 1992 between LCC,
Incorporated and Telecomunicaciones Movilnet C.A. as amended May, 1994.
33. Agreement dated October 1, 1992 between LCC, Incorporated and Cellular
Pacific.
34. Agreement dated December 1, 1992 between LCC, Incorporated and United
States Cellular Corporation and letter agreement dated November 10,
1995.
<PAGE> 121
35. Agreement dated December 18, 1992 between LCC, Incorporated and
BellAtlantic Mobile System Inc. and the following BellAtlantic
Metromobile companies: Metromobile CTS of the Northeast Inc.,
Metromobile CTS of the Southwest Inc. and Metromobile CTS of the
Southeast Inc.
36. Design Services Agreement dated January 1, 1993 between LCC,
Incorporated and Bay Area Cellular Telephone Company.
37. Agreement dated January 1, 1993 between LCC, Incorporated and BellSouth
Mobility Inc. Region 1, an affiliate of BellSouth Cellular Corporation.
38. Agreement dated January 1, 1993 between LCC, Incorporated and Ericsson
Systems Radio Inc.
39. Amendment to ANET and CMA Software License and Service Agreement,
January 1, 1993 between SW Bell Mobile System d/b/a Cellular One
Baltimore/Washington.
40. Service Agreement dated January 13, 1993 between Celular Movil de
Colombia and LCC, L.L.C.
41. Agreement dated February 17, 1993 between LCC, Incorporated and
Telefonica de Espana, S.A.
42. Data Licensee Agreement dated March 23, 1993 between CACI Marketing
Systems and LCC, Incorporated.
43. Software License Agreement dated March 29, 1993 between LCC,
Incorporated and Taehan Telecom Limited.
44. Agreement dated April 1, 1993 between LCC, Incorporated and Lincoln
Telephone and Telegraph Company.
45. Agreement dated April 1, 1993 between LCC, Incorporated and Telemate,
S.A.
46. Service Agreement dated April 11, 1993 between Mobile Communications
Company KSC and LCC, Incorporated.
47. Agreement dated April 14, 1993 between LCC, Incorporated and Folec
Communications Pte. Ltd.
48. Agreement dated April 15, 1993 between LCC, Incorporated and Houston
Cellular Telephone Company.
49. Agreement dated April 26, 1993 between LCC, Incorporated and MCI
Telecommunications Agreement.
50. Agreement dated April 29, 1993 between LCC, Incorporated and Millicom
Costa Rica, S. A.
51. Agreement dated May 1993 between LCC, Incorporated and Pactel Cellular.
52. Agreement dated June 9, 1993 between Telemate and Movistar S.A.
53. Cooperation Agreement dated June 28, 1993 between LCC, Incorporated and
Telemate.
<PAGE> 122
54. License and Distribution Agreement dated June 28, 1993 between LCC,
Incorporated and Telemate, S.A.
55. Marketing Agreement dated June 28, 1993 between Telemate, S.A. and LCC,
Incorporated.
56. Shareholders Agreement dated June 28, 1993 between LCC, Incorporated
and Sofrecom SA.
57. Irrevocable Promise re 16% dated June 28, 1993 between LCC,
Incorporated and Sofrecom SA.
58. Irrevocable Promise re 1% dated June 28, 1993 between LCC, Incorporated
and Sofrecom SA.
59. Agreement dated June 30, 1993 between LCC, Incorporated and BellSouth
Europe.
60. Agreement dated July 7, 1993 between LCC, Incorporated and Vanguard
Cellular Systems, Inc., and amended October 1, 1995.
61. Agreement dated August 11, 1993 and amended October 17, 1993 between
LCC, Incorporated and Mobile Telecommunications Company.
62. Software License Agreement dated August 27, 1993 between Essen
International and LCC, Incorporated.
63. Agreement dated September, 1993 between LCC, Incorporated and Oneonta
Telephone Company.
64. Agreement dated September 1993 between LCC, Incorporated and Computer
System House, L.L.C.
65. Agreement dated September 1, 1993 between LCC, Incorporated and Questar
Telecom, Inc.
66. Agreement dated September 3, 1993 between LCC, Incorporated and Transit
Communications Corporation.
67. Agreement dated September 7, 1993 between LCC, Incorporated and Korean
Mobile Telecommunications Corporation, as amended October 16, 1995.
68. Agreement dated September 20, 1993 between LCC, Incorporated and Martin
Marietta Corporation Systems Integration Group.
69. Agreement dated October 18, 1993 between LCC, Incorporated and Grupo
Iusacell, SA de C.V.
70. Agreement dated October 26, 1993 between LCC, Incorporated and Contel
Cellular Inc.
71. Agreement dated November 5, 1993 between Compania de Telefonos de Chile
Celular S.A. and LCC, Incorporated.
72. Agreement dated November 9, 1993 and amended March 22, 1994 between
LCC, Incorporated and Powerfone, Inc.
<PAGE> 123
73. Agreement dated November 30, 1993 with Addendum dated December 10, 1993
between LCC, Incorporated and Cellular, Inc.
74. Agreement dated December 8, 1993 between LCC, Incorporated and Mobikom
SDN BHD.
75. Agreement dated December 15, 1993 between LCC, Incorporated and Wipro
Systems Limited, and amended June 30, 1994.
76. Service Agreement dated December 15, 1993 between TSI, LCC,
Incorporated and Powerfone, Inc.
77. Agreement dated January 1, 1994 between Dial Call and LCC, L.L.C.
78. Agreement dated February 1, 1994 between Celular Movil de Colombia S.A.
and LCC, L.L.C.
79. Test Equipment License Agreement dated February 3, 1994 between
QUALCOMM Incorporated and LCC, L.L.C.
80. Letter Agreement dated February 10, 1994 between LCC, L.L.C. and Multi
Kontrol Nusantara.
81. Letter of Appointment between Multi Kontrol Musantara and LCC, L.L.C.
dated February 10, 1994.
82. Letter agreement dated February 17, 1994 between LCC, L.L.C. and Radio
Telephone Indonesia.
83. Service Agreement dated March 7, 1994 between TSI, L.L.C. and Dial
Call, Inc.
84. Agreement dated March 9, 1994 between LCC, L.L.C. and Cellular
Communications de Puerto Rico Services, Inc.
