<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 4, 1996
REGISTRATION NO. 333-10161
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
SYGNET WIRELESS, INC.
(Exact name of registrant as specified in its charter)
------------------------
<TABLE>
<S> <C> <C>
Ohio 4812 34-1689165
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
------------------------
6550-B Seville Drive
Canfield, Ohio 44406
(330) 565-1000
(Address, including zip code and telephone number, including area code, of
registrant's principal executive offices)
------------------------
Albert H. Pharis, Jr.
President and Chief Executive Officer
Sygnet Wireless, Inc.
6550-B Seville Drive
Canfield, Ohio 44406
(330) 565-1000
(Name, address, including zip code and telephone number, including area code, of
agent for service)
------------------------
Copies to:
<TABLE>
<S> <C>
THOMAS F. DOWD, ESQ. BRYANT B. EDWARDS, ESQ.
Bryan Cave LLP Latham & Watkins
700 Thirteenth Street, N.W. 633 W. Fifth Street, Suite 4000
Washington, D.C. 20005-3960 Los Angeles, California 90071
(202) 508-6000 (213) 485-1234
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If any of the securities on this form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, as
amended (the "Securities Act"), check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434
under the Securities Act, please check the following box. / /
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE FEE
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% Senior Notes due 2006............. $110,000,000 $1,000 $110,000,000 *
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</TABLE>
* Previously paid.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY
DETERMINE.
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<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Set forth below is an estimate of the approximate amount of fees and
expenses (other than underwriting discounts and commissions) payable by the
Registrant in connection with the issuance and distribution of the securities
registered hereby.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee............. $53,448.65
Printing and engraving.......................................... $
Accountants' fees and expenses.................................. $
Blue sky fees and expenses...................................... $
Counsel fees and expenses....................................... $
Miscellaneous................................................... $
----------
Total................................................. $
=========
</TABLE>
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* Estimate
ITEM 14. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Under Section 1701.13(E) of the Ohio General Corporation Law (the "Ohio
Law"), a corporation may indemnify its directors, officers, employees and agents
and its former directors, officers, employees and agents and those who serve, at
the corporation's request, in such capacity with another enterprise, against
expenses (including attorneys' fees), as well as judgments, fines and
settlements in nonderivative lawsuits, actually and reasonably incurred in
connection with the defense of any action, suit or proceeding in which they or
any of them were or are made parties or are threatened to be made parties by
reason of their serving or having served in such capacity. The Ohio Law
provides, however, that such person must have acted in good faith and in a
manner such person reasonably believed to be in (or not opposed to) the best
interests of the corporation and, in the case of a criminal action, such person
must have had no reasonable cause to believe his or her conduct was unlawful. In
addition, the Ohio Law does not permit indemnification in an action or suit by
or in the right of the corporation, where (i) such person has been adjudged
liable to the corporation, unless and only to the extent that, a court
determines that such person fairly and reasonably is entitled to indemnity for
costs the court deems proper in light of liability adjudication or, (ii) the
only liability asserted against a director is for unlawful loans, dividends or
distribution of assets. Indemnity is mandatory to the extent a claim, issue or
matter has been successfully defended.
The Company's Articles of Incorporation and Code of Regulations provide
that the Board of Directors may, by majority vote, authorize the Company to
indemnify directors, officers or employees of the Company on generally the same
terms as permitted by the Ohio Law.
The Underwriting Agreement provides for indemnification by the Underwriters
severally of the Company, its directors, its officers who sign the Registration
Statement and controlling persons of the Company against certain liabilities,
including liabilities under the Securities Act, under certain circumstances.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits.
<TABLE>
<S> <C>
1.1 Form of Underwriting Agreement for Notes Offering by and among Sygnet Wireless, Inc.
and Donaldson, Lufkin & Jenrette Securities Corporation, Lehman Brothers, and
Toronto Dominion Securities (USA) Inc. as Underwriters.*
2.1 Amended and Restated Agreement and Plan of Merger dated August 19, 1996.**
2.2 Amended and Restated Agreement and Plan of Transfer of Assets dated August 28,
1996.**
</TABLE>
II-1
<PAGE> 3
<TABLE>
<C> <S>
2.3 Agreement and Plan of Recapitalization of Sygnet Wireless, Inc. dated August 28,
1996.**
3.1 Form of Amended and Restated Articles of Incorporation of Sygnet Wireless, Inc.
dated , 1996.
3.2 Code of Regulations of Sygnet Wireless, Inc.
4.1 Form of Indenture (including form of Note) between Sygnet Wireless, Inc. and Fleet
National Bank, as Trustee, relating to the Senior Notes due 2006 of Sygnet Wireless,
Inc.**
5.1 Opinion of Bryan Cave LLP, counsel to the Registrant, as to the legality of the
Notes being registered.*
8.1 Opinion of Bryan Cave LLP, with respect to certain tax matters (included in the
legal opinion filed as Exhibit 5.1 hereto).*
10.1 Employment Agreement dated August 26, 1996 between the Registrant and Albert H.
Pharis, Jr.**
10.2 Employment Agreement dated August 26, 1996 between the Registrant and Warren P.
Williamson, III.**
10.3 Employment Agreement dated August 26, 1996 between the Registrant and Craig T.
Sheetz.**
10.4 Employment Agreement dated August 26, 1996 between the Registrant and Gregory T.
Pauley.**
10.5 Sygnet Wireless, Inc. 1996 Stock Option Plan (including form of Stock Option
Agreement).**
10.6 Office Lease Agreement dated September 16, 1994 by and between K&T Realty and SYGNET
Communications Inc. for the premises located at 6550 Seville Drive, Canfield,
Ohio.**
10.7 Site Lease Agreement dated March 29, 1990 between Milan John Vanco and Alice C.
Vanco and Erie Cellular Telephone Company.**
10.8 Lease Agreement dated June 1, 1990 between Bert D. and Margaret A. Schaefer and
Wilcom/Cellular One.**
10.9 Site Lease Agreement dated June 27, 1988 between John G. Virostek and MCI
Telecommunications Corporation with Assignment and Assumption of Lease dated
December 6, 1991 between MCI Telecommunications Corporation and Wilcom/Cellular
One.**
10.10 Lease Agreement with Real Estate Purchase Option Agreement dated July 21, 1987
between George A. Law and Agnes Law, George C. Law and Judith Law, August Thalman,
Jr. and Betty Thalman and Wilcom Corporation.
10.11 Ground Lease Agreement dated December 15, 1987 between WKBN Broadcasting Corporation
and Youngstown Cellular Telephone Company.
10.12 DMS-MTX Cellular Supply Agreement dated June 1, 1996 between Youngstown Cellular
Telephone Company and Northern Telecom, Inc.
10.13 Intercarrier Services Agreement dated April 25, 1995 between Youngstown Cellular
Telephone Company and EDS Personal Communications Corporation.**
10.14 Software License Agreement dated April 20, 1995 between Youngstown Cellular
Telephone Company and International Telecommunication Data Systems, Inc.**
10.15 License Agreement between JSJ Software, Inc. and Youngstown Cellular Telephone
Company.**
10.16 Product Service Agreement dated February 1, 1995 between Glenayre Care and Wilcom
Cellular.**
10.17 Asset Acquisition Agreement dated July 11, 1996 between Horizon Cellular Telephone
Company of Chautauqua, L.P., Horizon Cellular Telephone Company of Crawford, L.P.,
Horizon Cellular Telephone Company of Indiana, L.P., and SYGNET Communications,
Inc.**
10.18 Agreement for Purchase of Partnership Interest dated September 15, 1995 between
SYGNET Communications, Inc. and Erie Cellular Systems, Inc.**
10.19 Stock Purchase Agreement between SYGNET Communications, Inc., Wilcom Corporation,
and Advent IV Capital Liquidating Trust, TA Associates IV, TA Venture Investors
Limited Partnership, Elden J. Heinz, Security Investment Management & Trust Company,
The Planned Giving Foundation, Inc., and Erma Heinz.**
10.20 Credit Agreement dated , 1996 among the Registrant and The
Toronto-Dominion Bank and PNC Bank, National Association.*
10.21 Commitment Letter dated August 21, 1996 executed and delivered by The
Toronto-Dominion Bank and PNC Bank, National Association in favor of the Registrant.
10.22 Promissory Note dated December 29, 1994 executed and delivered by Albert H. Pharis,
Jr. in favor of the Registrant.**
</TABLE>
II-2
<PAGE> 4
<TABLE>
<C> <S>
12.1 Statement regarding Computation of Ratio of Earnings to Fixed Charges.**
21.1 Subsidiary of Sygnet Wireless, Inc.**
23.1 Consent of Ernst & Young LLP, Cleveland, Ohio.**
23.2 Consent of Ernst & Young LLP, Boston, Massachusetts.**
23.3 Consent of Ernst & Young LLP, Philadelphia, Pennsylvania.**
23.4 Consent of Arthur Andersen LLP**
23.5 Consent of Coopers & Lybrand L.L.P.**
23.6 Consent of Bryan Cave, LLP (included in the legal opinion filed as Exhibit 5.1
hereto).*
24.1 Powers of Attorney (included on the signature page to the Registration Statement).**
25.1 Statement of Eligibility of Trustee on Form T-1.**
27.1 Financial Data Schedule.**
</TABLE>
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* To be filed by amendment.
** Previously filed.
(b) Financial Statement Schedules. All schedules have been omitted since
the required information is not present in amounts sufficient to require
submission of the schedules or because the information required is included in
the financial statements.
ITEM 17. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
The undersigned Registrant hereby undertakes that,
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
the form of prospectus filed by the Registrant pursuant to Rule 424(b)(1)
or (4) or 497(h) under the Securities Act shall be deemed to be part of
this registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-3
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Canfield, State of Ohio,
on September 4, 1996.
SYGNET WIRELESS, INC.
By: /s/ WARREN P. WILLIAMSON, III*
------------------------------------
WARREN P. WILLIAMSON, III
DIRECTOR AND CHAIRMAN
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
<S> <C> <C>
/s/ WARREN P. WILLIAMSON, III* Director and Chairman September 4, 1996
- ---------------------------------------------
WARREN P. WILLIAMSON, III
/s/ ALBERT H. PHARIS, JR.* Director, President September 4, 1996
- --------------------------------------------- and Chief Executive
ALBERT H. PHARIS, JR. Officer
/s/ CRAIG T. SHEETZ* Vice President, Chief September 4, 1996
- --------------------------------------------- Financial Officer,
CRAIG T. SHEETZ Treasurer
/s/ GREGORY T. PAULEY* Vice President of September 4, 1996
- --------------------------------------------- Technical Operations
GREGORY T. PAULEY
/s/ JOSEPH D. WILLIAMSON, II* Director September 4, 1996
- ---------------------------------------------
JOSEPH D. WILLIAMSON, II
/s/ LOWRY A. STEWART* Director September 4, 1996
- ---------------------------------------------
LOWRY A. STEWART
/s/ RAYMOND S. TITTLE, JR.* Director September 4, 1996
- ---------------------------------------------
RAYMOND S. TITTLE, JR.
*By: /s/ THOMAS F. DOWD
- ---------------------------------------------
THOMAS F. DOWD
ATTORNEY-IN-FACT
</TABLE>
II-4
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<C> <S> <C>
1.1 Form of Underwriting Agreement for Notes Offering by and among Sygnet
Wireless, Inc. and Donaldson, Lufkin & Jenrette Securities Corporation,
Lehman Brothers, and Toronto Dominion Securities (USA) Inc. as
Underwriters.*...........................................................
2.1 Amended and Restated Agreement and Plan of Merger dated August 19,
1996.**..................................................................
2.2 Amended and Restated Agreement and Plan of Transfer of Assets dated
August 28, 1996.**.......................................................
2.3 Agreement and Plan of Recapitalization of Sygnet Wireless, Inc. dated
August 28, 1996.**.......................................................
3.1 Form of Amended and Restated Articles of Incorporation of Sygnet
Wireless, Inc. dated , 1996. ........................
3.2 Code of Regulations of Sygnet Wireless, Inc. ............................
4.1 Form of Indenture (including form of Note) between Sygnet Wireless, Inc.
and Fleet National Bank, as Trustee, relating to the Senior Notes due
2006 of Sygnet Wireless, Inc.**..........................................
5.1 Opinion of Bryan Cave LLP, counsel to the Registrant, as to the legality
of the Notes being registered.*..........................................
8.1 Opinion of Bryan Cave LLP, with respect to certain tax matters (included
in the legal opinion filed as Exhibit 5.1 hereto).*......................
10.1 Employment Agreement dated August 26, 1996 between the Registrant and
Albert H. Pharis, Jr.**..................................................
10.2 Employment Agreement dated August 26, 1996 between the Registrant and
Warren P. Williamson, III.**.............................................
10.3 Employment Agreement dated August 26, 1996 between the Registrant and
Craig T. Sheetz.**.......................................................
10.4 Employment Agreement dated August 26, 1996 between the Registrant and
Gregory T. Pauley.**.....................................................
10.5 Sygnet Wireless, Inc. 1996 Stock Option Plan (including form of Stock
Option Agreement).**.....................................................
10.6 Office Lease Agreement dated September 16, 1994 by and between K&T Realty
and SYGNET Communications Inc. for the premises located at 6550 Seville
Drive, Canfield, Ohio.**.................................................
10.7 Site Lease Agreement dated March 29, 1990 between Milan John Vanco and
Alice C. Vanco and Erie Cellular Telephone Company.**....................
10.8 Lease Agreement dated June 1, 1990 between Bert D. and Margaret A.
Schaefer and Wilcom/Cellular One.**......................................
10.9 Site Lease Agreement dated June 27, 1988 between John G. Virostek and MCI
Telecommunications Corporation with Assignment and Assumption of Lease
dated December 6, 1991 between MCI Telecommunications Corporation and
Wilcom/Cellular One.**...................................................
10.10 Lease Agreement with Real Estate Purchase Option Agreement dated July 21,
1987 between George A. Law and Agnes Law, George C. Law and Judith Law,
August Thalman, Jr. and Betty Thalman and Wilcom Corporation. ...........
10.11 Ground Lease Agreement dated December 15, 1987 between WKBN Broadcasting
Corporation and Youngstown Cellular Telephone Company. ..................
10.12 DMS-MTX Cellular Supply Agreement dated June 1, 1996 between Youngstown
Cellular Telephone Company and Northern Telecom, Inc. ...................
10.13 Intercarrier Services Agreement dated April 25, 1995 between Youngstown
Cellular Telephone Company and EDS Personal Communications
Corporation.**...........................................................
10.14 Software License Agreement dated April 20, 1995 between Youngstown
Cellular Telephone Company and International Telecommunication Data
Systems, Inc.**..........................................................
</TABLE>
<PAGE> 7
<TABLE>
<C> <S> <C>
10.15 License Agreement between JSJ Software, Inc. and Youngstown Cellular
Telephone Company.**.....................................................
10.16 Product Service Agreement dated February 1, 1995 between Glenayre Care
and Wilcom Cellular.**...................................................
10.17 Asset Acquisition Agreement dated July 11, 1996 between Horizon Cellular
Telephone Company of Chautauqua, L.P., Horizon Cellular Telephone Company
of Crawford, L.P., Horizon Cellular Telephone Company of Indiana, L.P.,
and SYGNET Communications, Inc.**........................................
10.18 Agreement for Purchase of Partnership Interest dated September 15, 1995
between SYGNET Communications, Inc. and Erie Cellular Systems, Inc.**....
10.19 Stock Purchase Agreement between SYGNET Communications, Inc., Wilcom
Corporation, and Advent IV Capital Liquidating Trust, TA Associates IV,
TA Venture Investors Limited Partnership, Elden J. Heinz, Security
Investment Management & Trust Company, The Planned Giving Foundation,
Inc., and Erma Heinz.** .................................................
10.20 Credit Agreement dated , 1996 among the Registrant
and The Toronto-Dominion Bank and PNC Bank, National Association.*.......
10.21 Commitment Letter dated August 21, 1996 executed and delivered by The
Toronto-Dominion Bank and PNC Bank, National Association in favor of the
Registrant...............................................................
10.22 Promissory Note dated December 29, 1994 executed and delivered by Albert
H. Pharis, Jr. in favor of the Registrant.**.............................
12.1 Statement regarding Computation of Ratio of Earnings to Fixed
Charges.**...............................................................
21.1 Subsidiary of Sygnet Wireless, Inc.**....................................
23.1 Consent of Ernst & Young LLP, Cleveland, Ohio.**.........................
23.2 Consent of Ernst & Young LLP, Boston, Massachusetts.**...................
23.3 Consent of Ernst & Young LLP, Philadelphia, Pennsylvania.**..............
23.4 Consent of Arthur Andersen LLP**.........................................
23.5 Consent of Coopers & Lybrand L.L.P.**....................................
23.6 Consent of Bryan Cave, LLP (included in the legal opinion filed as
Exhibit 5.1 hereto)*.....................................................
24.1 Powers of Attorney (included on the signature page to the Registration
Statement).**............................................................
25.1 Statement of Eligibility of Trustee on Form T-1.**.......................
27.1 Financial Data Schedule.**...............................................
</TABLE>
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* To be filed by amendment.
** Previously filed.
<PAGE> 1
Exhibit 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION OF
SYGNET WIRELESS, INC.
ARTICLE ONE
NAME OF THE CORPORATION
The name of the Corporation shall be Sygnet Wireless, Inc.
ARTICLE TWO
LOCATION
The place in Ohio where the Corporation's principal office is located is
6550 Seville Drive, Suite B, Canfield, Mahoning County, Ohio.
ARTICLE THREE
PURPOSE
The purpose for which the Corporation is formed is to engage in any kind
of business, trade, or other activity for which a corporation, for profit, may
be lawfully organized under the corporation laws of the State of Ohio.
ARTICLE FOUR
STRUCTURE OF CAPITAL STOCK
A. CLASSES AND NUMBER OF SHARES. The total number of shares of all
classes of stock which the Corporation shall have authority to issue is
85,000,000 shares. The classes and the aggregate number of shares of stock of
each type which the Corporation shall have authority to issue are as follows:
- 60,000,000 shares of Class A Common Stock, par value one
cent (1 cent) (the "Class A Common Stock"); and
- 10,000,000 shares of Class B Common Stock, par value
one cent (1 cent) (the "Class B Common Stock"); and
- 10,000,000 shares of Voting Preferred Stock, par value one
cent (1 cent) (the "Voting Preferred Stock"); and
- 5,000,000 shares of Nonvoting Preferred Stock, par value
one cent (1 cent) (the "Nonvoting Preferred Stock").
1
<PAGE> 2
B. POWERS AND RIGHTS OF THE CLASS A COMMON STOCK AND THE CLASS B COMMON
STOCK.
1. VOTING RIGHTS AND POWERS. With respect to all matters upon
which stockholders are entitled to vote or to which stockholders are entitled
to give consent, the holders of the outstanding shares of Class A Common Stock
and the Holders of the outstanding shares of Class B Common Stock shall vote
(together with the holders of any outstanding shares of Preferred Stock
entitled to vote with the Class A Common Stock and the Class B Common Stock)
without regard to class, and every holder of the outstanding shares of Class A
Common Stock shall be entitled to cast thereon one (1) vote in person or by
proxy for each share of Class A Common Stock held in his name, and every
holder of any outstanding shares of Class B Common Stock shall be entitled to
cast thereon ten (10) votes in person or by proxy for each share of Class B
Common Stock held in his name.
In addition to any other votes as may be required by law, the
Class A Common Stock, voting separately as a class, will be required to
approve (i) the authorization of any new class of capital stock which is
entitled to more than one vote per share, (ii) any increase in the votes per
share of Class B Common Stock or the number of shares of Class A Common Stock
into which the shares of Class B Common Stock are convertible, or (iii) any
proposed Amendment to these Amended Articles of Incorporation that would
adversely affect the dividends on shares of Class A Common Stock or the voting
rights of the Class A Common Stock.
2. DIVIDENDS AND DISTRIBUTIONS.
a. CASH DIVIDENDS. Cash dividends shall be payable to
holders of Class A Common Stock and Class B Common Stock only as and when
declared by the Board of Directors. The Board of Directors shall not declare
any cash dividends on shares of either Class A or Class B Common Stock unless
it also declares at the same time (and payable on the same date as the payment
date for such dividends) a cash dividend on shares of the other Class of
Common Stock in an amount per share that is equal to the amount of such
dividends.
b. OTHER DIVIDENDS AND DISTRIBUTIONS. Each Share of Class A
Common Stock and each share of Class B Common Stock shall be equal in respect
of rights to dividends and distributions, when and as declared in the form of
stock or other property of the Corporation, except that in the case of
dividends or other distributions payable in stock of the Corporation, other
than the Preferred Stock, including distributions pursuant to stock split-ups
or divisions, which occur after the date shares of Class B Common Stock are
first issued by the Corporation, only shares of Class A Common Stock shall be
distributed with respect to the Class A Common Stock and only shares of Class
B Common Stock shall be distributed with respect to the Class B Common Stock.
3. OTHER RIGHTS. Except as otherwise required by the General
Corporation Law of the State of Ohio and as otherwise provided in these
Amended Articles of Incorporation, each share of Class A Common Stock and each
share of Class B Common Stock shall have identical powers, preferences and
rights, including rights in liquidation.
2
<PAGE> 3
4. ISSUANCE OF THE CLASS A COMMON STOCK AND THE CLASS B COMMON
STOCK.
a. INITIAL ISSUANCE. The Board of Directors may authorize
by resolution the manner in which shares of Class A Common Stock shall
initially be issued and may set such terms and conditions as it deems
appropriate or advisable with respect thereto, without any vote or other
actions by the stockholders, except as otherwise required by law and by these
Amended Articles. The initial issuance of Class B Common Stock was governed
by the Agreement and Plan of Recapitalization which established these Amended
Articles.
b. SUBSEQUENT ISSUANCE. Following the initial issuance,
the Board of Directors of the Corporation may from time to time authorize by
resolution the issuance of any or all shares of Class A Common Stock herein
authorized in accordance with the terms and conditions set forth in this
Amended Articles of Incorporation for such purposes, in such amounts, to such
persons, corporations or entities, and for such consideration, all as the
Board of Directors in its discretion may determine and without any vote or
other action by the stockholders, except as otherwise required by law. At any
time shares of Class B Common Stock are outstanding, the Board of Directors
may issue shares of Class A Common Stock in the form of a distribution or
distributions pursuant to a stock dividend on or split-up of the shares of
Class A Common Stock only to the then holders of the outstanding shares of
Class A Common Stock and in conjunction with and in the same ratio as a stock
dividend on or split-up of the shares of Class B Common Stock.
Following initial issuance, the Board of Directors may issue
shares of Class B Common Stock only in the form of a distribution or
distributions pursuant to a stock dividend on or split-up of the shares of
Class B Common Stock and only to the then holders of the outstanding shares of
Class B Common Stock in conjunction with and in the same ratio as a stock
dividend on or split-up of the shares of Class A Common Stock.
5. CONVERSION OF THE CLASS B COMMON STOCK. Each share of Class B
Common Stock (1) may at any time be converted into one fully paid and
non-assessable share of Class A Common Stock at the election of the holder
thereof and (2) shall automatically be converted into one fully paid and
non-assessable share of Class A Common Stock upon its transfer to a person or
entity that is not one of the following persons or a descendant of one of the
following persons (or a trust for the benefit or partially for the benefit of
one or more of them): Warren P. Williamson, Jr.; Ray S. Tittle, Jr.; E.P.
Boyle, Y.T. Chiu; A.D. MacDonell, Jr.; John W. MacDonell; Alex Shashaty;
Albert H. Pharis, Jr.; Maureen P. Gibbs; Paul J. Thomas; or John Boydston.
The conversion of a share of Class B Common Stock into Class A Common Stock is
irreversible and irrevocable. Under no circumstances shall a share of Class A
Common Stock ever be converted into a share of Class B Common Stock.
Any holder of shares of Class B Common Stock may elect to
convert any or all of such shares at one time or at various times in such
holder's discretion. Such right shall be exercised by the surrender of the
certificate or certificates representing each share of Class B Common Stock to
be converted to the agent for the registration of transfer of shares of Class
B Common Stock (the "Transfer Agent"), at its office, or to the Corporation,
at its principal executive offices, accompanied by a written notice of the
election by the holder thereof to convert and (if so required by the Transfer
Agent or by the Corporation) by instruments of transfer, in form satisfactory
to the Transfer Agent and to the Corporation, duly executed by such holder or
his duly authorized attorney. The issuance of a certificate or certificates
for shares of Class A Common Stock upon conversion of shares of Class B
3
<PAGE> 4
Common Stock shall be made without charge for any stamp or other similar tax
in respect of such issuance. However, if any such certificate or certificates
is or are to be issued in a name other than that of the holder of the share or
shares of Class B Common Stock converted, the person or persons requesting the
issuance thereof shall pay to the Transfer Agent or to the Corporation the
amount of any tax which may be payable in respect of any such transfer, or
shall establish to the satisfaction of the Transfer Agent or of the
Corporation that such tax has been paid. As promptly as practicable after the
surrender for conversion of a certificate or certificates representing shares
of Class B Common Stock and the payment of any tax as hereinbefore provided,
the Corporation will deliver or cause to be delivered at the office of the
Transfer Agent to, or upon the written order of, the holder of such
certificate of certificates, a certificate or certificates representing the
number of shares of Class A Common Stock issuable upon such conversion, issued
in such name or names as such holder may direct. Such conversion shall be
deemed to have been made immediately prior to the close of business on the
date of surrender of the certificate or certificates representing shares of
Class B Common Stock (if on such date as the transfer books of the Corporation
shall be closed, then immediately prior to the close of business on the first
date thereafter that said books shall be open), and all rights of such holder
arising from ownership of shares of Class B Common Stock shall cease at such
time, and the person or persons in whose name or names the certificate or
certificates representing shares of Class A Common Stock is or are to be
issued shall be treated for all purposes as having become the record holder or
holders of such shares of Class A Common Stock at such time and shall have any
may exercise all the rights and powers appertaining thereto.
No adjustments in respect of past cash dividends shall be made
upon the conversion of any share of Class B Common Stock; provided, however,
that if any shares of Class B Common Stock shall be converted subsequent to
the record date for the payment of a cash or stock dividend or other
distribution on shares of Class A Common Stock and Class B Common Stock but
prior to such payment, the registered holder of such shares at the close of
business on such record date shall be entitled to receive the cash or stock
dividend or other distribution payable to holders of Class A Common Stock.
If any shares of Class A Common Stock require registration with
or approval of any governmental authority under any federal or state law
before such shares of Class A Common Stock may be issued upon conversion, the
Corporation will cause such shares to be duly registered or approved, as the
case may be. The Corporation will endeavor to list shares of Class A Common
Stock required to be delivered upon conversion, prior to such delivery, upon
any national securities exchange or national market system on which the
outstanding shares of Class A Common Stock may be listed at the time of such
delivery. All shares of Class A Common Stock which may be issued upon
conversion of shares of Class B Common Stock will, upon issue, be fully paid
and nonassessable.
C. PREFERRED STOCK. The Board of Directors is authorized, in its
sole discretion, subject only to limitations prescribed by law and the
provisions of this Article Four, to provide for the issuance of Voting
Preferred Stock and Nonvoting Preferred Stock, in series; to establish the
number of shares to be included in each such series; and to fix the
designation, power, preferences, rights, qualifications, limitations, and
restrictions pertaining to the Voting Preferred Stock and the Nonvoting
Preferred Stock, or any series thereof.
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With respect to all matters upon which stockholders are entitled to
vote or to which stockholders are entitled to give consent, the holders of the
outstanding shares of Voting Preferred Stock shall vote (together with the
holders of any outstanding shares of Class A Common Stock and Class B Common
Stock) without regard to class, and every holder of the outstanding shares of
Voting Preferred Stock shall be entitled to cast thereon ten (10) votes in
person or by proxy for each share of Voting Preferred Stock held in his name.
The holders of any outstanding shares of Nonvoting Preferred Stock shall have
no voting rights whatsoever, except as may be required by law, in which case
every holder of Nonvoting Preferred Stock shall be entitled to cast thereon
one (1) vote in person or by proxy for each share of Nonvoting Preferred Stock
held in his name.
The Board of Directors of the Corporation may from time to time
authorize by resolution the issuance of any or all shares of the Preferred
Stock herein authorized in accordance with the terms and conditions set forth
in these Amended Articles of Incorporation for such purposes, in such amounts,
to such persons, corporations, or entities, for such consideration, and in one
or more series, all as the Board of Directors in its discretion may determine
and without any vote or other action by the stockholders, except as otherwise
required by law.
D. AUTHORITY OF BOARD OF DIRECTORS REGARDING ISSUANCE OF SECURITIES.
The Board of Directors of the Corporation, subject to the limitations
contained in Paragraph B of this Article Four, and the limitations, if any,
imposed by the holders of Preferred Stock, shall have authority to authorize
the issuance from time to time without any vote or other action by the
stockholders, of all or any shares of the stock of the Corporation of any
class now or hereafter authorized, part paid receipts or allotment
certificates in respect of any such shares and any securities convertible into
or exchangeable for any such shares (whether such shares, receipts,
certificates or securities be unissued, or issued and thereafter acquired by
the Corporation, unless in the case of acquired or redeemed shares, the
Corporation is required to retire the same), in each case to such
corporations, associations, partnerships, individuals or others, for such
consideration and on such terms as the Board of Directors from time to time in
its discretion lawfully may determine, without offering the same or any part
thereof to holders of any stock of the Corporation of any class now or
hereafter authorized. In the discretion of the Board of Directors any such
shares, receipts, certificates or securities which the Board of Directors
shall have authority to issue, may be offered from time to time to the holders
of any class or classes of stock (or of any one or more series thereof) to the
exclusion of the holders of any or all other classes of stock (or series
thereof) at the time outstanding.
E. RIGHTS OR OPTIONS TO SECURITIES. The Corporation, subject to the
limitations contained in Paragraph B of this Article Four and the limitations,
if any, imposed by the holders of Preferred Stock, upon vote of the Board of
Directors, without any vote or consent of the stockholders of any class or
classes, from time to time may grant rights or options to subscribe for,
purchase or otherwise acquire any shares of stock of the Corporation of any
class now or hereafter authorized or any bonds or other obligation of the
Corporation. Such rights or options (a) may relate to such amounts of any
class or classes of such securities, may be exercisable within such periods,
or without limit as to time, at such price or prices and otherwise upon such
terms and conditions and may confer such rights and privileges; (b) may be
granted for such consideration and on such terms and conditions as to such
corporations, associations, partnerships, individuals, or others, or to the
bearers or registered holders of such warrants or other instruments evidencing
such rights or options (without offering the same or any part thereof to the
holders of any stock of the Corporation of any class now or hereafter
authorized); and (c) may be granted separately or in connection with the
issuance of any bonds, debentures, notes or other evidences of indebtedness or
shares of stock of the Corporation of any class
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now or hereafter authorized, or otherwise, all as the Board of Directors may
determine. In the discretion of the Board of Directors, any such rights or
options that the Board of Directors shall have the authority to issue may be
granted from time to time to the holders of any class or classes of stock (or
of any one or more series thereof) to the exclusion of the holders of any or
all other classes of stock (or series thereof) at the time outstanding.
Nothing in this Paragraph E shall be deemed to authorize the issuance of
shares of capital stock of the Corporation of any class having a par value for
a consideration less than the par value thereof.
F. CLOSING TRANSFER BOOKS; RECORDS DATES. Nothing contained in this
Article Four shall prejudice any power that the Board of Directors may
otherwise have to close the stock transfer books of the Corporation or
prejudice any right that the Corporation may otherwise have to fix in its Code
of Regulations, or provide in its Code of Regulations that the Board of
Directors shall be authorized to fix, record dates for the determination of
stockholders entitled to notice of, and to vote at, meetings of stockholders
or any adjournment thereof, are entitled to receive dividends, or to any
allotment of rights, or to exercise rights in respect of any change,
conversion or exchange of capital stock, or to give a consent for any purpose,
and to provide that in such case such stockholders and only such stockholders
as shall be stockholders of record on the date so fixed shall be entitled to
such notice of and to vote at such meeting and any adjournment thereof, or to
receive payment of such dividend, or to receive such allotment of rights, or
to exercise such rights, or to give such consent, as the case may be,
notwithstanding any transfer of any stock on the books of the Corporation
after any such record date fixed as aforesaid.
G. DESCRIPTIVE HEADINGS. The descriptive headings of the several
Paragraphs of this Article Four are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions
hereof.
ARTICLE FIVE
PREEMPTIVE RIGHTS
No holder of shares of any type of capital stock of the Corporation shall
have any preemptive right to subscribe for or to purchase any shares of the
Corporation of any type, whether those shares of that type be now or later
authorized.
ARTICLE SIX
CUMULATIVE VOTING
No holder of shares of any type of capital stock of the Corporation shall
have any cumulative voting rights whatsoever.
ARTICLE SEVEN
WORKING CAPITAL AND TREASURY STOCK
The Board of Directors is hereby authorized to fix and determine and to
vary the amount of working capital of the Corporation, to determine whether
any and, if any, what part of its surplus, however created or arising, shall
be used or disposed of or declared in dividends or paid to
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shareholders; and, without any action by the shareholders, to use and supply
such surplus, or any part thereof, at any time or from time to time in the
purchase or acquisition of shares of any type or class, voting trust
certificates for shares, bonds, debentures, notes, script, warrants,
obligations, evidences of indebtedness of the Corporation, or other securities
of the Corporation, to such extent or amount and in such manner and upon such
terms as the Board of Directors shall deem expedient.
ARTICLE EIGHT
STATED CAPITAL
Each authorized and outstanding share of Class A Common Stock and Class B
Common Stock shall have a stated value of one cent (1 cent) per share and each
authorized and outstanding share of Voting Preferred Stock and Nonvoting
Preferred Stock shall have a stated value of one cent (1 cent) per share,
resulting in a current stated value of $61,706.25.
ARTICLE NINE
CLASSIFICATION OF THE BOARD OF DIRECTORS
The business and affairs of the Corporation shall be managed and
controlled by a Board of Directors consisting of not less than nine (9) nor
more than fifteen (15) persons. The exact number of directors within the
minimum and maximum limitations specified in the preceding sentence shall be
fixed from time to time by the Board of Directors pursuant to a resolution
adopted by a majority of the entire Board of Directors. At the 1997 annual
meeting of stockholders, the directors shall be divided into three classes, as
nearly equal in number as possible, with the term of office of the first class
to expire at the 1998 annual meeting of stockholders, the term of office of
the second class to expire at the 1999 annual meeting of stockholder, and the
term of office of the third class to expire at the 2000 annual meeting of
stockholders. At each annual meeting of stockholders following such initial
classification and election, directors elected to succeed those directors
whose terms expire shall be elected for a term of office to expire at the
third succeeding annual meeting of shareholders after their election.
ARTICLE TEN
REMOVAL OF DIRECTORS
Any director, or the entire Board of Directors, may be removed from
office at any time, but only for cause and only by the affirmative vote of the
holders of at least sixty six and two-thirds percent (66 2/3%) of the voting
power of all shares of the Corporation entitled to vote for the election of
directors; each share of Class A Common Stock being entitled to one vote per
share and each share of Class B Common Stock being entitled to ten votes per
share.
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ARTICLE ELEVEN
VACANCIES IN THE BOARD OF DIRECTORS
The newly created directorships resulting from any increase in the
authorized number of directors or any vacancies in the Board of Directors
resulting from death, resignation, retirement, disqualification, removal from
office or other cause shall be filled by a majority vote of the directors then
in office, and directors so chosen shall hold office for a term expiring at
the annual meeting of shareholders at which the term of the class to which
they have been elected expires. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of an incumbent
director.
ARTICLE TWELVE
INDEMNIFICATION OF DIRECTORS, ET AL.
(1) The Corporation shall indemnify or agree to indemnify any
person who was or is a party, or is threatened to be made a party, to any
threatened, pending or completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative, other than an action by or in the
right of the Corporation, by reason of the fact that he is or was a director,
officer, employee, or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, trustee, officer, employee, member,
manager, or agent of another corporation, domestic or foreign, nonprofit or
for profit, a limited liability company, or a partnership, joint venture,
trust, or other enterprise, against expenses, including attorney's fees,
judgments, fines, and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit, or proceeding, if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, if he had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit, or proceeding by
judgment, order, settlement, or conviction, or upon a pleas of nolo contendere
or its equivalent, shall not, of itself, create a presumption that the person
did not act in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, he had reasonable cause to believe that his
conduct was unlawful.
(2) The Corporation shall indemnify or agree to indemnify any person who
was or is a party, or is threatened to be made a party, to any threatened,
pending or completed action or suit, by or in the right of the Corporation to
procure a judgment in its favor (also known as shareholder derivative
actions), by reason of the fact that he is or was a director, officer,
employee, or agent of the Corporation, or is or was serving at the request of
the Corporation as a director, trustee, officer, employee, member, manager, or
agent of another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust, or other
enterprise, against expenses, including attorney's fees, judgments, fines, and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit, or proceeding, if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, except that no indemnification shall be made in
respect of any of the following:
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(a) Any claim, issue, or matter as to which such person is adjudged
to be liable for negligence or misconduct in the performance of his duty to
the Corporation unless, and only to the extent that, the court of common pleas
or the court in which such action or suit is brought determines, upon
application, that, despite the adjudication of liability, but in view of all
the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses as the court of common pleas or such other
court shall deem proper;
(b) Any action or suit in which the only liability asserted against
a director is pursuant to Section 1701.95 of the Ohio Revised Code, relating
to unlawful loans, dividends or distributions.
(3) To the extent that a director, trustee, officer, employee, member,
manager, or agent has been successful on the merits or otherwise in defense of
any action, suit, or proceeding referred to in division (1) of (2) of this
section, or in defense of any claim, issue, or matter therein, he shall be
indemnified against expenses, including attorney's fees, actually and
reasonably incurred by him in connection with this action, suit, or
proceeding.
(4) Any indemnification under division (1) or (2) of this section,
unless ordered by a court, shall be made by the Corporation only as authorized
in the specific case, upon a determination that indemnification of the
director, trustee, officer, employee, member, manager, or agent is proper in
the circumstances because he has met the applicable standard of conduct set
forth in division (1) or (2) of this section. Such determination shall be
made as follows:
(a) By a majority vote of the quorum consisting of directors of the
Corporation who were not and are not parties to or threatened with the action,
suit, or proceeding referred to in division (1) or (2) of this section;
(b) If the quorum described in division (4)(a) of this section is
not obtainable or if a majority vote of a quorum of disinterested directors so
directs, in a written opinion by independent legal counsel other than an
attorney, or a firm having associated with it an attorney, who has been
retained by or who has performed services for the Corporation or any person to
be indemnified within the past five years;
(c) By the shareholders;
(d) By the court of common pleas or the court in which the action,
suit, or proceeding referred to in division (1) or (2) of this section was
brought.
Any determination made by the disinterested directors under division
(4)(a) or by independent legal counsel under division (4)(b) of this section
shall be promptly communicated to the person who threatened or brought the
action or suit by or in the right of the Corporation under division (2) of
this section, and, within ten days after receipt of such notification, such
person shall have the right to petition the court of common pleas or the court
in which such action or suit was brought to review the reasonableness of such
determination.
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(5)(a) Unless at the time of the director's act or omission that is
the subject of an action, suit, or proceeding referred to in division (1) or
(2) of this section, the only liability asserted against a director in an
action, suit, or proceeding referred to in division (1) or (2) of this section
is pursuant to Section 1701.95 of the Ohio Revised Code (which relates to
unlawful loans, dividends or distributions), expenses, including attorney's
fees, incurred by a director in defending the action, suit, or proceeding
shall be paid by the Corporation as they are incurred, in advance of the final
disposition of the action, suit, or proceeding, upon receipt of an undertaking
by or on behalf of the director in which he agrees to do both of the
following:
(i) Repay such amount if it is proved by clear and convincing
evidence in a court of competent jurisdiction that his
action or failure to act involved an act or omission
undertaken with deliberate intent to cause injury to the
Corporation or undertaken with reckless disregard for the
best interests of the Corporation;
(ii) Reasonably cooperate with the Corporation concerning the
action, suit, or proceeding.
(b) Expenses, including attorney's fees, incurred by a director,
trustee, officer, employee, member, manager, or agent in defending any action,
suit, or proceeding referred to in division (1) or (2) of this section, shall
be paid by the Corporation as they are incurred, in advance of the final
disposition of the action, suit, or proceeding, as authorized by the directors
in the specific case, upon receipt of an undertaking by or on behalf of the
director, trustee, officer, employee, member, manager, or agent to repay such
amount, if it ultimately is determined that he is not entitled to be
indemnified by the Corporation.
ARTICLE THIRTEEN
SPECIAL MEETINGS OF THE SHAREHOLDERS
Special meetings of stockholders of the Corporation may be called only by
the Board of Directors pursuant to a resolution approved by a majority of the
entire Board of Directors, upon not less than seven (7) nor more than sixty
(60) days written notice.
ARTICLE FOURTEEN
STOCKHOLDER ACTION
Action shall be taken by the stockholders of the Corporation only at
annual or special meetings of stockholders. Stockholders may not act by
written consent.
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ARTICLE FIFTEEN
AMENDMENT AND TERMINATION
These Articles may be amended only by the affirmative vote of a majority
of the total votes of Class A and Class B shares combined (together with the
holders of any outstanding shares of Preferred Stock entitled to vote with the
Class A Common Stock and the Class B Common Stock); each Class A share being
entitled to one vote per share and each Class B share being entitled to ten
votes per share.
ARTICLE SIXTEEN
SUPERSEDE PRIOR ARTICLES
These Articles take the place of and supersede the existing Articles of
Incorporation as heretofore amended.
IN WITNESS WHEREOF, the above named officers, acting for and on behalf of
the Corporation, have hereunto subscribed their names this __________ day of
September, 1996.
By:
------------------------------
Albert H. Pharis, Jr., President
By:
------------------------------
Lynn L. Williamson, Secretary
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Exhibit 3.2
SYGNET WIRELESS, INC.
