ITEM 1. Business
Special Note Concerning Forward-Looking Statements
We believe that it is important to communicate our future expectations to our security holders and to the public. This report, therefore, contains, or incorporates by reference, statements about future events and expectations which are "forward-looking statements" within the meaning of Sections 27A of the Securities Act of 1933 and 21E of the Securities Exchange Act of 1934, including the statements about our plans, objectives, expectations and prospects under the headings "Item 1. Business" and "Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations." You can expect to identify these statements by forward-looking words such as "may," "might," "could," "would," "anticipate," "believe," "plan," "estimate," "project," "forecast," "expect," "intend," "seek" and other similar expressions. Any statement contained or incorporated by reference in this report that is not a statement of historical fact may be deemed to be a forward-looking statement. Although we believe that the plans, objectives, expectations and prospects reflected in or suggested by our forward-looking statements are reasonable, those statements involve risks, uncertainties and other factors that may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by these forward-looking statements, and we can give no assurance that our plans, objectives, expectations and prospects will be achieved.
Important factors that might cause our actual results to differ materially from the results contemplated by the forward-looking statements are contained in the "Risk Factors" section in this Item 1, in "Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations" and elsewhere in this report and our future filings with the Securities and Exchange Commission. All written or oral forward-looking statements attributable to us are expressly qualified in their entirety by these cautionary statements.
Available Information
Our Internet address is www.ubiquitelpcs.com. We make available on our Internet website free of charge our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and amendments to those reports as soon as practicable after we electronically file such material with the Securities and Exchange Commission. The information contained on our website is not incorporated by reference in this report.
Explanatory Note and Certain Definitions
The Consolidated Financial Statements included herein are that of UbiquiTel Inc. ("UbiquiTel"). The Co-Registrants are UbiquiTel and UbiquiTel Operating Company ("Operating Company"), which is a wholly owned subsidiary of UbiquiTel and the issuer of 14% senior subordinated discount notes due 2010, 14% senior discount notes due 2010 and 14% Series B senior discount notes due 2008 (collectively, the "Notes"). UbiquiTel has provided a full, unconditional, joint and several guaranty of Operating Company's obligations under the Notes. UbiquiTel has no operations separate from its investment in Operating Company. Pursuant to Rule 12h-5 of the Securities Exchange Act, no separate financial statements and other disclosures concerning Operating Company other than narrative disclosures set forth in Note 15 to the Consolidated Financial Statements have been presented herein.
In this report, unless the context indicates otherwise, references to "UbiquiTel," the "Company," "we," "us" and "our" means collectively UbiquiTel Inc., UbiquiTel Operating Company and their consolidated subsidiary, UbiquiTel Leasing Company. "Sprint PCS" refers collectively to Sprint Spectrum L.P., WirelessCo, L.P., Sprint Telephony PCS, L.P., Sprint PCS License, L.L.C. and Sprint Communications Company L.P. "Sprint" refers collectively to Sprint Corporation and its affiliates. A
"PCS affiliate of Sprint" is an entity, such as us, whose sole or predominant business is operating (directly or through one or more subsidiaries) a personal communications service business pursuant to affiliation or management agreements with Sprint Spectrum L.P. and/or its affiliates, or their successors. "Sprint PCS products and services" refers to digital wireless personal communications services, including wireless voice and data services, and related retail products, including handsets and wireless devices, in any case, offered under the Sprint brand name. Statements in this report regarding Sprint or Sprint PCS are derived from information contained in our management and related agreements with Sprint PCS, periodic reports and other documents filed by Sprint and Sprint Spectrum L.P. with the Securities and Exchange Commission, or press releases issued by Sprint or Sprint PCS.
Market and Other Data
Market data and other statistical information used throughout this report are based on independent industry publications, government publications, reports by market research firms and other published independent sources, as well as information provided to us by Sprint. Some data are also based on our good faith estimates, which are derived from our review of internal surveys and independent sources, including information provided to us by Sprint, the U.S. Census Bureau and Kagan World Media. Although we believe these sources are reliable, we have not independently verified the information and cannot guarantee its accuracy and completeness.
This report contains trademarks, service marks and trade names of companies and organizations other than us.
Use of Certain Terms
In the second quarter of 2003, we initiated a reseller program with Virgin Mobile USA in our markets, under which Virgin Mobile began reselling wireless services to its customers on a pre-paid basis using our network in our markets. We also market the Virgin Mobile pre-paid services through our retail stores. At December 31, 2003, we had approximately 22,700 reseller subscribers. In this "Business" section, unless the context indicates otherwise, all references to amounts of "subscribers" or "customers" exclude reseller subscribers.
Overview
We have the exclusive right under our management agreement with Sprint PCS to provide digital wireless personal communications services, or PCS, under the Sprint brand name to markets in the western and midwestern United States which include a total population of approximately 10.0 million residents, which we refer to as POPs, covering portions of California, Nevada, Washington, Idaho, Utah, Wyoming, Indiana and Kentucky. Sprint has PCS licenses to cover more than 280 million people across all 50 states, Puerto Rico and the U.S. Virgin Islands. We do not own any PCS licenses in our markets or elsewhere, so generally we can only operate our business so long as we remain a PCS affiliate of Sprint and Sprint and related entities continue to own the PCS licenses in our markets. Sprint directly operates its PCS network in major metropolitan markets throughout the United States. Sprint also has entered into independent management agreements with various PCS affiliates of Sprint, such as us, under which the PCS affiliates of Sprint have agreed to construct and manage the PCS networks under the Sprint brand name in midsize and smaller markets. Sprint is not obligated to provide us with any support in connection with our business or otherwise, other than performing its contractual obligations under the management agreement and other related agreements between us.
Sprint operates a 100% digital PCS wireless network in the United States and holds licenses to provide PCS nationwide, using code division multiple access, or CDMA, technology. Sprint, directly and indirectly through PCS affiliates such as us, provides wireless services in more than 4,000 cities and communities across the country.
As of December 31, 2003, we had approximately 327,700 customers and total network coverage of approximately 7.8 million residents. For the year ended December 31, 2003, we generated revenue of approximately $273.3 million.
Recent Developments
Offering by UbiquiTel Operating Company of Senior Notes. We announced on February 13, 2004 that our operating subsidiary, UbiquiTel Operating Company, has priced an offering of $270.0 million in aggregate principal amount of its senior notes due 2011 in a transaction exempt from the registration requirements of the Securities Act of 1933, as amended. The senior notes will be issued at a price of 98.26% and pay interest semi-annually at an annual rate of 9.875%. Operating Company intends to complete the offering on or about February 23, 2004. No assurance can be given as of the date of the filing of this Annual Report on Form 10-K that the offering will be completed, and the completion of the offering is subject to customary conditions. If Operating Company completes the offering, the net proceeds will be used to repay and terminate our senior secured credit facility, including the repayment of $230.0 million in outstanding borrowings plus accrued interest and termination of the $47.7 million revolving line of credit, to redeem all of its outstanding 14% Series B senior discount notes due 2008 ($14.5 million outstanding principal amount) for approximately $12.5 million and to purchase $16.0 million principal value of its outstanding 14% senior discount notes due 2010 for $15.2 million.
Changes to our management and services agreements with Sprint PCS. Effective November 1, 2003, we entered into amendments to our management and services agreements that govern our relationship with Sprint PCS. These amendments provide us with a number of benefits, including fixed rates for back office services provided to us by Sprint and a fixed reciprocal roaming rate through 2006 which provides clarity and predictability to the profitability of our roaming business. We expect the reduction in the back office rates to provide an approximate 15% reduction from our 2003 cost structure. With among the highest roaming ratios of the PCS affiliates of Sprint and with the expected rapid growth in minutes in our reseller channel from the anticipated addition of Qwest Communications customers in 2004 (see "-Other recent developments"), we forecast that the extension of the 2003 roaming and reseller rates through 2006 will allow our wholesale revenues to grow by approximately 50% in 2004. In addition, we believe that the amendments simplify the way we conduct business with Sprint, allowing us to continue to focus our attention on sustaining the growth of our business and achieving profitability.
The amendments, among other things, establish fixed per subscriber costs for services we purchase from Sprint through December 31, 2006. The amendments create a new "CCPU fee," which consolidates numerous fees that were previously settled separately, for back office services such as billing and customer care. The CCPU fee has been set at $7.70 per average number of subscribers per month through December 31, 2006, which represents a reduction from the per subscriber costs of the combined services that we incurred during 2003. The amendments also create a new "CPGA fee," which consolidates numerous fees that were previously settled separately, for marketing services such as subscriber activations and handset logistics. The CPGA fee will be calculated as 5.2% of Sprint PCS' most recently reported cost per gross addition and is applied to the actual number of gross subscriber activations we experience on a monthly basis.
The amendments also establish a fixed reciprocal roaming rate with Sprint PCS through December 31, 2006 at $0.058 per minute for voice minutes and $0.0020 per kilobit for data. After December 31, 2006, the reciprocal voice and data roaming rates will be based on a predetermined formula. These new fixed rates are higher than the rates Sprint PCS has established for 2004 for its PCS affiliates that have not amended their affiliation or management agreements and services agreements with Sprint PCS.
The amendments to our management agreement with Sprint PCS provide us protective rights under certain conditions to decline to implement future program requirement changes that Sprint could
impose that adversely affect our business. A program requirement change can generally alter certain operating parameters of our business to coincide with changes that are being made by Sprint PCS nationally and could affect our revenues, expenses and/or capital expenditures. The amendments permit us to challenge a change in program requirements if we can demonstrate that such change is materially adverse to our operations or exceeds certain spending requirements (each as specified in the amendments). Under our prior arrangement with Sprint PCS, Sprint PCS could deem us in breach of our management agreement if we failed to implement a program change, even if such a change would have an adverse impact on our operations.
The amendments also grant us the right to amend our management agreement and services agreement to obtain the most favorable terms provided under a management agreement or services agreement between Sprint and a PCS affiliate of Sprint similarly situated to us if, prior to December 31, 2006, Sprint amends the terms of any of those agreements of such similarly situated PCS affiliate of Sprint. This right is only effective, however, if we agree to accept all the terms and conditions set forth in the other agreements and is subject to specified restrictions on its applicability.
In conjunction with the amendments to our Sprint PCS agreements, we resolved all previously disputed charges between us and Sprint. As a result, in September 2003, we recorded a one-time adjustment to reduce operating expenses by approximately $3.2 million relating to the resolution of more than $7.5 million of previously disputed charges with Sprint PCS for which we had fully reserved the amounts under dispute. The adjustment reduced cost of service and operations expense by approximately $3.2 million and we paid Sprint PCS approximately $4.3 million in conjunction with other previously disputed charges in November 2003. In addition, in the fourth quarter, we recorded a $1.3 million adjustment to reduce operating expenses when we transitioned from the "collected revenue" to the "billed revenue" method for reconciling amounts due to the Company for accounts receivable.
For a description of our agreements with Sprint PCS, as most recently modified by these amendments, see "-Sprint PCS Agreements."
