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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
FOR ANNUAL AND TRANSITION REPORTS PURSUANT TO
SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
(MARK ONE)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the fiscal year ended December 31, 1996
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
Commission file number 333-10161
SYGNET WIRELESS, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
OHIO 34-1689165
(State of Incorporation) (I.R.S. Employer Identification No.)
6550-B SEVILLE DRIVE, CANFIELD, OH 44406
(Address of principal executive offices) (Zip Code)
</TABLE>
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE (330) 565-1000
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT: None
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT: None
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. YES [X] NO [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K: [X]
As of February 11, 1997, 6,170,630 shares of Sygnet Wireless, Inc. Class A
and Class B Common Stock, par value $.01 per share (Common Stock), were
outstanding. The Common Stock is privately held and no shares have been sold in
the past 60 days to the knowledge of the Registrant.
================================================================================
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SYGNET WIRELESS, INC.
1996 REPORT ON FORM 10-K
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ITEM
NUMBER PAGE
- ------ ----
<S> <C> <C>
PART I
1 Business....................................................................... 1
2 Properties..................................................................... 14
3 Legal Proceedings.............................................................. 14
4 Submission of Matters to a Vote of Security Holders............................ 14
PART II
5 Market for Registrant's Common Equity and Related Stockholder Matters.......... 14
6 Selected Financial Data........................................................ 15
7 Management's Discussion and Analysis of Financial Condition and Results of
Operations................................................................... 15
8 Financial Statements and Supplementary Data.................................... 20
9 Changes in and Disagreements with Accountants on Accounting and Financial
Disclosure................................................................... 36
PART III
10 Directors and Executive Officers of Registrant................................. 36
11 Executive Compensation......................................................... 38
12 Security Ownership of Certain Beneficial Owners and Management................. 40
13 Certain Relationships and Related Transactions................................. 42
PART IV
14 Exhibits, Financial Statement Schedules, and Reports on Form 8-K............... 42
</TABLE>
<PAGE> 3
PART I
ITEM 1. BUSINESS
GENERAL
Sygnet Wireless, Inc. (the Company) owns and operates cellular telephone
systems serving one large cluster with approximately 2.4 million Pops in
northeastern Ohio, western Pennsylvania and western New York. As used in this
document, Pops means the estimate of population of a license area. The number of
Pops is not the same as the number of subscribers or even potential subscribers.
The Company's cellular systems are located in Youngstown, Ohio and Erie,
Pennsylvania and in primarily suburban and rural areas between the Cleveland,
Akron-Canton, Pittsburgh, Buffalo and Rochester metropolitan areas. The Company
believes that its mix of suburban and rural locations provides it with
advantages over cellular operators in predominately urban areas, including
greater roaming revenue opportunities, lower distribution costs and higher costs
of entry for new competitors. As of December 31, 1996, the Company had
approximately 106,000 subscribers.
The Company was incorporated under the laws of the State of Ohio in August
1991. The principal executive offices of the Company are located at 6550-B
Seville Drive, Canfield, Ohio 44406 and its telephone number is (330) 565-1000.
CORPORATE RESTRUCTURING
To facilitate implementation of its business strategy, the Company was
restructured in 1996 (the Restructuring). Prior to the Restructuring, SYGNET
Communications, Inc. operated as a Close Corporation with S corporation tax
status. Its cellular business was operated through three partnerships:
Youngstown Cellular Telephone Company, Erie Cellular Telephone Company and
Wilcom Cellular, each of which had two other corporate partners -- Wilcom
Corporation and Sharon-Youngstown Cellular, Inc. As a result of the
Restructuring, Wilcom Corporation was merged into SYGNET Communications, Inc.
which has been renamed Sygnet Wireless, Inc. and now is a holding company with
Sharon-Youngstown, renamed Sygnet Communications, Inc., now its wholly-owned
subsidiary and the operating company. The existence of the Youngstown Cellular
Telephone Company, Erie Cellular Telephone Company and Wilcom Cellular was
terminated.
THE HORIZON ACQUISITION
On October 9, 1996, the Company purchased for $252.9 million in cash
including net working capital, the PA-1, PA-2, PA-6, PA-7 and NY-3 Rural Service
Areas (RSAs) from Horizon Cellular Telephone Company (the Horizon Systems).
These systems serve contiguous markets representing approximately 1.3 million
Pops and covering over 16,125 square miles in western Pennsylvania and New York.
The PA-2 RSA, which represents 89,400 Pops, currently operates under Interim
Operating Authority (IOA) pending the FCC's final determination of the
qualifications of the initial lottery winner to hold the permanent license for
the PA-2 RSA. While the Company will not be issued a permanent license for the
PA-2 RSA (unless the Company were to reach an agreement to purchase the license
from the eventual recipient of the license), it is entitled to all revenue and
income generated by the cellular system until the FCC resolves the dispute. The
Company is unable to predict when or how the FCC will resolve this matter or the
likelihood that a purchase agreement will be reached with the eventual license
winner.
The four contiguous Pennsylvania RSAs acquired from the Horizon Companies
include 880,100 Pops and cover over 10,243 square miles in western Pennsylvania.
The New York system represents 485,200 Pops and covers over 5,882 square miles
in the western portion of the state.
BUSINESS STRATEGY
The Company's goal is to become the leading full service provider of mobile
telecommunications services in its cluster by offering technically advanced
cellular service, superior coverage and a high level of customer service at
competitive prices. Specifically, the Company's business objectives are to
increase penetration and
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improve profitability in its systems by taking advantage of its ability to
operate in a large regional footprint. In addition, the Company may in the
future acquire additional systems that provide the Company with the ability to
further its strategic objectives.
- Local Retail Outlets and Superior Customer Service. The Company strives
to provide a high level of customer service and the Company's use of
local retail stores is a key element of this local subscriber service
strategy. The Company's stores are staffed with sales and customer
service representatives who provide a more direct, specifically targeted
level of customer service than is ordinarily offered by larger
competitors relying on centralized customer service operations. By having
a permanent local retail presence, the sales staff can cultivate local
market knowledge that allows them to focus their efforts on the specific
demands of the market or markets in which they operate. This improves
their ability to establish relationships with customers, to understand
the customer's needs and to reduce churn. The sales team's ability to
promote the Company's services both inside and outside of its cluster is
enhanced by its license to market under the CELLULAR ONE(R) brand name
and its continuing participation in the NACN, a national cellular network
comprised principally of non-wireline carriers whose goal is to make
cellular service "seamless" throughout North America by facilitating
automatic roaming to and from member systems.
- Advanced Systems Design. The Company's system design and the Time
Division Multiple Access (TDMA) digital technology it employs provide the
foundation for technically superior cellular service. The Company has
deployed and continues to deploy a large number of cell sites in each
service area. Consequently, subscribers enjoy a high level of local and
regional coverage, resulting in high quality hand-held coverage
throughout most of its population centers, minimal call blocking,
seamless call delivery through NACN and the availability of digital voice
and data services. The Company believes it is well positioned to address
new technologies that might become available in its markets.
- Decentralized Marketing Management. The Company has assembled
management, sales and operating staff with extensive experience and
relationships within each market. The decentralized market management
structure adopted by the Company allows it to tailor its service to meet
the needs of each market. This local approach to marketing is coordinated
with senior management of the Company and allows each market to benefit
from shared corporate resources.
- Acquisition Strategy. The Company's primary external growth strategy has
been to develop its cellular system by pursuing acquisitions that expand
its regional footprint, can be operated efficiently, enhance its
reciprocal relationships with other cellular telephone carriers and
provide an opportunity to gain significant competitive advantages. As it
has done successfully in the past, the Company intends to pursue
acquisition opportunities which permit the Company to achieve these
strategic objectives either with respect to its current cluster or
elsewhere.
- Future Competition. The Company is preparing for what is expected to be
an increasingly competitive telecommunications environment by
aggressively working to attract new subscribers. The Company believes it
is prepared for this competition because it is not dependent on high
roaming or local rates. In addition, the Company believes that it can
effectively face this competition from its position as an incumbent in
the cellular field with a high quality network that is not capacity
constrained. The Company also has an extensive footprint, strong
distribution channels, superior customer service capabilities and an
experienced management team. Because the Company operates in medium to
small markets, the new Personal Communications Service (PCS) licensees
may be unable or unwilling to offer commercially viable wireless service
in much of the Company's area in the near term. The Company believes the
extensive capital expenditures required to deploy the infrastructure for
PCS are more readily justifiable from an economic standpoint in larger,
more densely populated urban areas. This constraint of PCS may position
the Company to offer roaming services to PCS customers, as well as to
provide bulk lines of service for resale to certain PCS companies. For
example, the Company's existing Youngstown and Erie systems are equipped
to provide TDMA digital roaming to AT&T Wireless PCS subscribers when
AT&T Wireless introduces dual band TDMA phones in the adjacent Cleveland
and Buffalo-Rochester MTAs.
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CELLULAR MARKETS AND SYSTEMS
The Company operates in nine non-wireline license areas in northeastern
Ohio and western New York and Pennsylvania, including the PA-2 IOA. The
following table summarizes the Company's systems.
<TABLE>
<CAPTION>
DATE OF
TOTAL POPS OWNERSHIP NET POPS ACQUISITION
---------- --------- --------- -----------
<S> <C> <C> <C> <C>
Youngstown, OH MSA................................... 491,900 100% 491,900 1985
Sharon, PA MSA....................................... 122,100 100% 122,100 1987
Erie, PA MSA......................................... 280,600 100% 280,600 1995
Columbiana, OH, OH-11 RSA............................ 111,700 100% 111,700 1991
Chautauqua, NY, NY-3 RSA............................. 485,200 100% 485,200 1996
Crawford, PA, PA-1 RSA............................... 197,200 100% 197,200 1996
Lawrence, PA, PA-6 RSA............................... 376,400 100% 376,400 1996
Indiana, PA, PA-7 RSA................................ 217,100 100% 217,100 1996
McKean, PA, PA-2 RSA................................. 89,400 100% 89,400 1996
--------- ---------
Total................................................ 2,371,600 2,371,600
</TABLE>
COMPETITORS AND ADJOINING SYSTEMS
The Company competes with various companies in each of its markets.
Management believes that the integrated network of its contiguous cellular
systems operating as CELLULAR ONE(R) affords it significant advantages over many
of its competitors. Overall, the Company competes against four distinct cellular
system operators.
The following chart lists the Company's cellular competitors in each of its
communities of interest.
<TABLE>
<CAPTION>
MARKETS COMPETITORS
------- -----------
<S> <C>
Youngstown, OH MSA........................... 360 degrees Communications
Erie, PA MSA................................. GTE Mobilnet
Columbiana, OH (OH-11 RSA)................... 360 degrees Communications
Sharon, PA MSA............................... 360 degrees Communications
Crawford, PA (PA-1 RSA)...................... 360 degrees Communications
Lawrence, PA (PA-6 RSA)...................... Bell Atlantic/NYNEX and 360 degrees
Communications
Indiana, PA (PA-7 RSA)....................... Bell Atlantic/NYNEX
Chautauqua, NY (NY-3 RSA).................... Frontier
McKean, PA (PA-2 RSA)........................ Bell Atlantic/NYNEX
</TABLE>
MARKETING
Most of the Company's systems promote their respective cellular products
and services under the name CELLULAR ONE(R). CELLULAR ONE(R), the first national
brand name in the cellular industry, is currently utilized in over 400 service
areas throughout the United States. CELLULAR ONE(R) ranks as the nation's most
recognized cellular service provider. The national advertising campaign
conducted by the Cellular One Group enhances the Company's advertising exposure.
The Company also obtains substantial marketing benefits from the name
recognition associated with this widely used service mark, both with existing
subscribers traveling outside the Company's service areas and with potential new
subscribers moving into the Company's service areas. In addition, travelers who
subscribe to CELLULAR ONE(R) service in other markets may be more likely to use
the Company's service when they travel in the Company's service areas. This is
primarily due to the technical operation of the cellular telephone. Cellular
telephones of non-wireline subscribers are programmed to select the non-wireline
carrier (such as the Company) when roaming, unless
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<PAGE> 6
the subscriber either dials a special code or has a cellular telephone equipped
with an "A/B" (non-wireline/ wireline) switch and selects the wireline carrier.
The Company's Youngstown, Columbiana and Sharon markets operate under the name
Wilcom Cellular which has strong local identity and name recognition.
Management has also implemented its marketing strategy by training and
compensating its sales force in a manner designed to stress the importance of
customer service and high penetration levels. The Company's sales staff has a
two-tier structure. A retail sales force handles walk-in traffic and a targeted
sales staff solicits certain corporate and government subscribers. The Company's
management believes that its internal sales force is better able to select and
screen new subscribers and select pricing plans that realistically match
subscriber needs than are independent agents. As a result, the Company's use of
an internal sales force keeps marketing costs low both directly because
commissions are lower and indirectly because subscriber retention is higher than
when using independent agents.
The Company's sales force works principally out of its own retail stores in
which the Company offers a full line of cellular products and services. As of
December 31, 1996, the Company maintained 37 retail stores and kiosks.
ROAMING
Roaming is an important service component for many subscribers. The Company
believes that attractively priced regional roaming is important to the
development of customers for all regional non-wireline cellular carriers.
Accordingly, where possible, the Company attempts to arrange reciprocal roaming
rates that allow customers to roam at competitive prices. The Company believes
this increases usage on all non-wireline systems, including the Company's.
Roaming revenue is a substantial source of incremental revenue for the Company
due, in part, to the fact that a number of the Company's cellular systems are
located along major travel and commuting corridors and because certain systems
are in the early stages of their growth cycle. While there is an industry trend
to reduce roaming rates, the Company is addressing this trend through its
roaming agreements which are usually reciprocal in nature and are at or near
home rates.
The Company is also a member of NACN. NACN is the largest wireless
telephone network system in the world, linking non-wireline cellular operators
throughout the United States and Canada. NACN connects key areas across North
America so that customers can use their cellular phones to place and receive
calls in these areas as easily as they do in their home areas. Through NACN,
customers receive calls automatically without the use of complicated roaming
codes as they "roam" in more than 5,000 cities and towns in the United States
and Canada. By dialing a subscriber's cellular telephone number, the caller can
reach the subscriber without knowing his or her location or having to dial
additional roaming access numbers. In addition, special services such as call
forwarding and call waiting automatically follow subscribers as they travel.
Through its membership in NACN, the Company provides extended regional and
national service to subscribers, thereby allowing them to easily make and
receive calls while in other cellular service areas. This service distinguishes
the Company's service and call delivery features from those of some of its
competitors.
PRODUCTS AND SERVICES
In addition to providing high-quality cellular telephone service in each of
its markets, the Company also offers various custom-calling features such as
voicemail, call forwarding, call waiting, three-way conference calling and no
answer and busy transfer. The Company also sells cellular equipment at no cost
or at discount prices as a way to encourage use of its mobile services.
Several rate plans are presented to prospective customers so that they may
choose the plan that will best fit their expected calling needs. Unlike some of
its competitors, the Company designs rate plans on a market-by-market basis. The
Company's local market managers are given the ability to market from a wide
variety of existing rate plans and are encouraged to propose new rate plans that
respond to market and competitive conditions. These rate plans include a high
user plan, a medium user plan, a basic plan and an economy plan. Most rate plans
combine a fixed monthly access fee, per minute usage charges and additional
charges for custom-calling features in a package which offers value to the
customer while enhancing airtime use and revenues for the Company. In general,
rate plans that include a higher monthly access fee typically include a
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lower usage rate per minute. An ongoing review of equipment and service pricing
is conducted to ensure the Company's competitiveness. As appropriate, revisions
to the pricing of service plans and equipment are made to meet the demands of
the local marketplace.
CUSTOMER SERVICE AND RETENTION
Customer service is an essential element of the Company's marketing and
operating philosophy. The Company is committed to attracting significant numbers
of new subscribers and retaining existing subscribers by providing consistently
high quality customer service and coverage. In each of its cellular service
areas, the Company maintains a local staff, including a market manager, to serve
as customer service representatives. Local offices and installation and repair
facilities enable the Company to service customers better and schedule
installations and make repairs on a timely basis.
SYSTEM DEVELOPMENT AND EXPANSION
The Company had 126 cell sites in operation at December 31, 1996 and
expects to add approximately 40 to 50 new cell sites in 1997. The Company
develops or builds out its cellular service areas by adding channels to existing
cell sites and by building new cell sites. Such development is done for the
purpose of increasing capacity and improving coverage in direct response to
projected subscriber demand and in response to actions taken by the Company's
competitors. Projected subscriber demand is calculated for each cellular service
area on a cell-by-cell basis. These projections involve a traffic analysis of
usage by existing subscribers, coverage quality analysis and an estimate of the
number of additional subscribers in each such area. In calculating projected
subscriber demand, the Company builds into its design assumptions an extremely
low call "blockage" rate (percentage of calls that are not connected on first
attempt at peak usage time during the day). After calculating projected
subscriber demand, the Company determines the most cost-efficient manner of
meeting such projected demand. The Company has historically met such demand
through a combination of augmenting channel capacity in existing cell sites and
building new cell sites.
Cell site expansion is expected to enable the Company to continue to add
subscribers, enhance use of the systems by existing subscribers, increase roamer
traffic due to the larger geographic area covered by the cellular network and
further enhance the overall efficiency of the network. The Company believes that
the high level of coverage provided by its Youngstown, Sharon, Erie and
Columbiana systems and the increased cellular coverage in the newly acquired
markets will have a positive impact on market penetration and subscriber usage.
DIGITAL TECHNOLOGY
The Company has selected TDMA digital for its systems. All cell sites in
the Youngstown, Sharon, Erie and Columbiana systems were converted to digital
in early 1996 and selected cell sites in the newly acquired systems will be
gradually converted to digital. Each cell site handles analog service as well.
These systems are also equipped to provide cellular digital packet data (CDPD).
Additionally, TDMA ensures the services provided by the Company will be
compatible with the cellular systems operated by AT&T Wireless in Pittsburgh,
Pennsylvania and SBC Communications in Buffalo and Rochester, New York, as well
as the PCS systems being developed by AT&T Wireless in Cleveland, Ohio and
Buffalo and Rochester, New York.
SERVICE MARKS
CELLULAR ONE(R) is a federally registered service mark, owned by Cellular
One Group, a Delaware general partnership of Cellular One Marketing, Inc., a
subsidiary of Southwestern Bell Mobile Systems, Inc., together with Cellular One
Development, Inc., a subsidiary of AT&T Wireless Services, Inc. and Vanguard
Cellular Systems, Inc. The Company currently uses the CELLULAR ONE(R) service
mark to identify and promote its cellular telephone service pursuant to a
licensing agreement with Cellular One Group (the Licensor). Licensing and
advertising fees are determined based upon the population of the licensed areas.
The licensing agreements require the Company to provide high quality cellular
telephone service to its customers and to maintain a certain minimum overall
customer satisfaction rating in surveys commissioned by the
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Licensor. The licensing agreements which the Company has entered into are for
original five-year terms expiring on various dates. These agreements may be
renewed at the Company's option for three additional five-year terms.
EMPLOYEES AND AGENTS
As of December 31, 1996, the Company had 357 employees. In addition, as of
such date the Company had agreements with numerous independent sales agents,
including car dealerships, electronics stores, paging service companies and
independent contractors. None of the Company's employees are represented by a
labor organization and the Company's management considers its employee relations
to be good.
OVERVIEW OF THE CELLULAR TELEPHONE INDUSTRY
The following table sets forth information published by the Cellular
Telephone Industry Association (CTIA) with respect to the number of subscribers
served by cellular telephone systems in the United States and the combined
penetration rate of such wireline and non-wireline systems as of the dates
indicated:
<TABLE>
<CAPTION>
AS OF DECEMBER 31,
-----------------------------------------
1991 1992 1993 1994 1995
----- ------ ------ ------ ------
<S> <C> <C> <C> <C> <C>
Subscribers (in thousands)............................. 7,500 11,000 16,000 24,000 35,000
Ending penetration(1).................................. 2.8% 4.2% 6.2% 9.2% 13.5%
<FN>
- ---------------
(1) Determined by dividing the aggregate number of subscribers by estimated
population. Rates reflect combined penetration of both wireline and
non-wireline cellular operators. CTIA estimates that the total number of
subscribers surpassed 40 million in 1996, thus yielding a penetration rate
in excess of 15.4%.
</TABLE>
Cellular telephone service is a form of telecommunications capable of
providing high quality, high capacity voice and data communications to and from
vehicle-mounted and hand-held radio telephones. Cellular telephone systems
generally offer customers the features offered by the most technologically
advanced landline telephone services. Two significant features of cellular
telephone systems are frequency reuse, which enables the simultaneous use of the
same frequency in more than one adequately separated cells, and call handoff. A
cellular telephone system's frequency reuse and call handoff features result in
highly efficient use of available frequencies and enable cellular telephone
systems to process more simultaneous calls and service more users over a greater
area than conventional mobile telephone systems.
Cellular telephone technology is based upon the division of a given market
area into a number of smaller geographic areas or "cells." Each cell has a "base
station" or "cell site" that is equipped with a relatively low power
transmitter, a receiver and other equipment that communicates by radio signal
with cellular telephones located within range of the cell. Cells generally have
a maximum operating range of up to 25 miles, while the standard cell size is
four to ten miles in radius. Cells are typically designed on a grid, although
terrain factors, including natural and man-made obstructions, signal coverage
patterns and capacity constraints may result in irregularly shaped cells and
overlaps or gaps in coverage.
Each cell site is connected by microwave link or telephone line to a mobile
telephone switching office (MTSO), which, in turn, is connected to the local
landline telephone network. Because cellular communications systems are fully
interconnected with the landline telephone network and long distance systems,
customers can receive and originate both local and long-distance calls from
their cellular telephones on a worldwide basis. When a customer in a particular
cell dials a number, the cellular telephone sends the call by radio signal to
the cell's transmitter-receiver, which in turn transmits it to the MTSO. The
MTSO then completes the call by connecting it with the landline telephone
network or another cellular telephone unit. Incoming calls are received by the
MTSO from the landline telephone office, which instructs the appropriate cell to
complete the communications link by radio signal between the cell's
transmitter-receiver and the cellular telephone.
The MTSO and the base stations periodically monitor the signal strength of
calls in progress. The signal strength of the transmission between a subscriber
and the base station in any cell declines as the unit moves
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away from the base station. When the signal strength of a call declines to a
predetermined level, the MTSO automatically determines if the signal strength is
greater in an adjacent cell and, if so, hands off the call in a fraction of a
second to the base station of the other cell. This handoff is virtually
unnoticeable to the user. If the subscriber leaves the service area of the
cellular system, the call is disconnected unless an appropriate technical
interface and roaming arrangement has been established with an adjacent system.
Cellular telephone systems operate under interconnection agreements with
various local exchange carriers (LECs) and interexchange (long distance)
carriers. The interconnection agreements establish the manner in which the
cellular telephone system integrates with other telecommunications systems. The
cellular operator and the local landline telephone company must cooperate in the
interconnection between the cellular and landline telephone systems to permit
cellular customers to call landline customers and vice versa. The technical and
financial details of such interconnection arrangements are subject to
negotiation, vary from system to system and to the present time, generally have
not been subject to FCC regulation or oversight. However, the implementation of
the Telecommunications Act of 1996 (the 1996 Act) by the FCC is expected to
result in arrangements between cellular carriers and local exchange carriers for
interconnection services at rates more closely related to cost. On August 1,
1996, the FCC adopted rules implementing the interconnection policies imposed by
the 1996 Act. Various aspects of the order have been stayed pending the outcome
of an appeal in federal court. While it is too soon to predict the actual effect
of the FCC's order, the Company believes that any such new rules are likely to
reduce the interconnection expenses incurred by the Company.
FCC rules require that all cellular telephones be functionally compatible
with cellular telephone systems in all markets within the United States and with
all frequencies allocated for cellular use, allowing a cellular telephone to be
used wherever a customer is located, subject to appropriate arrangements for
service charges. Changes to cellular telephone numbers or other technical
adjustments to cellular telephones by the manufacturer or local cellular
telephone service businesses may be required, however, to enable the customer to
change from one cellular service provider to another within a service area.
However, the FCC has announced that it will require LECs to implement "number
portability" in the top 100 MSAs by December 31, 1998. Number portability allows
customers to retain their telephone numbers, including cellular telephone
numbers, when they switch to another service provider. See "Regulatory
Overview." Cellular system operators may provide service to roamers temporarily
located in, or traveling through, their service area. The cellular system
providing service to the roamer generally receives 100% of the revenues from
such service and such roaming charges are billed to the roamer's local service
provider.
The rapid growth of the cellular customer base has begun to strain the
call-processing capacity of many existing analog systems, especially in densely
populated urban areas. Each cellular network is designed to meet a certain level
of customer density and traffic demand. Once these traffic levels are exceeded,
the operator must take steps to increase the network capacity. Capacity can be
increased initially by using techniques such as sectorization and cell
splitting. Network operators and infrastructure manufacturers are developing a
number of additional solutions which are expected to increase network capacity
and coverage.
Within certain limitations, increasing demand may be met by simply adding
available frequency capacity to cells as required, or by using directional
antennas to divide a cell into discrete multiple sectors or coverage areas (also
known as sectorization), thereby reducing the required distance between cells
using the same frequency. Furthermore, an area within a cellular telephone
system may be served by more than one cell through procedures that utilize
available channels in adjacent cells. When all possible channels are in use,
further growth can be accomplished through a process called "cell splitting."
Cell splitting entails dividing a single cell into a number of smaller cells
served by lower-power transmitters, thereby increasing the reuse factor and the
number of calls that can be handled in a given area.
Network capacity can also be enhanced through the development of newer
network technologies like N-AMPS analog technology (which triples call carrying
capacity over conventional analog technology) and TDMA or code division multiple
access (CDMA) digital technology (which increases call carrying capacity by an
estimated factor of up to 10). In each case, these advanced technologies allow
cellular carriers to add customers without degrading service quality. Digital
technology offers advantages including improved voice quality, larger system
capacity and perhaps lower incremental costs for additional customers. The
conversion
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from analog to digital radio technology is expected to be an industry-wide
process that will take a number of years. The Company has installed TDMA digital
technology throughout its Youngstown, Erie, Columbiana and Sharon systems and
has begun to deploy it selectively in the Horizon Systems. The Company believes
that its systems have sufficient capacity to handle the Company's customer
growth rate in the near term.
COMPETITION
CELLULAR CARRIERS
Cellular carriers such as the Company compete primarily against one other
facilities-based cellular carrier in each MSA and RSA market. See "Cellular
Markets and Systems -- Competitors and Adjoining Systems." Competition for
customers between cellular licensees is based principally upon the services and
enhancements offered, the quality of the cellular system, customer service,
system coverage, capacity and price. Such competition may increase to the extent
that licenses are transferred from smaller, stand-alone operators to larger,
better capitalized and more experienced cellular operators who may be able to
offer consumers certain network advantages.
Cellular carriers also face to a lesser extent competition from PCS,
Enhanced Specialized Mobile Radio (ESMR) and mobile satellite service (MSS)
systems, as well as from resellers of these services and cellular service. In
the future, cellular operators may also compete more directly with traditional
landline telephone service providers. Continuing technological advances in
telecommunications make it impossible to predict the extent of future
competition. However, due to the depth and breadth of these competitive services
offered by operators using these other technologies, such competition could be
significant and expected to become more intense.
The FCC requires that all cellular system operators must provide service to
resellers on a nondiscriminatory basis. A reseller provides cellular service to
customers but does not hold an FCC license or own cellular facilities. Instead,
the reseller buys blocks of cellular telephone numbers from a licensed carrier
and resells service through its own distribution network to the public.
Therefore, a reseller may be both a customer of a cellular licensee's services,
a competitor of that licensee, or both. Several well-known telecommunications
companies have begun reselling cellular service as a complement to their long
distance, local telephone, paging, cable television or Internet offerings.
NEW TECHNOLOGIES
The most likely future source of direct competition to cellular providers
in the near term from a new technology is broadband PCS. Broadband PCS services
consist of wireless two-way telecommunications services for voice, data and
other transmissions employing digital micro-cellular technology. PCS operates in
the 1850 to 1990 MHz band. PCS technology utilizes a network of small,
low-powered transceivers placed throughout a neighborhood, business complex,
community or metropolitan area to provide customers with mobile and portable
voice and data communications. PCS customers have dedicated personal telephone
numbers and communicate using small digital radio handsets that could be carried
in a pocket or purse. Many PCS licensees who will compete with the Company have
access to substantial capital resources. In addition, many of these companies,
or their predecessors and affiliates, already operate large cellular telephone
systems and thus bring significant wireless experience to this new marketplace.
ESMR is a wireless communications service supplied by converting analog
Specialized Mobile Radio (SMR) services into an integrated, digital transmission
system. The ESMR system incorporates characteristics of cellular technology,
including multiple low power transmitters and interconnection with the landline
telephone network. ESMR service may compete with cellular service by providing
higher quality digital communication technology, lower rates, enhanced privacy
and additional features such as electronic mail and built-in paging. ESMR
handsets are likely to be more expensive than cellular telephones and there may
be other differences between cellular and ESMR.
A consortium of telecommunications providers known as American Mobile
Satellite Corporation has been licensed by the FCC to provide mobile satellite
service. In addition, Motorola has been authorized by the
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<PAGE> 11
FCC to operate a low-orbit satellite system, called "Iridium," that would
provide mobile communications to subscribers throughout the world. Other
proposals for MSS are pending before the FCC. The FCC is developing rules for
these services and international and foreign regulatory authorities must also
approve aspects of some mobile satellite systems and services. Mobile satellite
systems could augment or replace communications within land-based cellular
systems.
The commercial development and deployment of these new technologies remain
in an early phase. The Company expects this activity to be focused initially in
relatively large markets in view of the substantial costs involved in building
and launching systems using these technologies. The Company is preparing for
this new competitive environment by aggressively working to attract new
subscribers, expanding its footprint and transitioning toward lower roaming and
local rates. The Company believes that by leveraging the above actions, it can
effectively face this competition from its position as an incumbent in the
cellular field with a high quality network and extensive footprint that is not
capacity constrained, has strong distribution channels, superior customer
service capabilities and an experienced management team. Since the Company
operates in medium to small markets, the new PCS licensees may be unable to
offer viable wireless service in many of the Company's properties in the near
term because the extensive capital expenditures required to deploy the
infrastructure for PCS are more readily justifiable from an economic standpoint
in larger, more densely populated urban areas. This may position the Company to
offer roaming services to PCS customers, as well as to provide bulk lines of
service for resale to certain PCS companies. The Company's existing Youngstown,
Erie, Columbiana and Sharon systems are equipped to provide TDMA digital roaming
to AT&T Wireless PCS subscribers when AT&T Wireless introduces dual band TDMA
phones in the adjacent Cleveland and Buffalo-Rochester MTAs.
FINANCING
On October 9, 1996, Sygnet Communications, Inc. (the Subsidiary), a wholly
owned subsidiary of the Company, entered into a new financing agreement (the
Bank Credit Facility), a senior secured reducing revolver that provides the
Subsidiary with the ability to borrow up to $300 million from time to time.
Interest under the Bank Credit Facility accrues at a variable rate using either
a prime rate or a rate based upon the London Interbank Offered Rate (LIBOR),
plus in each instance a margin. The margin ranges from 0.25% to 1.75% for the
prime rate and from 1.25% to 2.75% for the LIBOR depending upon the ratio of
consolidated total indebtedness of the Company (including the Notes described
below) to annualized operating cash flow of the Subsidiary.
Until June 30, 1999, the Subsidiary is only required to make quarterly
payments of interest; on and after that date, the Subsidiary must also make
quarterly payments of principal ranging from 2% up to 7% depending on the
outstanding balance under the Bank Credit Facility. In addition, on an annual
basis beginning March 31, 2000, the Subsidiary must also make payments of
principal equal to 50% of excess cash flow for the immediately preceding fiscal
year. Each such quarterly and annual payment of principal permanently reduces
the amount of credit available for borrowing under the Bank Credit Facility, and
the final maturity date of the facility is June 30, 2005.
The Bank Credit Facility is secured by all of the assets of the Subsidiary,
as well as by a pledge of the stock of the Subsidiary. The Bank Credit Facility
sets forth various covenants that must be satisfied by the Subsidiary, including
financial covenant ratios that must be satisfied as the end of each fiscal
quarter, and contains certain restrictive covenants, including, without
limitation, restrictions on the ability of the Subsidiary (a) to declare and pay
dividends or distributions to the Company (for servicing the Notes (defined
below) and otherwise), (b) to incur additional indebtedness, (c) to make loans
and advances, (d) to engage in transactions with the Company, (e) to transfer
and sell assets and (f) to acquire and purchase assets. A Change of Control (as
defined) of the Company would constitute an event of default under the Bank
Credit Facility.
The Bank Credit Facility permits the Subsidiary to declare and pay
dividends or distributions to the Company if such dividends are used to service
the semi-annual interest payments due on the Notes (defined below), and at the
time of such dividend or distribution no event of default or material default
exists under the
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<PAGE> 12
Bank Credit Facility or would be caused by making such dividend. If there is an
event of default under the Bank Credit Facility other than a payment default,
the lenders may suspend dividends and distributions for a period not to exceed
180 days in each year. If there is a payment default, the lenders may suspend
dividends and distributions by the Subsidiary for as long as such default
exists. The stock pledge agreement by the Company in favor of the lenders will
permit the Company to continue making the semi-annual interest payment,
notwithstanding the occurrence of any default under the Bank Credit Facility, if
funds other than funds received from the Subsidiary are used. The stock pledge
agreement will permit the Company to make principal payments, prepayments and
redemptions on the Notes only if funds other than funds from the Subsidiary are
used and no event of default or material default then exists under the Bank
Credit Facility or would be caused thereby.
On September 19, 1996, the Company sold to the public $110,000,000
aggregate principal amount of 11 1/2% Senior Notes due October 1, 2006 (the
Notes). Interest on the Notes will be payable April 1 and October 1 of each
year. The Notes are redeemable at the option of the Company at any time on or
after October 1, 2001 upon payment of premium plus accrued interest. The net
proceeds from the sale of the Notes were used to repay $71.5 million of existing
debt and the balance was used to partially fund the acquisition of the Horizon
Systems.
The indenture under which the Notes were issued imposes certain limitations
on the ability of the Company to, among other things, incur indebtedness, make
restricted payments, effect certain asset sales, enter into certain transactions
with related persons, merge or consolidate with another person or transfer
substantially all its properties or assets. Upon the occurrence of a Change of
Control (as defined) of the Company, each holder of Notes may require the
Company to repurchase such holder's Notes at 101% of the principal amount
thereof plus accrued interest.
REGULATORY OVERVIEW
The cellular telephone industry is subject to extensive governmental
regulation on the federal level and to varying degrees on the state level. Many
aspects of such regulation have been impacted by the enactment of the 1996 Act
and are currently the subject of administrative rulemakings that are significant
to the Company. Neither the outcome of these rulemakings nor their impact upon
the cellular telephone industry or the Company can be predicted at this time.
The following is a summary of the federal laws and regulations that currently
materially affect the cellular communications industry and a description of
certain state laws. This "Regulatory Overview" section does not purport to be a
summary of all present and proposed federal, state and local regulations and
legislation relating to the cellular communications industry.
FEDERAL REGULATION
The licensing, construction, modification, operation, ownership and
acquisition of cellular telephone systems are subject to regulations and
policies of the FCC under the Communications Act of 1934, as amended (the
Communications Act). The FCC has promulgated rules and regulations governing,
among other things, applications to construct and operate cellular
communications systems, applications to transfer control of or assign cellular
licenses and technical and operational standards for the operation of cellular
systems (such as maximum power and antenna height).
The FCC licenses cellular systems in accordance with 734 geographically
defined market areas comprised of 306 MSAs and 428 RSAs. In each market, the
frequencies allocated for cellular telephone use are divided into two equal 25
MHz blocks and designated as wireline and non-wireline. Block A licenses
initially were reserved for non-wireline entities, such as the Company, while
wireline licenses initially were reserved for entities affiliated with a
wireline telephone company. Apart from the different frequency blocks, there is
no technical difference between wireline and non-wireline cellular systems and
the operational requirements imposed on each by the FCC are the same. Under
current FCC rules, with FCC approval, wireline and non-wireline licenses may be
transferred without restriction as to wireline affiliation, but generally, no
entity may own a substantial interest in both systems in any one MSA or RSA. The
FCC may prohibit or impose conditions on transfers of licenses.
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<PAGE> 13
Under FCC rules, the authorized service area of a cellular provider in each
of its markets is referred to as the "Cellular Geographic Service Area" or
"CGSA". The CGSA may conform exactly with the boundaries of the FCC designated
MSA or RSA, or it may be smaller, subject to certain minimum service
requirements. A cellular licensee has the exclusive right to expand its CGSA
boundaries within the licensee's MSA or RSA for a period of five years after
grant of the licensee's initial construction permit. At the end of this
five-year build-out period, however, any entity may apply to serve portions of
the MSA or RSA outside the licensee's CGSA. The five year build-out period has
expired for some licensees and the FCC has granted several "unserved area"
applications filed by parties. The Company's five year build-out period has
expired in all markets. With respect to the Youngstown and Erie systems, 100% of
the geographical area was covered by the Company prior to the expiration of the
five year build-out period. The Horizon Systems have one area that was not
covered prior to the expiration of the five year build-out period. It consists
of a portion of Forest County, Pennsylvania that has a total population of less
than 5,000. The Company does not believe the potential for a fill-in application
for this property to be significant.
Cellular service providers also must satisfy a variety of FCC requirements
relating to technical and reporting matters. One such requirement is the
coordination of proposed frequency usage with adjacent cellular users,
permittees and licensees in order to avoid interference between adjacent
systems. In addition, the height and power of base station transmitting
facilities and the type of signals they emit must fall within specified
parameters. The Company is obligated to pay certain annual regulatory fees to
the FCC in connection with its cellular operations.
The Company also regularly applies for FCC authority to use additional
frequencies, to modify the technical parameters of existing licenses, to expand
its service territory and to provide new services. The Communications Act
requires prior FCC approval for transfers to or from the Company of a
controlling interest in any license or construction permit, or any rights
thereunder. Although there can be no assurance that any future requests for
approval of applications filed will be approved or acted upon in a timely manner
by the FCC, the Company has no reason to believe such requests or applications
would not be approved or granted in due course.
The FCC also regulates a number of other aspects of the cellular business.
For example, the FCC regulates cellular resale practices and has extended the
resale requirement to broadband PCS and ESMR licensees. Under the new FCC
policy, all resale obligations for cellular, broadband PCS and ESMR operators
will terminate five years after the date that the last group of initial PCS
licenses are granted. The FCC will issue a public notice announcing commencement
of the five year sunset period. Another FCC requirement that cellular operators
provide "manual" roaming where technically possible also was extended to
broadband PCS and ESMR licensees. Further, the FCC has proposed that cellular,
broadband PCS and ESMR licensees be required to offer "automatic" roaming
agreements on a nondiscriminatory basis. The FCC has also proposed that these
roaming obligations sunset five years after the last group of initial licenses
for currently allocated broadband PCS spectrum is awarded.
In addition, the FCC regulates the ancillary service offerings that
cellular licensees can provide and revised its rules to permit cellular, PCS,
paging and SMR licensees to offer fixed services on a primary basis along with
mobile services. This rule change may facilitate the provision of wireless local
loop service, which involves the use of wireless links to provide telephone
service by cellular licensees, as well as broadband PCS and ESMR licensees. In
this regard, the FCC has also adopted telephone number portability rules for
LECs, as well as cellular, broadband PCS and ESMR licensees, that could
facilitate the development of local exchange competition, including wireless
local loop service. As adopted, the new number portability rules generally
require cellular, broadband PCS and ESMR licensees to have the capability to
deliver calls from their systems to ported numbers by December 31, 1998 and to
offer number portability and roaming to ported numbers by June 30, 1999. These
requirements may result in added capital expenditures for the Company to make
necessary system changes.
Initial cellular licenses are generally granted for terms of up to 10
years, beginning on the date of the grant of the initial operating authority and
are renewable upon application to the FCC. Licenses may be revoked and license
renewal applications denied for cause after appropriate notice and hearing. Near
the
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conclusion of the license term, licensees must file applications for renewal of
licenses to obtain authority to operate for up to an additional 10-year term.
The FCC will award a renewal expectancy to a cellular licensee that meets
certain standards of past performance. If the existing licensee receives a
renewal expectancy, it is very likely that the existing licensee's cellular
license will be renewed without becoming subject to competing applications. To
receive a renewal expectancy, a licensee must show that it (i) has provided
"substantial" service during its past license term and (ii) has substantially
complied with applicable FCC rules and policies and the Communications Act.
"Substantial" service is defined as service which is sound, favorable and
substantially above a level of mediocre service that might only minimally
warrant renewal. If the existing licensee does not receive a renewal expectancy,
competing applications for the license will be accepted by the FCC and the
license may be awarded to another entity.
The FCC has routinely renewed the Company's Youngstown and Sharon licenses
on the basis of the Company's demonstration of not only its compliance with FCC
regulations, but also its service in the public interest. The Company is
confident that it has met and will continue to meet all requirements necessary
to secure renewal of its cellular licenses, including those licenses acquired
from the Horizon Companies. The first Horizon licenses subject to renewal will
be those for PA-6 and PA-7, which expire on October 1, 2000. The licenses for
PA-1 and NY-3 expire one year later.
CHARACTER AND CITIZENSHIP REQUIREMENTS
Applications for FCC authority may be denied and in extreme cases licenses
may be revoked if the FCC finds that an entity lacks the requisite "character"
qualifications to be a licensee. In making the determination, the FCC considers
whether an applicant or licensee has been the subject of adverse findings in a
judicial or administrative proceeding involving felonies, the possession or sale
of unlawful drugs, fraud, antitrust violations or unfair competition, employment
discrimination, misrepresentations to the FCC or other government agencies, or
serious violations of the Communications Act or FCC regulations. The FCC also
requires licensees to comply with statutory restrictions regarding the direct or
indirect ownership or control of FCC licenses by non-U.S. persons or entities.
TELECOMMUNICATIONS ACT OF 1996
The 1996 Act, which makes significant changes to the Communications Act and
the antitrust consent decree applicable to the Regional Bell Operating Companies
(RBOCs), affects the cellular industry. This legislation, among other things,
affects competition for local telecommunications services, interconnection
arrangements for carriers, universal service funding and the provision of
interexchange services by the RBOCs' wireless systems.
The 1996 Act requires state public utilities commissions and/or the FCC to
implement policies that mandate reciprocal compensation between local exchange
carriers, a category that may, for these purposes, include cellular carriers,
for interconnection services at rates more closely related to cost. On August 1,
1996, the FCC adopted rules implementing the interconnection policies imposed by
the 1996 Act. Various aspects of the order have been stayed pending the outcome
of an appeal in federal court. While it is too soon to predict the actual effect
of the FCC's order, the Company believes that any such new rules are likely to
reduce the interconnection expenses incurred by the Company.
The 1996 Act requires the FCC to adopt rules that require interstate
communications carriers, including cellular carriers, to "make an equitable and
non-discriminatory contribution" to a universal service fund that reimburses
communications carriers that provide basic communications services to users who
receive services at subsidized rates. The 1996 Act also eases the restrictions
on the provision of interexchange telephone services by wireless carriers
affiliated with RBOCs. RBOC-related wireless carriers have interpreted the
legislation to permit immediate provision of long distance call delivery for
their cellular customers.
The 1996 Act specifically exempts all cellular carriers from the obligation
to provide equal access to interstate long distance carriers. However, the 1996
Act gives the FCC the authority to impose rules to require unblocked access
through carrier identification codes or 800/888 numbers, so that cellular
subscribers are not
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denied access to the long distance carrier of their choosing, if the FCC
determines that the public interest so requires. The Company currently provides
"dial around" equal access to all of its customers.
The overall impact of the 1996 Act on the business of the Company is
unclear and will likely remain so for the foreseeable future. The Company may
benefit from reduced costs in acquiring required communications services and
facilities, such as LEC interconnection, resulting from the pro-competitive
policies of the 1996 Act. Similarly, the new limitations on local zoning
requirements may facilitate the construction of new cell sites and related
facilities. See "State, Local and Other Regulation." However, other provisions
of the new statute relating to interconnection, telephone number portability,
equal access and resale could subject the Company to additional costs and
increased competition.
STATE, LOCAL AND OTHER REGULATION
The Communications Act preempts state or local regulation of the entry of,
or the rates charged by, any commercial mobile service or any private mobile
service provider, which includes cellular telephone service providers. The FCC
has denied the petition of eight states to continue their rate regulation
authority, including authority over cellular operators. As a practical matter,
the Company is free to establish rates and offer new products and service with a
minimum of regulatory requirements. Two of the Company's three states of
operation, Ohio and New York, still maintain nominal oversight jurisdiction,
primarily focusing upon prior approval of acquisitions and transfers and
resolution of customer complaints.
The Public Utilities Commission of Ohio (the PUCO) has decreased
significantly its regulatory oversight of cellular companies. In accordance with
the Communications Act, cellular prices no longer require state regulatory
approval, nor will the filing of prices for cellular services be required
(detariffing), leaving the Company free to respond to market forces. The PUCO
has waived various other regulatory approval requirements and most of the
remaining regulatory filing requirements typically can be accomplished either on
a same day notice basis, or automatically after thirty days, although some
procedures still require specific regulatory approval and are not subject to any
time limits for action.
The location and construction of cellular transmitter towers and antennas
are subject to Federal Aviation Administration (FAA) regulations and are subject
to Federal, state and local environmental regulation, as well as state or local
zoning, land use and other regulation. Before a system can be put into
commercial operation, the grantee of a construction permit must obtain all
necessary zoning and building permit approvals for the cell sites and MTSO
locations and must secure state certification and tariff approvals, if required.
The time needed to obtain zoning approvals and requisite state permits varies
from market to market and state to state. Likewise, variations exist in local
zoning processes. There can be no assurance that any state or local regulatory
requirements currently applicable to the Company's systems will not be changed
in the future or that regulatory requirements will not be adopted in those
states and localities which currently have none.
Zoning and planning regulation may become more restrictive in the future as
many broadband PCS carriers are now seeking sites for network construction. The
1996 Act may provide some relief from state and local laws that arbitrarily
restrict the expansion of personal wireless services, which include cellular,
PCS and ESMR systems. For example, under the 1996 Act, localities are now
precluded from denying zoning approval for cell sites based upon electromagnetic
emission concerns, if the cellular operator's system complies with FCC emissions
standards. The FCC has adopted rules concerning emission standards. In addition,
localities are prohibited from adopting zoning requirements that simply prohibit
or have the effect of prohibiting personal wireless services, or that
discriminate between "functionally equivalent" services. Notwithstanding these
new requirements, the effectiveness of the new law has not yet been tested and
it is still unclear whether the costs of expanding cellular systems by adding
cell sites will increase and whether significant delays will be experienced due
to local zoning regulation.
FUTURE REGULATION
From time to time, legislation that potentially could affect the Company,
either beneficially or adversely, is proposed by federal or state legislators.
There can be no assurance that legislation will not be enacted by the federal or
state governments, or that regulations will not be adopted or actions taken by
the FCC or state
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<PAGE> 16
regulatory authorities that might adversely affect the business of the Company.
Changes such as the allocation by the FCC of radio spectrum for services that
compete with the Company's business could adversely affect the Company's
operating results.
RADIO FREQUENCY EMISSION CONCERNS
Media reports have suggested that certain RF emissions from cellular
telephones may be linked to cancer. Litigation concerning this issue is pending
against several other cellular operators generally alleging that the death by
cancer of a cellular system subscriber was related to such emissions. The
Company is not aware of any credible evidence linking the usage of cellular
telephones with cancer. On August 1, 1996, the FCC released a report and order
that updates the guidelines and methods it uses for evaluation on RF emissions
of radio equipment, including cellular telephones. While the FCC's new rules
impose more restrictive standards for determining acceptable levels of RF
emissions from low power devices such as portable cellular telephones, the
Company believes that all cellular telephones currently provided by the Company
to its customers already comply with the new standards.
ITEM 2. PROPERTIES
The Company maintains its corporate headquarters in Canfield, Ohio. The
Company leases this space, which is approximately 6,000 square feet. As of
December 31, 1996, the Company's cellular operations lease 40 and own one sales
and administrative offices. The Company anticipates that it will review these
leases from time to time and may, in the future, lease or acquire new facilities
as needed. The Company does not anticipate that it will encounter any material
difficulties in meeting its future needs for any leased space.