85. Sales Representative Agreement between LCC, L.L.C. and Essen Telecom
Co., Ltd., dated March 21, 1994.
86. Agreement dated April 27, 1994 between LCC, L.L.C. and Westel 900 GSM
Mobile Tavkozlesi RT.
87. Software License Agreement dated April 29, 1994 between VISIX SOFTWARE,
INC. and LCC, L.L.C.
88. Agreement dated May 9, 1994 between LCC, L.L.C. and Colonial Village
Center Associates.
89. Agreement dated May 15, 1994 between LCC, Incorporated and Comcast
Cellular Communications, Inc.
90. Agreement between Qualcomm and LCC, L.L.C. dated June 1, 1994.
91. Amendment Agreement between LCC, L.L.C. and Southwestern Bell Mobile
Systems, Inc., D/B/A Cellular One Boston dated June 21, 1994.
92. Agreement dated June 24, 1994 between Telcom Ventures, L.L.C. and Radio
Movil Digital Americas, Inc.
<PAGE> 124
93. Note Purchase Agreement dated June 27, 1994 between LCC, L.L.C., Telcom
Ventures, L.L.C. and MCI Telecommunications Corporation.
94. Software License Agreement dated July 7, 1994 between Los Angeles
Cellular Telephone Company and LCC, L.L.C. and letter agreement dated
August 17, 1995.
95. Agreement dated July 15, 1994 between Omnitel Pronto Italia and LCC,
L.L.C. and amendment dated June 23, 1995.
96. Agreement dated August 1994 between Cellular Communications Network
(Malaysia) SDN. BHD., and LCC, L.L.C.
97. Agreement dated August 1, 1994 between Compania Celular de Colombia
S.A. and LCC, L.L.C.
98. Agreement dated August 12, 1994 between Sapura Holdings Sdn. Bhd., and
LCC, L.L.C. as amended by letter agreement dated November 10, 1995 as
extended on June 11, 1996.
99. Agreement dated September 1994 between Cellular Communications Network
(Malaysia) SDN. BHD., and LCC, L.L.C.
100. Joint Venture Agreement dated September 1, 1994 between Getronics
International B.V. and LCC, L.L.C. and agreement dated August 23, 1993.
101. Agreement dated October 11, 1994 and November 1, 1994 between LCC,
L.L.C. and Visix Software, Inc., and the First Amendment dated January
1, 1995.
102. Agreement dated October 11, 1994 between Bell South International, Inc.
and LCC, L.L.C.
103. Agreement dated October 21, 1994 between LCC, L.L.C. and Airlink
Servicos e Comercio Ltda., as amended on March 28, 1996.
104. Agreement dated October 27, 1994 between Clearnet, Inc. and TSI, L.L.C.
and amended July 7, 1995 and June 20, 1996 and a confidentiality
agreement dated October 1, 1994 as amended December 15, 1994
incorporated in the Agreement.
105. Letter of Intent between Design Institute and LCC, L.L.C. dated October
28, 1994.
106. Agreement dated November 1, 1994 between Vertex Information & Computer
Consulting Services, Inc. ("VICCS") and LCC, L.L.C.
107. Agreement dated November 15, 1994 between Pacific Bell Mobile Services
and LCC, L.L.C.
108. Agreement dated December 20, 1994 between LibanCell, France Telecom
Mobile Liban and LCC, L.L.C.
109. Agreement dated December 20, 1994 between Allied Communications
Development, s.a.r.l. and LCC, L.L.C.
110. Agreement dated January 1, 1995 between Bell South International, Inc.
and LCC, L.L.C.
111. Agreement dated January 1, 1995 between LCC, Incorporated and Celular
de Telefonia S.A. de C.V. Mexico.
<PAGE> 125
112. Side letter executed by Celumovil dated January 1, 1995.
113. Service Agreement dated January 3, 1995 between Tech Group, Inc. and
LCC, L.L.C.
114. Agreement dated January 27, 1995 between LCC, L.L.C. and Xerox Business
Services.
115. Agreement dated February 1, 1995 between Paging Network, Inc. and LCC,
L.L.C.
116. Agreement dated February 23, 1995 between GTE Mobile Communications
International Corporation and LCC, L.L.C.
117. Software License and Services Agreement dated February 24, 1995 between
LCC, L.L.C. and Oracle Corporation.
118. Agreement dated March 23, 1995 between LCC, L.L.C. and McCaw Cellular
Communications, Inc.
119. Agreement dated March 8, 1995 between LCC, L.L.C. and Vectra
Technologies, Inc.
120. Affiliate Agreement dated March 24, 1995 between LCC, L.L.C. and The
Tech Group, Inc.
121. Agreement dated March 27, 1995 between LCC, L.L.C. and Lukas, McGowan,
Nace & Gutierrez.
122. Agreement between Trammell Crow Corporation Services and LCC, L.L.C.
dated March 30, 1995.
123. Agreement dated March 30, 1995 between Mobile Telecommunication
Technologies and LCC, L.L.C.
124. Affiliate Agreement between Trammell Crow and LCC, L.L.C. dated March
30, 1995.
125. Agreement dated March 30, 1995 between LCC, L.L.C. and CB Commercial
Real Estate Group, Inc. and letter of authorization dated April 21,
1995.
126. Agreement dated March 30, 1995 between LCC, L.L.C. and Vectra
Technologies, Inc.
127. Agreement dated March 30, 1995 between LCC, L.L.C. and Koll
Telecommunications Services.
128. Master Services Agreement dated April 3, 1995 between Mobil
Telecommunication Technology Corp. and LCC, L.L.C.
129. Service Agreement dated April 13, 1995 between MajorCo, L.P. and LCC
Design Services, L.L.C.
130. Statement of Work between Network Building and Consulting Inc. dated
April 20, 1995.
131. Statement of Work between LCC, L.L.C., and Sargent and Lundy dated
April 20, 1995.
132. Scope of Work dated April 20, 1995 between Trammell Crow and LCC,
L.L.C. and letter of authorization dated April 21, 1995.
133. Letter of Authorization dated April 21, 1995 between Vectra
Technologies and LCC, L.L.C.