Wireless local number portability. As mandated by the Federal Communications Commission, on November 24, 2003, wireless local number portability, or WLNP, became effective in the 100 largest metropolitan statistical areas, or MSAs, in the United States. WLNP allows a wireless subscriber to switch wireless carriers but keep his or her wireless telephone number. WLNP is currently mandated in approximately 25% of our markets. WLNP must be available in the rest of our markets within six months of a request from another wireless carrier with respect to that market or by May 24, 2004, whichever is later. WLNP had no material impact on our results for the year ended December 31, 2003.
Other recent developments. In the third quarter of 2003, we amended our management agreement with Sprint PCS to remove the build-out requirement for the state of Montana, thereby reducing our projected capital expenditures and operating expenses to launch that market by approximately $25.0 million and reducing the licensed POPs for our markets under the management agreement to approximately 10.0 million from 11.1 million previously.
In the third quarter of 2003, Sprint PCS announced that it had entered into a reseller agreement with Qwest Communications allowing Qwest to provide wireless voice and data services to new and existing customers in Qwest's service areas using Sprint PCS' network and the networks of PCS affiliates of Sprint, including us, who overlap with Qwest's service areas. Qwest has substantial geographic overlap with us with approximately 30,000 to 40,000 customers in portions of our markets in Washington, Idaho and Utah. We anticipate receiving incremental wholesale revenue from Qwest customers who use our network under this reseller arrangement at a rate of $0.058 per minute.
In the fourth quarter of 2003, we consummated the sale for approximately $11.3 million of 98 wireless communication tower sites owned by us located in the central valley of California and leased back co-location space on the towers for our radio communications sites. We agreed to escrow an amount equal to 10% of the purchase price for indemnification claims that may arise during a one-year period following the closing and that are resolved in the purchaser's favor.
On January 23, 2004, we reached an agreement with our senior lending group to amend our senior secured credit facility to eliminate certain "stage one" covenants, including minimum subscribers effective as of December 31, 2003, minimum revenues and minimum adjusted cash balances (each as defined in the credit agreement), and to modify certain financial covenants and ratios, including minimum consolidated EBITDA, fixed charge coverage ratio and interest coverage ratio (each as defined in the credit agreement), and leverage ratios, including consolidated indebtedness to consolidated EBITDA and consolidated senior indebtedness to consolidated EBITDA (each as defined in the credit agreement), to reflect the impact of changes in our business. We presently are in compliance with all financial and operational covenants relating to the senior secured credit facility.
Current Operating Environment
Since the beginning of 2002, wireless telecommunications carriers, including us, have operated in a challenging operating environment due to the following:
•slowing rates of subscriber growth and shifts in quality of subscriber growth to lower credit classes as overall rates of penetration in the wireless industry approach and exceed 50%;
•intense competition among wireless service providers in the United States with trends suggesting the continuance of service offerings of increasingly large bundles of minutes at lower prices;
•higher rates of customer turnover, called churn, resulting from intense competition, programs for sub-prime credit quality subscribers and the implementation of WLNP, allowing subscribers to retain wireless telephone numbers when changing wireless carriers; and
•highly leveraged capital structures of many wireless providers.
Business Strategy
Our goal is to become one of the most profitable regional wireless providers. We believe our focus on acquiring and retaining high quality subscribers in our local markets, combined with the advantages of our affiliation with Sprint PCS, will enable us to grow profitably in the future. The following objectives are key components of our business strategy:
Focus on prime credit classes as we grow our subscriber base. In 2003, we were among the fastest growing wireless carriers in the United States. During this period, we added approximately 70,700 net subscribers, representing incremental penetration of 0.9% of our covered POPs. We have focused our marketing efforts and aligned our sales distribution network to attract and retain prime credit class customers. We pay higher commissions throughout our sales distribution network for prime credit class sales, and we manage sales to the sub-prime credit class market through tighter credit policies by requiring a deposit equal to a spending limit controlled by our real-time billing system. Eighty-six percent of our 2003 net additions were prime credit customers, which contributed to a $19.8 million reduction of our bad debt expense from 2002 to 2003.
Leverage our third generation network platform to increase recurring data revenue. We began offering new third generation, or 3G, data services called PCS Vision during August 2002. PCS Vision provides us with a differentiated product and a competitive advantage in many of our local markets. This product is a major ingredient in penetrating the prime credit class market and in building a recurring revenue stream from data products. 3G data contributed $1.94 to our average revenue per user, or
ARPU, in the fourth quarter of 2003. Our 1xRTT, or one times radio transmission technology, network platform is more efficient in processing voice calls, which we believe will help us drive down capital expenditures associated with maintaining our quality of service. Our overall blocked call and dropped call rates have declined from 2.6% and 1.9%, respectively, for the year ended December 31, 2002, to 1.6% and 1.5%, respectively, for the year ended December 31, 2003.
Capitalize on high margin wholesale revenue opportunities. In the third quarter of 2003, Sprint PCS announced that it had entered into a reseller agreement with Qwest Communications. This agreement allows Qwest to provide wireless voice and data services to new and existing customers in Qwest's service areas using Sprint PCS' network and the networks of PCS affiliates of Sprint who overlap with Qwest's service areas, including portions of our markets in Washington, Idaho and Utah. We anticipate receiving incremental wholesale revenue at a rate of $0.058 per minute from the approximately 30,000 to 40,000 Qwest subscribers in those portions of Qwest's service areas that overlap with our service areas who will transition to our network, and from Qwest subscribers who travel into our markets. The transition of Qwest subscribers to Sprint PCS' network is expected to begin in the first half of 2004, and we expect Qwest will shut down its existing wireless network by June 2004. We also carry traffic on our network for Virgin Mobile subscribers under similar economic terms. We forecast Virgin Mobile wholesale revenues to increase six-fold for 2004 from $0.6 million for 2003. In addition, for the year ended December 31, 2003, our roaming ratio (ratio of inbound to outbound minutes of use) with Sprint PCS was 1.62 to 1, which currently provides us with an additional high margin revenue stream based on our $0.058 reciprocal per minute rate (see "-Recent Developments"). As a result of these opportunities, we expect our roaming and reseller revenues to grow by approximately 50% in 2004. We believe that our existing network, with significant voice capacity and 30MHz of spectrum, can accommodate the expected increase in these high margin minutes of use without deterioration of our network performance.
Reduce churn through a high-quality subscriber base, differentiated services such as PCS Vision, and multi-year contracts. Our sales and marketing activities are focused on reducing churn through improving the quality of our subscriber base. The prime segment of our subscriber base has increased from approximately 58% as of December 31, 2001 to approximately 74% as of December 31, 2003. We continue to focus on selling PCS Vision products and services and have achieved strong results. During the year ended December 31, 2003, PCS Vision-enabled handsets and devices represented approximately 49% of our gross activations and accounted for 100% of our net subscriber additions. Approximately 127,100 customers at December 31, 2003, or 39% of our subscriber base, have PCS Vision-enabled handsets and devices. In addition, we continue to focus on selling two-year contracts to new subscribers. During the fourth quarter of 2003, approximately 86% of our subscriber activations signed two-year contracts. Primarily as a result of these activities, churn has declined from 4.2% for the year ended December 31, 2002 to 3.2% for the year ended December 31, 2003.
Expand exclusive sales distribution channels. The expansion of our sales distribution channels, particularly channels such as exclusive agent retailers and our company-owned retail stores that exclusively sell our products, is a key part of our strategy to grow our subscriber base. We continue to focus on identifying key areas in our markets for growth and opening new retail stores, and appointing third party agents to operate exclusive retail distribution outlets selling only Sprint PCS products and services with compensation structures focused on high-quality subscriber growth. At December 31, 2003, we had 32 company-owned retail stores and 47 exclusive agent retailers in operation, and we anticipate increasing those numbers through the end of 2004.
Optimize our relationship with Sprint to take advantage of the nationwide third generation network and further reduce our operating costs. Sprint PCS is the only national operator with a deployment of 3G technology across its nationwide footprint. We believe this will provide us with many advantages including our ability to market voice and data products that can be used both in and outside our local network. In addition, our affiliation with Sprint PCS provides us with a high margin roaming revenue stream from Sprint PCS, Qwest, Virgin Mobile and other wireless carriers that contract with Sprint PCS for roaming services in our markets. We will continue to manage our relationship with Sprint to allow us to maximize the unique values that it creates. See "-Recent Developments."
Our Markets
We believe we operate in highly attractive markets with favorable demographic characteristics for growing our customer base and generating roaming revenue for a number of reasons:
Attractive market footprint. Our territory includes nine markets with greater than 400,000 POPs, which is more than any other PCS affiliate of Sprint. Our network covers an average of 9,176 POPs per cell site, which is the highest of the PCS affiliates of Sprint, and our cumulative capital expenditures per covered POP of $45 are the lowest among the public PCS affiliates of Sprint. In addition, our subscriber base historically has had the highest percentage of on-network minutes of any Sprint PCS affiliate, which contributes significantly to our overall subscriber profitability.
Contiguous to major existing Sprint markets. Our markets are contiguous to major Sprint markets with a combined licensed population of over 57 million. Some of the major contiguous markets include San Francisco, Los Angeles and Sacramento, California; Seattle, Washington; Salt Lake City, Utah; Las Vegas, Nevada; Indianapolis, Indiana; Nashville, Tennessee; Louisville, Kentucky; and Cincinnati, Ohio.
Substantial overlap with Qwest wireless markets. Our network covers approximately 1.8 million POPs currently served by Qwest. Beginning in the first half of 2004, we will begin carrying Qwest's wireless traffic within our markets at a rate of $0.058 per minute. We do not incur customer acquisition costs related to these revenues, which makes this business attractive for us.
Important transportation corridors. Our markets include the most important and, in some cases, the only transportation corridors that link the population centers within a particular market, including major interstates such as I-70, I-80, I-90, I-5, I-15 and I-65.
Popular vacation and tourist destinations. Our markets contain popular vacation and tourist destinations, including various national parks and ski resorts such as Yosemite National Park, Yellowstone National Park, Lake Tahoe, Squaw Valley, Sun Valley and Jackson Hole.
Large student population centers. There are at least 35 colleges and universities located within our markets, including 18 schools with student populations greater than 10,000 each, such as Fresno State University, Utah State University (Logan), Indiana University (Bloomington) and the University of Nevada (Reno).
The following table lists the location, the basic trading areas, commonly referred to as BTAs, megahertz of spectrum, estimated total residents, network coverage and percent coverage for each of our markets under our management agreement with Sprint PCS. The estimated total residents does not represent expected customers but rather our total potential customers within each market. However, our network build-out plan focuses on providing service to the residents in the most densely populated and strategic areas of our markets which is represented by network coverage.
*Denotes partial portion of BTA.
(1)A basic trading area, or BTA, is a collection of counties surrounding a metropolitan area in which there is a commercial community of interest. The BTA number indicated in the table is assigned to that market by the Federal Communications Commission (alphabetically by market name) for the purpose of issuing licenses for wireless services.
(2)Spectrum licensed to Sprint or related parties of which we have exclusive access.
(3)Estimated total residents is based on 2000 Census data for each BTA within a given market.