ITEM 3. LEGAL PROCEEDINGS
The Company is not currently involved in any pending legal proceedings that
individually or in the aggregate are material to the Company.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
On November 13, 1996, a special meeting of Class B Common Stockholders was
held at which the shareholders unanimously approved (i) an amendment and
restatement of the Articles of Incorporation requiring the Company to indemnify
Officers and Directors from Claims made against them relating to their service,
(ii) an amendment to the Code of Regulations changing the annual meeting date to
the fourth Wednesday in April, (iii) the adoption of a stock option plan for
Non-Employee Directors, and (iv) a resolution to fix the number of Directors at
nine, dividing the Directors into three classes with terms expiring in 1998,
1999 and 2000, respectively.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
There is no established trading market for the Common Stock. As of February
11, 1997, there was 1 record holder of the Company's Class A Common Stock shares
and 35 record holders of the Company's Class B Common Stock. The Company
declared dividends of $261,625 and $713,519 in 1996 and 1995 respectively. At
December 31, 1996, the Company was prohibited from paying dividends on the
Common Stock under the terms of the Bank Credit Facility and the Notes. See Item
1, "Business-Financing"; Item 7 "Management's Discussion and Analysis of
Financial Condition and Results of Operation -- Liquidity and Capital
Resources"; and Note 5, Notes to Consolidated Financial Statements.
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<PAGE> 17
ITEM 6. SELECTED FINANCIAL DATA
The following selected financial data are derived from the historical
financial statements of the Company. The data should be read in conjunction with
the audited consolidated financial statements, related notes and other financial
information included herein.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------------------------------------
1996 1995 1994 1993 1992
-------- ------- ------- ------- -------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:(1)
Total revenue......................... $ 44,796 $24,577 $18,048 $14,474 $11,487
Cost of services...................... 5,508 3,366 3,452 2,515 1,270
Cost of equipment sales............... 5,816 4,164 1,624 930 1,207
General and administrative expense.... 9,852 5,564 4,710 4,583 3,757
Selling and marketing expense......... 6,080 3,082 2,312 1,995 1,944
Depreciation and amortization......... 10,037 3,487 2,639 1,951 1,441
Operating income...................... 7,501 4,914 3,311 2,500 1,868
Interest expense...................... 11,173 2,660 964 652 888
Other expense, net.................... 195 304 625 325 114
(Loss) income before extraordinary
item............................... (3,868) 1,950 1,722 1,523 866
Net income (loss)..................... (5,288) 1,950 1,722 1,523 866
Pro forma net loss per share
applicable to common
shareholders(2)
Before extraordinary item.......... (.74)
Net loss........................... (.97)
BALANCE SHEET DATA:
Working capital (deficit)............. $ (387) $ 1,880 $ (331) $ 4 $ 1,756
Net fixed assets...................... 43,959 21,049 14,084 11,127 9,276
Total assets.......................... 344,178 79,618 27,418 20,553 20,431
Long-term debt........................ 312,250 69,500 18,264 10,928 12,064
Total liabilities..................... 326,442 75,332 22,649 15,224 15,024
Redeemable preferred stock............ 19,718
Shareholders' equity (deficit)........ (1,982) 4,286 4,769 5,329 5,407
Cash dividends declared (3)........... 262 714 2,128 996 856
<FN>
- ---------------
(1) Certain 1992, 1993, 1994 and 1995 amounts have been reclassified to conform
with 1996 presentation.
(2) Historical earnings per share data is not presented because such data is not
meaningful.
(3) Cash dividends declared per common share is not presented because such data
is not relevant due to the restructuring as described in Note 1, Notes to
Consolidated Financial Statements.
</TABLE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following discussion and analysis should be read in conjunction with
the Company's audited consolidated financial statements and the notes thereto
appearing elsewhere in this report. As a result of the acquisition on October 9,
1996 of the Horizon Systems and the acquisition on September 29, 1995 of Erie
Cellular Telephone Company (Erie Acquisition) (collectively, the Acquisitions),
the Company's operating results for the periods discussed may not be indicative
of future performance. In the text below, financial statement numbers have been
rounded, however, the percentage changes are based on the actual financial
statements.
YEAR ENDED DECEMBER 31, 1996 COMPARED TO YEAR ENDED DECEMBER 31, 1995.
For 1996, revenues totaled $44.8 million, an 82.3% increase over total
revenue of $24.6 million for 1995. Net loss in 1996 was $5.3 million, a decrease
from net income of $2.0 million in 1995. Earnings before interest,
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<PAGE> 18
taxes, depreciation and amortization, and other non-cash expenses (EBITDA) grew
to $17.5 million (39.2% of total revenue) in 1996 from $8.4 million (34.2% of
total revenue) in 1995. Subscriber revenue grew by 80.8% to $31.0 million in
1996 compared to $17.2 million in 1995 as a result of the Acquisitions and
continued subscriber growth in the Company's markets. The Company's subscribers
increased 138.6% to 106,574 from 44,665 at December 31, 1995 due mainly to the
acquisition of the Horizon Systems. Consistent with industry trends, subscriber
growth for 1996, excluding the effect of the Horizon Systems acquisition, is
32.8% over 1995. On a per subscriber basis revenue is down slightly, due in part
to competitive market pressures and the mix of subscribers reflecting safety and
security subscribers, who typically have few minutes of use per month. Roamer
revenue grew by 132.0% to $9.7 million during 1996 compared to $4.2 million in
1995. This increase was a result of the Acquisitions and greater volume of
roaming traffic versus the comparable 1995 period. Roamer revenue per minute
during 1996 decreased slightly to $0.55 from $0.57 in 1995 as the strategic
reductions made to regional roaming rates received from other cellular carriers
in the first quarter of 1995 were in effect for the full year in 1996. Equipment
sales increased by 58.1% to $2.4 million in 1996 compared to $1.5 million in
1995. This increase was due mainly to the Acquisitions and an increased number
of telephones and accessories distributed as new subscriber acquisitions
increased. Throughout the industry, to attract subscribers, cellular telephone
equipment is frequently provided to subscribers at no cost as part of promotions
to sell access, airtime and cellular service. Other revenue declined to $1.6
million in 1996 from $1.7 million in 1995 as equipment rental revenue continued
to decrease due to the continued phase out of rental programs.
Cost of services increased to $5.5 million in 1996 from $3.4 million in
1995. This increase was due mainly to the Acquisitions. Although cost of
services has increased 63.7%, this growth rate was less than the growth rate of
subscriber revenue which grew 80.8% during the same period, which was the result
of operating efficiencies gained from the Acquisitions.
Cost of equipment sales increased by 39.7% to $5.8 million in 1996 from
$4.2 million in the comparable 1995 period. This increase was due mainly to the
Acquisitions and to an increased number of telephones and accessories
distributed as new subscriber acquisitions increased. The increased cost of
equipment sold resulting from the increase in gross activations is somewhat
offset by the declining cost to acquire new telephones. General and
administrative costs increased by 77.1% to $9.9 million in 1996 from $5.6
million in 1995. This increase is due primarily to the Acquisitions and the
effects of a third quarter 1995 one time adjustment to the personal property tax
accrual resulting from a substantial decrease in tax rates.
Selling and marketing costs grew by 97.3% to $6.1 million in 1996 from $3.1
million in 1995. This increase is due to the Acquisitions and a higher level of
new subscribers added period to period. Selling and marketing cost per gross new
subscriber decreased to $310 in 1996 from $345 in 1995. Depreciation and
amortization increased to $10.0 million in 1996 from $3.5 million in 1995 due to
the depreciation on higher levels of fixed assets resulting from the purchases
for system growth as well as amortization of the licenses from the Acquisitions.
In 1996, the Company spent approximately $10.0 million in capital expenditures,
primarily for new cell sites and system growth. The amortization of the acquired
cellular licenses contributed $3.4 million to this increased amortization.
Interest expense increased to $11.2 million in 1996 from $2.7 million in
1995. This increase was primarily a result of increased borrowings associated
with the Acquisitions. In October 1996, the Company incurred an extraordinary
loss of $1.4 million to write-off unamortized financing costs associated with
the extinguished bank credit agreement. See Item 1, "Business Financing"; and
Note 3, Notes to Consolidated Financial Statements.
At December 1996, the Company has a net operating loss carryforward of $7.5
million. No benefit of the loss carryforward has been recorded in 1996. If in
the future this loss carryforward is utilized, the related benefits will be
recorded. Income tax expense was $65,400 in 1995.
16
<PAGE> 19
YEAR ENDED DECEMBER 31, 1995 COMPARED TO YEAR ENDED DECEMBER 31, 1994
For 1995, the Company's total revenue increased to $24.6 million, which was
36.2% higher than 1994 total revenue of $18.0 million. Net income for 1995 was
$2.0 million, which was 13.3% higher than the prior year's net income of $1.7
million. EBITDA grew to $8.4 million or 34.2% of total revenue in 1995 from $6.0
million or 33.0% of total revenue in 1994. Subscriber revenue grew by 52.0% to
$17.2 million in 1995 from $11.3 million in the prior year as a result of
continued growth in the number of subscribers and from the Erie Acquisition.
Roamer revenue was flat year to year at $4.1 million. During 1995, the Company
reduced roaming rates in certain key areas to be more competitive which
increased its roaming traffic volume. However, the decrease in rates was offset
by the increased roaming traffic volume that occurred. Equipment sales grew by
30.5% to $1.5 million in 1995 from $1.2 million in 1994 as the Company's retail
stores continued to emphasize accessory sales and because of increased
subscriber acquisition levels somewhat offset by continued cellular telephone
promotion programs. Other revenue grew by 18.4% to $1.7 million in 1995 from
$1.4 million in 1994, as the paging subscriber base continued to increase.
Cost of services decreased by 2.5% to $3.4 million during 1995 from $3.5
million in the prior year. This was a result of the Company's ability to
negotiate reduced roaming rates charged by its key roaming partners. This rate
reduction more than offset the additional costs associated with increased
traffic from internal growth and the Erie Acquisition. Cost of equipment sales
more than doubled to $4.2 million in 1995 from $1.6 million in 1994. The primary
reasons for the rise in cost include an increased number of phones distributed
on a promotional basis to new activations, a higher level of swaps and upgrades
of phones by existing customers, the continued phase-out of phone rental
programs and the Erie Acquisition. General and administrative costs increased
18.1% to $5.6 million in 1995 from $4.7 million in 1994. This increase was
primarily due to the Erie Acquisition, partially offset by a decrease in
personal property tax rates for public utilities.
Selling and marketing costs grew by 33.3% to $3.1 million in 1995 from $2.3
million in 1994. This increase is due to the growth of new subscribers added to
the system in 1995 compared to 1994, the Erie Acquisition, the increased number
of phones distributed on a promotional basis to new subscribers, and increased
advertising levels. Selling and marketing cost per gross new subscriber
increased to $345 in 1995 from $280 in 1994. Depreciation and amortization
increased to $3.5 million in 1995 from $2.6 million in 1994 due to the increased
fixed assets purchased for system growth and the Erie Acquisition. In 1995, the
Company spent approximately $9.1 million in capital expenditures, primarily for
additional cell sites including $3.0 million to convert the acquired Erie
equipment to conform with the Company's technology. The Erie cellular license
was acquired at a cost of $40.3 million resulting in $0.3 million of additional
amortization expense in 1995.
Interest expense more than doubled to $2.7 million in 1995 from $1.0
million in 1994. During 1995 the Company borrowed approximately $52.0 million
primarily associated with the Erie Acquisition, which resulted in additional
interest expense.
LIQUIDITY AND CAPITAL RESOURCES
The Company has historically relied on internally generated funds to fund
debt service and a substantial portion of its capital expenditures. Bank credit
facilities have been used for additional support of capital expenditure programs
and to fund acquisitions. The Company has used $110.0 million of proceeds from
the sale of Senior Notes, $20.0 million of proceeds from the sale of preferred
stock, and $204.5 million of borrowings under a bank credit facility to fund the
$252.9 million Horizon Systems acquisition, to pay the fees associated with the
above transactions, to refinance $71.5 million of existing bank debt and for
working capital.
Net cash provided by operating activities was $14.8 million in 1996
compared to $2.4 million in 1995 and $5.3 million in 1994. The increase from
1995 to 1996 was primarily the result of the increase in the number of
subscribers and the related growth in revenue. Offsetting this cash flow will be
a 1997 payment of $6.9 million related to interest accrued at December 31, 1996.
The decrease from 1994 to 1995 was primarily the result of increased working
capital requirements in 1995, mostly due to the Erie acquisition, despite the
increased revenue as a result of the growth in the subscriber base.
17
<PAGE> 20
Net cash used in investing activities was $264.2 million for 1996 compared
to $49.1 million in 1995 and $10.5 million in 1994. This activity reflects the
acquisition of businesses and purchases of property and equipment.
Net cash provided by financing activities was $251.2 million in 1996
compared to $46.6 million in 1995 and $4.2 million in 1994. This primarily
includes funds received, net of financing costs, from the issuance of Senior
Notes and preferred stock and borrowings under the bank credit facilities to
fund acquisitions. Dividends of $0.3 million, $1.2 million and $1.9 million were
paid in 1996, 1995 and 1994, respectively. In 1995, stock was purchased for
treasury in the amount of $1.7 million.
The Company projects a rapid buildout of the systems acquired from Horizon
in order to improve coverage and increase usage. During 1997, the Company
expects to add 40 to 50 new cell sites. The Company also plans to convert cell
sites from Ericsson to Northern Telecom equipment to more efficiently serve
communities of interest that expand the existing Northern Telecom systems in
Youngstown and Erie and to expand the TDMA footprint. In addition, the Company
will continue to upgrade switches and other network equipment. Aggregate capital
expenditure levels are expected to be approximately $25 to $30 million in the
year ending December 31, 1997.
The Company plans to use internally generated funds plus funds available
under the Bank Credit Facility to finance this capital expenditure program. See
Item 1, "Business -- Financing". At December 31, 1996, the Company had
approximately $76 million in remaining revolver availability under the Bank
Credit Facility. See Note 5, Notes to Consolidated Financial Statements. The
Company may also wish to redeem its outstanding Series A Senior Cumulative
Nonvoting Preferred Stock during fiscal 1997.
The Company is a holding company with no direct operations and no
significant assets other than the stock of the Subsidiary. Accordingly, the
Company's ability to make principal, interest and other payments to holders of
the Notes when due, and to meet its other obligations, is dependent upon the
receipt of sufficient funds from the Subsidiary. The Bank Credit Facility
contains certain restrictions upon the ability of the Subsidiary to distribute
funds to the Company. See Item 1, "Business -- Financing"; and Note 5, Notes to
Consolidated Financial Statements. The Company expects that internally generated
funds plus funds available under the Bank Credit Facility will be sufficient to
meet its needs.
EFFECT OF NEW ACCOUNTING STANDARDS
In March 1995, the Financial Accounting Standards Board (FASB) issued SFAS
No. 121, Accounting for the Impairment of Long-Lived Assets and for Long-Lived
Assets to be Disposed Of, which requires the Company to review for the
impairment of long-lived assets and certain identifiable intangibles to be held
and used by the Company when events or changes in circumstances indicate that
the carrying amount of an asset may not be recoverable. The Company adopted the
provisions of SFAS No. 121 effective January 1, 1996. The impact of adopting
SFAS No. 121 did not have a material effect on the Company's consolidated
financial position or results of operations.
In October 1995, the FASB issued SFAS No. 123, Accounting for Stock-Based
Compensation, which establishes a fair value based method of accounting for
stock-based employee compensation plans, including stock option plans. However,
the new standard allows compensation to continue to be measured as prescribed by
Accounting Principles Board (APB) Opinion No. 25, Accounting for Stock Issued to
Employees, but requires expanded disclosures. Management has elected to account
for stock options in accordance with APB Opinion No. 25. The disclosure
requirements of SFAS No. 123, which are required if an entity elects to continue
to use the accounting method in APB Opinion No. 25, have been adopted as
required for the financial statements of the Company for the year ended December
31, 1996. The effect of applying SFAS No. 123 results in net loss and net loss
per share that are not materially different from amounts reported.
INFLATION
The Company does not believe that inflation has had a significant impact on
the Company's consolidated operations.
18
<PAGE> 21
FORWARD LOOKING STATEMENTS
The statements regarding the Company's plans for capital and other
expenditures set forth above are forward looking statements made pursuant to the
safe harbor provisions of the Private Securities Litigation Reform Act of 1995.
These plans involve a number of risks and uncertainties. The important factors
that could cause actual capital and other expenditures or the Company's
performance to differ materially from the plans include, without limitation, the
Company's continued ability to satisfy the financial performance and other
covenants of the Bank Credit Facility; the impact of competition from other
providers of cellular telephone and personal communications services, and from
other technologies that may be developed; and the occurrence of other
technological changes affecting the Company's business. For further information
regarding these and other factors which may affect the Company's performance,
see "Risk Factors" in the Company's Registration Statement (File No. 333-10161)
on Form S-1 filed with the Securities and Exchange Commission dated September
19, 1996.
19
<PAGE> 22
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS AND SCHEDULES
<TABLE>
<CAPTION>
PAGE
NUMBER
------
<S> <C>
FINANCIAL STATEMENTS:
Report of Independent Auditors.................................................... 21
Consolidated Balance Sheets as of December 31, 1996 and 1995...................... 22
Consolidated Statements of Operations for the years ended December 31, 1996, 1995
and 1994....................................................................... 24
Consolidated Statements of Shareholders' Equity (Deficit) for the years ended
December 31, 1996, 1995 and 1994............................................... 25
Consolidated Statements of Cash Flows for the years ended December 31, 1996, 1995,
and 1994....................................................................... 26
Notes to Consolidated Financial Statements........................................ 27
SUPPLEMENTARY DATA:
Schedule-II Valuation and Qualifying Accounts..................................... 35
</TABLE>
20
<PAGE> 23
REPORT OF INDEPENDENT AUDITORS
The Board of Directors
Sygnet Wireless, Inc.
We have audited the accompanying consolidated balance sheets of Sygnet
Wireless, Inc. as of December 31, 1996 and 1995, and the related consolidated
statements of operations, shareholders' equity (deficit), and cash flows for
each of the three years in the period ended December 31, 1996. Our audits also
included the financial statement schedule listed in the Index at Item 14(a).
These financial statements and schedule are the responsibility of the Company's
management. Our responsibility is to express an opinion on these financial
statements and schedule based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the consolidated financial position of
Sygnet Wireless, Inc. at December 31, 1996 and 1995 and the consolidated results
of its operations and its cash flows for each of the three years in the period
ended December 31, 1996 in conformity with generally accepted accounting
principles. Also, in our opinion, the related financial statement schedule, when
considered in relation to the basic financial statements taken as a whole,
presents fairly in all material respects the information set forth therein.
ERNST & YOUNG LLP
Cleveland, Ohio
February 11, 1997
21
<PAGE> 24
SYGNET WIRELESS, INC.
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
DECEMBER 31
----------------------------
1996 1995
------------ -----------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents...................................... $ 2,257,748 $ 448,292
Accounts receivable, less allowance for doubtful accounts of
$1,168,800 at December 31, 1996, and $402,800 at December
31, 1995.................................................... 8,857,028 5,654,208
Inventory...................................................... 1,696,952 1,096,961
Prepaid expenses............................................... 531,171 263,722
------------ -----------
Total current assets................................... 13,342,899 7,463,183
Other assets:
Cellular licenses -- net....................................... 252,271,468 49,409,772
Customer lists -- net.......................................... 24,535,885 46,625
Deferred financing costs -- net................................ 10,068,956 1,649,997
------------ -----------
Total other assets..................................... 286,876,309 51,106,394
Property and equipment -- net.................................... 43,958,969 21,048,896
------------ -----------
Total assets........................................... $344,178,177 $79,618,473
============ ===========
</TABLE>
22
<PAGE> 25
SYGNET WIRELESS, INC.
CONSOLIDATED BALANCE SHEETS -- CONTINUED
<TABLE>
<CAPTION>
DECEMBER 31
----------------------------
1996 1995
------------ -----------
<S> <C> <C>
LIABILITIES, REDEEMABLE PREFERRED STOCK AND SHAREHOLDERS' EQUITY
(DEFICIT)
Current liabilities:
Accounts payable............................................... $ 2,227,187 $ 998,368
Amount payable -- Horizon and Erie acquisitions................ 599,442 1,920,190
Deferred revenue............................................... 1,679,873 742,811
Accrued expenses and other liabilities......................... 2,282,472 1,463,254
Interest payable............................................... 6,940,623 458,711
------------ -----------
Total current liabilities.............................. 13,729,597 5,583,334
Long-term liabilities:
Deferred liability -- utility property tax..................... 462,317 248,876
Long-term debt................................................. 312,250,000 69,500,000
------------ -----------
Total long-term liabilities............................ 312,712,317 69,748,876
Redeemable Series A Senior Cumulative Nonvoting Preferred Stock,
$.01 par, aggregate redemption value of $20,690,411, 500,000
shares authorized, 200,000 shares issued and outstanding and
warrants....................................................... 19,718,028
Shareholders' equity (deficit):
Wilcom Corporation:
Common shares, no par, Type A, voting, stated value $25;
1,000 shares authorized, 500 shares issued and
outstanding............................................... 12,500
Common shares, no par, Type B, non-voting, stated value $25;
5,000 shares authorized, 2,500 shares issued and
outstanding............................................... 62,500
SYGNET Communications, Inc.:
Common shares, no par, Type A, voting, stated value $1;
250,000 shares authorized, 209,362 shares issued and
outstanding............................................... 209,362
Common shares, no par, Type B, non-voting, stated value $1;
1,250,000 shares authorized, 1,046,801 shares issued and
outstanding............................................... 1,046,801
Sygnet Wireless, Inc.:
Common shares, $.01 par, Class A, 1 vote per share,
60,000,000 shares authorized, 2,653 shares issued and
outstanding............................................... 27
Common shares, $.01 par, Class B, 10 votes per share;
10,000,000 shares authorized, 6,167,977 shares issued and
outstanding............................................... 61,679
Additional paid-in capital..................................... 5,812,211 4,170,368
Retained earnings (deficit).................................... (7,605,730) 753,675
Note receivable from officer/shareholder....................... (249,952) (249,952)
Treasury stock, at cost........................................ (1,718,991)
------------ -----------
Total shareholders' equity (deficit)................... (1,981,765) 4,286,263
------------ -----------
Total liabilities, redeemable preferred stock and
shareholders' equity (deficit)....................... $344,178,177 $79,618,473
============ ===========
</TABLE>
See accompanying notes.
23
<PAGE> 26
SYGNET WIRELESS, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31
-------------------------------------------
1996 1995 1994
----------- ----------- -----------
<S> <C> <C> <C>
REVENUE:
Subscriber revenue................................ $31,084,883 $17,191,291 $11,311,782
Roamer revenue.................................... 9,687,284 4,175,809 4,144,532
Equipment sales................................... 2,416,769 1,529,284 1,172,126
Other revenue..................................... 1,607,245 1,680,544 1,419,501
----------- ----------- -----------
Total revenue............................. 44,796,181 24,576,928 18,047,941
COSTS AND EXPENSES:
Cost of services.................................. 5,508,386 3,365,954 3,452,103
Cost of equipment sales........................... 5,816,144 4,163,890 1,623,996
General and administrative........................ 9,852,004 5,563,887 4,710,048
Selling and marketing............................. 6,080,308 3,082,492 2,311,840
Depreciation and amortization..................... 10,038,439 3,486,554 2,638,577
----------- ----------- -----------
Total costs and expenses.................. 37,295,281 19,662,777 14,736,564
----------- ----------- -----------
INCOME FROM OPERATIONS.............................. 7,500,900 4,914,151 3,311,377
OTHER:
Interest expense.................................. 11,173,688 2,660,248 964,046
Other expense, net................................ 194,723 303,867 625,607
----------- ----------- -----------
(LOSS) INCOME BEFORE EXTRAORDINARY ITEM............. (3,867,511) 1,950,036 1,721,724
Extraordinary (loss) on extinguishment of debt...... (1,420,864)
----------- ----------- -----------
NET (LOSS) INCOME................................... $(5,288,375) $ 1,950,036 $ 1,721,724
=========== =========== ===========
Preferred stock dividend and accretion.............. $ (718,028)
-----------
Net loss applicable to common shareholders.......... $(6,006,403)
===========
Pro forma net loss per share applicable to common
shareholders:
Before extraordinary item......................... $ (.74)
Extraordinary item................................ (.23)
-----------
Net loss............................................ $ (.97)
===========
Pro forma shares outstanding........................ 6,170,630
===========
</TABLE>
See accompanying notes.
24
<PAGE> 27
'
SYGNET WIRELESS, INC.
CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY (DEFICIT)
<TABLE>
<CAPTION>
SYGNET
WIRELESS,
WILCOM CORPORATION SYGNET COMMUNICATIONS, INC. INC.
COMMON STOCK TYPE A COMMON STOCK ---------
---------------------------------------- --------------------------------------------------
CLASS
TYPE A TYPE B TYPE A TYPE B A
------------------ ------------------ --------------------- ------------------------- ------
SHARES AMOUNT SHARES AMOUNT SHARES AMOUNT SHARES AMOUNT SHARES
------ -------- ------ -------- -------- --------- ---------- ----------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
BALANCE AS OF JANUARY 1,
1994..................... 500 $ 12,500 2,500 $ 62,500 209,362 $ 209,362 1,046,801 $ 1,046,801 --
Net Income...............
Dividends declared.......
Officer/shareholder stock
purchase...............
---- -------- ------ -------- -------- --------- ---------- ----------- -----
BALANCE AS OF DECEMBER 31,
1994..................... 500 12,500 2500 62,500 209,362 209,362 1,046,801 1,046,801
Net Income...............
Dividends declared.......
Type A common stock
repurchased............
Type B common stock
repurchased............
---- -------- ------ -------- -------- --------- ---------- ----------- -----
BALANCE AS OF DECEMBER 31,
1995..................... 500 12,500 2,500 62,500 209,362 209,362 1,046,801 1,046,801
Net loss.................
Dividends declared.......
Corporate merger......... (500) (12,500) (2,500) (62,500) 4,360 4,360 21,800 21,800
Retirement of treasury
stock.................. (8,024) (40,173)
Sygnet Wireless
capitalization......... (205,698) (213,722) (1,028,428) (1,068,601)
Capital contribution of S
Corporation earnings...
Preferred stock
dividend...............
Accretion of preferred
stock..................
Exchange of common
shares................. 2,653
---- -------- ------ -------- -------- --------- ---------- ----------- -----
BALANCE AS OF DECEMBER 31,
1996..................... -- $ -- -- $ -- -- $ -- -- $ -- 2,653
==== ======== ====== ======== ======== ========= ========== =========== =====
<CAPTION>
NOTE
CLASS B ADDITIONAL RETAINED RECEIVABLE TREASURY STOCK
-------------------- PAID-IN EARNINGS FROM OFFICER/ ----------------------
AMOUNT SHARES AMOUNT CAPITAL (DEFICIT) SHAREHOLDER SHARES AMOUNT
------ --------- ------- ----------- ----------- ------------- ------- -----------
<S> <C><C> <C> <C> <C> <C> <C> <C> <C>
BALANCE AS OF JANUARY 1,
1994..................... $ -- -- $ -- $ 4,170,368 $ (76,251) $ -- -- $ --
Net Income............... 1,721,724
Dividends declared....... (2,128,315)
Officer/shareholder stock
purchase............... (249,952)
--- --------- ------- ----------- ----------- --------- ------- ----------
BALANCE AS OF DECEMBER 31,
1994..................... 4,170,368 (482,842) (249,952)
Net Income............... 1,950,036
Dividends declared....... (713,519)
Type A common stock
repurchased............ 8,024 $ (312,936)
Type B common stock
repurchased............ 40,173 $(1,406,055)
--- --------- ------- ----------- ----------- --------- ------- ----------
BALANCE AS OF DECEMBER 31,
1995..................... 4,170,368 753,675 (249,952) 48,197 $(1,718,991)
Net loss................. (5,288,375)
Dividends declared....... (261,625)
Corporate merger......... 48,840
Retirement of treasury
stock.................. (1,718,991) (48,197) 1,718,991
Sygnet Wireless
capitalization......... 6,170,630 61,706 1,220,617
Capital contribution of S
Corporation earnings... 2,809,405 (2,809,405)
Preferred stock
dividend............... (690,411)
Accretion of preferred
stock.................. (27,617)
Exchange of common
shares................. 27 (2,653) (27)
--- --------- ------- ----------- ----------- --------- ------- ----------
BALANCE AS OF DECEMBER 31,
1996..................... $ 27 6,167,977 $61,679 $ 5,812,211 $(7,605,730) $(249,952) -- $ --
=== ========= ======= =========== =========== ========= ======= ==========
</TABLE>
See accompanying notes.
25
<PAGE> 28
SYGNET WIRELESS, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31
---------------------------------------------
1996 1995 1994
------------ ----------- ------------
<S> <C> <C> <C>
OPERATING ACTIVITIES
Net (loss) income................................. $ (5,288,375) $ 1,950,036 $ 1,721,724
Adjustments to reconcile net (loss) income to net
cash provided by operating activities:
Depreciation.................................... 5,948,693 2,765,816 2,365,848
Amortization.................................... 4,089,746 720,738 272,729
Loss on disposal of equipment................... 177,633 161,222 461,333
Other........................................... 113,545
Extraordinary loss on extinguishment of debt.... 1,420,864
Changes in operating assets and liabilities:
Accounts receivable.......................... (184,315) (2,838,833) (320,520)
Inventory.................................... (287,900) (184,951) (382,335)
Prepaid and deferred expenses................ 28,649 7,951 (97,296)
Accounts payable and accrued expenses........ 2,424,406 (589,925) 1,214,767
Accrued interest payable..................... 6,481,912 452,933 (53,576)
------------ ----------- ------------
Net cash provided by operating
activities............................ 14,811,313 2,444,987 5,296,219
INVESTING ACTIVITIES
Acquisitions of Horizon, Erie, and Sharon......... (254,150,136) (40,533,104) (4,500,000)
Issuance of note receivable....................... (249,952)
Purchases of property and equipment............... (10,049,999) (9,056,098) (5,793,053)
Proceeds from sale of equipment................... 513,730 8,701
------------ ----------- ------------
Net cash used in investing activities... (264,200,135) (49,075,472) (10,534,304)
FINANCING ACTIVITIES
Dividends paid.................................... (261,625) (1,158,980) (1,856,089)
Proceeds from long-term debt...................... 320,750,000 51,986,188 9,733,812
Principal payments on long-term debt.............. (78,000,000) (750,000) (3,534,000)
Increase in financing costs....................... (10,290,097) (1,716,230) (127,546)
Net proceeds from issuance of preferred stock..... 19,000,000
Purchase of treasury stock........................ (1,718,991)
------------ ----------- ------------
Net cash provided by financing
activities............................ 251,198,278 46,641,987 4,216,177
Increase (decrease) in cash and cash
equivalents..................................... 1,809,456 11,502 (1,021,908)
Cash and cash equivalents at beginning of year.... 448,292 436,790 1,458,698
------------ ----------- ------------
Cash and cash equivalents at end of
year.................................. $ 2,257,748 $ 448,292 $ 436,790
============ =========== ============
</TABLE>
See accompanying notes.
26
<PAGE> 29
SYGNET WIRELESS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE YEARS ENDED DECEMBER 31, 1996, 1995 AND 1994
1. DESCRIPTION OF BUSINESS AND BASIS OF PRESENTATION
These financial statements include the combined financial statements of
SYGNET Communications, Inc. (SYGNET) and Wilcom Corporation (Wilcom) through
August 31, 1996, the effective date of the merger described below, and the
consolidated accounts of Sygnet Wireless, Inc. and its wholly-owned subsidiary
Sygnet Communications, Inc. (Sygnet) (hereinafter collectively referred to as
the "Company") thereafter. The Company owns and operates cellular telephone
systems serving one large cluster with an approximate population of 2.4 million
in Northeastern Ohio, Western Pennsylvania and Western New York.
On August 19, 1996, the shareholders of SYGNET and Wilcom effected a
corporate restructuring whereby Wilcom was merged into SYGNET and shareholders
of Wilcom received 8.72 shares of SYGNET common stock for each share of Wilcom
common stock held as of August 31, 1996, the effective date of the merger. This
merger was a business combination between entities under common control whereby
the assets and liabilities so transferred were accounted for at historical cost
in a manner similar to that in pooling-of-interest accounting. Also, in
conjunction with this merger, the shareholders of SYGNET amended the articles of
incorporation to change SYGNET's name to Sygnet Wireless, Inc.
Prior to the restructuring, SYGNET and Wilcom had been operating their
cellular business through three partnerships (Youngstown Cellular Telephone
Company (YCTC), Erie Cellular Telephone Company (Erie), and Wilcom Cellular) and
Sharon -- Youngstown Cellular, Inc. (Sharon). As a result of the restructuring
and merger, Sharon was renamed Sygnet and is the wholly-owned subsidiary and
operating company of Sygnet Wireless, Inc. The existence of YCTC, Erie, and
Wilcom Cellular terminated on October 1, 1996 when all partnership interests
transferred to Sygnet.
2. ACQUISITIONS
On October 9, 1996, the Company acquired certain cellular licenses,
property, equipment, customer lists, current assets and current liabilities of
Horizon Cellular Telephone Company of Chautauqua L.P., Horizon Cellular
Telephone Company of Crawford L.P., and Horizon Cellular Telephone Company of
Indiana L.P. (hereinafter collectively referred to as "Horizon") for cash of
$252.9 million. The acquired systems provide cellular service to an estimated
population of 1.4 million in contiguous markets in Western Pennsylvania and
Western New York.
On September 30, 1995, SYGNET, as a general partner, purchased 95.46% of
Erie for cash of $40.53 million. On November 30, 1995, Sharon purchased 4.54% of
Erie for $1.92 million, which was paid on February 12, 1996.
On August 11, 1994, SYGNET purchased 75% and Wilcom purchased 25% of the
outstanding shares of common stock of Sharon for $4.5 million.
The above transactions were accounted for as purchases and, accordingly,
the results of operations of the companies acquired have been included in the
consolidated financial statements since the dates of acquisition.
27
<PAGE> 30
SYGNET WIRELESS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- CONTINUED
Cash paid for acquisitions is summarized below:
<TABLE>
<CAPTION>
1996 1995 1994
------------ ----------- ----------
<S> <C> <C> <C>
Current assets acquired................... $ 3,613,696 $ 923,234
Property and equipment.................... 18,986,400 1,349,195
Cellular licenses......................... 207,223,616 40,289,743 $4,500,000
Customer lists............................ 25,700,000
Current liabilities assumed............... (774,134) (108,878)
------------ ----------- ----------
Net assets and liabilities acquired....... 254,749,578 42,453,294 4,500,000
Amounts payable in future periods......... (599,442) (1,920,190)
------------ ----------- ----------
Cash paid................................. $254,150,136 $40,533,104 $4,500,000
============ =========== ==========
</TABLE>
The pro forma unaudited condensed combined results of operations for the
year ended December 31, 1996 and December 31, 1995 as if the purchases occurred
on January 1, 1995 are as follows:
<TABLE>
<CAPTION>
1996 1995
------------ ------------
<S> <C> <C>
Revenue............................................... $ 69,851,000 $ 56,577,000
============ ============
Net loss before extraordinary item.................... $(15,283,000) $(22,489,000)
============ ============
Net loss.............................................. $(16,704,000) $(22,489,000)
============ ============
Pro forma net loss per share applicable to common
shareholders........................................ $ (3.25)
============
</TABLE>
3. SIGNIFICANT ACCOUNTING POLICIES
CONSOLIDATION
All significant intercompany balances and transactions have been eliminated
in the consolidated financial statements.
CASH EQUIVALENTS
The Company considers all liquid investments with a maturity of three
months or less when purchased to be cash equivalents.
INVENTORY
Inventory consisting of merchandise purchased for resale is stated at the
lower of cost or market determined by the first-in, first-out (FIFO) method.
PROPERTY AND EQUIPMENT
Property and equipment are recorded at cost and are depreciated over their
estimated useful lives calculated under the straight-line or double-declining
balance methods.
INTANGIBLE ASSETS
The FCC issues licenses that enable cellular carriers to provide cellular
service in specific geographic areas. The FCC grants licenses for a term of up
to 10 years and generally grants renewals if the licensee has complied with its
obligations under the Communications Act of 1934. In 1993, the FCC adopted
specific standards to apply to cellular renewals, concluding it will award a
renewal to a cellular licensee that meets certain standards of past performance.
Historically, the FCC has granted license renewals routinely. The
28
<PAGE> 31
SYGNET WIRELESS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- CONTINUED
Company believes that it has met, and will continue to meet all requirements
necessary to secure renewal of its cellular licenses.
The Company has acquired cellular licenses and customer lists through its
acquisition of interests in various cellular systems. The cost of licenses and
customer lists acquired was $231,003,426 and $40,289,743 in 1996 and 1995,
respectively. The Company uses a 40 year useful life to amortize its licenses
under the straight-line method. Purchased cellular and paging customer lists are
being amortized over 5 years under the straight-line method. The components of
intangible assets at December 31 are summarized below:
<TABLE>
<CAPTION>
1996 1995
------------ -----------
<S> <C> <C>
Cellular licenses...................................... $255,849,696 $50,546,270
Customer lists......................................... 25,819,792 119,792
------------ -----------
281,669,488 50,666,062
Accumulated amortization............................... (4,862,135) (1,209,665)
------------ -----------
$276,807,353 $49,456,397
============ ===========
</TABLE>
Amortization expense was $3,652,470, $523,768 and $211,921 in 1996, 1995
and 1994, respectively.
The ongoing value and remaining useful lives of intangible assets are
subject to periodic evaluation and the Company currently expects the carrying
amounts to be fully recoverable. When events and circumstances indicate that
intangible assets might be impaired, an undiscounted cash flow methodology would
be used to determine whether an impairment loss would be recognized.
REVENUE RECOGNITION
The Company earns revenue primarily by providing cellular services to its
customers (Subscriber Revenue) and from the usage of its system by the customers
of other cellular carriers (Roamer Revenue). Access revenue for Subscriber
Revenue is billed one month in advance. Revenue is recognized as service is
rendered. Subscriber acquisition costs (primarily commissions and loss on
equipment sales) are expensed when incurred.
DEFERRED FINANCING COSTS
Deferred financing costs are being amortized over the terms of the bank
credit facility and senior notes. Accumulated amortization was $266,084 and
$58,834 at December 31, 1996 and 1995, respectively. Amortization expense was
$437,276, $196,970 and $60,808 in 1996, 1995 and 1994, respectively. Upon
entering into a new bank credit facility in October 1996, an extraordinary loss
of $1,420,864 was incurred to write-off unamortized financing costs under the
extinguished bank credit agreement as described in Note 5.
ADVERTISING COSTS
Advertising costs are recorded as expense when incurred. Advertising
expense was $1,225,151, $933,498 and $625,255 in 1996, 1995 and 1994,
respectively.
PRO FORMA NET LOSS PER COMMON SHARE
Pro forma net loss per common share is based on the number of common shares
outstanding, as if the corporate restructuring described in Note 1 occurred at
the beginning of the year. Losses applicable to common shareholders include
adjustments for Preferred Stock dividends and accretion of the carrying value of
the Preferred Stock. Historical earnings per share data is not presented because
such data is not meaningful.
29
<PAGE> 32
SYGNET WIRELESS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- CONTINUED
STOCK COMPENSATION
The Company accounts for its stock-based employee compensation arrangements
based on the intrinsic value of the equity instruments granted, as set forth in
APB Opinion No. 25, Accounting For Stock Issued to Employees.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the amounts reported in the financial statements. Actual
results may differ from those estimates.
SIGNIFICANT CONCENTRATIONS
In connection with providing cellular services to customers of other
cellular carriers, the Company has contractual agreements with those carriers
which provide for agreed upon billing rates between the parties. Approximately
48%, 62% and 74% of the Company's Roamer Revenue was earned from two cellular
carriers in 1996, 1995 and 1994, respectively.
FINANCIAL INSTRUMENTS
Derivative financial instruments are used by the Company in the management
of interest rate exposure and are accounted for on an accrual basis. Income and
expense are recorded in the same category as that arising from the related
liability being hedged (i.e., adjustments to interest expense).
The Company uses variable interest rate credit facilities to finance
acquisitions and operations of the Company. The Company may reduce its exposure
to fluctuations in interest rates by creating offsetting positions through the
use of derivative financial instruments. The Company does not use derivative
financial instruments for trading or speculative purposes, nor is the Company a
party to leveraged derivatives. The notional amount of interest rate swaps is
the underlying principal amount used in determining the interest payments
exchanged over the life of the swap. The notional amount is not a measure of the
Company's exposure through its use of derivatives. Premiums paid for interest
rate cap agreements are being amortized as adjustments to interest expense over
the term of the agreements.
The Company may be exposed to credit loss in the event of nonperformance by
the counterparty to its interest rate swap agreements and interest rate cap
agreements. The Company anticipates the counterparty will be able to fully
satisfy its obligations under the agreements as the counterparty is a primary
lender under the financing agreement which the interest rate swap and cap
agreements hedge.
FAIR VALUE OF FINANCIAL INSTRUMENTS
At December 31, 1996 and 1995, the carrying value of cash equivalents,
accounts receivable, the interest rate swap and cap and the long-term bank debt
approximated fair value. The fair value of the long-term unsecured senior notes,
calculated based on quoted market prices, was $112,750,000 at December 31, 1996.
RECLASSIFICATION
Certain 1994 and 1995 amounts have been reclassified to conform with 1996
presentation.
30
<PAGE> 33
SYGNET WIRELESS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- CONTINUED
4. PROPERTY AND EQUIPMENT
Property and equipment consists of the following:
<TABLE>
<CAPTION>
USEFUL LIFE 1996 1995
------------ ------------ -----------
<S> <C> <C> <C>
Land, building and improvements.......... 5-19 years $ 7,296,770 $ 3,340,331
Cellular system and equipment............ 2.5-19 years 41,498,865 19,556,464
Customer premise equipment............... 3 years 1,690,906 1,695,605
Office furniture and equipment........... 3-10 years 4,341,459 2,498,057
Cell site construction in progress....... 1,076,817 379,813
------------ -----------
55,904,817 27,470,270
Accumulated depreciation................. (11,945,848) (6,421,374)
------------ -----------
$ 43,958,969 $21,048,896
============ ===========
</TABLE>
At December 31, 1996, the Company had purchase commitments of approximately
$9.9 million for equipment.
5. LONG-TERM DEBT
On September 19, 1996, the Company issued $110,000,000 11 1/2% unsecured
Senior Notes due October 1, 2006 (the Notes). The Notes pay interest
semiannually on April 1 and October 1 of each year commencing April 1, 1997. The
Notes are redeemable at the option of the Company at redemption prices
(expressed as a percentage of principal amount) ranging from 105.75% in 2001 to
100.00% in 2005 and thereafter. Among other things, the Notes contain certain
covenants which limit additional indebtedness, payment of dividends, sale of
assets or stock, changes in control and transactions with related parties. The
proceeds from the Notes were used to repay amounts borrowed under a $75 million
bank credit agreement and to finance the acquisition of Horizon described in
Note 2.
On October 9, 1996, Sygnet entered into a new financing agreement (the Bank
Credit Facility) with a commercial bank group. The Bank Credit Facility is a
senior secured reducing revolver that provides Sygnet the ability to borrow up
to $300.0 million through June 30, 1999. Mandatory reductions in the revolver
occur quarterly thereafter through June 30, 2005, when the Bank Credit Facility
terminates. The Bank Credit Facility is secured by certain assets and the stock
of Sygnet. The Bank Credit Facility provides for various borrowing rate options
based on either a fixed spread over the London Interbank Offered Rate (LIBOR) or
the prime rate. Interest payments will be made quarterly. As of December 31,
1996, $202.3 million was outstanding under the Bank Credit Facility.
Among other things, the Bank Credit Facility contains financial covenants
which require the maintenance of debt service ratios and the hedging of interest
rate risk and limit distributions to shareholders and sales of assets. In
connection with these covenants, the Company has a three year interest rate swap
and a two year interest rate cap agreement with a total underlying notional
amount of $40 million. The swap agreement converted the interest rate on $20
million notional amount of the credit facility from a variable rate based upon a
three month LIBOR (5.55% at December 31, 1996) to a fixed rate of 5.79%. Amounts
paid or received under this agreement are recognized as adjustments to interest
expense. The interest rate cap agreement entitled the Company to receive from a
counterparty on a quarterly basis the amounts, if any, by which the three month
LIBOR rate on its $20 million notional amount exceeds 8.25%. The three month
LIBOR rate has not exceed 8.25% for the duration of the agreement.
There are no future minimum payments based upon the borrowing levels at
December 31, 1996 for the next five years.
Interest paid was $4,691,776, $2,202,345 and $810,303 in 1996, 1995 and
1994, respectively.
31
<PAGE> 34
SYGNET WIRELESS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- CONTINUED
6. LEASES
The Company has entered into various operating leases for land and office
facilities. Leases for tower sites provide for periodic extensions of lease
periods with future lease payments indexed to the consumer price index.
Minimum future rental payments under operating leases having remaining
terms in excess of one year as of December 31, 1996 are as follows:
<TABLE>
<S> <C>
1997.................................... $1,427,610
1998.................................... 1,175,008
1999.................................... 960,784
2000.................................... 793,298
2001.................................... 428,541
Thereafter.............................. 2,719,240
----------
Total................................... $7,504,481
==========
</TABLE>
Rent expense was approximately $906,042, $460,800 and $296,000 in 1996,
1995 and 1994, respectively.
7. RETIREMENT PLAN
The Company sponsors a 401(k) retirement and profit sharing plan which
covers substantially all its employees. Eligible employees can contribute from
1% to 15% of their compensation. The Company, at its discretion, may match a
portion of the employee's contribution. The Company may also, at its discretion,
make additional profit sharing contributions to the plan. Total pension expense
was $181,000, $114,000 and $113,000 in 1996, 1995 and 1994, respectively.
8. REDEEMABLE PREFERRED STOCK AND WARRANTS
On October 9, 1996, the Company issued 200,000 shares of Series A Senior
Cumulative Nonvoting Preferred Stock (Preferred Stock). The Preferred Stock has
a redemption value of $100 per share and is recorded at fair value on the date
of issuance less issuance costs. Dividends are cumulative from the date of
issuance, accrue quarterly in arrears and are payable in shares of Preferred
Stock. The dividend rates increase annually from 15% in the year ending
September 30, 1997; to 17% in the year ending September 30, 1998; to 19% in the
year ending September 30, 1999; and to 21% in the year ending September 30, 2000
and thereafter. As of December 31, 1996, the Company accrued stock dividends in
the amount of $690,411 (which represent 6,904 shares).
Warrants to purchase shares of the Company's Class A Common Stock
representing 1% of the Common Stock outstanding, on a fully diluted basis, will
be issued to holders of the Preferred Stock on July 9, 1997 if the Preferred
Stock is outstanding at that date. At the end of each quarter thereafter for so
long as any of the Preferred Stock remains outstanding, warrants to purchase
shares of Class A Common Stock representing 3/8%, on a fully diluted basis,
will be issued to holders of the Preferred Stock. The exercise price of the
warrants is $.01 per share of Class A Common Stock. On or before October 9, 2000
or one year following the redemption of the Preferred Stock due to a mandatory
redemption event (as defined) the holders of the warrants can offer to sell all
the warrants back to the Company for cash based on the fair market value of the
Class A Common Stock. If the Company elects not to accept such offer, the
holders may sell the warrants to a third-party and the Company must pay the
holders the difference between the fair value of the warrants and the amount
paid by the third-party. For financial reporting purposes, the estimated fair
value of the warrants is included with the Preferred Stock in the accompanying
balance sheet. In determining the fair value of the warrants, management of the
Company has considered the possibility that the warrants may never be issued.
32
<PAGE> 35
SYGNET WIRELESS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- CONTINUED
The excess of the redemption value of the Preferred Stock over the carrying
value is being accreted by periodic charges to additional paid-in capital over
the life of the issue.
The Company is required to redeem the Preferred Stock at its redemption
amount, plus all accrued and unpaid dividends to the date of redemption, upon
the earlier of (i) the tenth anniversary of the issuance of the Preferred Stock,
(ii) a Change in Control (as defined) (iii) an initial public offering, or (iv)
the exercise of the Put Option (defined below).
At any time after the fourth anniversary, holders of the Preferred Stock
have the right to require the Company to repurchase all of the then outstanding
shares of Preferred Stock (the "Put Option") for $100 per share plus accrued
dividends. The Preferred Stock is subject to redemption at the option of the
Company at any time in whole or in part at the redemption price of $100 per
share.
The Company has authorized 5 million shares of Nonvoting Preferred Stock,
par value $.01 per share, of which 500,000 are designated as Series A Senior
Cumulative Nonvoting Preferred Stock.
The Company has also authorized 10 million shares of Voting Preferred
Stock, par value $.01 per share, none of which are issued as of December 31,
1996.