<PAGE> 126
134. Affiliate Agreement between JEFA International and LCC, L.L.C. dated
April 21, 1995.
135. Letter of Authorization between KOLL Telecommunications Services dated
April 21, 1995 and LCC, L.L.C.
136. Agreement dated April 27, 1995 between Definitive Cellular Limited and
LCC, L.L.C.
137. Software License Agreement between LCC, L.L.C. and Celular Movil de
Colombia S.A., dated April 27, 1995.
138. Letter of Authorization dated April 28, 1995 between Tower Resource
Management and LCC, L.L.C.
139. Master Services Agreement between Celcom and LCC, L.L.C., dated April
28, 1995 and Proposal for JB ETACS Frequencey retune revised July 31,
1995.
140. Letter Agreement dated May 3, 1995 between BPL Systems and Projects
Limited and LCC, L.L.C. as amended on December 8, 1995.
141. Service Agreement dated May 13, 1995 between Singapore Telecom Mobile
Link Private and LCC, L.L.C.
142. Service Agreement dated May 14, 1995 between Ericsson Telecommuniczques
Brazil and LCC, L.L.C.
143. Microwave Tower Prospect Registration agreement between CSX
Transportation and LCC, L.L.C. dated June 10, 1995.
144. Letter Agreement between LCC, Incorporated, and Bellsouth Cellular
Corporation, Dated June 20, 1995, amending Software license and Service
Agreement dated December 19, 1991.
145. Software License Agreement between Palmer Wireless Inc., and LCC,
L.L.C. dated July 1995.
146. Amended and restated Software License and Services Agreement between
TSI and NEXTEL Communications, Inc. dated July 1, 1995.
147. Agreement dated July 1, 1995 between Western Wireless Corporation and
LCC, L.L.C.
148. Letter Agreement between KIA Group and LCC, L.L.C. dated July 13, 1995.
149. Software License Agreement dated July 18, 1995 between Taehan Telecom
Limited and LCC, L.L.C.
150. Engineering Service Agreement for KMT Optimization project dated July
21, 1995 between Taehan Telecom Limited and LCC, L.L.C. and letter of
authorization dated October 20, 1995.
151. Consulting Agreement dated July 22, 1995 between Dacom Corp. and LCC,
L.L.C.
152. Master Service Agreement dated August 1, 1995 between LG Electronics,
Inc. and LCC, L.L.C. and letter of authorization dated August 28, 1995.
<PAGE> 127
153. Consulting Services Agreement between Southern Company Services, Inc.
and TSI dated August 17, 1995.
154. Project proposal for the preparation of a tender application for a
Korean PCS application presented to DACOM Corporation, August 22, 1995.
155. Management Consultant Service Agreement between Los Angeles Cellular
Telephone Company and LCC, L.L.C. dated August 24, 1995.
156. Letter of Authorization between Dacom and LCC, L.L.C., dated August 29,
1995.
157. Letter Agreement between LCC, L.L.C., and Compania de Comunicaciones
del Interior, S.A. dated September 7, 1995.
158. Agreement dated September 7, 1995 as amended October 4, 1995 between
CCPI (Compania de Communicaciones Personales del Interior, S.A.) and
LCC, L.L.C.
159. Letter Agreement dated September 11, 1995 between Datawave and LCC,
L.L.C. regarding the installation of antennas on telecommunications
towers.
160. Letter confirming agreement between Datawaves S.R.L. and LCC, L.L.C.
dated September 11, 1995.
161. Letter Agreement between Paul Janssen and LCC, L.L.C. dated September
13, 1995.
162. Letter Agreement dated September 22, 1995 between Chatterjee Management
Company and LCC Incorporated.
163. Affiliate Agreement between COMCOR Advisory Services, Inc. and LCC,
L.L.C. dated September 25, 1995.
164. Contract No. TG-96-059 for Celular Speech Codec Subjective Listening
Test between LCC, L.L.C. and COMSAT Corporation.
165. Amendment Number 1 to Software License Agreement between Contel
Cellular Incorporated and LCC, L.L.C.
166. Letter of Authorization between COMCOR Advisory Services, Inc. and LCC,
L.L.C. dated September 25, 1995 and letter of authorization dated
December 13, 1995 as amended on June 27, 1996.
167. Letter to confirm Agreement between Hughes Aircraft of Canada Limited
and LCC, L.L.C. dated September 27, 1995.
168. September 28, 1995 Affiliate Agreement between Associated Consulting
Service and LCC, L.L.C.
169. Software License Agreement between LCC, L.L.C. and P.T. Rajasa Hasanah
Perkasa dated October 10, 1995.
170. Software License Agreement dated October 11, 1995 between Southern
Communications Services, Inc. and LCC, L.L.C.
<PAGE> 128
171. Payment Agreement between Telcom Ventures and Principal Mutual Life
Insurance Co. dated October 13, 1995.
172. Services Agreement between Image Communications, Inc. and LCC, L.L.C.
dated October 23, 1995.
173. Agreement between TSI and Infocom Communications dated October 23,
1995.
174. Contract between LCC, L.L.C. and Zhuhai New Galaxy International
Electronics Co. Ltd., dated October 28, 1995.
175. Letter Service Agreement dated November 1, 1995 between Ericsson
Telecommunications.
176. Letter Agreement dated November 7, 1995 between LCC, L.L.C., Pacific
Bell Mobile Services for provision of software.
177. November 8, 1995 letter of authorization from Associated Consulting
Services to LCC, L.L.C.
178. Letter Agreement dated November 27, 1995 with KF Technologia.
179. Letter of Authorization dated December 13, 1995 between LCC, L.L.C. and
Trammell Crow Corporate Services.
180. Master Service Agreement dated December 15, 1995 between LCC, L.L.C.
and Communications Consulting Services, Inc.
181. Agency Agreement between Tawoos L.L.C. and LCC, Incorporated (no date).
182. Agreement for Services between MAJORCO., L.P. and LCC, L.L.C. dated
December 21, 1995, as amended.
183. License Agreement dated January 1, 1996 between LCC, L.L.C. and
Southwestern Bell Systems, Inc. as a general partner for CSW Cellular
Partnership.
184. Master Services Agreement between LCC, L.L.C. and Sprint Cellular
Company dated January 29, 1996.