(4)Network coverage is the estimated residents covered by our network. Our History
In October 1998, UbiquiTel L.L.C., whose sole member was The Walter Group, entered into a management agreement with Sprint PCS for the exclusive rights to market Sprint's 100% digital, 100% PCS products and services to the residents in the Reno/Tahoe, Nevada market. UbiquiTel L.L.C. had no financial transactions from its inception (August 24, 1998) to September 29, 1999. On September 29, 1999, UbiquiTel Inc. (formerly, UbiquiTel Holdings, Inc.) was incorporated in Delaware. In November 1999, UbiquiTel L.L.C. assigned all of its material contracts including the rights to the Sprint PCS agreements to UbiquiTel Inc. On November 9, 1999, UbiquiTel Operating Company was formed to serve as the operating company for UbiquiTel Inc. Also, on March 17, 2000, UbiquiTel Leasing Company was formed to serve as the leasing company for UbiquiTel Inc. UbiquiTel Inc. assigned the Sprint PCS agreements to UbiquiTel Operating Company following its formation. On December 28, 1999, we amended our management agreement with Sprint PCS to expand our markets to include northern California, Spokane/Montana, southern Idaho/Utah/Nevada and southern Indiana/Kentucky, which together with Reno/Tahoe, contain approximately 7.7 million residents. On February 21, 2001, in connection with our acquisition of VIA Wireless LLC, we amended our management agreement with Sprint PCS to expand our markets effective at the closing in August 2001 to include 3.4 million additional residents from the six VIA Wireless BTAs including Bakersfield, Fresno, Merced, Modesto, Stockton and Visalia, California (also collectively referred to as the central valley of California market). On August 13, 2001, upon the closing of the merger agreement, VIA Wireless became a wholly owned subsidiary of UbiquiTel Operating Company and was later merged into UbiquiTel Operating Company in June 2003. On July 31, 2003, we amended our management agreement with Sprint PCS to eliminate the obligation to build out the state of Montana, thereby reducing our licensed resident population in our markets to approximately 10.0 million.
Network Operations
Pursuant to our management agreement with Sprint PCS, we agreed to a minimum build-out plan for our portion of the Sprint PCS network. We have further enhanced our build-out plan to provide
better coverage for our markets. We have focused our network coverage on the largest, most densely populated communities in our markets and the interstates and primary roads connecting these communities to each other and to the adjacent major metropolitan markets owned and operated by Sprint PCS. At December 31, 2003, our network consisted of five switches and switching centers and 861 cell sites in operation. A switching center serves several purposes, including routing calls, managing call handoffs, managing access to the public telephone network and providing access to voice mail and other value-added services. Approximately 98% of our cell sites were co-located as of December 31, 2003. Co-location describes the strategy of leasing available space on a tower or cell site owned by another company rather than building and owning the tower or cell site directly. In the fourth quarter of 2003, we completed with a regional tower company the sale of, and leaseback of co-location space on, 98 of our owned towers in the central valley of California.
We utilize the Sprint network operations control center for around the clock monitoring as well as our own switching centers' capabilities for our network base stations and switches.
Through our arrangements with Sprint and Sprint's arrangements with other wireless service providers, our subscribers have roaming capabilities on certain other PCS networks utilizing similar CDMA technology.
Our network connects to the public telephone network through local exchange carriers, which facilitate the origination and termination of traffic between our network and both local exchange and long distance carriers. Through our management agreement with Sprint PCS, we have the benefit of Sprint negotiated interconnection agreements with our local exchange carriers.
We use Sprint and other third party providers for long distance services and for backhaul services. Backhaul services are the telecommunications services which other carriers provide to carry our traffic from our cell sites to our switching facilities.
Products and Services
We offer wireless voice and data products and services throughout our markets under the Sprint brand name. Our service offerings are typically designed to align with service offerings of Sprint PCS and to integrate with the PCS network of Sprint. The PCS service packages we currently offer include the following:
100% digital wireless network with service across the country. We are part of the largest 100% digital wireless personal communications services network in the country. We believe the code division multiple access, or CDMA, technology that Sprint PCS has deployed offers significantly improved voice quality. CDMA provides voice transmissions encoded into a digital format with a significantly lower risk of cloning and eavesdropping than on analog or other digital based networks. Our customers may access PCS services from Sprint throughout the PCS network of Sprint, which includes over 300 major metropolitan areas across the United States. Dual-band/dual-mode or tri-mode handsets allow roaming on other wireless networks where Sprint has roaming agreements.
Third generation services (PCS Vision). We believe CDMA technology allows existing CDMA networks to be upgraded to the next generation in a timely and cost effective manner. We, along with Sprint and the other PCS affiliates of Sprint, launched 3G capability, named PCS Vision, in our networks in the third quarter of 2002. This capability allows more efficient utilization of our network when voice calls are made using 3G-enabled handsets. It also provides enhanced data services. PCS Vision allows our subscribers to use their PCS Vision-enabled devices to check e-mail, take and receive pictures, play games with full-color graphics and polyphonic sounds and browse the Internet wirelessly with speeds of up to 144 kilobits per second with average throughput speeds in the range of 50-70 kilobits per second.
Other Services. In addition to these services, we also may offer wireless local loop services in our markets, but only where Sprint is not a local exchange carrier. Wireless local loop is a wireless substitute for the landline-based telephones in homes and businesses. We also believe that new features and services will be developed on the PCS network of Sprint to take advantage of CDMA technology. Sprint conducts ongoing research and development to produce innovative services that are intended to give Sprint and PCS affiliates of Sprint a competitive advantage. We may incur additional expenses in modifying our technology if Sprint pursues or we chose to pursue providing these additional features and services.
Roaming
Sprint PCS roaming. Sprint PCS roaming includes both inbound roaming, when Sprint wireless subscribers based outside of our markets use our network, and outbound roaming, when our subscribers use the Sprint PCS network or network of another PCS affiliate of Sprint outside of our markets. We have a reciprocal per minute fee with Sprint for inbound and outbound Sprint PCS roaming. The reciprocal rate, which initially was $0.20 per minute, has been periodically reduced by Sprint and is currently fixed at $0.058 per minute through December 31, 2006 under the amendment to our management agreement with Sprint PCS. Thereafter, the rate will be calculated based upon a predetermined formula specified in the amendment to our management agreement. Our ratio of inbound to outbound roaming with Sprint was approximately 1.62 to 1 for the year ended December 31, 2003 and is expected to decline over time. Sprint roaming revenue is not subject to the 8% affiliation fee.
In addition to the reciprocal per minute fee for the Sprint PCS roaming discussed above, we also recognize roaming revenue and expense related to data usage from PCS Vision services when wireless subscribers are using such services outside of their home territory. We recognize revenue when a wireless subscriber based outside of our markets uses PCS Vision data services on our network and we recognize expense when our subscribers use such services on the Sprint PCS network or network of another PCS affiliate of Sprint outside of our markets. This roaming activity is settled on a per kilobit (KB) basis at a rate that was initially set at $0.0055 per KB for 2002 and was reduced to $0.0014 per KB for 2003. In the amendment to our management agreement with Sprint PCS, we agreed that the rate will be $0.0020 per KB for November 2003 through 2006. Thereafter, the rate will be calculated based upon a predetermined formula specified in the amendment to our management agreement.
Non-Sprint PCS Roaming. Non-Sprint PCS roaming includes both inbound non-Sprint PCS roaming, when non-Sprint PCS subscribers use our network, and outbound non-Sprint PCS roaming, when our subscribers use a non-Sprint PCS network. Pursuant to roaming agreements between Sprint PCS and other wireless service providers, when another wireless service provider's subscriber uses our network, we earn inbound non-Sprint PCS roaming revenue. These wireless service providers must pay fees for their subscribers' use of our network, and as part of our management agreement with Sprint PCS, we are entitled to 92% of these fees. Currently, pursuant to our services agreement with Sprint PCS, Sprint PCS bills these wireless service providers for these fees and passes our portion of the fees to us. When another wireless service provider provides service to one of our subscribers, we pay outbound non-Sprint PCS roaming fees. Sprint PCS then bills our subscriber for use of that provider's network at rates specified in their contract and pays us 100% of this outbound non-Sprint PCS roaming revenue collected from that subscriber on a monthly basis. We bear the collection risk for all service.
Reseller agreements. We also recognize revenue from subscribers of various wholesale resellers of personal communications service when those subscribers use our network. These reseller agreements are negotiated by Sprint, and we receive a per minute rate for each minute that the subscribers of these resellers use our network. These subscribers may be based within or outside our markets. Currently, we receive wholesale revenue from a reseller agreement between Sprint and Virgin Mobile. Sprint recently announced an agreement with Qwest Communications to transition Qwest's subscribers
to Sprint's network on a wholesale basis. We expect that Qwest subscribers in our markets will be transitioned during 2004, at which point we will receive per minute wholesale revenue for usage by Qwest subscribers.
Marketing Strategy
Our marketing strategy is to complement Sprint's national marketing strategies with techniques tailored to each of our specific markets.
Use of Sprint's brand. We feature exclusively and prominently the nationally recognized Sprint brand name in our marketing and sales efforts. From the customers' point of view, we are Sprint in the markets that we serve and they use our portion of the PCS network of Sprint and the rest of the PCS network of Sprint as a unified national network.
Advertising and promotions. Sprint promotes its products through the use of national as well as regional television, radio, print, outdoor and other advertising campaigns. In addition to Sprint's national advertising campaigns, we advertise and promote Sprint PCS products and services on a local level in our markets at our cost, including the use of local radio, television and newspaper advertising. We have the right to use any promotional or advertising materials developed by Sprint and only have to pay the incremental cost of using those materials, such as the cost of local radio and television advertisement placements, material costs and incremental printing costs. We also benefit from any advertising or promotion of Sprint PCS products and services by third party retailers in our markets, such as Best Buy and RadioShack. We must pay the cost of specialized Sprint print advertising by third party retailers. Sprint also runs numerous promotional campaigns that provide customers with benefits such as additional features at the same rate or free minutes of use or kilobits of use for limited time periods. We offer these promotional campaigns to potential customers in our markets.
Sales force with local presence. We have established local sales forces to execute our marketing strategy through our company-owned retail stores, local third party stores, direct business-to-business representatives and other channels. Our marketing teams also support local civic organizations, clubs and charitable enterprises.
Sprint sponsorships. Sprint is a sponsor of numerous selective, broad-based national, regional and local events. These sponsorships provide Sprint with brand name and product recognition in high profile events, provide a forum for sales and promotional events and enhance our promotional efforts in our markets.
Sales and Distribution
Our sales and distribution plan focuses on local retail stores, local indirect agent retailers and national retailers with locations in our markets with distribution arrangements with Sprint, complemented by Sprint PCS' national channels. Key elements of our sales and distribution plan consist of the following:
Sprint Retail Stores. As of December 31, 2003, we operated 32 company-owned Sprint stores at various locations in our markets. These stores provide us with a local presence and visibility in our markets and are generally located in major traffic centers. Following the Sprint model, these stores are designed to facilitate retail sales, customer activation, bill collection and customer service. We train our sales representatives to be informed and persuasive advocates for Sprint PCS products and services. Our retail stores contributed approximately 39% of gross subscriber additions for 2003 and approximately 34% of our 2002 and 2001 gross subscriber additions.