9. SHAREHOLDERS' EQUITY
On August 28, 1996, the Company approved a plan to recapitalize the Company
whereby the SYGNET common stock Type A (205,698 shares) and Type B (1,028,428
shares) were converted into 6,170,630 shares of Sygnet Wireless, Inc. Class B
common stock in a 5 for 1 split, effective on September 20, 1996. These shares
are entitled to ten votes per share.
On January 5, 1995, SYGNET repurchased 8,024 Type A shares for $39.00 per
share and 40,173 Type B shares for $35.00 per share from a shareholder for
approximately $1,719,000. These shares were accounted for at cost and held as
treasury stock until August 28, 1996 when they were retired.
Under the most restrictive of the covenants discussed in Note 5, the
Company could not declare any additional dividends on its common stock at
December 31, 1996.
On December 29, 1994, the Company received a promissory note from an
officer/shareholder for $249,952 for the purchase of common shares from a
shareholder. The interest rate is 8.23% and the note is to be repaid over 7
years.
10. INCOME TAXES
On August 31, 1996, SYGNET and Wilcom terminated their status as Subchapter
S Corporations. As a result of this termination, application of the provisions
of Statement of Financial Accounting Standards No. 109, Accounting for Income
Taxes, requires deferred income taxes to be provided for differences in the
basis for tax purposes and for financial accounting purposes of recorded assets
and liabilities. As a result of the termination of their Subchapter S
Corporation status, SYGNET and Wilcom contributed their undistributed earnings
to additional paid-in capital. At December 31, 1996, the Company has a net
operating loss carryforward of $7.5 million that expires in 2011. For financial
reporting purposes, a valuation allowance of $1,153,500 has been recognized to
offset the net deferred tax assets which primarily relate to the net operating
loss carryforward.
33
<PAGE> 36
SYGNET WIRELESS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- CONTINUED
Amounts for deferred tax assets and liabilities at December 31, 1996 are as
follows:
<TABLE>
<S> <C>
Deferred tax liabilities:
Depreciation........................................................ $ 787,200
Amortization........................................................ 1,271,800
Other
-----------
Total deferred tax liabilities........................................ 2,059,000
Deferred tax assets:
AMT credit carryforward............................................. 63,400
Allowance for doubtful accounts..................................... 397,400
Net operating loss carryforward..................................... 2,550,000
Other............................................................... 201,700
-----------
3,212,500
Valuation allowance................................................... (1,153,500)
-----------
Total deferred tax assets............................................. 2,059,000
-----------
Net deferred tax assets............................................... $ --
===========
</TABLE>
The components of the income tax provision (benefit) in the consolidated
statements of operations for the year ended December 31, 1996 are as follows:
<TABLE>
<CAPTION>
1996
-----------
<S> <C>
Cumulative effect of conversion from S to C corporation status........ $ 745,000
Deferred income tax (benefit)......................................... (1,898,500)
Valuation allowance................................................... 1,153,500
-----------
Total provision for income tax (benefit).............................. $ --
===========
</TABLE>
Income taxes paid were $-0-, $60,514 and $49,000 in 1996, 1995 and 1994,
respectively.
11. STOCK OPTION PLAN
The Company has a stock option plan (Employee Plan) that provides for the
purchase of up to 1,000,000 shares of Class A common stock by employees of the
Company. The Company also has a stock option plan (Non-Employee Director Plan)
that provides for the purchase of up to 250,000 shares of Class A common stock
by Directors of the Company. The Employee and Non-Employee Director Plans will
terminate in 2006 and 2010, respectively or earlier if so determined by the
Board of Directors. Generally, options granted under the Employee Plan become
vested at the rate of 20% a year for 5 years and are exercisable based upon the
specific terms of the grant. During 1996, the Company granted 533,200 ten year
options (16,000 to Directors) with an exercise price of $10.00 per share.
517,200 options are exercisable on January 1, 1997 with the remaining 16,000
shares exercisable on May 13, 1997.
The Company applies APB Opinion 25, Accounting for Stock Issued to
Employees, and related interpretations in accounting for its Plan. Accordingly,
no compensation cost has been recognized for its Plan because the exercise price
of the Company's stock options equals or exceeds the estimated market value of
the underlying stock on the date of grant. The effect of applying the fair value
method of accounting for the Company's stock based awards in accordance with
Statement of Financial Accounting Standards No 123, Accounting for Stock-Based
Compensation, results in net loss and net loss per share that are not materially
different from amounts reported.
34
<PAGE> 37
SYGNET WIRELESS, INC.
SCHEDULE II -- VALUATION AND QUALIFYING ACCOUNTS
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D COL. E
----------- ------------ ------------------------------ ------------- ----------
ADDITIONS
------------------------------
BALANCE AT CHARGED TO BALANCE AT
BEGINNING OF COSTS ACQUISITIONS END OF
DESCRIPTION PERIOD AND EXPENSES (1) DEDUCTIONS(2) PERIOD
----------- ------------ ------------ --------------- ------------- ----------
<S> <C> <C> <C> <C> <C>
Year Ended December 31, 1996:
Deducted from asset account:
Allowance for doubtful
accounts $402,800 $1,158,844 $ 391,098 $(783,494) $1,168,798
Year Ended December 31, 1995:
Deducted from asset account:
Allowance for doubtful
accounts $163,440 $ 413,025 $ 80,203 $(253,868) $ 402,800
Year Ended December 31, 1994:
Deducted from asset account:
Allowance for doubtful
accounts $126,500 $ 164,902 $ -- $(127,962) $ 163,440
<FN>
- ---------------
(1) Represents allowance for doubtful accounts related to accounts receivable
purchased as part of the acquisitions described in Note 2, Notes to
Consolidated Financial Statements.
(2) Represents the write-off of uncollectible accounts.
</TABLE>
35
<PAGE> 38
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF REGISTRANT
MANAGEMENT
<TABLE>
<CAPTION>
NAME AGE OFFICE
---- --- ------
<S> <C> <C>
Warren P. Williamson, III..... 66 Director and Chairman
Albert H. Pharis, Jr.......... 47 Director, President and Chief Executive Officer
Craig T. Sheetz............... 37 Vice President, Chief Financial Officer and
Treasurer
William Zlotnick.............. 41 Vice President and Chief Operating Officer
Gregory T. Pauley............. 34 Vice President and Chief Technical Officer
Joseph D. Williamson, II...... 51 Director
Lowry A. Stewart.............. 42 Director
Raymond S. Tittle, Jr......... 66 Director
Philip N. Winkelstern......... 66 Director
Ralph A. Beard................ 49 Director
L. B. McKelvey................ 51 Director
Gregory L. Ridler............. 50 Director
</TABLE>
WARREN P. WILLIAMSON, III is the founder of the Company and has served as
Chairman and Director since the Company's inception. Prior to founding the
Company, Mr. Williamson held the positions of President and Chief Executive
Officer for WKBN Broadcasting Corporation. He presently serves as Chairman of
WKBN Broadcasting Corporation. In addition to his positions with the Company,
Mr. Williamson serves as Director and as Chairman of the Executive Committee of
the Mahoning National Bank. Mr. Williamson is also Director and Chairman of the
Board of the Youngstown State University Foundation. Finally, he serves as
Director of the Association of Maximum Service Television, Inc., a trade
association representing more than 300 U.S. television stations. Mr. Williamson
is the brother of Joseph D. Williamson, II and uncle of Lowry A. Stewart.
ALBERT H. PHARIS, JR. has served as President, Chief Executive Officer and
Director of the Company since the Company's inception in 1985. He has been
active as a board member of CTIA since 1985 and as a member of the CTIA
Executive Committee since 1989. He has also been Chairman of CTIA's Small
Operators Caucus.
CRAIG T. SHEETZ has served since 1990 as Vice President, Chief Financial
Officer and Treasurer of the Company. Prior to 1990, Mr. Sheetz served as
Assistant Vice President at PNC Bank and Mellon Bank where he specialized in the
media and telecommunications industries and was a relationship manager.
WILLIAM ZLOTNICK is Vice President and Chief Operating Officer of the
Company. He joined the Company in 1996, immediately following the Horizon
Acquisition. Prior to joining the Company, Mr. Zlotnick served as Regional
General Manager for Horizon Cellular Telephone Company in Western Pennsylvania,
a position he held since 1991. From 1986 to 1991, Mr. Zlotnick was Regional
General Manager for McCaw Cellular Communications in Pittsburgh, Pennsylvania.
GREGORY T. PAULEY is Vice President and Chief Technical Officer. Mr. Pauley
joined the Company in 1987. He served as Technical Operations Manager for the
Company from May 1990 until his promotion to Vice President in January 1995.
36
<PAGE> 39
JOSEPH D. WILLIAMSON, II has been a Director of the Company and its
predecessor company since its inception. In 1993, after serving as Executive
Vice President of WKBN Broadcasting Corporation, Mr. Williamson became President
of WKBN Broadcasting Corporation and has continued in that position. Mr.
Williamson is the brother of Warren P. Williamson, III and the uncle of Lowry A.
Stewart.
LOWRY A. STEWART has been a Director of the Company and its predecessor
company since its inception. Since 1993, Mr. Stewart has served as Treasurer and
Director of WKBN Broadcasting Corporation, where he also has been employed as
the Production Manager since 1991. Mr. Stewart is the nephew of Warren P.
Williamson, III and Joseph D. Williamson, II.
RAYMOND S. TITTLE, JR. has been a Director of the Company since 1991. Mr.
Tittle served as President of Northwest Indiana Markets until it was sold in
1993. Mr. Tittle is currently President of Joe Tittle, Inc. and Joe Tittle &
Sons, Inc. which administer real estate and investment assets formerly owned by
Northwest Indiana Markets.
PHILIP N. WINKELSTERN has been a Director since November 1996. Mr.
Winkelstern served as Senior Vice President and Chief Financial Officer of
Commercial Intertech Corporation (CIC), a publicly held manufacturer, prior to
his retirement in August 1995. Mr. Winkelstern also served as a Director of CIC
from July 1975 to August 1995 and is currently a Director of McDonald Steel
Corporation and Mahoning National Bank.
RALPH A. BEARD has been a Director since November 1996. Mr. Beard has
served as legal counsel for the Company since 1987. He is a member of Harrington
& Mitchell, Ltd., and is Chairman of that law firm. Mr. Beard is also general
counsel and a Director of WKBN Broadcasting Corporation.
L. B. MCKELVEY has been a Director since November 1996. Mr. McKelvey is
currently Chairman and President of Smythe, Cramer Co., which is a real estate
brokerage firm founded in 1903. Mr. McKelvey has been with Smythe, Cramer
Co. for 30 years.
GREGORY L. RIDLER has been a Director since November 1996. Mr. Ridler is
the President and CEO of Mahoning National Bank, a position he has held since
1989. He is also a Director of WKBN Broadcasting Corporation.
37
<PAGE> 40
ITEM 11. EXECUTIVE COMPENSATION
The following table presents summary information concerning compensation
received by the Chief Executive Officer and each of the other executive officers
for the years ended December 31, 1996 and 1995.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION> LONG-TERM
COMPENSATION
---------------------
ANNUAL AWARDS
COMPENSATION ---------------------
-------------------- SECURITIES UNDERLYING OTHER
NAME AND PRINCIPAL POSITION YEAR SALARY BONUS OPTIONS COMPENSATION(3)
- ------------------------------ ---- -------- ------- --------------------- ---------------
<S> <C> <C> <C> <C> <C>
Warren P. Williamson, III..... 1996 $256,015(1) 100,000 Shares $ 7,812
Chairman 1995 $223,587(1) $ 7,620
Albert H. Pharis, Jr.......... 1996 $218,158 $50,000 225,000 Shares $ 9,500
President and 1995 $171,900 $50,000 $ 7,620
Chief Executive Officer
Craig T. Sheetz............... 1996 $127,278 $50,000 53,600 Shares $ 9,103
Vice President, Chief 1995 $ 85,885 $25,000 $ 5,790
Financial Officer and
Treasurer
Greg T. Pauley................ 1996 $104,556 60,000 Shares $ 5,468
Vice President and 1995 $ 78,000 $25,000 $ 4,476
Chief Technical Officer
William Zlotnick.............. 1996 $ 27,450(2) 50,000 Shares $ 1,000
Vice President and
Chief Operating Officer
<FN>
- ---------------
(1) Does not include salary and bonus paid by the Company for services rendered
to WKBN Broadcasting Corporation, which amount was reimbursed to the Company
by WKBN Broadcasting Corporation.
(2) Mr. Zlotnick has been employed by the Company since October 9, 1996. His
salary information, as provided, is for the period October 9 through
December 31, 1996.
(3) Represents contributions by the Company to its 401(k) retirement and profit
sharing plan.
</TABLE>
1996 STOCK OPTION PLAN
The Company adopted a 1996 Stock Option Plan (the SOP). Under the SOP,
options to purchase up to an aggregate of 1,000,000 shares of Class A Common
Stock are available for grants to employees of the Company. The SOP provides for
issuance of incentive stock options, intended to qualify under Section 422 of
the Internal Revenue Code of 1986, as amended, and also nonqualified stock
options. The SOP will terminate by its terms in 2006 or earlier if so determined
by the Board of Directors.
The following table presents certain information concerning options to
purchase shares of Class A Common Stock granted in 1996 to the executive
officers of the Company.
38
<PAGE> 41
OPTIONS GRANTED IN LAST FISCAL YEAR
<TABLE>
<CAPTION>
POTENTIAL REALIZABLE VALUE
NUMBER OF % TOTAL AT ASSUMED ANNUAL RATES
SECURITIES OF OPTIONS OF STOCK PRICE APPRECIATION
UNDERLYING GRANTED TO FOR OPTION TERM(3)
OPTIONS EMPLOYEES PER SHARE EXPIRATION -----------------------------
NAME GRANTED(1)(2) IN FISCAL YEAR EXERCISE PRICE DATE 5% 10%
---- ------------- -------------- -------------- ---------- ------------- -------------
<S> <C> <C> <C> <C> <C> <C>
Albert H. Pharis,
Jr.................. 225,000 43.50% $10.00 2006 $1,415,012.91 $3,585,920.54
W. P. Williamson,
III................. 100,000 19.34 10.00 2006 628,894.63 1,593,742.46
Craig T. Sheetz....... 53,600 10.36 10.00 2006 337,087.52 854,245.96
Gregory T. Pauley..... 60,000 11.60 10.00 2006 294,322.69 745,871.47
William Zlotnick...... 50,000 9.67 10.00 2006 314,447.31 796,871.23
All Others............ 28,600 5.53 10.00 2006 179,863.86 455,810.34
-------- -------
Total Options....... 517,200 100.00%
<FN>
- ---------------
(1) Options granted by Sygnet Communications, Inc. in fiscal 1995 were
terminated in conjunction with the Restructuring. All options granted prior
to the Restructuring are not reflected in this table. No options were
exercised in fiscal 1996.
(2) Ten-year options were granted in conjunction with the Restructuring pursuant
to the SOP. All of the options were still outstanding and became exercisable
on January 1, 1997 and remain exercisable in full so long as the holder
remains an employee of the Company. The options further vest at the rate of
20% on each anniversary thereafter, and unvested options terminate if the
holder's employment with the Company terminates.
(3) The amounts shown under these columns are the result of calculations at 5%
and 10% rates as required by the SEC and are not intended to forecast future
appreciation of the stock price of the Class A Common Stock. There is no
established trading market for the Common Stock. The fair market value of
the shares on the date of the grant and at the end of fiscal 1996 is assumed
to be the exercise price under the options.
</TABLE>
BONUS PLAN
The Board of Directors of the Company has instituted a cash bonus program
for executive officers for 1997 that will pay between 25% to 50% of base
salaries if certain targets are met. The percentages set may be higher if the
targets are exceeded. The criteria to be used and the specific targets to be met
by each officer will be set by the Board.
EMPLOYMENT AGREEMENTS
The Company entered into employment agreements effective October 1996 with
Messrs. Pharis and Williamson for an initial term of three years and with
Messrs. Sheetz, Pauley and Zlotnick for an initial term of two years. All
agreements have automatic one-year renewals after the initial terms expire. The
executives will have initial annual base salaries of $240,000, $240,000,
$135,000, $120,000 and $120,000, respectively. Each agreement provides that if
the executive officer is terminated without good cause, as defined therein, or
resigns with good cause, as defined therein, the executive officer will be
entitled to receive when due his or her base salary and benefits for the
remaining term of the agreement.
Each agreement also provides that during the term of the agreement and for
one year thereafter, the executive officer will not, in any state in which the
Company does business or intends to do business, compete with the Company in any
way in the wireless communication business as employee, officer, director,
agent, representative, stockholder, partner, member, or owner. Provided,
however, that ownership of less than 5% of the outstanding stock of any
corporation listed on a national securities exchange and engaged in the wireless
communications business is not deemed a violation of the non-competition
provision.
39
<PAGE> 42
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
The Compensation Committee of the Board of Directors of the Company
determines the compensation of the Company's executive officers. The members of
the Compensation Committee are Gregory L. Ridler, Philip N. Winkelstern, Joseph
D. Williamson, II and Lowry A. Stewart.
In fiscal year 1996, Warren P. Williamson, III, Chairman and a Director of
the Company, served as a Director and a member of the Executive Committee of
Mahoning National Bank, which Committee performs the equivalent functions of a
compensation committee, and Mr. Ridler, President of Mahoning National Bank,
served as a Director and a member of the Compensation Committee of the Company.
Warren P. Williamson, III also served as a Director of WKBN Broadcasting
Corporation (WKBN). Mr. Stewart and Joseph D. Williamson, II, both Directors and
executive officers of WKBN, served as Directors and members of the Compensation
Committee of the Company. The Board of Directors of WKBN performs the equivalent
functions of a compensation committee.
The Company provided cellular telephone service during 1996 for $78,679 to
WKBN Broadcasting Corporation, a company owned by the Williamson family. Warren
P. Williamson, III, a Director and Chairman of the Company, provided consulting
services to WKBN Broadcasting Corporation and was paid $147,526 in 1996 for such
services. In 1996 , the Company purchased advertising services and facilities
from WKBN Broadcasting Corporation for $199,812. Warren P. Williamson, III is
the Chairman of WKBN Broadcasting Corporation. Joseph D. Williamson, II, a
Director of the Company, is the President of WKBN Broadcasting Corporation.
Lowry A. Stewart, a Director of the Company, is the Treasurer and a Director of
WKBN Broadcasting Corporation.
DIRECTOR COMPENSATION
Directors are compensated for their attendance at meetings at a rate of
$500 per Board meeting, $400 per Committee meeting separate from a Board meeting
and $150 per Committee meeting in conjunction with a Board meeting. In addition,
the Company will reimburse Board members for actual travel not to exceed $500
per meeting.
In addition, the Company adopted the 1996 Stock Option Plan for
Non-Employee Directors (the Director Plan). Under the Director Plan, options to
purchase up to an aggregate of 250,000 shares of Class A Common Stock are
available for grants to non-employee directors of the Company. All options
granted under the Director Plan will be nonqualified stock options. Options to
purchase 4,000 shares are granted to each non-employee director upon election to
the Board of Directors of the Company and vest and are exercisable six months
from the date of grant. Further, following each annual shareholders' meeting of
the Company, each non-employee director is granted an option to acquire 2,000
shares, half of which are exercisable six months after the date grant and the
balance one year after the date of grant. The options expire ten years from the
date of grant. The Director Plan will terminate by its terms in 2010.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information regarding beneficial
ownership of the Company's Class A and Class B Common Stock as of February 11,
1997 by (i) each director of the Company, (ii) each
40
<PAGE> 43
named executive officer of the Company, (iii) all officers and directors as a
group and (iv) each person known to the Company to beneficially own 5% or more
of any class of the Company's securities.
<TABLE>
<CAPTION>
NUMBER OF SHARES
NAME OF BENEFICIAL OWNER BENEFICIALLY OWNED(1) % SHARES BENEFICIALLY OWNED
- ------------------------------------ ------------------------------ ------------------------------
DIRECTORS AND NAMED EXECUTIVE CLASS A CLASS B CLASS A CLASS B
OFFICERS COMMON STOCK(2) COMMON STOCK COMMON STOCK(3) COMMON STOCK
- ------------------------------------ --------------- ------------ --------------- ------------
<S> <C> <C> <C> <C>
J.D. Williamson, II................. -- 1,867,150 30.26
Warren P. Williamson, III........... 100,000 1,487,215(4) 19.24 24.10
Lowry A. Stewart.................... -- 337,720(5) 5.47
Raymond Tittle, Jr.................. -- 329,835 5.35
Albert H. Pharis, Jr................ 225,000 40,275 43.28 0.65
Craig T. Sheetz..................... 53,600 -- 10.31
William Zlotnick.................... 50,000 -- 9.62
Gregory T. Pauley................... 60,000 -- 11.54
All directors and officers as a
group (8 persons)................. 4,062,195(6) 65.83
Others.............................. 28,600 -- 5.50 --
OTHER 5% OWNERS
Mahoning National Bank
of Youngstown..................... -- 652,135(7) 10.57
P.O. Box 479
Trust Department
Youngstown, OH 44501
Martha J. Stewart................... -- 408,400(8) 6.62
15 Mill Trace Road
Youngstown, Ohio 44511
<FN>
- ---------------
(1) As used in this table, "beneficial ownership" means the sole or shared power
to vote or direct the voting or to dispose or direct the disposition of any
security. At February 11, 1997 the Company's total issued and outstanding
stock was 6,170,630 shares, 2,653 of which were Class A and 6,167,977 were
Class B. Class B Common Stock is automatically converted to Class A Common
Stock upon transfer. Class A Common Stock is entitled to one vote per share
and Class B Common Stock is entitled to ten votes per share.
(2) Consists of shares of Class A Common Stock underlying currently exercisable
employee stock options granted under the SOP.
(3) For purposes of determining the percentage ownership, outstanding shares of
Class A Common Stock include 2,653 shares outstanding and 517,200 shares
underlying currently exercisable stock options.
(4) Includes 10,410 shares of Class B Common Stock with respect to which Warren
P. Williamson, III shares voting and investment power with his spouse, Carol
Williamson.
(5) Includes 5,645 shares of Class B Common Stock held by Lowry A. Stewart as
custodian for his daughter Kathryn A. Stewart.
(6) May include stock jointly or separately owned with or by a spouse.
(7) Represents Class B Common Stock beneficially owned by Mahoning National Bank
of Youngstown as trustee under certain Williamson family trusts.
(8) Includes 13,430 shares of Class B Common Stock held by Martha J. Stewart as
successor trustee for her niece Kathryn A. Stewart; 13,430 shares of Class B
Common Stock held by Martha J. Stewart as successor trustee for her niece
Cristina Marie Sparks-Stewart; and 12,850 shares of Class B Common Stock
held by Martha J. Stewart as successor trustee for her nephew David E.
Stewart. Ms. Stewart disclaims beneficial ownership of these shares.
</TABLE>
41
<PAGE> 44
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
On December 29, 1994, the Company loaned $249,952 to Albert H. Pharis, Jr.,
the President, Chief Executive Officer and a Director of the Company to permit
Mr. Pharis to purchase stock of the Company from another shareholder. The
interest rate on the loan is 8.23% per year and the loan is to be repaid over
seven years.
During fiscal year 1996, the Company paid Harrington & Mitchell, Ltd. fees
of $167,956 for certain legal services, and the Company expects to retain that
firm to provide legal services in fiscal year 1997. Ralph A. Beard, a Director
of the Company, is a member of Harrington & Mitchell, Ltd.
See Item 11, "Executive Compensation -- Compensation Committee Interlocks
and Insider Participation."
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a)(1) The following financial statements of Sygnet Wireless, Inc. are included
in Item 8:
Consolidated Balance Sheets as of December 31, 1996 and 1995.
Consolidated Statements of Operations for the years ended December 31,
1996, 1995, and 1994.
Consolidated Statements of Shareholders' Equity (Deficit) for the years
ended December 31, 1996, 1995 and 1994.
Consolidated Statements of Cash Flows for the years ended December 31,
1996, 1995, and 1994.
Notes to Consolidated Financial Statements -- December 31, 1996.
(2) The following consolidated financial statement schedule of Sygnet
Wireless, Inc. is included in Item 8:
Schedule II-Valuation and Qualifying Accounts.
All other schedules for which provision is made in the applicable accounting
regulations of the Securities and Exchange Commission are not required under the
related instructions or are inapplicable, and therefore, have been omitted.
(3) Exhibits.
2.1 Certificate of Merger dated August 26, 1996, including the
Amended and Restated Agreement and Plan of Merger dated
August 19, 1996.*[2.1]
2.2 Amended and Restated Agreement and Plan of Transfer of Assets
dated August 28, 1996.*[2.2]
2.3 Agreement and Plan of Recapitalization of Sygnet Wireless, Inc.
dated August 28, 1996.*[2.3]
3.1 Amended and Restated Articles of Incorporation of Sygnet
Wireless, Inc.**[3.1]
3.2 Code of Regulations of Sygnet Wireless, Inc.**[3.2]
4.1 Indenture dated as of September 26, 1996 between Sygnet
Wireless, Inc. and Fleet National Bank, as Trustee **[4]
10.1 Employment Agreement dated August 26, 1996 between the
Registrant and Albert H. Pharis, Jr.#*[10.1]
10.2 Employment Agreement dated August 26, 1996 between the
Registrant and Warren P. Williamson, III.#*[10.2]
10.3 Employment Agreement dated August 26, 1996 between the
Registrant and Craig T. Sheetz.#*[10.3]
42
<PAGE> 45
10.4 Employment Agreement dated August 26, 1996 between the
Registrant and Gregory T. Pauley.#*[10.4]
10.5 Employment Agreement dated August 26, 1996 between the
Registrant and William Zlotnick.#
10.6 Sygnet Wireless, Inc. 1996 Stock Option Plan (including form of
Stock Option Agreement).#*[10.5]
10.7 Sygnet Wireless, Inc. 1996 Stock Option Plan for Non-Employee
Directors. #**[10]
10.8 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. *[10.6]
10.9 Ground Lease Agreement dated December 15, 1987 between WKBN
Broadcasting Corporation. and Youngstown Cellular Telephone
Company.*[10.11]
10.10 DMS-MTX Cellular Supply Agreement dated June 1, 1996 between
Youngstown Cellular Telephone Company and Northern Telecom, Inc.
*[10.12]
10.11 Intercarrier Services Agreement dated April 25, 1995 between
Youngstown Cellular Telephone Company and EDS Personal
Communications Corporation.*[10.13]
10.12 Software License Agreement dated April 20, 1995 between
Youngstown Cellular Telephone Company and International
Telecommunication Data Systems, Inc.*[10.14]
10.13 License Agreement between JSJ Software, Inc. and Youngstown
Cellular Telephone Company.*[10.15]
10.14 Product Service Agreement dated February 1, 1995 between
Glenayre Care and Wilcom Cellular.*[10.16]
10.15 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.*[10.17]
10.16 Agreement for Purchase of Partnership Interest dated September
15, 1995 between SYGNET Communications, Inc. and Erie Cellular
Systems, Inc.*[10.18]
10.17 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.*[10.19]
10.18 Credit Agreement dated October 9, 1996 among the Registrant and
The Toronto-Dominion Bank and PNC Bank, National Association.
10.19 Promissory Note dated December 29, 1994 executed and delivered
by Albert H. Pharis, Jr. in favor of the Registrant.*[10.22]
10.20 Cellular One License Agreement dated February 28, 1992 between
Cellular One Group and Erie Cellular Telephone Company.*[10.23]
21.1 Subsidiary of Sygnet Wireless, Inc.*[21.1]
24.1 Powers of Attorney (included on the signature page to the Annual
Report).
27.1 Financial Data Schedule.
- ---------------
# Denotes officer/director compensation plan or arrangement.
* Filed as an exhibit to the Company's Registration Statement on Form S-1
(Registration No. 333-10161), as the exhibit number indicated in brackets and
incorporated by reference herein.
** Filed as an exhibit to the Company's Quarterly Report on Form 10-Q for the
quarterly period ended September 30, 1996, as the exhibit number indicated in
brackets and incorporated by reference herein.
43
<PAGE> 46
(b) The Company filed a Current Report on Form 8-K during the quarter ended
December 31, 1996, which reported the acquisition of the Horizon Systems under
"Item 2. Acquisition of Assets" and included certain financial information under
"Item 7. Financial Statements and Exhibits". Financial Statements required to be
filed with the report were incorporated by reference to the Company's
Registration Statement on Form S-1 (Registration No. 333-10161) filed with the
Securities and Exchange Commission on September 17, 1996. The date of the report
was October 9, 1996.
44
<PAGE> 47
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
SYGNET WIRELESS, INC.
By: /s/ WARREN P. WILLIAMSON, III
------------------------------------
Warren P. Williamson, III
Director and Chairman
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Warren P. Williamson, III, Albert H.
Pharis, Jr., and Craig T. Sheetz, and each of them, as true and lawful
attorneys-in-fact and agents, with full power of substitution and resubstitution
for him or her and in his or her name, place, stead, in any and all capacities,
to sign any and all amendments to this Annual Report, and to file the same, with
all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he or she might or could
do in person, hereby ratifying and confirming all which said attorneys-in-fact
and agents or any of them, or their or his substitute or substitutes, lawfully
do, or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ WARREN P. WILLIAMSON, III Director and Chairman February 19, 1997
- ---------------------------------------
Warren P. Williamson, III
/s/ ALBERT H. PHARIS, JR. Director, President and Chief Executive February 19, 1997
- --------------------------------------- Officer
Albert H. Pharis, Jr.
/s/ CRAIG T. SHEETZ Vice President, Chief Financial Officer, February 19, 1997
- --------------------------------------- Treasurer
Craig T. Sheetz
/s/ WILLIAM ZLOTNICK Vice President, Chief Operating Officer February 19, 1997
- ---------------------------------------
William Zlotnick
/s/ GREGORY T. PAULEY Vice President, Chief Technical Officer February 19, 1997
- ---------------------------------------
Gregory T. Pauley
/s/ JOSEPH D. WILLIAMSON, II Director February 19, 1997
- ---------------------------------------
Joseph D. Williamson, II
/s/ LOWRY A. STEWART Director February 19, 1997
- ---------------------------------------
Lowry A. Stewart
/s/ RAYMOND S. TITTLE, JR. Director February 19, 1997
- ---------------------------------------
Raymond S. Tittle, Jr.
/s/ PHILIP N. WINKELSTERN Director February 19, 1997
- ---------------------------------------
Philip N. Winkelstern
/s/ RALPH A. BEARD Director February 19, 1997
- ---------------------------------------
Ralph A. Beard
</TABLE>
45
<PAGE> 48
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ L. B. MCKELVEY Director February 19, 1997
- ---------------------------------------
L. B. McKelvey
/s/ GREGORY L. RIDLER Director February 19, 1997
- ---------------------------------------
Gregory L. Ridler
</TABLE>
SUPPLEMENTAL INFORMATION TO BE FURNISHED WITH REPORTS FILED PURSUANT TO
SECTION 15(d) OF THE ACT BY REGISTRANTS WHICH HAVE NOT REGISTERED SECURITIES
PURSUANT TO SECTION 12 OF THE ACT.
The Company furnished proxy material to its shareholders in connection with
a special meeting of shareholders held on November 13, 1996. This proxy material
is being furnished to the Commission for its information concurrent with this
filing.
The Company has not sent an annual report to security holders covering its
last fiscal year, nor has the Company sent a proxy statement, form of proxy or
other proxy soliciting material to its security holders with respect to any
annual meeting of security holders. The Company intends to furnish such report
and proxy material to security holders subsequent to this filing.
46
<PAGE> 49
EXHIBIT INDEX
2.1 Certificate of Merger dated August 26, 1996, including the
Amended and Restated Agreement and Plan of Merger dated
August 19, 1996.*[2.1]
2.2 Amended and Restated Agreement and Plan of Transfer of Assets
dated August 28, 1996.*[2.2]
2.3 Agreement and Plan of Recapitalization of Sygnet Wireless, Inc.
dated August 28, 1996.*[2.3]
3.1 Amended and Restated Articles of Incorporation of Sygnet
Wireless, Inc.**[3.1]
3.2 Code of Regulations of Sygnet Wireless, Inc.**[3.2]
4.1 Indenture dated as of September 26, 1996 between Sygnet
Wireless, Inc. and Fleet National Bank, as Trustee **[4]
10.1 Employment Agreement dated August 26, 1996 between the
Registrant and Albert H. Pharis, Jr.#*[10.1]
10.2 Employment Agreement dated August 26, 1996 between the
Registrant and Warren P. Williamson, III.#*[10.2]
10.3 Employment Agreement dated August 26, 1996 between the
Registrant and Craig T. Sheetz.#*[10.3]
10.4 Employment Agreement dated August 26, 1996 between the
Registrant and Gregory T. Pauley.#*[10.4]
10.5 Employment Agreement dated August 26, 1996 between the
Registrant and William Zlotnick.#
10.6 Sygnet Wireless, Inc. 1996 Stock Option Plan (including form of
Stock Option Agreement).#*[10.5]
10.7 Sygnet Wireless, Inc. 1996 Stock Option Plan for Non-Employee
Directors. #**[10]
10.8 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. *[10.6]
10.9 Ground Lease Agreement dated December 15, 1987 between WKBN
Broadcasting Corporation. and Youngstown Cellular Telephone
Company.*[10.11]
10.10 DMS-MTX Cellular Supply Agreement dated June 1, 1996 between
Youngstown Cellular Telephone Company and Northern Telecom, Inc.
*[10.12]
<PAGE> 50
10.11 Intercarrier Services Agreement dated April 25, 1995 between
Youngstown Cellular Telephone Company and EDS Personal
Communications Corporation.*[10.13]
10.12 Software License Agreement dated April 20, 1995 between
Youngstown Cellular Telephone Company and International
Telecommunication Data Systems, Inc.*[10.14]
10.13 License Agreement between JSJ Software, Inc. and Youngstown
Cellular Telephone Company.*[10.15]
10.14 Product Service Agreement dated February 1, 1995 between
Glenayre Care and Wilcom Cellular.*[10.16]
10.15 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.*[10.17]
10.16 Agreement for Purchase of Partnership Interest dated September
15, 1995 between SYGNET Communications, Inc. and Erie Cellular
Systems, Inc.*[10.18]
10.17 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.*[10.19]
10.18 Credit Agreement dated October 9, 1996 among the Registrant and
The Toronto-Dominion Bank and PNC Bank, National Association.
[10.20]
10.19 Promissory Note dated December 29, 1994 executed and delivered
by Albert H. Pharis, Jr. in favor of the Registrant.*[10.22]
10.20 Cellular One License Agreement dated February 28, 1992 between
Cellular One Group and Erie Cellular Telephone Company.*[10.23]
21.1 Subsidiary of Sygnet Wireless, Inc.*[21.1]
24.1 Powers of Attorney (included on the signature page to the Annual
Report).
27.1 Financial Data Schedule.
- ---------------
# Denotes officer/director compensation plan or arrangement.
* Filed as an exhibit to the Company's Registration Statement on Form S-1
(Registration No. 333-10161), as the exhibit number indicated in brackets and
incorporated by reference herein.
** Filed as an exhibit to the Company's Quarterly Report on Form 10-Q for the
quarterly period ended September 30, 1996, as the exhibit number indicated in
brackets and incorporated by reference herein.
<PAGE> 1
EXHIBIT 10.5
CONDITIONAL EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into as of this 26th day of August 1996, between
Sygnet Communications, Inc., an Ohio corporation (the "Company") and William
Zlotnick ("Executive").
R E C I T A L S :
A. Executive is currently employed by Horizon Cellular.
B. The Company expects to close about September 30, 1996 on an agreement to
purchase certain cellular telephone business assets, including various FCC
non-wireline cellular telephone licenses for RSAs in Pennsylvania and New York
("Horizon Purchase").
C. The Company has filed a Registration Statement with the SEC, whereby the
Company will seek to finance in part the Horizon Purchase through issuing
securities to the public, including approximately $110 million in high yield
debt, and $35 million in equity (the "IPO").
D. The Company wishes to employ Executive as Vice President and Chief
Operating Officer after the Horizon Purchase.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
contained herein, it is hereby agreed by and between the parties as follows:
1. DEFINITIONS. The following words and terms shall have the following meanings
unless the context otherwise indicates:
o "CAUSE" means any act or omission that is materially injurious to the
Employer and that constitutes on the part of Executive (i) common law
fraud, (ii) a felony, (iii) dishonesty, or (iv) continuing neglect
(other than as a result of permanent disability, as defined in Section
4.1 hereof) by Executive in connection with the performance of his
duties hereunder; provided that there shall be no "Cause" based upon
Executive's neglect until (a) Employer shall have given written notice
to Executive setting forth in reasonable detail the facts and
circumstances claimed to provide a basis for asserting the existence
of "Cause" and (b) Executive shall not have remedied the situation
giving rise to such facts and circumstances within twenty (20) days
after receipt of the foregoing notice or taking all reasonable steps
to that end during such 20-day period and thereafter.
o "EFFECTIVE DATE" means the earlier of the date the IPO is consummated
or the closing date of the Horizon Purchase.
o "EMPLOYER" has the meaning assigned thereto in Section 2.1(a) below.
o "TERM OF EMPLOYMENT" means the period commencing on the Effective Date
and expiring on
<PAGE> 2
the earliest to occur of (i) the later of the second anniversary of
the Effective Date or, if applicable, the expiration of the final
renewal period under Section 2.2 of this Agreement, and (ii) the date
at which the Executive ceases for any reason to be an employee and is
entitled to the benefits, if any, provided in Section 4 below.
2. EMPLOYMENT.
2.1 POSITION AND DUTIES. Through the Term of Employment, Executive shall be
employed as Vice President and Chief Operating Officer of the Company and: (a)
Executive shall devote his full business time and efforts to the business and
affairs of the Company or the successor to the Company by which Executive has
been employed pursuant to this Agreement and its parent, Sygnet Wireless, Inc.
(the Company, the parent, and/or such successor, as the case may be, being
herein sometimes referred to as the "Employer"), except for reasonable vacations
and for illness; provided, however, this provision shall not preclude Executive
from serving as a director or member of a board or committee of any other
corporation or other organization involving no conflict of interests with the
interests of Employer, or from managing his personal investments, so long as
such activities do not materially interfere with the regular performance of his
duties under this Agreement.
2.2 RENEWAL. This Agreement may be renewed for additional periods, as
mutually agreed by the Company and Executive, at a rate of compensation to be
agreed upon by Executive and the Company. Unless one party submits to the other
a notice that it does not wish to renew this Agreement (a "Non Renewal Notice")
at least ninety (90) days prior to the end of the then current Term, the parties
shall begin discussions regarding Executive's compensation for the applicable
renewal period. In the event the parties have not completed such discussions at
the end of the then current Term of this Agreement, and the parties desire to
continue good faith discussions of Executive's compensation, then the Term of
this Agreement shall be extended until the expiration of thirty (30) days after
one party submits a Non Renewal Notice to the other and, during such extended
Term, Executive agrees to continue his employment with the Company and the
Company agrees to continue paying and providing benefits to Executive at the
then current rates under this Agreement. In the event that the Company, at any
time, submits a Non Renewal Notice to Executive, the Company agrees to retain
Executive as a consultant to the Company for a period of one (1) year following
the expiration of the then current Term of this Agreement and Executive shall be
compensated for such consulting as provided in Section 4.4 hereof.
3. COMPENSATION.
3.1 COMPENSATION DURING TERM. Executive shall be entitled to the following
compensation for services as an employee or consultant hereunder:
(a) Initial base compensation of $120,000.00 per year, payable in
convenient installments not less frequently than monthly.
(b) Continuing participation in all other employee benefit plans and
practices of the Company in effect as of the Effective Date, as the
same may be modified, supplemented or replaced, as well as to
reimbursement, upon proper accounting, of reasonable expenses and
disbursements incurred by Executive in the course of Executive's
duties; and
(c) Participation in the Company's Executive Bonus Plan and Stock Option
Plan.
Nothing contained in the foregoing shall preclude improvement of
compensation, reward opportunities or benefits available to Executive.
<PAGE> 3
3.2 INDEMNIFICATION AND INSURANCE. Executive shall be entitled to all
applicable indemnification and director's and officer's liability insurance
provided by Employer to its directors and officers.
4. TERMINATION.
4.1 UPON DEATH OR DISABILITY. Except for the obligations of the Company set
forth in this Section 4.1, this Agreement shall automatically terminate upon
Executive's death or permanent disability, as defined in the Company's long-term
disability program. In the event of such termination, the Employer shall
promptly pay to Executive's estate all benefits and compensation accrued
hereunder through the end of the month in which occurred Executive's death or
permanent disability, as the case may be.
4.2 FOR CAUSE. Employer may not terminate Executive's employment hereunder
except for Cause. If Executive's employment is terminated for Cause, Employer
shall promptly pay Executive his full accrued Base Compensation, and all other
vested benefits, through the date of such termination at the rate in effect at
the time of such Termination, and Employer shall have no further obligations to
Executive under this Agreement. Notwithstanding the foregoing, termination for
Cause under this Section 4.2 shall not relieve Executive of his obligations
under Section 5 below.
4.3 CONSTRUCTIVE TERMINATION. Executive may, by written notice to the
Company, convert his status from that of an employee to that of a consultant to
the Company within sixty (60) days after the occurrence, without the express
written consent of Executive, of any of the following:
(a) the assignment to Executive of duties not materially comparable to
Executive's duties provided for herein.
(b) any failure by Employer to comply with any of the provisions of
Sections 2 or 3 above, other than an immaterial or inadvertent failure
remedied by Employer promptly after receipt of notice thereof given by
Executive.
As a result of Executive's conversion of his status from that of an
employee to that of a consultant under this Section 4.3, for a period of one (1)
year after the date of such conversion (i) Employer shall continue to make all
payments required to be made by it under Section 3 of this Agreement, and (ii)
Executive shall continue to be treated as an employee under the provisions of
the benefit plans, programs and practices referred to in Section 3.1 above;
provided that, if despite the foregoing, benefits under any such plan, program
or practice may not be provided thereunder to Executive because he is no longer
an employee, Employer shall provide, pay or provide for payment of such benefits
to Executive.
4.4 TERMINATION WITHOUT CAUSE.In the event of termination of employment
hereunder by Employer without Cause, Executive's status shall automatically
convert to that of a consultant to the Company and for a period of one (1) year
thereafter (i) Employer shall continue to make all payments required to be made
by it under Section 3 of this Agreement, and (ii) Executive shall continue to be
treated as an employee under the provisions of the benefit plans, programs and
practices referred to in Section 3.1 above; provided that, if despite the
foregoing, benefits under any such plan, program or practice may not be provided
thereunder to Executive because he is no longer an employee, Employer shall
provide, pay or provide for payment of such benefits to Executive.
4.5 TERMINATION BY EXECUTIVE. In the event of termination of employment
hereunder by Executive other than pursuant to Section 4.3 above, Employer shall
pay to Executive all benefits and compensation accrued hereunder through the
date of termination, and Employer shall have no further obligations to Executive
under this Agreement.
<PAGE> 4
5. CONFIDENTIALITY AND NON-COMPETE.
5.1 NONDISCLOSURE AND INDEMNIFICATION. Executive acknowledges that the
Company's Proprietary Information (as defined below), which was designed and
developed by the Company with considerable effort and at great expense, is
unique, secret and confidential, and constitutes the exclusive property and
trade secrets of the Company. Executive further acknowledges that an integral
part of the Company's business involves the receipt of confidential Customer
Information (as defined below). Executive further acknowledges that any
unauthorized use of the Proprietary Information or the Customer Information by
Executive, or any disclosure of the same to any third parties, would be wrongful
and would cause irreparable injury to the Company, its customers and customer's
employees and/or clients.
Accordingly, Executive covenants and agrees that, for the period of
his employment and thereafter, he will (i) hold the Proprietary Information and
the Customer Information in strictest confidence, (ii) not disclose such
information to any person, firm, corporation or other entity, and (iii) not use
such information for any purpose not expressly authorized by the Company.
Executive also agrees that upon request he shall return all business records in
his possession or control in any way relating to the Company, its Proprietary
Information, or the Customer Information. Executive agrees to indemnify and hold
the Company harmless from any loss, claims or damages, including attorneys' fees
and costs, arising out of or relating to the unauthorized disclosure or use of
the Company's Proprietary Information or the Customer Information by Executive.
For the purposes of this Agreement, the term "Customer Information"
shall mean, whether verbal or written, (i) the identity of any employee or other
individual for whom claims, payroll, enrollment or similar data or other
information are or have been submitted by or on behalf of the Customer to the
Company; (ii) confidential information regarding the business of the Customer or
its clients learned in the course of providing service and/or products to the
Customer; (iii) other confidential information submitted from time to time by
the Customer to the Company; and (iv) the identity of the Customer or its
clients as the source of such data or information.
For the purposes of this Agreement, the term "Proprietary Information"
shall mean, whether verbal or written, all customer lists, prospective customer
lists, trade secrets, databases, processes, computer programs, object codes,
course codes, passwords, entry codes, inventions, improvements, manufacturing or
systems techniques formulas, development or experimental work, work in process,
business data disclosed to the Company by or for the benefit of the Company's
customers, information relating to the Company's business contracts (including,
without limitation, contracts with customers, service providers, medical
insurers and claims administrators), marketing strategies, any other secret or
confidential matter relating or pertaining to the products, services, sales or
other business of the Company, and shall include Customer Information that was
developed or enhanced by the Company including data furnished by or on behalf of
the Customer.
Neither Proprietary Information nor Customer Information shall include
information which (a) is or becomes generally available to the public other than
as a result of Executive's disclosure, or (b) becomes available to Executive on
a non-confidential basis from a source other than the Company or the Customer.
Notwithstanding the foregoing, such information shall carry the presumption that
it is either Proprietary Information or Customer Information and Executive shall
treat such information as confidential.
5.2 AGREEMENT NOT TO COMPETE. Executive agrees that during the period the
Company is making payments under Sections 3.1, 4.3 or 4.4 of this Agreement and
for a period of one (1) year thereafter, Executive shall not, directly or
indirectly, individually or on behalf of any other person or entity, engage in
any activities that are competitive with the business of the Company in any
state in which the Company does business or was considering doing business while
Executive was employed as an employee or as a consultant. Specifically,
Executive agrees that Executive shall not:
<PAGE> 5
(a) call upon, solicit, sell or attempt to sell any products or services
similar to or in competition with those offered by the Company to any
person or entity that was a customer of the Company at any time during
Executive's employment with the Company or was actively solicited by
the Company during the six (6) month period preceding the termination
of Executive's employment with the Company;
(b) engage in any business (or provide any managerial, sales or other
employment or contract services to a business or activity which is
similar to the services performed by Executive for the Company) that
is in competition with the business of the Company or any state the
Company does business or is considering doing business; or
(c) encourage, solicit or otherwise attempt to persuade any employee of
the Company to violate any confidentiality, non-competition or
employment agreements with the Company, or policies of the Company.
Executive agrees that the restrictions contained in this Section 5.2
are reasonable in all respects and are to be interpreted in light of all the
facts and circumstances existing at the time enforcement is sought. However,
should any court or other body of competent jurisdiction determine that all or
any portion of the agreements set forth herein is invalid or unenforceable for
any reason, such agreement (or portion thereof) shall be restricted and deemed
amended to the minimum extent necessary so as to preserve and establish its
validity and enforceability.
5.3 In the event of a breach of this Section 5 by Executive, in addition to
obtaining an injunction, the Company shall be entitled to terminate any further
payment of benefits to Executive and the Company shall be relieved of all future
obligations to Executive under this Agreement.
5.4 In the event the Company fails to make any payment required of it under
this Agreement or breaches any stock option agreement or benefit plan relating
to Executive, Executive shall be relieved of all further obligations under
Section 5.2 of this Agreement.
6. CONDITION PRECEDENT. This Agreement and the attached Stock Option Agreement,
are subject to the condition of either the consummation of the IPO or the
closing of the Horizon Purchase before December 31, 1996. If neither the IPO is
consummated nor the Horizon purchase has closed by December 31, 1996, then this
Agreement and the Stock Option Agreement are both void.
7. MISCELLANEOUS PROVISIONS.
7.1 WITHHOLDING. Notwithstanding anything to the contrary contained in this
Agreement, all payments required to be made by Employer hereunder to Executive
or his estate or beneficiaries shall be subject to the withholding of such
amounts, if any, relating to tax and other payroll deductions as Employer may
reasonably determine it is required to withhold pursuant to any applicable law,
regulation or benefit plan.
7.2 ENTIRE AGREEMENT; CAPTIONS. This Agreement contains the entire
understanding of the parties hereto with respect to the subject matter hereof
and supersedes all earlier agreements, whether oral or written, between
Executive and the Company without extinguishing or diminishing any rights
heretofore acquired by the Company under such agreements. The captions and
section headings of this Agreement are solely for convenience of reference and
shall not affect the interpretation of any provision hereof.