CODE OF REGULATIONS
ARTICLE I
OFFICES
SECTION 1. PRINCIPAL OFFICE. The principal office of the
corporation shall be at such place in Ohio as may be designated from time to
time by the Board of Directors. The present principal office of the
Corporation is at 6550 Seville Drive, Suite B, Canfield, Ohio.
SECTION 2. OTHER OFFICES. The corporation may also have offices at
such other places without, as well as within, the State of Ohio as the Board
of Directors may from time to time determine.
ARTICLE II
MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETINGS. The annual meeting of the shareholders
of this corporation for the purpose of electing directors and transacting such
other business as may come before the meeting, shall be held on the second
Wednesday in June of each year, if not a legal holiday, but if a legal
holiday, then on the next business day following or at such other date and
time as the Board of Directors may determine.
SECTION 2. PLACE OF MEETINGS. Meetings of shareholders shall be held
at the principal office of the corporation unless the Board of Directors
decides that a meeting shall be held at some other place within or without the
State of Ohio and causes the notice thereof to so state.
SECTION 3. NOTICE OF MEETINGS. Unless waived, a written, printed or
typewritten notice of each annual or special meeting, stating the day, hour,
place and the purpose or purposes thereof, shall be served upon or mailed to
each shareholder of record entitled to vote or entitled to notice, not more
than sixty (60) days nor less than seven (7) days before any such meeting. If
mailed, it shall be directed to a shareholder at his or her address as the
same appears upon the records of the corporation.
SECTION 4. QUORUM. At any meeting of the shareholders, the holders
of Class A Common Stock, Class B Common Stock and Voting Preferred Stock
entitling them to exercise a majority of the voting power of the corporation,
present in person or represented by proxy, shall constitute a quorum.
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At any meeting at which a quorum is present, all questions and business
which shall come before the meeting shall be determined by the vote of the
holders of a majority of voting shares as are represented in person or by
proxy, except when a greater proportion is required by law or the Articles of
Incorporation.
At any meeting, whether a quorum is present or not, the holders of a
majority of the voting shares represented by shareholders present or by proxy
may adjourn from time to time and from place to place without notice other
than by announcement at the meeting. At any such adjourned meeting at which
quorum is present, any business may be transacted which might be transacted at
the meeting as originally notified or held.
SECTION 5. PROXIES. Any shareholder of record who is entitled to
attend a shareholders' meeting, or to vote thereat or to assent or give
consents in writing, shall be entitled to be represented at such meeting or to
vote thereat or to assent or give consents in writing, as the case may be, or
to exercise any other of his rights, by proxy or proxies appointed by a
writing signed by such shareholder, which need not be sealed, witnessed or
acknowledged.
SECTION 6. VOTING.
6.01 CLASS A. At any meeting of shareholders, each Class A
shareholder of the corporation shall, except as otherwise provided by law or
by the Articles of Incorporation or by these Regulations, be entitled to one
(1) vote in person or by proxy for each Class A Share of the corporation
registered in his name on the books of the corporation (1) on the date fixed
pursuant to subparagraph (f) of Section 2 of Article IV of these Regulations
as the record date for the determination of shareholders entitled to vote at
such meeting, notwithstanding the prior or subsequent sale, or other disposal
of such share or shares or transfer of the same on the books of the
corporation on or after the date so fixed, or (2) if no such record date shall
have been fixed, then at the time of such meeting.
6.02 CLASS B. At any meeting of shareholders, each Class B
shareholder of the corporation shall, except as otherwise provided by law or
by the Articles of Incorporation or by these Regulations, be entitled to ten
(10) votes in person or by proxy for each Class B Share of the corporation
registered in his name on the books of the corporation (1) on the date fixed
pursuant to subparagraph (f) of Section 2 of Article IV of these Regulations
as the record date for the determination of shareholders entitled to vote at
such meeting, notwithstanding the prior or subsequent sale, or other disposal
of such share or shares or transfer of the same on the books of the
corporation on or after the date so fixed, or (2) if no such record date shall
have been fixed, then at the time of such meeting.
6.03 PREFERRED STOCK. At any meeting of shareholders, each holder
of Preferred Stock, if any, shall , except as otherwise provided by law or by
the Articles of Incorporation or by these Regulations, be entitled to vote as
per the rights accorded to that shareholder by his ownership of each share of
Preferred Stock of the corporation registered in his name on the books of the
Corporation (1) on the date fixed pursuant to subparagraph (f) of Section 2 of
Article IV of these Regulations as the record date for the determination of
shareholders entitled to vote at such meeting, notwithstanding the prior or
subsequent sale, or other disposal of such share or shares or transfer of the
same on the books of the corporation on or after the date so fixed, or (2) if
no such record date shall have been fixed, then at the time of such meeting.
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SECTION 7. FINANCIAL REPORTS. At the annual meeting, there shall be
laid before the shareholders a statement of profit and loss and a balance
sheet containing a summary of the assets and liabilities, as at the end of the
preceding fiscal year, together with a statement of dividends paid, and other
changes in the surplus account of the corporation during such year.
A certificate signed by the President or a Vice President and the
Treasurer or an Assistant Treasurer, or a public accountant or firm of public
accountants, shall be appended to such statement of profit and loss and
balance sheet, stating that they are true and correct according to the books
of the corporation, and that they fairly represent the corporation's affairs
according to its books.
SECTION 8. ACTION WITHOUT MEETING. No shareholder action may be
taken otherwise than at a meeting of shareholders properly convened pursuant
to Article 2 of this Code of Regulations.
ARTICLE III
DIRECTORS
SECTION 1. NUMBER OF DIRECTORS. As provided in Article Nine of
the Amended Articles of Incorporation of Sygnet Wireless, Inc., the number of
directors of the corporation, none of whom need be shareholders, shall be no
less than nine (9) and no more than fifteen (15).
SECTION 2. ELECTION OF DIRECTORS. Directors shall be elected in the
manner indicated herein and in the Articles of Incorporation at the annual
meeting of shareholders. When the annual meeting is not held or directors are
not elected thereat, they may be elected at a special meeting called and held
for that purpose. Such election shall be by ballot whenever requested by any
shareholders entitled to vote at such elections, but, unless such a request is
made, the election may be conducted in any manner approved by a majority of
shareholders in attendance at such meeting.
Nominations for candidates for the Directors shall be made by the Board
of Directors (or duly constituted committee thereof) and may be made by
holders or proxies of Class A Common Stock, Class B Common Stock and Voting
Preferred Stock provided that any such nomination by any shareholder shall be
made not less than sixty (60) days prior to the annual meeting or within ten
(10) days after the notice of the meeting is given, whichever is later. Those
candidates receiving the greatest number of votes shall be elected. Pursuant
to the Amended Articles of Incorporation, there shall be no cumulative voting.
SECTION 3. TERM OF OFFICE. Directors shall hold office as
provided in Articles Nine, Ten and Eleven of the Amended Articles of
Incorporation of Sygnet Wireless, Inc.
ARTICLE IV
POWERS, MEETINGS, AND COMPENSATION OF DIRECTORS
SECTION 1. GENERAL POWERS OF BOARD. The powers of the corporation
shall be exercised, its business and affairs conducted, and its property
controlled, by the Board of Directors, except as provided in the Articles of
Incorporation, amendments thereto, or the General Corporation Law of Ohio.
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SECTION 2. OTHER POWERS. Without prejudice to the general powers
conferred by or implied in the preceding section, the directors, acting as a
Board, shall have power:
(a) To fix, define and limit the powers and duties of all
officers, and to determine the compensation of all
officers.
(b) To appoint, and at their discretion, with or without
cause, to remove, or suspend, such subordinate officers,
assistants, managers, agents and employees as the
directors may from time to time deem advisable, and to
determine their duties and fix their compensation.
(c) To require any officer, agent or employee of the
corporation to furnish a bond for faithful performance in
such amount and with such sureties as the Board may
approve.
(d) To designate a depository or depositories of the funds of
the corporation and the officer or officers of other
persons who shall be authorized to sign notes, checks,
drafts, contracts, deeds, mortgages and other instruments
on behalf of the corporation.
(e) To appoint and remove transfer agents and/or registrars
for the corporation's shares.
(f) To fix a time, not exceeding seventy-five (75) days
preceding the date of any meeting of shareholders, or the
date fixed for the payment of any dividend or
distribution, or the date for the allotment of rights, or
(subject to contract rights with respect thereto) the date
when any change or conversion or exchange of shares shall
be made or go into effect, as a record date for the
determination of the shareholders entitled to notice of
and to vote at any such meeting, or entitled to receive
payments of any such dividend, distribution, or allotment
of rights, or to exercise the right in respect to any such
change, conversion or exchange of shares, and, in such
case, only the persons who are shareholders of record on
the date so fixed shall be entitled to notice of and to
vote at such meeting, or to receive payment of such
dividend, distribution, or allotment of rights, or to
exercise such rights, as the case may be, notwithstanding
any transfer of any shares on the books of the corporation
after any record date fixed as aforesaid, or redemption of
any shares by the corporation after any record date fixed
as aforesaid, and such persons shall conclusively be
deemed to be the shareholders of the corporation on such
record date notwithstanding notice or knowledge to the
contrary; and the Board of Directors may close the books
of the corporation against transfers of shares during the
whole or any part of such period commencing on such record
date.
(g) To establish such rules and regulations respecting the
issuance and transfer of shares and certificates for
shares as the Board of Directors may consider reasonable.
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<PAGE> 5
SECTION 3. MEETINGS OF THE BOARD. A meeting of the Board of
Directors shall be held immediately following the adjournment of each
shareholders' meeting at which directors are elected, and notice of such
meeting need not be given.
The Board of Directors may, by by-laws or resolution, provide for other
meetings of the Board.
Special meetings of the Board of Directors may be held at any time upon
call of the Chairman of the Board, the President, a Vice President, or
one-half of the members of the Board.
Notice of any special meetings of the Board of Directors shall be mailed
to each director, addressed to him at his residence or usual place of
business, at least three (3) days before the day on which the meeting is to be
held, or shall be sent to him at such place by telegraph or be given
personally or by telephone, not later than the day before the day on which the
meeting is to be held. Every such notice shall state the time and place of
the meeting but need not state the purpose thereof. Notice of any meeting of
the Board need not be given to any director, however, if waived by him in
writing or by telegraph, whether before or after such meeting be held, or he
shall be present at such meeting; and any meeting of the Board shall be a
legal meeting without any notice thereof having been given, if all the
directors shall be present thereat. Any number of Directors may attend a
meeting and vote by telephone, so long as all Directors may speak to all
Directors and hear all Directors.
All meetings of the Board shall be held at the principal offices of the
corporation in Mahoning County, Ohio, or at such other place, within or
without the State of Ohio, as the Board may determine from time to time and as
may be specified in the notice thereof.
SECTION 4. QUORUM. A majority of the Board of Directors shall
constitute a quorum for the transaction of business, provided that whenever
less than a quorum is present at the time and place appointed for any meeting
of the Board, a majority of those present may adjourn the meeting from time to
time, without notice other than by announcement at the meeting, until a quorum
shall be present.
SECTION 5. COMPENSATION. The directors shall be entitled to
reasonable compensation as determined by resolutions of the Board of
Directors.
SECTION 6. BY-LAWS. For the government of its actions, the Board of
Directors may adopt by-laws consistent with the Articles of Incorporation and
these Regulations.
ARTICLE V
COMMITTEES
The Board of Directors may, by resolution or resolutions passed by a
majority of the whole Board, provide for such standing or special committees
as it deems desirable and discontinue the same at pleasure. Each such
committee shall have such powers and perform such duties, not inconsistent
with law, as may be delegated to it by the Board of Directors. Vacancies in
any such committees shall be filled by the Board of Directors or as it may
provide.
5
<PAGE> 6
ARTICLE VI
OFFICERS
SECTION 1. GENERAL PROVISIONS. The Board of Directors shall elect a
Chairman of the Board, a President, such number of Vice Presidents as the
Board may from time to time determine, a Secretary and a Treasurer. The Board
of Directors may from time to time create such offices and appoint such other
officers, subordinate officers and assistant officers as it may determine.
The Chairman of the Board and the President shall be, but the other officers
need not be, chosen from among the members of the Board of Directors. Any two
or more of such offices, other than that of President and Secretary, may be
held by the same person.
SECTION 2. TERM OF OFFICE. The officers of the corporation shall
hold office during the pleasure of the Board of Directors, and, unless sooner
removed by the Board of Directors, until the organization meeting of the Board
of Directors following the date of their election and until their successors
are chosen and qualified.
The Board of Directors may remove any officer at any time, with or
without cause, by a majority vote.
A vacancy in any office, however created, shall be filled by the Board of
Directors.
ARTICLE VII
DUTIES OF OFFICERS
SECTION 1. CHAIRMAN OF THE BOARD. The office and person of the
Chairman of the Board may also be known as "Board Chair," "Chairwoman,"
"Chair," "Chairperson," or other similar non-masculine descriptive title as
adopted by the incumbent officer and shall be exclusively so known if he or
she so directs. The Chairman of the Board shall preside at all meetings of the
shareholders and shall also preside at meetings of the Board of Directors.
The Chairman shall have general supervision, direction and control over the
business of the Corporation and over its several officers, subject, however,
to the control of the Board of Directors.
SECTION 2. PRESIDENT. The President shall be the Chief Executive
Officer of the Corporation, and in that capacity shall manage the daily
affairs of the Corporation. Within this authority, the President shall have
the authority to sign all deeds, mortgages, bonds, contracts, notes, and other
instruments of the Corporation and shall have the authority to appoint,
remove, employ and discharge, and prescribe the duties and fix the
compensation of all agents and employees of the Corporation other than the
duly appointed officers, but subject to the direction of the Board of
Directors and the Chairman of the Board. The President shall seek the advice
and consent of the Chairman of the Board on all important corporate actions
and policy matters.
SECTION 3. VICE PRESIDENTS. The Vice President or Vice Presidents,
if more than one is elected, shall perform such duties as may from time to
time be assigned by the Board of Directors or the President.
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<PAGE> 7
SECTION 4. SECRETARY. The Secretary shall keep minutes of all the
proceedings of the shareholders and Board of Directors, and shall make proper
record of the same, shall attest to records, sign all certificates for shares,
and all deeds, mortgages, bonds, contracts, notes, and other instruments
executed by the corporation requiring the Secretary's signature; give notice
of meetings of shareholders and directors; produce on request at each meeting
of shareholders for the election of directors a certified list of shareholders
arranged in alphabetical order; keep such books as may be required by the
Board of Directors, and file all reports to States and to the Federal
Government; and perform such other and further duties as may from time to time
be assigned to the Secretary by the Board of Directors, or by the Chairman or
by the President.
SECTION 5. TREASURER. The Treasurer shall be the Chief Financial
Officer of the Corporation and shall receive and have in charge all moneys,
bills, notes, bonds, and similar property belonging to the corporation and
shall do with the same as may be ordered by the Board of Directors. The
Treasurer shall keep such financial accounts as may be required and shall
generally perform such other duties as may from time to time be required of
the Treasurer by the Board of Directors. The Treasurer shall furnish such
bond in such amount and with such security as shall be required by the Board
of Directors and may prepare, for submission at each regular meeting of the
shareholders, a detailed statement of the financial condition of the
corporation and may sign or countersign all checks or notes or other evidences
of indebtedness issued or authorized for the benefit of the corporation and
may receive and collect all moneys or other credits due said corporation and
deposit them in a bank designated by the Directors to the credit of and for
the benefit of the corporation.
SECTION 6. ASSISTANT AND SUBORDINATE OFFICERS. The Board of
Directors may appoint such assistant and subordinate officers as it may deem
desirable. Each such officer shall hold office during the pleasure of the
Board of Directors, and perform such duties as the Board of Directors may
prescribe.
The Board of Directors may, from time to time, authorize any officer to
appoint and remove subordinate officers, to prescribe their authority and
duties, and to fix their compensation.
SECTION 7. DUTIES OF OFFICERS MAY BE DELEGATED. In the absence of
any officer of the corporation, or for any other reason the Board of Directors
may deem sufficient, the Board of Directors may delegate, for the time being,
the powers or duties, or any of them, of such officer to any other office, or
to any director.
ARTICLE VIII
CERTIFICATES FOR SHARES
SECTION 1. FORM. Certificates for shares shall be in such form as
the Board of Directors may from time to time determine or approve, or in the
event the Board of Directors has not made such determinations or given such
approval, in such form as the Secretary shall determine or approve. Each
shareholder of this corporation whose shares have been paid in full shall be
entitled to a certificate or certificates showing the number of shares of each
type registered in his name on the books of the corporation. Each certificate
shall be issued in numerical order and shall be signed by the Chairman or
President, and the Secretary or any Assistant Secretary. A full record of
each certificate as issued shall be kept by the Secretary of the corporation.
7
<PAGE> 8
SECTION 2. TRANSFERS. Subject to any transfer restrictions
contained in the Stock Option Plan of the Corporation, or noted conspicuously
on each certificate representing shares, shares shall be transferable on the
books of the corporation by the holders thereof in person or by a duly
authorized attorney, upon surrender and cancellation for certificates for a
like number of shares of the same class or series, with duly executed
assignment and power of transfer endorsed thereon or attached thereto, and
with such proof of the authenticity of the signatures as the corporation or
its agents may reasonably require. Certificates so surrendered shall be
cancelled and attached to the stubs corresponding thereto in the stock
certificate books.
SECTION 3. LOST, DESTROYED OR MUTILATED CERTIFICATES. If any
certificate of shares in this corporation shall become worn, defaced or
mutilated, the Directors, upon production and surrender thereof, may order the
same cancelled and a new certificate issued in lieu thereof. If any such
certificate be lost or destroyed, the Directors, upon receipt of evidence
satisfactory to them of such loss or destruction and upon giving of such
indemnity as they shall deem satisfactory, may order a new certificate to be
issued to the person last appearing upon the books of the corporation to be
the owner of such lost or destroyed certificate.
ARTICLE IX
FISCAL YEAR
The fiscal year of the corporation shall end on the 31st day of December
in each year, or on such other day as may be fixed from time to time by the
Board of Directors.
ARTICLE X
SEAL
The Board of Directors may provide a suitable seal containing the name of
the corporation. If deemed advisable by the Board of Directors, duplicate
seals may be provided and kept for the purposes of the corporation.
ARTICLE XI
CONTRACTS, CHECKS, NOTES AND OTHER INSTRUMENTS
All contracts, agreements and other instruments authorized by the Board
of Directors, and all checks, drafts, notes, bonds, bills of exchange and
orders for the payment of money shall, unless otherwise directed by the Board
of Directors, or unless otherwise required by law, be signed by any two of the
following officers: Chairman of the Board, President, Treasurer, or
Secretary. The Board of Directors may, however, authorize any one of said
officers to sign checks, drafts, and orders for the payment of money singly
and without the necessity of counter-signature, and may designate officers and
employees of the corporation other than those named above, or different
combinations of such officers and employees, who may, in the name of the
corporation, execute checks, drafts, and orders for the payment of money in
its behalf.
8
<PAGE> 9
ARTICLE XII
INDEMNIFICATION OF DIRECTORS, ET AL.
(1) The Corporation shall indemnify or agree to indemnify any
person who was or is a party, or is threatened to be made a party, to any
threatened, pending or completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative, other than an action by or in the
right of the Corporation, by reason of the fact that he is or was a director,
officer, employee, or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, trustee, officer, employee, member,
manager, or agent of another corporation, domestic or foreign, nonprofit or
for profit, a limited liability company, or a partnership, joint venture,
trust, or other enterprise, against expenses, including attorney's fees,
judgments, fines, and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit, or proceeding, if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, if he had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit, or proceeding by
judgment, order, settlement, or conviction, or upon a pleas of nolo contendere
or its equivalent, shall not, of itself, create a presumption that the person
did not act in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, he had reasonable cause to believe that his
conduct was unlawful.
(2) The Corporation shall indemnify or agree to indemnify any person who
was or is a party, or is threatened to be made a party, to any threatened,
pending or completed action or suit, by or in the right of the Corporation to
procure a judgment in its favor (also known as shareholder derivative
actions), by reason of the fact that he is or was a director, officer,
employee, or agent of the Corporation, or is or was serving at the request of
the Corporation as a director, trustee, officer, employee, member, manager, or
agent of another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust, or other
enterprise, against expenses, including attorney's fees, judgments, fines, and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit, or proceeding, if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, except that no indemnification shall be made in
respect of any of the following:
(a) Any claim, issue, or matter as to which such person is adjudged
to be liable for negligence or misconduct in the performance of his duty to
the Corporation unless, and only to the extent that, the court of common pleas
or the court in which such action or suit is brought determines, upon
application, that, despite the adjudication of liability, but in view of all
the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses as the court of common pleas or such other
court shall deem proper;
(b) Any action or suit in which the only liability asserted against
a director is pursuant to Section 1701.95 of the Ohio Revised Code, relating
to unlawful loans, dividends or distributions.
(3) To the extent that a director, trustee, officer, employee, member,
manager, or agent has been successful on the merits or otherwise in defense of
any action, suit, or proceeding referred to in division (1) of (2) of this
section, or in defense of any claim, issue, or matter therein, he shall be
indemnified against expenses, including attorney's fees, actually and
reasonably incurred by him in connection with this action, suit, or
proceeding.
9
<PAGE> 10
(4) Any indemnification under division (1) or (2) of this section,
unless ordered by a court, shall be made by the Corporation only as authorized
in the specific case, upon a determination that indemnification of the
director, trustee, officer, employee, member, manager, or agent is proper in
the circumstances because he has met the applicable standard of conduct set
forth in division (1) or (2) of this section. Such determination shall be
made as follows:
(a) By a majority vote of the quorum consisting of directors of the
Corporation who were not and are not parties to or threatened with the action,
suit, or proceeding referred to in division (1) or (2) of this section;
(b) If the quorum described in division (4)(a) of this section is
not obtainable or if a majority vote of a quorum of disinterested directors so
directs, in a written opinion by independent legal counsel other than an
attorney, or a firm having associated with it an attorney, who has been
retained by or who has performed services for the Corporation or any person to
be indemnified within the past five years;
(c) By the shareholders;
(d) By the court of common pleas or the court in which the action,
suit, or proceeding referred to in division (1) or (2) of this section was
brought.
Any determination made by the disinterested directors under division
(4)(a) or by independent legal counsel under division (4)(b) of this section
shall be promptly communicated to the person who threatened or brought the
action or suit by or in the right of the Corporation under division (2) of
this section, and, within ten days after receipt of such notification, such
person shall have the right to petition the court of common pleas or the court
in which such action or suit was brought to review the reasonableness of such
determination.
(5)(a) Unless at the time of the director's act or omission that is
the subject of an action, suit, or proceeding referred to in division (1) or
(2) of this section, the only liability asserted against a director in an
action, suit, or proceeding referred to in division (1) or (2) of this section
is pursuant to Section 1701.95 of the Ohio Revised Code (which relates to
unlawful loans, dividends or distributions), expenses, including attorney's
fees, incurred by a director in defending the action, suit, or proceeding
shall be paid by the Corporation as they are incurred, in advance of the final
disposition of the action, suit, or proceeding, upon receipt of an undertaking
by or on behalf of the director in which he agrees to do both of the
following:
(i) Repay such amount if it is proved by clear and convincing
evidence in a court of competent jurisdiction that his
action or failure to act involved an act or omission
undertaken with deliberate intent to cause injury to the
Corporation or undertaken with reckless disregard for the
best interests of the Corporation;
(ii) Reasonably cooperate with the Corporation concerning the
action, suit, or proceeding.
10
<PAGE> 11
(b) Expenses, including attorney's fees, incurred by a director,
trustee, officer, employee, member, manager, or agent in defending any action,
suit, or proceeding referred to in division (1) or (2) of this section, shall
be paid by the Corporation as they are incurred, in advance of the final
disposition of the action, suit, or proceeding, as authorized by the directors
in the specific case, upon receipt of an undertaking by or on behalf of the
director, trustee, officer, employee, member, manager, or agent to repay such
amount, if it ultimately is determined that he is not entitled to be
indemnified by the Corporation.
ARTICLE XIII
AMENDMENTS
This Code of Regulations may be amended or repealed by the affirmative
vote of 50% of the total votes of Class A Common Stock, Class B Common Stock
and Voting Preferred Stock combined; each Class A share being entitled to one
(1) vote per share, and each Class B share and Voting Preferred share being
entitled to ten (10) votes per share.
11
<PAGE> 1
EXHIBIT 10.10
AUG 21 2 26 PH1987 87 DR 08912
Mercer
LEASE AGREEMENT WITH
REAL ESTATE PURCHASE OPTION AGREEMENT
A. LEASE
This Lease and Real Estate Purchase Option Agreement made at Mercer
County, Pennsylvania on this 21st day of July, 1987, by and between GEORGE A.
LAW and AGNES LAW, husband and wife; GEORGE C. LAW and JUDITH A. LAW, husband
and wife; and AUGUST THALMAN, JR. and BETTY THALMAN, husband and wife, R.D.#5,
Mercer, Pennsylvania 16137, (Lessors); and WILCOM CORPORATION, an Ohio
Corporation, having its principal place of business at 3930 Sunset Boulevard,
Youngstown, Ohio 44501, (Lessee);
WITNESSETH:
1. That Lessors, in consideration of the rents and covenants
hereinafter stipulated to be paid and performed by Lessee, does hereby lease
to the Lessee the premises located at R.D. #5, Mercer, Findley Township,
County of Mercer and Commonwealth of Pennsylvania and consisting of
approximately 6.9 acres, as more particularly described in "Exhibit A"
attached hereto (the "Land"). Lessors represent to Lessee that Lessors are
the owners of merchantable title to the premises described in "Exhibit A".
The Lessee may extend one set of guy wires and associated anchors, fences or
necessary accessories beyond the described premises in a location to be
mutually agreed upon.
2. It is understood that Lessee intends to construct, operate,
maintain, repair, use and have the right to remove a radio and radio-telephone
transmission and receiving tower and guy wires upon said premises and to
construct, use, repair, operate, maintain and have the right to remove a
building to be located on the leased premises.
3. Lessee shall pay all costs involved in the construction,
maintenance, repair, use and removal of the tower, guy wires, building,
anchors and fences.
FRUIT, DILL,
GOODWIN & SCHOLL
ATTORNEYS AT LAW
32 SHENANGO AVENUE
SHARON, PENNSYLVANIA 16146
28 0952
<PAGE> 2
87 08912
4. Lessee shall also have the right from time to time to trim and cut
down and clear away any trash and brush adjacent to the tower, building, guy
wires, anchors or fences that in the opinion of the Lessee may be a hazard
thereto.
5. Lessee shall pay all personal property taxes which may be assessed
and become due and payable upon such tower, guy wires, building, anchors and
fences. It is the intention of the parties hereto that all of such towers,
buildings, guy wires, anchors and fences shall be deemed between the parties
to be personal property; and upon the expiration of this Lease as the same may
have been extended, Lessee may remove all of such property.
6. The Lease granted by this instrument shall commence on the date this
instrument is executed by Lessors, and shall continue through the last day of
July, 2012. Lessee shall have the option to extend this Lease for four (4)
successive periods of twenty-five (25) years each, each such period being
herein sometimes referred to as an extended term, as follows:
First extended term - August 1, 2012 through July 31, 2037
Second extended term - August 1, 2037 through July 31, 2062
Third extended term - August 1, 2062 through July 31, 2087
Fourth extended term - August 1, 2087 through July 31, 2112
7. Each option to extend this Lease may be exercised by the Lessee or
its successors by sending written notice by United States mail addressed to
the
FRUIT, DILL,
GOODWIN & SCHOLL
ATTORNEYS AT LAW
32 SHENANGO AVENUE
SHARON PENNSYLVANIA 16146
28 0953
<PAGE> 3
87 08912
Lessors at R.D. #5, Mercer, Pennsylvania 16137, or at such other address for
the sending of such notices as may have been delivered in writing to Lessee,
no more than twelve (12) months nor less that two (2) months prior to the
expiration of the then existing term of this Lease.
8. The Lessee hereby agrees to pay to the Lessors in consideration for
the Lease and Easements hereby granted, during the initial term of this Lease,
the sum of One Hundred ($100.00) Dollars prior to the 1st day of each month
during such term. Lessee is granted a ten (10) day grace period each month
during the term of the lease in which to pay the lease payment. Lessee may
prepay any lease payments up to one year in advance of the appropriate due
date. If Lessee fails to pay the lease payment past said due date, a two (2%)
percent late fee penalty will be assessed against said late payment. In the
event that Lessee fails to pay the lease payment for three (3) consecutive
months, the Lesser, at his option, may terminate the lease by sending a thirty
(30) day written notice by United States mail addressed to the Lessee at its
address set forth above and permit Lessee to remove any of Lessee's property
placed on said premises, whereupon the parties shall be under no further
obligation to each other, except for unpaid rent accrued to the date of
termination. Lessors acknowledge receipt of the One Hundred ($100.00) Dollar
payment due for the period ending August 31, 1987. If this Lease is extended
for one or more extended terms by Lessee exercising any of the options granted
to it herein, upon the 1st day of each such extension of the term of this
Lease, such monthly payments shall be increased by an amount equal to that
FRUIT, DILL,
GOODWIN & SCHOLL
ATTORNEYS AT LAW
32 SHENANGO AVENUE
SHARON PENNSYLVANIA 16146
28 0954
<PAGE> 4
87 08912
87 08912
percentage of the rent in effect during the previous term multiplied by the
ratio by which the CPI for the month of January in the calendar year during
which this Lease is being extended bears to the CPI for the month of January
of the twenty-fifth (25th) preceding year; provided, however, that in no event
shall such increase exceed One Hundred (100%) percent of the payment rate
being made hereunder during the previous term. For purposes of this
Agreement, "CPI means that Consumer Price Index for all urban consumers
(United States City average, all items) prepared by the United States
Department of Labor, Bureau of Labor Statistics, or any Index prepared by the
United States Government in substitution therefor.
9. It is understood that Lessee intends to use the leased premises for
the purpose of installing and operating a tower, antennas and related
equipment for the transmission and receipt of radio-telephone and other
electrical signals. If by December 1, 1987, Lessee has been unable to obtain
all necessary permits and authorizations to construct and operate such
facilities, Lessee may, by sending written notice by United States mail
addressed to Lessors at their address set forth above, terminate this Lease
and remove any property Lessee has placed on said premises, whereupon the
parties shall be under no further obligation to each other.
10. If Lessee shall at any time be in breach of any of its obligations
under this Agreement, Lessors shall give fifteen (15) days written notice to
the Lessee mailed by United States mail addressed to the Lessee at 3930 Sunset
Boulevard, Youngstown, Ohio 44501, before commencing any legal action upon
such default.
FRUIT, DILL,
GOODWIN & SCHOLL
ATTORNEYS AT LAW
32 SHENANGO AVENUE
SHARON PENNSYLVANIA 16146
28 0955
<PAGE> 5
87 08912
87 08912
11. This Lease and Options referred to herein, shall run with the land,
and shall be binding on and inure to the benefit of the parties, their heirs,
successors and assigns except as herein provided. Lessee may at any time
assign its interest and delegate its obligation hereunder by written
notification to Lessors or their successors, following which the assignee
referred to in such notice shall be substituted for Lessee under this
agreement, and Lessee shall have no further obligations hereunder.
12. Any real estate transfer taxes due upon the recording of this
instrument shall be paid by Sellers.
B. REAL ESTATE PURCHASE OPTION
In consideration of the payment of Two Hundred ($200.00) Dollars to
George A. Law and Agnes Law, husband and wife; George C. Law and Judith A.
Law, husband and wife; and August Thalman, Jr. and Betty Thalman, husband and
wife, (hereinafter referred to as "Owners" or "Optionors"), the receipt and
sufficiency whereof is hereby acknowledged, the Owners hereby grant to Lessee,
Wilcom Corporation, (hereinafter referred to as "Purchaser" or "Optionee"),
the sole and exclusive right and option to purchase the premises described in
"Exhibit A", attached hereto and made a part hereof. The option shall remain
in effect through August 31, 1992. Said consideration shall be (100%)
refundable if Option is terminated within one (1) year from the date of
execution of this Agreement. Optionee may terminate by sending written notice
by United States mail addressed to the Optionors at their address set forth
above. If the Option is at any time exercised, the consideration for the
Option shall be applied to the purchase price.
FRUIT, DILL,
GOODWIN & SCHOLL
ATTORNEYS AT LAW
32 SHENANGO AVENUE
SHARON PENNSYLVANIA 16146
28 0956
<PAGE> 6
87 08912
87 08912
1. This Option may be exercised by the Purchaser giving notice as set
forth below at any time on or before 6:00 p.m. on August 31, 1992. Deposit of
written notice in the United States mail on or before 6:00 p.m. on the
aforesaid date shall constitute sufficient notice of the exercise of this
Option and shall result in a binding contract of purchase and sale between the
parties hereto. All notices sent by mail shall be sent by certified mail,
return receipt requested. In the alternative, Purchaser may deliver written
notice of the exercise of this Option to the Owners at their address
hereinafter set forth on or before 6:00 p.m. on the foregoing date.
2. In the event of the exercise of this Option by the Lessee as
aforesaid, all funds and documents necessary to complete this transaction
shall be deposited with the law firm of Fruit, Dill, Goodwin & Scholl, Sharon,
Pennsylvania, hereinafter referred to as "Escrow Agent", on or before thirty
(30) days after the date of the receipt of the aforesaid notice of the
exercise of this Option. The purchase price for the premises shall be Ten
Thousand ($10,000.00) Dollars.
3. The Premises shall be conveyed to the Purchaser, or its nominee, by
general warranty deed with full release of dower, free and clear of all liens
and encumbrances whatsoever, except for real estate taxes and general and
special assessments not then due and payable, zoning ordinances and such
easements, reservations, limitations, and restrictions as the Purchaser, or
its nominee, shall approve in its sole discretion. Sellers represent that
they are the owners of said real estate except only for the liens and
encumbrances permitted by this paragraph and further represent that at the
time this Option may be exercised, they will be such owners subject only to
such liens and encumbrances permitted by this paragraph.
FRUIT, DILL,
GOODWIN & SCHOLL
ATTORNEYS AT LAW
32 SHENANGO AVENUE
SHARON PENNSYLVANIA 16146
28 0957
<PAGE> 7
87 08912
87 08912
4. On receipt of the funds and documents necessary to complete this
transaction, the Escrow Agent shall order a title search to the Premises from
a title guarantee company, and shall notify the parties of the results of the
search, after which the Purchaser shall notify the Owners and the Escrow Agent
of any title defects to which Purchaser objects and at such time as the title
insurance company is in a position to issue its standard form of title
guarantee in the full amount of the purchase price, guaranteeing title to be
in the name of the Purchaser, or his nominee, subject only to taxes and
assessments not then due and payable, zoning ordinances, easements,
restrictions, reservations, limitations, easements or record, and conditions
of record, the Escrow Agent shall file the warranty deed for record and make
distribution to the respective parties entitled to the same of the funds and
documents on deposit. The expenses of closing shall be paid in the following
manner:
(a) The full cost of securing the title search and the title
guarantee shall be paid by Buyers.
(b) The cost of preparing, executing, and acknowledging any deeds
or other instruments required to convey title to Buyer or its
nominees in the manner described in this Agreement shall be
paid by Sellers.
(c) The cost of preparing, executing, and acknowledging any
promissory note and the instruments securing the debt, if
needed, shall be paid by Buyer.
FRUIT, DILL,
GOODWIN & SCHOLL
ATTORNEYS AT LAW
32 SHENANGO AVENUE
SHARON PENNSYLVANIA 16146
28 0958
<PAGE> 8
87 08912
87 08912
(d) Any costs of transfer and recordation of title shall be paid by
Buyer.
(e) Any tax impose on the conveyance of title to said property to Buyer
or his nominee shall be paid by Sellers.
(f) Any fee charged by the Escrow Agent required by this Agreement shall
be paid by the Seller and the buyer in equal portions.
(g) Real property taxes levied or assessed against said property as
shown on the latest available tax bills shall be prorated.
(h) Any costs for the subdivision of the Seller's property to permit the
sale of the demised premises shall be paid by the Seller, including
but not limited to surveying expenses and expenses to secure all
necessary permits and approvals.
5. Possession of the Premises shall be delivered to the Purchaser, or
its nominee, upon the record date of transfer of title.
6. All notices provided for herein shall be sent by United States
certified mail, return receipt requested, to the Purchaser at 3930 Sunset
Boulevard, Youngstown, Ohio 44501, and to the Owner at R.D. #5, Mercer,
Pennsylvania 16137. Any party or its successors in interest shall have the
right to designate a new address for the receipt of said notices by written
notice given as aforesaid.
FRUIT, DILL,
GOODWIN & SCHOLL
ATTORNEYS AT LAW
32 SHENANGO AVENUE
SHARON PENNSYLVANIA 16146
28 0959
<PAGE> 9
87 08912
87 08912
IN WITNESS WHEREOF, said grantors have hereunto set their hands and
seals, the date first above written.
Sealed and delivered in the presence of:
/s/ CHESTER B. SCHOLL, JR. /s/ GEORGE A. LAW (SEAL)
- -------------------------------- -----------------------------------
GEORGE A. LAW
LESSOR - OWNER
COMMONWEALTH OF PENNSYLVANIA /s/ AGNES LAW (SEAL)
DEPARTMENT OF REVENUE ------------------------------------
REALTY TRANSFER TAX Aug. 21 '87 11.40 By George A. Law, Attorney-in-Fact
LESSOR - OWNER
MERCER AREA SCHOOL DISTRICT /s/ GEORGE C. LAW (SEAL)
MERCER COUNTY, PENNSYLVANIA ------------------------------------
Realty Transfer Tax By George A. Law, Attorney-in-Fact
$5.70 LESSOR - OWNER
- --------------------------------
Recorder of Mercer County, Agent
/s/ JUDITH A. LAW (SEAL)
------------------------------------
By George A. Law, Attorney-in-Fact
LESSOR - OWNER
FINDLEY /s/ AUGUST THALMAN, JR. (SEAL)
MERCER COUNTY, PENNSYLVANIA ------------------------------------
REALTY TRANSFER TAX By George A. Law, Attorney-in-Fact
$5.70 LESSOR - OWNER
- --------------------------------
MERCER COUNTY RECORDER/AGENT
/s/ BETTY THALMAN (SEAL)
------------------------------------
By George A. Law, Attorney-in-Fact
LESSOR - OWNER
/s/ CHESTER B. SCHOLL, JR. /s/ GEORGE A. LAW (SEAL)
- -------------------------------- ------------------------------------
for the above parties.
LESSOR - OWNER
/s/ W.R. WILLIAMSON III WILCOM CORPORATION
- -------------------------------- LESSEE - PURCHASER
- -------------------------------- By: President (SEAL)
---------------------------------
(Title)
I do hereby certify that the precise residence and complete post office
address of the within name lessee is 3930 Sunset Boulevard, Youngstown, Ohio.
/s/ CHESTER B. SCHOLL, JR.
-----------------------------------------
FRUIT, DILL,
GOODWIN & SCHOLL
ATTORNEYS AT LAW
32 SHENANGO AVENUE
SHARON PENNSYLVANIA 16146
28 0960
<PAGE> 10
87 08912
87 08912
7. Owners and Purchaser hereby warrant and represent to each other that
no real estate broker has participated in or pursued this transaction. Each
of the parties shall indemnify and hold the other harmless with respect to any
loss, cost, claim, or liability, including reasonable attorneys' fees, arising
by reason of default of the warranties and representations contained herein.
The warranties and representations contained herein shall survive the closing
of this transaction.
8. This Option Contract shall bind and inure to the benefit of all the
respective heirs, personal representatives, successors, and assigns of the
parties hereto and the obligations of the Lessors shall run with this land.
Lessee may assign its rights hereunder by giving written notice thereof to
Lessors or their successors. This instrument contains the entire agreement
between the parties and no representation, promises, provisions, terms,
warranties, conditions, or obligations whatsoever, expressed or implied, other
than herein set forth, shall be binding upon the Optionors and Optionee.
9. This instrument is being executed by George A. Law, Attorney in
Fact, for Agnes Law, his wife; George C. Law and Judith A. Law, husband and
wife; and August Thalman, Jr. and Betty Thalman, husband and wife, by the
authority of a Power of Attorney recorded in the records of Mercer County,
Pennsylvania at 1979 POA 87.
State of Penna. Recorded in Recorder's Office
County of Mercer of said County in 1987
87 DR 08912
---------------------------------
[SEAL] Witness my hand and Official Seal
this 21st day of AUGUST A.D. 1987
/s/ MARILYN L. [signature illegible]
------------------------------------
Recorder
FRUIT, DILL,
GOODWIN & SCHOLL
ATTORNEYS AT LAW
32 SHENANGO AVENUE
SHARON PENNSYLVANIA 16146
28 0961
<PAGE> 11
87 08912
87 08912
STATE OF PENNSYLVANIA :
: ss:
COUNTY OF MERCER :
On this 21st day of July, 1987, before me, the undersigned officer, personally
appeared GEORGE A. LAW, individually, and as, Attorney-in-Fact for Agnes Law,
George C. Law, Judith A. Law, August Thalman, Jr. and Betty Thalman, by the
authority of a Power of Attorney recorded in Mercer County, Pennsylvania at
1979 POA 87, known to me (or satisfactorily proven) to be the person whose
name is subscribed to the within instruments and acknowledge that executed the
same of the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
[SEAL] /s/ KATHY J. ZOLNIER
----------------------------
Notary Public
My Commission Expires:
Kathy J. Zolnier, Notary Public
Sharon, Mercer County, Pa.
March 26, 1990
STATE OF PENNSYLVANIA :
: ss:
COUNTY OF MERCER :
Before me, a Notary Public in and for said County and State, personally
appeared WILCOM CORPORATION, by W.P. Williamson III, its attorney-in-fact, who
acknowledged that he did sign the foregoing instrument, and that he same is
his free act and deed and the free act and deed of WILCOM CORPORATION.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal, at
Sharon, Mercer County, PA, this 21st day of July, 1987.