185. Letter of Authorization between Sprint Cellular Co and LCC, L.L.C.
dated January 29, 1996.
186. Engineering Services Agreement for KMT Optimization Project by and
between Taehan Telecom Limited and LCC, L.L.C. as extended by three
letter agreements.
187. Service and Equipment Supply Agreement dated February 21, 1996 between
LCC, L.L.C. and Microcell Management L.L.C.
188. Agreement between Sprint and LCC, L.L.C. dated February 27, 1996.
189. Master Service Agreement between Lucent Technologies and LCC, L.L.C.
dated March 1, 1996.
190. Services Agreement dated March 12, 1996 between NextWave and LCC,
L.L.C.
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191. Affiliate Agreement between PCX Communications and LCC, L.L.C. dated
March 15,1996.
192. Agreement between MRG Management Resources, Inc. and LCC, L.L.C dated
March 18, 1996.
193. License Agreement dated March 20,1996 between DCR Communications, Inc.
and LCC, L.L.C.
194. Service Agreement dated March 20,1996 between DCR Communications, Inc.
and LCC, L.L.C.
195. Service Agreement dated April 16,1996 between Northern Telcom, Inc. and
LCC Development Company, L.L.C.
196. Scope of Work Agreement dated April 20,1996 between Network Building
Consulting Inc. and LCC, L.L.C.
197. Scope of Work Agreement dated April 30,1996 between CB Commercial Real
Estate Group and LCC, L.L.C.
198. Service Agreement dated July 15,1996 between LCC, L.L.C. and LG Telecom
Ltd.
199. License Agreement dated July 15,1996 between LCC, L.L.C. and LG Telecom
Ltd.
200. Service Agreement dated June 28,1996 between PTT Telecom B.V. and LCC,
L.L.C.
201. Engineering Services Agreement for KMT Optimization Project dated July
29,1996 between Essen Telecom Co. Ltd. and LCC, L.L.C.
202. License Agreement dated July 30,1996 between LCC, L.L.C. and Hyundai
Electronics Industries Co., Ltd.
203. Master Service Agreement dated July 30,1996 between LCC, L.L.C. and
NextWave Telecom, Inc.
204. License Agreement dated August 16,1996 between Dacom Incorporated and
LCC, L.L.C.
205. License Agreement dated August 22,1996 between LCC, L.L.C. and AGT
Mobility, Inc.
206. License Agreement dated August 30,1996 between LCC, L.L.C. and Seoul
Comtech Co. Ltd.
207. License Agreement dated August 30,1996 between LCC, L.L.C. and Hansol
PCS, Ltd.
<PAGE> 130
MATERIAL CONTRACTS*
1. Lease Agreement dated January 28, 1991 between Second Courthouse Plaza
Associates Limited Partnership and LCC, Incorporated as extended and
assigned to Telcom Ventures, L.L.C. on December, 31, 1993 and further
assigned to LCC, L.L.C. by agreement dated May 25, 1995, and Lease
Extension Agreement thereto, dated March 19, 1996.
2. Lease Agreement dated July 23, 1990 between LCC, Incorporated and
Second Courthouse Plaza Association Limited Partnership as extended and
assigned to Telcom Ventures, L.L.C. on December, 31, 1993 and further
assigned to LCC, L.L.C. by agreement dated May 25, 1995, and Lease
Extension Agreement thereto, dated March 19, 1996.
3. Employment Agreement dated September 14, 1990 between LCC, Incorporated
and Piyush Sodha.
4. Agreement dated July 17, 1992 between Telecom Solutions, Inc. and
Colonial Village Center Associates, as amended June 10, 1994 and
assigned to Telcom Ventures, LLC on December 30, 1993 and further
assigned to LCC, L.L.C. by agreement dated September 18, 1996.
5. Lease Agreement dated October 22, 1992 between GBR and Eurofon Inc. &
Co. KG.
6. Formation Agreement dated November 16, 1993 between the Carlyle and
LCC, Incorporated, as amended.
7. Letter Agreement dated December 29, 1993 between Carlyle and LCC,
Incorporated.
8. LCC, L.L.C. 1994 Phantom Membership Plan and agreements issued pursuant
thereto.
9. LCC, L.L.C. 1994 Incentive Compensation Plan and agreements issued
pursuant thereto.
10. LCC, L.L.C. Employee Option Plan and agreements issued pursuant
thereto.
11. LCC Master Contribution, Assignment and Assumption Agreement dated
January 3, 1994 between LCC, Incorporated and Telcom Ventures, L.L.C.
and related parties.
12. Limited Liability Company Agreement of LCC, L.L.C. dated January 4,
1994 as amended.
13. Sublease Agreement dated March 10, 1994 between Star Mountain, Inc. and
LCC, L.L.C.
14. Sublease Agreement dated May 7, 1994 between LCC, L.L.C. and
Minirth-Meier Byrd Clinic, P.A.
15. Lease Agreement dated May 9, 1994 between Colonial Village Center
Associates and LCC, L.L.C. as amended on May 1, 1995.
16. Note Purchase Agreement dated June 27, 1994 between Telcom Ventures,
L.L.C., LCC, L.L.C. and MCI Telecommunications Corporation.
17. Securityholders Agreement dated June 27, 1994 between Telcom Ventures,
L.L.C., LCC, L.L.C. TC Group, L.L.C., LCC, Incorporated and MCI
Telecommunications Corporation, as amended.
18. Guaranty dated June 27, 1994 between LCC, L.L.C. and MCI
Telecommunications Corporation.
19. Subordinated Note due 2000 dated June 28, 1994 between LCC, L.L.C. and
MCI Telecommunications Corporation, as amended.
20. Limited Liability Company Agreement of LCC Design Services, L.L.C.
dated August 1, 1994 as amended.
21. Sublease Agreement dated October 18, 1994 between Public Utilities
Reports Inc. and LCC, L.L.C.
<PAGE> 131
22. Limited Liability Company Agreement of Koll Telecommunications
Services, L.L.C. dated December 1994.
23. Eurofon Incorp. & Co. KG Partnership Agreement.
24. Telcom Ventures Revolving Promissory Note dated May 30, 1995 between
LCC, L.L.C. and Telcom Ventures, L.L.C.