<PAGE> 6
7.3 NOTICES. Any notices, requests, demands and other communications
provided for by this Agreement shall be sufficient if in writing and if sent by
registered or certified mail or by overnight delivery service to Executive at
his last address he has filed in writing with Employer or, in the case of
Employer, at its principal executive offices.
7.4 NON-ALIENATION. Executive shall not have any right to pledge,
hypothecate, anticipate or in any way create a lien or security interest upon
any amounts provided under this Agreement; and no benefits payable hereunder
shall be assignable in anticipation of payment either by voluntary or
involuntary acts, or by operation of law, except by will or the laws of descent
and distribution.
7.5 GOVERNING LAW. The provisions of this Agreement shall be construed in
accordance with the laws of the State of Ohio.
7.6 AMENDMENT. This Agreement may be amended or cancelled only by mutual
agreement of the parties, or their respective successors, in writing.
7.7 SUCCESSOR TO THE COMPANY. Except as otherwise provided herein, this
Agreement shall be binding upon and inure to the benefit of the Company and any
successor of the Company.
7.8 SEVERABILITY. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, the
remaining provisions of this Agreement shall be unaffected thereby and shall
remain in full force and effect in such jurisdiction, and any such invalid or
unenforceable provision shall not be considered invalid or unenforceable in any
other jurisdiction.
IN WITNESS WHEREOF, the parties have hereunto executed this Agreement on
the date and year first above written.
COMPANY: Sygnet Communications, Inc.
By: /s/ ALBERT H. PHARIS, JR.
-------------------------------
Title: President
----------------------------
EXECUTIVE
/s/ WILLIAM ZLOTNICK
----------------------------------
William Zlotnick
<PAGE> 1
EXHIBIT 10.18
================================================================================
CREDIT AGREEMENT
Among
SYGNET COMMUNICATIONS, INC.
as the Borrower,
the Lenders Which are Parties Hereto,
TORONTO DOMINION (TEXAS), INC.
as the Administrative Agent,
and
PNC BANK, NATIONAL ASSOCIATION
as the Documentation Agent and as the Collateral Agent
Dated as of October 9, 1996
================================================================================
<PAGE> 2
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
PAGE
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<S> <C>
EXHIBITS .................................................................. v
SCHEDULES.................................................................. vi
ARTICLE 1. DEFINITIONS.................................................... 1
1.1 Defined Terms............................................. 1
1.2 Accounting Terms.......................................... 21
1.3 Rules of Construction..................................... 21
ARTICLE 2. THE REVOLVING CREDIT FACILITY.................................. 22
2.1 Revolving Credit Commitment............................... 22
2.2 Interest.................................................. 25
2.3 Capital Adequacy.......................................... 30
2.4 Requests for Loans, Interest Rate Options and Conversions. 30
2.5 Method of Disbursements and Payments...................... 31
2.6 Loan Accounts............................................. 31
2.7 Fees...................................................... 31
2.8 Payment From Accounts Maintained by Borrower.............. 32
ARTICLE 3. SET-OFF, SECURITY INTERESTS AND GUARANTY....................... 32
3.1 Set-Off................................................... 32
3.2 Personal and Real Property................................ 32
3.3 Pledge of Borrower's and Subsidiaries Stock............... 33
ARTICLE 4. REPRESENTATIONS AND WARRANTIES................................. 33
4.1 Existence and Organization................................ 33
4.2 Capitalization; Ownership; Title to Shares................ 34
4.3 Subsidiaries and Other Investments........................ 34
4.4 Power and Authority....................................... 34
4.5 Validity and Binding Effect............................... 34
4.6 No Conflict............................................... 34
4.7 Business.................................................. 35
4.8 Cellular Systems; Governmental Approvals.................. 35
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
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<S> <C>
4.9 Financial Matters......................................... 36
4.10 Material Adverse Change................................... 37
4.11 Litigation................................................ 37
4.12 Compliance with Laws...................................... 37
4.13 Material Contracts........................................ 37
4.14 Labor Matters; Payment of Wages........................... 38
4.15 Fiscal Year............................................... 38
4.16 Condition of and Title to Assets.......................... 38
4.17 Tax Returns and Payments.................................. 39
4.18 Intellectual Property..................................... 39
4.19 Insurance................................................. 39
4.20 Consents and Approvals.................................... 40
4.21 No Defaults or Material Adverse Changes................... 40
4.22 Horizon Acquisition....................................... 40
4.23 Structurally Subordinated Indebtedness.................... 40
4.24 Priority.................................................. 40
4.25 Solvency.................................................. 41
4.26 Plans and Benefit Arrangements............................ 41
4.27 Environmental Matters..................................... 43
4.28 Margin Stock.............................................. 44
4.29 Investment Company Act.................................... 44
4.30 Public Utility Holding Company Act........................ 45
4.31 Full Disclosure........................................... 45
ARTICLE 5. AFFIRMATIVE COVENANTS.......................................... 45
5.1 Use of Proceeds........................................... 45
5.2 Delivery of Financial Statements and Other Information.... 46
5.3 Preservation of Existence; Qualification.................. 50
5.4 Compliance with Laws, Contracts and Licenses.............. 50
5.5 Continuance of Business................................... 50
5.6 Accounting System; Books and Records...................... 50
5.7 Payment of Taxes and Other Liabilities.................... 51
5.8 Insurance................................................. 51
5.9 Interest Hedge Agreements. .............................. 52
5.10 Maintenance of Properties................................. 53
5.11 Maintenance of Leases..................................... 53
5.12 Maintenance of Patents, Trademarks, Permits, Etc.......... 53
5.13 Plans and Benefit Arrangements............................ 53
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
PAGE
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<S> <C>
5.14 Environmental Matters and Indemnification................. 54
5.15 Key Management............................................ 54
5.16 Covenants Regarding Formation of Subsidiaries and
Acquisitions.............................................. 55
5.17 Payment of Wages.......................................... 55
5.18 Further Assurances; Power of Attorney..................... 55
ARTICLE 6. NEGATIVE COVENANTS............................................. 56
6.1 Indebtedness.............................................. 56
6.2 Guarantees................................................ 56
6.3 Encumbrances; Negative Pledge............................. 56
6.4 Financial Covenants....................................... 57
6.5 Limitation on Dividends, Distributions and Other Payments. 58
6.6 Restrictions on Subsidiary Dividends or Distributions..... 59
6.7 Liquidations, Mergers, Consolidations, Acquisitions, Etc.. 59
6.8 Dispositions of Assets.................................... 60
6.9 Subsidiaries.............................................. 61
6.10 Loans and Other Advances.................................. 61
6.11 Investments............................................... 61
6.12 Affiliate Transactions.................................... 62
6.13 Use of Proceeds........................................... 62
6.14 Change of Business........................................ 62
6.15 Change of Control......................................... 62
6.16 Change of Fiscal Year..................................... 62
6.17 ERISA..................................................... 63
ARTICLE 7. CONDITIONS TO MAKING LOANS..................................... 63
7.1 All Loans................................................. 63
7.2 Initial Loan.............................................. 64
ARTICLE 8. EVENTS OF DEFAULT; REMEDIES.................................... 68
8.1 Events of Default......................................... 68
8.2 Remedies.................................................. 71
</TABLE>
iii
<PAGE> 5
<TABLE>
<CAPTION>
PAGE
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<S> <C>
ARTICLE 9. ADMINISTRATIVE AGENT, DOCUMENTATION AGENT AND
COLLATERAL AGENT............................................... 72
9.1 Appointment and Grant of Authority........................ 72
9.2 Non-Reliance on Administrative Agent...................... 73
9.3 Responsibility of Agents and Other Matters................ 73
9.4 Collateral Agent.......................................... 75
9.5 Action on Instructions.................................... 75
9.6 Action Upon Occurrence of a Default or Event of Default... 75
9.7 Indemnification........................................... 75
9.8 Agents' Rights as a Lender................................ 75
9.9 Loan Advances by Administrative Agent..................... 76
9.10 Payment to Lenders........................................ 76
9.11 Pro Rata Sharing.......................................... 76
9.12 Notice of Event of Default................................ 77
9.13 Delegation of Duties...................................... 77
9.14 Successor Agents.......................................... 77
ARTICLE 10. GENERAL PROVISIONS............................................. 78
10.1 Amendments and Waivers.................................... 78
10.2 Taxes..................................................... 79
10.3 Expenses.................................................. 79
10.4 Notices................................................... 80
10.5 Assignments............................................... 82
10.6 Participations............................................ 83
10.7 Withholding of Income Taxes............................... 84
10.8 Indemnity................................................. 84
10.9 Successors and Assigns.................................... 85
10.10 FCC and Other Governmental Authority Matters.............. 86
10.11 Confidentiality........................................... 86
10.12 Severability.............................................. 87
10.13 Survival.................................................. 87
10.14 GOVERNING LAW............................................. 87
10.15 FORUM..................................................... 87
10.16 WAIVER OF JURY TRIAL...................................... 88
10.17 Non-Business Days......................................... 88
10.18 Integration............................................... 88
10.19 Headings.................................................. 88
10.20 Counterparts.............................................. 88
</TABLE>
iv
<PAGE> 6
EXHIBITS
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<TABLE>
<CAPTION>
Principal
Exhibit Section
Designation Exhibit Reference
- ----------- ------- ---------
<S> <C> <C>
A Revolving Credit Note 2.1f
B Request for/Confirmation of Loan 2.4
C Security Agreement 3.2
D Pledge Agreement 3.3
E Compliance Certificate 5.2c
F Perfection Certificate 7.2h
G Assignment and Assumption Agreement 10.5a
</TABLE>
v
<PAGE> 7
SCHEDULES
---------
<TABLE>
<CAPTION>
Schedule
Designation Schedule
- ----------- --------
<S> <C>
4.2 Matters Relating to Borrower's and Wireless' Capital Stock
4.8 Cellular Systems; FCC Licenses and Other Governmental Approvals
4.11 Litigation and Other Matters
4.13 Material Contracts
4.18 Intellectual Property
4.19 Insurance
4.26 Plans and Benefit Arrangements
4.27 Environmental Matters
6.1 Existing Indebtedness
6.3 Existing Encumbrances Permitted to Remain Outstanding
6.10 Existing Loans Made by Borrower
6.11 Investments
</TABLE>
vi
<PAGE> 8
CREDIT AGREEMENT
This CREDIT AGREEMENT, dated as of October 9, 1996, is entered
into by and among SYGNET COMMUNICATIONS, INC., an Ohio corporation (the
"BORROWER"), the financial institutions which are or which become parties hereto
in accordance with Section 10.5 (each a "LENDER" and collectively the
"LENDERS"), TORONTO DOMINION (TEXAS), INC., as the administrative agent for the
Lenders (in such capacity the "ADMINISTRATIVE AGENT"), PNC BANK, NATIONAL
ASSOCIATION as the documentation agent for the Lenders (in such capacity the
"DOCUMENTATION AGENT") and PNC BANK, NATIONAL ASSOCIATION as the collateral
agent for the Lenders (in such capacity the "COLLATERAL AGENT").
WITNESSETH:
WHEREAS, the Borrower has requested that the Lenders make
available to it a secured, reducing revolving credit facility in the initial
maximum principal amount of $300,000,000, and the Lenders have agreed to do so,
on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises (each of
which is incorporated herein by reference) and other valuable consideration, the
receipt and adequacy of which are hereby acknowledged, and with the intent to be
legally bound hereby, the parties hereto agree as follows:
ARTICLE 1. DEFINITIONS
1.1 DEFINED TERMS. As used in this Agreement, including the
preamble and recitals hereto, the following terms shall have the meanings set
forth below or in the Section or Subsection of this Agreement referred to,
unless the context otherwise requires:
ACCOUNT: An account, as that term is defined in the Uniform
Commercial Code, due the Borrower or any Subsidiary of the Borrower, whether now
in existence or hereafter created or acquired.
ACCOUNT DEBTOR: Any Person who is or becomes obligated under
or with respect to an Account.
ADJUSTED ANNUALIZED OPERATING CASH FLOW: As of the last day of
each Fiscal Quarter, the Borrower's Adjusted Operating Cash Flow for the most
recently completed two consecutive Fiscal Quarters, multiplied by two,
determined on a consolidated basis in accordance with GAAP. For purposes of
calculating Adjusted Annualized Operating
<PAGE> 9
Cash Flow during the first two complete Fiscal Quarters immediately following
the Closing Date, it shall be assumed that the Horizon Acquisition occurred on
January 1, 1996.
ADJUSTED OPERATING CASH FLOW: As of the last day of each
Fiscal Quarter, the Borrower's Operating Cash Flow for such Fiscal Quarter, PLUS
actual marketing and selling expense for such Fiscal Quarter MINUS Average
Marketing Expense as of the last day of such Fiscal Quarter, all determined in
accordance with GAAP.
ADMINISTRATIVE AGENT: Toronto Dominion (Texas), Inc., and its
successors and assigns, in its capacity as administrative agent for the Lenders
hereunder, and any Person that becomes a successor administrative agent
hereunder.
AFFILIATE: As to any Person, any other Person directly or
indirectly through one or more intermediaries Controlling, Controlled by, or
under direct or indirect common Control with such Person.
AGENT: Any of the Administrative Agent, the Collateral Agent
or the Documentation Agent and, collectively, all of the Administrative Agent,
the Collateral Agent and the Documentation Agent, and their respective
successors and assigns.
AGREEMENT: This Credit Agreement, together with all exhibits
and schedules hereto and all extensions, renewals, amendments, substitutions and
replacements hereto and hereof.
ANNUALIZED OPERATING CASH FLOW: As of the last day of each
Fiscal Quarter, the Borrower's Operating Cash Flow for the most recently
completed two consecutive Fiscal Quarters, multiplied by two, determined on a
consolidated basis in accordance with GAAP. For purposes of calculating
Annualized Operating Cash Flow during the first two complete Fiscal Quarters
immediately following the Closing Date, it shall be assumed that the Horizon
Acquisition occurred on January 1, 1996.
APPLICABLE MARGIN: An incremental amount in excess of the Base
Rate and/or the Euro-Rate which will fluctuate as a function of the Total
Indebtedness to Adjusted Annualized Operating Cash Flow Ratio, pursuant to
Section 2.2a(i).
ASSIGNMENT AND ASSUMPTION AGREEMENT: An Assignment and
Assumption Agreement entered into by and between a Purchasing Lender and a
Transferor Lender, substantially in the form of EXHIBIT "G" hereto, with
appropriate insertions, and all exhibits, schedules, extensions, renewals,
amendments, substitutions and replacements thereto and thereof.
AUTHORIZED OFFICER: The Chairman, President and Chief
Financial Officer of the Borrower or Wireless, as the context requires. The
Agents and the Lenders shall be
2
<PAGE> 10
entitled to rely on the incumbency certificates delivered pursuant to Section
7.2 for the initial designation of each Authorized Officer. Additions or
deletions to the list of Authorized Officers may be made by the Borrower at any
time by delivering to the Administrative Agent a revised, fully-executed
incumbency certificate.
AVERAGE MARKETING EXPENSE: As of the last day of each Fiscal
Quarter, the Borrower's actual marketing and selling expense for the most
recently completed four Fiscal Quarters, divided by four, determined on a
consolidated basis in accordance with GAAP.
BASE RATE: For any day, a rate of interest per annum equal to
the greater of (i) the Prime Rate or (ii) the sum of (A) the Federal Funds Rate
plus (B) one-half percent (1/2%).
BASE RATE LOAN: A Loan bearing interest under the Base Rate
Option, as set forth in Subsection 2.2a.
BASE RATE OPTION: The ability of the Borrower to elect Base
Rate Loans, as set forth in Subsection 2.2a.
BENEFIT ARRANGEMENT: An "employee benefit plan", within the
meaning of Section 3(3) of ERISA, which is not a Plan or a Multiemployer Plan
and which is maintained or otherwise contributed to by the Borrower or any ERISA
Affiliate for the benefit of employees of the Borrower or any ERISA Affiliate.
BORROWER: Sygnet Communications, Inc., an Ohio corporation.
BUSINESS DAY: With respect to any borrowing or payment of
Euro-Rate Loans or a selection of the Euro-Rate Option, a day other than a
Saturday or a Sunday on which banks are open for business in New York, New York
and Houston, Texas, and on which dealings in Dollars are carried on in the
London interbank market; and for all other purposes, a day other than a Saturday
or a Sunday on which commercial banks in New York, New York and Houston, Texas
are open for business.
CAPITAL ADEQUACY EVENT: This term shall have the meaning given
it in Section 2.3.
CAPITAL COMPENSATION AMOUNT: This term shall have the meaning
given it in Section 2.3.
CAPITAL EXPENDITURE: Any expenditure of the Borrower or any
Subsidiary of the Borrower which would be classified as a capital expenditure in
accordance with GAAP.
3
<PAGE> 11
CAPITALIZED LEASE: Any lease of property by the Borrower or a
Subsidiary of the Borrower as lessee which would be capitalized on a balance
sheet of the Borrower or such Subsidiary prepared in accordance with GAAP.
CELLULAR SYSTEM: The Borrower's and its Subsidiaries' cellular
mobile radio telephone systems, whether now owned or hereafter acquired,
constructed and operated in an MSA or RSA.
CAPITALIZED LEASE OBLIGATIONS: The amount of the obligations
of the Borrower or a Subsidiary of the Borrower under Capitalized Leases which
would be shown as a liability on a balance sheet of such Borrower or a
Subsidiary of the Borrower prepared in accordance with GAAP.
CHANGE OF CONTROL: Any transaction or occurrence or series of
transactions or occurrences which results at any time in either (i) the current
shareholders of Wireless, as shown on SCHEDULE 4.2, owning in the aggregate,
whether directly or indirectly, less than the number of shares which entitles
them to at least 51% of the votes entitled to be cast in an election of
Wireless' board of directors, on a fully-diluted basis, or (ii) Wireless owning
in the aggregate, whether directly or indirectly, less than the number of shares
which entitles it to at least 51% of the votes entitled to be cast in an
election of the Borrower's board of directors, on a fully-diluted basis.
CHATTEL PAPER: Any chattel paper, as that term is defined in
the Uniform Commercial Code, of the Borrower or any Subsidiary of the Borrower,
whether now owned or hereafter created or acquired.
CLOSING DATE: October 9, 1996 or such later date as is
mutually agreeable to the parties hereto.
COLLATERAL: Collectively, all of the property (whether real,
personal or mixed, and whether tangible or intangible), rights, titles and
interests subject to the Security Interest in favor of the Collateral Agent for
the benefit of the Lenders pursuant to this Agreement or any of the Security
Documents.
COLLATERAL AGENT: PNC Bank, National Association, a national
banking association, and its successors and assigns, in its capacity as the
collateral agent for the Lenders hereunder, and any Person that becomes a
successor collateral agent hereunder.
COMMITMENT: With respect to each Lender, the commitment of
such Lender to make Loans pursuant to Section 2.1 in the aggregate Dollar amount
not to exceed at any one time outstanding: (i) as to any Lender which is an
original signatory to this Agreement, the Dollar amount set forth on the
signature page hereto signed by such Lender or as modified on Schedule I to the
most recent Assignment and Assumption Agreement, if any,
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which such Lender executes as a Transferor Lender, as the case may be, or (ii)
as to any Lender which is not an original signatory to this Agreement but which
becomes a Lender by executing an Assignment and Assumption Agreement as a
Purchasing Lender, the Dollar amount for such Lender set forth on Schedule I to
such Assignment and Assumption Agreement, or as modified on Schedule I to the
most recent Assignment and Assumption Agreement, if any, which such Lender
executes as a Transferor Lender.
COMMITMENT FEE: The fee described in Subsection 2.7a.
COMMITMENT PERCENTAGE: With respect to each Lender, its
percentage commitment of the Revolving Credit Commitment, which shall be (i) as
to any Lender which is an original signatory to this Agreement, the percentage
set forth on the signature page hereto signed by such Lender or as modified on
Schedule I to the most recent Assignment and Assumption Agreement, if any, which
such Lender executes as a Transferor Lender, as the case may be, or (ii) as to
any Lender which is not an original signatory to this Agreement but which
becomes a Lender by executing an Assignment and Assumption Agreement as a
Purchasing Lender, the percentage set forth on Schedule I to such Assignment and
Assumption Agreement, or as modified on Schedule I to the most recent Assignment
and Assumption Agreement, if any, which such Lender executes as a Transferor
Lender.
COMPLIANCE CERTIFICATE: A certificate substantially in the
form of EXHIBIT "E" which has been executed by an Authorized Officer of the
Borrower and delivered to the Administrative Agent.
CONSOLIDATED OR CONSOLIDATED: With reference to any term
defined herein, that term as applied to the accounts of the Borrower and its
Subsidiaries (or, if specifically stated, to the accounts of Wireless and its
Subsidiaries), consolidated in accordance with GAAP.
CONTAMINATION: The uncontained presence of Hazardous
Substances at any real property of the Borrower or any Subsidiary, whether owned
or leased, which may require clean-up or remediation under any Environmental
Law.
CONTROL: The ownership of fifteen percent (15%) or more of any
class of voting securities, partnership interests or other equity interests by
any Person of another Person, or the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of any
Person, whether through the ownership of voting securities, by contract, or
otherwise, including the power to elect a majority of the directors of a
corporation or trustees of a trust, as the case may be. The terms "Controlled"
and "Controlling" shall have correlative meanings.
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DEBT SERVICE: Scheduled payments of principal (including
without limitation principal payments made in order to make scheduled reductions
of the Revolving Credit Commitment, as required pursuant to Section 2.1c(i)) and
interest on the Borrower's Indebtedness, determined on a consolidated basis.
DEFAULT: Any condition, event, omission or act which with the
giving of notice, the passage of time or both would constitute an Event of
Default.
DOCUMENT: Any document, as that term is defined in the Uniform
Commercial Code, of the Borrower or any Subsidiary, whether now owned or in
existence or hereafter created or acquired.
DOCUMENTATION AGENT: PNC Bank, National Association, a
national banking association, and its successors and assigns, in its capacity as
the documentation agent for the Lenders hereunder, and any Person that becomes a
successor documentation agent hereunder.
DOLLARS OR $: The legal tender of the United States of
America.
ENCUMBRANCE: Any security interest, mortgage, charge, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement, any Capitalized Lease
having substantially the same economic effect as any of the foregoing, and the
filing of any financing statement under the Uniform Commercial Code), in, upon
or against any asset of the Borrower or any Subsidiary of the Borrower, whether
or not voluntarily given, other than financing statements filed in connection
with Permitted Encumbrances.
ENVIRONMENTAL CLAIM: Any claim, suit, notice, order, demand or
other written communication made by any Person with respect to the Borrower or
any of its properties, whether owned or leased, that: (i) asserts a violation of
an Environmental Law; (ii) asserts a liability under an Environmental Law; (iii)
orders investigation, corrective action, remediation or other response under an
Environmental Law; (iv) demands information under an Environmental Law; (v)
alleges personal injury or property damage resulting from Hazardous Substances;
or (vi) alleges that there is or may be Contamination.
ENVIRONMENTAL LAW: Any Governmental Rule, permit, license,
writ, injunction, decree, award or standard concerning health, safety and
protection of, or regulation of the discharge of substances into, the
environment, whether now in existence or hereafter enacted, agreed to, issued or
otherwise becoming effective.
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EQUIPMENT: Any equipment, as that term is defined in the
Uniform Commercial Code, owned by the Borrower or any Subsidiary of the
Borrower, whether now owned or hereafter acquired and wherever located.
ERISA: The Employee Retirement Income Security Act of 1974 as
it may from time to time be amended, supplemented or otherwise modified, or any
successor statute, and the rules and regulations promulgated thereunder.
ERISA AFFILIATE: At any time any member of a controlled group
of corporations under Section 414(b) of the Internal Revenue Code of which the
Borrower is a member, and any trade or business (whether or not incorporated)
under common control with the Borrower under Section 414(c) of the Internal
Revenue Code, and all other entities which, together with the Borrower, are or
were treated as a single employer under Sections 414(m) or 414(o) of the
Internal Revenue Code.
EURO-RATE: With respect to Euro-Rate Loans, the interest rate
per annum determined by the Administrative Agent by dividing (the resulting
quotient to be rounded upward to the nearest 1/100 of 1%) (i) the rate of
interest determined by the Administrative Agent in accordance with its usual
procedures (which determination shall be presumed correct absent manifest error
on the part of the Administrative Agent) to be equal to the offered rate for
deposits in Dollars for the applicable Euro-Rate Interest Period which appear on
page 3750 of the TELERATE rate reporting system or other similar system as of
approximately 11:00 a.m., Greenwich mean time, two (2) Business Days prior to
the first day of such Euro-Rate Interest Period for an amount comparable to such
Loan and having a borrowing date and a maturity comparable to such Euro-Rate
Interest Period, by (ii) a number equal to 1.00 minus the Euro-Rate Reserve
Percentage. If more than one offered rate appears on page 3750 of the TELERATE
rate reporting system or other similar system, the Euro-Rate will be the
arithmetic mean of such offered rates.
EURO-RATE INTEREST PERIOD: Any individual period of one, two,
three or six months, or, if made available at the option of all of the Lenders,
nine or twelve months, commencing on the date a Euro-Rate Option is exercised;
PROVIDED, HOWEVER, that (i) any Euro-Rate Interest Period which would otherwise
end on a day which is not a Business Day shall be extended to the next Business
Day unless such Business Day falls in the succeeding calendar month, in which
case such Euro-Rate Interest Period shall end on the next preceding Business
Day, (ii) any Euro-Rate Interest Period which begins on the last day of a
calendar month or on a day for which there is no numerically corresponding day
in the subsequent calendar month during which such Euro-Rate Interest Period is
to end shall end on the last Business Day of such subsequent month, and (iii) no
Euro-Rate Interest Period may end after the Maturity Date.
EURO-RATE LOAN: A Loan bearing interest under the Euro-Rate
Option, as set forth in Subsection 2.2a.
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EURO-RATE OPTION: The ability of the Borrower to elect
Euro-Rate Loans, as set forth in Subsection 2.2a.
EURO-RATE RESERVE PERCENTAGE: For any day, that percentage
(expressed as a decimal), as determined by the Administrative Agent as to the
Euro-Rate Loan as to which the rate is then being set, which is in effect on
such day, as prescribed by the Board of Governors of the Federal Reserve System
(or any successor), for determining the maximum reserve requirements (including
without limitation supplemental, marginal or emergency reserve requirements)
with respect to eurocurrency funding (currently referred to as "Eurocurrency
Liabilities") of a member bank in such system.
EVENT OF DEFAULT: Any of the events specified in Section 8.1.
EXCESS CASH FLOW: The excess, if any, of the Borrower's
Operating Cash Flow over the Borrower's Fixed Charges, all for the Fiscal Year
in question, determined on a consolidated basis in accordance with GAAP.
EXISTING CREDIT AGREEMENT: The Credit Agreement dated as of
September 29, 1995 entered into by and among the Borrower (then known as Sharron
Youngstown Cellular, Inc.) and certain of its then existing affiliates as the
borrowers, the lenders which are parties thereto and PNC Bank, National
Association, as the Agent for such lenders, as it may have been amended from
time to time.
FCC: The Federal Communications Commission or any successor
agency, commission, bureau, department or other political subdivision of the
United States of America.
FCC LICENSE: Any license, permit, authorization or
certificate, whether now owned or hereafter acquired, issued by the FCC to
Wireless, the Borrower or any Subsidiary of the Borrower in order that the
Borrower's or such Subsidiary's Cellular Systems will be operated in compliance
with all applicable Governmental Rules.
FEDERAL FUNDS RATE: For any day, a fluctuating interest rate
per annum equal to the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published for such day (or, if such day is not a Business Day,
for the preceding Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a Business Day, the average
of the quotations at approximately 11:00 a.m. Eastern time on such day on such
transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by the Administrative Agent in its sole
discretion.
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FEE: Any of the Commitment Fee or any other fee payable by the
Borrower to the Agents or the Lenders hereunder, under any Fee Letter or under
any of the other Loan Documents.
FEE LETTER: Any letter agreement or other agreement entered
into on or prior to the Closing Date by and among the Borrower and the Agents or
among the Borrower and the Lenders, pursuant to which the Borrower agrees to pay
the Fees described therein to the Agents or the Lenders, together with all
extensions, renewals, amendments, substitutions and replacements thereto and
thereof.
FISCAL QUARTER: Each three-month fiscal period of the Borrower
beginning respectively on each successive January 1, April 1, July 1 and October
1 during the term hereof and ending on the immediately succeeding March 31, June
30, September 30 and December 31.
FISCAL YEAR: Each annual fiscal period of the Borrower
beginning January 1 and ending on the immediately succeeding December 31.
FIXED CHARGES: As of the last day of each Fiscal Quarter, the
sum (without duplication) of the Borrower's Capital Expenditures, payments
pursuant to Capitalized Leases, Debt Service and Permitted Payments for the
immediately preceding period of twelve (12) consecutive months, all determined
on a consolidated basis in accordance with GAAP.
FIXTURE: Any fixture, as that term is defined in the Uniform
Commercial Code, owned by the Borrower or a Subsidiary of the Borrower, whether
now owned or hereafter acquired, and wherever located.
GAAP: Generally accepted accounting principles as in effect
from time to time which are consistent with the principles promulgated or
adopted by the Financial Accounting Standards Board, its predecessors and its
successors, including any official interpretations thereof, consistently
applied.
GENERAL INTANGIBLE: Any general intangible, as that term is
defined in the Uniform Commercial Code, of the Borrower or a Subsidiary of the
Borrower, whether now owned or in existence or hereafter created or acquired,
including without limitation any cause of action, business record, deposit
account, invention, design, patent, patent application, trademark, a trademark
application, service mark, service mark application, trade name, trade name
application, trade secret, goodwill, copyright, copyright application,
registration, license, franchise, customer guaranty, security interest, right to
indemnification or any other intangible property of any kind or nature (other
than an Account).
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GOODS: All goods, as that term is defined in the Uniform
Commercial Code, of the Borrower or a Subsidiary of the Borrower, whether now
owned or hereafter acquired and wherever located.
GOVERNMENTAL APPROVAL: Any order, consent, authorization,
license, validation, approval and permit, including but not limited to any FCC
License, issued to or required to be obtained by the Borrower or a Subsidiary of
the Borrower in connection with the ownership, construction, erection,
installation, operation and maintenance of the Borrower's or such Subsidiary's
properties, including but not limited to the Cellular Systems, and the conduct
of the present and proposed business of the Borrower or such Subsidiary.
GOVERNMENTAL AUTHORITY: The government of the United States or
the government of any state or locality therein, any political subdivision or
any governmental, quasi-governmental, judicial, public or statutory
instrumentality, court, arbitrator, authority, body or entity or other
regulatory bureau, authority, body or entity of the United States or any state
or locality therein, including but not limited to the Federal Deposit Insurance
Corporation, the Comptroller of the Currency, the Board of Governors of the
Federal Reserve System, any central bank or any comparable authority, and any
successor to any of the foregoing. In addition, solely for the purposes of
Sections 2.2f, 2.3 and 10.8 hereof and the definition of Governmental Rule as
used in such Sections, and solely for the benefit of Lenders which are branches
of or representative offices of financial institutions not organized under the
laws of the United States of America or any state thereof, the term
"Governmental Authority" shall mean the government of the country of such
financial institution's incorporation or organization, the government of any
political subdivision thereof or any governmental, quasi-governmental, judicial
or statutory instrumentality, any court or tribunal or regulatory bureau of any
of the foregoing or any central bank or any comparable authority of such
country.
GOVERNMENTAL RULE: Any law, statute, rule, regulation, treaty,
ordinance, order, writ, injunction, decree, judgment, guideline, directive or
decision of any Governmental Authority, whether in existence on the Closing Date
or whether issued, enacted or adopted after the Closing Date, and any change
therein or in the interpretation or application thereof following the Closing
Date.
GUARANTY: As to any Person, any obligation, direct or
indirect, by which such Person undertakes to guaranty, assume or remain liable
for the payment of a second Person's obligations, including but not limited to
(i) endorsements of negotiable instruments, (ii) discounts with recourse, (iii)
agreements to pay or perform upon a second Person's failure to pay or perform,
(iv) agreements to remain liable on obligations assumed by a second Person, (v)
agreements to maintain the capital, working capital, solvency or general
financial condition of a second Person and (vi) agreements for the purchase or
other acquisition of products, materials, supplies or services, if in any case
payment therefor is to
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be made regardless of the nondelivery of such products, materials or supplies or
the nonfurnishing of such services.
HAZARDOUS SUBSTANCE: Any (i) substance which is defined as
such or regulated in any manner by any Environmental Law and (ii) petroleum
products, including crude oil and any fraction thereof.
HORIZON ACQUISITION: The acquisition by the Borrower, directly
or indirectly, of all licenses, permits, franchises, registrations, approvals
and operating rights owned by Horizon Cellular Telephone Company of Chautauqua,
L.P., Horizon Cellular Telephone Company of Crawford, L.P., and Horizon Cellular
Telephone Company of Indiana, L.P., relating to the following non-wireline RSAs:
Pennsylvania RSA #1, Pennsylvania RSA #2 (operated under interim operating
authority), Pennsylvania RSA #6, Pennsylvania RSA #7 and New York RSA #3,
together with certain other assets of the sellers, all pursuant to and in
accordance with the terms of the Horizon Acquisition Agreement.
HORIZON ACQUISITION AGREEMENT: The Asset Acquisition Agreement
made as of July 11, 1996 among Horizon Cellular Telephone Company of Chautauqua,
L.P., Horizon Cellular Telephone Company of Crawford, L.P. and Horizon Cellular
Telephone Company of Indiana, L.P. as the sellers and Sygnet Communications,
Inc. (now Sygnet Wireless, Inc.) as the purchaser, together with all exhibits
and schedules thereto and thereof.
HORIZON ACQUISITION DOCUMENTS: The Horizon Acquisition
Agreement and all documents, agreements and instruments entered into in
connection therewith, together with all exhibits and schedules thereto.
INDEBTEDNESS: Individually and collectively, (i) all
obligations and indebtedness for borrowed money, including but not limited to
the Obligations hereunder and the Borrower's Senior Indebtedness and
Subordinated Indebtedness, (ii) all obligations evidenced by bonds, debentures,
notes, including but not limited to the Revolving Credit Notes, or similar
instruments; (iii) all obligations under conditional sale or other title
retention agreements relating to property purchased; (iv) all obligations issued
or assumed as the deferred purchase price of property or services; (v) all
Capitalized Lease Obligations; (vi) all obligations with respect to letters of
credit, whether matured or contingent; (vii) all obligations with respect to
Interest Hedge Agreements; (viii) all obligations of others secured by any
Encumbrance on property or assets owned or acquired by the Borrower or a
Subsidiary of the Borrower, whether or not the obligations secured thereby have
been assumed; and (ix) all Guarantees; PROVIDED, HOWEVER, that Indebtedness
shall not include accounts payable incurred in the ordinary course of business
if those accounts payable do not constitute obligations to repay borrowed money.
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INSTRUMENT: Any instrument, as that term is defined in the
Uniform Commercial Code, owned or held by the Borrower or a Subsidiary of the
Borrower, whether now owned or in existence or hereafter created or acquired.
INTEREST EXPENSE: Amounts actually paid by the Borrower for
interest on Indebtedness during the period in question, determined on a
consolidated basis in accordance with GAAP.
INTEREST HEDGE AGREEMENT: Any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement, interest rate
insurance or any other agreement or arrangement designed to provide protection
against fluctuations in interest rates, together with all extensions, renewals,
amendments, substitutions and replacements to and of any of the foregoing.
INTEREST RATE OPTION: Either of the Base Rate Option or the
Euro-Rate Option.
INTERNAL REVENUE CODE: The Internal Revenue Code of 1986 or
any successor legislation thereto, and the rules and regulations issued or
promulgated thereunder, including any amendments to any of the foregoing.
INVENTORY: All inventory, as that term is defined in the
Uniform Commercial Code, including but not limited to any and all new or used
goods, merchandise and other personal property, including but not limited to
goods in transit, of the Borrower or any Subsidiary of the Borrower, and which
is or may at any time be held as finished goods, raw materials, work-in-process,
supplies or materials used or consumed in the Borrower's or any Subsidiary's
business or held for sale or lease or furnished under a contract of service in
the ordinary course of the Borrower's or any Subsidiary's business, including
but not limited to all returned and repossessed goods and all supplementary
items, packing and shipping supplies and advertising materials, all of the
foregoing whether now owned or hereafter acquired and wherever located.
LENDER: Any financial institution which is or which becomes a
party hereto as a lender in the future, and their respective successors and
assigns.
LOAN: An individual borrowing by the Borrower under the
Revolving Credit Commitment.
LOAN ACCOUNT: Any loan account referred to in Section 2.6.
LOAN DOCUMENT: Any of this Agreement, any Revolving Credit
Note, any Security Document, any Subsidiary Guaranty Agreement, any Fee Letter,
any Interest Hedge Agreement entered into with a Lender, the Management
Agreement and all other agreements,
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documents and instruments executed and delivered to govern, evidence or secure
the Obligations, and the statements, reports, certificates and other documents
required by, or related to, any of the foregoing, together with all extensions,
renewals, amendments, substitutions and replacements to and of any of the
foregoing.
MANAGEMENT AGREEMENT: The Management Agreement between the
Borrower and Wireless, in form and substance reasonably acceptable to the
Required Lenders pursuant to which Wireless performs certain administrative
functions for the Borrower, together with all extensions, renewals, amendments,
substitutions and replacements thereto and thereof.
MATERIAL ADVERSE CHANGE: Any set of circumstances or events
which (i) has or could reasonably be expected to have any material adverse
effect whatsoever upon the validity or enforceability of this Agreement in its
entirety or any other Loan Document in its entirety, (ii) is or could reasonably
be expected to be material and adverse to the business, properties, assets,
condition, financial or otherwise, results of operations or prospects of (A) the
Borrower and its Subsidiaries taken as a whole or (B) Wireless, (iii) impairs
materially or could reasonably be expected to impair materially the ability of
(A) the Borrower or any of its Subsidiaries to duly and punctually pay or
perform the Obligations and their obligations under the Loan Documents or (B)
Wireless to perform its obligations under the Pledge Agreement, or (iv) impairs
materially or could reasonably be expected to impair materially the ability of
any Agent or any Lender, to the extent permitted, to enforce their respective
legal remedies pursuant to this Agreement and the other Loan Documents.
MATERIAL ADVERSE EFFECT: An effect that results in or causes
or has a reasonable likelihood of resulting in or causing a Material Adverse
Change.
MATERIAL CONTRACT: Any contract or agreement to which the
Borrower or a Subsidiary is a party the loss or breach of which would have a
Material Adverse Effect.
MATERIAL DEFAULT: Any Default other than an event or
occurrence which would not have a Material Adverse Effect or result in a
Material Adverse Change.
MATURITY DATE: June 30, 2005.
MONEY PURCHASE PLAN: Any Benefit Arrangement subject to the
minimum funding standards under Section 302 of ERISA and Section 412 of the
Internal Revenue Code.
MSA: Any "metropolitan statistical area" as defined and
modified by the FCC for the purpose of licensing public cellular radio
telecommunications service systems.
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MSA FCC LICENSE: Any FCC License granting the right to operate
a Cellular System within a MSA.
MULTIEMPLOYER PLAN: A "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is
making or accruing an obligation to make contributions or has within any of the
preceding five plan years made or accrued an obligation to make contributions.
NET CASH PROCEEDS: The cash proceeds to the Borrower or any
Subsidiary of any sale, assignment, transfer or other disposition of any of its
assets, less the sum of (i) reasonable costs associated with such sale,
assignment, transfer or other disposition, such as brokers' commissions and
attorneys' and accountants' fees, (ii) all Federal, state and local taxes
assessed in connection therewith and (iii) the principal amount of any
Indebtedness which is secured by any such asset and which is required to be and
is repaid in connection therewith.
NET INCOME: The Borrower's net income, after deducting all
operating expenses, provisions for all taxes and all other proper deductions,
all determined on a consolidated basis for the period in question in accordance
with GAAP.
OBLIGATIONS: Collectively, (i) all unpaid principal and
accrued and unpaid interest (including, without limitation, any interest
accruing subsequent to the commencement of a bankruptcy, insolvency or similar
proceeding with respect to the Borrower, whether or not such interest
constitutes an allowed claim in such proceeding) under the Loans, (ii) all
accrued and unpaid Fees, (iii) any other amounts due hereunder or under any of
the other Loan Documents, including all reimbursements, indemnities, Fees,
costs, expenses, prepayment premiums, break-funding costs and other obligations
of the Borrower, any Subsidiary of the Borrower or Wireless to any Agent, any
Lender or any indemnified party hereunder and thereunder, (iv) any obligations
owed by the Borrower to any Lender or to any Affiliate of any Lender pursuant to
an Interest Hedge Agreement, and (v) all out-of-pocket costs and expenses
incurred by the Agents and the Lenders in connection with this Agreement and the
other Loan Documents, including but not limited to the reasonable fees and
expenses of the Agents' counsel, which the Borrower is responsible to pay
pursuant to the terms of this Agreement and the other Loan Documents.
OPERATING CASH FLOW: As of the last day of each Fiscal
Quarter, the sum of the Borrower's Net Income, depreciation, amortization, other
non-cash charges to Net Income, Interest Expense and Permitted Payments
(excluding any amounts paid pursuant to the Management Agreement), MINUS
non-cash credits to the Borrower's Net Income, all determined for such Fiscal
Quarter on a consolidated basis in accordance with GAAP.
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PARTICIPANT: Any bank or financial institution which acquires
from any Lender an undivided interest in such Lender's Revolving Credit
Commitment and Loans, pursuant to Section 10.6.
PARTICIPATION: The sale, made in accordance with the
provisions of Section 10.6, by a Lender to any Participant of an undivided
interest in such Lender's Revolving Credit Commitment and Loans.
PBGC: The Pension Benefit Guaranty Corporation established
pursuant to ERISA, or any entity succeeding to any or all of its functions under
ERISA.
PERFECTION CERTIFICATE: The Perfection Certificate
substantially in the form of EXHIBIT "F", together with all exhibits, schedules,
extensions, renewals, amendments, substitutions and replacements thereto and
thereof.
PERMITTED ACQUISITION: Any acquisition permitted to be made by
the Borrower or its Subsidiaries pursuant to Section 6.7.
PERMITTED DISPOSITION: Any disposition of assets permitted to
be made by the Borrower and its Subsidiaries pursuant to Section 6.8.
PERMITTED ENCUMBRANCE: Any of the following:
(i) The Security Interests;
(ii) Security interests in the Collateral granted to the
Collateral Agent for the benefit of any Lender or any Affiliate of any Lender
which enters into an Interest Hedge Agreement with the Borrower pursuant to
Section 5.9, as security for the Borrower's obligations pursuant to such
Interest Hedge Agreement, which security interests may rank not higher than PARI
PASSU with the Security Interests in the Collateral granted to the Collateral
Agent hereunder or under the Security Documents; PROVIDED, HOWEVER, that such
security interests must be reasonably satisfactory to the Collateral Agent in
all respects;
(iii) Liens for taxes, assessments, governmental charges or
levies on the Borrower's or its Subsidiaries' properties if such taxes,
assessments, governmental charges or levies (A) are not at the time due and
payable or if they can thereafter be paid without penalty or are being contested
in good faith by appropriate proceedings diligently conducted and with respect
to which the Borrower or such Subsidiary has created adequate reserves or (B)
are not pursuant to any Environmental Law;
(iv) Pledges or deposits to secure payment of workers'
compensation obligations, unemployment insurance, deposits or indemnities to
secure public or statutory obligations or for similar purposes;
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(v) Liens arising out of judgments or awards against the
Borrower or a Subsidiary of the Borrower with respect to which enforcement has
been stayed and the Borrower at the time shall currently be prosecuting an
appeal or proceeding for review in good faith by appropriate proceedings
diligently conducted and with respect to which the Borrower or such Subsidiary
has created adequate reserves or has adequate insurance protection; PROVIDED,
HOWEVER, that (A) at no time may the aggregate Dollar amount of such judgment
liens for the Borrower exceed $1,500,000 and (B) at no time may the aggregate
Dollar amount of such judgment liens for the Borrower and its Subsidiaries
exceed $3,000,000;
(vi) Mechanics', carriers', workmen's, repairmen's and other
similar statutory liens incurred in the ordinary course of the Borrower's or its
Subsidiaries' business, so long as the obligation secured is not overdue or, if
overdue, is being contested in good faith by appropriate actions or proceedings
being diligently conducted and as to which the Borrower or such Subsidiary has
created adequate reserves;
(vii) Security interests in favor of lessors of personal
property, which property is the subject of a true lease between such lessor and
the Borrower or a Subsidiary of the Borrower, PROVIDED THAT such security
interest shall attach only to the property being leased and shall secure only
amounts owed pursuant to such lease;
(viii) Purchase money security interests in favor of sellers
of real or personal property, to the extent the Indebtedness secured by such
security interest is permitted pursuant to Section 6.1(ii), PROVIDED THAT such
security interest shall attach only to the real or personal property being
purchased and shall secure only the purchase money Indebtedness incurred in the
acquisition of such real or personal property; and
(ix) Encumbrances existing on the Closing Date and listed on
SCHEDULE 6.3.
PERMITTED PAYMENT: Any payment, dividend or distribution
permitted to be made by the Borrower to Wireless pursuant to Section 6.5.
PERSON: Any individual, partnership, corporation, trust, joint
venture, limited liability company, unincorporated organization, association,
entity or Governmental Authority.
PLAN: As to any Person, any employee pension benefit plan
other than a Multiemployer Plan which is covered by Title IV of ERISA and which
either (i) is maintained by such Person and/or any ERISA Affiliate of such
Person for employees of such Person and/or any ERISA Affiliate or (ii) has at
any time within the preceding five years been maintained by such Person and/or
any entity which was an ERISA Affiliate at such time for their respective
employees.
16
<PAGE> 24
PLEDGE AGREEMENT: A Stock Pledge and Security Agreement
substantially in the form of EXHIBIT "D" hereto, pursuant to which Wireless or
any other owner of such stock grants to the Collateral Agent for the benefit of
the holders of the Obligations a lien and security interest in the issued and
outstanding stock of the Borrower, together with all extensions, renewals,
amendments, substitutions and replacements hereto and hereof.
PREFERRED SUBSIDIARY: Any Subsidiary 85% or more of the
outstanding voting securities of which is owned or controlled by the Borrower or
a wholly-owned Subsidiary of the Borrower.
PRIME RATE: For any day, a fluctuating interest rate per annum
equal to the rate of interest which the Administrative Agent announces from time
to time as its prime lending rate, which rate may not be the lowest rate then
being charged by the Administrative Agent to commercial borrowers.
PRO FORMA DEBT SERVICE: As of the last day of each Fiscal
Quarter, the sum of (i) all principal payments required to be made as a result
of scheduled reductions of the Revolving Credit Commitment required pursuant to
Subsection 2.1c(i), which reductions are scheduled to be made during the four
consecutive Fiscal Quarters immediately succeeding the date Pro Forma Debt
Service is calculated (which amount shall be based on the principal amount of
Loans outstanding on the date of calculation), PLUS (ii) all projected payments
of interest on the Borrower's Indebtedness (based on the interest rates in
effect under the Interest Rate Options at the time Pro Forma Debt Service is
calculated), which interest payments are projected to be made during the four
consecutive Fiscal Quarters immediately succeeding the date Pro Forma Debt
Service is calculated, PLUS, (iii) all Permitted Payments which are projected to
be made during the four consecutive Fiscal Quarters immediately succeeding the
date Pro Forma Debt Service is calculated, all determined for such Fiscal
Quarter on a consolidated basis in accordance with GAAP.
PROHIBITED TRANSACTION: A "prohibited transaction" as defined
under Section 406 of ERISA or Section 4975 of the Internal Revenue Code.
PRO RATA: From or to each Lender in proportion to its
Commitment Percentage.
PURCHASING LENDER: A Lender which becomes a party to this
Agreement by executing an Assignment and Assumption Agreement, or any Lender
which is a party to this Agreement and which purchases an assignment pursuant to
Subsection 10.5a.
QUALIFIED LENDER: Any Lender, or any other bank or trust
company organized under the laws of the United States of America or any state
thereof, having either (i) capital, surplus and undivided profits aggregating at
least $250,000,000 or (ii) total assets in excess of $500,000,000 and whose
long-term certificates of deposit are rated "AA" or
17
<PAGE> 25
better by Standard and Poor's Rating Group, a division of McGraw-Hill, Inc. or
"Aa" or better by Moody's Investors Service, Inc.
REGISTER: This term shall have the meaning given it in Section
10.5c.