Local Indirect Retailers. We contract directly with local indirect, or third party, retailers in our markets. These retailers are typically local specialty stores and local businesses that have a presence in
our markets. Local indirect retailers purchase handsets and other PCS retail equipment from us and market PCS services from Sprint on our behalf. We are responsible for managing this distribution channel. As of December 31, 2003, we had 47 exclusive local third party retailers in operation selling only Sprint PCS products and services. In addition, as of December 31, 2003, we had approximately 290 multi-carrier local third party retail locations within our markets. The local indirect retailers in our markets contributed approximately 25% of gross subscriber additions for 2003 and approximately 23% and 20% of our 2002 and 2001 gross subscriber additions, respectively.
National Third Party Retailers. Sprint has national distribution agreements with various national retailers for the sale of Sprint PCS products. These national agreements cover retailers' stores in our markets and include RadioShack, Best Buy, Costco, Staples, OfficeMax, Office Depot, Ritz Camera, Good Guys, Comp USA, Dillards and Wal-Mart. As of December 31, 2003, these retailers had approximately 380 locations in our markets. These national third party retailer locations contributed approximately 22% of gross subscriber additions for 2003 and approximately 26% and 32% of our 2002 and 2001 gross subscriber additions, respectively.
National Accounts and Direct Selling. We participate in Sprint PCS' national accounts program. Sprint PCS has a national accounts team which focuses on the corporate headquarters of Fortune 1000 companies. Once a representative reaches an agreement with the corporate headquarters, we service the offices of that corporation located in our markets. Our direct sales force targets the employees of these corporations in our markets and markets and sells to other local business clients. National accounts and direct selling contributed approximately 3% of gross subscriber additions for 2003 and approximately 5% and 8% of our 2002 and 2001 gross subscriber additions, respectively.
Sprint Distribution and Other Channels. Sprint directly controls various distribution channels that sell Sprint PCS products and services to customers whose billing address is in our markets. These channels with activity in our markets include Sprint inbound telemarketing, Sprint web-based electronic commerce, and Sprint retail stores and kiosks. Sprint provides inbound telemarketing sales when customers call Sprint's 800-number from our markets. Sprint PCS maintains an Internet site, www.sprintpcs.com, which contains information on Sprint PCS products and services. A visitor to the Sprint PCS Internet site can order and pay for a handset and select a rate plan. Sprint wireless customers visiting the site can review the status of their account, including the number of minutes used in the current billing cycle. Additionally, the sales activities of Sprint and other PCS affiliates of Sprint have some incidental overflow into our markets. We recognize the revenues generated by wireless customers in our markets who purchase Sprint PCS products and services through telemarketing, the Sprint PCS Internet site and these other channels. Sprint and other distribution channels contributed approximately 11% of gross subscriber additions for 2003 and approximately 12% and 6% of our 2002 and 2001 gross subscriber additions, respectively.
Resellers. We entered into a resale agreement with Virgin Mobile through Sprint in 2003 as part of the partnership between Sprint PCS and Virgin Mobile. The agreement allows Virgin Mobile to sell prepaid wireless services in our markets, and we market Virgin Mobile prepaid wireless services in our company-owned retail stores. Virgin Mobile uses the Sprint PCS nationwide network and offers one simple, easy to understand, pay-as-you-go pricing plan, targeting the 15- to 30-year-old U.S. consumer market to purchase pay-as-you-go wireless communications services while eliminating the responsibilities of monthly bills and credit requirements.
As described above, Sprint announced in the third quarter of 2003 that it had entered into a reseller agreement with Qwest Communications allowing Qwest to provide wireless voice and data services to new and existing customers in Qwest's service areas using Sprint's network and the networks of PCS affiliates of Sprint, including us, who overlap with Qwest's service areas. Qwest has approximately 30,000 to 40,000 customers in portions of our markets in Washington, Idaho and Utah and the transition of Qwest's reseller subscribers to our network is expected to occur later in 2004.
We also have a small number of other resellers in our markets. At December 31, 2003, we had approximately 22,700 Virgin Mobile and other reseller subscribers.
Seasonality
Our business is subject to seasonality because the wireless telecommunications industry is heavily dependent on fourth calendar quarter results. Among other things, the industry relies on significantly higher customer additions and handset sales in the fourth quarter as compared to the other three calendar quarters. A number of factors contribute to this trend, including:
•the heavy reliance on retail distribution, which is dependent upon the year-end holiday shopping season;
•the timing of new product and service announcements and introductions;
•competitive pricing pressures; and
•aggressive marketing and promotions.
Suppliers and Equipment Vendors
We do not manufacture any of the handsets or network equipment we use in our operations. We purchase our network equipment and handsets pursuant to various Sprint vendor arrangements that provide us with volume discounts. These discounts have significantly reduced the overall capital required to build our network.
Under such arrangements, we currently purchase most of our network equipment from Lucent Technologies. In addition, we currently purchase our handsets directly from Sprint and our accessories from Sprint and certain other third-party vendors.
Technology
General. In the commercial mobile wireless communications industry there are two principal services licensed by the Federal Communications Commission, or FCC, for transmitting two-way, real time voice and data signals: "cellular" and wireless "personal communications services." In addition, enhanced specialized mobile radio service allows for interconnected two-way real time voice and data services. The FCC licenses these services on a geographic basis, using distinct radio spectrum bands. Cellular service, which uses a portion of the 800 MHz spectrum, was the original form of widely-used commercial mobile wireless voice communications. Cellular networks were originally analog-based, but over the last several years cellular operators have been providing digital service, usually as a complement to analog service in most of the major metropolitan markets. In 1994, the FCC allocated the 1850-1990 MHz band for wireless high capacity, commonly referred to as broadband personal communications services to be provided utilizing digital technology.
Both analog and digital mobile wireless communications networks, whether wireless personal communications services or cellular service, are divided into multiple geographic coverage areas, known as "cells." In both wireless personal communications services and cellular networks, each cell contains a transmitter, a receiver and signaling equipment, known as the radio communications site. The radio communications site is connected by microwave or traditional telephone lines to a switch that uses computers to control the operation of the cellular or digital wireless personal communications services network. The switch:
•controls the transfer of calls from radio communications site to radio communications site as a subscriber's handset travels;
•coordinates calls to and from handsets;
•allocates calls among the radio communications sites within the network; and
•connects calls to the local wireline telephone system or to a long distance carrier.
Wireless communications providers establish interconnection agreements with local telephone companies and long distance telephone companies, thereby integrating their network with the existing communications network. Because the signal strength of a transmission between a handset and a radio communications site declines as the handset moves away from the radio communications site, the switching office and the radio communications site monitor the signal strength of calls in progress. When the signal strength of a call declines to a predetermined level, the switching office may "hand off" the call to another radio communications site where the signal strength is stronger.
Wireless personal communications services differ from original analog cellular telephone service principally in that wireless personal communications services networks operate at a higher frequency and employ advanced digital technology. Analog-based networks send signals in which the transmitted signal resembles the input signal, the caller's voice. Digital networks convert voice or data signals into a stream of digits that permit a single radio channel to carry multiple simultaneous transmissions. Digital networks also achieve greater frequency reuse than analog networks resulting in greater capacity than analog networks. This enhanced capacity, along with enhancements in digital protocols, allows digital-based wireless technologies, whether using wireless personal communications services or cellular frequencies, to offer new and enhanced services, including greater call privacy and more robust data transmission, such as facsimile, electronic mail and connecting notebook computers with computer/data networks. Moreover, digital technology also permits the provision of enhanced services such as caller ID.
Wireless digital signal transmission is accomplished through the use of various forms of frequency management technology or "air interface protocols." The FCC has not mandated a universal air interface protocol for digital wireless personal communications services networks. Digital wireless personal communications networks operate under one of three principal air interface protocols: CDMA, time division multiple access, commonly referred to as TDMA, or global system for mobile communications, commonly referred to as GSM. TDMA and GSM communications are both time division multiple access networks but are incompatible with each other. CDMA is incompatible with both GSM and TDMA networks. Accordingly, a subscriber of a network that utilizes CDMA technology is unable to use a CDMA handset when traveling in an area not served by CDMA-based wireless personal communications services operators, unless the customer carries a dual-band/dual-mode handset that permits the customer to use the analog cellular network in that area. The same issue would apply to users of TDMA or GSM systems. All of the wireless personal communications services operators now have dual-mode or tri-mode handsets available to their customers. Because digital networks do not cover all areas of the country, these handsets will remain necessary for segments of the subscriber base.
Benefits of CDMA technology. The PCS network of Sprint and the networks of the PCS affiliates of Sprint all use digital CDMA technology and use 3G CDMA technology in substantially all of their networks. We believe that CDMA provides important network performance benefits such as:
•Greater Capacity. We believe, based on studies by CDMA manufacturers and our experience, that 3G CDMA networks can provide network capacity that is approximately 12 times greater than that of current analog technology and approximately four times greater than TDMA and GSM digital networks.
•Privacy and Security. CDMA technology combines a constantly changing coding scheme with a low power signal to enhance call security and privacy.
•Soft Hand-Off. CDMA networks transfer calls throughout the CDMA network using a technique referred to as a "soft hand-off", which connects a mobile customer's call with a new radio
communications site while maintaining a connection with the radio communications site currently in use. CDMA networks monitor the quality of the transmission received by multiple radio communications sites simultaneously to select a better transmission path and to ensure that the network does not disconnect the call in one cell unless replaced by a stronger signal from another radio communications site. Analog, TDMA and GSM networks use a "hard hand-off" and disconnect the call from the current radio communications site as it connects with a new one without any simultaneous connection to both radio communications sites.
•Simplified Frequency Planning. Frequency planning is the process used to analyze and test alternative patterns of frequency use within a wireless network to minimize interference and maximize capacity. Unlike TDMA- and GSM-based networks, CDMA-based networks can reuse the same subset of allocated frequencies in every cell, substantially reducing the need for costly frequency reuse patterning and constant frequency plan management.
•Longer Battery Life. Due to their greater efficiency in power consumption, CDMA handsets can provide longer standby time and more talk time availability when used in the digital mode than handsets using alternative digital or analog technologies.
•Efficient migration path. We believe that CDMA technology has an efficient and incremental migration path to next generation voice and data services. Unlike technologies that require essentially a replacement investment to upgrade, CDMA upgrades can be completed incrementally. The first step-conversion to 1xRTT-was completed in 2002 for approximately $13 million.
Competition
Competition in the wireless telecommunications industry is intense. Competition has caused, and we anticipate that competition will continue to cause, the market prices for wireless products and services to decline in the future and the cost to acquire new customers to remain high. Currently, there are six national wireless providers who are generally all present in major markets across the country. We compete throughout our markets with both cellular and PCS providers. Although we face Verizon Wireless, AT&T Wireless Services, Cingular, T-Mobile and Nextel, the other five national wireless providers, in the majority of our markets, Verizon and AT&T are in all of our markets and provide the most competition for market share because in most cases they were the incumbent providers. Competition also spans operators using different competing digital technologies. We expect that existing cellular providers will continue to upgrade their networks to provide digital wireless communications services competitive with Sprint.
We also face competition from resellers, which provide wireless services to customers but do not hold FCC licenses or own facilities. Instead, the resellers buy blocks of wireless telephone numbers and capacity from a facilities-based carrier and resell services through their own distribution network to the public. Virgin Mobile and Qwest Communications have agreements with Sprint to act as resellers in our markets.