[SEAL] /s/ KATHY J. ZOLNIER
----------------------------
Notary Public
My Commission Expires:
Kathy J. Zolnier, Notary Public
Sharon, Mercer County, Pa.
March 26, 1990
This instrument was prepared by:
Chester B. Scholl, Jr., Esquire
FRUIT, DILL, GOODWIN & SCHOLL
Attorneys at Law
P.O. Box 673
Sharon, Pennsylvania 16146
FRUIT, DILL,
GOODWIN & SCHOLL
ATTORNEYS AT LAW
32 SHENANGO AVENUE
SHARON PENNSYLVANIA 16146
28 0962
<PAGE> 12
87 08912
87 08912
Exhibit A
[SITE LOCATION MAP OF PREMISES AT
R.D. #5, MERCER, FINDLEY TOWNSHIP,
COUNTY OF MERCER AND
COMMONWEALTH OF PENNSYLVANIA]
28 0963
<PAGE> 13
AUG 21 27 PM1987
REV. 183 EX (9-86)
REALTY TRANSFER TAX
STATEMENT OF VALUE
See Reverse for Instructions
COMMONWEALTH OF PENNSYLVANIA RECORDER'S USE ONLY
DEPARTMENT OF REVENUE State Tax Paid 11.40
BUREAU OF INDIVIDUAL TAXES Book Number
POST OFFICE BOX 8910 Page Number
HARRISBURG, PA 17105-8910 Date Recorded
Complete each section and file in duplicate with Recorder of Deeds when (1)
the full value/consideration is not set forth in the deed, (2) when the deed
is without consideration, or by gift, or (3) a tax exemption is claimed. A
Statement of Value is not required if the transfer is wholly exempt from tax
based on: (1) family relationship or (2) public utility easement. If more
space is needed, attach additional sheet(s).
A. CORRESPONDENT - All inquiries may be directed to the following person:
Name Chester B. Scholl, Jr., Esquire Telephone Number: (412) 981-4800
City State Zip Code
Street Address 32 Shenango Avenue, Sharon, Pennsylvania 16146
B. TRANSFER DATA Date of Acceptance of Document
Grantor(s)/Lessor(s) George A. Law et al. Grantee(s)/Lessee(s)
Wilcom Corporation
Street Address Street Address 3930 Sunset Boulevard
R.D. #5
City State Zip Code City State Zip Code
Mercer, Pennsylvania 16150 Youngstown, Ohio 44501
C. PROPERTY LOCATION
Street Address City, Township, Borough
R.D. #5 (6.82 ACRES OUT OF 248.6 ACRES) Mercer
County School District Tax Parcel Number
Mercer
D. VALUATION DATA
1. Actual Cash Consideration 2. Other Consideration 3. Total Consideration
+ = XXXXXXXX
4. County Assessed Value 5. Common Level Ratio Factor 6. Fair Market Value
8,100,000 X 5.1 = 41310
E. EXEMPTION DATA
1a. Amount of Exemption Claimed 1b. Percentage of Interest Conveyed
401.70 2.74%
2. Check Appropriate Box Below for Exemption Claimed
/ / Will or interstate succession _____________________________________________
(Name of Decedent) (Estate File Number)
/ / Transfer to Industrial Development Agency.
/ / Transfer to agent or straw party. (Attach copy of agency/straw party
agreement).
/ / Transfer between principal and agent. (Attach copy of agency/straw trust
agreement). Tax paid prior deed $_________.
/ / Transfers to the Commonwealth, the United States, and Instrumentalities
by gift, dedication, condemnation or in lieu of condemnation. (Attach
copy of resolution).
/ / Transfer from mortgagor to a holder of a mortgage in default. Mortgage
Book Number ______, Page Number _________.
/ / Corrective deed (Attach copy of the prior deed).
/ / Statutory corporate consolidation, merger or division. (Attach copy of
articles)
/X/ Other (Please explain exemption claimed, if other than listed above.)
The lease is a lease for more than 30 years Covering 6.82 acres out of
----------------------------------------------------------------------
248.6 acres interest in the property.
----------------------------------------------------------------------
Under penalties of law, I declare that I have examined this Statement,
including accompanying information, and to the best of my knowledge and
belief, it is true, correct and complete.
Signature of Correspondent or Responsible Party Date
/s/ CHESTER B. SCHOLL, JR. 8/21/87
------------------------------------ ------------
(See Reverse)
28 0964
<PAGE> 14
89 DR 06230
MERCER
THIS LEASE is made and executed on the 31st day of March, 1989, by and
between:
WILCOM/CELLULAR ONE, an Ohio Partnership, having its principal place
of business at 3910 South Avenue, Youngstown, Mahoning County, Ohio
44512, hereinafter referred to as "LESSOR";
Party of the first part;
and
GEORGE A. LAW; GEORGE C. LAW and JUDITH A. LAW, husband and wife;
AUGUST THALMAN, JR. and BETTY THALMAN, husband and wife, of the
Borough of Mercer, County of Mercer and Commonwealth of
Pennsylvania, hereinafter referred to as "LESSEE";
Parties of the second part;
LESSOR desires to lease the land which it owns in Findley Township,
Mercer County, Pennsylvania to the LESSEE to allow LESSEE to farm said
property. In consideration of mutual covenants herein contained, the parties
agree as follows:
1. LESSEE agrees to pay in the manner hereinafter specified to LESSOR,
its heirs and assigns, without demand, rent for the demised premises in the
amount of ONE ($1.00) DOLLAR, per year except as otherwise limited in this
lease.
2. LESSEE covenants that in case of LESSOR, by reason of the failure of
LESSEE to perform any of the provisions hereof, shall be compelled to pay or
shall pay any sum of money, or shall be compelled to do or shall do any act
which requires the payment of money, then the sum or sums so paid or required
to be paid, together with all interest, costs, and damages, shall be added to
the next installment of rent due or to any subsequent installment of rent and
shall be collectible as additional rent in the same manner and with the same
remedies as if at had been originally reserved.
FRUIT, DILL,
GOODWIN & SCHOLL
ATTORNEYS AT LAW
32 SHENANGO AVENUE
SHARON PENNSYLVANIA 16146
0060 0298
<PAGE> 15
3. All payments of rent or other sums due LESSOR hereunder shall be
made at 3910 South Avenue, Youngstown, Ohio 44512, or at such other place as
LESSOR shall designate from time to time.
4. In the event of flood or overflow of water on the demised premises
or other natural disaster, so that only a portion of the demised premises may
be farmed, LESSEE shall be released from paying any rental for such portion of
the demised premises on which no crop or crops may be raised by reason of such
flood or overflow of water or other natural disaster, at the rate of rentals
hereinbefore specified; provided, however, that if any crop of any kind or
character can be or is raised on such demised premises, lessee shall pay full
rental therefor as herein provided.
5. The term of this lease shall be for one year to commence on the 31st
day of March, 1989, and terminate on the 30th day of March, 1990 unless sooner
terminated by the breach of the terms and conditions of this lease by LESSEE
or by an abandonment of the premises by LESSEE. LESSEE shall surrender the
premises to LESSOR immediately upon the termination of the lease term.
6. LESSEE shall use the demised premises for the purpose of conducting
the following and only the following purposes: the growing of crops for either
resale or for use as feed for the LESSEE'S farm.
7. LESSEE shall neither commit nor permit waste of the demised premises
and shall use with care, and shall not destroy, damage or remove without the
consent of LESSOR, any of the buildings, structure, fences, or other fixtures
and improvements on the premises at the beginning of or put on the premises by
LESSOR during the term hereof.
FRUIT, DILL,
GOODWIN & SCHOLL
ATTORNEYS AT LAW
32 SHENANGO AVENUE
SHARON, PENNSYLVANIA 16146
0060 0299
<PAGE> 16
89 06230
8. LESSEE shall maintain said demised premises to the extent of keeping
vegetation cut to normal heights, removing any debris which might accumulate
on the said premises and maintaining proper drainage of surface water from
said premises.
9. LESSOR reserves the right from time to time at its own expense to
make such improvements, alterations, renovations, changes, and repairs in and
about the demised premises, other than those hereinbefore provided for LESSEE
to do, as to LESSOR shall seem desirable, and LESSEE shall make no claim
against LESSOR for interference with LESSEE'S leasehold interest or for loss
or damage to its business during such improvements, alterations, renovations,
changes, and repairs. LESSOR shall at all times have the right to erect such
building or other structure on adjoining or neighboring premises as it shall
see fit or deem proper, without any liability to LESSEE therefor in any event
or for any cause.
10. LESSEE shall not improve or alter the demised premises in any manner
without the prior written consent of LESSOR but shall, before making any
improvements or alterations, submit plans and designs therefor to lessor for
his approval. In the event that the plans and designs are disapproved, such
improvements or alterations shall be made only with such changes as may be
required by LESSOR. All improvements or alterations erected or made on the
demised premises shall on expiration or sooner termination of this lease
belong to LESSOR without compensation to LESSEE, provided, however, that
LESSOR shall have the option, to be exercised on expiration or sooner
termination of this lease, to require LESSEE to remove any or all such
improvements or alterations.
FRUIT, DILL,
GOODWIN & SCHOLL
ATTORNEYS AT LAW
32 SHENANGO AVENUE
SHARON, PENNSYLVANIA 16146
0060 0300
<PAGE> 17
89 06230
11. If, during the term of this lease, any law, regulations or rule
requires that an alteration, addition, or other change or improvement be made
to the demised premises, the parties agree as follows:
(a) If the alterations, additions, or other changes or improvements
are required as a result of LESSEE'S use of the premises, LESSEE shall make
them and bear all expenses connected therewith.
(b) If the alterations, additions, or other changes or improvements
are required as a result of the condition or nature of the premises at the
time of execution of this lease, not caused by LESSEE'S use of the premises,
and related to a portion of the premises that LESSOR has agreed to maintain
and repair, LESSOR shall make them and bear all expenses connected therewith.
12. LESSEE, at his own expense, shall maintain the demised premises and
appurtenances thereto in good repair, and in at least as good condition as
that in which they were delivered, allowing for ordinary wear and tear.
13. LESSEE shall pay any increase in taxes and assessments on the
demised premises covered by this lease caused by the LESSEE'S use of said
demised premises in the future. Provided, however, that the LESSEE shall have
the right to contest all such taxes and, pending any such contest and during
its continuance in good faith, LESSEE may delay or defray the payment thereof,
but not so as to lose the right of redemption from any sale under any tax,
assessment, or governmental change.
14. As additional rental for the demised premises, LESSEE shall insure
and keep insured the property of LESSOR covered by this lease, with insurance
companies acceptable to LESSOR, and shall procure, pay for, and deliver to
LESSOR the policies of insurance covering the following:
FRUIT, DILL,
GOODWIN & SCHOLL
ATTORNEYS AT LAW
32 SHENANGO AVENUE
SHARON, PENNSYLVANIA 16146
0060 0301
<PAGE> 18
89 06230
(a) LESSEE shall during the full term of this lease, at the expense
of the LESSEE, carry public liability insurance providing for a minimum of
$100,000 per person, $500,000 per accident, and $500.000 for property damage.
15. LESSEE shall not do or permit sublessees or other persons to do
anything on the demised premises, or any part thereof, or bring or permit
anything to be brought on the premises or to be kept therein, nor permit the
use of the premises for any business or purpose, that would cause an increase
in the rate of any insurance on the demised premises.
16. LESSEE shall permit LESSOR, its agents, and other employees, to have
access to and to enter the leased premises at all reasonable and necessary
times to inspect the premises for any purpose connected with the repair,
improvement, care, and management of the premises or for any other purpose
reasonably connected with LESSOR'S interest in the premises and to perform any
work or other act found necessary on such inspection. This includes the
maintenance and removal, installation, construction or inspection or all
equipment owned by LESSOR located on the demised premises.
17. LESSEE shall not assign his interest under this lease, or any part
thereof, without the prior written consent of LESSOR, his heirs, executors,
administrators, or assigns. Any assignment by LESSEE without such consent
shall be voidable at the option of LESSOR, who may, on such breach,
immediately reenter and take possession of the demised premises, or any part
thereof, without giving any notice.
18. This lease shall renew itself from year to year unless either party
notifies the other in writing at least sixty (60) days prior to the end of the
current term of this lease.
FRUIT, DILL,
GOODWIN & SCHOLL
ATTORNEYS AT LAW
32 SHENANGO AVENUE
SHARON, PENNSYLVANIA 16146
0060 0302
<PAGE> 19
89 06230
19. All crops or plantings planted or placed on or in the demised
premises shall be the property of LESSOR upon termination of this lease even
though they were planted prior to the termination of this lease.
20. This lease may be canceled and terminated by either party hereto,
without penalty, on giving a notice of the intent to terminate to the other
party three months prior to the date of the intended termination, by sending
the required notice to the party to be notified, postage prepaid, by
registered mail, at the address specified for that party in this lease, or by
personal delivery to that party. This provision for termination shall not
operatenor become effective until LESSEE has been in possession of the demised
premises under this lease for at least six months. The giving of the notice
required herein shall not release either LESSOR or LESSEE from full and
faithful performance of all terms and conditions of this lease during the
continuing occupancy of LESSEE after the notice of termination but before
LESSEE actually vacates the premises.
21. LESSEE shall release LESSOR, or the representatives, agents, and
employees of LESSOR, from liability for any injury to LESSEE, or the agents,
employees, or guests of LESSEE, resulting from any cause whatsoever, except
injury or damage resulting from the wilful acts of LESSOR, or the
representatives, agents, and employees or LESSOR.
22. The demised premises are described as follows:
Being Lot No. 29 in the GEORGE LAW SUBDIVISION SECTION "D" recorded in the
Records of Mercer County on January _____, 1989, located in Findley Township,
Mercer County, Pennsylvania, being more particularly bounded and described as
follows:
Commencing at the southwest corner of the land in caption and the centerline of
Buckley Road 15 feet East from the centerline of a private lane; THENCE North 0
degrees 22' East, 500 feet along lands of George Law to an iron pin; THENCE
North 82 degrees 32' East, 600 feet along lands of George Law to an iron pin;
THENCE South 0 degrees 22' West, 500 feet along lands of George Law to a point;
THENCE South 82 degrees 32' West, along the centerline of the Clintonville Road,
600 feet to a point, the place of beginning. Containing 6.82 acres.
FRUIT, DILL,
GOODWIN & SCHOLL
ATTORNEYS AT LAW
32 SHENANGO AVENUE
SHARON, PENNSYLVANIA 16146
0060 0303
<PAGE> 20
89 06230
IN WITNESS WHEREOF, the parties have executed this lease at Mercer
County, Pennsylvania the day and year first above written.
/s/ GEORGE A. LAW
-------------------------------
GEORGE A. LAW
/s/ GEORGE C. LAW
-------------------------------
GEORGE C. LAW
/s/ JUDITH A. LAW
-------------------------------
JUDITH A. LAW
/s/ AUGUST THALMAN, JR.
-------------------------------
AUGUST THALMAN, JR.
/s/ BETTY THALMAN
-------------------------------
BETTY THALMAN
WILCOM/CELLULAR ONE
BY /s/ ALBERT H. PHARIS, JR.
----------------------------------
/s/ ALBERT H. PHARIS, JR., PRESIDENT
------------------------------------
I hereby certify that the precise
residence and complete mailing address
of the grantee is RD #5 Mercer PA
--------------------
16137
--------------------------------------
/s/ CHESTER B. SCHOLL JR.
--------------------------------------
--------------------------------------
State of Penna. ) Recorded in Recorder's Office
County of Mercer ) of said County in 1989
89 DR 06230
------------------------------------------------------
Witness my hand and Official Seal
this 23rd day of June A.D. 1989
[SEAL] /s/ MARILYN L. [SIGNATURE ILLEGIBLE]
------------------------------------
Recorder
FRUIT, DILL,
GOODWIN & SCHOLL
ATTORNEYS AT LAW
32 SHENANGO AVENUE
SHARON, PENNSYLVANIA 16146
0060 0304 26.50 SCHOLL 95060
89 06230
<PAGE> 21
ACKNOWLEDGEMENT
STATE OF Ohio :
: ss
COUNTY OF Mahoning :
ON THIS, this 13th day of June, 1989, before me, a Notary Public, the
undersigned officer, personally appeared Albert H. Pharis, Jr. who
acknowledged himself to be the President of Wilcom/Cellular One an Ohio
Partnership, and that he as such President, being authorized to do so,
executed the foregoing instruments for the purposes therein contained by
signing the name of the Partnership by himself as President.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
----------------------------------
Notary Public
MY COMMISSION EXPIRES: [SEAL]
/s/ CONSTANCE E. THOMPSON
CONSTANCE E. THOMPSON, NOTARY PUBLIC
State of Ohio
My Commission Expires February 17, 1994
89 06230
FRUIT, DILL,
GOODWIN & SCHOLL
ATTORNEYS AT LAW
32 SHENANGO AVENUE
SHARON, PENNSYLVANIA 16146
0060 0305
<PAGE> 22
89 06230
COMMONWEALTH OF PENNSYLVANIA :
: ss.
COUNTY OF ARMSTRONG :
ON THIS, the 3rd day of May, 1989, before me, the undersigned officer,
personally appeared GEORGE A. LAW, known to me (or satisfactorily proven) to
be the person whose name is subscribed to the within instrument, and
acknowledged that he executed same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ CANDICE L. FOLTA (SEAL)
---------------------
Notary Public
MY COMMISSION EXPIRES:
Notarial Seal [SEAL]
Candice L. Folta, Notary Public
Ford City Borough, Armstrong County
My Commission Expires July 31, 1989
Member, Pennsylvania Association of Notaries
STATE OF :
: ss
COUNTY OF :
ON THIS, this 17th day of May, 1989, before me, a Notary Public, the
undersigned officer, personally appeared GEORGE C. LAW and JUDITH A. LAW,
known to me (or satisfactorily proven) to be the persons whose names are
subscribed to the within instrument, and acknowledge that they executed same
for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ PAUL STROUSE, JR. (SEAL)
----------------------
Notary Public
MY COMMISSION EXPIRES: [SEAL]
NOTARIAL SEAL
PAUL STROUSE, JR., Notary Public
City of Philadelphia, Phila. County
My Commission Expires April 24th, 1993
STATE OF PENNSYLVANIA :
: ss
COUNTY OF ARMSTRONG :
ON THIS, this 3rd day of May, 1989, before me, a Notary Public, the
undersigned officer, personally appeared AUGUST THALMAN, JR. and BETTY
THALMAN, known to me (or satisfactorily proven) to be the persons whose names
are subscribed to the within instrument, and acknowledge that they executed
same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ CANDICE L. FOLTA (SEAL)
---------------------
Notary Public
MY COMMISSION EXPIRES: [SEAL]
Notarial Seal
Candice L. Folta, Notary Public
Ford City Borough, Armstrong County
My Commission Expires July 31, 1989
Member, Pennsylvania Association of Notaries
FRUIT, DILL,
GOODWIN & SCHOLL
ATTORNEYS AT LAW
32 SHENANGO AVENUE
SHARON, PENNSYLVANIA 16146
0060 0306
<PAGE> 23
REV 183 EX (9.86)
COMMONWEALTH OF REALTY TRANSFER TAX RECORDER'S USE ONLY
PENNSYLVANIA STATEMENT OF VALUE
DEPARTMENT OF REVENUE State Tax Paid -0-
BUREAU OF INDIVIDUAL See Reverse for
TAXES Instructions Book Number 89 06230
POST OFFICE BOX 8910
HARRISBURG, PA Page Number
17105-8910
Date Recorded
Complete each section and file in duplicate with Recorder of Deeds when (1)
the full value/consideration is not set forth in the deed, (2) when the deed
is without consideration, or by gift, or (3) a tax exemption is claimed. A
Statement of Value is not required if the transfer is wholly exempt from tax
based on: (1) family relationship or (2) public utility easement. If more
space is needed, attach additional sheet(s).
A. CORRESPONDENT - All inquiries may be directed to the following person:
Name Telephone Number:
Chester B. Scholl, Jr. Area Code (412) 981-4800
Street Address City State Zip code
32 Shenango Ave. Sharon PA 16146
B. TRANSFER DATA Date of Acceptance of
Document
Grantor(s)/Lessor(s) Grantee(s)/Lessee(s)
Wilcom/Cellular One George A. Law, et al.
Street Address Street Address
3910 S. Ave. RD #5
City State Zip Code City State Zip Code
Youngstown OH 44512 Mercer PA 16137
C. PROPERTY LOCATION
Street Address City, Township, Borough
RD #5 Mercer 6.9 Acres Findley Township
County School District Tax Parcel Number
Mercer Mercer
D. VALUATION DATA
1. Actual Cash 2. Other Consideration 3. Total Consideration
Consideration
1.00 + =
4. County Assessed 5. Common Level Ratio 6. Fair Market Value
Value Factor
X =
E. EXEMPTION DATA
1a. Amount of 1b. Percentage of
Exemption Claimed Interest Conveyed
100%
2. Check Appropriate Box Below for Exemption Claimed
/ / Will or intestate succession _____________________________________
(Name of Decedent) (Estate File Number)
/ / Transfer to Industrial Development Agency.
/ / Transfer to agent or straw party. (Attach copy of agency/straw party
agreement).
/ / Transfer between principal and agent. (Attach copy of agency/straw
trust agreement). Tax paid prior deed $___________________________.
/ / Transfers to the Commonwealth, the United States, and Instrumentalities
by gift, dedication, condemnation or in lieu of condemnation. (Attach
copy of resolution).
/ / Transfer from mortgagor to a holder of a mortgage in default. Mortgage
Book Number _______, Page Number ______________.
/ / Corrective deed (Attach copy of the prior deed).
/ / Statutory corporate consolidation, merger or division. (Attach copy of
articles).
/X/ Other (Please explain exemption claimed, if other than listed above.)
Real Estate Lease For Term of One Year
---------------------------------------------------------------------
---------------------------------------------------------------------
Under penalties of law, I declare that I have examined this Statement,
including accompanying information, and to the best of my knowledge and
belief, it is true, correct and complete.
Signature of Correspondent or Responsible Date
Party 6/23/89
/s/ Chester B. Scholl, Jr. -------
---------------------------
(SEE REVERSE)
0060 0307
<PAGE> 24
Jun 23 3:55 PM '89 89 DR 06228
Mercer
ASSIGNMENT OF LEASE AND REAL ESTATE PURCHASE AGREEMENT
A. ASSIGNMENT OF LEASE
THIS ASSIGNMENT OF LEASE AND REAL ESTATE PURCHASE AGREEMENT, made at
Mercer County, Pennsylvania, on this 31st day of MARCH, 1989 by and between:
GEORGE A. LAW; GEORGE C. LAW and JUDITH A. LAW, husband
and wife; and AUGUST THALMAN, JR. and BETTY THALMAN,
husband and wife, R.D. #5, Mercer, Pennsylvania 16137;
LESSORS;
A N D
WILCOM CORPORATION, an Ohio corporation, having its
principal place of business at 3910 South Avenue,
Youngstown, Ohio 44512,
LESSEE;
A N D
WILCOM/CELLULAR ONE, an Ohio Partnership, having its
principal place of business at 3910 South Avenue,
Youngstown, Ohio 44512,
ASSIGNEE;
WITNESSETH:
1. The LESSORS and LESSEE, in consideration of the covenants
hereinafter stipulated to and performed by ASSIGNEE, do hereby assign,
transfer and set over to the ASSIGNEE all of their rights, title and interest
to a lease governing the premises located at R.D. #5, Mercer, Findley
Township, County of Mercer and Commonwealth of Pennsylvania, and consisting of
approximately 6.9 acres, as originally described in a Lease dated July 21,
1987 between LESSORS and LESSEE, and recorded in the Records of Mercer County,
Pennsylvania on August 21, 1987.
2. The LESSORS are, by the execution of this Agreement, assigning any
rights to future rental payments for the use of this land.
3. This Agreement shall constitute written notification to LESSORS that
all rights and obligations are being assigned to the ASSIGNEE.
FRUIT, DILL,
GOODWIN & SCHOLL
ATTORNEYS AT LAW
32 SHENANGO AVENUE
SHARON, PENNSYLVANIA 16146
0060 0289
<PAGE> 25
89 06228
B. ASSIGNMENT OF REAL ESTATE PURCHASE OPTION
1. By the execution of this Agreement, the LESSEE is assigning and
transferring all rights, title or interest to an option contained in an Option
Agreement between the LESSORS and LESSEE dated July 21, 1987 and recorded in
the Records of Mercer County, Pennsylvania on August 21, 1987 to the ASSIGNEE.
2. By the execution of this Agreement, the LESSORS acknowledge that
they have received written notice of the assignment of this Option.
3. It is hereby acknowledged that at a meeting of the shareholders of
WILCOM CORPORATION held on the 15th day of March, 1989, for the purpose and
consideration of acting upon the assignment of said Option between WILCOM
CORPORATION and George Law et al. That as the result of said meeting, that
W.P. Williamson III was authorized to execute and deliver such agreement or
deed on behalf of the corporation in substantially the form presented to that
meeting for the purpose of effectuating the assignment of the rights under a
lease and purchase option agreement between George Law et al and WILCOM
CORPORATION dated July 21, 1987.
IN WITNESS WHEREOF, said LESSORS and LESSEE have hereunto set their hands
and seals the date first above written.
LESSORS:
/s/ GEORGE A. LAW (SEAL)
------------------
GEORGE A. LAW
/s/ GEORGE C. LAW (SEAL)
------------------
GEORGE C. LAW
/s/ JUDITH A. LAW (SEAL)
------------------
JUDITH A. LAW
/s/ AUGUST THALMAN, JR. (SEAL)
------------------------
AUGUST THALMAN, JR.
/s/ BETTY THALMAN (SEAL)
------------------
BETTY THALMAN
WILCOM CORPORATION
/s/ W.P. WILLIAMSON III (SEAL)
------------------------
W.P. WILLIAMSON, III/Pres. LESSEE
WILCOM/CELLULAR ONE
/s/ ALBERT H. PHARIS, JR. (SEAL)
--------------------------
ALBERT H. PHARIS, JR./Pres. ASSIGNEE
FRUIT, DILL,
GOODWIN & SCHOLL
ATTORNEYS AT LAW
32 SHENANGO AVENUE
SHARON, PENNSYLVANIA 16146
0060 0290
<PAGE> 26
89 06228
COMMONWEALTH OF PENNSYLVANIA :
: ss.
COUNTY OF ARMSTRONG :
ON THIS, the 15th day of April, 1989, before me, the undersigned officer,
personally appeared GEORGE A. LAW, known to me (or satisfactorily proven) to
be the person whose name is subscribed to the within instrument, and
acknowledged that he executed same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ CANDICE L. FOLTA (SEAL)
---------------------
Notary Public
MY COMMISSION EXPIRES
Notarial Seal
Candice L. Folta, Notary Public
Ford City Borough, Armstrong County
My Commission Expires July 31, 1989
Member, Pennsylvania Association of Notaries
STATE OF PENNSYLVANIA :
: ss
COUNTY OF PHILADELPHIA :
ON THIS, this 10th day of April, 1989, before me, a Notary Public, the
undersigned officer, personally appeared GEORGE C. LAW and JUDITH A. LAW,
known to me (or satisfactorily proven) to be the persons whose names are
subscribed to the within instrument, and acknowledge that they executed same
for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ PAUL STROUSE, JR.
---------------------
Notary Public
MY COMMISSION EXPIRES: [SEAL]
NOTARIAL SEAL
PAUL STROUSE, JR., Notary Public
City of Philadelphia, Phila. County
My Commission Expires April 24, 1989
STATE OF PENNSYLVANIA :
: ss
COUNTY OF ARMSTRONG :
ON THIS, this 15th day of April, 1989, before me, a Notary Public, the
undersigned officer, personally appeared AUGUST THALMAN, JR. and BETTY
THALMAN, known to me (or satisfactorily proven) to be the persons whose names
are subscribed to the within instrument, and acknowledge that they executed
same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ CANDICE L. FOLTA (SEAL)
---------------------
Notary Public
MY COMMISSION EXPIRES:
Notarial Seal
Candice L. Folta, Notary Public
Ford City Borough, Armstrong County
My Commission Expires July 31, 1989
Member, Pennsylvania Association of Notaries
FRUIT, DILL,
GOODWIN & SCHOLL
ATTORNEYS AT LAW
32 SHENANGO AVENUE
SHARON, PENNSYLVANIA 16146
0060 0291
<PAGE> 27
REV 183 EX
(9.86)
COMMONWEALTH OF REALTY TRANSFER TAX RECORDER'S USE ONLY
PENNSYLVANIA STATEMENT OF VALUE
DEPARTMENT OF State Tax Paid -0-
REVENUE See Reverse for
BUREAU OF Instructions Book Number 89 6228
INDIVIDUAL TAXES
POST OFFICE BOX Page Number
8910
HARRISBURG, PA Date Recorded
17105-8910
Complete each section and file in duplicate with Recorder of Deeds when (1)
the full value/consideration is not set forth in the deed, (2) when the deed
is without consideration, or by gift, or (3) a tax exemption is claimed. A
Statement of Value is not required if the transfer is wholly exempt from tax
based on: (1) family relationship or (2) public utility easement. If more
space is needed, attach additional sheet(s).
A. CORRESPONDENT - All inquiries may be directed to the following person:
Name Telephone Number:
Chester B. Scholl, Jr. Area Code (412) 981-4800
Street Address City State Zip code
32 Shenango Ave. Sharon PA 16146
B. TRANSFER DATA Date of Acceptance of Document
Grantor(s)/Lessor(s) Grantee(s)/Lessee(s)
George A. Law et al Wilcom/Cellular One
Street Address Street Address
RD #5 3910 South Ave.
City State Zip Code City State Zip Code
Mercer PA 16137 Youngstown OH 44512
C. PROPERTY LOCATION
Street Address City, Township, Borough
RD #5 Mercer Clintonville Road Findley Township
County School District Tax Parcel Number
Mercer Mercer
D. VALUATION DATA
1. Actual Cash 2. Other Consideration 3. Total Consideration
Consideration
1.00 + = 1.00
4. County 5. Common Level Ratio 6. Fair Market Value
Assessed Value Factor
X =
E. EXEMPTION DATA
1a. Amount of 1b. Percentage of Interest
Exemption Conveyed
Claimed
100%
2. Check Appropriate Box Below for Exemption Claimed
/ / Will or intestate succession _____________________________________________
(Name of Decedent) (Estate File Number)
/ / Transfer to Industrial Development Agency.
/ / Transfer to agent or straw party. (Attach copy of agency/straw party
agreement).
/ / Transfer between principal and agent. (Attach copy of agency/straw
trust agreement). Tax paid prior deed $________________.
/ / Transfers to the Commonwealth, the United States, and Instrumentalities
by gift, dedication, condemnation or in lieu of condemnation. (Attach
copy of resolution).
/ / Transfer from mortgagor to a holder of a mortgage in default. Mortgage
Book Number ____________, Page Number ___________.
/ / Corrective deed (Attach copy of the prior deed).
/ / Statutory corporate consolidation, merger or division. (Attach copy of
articles).
/X/ Other (Please explain exemption claimed, if other than listed above.)
An Assignment of Lessee's Rights Under Lease Recorded at 1987 DR 8912.
----------------------------------------------------------------------
----------------------------------------------------------------------
Under penalties of law, I declare that I have examined this Statement,
including accompanying information, and to the best of my knowledge and
belief, it is true, correct and complete.
Signature of Correspondent or Responsible Date
Party 6/23/89
/s/ Chester B. Scholl, Jr. -------
--------------------------
(SEE REVERSE)
0060 0293
<PAGE> 28
89 06228
ACKNOWLEDGEMENT
STATE OF Ohio :
: ss
COUNTY OF Mahoning :
ON THIS, this 13th day of June, 1989, before me, a Notary Public, the
undersigned officer, personally appeared W.P. Williamson, III who acknowledged
himself to be the President of Wilcom Corporation an Ohio Corporation, and
that he as such President, being authorized to do so, executed the foregoing
instruments for the purposes therein contained by signing the name of the
Corporation by himself as President.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ CONSTANCE E. THOMPSON
-------------------------
Notary Public
MY COMMISSION EXPIRES:
CONSTANCE E. THOMPSON, NOTARY PUBLIC
State of Ohio
My Commission Expires February 17, 1994
ACKNOWLEDGEMENT
STATE OF :
: ss
COUNTY OF :
ON THIS, this 13th day of June, 1989, before me, a Notary Public, the
undersigned officer, personally appeared Albert H. Pharis, Jr. who
acknowledged himself to be the President of Wilcom/Cellular One an Ohio
Partnership, and that he as such President, being authorized to do so,
executed the foregoing instruments for the purposes therein contained by
signing the name of the Partnership by himself as President.
<PAGE> 29
OWNERS ONLY MERCER
POLICY OF TITLE INSURANCE
COMMONWEALTH
LAND TITLE INSURANCE COMPANY
A Reliance Group Holdings Company POLICY NUMBER
115-491505
SCHEDULE A
Amount of Insurance: $10,000.00 File No. E-973219
Premium:
Date of Policy: June 23, 1989 , at 3:57 A.M.
1. Name of Insured:
WILCOM/CELLULAR ONE, an Ohio Partnership,
2. The estate or interest in the land described herein and which is covered
by this policy is
Fee simple and is at Date of Policy vested in:
WILCOM/CELLULAR ONE, an Ohio Partnership, by deed of George A. Law; George C.
Law and Judith A. Law, husband and wife; August Thalman, Jr. and Betty
Thalman, husband and wife, dated March 31, 1989, and recorded June 23, 1989,
in 1989 D.R. No. 06229, Records of Mercer County, Pennsylvania
3. The land referred to in this policy is described in the said instrument,
is situated in the County of
Mercer , State of Pennsylvania, and is
identified as follows:
Being Lot No. 29 in the GEORGE LAW SUBDIVISION SECTION "D" recorded in the
Records of Mercer County on March 23, 1989, located in Findley Township,
Mercer County, Pennsylvania, being more particularly bounded and described as
follows:
Commencing at the southwest corner of the land in caption and the centerline of
Buckley Road 15 feet East from the centerline of a private lane; THENCE North 0
degrees 22' East, 500 feet along lands of George Law to an iron pin; THENCE
North 82 degrees 32' East, 600 feet along lands of George Law to an iron pin;
THENCE South 0 degrees 22' West, 500 feet along lands of George Law to a point;
THENCE South 82 degrees 32' West, along the centerline of the Clintonville Road,
600 feet to a point, the place of beginning. Containing 6.82 acres.
Countersigned:
-----------------------------------------------------------------
Authorized Officer or Agent
American Land Title Association Owner's Policy - 1970 - Form B (Rev. 10-17-70
and 10-17-84) Form 1005-6 Schedule A
ORIGINAL
<PAGE> 30
Policy No. 115-491505
SCHEDULE B
File No. E-973219
This policy does not insure against loss or damage by reason of the following:
1. Unrecorded easements, discrepancies or conflicts in boundary lines,
shortage in area and encroachments which an accurate and complete survey would
disclose.
2. Possible additional assessments for taxes for new construction or for any
major improvements pursuant to provisions of Acts of Assembly relating thereto
with none being due and payable.
3. Federal Liens, if any, which are not entered for record in the Records of
Mercer County, Pennsylvania.
4. Rights or claims of parties other than Insured in actual possession of
any or all of the property.
5. Unfiled mechanics' or materialmen's liens.
6. Lease from Wilcom/Cellular One, an Ohio Partnership, to George A. Law;
George C. Law and Judith A. Law, husband and wife; August Thalman, Jr. and
Betty Thalman, husband and wife, encumbering the property set forth in
Schedule A-3 hereof in the amount of $1.00, said Lease being dated March 31,
1989, and recorded June 23, 1989 at 1989 D.R. No. 06230, Records of Mercer
County, Pennsylvania. Said Lease to run for one year or until March 30, 1990.
7. See attached sheets for reservations and/or restrictions regarding the
within described property.
American Land Title Association Owner's Policy -- 1970 -- Form B (Amended
10-17-70 and 10-17-84) Form 1005-17 Schedule B
ORIGINAL
<PAGE> 31
COMMONWEALTH LAND
[LOGO] TITLE INSURANCE COMPANY
A Reliance Group Holdings Company
File No. E-973219 Policy No. 115-491505
CONTINUED FROM SCHEDULE B-7
(a) By Article of Agreement dated December 11, 1979, and recorded June 6,
1983, at 1983 D.R. No. 1524, Records of Mercer County, George A. Law et ux
granted a five (5) year lease for the removal of coal from the larger tract of
which the land in caption is part. The records of Pennsylvania Department of
Environmental Resources indicate that the permit on this land is in the first
stage of reclaiming and that all mining has ceased and vegetation has been
replanted.
(b) By agreement dated August 20, 1981, and recorded December 7, 1981, at
1981 D.R. No. 4493, George A. Law et ux, grant, demise lease and let
exclusively unto Petroleum Development Co. the land in caption for the
purposes of exploring, drilling, and operating for, producing, storing,
removing and marketing oil and gas, or either of them, and/or their
constituents, injecting air, gas, water, brine and other substances from
whatever source into any subsurface strata, except potable water strata and
working coal strata, together with the exclusive rights to enter into, in, on
and upon said lands at all times for the aforesaid purposes and to possess,
use and occupy portions of said lands as may be necessary or convenient for
the aforesaid purposes, and to install and maintain lines to transport oil,
gas, water and electricity, whether produced on said land or other lands,
from, to, over and across said lands for a period of three (3) years and so
much longer thereafter as oil and gas, or either of them, and/or their
constituents, is produced in paying quantities from the premises or the
premises are used for storage of such products.
(c) By Article of Agreement dated May 29, 1979 and recorded July 17, 1979, at
1979 D.R. No. 2419, Records of Mercer County, George A. Law et ux granted unto
James F. Winner, Jr. et al, the right to drill and test for coal and option
then to mine for coal. The term of this agreement, if the option is
exercised, shall be four (4) years from the date hereof, provided, however,
that this agreement shall continue thereafter so long as operations for the
removal of coal are continuously conducted on the premises.
(d) By Article of Agreement dated June 7, 1974 and recorded June 11, 1974, at
1974 D.R. No. 1974, Records of Mercer County, George A. Law et ux granted unto
Blacktown Telephone Company, its successors or assigns, a right-of-way or
easement for, and the right to construct, operate, maintain, remove, and
rebuild telephone cable, wire and other underground appurtenances as the
grantee may from time to time require on, over and across the larger tract of
which the land in caption is part, and the right to enter upon said land at
any time for said purposes.
(e) By agreement dated June 12, 1973, and recorded July 17, 1973, at 1973
A.R. No. 930, George A. Law, grant, demise lease and let exclusively unto The
People's Natural Gas Company, the land in caption for the purposes of
exploring, drilling, and operating for, producing, storing, removing and
marketing oil and gas, or either of them, and/or their constituents, injecting
air, gas, water, brine and other substances from whatever source into any
subsurface strata, except potable water strata and working coal strata,
together with the exclusive rights to enter into, in, on and upon said lands
at all times for the aforesaid purposes and to possess, use and occupy
portions of said lands as may be necessary or convenient for the aforesaid
purposes, and to install and maintain lines to transport oil, gas, water and
electricity, whether produced on said land or other lands, from, to, over and
FORM 2001 (CONTINUATION - 3 PART)
ORIGINAL
<PAGE> 32
COMMONWEALTH LAND
[LOGO] TITLE INSURANCE COMPANY
A Reliance Group Holdings Company
File No. E-973219 Policy No. 115-491505
CONTINUED FROM SCHEDULE B-7
across said lands for a period of fifteen (15) years and so much longer
thereafter as oil and gas, or either of them, and/or their constituents, is
produced in paying quantities from the premises or the premises are used for
storage of such products.
(f) By Article of Agreement dated January 13, 1965 and recorded March 27,
1965, at 1965 A.R. No. 123, Records of Mercer County, George A. Law et ux
granted unto The People's Natural Gas Company, its successors and assigns, the
right-of-way to lay, maintain, operate, replace and remove pipe lines with the
necessary drip, gate valves an appliances for the transportation of water,
oil, gas and/or their constituents or products similar thereto, on, over and
through the larger tract of which the land in caption is part, with ingress
and egress to and from the same.
(g) By Article of Agreement dated August 10, 1964 and recorded January 4,
1965, at 1965 A.R. No. 2, Records of Mercer County, George A. Law et ux
granted unto Pennsylvania Power Company, its successors, assigns, grantees and
licensees, a right-of-way to construct, operate, maintain, remove, inspect and
patrol lines for the transmission and distribution of electric energy and the
operation of telephone and telegraph lines, including the necessary poles,
wires, anchors, grounds, guys, brace poles and other appurtenances upon, over,
under and across the larger tract of which the land in caption is part in as
nearly a straight as possible to avoid corners, trees and obstructions on the
property, including the right to construct the necessary side lines to serve
this or adjoining properties along with the right to trim trees and brush.
(h) By Article of Agreement dated June 26, 1964 and recorded June 29, 1964,
at 1964 A.R. No. 501, Records of Mercer County, George A. Law et ux granted
unto Mays Coal Company, the exclusive right or option to go upon the larger
tract of which the land in caption for the purpose of testing by drilling
boring for coal. If this option is taken, then the grantee shall have the
right to mine for and remove the coal on said land. Shall remain in effect
for five (5) years from the effective date or until all the coal which the
coal company determines can be mined, removed and sold with economy and profit
has been removed or so long as minimum advance royalties are being tendered by
coal operator.
(i) By Article of Agreement dated May 23, 1962, and recorded June 4, 1962, at
1962 A.R. No. 229, Records of Mercer County, George A. Law, et al, granted
unto the Pennsylvania Power Company, its successors, assigns, or lessees, the
right, privilege and authority to remove and keep removed by such methods as
grantee may elect, all trees and undergrowth within fifty (50') of an existing
right-of-way over a larger tract of which the land in caption is part.