REGULATIONS D, G, T, U AND X: Regulations D, G, T, U and X
promulgated by the Board of Governors of the Federal Reserve System (12 C.F.R.
Part 204 et seq., 12 C.F.R. Part 207 et seq., 12 C.F.R. Part 220 et seq., 12
C.F.R. Part 221 et seq. and 12 C.F.R. Part 224 et seq., respectively), as such
regulations are now in effect and as may hereafter be amended.
REPORTABLE EVENT: A "reportable event" described in Section
4043(c) of ERISA and in 29 C.F.R. Part 2615.
REQUIRED LENDERS: Prior to the termination of the Revolving
Credit Commitment, the Lenders whose Commitment Percentages aggregate at least
sixty-six and two-thirds percent (66 2/3%) of the aggregate Commitment
Percentages of all the Lenders, and after the termination of the Revolving
Credit Commitment, whether on the stated Maturity Date, by acceleration or
otherwise, the Lenders whose outstanding principal amounts of the Loans
aggregate at least sixty-six and two-thirds percent (66 2/3%) of the aggregate
principal amount of the outstanding Loans.
REVOLVER AVAILABILITY: As of any date of determination, the
positive difference, if any, between (i) the largest amount available to be
borrowed under the Revolving Credit Commitment at any time during the twelve
(12) month period prior to the date of determination (after taking into account
scheduled reductions required to be made pursuant to Subsection 2.1c(i) prior to
the date on which such availability was the largest) and (ii) the principal
amount outstanding under the Revolving Credit Commitment as of the first day of
the Fiscal Year most recently begun.
REVOLVING CREDIT COMMITMENT: The obligation of the Lenders to
make available to the Borrower a maximum aggregate principal amount not to
exceed $300,000,000 initially, as reduced pursuant to Subsection 2.1c(i).
REVOLVING CREDIT NOTE: Any promissory note of the Borrower
evidencing Indebtedness of the Borrower under the Revolving Credit Commitment
and in substantially the form of EXHIBIT "A", together with all extensions,
renewals, amendments, substitutions and replacements thereto and thereof.
RSA: Any "rural service area" as defined and modified by the
FCC for the purpose of licensing public cellular radio telecommunications
service systems.
18
<PAGE> 26
RSA FCC LICENSE: Any FCC License granting the right to operate
a Cellular System within a RSA.
SECURITY AGREEMENT: The Security Agreement and Collateral
Assignment substantially in the form of EXHIBIT "C" hereto entered into by and
between the Borrower and the Collateral Agent pursuant to which the Borrower
grants to the Collateral Agent, for and on behalf of the holders of the
Obligations, a lien and security interest in all of the Borrower's personal
property, whether tangible or intangible, together with all extensions,
renewals, amendments, substitutions and replacements thereto and thereof.
SECURITY DOCUMENTS: Any and all of (i) the Pledge Agreement,
(ii) the Security Agreement, (iii) the Subsidiary Security Documents, (iv) all
additional documents and instruments entered into from time to time for the
purpose of securing the Obligations, (v) any and all ancillary documents and
instruments relating to any of the foregoing, such as Uniform Commercial Code
financing statements and amendments to and continuations of financing statements
and stock powers, and (vi) all extensions, renewals, amendments, substitutions
and replacements to and of any of the foregoing.
SECURITY INTEREST: All Encumbrances in favor of the Collateral
Agent, for the benefit of the holders of the Obligations, created hereunder or
under any of the Security Documents to secure the Obligations.
SENIOR INDEBTEDNESS: All Indebtedness of the Borrower, on a
consolidated basis, which is not Subordinated Indebtedness.
STRUCTURALLY SUBORDINATED INDEBTEDNESS: Indebtedness of
Wireless in the aggregate principal amount of $110,000,000 issued pursuant to
the Structurally Subordinated Indebtedness Documents.
STRUCTURALLY SUBORDINATED INDEBTEDNESS DOCUMENTS: The
Indenture dated as of September 26, 1996 between Wireless and Fleet National
Bank as Trustee relating to the 11-1/2% Senior Notes due 2006 and the notes
issued pursuant thereto substantially in the form of Exhibit A to such
indenture, together with all extensions, renewals, amendments, substitutions and
replacements to and of any of the foregoing.
SUBORDINATED INDEBTEDNESS: Any Indebtedness of the Borrower
which is subordinated to the Obligations on terms and conditions satisfactory to
the Agents.
SUBSIDIARY: Either (i) any corporation more than 50% of the
outstanding voting securities of which shall at the time be owned or controlled,
directly or indirectly, by the Borrower, or (ii) any other Person which is so
owned or which is controlled by the Borrower or a Subsidiary.
19
<PAGE> 27
SUBSIDIARY GUARANTY AGREEMENT: Any guaranty and suretyship
agreement made by any Subsidiary of the Borrower for the benefit of the Lenders
pursuant to Section 5.16, together with all extensions, renewals, amendments,
substitutions and replacements to and of any such agreement.
SUBSIDIARY SECURITY DOCUMENTS: Any (i) pledge and security
agreement pursuant to which the Borrower or any Subsidiary of the Borrower
pledges to the Collateral Agent, for the benefit of the holders of the
Obligations, the stock of any Subsidiaries of the Borrower owned by it, (ii)
security agreement, mortgage and/or assignment of leases and rents pursuant to
which any Subsidiary of the Borrower grants to the Collateral Agent, for the
benefit of the holders of the Obligations, a lien and security interest in and
to any of its real or personal property, as required pursuant to Section 5.16,
(iii) all additional documents and instruments entered into from time to time
for the purpose of securing the Obligations, as required pursuant to Section
5.16, (iv) any and all ancillary documents and instruments relating to any of
the foregoing, such as Uniform Commercial Code financing statements and stock
powers, and (v) all extensions, renewals, amendments, substitutions and
replacements to and of any of the foregoing.
TERMINATION EVENT: As to any Person (i) a Reportable Event
(other than a Reportable Event for which the 30-day notice requirement in PBGC
Regulation 2615.3(a) has been waived) with respect to a Plan or an event
described in Section 4062(e) of ERISA with respect to a Plan, (ii) the
withdrawal of such Person or any ERISA Affiliate from a Plan during a plan year
in which such Person or such ERISA Affiliate was a "substantial employer", as
such term is defined in Section 4001(a)(2) of ERISA, (iii) the incurrence of
liability by such Person or such ERISA Affiliate under Section 4064 of ERISA
upon the termination of a Plan, (iv) the distribution of a notice of intent to
terminate a Plan pursuant to Section 4041(c) of ERISA or the treatment of a Plan
amendment as a termination under Section 4041 of ERISA, (v) the institution of
proceedings to terminate a Plan by the PBGC under Section 4042 of ERISA, or (vi)
any other event or condition which might reasonably constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan.
TOTAL INDEBTEDNESS: For purposes of calculating the Total
Indebtedness to Adjusted Annualized Operating Cash Flow ratio set forth in
Subsection 6.4b, and as used in Section 5.9 (Interest Hedge Agreements), as of
the last day of a Fiscal Quarter, all of the Borrower's and Wireless'
Indebtedness, determined for such Fiscal Quarter on a consolidated basis in
accordance with GAAP. For all other purposes, as of the last day of a Fiscal
Quarter, all of the Borrower's Indebtedness, determined for such Fiscal Quarter
on a consolidated basis in accordance with GAAP.
TOTAL INDEBTEDNESS TO ADJUSTED ANNUALIZED OPERATING CASH FLOW
RATIO: The ratio of the Borrower's Total Indebtedness to the Borrower's Adjusted
Annualized
20
<PAGE> 28
Operating Cash Flow required to be maintained pursuant to Subsection 6.4b
hereof, determined on a consolidated basis in accordance with GAAP.
TRANSFER EFFECTIVE DATE: For each Assignment and Assumption
Agreement, the date upon which such Assignment and Assumption Agreement is
effective.
TRANSFEROR LENDER: The selling Lender pursuant to an
Assignment and Assumption Agreement.
UNFUNDED BENEFIT LIABILITIES: With respect to any Plan, the
amounts described in Section 4001(a)(18) of ERISA.
UNIFORM COMMERCIAL CODE: The Uniform Commercial Code as
enacted in the applicable jurisdiction, in effect on the Closing Date and as
amended from time to time.
WIRELESS: Sygnet Wireless, Inc., an Ohio corporation, and the
parent of the Borrower.
WITHDRAWAL LIABILITY: "Withdrawal liability" as defined by the
provisions of Part 1 of Subtitle E to Title IV of ERISA.
1.2 ACCOUNTING TERMS. Each accounting term not defined herein and
each accounting term partly defined herein, to the extent not defined, shall
have the meaning given it under GAAP.
1.3 RULES OF CONSTRUCTION. (i) Except as otherwise specified, all
references in any Loan Document (A) to any Person shall be deemed to include
such Person's successors and assigns, (B) to any applicable Governmental Rule
shall be deemed to include all amendments, supplements and replacements thereto
and thereof from time to time, and (C) to any Loan Document or to any other
agreement or instrument shall be deemed to include all extensions, renewals,
amendments, supplements, substitutions, replacements and waivers thereto and
thereof.
(ii) When used in any Loan Document the words "herein",
"hereof" and "hereunder" and words of similar import shall refer to such Loan
Document as a whole and not to any particular provision of such Loan Document,
and the words "Article", "Section", "Subsection", "Schedule", "Exhibit" and
"Annex" shall refer to Articles, Sections and Subsections of, and Schedules,
Exhibits and Annexes to, such Loan Document, unless otherwise specified.
(iii) Whenever the context so requires, in all Loan Documents
the use of or reference to any gender includes the masculine, feminine and
neuter genders, and all terms used in the singular shall have comparable
meanings when used in the plural and vice versa.
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<PAGE> 29
ARTICLE 2. THE REVOLVING CREDIT FACILITY
2.1 REVOLVING CREDIT COMMITMENT.
2.1a LOANS. The Lenders agree, subject to the terms and conditions
hereof and relying upon the representations and warranties herein set forth,
that the Borrower shall have the right to borrow, repay and reborrow, from the
date hereof until the Maturity Date, a principal amount not to exceed in the
aggregate the Revolving Credit Commitment at any one time outstanding.
2.1b COMMITMENTS OF THE LENDERS. Each Lender agrees severally, for
itself only, and subject to the terms and conditions of this Agreement, to make
Loans to the Borrower from time to time not to exceed an aggregate principal
amount at any time equal to such Lender's Commitment Percentage of the Revolving
Credit Commitment; PROVIDED, HOWEVER, that in no event shall any Lender be
required to advance an amount in excess of its Commitment with respect to the
Loans; and PROVIDED, FURTHER, that if any Lender fails to advance to the
Borrower its Commitment Percentage of any Loan, the remaining Lenders shall not
be required to advance to the Borrower the defaulting Lender's share of such
Loan.
2.1c MANDATORY AND VOLUNTARY REDUCTIONS OF REVOLVING CREDIT
COMMITMENT; MANDATORY AND VOLUNTARY PRINCIPAL PAYMENTS.
(i) SCHEDULED REDUCTIONS. The Revolving Credit Commitment
shall be automatically and permanently reduced by the amounts and on the dates
set forth below:
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------
REDUCED REVOLVING CREDIT
COMMITMENT REDUCTION COMMITMENT AFTER
DATE AMOUNT OF REDUCTION SCHEDULED REDUCTION
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
June 30, 1999 $ 6,000,000 $294,000,000
September 30, 1999 $ 6,000,000 $288,000,000
December 31, 1999 $ 6,000,000 $282,000,000
- ------------------------------------------------------------------------------------------------------------------
March 31, 2000 $ 9,750,000 $272,250,000
June 30, 2000 $ 9,750,000 $262,500,000
September 30, 2000 $ 9,750,000 $252,750,000
December 31, 2000 $ 9,750,000 $243,000,000
- ------------------------------------------------------------------------------------------------------------------
March 31, 2001 $ 9,750,000 $233,250,000
June 30, 2001 $ 9,750,000 $223,500,000
September 30, 2001 $ 9,750,000 $213,750,000
December 31, 2001 $ 9,750,000 $204,000,000
- ------------------------------------------------------------------------------------------------------------------
</TABLE>
22
<PAGE> 30
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------
REDUCED REVOLVING CREDIT
COMMITMENT REDUCTION COMMITMENT AFTER
DATE AMOUNT OF REDUCTION SCHEDULED REDUCTION
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
March 31, 2002 $11,250,000 $192,750,000
June 30, 2002 $11,250,000 $181,500,000
September 30, 2002 $11,250,000 $170,250,000
December 31, 2002 $11,250,000 $159,000,000
- ------------------------------------------------------------------------------------------------------------------
March 31, 2003 $13,500,000 $145,500,000
June 30, 2003 $13,500,000 $132,000,000
September 30, 2003 $13,500,000 $118,500,000
December 31, 2003 $13,500,000 $105,000,000
- ------------------------------------------------------------------------------------------------------------------
March 31, 2004 $15,750,000 $ 89,250,000
June 30, 2004 $15,750,000 $ 73,500,000
September 30, 2004 $15,750,000 $ 57,750,000
December 31, 2004 $15,750,000 $ 42,000,000
- ------------------------------------------------------------------------------------------------------------------
March 31, 2005 $21,000,000 $21,000,000
June 30, 2005 $21,000,000 -0-
- ------------------------------------------------------------------------------------------------------------------
</TABLE>
(ii) VOLUNTARY REDUCTIONS. Upon two Business Days' written
notice to the Administrative Agent, the Borrower may from time to time
voluntarily permanently reduce the Revolving Credit Commitment. Each voluntary
reduction shall be in a minimum amount of $1,000,000 or, if greater than
$1,000,000, in integral multiples of $100,000.
(iii) REDUCTIONS AS A FUNCTION OF EXCESS CASH FLOW. On or
prior to March 31 of each year, beginning on March 31, 2000, the Revolving
Credit Commitment shall be automatically and permanently reduced by an amount
equal to 50% of the Borrower's Excess Cash Flow for the Fiscal Year ended on the
preceding December 31.
(iv) REDUCTIONS AS A FUNCTION OF ASSET SALES. Simultaneously
with any sale of assets made by the Borrower, other than Permitted Dispositions,
the Revolving Credit Commitment shall be automatically and permanently reduced
by an amount equal to the Net Cash Proceeds of such asset sale.
(v) EFFECT OF REDUCTIONS. The portion of the Revolving Credit
Commitment so terminated pursuant to the preceding items (i), (ii), (iii) and
(iv) shall no longer be available for borrowing and, as of the effective date of
any such reduction, the Commitment Fee shall no longer be payable on the portion
so terminated. Simultaneously with each mandatory or voluntary permanent
reduction, the Borrower shall make a payment of the outstanding Loans equal to
the excess, if any, of (A) the aggregate principal amount of the outstanding
Loans over (B) the Revolving Credit Commitment, as so reduced. Notice of a
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<PAGE> 31
reduction, once given, shall be irrevocable. All such reductions shall be
without penalty or premium (except for amounts owing pursuant to Section 2.2, if
any).
(vi) APPLICATION OF REDUCTIONS AND PREPAYMENTS. Any and all
Revolving Credit Commitment reductions or mandatory or voluntary prepayments
made pursuant to any particular item of this Section 2.1c shall be made in
addition to, and not in lieu of, any and all Revolving Credit Commitment
reductions and mandatory and voluntary prepayments to be made pursuant to any
other item of this Section 2.1c. All such mandatory and voluntary prepayments
shall be applied to repay Base Rate Loans or Euro-Rate Loans, at the Borrower's
option, provided that the Borrower shall deliver written notice of such election
prior to or simultaneously with such election. If no election is made by the
Borrower, then all such mandatory and voluntary prepayments shall be applied by
the Administrative Agent to first repay Base Rate Loans, and any excess shall be
applied to repay Euro-Rate Loans. All mandatory prepayments and permanent
commitment reductions which occur as a function of items (iii) and (iv) above
and any voluntary permanent commitment reductions and related prepayments which
occur as a function of item (ii) above shall be applied to reduce scheduled
commitment reductions required pursuant to Subsection 2.1c(i) on a pro rata
basis. All such mandatory and voluntary prepayments shall be accompanied by all
accrued and unpaid interest thereon, all amounts due pursuant to Section
2.2(e)(iv), if any, and, in the case of a permanent reduction of the Revolving
Credit Commitment to zero, any accrued and unpaid Commitment Fees and any other
outstanding Obligations which are then due and payable.
2.1d AMOUNT OF LOANS AND REPAYMENTS. Each Base Rate Loan shall be
in a minimum amount of $1,000,000, or if in excess of $1,000,000, in integral
multiples of $100,000. Each Euro-Rate Loan shall be in a minimum amount of
$1,000,000, or if in excess of $1,000,000, in integral multiples of $500,000.
Each repayment of a Loan (except for repayments relating to mandatory or
voluntary reductions of the Revolving Credit Commitment described in Section
2.1c, and repayments due on the Maturity Date), shall be in a minimum amount of
$1,000,000.
2.1e REPAYMENT ON MATURITY DATE. On the Maturity Date the entire
outstanding principal balance of the Loans, plus all accrued and unpaid interest
thereon, any unpaid Fees relating thereto and any other outstanding Obligations
shall be due and payable, in immediately available funds.
2.1f REVOLVING CREDIT NOTES. The obligations of the Borrower to
repay, on or before the Maturity Date, the aggregate unpaid principal amount of
the Loans shall be evidenced by Revolving Credit Notes, each substantially in
the form of EXHIBIT "A", (i) drawn by the Borrower to the order of a Lender in
the maximum amount of that Lender's Commitment Percentage of the Revolving
Credit Commitment, (ii) duly executed by the Borrower and (iii) delivered to the
Administrative Agent for redelivery to such Lender. The principal amount
actually due and owing each Lender under the Revolving Credit Note
24
<PAGE> 32
payable to it shall be the aggregate unpaid principal amount of all Loans made
by such Lender, all as shown on the Loan Accounts established pursuant to
Section 2.6.
2.2 INTEREST.
2.2a INTEREST RATES. During the term hereof the Borrower, in
accordance with the provisions of this Section 2.2, shall have the option of
electing from time to time one or more of the Interest Rate Options set forth
below to be applied by the Lenders to amounts outstanding hereunder:
(i) BASE RATE AND EURO-RATE OPTIONS. Interest (A) under the
Base Rate Option shall accrue at a rate per annum equal to the sum of (1) the
Base Rate plus (2) the Applicable Margin, as set forth below, and (B) under the
Euro-Rate Option shall accrue at a rate per annum equal to the sum of (1) the
Euro-Rate plus (2) the Applicable Margin, as set forth below. In all cases the
Applicable Margin shall fluctuate in accordance with the Total Indebtedness to
Adjusted Annualized Operating Cash Flow Ratio, as follows:
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------
TOTAL INDEBTEDNESS TO ADJUSTED
ANNUALIZED OPERATING CASH
FLOW RATIO AS OF THE LAST DAY APPLICABLE MARGIN
OF THE IMMEDIATELY PRECEDING ---------------------------------------------------------------------
FISCAL QUARTER BASE RATE EURO-RATE
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Greater than 10.00:1.00 1.750% 2.750%
- ------------------------------------------------------------------------------------------------------------------
Less than or equal to 10.00:1.00 1.500% 2.500%
but greater than 8.00:1.00
- ------------------------------------------------------------------------------------------------------------------
Less than or equal to 8.00:1.00 1.250% 2.250%
but greater than 7.00:1.00
- ------------------------------------------------------------------------------------------------------------------
Less than or equal to 7.00:1.00 1.125% 2.125%
but greater than 6.50:1.00
- ------------------------------------------------------------------------------------------------------------------
Less than or equal to 6.50:1.00 1.000% 2.000%
but greater than 6.00:1.00
- ------------------------------------------------------------------------------------------------------------------
Less than or equal to 6.00:1.00 0.750% 1.750%
but greater than 5.00:1.00
- ------------------------------------------------------------------------------------------------------------------
Less than or equal to 5.00:1.00 0.500% 1.500%
but greater than 4.00:1.00
- ------------------------------------------------------------------------------------------------------------------
Less than or equal to 4.00:1.00 0.250% 1.250%
- ------------------------------------------------------------------------------------------------------------------
</TABLE>
25
<PAGE> 33
2.2b ADJUSTMENTS TO INTEREST RATES.
(i) CHANGES IN TOTAL INDEBTEDNESS TO ADJUSTED ANNUALIZED
OPERATING CASH FLOW RATIO. Interest rate adjustments resulting from changes in
the Total Indebtedness to Adjusted Annualized Operating Cash Flow Ratio shall be
made without notice to the Borrower, based on such ratio as of the end of the
most recently completed Fiscal Quarter. All adjustments shall be determined when
the Borrower's quarterly financial statements and Compliance Certificate
indicating such adjustment to be warranted have been delivered to the
Administrative Agent pursuant to Section 5.2, and such adjustments will be
effective retroactively to the first day of the Fiscal Quarter for which such
statements and Compliance Certificate were delivered.
(ii) CHANGES IN BASE RATE. The Base Rate Option shall be
adjusted from time to time, without notice to the Borrower, as necessary to
reflect any changes in the Prime Rate or the Federal Funds Rate, which
adjustments shall be automatically effective on the day of any such change.
(iii) CHANGES IN EURO-RATE RESERVE PERCENTAGE. The Euro-Rate
Option shall be adjusted from time to time, without notice to the Borrower, as
necessary to reflect any changes in the Euro-Rate Reserve Percentage, which
adjustments shall be automatically effective on the day of such change.
(iv) EVENT OF DEFAULT. Upon the occurrence of and during the
continuance of an Event of Default, the outstanding principal amount of the
Loans shall bear interest from the date of such occurrence at a rate per annum
which is equal to two percent (2%) in excess of the rate then in effect under
the Base Rate Option (i.e., the Base Rate plus the Applicable Margin plus 2%).
2.2c INTEREST RATE OPTION ELECTIONS, RENEWALS AND CONVERSIONS.
Subject to the remaining provisions of this Agreement, the Borrower shall have
the options to elect to have all or any Loans bear interest at either of the
Interest Rate Options, to renew elections of Interest Rate Options and to
convert Loans to other Interest Rate Options. Notice of each election, renewal
and conversion shall be made in accordance with Section 2.4. Elections of,
conversions to or renewals of the Base Rate Option shall continue in effect
until converted to the Euro-Rate Option. Elections of, conversions to or
renewals of the Euro-Rate Option shall expire as to each such Euro-Rate Option
at the expiration of the applicable Euro-Rate Interest Period. Any Loans
outstanding for which no election have been made shall bear interest under the
Base Rate Option.
2.2d LIMITATION ON ELECTION OF EURO-RATE OPTIONS. Each election of
the Euro- Rate Option or the prepayment of all or any Euro-Rate Loans shall be
in the minimum principal amount of $1,000,000 or, if in excess of $1,000,000, in
integral multiples of $500,000. At no time during the term hereof may there be
more than a total of five (5)
26
<PAGE> 34
separate Euro-Rate Interest Periods in effect. Upon the occurrence and during
the continuance of an Event of Default, the Borrower's right to elect, renew or
convert to Euro-Rate Loans shall be suspended.
2.2e SPECIAL PROVISIONS RELATING TO EURO-RATE OPTION.
(i) EURO-RATE UNASCERTAINABLE. In the event that on any date
on which a Euro-Rate would otherwise be set the Administrative Agent shall have
determined in good faith (which determination shall be final and conclusive)
that, by reason of circumstances affecting the London interbank market, adequate
and reasonable means do not exist for ascertaining the Euro-Rate, the
Administrative Agent shall give prompt notice of such determination to the
Borrower and the other Lenders, and until the Administrative Agent notifies the
Borrower that the circumstances giving rise to such determination no longer
exist, the right of the Borrower to borrow under, renew or convert to the
Euro-Rate Option shall be treated as a request to borrow under, renew or convert
to the Base Rate Option.
(ii) ILLEGALITY OF OFFERING EURO-RATE. If the Administrative
Agent shall determine in good faith, based on a notice from any Lender, which
determination shall be final and conclusive, that compliance by the
Administrative Agent or any Lender with any applicable Governmental Rule
(whether or not having the force of law), or the interpretation or application
thereof by any Governmental Authority has made it unlawful for such Lender to
make or maintain Euro-Rate Loans, the Administrative Agent shall give notice of
such determination to the Borrower and the Lenders. Notwithstanding any
provision of this Agreement to the contrary, unless and until the Administrative
Agent shall give notice to the Borrower that the circumstances giving rise to
such determination no longer apply:
(A) with respect to any Euro-Rate Interest Periods
thereafter commencing, interest on the corresponding Euro-Rate Loans shall be
computed and payable under the Base Rate Option; and
(B) on such date, if any, as shall be required by
law, any Euro-Rate Loans then outstanding shall be automatically renewed at the
Base Rate Option; and the Borrower shall pay to the Lenders the accrued and
unpaid interest on such Euro-Rate Loans to (but not including) such renewal
date.
The Borrower shall pay the Lenders any additional amounts reasonably necessary
to compensate the Lenders (on an after-tax basis) for any out-of-pocket costs
incurred by the Lenders as a result of any renewal pursuant to item (B) above on
a day other than the last day of the relevant Euro-Rate Interest Period,
including, but not limited to, any interest or fees payable by the Lenders to
lenders of funds obtained by them to loan or maintain the Loans so converted.
The Lenders shall furnish to the Borrower a certificate in reasonable detail
showing the calculation of the amount necessary to compensate the Lenders (on an
after-tax basis) for such costs (which certificate, in the absence of manifest
error, shall be
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conclusive), and the Borrower shall pay such amount to the Lenders, as
additional consideration hereunder, within 10 Business Days of the Borrower's
receipt of such certificate.
(iii) INABILITY TO OFFER EURO-RATE. In the event that a Lender
shall determine, in its sole but reasonable discretion, that it is unable to
obtain deposits in the London interbank market in sufficient amounts and with
maturities related to the Euro-Rate Loans which would enable such Lender to fund
such Euro-Rate Loans, then such Lender shall immediately notify the
Administrative Agent. The Administrative Agent shall then notify the Borrower
that the right of the Borrower to borrow under, convert to or renew the
Euro-Rate Option shall be suspended. Following notification of the suspension of
the Euro- Rate Option, the Borrower and the affected Lender shall negotiate in
good faith and in a timely manner for a modified Euro-Rate which will allow such
Lender to realize its anticipated and bargained-for yield. In the event that the
Borrower and the affected Lender cannot agree on a modified Euro-Rate, any
notice of borrowing under, conversion to or renewal of the Euro-Rate Option
which was to become effective during the period of suspension shall be treated
as a request to borrow under, convert to or renew the Base Rate Option with
respect to the principal amount specified therein.
(iv) INDEMNITY. In addition to the other provisions of this
Section 2.2e, the Borrower hereby agrees to indemnify the Administrative Agent
and the Lenders against any loss or expense which the Administrative Agent or
any Lender may sustain or incur as a consequence of any default by the Borrower
in failing to make any borrowing, conversion or renewal hereunder to bear
interest at the Euro-Rate Option on the scheduled date, in failing to make when
due (whether by declaration, acceleration or otherwise) any payment of any
Euro-Rate Loan or in making any payment or prepayment of any Euro-Rate Loan or
any part thereof on any day other than the last day of the relevant Euro-Rate
Interest Period, including but not limited to any premium or penalty incurred by
the Administrative Agent or any Lender in respect of funds borrowed by it for
the purpose of making or maintaining any Euro-Rate Loan as determined in good
faith by the Administrative Agent or any Lender in the exercise of its sole but
reasonable discretion. The affected Lender shall furnish to the Borrower a
certificate showing the calculation of the amount of any such loss or expense
(which certificate, absent manifest error, shall be conclusive), and the
Borrower shall pay such amount to the affected Lender within ten (10) Business
Days of the Borrower's receipt of such certificate.
2.2f YIELD PROTECTION. If any Governmental Rule or the
interpretation or application thereof by any court, any Governmental Authority
charged with the administration thereof or the compliance with any guideline or
request from any central bank or other Governmental Authority, whether or not
having the force of law:
(i) subjects the Administrative Agent or any Lender to any
tax, levy, impost, charge, fee, duty, deduction or withholding of any kind
hereunder (other than any
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tax imposed or based upon the income of the Administrative Agent or such Lender
and payable to any Governmental Authority or taxing authority of the United
States of America or any state thereof) or changes the basis of taxation of the
Administrative Agent or any Lender with respect to payments by the Borrower of
principal, interest or other amounts due from the Borrower hereunder (other than
any change which affects, and to the extent that it affects, the taxation by the
United States of America or any state thereof of the total net income of the
Administrative Agent or such Lender); or
(ii) imposes, modifies or deems applicable any reserve,
special deposit, special assessment or similar requirements against assets held
by, deposits with or for the account of or credit extended by the Administrative
Agent or any Lender (other than such requirements which are included in the
determination of the Euro-Rate hereunder);
and the result of any of the foregoing is to increase the cost to the
Administrative Agent or the affected Lender, reduce the income receivable by the
Administrative Agent or such Lender, reduce the rate of return on the
Administrative Agent's or such Lender's capital or impose any expense upon the
Administrative Agent or such Lender by an amount which the Administrative Agent
or such Lender in its sole but reasonable discretion deems to be material, the
Administrative Agent or the affected Lender shall from time to time notify the
Administrative Agent of the amount determined by such Lender (which
determination, absent manifest error, shall be conclusive) to be reasonably
necessary to compensate the Administrative Agent or such Lender (on an after-tax
basis) for such increase in cost, reduction in income, reduction in rate of
return or additional expense, and setting forth the calculations therefor, and
the Administrative Agent shall thereupon notify the Borrower. The Borrower shall
pay such amount to the Administrative Agent or the affected Lender, as
additional consideration hereunder, within ten (10) Business Days of the
Borrower's receipt of such notice from the Administrative Agent.
2.2g METHOD OF CALCULATION. In determining the amount due the
Administrative Agent and the Lenders hereunder by reason of the application of
this Section 2.2, the Administrative Agent and the Lenders may use any
reasonable averaging or attribution method; PROVIDED, HOWEVER, that the
Administrative Agent and each Lender must use reasonable efforts to minimize
such losses and costs.
2.2h INTEREST PAYMENT DATES. Interest due on all outstanding Base
Rate Loans shall be payable quarterly in arrears on the last day of each
calendar quarter for the calendar quarter just ended. The first payment of
interest under the Base Rate Option shall be due on December 31, 1996 and shall
be for the actual number of days elapsed between the Closing Date and such date.
Interest due on all outstanding Euro-Rate Loans shall be payable on the last day
of each Euro-Rate Interest Period and, for Euro-Rate Interest Periods of six
months or more, also quarterly in arrears on the last day of each successive
three-month period following the first day of such Euro-Rate Interest Period.
All accrued and unpaid interest on the Loans shall be due and payable on the
Maturity Date and, after any maturity of the
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Revolving Credit Notes or the Obligations, whether by acceleration or otherwise,
on demand until all amounts due hereunder are paid in full.
2.2i CALCULATION OF INTEREST. Interest under the Base Rate Option
shall be calculated on the basis of the actual number of days elapsed, using a
year of 365 or 366 days, as the case may be. Interest under the Euro-Rate Option
shall be calculated on the basis of the actual number of days elapsed, using a
year of 360 days. Interest for any period shall be calculated from and including
the first day thereof to but not including the last day thereof.
2.3 CAPITAL ADEQUACY. If (i) any adoption of, change in or
interpretation of any Governmental Rule, or (ii) compliance with any guideline,
request or directive of any central bank or other Governmental Authority or
quasi-Governmental Authority exercising control over banks or financial
institutions generally, including but not limited to regulations set forth at 12
C.F.R. Part 3 (Appendix A), 12 C.F.R. Part 208 (Appendix A), 12 C.F.R. Part 225
(Appendix A) and 12 C.F.R. Part 325 (Appendix A) or any court requires that the
commitments of any Lender hereunder be treated as an asset or otherwise be
included for purposes of calculating the appropriate amount of capital to be
maintained by such Lender or any corporation controlling such Lender (a "CAPITAL
ADEQUACY EVENT"), the result of which is to reduce the rate of return on such
Lender's capital as a consequence of such commitments to a level below that
which such Lender could have achieved but for such Capital Adequacy Event,
taking into consideration such Lender's policies with respect to capital
adequacy, by an amount which such Lender deems to be material, such Lender shall
promptly deliver to the Administrative Agent and the Borrower a certificate of
the amount necessary to compensate such Lender for the reduction in the rate of
return on its capital attributable to such commitments (the "CAPITAL
COMPENSATION AMOUNT"), calculated in good faith, using reasonable attribution
and averaging methods, which certificate, absent manifest error, shall be
presumed to be correct. Such amount shall be due and payable by the Borrower to
the affected Lender ten (10) Business Days after such notice is given.
2.4 REQUESTS FOR LOANS, INTEREST RATE OPTIONS AND CONVERSIONS.
Each request for a Loan and for the election, renewal or conversion to or of an
Interest Rate Option shall be made to the Administrative Agent orally or in
writing by an Authorized Officer no later than 12:00 noon. (Eastern time) (i) at
least one (1) Business Day prior thereto, with respect to Base Rate Loans and
(ii) at least three (3) Business Days prior thereto, with respect to Euro-Rate
Loans. Any oral request for a Loan shall be followed immediately by the
Borrower's written confirmation of such request, executed by an Authorized
Officer, which confirmation must set forth the amount and date of the Loan, the
Interest Rate Option selected and, if applicable, the Euro-Rate Interest Period
being selected. All written requests and confirmations shall be in the form of
EXHIBIT "B". A request from the Borrower pursuant to this Section 2.4 with
respect to a Euro-Rate Loan shall irrevocably commit the Borrower to accept such
Euro-Rate Loan on the date specified in such request. The Administrative Agent
shall notify the Lenders of each request for a Base Rate Loan or a
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Euro-Rate Loan as soon as practicable, but not later than 12:00 noon (Eastern
time) on the date on which such Loan is to be made. Each Lender shall make its
Commitment Percentage of such Loan available to the Borrower in immediately
available funds at the principal office of the Administrative Agent prior to
1:00 p.m. (Eastern time) on the date such Loan is to be made.
2.5 METHOD OF DISBURSEMENTS AND PAYMENTS. All Loans shall be made
by the Administrative Agent funding the account of the Borrower maintained at
the Administrative Agent, if any, or by the Administrative Agent making a wire
transfer into an account of the Borrower designated by the Borrower or as
otherwise directed by the Borrower to the Administrative Agent in writing. All
payments of principal, interest, Fees, costs and other amounts due hereunder and
under the other Loan Documents shall be made by the Borrower to the
Administrative Agent at the Administrative Agent's principal office at 909
Fannin, Suite 1700, Houston, Texas 77010 not later than 2:00 p.m. (Eastern time)
on the due date. All such Loans and payments shall be immediately good funds
when either transferred by the Administrative Agent to the Borrower, or when
delivered by the Borrower to the Administrative Agent, as the case may be.
2.6 LOAN ACCOUNTS. Each Lender shall open and maintain on its
books a Loan Account in the Borrower's name with respect to Loans made,
repayments, prepayments, the computation and payment of interest and other
amounts due and sums paid to such Lender hereunder and under the other Loan
Documents. Except in the case of manifest error in computation, such records
shall be presumed correct as to the amount at any time due to such Lender from
the Borrower. The failure of any Lender to make an entry in its Loan Account
shall not abrogate the Borrower's duty to repay the Obligations owned to such
Lender.
2.7 FEES
2.7a COMMITMENT FEE. The Borrower shall pay to the Administrative
Agent, for the Pro Rata benefit of the Lenders, on the last day of each calendar
quarter during the term of the Revolving Credit Commitment for the calendar
quarter just ended and on the Maturity Date, a Commitment Fee calculated on the
basis of the actual number of days elapsed, using a year of 365 or 366 days, as
the case may be, at the rate of .375% per annum on the average daily (computed
at the opening of business) unused amount of the Revolving Credit Commitment.
The first payment of the Commitment Fee shall be due on December 31, 1996 and
shall be for the actual number of days elapsed between the Closing Date and such
date.
2.7b FEES PAYABLE UNDER FEE LETTERS. The Borrower shall pay to the
Agents such fees as are described in the Fee Letters, on or prior to the payment
dates described in the Fee Letters.
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2.7c PAYMENT OF FEES. All Fees shall be deemed to be fully earned
when paid and shall be nonrefundable.
2.8 PAYMENT FROM ACCOUNTS MAINTAINED BY BORROWER. In the event
that any payment of principal, interest, Fees, other expenses or amounts due the
Lenders or any Agent under any of the Loan Documents is not paid when due, the
Administrative Agent is hereby authorized to effect such payment by debiting any
demand deposit account of the Borrower now or in the future maintained with the
Administrative Agent. This right of debiting accounts of the Borrower is in
addition to any right of setoff accorded the Lenders hereunder or by operation
of law. The Administrative Agent shall give the Borrower written notice of any
such debit within one (1) Business Day after it occurs.
ARTICLE 3. SET-OFF, SECURITY INTERESTS AND GUARANTY
3.1 SET-OFF. To secure the repayment of the Obligations, the
Borrower hereby gives to each Lender and any Participant a lien and security
interest upon and in any of the Borrower's property, credits, securities or
money which may at any time be delivered to, or be in the possession of, or owed
by such Lender and any Participant in any capacity whatever, including the
balance of any deposit account maintained by the Borrower with such Lender or
the Participant, as the case may be. The Borrower hereby authorizes each Lender
and each Participant, at any time and from time to time upon the occurrence and
during the continuance of an Event of Default, at such Lender's or the
Participant's option, to apply, at the discretion of such Lender or Participant,
to the payment of the Obligations, any and all such property, credits,
securities or money now or hereafter in the hands of the Lender or the
Participant or belonging or owed to the Borrower. Each Lender and Participant
shall give the Borrower prompt written notice of any set-off after it occurs.
3.2 PERSONAL AND REAL PROPERTY.
3.2a PERSONAL PROPERTY INTERESTS. To secure the repayment of the
Obligations, the Borrower hereby grants and agrees to cause each Subsidiary to
grant to the Collateral Agent, for and on behalf of the Lenders, a first and
prior Encumbrance, subject only to Permitted Encumbrances, in all of their
respective now owned or hereafter acquired Accounts, Chattel Paper, Documents,
Equipment, Fixtures, General Intangibles, Goods, Instruments and Inventory, all
subject to and as more fully described in the Security Documents. To further
evidence the grant of such liens and security interests, on or prior to the
Closing Date and from time to time thereafter as required to insure compliance
with this Section 3.2 and the Security Documents, upon the request of the
Collateral Agent, the Borrower shall, and shall cause each Subsidiary to, in
accordance with the provisions of Section 5.16, execute and deliver to the
Collateral Agent (i) a Security Agreement substantially in the form of EXHIBIT
"C" and (ii) all Uniform Commercial Code financing statements reasonably
requested by the Collateral Agent, so that at all times until all Obligations
have been permanently paid
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in full and the Revolving Credit Commitment has been terminated, the Borrower
and each of its Subsidiaries have granted to the Collateral Agent, for and on
behalf of the Lenders, a first and prior lien and security interest, subject to
Permitted Encumbrances, in and to all personal property owned by it.
3.2b BORROWER'S OBLIGATION TO UPDATE PERSONAL AND REAL
PROPERTY INFORMATION. The provisions of Subsection 3.2a to the contrary
notwithstanding, the Borrower shall be required to deliver to the Collateral
Agent not more frequently than once each year an updated Perfection Certificate
so that the Collateral Agent can prepare additional Security Documents and
Subsidiary Security Documents for execution and delivery by the Borrower and/or
its Subsidiaries, if needed, to insure compliance with Subsection 3.2a.
3.3 PLEDGE OF BORROWER'S AND SUBSIDIARIES STOCK. To secure the
repayment of the Obligations, the Borrower agrees to (i) cause Wireless and any
other shareholders of the Borrower to grant to the Collateral Agent, for and on
behalf of the holders of the Obligations, from time to time, a first and prior
lien and security interest in all of the issued and outstanding capital stock of
the Borrower and (ii) grant to the Collateral Agent, for and on behalf of the
Lenders, from time to time, a first and prior lien and security interest in all
of the issued and outstanding capital stock of the Subsidiaries of the Borrower
owned by the Borrower. To evidence the grant of such liens, on or prior to the
Closing Date and from time to time thereafter as required to insure compliance
with this Section 3.3 and upon the request of the Collateral Agent, the Borrower
shall and shall cause each of its shareholders and its Subsidiaries to execute
and deliver to the Collateral Agent (i) a Pledge Agreement substantially in the
form of EXHIBIT "D", (ii) all certificates evidencing ownership of such stock,
and (iii) an executed, undated blank stock power for each such stock
certificate, so that at all times until all Obligations have been permanently
paid in full and the Revolving Credit Commitment has been terminated the
shareholders of the Borrower and its Subsidiaries have granted to the Collateral
Agent, for and on behalf of the holders of the Obligations, a first and prior
lien in all of the issued and outstanding capital stock of the Borrower and each
of its Subsidiaries.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this
Agreement and to make the Loans herein provided for, the Borrower makes the
following representations and warranties to the Agents and the Lenders, all of
which shall survive the execution and delivery of this Agreement and the making
of the Loans:
4.1 EXISTENCE AND ORGANIZATION. The Borrower and Wireless are
corporations duly organized, validly existing and in good standing under the
laws of the State of Ohio. Each Subsidiary of the Borrower is duly organized,
validly existing and in good standing under the laws of the state of its
formation. The Borrower, each Subsidiary of the Borrower
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and Wireless are duly qualified or licensed and in good standing as foreign
entities authorized to do business in each jurisdiction where the failure to be
so qualified or licensed would have a Material Adverse Effect on the Borrower or
Wireless, as the case may be.
4.2 CAPITALIZATION; OWNERSHIP; TITLE TO SHARES. The authorized
capital stock of Wireless and the Borrower is described on SCHEDULE 4.2. All of
the issued and outstanding capital stock of the Borrower is owned by Wireless,
and all of the issued and outstanding capital stock of Wireless is owned as
described on SCHEDULE 4.2. All of the issued and outstanding shares of capital
stock of the Borrower and Wireless are fully paid and nonassessable. There are
no options, warrants or other rights outstanding to purchase any shares of the
Borrower or Wireless, nor are any securities of the Borrower or Wireless
convertible into or exchangeable for its common stock, except as shown on
SCHEDULE 4.2.
4.3 SUBSIDIARIES AND OTHER INVESTMENTS. Except for the ownership
by Wireless of the issued and outstanding capital stock of the Borrower, neither
the Borrower nor Wireless has, as of the Closing Date, any Subsidiaries or any
ownership interests in any other Person.
4.4 POWER AND AUTHORITY. The Borrower and its Subsidiaries have
the lawful power to own or lease their respective properties and to engage in
the businesses they now conduct or propose to conduct. The Borrower is duly
authorized to enter into, execute, deliver and perform all of the terms and
provisions of this Agreement and the other Loan Documents to which it is a
party, to incur the Obligations and to perform its obligations under the Loan
Documents to which it is a party. All necessary corporate action required to
authorize the execution, delivery and performance of this Agreement, the
Revolving Credit Notes and the other Loan Documents to which the Borrower is a
party has been properly taken by the Borrower.
4.5 VALIDITY AND BINDING EFFECT. Each Loan Document has been
duly executed and delivered by the Borrower, the Subsidiary or Wireless which is
a party thereto. This Agreement and the other Loan Documents constitute legal,
valid and binding obligations of the Borrower or such Subsidiary, enforceable
against the Borrower or such Subsidiary in accordance with their respective
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other similar
laws affecting the enforcement of creditors' rights generally and except as such
enforceability may be limited by the availability of equitable remedies.
4.6 NO CONFLICT. Neither the execution and delivery of this
Agreement and the other Loan Documents by the Borrower or the Subsidiary which
is a party thereto, nor the consummation of the transactions herein or therein
contemplated or compliance with the terms and provisions hereof or thereof by
the Borrower or such Subsidiary (i) will materially conflict with, or will
constitute a material default under or result in any material breach of (A) the
terms and conditions of the Borrower's or such Subsidiary's articles or
certificate of
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incorporation, by-laws, regulations or other organizational documents or (B) any
Governmental Rule or any material agreement, instrument, order, writ, judgment,
injunction, decree or license, including but not limited to their respective
Governmental Approvals and FCC Licenses, to which the Borrower or such
Subsidiary is a party or by which it is bound or to which it is subject, if such
event described in this item (B) would have a Material Adverse Effect, or (ii)
will result in the creation or enforcement of any Encumbrance whatsoever upon
any property, whether now owned or hereafter acquired, of the Borrower or such
Subsidiary, except for Permitted Encumbrances.
4.7 BUSINESS. The Borrower and its Subsidiaries are engaged
only in the business of owning, constructing, managing, operating and investing
in Cellular Systems, paging businesses, and other wireless communication and
related businesses.
4.8 CELLULAR SYSTEMS; GOVERNMENTAL APPROVALS. (i) All of the
Borrower's and its Subsidiaries' Cellular Systems are described on SCHEDULE 4.8.
The Borrower and each Subsidiary has all requisite power and authority and has
received all FCC Licenses (including, without limitation, all MSA FCC Licenses
and all RSA FCC Licenses) required under the Communications Act of 1934, as
amended, and the rules, regulations and orders promulgated or issued by the FCC
thereunder, and all other Governmental Approvals, required in connection with
the ownership, construction, erection, installation, operation and maintenance
by it of its Cellular Systems, and the conduct of the present and proposed
businesses of the Borrower and such Subsidiaries to the extent that failure to
have an FCC License or other Governmental Approval would cause a Material
Adverse Effect. All MSA FCC Licenses and RSA FCC Licenses and all state public
utility commission licenses and approvals have been validly issued and are in
full force and effect (except as identified on SCHEDULE 4.8), and all fees and
other amounts owed by the Borrower and such Subsidiaries with respect thereto
have been paid. All Governmental Approvals other than MSA FCC Licenses and RSA
FCC Licenses and state public utility commission licenses and approvals which
are material to the operation of the Borrower's and its Subsidiaries' Cellular
Systems and other businesses have been validly issued and are in full force and
effect, and all fees and other amounts owed by the Borrower and such
Subsidiaries with respect thereto have been paid (except to the extent that
failure to obtain or maintain any such other Governmental Approval or pay any
such fee or other amount relating to any such other Governmental Approval would
not have a Material Adverse Effect).
(ii) Set forth on Part I of SCHEDULE 4.8 hereto is a complete list of
all MSA FCC Licenses and RSA FCC Licenses and state public utility commission
licenses and approvals of the Borrower and its Subsidiaries. Except as set forth
on Part II of SCHEDULE 4.8 (A) each Governmental Approval, except those the
failure of which to obtain or maintain would not have a Material Adverse Effect,
is validly issued and in full force and effect, and constitute in all material
respects all of the authorizations by the FCC and other Governmental Authorities
necessary for the operation of the Borrower's and its Subsidiaries' businesses
including, without limitation, the operation of the Cellular Systems in the same
manner as
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they are now presently conducted; (B) the Borrower and its Subsidiaries have
fulfilled and performed all of their respective obligations with respect to
their respective Governmental Approval except those the failure of which to
obtain or maintain would not have a Material Adverse Effect, and complete and
correct copies of all presently existing MSA FCC Licenses and RSA FCC Licenses
and state public utility commission licenses and approvals have been delivered
to the Agents; (C) no event has occurred that (1) results in, or after notice or
lapse of time or both would result in, revocation or termination of any MSA or
RSA FCC License or any state public utility commission license or approval, or
(2) materially and adversely affects or in the future may (so far as the
Borrower can now reasonably foresee) materially adversely affect any of the
rights of the Borrower or any Subsidiary under any other Governmental Approval;
(D) all filings of reports, applications, documents, instruments and
information, except those the failure of which to file would not have a Material
Adverse Effect, required to be made by the Borrower or any Subsidiary with any
Governmental Authority pursuant to applicable Governmental Rules or the
activities of the Borrower or any of its Subsidiaries with respect thereto
including, without limitation, the operation of the Cellular Systems, have been
made; (E) except as set forth on Part III of SCHEDULE 4.8, there is no judgment,
decree, order, action, inquiry, investigation or other proceeding of any kind
which is outstanding, pending or threatened in connection with the Borrower's or
any Subsidiary's Governmental Approvals, whether brought by the FCC or by
another Governmental Authority which, if adversely decided, would have a
Material Adverse Effect; (F) the Cellular Systems are being operated in
substantial compliance with all rules and regulations of the FCC and other
Governmental Authorities applicable to the Cellular Systems; and (G) the
Borrower has no reason to believe that the MSA FCC Licenses and RSA FCC Licenses
and state public utility commission licenses and approvals listed and described
on Part I of SCHEDULE 4.8 will not be renewed in the ordinary course.