In addition, we compete in our markets with providers of existing communications technologies, such as paging, enhanced specialized mobile radio service dispatch and conventional landline telephone companies. Potential users of wireless personal communications services networks may find their communications needs satisfied by other current and developing technologies. One- or two-way paging or beeper services that feature voice messaging and data display as well as tone-only service may be adequate for potential customers who do not need to speak to the caller.
In the future, we expect to face increased competition from entities providing similar services using other communications technologies, including satellite-based telecommunications and wireless cable networks. While some of these technologies and services are currently operational, others are being
developed or may be developed in the future. Additionally, over the past several years, the FCC has auctioned and will continue to auction large amounts of wireless spectrum that could be used to compete with PCS services from Sprint.
Many of our competitors have significantly greater financial and technical resources and subscriber bases, more extensive coverage areas and more well-established marketing programs and brand names than we do. Some of our competitors may market other services, such as landline telephone service, cable television and Internet access, along with their wireless telecommunications services. Furthermore, there has been a recent trend in the wireless telecommunications industry towards consolidation of wireless service providers, which we expect to lead to larger competitors over time. In January 2003, the FCC rule imposing limits on the amount of spectrum that can be held by one provider in a specific market was lifted, which may facilitate the consolidation of some national providers.
The FCC's mandate that wireless carriers provide for wireless local number portability, or WLNP, went into effect on November 24, 2003. WLNP allows subscribers to keep their wireless phone numbers when switching to a different service provider, which could make it easier for competing providers to market their services to our existing users. WLNP makes customer defections more likely, and we may be required to increase subsidies for product upgrades and/or reduce pricing to match competitors' initiatives in an effort to retain customers or replace those who switch to other carriers.
We seek to attract and retain customers principally on the basis of:
•the strength of the Sprint brand name, products, services and features;
•Sprint's nationwide network;
•our network coverage and reliability;
•the benefits of CDMA technology;
•our marketing and promotional programs; and
•the quality of customer care services.
Our ability to compete successfully will also depend, in part, on our ability to anticipate and respond to various competitive factors affecting the industry, including:
•new services and technologies that may be introduced;
•changes in consumer preferences;
•demographic trends;
•economic conditions; and
•discount pricing strategies by competitors.
Intellectual Property
The Sprint diamond design logo is a service mark registered with the United States Patent and Trademark Office. The service mark is owned by Sprint. We use the Sprint brand name, the Sprint diamond design logo and other service marks of Sprint in connection with marketing and providing wireless services within our markets. Under the terms of our trademark and service mark license agreements with Sprint PCS, we do not pay a royalty fee for the use of the Sprint brand name and Sprint service marks.
Except in certain instances and other than in connection with national distribution agreements, Sprint has agreed not to grant to any other person a right or license to use the licensed marks in our
markets. In all other instances, Sprint reserves the right to use the licensed marks in providing its services within or without our markets.
Our trademark and service mark license agreements with Sprint PCS contain numerous restrictions with respect to the use and modification of any of the licensed marks.
Research and Development
We currently do not conduct our own research and development. Instead we benefit from Sprint's and our vendors' extensive research and development efforts, which provide us with access to new technological products and enhanced service features without significant research and development expenditures of our own.
We have been provided prompt access to any developments produced by Sprint for use in our network. We launched PCS Vision and PCS Ready Link products in 2002 and 2003 concurrently with the national launch by Sprint. We believe that new features and services will be developed for the Sprint PCS network to take advantage of CDMA technology. We may be required to incur additional expenses in modifying our network in the future to provide these additional features and services.
Sprint PCS Agreements
The following is a summary of the material terms and provisions of our Sprint PCS agreements and the consent and agreement modifying the Sprint PCS management agreement. These agreements were recently amended in a number of respects to resolve issues that had arisen between Sprint PCS and us. We have filed the Sprint PCS agreements, including the November 2003 amendment, as exhibits to certain of our securities filings with the Securities and Exchange Commission and urge you to review them carefully.
Overview of Sprint PCS Relationship and Agreements
Under long-term agreements with Sprint PCS, we have the right to exclusively market PCS products and services under the Sprint brand name in our markets. Sprint PCS owns the spectrum licenses and we are granted use of these licenses through our agreements with Sprint PCS. The agreements with Sprint PCS require us to interface with the Sprint PCS national wireless network by building our PCS network to operate on the PCS frequencies licensed to Sprint PCS. The Sprint PCS agreements also give us access to Sprint PCS' equipment discounts, roaming revenue from Sprint PCS customers traveling into our markets, and various other back office services. Our relationship and agreements with Sprint PCS provided strategic advantages, including avoiding the need to fund up-front spectrum acquisition costs and the costs of establishing billing and other customer services infrastructure. The Sprint PCS agreements have an initial term of 20 years ending in 2018 and will automatically renew for three additional successive 10-year terms for a total term of 50 years, unless we or Sprint PCS provide the other with two years' prior written notice to terminate the agreements or unless we are in material default of our obligations under the agreements.
We have four major agreements with Sprint PCS:
•the management agreement;
•the services agreement;
•the trademark and service mark license agreement with Sprint; and
•the trademark and service mark license agreement with Sprint PCS.
In addition, Sprint PCS has entered into a consent and agreement that modifies our management agreement for the benefit of Paribas, on behalf of the lenders under our senior secured credit facility.
The Management Agreement
Under our management agreement with Sprint PCS, we have agreed to:
•construct and manage a network in our markets in compliance with Sprint PCS' PCS licenses and the terms of the management agreement;
•share with Sprint the costs associated with its relocation of interfering microwave sources in our markets;
•distribute during the term of the management agreement Sprint PCS products and services;
•use Sprint PCS' and our own distribution channels in our markets;
•conduct advertising and promotion activities in our markets; and
•manage that portion of Sprint PCS' customer base assigned to our markets.
Sprint PCS will supervise our PCS network operations and has the right to unconditional access to our PCS network.
Exclusivity. We are designated as the only person or entity that can manage or operate a PCS network for Sprint PCS in our markets. Sprint PCS is prohibited from owning, operating, building or managing another wireless mobility communications network in our markets while our management agreement is in place and no event has occurred that would permit the agreement to be terminated. Sprint PCS is permitted under our agreement to make national sales to companies in our markets and, as required by the FCC, to permit resale of Sprint PCS products and services in our markets. If Sprint PCS decides to expand the geographic area of our build-out, Sprint PCS must provide us with written notice of the proposed expansion. We have 90 days to determine whether we will build out the proposed area. If we do not exercise this right, Sprint PCS can build out the markets or permit another PCS affiliate of Sprint to do so.
Network build-out. The management agreement specifies the terms of the requirements for our network build-out plan and requires that we provide network coverage to a minimum network coverage area within specified time frames. We believe we are in compliance with our network build-out requirements and have satisfied the required deployment schedule under the management agreement. We also have agreed to operate our PCS network, if technically feasible and commercially reasonable, to provide for a seamless handoff of a call initiated in our markets to a neighboring Sprint PCS network.
Products and services. The management agreement identifies the products and services that we can offer in our markets. These products and services include, but are not limited to, Sprint PCS consumer and business products and services available as of the date of the agreement, or as modified by Sprint PCS. We are allowed to resell Sprint PCS services to wireless resellers who in turn resell Sprint PCS services to their customers using our network. We also are allowed to sell wireless products and services that are not Sprint PCS' products and services if those additional products and services do not cause distribution channel conflicts or, in Sprint PCS' sole determination, consumer confusion with Sprint PCS products and services. We may cross-sell services such as long distance service, Internet access, handsets, and prepaid phone cards with Sprint, Sprint PCS and other Sprint PCS affiliates. If we decide to use third parties to provide these services, we must give Sprint PCS an opportunity to provide the services on the same terms and conditions. We cannot offer traditional telephone services based on wireless technology specifically designed for the competitive local telephone market in areas where Sprint owns the local telephone company unless we name the Sprint-owned local telephone company as the exclusive distributor or Sprint PCS approves the terms and conditions.
We participate in the Sprint PCS sales programs for national sales to customers, and pay the expenses and receive the compensation from national accounts located in our markets. As a participant in these sales programs, our responsibilities include assisting Sprint PCS' national sales team in our markets in connection with implementing national sales programs, negotiating customer contracts and managing customer accounts. We must use Sprint's long distance service for calls made from within designated portions of our markets to areas outside those designated portions and to connect our network to the national platforms Sprint PCS uses to provide some of its services under our services agreement. We must pay Sprint PCS the same price for this service that Sprint PCS pays to Sprint, along with an additional administrative fee.
Service pricing, roaming, travel and fees. We must offer Sprint PCS subscriber pricing plans designated for regional or national offerings. We are permitted to establish our own local price plans for Sprint PCS products and services offered only in our markets, subject to Sprint PCS' approval. We are entitled to receive fees weekly from Sprint PCS equal to 92% of net "billed revenue" related to customer activity less applicable write-offs, net of deposits applied. Sprint determines the write-offs for any given time period. Outbound non-Sprint PCS roaming billed to subscribers based in our markets, proceeds from the sales of handsets and accessories, amounts collected with respect to taxes and surcharges for enhanced 911, WLNP and universal service fund charges, and customer handset insurance are not considered "billed revenue." Billed revenue generally includes all other customer account activity for Sprint PCS products and services in our markets, which includes such activities billed to, attributed to or otherwise reflected in customers accounts. We are generally entitled to 100% of the proceeds from customers for equipment and accessories sold or leased by us and to 81.36% of fees for enhanced 911 and 6.36% of fees for WLNP attributable to customers based in our markets less applicable write-offs. We also are entitled to 100% of the universal service funds received from the Universal Service Administrative Company associated with customers in our markets. Many Sprint PCS subscribers purchase nationwide pricing plans that allow roaming anywhere on Sprint PCS' and its affiliates' networks without incremental Sprint PCS roaming charges. However, we earn Sprint PCS roaming revenue for every minute that a Sprint PCS subscriber from outside our markets enters our markets and uses our network. We earn revenue from Sprint PCS based on a per minute rate when Sprint PCS' or other Sprint PCS affiliates' subscribers travel on our portion of the Sprint PCS network. Similarly, we pay the same rate for every minute our subscribers use the Sprint PCS network outside our markets. The roaming rate onto a non-Sprint PCS provider's network is set under Sprint PCS' third party roaming agreements.
Under our agreement with Sprint PCS, the reciprocal roaming rate exchanged for customers who roam into the other party's or another PCS affiliate's network was initially established at $0.20 per minute. In April 2001, we, along with other PCS affiliates of Sprint, reached an agreement in principle with Sprint PCS to reduce this reciprocal roaming rate exchanged between Sprint PCS and the PCS affiliates. The rate was reduced from the original $0.20 per minute of use to $0.15 per minute of use beginning June 1, 2001, and to $0.12 per minute of use beginning October 1, 2001. The rate was reduced to $0.10 per minute for 2002 and further reduced to $0.058 per minute for 2003. The rate is currently fixed through December 31, 2006 at $0.058 per minute plus the actual long distance charges incurred pursuant to the November 2003 amendment to our management agreement. Beginning on January 1, 2007, the reciprocal roaming rate will change annually to equal 90% of Sprint PCS' retail yield from the prior year subject to certain limitations. Sprint PCS' retail yield is defined as Sprint PCS' average revenue per user for voice services divided by the average minutes of use per user.