(j) By agreement dated July 10, 1958, and recorded October 13, 1958, at Deed
Book V, Volume 3, Page 34, Russell R. Buckley et ux, grant, demise lease and
let exclusively unto Union Light and Heat Company, the land in caption for the
purposes of exploring, drilling, and operating for, producing, storing,
removing and marketing oil and gas, or either of them, and/or their
constituents, injecting air, gas, water, brine and other substances from
whatever source into any subsurface strata, except potable water strata and
working coal strata, together with the exclusive rights to enter into, in, on
and upon said lands at all times for the aforesaid purposes and
FORM 2001 (CONTINUATION - 3 PART)
ORIGINAL
<PAGE> 33
COMMONWEALTH LAND
[LOGO] TITLE INSURANCE COMPANY
A Reliance Group Holdings Company
File No. E-973219 Policy No. 115-491505
CONTINUED FROM SCHEDULE B--7
to possess, use and occupy portions of said lands as may be necessary or
convenient for the aforesaid purposes, and to install and maintain lines to
transport oil, gas, water and electricity, whether produced on said land or
other lands, from, to, over and across said lands for a period of fifteen (15)
years and so much longer thereafter as oil and gas, or either of them, and/or
their constituents, is produced in paying quantities from the premises or the
premises are used for storage of such products.
(k) By Article of Agreement dated December 13, 1948, and recorded January 4,
1949, at Deed Book L, Volume 3, Page 44, R.R. Buckley, et al, granted unto the
Pennsylvania Power Company, its successors, grantees, lessees, licensees and
assigns, the right privilege and authority to construct, operate, maintain and
remove lines for the transmission and distribution of electric energy, and the
operation of telegraph and telephone lines, including the necessary poles,
wires, guys, anchors, brace poles and other appurtenances upon, over and
across the property in the caption, in as nearly a straight line as possible
so as to avoid corners, trees and obstructions on the property, including the
necessary side lines to serve this or adjoining property and to cut or trim
trees or brush as is necessary.
(l) By Article of Agreement dated December 4, 1937, and recorded July 21,
1938, at Deed Book V, Volume 2, Page 168, R.R. Buckley et ux, granted unto
Pennsylvania Power Company, its successors, grantees, lessees, licensees and
assigns, the right, privilege and authority to construct, operate, maintain
and remove lines for the transmission and distribution of electric energy and
the operation of telegraph and telephone lines including the necessary poles,
wires, guys, anchors, brace poles and other appurtenances upon, over, under
and across the larger tract of which the land in caption is part including the
necessary side line to serve this and adjoining property and the further right
to extend lines and trim and cut trees or brush as needed.
(m) By Article of Agreement dated December 5, 1938, and recorded July 17,
1939, at Deed book X, Volume 2, Page 91, Robert T. Peters et ux, granted unto
the Pennsylvania Power Company, its successors, grantees, lessees, licensees,
and assigns, the right, privilege and authority to construct, operate,
maintain and remove lines for the transmission and distribution of electric
energy, and the operation of telegraph and telephone lines including the
necessary poles, wires, guys, anchors, brace poles and other appurtenances
upon, over, under and across the larger tract of which the land in caption is
part.
(n) The Final Plot of George Law Subdivision Section "D", Lot No. 29,
recorded in the records of Mercer County, on March 23, 1989 at 1989 P.L.
02579-40, shows land herein described to be subject to a 75' minimum building
setback line, a 25' future right-of-way, a 16 1/2' existing right-of-way, and
a 8' bituminous cartway, all from the centerline of Buckley Road.
FORM 2001 (CONTINUATION - 3 PART)
ORIGINAL
<PAGE> 34
MY COMMISSION EXPIRES:
NOTARIAL SEAL
PAUL STROUSE, JR., Notary Public
City of Philadelphia, Phila. County
My Commission Expires April 24, 1993
STATE OF PENNSYLVANIA :
: ss
COUNTY OF ARMSTRONG :
ON THIS, this 3rd day of May, 1989, before me, a Notary Public, the
undersigned officer, personally appeared AUGUST THALMAN, JR. and BETTY
THALMAN, known to me (or satisfactorily proven) to be the persons whose names
are subscribed to the within instrument, and acknowledge that they executed
same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ CANDICE L. FOLTA (SEAL)
---------------------
Notary Public
MY COMMISSION EXPIRES:
Notarial Seal
Candice L. Folta, Notary Public
Ford City Borough, Armstrong County
My Commission Expires July 31, 1989
Member, Pennsylvania Association Notaries
DEED
GEORGE A. LAW, et al
TO
WILCOM/CELLULAR ONE,
an Ohio Partnership
WARRANTY
Chester B. Scholl, Jr., Esq.
FRUIT, DILL, GOODWIN & SCHOLL
32 Shenango Avenue
Sharon, PA 16146
do hereby certify that the precise residence and complete post
office address of the within named grantee is 3910 South Ave Youngstown Ohio
44512
/s/ CHESTER B. SCHOLL JR.
19 -------------------------
Attorney for grantee
COMMONWEALTH OF PENNSYLVANIA }
} ss.
County of MERCER }
[SEAL] RECORDED on this 23RD day of JUNE A.D. 1989, in the Recorder's
office of the said County, in Deed Book Vol. ________, Page
89 DR 06229
Given under my hand and the seal of the said office the date above
written.
/s/ MARILYN L. LELESAY, Recorder.
---------------------------------
0060 0297
<PAGE> 35
TOGETHER with all and singular the said property, improvements, ways,
waters, water courses, rights, liberties, privileges, hereditaments and
appurtenances whatsoever thereunto belonging or in anywise appertaining, and
the reversions and remainders, rents, issues and profits thereof, and all the
estate, right, title, interest, property, claim and demand whatsoever, of the
said parties of the first part, in law, equity or otherwise howsoever, of, in
and to the same and every part thereof,
TO HAVE AND TO HOLD the said piece or parcel of land
hereditaments and premises hereby granted or mentioned, and intended so to be,
with the appurtenances, unto the said party of the second part, its successors
and assigns, to and for the only proper use and behoof of the said party of
the second part, its successors and assigns forever.
AND the said grantors hereby covenant and agree that they and each of
them will warrant GENERALLY the property hereby conveyed.
Mercer Area School District
Mercer County, Pennsylvania
Realty Transfer Tax
$ 44.30
-----------------------------
COMMONWEALTH OF PENNSYLVANIA Recorder of Mercer County, Agent
DEPARTMENT OF REVENUE
REALTY FINDLEY
TRANSFER 88.60 Mercer County, Pennsylvania
TAX P.B.11328 REALTY TRANSFER TAX
$ 44.30
-----------------------------
Mercer County Recorder, Agent
IN WITNESS WHEREOF, the said parties of the first part have to these
presents set their hands and seals. Dated the day and year first above
written.
Signed, Sealed and Delivered /s/ GEORGE A. LAW [SEAL]
in the Presence of --------------------------------
GEORGE A. LAW
/s/ GEORGE C. LAW [SEAL]
--------------------------------
- -------------------------------------- GEORGE C. LAW
- -------------------------------------- /s/ JUDITH A. LAW [SEAL]
--------------------------------
JUDITH A. LAW
/s/ AUGUST THALMAN, JR. [SEAL]
--------------------------------
AUGUST THALMAN, JR.
/s/ BETTY THALMAN [SEAL]
--------------------------------
BETTY THALMAN
ACKNOWLEDGEMENT
COMMONWEALTH OF PENNSYLVANIA :
: ss.
COUNTY OF Armstrong :
ON THIS, the 3rd day of May, 1989, before me, the undersigned officer,
personally appeared George A. Law, known to me (or satisfactorily proven) to
be the person whose name is subscribed to the within instrument, and
acknowledged that he executed same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ CANDICE L. FOLTA (SEAL)
---------------------
Notary Public
MY COMMISSION EXPIRES:
Notarial Seal [SEAL]
Candice L. Folta, Notary Public
Ford City Borough, Armstrong County
My Commission Expires July 31, 1989
Member, Pennsylvania Association of Notaries
<PAGE> 36
221AT - Warranty Dead to a Corp. from 89 DR 06229
Individual or Corp. Henry Hall, Inc., Indiana, Pa.
THIS INDENTURE,
MADE THE 31st day of MARCH in the year of our Lord one thousand nine hundred
eighty-nine (1989)
BETWEEN
GEORGE A. LAW; GEORGE C. LAW and JUDITH A. LAW, husband
and wife; AUGUST THALMAN, JR. and BETTY THALMAN, husband
and wife, of the Borough of Mercer, County of Mercer and
Commonwealth of Pennsylvania,
of the first part,
and
Parties
WILCOM/CELLULAR ONE, an Ohio Partnership,
created and existing under the laws of the state of OHIO having its principal
office in 3910 South Avenue, Youngstown, Mahoning County, Party of the second
part, WITNESSETH, that the said parties of the first part, for and in
consideration of the sum of TEN THOUSAND AND NO/100 ($10,000.00) Dollars,
lawful money of the United States of America, unto them well and truly paid by
the said party of the second part, at and before the sealing and delivery of
these presents, the receipt whereof is hereby acknowledged, have grated,
bargained, sold, aliened, enfeoffed, released, conveyed and confirmed, and by
these presents do grant, bargain, sell, alien, enfeoff, release, convey and
confirm unto the said party of the second part, its successors, and assigns,
Being Lot No. 29 in the GEORGE LAW SUBDIVISION SECTION "D" recorded in the
Records of Mercer County on March 23, 1989, located in Findley Township,
Mercer County, Pennsylvania, being more particularly bounded and described as
follows:
Commencing at the southwest corner of the land in caption and the centerline
of Buckley Road 15 feet East from the centerline of a private lane; THENCE
North 0 degrees 22' East, 500 feet along lands of George Law to an iron pin;
THENCE North 82 degrees 32' East, 600 feet along lands of George Law to
a point; THENCE South 82 degrees 32' West, along the centerline of the
Clintonville Road, 600 feet to a point, the place of beginning. Containing
6.82 acres.
BEING part of the same piece or parcel of land conveyed to George A. Law, et
al, by deed of George A. Law, et ux, dated February 20, 1978 and recorded
March 16, 1978 at 87 D.R. No. 0744, Records of Mercer County, Pennsylvania.
IN ACCORDANCE with the provisions of "The Solid Waste Management Act of 1980"
we, the undersigned grantor, hereby certify to our actual knowledge that there
is not presently, nor has there ever been, any disposal of "hazardous waste"
on the piece or parcel of land herein conveyed.
<PAGE> 37
JUNE 23, 3:56 PM 1989
REV 183 EX (7.86)
COMMONWEALTH OF REALTY TRANSFER TAX RECORDER'S USE ONLY
PENNSYLVANIA STATEMENT OF VALUE
DEPARTMENT OF State Tax Paid 88.60
REVENUE See Reverse for
BUREAU OF Instructions Book Number 89 6229
INDIVIDUAL TAXES
POST OFFICE BOX Page Number
8910
HARRISBURG, PA Date Recorded
17105-8910
Complete each section and file in duplicate with Recorder of Deeds when (1)
the full consideration is not set forth in the deed, (2) when the deed is
without consideration, or by gift, or (3) a tax exemption is claimed. A
Statement of Value is not required if the transfer is wholly exempt from tax
based on: (1) family relationship or (2) public utility easement. If more
space is needed, attach additional sheet(s).
A. CORRESPONDENT - All inquiries may be directed to the following person:
Name Telephone Number:
Chester B. Scholl, Jr., Esquire Area Code (412) 981-4800
Street Address City State Zip code
32 Shenango Ave. Sharon PA 16146
B. TRANSFER DATA Date of Acceptance of Document
Grantor(s)/Lessor(s) Grantee(s)/Lessee(s)
George A. Law et al Wilcom/Cellular One
Street Address Street Address
R.D. #5 3910 South Ave.
City State Zip Code City State Zip Code
Mercer Pennsylvania 16137 Youngstown, OH 44512
C. PROPERTY LOCATION
Street Address City, Township, Borough
R.D. #5, (6.9 acres approx.) Mercer, Findley Township
County School District Tax Parcel Number
Mercer County
D. VALUATION DATA
1. Actual Cash 2. Other Consideration 3. Total Consideration
Consideration
10,000.00 + = $10,000.00
4. County Assessed 5. Common Level Ratio 6. Fair Market Value
Value Factor
X =
E. EXEMPTION DATA
1a. Amount of 1b. Percentage of
Exemption Claimed Interest Conveyed
$11.40
2. Check Appropriate Box Below for Exemption Claimed
/ / Will or intestate succession _____________________________________________
(Name of Decedent) (Estate File Number)
/ / Transfer to Industrial Development Agency.
/ / Transfer to Agent or Straw Party. (Attach copy of agency/straw party
agreement).
/ / Transfer between principal and agent. (Attach copy of agency/straw
trust agreement). Tax paid prior deed $_______________________.
/ / Transfers to the Commonwealth, the United States, and Instrumentalities
by gift, dedication, condemnation or in lieu of condemnation. (Attach
copy of resolution).
/ / Transfer from mortgagor to a holder of a mortgage in default. Mortgage
Book Number ______, Page Number ____________.
/ / Corrective deed (Attach copy of the prior deed).
/ / Statutory Corporate Consolidation, Merger or Division. (Attach copy of
articles).
/X/ Other (Please explain exemption claimed, if other than listed above.)
Reason for reduction in transfer tax payment - Due to a previous
----------------------------------------------------------------------
payment made when a long term Lease was recorded between George Law et
----------------------------------------------------------------------
ux and Wilcom Corporation dated 7/21/87, recorded 8/21/87 Records of
----------------------------------------------------------------------
Mer. Co. at 87 D.R. No. 8912.
----------------------------------------------------------------------
Under penalties of law, I declare that I have examined this Statement,
including accompanying information, and to the best of my knowledge and
belief, it is true, correct and complete.
Signature of Correspondent or Responsible Date
Party 6/23/89
/s/ CHESTER B. SCHOLL, JR. -------
--------------------------
(SEE REVERSE)
0060 0296
<PAGE> 1
EXHIBIT 10.11
COPY OF THE RESOLUTIONS OF THE
PARTNER'S COMMITTEE OF WILCOM CELLULAR
The undersigned, members of the Partner's Committee, hereby certify that
the following resolutions of the Partner's Committee of Wilcom Cellular were
duly adopted at a meeting of said Committee, duly called and held on May 13,
1993, at which a quorum was present and voting.
RESOLVED: That the Partner's Committee hereby authorizes Wilcom Cellular
to purchase the following assets from WKBN for the total price of $700,000.
- Complete Warren, Ohio facility located at Elm Road including office
building, real estate, furniture, cellular tower and cell site
building.
- Cell site building and tower located at 3930 Sunset Boulevard,
Youngstown, Ohio.
FURTHER RESOLVED: That the management of Wilcom Cellular is hereby
authorized to take all steps and execute all documents necessary for the
purchase of said assets for $700,000.
FURTHER RESOLVED: That the revised rental agreements for the rental of
additional WKBN property which is attached is hereby approved.
/s/ WARREN P. WILLIAMSON, III
------------------------------
Warren P. Williamson, III
/s/ ELDEN J. HEINZ
------------------------------
Elden J. Heinz
/s/ ALBERT H. PHARIS, JR.
------------------------------
Albert H. Pharis, Jr.
<PAGE> 2
GROUND LEASE
BETWEEN WKBN BROADCASTING CORPORATION ("Lessor")
AND
YOUNGSTOWN CELLULAR TELEPHONE COMPANY ("Lessee")
Table of Contents
Preamble-Parties and Addresses
ARTICLE 1. DEMISE OF LEASED LAND
1.01. Description
1.02. Land Subject to Liens, Encumbrances, and Other Conditions
1.03. Ingress-Egress Easement Granted by Lessor
1.04. Exception of Mineral Rights
1.05. Lessor's Covenant to Provide Water
ARTICLE 2. TERM AND RENT
2.01. Term of Lease
2.02. Holdover
2.03. Rent
2.04. Rent Adjustment Dates and Limits on Adjustments
2.05. Determination by Agreement or Appraisers
(a) Agreement or Selection of Appraisers
(b) Appraisal
(c) Hearing and Determination
(d) Cost of Appraisal
ARTICLE 3. USE AND CONSTRUCTION OF IMPROVEMENTS
3.01. Primary Use
3.02. Lessee's Right to Construct Buildings and Other
Improvements
3.03. Lessor's Assistance With Zoning and Building Permits
ARTICLE 4. OPERATING COSTS AND IMPOSITIONS
4.01. Rent to be Absolutely Net
4.02. Definition of Operating Costs
4.03. Definition of Impositions
ARTICLE 5. LAWS AND GOVERNMENTAL REGULATIONS
5.01. Compliance With Legal Requirements
5.02. Contest of Legal Requirements
ARTICLE 6. LIENS AND ENCUMBRANCES
6.01. Creation Not Allowed
6.02. Discharge After Filing or Imposition
6.03. Lessor Not Liable for Labor, Services, or
Materials Furnished to Lessee
<PAGE> 3
ARTICLE 7. INSURANCE AND INDEMNITY
7.01. Fire and Extended Coverage
7.02. Property and Personal Injury Liability Insurance
7.03. Construction Liability Insurance
7.04. Certificates of Insurance
7.05. Indemnification of Lessor
ARTICLE 8. DAMAGE OR DESTRUCTION OF IMPROVEMENTS
8.01. Destruction or 40 Percent Damage
8.02. Damage Less Than 40 Percent
8.03. Definitions
ARTICLE 9. CONDEMNATION
9.01. Interests of Parties
9.02. Termination on Total Taking
9.03. Termination on Partial Taking
9.04. Continuation With Rent Abatement After Partial Taking
9.05. Voluntary Conveyance
ARTICLE 10. LEASEHOLD MORTGAGES
10.01. Leasehold Mortgages Permitted
10.02. Provisions for Benefit of Leasehold Mortgagees
10.03. Notice of Default Served on Leasehold Mortgagees
10.04. Monetary Default
10.05. Curable Nonmonetary Default
10.06. Noncurable Default
10.07. Mortgagee's Option to Obtain New Lease
10.08. Terms and Conditions of New Lease
10.09. Obligations of New Lessee
10.10. Performance of Terms by Leasehold Mortgagee
10.11. Assignment of Lease or New Lease by Leasehold Mortgagee
10.12. Written Consent of Leasehold Mortgagees
ARTICLE 11. DEFAULT
11.01. Events of Default
11.02. Notice of Election to Terminate Lessee's Possession
11.03. Lessor's Entry After Termination of Lessee's Possession
11.04. Lessee's Liability for Accrued Rent
11.05. Reletting Land and Improvements
11.06. Rent From Reletting
11.07. Costs Incurred Due to Breach
ARTICLE 12. EXPIRATION OF TERM
12.01. Lessee's Delivery of Possession After Termination or
Expiration
12.02. Lessee's Removal of Movable Objects
ARTICLE 13. GENERAL PROVISIONS
13.01. No Waiver of Breach by Lessor's Actions
<PAGE> 4
13.02. Waiver of Any Provision Must be Written
13.03. Entire Agreement
13.04. Notices
13.05. Lessor's Entry and Inspection of Premises
13.06. Partial Invalidity or Unenforceability
13.07. Meaning of Term "Lessor"
13.08. Satisfaction of Judgment Against Lessor
13.09. Individuals Benefited by Lease
13.10. Assignment and Subletting
13.11. Attornment of Sublessee
13.12. Quiet Enjoyment
ARTICLE 14. DOCUMENTATION AND RECORDING OF LEASE
14.01. Estoppel Certificates
14.02. Memorandum of Lease and Recording Execution and
Acknowledgements Exhibits
ARTICLE 15. LESSOR'S OPTION TO PURCHASE
15.01. Notice of intent to purchase leasehold.
15.02. Appraisal
15.03. Hearing and Determination
15.04. Cost of Appraisal
15.05. Exercise of Option; holdover
15.06. Penalty in default of exercise
<PAGE> 5
GROUND LEASE
This ground lease ("Lease") is made on the 15th day of December, 1987
between WKBN Broadcasting Corporation ("Lessor"), an Ohio corporation with a
principal place of business at 3930 Sunset Blvd., Youngstown, Ohio 44512, and
Youngstown Cellular Telephone Company ("Lessee"), an Ohio partnership, with a
principal place of business at 3930 Sunset Blvd., Youngstown, Ohio 44512.
ARTICLE 1. DEMISE OF LEASED LAND
Description of Leased Land
1.01. Lessor leases to Lessee, and Lessee rents and accepts from Lessor
a parcel of land in Boardman Township, Mahoning County, Ohio ("Leased Land" or
"Leased Premises"), graphically depicted on Exhibit A and more particularly
described by metes and bounds in Exhibit B, both attached to this Lease and
made a part of it. In the event of any inconsistency between the depiction of
the property in Exhibit A and the description in Exhibit B, the metes and
bounds description in Exhibit B shall be the authoritative description.
Land Subject to Liens, Encumbrances, and Other Conditions
1.02. This Lease and the Leased Land are subject to all present liens,
encumbrances, conditions, rights, easements, restrictions, rights of way,
covenants, other matters of record, and zoning and building laws, ordinances,
regulations, and codes affecting or governing the Leased Land or that may
affect and govern the Leased Land after the execution of this Lease, and all
matters that may be disclosed by inspection or survey.
Ingress-Egress Easement Granted by Lessor
1.03. Lessor hereby grants an easement for ingress and egress and right
of way adjacent to the southside of the Leased premises, which is particularly
described in Exhibit C hereto. The easement is for the benefit of the leased
premises and attaches thereto and is made a part thereof and shall be deemed
to run with the land. The right of way, easements, rights, and privileges
herein granted shall be used only for the purpose of providing pedestrian and
vehicular ingress and egress between the paved road lying east of the leased
property and the leased land. This easement shall terminate upon the
termination of the lease for any reason. Lessor covenants to maintain the
right of way in good condition.
Exception of Mineral Rights
1.04. Lessor hereby reserves all of the oil and gas and other minerals
of the Leased Land.
1
<PAGE> 6
Lessor's Covenant to Provide Water
1.05. Lessor and Lessee hereby acknowledge that they are both aware
that there is no water main along South Avenue available for tap in, although
sewers, gas and electric service are available. In order to make the Leased
Premises improvable without installing a water main along South Avenue, Lessor
hereby covenants to Lessee to provide water to the edge of the Leased Premises
adjoining Lessor's property. The water will be piped underground by means of a
pipe at least 2" in diameter which will tie into the water main on Sunset
Boulevard. Lessor shall bear the cost of installing and maintaining the
portion of the pipe on its property only. This covenant is for the benefit of
the leased premises and shall be deemed to run with the land. A specific
easement of particular location is not granted hereby. Lessor at anytime
during the term of the lease may (at Lessor's expense) change the location of
the pipe, and, as reasonably necessary, may enter the Leased Premises, change
the location of the pipe on the Leased Property, and interrupt water service.
This covenant shall terminate upon the termination of the lease for any
reason or upon the availability of water along South Avenue. The expense of
tap in to any future water main along South Avenue shall be paid by Lessor.
If the Leased Premises are assessed by any taxing authority for the
construction of a water main along South Avenue, then the assessment (or
portion thereof attributable to a water main) shall bee paid by Lessor.
ARTICLE 2. TERM AND RENT
Term of Lease
2.01. Lessee's obligation to pay rent and occupy the Leased Land in
accordance with this Lease shall be for a term of ninety-nine years ("Term"),
commencing on the date of this lease and ending on the anniversary
date of this lease in the year 2086, unless terminated at an earlier date for
any reason set forth in this Lease.
Holdover
2.02. If Lessee holds over after the expiration of the Lease Term and
continues to pay rent without objection from Lessor, then Lessee's tenancy
shall be from month to month on all the terms and conditions of this Lease.
Rent
2.03. Lessee shall pay rent to Lessor, without notice or
2
<PAGE> 7
demand and without abatement, reduction, or set-off for any reason, at the
office of Lessor or any other place that Lessor may designate in writing. The
rent shall be payable at the following annual rates for the following periods
of the Lease:
Inception through December 31, 1988: S4,000.00
January 1, 1989 through December 31, 1990: $8,000.00
After December 31, 1990, rent shall be payable at the minimum annual rate of
$12,000.00 (Minimum Rent Amount), subject to adjustment as provided in this
Article 2.
Rent shall be payable in equal monthly installments in advance on the
first day of each calendar month. If any payment is not received within ten
days after the date when due, Lessee shall pay a late charge of ten percent of
the payment due for that month. This late charge payment shall be included
with the next monthly installment of rent, or on the date this Lease is
terminated, whichever is earlier. If this Lease is to commence on a date other
than the first day of a month, then on the date of commencement Lessee shall
pay rent for the fractional portion of the month on a per diem basis from the
date of commencement until the first day of the next succeeding month.
Rent Adjustment Dates and Limits on Adjustments
2.04. Rental rates under this Lease are subject to adjustment
periodically at five year intervals, the first adjustment date to be December
31, 1995. No rental amount, as adjusted for a rental period shall exceed the
quantity of the factor of 1.05 raised to the power of the number of years of
the lease term that have expired since December 31, 1990, multiplied by the
Minimum Rent Amount. No adjustment shall yield a rental rate below the Minimum
Rent Amount.
Determination by Agreement or Appraisers
2.05. The adjusted annual rental rates shall be determined
in the following manner:
Agreement or Selection of Appraisers
(a) Six months before the termination of any five year rental period,
Lessor shall propose a rental rate for the next period. If the proposed rate
is accepted in writing by Lessee at least ninety days before the termination
of the rental period, that rate shall be the new rental rate for the
succeeding period.
If the proposed rate is not accepted in writing by Lessee at least
ninety days before the termination of the rental period, Lessor and Lessee
shall each select an MAI (that is, a member of
3
<PAGE> 8
the American Institute of Real Estate Appraisers) real estate appraiser, and
the two appraisers so selected shall select a third MAI real estate appraiser.
Lessor shall, on selection of the appraisers, immediately fix a time and place
for a conference between the parties and the appraisers for the purpose of
agreeing on the general instructions to be given the appraisers.
Appraisal
(b) The appraisers selected by Lessee and Lessor shall within
forty-five days after receiving their instructions, deliver a copy of their
fully documented written appraisals to Lessee, Lessor, and the third
appraiser. The third appraiser shall analyze the appraisals and conduct any
investigations, interviews, and discussions with or without the other
appraisers or either of them, that he or she may deem necessary.
Hearing and Determination
(c) At a time no more than fifteen days after submission of the written
appraisals and at a place that the three appraisers shall name, the respective
parties may have representatives appear and argue any appraisal matters that
the parties deem appropriate. within five days after that time, the appraisers
shall make a final written determination of the rental rate for the period. If
the appraisers are unable to agree on a rental rate for the period, then the
final determination of the rate shall be made by the third appraiser.
Cost of Appraisal
(d) Each party shall pay the cost of the appraiser chosen by that party,
and the parties shall share the cost of the third appraiser equally.
ARTICLE 3. USE AND CONSTRUCTION OF IMPROVEMENTS
Primary Use
3.01. Lessee shall have the right to use the Leased Land for any lawful
purposes. In this connection, and without detracting from the foregoing, it is
understood and agreed that the primary purpose for which the Leased Land has
been leased is for the development and construction of buildings for
commercial and office use. Lessee covenants to keep the grounds, parking lots,
buildings and other improvements well maintained and in good repair. Lessee
covenants not to commit waste. Lessee covenants to keep the grounds well mowed
and attractive.
4
<PAGE> 9
Lessee's Right to Construct Buildings and Other Improvements
3.02. Lessee shall have the right to construct structures, buildings,
and other improvements ("Improvements") on the Leased Land, at Lessee's sole
cost and expense, without the prior approval of Lessor. In connection with any
construction, Lessee shall be permitted to grade, level, and fill the land,
remove trees and shrubs, install roadways and walkways, and install utilities,
provided all of the foregoing serve the Improvements erected on the Leased
Land. Lessor shall have no liability for any costs or expenses in connection
with the construction of Improvements on the Leased Land. Provided however, no
improvements by Lessee shall block or impede the drainage of surface water
from Lessor's land on the west and south of the Leased Land onto the Leased
Land; Lessee agrees that the Leased Land is subservient to Lessor's Land for
drainage purposes and Lessee covenants to Lessor not to impede the natural
flow of surface water onto the Leased Land.
Lessor's Assistance With Zoning and Building Permits
3.03. Lessor shall assist Lessee in applying for and obtaining any
zoning changes or variances, use permits, or building permits necessary for
the construction of buildings or other improvements on the Leased Land.
ARTICLE 4. OPERATING COSTS AND IMPOSITIONS
Rent to be Absolutely Net
4.01. The rent paid to Lessor in accordance with Article 2 of this
Lease shall be absolutely net to Lessor. This means that, in addition to the
rent, Lessee shall pay all "Operating Costs" and "Impositions," defined in
Paragraphs 4.02 and 4.03, below, in connection with the Leased Land. Provided
however, that Lessor shall bear the cost of any assessment for a water main
along South Avenue, see ss.1.05.
Definition of Operating Costs
4.02. "Operating Costs" shall include, but shall not be
limited to, all expenses paid or incurred in connection with the
following activities:
(1) Repairs, maintenance, replacements, painting, and redecorating,
(2) Landscaping, gardening and mowing.
(3) Snow removal.
(4) Insurance.
(5) Heating, ventilating, and air conditioning repair and maintenance.
(6) Water, sewer, gas, electricity, fuel oil, and other utilities.
5
<PAGE> 10
(7) Rubbish removal.
(8) Supplies and sundries.
(9) Sales or use taxes on supplies or services.
(10) Costs of wages and salaries for all persons engaged in the
operation, maintenance, and repair of the Leased Land, including
fringe benefits and Social Security taxes.
(11) All other expenses, whether or not mentioned in this Lease, that are
not incurred with respect to operation of the Leased Land, including
any replacements if necessary for repairs and maintenance or
otherwise.
Definition of Impositions
4.03. "Impositions" shall include all fines and levies that result from
construction activities or the normal operation of the premises on the Leased
Land, all real estate property taxes, assessments, and other governmental
charges that are laid, assessed, levied, or imposed on the Leased Land and
become due and payable during the term of this Lease, or any lien that arises
during the time of this Lease on the Leased Land and Improvements, any portion
of these, or the sidewalks or streets in front of or adjoining the Leased Land
and Improvements.
ARTICLE 5. LAWS AND GOVERNMENTAL REGULATIONS
Compliance With Legal Requirements
5.01 Lessee shall promptly comply with all laws and ordinances, and all
orders, rules, regulations, and requirements of federal, state, and municipal
governments and appropriate departments, commissions, boards, and officers of
these governments ("legal Requirements") throughout the term of this Lease,
and without cost to Lessor. Lessee shall promptly comply with these Legal
Requirements whether they are foreseen or unforeseen, or ordinary or
extraordinary.
Contest of Legal Requirements
5.02. Lessee shall have the right, after prior written notice to
Lessor, to contest the validity of any Legal Requirements by appropriate legal
proceedings, provided Lessor shall not be subject to any criminal or civil
liability as a result of any legal contest. Lessee shall indemnify and hold
Lessor harmless from all loss, claims, and expenses, including reasonable
attorneys' fees, as a result of Lessee's failure to comply with Legal
Requirements or any contest relating to Legal Requirements.
6
<PAGE> 11
ARTICLE 6. LIENS AND ENCUMBRANCES
Creation Not Allowed
6.01. Lessee shall not create, permit, or suffer any mechanics' or
other lien or encumbrance on or affecting the Leased Land or the fee estate or
reversion of Lessor except as specifically permitted in this Lease.
Discharge After Filing or Imposition
6.02. If any lien or encumbrance shall at any time be filed or imposed
against the Leased Land or the fee estate or reversion of Lessor, Lessee shall
cause the lien or encumbrance to be discharged of record within forty-five days
after notice of the filing or imposition by payment, deposit, bond, order of a
court of competent jurisdiction, or as otherwise permitted by law. If Lessee
shall fail to cause the lien or encumbrance to be discharged within the
forty-five day period, then in addition to any other right or remedy of Lessor,
Lessor shall be entitled but not obligated to discharge the lien or encumbrance
either by paying the amount claimed to be due or by procuring the discharge by
deposit or by bonding proceedings. In any event, Lessor shall be entitled to
compel the prosecution of an action for the foreclosure of any lien or
encumbrance by the lienor and to pay the amount of the judgment for and in favor
of the lienor with interest, costs, and allowances if Lessor elects to take this
action. All amounts paid by Lessor and all of its costs and expenses in
connection with the actions taken by Lessor, including court costs, reasonable
attorney's fees, and interest at the highest legal rate in effect at the time
these moneys are due, shall be deemed to be additional rent under this Lease and
shall be paid by lessee to lessor promptly on demand by Lessor.
Lessor Not Liable for Labor, Services, or
Materials Furnished to Lessee
6.02. Lessor shall not be liable for any labor, services, or materials
furnished or to be furnished to Lessee or to any sublessee in connection with
any work performed on or at the Leased Land, and no mechanics' lien or other
lien or encumbrance for any labor, services, or materials shall attach to or
affect Lessor's fee estate or reversion in the Leased Land.
ARTICLE 7. INSURANCE AND INDEMNITY
Fire and Extended Coverage
7.01. At all times during the Term of this Lease, Lessee shall
maintain, at its sole cost, insurance covering the Improvements including,
without limitation, all Improvements now
7
<PAGE> 12
located on the leased Land or that may be erected on the Leased Land, against
loss or damage by fire, vandalism, malicious mischief, windstorm, hail, smoke,
explosion, riot, civil commotion, vehicles, aircraft, flood, or earthquake,
together with any other insurance that Lessor may require from time to time.
The insurance shall be carried by insurance companies authorized to transact
business in Ohio, selected by Lessee and approved by Lessor and any Lender
under Article 10 of this Lease. In addition, the following conditions shall be
met:
(a) The insurance shall be in amounts no less than one hundred percent
of the replacement cost of the buildings and other improvements, exclusive of
foundations and below-ground improvements (but sufficient to satisfy the
requirements of any coinsurance clause).
(b) The insurance shall be maintained for the mutual benefit of Lessor
and Lessee, any succeeding owners of the fee title in the Leased Land, and any
successors and assigns of this Lease. The insurance policy or policies shall
name both Lessor and Lessee as insureds.
(c) Any and all fire or other insurance proceeds that become payable at
any time during the term of this lease because of damage to or destruction of
any Improvements on the Leased Land shall be paid to Lessee and applied by
Lessee toward the cost of repairing, restoring, and replacing the damaged or
destroyed Improvements in the manner required by Article 8 of this Lease.
However, if Lessee elects to exercise the option given under Article 8 of this
Lease to terminate this Lease because of damage to or destruction of
Improvements, then any and all fire or other insurance proceeds that become
payable because of that damage or destruction shall be applied as follows:
(1) Proceeds shall be applied first toward the reduction of the
unpaid principal balance of any and all obligations secured
pursuant to Article 10 of this Lease.
(2) The balance of the proceeds, if any, shall be paid to Lessor
to compensate Lessor, at least in part, for the loss to the
fee estate of value of the damaged or destroyed Improvements.
Property and Personal Injury Liability Insurance
7.02. At all times during the Term of this Lease, Lessee shall
maintain, at its sole cost, comprehensive broad-form general public liability
insurance against claims and liability for personal injury, death, and property
damage arising from the use, occupancy, disuse, or condition of the Leased Land
and Improvements, and adjoining areas. The insurance shall be carried by
insurance companies authorized to transact business in Ohio,
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selected by Lessee and approved by Lessor and any Lender under Article 10 of
this Lease. In addition, the following conditions shall be met:
(a) The insurance provided pursuant to this Paragraph 7.02 shall be in
an amount no less than $100,000.00 for property damage, and in an amount no less
than $500,000.00 for one person and $1,000,000.00 for one accident for personal
injury.
(b) the insurance shall be maintained for the mutual benefit of Lessor
and Lessee, any succeeding owners of the fee title in the Leased Land, and any
successors and assigns of this Lease. The insurance policy or policies shall
name both Lessor and Lessee as insureds.
(c) The amounts of insurance shall be increased as Lessor may
reasonably require from time to time to account for inflation, or generally
increased insurance settlements or jury verdicts.
Construction Liability Insurance
7.03. Lessee agrees to obtain and maintain (to the extent reasonably
procurable) construction liability insurance at all times when demolition,
excavation, or construction work is in progress on the Leased Land. This
insurance shall be carried by insurance companies authorized to transact
business in Ohio, selected by Lessee and approved by Lessor, and shall be paid
for by Lessee. The insurance shall have limits no less than $100,000.00 for
property damage, and $500,000.00 for one person and $1,000,000.00 for one
accident for personal injury. The insurance shall be maintained for the mutual
benefit of Lessor and Lessee, as well as any succeeding owners of the fee title
in the Leased Land, and any successors and assigns of this Lease, against all
liability for injury or damage to any person or property in any way arising out
of demolition, excavation, or construction work on the premises. The insurance
policy or policies shall name both Lessor and Lessee as insureds.
Certificates of Insurance
7.04. Lessee shall furnish Lessor with certificates of all insurance
required by this Article 7. Lessee agrees that if it does not keep this
insurance in full force and effect, Lessor may notify Lessee of this failure,
and if Lessee does not deliver to Lessor certificates showing all of the
required insurance to be in full force and effect within ten days after this
notice, Lessor may, at its option, take out and pay the premiums on the
insurance needed to fulfill Lessee's obligations under the provisions of this
Article 7. On demand from Lessor, Lessee shall reimburse Lessor the full amount
of any insurance premiums paid by Lessor, with interest at the rate of ten
percent per annum from the date of Lessor's demand until reimbursement by
Lessee.
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Indemnification of Lessor
7.05. Lessor shall not be liable for any loss, damage, or injury of any
kind or character to any person or property arising from any use of the Leased
Land or Improvements, or caused by any defect in any building, structure,
equipment, facility, or other improvement on the Leased Land, or caused by or
arising from any act or omission of Lessee, or any of its agents, employees,
licensees, or invitees, or by or from any accident, fire, or other casualty on
the land, or occasioned by the failure of Lessee to maintain the premises in
safe condition. Lessee waives all claims and demands on its behalf against
Lessor for any loss, damage, or injury, and agrees to indemnify and hold Lessor
entirely free and harmless from all liability for any loss, damage, costs, or
injury of other persons, and from all costs and expenses arising from any claims
or demands of other persons concerning any loss, damage, or injury, caused other
than by the negligent or intentional act or omission of Lessor.
ARTICLE 8. DAMAGE OR DESTRUCTION OF IMPROVEMENTS
Destruction or 40 Percent Damage
8.01. In the event that the Improvements are completely destroyed, or
are damaged in excess of 40 percent, due to any cause whatsoever, the Lessee may
at its own expense repair, restore, or replace the destroyed property if Lessee
deems it practical or advisable to do so, and this Lease shall continue in full
force and effect. If Lessee deems it impractical or inadvisable to repair,
restore, or replace' the destroyed property, this Lease shall terminate on sixty
days' written notice to Lessor and any lender under Article 10 of this Lease.
Damage Less Than 40 Percent
8.02. In the event that damage to the Improvements due to any cause
whatsoever is not in excess of 40 percent, Lessee shall at its own expense
repair, restore, or replace the damaged Improvements with due diligence, and
this Lease shall continue in full force and effect.
Definitions
8.03. The term "completely destroyed" shall be construed to mean the
destruction of the safe, tenantable use of occupancy of all Improvements under
this Lease. The term "damaged in excess of 40 percent" shall be construed to
mean any damage to the Improvements (excluding damage solely by water used in
extinguishing fire) that will require an expenditure in excess of 40 percent of
the market value (immediately prior to the damage) of the Improvements to
accomplish required repairs, restoration, or replacement.
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ARTICLE 9. CONDEMNATION
Interests of Parties
9.01. If the Leased Land and Improvements or any part of these premises
is taken for public or quasi-public purposes by condemnation in any action or
proceeding in eminent domain, or are transferred in lieu of condemnation to any
authority entitled to exercise the power of eminent domain, the interests of
Lessor and Lessee in the award or consideration for the taking or transfer and
the effect of the taking or transfer on this Lease shall be governed by this
Article 9.
Termination on Total Taking
9.02. If all or substantially all of the Leased Land and Improvements
are taken or transferred as described in Paragraph 9.01, this Lease and all of
the rights, title, and interest under this Lease shall cease on the date title
to the Leased Land and Improvements vests in the condemning authority, and the
proceeds of the condemnation shall be divided between Lessee and Lessor with
Lessor receiving from the proceeds an amount equal to the sum of the product of
the then adjusted annual rent (but not less than $12,000.00) multiplied by 12.5
plus the product of the difference of the proceeds and 12.5 times the then
adjusted annual rent multiplied times 0.9259 raised to the power of the number
of whole years left to run on the Lease, rounded to the nearest whole year;
or expressed algebraically:
Where P = proceeds received.
R = then adjusted annual rent.
A = amount of Lessors share of proceeds.
N = number of whole years remaining on lease term.
N
A = 12.5R + (P - 12.5R) * 0.9259
For example where: P = $ 2,000,000
R = $24,000
N = 20
Then:
20
A = $300,000 + ($2,000,000 - $300,000) * 0.9259
A = $300,000 + $1,700,000 * 0.2144
A = $300,000 + 364,480
A = $664,480
Lessee's share shall be the remaining proceeds. However, if ten or more
years remain on the term of the lease, Lessee's share shall not be less than 10%
of the proceeds, and if less than ten years remain on the term of the lease,
Lessee's share shall not be
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less than 1% for each of the number of whole years remaining, rounded to the
nearest whole year.
For purposes of this Article 9, "all or substantially all of the Leased
Land and Improvements" shall be deemed to have been taken if 40 percent or more
of the gross floor area of all Improvements is taken and cannot be restored or
repaired so as to be suitable for the conduct of the business conducted on the
Leased Land and Improvements prior to the taking.