4.9 FINANCIAL MATTERS.
4.9a HISTORICAL FINANCIAL STATEMENTS. The Borrower has delivered to
the Agents audited financial statements for the Fiscal Year ended December 31,
1995 and unaudited quarterly financial statements for the Fiscal Quarter ended
June 30, 1996 for Wireless (which was formerly SYGNET Communications, Inc.) and
Wilcom Corporation. Such financial statements are complete and correct in all
material respects, subject to year-end adjustments, and fairly present the
financial condition of Wireless (formerly SYGNET Communications, Inc.) and
Wilcom Corporation in all material respects and the results of their operations
as of the dates and for the periods referred to, and have been prepared in
accordance with GAAP throughout the periods involved. The Borrower has no
material liabilities, whether direct or indirect, fixed or contingent, and no
liability for taxes, long-term leases or unusual forward or long-term
commitments as of the date of such financial statements which are not reflected
in such financial statements or in the notes thereto. The Borrower has delivered
to the Agents the unaudited financial statements of Horizon Cellular Telephone
Company of Chautauqua L.P., Horizon Cellular Telephone Company of Crawford L.P.,
and Horizon Cellular Telephone Company of Indiana L.P. for the six-month period
ending June 30, 1996
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and to the best of the Borrower's knowledge such financial statements are
complete and correct in all material respects.
4.9b FINANCIAL PROJECTIONS. The Borrower has delivered to the
Administrative Agent financial projections of the Borrower for the nine-year
period beginning with the Fiscal Year ending December 31, 1996. Such projections
are based upon reasonable assumptions and set forth a reasonable range of
possible results in light of the history of the Borrower's business, present and
foreseeable conditions and the intentions of the Borrower's management.
4.10 MATERIAL ADVERSE CHANGE. Since December 31, 1995, there has
been no Material Adverse Change and there have been no events or developments
that individually or in the aggregate have had a Material Adverse Effect.
4.11 LITIGATION. There are no actions, suits, proceedings or
investigations pending or, to the Borrower's knowledge, threatened against the
Borrower, any of its Subsidiaries, Wireless or any of their respective
businesses, operations, properties, Cellular Systems, prospects, profits or
condition (financial or otherwise), at law or in equity, before any Governmental
Authority which, individually or in the aggregate, if adversely determined,
could reasonably be expected to have a Material Adverse Effect, or which purport
to affect the rights and remedies of the Agents and the Lenders pursuant to the
Loan Documents or which purport to restrain or enjoin (either temporarily,
preliminarily or permanently) the performance by the Borrower or Wireless of any
action contemplated by any of the Loan Documents. All pending and, to the
Borrower's knowledge, threatened material actions, suits, proceedings and
investigations affecting the Borrower, its Subsidiaries or Wireless in existence
on the Closing Date are set forth on SCHEDULE 4.11.
4.12 COMPLIANCE WITH LAWS. The Borrower and its Subsidiaries have
duly complied with, and their respective properties, Cellular Systems, business
operations and leaseholds are in compliance in all material respects with all
Governmental Rules (other than Governmental Rules of the FCC, which are
addressed in Section 4.8) applicable to the Borrower, its Subsidiaries, their
respective properties and the conduct of their respective businesses, except
where the failure to comply will not have a Material Adverse Effect.
4.13 MATERIAL CONTRACTS. SCHEDULE 4.13 lists certain contracts
relating to the business operations of the Borrower and its Subsidiaries,
including without limitation all Material Contracts relating to the business
operations of the Borrower and its Subsidiaries. All such Material Contracts are
valid, binding and enforceable upon the Borrower or the Subsidiary which is a
party thereto and, to the best of the Borrower's knowledge, each of the other
parties thereto in accordance with their respective terms, except to the extent
that such invalidity, non-binding effect or unenforceability would not cause a
Material Adverse Change. Neither the Borrower nor any of its Subsidiaries is in
default of any material provision of any such Material Contract to which it is a
party, and there is no default
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thereunder, to the Borrower's knowledge, with respect to parties other than the
Borrower and its Subsidiaries, except to the extent that such default would not
cause a Material Adverse Change as to the Borrower and its Subsidiaries.
4.14 LABOR MATTERS; PAYMENT OF WAGES. Neither the Borrower nor
any of its Subsidiaries is a party to any collective bargaining agreement, and
there are no strikes, work stoppages, material grievances, disputes or
controversies with any union or any other organization of the Borrower's or its
Subsidiaries' employees, or threats of strikes, work stoppages or any asserted
pending demands for collective bargaining by any union or organization, except
to the extent that such strikes, work stoppages, material grievances, disputes
or controversies would not cause a Material Adverse Change. The Borrower has
not, within the two-year period preceding the date hereof, taken any action
which would have constituted or resulted in a "plant closing" or "mass layoff"
within the meaning of the Federal Worker Adjustment and Retraining Notification
Act of 1988 or any similar applicable Federal, state or local law. The
procedures by which the Borrower and its Subsidiaries have hired or will hire
their respective employees complies and will comply in all respects with each
collective bargaining agreement to which the Borrower or such Subsidiary is a
party and all applicable Federal, state and local laws, except to the extent
that such failure to comply would not cause a Material Adverse Change. The
Borrower and its Subsidiaries are in compliance with the Fair Labor Standards
Act, as amended, and have paid all minimum and overtime wages required by law to
be paid to their respective employees, except for violations which would not
have a Material Adverse Effect.
4.15 FISCAL YEAR. The Fiscal Year of the Borrower ends on
December 31 of each year.
4.16 CONDITION OF AND TITLE TO ASSETS. The Borrower and its
Subsidiaries have good title to their respective properties and assets except
for defects in title which, taken as a whole, are not material to the Borrower
or such Subsidiary. As of the date hereof, none of the assets of the Borrower or
any Subsidiary is subject to any Encumbrances except for Permitted Encumbrances
in existence on the Closing Date. Except for financing statements evidencing
Permitted Encumbrances, no currently effective financing statement under the
Uniform Commercial Code is in effect in any jurisdiction and no other filing
which names the Borrower or any of its Subsidiaries as debtor or which covers or
purports to cover any of the assets of the Borrower or any of its Subsidiaries
is currently effective and on file in any state or other jurisdiction, and
neither the Borrower nor any of its Subsidiaries has signed any such financing
statement or filing or any security agreement authorizing any secured party
thereunder to file any such financing statement or filing. All of the assets and
properties of the Borrower and its Subsidiaries that are necessary for the
operation of their respective businesses are in good working condition and are
able to serve the functions for which they are currently being used, except for
ordinary wear and tear, and except as would not have a Material Adverse Effect.
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4.17 TAX RETURNS AND PAYMENTS. The Borrower and its Subsidiaries
have filed all Federal, state, local and other tax returns required by law to be
filed. The Borrower and its Subsidiaries have paid all taxes, assessments and
other governmental charges levied upon the Borrower, such Subsidiary or any of
its properties, assets, income or franchises which are due and payable, other
than (i) those presently payable without penalty or interest, (ii) those which
are being contested in good faith by appropriate proceedings and (iii) those
which, if not paid, would not, in the aggregate, have a Material Adverse Effect;
and as to each of items (i), (ii) and (iii) the Borrower or such Subsidiary has
set aside on its books reserves for such claim as are determined to be adequate
by application of GAAP. The charges, accruals, and reserves on the books of the
Borrower and its Subsidiaries in respect of Federal, state, local and other
taxes and assessments for all fiscal periods to date are adequate, and the
Borrower knows of no unpaid assessments for additional Federal, state, local or
other taxes for any such fiscal period or any basis therefor.
4.18 INTELLECTUAL PROPERTY. The Borrower and its Subsidiaries own
or license all the material patents, patent applications, trademarks, trademark
applications, permits, service marks, trade names, copyrights, copyright
applications, licenses, franchises, authorizations and other intellectual
property rights that are necessary for the operations of their respective
businesses, without infringement upon or conflict with the rights of any other
Person with respect thereto. To the best knowledge of the Borrower, no slogan or
other advertising, device, product, process, method, substance, part or
component or other material now employed, or now contemplated to be employed, by
the Borrower or any of its Subsidiaries infringes upon or conflicts with any
rights owned by any other Person, and no claim or litigation regarding any of
the foregoing is pending or, to the knowledge of the Borrower, threatened. No
patent, invention, device, application, and no statute, law, rule, regulation,
standard or code involving the Borrower's or any of its Subsidiaries'
intellectual property is pending or, to the knowledge of the Borrower, proposed,
except where the consequences in the aggregate have no Material Adverse Effect.
All of the Borrower's and its Subsidiaries' material patents, trademarks,
permits, service marks, trade names, copyrights, licenses, franchises and
authorizations are listed on SCHEDULE 4.18.
4.19 INSURANCE. The Borrower and its Subsidiaries currently
maintain insurance which meets or exceeds the requirements of Section 5.8 hereof
and the applicable insurance requirements set forth in the other Loan Documents,
and such insurance is provided by insurers meeting the requirements of Section
5.8 and is of such types and at least in such amounts as are customarily carried
by, and insures against such risks as are customarily insured against by similar
businesses similarly situated and owning, leasing and operating similar
properties to those owned, leased and operated by the Borrower and its
Subsidiaries. All of such insurance policies, which are listed on SCHEDULE 4.19,
are valid and in full force and effect. No notice has been given or claim made
and no grounds exist to cancel or avoid any of such policies or to reduce the
coverage provided thereby.
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4.20 CONSENTS AND APPROVALS. Except for (i) the filing of the
UCC-1 financing statements contemplated by Section 3.2, (ii) filing of the
appropriate Security Document with the United States Patent and Trademark Office
and (iii) approvals required by the FCC in order to enforce certain provisions
of the Security Documents, no order, authorization, consent, license, validation
or approval of, or notice to, filing, recording, or registration with any
Governmental Authority, or the exemption by any such Governmental Authority, is
required to authorize, or is required in connection with, (i) the execution,
delivery and performance of any of the Loan Documents or (ii) the legality,
binding effect or enforceability of any such Loan Document.
4.21 NO DEFAULTS OR MATERIAL ADVERSE CHANGES. No event has occurred
and is continuing and no condition exists or will exist after giving effect to
the Loans to be made on the Closing Date which constitutes a Default or an Event
of Default. Neither the Borrower nor any Subsidiary is in violation of (i) any
term or provision of its articles of incorporation, by-laws, regulations or
other organizational documents or (ii) any material agreement or instrument to
which it is a party or by which it or any of its properties may be bound or
subject, which violation would constitute a Material Adverse Change.
4.22 HORIZON ACQUISITION. The Horizon Acquisition has been
consummated in accordance in all material respects with the terms of the Horizon
Acquisition Documents and no deviations from the terms of the Horizon
Acquisition Documents could reasonably be expected to have a Material Adverse
Effect, all consideration required to be paid in connection therewith on or
prior to the Closing Date has been paid and all conditions precedent to the
consummation thereof have been satisfied or waived. Except for such assets
acquired directly by the Borrower, all assets purchased by Wireless pursuant to
the Horizon Acquisition have been contributed to the Borrower or title thereto
has been assigned to the Borrower in each case as a capital contribution.
4.23 STRUCTURALLY SUBORDINATED INDEBTEDNESS. Structurally
Subordinated Indebtedness in the principal amount of $110,000,000 has been
issued by Wireless in accordance with the terms of the Structurally Subordinated
Indebtedness Documents and Wireless has received the net proceeds of such
issuance in an amount not less than $95,000,000.
4.24 PRIORITY. Assuming the execution by the Collateral Agent of
the Security Documents and the filing by the Collateral Agent of the Security
Documents in all appropriate governmental filing offices, the Security Interest
(except for types of collateral possession of which is required for perfection)
is a valid and perfected first priority security interest in the Collateral in
favor of the Collateral Agent, for the benefit of the Lenders, securing, in
accordance with the terms of the Security Documents, the Obligations, subject to
no Encumbrances other than Permitted Encumbrances. The Security Interests
created by the Security Documents are enforceable as security for the
Obligations in accordance with their terms with respect to the Collateral
subject, as to enforcement of remedies, to the
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qualification that enforcement may be limited by bankruptcy, insolvency,
liquidation, reorganization, reconstruction and other similar laws affecting
enforcement of creditors' rights generally (insofar as any such law relates to
the bankruptcy, insolvency or similar event of the Borrower or any of its
Subsidiaries, as the case may be).
4.25 SOLVENCY. As of the Closing Date and after giving effect
to the transactions contemplated by the Loan Documents (i) the property of the
Borrower, at a fair valuation, will exceed its debt; (ii) the capital of the
Borrower will not be unreasonably small to conduct its business; (iii) the
Borrower will not have incurred debts, or have intended to incur debts, beyond
its ability to pay such debts as they mature; and (iv) the present fair salable
value of the assets of the Borrower will be greater than the amount that will be
required to pay its probable liabilities (including debts) as they become
absolute and matured. For purposes of this Section, "debt" means any liability
on a claim, and "claim" means (i) the right to payment, whether or not such
right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, undisputed, legal, equitable, secured or unsecured, or (ii)
the right to an equitable remedy for breach of performance if such breach gives
rise to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured, unmatured, undisputed, secured
or unsecured.
4.26 PLANS AND BENEFIT ARRANGEMENTS. (i) All Plans and Benefit
Arrangements maintained by the Borrower or any ERISA Affiliate for employees are
set forth on SCHEDULE 4.26. No Borrower and no ERISA Affiliate has made any
promises of retirement or other benefits to employees or former employees (A)
except as set forth in any Plan or Benefit Arrangement, (B) except for such
promises under unfunded plans maintained primarily for the purpose of providing
deferred compensation for a select group of management or highly compensated
employees, which in the aggregate are not material in amount, and (C) except for
any other promises which in the aggregate are not material in amount.
(ii) Each Plan and Benefit Arrangement has been maintained and
administered in all material respects in compliance with ERISA and the Internal
Revenue Code and all rules, orders and regulations issued thereunder.
(iii) The Internal Revenue Service has determined that each
Plan and Benefit Arrangement which constitutes an employee pension benefit plan
as defined in Section 3(2) of ERISA and which is intended to qualify under
Section 401(a) of the Internal Revenue Code so qualifies under Section 401(a) of
the Internal Revenue Code, and that the trusts related thereto are exempt from
tax under the provisions of Section 501(a) of the Internal Revenue Code. Nothing
has occurred with respect to any such Plan or Benefit Arrangement or to the
related trusts since the date of the most recent favorable determination letter
issued by the Internal Revenue Service which has affected or may reasonably be
expected to affect adversely such qualification or exemption.
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(iv) The Borrower and each ERISA Affiliate have complied fully
in all material respects with their respective obligations under the minimum
funding standards of ERISA and the Internal Revenue Code with respect to each
Plan and Money Purchase Plan. No Borrower and no ERISA Affiliate has sought a
waiver of the minimum funding standard under Section 412 of the Internal Revenue
Code or has applied for an extension of any amortization period under Section
412 of the Internal Revenue Code with respect to any Plan or Money Purchase
Plan. No Borrower and no ERISA Affiliate has failed to make any contribution or
payment to any Plan which has resulted or could reasonably be expected to result
in the imposition of a lien under ERISA or the Internal Revenue Code against the
property or rights to property of the Borrower or any ERISA Affiliate.
(v) No Unfunded Benefit Liabilities exist with respect to any
Plans, and no Unfunded Benefit Liabilities would exist with respect to any Plan
if such Plan were terminated immediately.
(vi) No Reportable Event (other than a Reportable Event for
which the 30- day notice requirement in PBGC Regulation 2615.3(a) has been
waived) has occurred with respect to any Plan.
(vii) No Termination Event has occurred or is reasonably
anticipated to occur with respect to any Plan which has resulted in or which
could result in the incurrence by the Borrower or any ERISA Affiliate of any
liability to the PBGC under Title IV of ERISA which has not been discharged or
satisfied. No such Termination Event is reasonably anticipated to occur which
could reasonably be expected to result in an Encumbrance in favor of the PBGC
against the property or rights to property of the Borrower or any ERISA
Affiliate.
(viii) Neither the Borrower nor any ERISA Affiliate which is a
"party in interest" (as that term is defined in Section 3(14) of ERISA) or a
"disqualified person" (as that term is defined in Section 4975 of the Internal
Revenue Code) with respect to any "employee benefit plan" (as defined in Section
3(3) of ERISA), has engaged in a "prohibited transaction" (as defined in Section
406 of ERISA or Section 4975 of the Internal Revenue Code) involving any such
employee benefit plan which would reasonably be expected to subject the Borrower
or such ERISA Affiliate to the tax or penalty imposed under Section 502(i) of
ERISA and Section 4975 of the Internal Revenue Code.
(ix) Neither the Borrower nor any ERISA Affiliate currently
contributes to, or is obligated to contribute to, or is a member of, any
Multiemployer Plan. No Borrower and no ERISA Affiliate has incurred, or is
reasonably expected to incur, any Withdrawal Liability to any Multiemployer
Plan.
(x) The Borrower and each ERISA Affiliate have complied in
all material respects with all requirements of Sections 10001 and 10002 of the
Consolidated Omnibus
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Budget Reconciliation Act of 1985 (Public Law No. 99-272); Title I, Subtitle B,
Part 6 of ERISA; and Section 4980B of the Internal Revenue Code.
(xi) No Borrower and no ERISA Affiliate has entered into any
transaction described in Section 4069(a) of ERISA.
(xii) No Benefit Arrangement provides post-retirement welfare
benefits of any type which would have a material adverse effect on the financial
condition of the Borrower and the ERISA Affiliates taken as a whole and which
would be required to be accounted for in the income statement, balance sheet and
footnotes of the financial report of the Borrower or any ERISA Affiliate in the
manner described in the Financial Accounting Standards Board, Proposed Statement
of Financial Accounting Standards, EMPLOYER'S ACCOUNTING FOR POST-RETIREMENT
BENEFITS OTHER THAN PENSIONS, if the same were effective for the current Fiscal
Year of the Borrower or any ERISA Affiliate.
4.27 ENVIRONMENTAL MATTERS. (i) To the best of the Borrower's
knowledge, except as set forth on SCHEDULE 4.27:
(A) the Borrower and its Subsidiaries are in
material compliance with all applicable Environmental Laws;
(B) there has been no material Contamination
or material release of Hazardous Substances at, upon, under or within any
property owned or leased by the Borrower or any Subsidiary, and there has been
no Contamination or release of Hazardous Substances on any other property that
has migrated or threatens to migrate to any property owned or leased by the
Borrower or any Subsidiary;
(C) there are not now and, to the best of
the Borrower's knowledge never have been, underground or above-ground storage
tanks at any property owned or leased by the Borrower or any Subsidiary;
(D) there are no transformers, capacitors or
other items of Equipment containing PCBs, violative of applicable Environmental
Law, at any property owned or leased by the Borrower or any Subsidiary;
(E) other than materials used, produced,
held, transported and disposed of in accordance with all Environmental Laws, the
Borrower and its Subsidiaries have not used in their respective operations, and
the properties of the Borrower is not now and has never been used by the
Borrower or such Subsidiary (or, to the best knowledge of the Borrower, by any
predecessor in possession or other Person) for treatment, generation, storage,
recycling, or disposal of Hazardous Substances;
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(F) no Hazardous Substances (except for
gasoline and other fuels stored in compliance with Environmental Laws) are
present at any property owned or leased by the Borrower or any Subsidiary, nor
will any Hazardous Substances be present upon any such property or in the
operation thereof by the Borrower or any Subsidiary, in quantities which
constitute a hazard to the environment, except for Hazardous Substances which
are transported, used, stored, disposed of and otherwise handled in accordance
with all Environmental Laws, in proper storage containers; and
(G) All material permits and authorizations
required under Environmental Laws for all operations of the Borrower and its
Subsidiaries have been duly issued and are in full force and effect, including
but not limited to those for air emissions, water discharges and treatment,
storage tanks and the generation, treatment, storage and disposal of Hazardous
Substances.
(ii) Except as set forth in SCHEDULE 4.27, there are no past,
pending or, to the best of the Borrower's knowledge, threatened Environmental
Claims against the Borrower, any of its Subsidiaries or any of the property of
the Borrower or any Subsidiary; and there is no condition or occurrence on any
property owned or leased by the Borrower or any Subsidiary that could reasonably
be anticipated (A) to form the basis of an Environmental Claim against the
Borrower, any Subsidiary or its properties or (B) to cause any property owned or
leased by the Borrower or any Subsidiary to be subject to any restrictions on
its ownership, occupancy or transferability under any Environmental Law.
(iii) Except as set forth in SCHEDULE 4.27, no notice relating
to Hazardous Substances is contained in any deed relating to any property owned
or leased by the Borrower or any Subsidiary, and there are no facts or
conditions on any such property that would require that such a notice be placed
in the deed to any such property.
(iv) Except as set forth in SCHEDULE 4.27, no portion of any
property owned or leased by the Borrower or any Subsidiary contains
asbestos-containing material that is or threatens to become friable.
4.28 MARGIN STOCK. The Borrower is not engaged principally or as
one of its important activities in the business of extending credit for the
purpose, immediately, incidentally or ultimately, of purchasing or carrying
margin stock (within the meaning of Regulation U). No Loan will be used,
immediately, incidentally or ultimately, to purchase or carry any margin stock
or to extend credit to others for the purpose of purchasing or carrying margin
stock, or for any other purpose which would violate or be inconsistent with any
of the regulations of the Board of Governors of the Federal Reserve System.
4.29 INVESTMENT COMPANY ACT. The Borrower is not an "investment
company" registered or required to be registered under the Investment Company
Act of 1940, as amended from time to time, or a company under the "control" of
an "investment company",
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as those terms are defined in such Act, and shall not become such an "investment
company" or under such "control."
4.30 PUBLIC UTILITY HOLDING COMPANY ACT. The Borrower is not a
"holding company," or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company" or a "subsidiary company" of a "holding
company" within the meaning of the Public Utility Holding Company Act of 1935,
as amended from time to time.
4.31 FULL DISCLOSURE. Neither this Agreement nor any of the other
Loan Documents or any other document, certificate or statement furnished to the
Agents or the Lenders by or on behalf of the Borrower or its Subsidiaries
pursuant to this Agreement contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
contained herein and therein, in light of the circumstances under which they
were made, not misleading. There is no fact known to the Borrower which
materially and adversely affects the business, property, assets, financial
condition, results of operations or prospects of the Borrower or any of its
Subsidiaries which has not been set forth in this Agreement or in the other
documents, certificates and statements (financial or otherwise) furnished to the
Agents and the Lenders by or on behalf of the Borrower or any Subsidiary prior
to or on the date hereof in connection with the transactions contemplated
hereby.
ARTICLE 5. AFFIRMATIVE COVENANTS
From the date hereof and thereafter until the termination of
the Revolving Credit Commitment and until the Revolving Credit Notes and the
other Obligations of the Borrower hereunder are permanently paid in full, the
Borrower agrees, for the benefit of the Agents and the Lenders, that it will
comply with and cause its Subsidiaries to comply with each of the following
affirmative covenants:
5.1 USE OF PROCEEDS. The Loans shall be used by the Borrower only
for the following purposes:
(i) To repay all outstanding principal and all accrued and
unpaid interest on Indebtedness owed to the lenders under the Existing Credit
Agreement;
(ii) To make Permitted Acquisitions, Permitted Payments and
Capital Expenditures;
(iii) For the Borrower's and its Preferred Subsidiaries'
working capital and general corporate purposes;
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(iv) To pay transaction costs in connection with the Revolving
Credit Commitment and the Loan Documents; and
(v) To pay directly, or to advance to Wireless to pay, a
portion of the purchase price and transaction costs relating to the Horizon
Acquisition.
5.2 DELIVERY OF FINANCIAL STATEMENTS AND OTHER INFORMATION. During
the term hereof, the Borrower shall deliver or cause to be delivered to the
Administrative Agent for redelivery to each Lender the following financial
statements and other information:
5.2a ANNUAL FINANCIAL STATEMENTS. As soon as available and in any
event within 120 days after the end of each Fiscal Year of each of Wireless and
the Borrower, a balance sheet as of the end of such Fiscal Year and the related
statements of income, retained earnings and cash flows for such Fiscal Year,
setting forth in each case in comparative form the figures for the previous
Fiscal Year, all prepared on a consolidated basis and in accordance with GAAP
and presenting fairly the financial condition of Wireless and its Subsidiaries
and the Borrower and its Subsidiaries in such reasonable detail as the Agents
may request from time to time, all of the foregoing to be audited by and
accompanied by an unqualified statement of a recognized certified public
accounting firm reasonably acceptable to the Agents;
5.2b QUARTERLY FINANCIAL STATEMENTS. As soon as available and in
any event within 60 days after the end of each Fiscal Quarter of each of
Wireless and the Borrower, a balance sheet as of the end of such Fiscal Quarter
and the related statements of income and cash flows for such Fiscal Quarter and
for the year-to-date period ending on the last day of such Fiscal Quarter,
setting forth in each case the figures for such Fiscal Quarter and such
year-to-date period and, as to the Borrower, a comparison of such figures to the
Borrower's budget, all prepared on a consolidated basis and in accordance with
GAAP and presenting fairly the financial condition of Wireless and its
Subsidiaries and the Borrower and its Subsidiaries in such detail as the Agents
may reasonably request from time to time and certified as to fairness of
presentation, GAAP and consistency by the Chairman, President or Chief Financial
Officer of the Borrower or Wireless, as the case may be;
5.2c COMPLIANCE CERTIFICATE. Simultaneously with the delivery of
each set of annual and quarterly financial statements referred to in Sections
5.2a and 5.2b, an executed, completed Compliance Certificate substantially in
the form of EXHIBIT "E", executed by the Chief Executive Officer, the President
or the Chief Financial Officer of Wireless or the Borrower, as the case may be,
and containing such additional information as the Agents may reasonably request
from time to time;
5.2d ANNUAL BUDGETS. As soon as available and in any event by
December 31 of each year, an annual budget for the Borrower and its Subsidiaries
for the upcoming Fiscal
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Year, containing such information and in a form reasonably requested by the
Agents from time to time.
5.2e SECURITIES INFORMATION. As soon as practicable after they have
become available, all regular and periodic reports filed by Wireless with the
Securities and Exchange Commission or any successor thereto, or with any similar
federal Governmental Authority, or with any state securities commission.
5.2f OTHER REPORTS, INFORMATION AND NOTICES. Within the time
periods set forth below, the following other reports, information and notices:
(i) NOTICE OF DEFAULTS AND MATERIAL ADVERSE CHANGES. Promptly
after any Authorized Officer of the Borrower has learned of the occurrence or
existence of a Default or Event of Default or an event or set of circumstances
which has had or which may have a Material Adverse Effect or which has caused or
which may cause a Material Adverse Change, telephonic notice thereof specifying
the details thereof, the anticipated effect thereof and the action which the
Borrower has taken, is taking or proposes to take with respect thereto, which
notice shall be promptly confirmed in writing within five Business Days by an
Authorized Officer;
(ii) NOTICE OF BREACH, REVOCATION, ETC. OF MATERIAL CONTRACT.
Promptly after any Authorized Officer of the Borrower has learned of the
occurrence or existence of a material default by any party, including the
Borrower or any of its Subsidiaries, to any Material Contract to which the
Borrower or a Subsidiary is a party, or the actual or threatened termination,
revocation or non-renewal of any such Material Contract, telephonic notice
thereof specifying the details thereof, the anticipated effect thereof and the
action which the Borrower or such Subsidiary has taken, is taking or proposes to
take with respect thereto, which notice shall be promptly confirmed in writing
within five Business Days by an Authorized Officer;
(iii) NOTICES REGARDING FCC LICENSES AND OTHER GOVERNMENTAL
APPROVALS. Promptly after receipt thereof by the Borrower, (A) correspondence or
notices from any Governmental Authority that regulates the operations of the
Borrower or any Subsidiary (including without limitation the FCC) relating to an
actual or threatened change or development that would have a Material Adverse
Effect on the Borrower or such Subsidiary, (B) all applications for renewals of
any FCC License which is a cellular license, and all applications for any new
FCC License which is a cellular license, and (C) any notice of revocation or
non-renewal of an MSA FCC License or an RSA FCC License;
(iv) NOTICE OF LITIGATION. (A) Promptly after the receipt of
notice or service of the commencement of, or after the receipt of a written
threat thereof, written notice of any action, suit, proceeding or investigation
by, against or which is reasonably likely to have a Material Adverse Effect (B)
promptly after any Authorized Officer has notice thereof, written
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notice of any decision, ruling, judgment, appeal, reversal or other significant
action in connection with any existing action, suit, proceeding or investigation
before any Governmental Authority which would have a Material Adverse Effect;
(v) ORDERS. Promptly after receipt thereof, a copy of any
order, judgment, decree or decision issued by any court, arbitrator or
Governmental Authority in any proceeding to which the Borrower or any Subsidiary
is a party which has a Material Adverse Effect;
(vi) STRUCTURALLY SUBORDINATED INDEBTEDNESS. Immediately upon
the Borrower's obtaining knowledge thereof, notice of any event of default under
the Structurally Subordinated Indebtedness Documents, and within three (3)
Business Days, notice of any default under the Structurally Subordinated
Indebtedness Documents, or of any enforcement or other action taken or to be
taken under or in connection therewith. Such notice shall specify the details of
such default or event of default, the anticipated effect thereof and the action
which the Borrower or Wireless has taken, is taking or proposes to take with
respect thereto.
(vii) ERISA REPORTS.
(A) As soon as possible, and in any event not later
than the date notice is sent to the PBGC, notice of any Reportable Event (other
than a Reportable Event for which the 30-day notice requirement in PBGC
Regulation 2615.3(a) has been waived) regarding any Plan and an explanation of
any action which has been or which is proposed to be taken with respect thereto;
(B) concurrent with the filing thereof, a copy of
any request to the United States Secretary of the Treasury for a waiver or
variance of the minimum funding standards of Section 302 of ERISA and Section
412 of the Internal Revenue Code with respect to any Plan or Money Purchase
Plan;
(C) as soon as possible, but in no event later than
60 days after an officer of the Borrower becomes aware of unfunded accumulated
benefit obligations for any Plan, as determined in accordance with the Financial
Accounting Standards Board Statement of Financial Accounting Standards No. 87,
EMPLOYER'S ACCOUNTING FOR PENSIONS, (or any superseding statement thereto),
written notice of the occurrence of such event;
(D) upon the request of any Lender, copies of each
annual report (Form 5500 Series) with accompanying schedules filed with respect
to each Plan or Money Purchase Plan;
(E) promptly after receipt thereof, a copy of any
notice which the Borrower or any ERISA Affiliate may receive from the PBGC
relating to the intention of the
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PBGC to terminate any Plan or Money Purchase Plan, or to appoint a trustee to
administer any Plan or Money Purchase Plan, or to assert any liability under
Title IV of ERISA against the Borrower or any ERISA Affiliate;
(F) a copy of any notice of assessment of Withdrawal
Liability received by the Borrower or any ERISA Affiliate from any Multiemployer
Plan;
(G) as soon as possible, and in no event later than
the date notification is sent to the PBGC, notice of the failure by the Borrower
or any ERISA Affiliate to make a required installment or other payment under
Section 302 of ERISA and Section 412 of the Internal Revenue Code;
(H) concurrent with the filing thereof, a copy of any
Notice of Intent to Terminate any Plan filed under Section 4041(c) of ERISA; and
(I) promptly after receipt thereof, but without any
obligation or responsibility to secure the same, copies of any calculations of
estimated Unfunded Benefit Liabilities (or, if applicable, the portions of any
estimated Unfunded Benefit Liabilities that would be allocated to the Borrower
or any ERISA Affiliate under Sections 4063 and 4064 or Section 4062(e) of ERISA)
for any Plans;
(viii) ENVIRONMENTAL CLAIMS. Promptly after receipt thereof, a
copy of any Environmental Claim that could have a Material Adverse Effect;
(ix) TAX RETURNS. Promptly upon the request of any Agent,
copies of all Federal, state, local and foreign tax returns and reports filed by
the Borrower or any of its Subsidiaries in respect of taxes measured by income
(excluding sales, use and like taxes);
(x) NOTICES OF TAX AUDITS. Promptly, and in any event within
ten (10) Business Days after receipt thereof by the Borrower, a copy of each
notice from any Governmental Authority received by the Borrower or any
Subsidiary of the Borrower of such Governmental Authority's intention to audit
any Federal, state, local or foreign tax return (except for notices of sales,
excise, use and property tax audits, which the Borrower shall provide to any
Agent upon request of such Agent) of the Borrower or such Subsidiary and a copy
of each subsequent notice with respect thereto from any such Governmental
Authority; and
(xi) INSURANCE INFORMATION. Promptly, and in any event within
five (5) Business Days after receipt thereof by the Borrower or any Subsidiary,
a copy of any notice of any lapse, termination, non-renewal or reduction in
coverage of any insurance coverage required to be maintained by the Borrower or
any Subsidiary pursuant to any Loan Document.
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<PAGE> 57
5.2g ADDITIONAL INFORMATION; VISITATION. The Borrower shall deliver
to each Agent such additional financial statements, reports, financial
projections, and other information, whether or not financial in nature, as the
Agents may reasonably request from time to time. The Borrower will permit the
Agents, the Lenders and their respective designated employees and agents to have
access, at any time and from time to time, upon reasonable notice and during
normal business hours, to visit any of the properties of the Borrower and its
Subsidiaries, to examine and make copies of its books of record and account and
such reports and returns as the Borrower or any of its Subsidiaries may file
with any Governmental Authority and discuss the Borrower's and its Subsidiaries'
affairs and accounts with, and be advised about them by, any Authorized Officer
and the Borrower's and its Subsidiaries' certified public accountants.
5.3 PRESERVATION OF EXISTENCE; QUALIFICATION. At the Borrower's
own cost and expense, the Borrower will do all things necessary to preserve and
keep in full force and effect its and its Subsidiaries' respective existences
and qualifications under the laws of the states of their formation and each
state where, due to the nature of their activities or the ownership of their
properties, qualification to do business is required and where the failure to be
so qualified would have a Material Adverse Effect.
5.4 COMPLIANCE WITH LAWS, CONTRACTS AND LICENSES. Except where the
failure to so comply would not have a Material Adverse Effect, the Borrower
shall and shall cause each of its Subsidiaries to comply with all applicable
Governmental Rules (including, but not limited to, the Communications Act of
1934, as amended, the regulations and orders promulgated by the FCC from time to
time, and all Environmental Laws). The Borrower shall and shall cause each of
its Subsidiaries to comply with all material provisions of each Material
Contract to which they are parties. Except where the failure to do so would not
have a Material Adverse Effect, the Borrower shall and shall cause each of its
Subsidiaries to maintain in full force and effect all FCC Licenses and all other
Governmental Approvals and other material agreements which are necessary for the
operation of the Cellular Systems as now conducted and in compliance with all
applicable Governmental Rules.
5.5 CONTINUANCE OF BUSINESS. Subject to Sections 6.7 and 6.8, the
Borrower shall and shall cause each of its Subsidiaries to do or cause to be
done all things reasonably necessary to preserve and keep in full force and
effect their respective corporate existences and all permits, rights and
privileges necessary for the proper conduct of their respective businesses
including, without limitation, all of their cellular FCC Licenses, and continue
to engage in the business of owning, constructing, managing, operating and
investing in Cellular Systems and other wireless communication and related
businesses.
5.6 ACCOUNTING SYSTEM; BOOKS AND RECORDS. The Borrower shall and
shall cause each of its Subsidiaries to maintain a system of accounting
established and administered in accordance with GAAP and will set aside on their
books all such proper reserves as shall be required by GAAP. Further, the
Borrower shall and shall cause each of its Subsidiaries to
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<PAGE> 58
maintain proper books of record and account in accordance with GAAP in which
full, true and correct entries shall be made of all of their properties and
assets and its dealings and business affairs.
5.7 PAYMENT OF TAXES AND OTHER LIABILITIES. The Borrower shall and
shall cause each of its Subsidiaries to promptly pay and discharge all
obligations, accounts and liabilities which are owed by them, to which they are
subject or which are asserted against them, including but not limited to all
taxes, assessments and governmental charges and levies upon them or upon any of
their respective income, profits, or property prior to the date on which
penalties attach thereto. The preceding sentence notwithstanding, neither the
Borrower nor any of its Subsidiaries shall be required to pay any tax,
assessment, charge or levy (i) if the failure to make such payment would not
have a Material Adverse Effect or (ii) if (A) such payment is being contested in
good faith by appropriate and lawful proceedings diligently conducted and (B)
the Borrower or such Subsidiary has set aside on its books reserves for such
claim as are determined to be adequate by the application of GAAP. The foregoing
provisions of this Section 5.7 to the contrary notwithstanding, the Borrower
shall pay or cause such Subsidiary to pay any liability being contested pursuant
to the preceding item (ii) within ten (10) days upon the commencement of
proceedings to foreclose any Encumbrance which may have attached as security
therefor.
5.8 INSURANCE. The Borrower will, and will cause each of its
Subsidiaries to:
(i) Maintain insurance including, but not limited to, business
interruption coverage and public liability coverage insurance, with responsible
insurance companies reasonably satisfactory to the Agents, in such amounts and
against such risks to the Borrower and each of its Subsidiaries as is prudent
for similarly situated companies engaged in the cellular telephone and wireless
communications industry and as is reasonably satisfactory to the Agents;
(ii) Keep their respective assets insured by insurers on terms
and in a manner reasonably acceptable to the Agents against loss or damage by
fire, theft, burglary, loss in transit, explosions and hazards insured against
by extended coverage, in amounts which are prudent for the cellular telephone
and wireless communications industry and reasonably satisfactory to the Agents,
all premiums thereon to be paid by the Borrower and its Subsidiaries; and
(iii) Require that each insurance policy provide for at least
thirty (30) days' prior written notice to the Collateral Agent of any
termination of or proposed cancellation or nonrenewal of such policy, and name
the Collateral Agent as additional named lender loss payee and, as appropriate,
additional insured and/or mortgagee, to the extent of the Obligations.
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5.9 INTEREST HEDGE AGREEMENTS. (i) Within ninety (90) days
following the Closing Date, the Borrower shall purchase and enter into, and at
all times thereafter shall maintain, and pay and perform as and when due and
payable or required to be performed, all amounts and obligations in respect of,
Interest Hedge Agreements relating to the Borrower's Indebtedness which shall
hedge the interest cost to the Borrower with respect to an amount which shall
not be less than an amount equal to the result obtained by subtracting (x) the
then outstanding principal amount of the Structurally Subordinated Indebtedness
from (y) an amount equal to fifty percent (50%) of the aggregate principal
amount of the Total Indebtedness (calculated as to Wireless and the Borrower)
outstanding from time to time. Such Interest Hedge Agreements (A) shall provide
interest rate protection initially for a weighted average term of at least
twenty-four (24) months from the date of such Interest Hedge Agreements or, if
earlier, until the Maturity Date, and thereafter, for a weighted average term of
at least twelve (12) months from the date of such Interest Hedge Agreements or,
if earlier, until the Maturity Date, (B) must provide that the protected rate is
not greater than two and one-half percent (2-1/2%) in excess of the sum of (1)
the three-month Euro-Rate in effect on the date of such Interest Hedge
Agreement plus (2) the Applicable Margin on the date of such Interest Hedge
Agreement, (C) must be reasonably satisfactory to the Agents in all respects,
including but not limited to with respect to intercreditor issues, (D) shall be
entered into with counterparties reasonably satisfactory to the Agents, (E) must
provide for the calculation of the counterparties' credit exposure in a
reasonable and customary manner and (F) shall conform to then current
International Swap Dealers Association standards.
(ii) The provisions of the preceding paragraph (i)
notwithstanding, the Borrower may elect not to maintain Interest Hedge
Agreements at any time and from time to time when all of the following
conditions have been met: (A) no Event of Default exists or would be caused by
not obtaining and maintaining Interest Hedge Agreements in accordance with the
preceding paragraph (i); and (B) the Total Indebtedness to Adjusted Annualized
Operating Cash Flow Ratio is and has been less than 5.00 to 1.00 for the two
consecutive Fiscal Quarters immediately preceding such election.
(iii) If at any time subsequent to an election by the Borrower
to not maintain Interest Hedge Agreements pursuant to the preceding paragraph
(ii) the Total Indebtedness to Adjusted Annualized Operating Cash Flow Ratio is
equal to or greater than 5.00 to 1.00 for any two (2) consecutive Fiscal
Quarters, the Borrower shall be required to enter into Interest Hedge Agreements
in accordance with the requirements of the preceding paragraph (i), within 30
days following receipt by the Agents of financial statements for the Borrower
and Wireless showing that the Total Indebtedness to Adjusted Annualized
Operating Cash Flow Ratio has been equal to or greater than 5.00 to 1.00 for two
consecutive Fiscal Quarters; PROVIDED, HOWEVER, that such Interest Hedge
Agreements shall provide interest rate protection for a weighted average term of
two (2) years from the date of such Interest Hedge Agreement or such shorter
period as may be agreed to by the Agents. Thereafter, from time to time, the
Borrower may elect to not maintain Interest Hedge
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Agreements, if all of the conditions listed in the preceding paragraph (ii) are
met, and the Borrower may again be required to obtain and maintain Interest
Hedge Agreements, in accordance with this paragraph (iii).
(iv) All Obligations of the Borrower to any Lender pursuant to
any Interest Hedge Agreements entered into between the Borrower and such Lender
shall be secured by a lien and security interest in and to all of the
Collateral. All Obligations of the Borrower to any Lender pursuant to any
Interest Hedge Agreement and all Encumbrances granted to the Collateral Agent to
secure such Obligations shall rank PARI PASSU with all other Obligations and
Encumbrances securing such other Obligations. Any such Lender shall calculate
the Obligations owed to it in connection with an Interest Hedge Agreement in a
reasonable and customary manner, as determined by the Agents. No Encumbrances on
any other property of the Borrower may be granted to the Collateral Agent or any
Lender to secure Obligations pursuant to Interest Hedge Agreements, and any
Interest Hedge Agreement entered into between the Borrower and any Person other
than a Lender shall be unsecured.
5.10 MAINTENANCE OF PROPERTIES. The Borrower shall and shall cause
its Subsidiaries to maintain, preserve, protect and keep their respective
properties in good repair, working order and condition (ordinary wear and tear
excepted), and make all necessary and proper repairs, renewals and replacements
so that its business carried on in connection therewith may be properly and
advantageously conducted at all times.
5.11 MAINTENANCE OF LEASES. The Borrower shall and shall cause its
Subsidiaries to maintain in full force and effect all leases for their
respective real properties, and all other leases for personal property if the
failure to maintain such real or personal property lease would constitute a
Material Adverse Change.
5.12 MAINTENANCE OF PATENTS, TRADEMARKS, PERMITS, ETC. Except where
the failure to do so would not have a Material Adverse Effect, the Borrower
shall and shall cause its Subsidiaries to maintain in full force and effect all
patents, trademarks, trade names, copyrights and other intellectual property and
all licenses, franchises, permits and other authorizations necessary for the
ownership and operation of their respective properties and businesses.
5.13 PLANS AND BENEFIT ARRANGEMENTS. The Borrower shall, and shall
cause each ERISA Affiliate to, comply with ERISA, the Internal Revenue Code and
all other applicable Governmental Rules which are applicable to Plans and
Benefit Arrangements, except where the failure to do so, alone or in conjunction
with any other failure, would not result in a Material Adverse Change.
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5.14 ENVIRONMENTAL MATTERS AND INDEMNIFICATION.
(i) The Borrower shall and shall cause its Subsidiaries to
comply in all material respects with all applicable Environmental Laws.
(ii) The Borrower shall and shall cause its Subsidiaries to,
as often as deemed appropriate by the Borrower, inspect all property owned or
leased by them and audit operations thereon to maintain material compliance with
all Environmental Laws.
(iii) The Borrower shall and shall cause its Subsidiaries to
employ appropriate technology in order to maintain material compliance with all
applicable Environmental Laws, including without limitation the replacement or
updating, if required, of above-ground or underground storage tanks owned by the
Borrower or any Subsidiary.
(iv) The Borrower shall and shall cause its Subsidiaries to
investigate and remediate any material Contamination, using a reputable
environmental remediation firm, and shall, upon the request of any Agent, inform
the Agents in writing from time to time as to the status of any such
remediation.
(v) The Borrower shall and shall cause its Subsidiaries to
defend and indemnify the Agents and the Lenders and hold them harmless from and
against all loss, liability, damage, expense, claims, costs, fines, penalties,
assessments (including interest on any of the foregoing) and reasonable
attorneys' fees, suffered or incurred by the Agents and the Lenders which arise,
result from or in any way relate to a breach or violation by the Borrower or any
Subsidiary of any Environmental Law, either prior to or subsequent to the date
hereof, including the assertion or imposition of any Encumbrance on the
Borrower's or any Subsidiary's assets. The Borrower's and its Subsidiaries'
obligations hereunder are joint and several and shall arise upon the discovery
of the presence of any Hazardous Substance at any location owned, leased,
operated and/or occupied by the Borrower or any Subsidiary's, whether or not any
Governmental Authority has taken or has threatened any action in connection with
the presence of Hazardous Substances. The Borrower's and its Subsidiaries' joint
and several obligations pursuant to this item (v) shall survive the termination
of this Agreement and the repayment of the Obligations.
5.15 KEY MANAGEMENT. The Borrower shall employ individuals in the
key management positions of Chairman, President and Chief Financial Officer and
shall use its best efforts to cause such key managers to continue to serve in
their respective capacities. In the event of the voluntary or involuntary
termination of any key manager for any reason, the Borrower shall, as soon as
practicable, replace such individual with another qualified manager with
comparable management skills and experience in the Borrower's industries and
reasonably satisfactory to the Agents.
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5.16 COVENANTS REGARDING FORMATION OF SUBSIDIARIES AND
ACQUISITIONS. At the time of (i) any Permitted Acquisition of a Subsidiary or
(ii) the formation of any new Subsidiary of the Borrower or any of its
Subsidiaries which is permitted under this Agreement, the Borrower will, and
will cause its Subsidiaries, as appropriate, to (A) provide to the Collateral
Agent executed Subsidiary Security Documents and an executed Subsidiary Guaranty
Agreement, (B) pledge to the Collateral Agent all of the stock, partnership
interests or other ownership interests of such Subsidiary or Person which is
acquired or formed which are beneficially owned by the Borrower or any of the
Borrower's Subsidiaries, as the case may be, as additional Collateral for the
Obligations, to be held by the Collateral Agent in accordance with the terms of
a Pledge Agreement substantially in the form of EXHIBIT "D" attached hereto, and
execute and deliver to the Collateral Agent all such documentation for such
pledge as, in the reasonable opinion of the Agents, is appropriate, (C) if the
purchase price of a Permitted Acquisition is in excess of $5,000,000, provide
revised financial projections for the remainder of the current Fiscal Year and
for each subsequent Fiscal Year until the Maturity Date which reflect such
Permitted Acquisition, certified by the Chief Financial Officer of the Borrower,
(D) provide a statement of the Chief Financial Officer of the Borrower that no
Default or Event of Default exists or would be caused by the Permitted
Acquisition or formation; and (E) provide all other documentation, including one
or more opinions of counsel, reasonably satisfactory to the Agents, which in
their reasonable opinion is appropriate with respect to such Permitted
Acquisition or the formation of such Subsidiary. Any document, agreement or
instrument executed or issued pursuant to this Section 5.16 shall be a "Loan
Document" for purposes of this Agreement.
5.17 PAYMENT OF WAGES. The Borrower shall and shall cause its
Subsidiaries to at all times comply with the requirements of the Fair Labor
Standards Act, as amended, including, without limitation, the provisions of such
Act relating to the payment of minimum and overtime wages as the same may become
due from time to time, except for noncompliances with such Act that would not
have a Material Adverse Effect.
5.18 FURTHER ASSURANCES; POWER OF ATTORNEY. At any time and from
time to time, upon the Collateral Agent's reasonable request, the Borrower shall
make, execute and deliver, and shall use its best efforts to cause any of its
Subsidiaries and any other Person to make, execute and deliver, to the
Collateral Agent, and where appropriate shall cause to be recorded or filed, and
from time to time thereafter to be re-recorded and refiled at such time and in
such offices and places as shall be deemed desirable by the Collateral Agent
(including but not limited to the FCC) any and all such further Security
Documents, certificates and other documents and instruments as the Collateral
Agent may reasonably consider necessary or desirable in order to effectuate,
complete, perfect, continue or preserve the obligations of the Borrower, its
Subsidiaries and Wireless under Article 3 hereof, the Security Documents and the
Encumbrances created thereby. The Borrower hereby appoints the Collateral Agent,
and any of its officers, directors, employees and authorized agents, with full
power of substitution, upon any failure by the Borrower or any Subsidiary of the
Borrower, to take or cause to be taken any action described in the preceding
sentence and to
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make, execute, record, file, re-record or refile any and each such Security
Document, instrument, certificate and document for and in the name of the
Borrower, any Subsidiary of the Borrower, or Wireless, as the case may be. The
power of attorney granted pursuant to this Section 5.18 is coupled with an
interest and shall be irrevocable until all of the Obligations are paid in full
and the Revolving Credit Commitment is terminated.