25. Memorandum and Articles of Association of LCC, United Kingdom dated
June 26, 1995.
26. Promissory Note dated July 15, 1995 between Corporacion MobilCom S.A.
de C.V d/b/a Tricom Network and LCC, L.L.C. in the amount of
$283,080.00.
27. Promissory Note dated July 15, 1995 between Corporacion MobilCom S.A.
de C.V., d/b/a Tricom Network and LCC, L.L.C. in the amount of
$1,078,000.00.
28. Shareholders Rights Agreement dated November 30, 1995 between NextWave
Telcom Inc. and LCC, L.L.C.
29. Convertible Note dated January 2, 1996 between LCC, L.L.C. and
Communication Consulting Services, Inc.
30. Stock Option Agreement dated January 2, 1996 between LCC, L.L.C. and
Communication Consulting Services, Inc.
31. Limited Liability Company Agreement of LCC Development Company, L.L.C.
dated January 24, 1996.
32. Amended and Restated Shareholders Rights Agreement dated February 1996
between NextWave Telcom Inc. and LCC, L.L.C.
33. Joint Venture Agreement dated February 21, 1996 between LCC, L.L.C. and
Microcell Management, L.L.C.
34. Letter Agreement dated March 12, 1996 between NextWave and LCC, L.L.C.
35. Subscription Agreement dated March 12, 1996 between NextWave and LCC,
L.L.C.
36. Lease Extension Agreements dated March 19, 1996 between Second
Courthouse Associates Limited Partnership and LCC, L.L.C.
37. Convertible Loan and Investment Agreement dated March 20, 1996 between
LCC, L.L.C. and DCR Communications, Inc.
38. Series D Convertible Debenture due March 27, 2001 by DCR
Communications, Inc. dated March 27, 1996.
39. Series D Convertible Debenture due May 10, 2001 by DCR Communications,
Inc. dated May 10, 1996.
40. Agreement dated May 17, 1996, between LCC, L.L.C. and West*Park
Associates Limited Partnership.
41. Agreement dated May 17, 1996, between LCC, L.L.C. and West*Park
Associates Limited Partnership.
42. Promissory Note dated June 27, 1996 between LCC, L.L.C. and Gabrielle
Huntsinger.
43. Intercompany Agreement dated August 27, 1996 between LCC International,
Inc., Telcom Ventures, L.L.C., LCC, L.L.C., Cherrywood Holdings, Inc.,
Rajendra Singh, Nerra Singh, certain trusts for the benefit of members
of the Singh family, Carlyle-LCC Investors I, L.P., Carlyle-LCC
Investors II, L.P., Carlyle-LCC Investors III, L.P., Carlyle-LCC IV
(E), L.P., MDLCC, L.L.C. and TC Group, L.L.C.
44. Registration Rights Agreement dated July 25, 1996 between LCC
International, Inc., RF Investors, L.L.C. and MCI Telecommunications
Corporation.
45. Overhead and Administrative Services Agreement dated August 27, 1996
between LCC International, Inc. and Telcom Ventures, L.L.C.
46. Amended and Restated Securityholders Agreement dated July 25, 1996
between LCC International, Inc., Telcom Ventures, L.L.C., LCC,
Incorporated, TC Group, L.L.C., LCC, L.L.C. and MCI Telecommunications
Corporation, as amended on September 19, 1996.
47. Agreement of Merger dated September 15, 1996 between LCC International,
Inc. and LCC, L.L.C.
<PAGE> 132
48. Stock Option Agreement dated September 1996 between LCC International,
Inc. and the Carlyle Option Designees.
49. LCC International, Inc. 1996 Directors Stock Option Plan stock option
agreement and agreements issued pursuant thereto (other than Mark D.
Ein).
50. LCC International, Inc. 1996 Directors Stock Option Plan stock option
agreement for Mark D. Ein.
51. LCC International, Inc. 1996 Employee Stock Option Plan incentive stock
option agreement and agreements issued pursuant thereto.
52. LCC International, Inc. 1996 Employee Stock Option Plan non-incentive
stock option agreement and agreements issued pursuant thereto.
53. LCC International, Inc. 1996 Employee Stock Option Plan non-incentive
stock option agreement (for employees who had been eligible to
participate in the LCC, L.L.C. 1994 Phantom Membership Plan or the LCC,
L.L.C. 1996 Employee Option Plan).
54. Phantom Membership Plan Exchange Agreement for Piyush Sodha and Donald
R. Rose.
55. Phantom Membership Plan Exchange Agreement for all other participants
in the LCC, L.L.C. 1994 Phantom Membership Plan.
56. Cross-receipt between Telcom Ventures, L.L.C. and LCC, L.L.C.
57. LCC International, Inc. 1996 Employee Stock Purchase Plan and
agreements issued pursuant thereto.
58. LCC International, Inc. 1996 Director Indemnity Agreements with
Directors.
59. Stock Option Agreement dated September 1996 for directors who will
receive Class B Common Stock.
60. Letter Agreement dated August 22, 1996 between LCC International, Inc.
and Arno Penzias.
61. Notice of Assignment of Subordinated Note Due 2000 dated September 27,
1996 from Telcom Ventures, L.L.C. and LCC International, Inc. to MCI
Telecommunications Corporation.
62. Second Amendment to Subordinated Note Due 2000 dated September 27, 1996
by Telcom Ventures, L.L.C. and LCC International, Inc. payable to MCI
Telecommunications.
63. Third Amendment to Subordinated Note Due 2000 dated September 27, 1996
by Telcom Ventures, L.L.C. and LCC International, Inc. payable to MCI
Telecommunications.
* All revenue-producing contracts, some of which are Material Contracts, are
listed above in this Schedule 6.11.