Termination on Partial Taking
9.03. If less than all or substantially all of the Leased Land and
Improvements is taken or transferred as described in Paragraph 9.01, and if in
Lessee's opinion the remainder of the Leased Land and Improvements is in a
location, or in a form, shape, or reduced size that makes it impossible for
Lessee to effectively and practicably operate Lessee's business on the remaining
Leased Land and Improvements, then this Lease shall terminate on the date title
to the portion of the Leased Land and Improvements taken or transferred vests in
the condemning authority. The proceeds of the condemnation shall be divided
between Lessee and Lessor as specified in ss.9.02.
Continuation With Rent Abatement After Partial Taking
9.04. If less than all or substantially all of the Leased Land and
Improvements is taken or transferred as described in Paragraph 9.01, and if in
Lessee's opinion the remainder of the Leased Land and Improvements is in a
location and a form, shape, or size that makes it possible for Lessee to
effectively and practicably operate Lessee's business on the remaining Leased
Land and Improvements, this Lease shall terminate as to the portion of the
Leased Land and Improvements taken or transferred as of the date title to the
portion vests in the condemning authority. However, this Lease shall continue in
full force and effect as to the portion of the Leased Land and Improvements not
taken or transferred. From and after the date of taking or transfer, the rent
required to be paid by Lessee to Lessor shall be reduced during the unexpired
portion of this Lease by that proportion of the annual rent that the value of
the part of the Leased Land and Improvements taken or transferred bears to the
value of the total Leased Land and Improvements. These values shall be
determined as of the date immediately before any actual taking. The proceeds of
the condemnation shall be divided as specified in ss.9.02.
Voluntary Conveyance
9.05. Nothing in this Article 9 prohibits Lessor from voluntarily
conveying all of part of the Leased Land and Improvements to a public utility,
agency, or authority under threat
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of a taking under the power of eminent domain. Any voluntary conveyance shall
be treated as a taking within the meaning of this Article 9.
ARTICLE 10. LEASEHOLD MORTGAGES
Leasehold Mortgages Permitted
10.01. Lessee shall be permitted to mortgage Lessee's leasehold
interest in the Leased Land without Lessor's consent or approval.
Provisions for Benefit of Leasehold Mortgagees
10.02. Lessor agrees that the provisions set forth in this Article 10
shall apply to, and be for the benefit of, any mortgagee of Lessee's leasehold
interest in the Leased Land, whose mortgage is a first lien or second lien on
Lessee's leasehold interest ("Leasehold Mortgagee"). Lessor shall be served with
a copy of the mortgage ("Leasehold Mortgage") certified to be true by the
Leasehold Mortgagee and a certified true copy of the title insurance policy
insuring the Leasehold Mortgage to be a first or second lien on Lessee's
leasehold interest in the Leased land, or Lessor shall be provided with other
proof reasonably satisfactory to Lessor of the priority of the Leasehold
Mortgage.
Notice of Default Served on Leasehold Mortgagees
10.03. No notice of default, as provided in Article 11 of this Lease,
shall be valid, binding, and effective until the notice is served on all
Leasehold Mortgagees in the manner set forth in this Lease, at the address set
forth in the Leasehold Mortgage or the address the Leasehold Mortgagee provides
to Lessor according to the provisions set forth in this Lease.
Monetary Default
10.04. If there is a default due to nonpayment of monetary obligations
payable directly by Lessee to Lessor ("Monetary Default"), Lessor shall not
exercise any of the rights and remedies provided in Article 11 or elsewhere in
this Lease, or any remedies provided by law, unless the Monetary Default shall
have continued for at least thirty days after notice to all Leasehold
Mortgagees.
Curable Nonmonetary Default
10.05. If there is a curable default other than a Monetary Default
("Curable Nonmonetary Default"), Lessor shall not exercise any of the rights and
remedies provided in Article 11 or elsewhere in this Lease, or any remedies
provided by law, unless the Curable Nonmonetary Default shall have continued for
at least thirty days
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after notice to all Leasehold Mortgagees. However, if it is not reasonably
possible to cure the default within thirty days, then the time period for curing
the Curable Nonmonetary Default shall be extended, provided that the default is
cured as expeditiously as practicable by actions undertaken diligently and in
good faith.
Noncurable Default
10.06. If there is a default due to bankruptcy, insolvency, or any other
noncurable default ("Noncurable Default"), Lessor shall not exercise any of the
rights and remedies provided in Article 11 or elsewhere in this Lease, or any
remedies provided by law, if within thirty days after notice of default a
Leasehold Mortgagee notifies Lessor that it will foreclose its Leasehold
Mortgage, and that Leasehold Mortgagee diligently and continuously commences and
prosecutes to completion foreclosure proceedings and sale of Lessee's leasehold
interest in the Leased Land, or causes that leasehold interest to be conveyed
and assigned in lieu of foreclosure. However, nothing contained in this
Paragraph 10.06 shall prohibit Lessor from exercising its rights and remedies
pursuant to Article 11 or other parts of this Lease (subject to the other
Paragraphs of this Article 10), or any remedies provided by law, should there
occur a Monetary Default or Curable Nonmonetary Default after the occurrence of
a Noncurable Default.
Mortgagee's Option to Obtain New Lease
10.07. If this Lease is terminated due to a default pursuant to Article
11, Lessor shall serve notice of this termination on all Leasehold Mortgagees,
specifying all sums of money then due and payable under this Lease and
specifying any other default then existing. Each Leasehold Mortgagee shall have
the option of obtaining a new lease ("New Lease") on terms set forth in
Paragraph 10.08; this option shall be waived if it is not exercised within
twenty days after the Leasehold Mortgagee receives notice of termination. If
more than one Leasehold Mortgagee elects to obtain a New Lease, this New Lease
shall be entered into with the Leasehold Mortgagee holding the Leasehold
Mortgage senior in priority.
Terms and Conditions of New Lease
10.08. The New Lease entered into between Lessor and Leasehold Mortgagee
as the New Lessee shall contain terms identical to the terms of this Lease,
except that the commencement date of the New Lease shall be the date of
termination of this Lease, and the term of the New Lease shall be equal to the
remaining term of this Lease.
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Obligations of New Lessee
10.09. The New Lease shall be subject to the following terms:
(1) All Monetary Defaults and Curable Nonmonetary Defaults shall be cured
by the New Lessee.
(2) Effective on commencement of the term of the New Lease, all subleases
shall be assigned without recourse by Lessor to the New Lessee.
(3) All fees and expenses, including reasonable counsel fees, incurred by
Lessor in connection with Lessee's defaults, termination of this
Lease, recovery of possession, negotiations with Leasehold
Mortgagees, and preparation and execution of the New Lease, shall be
paid by the New Lessee.
Assignment of Lease or New Lease by Leasehold Mortgagee
10.11. If any Leasehold Mortgagee shall enter into a New Lease or
acquire Lessee's leasehold interest in the Leased Land by foreclosure or
otherwise, and then Leasehold Mortgagee assigns or otherwise conveys its
interest in this Lease or the New Lease, on that assignment or conveyance the
Leasehold Mortgagee shall be discharged and relieved from all liability for
performance of the terms of this Lease or the New Lease subsequently accruing,
but nothing contained in this Lease shall relieve the Leasehold Mortgagee from
its liabilities and obligations accruing before assignment or conveyance.
Written Consent of Leasehold Mortgagees
10.12. This Lease shall not be modified or amended, nor shall it be
voluntarily terminated by Lessor and Lessee without the prior written consent of
all Leasehold Mortgagees.
ARTICLE 11. DEFAULT
Events of Default
11.01 (a) Any one or more of the events listed in Subparagraphs (b)
through (f) of this Paragraph 11.01 shall constitute a default under this Lease.
(b) Lessee's failure to pay rent within thirty days after the rent
becomes due and payable in accordance with the terms, covenants, and agreements
of this Lease shall constitute a default under this Lease.
(c) Lessee's failure to observe or perform or cause to be
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<PAGE> 20
observed or performed any other term, covenant, or agreement under this Lease,
and continuation of this failure for a period of thirty days after Lessor's
written notice to Lessee specifying the nature of Lessee's failure shall
constitute a default under this lease. However, a failure as described in this
Subparagraph (b) shall not constitute a default if it is curable but cannot
with reasonable diligence be cured by Lessee within a period of thirty days,
and if Lessee proceeds to cure the failure with reasonable diligence and in
good faith.
(d) Lessee's abandonment of the leased land and improvements shall
constitute a default under this lease. For the purposes of this Lease,
"abandonment" shall be defined as Lessee's failure to begin construction of
Improvements within one year following the date of this Lease.
(e) The occurrence of both of the following events at the date of the
commencement of this Lease or during its effective term shall constitute a
default under this lease:
(1) Filing of a petition in bankruptcy or insolvency, for reorganization
or the appointment of a receiver or trustee of all or a portion of
Lessee's property, by or against Lessee in any court pursuant to any
statute either of the United States or of any state.
(2) Lessee's failure to secure a dismissal of the petition within sixty
days after its filing.
(f) Lessee's assignment of the leasehold interest under this Lease for
the benefit of creditors shall constitute a default under this lease.
Notice of Election to Terminate Lessee's Possession
11.02. Subject to the provisions of Article 10, if any event creating
default occurs, Lessor may elect to terminate Lessee's right of possession under
this Lease after thirty days from the date of service of notice of the election.
If this notice is given, then at the expiration of the thirty days all Lessee's
rights, title, and interest in the Leased Land shall expire completely, and
Lessee shall quit and surrender the Leased Land and any Improvements erected on
the Leased Land to Lessor.
Lessor's Entry After Termination of Lessee's Possession
11.03. At any time after the termination of Lessee's right of
possession under this Lease pursuant to Paragraph 11.02 of this Lease, Lessor
may enter and possess the Leased Land and Improvement by summary proceedings,
ejectment, or otherwise, and Lessor may remove Lessee and all other persons and
property from the Leased
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Land and Improvements. If Lessor takes the actions described in this Paragraph
11.03. Lessor may then possess the Leased Land and Improvements and assume the
right to receive all rents income, and profits from the Leased Land and
Improvements, and Lessor may also sell any of the Improvements.
Lessee's Liability for Accrued Rent
11.04. The expiration of this Lease or termination of Lessee's right of
possession pursuant to Paragraphs 2.01 or 11.02 shall not relieve Lessee of its
liability and obligation to pay the rent and any other charges accrued prior to
these events, or relieve Lessee of liability for damages for breach. These
liabilities and obligations of Lessee shall survive any expiration or
termination of the Lease or any entry and possession by Lessor.
Reletting Land and Improvements
11.05. After the expiration of this Lease or termination of Lessee's right
of possession under this Lease pursuant to Paragraphs 2.01 or 11.03, Lessor
shall use reasonable efforts to mitigate damages by reletting the Leased Land
and Improvements, in whole or in part, either in its own name or as agent of
Lessee, for a term or terms that, at Lessor's option, may be for the remainder
of the then-current term of this Lease or for any longer or shorter period.
Rent From Reletting
11.06. Lessee shall be entitled to a credit if the rent received on
reletting exceeds the rent required pursuant to this Lease. Lessee shall remain
liable for the difference between the rent reserved under this Lease, and the
rent collected and received, if any, by Lessor during the remainder of the
unexpired term. Lessor shall have the option of collecting the deficiency
between the rent reserved and the rent collected in monthly payments as those
payments become due and payable, or of receiving in advance the deficiency for
the remainder of the term reduced to present value at the rate of eight percent
per year.
Costs Incurred Due to Breach
11.07. Lessee expressly agrees to pay all expenses that Lessor may
incur for reasonable attorneys' fees or brokerage commissions, and all other
costs paid or incurred by Lessor for enforcing the terms and provisions of this
Lease, reletting the Leased Land and Improvements, restoring the Leased Land and
Improvements to good order and condition, altering, decorating, repainting or
otherwise repairing the same for reletting and for maintaining the Leased Land
and Improvements.
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ARTICLE 12. EXPIRATION OF TERM
Lessee's Delivery of Possession After Termination or Expiration
12.01. On the expiration date of this Lease as set forth in Paragraph
2.01, or the termination of Lessee's possession under this Lease pursuant to
paragraph 11.03, or any entry or possession of the Leased Land and Improvements
by Lessor pursuant to Paragraph 11.04 (collectively referred to as the
"Expiration Date"), Lessee shall promptly quit and surrender the Leased Land and
Improvements, and deliver to Lessor actual possession and ownership of the
Leased Land and Improvements in good order, condition, and repair.
Lessee's Removal of Movable Objects
12.02. Lessee shall have the right to remove from the Leased Land and
Improvements all movable trade fixtures, movable equipment, and articles of
personal property used or procured for use in connection with the operation of
its business on or before the Expiration Date, provided that Lessee shall
promptly repair, or cause to be repaired, any damage resulting to the Leased
Land or Improvements by reason of this removal. Any trade fixtures, equipment,
or articles of personal property of Lessee that remain at or on the Leased Land
after the Expiration Date shall be deemed to have been abandoned by lessee, and
may either be retained by Lessor as its property or disposed of by Lessor
without accountability to Lessee for the value of these trade fixtures,
equipment, or articles of personal property, or any proceeds derived from the
sale of these items.
ARTICLE 13. GENERAL PROVISIONS
No Waiver of Breach by Lessor's Actions
13.01. The failure of Lessor to seek redress for violation of, or to
insist on the strict performance of any covenant, agreement, term, provision, or
condition of this Lease shall not constitute a waiver of the covenant,
agreement, term, provision, or condition. The receipt by Lessor of rent with
knowledge of the breach of any covenant, agreement, term, provision, or
condition of this Lease shall not be deemed a waiver of that breach.
Waiver of Any Provision Must be Written
13.02. No provision of this Lease shall be deemed to have been waived,
unless the waiver is in writing and signed by the party against whom enforcement
is sought. No payment by Lessee or receipt by Lessor of a lesser amount than the
rent stipulated in this Agreement shall be deemed to be other than for the
payment of rent or other charge owing by Lessee, as Lessor shall elect. No
endorsement or statement on any check or any letter accompanying
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any check or payment as rent shall be deemed binding on Lessor or deemed an
accord and satisfaction, and Lessor may accept a check or payment from Lessee
without prejudice to Lessor's right to recover the balance of the rent or the
other charges owing by Lessee, and without limitation on Lessor's right to
pursue each and every remedy in this Lease or provided by law. Each right and
remedy of Lessor provided for in this Lease shall be cumulative and in
addition to every other right or remedy provided for in this Lease, or now or
later existing at law, in equity, by statute, or otherwise.
Entire Agreement
13.03. This Lease and the Exhibits annexed to this Lease contain the
entire agreement between Lessor and Lessee, and any agreement made after the
execution of this Lease between Lessor and Lessee shall be ineffective to
change, modify, waive, release, discharge, terminate, or effect a surrender or
abandonment of this Lease, in whole or in part, unless that agreement is in
writing and signed by the party against whom enforcement is sought.
Notices
13.04. All notices and demands of any kind that either party may be
required or may desire to give to the other in connection with this Lease must
be given by registered or certified mail, return receipt requested, with postage
fully prepaid, and addressed to the party to be served at the party's address as
set forth above. Any notice shall be deemed received on first attempted
delivery. Any party may change the address to which notices to that party are to
be directed by notice given in the manner provided in this Paragraph 13.04.
Lessor's Entry and Inspection of Premises
13.05. Lessor, or its agents or designees, shall have the right to enter
the Leased Land and Improvements during reasonable business hours for
inspection, or to complete any work that may be necessary because of Lessee's
default under any of the terms, covenants, and conditions of this Lease
continuing beyond the applicable periods of grace, or to exhibit the Leased Land
and Improvements to potential buyers and agents.
Partial Invalidity or Unenforceability
13.06. If any term, covenant, or condition of this Lease shall be invalid
or unenforceable to any extent, the remainder of the terms, covenants, and
conditions of this Lease shall remain in full force and effect and shall in no
way be affected, impaired, or invalidated.
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Meaning of Term "Lessor"
13.07. The term "Lessor", as used in this Lease in relation to Lessor's
covenants and agreements under this Lease, shall be limited to mean and include
only the owner or owners of the fee title to the Leased Land at the time in
question. In the event of any conveyance of this fee title, Lessor named in this
Lease and each subsequent grantor shall be automatically relieved, at that date
of the conveyance, of all liability in respect to the performance of any of
Lessor's covenants and agreements remaining to be performed after the date of
conveyance, and each grantee shall be bound by all of the covenants and
agreements remaining to be performed under the Lease during the time of
grantee's ownership.
Satisfaction of Judgment Against Lessor
13.08. Anything contained in this Lease to the contrary notwithstanding,
Lessee agrees to look solely to the Leased Land and Lessor's interest in the
Leased Land for the collection and satisfaction of any judgment that Lessee may
obtain against Lessor because of Lessor's failure to observe or perform any of
its covenants or obligations under this Lease, including, but not limited to,
the breach of the covenant of quiet enjoyment, whether express or implied. If
Lessee receives any judgment resulting from Lessor's failure to observe or
perform any of its covenants or obligations under this Lease, Lessee further
agrees not to collect or execute, or attempt to collect or execute, that
judgment out of or against any other assets or properties of Lessor.
Individuals Benefited by Lease
13.09. This Lease shall inure to the benefit of and be binding on Lessor
and Lessee and their respective distributees, personal representatives,
executors, successors, and assigns except as otherwise provided in this Lease.
Assignment and Subletting
13.10. This Lease and the term and estate granted by this Lease, or any
part of this Lease or that term and estate, may be subleased or assigned,
without Lessor's written consent. However, no assignment or subletting shall
release or discharge Lessee from the terms of this Lease.
Attornment of Sublessee
13.11. All subleases shall provide that in the event of cancellation,
termination, expiration, or surrender of this Lease, the sublessee will attorn
to and recognize Lessor, or any assignee of Lessor, as Lessor under this Lease
for the balance then
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remaining of the term of this Lease, and subject to all terms of this Lease.
The provisions of this Paragraph 13.11 shall be automatic and no further
instrument or document shall be necessary unless required by Lessor or any
assignee of Lessor.
Quiet Enjoyment
13.12. Lessor covenants and agrees that Lessee, on payment of the rent
and other charges provided for in this Lease and fulfillment of the obligations
under the covenants, agreements, and conditions of this Lease, shall lawfully
and quietly hold, occupy, and enjoy the Leased Land during the term of this
Lease without any interference from anyone claiming through or under Lessor.
ARTICLE 14. DOCUMENTATION AND RECORDING OF LEASE
Estoppel Certificates
14.01. Lessor or Lessee shall have the right to request the other party
to provide an estoppel certificate, as described below, without charge, at any
time on or after twenty days after the requesting party sends a written notice.
This estoppel certificate shall consist of a written statement certifying the
following information to the requesting party or to any person specified by that
party:
(1) That this Lease is unmodified and in full force and effect; or, if
there have been any modifications in this Lease, that this Lease is
in full force and effect as modified, specifying the nature of each
modification.
(2) The dates through which the rent and other charges payable under
this Lease have been paid.
(3) Whether the other party to this Lease is in default in the
performance or observance of any covenant, agreement, condition,
term, or provision contained in this Lease, to the best knowledge of
the certifying party, and, if so, specifying the nature of each
default the certifying party has knowledge of.
(4) Any other information with respect to this Lease and the Leased Land
that the requesting party shall reasonably request.
Memorandum of Lease and Recording
14.02. Upon the request of either Lessor or Lessee, Lessor and Lessee shall
execute, in recordable form, a Memorandum of Lease in the form annexed to this
Lease as Exhibit D, and Lessee shall record the Memorandum of Lease in the
office of the County Recording Officer of Mahoning County, Ohio.
21
<PAGE> 26
ARTICLE 15. LESSOR'S OPTION TO PURCHASE
Notice of Intent to Purchase Leasehold
15.01. At any time after December 31, 1993, Lessor may notify Lessee of
Lessor's intent to purchase the leasehold which notice shall also specify a
proposed purchase price for the leasehold. Within 90 days, Lessee shall either
accept or reject the proposed purchase price.
If the proposed purchase price is not accepted in writing by Lessee
within 90 days of the notice, Lessor and Lessee shall each select an MIA (that
is, a member of the American Institute of Real Estate Appraisers) Real Estate
Appraiser, and the two appraisers so selected shall select a third MIA Real
Estate Appraiser. Lessor shall, on selection of the appraisers, immediately fix
a time and place for a conference between the parties and the appraisers for the
purpose of agreeing on the general instructions to be given the appraisers.
Appraisal
15.02. The appraisers selected by Lessee and Lessor shall, within 45
days after receiving their instructions, deliver a copy of their fully
documented written appraisals to Lessee, Lessor, and the third appraiser. The
third appraiser shall analyze the appraisals and conduct any investigations,
interviews, and discussions with or without the other appraisers or either of
them, that he or she may deem necessary.
Hearing and Determination
15.03. At a time no more than 20 days after submission of the written
appraisals and at a place that the three appraisers shall name, the respective
parties may have representatives appear and argue any appraisal matters that the
parties deem appropriate. Within 10 days after that time, the appraisers shall
make a final written determination of the purchase price for the leasehold. If
the appraisers are unable to agree on a purchase price for the leasehold, then
the final determination of the purchase price for the leasehold shall be made by
the third appraiser.
Cost of Appraiser
15.04. Each party shall pay the cost of the appraiser chosen by that
party, and the parties share the cost of the third appraiser equally.
Exercise of Option; Holdover
15.05. If Lessor chooses to purchase the leasehold at the
22
<PAGE> 27
final appraised price, Lessor shall within 10 days of the appraisers final
written determination so notify Lessee in writing.
If the Lessee accepts Lessor's offer to purchase the leasehold prior to
appraisal, closing and payment of the purchase price in cash by Lessor shall be
within 60 days of Lessee's acceptance. If Lessor notifies Lessee of his exercise
of option to purchase at the final appraised value, closing shall be within 60
days of the notice. In either case, at any time up to the date of closing,
Lessee may give Lessor notice of Lessee's intent to holdover. The maximum period
which Lessee may hold over occupancy of the leased premises is two years after
the date of closing. Lessee's holdover notice prior to closing to Lessor may
specify a date when Lessee will quit the premises at any time up to the two
years maximum holdover. If Lessee's holdover notice does not specify a date,
then the holdover notice shall be for the full two year holdover term. During
the holdover term, this lease shall continue in full force in effect with no
change as to rental and operating costs, but Lessor shall pay all impositions
and Lessor shall receive all insurance proceeds and condemnation awards. During
the holdover Lessee may give notice of terminating Lessee's right of possession
to the leased premises on a date a least six months from the date of the notice,
in which case Lessee shall not be liable for rent or operating costs after the
date specified.
Penalty in Default of Exercise
15.06. If Lessor fails to notify Lessee of Lessor's exercise of the
option to purchase at the final appraised price for the Leasehold within 30 days
of the final determination of the appraised price, then Lessor shall immediately
pay to Lessor a penalty in the amount of 3% of the final determination of the
appraised price of the leasehold. If Lessor revokes his offer to purchase prior
to the final determination of appraised value, then Lessor shall immediately pay
a penalty to Lessee equal to the greater of 3% of the amount Lessor offered to
pay for the leasehold or three months rent. If Lessor either revokes his offer
to purchase the leasehold, or fails to exercise his option to purchase the
leasehold at the final appraised value, then Lessor shall no longer have any
right to purchase the leasehold at an appraised price for the balance of the
leased term.
23
<PAGE> 28
IN WITNESS WHEREOF, Lessor and Lessee have executed and signed this
Lease or have caused this Lease to be executed and signed, and corporations have
affixed their proper corporate seals at Youngstown, Ohio on this 15th day of
December, 1987.
LESSEE
Youngstown Cellular Telephone Company
By: /s/ W.P. WILLIAMSON, III
----------------------------------------
W.P. Williamson, III, Chairman of the
Managing Committee
LESSOR
WKBN Broadcasting Corporation
By: /s/ W.P. WILLIAMSON, JR.
----------------------------------------
Chairman of the Board
Signature acknowledged
in the presence of:
/s/ [signature illegible]
- ---------------------------
- ---------------------------
24
<PAGE> 29
ACKNOWLEDGEMENT BY CORPORATION
State of Ohio )
)ss:
County of Mahoning )
I certify that on this 15th day of December, 1987, Warren P. Williamson, Jr.
of WKBN Broadcasting Corporation personally appeared before me and
acknowledged under oath, to my satisfaction, that he signed, sealed with the
seal of the corporation, and delivered this instrument as the officer of the
named corporation, and that this instrument is the voluntary act and deed of
that corporation as authorized by its Board of Directors.
/s/ DORIS SALOOM
-----------------------------------
DORIS SALOOM, Notary Public
State of Ohio
My Commission Expires Nov. 8, 1988
NOTARY PUBLIC
This instrument was prepared by:
/s/ RALPH A. BEARD
-------------------------------------
Ralph A. Beard, of
Harrington, Huxley & Smith
1200 Mahoning Bank Building
Youngstown, Ohio 44503
Telephone: (216) 744-1111
25
<PAGE> 30
Exhibit A
[SITE LOCATION MAP OF PREMISES DESCRIBED IN EXHIBIT B]
<PAGE> 31
Exhibit B
LEASE BOUNDARY DESCRIPTION
Situated in the Township of Boardman, County of Mahoning, State of Ohio
and being known as part of Lot Number 2 of the Julia Barger Plat Number 1 as
recorded in Volume 39 of Page 52 of the Mahoning County Record of Plats and
being more fully bounded and described as follows:
Beginning at an iron pin on the Northerly Line of above said lot which
is also the Southerly Line of the Lot Number 1, a parcel of land now or formerly
owned by Mahoning Bank and it's intersection with the Westerly right-of way of
South Avenue (a.k.a. State Route 164), said pin being 40.00 feet from the
centerline of South Avenue, said pin also being the true place of beginning;
thence S 29 degrees 04' E along said Westerly right-of-way of South Avenue a
distance of 151.14 feet to an iron pin; thence continuing along the Westerly
right-of-way of South Avenue S 33 degrees 03'40" E a distance of 42.96 feet to a
point; thence S 60 degrees 56' W a distance of 75.47 feet to a point said point
being the point of curvature of a curve deflecting to the right and having a
Delta of 21 degrees -01', a Radius of 190.00 feet, an arc of 69.69 feet, a
Tangent of 35.24 feet, a chord bearing of S 71 degrees 26'30"W and a chord of
distance of 69.30 feet to the point of Tangency; thence S 81 degrees 57' W a
distance of 136.49 feet to a point, said point being the point of curvature of a
curve deflecting to the Right, and having a Delta of 24 degrees 54'42", a Radius
of 90.00 feet, an Arc of 39.13 feet, a Tangent of 19.88 feet, a chord bearing of
N 85 degrees 35'39" W and a chord distance of 38.82 feet to a point on said
curve; thence N 8 degrees 03' W a distance of 145.38 feet to a point; thence N 4
degrees 27' E a distance of 116.49 feet to a point on the Northerly line of the
above described lot; thence S 85 degrees 33' E along said Northerly line a
distance of 220.64 feet to an iron pin, said pin being the true place of
beginning and containing 1.486 acres of land more or less; however subject to
all legal highways and easements.
26
<PAGE> 32
EXHIBIT C
INGRESS-EGRESS EASEMENT
Situated in the Township of Boardman, County of Mahoning, State of Ohio and
being known as part of Lot Number 2 of the Julia Barger Plat Number 1 as
recorded in Volume 39, Page 52 of the Mahoning County Record of Plats and being
more fully bounded and described as follows:
Beginning at an iron pin on the Northerly Line of above said lot which
is also the Southerly Line of Lot Number 1 a parcel of land now or formerly
owned by Mahoning Bank and it's intersection with the Westerly right-of-way of
South Avenue (a.k.a. State Route 164) said pin being 40.00 feet from the
centerline of South Avenue; thence S 29 degrees 04" E along the said Westerly
right-of-way of South Avenue a distance of 151.14 feet to an iron pin; thence
continuing along the Westerly right-of-way of South Avenue S 33 degrees 03'40" E
a distance of 42.96 feet to a point, said point being the true place of
beginning; thence continuing along said right-of-way S 33 degrees 03'40" E a
distance of 20.05 feet to a point; thence S 60 degrees 56' W a distance of 76.87
feet to a point, said point being the point of curvature of a curve deflecting
to the right and having a Delta of 21 degrees -01', a Radius of 210.00 feet, an
arc of 77.03 feet, a Tangent of 38.95 feet, a chord bearing of S 71 degrees
26'30" W and a chord distance of 76.60 feet to a point said point being the
point of Tangency; thence S 81 degrees 57' W a distance of 136.49 feet to a
point, said point being the point of curvature of a curve deflecting to the
Right, and having a Delta of 24 degrees 54'42", a Radius of 110.00 feet, an arc
of 47.83 feet, a tangent of 24.30 feet, a chord bearing of N 85 degrees 35'39"
W, and a Chord distance of 47.45 feet to a point on said curve; thence N 16
degrees 51'42" E a distance of 20.00 feet to a point, said point being on a
curve, and deflecting to the left having a delta of 24 degrees 54'42", a Radius
of 90.00 feet, an arc of 39.13 feet a tangent of 19.88 feet, a chord bearing of
S 85 degrees 35'39" E and a chord distance of 38.82 feet to a point, said point
being the true point of Tangency; thence N 81 degrees 57' E a distance of 136.49
feet to a point, said point being the point of curvature of a curve deflecting
to the left and having a Delta of 21 degrees -01, a radius of 190.00 feet, an
arc of 69.69 feet, a tangent of 35.24 feet a chord bearing of N 71 degrees
26'30" E and a chord distance of 69.30 feet to a point, said point being the
point of Tangency; thence N 60 degrees 56' E a distance of 75.47 feet to a point
on the Westerly right-of-way of South Avenue, said point being the true place of
beginning and containing 0.151 acres of land more or less; however subject to
all legal highways and easements.
27
<PAGE> 33
Exhibit D
MEMORANDUM OF LEASE
On the _______ day of ___________ 1987, a lease was entered into
between WKBN Broadcasting Corporation, Lessor and Youngstown Cellular Telephone
Company, Lessee. This Memorandum of that lease is presented for recording:
1. Name of Lessor in Lease: WKBN Broadcasting Corporation.
2. Name of Lessee therein: Youngstown Cellular Telephone Co.
3. Addresses set forth in Lease as addresses of Lessor and Lessee;
Lessor: 3930 Sunset Blvd., Youngstown, Ohio 44512, and Lessee: Youngstown
Cellular Telephone Company 3930 Sunset Blvd., Youngstown, Ohio 44512.
4. The instrument under which the Lessor claims an interest in the
leased premises is recorded in Volume _____ at page _____ of the deed records in
the office of the County Recorder of Mahoning County, Ohio.
5. Date of Lease: ______________________
6. Description of Leased premises as set forth in Lease:
Situated in the township of Boardman, County of Mahoning, State of Ohio and
being known as part of Lot Number 2 of the Julia Barger Plat Number 1 as
recorded in Volume 39 of Page 52 of the Mahoning County Record of Plats and
being more fully bounded and described as follows:
Beginning at an iron pin on the Northerly Line of above said lot which
is also the Southerly Line of the Lot Number 1, a parcel of land now or formerly
owned by Mahoning Bank and it's intersection with the Westerly right-of way of
South Avenue (a.k.a. State Route 164), said pin being 40.00 feet from the
centerline of South Avenue, said pin also being the true place of beginning;
thence S 29 degrees 04' E along said Westerly right-of-way of South Avenue a
distance of 151.14 feet to an iron pin; thence continuing along the Westerly
right-of-way of South Avenue S 33 degrees 03'40" E a distance of 42.96 feet to a
point; thence S 60 degrees 56' W a distance of 75.47 feet to a point said point
being the point of curvature of a curve deflecting to the right and having a
Delta of 21 degrees-01', a Radius of 190.00 feet, an arc of 69.69 feet, a
Tangent of 35.24 feet, a chord bearing of S 71 degrees 26'30"W and a chord of
distance of 69.30 feet to the point of Tangency; thence S 81 degrees 57' W a
distance of 136.49 feet to a point, said point being the point of curvature of a
curve deflecting to the Right, and having a Delta of 24 degrees 54'42", a Radius
of 90.00 feet, an Arc of 39.13 feet, a Tangent of 19.88 feet, a
28
<PAGE> 34
chord bearing of N 85 degrees 35'39" W and a chord distance of 38.82 feet to a
point on said curve; thence N 8 degrees 03' W a distance of 145.38 feet to a
point; thence N 4 degrees 27' E a distance of 116.49 feet to a point on the
Northerly line of the above described lot; thence S 85 degrees 33' E along said
Northerly line a distance of 220.64 feet to an iron pin, said pin being the true
place of beginning and containing 1.486 acres of land more or less; however
subject to all legal highways and easements.
Provided however, Lessor reserves all of the oil and gas and other minerals of
the leased premises.
Lessor also grants to Lessee and easement for Ingress and Egress and right of
way adjacent to the southside of the lease premises, to be used only for the
purpose of providing pedestrian and vehicular ingress and egress between the
paved road line east of the leased property and the leased land. This easement
shall terminate upon the termination of the lease for any reason but until that
time is for the benefit of the leased premises and attaches thereto and is made
apart thereof and shall be deemed to run with the land, and is more particularly
described as follows:
Situated in the Township of Boardman, County of Mahoning, State of Ohio and
being known as part of Lot Number 2 of the Julia Barger Plat Number 1 as
recorded in Volume 39, Page 52 of the Mahoning County Record of Plats and being
more fully bounded and described as follows:
Beginning at an iron pin on the Northerly Line of above said lot which
is also the Southerly Line of Lot Number 1 a parcel of land now or formerly
owned by Mahoning Bank and it's intersection with the Westerly right-of-way of
South Avenue (a.k.a. State Route 164) said pin being 40.00 feet from the
centerline of South Avenue; thence S 29 degrees 04" E along the said Westerly
right-of-way of South Avenue a distance of 151.14 feet to an iron pin; thence
continuing along the Westerly right-of-way of South Avenue S 33 degrees 03'40" E
a distance of 42.96 feet to a point, said point being the true place of
beginning; thence continuing along said right-of-way S 33 degrees 03'40" E a
distance of 20.05 feet to a point; thence S 60 degrees 56' W a distance of 76.87
feet to a point, said point being the point of curvature of a curve deflecting
to the right and having a Delta of 21 degrees-01', a Radius of 210.00 feet, an
arc of 77.03 feet, a Tangent of 38.95 feet, a chord bearing of S 71 degrees
26'30" W and a chord distance of 76.60 feet to a point said point being the
point of Tangency; thence S 81 degrees 57' W a distance of 136.49 feet to a
point, said point being the point of curvature of a curve deflecting to the
Right, and having a Delta of 24 degrees 54'42", a Radius of 110.00 feet, an arc
of 47.83 feet, a tangent of 24.30 feet, a chord bearing of N 85 degrees 35'39"
W, and a Chord distance of 47.45 feet to a point on said curve; thence N 16
degrees 51'42" E a distance of 20.00 feet to a point, said point being on a
curve, and deflecting to the left having a delta
29
<PAGE> 35
of 24 degrees 54'42", a Radius of 90.00 feet, an arc of 39.13 feet a tangent of
19.88 feet, a chord bearing of S 85 degrees 35'39" E and a chord distance of
38.82 feet to a point, said point being the true point of Tangency; thence N 81
degrees 57' E a distance of 136.49 feet to a point, said point being the point
of curvature of a curve deflecting to the left and having a Delta of 21
degrees-01, a radius of 190.00 feet, an arc of 69.69 feet, a tangent of 35.24
feet a chord bearing of N 71 degrees 26'30" E and a chord distance of 69.30 feet
to a point, said point being the point of Tangency; thence N 60 degrees 56' E a
distance of 75.47 feet to a point on the Westerly right-of-way of South Avenue,
said point being the true place of beginning and containing 0.151 acres of land
more or less; however subject to all legal highways and easements.
7. The date on which the term of the Lease commences is __________.
8. Term of the Lease: 99 years.
9. Lessee has no right of extension or renewal.
IN WITNESS WHEREOF, Lessor and Lessee have executed and signed this
Memorandum of Lease or have caused this memorandum of Lease to be executed and
signed, and corporations have affixed their proper corporate seals at
Youngstown, Ohio on this _____ day of ___________, 1987.
LESSEE
Youngstown Cellular Telephone Company
By:
-------------------------------------
W.P. Williamson, III, Chairman of
the Managing Committee
LESSOR
WKBN Broadcasting Corporation
By:
-------------------------------------
Chairman of the Board
30
<PAGE> 36
LESSOR'S signature
acknowledged in the presence of:
- --------------------------------
- --------------------------------
ACKNOWLEDGEMENT BY CORPORATION
State of Ohio )
) ss:
County of Mahoning )
I certify that on this _____ day of ____________, 1987, Warren P. Williamson,
Jr. of the corporation named in the foregoing instrument personally appeared
before me and acknowledged under oath, to my satisfaction, that he signed,
sealed with the seal of the corporation, and delivered this instrument as the
officer of the named corporation, and that this instrument is the voluntary act
and deed of that corporation as authorized by its Board of Directors.
----------------------------------------
NOTARY PUBLIC
This instrument was prepared by:
----------------------------------------
Ralph A. Beard, of
Harrington, Huxley & Smith
1200 Mahoning Bank Building
Youngstown, Ohio 44503
Telephone: (216) 744-1111
31
<PAGE> 37
NOTE:
WILCOM CELLULAR OWNS THE OFFICE BUILDING LOCATED AT 3910 SOUTH AVE.
(YOUNGSTOWN OFFICE) BUT LEASES THE LAND FROM WKBN.
<PAGE> 1
EXHIBIT 10.12
DMS-MTX CELLULAR
SUPPLY AGREEMENT
BETWEEN
YOUNGSTOWN CELLULAR TELEPHONE COMPANY
AND
NORTHERN TELECOM INC.
<PAGE> 2
TABLE OF CONTENTS
SECTION PAGE
------- ----
1. DEFINITIONS 1
2. SCOPE 4
3. PURCHASE ORDERS 5
4. PRICE 6
5. PAYMENT 6
6. DELIVERY, RISK OF LOSS, TITLE 8
7. WARRANTIES, REMEDIES AND LIMITATION OF WARRANTIES AND 9
REMEDIES AND DISCLAIMERS OF WARRANTIES AND LIABILITY
8. FORCE MAJEURE 12
9. PATENT OR COPYRIGHT INFRINGEMENTS 12
10. SOFTWARE LICENSE 13
11. SOFTWARE UPDATES 15
12. REMEDIES 15
13. BUYER'S RESPONSIBILITIES 17
14. TESTING, TURNOVER AND ACCEPTANCE 17
15. COVERAGE, INTERFERENCE AND THIRD-PARTY FACILITIES 18
16. REGULATORY COMPLIANCE 19
17. CHANGES 19
18. CONDITION OF INSTALLATION SITE(S) 21
19. RELEASE OF INFORMATION 21
20. CONFIDENTIALITY 21
21. INTERCONNECTION TO SWITCH 22
22. EQUIPMENT CHANGES 23
23. ANNEXES 23
24. GENERAL 23
ANNEXES
- -------
ANNEX 1 - EQUIPMENT/PRICING
ANNEX 2 - STATEMENT OF WORK/SAMPLE PROJECT SCHEDULE
ANNEX 3 - DMS-MTX ACCEPTANCE CRITERIA
ANNEX 4 - TURNOVER AND ACCEPTANCE NOTICES
ANNEX 5 - SELLER WARRANTY SERVICES
ANNEX 6 - SOFTWARE LICENSE
ANNEX 7 - DOCUMENTATION
i
<PAGE> 3
NORTHERN TELECOM, INC.
DMS-MTX CELLULAR
SUPPLY AGREEMENT
AGREEMENT dated June 1, 1996, by and between Youngstown Cellular Telephone
Company (hereinafter referred to as "Buyer") a Partnership with offices
located at 3910 South Avenue, Youngstown, Ohio 44512-1399 and Northern Telecom
Inc., a Delaware corporation with offices located at 2435 N. Central
Expressway, Richardson, Texas 75080 (hereinafter referred to as "NTI" or
"Seller").
WITNESSETH:
In consideration of the mutual promises and covenants hereinafter set forth,
the parties hereby agree as follows:
1. DEFINITIONS
As used herein, the following capitalized terms have the following
meanings:
1.1 "CELL SITE" shall mean any Seller-engineered Hardware and Software
comprised of Seller radios and common equipment, but not Switch or
Switch-related equipment.
1.2 "COMMISSIONING" shall mean the on-site testing of Equipment
installed by Seller in accordance with Seller's Acceptance Criteria
set forth in Annex 3 hereof.
1.3 "DOCUMENTATION" shall mean System documentation, whether in written
or electronic form, delivered to Buyer in the medium set forth in
Buyer's Purchase Order, such media being more fully described in
Annex 7, "Documentation." All Documentation delivered to Buyer
shall be subject to any copyright and confidentiality restrictions.
1
<PAGE> 4
1.4 "EQUIPMENT" shall mean either singularly or collectively the
NTI-manufactured 800 MHz Hardware and Software products provided
hereunder. The terms of this Agreement applicable to "Equipment"
shall also be deemed to apply to OEM Equipment, unless otherwise
expressly excluded in this Agreement and subject to the limitations
set forth in Section 2.1.4 hereof.
1.5 "EXPANSION" shall mean Equipment (which may in certain circumstances
include a Cell Site) added to a System after Turnover that is beyond
the wired-for System capacity as provided in its original
configuration, and which Equipment requires Seller engineering and
Installation/Commissioning Services.
1.6 "HARDWARE" shall mean the NTI hardware components listed in Annex 1
as may comprise a System, an Expansion, a Cell Site, or Merchandise.
1.7 "INSTALLATION" shall mean the installation of Equipment by Seller.
1.8 "INSTALLATION SITE" shall mean the location (contiguous United
States) specified in Buyer's Purchase Order for Installation of a
Switch and/or Cell Sites.
1.9 "MERCHANDISE" shall mean miscellaneous components of Hardware, with
respect to which no engineering, Installation, or Commissioning are
to be provided by Seller.