ARTICLE 6. NEGATIVE COVENANTS
From the date hereof and thereafter until the termination of
the Revolving Credit Commitment and until the Revolving Credit Notes and the
other Obligations of the Borrower hereunder are permanently paid in full, the
Borrower agrees, for the benefit of the Agents and the Lenders, that it will
comply with and cause each of its Subsidiaries to comply with each of the
following negative covenants:
6.1 INDEBTEDNESS. The Borrower shall not, and shall not permit its
Subsidiaries to, create, incur, assume or permit to exist or remain outstanding
any Indebtedness, except for:
(i) The Indebtedness and Obligations owed by the Borrower to
the Lenders hereunder;
(ii) Indebtedness in an aggregate principal amount outstanding
not to exceed $15,000,000 at any time, incurred by the Borrower or any of its
Subsidiaries for the purpose of financing equipment purchases or leases or for
other general corporate or partnership purposes;
(iii) Indebtedness owed to Persons other than the Lenders
relating to Interest Hedge Agreements required pursuant to Section 5.9; and
(iv) Existing Indebtedness listed on SCHEDULE 6.1 in amounts
not to exceed the amounts shown on such schedule as such Indebtedness is repaid
in accordance with its terms.
6.2 GUARANTEES. The Borrower shall not and shall not permit its
Subsidiaries to enter into any Guarantees, except for (i) Subsidiary Guaranty
Agreements and (ii) endorsements of negotiable instruments for deposit and
collection and similar transactions in the ordinary course of business.
6.3 ENCUMBRANCES; NEGATIVE PLEDGE. The Borrower shall not and
shall not permit its Subsidiaries to create, assume, incur or suffer to exist
any Encumbrance upon any of their respective assets and properties, whether
tangible or intangible, whether now owned or in existence or hereafter acquired
or created and wherever located, nor acquire nor agree
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to acquire any assets or properties subject to an Encumbrance, except for
Permitted Encumbrances. The Borrower shall not and shall not permit its
Subsidiaries to make or enter into any agreement not to grant Encumbrances for
the benefit of any Person other than (i) the Agents and the Lenders pursuant to
the Loan Documents and (ii) holders of Encumbrances securing Indebtedness
permitted pursuant to item (ii) of Section 6.1, but only if such negative pledge
is limited to the properties secured by such Permitted Encumbrance.
6.4 FINANCIAL COVENANTS.
6.4a SENIOR INDEBTEDNESS TO ADJUSTED ANNUALIZED OPERATING CASH
FLOW RATIO. For each Fiscal Quarter during the periods set forth below, the
ratio of the Borrower's Senior Indebtedness to its Adjusted Annualized Operating
Cash Flow shall not exceed the ratio set forth below opposite such period, as of
the last day of each such Fiscal Quarter:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------
RATIO OF SENIOR INDEBTEDNESS TO
LAST DAY OF FISCAL ADJUSTED ANNUALIZED OPERATING
QUARTER DURING PERIOD CASH FLOW NOT TO EXCEED:
- --------------------------------------------------------------------------------------------------------------
<S> <C>
Closing Date through March 31, 1997 8.50 : 1.00
- --------------------------------------------------------------------------------------------------------------
April 1, 1997 through June 30, 1997 8.00 : 1.00
- --------------------------------------------------------------------------------------------------------------
July 1, 1997 through September 30, 1997 7.50 : 1.00
- --------------------------------------------------------------------------------------------------------------
October 1, 1997 through December 31, 1997 7.00 : 1.00
- --------------------------------------------------------------------------------------------------------------
January 1, 1998 through June 30, 1998 6.50 : 1.00
- --------------------------------------------------------------------------------------------------------------
July 1, 1998 through December 31, 1998 6.00 : 1.00
- --------------------------------------------------------------------------------------------------------------
January 1, 1999 through June 30, 1999 5.25 : 1.00
- --------------------------------------------------------------------------------------------------------------
July 1, 1999 through December 31, 1999 4.50 : 1.00
- --------------------------------------------------------------------------------------------------------------
January 1, 2000 and thereafter 4.00 : 1.00
- --------------------------------------------------------------------------------------------------------------
</TABLE>
6.4b TOTAL INDEBTEDNESS TO ADJUSTED ANNUALIZED OPERATING CASH FLOW
RATIO. For each Fiscal Quarter during the periods set forth below, the ratio of
Total Indebtedness (calculated to include Wireless' and its Subsidiaries' and
the Borrower's and its Subsidiaries' Total Indebtedness) to its Adjusted
Annualized Operating Cash Flow shall not exceed the ratio set forth below
opposite such period, as of the last day of each such Fiscal Quarter:
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<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------
RATIO OF TOTAL INDEBTEDNESS TO
LAST DAY OF FISCAL ADJUSTED ANNUALIZED OPERATING
QUARTER DURING PERIOD CASH FLOW NOT TO EXCEED:
- --------------------------------------------------------------------------------------------------------------
<S> <C>
Closing Date through March 31, 1997 12.00 : 1.00
- --------------------------------------------------------------------------------------------------------------
April 1, 1997 through September 30, 1997 11.00 : 1.00
- --------------------------------------------------------------------------------------------------------------
October 1, 1997 through December 31, 1997 10.00 : 1.00
- --------------------------------------------------------------------------------------------------------------
January 1, 1998 through June 30, 1998 9.00 : 1.00
- --------------------------------------------------------------------------------------------------------------
July 1, 1998 through December 31, 1998 8.00 : 1.00
- --------------------------------------------------------------------------------------------------------------
January 1, 1999 through June 30, 1999 7.00 : 1.00
- --------------------------------------------------------------------------------------------------------------
July 1, 1999 and thereafter 6.00 : 1.00
- --------------------------------------------------------------------------------------------------------------
</TABLE>
6.4c ANNUALIZED OPERATING CASH FLOW TO FIXED CHARGES RATIO.
For each Fiscal Quarter during the period beginning on the Closing Date and
ending on the Maturity Date, the ratio of the Borrower's Annualized Operating
Cash Flow to its Fixed Charges shall not be less than 1.00 to 1.00, as of the
last day of each such Fiscal Quarter. For purposes of this financial covenant
only, Annualized Operating Cash Flow shall include Revolver Availability.
6.4d ANNUALIZED OPERATING CASH FLOW TO PRO FORMA DEBT SERVICE
RATIO. For each Fiscal Quarter during the period beginning on April 1, 1997 and
ending on the Maturity Date, the ratio of the Borrower's Annualized Operating
Cash Flow to its Pro Forma Debt Service shall not be less than 1.00 to 1.00 as
of the last day of each such Fiscal Quarter.
6.4e OPERATING CASH FLOW TO INTEREST EXPENSE RATIO. For each Fiscal
Quarter during the period beginning on the Closing Date and ending on December
31, 1998, the ratio of the Borrower's Operating Cash Flow for the most recently
completed twelve (12) consecutive months to its Interest Expense for the most
recently completed twelve (12) consecutive months shall not be less than 1.10 to
1.00 as of the last day of each such Fiscal Quarter.
6.5 LIMITATION ON DIVIDENDS, DISTRIBUTIONS AND OTHER PAYMENTS.
The Borrower shall not declare or pay any dividends on, or make any
distributions relating to or returns of capital on, any of its capital stock, or
make any loans, advances or payments of any kind whatsoever, directly or
indirectly, to or for the benefit of the owners of its capital stock or pay any
obligations of the owners of its capital stock, except for the following
dividends and distributions (each of which shall be a "PERMITTED PAYMENT"):
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(i) The Borrower may from time to time declare and pay
dividends to Wireless or make loans to Wireless which shall not at any time
exceed amounts required to make scheduled payments of interest on the
Structurally Subordinated Indebtedness; PROVIDED, HOWEVER, that no Event of
Default or Material Default exists or would be caused by the declaration of or
the payment of such dividend or the making of such loan.
(ii) The provisions of the preceding item (i) of this Section
6.5 to the contrary notwithstanding, the Borrower, if Events of Default have
occurred and are continuing, may declare and pay dividends to Wireless or make
loans to Wireless in an amount which shall not exceed (A) amounts then required
to make any past due payment of interest on the Structurally Subordinated
Indebtedness, which payment of interest is past due by reason of item (i) above,
and (B) the next scheduled payment of interest on the Structurally Subordinated
Indebtedness; PROVIDED:
(1) such Event of Default or Events of Default (from
the date of notice of the existence of the earliest such Event of Default if
more than one Event of Default exists) has continued for 180 days and has not
been cured or waived;
(2) such Event of Default is not an Event of Default
set forth in Sections 8.1a, 8.1c or 8.1d hereof; or
(3) the Lenders have not demanded immediate payment
in full of all Obligations due and owing by the Borrower under this Agreement
and the other Loan Documents.
(iii) Payments by the Borrower to Wireless due to Wireless
pursuant to the terms of the Management Agreement. No such payment may be made
if an Event of Default has occurred and is continuing or would be caused by such
payment. The payment provisions of the Management Agreement may not be amended
without the prior written consent of the Required Lenders.
6.6 RESTRICTIONS ON SUBSIDIARY DIVIDENDS OR DISTRIBUTIONS. Except
as permitted by Section 6.10, the Borrower shall not permit any Subsidiary,
directly or indirectly, to declare or make any distribution, dividend, loan,
advance or payment of any kind whatsoever to any Person (including Wireless);
PROVIDED that the Borrower's Preferred Subsidiaries may declare and make
distributions, dividends, loans, advances and payments to the Borrower or
another Preferred Subsidiary and, PROVIDED FURTHER, that any dividend paid by a
Preferred Subsidiary may also be paid on a pro rata basis to owners other than
the Borrower or another Preferred Subsidiary.
6.7 LIQUIDATIONS, MERGERS, CONSOLIDATIONS, ACQUISITIONS, ETC. The
Borrower shall not, nor shall it permit any Subsidiary to, dissolve, liquidate
or wind up its affairs, or become a party to any merger or consolidation, or
acquire by purchase, lease or otherwise
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all or substantially all of the assets, or any capital stock or other equity or
ownership interest of any other Person. The foregoing provisions of this Section
6.7 to the contrary notwithstanding:
(i) the Borrower may contemporaneously with the Closing Date
consummate the Horizon Acquisition;
(ii) the Borrower may acquire by purchase, lease or otherwise
all or substantially all of the assets of, or at least 85% of the capital stock
or other equity or ownership interests of, any other Person; PROVIDED that (A)
such acquisition must be related to the Borrower's cellular business, (B) the
aggregate purchase price for all such acquisitions during the term hereof shall
not exceed $50,000,000, (C) no Default or Event of Default shall exist or result
from such acquisition, (D) the Borrower must demonstrate, to the reasonable
satisfaction of the Agents, that the Borrower will, on a pro forma basis, be in
compliance with all of the financial covenants set forth in Section 6.4, taking
into account such acquisition and (E) if the acquisition is the acquisition of
equity interests, all other provisions of this Agreement relating to the
acquisition of Subsidiaries must be complied with. Each acquisition permitted
pursuant to this item (ii) shall be deemed to be a "PERMITTED ACQUISITION";
(iii) the Borrower or any Preferred Subsidiary may acquire all
or substantially all of the assets or all of the capital stock or other equity
ownership interest in a Subsidiary; provided that following any transaction
permitted by this item (iii), if such acquired Subsidiary has no remaining
assets, the Borrower may dissolve or otherwise cause the termination of the
existence of such acquired Subsidiary; and
(iv) neither the Borrower nor any Subsidiary of the Borrower
may use proceeds of the Revolving Credit Loans to finance any acquisition which
is deemed by the Required Lenders in good faith to be a hostile takeover.
6.8 DISPOSITIONS OF ASSETS. The Borrower shall not, nor shall it
permit any Subsidiary to, sell, convey, assign, lease, abandon or otherwise
transfer or dispose of, voluntarily or involuntarily, any of their respective
properties or assets, whether tangible or intangible, except for the following
(each of which shall be deemed to be a "PERMITTED DISPOSITION"):
(i) any sale, transfer or lease in the ordinary course of
business of assets which are no longer necessary or required in the conduct of
the Borrower's or such Subsidiary's business;
(ii) any sale, transfer or lease of assets in the ordinary
course of business which are replaced by substitute assets acquired or leased by
the selling Borrower or Subsidiary, which substitute assets are acquired within
one year before or after such sale;
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(iii) any sale, transfer or lease of the assets of a
Subsidiary to a Preferred Subsidiary or to the Borrower, or any sale, transfer
or lease of assets of the Borrower to a Preferred Subsidiary;
(iv) sales of assets relating to the Borrower's paging
business so long as no Default or Event of Default exists or would be caused by
any such sale;
(v) sales of assets by the Borrower or any of its Subsidiaries
in any one Fiscal Year, the aggregate Net Cash Proceeds of which is not more
than $1,000,000; PROVIDED that (A) at the time of such sale no Default or Event
of Default exists or would be caused thereby and (B) such assets are replaced by
substitute assets acquired by the Borrower or the selling Subsidiary, which
substitute assets are acquired within one (1) year before or after such sale;
and
(vi) sales of inventory in the ordinary course of business.
6.9 SUBSIDIARIES. The Borrower shall not form or acquire
Subsidiaries, unless (i) the provisions of Section 5.16 are complied with, (ii)
no Default or Event of Default exists at the time of or would be caused by such
formation or acquisition, and (iii) if the Subsidiary is not a wholly-owned
Subsidiary or a Preferred Subsidiary, the Required Lenders have consented in
writing to such formation or acquisition.
6.10 LOANS AND OTHER ADVANCES. The Borrower shall not nor shall it
permit any Subsidiary to make loans, payments or other advances of funds to any
Person, except for (i) Permitted Payments, (ii) loans in existence on the date
hereof and listed on SCHEDULE 6.10, (iii) advances for expenses made to the
Borrower's or such Subsidiary's employees in reasonable amounts and in the
ordinary course of business, and (iv) loans, payments and advances permitted
pursuant to Section 6.6.
6.11 INVESTMENTS. The Borrower shall not nor shall it permit any
Subsidiary to at any time purchase, acquire or own any stock, bonds, notes, or
securities of, or any partnership interest (whether general or limited) in, or
any other interest in, or make any capital contribution to, any other Person, or
become a joint venture partner in any joint venture, or repurchase any of their
respective capital stock, or agree, become or remain liable to do any of the
foregoing, except for:
(i) investments in Subsidiaries, as permitted hereby;
(ii) debt securities having a maturity of not more than one
year issued or guaranteed by the United States government or by an agency or
instrumentality thereof;
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(iii) certificates of deposit, bankers acceptances, time
deposits and demand deposit accounts, which in each case mature within one year
from the date of purchase thereof and which are issued or maintained by or with
a Qualified Lender;
(iv) commercial paper maturing in 270 days or less from the
date of issuance which, at the time of acquisition by the Borrower either (A) is
accorded a rating of A-2 or P-2 or better by Standard and Poor's Rating Group, a
division of McGraw-Hill, Inc. or Moody's Investors Service, Inc. respectively or
(B) is issued by a Qualified Lender;
(v) direct obligations of the United States of America or any
agency or instrumentality of the United States of America, the payment or
guarantee of which constitutes a full faith and credit obligation of the United
States of America, in each case maturing in 12 months or less from the date of
acquisition;
(vi) money market mutual funds made available by the
Administrative Agent or its affiliates; and
(vii) investments listed on SCHEDULE 6.11 which exist on the
date hereof.
6.12 AFFILIATE TRANSACTIONS. The Borrower shall not, nor shall it
permit any Subsidiary to, enter into or carry out any transaction with an
Affiliate (including, without limitation, purchasing property or services from
or selling property or services to any Affiliate or other Person) unless such
transaction (i) is not otherwise prohibited by this Agreement, (ii) is entered
into in the ordinary course of business upon fair and reasonable arm's-length
terms and conditions and (iii) is in accordance with all applicable Governmental
Rules.
6.13 USE OF PROCEEDS. The Borrower shall not use proceeds of the
Loans for the purpose, whether immediate, incidental or ultimate, of purchasing
or carrying any such margin stock which would cause the outstanding Loans to be
in violation of Regulations G, T, U or X. The Borrower shall not request or
accept any Loan in violation of Regulations G, T, U or X. The Borrower shall not
use proceeds of the Loans in a manner which violates any term or condition of
any Loan Document or which violates any applicable law.
6.14 CHANGE OF BUSINESS. The Borrower shall not nor shall it allow
any Subsidiary to engage in any business other than owning, constructing,
managing, operating and investing in Cellular Systems, paging businesses and
other wireless communication and related businesses. The Borrower shall not
permit any material change in such businesses.
6.15 CHANGE OF CONTROL. The Borrower shall not permit a Change of
Control.
6.16 CHANGE OF FISCAL YEAR. The Borrower shall not change its
Fiscal Year, which now ends on December 31.
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6.17 ERISA. The Borrower shall not:
(i) (A) With respect to any Plan or Money Purchase Plan, incur
any material liability for failure to make timely payment of any contribution or
installment required under Section 302 of ERISA and Section 412 of the Internal
Revenue Code, whether or not waived, or otherwise materially fail to comply with
the funding provisions set forth therein, (B) with respect to any Plan or Money
Purchase Plan, suffer to exist any lien under Section 302(f) of ERISA or Section
412(n) of the Internal Revenue Code against the property and rights to property
of the Borrower or any ERISA Affiliate or (C) terminate, or permit any ERISA
Affiliate to terminate, any such Plan in a manner which could reasonably be
expected to result in the imposition of a lien upon the property or rights to
property of the Borrower or any ERISA Affiliate pursuant to Section 4068 of
ERISA;
(ii) Engage in any "prohibited transaction" (as defined in
Section 406 of ERISA or Section 4975 of the Internal Revenue Code) with respect
to any "employee benefit plan" (as defined in Section 3(3) of ERISA) for which a
statutory or administrative exemption is not available under Section 408 of
ERISA or Section 4975 of the Internal Revenue Code; and
(iii) Partially or completely withdraw from any Multiemployer
Plan where such withdrawal could reasonably be expected to subject the affected
Borrower or any ERISA Affiliate to Withdrawal Liability, except for withdrawals
that would not have a Material Adverse Effect.
ARTICLE 7. CONDITIONS TO MAKING LOANS
7.1 ALL LOANS. The obligation of the Lenders to make each Loan
is subject to the satisfaction of each of the following conditions precedent:
7.1a REQUEST FOR LOAN. Receipt by the Administrative Agent of a
request for a Loan satisfying the requirements of Section 2.4.
7.1b NO DEFAULT OR EVENT OF DEFAULT. The Borrower shall have
performed and complied with all agreements and conditions herein required to be
performed or complied with by it prior to any Loan being made or issued, at the
time such Loan is made or as a result of making such Loan, no Default or Event
of Default has occurred and is continuing or will be caused by the making of
such Loan, and at the time such Loan is made or as a result of making such Loan,
no default or event of default under the Structurally Subordinated Indebtedness
Documents has occurred and is continuing or will be caused by the making of such
Loan.
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7.1c NO MATERIAL ADVERSE CHANGE. At the time of making such Loan,
no Material Adverse Change has occurred and is continuing.
7.1d REPRESENTATIONS CORRECT. The representations and warranties
contained in Article 4 hereof and otherwise made in writing by or on behalf of
the Borrower, any Subsidiary of the Borrower or Wireless in connection with the
transactions contemplated by this Agreement shall be (i) correct when made; and
(ii) correct in all material respects at the time of each Loan; PROVIDED that,
for purposes of this item (ii), if at the time of any request by the Borrower
for a Loan a misrepresentation has resulted from a change in the Borrower's, any
Subsidiary's or Wireless' ownership, operations or business, which change is not
prohibited under the Loan Documents, such misrepresentation alone shall not
preclude the making of such Loan.
Each request for a Loan, whether made orally or in writing, shall be deemed to
be, as of the time made, a representation and warranty by the Borrower as to the
accuracy of the matters set forth in Sections 7.1b, 7.1c and 7.1d.
7.2 INITIAL LOAN. The obligation of the Lenders to make the first
Loan hereunder is subject to the satisfaction of each of the following
conditions precedent, in addition to the applicable conditions precedent set
forth in Section 7.1:
7.2a CREDIT AGREEMENT. Receipt by the Administrative Agent of a
fully-executed copy of this Agreement.
7.2b SCHEDULES TO CREDIT AGREEMENT. Receipt by the Administrative
Agent of all schedules to this Agreement and the other Loan Documents prepared
by the Borrower, in form and substance satisfactory to the Lenders.
7.2c REVOLVING CREDIT NOTES. Receipt by the Administrative Agent
for redelivery to each Lender of a Revolving Credit Note executed by the
Borrower and payable to each Lender.
7.2d SECURITY AGREEMENT. Receipt by the Collateral Agent of the
Security Agreement executed by the Borrower.
7.2e FINANCING STATEMENTS. Receipt by the Collateral Agent of all
Uniform Commercial Code financing statements requested by it, each signed by the
Borrower, and the filing of such financing statements by the Collateral Agent in
the appropriate filing offices.
7.2f LIEN SEARCHES. Receipt by the Collateral Agent of lien and
judgment searches with results satisfactory to the Agents and the Lenders.
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7.2g TERMINATION STATEMENTS, ETC. Receipt by the Collateral Agent
of all Uniform Commercial Code termination statements, mortgage satisfactions
and other documents and instruments of termination and release necessary so that
the Security Interests granted to the Collateral Agent for the benefit of the
Lenders pursuant to the Security Documents are first and prior liens and
security interests, subject only to Permitted Encumbrances.
7.2h PERFECTION CERTIFICATE. Receipt by the Collateral Agent of
the Perfection Certificate in the form of EXHIBIT "F" hereto, duly completed and
executed by the Borrower.
7.2i PLEDGE OF BORROWER'S STOCK. Receipt by the Collateral Agent
of (i) the Pledge Agreement, duly executed by Wireless, (ii) all certificates
evidencing the stock of the Borrower pledged pursuant to such Pledge Agreement,
(iii) a signed, undated stock power for each such certificate, and (iv) if
requested by the Agents, a form U-1 executed by the Borrower.
7.2j HORIZON ACQUISITION. The Agents shall be satisfied that the
Horizon Acquisition has been consummated in accordance, in all material
respects, with its terms and no deviations from the terms of the Horizon
Acquisition Documents could reasonably be expected to have a Material Adverse
Effect, that all conditions precedent to the consummation thereof have been
satisfied, waived or otherwise provided for, that all consideration required to
be paid on or prior to the Closing Date in connection with the Horizon
Acquisition has been paid, and that title to the assets purchased pursuant
thereto has been transferred to the Borrower (except for certain Governmental
Approvals temporarily owned by Wireless), and receipt by the Administrative
Agent of (i) Wireless' certificate as to the foregoing, having attached thereto
fully-executed copies of the Horizon Acquisition Agreement and all agreements,
instruments, approvals and documents executed and delivered in connection
therewith, certified as true, correct and complete by Wireless, (ii) any other
evidence deemed reasonably necessary by and satisfactory to the Agents that the
Horizon Acquisition has been consummated, (iii) a copy, certified by the
Secretary of Wireless, of all action taken by Wireless to authorize the Horizon
Acquisition, and (iv) evidence satisfactory to the Agents that all Governmental
Approvals and all other consents, waivers and permits required to be obtained in
connection with the Horizon Acquisition have been obtained, are in effect and
unconditional and have been properly and, in the case of all of the MSA FCC
Licenses and the RSA FCC Licenses, finally assigned to the Borrower.
7.2k STRUCTURALLY SUBORDINATED INDEBTEDNESS. The Agents shall be
satisfied that the Structurally Subordinated Indebtedness in a minimum principal
amount of $80,000,000 has been issued by Wireless in accordance with the
Structurally Subordinated Indebtedness Documents, and that all conditions
precedent to the issuance thereof have been satisfied, waived or otherwise
provided for, and receipt by the Administrative Agent of (i) Wireless'
certificate as to the foregoing, having attached thereto fully-executed copies
of the Structurally Subordinated Indebtedness Document and all agreements,
instruments, approvals
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and documents executed and delivered in connection therewith, certified as true,
correct and complete by Wireless, (ii) any other evidence deemed reasonably
necessary by and satisfactory to the Agents that such issuance has occurred,
(iii) a copy, certified by the Secretary of Wireless, of all action taken by
Wireless to authorize such issuance, (iv) evidence satisfactory to the Agents
that all consents, waivers and permits required to be obtained in connection
with such issuance have been obtained and are in effect and unconditional and
(v) evidence satisfactory to the Agent that the proceeds of the Structurally
Subordinated Indebtedness have been applied as a portion of the purchase price
of the Horizon Acquisition.
7.2l REORGANIZATION OF SYGNET COMPANIES. The Agents shall be
satisfied that the reorganization of the Sygnet companies has been consummated
on terms disclosed to the Lenders, with the result that (i) Wireless owns no
material assets other than cash or cash equivalents in an amount not to exceed
$15,000,000 and all of the issued and outstanding capital stock of the Borrower
and (ii) the Borrower owns all of the assets of such companies, and receipt by
the Administrative Agent of (A) the Borrower's certificate as to the foregoing,
having attached thereto all documents and instruments relating to such
reorganization, along with evidence that such documents and instruments have,
where appropriate, been filed with the appropriate Governmental Authorities and
have become effective, all certified as true, correct and complete by the
Borrower, (B) any other evidence deemed reasonably necessary by and satisfactory
to the Agents that such reorganization has occurred, (C) a copy, certified by
the Secretary of the Borrower, of all action taken by the various Sygnet
entities to authorize such reorganization and (D) evidence satisfactory to the
Agents that all consents, waivers and permits required to be obtained in
connection with such reorganization have been obtained and are in effect and
unconditional.
7.2m HAZARD AND LIABILITY INSURANCE. Receipt by the Collateral
Agent of (i) copies of the Borrower's insurance policies which comply with the
requirements of Section 5.8 and the insurance requirements set forth in the
other Loan Documents and (ii) current insurance certificates, with long-form
lender loss payable endorsements, as required pursuant to Section 5.8.
7.2n CORPORATE DOCUMENTS FOR BORROWER AND WIRELESS. Receipt by the
Administrative Agent of the following corporate documents for each of the
Borrower and Wireless:
(i) a copy of its articles and/or certificate of
incorporation, certified as true and correct by the Secretary of State of the
state of its incorporation not more than thirty (30) days prior to the date
hereof;
(ii) good standing certificates issued by the Secretaries of
State of the state of its incorporation and each state where it is required to
be qualified to do business, each dated not more than thirty (30) days prior to
the date hereof;
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(iii) resolutions of its board of directors authorizing the
execution and delivery of the Loan Documents to be executed by it and the
performance by it pursuant thereto, certified by its secretary or assistant
secretary as being true, correct, complete and in effect and in form and
substance satisfactory to the Administrative Agent;
(iv) a copy of its regulations or by-laws and all amendments
thereto, certified by its secretary or assistant secretary as being true,
correct, complete and in effect; and
(v) an incumbency certificate showing the names of its
officers, their respective titles and containing their true signatures.
7.2o GOVERNMENTAL APPROVALS. Receipt by the Administrative Agent
of copies of all of the Borrower's MSA FCC Licenses, RSA FCC Licenses, and New
York Public Service Commission approvals.
7.2p CLOSING CERTIFICATE. Receipt by the Administrative Agent of a
certificate, dated as of the Closing Date and executed by an Authorized Officer
of the Borrower, stating that, as of the Closing Date and after giving effect to
the Loans made on such date, all of the representations and warranties made by
the Borrower herein and in the other Loan Documents are true and correct; no
Default or Event of Default exists; no Material Adverse Change has occurred and
no circumstances exist which would cause a Material Adverse Effect; and showing
compliance on a pro forma basis with all of the financial covenants set forth in
Section 6.4, and the Agents' satisfaction with the accuracy and completeness of
all of the foregoing.
7.2q TERMINATION OF EXISTING CREDIT AGREEMENT. The Existing Credit
Agreement and the right of the Borrowers which are parties thereto to borrow
thereunder shall have terminated and the Borrower and Wireless shall have
executed a letter agreement to this effect, satisfactory to PNC Bank, National
Association, and all outstanding principal, interest, fees and other amounts due
thereunder shall have been paid in full with the first Loan made hereunder.
7.2r PAYOFF LETTER FOR EXISTING CREDIT AGREEMENT. Receipt by the
Administrative Agent of a payoff letter from PNC Bank, National Association,
relating to the Existing Credit Agreement, in a form satisfactory to the
Administrative Agent.
7.2s REQUEST FOR INITIAL LOANS. Receipt by the Administrative
Agent of written instructions addressed to the Administrative Agent and executed
by the Borrower, instructing the Administrative Agent as to the disbursement of
the Loans to be made on the Closing Date, and containing complete wire transfer
instructions, if applicable.
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7.2t ADEQUACY OF LEGAL MATTERS. All legal matters incident to the
Loans and the Loan Documents shall be satisfactory to counsel for the Agents.
7.2u FEE LETTERS; FEES. Receipt by the Agents of the Fee Letter
signed by the Borrower, and all Fees described therein which are payable on or
prior to the Closing Date, in immediately available funds.
7.2v LEGAL FEES. Payment of the Agents' legal fees and costs.
7.2w OPINIONS OF COUNSEL. Receipt by the Administrative Agent of
an opinion of counsel to the Borrower, Bryan Cave LLP and Harrington & Mitchell,
Ltd.
ARTICLE 8. EVENTS OF DEFAULT; REMEDIES
8.1 EVENTS OF DEFAULT. Each of the following events shall
constitute an Event of Default:
8.1a NONPAYMENT OF BORROWER'S OBLIGATIONS. The Borrower shall
default (i) in any payment or required prepayment of principal of the Loans when
due or any scheduled Revolving Credit Commitment reduction when due, or (ii) in
the payment of interest on any Loans when due, or in the payment of any of the
Fees, expenses or other amounts due hereunder or under any of the other Loan
Documents when due, and such default in payment of interest, Fees, expenses or
other amounts shall have continued for a period of five (5) Business Days after
such due date.
8.1b VIOLATIONS UNDER OTHER INDEBTEDNESS. The Borrower, any
Subsidiary of the Borrower, or Wireless shall (i) default in the payment of any
other Indebtedness, which Indebtedness has an aggregate principal outstanding
balance of $3,000,000 or more when such payment is due (whether by acceleration
or otherwise), or (ii) default in the performance of any term of any agreement
or instrument under which any such Indebtedness is created or by which it is
governed or evidenced, if the effect of any such default is to cause such
Indebtedness to become, or to permit the holder or holders of such Indebtedness
(or any Person on behalf of such holder) to declare, such Indebtedness due prior
to its expressed maturity.
8.1c INSOLVENCY, ETC.
(i) INVOLUNTARY PROCEEDINGS. A proceeding shall have been
instituted in a court having jurisdiction seeking a decree or order for relief
in respect of the Borrower, any Subsidiary of the Borrower or Wireless in an
involuntary case under the Federal bankruptcy laws, or any other similar
applicable Federal or state law, now or hereafter in effect, or for the
appointment of a receiver, liquidator, trustee, sequestrator or similar official
for the
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Borrower or for a substantial part of their respective property, or for the
winding up or liquidation of their respective affairs, and the same (A) is not
controverted within a period of fifteen (15) days and (B) shall remain
undismissed or unstayed and in effect for a period of sixty (60) days.
(ii) VOLUNTARY PROCEEDINGS. The Borrower, any Subsidiary of
the Borrower or Wireless shall institute proceedings to be adjudicated a
voluntary bankrupt, or shall consent to the filing of a bankruptcy proceeding
against it, or shall file a petition or answer or consent seeking reorganization
under the Federal bankruptcy laws, or any other similar applicable Federal or
state law now or hereafter in effect, or shall consent or acquiesce to the
filing of any such petition, or shall consent to or acquiesce in the appointment
of a receiver, liquidator, trustee, sequestrator or similar official for the
Borrower, any Subsidiary or Wireless or for a substantial part of their
respective property, or shall make an assignment for the benefit of creditors,
or shall admit in writing its inability to pay its debts generally as they
become due, or action shall be taken by the Borrower, any Subsidiary or Wireless
in furtherance of any of the foregoing.
8.1d DISSOLUTION; CESSATION OF BUSINESS; ABANDONMENT OF CELLULAR
SYSTEM, ETC. The Borrower, any Subsidiary of the Borrower (except as otherwise
provided herein) or Wireless shall terminate its existence, cease to exist,
permanently cease operations or abandon the operation of any Cellular System;
PROVIDED, HOWEVER, the loss of the Borrower's Interim Operating Authority of
Pennsylvania RSA No. 2 shall not be deemed a cessation or abandonment of the
operation of a Cellular System for the purposes of this Section 8.1d.
8.1e FCC LICENSES. The loss, revocation or failure to file for
renewal of any cellular FCC License; the commencement of proceedings to suspend,
revoke, terminate or substantially and adversely modify any cellular FCC
License, which proceedings are not dismissed or discharged within sixty (60)
days; or the designation of an application for renewal of any such cellular FCC
License for an evidentiary hearing, which cellular FCC License is now held or
hereafter acquired by the Borrower or a Subsidiary of the Borrower and is
necessary for the continued operation of the Borrower's or such Subsidiary's
business in the same manner as is being conducted at the time of such loss,
revocation, failure to renew, commencement of proceedings or designation of a
hearing; PROVIDED, HOWEVER, the loss of the Borrower's Interim Operating
Authority of Pennsylvania RSA No. 2 shall not be deemed a loss, termination,
revocation or failure to renew for the purposes of this Section 8.1e.
8.1f ERISA. (i) One or more of the following events occur:
(A) A Notice of Intent to Terminate any Plan
(including any Plan of an ERISA Affiliate) is filed under Section 4041(c) of
ERISA;
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(B) Proceedings shall be instituted for the
appointment of a trustee by the appropriate United States court to administer
any Plan (including any Plan of an ERISA Affiliate);
(C) the PBGC shall institute proceedings to terminate
any Plan (including any Plan of an ERISA Affiliate) or to appoint a trustee to
administer any such Plan;
(D) A notice assessing Withdrawal Liability with
respect to any Multiemployer Plan (including any Multiemployer Plan of an ERISA
Affiliate) shall have been received by the Borrower or any ERISA Affiliate; or
(ii) Any applicable law, rule or regulation is adopted,
changed or interpreted by any Governmental Authority or agency or court with
respect to or otherwise affecting one or more Plans, Multiemployer Plans or
Benefit Arrangements which, in the reasonable opinion of the Administrative
Agent, (A) could have a Material Adverse Effect on the priority of any lien or
security interest in favor of the Administrative Agent as established or
described in this Agreement or the other Loan Documents, or (B) result in the
existence of an Encumbrance on the Borrower's assets which is not a Permitted
Encumbrance.
8.1g CHANGE OF CONTROL. The occurrence of a Change of Control.
8.1h ADVERSE JUDGMENTS. The aggregate amount of final judgments
against the Borrower or any Subsidiary of the Borrower for which no further
appellate review exists shall, at any one time, exceed, by $3,000,000 or more,
the aggregate amount of insurance proceeds available to pay such judgments.
8.1i FAILURE TO TAKE CERTAIN ACTION. The Borrower shall fail to
take measures satisfactory to the Administrative Agent, within thirty (30) days
after notice to the Borrower by the Administrative Agent, with respect to any
action, suit, investigation, proceeding or Environmental Claim then pending or
threatened against the Borrower or any Subsidiary of the Borrower, the outcome
of which, in the reasonable judgment of the Administrative Agent, could
reasonably be expected to have a Material Adverse Effect.
8.1j FAILURE TO COMPLY WITH LOAN DOCUMENTS.
(i) FAILURE TO COMPLY WITH NEGATIVE COVENANTS. The Borrower
shall default in the due performance or observance of any negative covenant
contained in Article 6 of this Agreement.
(ii) FAILURE OF WIRELESS TO COMPLY WITH PLEDGE AGREEMENT.
Wireless shall default in the due performance or observance of any covenant
contained in Article IV of the Pledge Agreement to which it is a party.
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(iii) FAILURE TO COMPLY WITH OTHER COVENANTS AND LOAN
DOCUMENTS. The Borrower shall default in the due performance or observance of
any covenant, condition or provision set forth in this Agreement or any of the
other Loan Documents which is not set forth elsewhere in this Section 8.1, or
the Borrower, any Subsidiary of the Borrower or Wireless shall default in the
due performance of any covenant, condition or provision set forth in any other
Loan Document to which the Borrower, such Subsidiary or Wireless is a party,
which default is not otherwise described in this Subsection 8.1j, and such
default described in this item (iii) shall not be remedied to the satisfaction
of the Administrative Agent for a period of thirty (30) days after the earlier
of (A) such default becoming known to any Authorized Officer or (B) notice of
such default being delivered by the Administrative Agent to the Borrower.
8.1k MISREPRESENTATION. Any material representation or warranty
made by the Borrower, any Subsidiary of the Borrower or Wireless in any Loan
Document to which it is a party is untrue in any material respect as of the date
made, or any schedule, statement, report, notice, certificate or other writing
furnished by the Borrower, any Subsidiary of the Borrower or Wireless to the
Administrative Agent, the Documentation Agent, the Collateral Agent or any
Lender is untrue in any material respect on the date as of which the facts set
forth therein are stated or certified.
8.1l INVALIDITY, ETC. OF LOAN DOCUMENTS. Any material provision
of this Agreement or any of the other Loan Documents shall at any time for any
reason cease to be valid and binding on the Borrower or on any other Person
which is a party thereto, or shall be declared to be null and void, or the
validity or enforceability thereof shall be contested by the Borrower or any
other party thereto or any Governmental Authority, or the Borrower or any other
party thereto shall deny that it has any or further liability or obligation
under any Loan Document to which it is a party.
8.1m MATERIAL ADVERSE CHANGE. The occurrence of any Material
Adverse Change.
8.2 REMEDIES.
8.2a EVENTS OF DEFAULT UNDER SECTIONS 8.1C AND 8.1D. Upon the
occurrence of an Event of Default set forth in Sections 8.1c and 8.1d, the
Revolving Credit Commitment shall automatically terminate and automatically the
Revolving Credit Notes, interest accrued thereon, all other Obligations of the
Borrower and all obligations, if any, of any Subsidiary of the Borrower or
Wireless under any Loan Document to the Lenders and the Agents shall all become
immediately due and payable, without the necessity of demand, presentation,
protest, notice of dishonor or notice of default, all of which are hereby
expressly waived and deemed to be waived by the Borrower, any Subsidiary of the
Borrower or Wireless. Thereafter, the Lenders shall have no further obligation
to make any additional Loans hereunder. In addition, during any 60-day period
described in Section 8.1c(i), the Lenders shall not have any obligation to make
any additional Loans hereunder.
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8.2b REMAINING EVENTS OF DEFAULT. Upon the occurrence and during
the continuance of any Event of Default set forth in Sections 8.1a, 8.1b, 8.1e,
8.1f, 8.1g, 8.1h, 8.1i, 8.1j, 8.1k, 8.1l or 8.1m, the Required Lenders may, at
their option, declare the Revolving Credit Commitment terminated and the
Revolving Credit Notes, interest accrued thereon, all other Obligations of the
Borrower and all obligations, if any, of any Subsidiary of the Borrower or
Wireless under any Loan Document to the Lenders and the Agents to be due and
payable, without the necessity of demand, presentation, protest, notice of
dishonor or notice of default, all of which are hereby expressly waived and
deemed to be waived by the Borrower, any Subsidiary of the Borrower or Wireless.
Thereafter, the Lenders shall have no further obligation to make any additional
Loans hereunder.
8.2c ADDITIONAL REMEDIES. In addition to the remedies set forth
above, upon the occurrence of any Event of Default, the Lenders and the Agents
shall have all of the rights and remedies granted to them under this Agreement
and the other Loan Documents and all other rights and remedies granted by law to
creditors.
8.2d EXERCISE OF REMEDIES; REMEDIES CUMULATIVE. No delay on the
part of the Agents or the Lenders or failure by the Agents and the Lenders to
exercise any power, right or remedy under this Agreement or any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any power, right or remedy or any abandonment or discontinuance of
steps to enforce such right, power or remedy preclude other or further exercises
thereof, or the exercise of any other power, right or remedy. The rights and
remedies in this Agreement and the other Loan Documents are cumulative and not
exclusive of any rights or remedies (including, without limitation, the right of
specific performance) which the Lender would otherwise have.
ARTICLE 9. ADMINISTRATIVE AGENT, DOCUMENTATION AGENT AND COLLATERAL AGENT
9.1 APPOINTMENT AND GRANT OF AUTHORITY. The Lenders hereby appoint
Toronto Dominion (Texas), Inc. as Administrative Agent and Toronto Dominion
(Texas), Inc. agrees to act as Administrative Agent under this Agreement and the
other Loan Documents. The Lenders hereby appoint PNC Bank, National Association,
and PNC Bank, National Association hereby agrees to act as Documentation Agent
and as Collateral Agent under this Agreement and the other Loan Documents. The
Agents shall have and may exercise such powers under this Agreement as are
specifically delegated to them by the terms hereof or of the other Loan
Documents, together with such other powers as are incidental thereto. Without
limiting the foregoing, the Agents or any of them as appropriate, on behalf of
the Lenders, are each authorized to execute all of the Loan Documents (other
than this Agreement) for and on behalf of the Lenders and to accept all of the
Loan Documents and all other agreements, documents or instruments reasonably
required to carry out the intent of the parties to this Agreement.
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9.2 NON-RELIANCE ON ADMINISTRATIVE AGENT. Each Lender agrees that
it has, independently and without reliance on the Agents, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis of the Borrower and decision to enter into this Agreement and that it
will, independently and without reliance upon the Agents, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own analysis and decisions in taking or not taking action under this
Agreement. Except as otherwise provided herein, the Agents shall have no duty to
keep the Lenders informed as to the performance or observance by the Borrower of
this Agreement or any other Loan Document referred to or provided for herein or
to inspect the properties or books of the Borrower. The Administrative Agent
will make reasonable efforts to furnish to the Lenders material information
concerning the Borrower of which it has actual knowledge; however, the
Administrative Agent, in the absence of gross negligence or willful misconduct,
shall not be liable to any Lender for its failure to relay or furnish to the
Lenders any information.
9.3 RESPONSIBILITY OF AGENTS AND OTHER MATTERS.
9.3a MINISTERIAL NATURE OF DUTIES. As between the Lenders and
themselves, the Agents shall not have any duties or responsibilities except
those expressly set forth in this Agreement or in the other Loan Documents, and
those duties and responsibilities shall be subject to the limitations and
qualifications set forth in this Article 9. The duties of the Agents shall be
ministerial and administrative in nature.
9.3b LIMITATION OF LIABILITY. As between the Lenders and
themselves, neither the Agents nor any of their respective directors, officers,
employees or agents shall be liable, except for gross negligence or willful
misconduct, for any action taken or omitted under or in connection with this
Agreement, any other Loan Document, or any other instrument or document in
connection herewith. Without limiting the foregoing, neither the Agents nor any
of their respective directors, officers, employees or agents, shall be
responsible for, or have any duty to examine (i) the genuineness, execution,
validity, effectiveness, enforceability, value or sufficiency of this Agreement
or any of the other Loan Documents or any other document or instrument furnished
pursuant to or in connection with this Agreement; (ii) the collectability of any
amounts owed by the Borrower, any Subsidiary of the Borrower or Wireless to the
Lenders; (iii) the truthfulness of any recitals, statements, representations or
warranties made to the Agents or the Lenders in connection with this Agreement,
the other Loan Documents or any other document or instrument furnished pursuant
to or in connection with the Loan Documents, (iv) any failure of any party to
this Agreement to receive any communication sent, including any telegram, telex,
teletype, telecopy, bank wire, cable, radiogram or telephone message or any
writing, application, notice, report, statement, certificate, resolution,
request, order, consent letter or other instrument, paper or communication
entrusted to the mails or to a delivery service, or (v) the assets, liabilities,
financial condition, results of operations, business, prospects or
creditworthiness of the Borrower, any Subsidiary of the Borrower or Wireless.
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9.3c RELIANCE. The Agents shall be entitled to act, and shall
be fully protected in acting upon, any telegram, telex, teletype, telecopy, bank
wire, cable or radiogram or any writing, application, notice, report, statement,
certificate, resolution, request, order, consent, letter, other instrument,
paper or communication believed by the Agent receiving the same in good faith to
be genuine and correct and to have been signed or sent or made by a proper
Person. The Agents may consult counsel and shall be entitled to act, and shall
be fully protected in any action taken in good faith, in accordance with advice
given by counsel. The Agents may employ agents and attorneys-in-fact and shall
not be liable for the default or misconduct of any such agents or
attorneys-in-fact selected by the Agents with reasonable care. The Agents shall
not be bound to ascertain or inquire as to the performance or observance of any
of the terms, provisions or conditions of this Agreement or any of the other
Loan Documents on the part of the Borrower, any Subsidiary of the Borrower or
Wireless.
9.3d DOCUMENTS. The Agents shall be under no duty to examine,
inquire into, or pass upon the validity, effectiveness or genuineness of this
Agreement, any Revolving Credit Note, any other Loan Document, or any
instrument, document or communication furnished pursuant hereto or in connection
herewith, and each Agent shall be entitled to assume that they are valid,
effective and genuine, have been signed or sent by the proper parties and are
what they purport to be.
9.3e RESPONSIBILITY DISCLAIMED. No Agent shall be under any
liability or responsibility whatsoever as an Agent:
(i) To the Borrower or any other Person as a consequence of
any failure or delay in performance by or any breach by any Lender or Lenders of
any of its or their obligations under this Agreement;
(ii) To any Lender or Lenders, as a consequence of any failure
or delay in performance by, or any breach by, (i) the Borrower of any of its
obligations under this Agreement or the Notes or any other Loan Document, or
(ii) any Subsidiary of the Borrower, Wireless or any other obligor under any
other Loan Document;
(iii) To any Lender or Lenders, for any statements,
representations or warranties in this Agreement, or any other document
contemplated by this Agreement or any information provided pursuant to this
Agreement, any other Loan Document, or any other document contemplated by this
Agreement, or for the validity, effectiveness, enforceability or sufficiency of
this Agreement, the Notes, any other Loan Document, or any other document
contemplated by this Agreement; or
(iv) To any Person for any act or omission other than that
arising from gross negligence or willful misconduct of such Administrative
Agent, the Documentation Agent or the Collateral Agent, as the case may be, as
determined by a final, non-appealable judicial order of a court of competent
jurisdiction.
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9.4 COLLATERAL AGENT. The Collateral Agent is hereby authorized to
act on behalf of the Lenders, in its own capacity and through other agents and
sub-agents appointed by it, under the Security Documents, provided that the
Collateral Agent shall not agree to the release of any Collateral except in
compliance with Section 10.1 hereof.
9.5 ACTION ON INSTRUCTIONS. The Agents shall be entitled to act
or refrain from acting, and shall be fully protected in acting or refraining
from acting, under this Agreement, the other Loan Documents or any other
instrument or document in connection herewith or therewith, in accordance with
written instructions from the Required Lenders or, in the case of the matters
set forth in item (ii) of Section 10.1, from all of the Lenders. For purposes of
this Agreement and the other Loan Documents, unless the context clearly
indicates otherwise, all determinations by or requests by "Lenders" shall mean
the Required Lenders.
9.6 ACTION UPON OCCURRENCE OF A DEFAULT OR EVENT OF DEFAULT. If a
Default or Event of Default has occurred, all the Lenders shall immediately
consult with one another in an attempt to agree upon a mutually acceptable
course of conduct. In the absence of unanimous agreement upon a course of
conduct, if the Required Lenders wish to declare an Event of Default and/or
exercise their rights hereunder, the Agents will exercise the rights of the
Lenders hereunder as directed by the Required Lenders.
9.7 INDEMNIFICATION. To the extent the Borrower does not reimburse
and save harmless the Agents according to the terms hereof for and from all
costs, expenses and disbursements in connection herewith, such costs, expenses
and disbursements shall be borne by the Lenders ratably in accordance with their
respective Commitments. Each Lender hereby agrees on such basis (i) to reimburse
the Agents for such Lender's Pro Rata share of all such reasonable costs,
expenses and disbursements on request and (ii) to the extent of each such
Lender's Pro Rata share, to indemnify and save harmless the Agents against and
from any and all losses, obligations, penalties, actions, judgments and suits
and other costs, expenses and disbursements of any kind or nature whatsoever
which may be imposed on, incurred by or asserted against the Agents, other than
as a consequence of gross negligence or willful misconduct on the part of the
Agents, arising out of or in connection with this Agreement, the other Loan
Documents or any other agreement, instrument or document in connection herewith
or therewith, or any request of the Required Lenders, including without
limitation the reasonable costs, expenses and disbursements in connection with
defending itself against any claim or liability related to the exercise or
performance of any of its powers or duties under this Agreement, the other Loan
Documents, or any of the other agreements, instruments or documents delivered in
connection herewith or the taking of any action under or in connection with any
of the foregoing.