In addition to the reciprocal per minute fee for the Sprint PCS roaming discussed above, we also recognize roaming revenue and expense related to data usage from PCS Vision services when wireless subscribers are using such services outside of their home territory. We recognize revenue when a wireless subscriber based outside of our markets uses PCS Vision data services on our network and we recognize expense when our subscribers use such services on the Sprint PCS network or network of
another PCS affiliate of Sprint outside of our markets. This roaming activity is settled on a per kilobit (KB) basis at a rate that was initially set at $0.0055 per KB for 2002 and was reduced to $0.0014 per KB for 2003. In the amendment to our management agreement with Sprint PCS, we agreed that the rate will be $0.0020 per KB for November 2003 through 2006. Thereafter, the rate will be calculated based upon a predetermined formula specified in the amendment to our management agreement.
Under our agreement with Sprint PCS, the reseller rate is also $0.058 per minute through December 31, 2006 and thereafter will change annually to equal 90% of Sprint PCS' retail yield from the prior year.
Advertising and promotions. Sprint PCS is responsible for all national advertising and promotion of the Sprint PCS products and services. We are responsible for advertising and promotion in our markets. Sprint PCS' service area includes the urban markets around our markets. Sprint PCS pays for advertising in these markets. Given the proximity of those markets to ours, we receive spill-over from Sprint PCS' advertising in surrounding urban markets.
Program requirements. Under our management agreement with Sprint PCS, we must comply with Sprint PCS' program requirements for technical standards, customer service standards and national and regional distribution and national accounts programs. Some of the technical standards relate to network up-time, dropped calls, blocked call attempts and call origination and termination failures. We are required to build a network that meets minimum transport requirements established by Sprint PCS for links between our cell sites and switches. These requirements are measured in milliseconds. We also are required to have minimal loss and echo return loss on our telephone lines. We must meet substantially high network up-time percentage in excess of 95%. Sprint PCS can adjust the program requirements at its discretion, subject to limitations, including those specified below which were included in the November 2003 amendment to our management agreement. We can decline to implement any "non-capital program requirement change" (as defined below) if the change will:
•cause our combined peak negative cash flow to be an amount greater than 3% of UbiquiTel Inc.'s "enterprise value" (as defined below);
•when combined with all other changes in the program requirements that we agree to or were required to implement, within the prior 12 months, cause our combined cumulative peak negative cash flow to be an amount greater than 5% of UbiquiTel Inc.'s "enterprise value";
•cause a decrease in our forecasted five-year discounted cash flow of more than 3% on a combined net present value basis; or
•when combined with all other changes in the program requirements that we agree to or were required to implement, within the prior 12 months, cause a decrease in our forecasted five-year discounted cash flow of more than 5% on a combined net present value basis.
For purposes of determining whether a "non-capital program requirement change" will adversely impact our operations, UbiquiTel Inc.'s "enterprise value" is defined as the book value of its outstanding debt and preferred stock, in addition to the fair market value of its publicly-traded equity (excluding preferred stock), less cash.
A "non-capital program requirement change" means a program requirement change that does not require us to make any capital expenditures in excess of 5% of our capital budget as approved by our board of directors for the fiscal year in which the program requirement change is requested, but does not include changes to the trademark usage guidelines, the marketing communications guidelines and the Sprint PCS national or regional distribution program requirements.
We also may decline to implement any change in any "capital program requirement" (as defined below), if the change will have a negative net present value applying a five-year discounted cash flow model.
A "capital program requirement change" means a program requirement change that requires us to make a capital expenditure that is greater than 5% of our capital budget as approved by our board of directors for the fiscal year in which the program requirement change is requested, but does not include changes to the trademark usage guidelines, the marketing communications guidelines and the Sprint PCS national or regional distribution program requirements.
Our management agreement sets forth a dispute resolution process if Sprint believes that we do not have the right to decline to implement a change in the program requirements. In any event, we must implement a change in the program requirements if Sprint agrees to compensate us for amounts in excess of the criteria set forth above.
Notwithstanding the above, we have agreed to implement a change in program requirements if the adjustment relates to a pricing plan or roaming program and Sprint reasonably determines that the change must be implemented on an immediate or expedited basis to respond to competitive market forces. If the change would have exceeded one of the criteria set forth above, our management agreement provides for appropriate compensation from Sprint to the extent such criteria is exceeded.
Under our services agreement with Sprint PCS, Sprint PCS may terminate a significant service, including customer service, billing or collections, upon nine months' advance written notice. We could then be required to establish and operate our own customer service center to, among other things, handle customer inquiries and activate handsets and accounts, handle billing or handle collections within stringent time guidelines established by Sprint PCS.
Non-competition. We may not offer Sprint PCS products and services outside our markets without the prior written approval of Sprint PCS. Within our markets we may offer, market or promote telecommunications products and services only under the Sprint brand, our own brand, brands of related parties of ours or other products and services approved under the management agreement, except that no brand of a significant competitor of Sprint PCS or its related parties may be used for those products and services. To the extent we obtain licenses to provide PCS services outside our markets, we may not use the spectrum to offer Sprint PCS products and services without prior written consent from Sprint PCS. Additionally, if customers from our markets travel to other geographic areas, we must route those customers' incoming and outgoing calls according to Sprint PCS' roaming and inter-service area requirements, without regard to any wireless networks that we or our affiliates operate.
Inability to use non-Sprint PCS brand. We may not market, promote, advertise, distribute, lease or sell any Sprint PCS products and services on a non-branded, "private label" basis or under any brand, trademark or trade name other than the Sprint brand, except for sales to resellers or as otherwise permitted under the trademark and service mark license agreements.
Change of Control. A change of control of our ownership is subject to Sprint PCS' consent, which cannot be unreasonably withheld.
Assignment. We cannot assign the Sprint PCS agreements to any person without the prior consent of Sprint PCS, except that we can assign the agreements to any affiliate of ours that is not a significant competitor of Sprint PCS in the telecommunications business.
Rights of First Refusal. Sprint PCS has rights of first refusal to buy our assets, without further approval of our shareholders, upon a proposed sale of all or substantially all of our assets that are used in connection with the operation or management of the Sprint PCS network in our markets.
Termination of management agreement. The management agreement can be terminated as a result of:
•termination of Sprint PCS' PCS licenses;
•an uncured breach under the management agreement;
•bankruptcy of a party to the management agreement;
•the management agreement not complying with any applicable law in any material respect; or
•the termination of either of the trademark and service mark license agreements.
The termination or non-renewal of the management agreement triggers certain of our rights and those of Sprint PCS.
However, Sprint PCS' rights of termination have been modified by the consent and agreement and are discussed more particularly under "-Consent and Agreement." The termination or non-renewal of the management agreement triggers certain of our rights and those of Sprint PCS.
Transfer of Sprint PCS network. Sprint PCS may sell, transfer or assign its wireless personal communications services network to a third party if the third party agrees to be bound by the terms of our Sprint PCS agreements.
Rights on Termination. If we have the right to terminate the management agreement because of an event of termination caused by Sprint PCS, generally we may:
•require Sprint PCS to purchase all of our operating assets used in connection with our PCS network for an amount equal to 80% of our "entire business value" (as determined in the manner described below under "Determination of Entire Business Value");
•if Sprint PCS is the licensee for 20 MHz or more of the spectrum on the date of the management agreement, require Sprint PCS to assign to us, subject to governmental approval, up to 10 MHz of licensed spectrum for an amount equal to the greater of: the original cost to Sprint PCS of the license plus any microwave relocation costs paid by Sprint PCS; or 9% of our entire business value; or
•sue Sprint PCS for damages or submit the matter to arbitration and thereby not terminate the management agreement.
If Sprint PCS has the right to terminate the management agreement because of an event of termination caused by us, generally Sprint PCS may:
•require us, without further approval of our shareholders, to sell our operating assets to Sprint PCS for an amount equal to 72% of our entire business value;
•require us to purchase, subject to governmental approval, the licensed spectrum for an amount equal to the greater of: the original cost to Sprint PCS of the license plus any microwave relocation costs paid by Sprint; or 10% of our entire business value;
•take any action as Sprint PCS deems necessary to cure our breach of the management agreement, including assuming responsibility for, and operating, our PCS network; or
•sue us for damages or submit the matter to arbitration and thereby not terminate the management agreement.
Rights on Non-Renewal. If Sprint PCS gives us timely notice that it does not intend to renew the management agreement, we may:
•require Sprint PCS to purchase all of our operating assets used in connection with our PCS network for an amount equal to 80% of our entire business value; or
•if Sprint PCS is the licensee for 20 MHz or more of the spectrum on the date of the management agreement, require Sprint PCS to assign to us, subject to governmental approval,
up to 10 MHz of licensed spectrum for an amount equal to the greater of: the original cost to Sprint PCS of the license plus any microwave relocation costs paid by Sprint PCS; or 10% of our entire business value.
If we give Sprint PCS timely notice of non-renewal, or we both give notice of non-renewal, or the management agreement can be terminated for failure to comply with legal requirements or regulatory considerations, Sprint PCS may:
•purchase all of our operating assets, without further approval of our shareholders, for an amount equal to 80% of our entire business value; or
•require us to purchase, subject to governmental approval, the licensed spectrum for an amount equal to the greater of: the original cost to Sprint PCS of the license plus any microwave relocation costs paid by Sprint PCS; or 10% of our entire business value.
Determination of Entire Business Value. If our entire business value is to be determined, we and Sprint PCS will each select one independent appraiser and the two appraisers will select a third appraiser, each of whom must be an expert in valuing wireless telecommunications companies. The three appraisers will determine the entire business value on a going concern basis using the following guidelines:
•the entire business value will be based on the price a willing buyer would pay a willing seller for the entire ongoing business;
•the appraisers will use then current customary means of valuing a wireless telecommunications business;
•the appraisers will value the business as it is conducted under the Sprint brand and the Sprint PCS agreements;
•where Sprint PCS may, or is required to, purchase our operating assets the appraisers will value the business as if we own the spectrum and frequencies that we actually use; where we may, or are required to, purchase a portion of Sprint PCS' licensed spectrum, the business will be valued as if we already own that portion of the spectrum and frequencies that we are going to purchase; and
•the valuation will not include any value for the business not directly related to the Sprint PCS products and services.
Insurance. We are required to obtain and maintain with financially reputable insurers who are licensed to do business in all jurisdictions where any work is performed under the management agreement and who are reasonably acceptable to Sprint PCS, workers' compensation insurance, commercial general liability insurance, business automobile insurance, umbrella excess liability insurance and "all risk" property insurance.
Indemnification. We have agreed to indemnify Sprint PCS and its directors, employees and agents and related parties of Sprint PCS and their directors, managers, officers, employees, agents and representatives against any and all claims against any of the foregoing arising from our violation of any law, a breach by us of any representation, warranty or covenant contained in the management agreement or any other agreement between us and Sprint PCS, our ownership of the operating assets or the actions or the failure to act of anyone employed or hired by us in the performance of any work under the agreement, except we will not indemnify Sprint PCS for any claims arising solely from the negligence or willful misconduct of Sprint PCS. Sprint PCS has agreed to indemnify us and our directors, managers, officers, employees, agents and representatives against all claims against any of the foregoing arising from Sprint PCS' violation of any law and from Sprint PCS' breach of any representation, warranty or covenant contained in the management agreement or any other agreement
between Sprint PCS and us, except Sprint PCS will not indemnify us for any claims arising solely from our negligence or willful misconduct.