1.10 "OEM EQUIPMENT" shall mean miscellaneous items of non-NTI equipment
made available for sale to Buyer by Seller under this Agreement, not
integrated into the Hardware during the manufacturing process.
1.11 "PROJECT SCHEDULE" shall mean those delivery, installation and/or
in-service dates, as applicable, proposed by Buyer and accepted by
Seller.
1.12 "PURCHASE ORDER" shall mean any Purchase Order issued by Buyer
hereunder to Seller pursuant to Section 3 of this Agreement.
2
<PAGE> 5
1.13 "SERVICES" shall mean those services performed by Seller under this
Agreement.
1.14 "SHIP DATE" shall mean the scheduled date agreed upon by Buyer and
Seller as the date on which the appropriate Equipment shall be
shipped.
1.15 "SOFTWARE" shall mean the proprietary and/or third party software
computer programs (consisting of firmware and logic instructions in
machine-readable code residing in, or intended to be loaded in
System memories which provide basic logic, operating instructions
and user-related application instructions, but excluding customer
data) as well as associated documentation used to describe, maintain
and use the programs which are integral to any Hardware furnished to
Buyer. Any reference herein to Equipment or Software being "sold,"
"purchased" or the like is understood to be a reference in fact to
the program being licensed.
1.16 "SPECIFICATIONS" shall mean the specifications and performance
standards of the Hardware, Software and System as set forth in the
applicable sections of Northern Telecom Practices ("NTPs"),
incorporated herein by reference. Seller shall have the right, at
its sole discretion to modify, change or amend the Specifications at
any time during the term of this Agreement.
1.17 "SWITCH" shall mean a DMS-MTX 800 MHz switching component.
1.18 "SYSTEM" shall mean the combination of a Switch and one or more Cell
Sites furnished hereunder requiring Seller engineering and
Installation/Commissioning Services.
1.19 "TERM" shall mean the period commencing on the date first set forth
above (hereinafter "Effective Date") and ending thirty-six (36)
months therefrom, unless terminated earlier in accordance with the
terms and conditions hereof, or unless extended by the mutual
written consent of the parties hereto.
1.20 "TURNOVER" shall mean that time when Seller has completed
Installation and Commissioning of a Switch, Cell Site or Expansion
and turns over such equipment for Buyer's placing into service.
3
<PAGE> 6
1.21 "WARRANTY PERIOD" shall mean:
1.21.1 With respect to the Hardware engineered, furnished and installed by
Seller, a period of twelve (12) consecutive months from the date of
Turnover.
1.21.2 With respect to Cell Sites not installed by Seller, thirteen (13)
consecutive months from the shipment date.
1.21.3 With respect to the Software, a period of twelve (12) consecutive
months from the date of Turnover.
1.21.4 With respect to Merchandise, a period of ninety (90) consecutive
days from the shipment date of that Merchandise.
2. SCOPE
2.1 During the Term, in accordance with an appropriate Purchase Order
issued by Buyer for Equipment and/or Services, Seller shall:
2.1.1 engineer, deliver, install (or have installed) and Commission the
Equipment for use in the continental United States;
2.1.2 grant to Buyer a nonexclusive license to use all Software associated
with, and integral to, Hardware purchased by Buyer hereunder, which
license shall continue beyond the Term, in accordance with Annex 6
attached hereto;
2.1.3 carry out the Installation of Equipment at the applicable
Installation Site substantially in accordance with the Sample
Project Schedule set forth in Annex 2 and in accordance with the
relevant Purchase Orders;
2.1.4 furnish OEM Equipment to Buyer at prices to be quoted by Seller and
in accordance with such OEM vendor's then-current terms, conditions
and specifications.
2.2 During the Term, in accordance with appropriate Purchase Order(s)
issued by Buyer and accepted by Seller, Buyer shall:
4
<PAGE> 7
2.2.1 purchase Seller Hardware, Software products, engineering,
Installation and commissioning Services totaling not less than
twenty (20) million dollars ($20,000,000) net price ("Volume
Purchase Commitments") during the Term, to qualify for the discounts
set forth in Section 1.1 of Annex 1, ("Volume Discount.
2.2.2 Should Buyer fail to meet the obligations under the Commitment, then
Buyer shall pay to Seller a termination charge, as set forth in
Section 1.2 of Annex 1, for the balance of the Commitment that
remains at the end of the Term. Such amount shall be due and payable
within thirty (30) days following the date of Seller's invoice
therefor.
2.3 If and when Buyer wishes to purchase CDMA 800 MHz products from
Seller during the Term of this Agreement, Seller and Buyer will in
good faith negotiate an amendment to this Agreement containing terms
and conditions applicable to such products to accommodate the sale
and purchase of such products, as mutually agreed to by Buyer and
Seller.
3. PURCHASE ORDERS
3.1 Each Purchase Order for Equipment and/or Services issued during the
Term of this Agreement, or as it may be extended, shall be governed
by the terms and conditions of this Agreement, and shall incorporate
these terms and conditions by reference. Buyer hereby expressly
agrees that except for non-conflicting administrative terms as
provided below, any additional or preprinted terms or conditions on
the applicable Purchase Order, shall be null, void and of no effect.
Each such Purchase Order shall specify:
3.1.1 The description of the ordered Equipment and/or Services, including
any identification referenced in the price list herein attached as
Annex 1;
3.1.2 Requested place and date of delivery as previously agreed by Seller;
3.1.3 Applicable Price for the ordered Equipment and/or Services as set
forth in Annex 1 or as may be separately quoted by Seller from time
to time;
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3.1.4 Prices for Equipment engineering, installation and testing to be
quoted by Seller, together with a mutually agreed Installation and
Turnover schedule;
3.1.5 Installation Site(s) where applicable;
3.1.6 Other appropriate information as may be required by Seller necessary
to fill the Purchase Order such as Buyer's floor plan and frequency
plan; and
3.1.7 Location to which the applicable invoice shall be rendered for
payment.
3.2 Any Purchase Order issued by Buyer and not rejected in writing
within ten (10) business days after receipt by Seller shall be
deemed accepted.
4. PRICE
4.1 The price ("Price") for any Equipment shall consist of (i) unit list
prices for Hardware and Merchandise, as set forth in Annex 1; (ii)
license fees to use the Software associated with such Hardware, as
set forth in Annex 1; and (iii) for OEM Equipment and Services, the
Prices as may be quoted by Seller from time to time.
4.2 Unless otherwise specified, the Prices set forth in Annex 1 are
exclusive of it Seller's charge for any Services associated
therewith.
4.3 The Prices are exclusive of any taxes, which shall be the
responsibility of Buyer pursuant to Section 5.4 hereof.
5. PAYMENT
5.1 With respect to Purchase Orders for Equipment that include
Installation Services therefor, Buyer shall pay to Seller the
appropriate Price in accordance with the following schedule:
5.1.1 100% of the Purchase Order Price shall be invoiced by Seller upon
shipment of the Switch in the case of a System Installation or, in
the case of an Expansion or Cell Site installation, upon shipment of
the major components to the Installation Site. Such payment shall be
paid to Seller within thirty (30) days following the date of
Seller's invoice therefor.
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5.2 Any additional monies that become due to Seller (including, without
limitation, Merchandise orders, Service orders, such items as are
described in Section 5.4, Equipment purchases wherein Installation
is not provided by Seller, and OEM Equipment not part of the
original System order) shall be invoiced one hundred percent (100%)
upon shipment, or upon completion of Services performed, and paid to
Seller by Buyer within thirty (30) days of Seller's invoicing Buyer
therefor. In the case of a phased Installation, or if portions of an
Installation are delayed due to no fault of Seller, Seller may
invoice on a per Installation Site basis upon completion of the
applicable milestone event.
5.3 All past due amounts (collectively, "Past Due Amounts") shall bear
interest at the rate of one and one-half percent (1 1/2%) per month
(or such lesser rate as may be the maximum permissible rate under
applicable law), beginning with the date on which the applicable
Past Due Amount was due and payable.
5.4 Except for any franchise tax or any tax assessed on Seller's net
income, Buyer shall pay to Seller the amount of any sales and/or use
tax, duty, excise tax, fee or similar charges which Seller may be
required to pay because of its performance of this Agreement.
Personal property taxes assessable on the Equipment shall be the
responsibility of Buyer. To the extent Seller is required by law to
collect such taxes (state or local), one hundred percent (100%)
thereof shall be added to invoices as separately stated charges and
paid in full by Buyer, unless the Buyer is exempt from such taxes
and furnishes Seller with a certificate of exemption prior to
issuance of invoice in a form reasonably acceptable to Seller. Buyer
shall hold Seller harmless from any and all subsequent assessments
levied by a proper taxing authority for such taxes, including any
interest, penalties or late charges due to Buyer's failure to
perform hereunder.
5.5 Until the total Price for each Purchase Order is paid to Seller,
Seller shall retain and Buyer hereby grants to Seller a purchase
money security interest in the Equipment, as applicable, and Buyer
shall cooperate with Seller in perfecting such interest.
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5.6 Prior to payment in full of the Price and all additional monies due
to Seller, without written permission of Seller, Buyer shall not
sell or lease Equipment purchased by it, or assign any license to
use the Software, or allow any liens or encumbrances to attach to
any such Equipment, or remove such Equipment or Software from the
Installation Site (if applicable).
5.7 Seller reserves the right to require reasonable assurances of
payment by Buyer, e.g., funded financing by a financial institution
acceptable to Seller or letter of credit from a reputable bank
provided by Buyer to Seller not later than thirty (30) days prior to
the scheduled Ship Date. Seller may, from time to time, evaluate
Buyer's credit standing, and on that basis, establish a credit limit
to accommodate Buyer's issuance of Purchase Orders as herein
provided. Buyer shall provide any reasonable assistance requested
by Seller necessary for Seller to make such evaluation.
6. DELIVERY, RISK OF LOSS, TITLE
6.1 Equipment shall be shipped F.O.B. the place of shipment with freight
charges prepaid and invoiced back to Buyer, except that in the case
of a Switch purchase or a Cell Site purchase that includes the E, F,
and I option, Seller we be responsible for freight charges. Seller
will select the method and common carrier for shipment unless
otherwise specified by Buyer on the Purchase Order, in which case,
Buyer will be responsible for any additional premium freight
charges.
6.2 Title and risk of loss or damage to any Equipment furnished by
Seller to Buyer in accordance with this Agreement shall pass to
Buyer upon delivery. Seller warrants to Buyer that such title shall
be good and clear title, free and clear of all liens and
encumbrances. The foregoing notwithstanding, title to Software shall
not pass to Buyer at any time.
6.3 Not later than thirty (30) days prior to the earliest Ship Date
relating to any of the items covered by the applicable Purchase
Order Buyer may notify Seller that Buyer (i) does not wish to
receive shipment of any Equipment on the date set forth in such
Purchase Order, or (ii) that Buyer's facilities are not prepared
pursuant to Annex 2 hereof in sufficient time for Seller to
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make delivery pursuant to the date set forth in the applicable
Purchase Order. In such case Seller shall have the right to place
such Equipment in storage and Buyer shall be liable for all
additional transportation, demurrage, loading, storage, and
associated costs thereby incurred by Seller. The shipment of
Equipment to a storage location as provided in this Section 6.3
shall be deemed to constitute shipment of the Equipment for purposes
of invoicing, passage of title and risk of loss, and commencement of
the Warranty Period.
7. WARRANTIES, REMEDIES AND LIMITATION OF WARRANTIES
AND REMEDIES AND DISCLAIMERS OF WARRANTIES AND LIABILITY
7.1 Hardware and Services Warranty
7.1.1 Seller warrants that during the Warranty Period, the Hardware
furnished under this Agreement shall be free from defects in
material and workmanship, and shall conform to the applicable
portions of the Specifications, and that the Services furnished
under this Agreement shall be performed in a professional and
workmanlike manner. Any and all claims for breach of this warranty
are conclusively deemed waived unless made during the Warranty
Period. Performance of Seller's obligations hereunder shall not
extend the Warranty Period, except that any Hardware and/or Services
repaired, replaced or corrected during the Warranty Period shall
continue to be warranted for the balance of the Warranty Period.
7.1.2 Seller's sole obligation and Buyer's exclusive remedy under this
warranty are limited to the replacement or repair, at Seller's
option, of the defective component of the Hardware, or the
correction of the faulty Services. Such replacement Hardware may be
new or reconditioned to perform as new, at Seller's option. Buyer
shall bear the risk of loss and damage and all transportation costs
for defective Hardware shipped to Seller; and Seller shall bear the
risk of loss and damage and all transportation costs for replacement
Hardware shipped to Buyer. Title to defective or replacement
Hardware shall pass to Seller or Buyer, as appropriate, upon receipt
thereof.
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7.2 Software Warranty
Seller warrants that, provided the Software is not altered by Buyer,
and provided the Software is used in conjunction with the DMS-MTX
Hardware purchased under this Agreement and such Hardware has been
maintained in accordance with Seller's recommended maintenance
procedures, the Software shall function during the Warranty Period
without defects which materially affect Buyer's use of the Software
in accordance with Seller's Specifications for the Software. In the
event the Software fails to so perform and Buyer's use of the System
is materially affected by such failure, Buyer's exclusive remedy
under this warranty is to require Seller to correct such failure and
such remedy is conditioned upon Seller's receiving written notice
within the Warranty Period (or oral notice promptly confirmed in
writing) of such failure. The correction of any Software failure
shall not extend the Software Warranty Period.
7.3 Response Services/Time
7.3.1 During the Warranty Period, Seller's technical assistance service
("TAS") department shall provide reasonable assistance in the
investigation and resolution of service-affecting problems. If such
assistance is requested by Buyer, Buyer agrees to follow Seller's
standard policies and procedures related to such TAS services as set
forth in Annex 5, "Seller Warranty Services." The Hardware Warranty
Period shall include TAS only to the extent that any TAS services
provided under the Switch warranty also apply to Hardware operating
in conjunction with the applicable Switch. For routine warranty
service situations, Seller shall ship replacement or repaired
Hardware (or components thereof) within thirty (30) days of receipt
of the defective Hardware (or components thereof) from Buyer.
7.3.2 For emergency warranty service situations, Seller shall, during the
Warranty Period, use all reasonable efforts to ship replacement
Hardware (or components thereof) within twenty-four (24) hours of
notification of the warranty defect by Buyer. Buyer shall pay to
Seller the surcharge set forth in Annex 5, for such expedited
shipment of replacement Hardware. Buyer shall ship the defective
Hardware to Seller within thirty (30) days of receipt of the
replacement Hardware. In the event Seller fails to receive such
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defective Hardware within such thirty (30) day period, Seller shall
invoice Buyer for the replacement Hardware at the then-current price
in effect therefor. For the purpose of this Agreement, an emergency
shall be deemed to exist upon the occurrence of a Priority E1 or E2
problem, as defined in Annex 5.
7.4 THE WARRANTIES AND REMEDIES SET FORTH ABOVE CONSTITUTE
THE ONLY WARRANTIES WITH RESPECT TO THE EQUIPMENT AND
SERVICES PROVIDED, AND BUYER'S EXCLUSIVE REMEDIES IN THE
EVENT SUCH WARRANTIES ARE BREACHED. THEY ARE IN LIEU OF
ALL OTHER WARRANTIES WRITTEN OR ORAL, STATUTORY, EXPRESS
OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTY OF
MERCHANTABILITY AND THE WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE. SELLER SHALL NOT BE LIABLE FOR ANY
INCIDENTAL CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY
NATURE WHATSOEVER.
7.4.1 Seller's obligations under this Article 7 shall not apply to (i)
Equipment or components thereof such as fuses and bulbs that are
normally consumed in operation, or have a normal life inherently
shorter than the Warranty Period; (ii) defects that are the result
of improper storage, installation, use, maintenance or repair by the
Buyer (including, without limitation, operation of the Equipment
outside the environmental parameters defined in the Specifications);
(iii) improper operation of Equipment with other hardware used by
Buyer, including the operation of Equipment with hardware not
authorized by Seller for use with the Equipment, or use of the
Equipment with any improperly operating equipment not supplied by
Seller under this Agreement; (iv) Equipment or components thereof
that due to no fault of Seller have been subjected to any other kind
of misuse or detrimental exposure or have been involved in an
accident, fire explosion, Act of God, or any other cause not
attributable to Seller, or (v) Equipment or Installation Services
altered, repaired, installed or relocated by any party other than
Seller or Seller's agents. For purposes of subsection (v), "install"
shall not mean the routine plug-in of the components done in
accordance with NTP guidelines.
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7.5 OEM Equipment
7.5.1 OEM Equipment furnished under the initial Purchase Order in
conjunction with a Switch, (e.g., terminals and printers), shall be
warranted in accordance with the Hardware warranties set forth in
Section 7.1 and handled through Seller's Repair and Return
department. With respect to all other OEM items ordered by Buyer,
Buyer shall receive the warranties for such OEM Equipment directly
from such OEM vendors. Except for the warranty of title extended in
Section 6.2 hereof, the warranties provided in this Section 7.5 are
Buyer's sole and exclusive remedy against Seller with respect to OEM
Equipment provided under this Agreement.
8. FORCE MAJEURE
If the performance of this Agreement, or of any obligation hereunder
except for the obligations set forth in Article 5 is prevented,
restricted or interfered with by reason of fires, breakdown of
plant, labor disputes, embargoes, government ordinances or
requirements, civil or military authorities, acts of God or of the
public enemy, acts or omissions of carriers, inability to obtain
necessary materials or services from suppliers, or other causes
beyond the reasonable control of the party whose performance is
affected, then the party affected, upon giving prompt notice to the
other party, as set forth in Section 24.2 shall be excused from such
performance on a day-for-day basis to the extent of such prevention,
restriction, or interference (and the other party shall likewise be
excused from performance of its obligations on a day-for-day basis
to the extent such party's obligations relate to the performance so
prevented, restricted or interfered with); provided that the party
so affected shall use reasonable efforts to avoid or remove such
causes of non-performance and both parties shall proceed to perform
their obligations with dispatch whenever such causes are removed or
cease.
9. PATENT OR COPYRIGHT INFRINGEMENTS
9.1 Seller agrees to indemnify Buyer with respect to any suit, claim, or
proceeding brought against Buyer alleging that Buyer's use of the
Equipment constitutes an infringement of any United States patent or
copyright. Seller agrees to defend Buyer against any such claims and
to
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pay all litigation costs, reasonable attorneys fees, settlement
payments and any damages awarded in any final judgment arising from
such suit, claim or proceeding; provided, however, that Buyer shall
promptly advise Seller of any such suit, claim, or proceeding and
shall cooperate with Seller in the defense or settlement of such
suit, claim or proceeding and provided Seller shall have sole
control thereof.
9.2 In the event that an injunction is obtained against Buyer's use of
Equipment arising from such patent or copyright suit, claim or
proceeding, in whole or in part, Seller shall, at its option,
either: (i) procure for Buyer the right to continue using the
portion of a System enjoined from use; or (ii) replace or modify the
same so that Buyer's use is not subject to any such injunction.
9.3 In the event that Seller cannot perform under Section 9.2, Buyer
shall have the right to return such Equipment or portion thereof to
Seller upon written notice to Seller and in the event of such
return, neither party shall have any further liabilities or
obligations under this Agreement, except that Seller shall refund
the depreciated value of any such Equipment or portion thereof as
carried on the Buyer's books at the time of such return.
9.4 Seller's indemnity obligations under Section 9.1 shall not apply to
infringement claims (i) arising from any portion of the Equipment
that is manufactured to Buyer's design, or (ii) arising from the use
of the Equipment in combination with any other apparatus or material
not supplied by Seller to the extent that the claims arise from such
combination usage.
9.5 The foregoing states the entire liability of Seller for patent or
copyright infringement by the Equipment. Seller shall have no
liability whatsoever for any patent or copyright infringement
arising from Buyer's use of the OEM Equipment, and Seller makes no
warranty with respect thereto.
10. SOFTWARE LICENSE
10.1 With respect to Equipment containing Software acquired under this
Agreement, Buyer is hereby granted a non-exclusive license to use
the
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Software in accordance with the terms set forth in Annex 6,
"Software License." Buyer is granted no title or ownership rights to
the Software, which rights shall remain in Seller or Seller's
suppliers as appropriate. An initial Software license fee paid by
Buyer shall not cover charges for future Software releases as
contemplated in Section 11, and which fees are set forth in Annex 1.
10.2 From time to time Seller may, at its discretion, offer to license,
at variable fees, optional Software features to Buyer for use on
Buyer's System. Such variable fees shall be calculated on the basis
of measurable units of usage. The criteria for measurement may vary
from feature to feature, but will consist of units that may be
quantified, such as, by way of example and not limitation, radios
(voice channels), effective traffic channels, cell sites or
subscribers (hereinafter "measurable units"). For purposes of this
Article 10, "System" shall mean, in addition to the definition set
forth in Section 1.18 hereof, Buyer's DMS-MTX and all interconnected
cell sites.
10.2.1 A list of Seller's current variable license fee offerings is
included in Annex 1, as amended from time to time. Seller shall
notify Buyer of any price increases affecting such features not
later than sixty (60) days prior to the effective date. All such
updates to Annex 1 shall be provided to Buyer under separate cover
and shall be deemed to be incorporated herein by reference. The fees
for all such features shall be subject to a minimum charge as
determined for each individual Software feature; however, the total
fees for each individual Software feature based on the total number
of such measurable units quantified during the duration of the
Software license will not aggregately exceed the then-current fixed
rate price for that particular feature. Buyer, at its option, may
license such Software features at the applicable fixed-rate price.
10.2.2 In the event Buyer elects to license certain Software features on a
measurable unit basis as described hereinabove, Buyer hereby gives
Seller the right to audit Buyer's System either remotely or
visually, or some combination thereof, for purposes of determining
such unit quantities. Seller shall conduct an audit at the time the
applicable Software is loaded onto Buyer's DMS-MTX to determine the
initial quantity of measurable units. Thereafter, Seller shall have
the right to audit Buyer's System on an
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annual basis as set forth herein. Following each annual audit, Buyer
shall be invoiced for any additional measurable units as compared
with the preceding twelve-month period total. No license fees shall
be pro rated because of usage of any additional measurable units
during any portion of the preceding twelve-month period. Payment
shall be made to Seller by Buyer for all license fees and associated
taxes in accordance with Article 5 of this Agreement. Seller's right
to audit and invoice Buyer in accordance with this Section 10.2
hereof for measurable units added following the expiration of the
Agreement shall survive the term of the Agreement.
10.3 The obligations of Buyer under this Article 10 and Annex 6 shall
survive the termination of this Agreement, regardless of the cause
of termination.
11. SOFTWARE UPDATES
11.1 The license fees set forth in Annex 1 for additional Software
releases assume that Buyer's System is operating on Software at the
same level of maintainability as set forth in Section 11.3 hereof.
Otherwise, retrofitting features from a new release onto Buyer's
System shall be considered and quoted by Seller on a case-by-case
basis. Additionally, future Hardware purchases may require the
support of a then-current Software load.
11.2 Any such Software release may require the purchase of additional
Hardware by Buyer.
11.3 If Buyer elects to remain on a prior Software release, Seller's sole
obligation hereunder shall be to make available maintenance for the
Software for the previous two consecutive releases from the
then-current, Seller-numbered release (i.e., numbered Software
load).
12. REMEDIES
12.1 Seller shall have the right to suspend its performance under this
Agreement by written notice to the Buyer and forthwith remove and
take possession of any portion of the Equipment that has been
delivered if the Buyer, prior to payment to Seller of the Price,
shall become insolvent or
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bankrupt, make a general assignment for the benefit of, or enter
into any arrangement with creditors, file a voluntary petition under
any bankruptcy, insolvency, or similar law, or have proceedings
under any such laws or proceedings seeking appointment of a
receiver, trustee or liquidator instituted against it which are not
terminated within thirty (30) days of such commencement.
12.2 In the event of any material breach of this Agreement by either
party which shall continue for thirty (30) or more days after
written notice of such breach (including a reasonably detailed
statement of the nature of such breach) shall have been given to the
breaching party by the aggrieved party, the aggrieved party shall be
entitled at its option:
12.2.1 if the aggrieved party is the Buyer, to suspend its performance
under Article 5 of the Agreement for so long as the breach continues
uncorrected or;
12.2.2 if the aggrieved party is Seller, to suspend performance of all of
its obligations under the Agreement for so long as the breach
continues uncorrected or;
12.2.3 to avail itself of any and all remedies available at law or equity
whether or not it elects to suspend its performance under Section
12.2.1 or 12.2.2 as applicable.
12.3 NOTWITHSTANDING THE PROVISIONS OF SECTION 12.2. OR ANY OTHER
PROVISION OF THIS AGREEMENT, SELLER SHALL NOT BE LIABLE FOR
INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY
NATURE WHATSOEVER FOR ANY ACTION ARISING UNDER THIS AGREEMENT.
12.4 Any action for breach of this Agreement or to enforce any right
hereunder shall be commenced within two (2) years after the cause of
action accrues or it shall be deemed waived and barred (except that
any action for nonpayment may be brought at any time permitted by
applicable law).
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13. BUYER'S RESPONSIBILITIES
13.1 With respect to Equipment Installation, Buyer agrees that certain
duties shall be performed by the Buyer in a timely and proper
fashion as a condition precedent to Sellers obligations hereunder,
including, but not by way of limitation, those responsibilities
designated in Annex 2 (Statement of Work) as being the Buyer's, and
the following:
13.2 Buyer shall prepare the Installation Site(s) in accordance with
Seller's requirements for the Equipment as further set forth herein
and in Annex 2, no later than by the project dates as stated in
Purchase Order(s) accepted by Seller pursuant to the terms of this
Agreement.
13.3 Buyer, at its expense, shall obtain all necessary local and federal
government permits applicable to a cellular telecommunications
system installation and operation (excluding any applicable permits
required in the normal course of Seller's doing business). Buyer
understands and agrees that all site engineering (including cell
sites) architectural work, civil work and supervision thereof, site
selection engineering, propagation engineering, environmental
approvals and rights-of-way are the responsibility of Buyer.
13.4 Buyer shall insure that only qualified technicians shall perform any
maintenance and/or repair to the Equipment during the Warranty
Period, which maintenance and/or repair shall be confined to routine
tasks performed in accordance with Seller provided specifications.
14. TESTING, TURNOVER AND ACCEPTANCE
14.1 On completion of Installation of Equipment installed by Seller,
Seller shall provide Buyer five (5) days prior written notification
that such Equipment is ready for Commissioning. Following such
notification, Buyer agrees to have a representative present to
witness and acknowledge completion of such testing. Seller shall
test the Equipment in accordance with its standard testing
procedures to determine Equipment conformity with the standards and
specifications (hereinafter "Acceptance Criteria") of the
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applicable Seller installation manuals as referenced in Annex 3,
"DMS-MTX Acceptance Criteria, as may be amended from time to time.
14.2 On the date that such Commissioning has been successfully completed,
Seller shall turn the Equipment over to Buyer ("Turnover"). On the
date of Turnover, Buyer shall complete and return to Seller the
"Turnover Notice" as described in Annex 4.
14.3 For purposes of this Agreement, the occurrence of any of the
following shall be deemed to constitute "Acceptance" of the
Equipment:
14.3.1 Within fifteen (15) days following the date of Turnover, Buyer shall
either accept the Equipment in writing as provided in Annex 4,
"Acceptance Noticed or notify Seller in writing specifying in
reasonable detail those particulars in which the Equipment does not
meet the Acceptance Criteria. With respect to any such particulars,
Seller shall promptly proceed to take corrective action, and
following correction, Buyer shall accept the Equipment in writing.
14.3.2 The failure of Buyer to notify Seller within fifteen (15) days after
Turnover (or, in the case of correction, fifteen [15] days following
such correction) of any particulars in which the Equipment does not
meet the Acceptance Criteria, or the use by Buyer of the Equipment
or any portion thereof in revenue-producing service at any time,
shall be deemed to constitute Acceptance of such Equipment.
14.4 Acceptance of Equipment not installed by Seller shall be deemed to
occur upon receipt of and inspection by Buyer.
15. COVERAGE, INTERFERENCE AND THIRD-PARTY FACILITIES
15.1 Seller will not be responsible for radio propagation or coverage
distance due to Buyer's design. Seller shall not be responsible for
any failures or inadequacies of performance resulting from equipment
not supplied and installed by Seller or Seller's agents and
subcontractors pursuant to this Agreement. Seller shall not be
responsible for interference or disruption of service caused by
operation of other radio systems, lightning, motor ignition or other
similar interference.
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15.2 In the event Buyer utilizes facilities or services supplied by
others such as common carrier circuits or towers, Seller shall have
no responsibility for the availability or adequacy of such services
or facilities.
16. REGULATORY COMPLIANCE
16.1 Seller shall use all reasonable efforts to install Equipment so that
it shall comply in all material respects with all Federal, State,
and local laws and regulations in force on the Effective Date of
this Agreement, which directly impose obligations upon the
manufacturer, Seller, or installer thereof.
16.2 The prices set forth for the Equipment described herein are based on
Seller's design, manufacture, and delivery of the Equipment pursuant
to its design criteria and manufacturing processes and procedures in
effect on the Effective Date of this Agreement. If, as a result of
the imposition of requirements by any Federal, State or local
government during the Term of this Agreement there is a change in
such criteria, processes or procedure or any change in the
Equipment, the Prices will be adjusted equitably to reflect the
added cost and expense of such change.
17. CHANGES
17.1 Up to ninety (90) days prior to the scheduled Ship Date (or such
later time as is acceptable to Seller), Buyer may request Equipment
addition(s) or deletion(s) to an original Equipment configuration.
At any time prior to the start of Commissioning, Buyer may request
changes to the Project Schedule or Statement of Work. All such
Equipment reconfigurations or changes to the Statement of Work or
Project Schedule ("Changes") shall be subject to prior written
approval of Seller.
17.2 Except as provided in 17.3 below, all Changes shall be documented in
a written change order ("Change Order"), which shall be executed by
Buyer and returned to Seller prior to implementation of the
requested Changes. The Change Order shall detail any adjustments to
the Price, Statement of Work, or Project Schedule required by Seller
for any aspect of its performance under this Agreement.
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17.3 Upon written request of Buyer for a Change to the Statement of Work
that entails additional services totaling $10,000, or less, and upon
written acceptance thereof by Seller, Seller will proceed in good
faith to implement such Change prior to receipt of an executed
Change Order. Within five (5) days following Buyer's written
request, the parties shall agree upon an appropriate price for such
Changes, all of which will be summarized in a subsequent Change
Order and executed by an authorized representative of Buyer within
fifteen (15) days following the date of the request for Change.
17.4 Calculations for any System reconfigurations prior to the Ship Date
shall be based on Prices set forth in Annex 1, provided that (i) any
additions shall include any necessary engineering, Installation and
testing charges and (ii) any deletions shall include applicable
discounts, and further provided that the net cumulative amount of
Changes shall not reduce the Price of a Purchase Order by more than
ten percent (10%).
17.5 Upon prior written notification to Seller, Buyer may elect to cancel
Purchase Orders prior to shipment of Equipment subject to the
following:
17.5.1 Without charge, Buyer may cancel any Purchase Order no later than
ninety (90) days prior to the earliest scheduled Ship Date; or
17.5.2 If Buyer cancels a Purchase Order less than ninety (90) days prior
to the earliest scheduled Ship Date, Buyer shall pay a cancellation
charge of ten percent (10%) of the Price to Seller; or
17.5.3 If Buyer cancels a Purchase Order less than sixty (60) days prior to
the earliest scheduled Ship Date, Buyer shall pay to Seller a
cancellation charge of fifteen percent (15%) of the Price; or
17.5.4 If Buyer cancels a Purchase Order less than thirty (30) days prior
to the earliest scheduled Ship Date, Buyer shall pay to Seller a
cancellation charge of twenty percent (20%) of the Price.
17.5.5 Buyer may not cancel a Purchase Order subsequent to the Ship Date.
The payment of such charges shall be Seller's sole remedy and
Buyer's sole obligation for such canceled Purchase Order(s).
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18. CONDITION OF INSTALLATION SITE(S)
Buyer warrants that the Installation Site is free from friable
asbestos or other hazardous contamination. In the event that such
contamination is found to be present at the Installation Site,
Seller shall be relieved of all of its obligations hereunder until
such contamination is removed. In the event that Buyer fails or
refuses to remove such contamination, Seller shall have the right to
remove the Equipment or portions thereof if already delivered and
relocate the Equipment to an alternate site provided by Buyer and
charge Buyer for (i) any additional delivery charges to the new
Installation Site, (ii) all materials expended at the site including
cabling, permanently affixed equipment, and those items which cannot
reasonably be removed for use elsewhere, (iii) specifically ordered
items requested by Buyer, and (iv) all labor and materials expended
at the sites relating to the relocation using Seller's then current
rates.
19. RELEASE OF INFORMATION
19.1 Unless required by law, or as otherwise permitted under this
Agreement, Buyer and Seller agree that the terms and conditions of
this Agreement shall not be disclosed to any other party without the
prior written consent of the other; provided, however, that Seller
may release information to Northern Telecom Ltd., its research and
development affiliates, Bell Northern Research and BNR Inc. or any
wholly-owned subsidiaries ("Affiliate") on a need-to-know basis.
19.2 Neither Buyer nor Seller shall publish or use any advertising, sales
promotion, press releases or publicity matters relating to this
Agreement without the prior written approval of the other.
20. CONFIDENTIALITY
Buyer, Seller and Seller's Affiliates shall receive in confidence
from each other all technical information, business information,
documentation and expertise which is either (i) stamped or otherwise
marked as being confidential or proprietary whether in written or
electronic form, or (ii) if delivered in oral form, is summarized in
a written memorandum and listed
21
<PAGE> 24
as being confidential ("Confidential Information") and shall not,
except as previously authorized in writing by the other party,
publish, disclose or make use of such information (except as
required by law and after notice to the other party), unless and
until the Confidential Information shall have ceased to be
proprietary as evidenced by general public knowledge or shall have
been legally acquired by such party. This prohibition against
disclosure, publication or use of Confidential Information shall not
restrict either party from developing similar information in the
exercise of its own technical skill, so long as such other
information is independently developed by such party without making
use of Confidential Information.
21. INTERCONNECTION TO SWITCH
21.1 Buyer understands that Equipment purchased hereunder does not
necessarily provide Buyer with a complete cellular
telecommunications System. In some cases, Buyer may intend to
interconnect the Equipment to an NTI DMS-MTX switch component, which
switch component, and the facilities for interconnection, may not be
included in Buyer's Purchase Order. In the event that Buyer
interconnects such Equipment to an NTI DMS-MTX switch not a part of
a complete System purchase (hereinafter "Host Switch"), it is
understood and agreed that the making and maintaining of all
necessary arrangements (whether commercial, legal or otherwise) with
the supplier of such NTI DMS-MTX switch component, including not
only arrangements necessary to permit the timely performance by
Seller of its responsibilities under this Agreement, (e.g., physical
and remote dial-up access to the Host Switch for installation and
services purposes), but also any arrangements necessary for the
ongoing operation of the Equipment in conjunction with the Host
Switch, shall be solely the responsibility of Buyer, and failure by
Buyer to timely make or maintain, any necessary arrangements shall
not excuse Buyer from its obligations under this Agreement. Seller
shall have no responsibility whatsoever under this Agreement for the
proper performance of the Host Switch or for any failures of the
Equipment resulting from improper performance of the Host Switch.
22
<PAGE> 25
21.2 Buyer further acknowledges and agrees that the proper operation of
the Equipment and/or the availability of optional Software features,
is dependent upon having the appropriate Software Release Load
operating on the Host Switch.
22. EQUIPMENT CHANGES
With respect to any Purchase Order issued under this Agreement,
notwithstanding any other provisions contained in this Agreement,
Seller has the right, without prior approval from or notice to
Buyer, to make changes in the Equipment in whole or in part, or in
the related Specifications or other related documentation, or to
substitute products of later design at any time prior to delivery
thereof, provided that such changes do not adversely affect
performance or function. Seller is not obligated to make any such
changes in items of the Equipment previously delivered.
23. ANNEXES
The following Annexes shall form an integral part of this Agreement
as though written out in full in this Agreement:
Annex 1 - Equipment/Pricing
Annex 2 - Statement of Work/Sample Project Schedule
Annex 3 - DMS-MTX Acceptance Criteria
Annex 4 - Turnover and Acceptance Notices
Annex 5 - Seller Warranty Services
Annex 6 - Software License
Annex 7 - Documentation
24. GENERAL
24.1 Buyer may assign or transfer this Agreement or any rights hereunder
to any other party only with the prior written consent of Seller. No
assignment or sublicense of or under this Agreement, or of any
rights under this Agreement, by Buyer, shall relieve Buyer of
primary responsibility for performance of Buyer's obligations under
this Agreement. Seller reserves
23
<PAGE> 26
the right to refuse to honor any assignment or sublicense which, in
the opinion of its legal counsel, would require it to violate any
United States export restriction, other law, or regulation. Seller
reserves the right to subcontract any portion of its obligation
under this Agreement, but no such subcontract shall relieve Seller
of primary responsibility for performance of Seller's obligations
under this Agreement.
24.2 Notices and other communications shall be transmitted in writing by
Certified U.S. Mail, postage prepaid, return receipt requested,
addressed to the parties as follows:
Northern Telecom Inc.
2435 N. Central Expressway
Richardson, Texas 75080
Attention: Director, Contracts
cc: Program Manager
Youngstown Cellular Telephone Co.
3910 South Avenue
Youngstown, Ohio 44512-1399
Attention: Mr. Albert Pharis, Jr.
Any notice given pursuant to this Section 24.2 shall be effective
five (5) days after the day it is mailed or upon receipt as
evidenced by the U.S. Postal Service return receipt card, whichever
is earlier.
24.3 This Agreement may not be modified or amended or any rights of a
party to it waived except in a writing signed by duly authorized
representatives of the parties hereto.
24.4 Failure by either party at any time to require performance by the
other party or to claim a breach of any provision of this Agreement
shall not be construed as affecting any subsequent breach or the
right to require performance with respect thereto or to claim a
breach with respect thereto.
24.5 Each party shall be liable for direct losses incurred by the other
party due to personal injury or damage to tangible property,
including the Hardware,
24
<PAGE> 27
which results from the negligence of that party's employees or
agents, provided, however, that nothing in this Section shall affect
or in any way increase Seller's obligation under this Agreement with
respect to the performance of the Hardware and/or Software Except
for personal injury, the total liability of Seller for all claims of
any kind for any loss or damage, whether in contract, warranty, tort
(including negligence), strict liability or otherwise, or claims for
indemnification arising out of, connected with, or resulting from
the performance or non-performance of this Agreement shall in no
case exceed the total Price of the Purchase Order accepted under
this Agreement giving rise to the claim.
24.6 The rights and obligations of the parties and all interpretations
and performance of this Agreement shall be governed in all respects
by the laws of the State of Texas except for its rules with respect
to the conflict of laws.
24.7 Article headings are inserted for convenience only and shall not be
used in any way to construe the terms of this Agreement.
24.8 The invalidity in whole or in part, of any provision of this
Agreement shall not affect the validity of the remainder of such
provision of this Agreement.
24.9 This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original and all of which taken together
shall constitute one and the same instrument.
24.10 Each party hereto represents and warrants that (i) it has obtained
all necessary approvals, consents and authorizations of third
parties and governmental authorities to enter into this Agreement
and to perform and carry out its obligations hereunder; (ii) the
persons executing this agreement on its behalf have express
authority to do so, and, in so doing, to bind the party thereto;
(iii) the execution, delivery, and performance of this Agreement
does not violate any provision of any bylaw, charter, regulation, or
any other governing authority of the party; and (iv) the execution,
delivery and performance of this Agreement has been duly authorized
by all necessary partnership or corporate action and this
25
<PAGE> 28
Agreement is a valid and binding obligation of such party,
enforceable in accordance with its terms
24.11 This Agreement constitutes the entire agreement between Seller and
the Buyer with respect to the subject matter hereof and supersedes
all previous negotiations, proposals, commitments, writings,
advertisements, publications and understandings of any nature
whatsoever. No agent, employee or representative of Seller has any
authority to bind Seller to any affirmation, representation, or
warranty concerning the System, except as stated in this Agreement
and unless such affirmation, representation, or warranty is
specifically included within this Agreement, it shall not be
enforceable by Buyer or any assignee or sublicensee of Buyer.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their representatives being thereunto duly authorized.
YOUNGSTOWN CELLULAR NORTHERN TELECOM INC.
TELEPHONE COMPANY
By /s/ ALBERT H. PHARIS, JR. By: /s/ MATTHEW J. DESCH
-------------------------- --------------------------------------------
(Authorized Signature) (Authorized Signature)
Name: Albert H. Pharis, Jr. Name: Matt Desch
----------------------- ------------------------------------------
(Type/Print) (Type/Print)
Title: President Title: General Manager and Group Vice President
---------------------- -----------------------------------------
Date: 6-28-96 Date: July 2, 1996
----------------------- -----------------------------------------
26
<PAGE> 29
ANNEX 1
EQUIPMENT/PRICING
The following Hardware, Services, and Software being provided under this
Agreement are subject to the following:
The Typical DMS-MTX Spares, Typical Cell Site Spares, and Typical RF Spares
Set listings may be changed by Seller in part or in whole during the life of
his Agreement depending on the configuration of said System as provided to
Seller by the Buyer. Any such change/update shall be explained in writing to
the Buyer by Seller within ninety (90) days from the date that the
changes/updates are made. Seller reserves the right, without notice, to make
changes in Hardware design or components as progress in engineering or
manufacturing methods may warrant. However, such changes shall not adversely
affect the System performance.
Unless otherwise specifically stated, installation, testing, and engineering
are not included in the prices listed herein. Hardware prices shall be at
Seller's then-current list pricing for DMS-MTX 800 MHz products subject to any
applicable discounts as described herein, which prices and any subsequent
updates thereto shall be provided to Buyer under separate cover and shall be
deemed effective sixty (60) days following prior written notice thereof to
Buyer at the address and to the attention of Buyer personnel as provided in
Section 24.2 of this Agreement, or as such address and personnel may be
updated from time to time by Buyer in writing to Seller.