<PAGE> 133
SCHEDULE 6.12
PROPRIETARY RIGHTS
TRADE ANT SERVICE MARKS OF THE BORROWER
<TABLE>
<CAPTION>
TM/ SERIAL REGISTRATION REGISTRATION
MARK SM NUMBER DATE/STATUS NUMBER
---- -- ------ ----------- ------
<S> <C> <C> <C> <C>
AFPLANNER TM 74/198828 07/14/92 1700375
CELLCAD TM 74/539166 8/15/95 1911208
CELLCONNECT TM 74/393243 10/24/95 1930166
CELLHOST TM 74/393242 3/26/95 1886569
CELLSIGHT TM 74/220464 02/09/93 1761835
CELLTRAC TM 74/220463 02/02/93 1750739
CELLUMATE TM 73/774403 06/26/90 1603462
CM1000 TM 74/092084 07/19/94 1700238
EXP-2001 TM 74/430523 07/19/94 1845456
INFOSITE TM 74/360562 04/02/96 1965885
LCC (LOGO) TM/SM 74/092006 11/05/91 1663246
LL-2000 TM 74/430525 12/20/94 1868855
MICROSTORE TM 74/430524 STATEMENT OF USE FILED N/A
MSAT TM 74/424885 8/6/96 1991530
PENCAT TM 74/019646 FILED AND UNDER REVIEW BY N/A
TRADEMARK OFFICE
RSAT TM 73/818914 04/17/90 1591831
RSAT-PLUS TM 74/118833 10/29/91 1662324
RSAT 2000 TM 74/306751 04/13/93 1764314
DESKCAT TM N/A PREPARING APPLICATION N/A
AQS TM N/A PREPARING APPLICATION N/A
</TABLE>
<PAGE> 134
COPYRIGHTS OF THE BORROWER
<TABLE>
<CAPTION>
LCC Software Programs Copyright Registration No. Expiration Date
--------------------- -------------------------- ---------------
<S> <C> <C>
CMA 3 592-612 July 1, 2168
CellTRAC 3 579-231 July 1, 2168
ANET 3 582-718 July 1, 2168
CellSIGHT 3 561-058 August 13, 2168
CellCAD 3 594-400 July 1, 2168
Microstore n/a n/a
CellQuest n/a n/a
CellCONNECT n/a n/a
COLLECT n/a n/a
</TABLE>
PATENTS OF THE BORROWER
1. U.S. Serial Number 08-381,495
Filed: January 31, 1995
Description: Digital Call Quality
2. U.S. Serial Number: n/a
Filed: Sept. 20, 1996
Description: Polarization Diversity Antenna Array
TRADE OR CORPORATE NAMES OF LCC CORPORATE ENTITIES
1. LCC, L.L.C.
2. LCC, United Kingdom
3. LCC Development Company, L.L.C.
4. Eurofon de France S.A.R.L.
5. Eurofon Incorp. & Co. K.G.
6. LCC Design Services, L.L.C.
7. LCC, U.S.A. L.L.C.
8. LCC Solutions, L.L.C.
9. LCC International, Inc.
10. Cherrywood Holdings, Inc.
11. RF Investors, L.L.C.
MATERIAL PROPRIETARY RIGHTS GRANTED BY THIRD PARTIES
1. Agreement dated April 27, 1995 between Definitive Cellular Limited and
LCC, L.L.C.
2. Software License and Services Agreement dated February 24, 1995 between
LCC, L.L.C. and Oracle Corporation.
<PAGE> 135
STEPS TAKEN TO PROTECT PROPRIETARY INFORMATION
Prior to commencement of employment with LCC, International,
Inc. ("LCC") LCC's employees each sign an agreement which: (i) protects LCC's
proprietary and confidential information and prohibits disclosure of such LCC
information and (ii) establishes LCC's ownership of any work product of LCC
employees and or provides for assignment of any related rights. Each consultant,
affiliate, agent or other contractor or subcontract signs a comprehensive
non-disclosure and ownership of work product agreement prior to providing any
services for LCC.
LCC protects its confidential and proprietary information by:
(i) only providing proprietary information to parties that have a need to know;
and (ii) by providing such information pursuant to an executed non-disclosure
agreement that specifically related to the proprietary information being
provided to the third party.
LCC provides its proprietary software products to clients who
have executed a comprehensive licensing agreement that has provisions that
establish LCC's exclusive ownership of the software, the software manuals,
related software documentation and any other documentation provided to the
client and the agreement further prohibits: (i) use of the software or
documentation by any party other than licensee; and (ii) disclosure of any
information provided by LCC.
In addition, LCC customers, among other things, agree not to:
(i) reverse engineer, disassemble, decompile, interrogate or decode LCC's
software or any data files created by or associated with the software; (ii)
derive source code, methodologies or proprietary algorithms from the software;
(iii) modify the software or otherwise create any derivative work from the
software; (iv) assert the invalidity or contest the ownership by LCC of the
software, either as a complete or partial defense to any claim made by LCC or
any third party, or (v) take any action which may prejudice the validity of
LCC's rights, title and interest in and to the software. Each licensee agrees
that it shall not sell, assign, lease, sublease, license, sub-license or
otherwise transfer LCC's Software.
CLAIMS RELATED TO PROPERTY RIGHTS
1. LCI International/Trademark Claim. On November 6, 1996, the Company
received a letter from counsel for LCI International, Inc. ("LCI")
alleging trademark infringement, as described in item 5 of Schedule
6.04.
<PAGE> 136
SCHEDULE A
SECURITY AGREEMENT
SCHEDULE A
PLACES OF BUSINESS
1. Principal place of business, chief executive office and location of
books and records:
LCC, International, Inc.
7925 Jones Branch Drive
McLean, Virginia 22102
LCC Design Services, L.L.C.
7925 Jones Branch Drive
McLean, Virginia 22102
LCC Development Company, L.L.C.
7925 Jones Branch Drive
McLean, Virginia 22102
LCC Europe gmbh
Grafenberger Allee 99
4000 Dusseldorf, Germany
Eurofon de France S. A.R.L.
7 BD Romain Rolland, B.P. 87
92128 Montrouge Cedex, France
Microcell Management L.L.C.
8365 Cherry Lane
Laurel, MD 20707
LCC do Brazeil Ltda
Rue Frei Caneca, 1380-Conj. 82
Sao Paulo, SP 01307-002 Brazil
LCC Asia Pacific LTD PTE
Centrako Business Centre, 6 Battery Road, #22-00
Singapore 049909
European Technology Partners A.S.
Solheimveien 30, P.O. Box 447
N-1471 Skarep, Norway
2. Other Places of Business where Collateral was located as of September
30, 1996.