Most favored nation clause. We generally have the right to amend our management agreement or services agreement to obtain the most favorable terms provided under a management agreement or services agreement between Sprint and another Sprint PCS affiliate of similar size (defined as having at least 3.0 million covered POPs) if, prior to December 31, 2006, Sprint amends the terms of any of those agreements of another Sprint PCS affiliate of similar size in a manner that are more favorable than the terms of our agreements. This right is only effective, however, if we agree to accept all of the terms and conditions set forth in the other agreements agreed to after November 1, 2003 and (1) those agreements were not amended with such Sprint PCS affiliate, solely because the affiliate owns the spectrum on which its network operates (unless such PCS affiliate of Sprint acquired the spectrum from Sprint after November 1, 2003), (2) the amendments to those agreements were not compelled by a law or regulation inapplicable to us, or (3) the amendments to those agreements were not due solely to a change in a build-out plan.
The Services Agreement
Pursuant to the November 2003 amendment to our services agreement, Sprint PCS consolidated support services relating to billing, customer care, collections, network operations control center monitoring, national platform interconnectivity, voice mail, directory assistance, operator services and roaming clearinghouse services into one back office service referred to as Sprint CCPU service, all of which support services we had been purchasing prior to the consolidation. We have agreed to continue to purchase the Sprint CCPU service from Sprint PCS for the period November 2003 through December 2006 and pay a monthly rate of $7.70 per subscriber. Beginning in 2007, the monthly rate for the next three years for Sprint CCPU service will be based on a to-be-determined percentage of Sprint PCS' reported cash cost per user. If we and Sprint PCS cannot agree to a new rate for any future three-year period beyond 2006, we have the option to continue to purchase the Sprint CCPU service and have an arbitrator determine the new rate or self-provision or procure those services elsewhere, subject to certain rights and procedures relating to our ability to transition only customer care and collection services beginning in 2008. Sprint PCS also consolidated services relating to subscriber activation, credit verification, handset logistics and handset carrying and obsolescence costs into one category referred to as Sprint CPGA service, all of which services and/or costs, prior to the consolidation, we had been purchasing in the case of the services or bearing in the case of the costs. We have agreed to continue to purchase the Sprint CPGA service from Sprint PCS for the period November 2003 through December 2006 at a monthly rate of 5.2% of Sprint PCS' most recently published cost per gross addition. Beginning in 2007, the monthly percentage rate for the next three years for Sprint CPGA service will be based on a to-be-determined percentage of Sprint PCS' reported CPGA. If we and Sprint PCS cannot agree to a new rate for any future three-year period beyond 2006, we have the option to continue to purchase the Sprint CPGA service and have an arbitrator determine the new rate or self-provision or procure those services elsewhere.
Sprint PCS may contract with third parties to provide expertise and services identical or similar to those to be made available or provided to us. We have agreed not to use the services performed by Sprint in connection with any other business or outside our markets. Sprint must give us nine months' notice if it discontinues a significant service, including customer service, billing or collections, in which case, if we wish to continue to receive that service, Sprint will use commercially reasonable efforts to help us provide the service ourselves or find another vendor to provide the service and to facilitate any transition.
We have agreed with Sprint PCS to indemnify each other as well as officers, directors, employees and certain other related parties and their officers, directors and employees for violations of law or the services agreement except for any liabilities resulting from the indemnitee's negligence or willful
misconduct. The services agreement also provides that no party to the agreement will be liable to the other party for special, indirect, incidental, exemplary, consequential or punitive damages, or loss of profits arising from the relationship of the parties or the conduct of business under, or breach of, the services agreement except as may otherwise be required by the indemnification provisions. The services agreement automatically terminates upon termination of the management agreement and neither party may terminate the services agreement for any reason other than the termination of the management agreement.
The Trademark and Service Mark License Agreements
We have non-transferable, royalty-free licenses to use the Sprint brand name and "diamond" symbol, and several other U.S. trademarks and service marks on Sprint PCS products and services. Our use of the licensed marks is subject to our adherence to quality standards determined by Sprint and use of the licensed marks in a manner that would not reflect adversely on the image of quality symbolized by the licensed marks. We have agreed promptly to notify Sprint of any infringement of any of the licensed marks within our markets of which we become aware and to provide assistance to Sprint in connection with Sprint's enforcement of its rights. We have agreed with Sprint and Sprint PCS to indemnify each other for losses incurred in connection with a material breach of the trademark license agreements. In addition, we have agreed to indemnify Sprint and Sprint PCS from any loss suffered by reason of our use of the licensed marks or marketing, promotion, advertisement, distribution, lease or sale of any Sprint or Sprint PCS products and services other than losses arising solely out of our use of the licensed marks in compliance with certain guidelines.
Sprint and Sprint PCS can terminate the trademark and service mark license agreements if we file for bankruptcy, materially breach the agreement or our management agreement is terminated. We can terminate the trademark and service mark license agreements upon Sprint's or Sprint PCS' abandonment of the licensed marks or if Sprint or Sprint PCS files for bankruptcy, or the management agreement is terminated.
The Consent and Agreement
Overview. Sprint PCS has entered into a consent and agreement that modifies our management agreement for the benefit of Paribas, on behalf of the lenders under our senior secured credit facility. The consent generally provides, among other things, the following.
Consent to security interest and pledge of stock. Sprint PCS has consented to the grant of the following to such senior lenders:
•a first priority security interest in all our assets including the Sprint PCS agreements;
•a lien upon all of our assets and property including our rights under the Sprint PCS agreements; and
•a first priority security interest in our capital stock.
Sprint PCS has agreed to acknowledge the grant of these security interests and to waive its right or the right of any of its affiliates to challenge or contest the validity of the interests.
Agreement not to terminate Sprint PCS agreements until debt obligations are repaid. Sprint PCS has agreed not to exercise its rights or remedies under the Sprint PCS agreements, except its right to cure some defaults, and including its right to terminate the agreements and withhold payments (other than rights of setoff) until our obligations under the credit agreement are satisfied in full.
No competition until debt obligations are repaid. Sprint PCS has agreed that it will not permit any person other than us or a successor manager to be a manager or operator for Sprint PCS in our
markets until our obligations under the credit facility are satisfied in full. Similarly, Sprint PCS has agreed that it will not own, operate, build or manage another wireless mobility communications network in our markets unless it is permitted under the management agreement or the management agreement is terminated in accordance with the consent, and, in each case, until our obligations under the credit facility are satisfied in full. While the credit facility is outstanding, Sprint PCS may, however, sell PCS services through its national accounts, permit resellers and build new geographical areas within our markets for which we have chosen not to exercise our rights of first refusal, all as provided in the management agreement.
Assignments and change of control to Paribas. Sprint PCS has agreed not to apply the restrictions on assignment of the Sprint PCS agreements and changes in control of our ownership to Paribas. The assignment and change of control provisions in the Sprint PCS agreements will apply if the assignment or change of control is to someone other than Paribas, or is not otherwise permitted under the consent.
Redirection of Payments from Sprint PCS to Paribas. Sprint PCS has agreed to make all payments due from Sprint PCS to us under the Sprint PCS agreements directly to Paribas if Paribas so requests and provides Sprint PCS with notice that an event of default has occurred and is continuing under the credit facility. Payments to Paribas would cease upon the cure of the event of default or certain time limitations.
Notice of Defaults. Sprint PCS has agreed to provide to Paribas a copy of any written notice it sends us regarding an event of termination or an event that if not cured, or if notice is provided, would be an event of termination under the Sprint PCS agreements. Sprint PCS also has acknowledged that notice of an event of termination under the Sprint PCS agreements constitutes an event of default under our credit agreement with Paribas. Paribas has agreed to provide Sprint PCS with a copy of any written notice sent to us regarding an event of default or default under the credit agreement with Paribas.
Right to Cure. Under the terms of the consent, Paribas has the right, but not the obligation, to cure a breach by us of our management agreement with Sprint PCS. Additionally, Sprint PCS has the right, but not the obligation, to cure certain defaults by us of our obligations under the credit agreement with Paribas.
Rights Upon Default. Besides modifying the rights and remedies available to Sprint PCS upon an event of termination under our management agreement, the consent grants Paribas certain rights in the event that we default on our obligations under the credit facility. Paribas' rights and remedies vary based on whether:
•we have defaulted on our obligations under the credit facility but no event of termination has occurred under the management agreement; or
•we have breached the management agreement with Sprint PCS.
The consent generally permits, without approval of our shareholders, the appointment of a person to run our business under the Sprint PCS agreements on an interim basis and establishes a process for the sale of the business. The person designated to operate our business on an interim basis is permitted to collect a reasonable management fee. If Sprint PCS or a related party is the interim operator, the amount of the fee shall not exceed the amount of direct expenses of its employees to operate the business plus out-of-pocket expenses. Sprint PCS shall collect its fee by setoff against the amounts owed to us under the Sprint PCS agreements.
Credit agreement default without a management agreement breach. If we default on our obligations to Paribas under the credit facility, and there is no default under our management agreement with Sprint PCS, then Paribas may take any of the following actions:
•allow us to continue to operate the business under the Sprint PCS agreements;
•appoint Sprint PCS to operate the business on an interim basis; or
•appoint a person other than Sprint PCS to operate the business on an interim basis.
Appointment by Paribas of Sprint PCS or a third party designee to operate business. If Paribas appoints Sprint PCS to operate the business, Sprint PCS must accept the appointment within 14 days or designate another person to operate the business. Sprint PCS' designee may be a PCS affiliate of Sprint (other than us) or another person acceptable to Paribas. Sprint PCS or its designee must agree to operate the business for up to six months. At the end of the six months, the period may be extended by Paribas for an additional six months (or an additional 12 months if the aggregate population served by all of the PCS affiliates of Sprint is less than 40 million). During the initial six-month period, Sprint PCS may not receive reimbursement for amounts expended to cure a breach until our obligations to our senior lenders under the credit facility have been satisfied in full. If the term is extended beyond the initial six-month period, we will be required to reimburse Sprint PCS or its designee for amounts previously expended and to be incurred as interim manager to cure a default up to an aggregate amount that is equal to 5% of the sum of our shareholders' equity value plus the outstanding amount of our long term debt. Sprint PCS or its designated person is not required to incur expenses beyond this 5% limit. At the end of the initial six-month interim term, Paribas has the right to appoint a successor to the interim manager subject to the requirements set forth below.
Appointment of third party by Paribas to operate business. If Paribas appoints a person other than Sprint PCS to operate the business on an interim basis the third party must:
•agree to serve for six months unless terminated by Sprint PCS or Paribas;
•meet the requirements for a successor manager specified in the consent, and not be challenged by Sprint PCS for failing to meet these requirements within 20 days after Paribas provides Sprint PCS with information on the third party; and
•agree to comply with the terms of the Sprint PCS agreements.
The third party is required to operate the Sprint PCS network in our markets, but is not required to assume our existing liabilities. If the third party materially breaches the Sprint PCS agreements, this breach will be treated as an event of default under the management agreement with Sprint PCS.