1.0 HARDWARE DESCRIPTION UNIT PRICE
Switch Hardware Then Current List Price less
applicable volume discount
Cell Site Hardware Then Current List Price less
applicable volume discount
RF Hardware Then Current List Price less
applicable volume discount
1-1
<PAGE> 30
VOLUME DISCOUNT AND NEW SWITCH DISCOUNT SCHEDULE
1.1 Equipment Prices during the Term shall be at Seller's then-current List
Prices for DMS-MTX products, less the following discounts. OEM Equipment,
Installation, Commissioning, engineering and other Services do not
qualify for a discount.
Unless otherwise specifically stated, Installation, Commissioning and
engineering are not included in List Prices and will be quoted
separately.
The following discount percentages, as applicable, shall be applied to
Seller's then-current List Prices and shall be applicable to the Initial
Purchase Order and all Purchase Orders issued thereafter. Such discounts
are based on a commitment from Buyer to purchase an aggregate of
$20,000,000 worth of Equipment (net amount after discounts) during the
Term of the Agreement.
The new Switch discount detailed below ("New Switch Discount") is a stand
alone, one-time discount for the purchase of a complete new Switch. Only
the new Switch and the initial Software load and features installed with
such new Switch will receive this special discount. Following such
initial purchases, the Expansion Equipment Discount shall apply for
Equipment added on to such Switch.
AMPS/TDMA Volume Discount Structure:
EXPANSION NEW SWITCH
DISCOUNT DISCOUNT
-------- --------
Switch Equip 45% 60%
NT800 OR Cells w/ATC 42%
Other RF Infrastructure 40%
TRUII Radios (fixed price $4,850
per unit, includes discount)
Software 50% 65%
1-2
<PAGE> 31
PRICING TERMS AND CONDITIONS
a. The cumulative dollar amount of Seller Equipment purchased to achieve the
Volume Purchase Commitment may be a mix of Hardware (excluding OEM
Equipment), Switch Software, and Cell Sites for both NTI and RIP Markets.
All such Equipment shall be ordered by Buyer prior to June 30, 1999 with
delivery dates scheduled to occur no later than ninety (90) days
following June 30, 1999.
b. Buyer agrees to issue Purchase Order(s) (that are acceptable to Seller)
and take delivery of at least $2M of Equipment and/or Services by June
30, 1997 based substantially on the following configurations. Buyer is
not obligated to purchase this exact configuration of Equipment and can
make changes to such Equipment as mutually acceptable to both Buyer and
Seller.
16CH OMNI/ICRM CELL SITES
EQUIPMENT LISTING: LIST EXT
DESCRIPTION PEC QTY PRICE PRICE
- ----------- ----- --- ------- -------
16CH OMNUICRM/DRU/ATC CC1016NU 10 $115,534 $1,155,340
TRUII Radios RD0000NU 140 $10,500 $1,470,000
DICP w/DSP Module MA1034NU 2 $493,716 $987,432
(MTX/MTXM)
-------------
SUB-TOTAL EQUIPMENT $3,612,772
LESS APPLICABLE EXPANSION DISCOUNTS ($1,720,587)
-------------
TOTAL EQUIPMENT PRICE $1,892,185
-------------
E F & I
1 ICP-Standalone - EF&I MT1013NU 2 $12,534 $25,068
Live Switch CP Install MI1016NU 1 $6,300 $6,300
Cell Site EF&I CE0000NU 10 $110,580 $110,580
-------------
TOTAL EF&I $141,948
-------------
TOTAL PRICE $2,034,133
=============
SCOPE OF QUOTE:
1. Quote includes: 16CH OMNI/ICRM/TRUII/ATC cell sites with Switch support
equipment.
2. Installation, engineering & freight included in quote.
3. Pricing discount: Switch 45%; NT800DR Cell site 42%; TRUII @$4,850.
4. Delivery: All equipment shipped by June 30, 1997.
1-3
<PAGE> 32
c. P3 Analog Radios will not be sold under this Agreement.
1.2 At the end of the Term, Seller shall calculate any termination fee (as
explained in Section 2.2.2) on the basis of Buyer's net volume
purchase(s) during the term of the Agreement. The termination fee as
stated in Table A below will be determined by calculating Buyer's actual
net volume purchases to be applied as a percentage against the balance of
the Commitment that remains at the end of the Term. Buyer shall pay
Seller the termination fee within thirty (30) days of receipt of invoice
from Seller.
TABLE A
Actual Net Volume Purchases
<TABLE>
<CAPTION>
$0M-4.0M $4.1M-8.0M $8.1M-12.0M $12.1M-16.0M 16.1M-19.9M
-------- ---------- ----------- ------------ -----------
<S> <C> <C> <C> <C> <C>
Termination Fee 20% 15% 10% 5% 2.5%
</TABLE>
For example: Buyer's actual net volume purchase(s) equal eighteen (18)
million dollars ($18,000,000) at the end of the Term of this Agreement.
Buyer's Volume Purchase Commitment (refer to Section 2.2.1) is equal to
twenty (20) million dollars ($20,000,000). The difference between Buyer's
Volume Purchase Commitment and Buyer's actual net volume purchase(s) at
the end of the Term is two (2) million dollars ($2,000,000). The
termination fee percentage applicable in this example would be two and a
half percent (2.5%) since the actual net volume purchase(s) equal
eighteen million dollars ($18,000,000) (refer to Table A of this
section). Therefore, the termination fee due to Seller from Buyer would
be equal to two and a half percent (2.5%) of the balance of the
Commitment that remains at the end of the Term ($2,000,000), or when
calculated, the termination fee is equal to fifty thousand dollars
($50,000). The following illustrates the termination fee equation:
A) Buyer's Volume Purchase Commitment
(per Section 2.2.1) = $20,000,000
Less Buyer's actual net volume purchase(s)
at end of term = ($18,000,000)
Remaining balance of Buyer's Commitment = $2,000,000
1-4
<PAGE> 33
B) Termination percentage fee applicable per
Table A of this Section = 2.5%
C) Termination fee = ($2,000,000 multiplied by 2.5%) = $50.000
=======
2.0 TRAINING
Seller's current recommended training courses for Buyer's technicians are
listed below. All training is conducted at Seller facilities in
Richardson, Texas. Upon request, Seller will provide then-current tuition
rates, which rates are exclusive of travel, lodging or per diem expenses,
which shall be for Buyer's account. Course content is subject to change
at Seller's discretion.
COURSE DESCRIPTION/NUMBER DAYS
------------------------- ----
Introduction to Cellular #921 3
Technical Introduction to Cellular #922 5
DMS-MTX Switch Maintenance #944 TBD
Analog Cell Site and Radio Maintenance #961 5
DRU Cell Site and Radio Maintenance #962 5
COURSE DESCRIPTION/NUMBER DAYS
------------------------- ----
Translations #980 8
Cell Site Database #982 5
International Translations #983 5
DMS-MTX Networking (IS-41 Rev. B) #984 5
1-5
<PAGE> 34
ANNEX 2
STATEMENT OF WORK/SAMPLE PROJECT SCHEDULE
1.0 This Statement of Work defines the work requirements and
responsibilities of both Seller and the Buyer which are necessary to
engineer, furnish, deliver, install and test the Equipment furnished
hereunder at the Installation Site(s) in accordance with the Project
Schedule contained herein. Seller's obligation to perform the
Services described hereunder assumes receipt and acceptance of a
valid Purchase Order for such Services and associated Equipment
2.0 Seller's Responsibilities
Seller, or its designated subcontractor, shall perform the
following:
2.1 Engineer, furnish, deliver, install and test all Equipment in
accordance with the applicable Specifications and in accordance with
this Annex 2. Any changes to the Statement of Work will cause
adjustments to this Annex and may affect the Equipment pricing.
2.2 In conjunction with a Switch Installation, furnish a Customer Input
("CI") Questionnaire and Data Base Engineering Questionnaire to
Buyer on or before the date as specified in the Project Schedule.
2.3 In conjunction with a Switch Installation, perform a site visit on
or before the date as specified in the Project Schedule to Buyer's
facilities to review the information requested on the
Questionnaires, survey the Installation Sites(s) and generate floor
plans to be used to engineer and install the Equipment. Any services
outside this Statement of Work requested by Buyer as a result of the
CI meeting shall be quoted by Seller, upon request by Buyer, and if
accepted by Buyer, will be documented in a Change Order pursuant to
Section 17 of the Agreement.
2.4 During a Switch Installation, provide draft floor plans for the
Switch Installation Site to the Buyer on or before the date as
specified in the Project Schedule. Floor plan layouts will be
finalized at the CI meeting.
2.5 Ship the Equipment for which Seller has accepted a Purchase Order to
the Installation Site location(s) specified below on or before the
date as specified in the Purchase Order and/or Project Schedule ("D"
Date). Delivery will be delayed if the Installation Site(s) are not
made ready by the "D" Date.
2-1
<PAGE> 35
2.5.1 SWITCH LOCATION
Name:___________________________________
Street Address:_________________________
City:___________________________________
State/Country/Zip Code:_________________
2.5.2 CELL SITE(S)
Name:___________________________________
Street Address:_________________________
City:___________________________________
State/Country/Zip Code:_________________
2.6 Begin the Installation on or before the date as specified in the
Project Schedule ("H" Date), of the Equipment specified in Buyer's
Purchase Order according to the applicable sections of the Northern
Telecom Installation Manual and the engineering specifications and
drawings generated for the Equipment. The Installation work will be
done in a professional workmanlike manner.
2.7 Provide all tools, installation and test equipment necessary for
performance of Seller's obligations listed in this Annex. Any use of
tools and/or test equipment by the Buyer must be approved by Seller
and may subject Buyer to additional charges.
2.8 Comply with the Buyer's security regulations for the Installation
Site(s).
2.9 Furnish the System Documentation as described in Annex 7 on or
before the date as specified in the Project Schedule.
2.10 Engineer, furnish, install and test the following materials required
to connect from Seller provided Equipment to the demarcation points
defined below:
2.10.1 RF Demarcation
The RF demarcation point is defined as the RF output connector
port(s) on the combiner(s) and the antenna input port(s) on the
receive multicoupler(s) in the cell site equipment frames. Seller
will provide all Equipment including voice frequency ("VF") and
radio frequency ("RF") cables, wire, and associated materials for
both inter- and intra-frame connections. (RF jumpers [including
connectors] to the Buyer's antenna system main transmission line
shall be provided by the Buyer in accordance with Section 3.6
herein.)
2-2
<PAGE> 36
2.10.2 Telco Facilities Demarcation
The Telco Facility demarcation point is defined as the Main
Distribution Frame (MDF) and shall be provided by the Buyer.
Terminal blocks required for Equipment, VF, data, and alarm cables
will be provided and installed by Seller on the Buyers MDF. Fifty
feet of each type cable (standard length) shall be provided by
Seller per Installation Site to connect the Equipment to the MDF.
Seller will cross connect the jumpers as directed by the Buyer.
Appropriate information must be supplied by the Buyer in such cases.
Additional cable and associated materials, if required, will be
provided at Buyer's expense. Seller shall terminate MTX DS-1 cables
to the Buyer-provided DSX-1 panel. Buyer shall be responsible for
bringing all other DS-1 facilities to the DSX-1.
2.10.3 DC Power System Demarcation
The DC power system demarcation point is defined as the DC power
board fuse(s) and/or breaker(s). Wire for each power and return lead
shall be provided by Seller for each Installation Site (a maximum of
50 ft. per frame) to connect to the Equipment. Additional wire and
associated materials, if required, will be provided at Buyer's
expense. DC fuses and/or breakers and any other part of the power
board or DC power system (including inverters) are not provided by
Seller. The required fuse and/or breaker quantities and sizes are
available upon request.
2.10.4 Alarm System Demarcation
The Alarm System demarcation point is defined as the Seller
furnished alarm terminal block. Fifty feet of alarm cable shall be
provided by Seller per Installation Site to connect Equipment alarms
to the terminal block. Fifty feet of cable shall also be provided to
connect Seller's alarm display and control panel at the MTX.
Additional cable and associated materials, if required, will be
provided at Buyer's expense. Any alarm points that the Buyer may
want to take to an external alarm system will be done at the Buyer's
expense.
2.11 Fifty feet of wire for each ground lead extending from Equipment to
the Main Ground Bar (MGB) shall be provided by Seller per
Installation Site.
2.12 During a Switch Installation, furnish, install and test one VDU, one
printer, one Norstar KSU equipped with two telephone sets and fifty
feet of associated cable with terminal blocks. Any additional items
will be provided and installed at Buyer's expense.
2.13 Complete the Installation and Testing on or before the date as
specified in the Project Schedule ("K" Date).
2-3
<PAGE> 37
2.14 Provide training to the Buyer as described in Annex 1 and in
accordance with Buyer's Purchase Order(s) as soon as course
schedules and Buyer's schedule allows.
2.15 Provide ongoing Technical Assistance Service (TAS) as described in
Annex 5.
NOTE: THE MATERIALS AND SERVICES DETAILED ABOVE REPRESENT SELLER'S TOTAL
RESPONSIBILITY FOR INSTALLATION ACTIVITIES. ANY ADDITIONAL MATERIALS
AND LABOR BEYOND THOSE DESCRIBED HEREIN SHALL BE QUOTED AND
FURNISHED BY SELLER, AT BUYER'S REQUEST, IN ACCORDANCE WITH ARTICLE
17 OF THE SUPPLY AGREEMENT.
3.0 Buyer's Responsibilities
Buyer or its designated subcontractor, shall perform the following:
3.1 Provide overall program management and engineering functions related
to the Buyer's responsibilities listed in this Agreement. This
includes, but is not limited to, management of schedules for other
equipment suppliers, telco circuit orders and engineering relating
to Installation Site locating, frequency planning coordination and
RF propagation studies and coverage verification.
3.2 Provide all real estate property, environmental approvals, leases,
rents, and all permits and licenses, including but not limited to,
Certificates of Occupancy, FCC construction permits, zoning and FAA
permits.
3.3 Gather the information necessary to complete the Customer
Information and Data Base Questionnaires on or before the date as
specified in the Project Schedule.
3.4 Review, approve and return Seller's draft floor plan for each
Installation Site on or before the date as specified in the Project
Schedule.
3.5 Provide all required civil engineering and construction work
including, but not limited to, site preparation such as grading,
tree removal, roads, tower and building foundations, and fencing.
3.6 Provide and install towers, coax bridges, antennas, transmission
line and associated materials. This includes RF jumpers (with
connectors) between the main transmission line and the RF equipment
bays. Antenna system return loss measurements and other antenna
system tests are the Buyer's responsibility.
3.7 Provide adequate building facilities, utilities, space and
environmental conditions for Seller's Installation personnel and
Equipment as well as any other Buyer equipment on or before the date
as specified in the
2-4
<PAGE> 38
Project Schedule ("J" Date). The minimum building requirements are
given below. The Equipment environmental and space requirements are
given in Section 4.0 of this Annex.
3.7.1 Building facilities shall be provided with air-conditioning,
heating, ventilation, lighting and have adequate working space that
is free of debris and other clutter which might hinder the
Installation. The building must be dry and free from dust and in
such condition as not to be hazardous to Seller personnel or the
Equipment and materials to be installed. Seller shall gather and
separate debris from usable material, mark accordingly, and place in
an area identified by Buyer for Buyer's pick-up and disposition.
3.7.2 Provide any building renovations, computer floors and wall
penetrations. Provide openings (including elevator space where
required) to allow the Equipment to be placed into position.
3.7.3 Provide and install adequate fire fighting apparatus at each
Installation Site. Activation of a water fire extinguishing system
may void the warranty on the Equipment.
3.7.4 Provide and install all required commercial AC power and associated
fixtures including, but not limited to, AC panels, AC circuit
breakers, AC fuses, building wiring, convenience outlets, lighting
and AC grounds. All electrical facilities shall conform to the
latest issue of the National Electrical Code (NEC) and any local
codes to insure a safe work area.
3.7.5 Provide adequate security for the Equipment, installation materials
and tools at each installation Site and/or storage facility (if
required).
3.7.6 Provide three telephone lines (two for modems and one telephone
set), and service (dial tone from a local exchange) at each switch
Installation Site and one telephone set at each cell site on or
before the "H" Date.
3.8 Engineer, furnish, deliver, install and test the following on or
before the "S" Date as specified in the Project Schedule in a
professional and workmanlike manner:
3.8.1 All overhead cable trays at each Installation Site.
3.8.2 An MDF for each Installation Site. The MDF can be a free standing
rack or a plywood panel board (4' x 8' x 5/8" typical) for wall
mounting.
3.8.3 A single point grounding system, including an MGB and all subsequent
connections to the ground field shall be provided for the Equipment
at each Installation Site. The ground fields shall measure 5 ohms or
less.
3.8.4 A negative 48 VDC power system and a 500VA DC to AC inverter for
each DMS-MTX switch and a +24VDC power system for each cell site
2-5
<PAGE> 39
including all required fuses and/or circuit breakers for all
Equipment and any Buyer provided equipment. This includes any alarm
cables, terminal blocks and AC power wiring.
3.8.5 Dedicated DS-1 facilities to connect each DMS-MTX switch to the PSTN
and to each cell site. If direct digital DS-1 facilities are not
available, the Buyer may incur additional costs to interface the
Equipment. DS-1 facilities are to be provided (from the DSX-1 panel
provided by Buyer) to the Telco Facility demarcation point as
defined in paragraph 2.10.2 of this Annex at each Installation Site.
3.8.6 All channel banks and DSX-1 cross connect panels including: any
associated relay racks; fuse and alarm panels; power wiring; HF
cables; jumpers; alarm cables; VF jack fields; patch cords and
terminal blocks. Channel bank make and model numbers must be
approved by Seller prior to their use. Channel banks must be
equipped with two 4-wire 56 kb/s dedicated data circuits and one
dedicated 4-wire audio circuit per cell site voice channel to each
cell site. Any other associated equipment such as ring generators
and other channel units are to be provided by the Buyer.
3.8.7 All alarm sensors and wiring, other than those which are included in
Equipment, and connect to Buyer provided alarm terminal blocks. This
includes, but is not limited to, open door, high/low temperature,
tower lights and smoke detector alarm sensors.
3.9 Provide Seller designated personnel free access to each Installation
Site as required to perform Seller's obligations under this
Agreement. Access is to be provided as follows:
3.9.1 Adequate roads and parking to each site for delivery vans and
two-wheel drive vehicles.
3.9.2 All required security passes and clearances.
3.9.3 24 hours/day, 7 days a week access to the Equipment. Seller shall
provide Buyer twenty-four hours' advance notice of the need for
access. Telephonic notification is permissible.
3.10 Provide or bear the cost for any special equipment required to
deliver Equipment to the Installation Site(s) such as 4-wheel drive
vehicles, bulldozers, cranes, helicopters, etc.
3.11 Provide and install all materials required to adequately support and
brace the Equipment in accordance with the seismic risk zone of each
Installation Site.
3.12 Buyer shall provide free telephone service (air time and long
distance) to Seller personnel during the Installation, testing, and
service period of the project. The purpose of such service will be
to support the Equipment Installation for testing purposes, business
communications, and safety needs of Seller personnel. The free
service shall include, but not be
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limited to, activation charges, air time, long distance, and roamer
charges. All traffic generated by Seller personnel will be limited
to business and Equipment testing purposes only. Any personal calls
will be the responsibility of Seller.
3.13 The Buyer and/or its representatives are encouraged to be present
for preliminary testing and Turnover. Sign-off sheets in Annex 4
shall serve to provide a test record and establish the warranty
start date.
4.0 DMS-MTXI Northern Telecom Cell Site Environmental Requirements (For
MTXD)
4.1 The Equipment is designed to operate in the controlled environment
described below. Operation outside the normal conditions will void
the warranty. The more stringent conditions will govern for
co-located switch and cell site configurations.
4.2 Ambient Temperature
4.2.1 System Normal Extreme
DMS-MTX/NT 50 to 86 deg. F 41 to 120 deg. F
Cell Site
Conditions above or below the normal tolerance for more than 72
consecutive hours and 15 days maximum per year are considered
extreme.
The rate of change shall not exceed 15 degrees F per hour.
Ambient Temperature is measured at a point 5 feet above floor level
and either mid-aisle or 15" in front of the equipment, whichever is
less.
4.2.2 Storage Ambient Temperature: -40 to 160 deg. F.
4.3 Relative Humidity (non-condensing)
4.3.1 System Normal Extreme
DMS-MTX 20% to 55% 20% to 80%
NT Cell Site 20% to 55% 5% to 65%
The DMS-MTX switch is allowed 80% relative humidity at an ambient
temperature that cannot exceed 70 degrees F. At an ambient
temperature of 120 degrees F, the maximum allowable relative
humidity is 30%.
Relative humidity is measured at a point 5 feet above floor level
and either mid-aisle or 15" in front of the equipment, whichever is
less.
4.3.2 Storage Humidity: 10% to 90%; maximum water vapor pressure not to
exceed 25 mmHg.
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4.4 Air Cleanliness
The Equipment functions indefinitely in an ambient air having a
cleanliness standard no higher than class 100,000. Classes are
defined as the number of particles of 0.5 microns and larger, per
cubic foot.
4.5 Space Requirements
The minimum distance between the ceiling and the finished floor is
9'-0" at all Installation Sites. Each DMS-MTXD cabinet is 28.4" x
28" x 72" (WxDxH). All SuperNode cabinets are 42" x 24" x 72"
(WxDxH). The minimum front and rear aisle space is 36". Each cell
site frame is 23" x 18" x 84" (WxDxH). However, the footprint space
required is 23" x 26" x 84", which space is in addition to the
minimum aisle space required: 36" in front; 24" in rear; 6" at the
side.
4.6 Floor and Heat Dissipation Requirements
4.6.1 The Buyer's building facilities shall accommodate the following
Equipment parameters. (The number and type of cabinets and frames
depend upon the configuration requirements):
Heat
4.6.2 DMS-MTX Cabinets Weight (lbs) Dissipation (BTU/Hr)
MCAM 643 2305
MCEX 650 2000
MCOR 725 4380
MNET 675 4380
MCTM-I 710 3546
LPP 1100 3180
ENET 1120 3740
MCOR-II 1600 3500
MDSP 663 1068
4.6.3 NT Cell Site Frames
Common Equipment 400 2600
8 Charnel RF frame 600 5500
16 Channel RF frame 800 11000
5.0 (Sample) Project Schedule (In Weekly Intervals)
The sample project schedule listed below shall serve as an
informational guideline for the time periods involved in a typical
System installation. The project intervals assume one DMS-MTX and up
to 5 NT cell sites maximum. Add one week for each additional cell
site. Buyer and Seller shall agree upon specific Project Schedules
and/or delivery dates on a case-by-case basis prior to Seller's
acceptance of a Purchase Order.
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<PAGE> 42
Responsible
Week Milestone Event Party
---- --------------- -----------
1 Purchase Order Documents completed Seller/Buyer
and accepted by Seller
2 Send Customer Input/Data Base
Questionnaire to Buyer Seller
4 Customer Information Meeting with
Buyer (site survey may be performed) Seller/Buyer
6 Issue Draft Floor Plans to Buyer Seller
7 Approved Floor Plans returned
to Seller Buyer
11 Installation Site Ready ("J" Date) Buyer
12 Ship MTX ("D" Date) Seller
13 Ship System Documentation Seller
13 Overhead Cable Tray/MDF Available
("S" Date) Buyer
13 DC Power/Ground System Available
("S" Date) Buyer
13 DS-1 Facilities/Channel Banks/DSX-1
Cross connect Panels/Buyer's External
Alarm Points Available ("S" Date) Buyer
14 Start Installation ("H" Date) Seller
15 Frequency Plans provided Buyer
19 Installation Complete ("K" Date)
(See Note) Seller
20 Pre-In-service check Seller
21 System In-service ("IS" or
"Turnover" Date) Seller/Buyer
NOTE: Seller's Price assumes continuous performance of on-site
Installation and Commissioning Services without delay or
interruption of Services. In the event of delays or disruption of
Services, Buyer and Seller shall agree upon a revised Project
Schedule, provided, however, that in the case of a schedule
revision, there may not necessarily be a day-for-day adjustment to
the schedule.
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<PAGE> 43
ANNEX 3*
DMS-MTX ACCEPTANCE CRITERIA
SITE: _____________________ DATE STARTED: _________________
PROJECT: _____________________ COEO: _________________
LOCATION: _____________________ DATE COMPLETED: ________________
_____________________ SELLER REP: _________________
BUYER REP: _________________
Seller Buyer
Section Name Initials Initials
1225 EQUIPMENT GROUNDING VERIFICATION ________ ________
5160 POWER UP DMS SUPERNODE ________ ________
5172 POWER VERIFICATION ________ ________
5454 SLM COMMISSIONING ________ ________
5452 SLM LOAD ROUTE VERIFICATION ________ ________
5620 OFFICE IMAGE CAPTURE-SUPERNODE ________ ________
5453 DMS-CORE COMMISSIONING ________ ________
5615 DMS-BUS COMMISSIONING ________ ________
5211 SYSTEM LOADING ENET ________ ________
5198 ENET COMMISSIONING ________ ________
5184 SPARE CIRCUIT PACK TEST
DMS-SUPERNODE ________ ________
0310 CORE MAINTENANCE (PROC. 4,5,6,7
SECT. 4.7, 4.8) ________ ________
0345 PERIPHERAL MODULE DIAGNOSTICS ________ ________
0350 TRUNK DIAGNOSTICS ________ ________
0831 INSTALLATION AND TEST OF DDU ________ ________
0177 MAGNETIC TAPE DRIVE TESTS ________ ________
5472 CABINET ALARM TESTING ________ ________
0190 CARRIER INTERFACE CARD FIELD
EQUALIZATION ________ ________
0355 DRAM TESTING ________ ________
0461 TONES AND ANNOUNCEMENTS ________ ________
5623 SYNCHRONIZATION FEATURE TEST ________ ________
0692 MTX TRUNK OPERATIONAL FEATURE TEST ________ ________
0693 AMA/CDR TEST ________ ________
0385 SPARE CIRCUIT PACK TEST ________ ________
* All of the Test Criteria set forth in this Annex 3 may not be applicable
to the Equipment being ordered by Buyer under a Purchase Order. If a
referenced Section is not applicable, "NA" will be written in and Seller
and Buyer will initial off appropriately.
In certain instances it may be necessary for Seller to perform additional
Testing, depending on the Equipment being ordered under Buyer's Purchase
Order. When this occurs, the Section from Seller's installation manual
that the Equipment is to be Tested against will be written in, and
following successful completion of the Test, Seller and Buyer will
initial off appropriately.
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<PAGE> 44
ANNEX 3*
DMS-MTX ACCEPTANCE CRITERIA
(CONTINUED)
SELLER BUYER
SECTION NAME INITIALS INITIALS
0446 OPERATIONAL MEASUREMENT TEST ________ ________
0690 CSC DATA LINK TEST ________ ________
**** O.R.R. (OFFICE RELEASE RECORD) ________ ________
5159 ASU COMMISSIONING ON LIS (LIU,
NIU, EIU) ________ ________
2161 NORSTAR INSTALLATION ________ ________
5203 SOFTWARE AUDIT ________ ________
0410 TEST LINE OPERATIONAL TEST ________ ________
5562 SCSI-DDU INSTALLATION & TESTING
(1X55FA) ________ ________
1581 INSTALLATION & TEST OF DDU ________ ________
1865 TURBO LINK INSTALLATION & TESTING ________ ________
5218 XPM PATCHING PROCESS ________ ________
5043 LIS LOADING & DIAGNOSTICS ________ ________
1086 INSTALLATION & COMMISSIONING OF
DSPM ________ ________
SELLER:________________________ DATE:________________________
BUYER:_________________________ DATE:________________________
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<PAGE> 45
ICP BASED CELL (ANALOG) ACCEPTANCE CRITERIA
SITE: _____________________ DATE STARTED: ________________
PROJECT: _____________________ COEO: ________________
LOCATION: _____________________ DATE COMPLETED:________________
_____________________ SELLER REP: ________________
BUYER REP: ________________
SELLER BUYER
SECTION NAME INITIALS INITIALS
1290 PROCEDURE TO INSTALL NT800 BASE ________ ________
1271 POWER AND GROUND VERIFICATION ________ ________
1269 TESTING THE MASTER OSCILLATOR ________ ________
1299 TRANSCEIVER DEBUG OPERATION ________ ________
1298 CELL SITE TRANSCEIVER TRANSMIT TEST ________ ________
1297 CELL SITE TRANSCEIVER RECEIVE TEST ________ ________
1296 TRANSCEIVER AUDIO ALIGNMENT ________ ________
1272 POWER AMPLIFIER MODULE TESTING ________ ________
1295 COMBINER TUNING AND TESTING ________ ________
1273 TESTING THE RCMI IN AN NT800
CELL SITE ________ ________
1294 TESTING CELL SITE ALARMS ________ ________
**** O.R.R. (OFFICE RELEASE RECORD) ________ ________
1106 CELL SITE EXTENDED SPECTRUM FRAME
TEST ________ ________
MOBILE ORIGINATION AND
TERMINATION TEST ________ ________
(MOBILE TO MOBILE, MOBILE TO LAND,
LAND TO MOBILE, ALL RADIOS)
1291 CONNECT CUSTOMER FACILITIES TO CELL ________ ________
5026 MTX-CELL SITE INTEGRATION TEST ________ ________
5295 LOADING AND COMMISSIONING THE ICRM ________ ________
1545 ICRM INSTALLATION INTO THE CE1
FRAME ________ ________
SELLER:________________________ DATE:________________________
BUYER:_________________________ DATE:________________________
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<PAGE> 46
ICP BASED CELL (DIGITAL) ACCEPTANCE CRITERIA
SELLER BUYER
SECTION NAME INITIALS INITIALS
1290 PROCEDURE TO INSTALL NT800 BASE ________ ________
1271 POWER AND GROUND VERIFICATION ________ ________
1269 TESTING THE MASTER OSCILLATOR ________ ________
1299 TRANSCEIVER DEBUG OPERATION ________ ________
5298 CELL SITE DRU COMMISSIONING TESTS
WITH IFR 1600 ________ ________
1272 POWER AMPLIFIER MODULE TESTING ________ ________
1295 COMBINER TUNING AND TESTING ________ ________
5295 LOADING AND COMMISSIONING THE ICRM ________ ________
1294 TESTING CELL SITE ALARMS ________ ________
**** O.R.R. (OFFICE RELEASE RECORD) ________ ________
1106 CELL SITE EXTENDED SPECTRUM FRAME
TEST ________ ________
MOBILE ORIGINATION AND TERMINATION
TEST ________ ________
(MOBILE TO MOBILE, MOBILE TO LAND,
LAND TO MOBILE, ALL RADIOS)
1291 CONNECT CUSTOMER FACILITIES TO CELL ________ ________
2176 DIGITAL CELLULAR OVERLAY ________ ________
1547 DRUM INSTALLATION INTO THE CE1
FRAME ________ ________
SELLER:________________________ DATE:________________________
BUYER:_________________________ DATE:________________________
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<PAGE> 47
ICP BASED CELL (ANALOG/DIGITAL COMBINATION)
ACCEPTANCE CRITERIA
SELLER BUYER
SECTION NAME INITIALS INITIALS
1290 PROCEDURE TO INSTALL NT800 BASE ________ ________
1271 POWER AND GROUND VERIFICATION ________ ________
1269 TESTING THE MASTER OSCILLATOR ________ ________
1299 TRANSCEIVER DEBUG OPERATION ________ ________
5298 CELL SITE DRU COMMISSIONING TESTS
WITH IFR 1600 ________ ________
1272 POWER AMPLIFIER MODULE TESTING ________ ________
1295 COMBINER TUNING AND TESTING ________ ________
5295 LOADING AND COMMISSIONING THE ICRM ________ ________
1294 TESTING CELL SITE ALARMS ________ ________
**** O.R.R. (OFFICE RELEASE RECORD) ________ ________
1106 CELL SITE EXTENDED SPECTRUM FRAME
TEST ________ ________
MOBILE ORIGINATION AND TERMINATION
TEST ________ ________
(MOBILE TO MOBILE, MOBILE TO LAND,
LAND TO MOBILE, ALL RADIOS)
1291 CONNECT CUSTOMER FACILITIES TO CELL ________ ________
2176 DIGITAL CELLULAR OVERLAY ________ ________
1547 DRUM INSTALLATION INTO THE CE1
FRAME ________ ________
1297 CELL SITE TRANSCEIVER RECEIVE TEST ________ ________
1298 CELL SITE TRANSCEIVER TRANSMIT TEST ________ ________
1296 TRANSCEIVER AUDIO ALIGNMENT ________ ________
1273 TESTING THE RCMI IN AN NT800 CELL
SITE ________ ________
5026 MTX-CELL SITE INTEGRATION TEST ________ ________
SELLER:________________________ DATE:________________________
BUYER:_________________________ DATE:________________________
3-5
<PAGE> 48
Reference: Supply Agreement dated
_____________ between Northern Telecom Inc.
and Youngstown Cellular Telephone Company
ANNEX 4
TURNOVER NOTICE
TO: Northern Telecom Inc.
2435 N. Central Expressway
Richardson, Texas 75080
Attention: Manager, Contract Administration
The undersigned hereby acknowledges that the Equipment located at __________
has been installed and tested by Northern Telecom Inc., is available to be
placed in service and Commissioning has been completed as set forth in the
referenced Agreement.
The undersigned Buyer further acknowledges the commencement of the Warranty
Period as defined in the referenced Agreement as of the date written below.
Date: ________________________
Buyer: ________________________
By: ________________________
Title: ________________________
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<PAGE> 49
Reference: Supply Agreement dated
______________ between Northern Telecom
Inc. and Youngstown Cellular Telephone
Company
ACCEPTANCE NOTICE
TO: Northern Telecom Inc.
2435 N. Central Expressway
Richardson, Texas 75080
Attention: Manager, Contract Administration
Pursuant to the terms and conditions of the referenced Agreement, I, the
undersigned Buyer, hereby acknowledge that Northern Telecom Inc. has completed
all requirements for Acceptance of the Equipment located at _______________,
as set forth in the Agreement and all Annexes, and hereby certify to the final
Acceptance of such Equipment.
Date: ________________________
Buyer: ________________________
By: ________________________
Title: ________________________
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<PAGE> 50
ANNEX 5
SELLER WARRANTY SERVICES
1.0 TAS WARRANTY SERVICES
1.1 If Buyer experiences operational difficulties, Buyer may contact
Seller's Technical Assistance Service (TAS) Department. Special
remote terminals in the TAS center are used to communicate with
Buyer's System to diagnose fault conditions and recommend corrective
action.
1.2 This function provides three (3) basic classifications of assistance
to a customer:
1.2.1 Emergency Technical Assistance Service
This service is available to customers who require immediate
assistance with operational problems (i.e., loss of call processing,
loss of billing). This service is available 24 hours/day, seven
days/week. Through verbal reports and remote diagnoses of the
System, TAS technicians recommend actions to restore the System to
stable operation as quickly as possible.
1.2.2 Routine Technical Assistance Service
This service is available to customers who require problem
isolation/resolution in a Non-Emergency situation. This service is
available during normal business hours (8-5 CST, M-F) and is
primarily used for analysis of routine technical problems using
verbal reports from site personnel and System-generated information.
1.2.3 Technical Information Service
This service is available during normal working hours to answer the
variety of questions about specific System functionality,
procedures, operational issues, new features, and other telephony
oriented questions.
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<PAGE> 51
2.0 SERVICES NOT COVERED BY WARRANTY
2.1 Seller will provide technical assistance free of charge during the
initial warranty period, as defined in the terms and conditions of
the Supply Agreement. Some situations may arise during this
no-charge warranty period that will result in a service request
being considered as billable. Such situations include, but are not
limited to the following:
2.1.1 Requests resulting from problems with equipment not furnished by
Seller.
2.1.2 Requests where the problem solution was available via Seller
documentation such as NTPs, Advisory Bulletins, and BCS release
documents.
2.1.3 Requests that result from customer requested feature patches which
alter the design intent of standard Software in order to provide
customer requested changes in operations.
2.1.4 Requests for on-site assistance in lieu of remote testing.
2.1.5 Non-emergency requests outside normal business hours (8-5 CST, M-F,
Seller Holidays), unless scheduled with appropriate TAS manager in
advance.
2.1.6 Requests for assistance in performing System data changes or changes
to "write restricted" tables.
2.1.7 Requests for assistance in identifying faulty Hardware or Software
for which standard maintenance fault-locating procedures exists.
3.0 PRIORITY CLASSIFICATION
3.1 The TAS Center offers a single point of contact for customers who
require assistance to resolve problems which affect the technical
operation of their Northern Telecom DMS-MTX equipment.
TAS is available 24 hours/day, 7 days/week; therefore, the Service
Priority Classification System is designed to establish an
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<PAGE> 52
interrelationship between the problems and the appropriate level of
reaction and resolution. The system is based upon a problem's direct
or potential effect upon subscriber service.
System problems are assigned one of five priority levels as defined
in Northern Telecom Practices: "Northern Telecom Service Priority
Classification," or as such document may be revised from time to
time. The following situations are deemed by Seller to comprise an
emergency:
3.2 E1 Degradation and/or Outage.
3.2.1 Central Control (CC) or Computing Module (CM) inability to recover
from initialization on the active Central Processing Unit (CPU).
3.2.2 System call processing degraded for a reason such as:
- a trunk group out of service;
- 10% or more cellular channels out of service;
- CDR billing;
- inability to recover from initialization;
3.3 E2 Potential Degradation and/or Outage.
3.3.1 Standby Central Control (CC) out of service.
3.3.2 Any Central Message Control (CMC), Master Clock, Network Module
(NM), Input/Output Controller (IOC), Peripheral Processor out of
service:
3.3.3 Affecting billing, 50% loss of DDU, MTD with no backup.
4.0 CUSTOMER SERVICE REPORT (CSR) PROCEDURES
4.1 Buyer Responsibility
It is recommended that the Buyer arrange to have all Engineering and
Technical Support personnel attend specified training courses in
order to properly utilize existing documentation and diagnostic
resources
5-3
<PAGE> 53
required to ensure proper day to day operations of its Northern
Telecom equipment. Buyer is expected to understand and determine all
engineering parameters and to use all locally available resources to
troubleshoot and isolate system problems prior to calling Seller TAS
for assistance; however, in emergency situations such as System
outages, TAS should be notified immediately.
Whatever the nature of the service call, the more completely the
trouble is described, the more efficiently the problem can be
analyzed and rectified.
When a service call is placed with TAS, the following information
must be provided;
- Indicate if the call is an emergency or not;
- Company name and switch site location;
- Main telephone number;
- Contact name and telephone number;
- Hardware type;
- Detailed problem description.
After a service call is placed, Buyer site personnel must be
available to take direction from TAS to perform on-site activity
required to isolate and resolve the problem.
4.2 TAS Responsibility
a. Seller Normal Business Hours
Routine or Emergency Service calls are taken during normal
business hours (8-5 CST, M-F, except Seller holidays).
The TAS coordinator (Receptionist) will direct the service call
to the prime TAS representative assigned to the account. If the
prime TAS representative is unavailable, a message may be taken
or the call may be referred to a secondary TAS representative.
TAS is committed to a same day reply to all messages. Emergency
calls are responded to immediately by the first available TAS
representative.
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<PAGE> 54
The TAS representative taking the service call will request the
required customer information, determine if the problem
description requires that a Customer Service Report (CSR) be
opened (general questions which do not require investigation
may not need to be formally documented by a CSR), determine the
appropriate priority classification, and respond according to
the response objective associated with that classification.
The TAS representative responsible for the CSR will prioritize
all assigned CSRs according to priority classification and will
resolve and close the CSR with the Buyer based on
classification.
b. Outside Normal Business Hours
Emergency Service Only (E1, E2)
After-hours service calls are taken by an answering service.
The answering service will record the calling party name,
company and telephone number and will activate the emergency
pager service to page the designated TAS representative
on-call. If there is no response within five minutes, the
answering service will begin calling home phone numbers and
pagers of TAS Managers and other TAS representatives until
contact is made. The responding Seller representative will
contact Buyer immediately and take appropriate action to
resolve the trouble. The service call will be formally
documented the next regular business day.
5.0 EMERGENCY SHIPPING SERVICE FOR REPLACEMENT HARDWARE
5.1 For requests received during Seller regular business hours 8:00 a.m.
- 5:00 p.m. Monday-Friday (excluding holidays), the surcharge shall
be $50 per request.
5.2 For requests received outside regular business hours (as defined
above), the surcharge shall be $150 per request.
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<PAGE> 55
ANNEX 6
SOFTWARE LICENSE
NORTHERN TELECOM INC. ("NTI") TELECOMMUNICATIONS PRODUCTS
1. Subject to the terms hereinafter set forth, Northern Telecom Inc.,
("NTI") grants to Buyer a personal, non-exclusive license: (1) to use certain
Licensed Software, proprietary to NTI or its suppliers, contained as an
integral part of the Hardware; and (2) to install and use each item of
Licensed Software not an integral part of the Hardware; and (3) to use the
associated documentation. Buyer is granted no title or ownership rights in or
to the Licensed Software, in whole or in part, which rights if any, as between
the parties, shall remain with NTI or its suppliers. The right to use Software
or any individual feature thereof may be restricted by a measure of usage of
applications based upon the number of devices, subscribers, or some similar
measure. Expansion beyond a specified usage level may require payment of an
additions fee.
2. NTI considers the Licensed Software to contain "trade secrets" of NTI
and/or its suppliers. Such "trade secrets" include, without limitation
thereto, the specific design, structure and logic of individual Licensed
Software programs, their interactions with other portions of Licensed
Software, both internal and external, and the programming techniques employed
therein. In order to maintain the "trade secret" status of the information
contained within she Licensed Software, the Licensed Software is being
delivered to Buyer in object code form only.