9.8 AGENTS' RIGHTS AS A LENDER. With respect to the Commitments of
each Agent as a Lender hereunder, and any Loans of the Agents or their
respective Affiliates under this Agreement, the other Loan Documents and any
other agreements, instruments and documents delivered pursuant hereto, the
Agents and their respective Affiliates shall have the same
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rights, powers, duties and obligations under this Agreement, the other Loan
Documents or other agreements, instruments or documents as any Lender, and may
exercise such rights and powers and shall perform such duties and fulfill such
obligations as though it were not an Agent or an Affiliate of an Agent. The
Agents or their respective Affiliates may accept deposits from, lend money to,
and generally engage, and continue to engage, in any kind of business with the
Borrower as if it were not an Agent or an Affiliate of an Agent.
9.9 LOAN ADVANCES BY ADMINISTRATIVE AGENT. Unless the officers of
the Administrative Agent responsible for administering this Agreement shall have
been notified in writing by a Lender prior to the date of any Loan that such
Lender will not make the amount which would constitute its Pro Rata share of
such Loan available to the Administrative Agent on or prior to the date of such
Loan, the Administrative Agent may (but shall not be required to) assume that
such Lender has made such amount available to the Administrative Agent on the
date of such Loan and the Administrative Agent or its Affiliate may, in reliance
upon such assumption, make available to the Borrower a corresponding amount. If
such Pro Rata share is made available to the Administrative Agent by a Lender on
a date after the date of such Loan, such Lender shall pay to the Administrative
Agent on demand an amount equal to the product of (i) the average, computed for
the period referred to in clause (iii) below, of the Federal Funds Rate during
each day included in such period, times (ii) the amount of such Lender's Pro
Rata share of such Loan, times (iii) a fraction, the numerator of which is the
number of days that elapsed from and including the date of such Loan, to the
date on which such Pro Rata share of such Loan became immediately available to
the Administrative Agent, and the denominator of which is 365. A statement of
the Administrative Agent submitted to any Lender with respect to any amounts
owing under this Section 9.9 shall be prima facie evidence as to the amount owed
by that Lender to the Administrative Agent. If such Lender's Pro Rata share is
not in fact made available to the Administrative Agent by such Lender within
three (3) Business Days of the date of any Loan, the Administrative Agent shall
be entitled to recover such amount with interest thereon at the rate per annum
then applicable under the Base Rate Option during such period, on demand, from
such Lender.
9.10 PAYMENT TO LENDERS. Promptly after receipt from the Borrower
of any principal repayment of the Loans, interest due on the Loans, and any Fees
or other amounts due under any of the Loan Documents, the Administrative Agent
shall distribute to each Lender that Lender's Commitment Percentage of the funds
so received. Such delivery shall be accomplished in such a manner as to allow
each Lender to receive its share of such payment in immediately available funds
on the same day that the funds representing payment due from the Borrower is
collected funds in the possession of the Administrative Agent.
9.11 PRO RATA SHARING. Any sums obtained from the Borrower by any
Lender by reason of the exercise of its rights of setoff or banker's lien which
sums are in excess of such Lender's Pro Rata share of such sums, the excess
amount shall be shared Pro Rata among the Lenders. Nothing in this Section 9.11
shall be deemed to require the sharing among the
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Lenders of collections specifically relating to, or of the proceeds of
collateral which is not subject to the Security Documents specifically securing,
any other Indebtedness of the Borrower to any Lender.
9.12 NOTICE OF EVENT OF DEFAULT. Each Lender shall use its best
efforts to notify the Administrative Agent immediately in writing of any Default
or Event of Default of which it becomes aware. Upon receipt of any such notice,
the Administrative Agent shall use its best efforts to notify the Lenders
immediately in writing of such Default or Event of Default. The Administrative
Agent shall notify each Lender of any Default or Event of Default as soon as
practicable after obtaining actual knowledge thereof.
9.13 DELEGATION OF DUTIES. Each Agent may execute any of its duties
under the Loan Documents by or through agents or attorneys selected by it using
reasonable care, and shall be entitled to advice of counsel concerning all
matters pertaining to such duties.
9.14 SUCCESSOR AGENTS. The Administrative Agent may resign as
Administrative Agent, the Documentation Agent may resign as Documentation Agent
and the Collateral Agent may resign as Collateral Agent each upon giving ninety
(90) days' notice to the Lenders and the Borrower. If any such notice shall be
given, the Lenders shall appoint from among the Lenders a successor
administrative agent, documentation agent or collateral agent, as appropriate,
for the Lenders, during such ninety (90)-day period, which successor agent shall
be reasonably satisfactory to the Borrower, to serve as such agent hereunder and
under the several documents, the forms of which are attached hereto as exhibits,
or which are referred to herein. If at the end of such ninety (90)-day period
the Lenders have not appointed such a successor, the resigning Agent shall
procure a successor reasonably satisfactory to the Lenders and the Borrower, to
serve in place of the resigning Agent as an agent for the Lenders hereunder and
under the other Loan Documents. Any such successor agent shall succeed to the
rights, powers and duties of the resigning Agent. Upon the appointment of such
successor agent or upon the expiration of such ninety (90)-day period (or any
longer period to which the resigning Agent has agreed), the former Agent's
rights, powers and duties as Administrative Agent, Documentation Agent or
Collateral Agent, as applicable, shall be terminated, without any other or
further act or deed on the part of such resigning Agent or any of the parties to
this Agreement. After any resigning Agent's resignation hereunder as an Agent,
the provisions of this Article 9 shall inure to the benefit of such retiring
Agent as to any actions taken or omitted to be taken by it while it was an Agent
under this Agreement.
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ARTICLE 10. GENERAL PROVISIONS
10.1 AMENDMENTS AND WAIVERS. (i) Subject to the remaining
provisions of this Section 10.1, the Required Lenders, or the Agents with the
consent of the Required Lenders, and the Borrower may from time to time enter
into amendments, extensions, supplements and replacements to and of this
Agreement and the other Loan Documents to which they are parties, and the
Required Lenders may from time to time waive compliance with a provision of any
of the Loan Documents. Subject to the remaining provisions of this Section 10.1,
no amendment, extension, supplement, replacement or waiver shall be effective
unless it is in writing and is signed by the Required Lenders and the Borrower.
Each waiver shall be effective only for the specific instance and for the
specific purpose for which it is given.
(ii) The foregoing notwithstanding, no such amendment,
extension, supplement, replacement or waiver shall, without the consent of all
the Lenders:
(A) Increase the Revolving Credit Commitment
or the maximum principal amount of the Loans which may be outstanding hereunder;
(B) Reduce any interest rate hereunder or
any of the Fees due hereunder or under any of the other Loan Documents;
(C) Postpone any scheduled payment date of
principal (including any scheduled date for a mandatory reduction of the
Revolving Credit Commitment or a mandatory or voluntary principal prepayment),
interest or Fees hereunder or under any of the other Loan Documents;
(D) Release all or any part of the Security
Interest in any of the Collateral;
(E) Change the definitions of "Pro Rata" or
"Required Lenders";
(F) Release or discharge, or consent to any
release or discharge of, the Borrower as a borrower under the Loan Documents, or
release or discharge, or consent to any release or discharge of, any Subsidiary
from its obligations under any Subsidiary Guaranty Agreement, or permit the
Borrower, any Subsidiary of the Borrower or Wireless to assign to another Person
any of its obligations under the Loan Documents; or
(G) amend this Section 10.1.
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(iii) The foregoing provisions of this Section 10.1
notwithstanding, no Commitment or Commitment Percentage of any Lender may be
increased without the consent of such Lender.
10.2 TAXES. The Borrower shall pay any and all stamp, document,
transfer and recording taxes, filing fees and similar impositions payable or
hereafter reasonably determined by the Administrative Agent or the Collateral
Agent to be payable in connection with this Agreement, the other Loan Documents
and any other documents, instruments and transactions pursuant to or in
connection with any of the Loan Documents. The Borrower agrees to save the
Administrative Agent, the Collateral Agent and the Lenders harmless from and
against any and all present and future claims or liabilities with respect to, or
resulting from, any delay in paying or failure to pay any such taxes or similar
impositions. The obligations of the Borrower pursuant to this Section 10.2 shall
survive the termination of this Agreement and the repayment of the Obligations.
10.3 EXPENSES. The Borrower shall pay:
(i) All (A) out-of-pocket costs and expenses incurred by the
Agents in connection with the preparation, execution and delivery of this
Agreement, the other Loan Documents, and any and all other documents and
instruments prepared in connection herewith, including the Agents' legal fees
and expenses in connection therewith, and (B) all reasonable costs and expenses
of the Agents (including but not limited to reasonable fees and expenses of the
Agents' counsel) in connection with all amendments, waivers, consents and other
documents and instruments prepared or entered into from time to time in
connection with this Agreement and the other Loan Documents, after the Closing
Date; and
(ii) All (A) reasonable costs and expenses of the Agents
(including without limitation the reasonable fees and disbursements of the
Agents' counsel) and (B) reasonable costs and expenses of the Lenders (including
without limitation the reasonable fees and disbursements of the Lenders'
counsel) after the declaration of an Event of Default by the Lenders and the
giving of notice of such declaration to the Borrower (unless such Event of
Default occurs pursuant to Subsections 8.1c or 8.1d) in connection with (1) the
enforcement of this Agreement and the other Loan Documents arising pursuant to a
breach by the Borrower, any Subsidiary of the Borrower or Wireless of any of the
terms, conditions, representations, warranties or covenants of any Loan Document
to which it is a party; (2) the sale or other action taken with respect to the
Collateral; and (3) defending or prosecuting any actions, suits or proceedings
relating to any of the Loan Documents.
All of such costs and expenses shall be payable by the Borrower to the Agent
incurring the same upon demand or as otherwise agreed upon by such Agent and the
Borrower, and shall constitute Obligations under this Agreement. The Borrower's
obligations to pay such costs and expenses shall survive the termination of this
Agreement and the repayment of the Obligations.
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10.4 NOTICES.
10.4a NOTICE TO THE BORROWER. All notices required to be delivered
to the Borrower pursuant to this Agreement shall be in writing and shall be sent
to the following address, by United States Postal Service, first class mail
postage prepaid, hand delivery, recognized national overnight courier service,
telex, telegram, telecopier or other means of electronic data communication:
IF BY U.S. MAIL: IF BY OTHER MEANS:
Sygnet Communications, Inc. Sygnet Communications, Inc.
6550-B Seville Drive 6550-B Seville Drive
Canfield, OH 44406 Canfield, OH 44406
Attention: Craig T. Sheetz Attention: Craig T. Sheetz
Fax: 330-565-9557
WITH A COPY TO: WITH A COPY TO:
Samuel G. Rubenstein, Esq. Samuel G. Rubenstein, Esq.
Bryan Cave Bryan Cave
700 Thirteenth Street, N.W. 700 Thirteenth Street, N.W.
Washington, DC 20005-3960 Washington, DC 20005-3960
Fax: 202-508-6200
10.4b NOTICE TO THE ADMINISTRATIVE AGENT. All notices required to be
delivered to the Administrative Agent pursuant to this Agreement shall be in
writing and shall be sent to the following address, by United States Postal
Service, first class mail postage prepaid, hand delivery, recognized national
overnight courier service, telex, telegram, telecopier or other means of
electronic data communication:
IF BY U.S. MAIL: IF BY OTHER MEANS:
Toronto Dominion (Texas), Inc. Toronto Dominion (Texas), Inc.
909 Fannin 909 Fannin
Suite 1700 Suite 1700
Houston, TX 77010 Houston, TX 77010
Attention: Agency Department Attention: Agency Department
Fax: 713-951-9921
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WITH A COPY TO: WITH A COPY TO:
Tucker Arensberg, P.C. Tucker Arensberg, P.C.
1500 One PPG Place 1500 One PPG Place
Pittsburgh, PA 15222 Pittsburgh, PA 15222
Attention: Linda A. Acheson, Esq. Attention: Linda A. Acheson, Esq.
Fax: 412-594-5619
10.4c NOTICE TO THE DOCUMENTATION AGENT OR THE COLLATERAL AGENT. All
notices required to be delivered to the Documentation Agent or the Collateral
Agent, as appropriate, pursuant to this Agreement shall be in writing and shall
be sent to the following address, United States Postal Service, first class mail
postage prepaid, hand delivery, recognized national overnight courier service,
telex, telegram, telecopier or other means of electronic data communication:
IF BY U.S. MAIL: IF BY OTHER MEANS:
PNC Bank, National Association PNC Bank, National Association
1600 Market Street 1600 Market Street
21st Floor 21st Floor
Philadelphia, PA 19103 Philadelphia, PA 19103
Attention: Daniel E. Hopkins Attention: Daniel E. Hopkins
Fax: 215-585-6680
WITH A COPY TO: WITH A COPY TO:
Tucker Arensberg, P.C. Tucker Arensberg, P.C.
1500 One PPG Place 1500 One PPG Place
Pittsburgh, PA 15222 Pittsburgh, PA 15222
Attention: Linda A. Acheson, Esq. Attention: Linda A. Acheson, Esq.
Fax: 412-594-5619
10.4d NOTICE TO THE LENDERS. All notices required to be delivered to
the Lenders pursuant to this Agreement shall be in writing and shall be sent to
the address set forth underneath the Lender's signature to this Agreement or to
the Assignment and Assumption Agreement to which such Lender is a party, by
United States Postal Service, first class mail postage prepaid, hand delivery,
recognized national overnight courier service, telex, telegram, telecopier or
other means of electronic data communication.
10.4e GENERAL NOTICE PROVISIONS. All such notices shall be effective
three (3) Business Days after mailing, the date of telecopy transmission or when
received, whichever is earlier. The parties hereto may each change the address
for service of notice upon it by a notice in writing to the other party hereto.
Copies of notices shall be provided to Persons
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other than parties hereto only in the case of notices under Article 8 hereof and
the failure to provide such copies shall not affect the validity of the notice
given to the primary recipient.
10.5 ASSIGNMENTS.
10.5a ASSIGNMENTS. (i) Subject to the remaining provisions of this
Subsection 10.5a, any Lender may at any time, in the ordinary course of its
commercial banking business, in accordance with applicable law, sell to one or
more Purchasing Lenders (which Purchasing Lenders may be Affiliates of the
Transferor Lender), a portion of its rights and obligations under this Agreement
and the Revolving Credit Notes then held by it, pursuant to an Assignment and
Assumption Agreement substantially in the form of EXHIBIT "G" and satisfactory
to the Administrative Agent, executed by the Transferor Lender, such Purchasing
Lender, the Administrative Agent and the Borrower; subject, however to the
following requirements:
(A) The Borrower and the Agents must give their prior consent
to any such assignment, which consents shall not be unreasonably withheld;
(B) Each such assignment must be in a minimum amount of
$5,000,000, unless the Transferor Lender's Commitment is less than $5,000,000,
in which case such Transferor Lender may transfer all, but not less than all, of
its Commitment; and
(C) Each Transferor Lender (other than an Agent designated as
a Managing Agent) shall pay to the Administrative Agent a $3,500 service fee in
connection with each assignment made by it;
PROVIDED, HOWEVER, that (i) in the case of assignments made by a Lender to an
Affiliate of such Lender and (ii) after the occurrence of and during the
continuance of an Event of Default, (x) the requirements set forth in item (C)
above shall not be applicable and (y) the consents or agreements of the Borrower
contemplated in items (A) and (B) above shall not be required. The
Administrative Agent shall give notice to the Borrower of any assignment
hereunder which does not require the Borrower's prior consent.
(ii) Upon the execution, delivery, acceptance and recording of
any such Assignment and Assumption Agreement, from and after the Transfer
Effective Date determined pursuant to such Assignment and Assumption Agreement,
(A) the Purchasing Lender thereunder shall be a party hereto as a Lender and, to
the extent provided in such Assignment and Assumption Agreement, shall have the
rights and obligations of a Lender hereunder with a Commitment as set forth
therein, and (B) the Transferor Lender thereunder shall, to the extent provided
in such Assignment and Assumption Agreement, be released from its obligations
under this Agreement as a Lender. Such Assignment and Assumption Agreement shall
be deemed to amend this Agreement to the extent, and only to the extent,
necessary to reflect the addition of such Purchasing Lender as a Lender and the
resulting
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adjustments of Commitment Percentages arising from the purchase by such
Purchasing Lender of all or a portion of the rights and obligations of such
Transferor Lender under this Agreement and the Revolving Credit Notes. On or
prior to the Transfer Effective Date, the Borrower shall execute and deliver to
the Administrative Agent, in exchange for the surrendered Revolving Credit Notes
held by the Transferor Lender, new Revolving Credit Notes to the order of such
Purchasing Lender in an amount equal to the Commitment or the Loans assumed by
it and purchased by it pursuant to such Assignment and Assumption Agreement, and
new Revolving Credit Notes to the order of the Transferor Lender in an amount
equal to the Commitment or the Loans retained by it hereunder.
10.5b ASSIGNMENTS TO FEDERAL RESERVE BANK. In addition to the
assignments permitted above, any Lender may assign and pledge all or any portion
of its Loans and Revolving Credit Notes to any Federal Reserve Bank as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such Federal Reserve
Bank. No such assignment shall release the assigning Lender from its obligations
and duties hereunder or under the other Loan Documents.
10.5c ASSIGNMENT REGISTER. The Administrative Agent shall maintain
at its address referred to in Section 10.4 a copy of each Assignment and
Assumption Agreement delivered to it and a register (the "REGISTER") for the
recordation of the names and addresses of the Lenders and the amount of the
Loans owing to each Lender from time to time. The entries in the Register shall
be conclusive, in the absence of manifest error, and the Borrower, the
Administrative Agent, and the Lenders may treat each Person whose name is
recorded in the Register as the owner of the Loans recorded therein for all
purposes of this Agreement. The Register shall be available at the office of the
Administrative Agent set forth in Section 10.4 for inspection by the Borrower or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
10.6 PARTICIPATIONS.
10.6a SALE OF PARTICIPATIONS. The Lenders may, in the ordinary
course of their commercial banking business and in accordance with applicable
law, and after first obtaining the consent of the Borrower and the Agents, which
consents shall not be unreasonably withheld, at any time sell to one or more
Participants (which Participants may be Affiliates of a Lender) Participations
in the Revolving Credit Commitment, the Loans, the Revolving Credit Notes and
the other interests of the Lenders hereunder. In the event of any such sale of a
Participation, the selling Lender's obligations under this Agreement to the
Borrower shall remain unchanged, such Lender shall remain solely responsible for
its performance under this Agreement, such Lender shall remain the holder of the
Revolving Credit Note made payable to it for all purposes under this Agreement,
the Borrower shall continue to deal solely and directly with the selling Lender
in connection with such Lender's rights and obligations under this Agreement and
the other Loan Documents, and Participants shall be
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permitted to have voting rights only with respect to the matters described in
items (A), (B), (C), and (D) of item (ii) of Section 10.1.
10.6b RIGHT OF SETOFF. The Borrower agrees that if amounts
outstanding under this Agreement and the Revolving Credit Notes are due and
unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall be deemed to have,
to the extent permitted by applicable law, the right of setoff in respect of its
Participation in amounts owing under this Agreement and the Revolving Credit
Notes to the same extent as if the amount of its Participation were owing
directly to it as a lender under this Agreement or the Revolving Credit Notes.
10.7 WITHHOLDING OF INCOME TAXES. At least five (5) Business Days
prior to the first date on which interest or fees are payable hereunder for the
account of any Lender, Participant or Purchasing Lender, each Lender,
Participant and Purchasing Lender that is not incorporated under the laws of the
United States or a state thereof shall deliver to the Borrower and the
Administrative Agent two (2) duly completed copies of United States Internal
Revenue Service Form W-9, 4224 or 1001 or other applicable form prescribed by
the Internal Revenue Service. Such form shall certify that such Lender,
Participant or Purchasing Lender is entitled to receive payments under this
Agreement and the Revolving Credit Notes without deduction or withholding of any
United States Federal income taxes, or is subject to such tax at a reduced rate
under an applicable tax treaty or under United States Internal Revenue Service
Form W-8, or another applicable form or a certificate of such Lender,
Participant or Purchasing Lender indicating that no such exemption or reduced
rate is allowable with respect to such payments. Each Lender, Participant and
Purchasing Lender which delivers a Form W-8, W-9, 4224 or 1001 further
undertakes to deliver to the Borrower and the Administrative Agent two
additional copies of such form (or a successor form) on or before the date that
such form expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form so delivered by it, and such
amendments thereto or extensions or renewals thereof as may be reasonably
required by the Borrower or the Administrative Agent, either certifying that
such Lender, Participant or Purchasing Lender is entitled to receive payments
under this Agreement and the Revolving Credit Notes without deduction or
withholding of any United States Federal income taxes or is subject to such tax
at a reduced rate under an applicable tax treaty or stating that no such
exemption or reduced rate is allowable. The Administrative Agent shall be
entitled to withhold United States Federal income taxes at the full withholding
rate, unless the Lender, Participant or Purchasing Lender establishes an
exemption, or at the applicable reduced rate, as established pursuant to the
provisions of this Section 10.7.
10.8 INDEMNITY. The Borrower hereby agrees to indemnify the
Administrative Agent, the Documentation Agent, the Collateral Agent, the Lenders
and each of their respective directors, officers, employees, attorneys, agents
and Affiliates (each an "INDEMNIFIED PARTY") against, and hold each of them
harmless from, any loss, liabilities, damages, claims, and reasonable costs and
expenses (including reasonable attorneys' fees and
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disbursements) suffered or incurred by any of them arising out of, resulting
from or in any manner connected with, the execution, delivery and performance of
each of the Loan Documents, the Loans, any and all transactions related to or
consummated in connection with the Loans, the actual or proposed use of the
proceeds of the Loans, and any legal proceeding or any investigation by a
Governmental Authority unrelated to the Loan Documents or the Loans to which the
Borrower, any Subsidiary of the Borrower or Wireless is a party but to which no
Indemnified Party is a party, including, without limitation, losses,
liabilities, damages, claims, costs and expenses suffered or incurred by any
Indemnified Party arising out of or related to investigating, preparing for,
defending against, or providing evidence, producing documents or taking any
other action in respect of any commenced or threatened litigation,
administrative proceeding or investigation under any Federal securities law or
any other Governmental Rule of any jurisdiction, or at common law or otherwise,
that is alleged to arise out of or is based on (i) any untrue statement or
alleged untrue statement of any material fact of the Borrower or any Affiliate
of the Borrower in any document or schedule filed with the Securities and
Exchange Commission or any other Governmental Authority; (ii) any omission or
alleged omission to state any material fact required to be stated in such
document or schedule, or necessary to make the statements made therein, in light
of the circumstances under which made, not misleading; (iii) any actual or
alleged acts, practices or omissions of the Borrower or their respective
directors, officers, partners, employees, attorneys, agents or Affiliates
related to the making of any acquisition, purchase of shares or assets pursuant
thereto, financing of such purchases or the consummation of any other
transactions contemplated by any such acquisitions that are alleged to be in
violation of any Federal securities law or of any other statute, regulation or
other law of any jurisdiction applicable to the making of any such acquisition,
the purchase of shares or assets pursuant thereto, the financing of such
purchases or the consummation of the other transactions contemplated by any such
acquisition; or (iv) any withdrawals, termination or cancellation of any such
proposed acquisition for any reason whatsoever. The indemnity set forth in this
Section 10.8 shall be in addition to any other obligations or liabilities of the
Borrower to the Agents or the Lenders, or at common law or otherwise. The
provisions of this Section 10.8 shall survive the payment of the Obligations and
the termination of this Agreement. The foregoing provisions of this Section 10.8
to the contrary notwithstanding, the Borrower shall not be obligated to
indemnify any Indemnified Party pursuant to this Section 10.8 for any losses,
liabilities, damages, claims, or costs which arise directly from such
Indemnified Party's gross negligence or willful misconduct. All amounts owed
pursuant to this Section 10.8 shall be part of the Obligations.
10.9 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
the Borrower, the Administrative Agent, the Documentation Agent, the Collateral
Agent and the Lenders and their respective successors and assigns, and shall
inure to the benefit of the Borrower, the Administrative Agent, the
Documentation Agent, the Collateral Agent and the Lenders and their respective
successors and assigns; PROVIDED, HOWEVER, that the Borrower shall not assign
its rights or duties hereunder or under any of the other Loan Documents without
the prior written consent of all of the Lenders.
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10.10 FCC AND OTHER GOVERNMENTAL AUTHORITY MATTERS. Notwithstanding
anything to the contrary contained in this Agreement or any of the other Loan
Documents, but without limiting or waiving the Borrower's obligations, the
Administrative Agent's, the Documentation Agent's, the Collateral Agent's and
the Lenders' rights and the exercise of the Administrative Agent's, the
Documentation Agent's, the Collateral Agent's and the Lenders' remedies under
this Agreement and the other Loan Documents are subject to all applicable rules
and regulations of the FCC and all other applicable Governmental Authorities.
The Borrower agrees to take any action and to cause its Subsidiaries to take any
action which any Agent or the Lenders may reasonably request from time to time
in order to obtain and enjoy the full rights and benefits granted to the Agents
and the Lenders under the Loan Documents. Such actions shall include
specifically, but shall not be limited to, the use of the Borrower's and its
Subsidiaries' best efforts to assist in (i) obtaining approval of the FCC or any
other Governmental Authority for any action or transaction contemplated by the
Loan Documents or any of the transactions contemplated thereby which approval is
then required by law and (ii) upon request, and if an Event of Default shall
have occurred and is continuing, obtaining the approval of the FCC or any other
Governmental Authority to any application or applications for consent to the
assignment or any FCC License or other license or transfer of control required
to be signed by the Borrower and the Borrower's Subsidiaries in connection with
their respective FCC Licenses or other Governmental Approvals. All actions taken
by the Borrower or its Subsidiaries under this Section 10.10 shall be at the
Borrower's sole cost and expense; any costs and expenses advanced by any Agent
or any Lender in furtherance of the provisions of this Section 10.10 shall
become part of the Obligations for which the Borrower is responsible hereunder.
10.11 CONFIDENTIALITY. The Agents and the Lenders shall keep
confidential and not disclose to any Person, other than to their respective
directors, officers, employees, Affiliates and agents, and to actual and
potential Purchasing Lenders and Participants, all non-public information
concerning the Borrower, the Borrower's Affiliates and Subsidiaries and Wireless
and its Affiliates and Subsidiaries which comes into any Agent's and any
Lender's possession during the term hereof; PROVIDED, HOWEVER, that any such
information delivered to a potential Purchasing Lender or Participant shall be
delivered subject to a written confidentiality agreement satisfactory to the
Administrative Agent and signed by such Purchasing Lender or Participant.
Notwithstanding the foregoing, the Agents and the Lenders may disclose
information concerning the Borrower, its Subsidiaries and Affiliates, and
Wireless and its Subsidiaries and Affiliates (i) in accordance with normal
banking practices and such Agent's or such Lender's policies concerning
disclosure of such information, (ii) pursuant to what such Agent or such Lender
believes to be the lawful requirements or request of any Governmental Authority
regulating banks or banking, (iii) as required by Governmental Rule, judicial
process or subpoena, (iv) to their respective attorneys, accountants and
auditors and (v) as deemed reasonably necessary by the Agents and the Lenders in
connection with prosecuting or defending litigation involving the Borrower, any
Subsidiary of the Borrower, or Wireless.
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10.12 SEVERABILITY. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or enforceability without
invalidating the remaining portions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
10.13 SURVIVAL. All representations, warranties, covenants and
agreements of the Borrower contained herein or in the other Loan Documents or
made in writing in connection herewith shall survive the issuance of the
Revolving Credit Notes and shall continue in full force and effect so long as
the Borrower may borrow hereunder and so long thereafter until payment in full
of the Revolving Credit Notes and the Obligations is made.
10.14 GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF
PENNSYLVANIA, WITHOUT REGARD TO THE PRINCIPLES THEREOF REGARDING CONFLICT OF
LAWS, EXCEPTING APPLICABLE FEDERAL LAW AND EXCEPT ONLY TO THE EXTENT PRECLUDED
BY THE MANDATORY APPLICATION OF THE LAW OF ANOTHER JURISDICTION.
10.15 FORUM. THE PARTIES HERETO AGREE THAT ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS TO
WHICH THE BORROWER IS A PARTY MAY BE COMMENCED IN THE COURT OF COMMON PLEAS OF
PHILADELPHIA COUNTY, PENNSYLVANIA OR IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE EASTERN DISTRICT OF PENNSYLVANIA, AND THE PARTIES HERETO AGREE THAT A
SUMMONS AND COMPLAINT COMMENCING AN ACTION OR PROCEEDING IN EITHER OF SUCH
COURTS SHALL BE PROPERLY SERVED AND SHALL CONFER PERSONAL JURISDICTION IF SERVED
PERSONALLY OR BY CERTIFIED MAIL TO THE PARTIES AT THEIR ADDRESSES SET FORTH IN
SECTION 10.4, OR AS OTHERWISE PROVIDED UNDER THE LAWS OF THE COMMONWEALTH OF
PENNSYLVANIA. FURTHER, THE PARTIES HERETO HEREBY SPECIFICALLY CONSENT TO THE
PERSONAL JURISDICTION OF THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY,
PENNSYLVANIA AND THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF PENNSYLVANIA AND WAIVE AND HEREBY ACKNOWLEDGE THAT THEY ARE ESTOPPED
FROM RAISING ANY OBJECTION BASED ON FORUM NON CONVENIENS, ANY CLAIM THAT EITHER
SUCH COURT LACKS PROPER VENUE OR ANY OBJECTION THAT EITHER SUCH COURT LACKS
PERSONAL JURISDICTION OVER THEM SO AS TO PROHIBIT EITHER SUCH COURT FROM
ADJUDICATING ANY ISSUES RAISED IN A COMPLAINT FILED WITH EITHER SUCH COURT
AGAINST ANY PARTY HERETO CONCERNING THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS.
THE PARTIES HERETO HEREBY
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ACKNOWLEDGE AND AGREE THAT THE CHOICE OF FORUM CONTAINED IN THIS SECTION 10.15
SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT OF ANY JUDGMENT OBTAINED IN ANY
FORUM OR THE TAKING OF ANY ACTION UNDER THE LOAN DOCUMENTS TO ENFORCE THE SAME
IN ANY APPROPRIATE JURISDICTION.
10.16 WAIVER OF JURY TRIAL. IN ORDER TO EXPEDITE THE RESOLUTION OF
ANY DISPUTES WHICH MAY ARISE UNDER THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS, AND IN LIGHT OF THE COMPLEXITY OF THE TRANSACTIONS CONTEMPLATED UNDER
THE LOAN DOCUMENTS, THE PARTIES HERETO WAIVE THE RIGHT TO TRIAL BY JURY IN ANY
ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT TO WHICH THEY MAY BE
PARTIES, WHETHER ARISING OUT OF, UNDER, OR BY REASON OF THIS AGREEMENT OR ANY OF
THE OTHER LOAN DOCUMENTS, OR ANY OTHER TRANSACTION AMONG THEM OF ANY KIND OR
NATURE, AND THE PARTIES ACKNOWLEDGE THAT SUCH WAIVER HAS BEEN SPECIFICALLY
NEGOTIATED AS PART OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
10.17 NON-BUSINESS DAYS. Whenever any payment hereunder or under the
Revolving Credit Notes is due and payable on a day which is not a Business Day,
except as otherwise provided in this Agreement such payment may be made on the
next succeeding Business Day, and such extension of time shall in each such case
be included in computing interest in connection with such payment.
10.18 INTEGRATION. This Agreement is the entire agreement among the
parties relating to this financing transaction and it supersedes all prior
understandings and agreements, whether written or oral, between the parties
hereto relating to the transactions provided for herein.
10.19 HEADINGS. Article, Section, Subsection and other headings used
in this Agreement are intended for convenience only and shall not affect the
meaning or construction of this Agreement.
10.20 COUNTERPARTS. This Agreement and any amendment hereto may be
executed in several counterparts and by each party on a separate counterpart,
each of which, when so executed and delivered, shall be an original, but all of
which together shall constitute but one and the same instrument. In proving this
Agreement, it shall not be necessary to produce or account for more than one
such counterpart signed by the other party against whom enforcement is sought.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto, intending to be
legally bound hereby, have caused this Credit Agreement to be executed by their
respective duly authorized officers as of the date first written above.
WITNESS: SYGNET COMMUNICATIONS, INC.,
an Ohio corporation
/s/ PAMELA D. FRYE By: /s/ CRAIG T. SHEETZ (SEAL)
- ------------------------ --------------------------------------
Name: Pamela D. Frye Name: Craig T. Sheetz
Title: Chief Financial Officer
TORONTO DOMINION (TEXAS), INC.,
in its capacity as Administrative Agent
By: /s/ DAVID G. PARKER (SEAL)
--------------------------------------
Name: David G. Parker
Title: Vice President
PNC BANK, NATIONAL
ASSOCIATION, in its capacity as
Documentation Agent and Collateral Agent
By: /s/ DANIEL E. HOPKINS (SEAL)
--------------------------------------
Name: Daniel E. Hopkins
Title: Vice President
<PAGE> 97
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this Credit Agreement dated as of October 9, 1996
by and among Sygnet Communications, Inc. and the Lenders and the Agents which
are parties thereto to be executed by its duly authorized officer as of the date
first above written.
PNC BANK, NATIONAL
ASSOCIATION
By: /s/ DANIEL E. HOPKINS (SEAL)
---------------------------
Name: Daniel E. Hopkins
Title: Vice President
Commitment: $40,000,000
Commitment Percentage: 13.333333333%
Address for notice purposes:
If by United States Mail: If by other means:
PNC Bank, National Association PNC Bank, National Association
Communications Banking Division Communications Banking Division
1600 Market Street 1600 Market Street
21st Floor - Mail Stop F2-F070-21-1 21st Floor - Mail Stop F2-F070-21-1
Philadelphia, PA 19103 Philadelphia, PA 19103
Attention: Daniel E. Hopkins Attention: Daniel E. Hopkins
Telephone: 215-585-7468
Telecopier: 215-585-6680
Address for Euro-Rate Loan funding if different from above:
PNC Bank, National Association
1600 Market Street
21st Floor - Mail Stop F2-F070-21-1
Philadelphia, PA 19103
Attention: Joanne Rane
Telephone: (215) 585-6809
Telecopier: (215) 585-7485
Telex:
--------------------------
<PAGE> 98
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this Credit Agreement dated as of October 9, 1996
by and among Sygnet Communications, Inc. and the Lenders and the Agents which
are parties thereto to be executed by its duly authorized officer as of the date
first above written.
THE TORONTO-DOMINION BANK
By: /s/ DAVID G. PARKER (SEAL)
------------------------------
Name: David G. Parker
Title: Mgr. Cr. Admin.
Commitment: $40,000,000
Commitment Percentage: 13.333333333%
Address for notice purposes:
If by United States Mail: If by other means:
Attention: Attention:
------------------------ -----------------------
The Toronto-Dominion Bank The Toronto-Dominion Bank
31 West 52nd Street - 20th Floor 31 West 52nd Street - 20th Floor
New York, NY 10019-6101 New York, NY 10019-6101
Telephone: (212) 468-0719
Telecopier: (212) 262-1928
Telex:
Address for Euro-Rate Loan funding if different from above:
- --------------------------------------------
- --------------------------------------------
- --------------------------------------------
- --------------------------------------------
Telephone:
----------------------------------
Telecopier:
---------------------------------
Telex:
--------------------------------------
<PAGE> 99
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this Credit Agreement dated as of October 9, 1996
by and among Sygnet Communications, Inc. and the Lenders and the Agents which
are parties thereto to be executed by its duly authorized officer as of the date
first above written.
CIBC, INC.
By: /s/ MARISA J. HARNEY (SEAL)
---------------------------------
Name: Marisa J. Harney
Title: Director, CIBC Wood Gundy
Securities Corp. Acting Agent
Commitment: $30,000,000
Commitment Percentage: 10.00%
Address for notice purposes:
If by United States Mail: If by other means:
Attention: Marisa J. Harney Attention: Marisa J. Harney
CIBC, Inc. CIBC, Inc.
425 Lexington Avenue 425 Lexington Avenue
New York, NY 10017 New York, NY 10017
Telephone: (212) 856-4254
Telecopier: (212) 856-3558
Telex:
--------------------------
Address for Euro-Rate Loan funding if different from above:
- --------------------------------------------
- --------------------------------------------
- --------------------------------------------
- --------------------------------------------
Telephone:
----------------------------------
Telecopier:
---------------------------------
Telex:
--------------------------------------
<PAGE> 100
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this Credit Agreement dated as of October 9, 1996
by and among Sygnet Communications, Inc. and the Lenders and the Agents which
are parties thereto to be executed by its duly authorized officer as of the date
first above written.
CORESTATES BANK, N.A.
By: /s/ ANTHONY B. PARISI (SEAL)
-----------------------------
Name: Anthony B. Parisi
Title: Vice President
Commitment: $30,000,000
Commitment Percentage: 10.00%
Address for notice purposes:
If by United States Mail: If by other means:
Attention: Anthony B. Parisi Attention: Anthony B. Parisi
CoreStates Bank, N.A. CoreStates Bank, N.A.
FC 1-8-11-28 FC 1-8-11-28
1339 Chestnut Street 1339 Chestnut Street
Philadelphia, PA 19107 Philadelphia, PA 19107
Telephone: (215) 786-8216
Telecopier: (215) 786-7721
Telex:
---------------------------
Address for Euro-Rate Loan funding if different from above:
Attention: Mary Lockhart
FC 1-8-11-28
1339 Chestnut Street
Philadelphia, PA 19107
Telephone: (215) 786-4313
Telecopier: (215) 786-7721
Telex:
-----------------------
<PAGE> 101
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this Credit Agreement dated as of October 9, 1996
by and among Sygnet Communications, Inc. and the Lenders and the Agents which
are parties thereto to be executed by its duly authorized officer as of the date
first above written.
FLEET NATIONAL BANK
By: /s/ WENDY E. KLEPPER (SEAL)
-------------------------
Name: Wendy E. Klepper
Title: Vice President
Commitment: $30,000,000
Commitment Percentage: 10.00%
Address for notice purposes:
If by United States Mail: If by other means:
Attention: Wendy E. Klepper Attention: Wendy E. Klepper
Fleet National Bank Fleet National Bank
One Federal Street MAOFD03D One Federal Street MAOFD03D
Boston, MA 02110 Boston, MA 02110
Telephone: (617) 346-4356
Telecopier: (617) 346-4346
Telex:
-------------------------
Address for Euro-Rate Loan funding if different from above:
Deborah Micue
Fleet National Bank
One Federal Street MAOFD03D
Boston, MA 02110
Telephone:(617) 346-4370
Telecopier: (617) 346-4363
Telex:
---------------------
<PAGE> 102
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this Credit Agreement dated as of October 9, 1996
by and among Sygnet Communications, Inc. and the Lenders and the Agents which
are parties thereto to be executed by its duly authorized officer as of the date
first above written.
CREDIT LYONNAIS
By: /s/ MARK D. THORSHEIM (SEAL)
------------------------
Name: Mark D. Thorsheim
Title: Vice President
Commitment: $25,000,000
Commitment Percentage: 8.333333333%
Address for notice purposes:
If by United States Mail: If by other means:
Attention: Mark D. Thorsheim Attention: Mark D. Thorsheim
Credit Lyonnais Credit Lyonnais
1301 Avenue of the Americas, 18th Floor 1301 Avenue of the Americas, 18th Floor
New York, NY 10019-6022 New York, NY 10019-6022
Telephone:(212) 261-7852
Telecopier: (212) 261-3318
Telex:
---------------------
Address for Euro-Rate Loan funding if different from above:
Attention: Debbie Troia
Credit Lyonnais
1301 Avenue of the Americas, 18th Floor
New York, NY 10019-6022
Telephone: (212) 261-7741
Telecopier: (212) 261-3318
Telex:
---------------------
<PAGE> 103
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this Credit Agreement dated as of October 9, 1996
by and among Sygnet Communications, Inc. and the Lenders and the Agents which
are parties thereto to be executed by its duly authorized officer as of the date
first above written.
THE FIRST NATIONAL BANK OF
MARYLAND
By: /s/ W. BLAKE HAMPSON (SEAL)
--------------------------------
Name: W. Blake Hampson
Title: Vice President
Commitment: $25,000,000.00
Commitment Percentage: 8.333333333%
Address for notice purposes:
If by United States Mail: If by other means:
Attention: Timothy A. Knabe Attention: Lynell Butler
The First National Bank of Maryland The First National Bank of Maryland
25 South Charles Street 25 South Charles Street
Baltimore, MD 21201 Baltimore, MD 21201
Telephone: (410) 244-4051
Telecopier: (410) 244-4746
Telex:
---------------------
Address for Euro-Rate Loan funding if different from above:
- --------------------------------------------
- --------------------------------------------
- --------------------------------------------
- --------------------------------------------
Telephone:
----------------------------------
Telecopier:
---------------------------------
Telex:
--------------------------------------
<PAGE> 104
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this Credit Agreement dated as of October 9, 1996
by and among Sygnet Communications, Inc. and the Lenders and the Agents which
are parties thereto to be executed by its duly authorized officer as of the date
first above written.
UNION BANK OF CALIFORNIA, N.A.
By: /s/ J. KEVIN SAMPSON (SEAL)
---------------------------
Name: J. Kevin Sampson
Title: Vice President
Commitment: $20,000,000
Commitment Percentage: 6.666666667%
Address for notice purposes:
If by United States Mail: If by other means:
Attention: Kevin Sampson/Kristina Attention: Kevin Sampson/Kristina
Mouzakis Mouzakis
Union Bank of California, N.A. Union Bank of California, N.A.
Communications/Media Division Communications/Media Division
445 South Figueroa Street G15-075 445 South Figueroa Street G15-075
Los Angeles, CA 90071-1655 Los Angeles, CA 90071-1655
Telephone: (213) 236-6585/7881
Telecopier: (213) 236-5747
Telex:
------------------------
Address for Euro-Rate Loan funding if different from above:
Attention: Liliane Bierman/Roz Taucher
Union Bank of California, N.A.
Communications/Media Division
445 South Figueroa Street G15-075
Los Angeles, CA 90071-1655
Telephone: (212) 236-4054/5008
Telecopier: (212) 236-8276/5747
Telex:
-------------------------
<PAGE> 105
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this Credit Agreement dated as of October 9, 1996
by and among Sygnet Communications, Inc. and the Lenders and the Agents which
are parties thereto to be executed by its duly authorized officer as of the date
first above written.
BANK OF MONTREAL, CHICAGO
BRANCH
By: /s/ YVONNE BOS (SEAL)
-----------------------------
Name: Yvonne Bos
Title: Senior Vice President
Commitment: $15,000,000
Commitment Percentage: 5.00%
Address for notice purposes:
If by United States Mail: If by other means:
Attention: Michael Andres Attention: Michael Andres
Bank of Montreal Bank of Montreal
430 Park Avenue, 15th Floor 430 Park Avenue, 15th Floor
New York, NY 10022 New York, NY 10022
Telephone: (212) 605-1632
Telecopier: (212) 605-1648
Telex:
---------------------------
Address for Euro-Rate Loan funding if different from above:
- --------------------------------------------
- --------------------------------------------
- --------------------------------------------
- --------------------------------------------
Telephone:
----------------------------------
Telecopier:
---------------------------------
Telex:
--------------------------------------
<PAGE> 106
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this Credit Agreement dated as of October 9, 1996
by and among Sygnet Communications, Inc. and the Lenders and the Agents which
are parties thereto to be executed by its duly authorized officer as of the date
first above written.
ROYAL BANK OF CANADA
By: /s/ THOMAS M. BYRNE (SEAL)
--------------------------
Name: Thomas M. Byrne
Title: Senior Manager
Commitment: $15,000,000
Commitment Percentage: 5.00%
Address for notice purposes:
If by United States Mail: If by other means:
Attention: Linda Swantson Attention: Linda Swantson
Assistant Manager - Credit Assistant Manager - Credit
Administration Administration
Royal Bank of Canada Royal Bank of Canada
Financial Square Financial Square
New York, NY 10005 New York, NY 10005
Telephone: (212) 428-6321
Telecopier: (212) 428-2372
Telex: MCI 62519
Address for Euro-Rate Loan funding if different from above:
Royal Bank of Canada
Grand Cayman (North America No. 1 Branch)
c/o New York Branch
Financial Square
New York, NY 10005
Telephone: (212) 428-6321
Telecopier: (212) 428-2372
Telex: MCI 62519
<PAGE> 107
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this Credit Agreement dated as of October 9, 1996
by and among Sygnet Communications, Inc. and the Lenders and the Agents which
are parties thereto to be executed by its duly authorized officer as of the date
first above written.
NATIONAL CITY BANK NORTHEAST
By: /s/ B.J. LUMPKIN (SEAL)
------------------------------
Name: B.J. Lumpkin
Title: Assistant Vice President
Commitment: $15,000,000
Commitment Percentage: 5.00%
Address for notice purposes:
If by United States Mail: If by other means:
Attention: B.J. Lumpkin Attention: B.J. Lumpkin
Corporate Banking Department Corporate Banking Department
National City Bank Northeast National City Bank Northeast
20 Federal Plaza 20 Federal Plaza
Youngstown, OH 44503 Youngstown, OH 44503
Telephone: (330) 742-4218
Telecopier: (330) 742-4308
Telex:
------------------------------
Address for Euro-Rate Loan funding if different from above:
- --------------------------------------------
- --------------------------------------------
- --------------------------------------------
- --------------------------------------------
Telephone:
----------------------------------
Telecopier:
---------------------------------
Telex:
--------------------------------------
<PAGE> 108
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this Credit Agreement dated as of October 9, 1996
by and among Sygnet Communications, Inc. and the Lenders and the Agents which
are parties thereto to be executed by its duly authorized officer as of the date
first above written.
MERITA BANK LTD - NEW YORK
BRANCH
By: /s/ ERIC I. MANN (SEAL)
-----------------------------
Name: Eric I. Mann
Title: Vice President
By: /s/ FRANK MAFFEI (SEAL)
-----------------------------
Name: Frank Maffei
Title: Vice President
Commitment: $10,000,000
Commitment Percentage: 3.333333333%
Address for notice purposes:
If by United States Mail: If by other means:
Attention: Eric I. Mann Attention: Eric I. Mann
Merita Bank Ltd - New York Branch Merita Bank Ltd - New York Branch
437 Madison Avenue 437 Madison Avenue
New York, NY 10022 New York, NY 10022
Telephone: (212) 318-9314
Telecopier: (212) 318-9318
Telex:
----------------------
Address for Euro-Rate Loan funding if different from above:
Attention: Rossella Perna
Merita Bank Ltd - New York Branch
437 Madison Avenue
New York, NY 10022
Telephone: (212) 318-9345
Telecopier: (212) 421-4420
Telex:
-------------------------
<PAGE> 109
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this Credit Agreement dated as of October 9, 1996
by and among Sygnet Communications, Inc. and the Lenders and the Agents which
are parties thereto to be executed by its duly authorized officer as of the date
first above written.
THE MAHONING NATIONAL BANK
OF YOUNGSTOWN
By: /s/ TIMOTHY A. BEAUMONT (SEAL)
---------------------------
Name: Timothy A. Beaumont
Title: Vice President
Commitment: $5,000,000.00
Commitment Percentage: 1.666666667%
Address for notice purposes:
If by United States Mail: If by other means:
Attention: Timothy A. Beaumont Attention: Timothy A. Beaumont
The Mahoning National Bank of Youngstown The Mahoning National Bank of
Youngstown
23 Federal Plaza 23 Federal Plaza
Youngstown, OH 44503 Youngstown, OH 44503
Telephone: (330) 742-7084
Telecopier: (330) 742-7418
Telex:
-------------------------
Address for Euro-Rate Loan funding if different from above:
- --------------------------------------------
- --------------------------------------------
- --------------------------------------------
- --------------------------------------------
Telephone:
----------------------------------
Telecopier:
---------------------------------
Telex:
--------------------------------------
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> DEC-31-1996
<CASH> 2,257,748
<SECURITIES> 0
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<COMMON> 61,706
19,718,028
0
<OTHER-SE> (2,043,471)
<TOTAL-LIABILITY-AND-EQUITY> 344,178,177
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<EXTRAORDINARY> 1,420,864
<CHANGES> 0
<NET-INCOME> (5,288,375)
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
</TABLE>