LB&B
9151 G. Red Branch Rd.
Columbia, MD 21045
Berkeley Variatronics
255 Forest Street
Metuchen, NJ 08840
<PAGE> 137
Manufacturing Techniques
Route 1, Box 2683
Reedville, VA 22539
Polyfab Corp.
8919 McGaw Court
Columbia, MD 21045
BHB Creative Cabling
5702 Industry Lane #A42
Frederick, MD 21704
Fieldtex Products
4 Elton Street
Rochester, NY 14607
Delta Cable
123 Roesler Rd.
Glen Burnie, MD 21060
EWA-Manufacturing Services
357 Industrial Park Road
Beaver, WV 25813
Develop Manufacture Test
P.O. Box 183
Germantown, MD 20874
Science & Technology Res. Inc.
7210 Pindell School Road
Fulton, MD 20759-9721
<PAGE> 138
SCHEDULE B
INTELLECTUAL PROPERTY SECURITY AGREEMENT
SCHEDULE A
PROPRIETARY RIGHTS
1. COPYRIGHTS OF THE BORROWER
<TABLE>
<CAPTION>
LCC Software Programs Copyright Registration No. Expiration Date
--------------------- -------------------------- ---------------
<S> <C> <C>
CMA 3 592-612 July 1, 2168
CellTRAC 3 579-231 July 1, 2168
ANET 3 582-718 July 1, 2168
CellSIGHT 3 561-058 August 13, 2168
CellCAD 3 594-400 July 1, 2168
Microstore n/a n/a
CellQuest n/a n/a
CellCONNECT n/a n/a
COLLECT n/a n/a
</TABLE>
2. PATENTS OF THE BORROWER
1. U.S. Serial Number 08-381,495
Filed: January 31, 1995
Description: Digital Call Quality
2. U.S. Serial Number: n/a
Filed: Sept. 20,1996
Description: Polarization Diversity Antenna Array
3. TRADE AND SERVICE MARKS OF THE BORROWER
<TABLE>
<CAPTION>
TM/ Serial Registration Registration
Mark SM Number Date/Status Number
---- -- ------ ----------- ------
<S> <C> <C> <C> <C>
AFPlanner TM 74/198828 07/14/92 1700375
CellCAD TM 74/539166 8/15/95 1911208
CellCONNECT TM 74/393243 10/24/95 1930166
CellHOST TM 74/393242 3/26/95 1886569
CellSIGHT TM 74/220464 02/09/93 1751835
CellTRAC TM 74/220463 02/02193 1750739
CelluMATE TM 73/774403 06/26/90 1603462
CM1000 TM 74/092084 07/19194 1700238
EXP-2001 TM 74/430523 07/19/94 1845456
</TABLE>
<PAGE> 139
<TABLE>
<S> <C> <C> <C> <C>
InfoSITE TM 74/360562 04/02/96 1965885
LCC (logo) TM/SM 74/092006 11/05/91 1663246
LL-2000 TM 74/430525 12/20/94 1868855
MICROSTORE TM 74/430524 Statement of Use filed n/a
MSAT TM 74/424885 8/6/96 1991530
PENCAT TM 74/019646 Under Review by Trademark n/a
office
RSAT TM 73/818914 04/17/90 1591831
RSAT-PLUS TM 74/118833 10/29/91 1662324
RSAT 2000 TM 74/306751 04/13/93 1764314
DESKCAT TM n/a Preparing application n/a
AQS TM n/a/ Preparing application n/a
</TABLE>
TRADE OR CORPORATE NAMES OF LCC CORPORATE ENTITIES
1. LCC, L.L.C.
2. LCC, United Kingdom
3. LCC Development Company, L.L.C.
4. Eurofon de France S A.R.L.
5. Eurofon Incorp. & Co. K.G.
6. LCC, U.S.A. L.L.C.
7. LCC Solutions, L.L.C.
8. LCC International, Inc.
9. Cherrywood Holdings, Inc.
10. RF Investors, L.L.C.
<PAGE> 140
SCHEDULE C
OBLIGORS PLEDGE AGREEMENT
SCHEDULE A
SECTION 3.01
1. DCR Debentures.
2. Convertible Note in the principal amount of $150,000 issued by
Communication Consulting Services Inc. to the Borrower.
3. Promissory Notes in the principal amounts of $1,078,000 and $283,080
issued by Corporacion MobilCom SA. de C.V. d/b/a Tricom to the
Borrower.
4. Note in the principal amount of $3,500,000.00 issued by Telcom
Ventures, L.L.C. to the Borrower.
5. All of the membership interests in LCC Design Services, L.L.C. held by
the Borrower. The Borrower owns 99% of the membership interests in LCC
Design Services, L.L.C.
6. All of the membership interests in LCC Development Company, L.L.C. held
by the Borrower. The Borrower owns 99% of the membership interests in
LCC Development Company, L.L.C.
7. All of the membership interests in Eurofon Incorp. & Co. KG held by the
Borrower. The Borrower owns 80% of the membership interests in Eurofon
Incorp. & Co. KG.
8. AB of the membership interests in Eurofon de France S.A.R.L. The
Borrower owns 100% of the membership interests in Eurofon de France
S.A.R.L.
9. 65% of the outstanding ordinary shares of LCC, United Kingdom. The
Borrower owns 99% of the outstanding ordinary shares of LCC, United
Kingdom.
10. All of the membership interests in LCC Development Company, L.L.C. held
by LCC Design Services, L.L.C. LCC Design Services, L.L.C. owns 1% of
the membership interests in LCC Development Company, L.L.C.
11. All of the membership interests in LCC Design Services, L.L.C. held by
LCC Development Company, L.L.C. LCC Development Company, L.L.C. owns 1%
of the membership interests in LCC Design Services, L.L.C.
<PAGE> 1
LCC International, Inc.