3. NTI or its suppliers holding any intellectual property rights in the
Licensed Software, and/or any third party owning any intellectual property
right in software from which the Licensed Software was derived, are intended
third party beneficiaries of this License. All grants of rights to use
intellectual property intended to be accomplished by this License are
explicitly stated and no additional grants of such rights shall be inferred or
created by implication.
4. Buyer warrants to NTI that Buyer is not purchasing the rights granted by
this License in anticipation of reselling those rights.
5. Buyer shall:
5.1 Hold the Licensed Software in confidence for the benefit of NTI and/or
suppliers; and
5.2 Keep a current record of the location of each copy of Licensed Software
made by it; and
5.3 Use each copy of the Licensed Software only on a single CPU at a time
(for this purpose, single CPU shall include systems with redundant processing
units); and
5.4 Affix to each copy of Licensed Software made by it, in the same form and
location, a reproduction of the copyright notices, trademarks and all other
proprietary legends and/or logos of NTI and/or its suppliers, appearing on the
original copy of such Licensed Software delivered to Buyer; and retain the
same without alteration on all original copies; and
5.5 Destroy the Licensed Software and all copies at such time as the Buyer
chooses to permanently cease using it.
6. Buyer shall not:
6.1 Use the Licensed Software (i) for any purpose other than Buyer's own
internal business purposes and (ii) other than as provided by this License; or
6.2 Allow anyone other than Buyers employees and agents to have physical
access to the Licensed Software; or
6.3 Make copies of the Licensed Software except such limited number of object
code copies in machine readable form only, as may be reasonably necessary for
execution or archival purposes only; or
6.4 Make any modifications, enhancements, adaptations, or translations to or
of the Licensed Software, except for those resulting from those Buyer
interactions with the Licensed Software associated with normal use and
explained in the associated documentation; or
6.5 Attempt to reverse engineer, disassemble, reverse translate, decompile,
or in any other manner decode the Licensed Software, in order to derive the
source code form or for any other reason; or
6.6 Make full or partial copies of any documentation or other similar printed
or machine-readable matter provided with Licensed Software unless the same has
been supplied in a form by NTI intended for periodic reproduction of partial
copies or except limited partial/copies of documentation for Buyer's internal
use only; or
6.7 Export or re-export the Licensed Software and/or associated documentation
from the fifty states of the United States and the District of Columbia.
7. Buyer may assign collectively its rights under this License to any
subsequent owner of the Hardware, but not otherwise except that no such
assignment or sublicense may be made to a direct competitor of NTI who
manufacturers or sells wireless communications systems. No such assignment
shall be valid until Buyer shall delegate all of its obligations under the
Agreement to such party, And obtains from the assignee an unconditional
written assumption of all of such obligations, and NTI consents, in writing,
to such delegation And assumption. NTI shall not unreasonably withhold such
consent. Upon completion of such delegation and assumption Buyer shall
transfer physical possession of all Licensed Software including all backup
copies) to the assignee. Except as provided, neither this License or any
rights acquired by Buyer through this License are assignable. Any attempted
assignment of rights and/or transfer of Licensed Software not specifically
allowed shall be void and conclusively presumed a material breach of this
License.
8. If NTI claims a material breach of this License and files an action in a
court of competent jurisdiction seeking relief, and a judge issues a court
order, or a judgment rendered, that there is a material breach of this
License, then Buyer shall be required to return the Software to NTI or its
distributor. If Buyer fails to return such Software within five (5) working
days after the issuance of the court order or judgment, or in the case of
disclosure of the Software to anyone other than Buyer's employees or agents
the initial issuance of a court order or judgment, then NTI shall have the
right, without further notice, to temporarily terminate Buyer's right to
continue to possess and use the Software. If NTI elects to exercise that
right, NTI may enter upon the premises of Buyer during regular business hours
and take possession of, remove, and retain the Software until such time as the
court may order otherwise. For purposes of obtaining injunctive relief
hereunder Buyer shall be deemed to have agreed that remedies available at law
are not adequate to protect the interests of NTI and/or its suppliers, and to
have consented to the equity jurisdiction of the court
9. IN NO EVENT WILL NTI AND/OR ANY OF ITS SUPPLIERS BE LIABLE TO OR THROUGH
BUYER FOR: (1) ANY INDIRECT, SPECIAL, INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES
(INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST SAVINGS, OR INTERRUPTION OF
BUSINESS) SUFFERED BY BUYER FOR ANY REASON; (2) ANY DAMAGES SUFFERED BY BUYER
AS A RESULT OF BUYER'S FAILURE TO LIVE UP TO BUYER'S OBLIGATIONS UNDER THIS
AGREEMENT; (3) ANY CLAIM AGAINST BUYER BY ANY THIRD PARTY FOR DAMAGES OF ANY
KIND; ANY OR ALL OF WHICH ARISE FROM OR IN CONNECTION WITH THE DELIVERY, USE,
OR PERFORMANCE OF SOFTWARE GOVERNED BY THIS AGREEMENT, AND EVEN IF NTI AND/OR
ANY OF ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS. EXCEPT
AS GRANTED IN THE BODY OF THE AGREEMENT TO WHICH THIS LICENSE IS ATTACHED, THE
LICENSED SOFTWARE IS PROVIDED BY NTI "AS IS" AND WITHOUT WARRANTY OF ANY KIND
OR NATURE, WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION)
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR
PURPOSE. THIS LIMITATION OF WARRANTIES WAS A MATERIAL FACTOR IN THE
ESTABLISHMENT OF THE LICENSE FEE CHARGED FOR EACH SPECIFIC ITEM OF SOFTWARE
LICENSED.
6-1
<PAGE> 56
ANNEX 7
DOCUMENTATION
System Documentation is available through Seller's computer-based information
system ("HELMSMAN") as described below:
HELMSMAN CD-ROM: Includes one (1) compact disc and one (1) application
program; CD-ROM reader and interface card are optionally available
through Seller for use on Buyer-supplied DOS personal computer. Updates
are available at additional costs. (Documents not available on compact
disc will be provided in paper format.)
7-1
<PAGE> 1
EXHIBIT 10.21
[PNC BANK LETTERHEAD]
COMMITMENT LETTER
August 21, 1996
Sharron Youngstown Cellular, Inc.
6550-B Seville Drive
Canfield, OH 44406
Attention: Craig T. Sheetz
Vice President and
Chief Financial Officer
Ladies and Gentlemen:
PNC Bank, National Association and The Toronto-Dominion Bank (each a "MANAGING
AGENT" and collectively the "MANAGING AGENTS") are pleased to confirm to you
that, subject to the terms and conditions referred to in this letter, the
Managing Agents have each agreed to underwrite $150,000,000 of the Facility.
The "FACILITY" is a $300,000,000 secured reducing revolving credit facility
made available to Sharron Youngstown Cellular, Inc., which will change its name
to Sygnet Communications, Inc. as part of the planned reorganization and
consolidation of the Sygnet group of companies (the "BORROWER").
The proceeds of the Facility will be used (i) to pay transaction costs incurred
in connection with the Facility, (ii) to finance certain permitted
acquisitions, including without limitation the acquisition of certain assets of
Horizon Cellular Telephone Company of Chatauqua, L.P., Horizon Cellular
Telephone Company of Crawford, L.P., and Horizon Cellular Telephone Company of
Indiana, L.P. (the "HORIZON ACQUISITION"), (iii) to refinance all amounts
outstanding under the Credit Agreement dated as of September 29, 1995 entered
into by and among SYGNET Communications, Inc. and certain of its affiliates as
borrowers, the lenders which are parties thereto and PNC Bank, National
Association as the agent (the "EXISTING CREDIT FACILITY"), (iv) for the
Borrower's ongoing working capital and capital expenditures requirements and
(v) for the Borrower's general corporate purposes, all as permitted as
described in the Summary of Terms and Conditions dated August 21, 1996 attached
hereto and made a part hereof (the "TERM SHEET").
The Facility will be provided pursuant to the terms of, and shall become
effective only upon, the execution and delivery of a mutually satisfactory
credit agreement and other definitive loan and security documents
incorporating, among other things, the terms and conditions contained in the
Term Sheet and other terms and conditions customarily included in credit
facilities of this size, type and purpose. These terms and conditions will
necessarily be further developed during the course of preparing and negotiating
the loan and security documents. In the event of any conflict between the terms
and conditions of this letter and the Term Sheet (collectively the "COMMITMENT
LETTER") and the terms and conditions of the final loan and security documents,
the terms and conditions of the final loan and security documents will control.
<PAGE> 2
Sharron Youngstown Cellular, Inc.
Page -2-
August 21, 1996
The commitments of the Managing Agents hereunder are further subject to (i) the
truth and accuracy in all material respects of the financial statements and
other information provided to the Managing Agents by or on behalf of the
Borrower and its subsidiaries and affiliates, (iii) the absence of any
material adverse change in the business, management, assets, liabilities,
financial condition or results of operations of the Borrower, its
subsidiaries, any guarantor, any collateral, or in the cellular telephone
industry generally, (iii) the absence of any materially adverse change in or
disruption of financial, banking or capital market conditions that in the
judgment of the Managing Agents would adversely affect the satisfactory
completion of the syndication of the Facility, and (iv) the Managing Agents'
satisfaction that clear market conditions exist and will exist prior to and
during the syndication process.
The Facility will be syndicated to a group of financial institutions acceptable
to the Borrower and the Managing Agents. In connection with the syndication of
the Facility, the Borrower will provide sufficient information (including
financial projections and information concerning the Horizon Acquisition) in
form and substance acceptable to the Managing Agents in connection with the
preparation of an information package describing the Borrower and its
subsidiaries, the Horizon Acquisition and the Facility. This information
package will be distributed on a confidential basis to selected financial
institutions reasonably acceptable to the Borrower. In addition, by accepting
this Commitment Letter, the Borrower agrees that the management of the Borrower
will use its best efforts to actively assist in the syndication process,
including without limitation (i) the selection and solicitation of prospective
syndicate members, (ii) attending bank meetings and making themselves, their
employees and advisors available at all reasonable times to answer questions
during the syndication process and (iii) facilitating direct contact between
the Borrower's senior management and prospective syndicate members.
Whether or not any loans are extended under the Facility or any loan documents
are executed, the Borrower will promptly upon request reimburse the Managing
Agents for, or pay directly, all reasonable out-of-pocket costs and expenses
(including but not limited to reasonable fees and disbursements of Tucker
Arensberg, P.C., special counsel to the Managing Agents in connection with the
Facility and, if necessary FCC counsel and/or local counsel) incurred by the
Managing Agents in connection with their review of the proposed Facility, the
preparation, execution and delivery of this Commitment Letter, the information
memorandum, the loan and security documents and any amendment or modification
to or of any of the foregoing, and the syndication process.
The Borrower, by signing this Commitment Letter, agrees to indemnify each
Managing Agent and its directors, officers, employees, agents and controlling
persons against any and all claims, losses, damages, liabilities, costs and
expenses (including without limitation fees and expenses of counsel and expert
witnesses) (all of the foregoing collectively the
<PAGE> 3
Sharron Youngstown Cellular, Inc.
Page -3-
August 21, 1996
"INDEMNIFIED EXPENSES") which may be incurred by any of them in connection
with, arising out of, or in any related to the execution and delivery of this
Commitment Letter or any of the transactions contemplated hereby, including but
not limited to any Indemnified Expenses incurred in connection with any
investigation, testimony, subpoena or litigation, unless and to the extent such
Indemnified Expenses is incurred as the result of the gross negligence or
willful misconduct of such Managing Agent, as determined by a court of
competent jurisdiction.
The Managing Agents will not be responsible or liable for any consequential
damages that may be incurred or alleged by the Borrower or any of its
affiliates or subsidiaries as a result of any breach by the Managing Agents of
any term of this Commitment Letter, other than consequential damages arising
out of or relating to (i) matters specifically contemplated by this Commitment
Letter (including without limitation the Horizon Acquisition) or any proposed
transaction which the Borrower has advised the Managing Agents in writing will
be funded with proceeds of the Facility, or (ii) any breach or default that may
arise under the Existing Credit Facility as a result of actions by the Borrower
or its subsidiaries or affiliates in reliance on this Commitment Letter.
All obligations of the Managing Agents under this Commitment Letter shall
expire automatically, without further action, if definitive loan documentation
is not executed and delivered and the Facility closed on or before December 31,
1996, regardless of the cause or circumstances. The provisions of this
Commitment Letter relating to the payment of expenses and indemnification
obligations shall terminate only at the time and to the extent they are
expressly superseded by definitive loan documentation.
This Commitment Letter is being delivered to you on the condition that neither
its existence nor any of its contents shall be disclosed by you to any person
or entity without the Managing Agents' prior written consent, except (i) if you
are compelled to disclose it in a judicial or administrative proceeding or
otherwise in accordance with the requirements of law, (ii) on a confidential
and "need to know" basis to your directors, officers, employees, advisors and
agents, (iii) to appropriate parties involved with the Horizon Acquisition,
and (iv) to appropriate parties involved with the issuance of the
Structurally Subordinated Debt (as defined in the Term Sheet) and in the
registration statement and other documents relating to the Structurally
Subordinated Debt.
This Commitment Letter (i) is issued in reliance upon the accuracy and
completeness of all financial statements and all other information furnished to
the Managing Agents by or for the Borrower and its subsidiaries and affiliates,
(ii) sets forth the entire understanding of the obligation of the Managing
Agents and the Borrower, (iii) shall be construed in accordance with and
governed by the laws of the Commonwealth of Pennsylvania and (iv) may not be
<PAGE> 4
Sharron Youngstown Cellular, Inc.
Page -4-
August 21, 1996
amended, supplemented, modified or replaced except by a written instrument
signed by each of the Managing Agents and the Borrower.
This Commitment Letter is for the benefit of the Borrower only, and no other
person or entity may obtain any rights under it or be entitled to rely or claim
reliance on this Commitment Letter. This Commitment Letter and the commitment
made hereunder may not be assigned by the Borrower.
The terms of this Commitment Letter must be accepted by the Borrower prior to
the close of business on August 22, 1996 in the manner indicated below. If this
Commitment Letter is not accepted by the Borrower on or prior to that date, it
shall automatically expire.
If this Commitment Letter is satisfactory to the Borrower, please have the
enclosed copies of it and the accompanying Fee Letter duly executed by an
authorized officer of the Borrower and return a copy of each to each Managing
Agent, along with the portion of the Upfront Fee due upon signing the
Commitment Letter, as described in the Fee Letter.
This Commitment Letter may be executed in any number of counterparts, each of
which shall be deemed to be an original and shall be binding upon the Borrower
and each of the Managing Agents and their respective successors and, subject to
the provisions of this Commitment Letter, their assigns.
We look forward to continuing to work with you on this transaction.
Very truly yours,
PNC BANK, NATIONAL ASSOCIATION
By: /s/ DANIEL E. HOPKINS
-------------------------
Name: DANIEL E. HOPKINS
Title: VICE PRESIDENT
[SIGNATURES CONTINUED ON NEXT PAGE]
<PAGE> 5
Sharron Youngstown Cellular, Inc.
Page -5-
August 21, 1996
THE TORONTO-DOMINION BANK
By: /s/ JESSICA LAXMAN
--------------------------
Name: Jessica Laxman
Title: Director
Accepted and agreed to on August __, 1996.
SHARRON YOUNGSTOWN CELLULAR, INC.
By:
--------------------------
Name:
Title:
<PAGE> 6
Sharron Youngstown Cellular, Inc.
Page -5-
August 21, 1996
THE TORONTO-DOMINION BANK
By:
--------------------------
Name:
Title:
Accepted and agreed to on August 21, 1996.
SHARRON YOUNGSTOWN CELLULAR, INC.
By: /s/ CRAIG T. SHEETZ
--------------------------
Name:
Title: CFO
<PAGE> 7
- --------------------------------------------------------------------------------
SYGNET COMMUNICATIONS, INC.
SUMMARY OF TERMS AND CONDITIONS
AUGUST 21, 1996
- --------------------------------------------------------------------------------
- -----------------------------------
Borrower Sharron Youngstown Cellular, Inc.
(which will change its name to Sygnet
Communications, Inc. in connection with
planned reorganization and
consolidation of Sygnet companies).
- -----------------------------------
Managing Agents PNC Bank, National Association ("PNC")
The Toronto-Dominion Bank ("TD")
- -----------------------------------
Syndication Agents PNC Bank, National Association
The Toronto-Dominion Bank
- -----------------------------------
Administrative Agent The Toronto-Dominion Bank
- -----------------------------------
Documentation and Collateral Agent PNC Bank, National Association
- -----------------------------------
Banks The Managing Agents and a syndicate of
other financial institutions acceptable
to Managing Agents and Borrower (the
"Banks").
- -----------------------------------
Credit Facility PNC and TD will each underwrite
$150,000,000 of a $300,000,000 senior,
secured, eight and one-half-year
reducing revolving credit facility (the
"Facility"). Under the Facility, funds
may be borrowed, repaid and reborrowed
at any time until maturity date,
provided that at no time will aggregate
outstandings exceed total amount of
Facility, as reduced (as described
below).
- -----------------------------------
Purposes 1. Finance Permitted Acquisitions.
2. Refinance outstandings under
Borrower's and its affiliates'
existing $75 million reducing
revolver with PNC.
<PAGE> 8
3. Finance Permitted Payments.
4. Fund Borrower's ongoing capital
expenditures, working capital,
and general corporate purposes.
5. Pay transaction costs relating to
Facility and Horizon Acquisition.
- ----------------------------------
Closing On or before December 31, 1996.
- ----------------------------------
Availability Up to the full amount shall be
available at closing, subject to the
terms, conditions and financial
covenants described herein.
- ----------------------------------
Repayment Interest only for two and one-half years
after closing. Thereafter, available
commitment will reduce quarterly
beginning on June 30, 1999, according to
Schedule A attached hereto.
- ----------------------------------
Voluntary Prepayments Outstandings or commitments under the
Facility may be prepaid or permanently
reduced, in whole or in part, at
Borrower's option, subject to
reimbursement of any costs associated
with prepayments of LIBOR advances or
any other provisions contained in the
credit agreement. Voluntary permanent
reductions of commitments under the
Facility will be in minimum amounts of
$1,000,000.
- ----------------------------------
Mandatory Prepayments Mandatory prepayments of principal and
corresponding permanent commitment
reductions will be required as follows:
1. Upon any material sale of assets.
However, prepayments will not be
required for Permitted
Dispositions or for asset sales
totalling up to $1,000,000 per
year if (1) Borrower is in
compliance with all terms,
conditions, and covenants of the
Facility, and (2) after-tax
proceeds are used to acquire
substitute assets within 12
months from date of sale, and
such assets are pledged to the
Banks.
2. Beginning on March 31, 2000, and
on each March 31 thereafter,
Borrower will be required to
permanently reduce the Credit
Facility by an amount equal to
50% of Borrower's Excess Cash
Flow for the immediately
preceding fiscal year or portion
thereof.
-2-
<PAGE> 9
All mandatory prepayments
described in the preceding items
1 and 2 are in addition to the
scheduled commitment reductions
described in Schedule A. All
mandatory prepayments and
permanent commitment
reductions will be applied to
reduce scheduled commitment
reductions described on Schedule
A on a pro rata basis.
- ----------------------------------
Pricing Refer to Schedule B
- ----------------------------------
Collateral 1. Subject to item 2 below,
perfected first priority lien
(subject to standard permitted
liens) on Borrower's personal
property (tangible and
intangible) now owned or
hereafter acquired (including FCC
licenses, to the extent possible
under law, but excluding motor
vehicles).
2. In Agents' discretion, perfected
lien (subject to standard
permitted liens) on Borrower's
leased or owned real property
interests, related leases and
fixtures, now owned or existing
or hereafter acquired or created.
3. Borrower will deliver updated
list of locations of personal and
real property (including
fixtures) annually so that
Documentation Agent can perfect
security interests for these
locations.
4. Pledge of 100% of issued and
outstanding capital stock of
Borrower at all times.
- ----------------------------------
Guaranty All amounts owed under Facility will be
absolutely and unconditionally
guaranteed by Sygnet Wireless
Communications, Inc. ("Wireless"),
parent of Borrower, but only until
Wireless has transferred to Borrower any
FCC or New York Public Service
Commission licenses in Wireless' name on
the closing date or acquired by it in
connection with Horizon Acquisition
("HORIZON LICENSES").
- ----------------------------------
Conditions Precedent to Closing Usual and customary for credit
facilities of this size, type and
purpose, including, but not limited to:
1. Closing certificate showing
pro-forma compliance with all
financial covenants and stating
that all representations and
warranties are true and correct
-3-
<PAGE> 10
and that no default, event of
default or material adverse
change has occurred or exists.
2. Reorganization of Sygnet
companies must be completed on
terms disclosed to and
satisfactory to Banks, with
Borrower owning all assets of
companies (except as provided in
paragraph 9 below).
3. Execution, delivery,
effectiveness and filing of
security and loan documentation
in form and substance
satisfactory to the Banks.
4. Funding of $80,000,000 of
Structurally Subordinated Debt in
form and substance satisfactory
to the Managing Agents.
5. No material adverse change, on
consolidated basis, since date of
most recently delivered annual
audited financial statements of
Borrower and affiliates.
6. No potential event of default,
event of default or material
adverse change exists.
7. Payment of all fees due to be
paid by closing.
8. Delivery to Banks of all
necessary regulatory,
governmental, third-party and
corporate consents and approvals.
9. Funding of purchase price for
Horizon Acquisition is subject to
(a) consummation thereof in
accordance with its terms, (b)
satisfaction of all conditions
precedent relating thereto, (c)
transfer by Wireless to Borrower
of all assets acquired in
connection with Horizon
Acquisition (other than Horizon
Licenses), (d) evidence that
applications for transfer of
Horizon Licenses by Wireless to
Borrower have been completed and
executed and are ready to be
filed with the Federal
Communications Commission, and
(e) execution of management
agreement under which Wireless
gives Sygnet right to manage
Horizon Licenses, all
satisfactory to Managing Agents.
Covenants subject to customary
exceptions, limitations and materiality
thresholds.
- ----------------------------------
Representations and Warranties Usual and customary for credit
facilities of this size, type and
purpose, including without limitation
representations and warranties as to
organization, good standing and
qualification; authorization of
borrowing; compliance with law; title to
properties; liens; no material adverse
change on a consolidated basis;
litigation; payment of taxes;
governmental regulations; disclosure;
licenses, trademarks and patents; and
Regulation
-4-
<PAGE> 11
U (but in each instance subject to
customary exceptions, limitations and
materiality thresholds).
- ----------------------------------
Financial Reporting The Borrower will deliver or cause to be
delivered to the Administrative Agent:
1. Quarterly, internally prepared
consolidated financial statements
(including operating statistics)
required within 60 days of each
quarter end.
2. Annual audited consolidated
financial statements required
within 120 days of fiscal year
end, prepared in accordance with
GAAP and accompanied by
unqualified statement from
independent certified public
accountant satisfactory to
Managing Agents.
3. Compliance certificate, as to
compliance with financial
covenants (with appropriate
calculations and computations),
absence of defaults and material
adverse changes to be delivered
with each set of quarterly and
annual financials, certified by
Chief Executive Officer,
President or Chief Financial
Officer of Borrower.
4. Annual budgets for the upcoming
year required by December 31 of
the immediately preceding year.
5. Such other information regarding
condition and operations,
financial or otherwise, of
Borrower and affiliates as Banks
may reasonably request.
- ----------------------------------
Financial Covenants Refer to Schedule C attached hereto.
- ----------------------------------
Structurally Subordinated Debt Wireless must obtain $80,000,000 of
Structurally Subordinated Debt in form
and substance satisfactory to the
Managing Agents. Refer to Schedule D
for acceptable terms and conditions of
Structurally Subordinated Debt.
- ----------------------------------
Other Covenants Including, but not limited to:
1. No material asset sales except in
the ordinary course of business
and Permitted Dispositions.
2. Restriction on loans, advances,
investments and stock
repurchases.
-5-
<PAGE> 12
3. Borrower shall not incur any
indebtedness or contingent
obligations for borrowed money
(other than trade payables)
except for (i) the Facility and
(ii) additional indebtedness in
an aggregate amount not to
exceed $15,000,000.
4. Prohibition against dividends,
loans, and other payments to
Wireless, except as necessary to
pay interest on Structurally
Subordinated Debt (subject to
other requirements set forth in
definition of "Permitted
Payments" and in Schedule D).
5. Borrower shall not engage in any
business other than the wireless
telecommunications business.
Borrower shall not permit a
material change in its business.
6. Existing shareholders must own at
least 51% of Wireless' voting
power, and Wireless must own 51%
of Borrower's issued and
outstanding stock.
7. Limitation on mergers and
acquisitions, except for
Permitted Acquisitions.
8. Requirements to maintain
insurance coverage satisfactory
to Banks.
9. Other covenants as deemed
appropriate in the judgment of
the Banks.
Covenants subject to customary
exceptions, limitations and materiality
thresholds.
- ----------------------------------
Events of Default Including, but not limited to:
1. Failure to make any payment or
prepayment of principal or
scheduled permanent reduction of
commitment when due.
2. Failure to pay interest or fees
within five days after due date.
3. Breach of representations or
warranties.
4. Violation of negative covenants.
5. Violation of affirmative
covenants and provisions of
other loan documents, subject to
30-day cure period.
6. Default under other indebtedness,
including Structurally
Subordinated Debt.
7. Bankruptcy, insolvency or similar
events.
-6-
<PAGE> 13
8. Failure of security interest;
invalidity of loan or security
documents.
9. Change of control (as described
in item 6 of "Other Covenants"
above).
10. Other events of default, as
appropriate.
Events of default subject to customary
exceptions, limitations and materiality
thresholds.
- ----------------------------------
Yield Protection Borrower shall pay Banks such additional
amounts as will compensate the Banks in
the event applicable law, or change in
law, subjects the Banks to reserve
requirements, capital requirements,
taxes (except for taxes on the overall
net income of the Banks) or other
charges which increase the cost or
reduce the yield to the Banks, under
customary yield protection provisions.
- -----------------------------------
Expenses Reasonable out-of-pocket expenses
incurred by the Managing Agents shall be
for the account of the Borrower. These
include fees and expenses of Managing
Agents' legal counsel (including FCC and
local counsel, to the extent necessary),
whether or not funding occurs under the
Facility.
- -----------------------------------
Interest Rate Protection Within 90 days of closing and over the
life of the Facility, Borrower and
Wireless shall purchase and maintain
interest rate protection in a form
reasonably acceptable to the Managing
Agents on at least 50% of the Total
Indebtedness (including fixed rate
Structurally Subordinated Debt) then
outstanding, such that the weighted
average term of all interest rate
protection is not less than 24 months
initially and not less than 12 months at
all other dates of determination. The
Borrower may enter into an interest rate
cap agreement to satisfy this
requirement, provided that the interest
rate related thereto does not exceed
2.5% in excess of 90 day LIBOR rate in
effect on the date of the interest cap
agreement.
Borrower and Wireless shall not be
required to maintain interest rate
protection agreements during any period
in which the ratio of Total Indebtedness
to Adjusted Annualized Operating Cash
Flow is and, during the two immediately
preceding fiscal quarters, has been,
less than 5.00x, provided that no Event
of Default then exists or would be
caused thereby.
Any institution providing such interest
rate protection must be reasonably
acceptable to the Managing Agents. If
such instruction is one of the Banks, it
may be granted a security interest in
the collateral for the Facility which is
pari passu
-7-
<PAGE> 14
with the security interest of the Banks
to the extent of such institution's
credit exposure. All such institutions
shall calculate their credit exposure in
a reasonable and customary manner.
Documentation for interest rate
protection shall conform to ISDA
standards and must be acceptable to the
Managing Agents with respect to
intercreditor and all other issues.
- ----------------------------------
Required Banks For the purpose of making amendments or
waivers to the loan and security
documents, approval by Banks whose
commitments under the Facility aggregate
at least 66-2/3% will be required.
However, unless agreed to by all Banks,
no amendment or waiver shall change the
principal amount, reduce the rate of
interest or fees, postpone the scheduled
payment or prepayment of any principal,
interest or fees, postpone or reduce any
scheduled reduction of the commitment,
release any collateral, change the
definition of Required Banks, permit any
assignment by the Borrower or Wireless
of its obligations under the loan and
security documents or release the
Borrower or Wireless from such
obligations.
- -----------------------------------
Assignments and Banks will be permitted to assign and
Participations participate the Facility. Assignments
will be in minimum amounts of $5,000,000
and assignees will be subject to the
consent of the Borrower and the Managing
Agents, such consents not to be
unreasonably withheld. Voting rights of
participants will be limited to change
in principal amount, reduction of the
rate of interest or fees, postponement
of the scheduled payment of any
principal, interest, fees or scheduled
commitment reductions, or release of any
collateral. Assignments will be subject
to the payment by the assigning bank of
a $3,500 service fee to the
Administrative Agent.
- -----------------------------------
Governing Law Pennsylvania.
- -----------------------------------
Definitions Refer to Schedule E.
-8-
<PAGE> 15
SCHEDULE A
COMMITMENT REDUCTION SCHEDULE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------
ANNUAL QUARTERLY
YEAR PERCENTAGE REDUCTION PERCENTAGE REDUCTION
- ----------------------------------------------------------------------------------------------------
<S> <C> <C>
1999 6.00% 2.00%
- ----------------------------------------------------------------------------------------------------
2000 13.0% 3.25%
- ----------------------------------------------------------------------------------------------------
2001 13.0% 3.25%
- ----------------------------------------------------------------------------------------------------
2002 15.0% 3.75%
- ----------------------------------------------------------------------------------------------------
2003 18.0% 4.50%
- ----------------------------------------------------------------------------------------------------
2004 21.0% 5.25%
- ----------------------------------------------------------------------------------------------------
2005 14.00% 7.00%
------- -------
- ----------------------------------------------------------------------------------------------------
TOTAL: 100.0% 100.00%
- ----------------------------------------------------------------------------------------------------
</TABLE>
-9-
<PAGE> 16
SCHEDULE B
PRICING
INTEREST RATES: At Borrower's option, advances shall bear interest at
either LIBOR or Base Rate plus their respective
Applicable Margins. The Applicable Margins will be
based on the Borrower's ratio of Total Indebtedness to
Adjusted Annualized Operating Cash Flow, determined on
a consolidated basis, as of the end of the most
recently completed fiscal quarter. The Borrower may
have no more than five borrowing tranches, including
the Base Rate tranche, outstanding at any one time.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------
RATIO OF TOTAL INDEBTEDNESS TO APPLICABLE MARGIN
ADJUSTED ANNUALIZED OPERATING --------------------------------
CASH FLOW BASE RATE LIBOR
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
greater than 10.00x 1.750% 2.750%
- --------------------------------------------------------------------------------------------------------------
greater than 8.00x less than or equal to 10.00x 1.500% 2.500%
- --------------------------------------------------------------------------------------------------------------
greater than 7.00x less than or equal to 8.00x 1.250% 2.250%
- --------------------------------------------------------------------------------------------------------------
greater than 6.50x less than or equal to 7.00x 1.125% 2.125%
- --------------------------------------------------------------------------------------------------------------
greater than 6.00x less than or equal to 6.50x 1.000% 2.000%
- --------------------------------------------------------------------------------------------------------------
greater than 5.00x less than or equal to 6.00x 0.750% 1.750%
- --------------------------------------------------------------------------------------------------------------
greater than 4.00x less than or equal to 5.00x 0.500% 1.500%
- --------------------------------------------------------------------------------------------------------------
less than or equal to 4.00x 0.250% 1.250%
- --------------------------------------------------------------------------------------------------------------
</TABLE>
Subsequent to an Event of Default which continues
beyond any applicable cure period, outstandings shall
bear interest at 2% over the rate of interest
applicable under the Base Rate pricing option.
FEE: Unused Commitment: 0.375% per annum of the unused
portion of the Facility payable to
Banks quarterly in arrears in
proportion to Banks' commitments.
All fees will be fully earned when paid and
nonrefundable.
-10-
<PAGE> 17
SCHEDULE C
CONSOLIDATED FINANCIAL COVENANTS(a)
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
(1) (2) (3) (4) (5)
LAST DAY RATIO OF SENIOR RATIO OF TOTAL RATIO OF RATIO OF ANNUALIZED RATIO OF
OF FISCAL INDEBTEDNESS TO INDEBTEDNESS ANNUALIZED OPERATING CASH ANNUALIZED
QUARTERS ADJUSTED TO ADJUSTED OPERATING CASH FLOW TO PRO FORMA OPERATING CASH
DURING ANNUALIZED ANNUALIZED FLOW TO FIXED DEBT SERVICE NOT TO FLOW TO INTEREST
FOLLOWING OPERATING CASH OPERATING CHARGES NOT TO BE LESS THAN EXPENSE NOT TO
PERIODS FLOW NOT TO CASH FLOW NOT BE LESS THAN(b) BE LESS THAN
EXCEED TO EXCEED
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<S> <C> <C> <C> <C> <C>
Closing - 8.50x 12.00x 1.00x N/A 1.10x
12/31/96
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01/01/97 - 8.50x 12.00x 1.00x N/A 1.10x
03/31/97
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04/01/97 - 8.00x 11.00x 1.00x 1.00x 1.10x
06/30/97
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07/01/97 - 7.50x 11.00x 1.00x 1.00x 1.10x
9/30/97
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10/01/07 - 7.00x 10.00x 1.00x 1.00x 1.10x
12/31/97
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01/01/98 - 6.50x 9.00x 1.00x 1.00x 1.10x
06/30/98
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07/01/98 - 6.00x 8.00x 1.00x 1.00x 1.10x
12/31/98
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01/01/99 - 5.25x 7.00x 1.00x 1.00x N/A
06/30/99
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07/01/99 - 4.50x 6.00x 1.00x 1.00x N/A
12/31/99
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01/01/00 - 4.00x 6.00x 1.00x 1.00x N/A
12/31/00
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01/01/01 - 4.00x 6.00x 1.00x 1.00x N/A
and
thereafter
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</TABLE>
(a) All covenants will be tested as of last day of each fiscal quarter.
Covenant (5) will be calculated on a trailing 12 months basis.
Covenants (1), (3), (4) and (5) will be calculated as to the Borrower
and its subsidiaries, if any. Covenant (2) will be calculated as to
Wireless and its subsidiaries.
(b) For purposes of the covenant only, Annualized Operating Cash Flow shall
include Revolver Availability.
-11-
<PAGE> 18
SCHEDULE D
TERMS AND CONDITIONS OF STRUCTURALLY SUBORDINATED DEBT
Terms and Conditions of Structurally Subordinated Debt shall include but not be
limited to:
(i) Structurally Subordinated Debt shall be structurally subordinated
to the Facility (i.e., Wireless shall be the issuer of the
Structurally Subordinated Debt, and Wireless shall have no
ownership interest in any of the assets of the Borrower, except for
its temporary ownership of certain assets acquired in the Horizon
Acquisition).
(ii) No principal payments or prepayments (either scheduled or
voluntary), optional or mandatory redemptions, or interest payments
with respect to the Structurally Subordinated Debt, whether made
with the proceeds of the Borrower's funds made available to
Wireless by a dividend, loan, investment or other payment by
Borrower to Wireless or made with other funds available to
Wireless, may be made while the Facility is available to the
Borrowers, except that:
(A) Semi-annual interest payments may be made on Structurally
Subordinated Debt and Borrower may make dividends to
Wireless in amounts sufficient to pay interest (subject to
provisions in definition of "Permitted Payments");
(B) Wireless and the Banks will agree in the Wireless Pledge
Agreement that Wireless may make semi-annual interest
payments if funds other than funds received from the
Borrower are used; and
(C) Wireless will agree in the Wireless Pledge Agreement that
Wireless will only make a principal payment or prepayment
(either scheduled or voluntary) or optional or mandatory
redemption if:
(1) Funds other than funds received from the Borrower
are used; and
(2) No Event of Default or Material Default exists
under Facility or would be caused thereby.
(iii) In the event of a payment default under the Facility (whether or
not arising from a payment default) Banks may block payments of
principal, interest and other payments, if any, to the Structurally
Subordinated Debtholders from funds received by the Borrower
indefinitely.
(iv) In the event of a default (other than a payment default) under the
Facility Banks may block payments of principal, interest and other
payments, if any, to the Structurally Subordinated Debtholders from
funds received by the Borrower for 180 days in each year.
(v) Structurally Subordinated Debt holders will have ability to
accelerate if they do not receive a scheduled payment of interest
within 30 days after the non-payment, but Subordinated Debt holders
may not take enforcement action against Borrower's assets or stock
of Borrower.
(vi) Facility will be cross defaulted to any Event of Default under
Structurally Subordinated Debt. Structurally Subordinated Debt will
be cross defaulted to (A) any payment default under Facility
subject to 90-day standstill period and (B) any acceleration of
Facility.
(vii) Structurally Subordinated Debt must be unsecured. Structurally
Subordinated Debt documents may not have a negative pledge
provision that would impair Banks' ability to obtain additional
collateral from Borrower.
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<PAGE> 19
(viii) All other terms and conditions of Structurally Subordinated Debt
must be less restrictive than terms and conditions of Facility and
must not conflict with the Facility loan and security documents.
(ix) Documentation for the Structurally Subordinated Debt must be
satisfactory in form and substance to the Managing Agents.
-13-
<PAGE> 20
SCHEDULE E
DEFINITIONS
ADJUSTED OPERATING CASH FLOW The sum of the Borrower's Operating Cash Flow
minus actual marketing and selling expense
plus Average Marketing Expense.
ADJUSTED ANNUALIZED OPERATING Borrower's Adjusted Operating Cash Flow for
CASH FLOW the immediately preceding two fiscal quarters
multiplied by two. For purposes of
calculating Annualized Adjusted Operating
Cash Flow during the first two fiscal
quarters after closing, Borrower may include
its share of PA1, PA2, PA6, PA7 and NY3
Operating Cash Flow, prior to corporate
allocations, as if they were acquired on
1/1/96.
ANNUALIZED OPERATING CASH FLOW Borrower's Operating Cash Flow for the
immediately preceding two fiscal quarters
multiplied by two. For purposes of
calculating Annualized Operating Cash Flow
during the first two fiscal quarters
immediately after closing, Borrower may
include its share of PA1, PA2, PA6, PA7 and
NY3 Operating Cash Flow, prior to corporate
allocations, as if they were acquired on
1/1/96.
AVERAGE MARKETING EXPENSE The Borrower's marketing and selling expense
for the immediately preceding four fiscal
quarters divided by four.
BASE RATE Higher of (i) the Administrative Agent's
Prime Rate and (ii) the Federal Funds rate
plus 1/2%. Interest on Base Rate borrowings
will be calculated on an actual/365 or 366
day basis and is payable quarterly.
EXCESS CASH FLOW Excess, if any, of Borrower's Operating Cash
Flow over the sum of its Fixed Charges and
distributions to shareholders, for the fiscal
year in question.
FIXED CHARGES Sum of Borrower's interest expense, scheduled
payments of principal (including mandatory
commitment reductions), Permitted Payments,
payments under capitalized leases, and
capital expenditures, for the immediately
preceding period of 12 consecutive months.
GAAP Generally accepted accounting principles
consistently applied.
HORIZON ACQUISITION Purchase of NY3, PA1, PA6 and PA7's cellular
licenses and interim operating authority of
PA2 from Horizon Cellular.
LIBOR Calculated on an actual/360 day basis and is
payable the earlier of quarterly or on the
last day of each interest period. LIBOR
advances will be available for periods of 1,
2, 3 or 6 months or, if made available by the
Banks, 9 or 12 months. LIBOR pricing will be
adjusted for any statutory reserves.
MATERIAL DEFAULT Any event or occurrence which, with the
giving of notice or the passage of time or
both, would become an Event of Default,
except for those events or occurrences which
would not materially and adversely affect the
Borrower, its business, its assets or its
ability to perform under the loan documents.
OPERATING CASH FLOW Sum of the Borrower's net income,
depreciation, amortization, other non-cash
charges to net income, interest expense and
Permitted Payments, minus non-cash credits to
net income.
-14-
<PAGE> 21
PERMITTED ACQUISITIONS (i) Horizon Acquisition and (ii) subsequent
acquisitions which shall be limited to
$50,000,000 in aggregate during the term of
the credit facility and must be related to
the cellular business. Borrower is also
required to provide pro-forma covenant
compliance prior to completing any
acquisition.
PERMITTED DISPOSITIONS Sale of the Borrower's paging business.
PERMITTED PAYMENTS Dividends or distributions by Borrower to
Wireless which shall not exceed amounts
required to pay interest on Structurally
Subordinated Debt; provided, however, that:
(a) Except as provided in item (iv) of
Schedule D, no Event of Default or
Material Default exists; and
(b) Except as provided in item (iv) of
Schedule D, after giving effect to
the dividend, no Event of Default or
Material Default exists or would be
caused by making such dividend.
PRO FORMA DEBT SERVICE Sum of all schedule payments (including
mandatory commitment reductions) of
principal, all projected payments of interest
on the Borrower's indebtedness based on the
interest rates in effect at the time Pro
Forma Debt Service is calculated, and
projected Permitted Payments for the 12 month
period in question.
REVOLVER AVAILABILITY Facility commitment, as permanently reduced
by any repayments and prepayments, minus
Facility outstandings, all calculated twelve
months prior to the date Borrower's Fixed
Charge covenant is determined.
SENIOR INDEBTEDNESS Outstandings under the Facility plus any
other senior indebtedness (including
capitalized lease obligations, letters of
credit and purchase money indebtedness).
STRUCTURALLY SUBORDINATED DEBT Subordinated Indebtedness which conforms to
the terms and conditions set forth in
Schedule D.
TOTAL INDEBTEDNESS Senior Indebtedness, Structurally
Subordinated Debt and any other senior and
subordinated indebtedness, including
capitalized lease obligations, letters of
credit and purchase money indebtedness.
NOTE: All defined terms relating to financial covenants are on a consolidated
basis, consistent with footnote at end of Schedule C.
-15-