Net Income (Loss) per share calculation
Exhibit 11
(in 000's, except for per share amounts)
<TABLE>
<CAPTION>
Year Ended Year Ended
12/31/95 12/31/96
--------------------------------- --------------------------------------
Pro-Forma Per Share Pro-Forma Per Share
Net Income Shares Amount Net Loss Shares Amount
--------------------------------- --------------------------------------
<S> <C> <C> <C> <C> <C> <C>
BASIC EPS
Net income (loss) available to
common shareholders $ 4,729 11,364 $ 0.42 $ (20,769) 12,211 $ (1.70)
======== =========
EFFECT OF DILUTIVE SECURITIES
Convertible debt 816 2,841 - -
Stock option plans - - - -
------------------- ----------------------
DILUTIVE EPS
Net income available to
common shareholders $ 5,545 14,205 $ 0.39 $ (20,769) 12,211 $ (1.70)
================================= ======================================
</TABLE>
<TABLE>
<CAPTION>
Year Ended
12/31/97
---------------------------------
Net Per Share
Income Shares Amount
---------------------------------
<S> <C> <C> <C>
BASIC EPS
Net income available to
common shareholders $ 7,575 14,740 $ 0.51
========
EFFECT OF DILUTIVE SECURITIES
Convertible debt - -
Stock option plans - 1,215
-------------------
DILUTIVE EPS
Net income available to
common shareholders $ 7,575 15,955 $ 0.47
=================================
</TABLE>
NOTES: 1. The Company's convertible debt, which is
convertible into 2.8 million shares of the
Company's Class A Common Stock, was outstanding
during calendar 1996 and 1997, but was not
included in the computation of diluted earnings
per share because the effect of which would have
been anti-dilutive.
2. Options to purchase 2.8 million shares of Class A
Common Stock were outstanding during 1996, but
were not included in the computation of diluted
earnings per share because the effect of
which would have been anti-dilutive.
<PAGE> 1
EXHIBIT 21
LIST OF SUBSIDIARIES OF THE COMPANY
<TABLE>
<CAPTION>
JURISDICTION OF
INCORPORATION OR
NAME ORGANIZATION
- ---- ------------
<S> <C>
LCC Design Services, L.L.C. Delaware
LCC Development Company, L.L.C. Delaware
LCC Europe GmbH Germany
Eurofon de France S.A.R.L. France
LCC, United Kingdom United Kingdom
Microcell Management, Inc. Delaware
LCC International AS Norway
LCC do Brazil Brazil
LCC Asia Pacific PTE. LTD. Singapore
</TABLE>
<PAGE> 1
EXHIBIT 23.1
The Board of Directors
LCC International, Inc.:
We consent to incorporation by reference in the registration statement (No.
333-17803) on Form S-8 of LCC International, Inc. of our report dated February
9, 1998, relating to the consolidated balance sheets of LCC International, Inc.
and subsidiaries as of December 31, 1996 and 1997, and the related consolidated
statements of operations, shareholders' equity (deficit), and cash flows for
each of the years in the three-year period ended December 31, 1997, and related
schedule, which report appears in the December 31, 1997, annual report on Form
10-K of LCC International, Inc.
KPMG Peat Marwick LLP
Washington, DC
March 27, 1998
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> DEC-31-1997
<CASH> 15,838
<SECURITIES> 0
<RECEIVABLES> 30,643
<ALLOWANCES> 15,426
<INVENTORY> 7,400
<CURRENT-ASSETS> 86,759
<PP&E> 10,531
<DEPRECIATION> 17,699
<TOTAL-ASSETS> 111,018
<CURRENT-LIABILITIES> 39,778
<BONDS> 0
0
0
<COMMON> 151
<OTHER-SE> 20,051
<TOTAL-LIABILITY-AND-EQUITY> 111,018
<SALES> 63,959
<TOTAL-REVENUES> 155,248
<CGS> 40,869
<TOTAL-COSTS> 107,706
<OTHER-EXPENSES> 33,325
<LOSS-PROVISION> 4,115
<INTEREST-EXPENSE> 3,301
<INCOME-PRETAX> 12,810
<INCOME-TAX> 5,235
<INCOME-CONTINUING> 7,575
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 7,575
<EPS-PRIMARY> 0.51
<EPS-DILUTED> 0.47
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<RESTATED>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> DEC-31-1996
<CASH> 13,732
<SECURITIES> 0
<RECEIVABLES> 35,563
<ALLOWANCES> 17,942
<INVENTORY> 6,387
<CURRENT-ASSETS> 91,847
<PP&E> 5,952
<DEPRECIATION> 13,833
<TOTAL-ASSETS> 114,947
<CURRENT-LIABILITIES> 54,610
<BONDS> 0
0
0
<COMMON> 146
<OTHER-SE> 8,331
<TOTAL-LIABILITY-AND-EQUITY> 114,947
<SALES> 48,414
<TOTAL-REVENUES> 141,570
<CGS> 29,533
<TOTAL-COSTS> 95,334
<OTHER-EXPENSES> 69,142
<LOSS-PROVISION> 2,937
<INTEREST-EXPENSE> 3,050
<INCOME-PRETAX> (22,655)
<INCOME-TAX> (11,371)
<INCOME-CONTINUING> (11,284)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (11,284)
<EPS-PRIMARY> (1.70)<F1>
<EPS-DILUTED> (1.70)
<FN>
<F1>EPS has been restated for impact of SFAS No. 128, Earnings per share.
</FN>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<RESTATED>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-START> JAN-01-1995
<PERIOD-END> DEC-31-1995
<CASH> 6,571
<SECURITIES> 0
<RECEIVABLES> 28,293
<ALLOWANCES> 3,131
<INVENTORY> 4,949
<CURRENT-ASSETS> 51,307
<PP&E> 5,440
<DEPRECIATION> 10,877
<TOTAL-ASSETS> 62,041
<CURRENT-LIABILITIES> 33,658
<BONDS> 0
0
0
<COMMON> 0
<OTHER-SE> (244)
<TOTAL-LIABILITY-AND-EQUITY> 62,041
<SALES> 40,445
<TOTAL-REVENUES> 104,461
<CGS> 22,448
<TOTAL-COSTS> 68,130
<OTHER-EXPENSES> 27,283
<LOSS-PROVISION> 622
<INTEREST-EXPENSE> 2,818
<INCOME-PRETAX> 7,882
<INCOME-TAX> 3,142
<INCOME-CONTINUING> 4,740
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 4,740
<EPS-PRIMARY> .42<F1>
<EPS-DILUTED> .39
<FN>
<F1>EPS has been restated for impact of SFAS No. 128, Earnings per share.
</FN>
</TABLE>