Management agreement breach. If we breach the Sprint PCS agreements and this breach causes a default under the credit agreement with Paribas, Sprint PCS has the right to designate who will operate our business on an interim basis. Sprint PCS has the right to:
•allow us to continue to operate the business under the Sprint PCS agreements (if Paribas consents);
•operate our PCS business as an interim manager for up to six months; or
•appoint a PCS affiliate of Sprint or another person that is acceptable to Paribas to operate our PCS business on an interim basis.
If Sprint PCS elects not to operate the business or designate a third party to operate the business on an interim basis, Paribas may do so.
Election of Sprint PCS to serve or designate a third party to operate business. If Sprint PCS elects to operate the business on an interim basis or designate a third party to operate the business on an interim basis, Sprint PCS or the third party may operate the business for up to six months at the discretion of Sprint PCS. At the end of the six months, the period may be extended for an additional six months (or an additional 12 months if the aggregate population served by us and all other PCS affiliates of Sprint is less than 40 million). During the initial six-month period, Sprint PCS may not
receive reimbursement for amounts expended to cure a breach until our obligations to our senior lenders under the credit facility have been satisfied in full. If the term is extended beyond the initial six-month period, we will be required to reimburse Sprint PCS or its third party designee for amounts previously expended and to be incurred as interim manager to cure a default up to an aggregate amount that is equal to 5% of the sum of our shareholders' equity value plus the outstanding amount of our long term debt. Sprint PCS or its third party designee is not required to incur expenses beyond this 5% limit. At the end of the initial six-month period, Sprint PCS, subject to the approval of Paribas, has the right to appoint a successor to the interim manager.
Appointment of third party by Paribas to operate business. If Sprint PCS gives Paribas notice of a breach of the management agreement, our obligations under the credit agreement are accelerated and if Sprint PCS does not agree to operate the business or is unable to find a designee, then Paribas may designate a third party to operate the business. Paribas has this same right if Sprint PCS or its designee is not replaced within 30 days of the end of its term as interim manager. The third party selected by Paribas must:
•agree to serve for six months unless terminated by Sprint PCS or Paribas;
•meet the requirements for a successor manager specified in the consent and not be challenged by Sprint PCS for failing to meet the requirements within 20 days after Paribas provides Sprint PCS with information on the third party; and
•agree to comply with the terms of the Sprint PCS agreements.
The third party may continue to operate the business after the six-month period at Paribas' discretion, so long as the third party continues to satisfy the requirements to be a successor manager and does not breach the terms of the Sprint PCS agreements.
Purchase and Sale of Operating Assets. The consent establishes a process for the sale of our operating assets, without approval of our shareholders, in the event that we default on our obligations to Paribas under the credit facility and Paribas accelerates the maturity of those obligations.
Sprint PCS' right to purchase on acceleration of debt. Upon notice of an acceleration, Sprint PCS has the right, without approval of our shareholders, to purchase our operating assets or capital stock under the following terms:
•The purchase price will be the greater of: 72% of our Entire Business Value; or the aggregate amount of our obligations under the credit agreement.
•Sprint PCS must notify Paribas of its intention to exercise the purchase right within 60 days of receipt of the notice of acceleration.
•Once Sprint PCS has given notice of its intention to exercise the purchase right, Paribas is prohibited from enforcing its security interests until the earlier of 120 days after the acceleration or until Sprint PCS rescinds its intention to purchase.
•If, after the 120-day period after the acceleration date, we receive a written offer to purchase our operating assets or capital stock that we confirm in writing to be acceptable to us, Sprint PCS has the right to purchase our operating assets or our stock on terms and conditions at least as favorable to us as the offer we receive. Sprint PCS must exercise its right to purchase the operating assets or capital stock within 14 business days of its receipt of the offer, on acceptable conditions, and in an amount of time acceptable to us and Paribas.
•Upon completion of the sale to Sprint PCS and satisfaction in full of our obligations under the credit agreement, Paribas must release its security interests.
Sale of Operating Assets or Capital Stock to Third Parties. If Sprint PCS does not purchase the operating assets or capital stock, following an acceleration by Paribas of our obligations under the credit agreement, Paribas may sell our operating assets or stock. In that event, Paribas has two options:
•to sell the assets or stock to an entity that meets the requirements of a qualified successor under the Sprint PCS agreements; or
•to sell the assets or stock to any third party, subject to specified conditions.
Sale of Assets or Capital Stock to Qualified Successor. Paribas may sell the operating assets or capital stock and assign the agreements to entities that meet the following requirements to succeed us:
•the person has not materially breached a material agreement with Sprint PCS or its related parties that has resulted in the exercise of a termination right or in the initiation of judicial or arbitration proceedings during the past three years;
•the person is not named by Sprint PCS as a prohibited successor and listed on Schedule 13 to the consent;
•the person has reasonably demonstrated its credit worthiness and can demonstrate the ability to service the indebtedness and meet the requirements of the build-out plan; and
•the person agrees to be bound by the Sprint PCS agreements.
Paribas is required to provide Sprint PCS with information necessary to determine if a buyer meets the requirements to succeed us as manager. Sprint PCS has 20 days after its receipt of this information to object to the qualifications of the proposed successor manager. If Sprint PCS does not object to the buyer's qualifications, the buyer can purchase the assets and assume our rights and responsibilities under the Sprint PCS agreements. The consent will remain in full force and effect for the benefit of the buyer and its lenders. The buyer also has a period to cure any defaults under our Sprint PCS agreements.
Sale of Assets or Capital Stock to Non-Successor. Paribas may sell, without shareholder approval, our assets or stock to a party that does not meet the requirements to succeed us. If such a sale is made:
•Sprint PCS may terminate the Sprint PCS agreements;
•the buyer may purchase from Sprint PCS 5, 7.5 or 10 MHz of the PCS spectrum licensed to Sprint PCS in our licensed areas under specified terms;
•if the buyer controls, is controlled by or is under common control with an entity that owns a license to provide wireless service to at least 50% of the population in a basic trading area where the buyer proposes to purchase the spectrum from Sprint PCS, the buyer may only buy 5 MHz of spectrum;
•the price to purchase the spectrum is equal to the sum of the original cost of the license to Sprint PCS pro rated on a population and a spectrum basis, plus the cost paid by Sprint PCS for microwave relocation costs attributable to clearing in the spectrum ultimately acquired by the buyer of our assets and the amount of carrying costs attributable to the license and microwave relocation costs from the date of the consent until the closing of the sale, based on a rate of 12% per annum;
•the buyer will receive from Sprint PCS the customers with the mobile identification number assigned to the market area covered by the purchased spectrum except for customers of national accounts and resellers;
•with limited exceptions, Sprint PCS will not solicit for six months the customers transferred to the buyer with the mobile identification number assigned to the market area;
•the buyer and Sprint PCS will enter into a mutual roaming agreement with prices equal to the lesser of the most favored pricing provided by buyer to third parties roaming in the geographic area and the national average paid by Sprint PCS to third parties; and
•Sprint PCS will have the right to resell the buyer's wireless services at most favored nation pricing.
Deferral of Collected Revenues. For a period of up to two years after an acceleration by Paribas of our obligations under the credit facility, Sprint PCS may only retain one-half of the amount of collected revenues from our operation of the Sprint PCS network in our markets that it would otherwise be entitled to under the management agreement. The balance must be forwarded to us, or to Paribas if Paribas has elected to redirect payments as provided in the consent. If Sprint PCS is not serving as the interim manager at the end of the first year following the acceleration, then Sprint PCS will retain all of the collected revenues to which it is entitled under the management agreement from then on (the remainder to be paid to Sprint PCS under an unsecured deferred note).
Right to Purchase Debt Obligations. Following the acceleration of our obligations under the credit facility, and until the 60-day anniversary of the filing of a bankruptcy petition, Sprint PCS has the right to purchase our obligations that are held by the lenders under the credit facility.
Environmental Compliance
Our environmental compliance expenditures primarily result from the operation of standby power generators for our telecommunications equipment and compliance with various environmental rules during network build-out and operations. The expenditures arise in connection with standards compliance or permits which are usually related to generators, batteries or fuel storage. Our environmental compliance expenditures have not been material to our financial statements or operations and are not expected to be material in the future.
Regulation of the Wireless Telecommunications Industry
The FCC regulates the licensing, construction, operation, acquisition and interconnection arrangements of wireless telecommunications networks in the United States. The FCC has promulgated a series of rules, regulations and policies to, among other things:
•grant or deny licenses for PCS frequencies;
•grant or deny PCS license renewals;
•rule on assignments and/or transfers of control of PCS licenses;
•govern the interconnection of PCS networks with other wireless and wireline carriers;
•establish access and universal service funding provisions;
•allocate spectrum for PCS and other wireless services and establish procedures, including auction procedures, for awarding licenses to utilize spectrum for provision of wireless services;
•govern certain aspects of the relationship between carrier and customer, such as the use of personal information, and number portability;
•establish service requirements such as enhanced 911 service;
•impose fines and forfeitures for violations of the Communications Act and the FCC's rules; and
•regulate the technical standards of PCS networks.
Through rules that became fully effective on January 1, 2003, the FCC eliminated its spectrum cap for commercial mobile radio service, or CMRS, which includes broadband wireless personal
communications services, cellular and SMR. The cap previously had limited CMRS providers to 55 MHz of spectrum in any geographic area.
Transfers and Assignments of PCS Licenses
The FCC must give prior approval to the assignment of licenses or transfers of licenses involving substantial changes in ownership or control of a PCS license. Non-controlling interests in an entity that holds a PCS license or operates PCS networks generally may be bought or sold without prior FCC approval. The FCC requires only post-consummation notification of certain pro forma assignments or transfers of control. In addition, the FCC has established rules which will allow the leasing of licensed spectrum.
Conditions of PCS Licenses
All PCS licenses are granted for 10-year terms conditioned upon compliance with various rules and regulations of the FCC, including timely compliance with the FCC's build-out requirements. Pursuant to the FCC's build-out requirements, all 30 MHz broadband PCS licensees must construct facilities that offer coverage to one-third of the population within their licensed service areas within five years and to two-thirds of the population within ten years, and all 10 MHz broadband PCS licensees must construct facilities that offer coverage to at least one-quarter of the population in their licensed service areas within five years or make a showing of "substantial service" within that five-year period. If the build-out requirements are not met, the PCS licenses could be forfeited.
The FCC also requires licensees to maintain control over their licenses. We believe that our management agreement with Sprint PCS meets the FCC requirements for licensee control of licensed spectrum. If the FCC were to determine that our management agreement with Sprint PCS needs to be modified to increase the level of licensee control, the agreement may be modified to cure any purported deficiency regarding licensee control of the licensed spectrum. If the agreement cannot be modified, it may be terminated. As a result, it would be extremely difficult for us to conduct our business. In addition to revoking licenses, the FCC could impose monetary penalties on us.
PCS License Renewal
PCS licenses can be renewed for additional 10-year terms. PCS license renewal applications are not subject to auctions. However, under the FCC's rules, third parties may oppose renewal applications and/or file competing applications. If one or more competing applications are filed, a renewal application will be subject to a comparative renewal hearing. The FCC's rules afford PCS renewal applicants involved in comparative renewal hearing a "renewal expectancy." The renewal expectancy is the most important comparative factor in a comparative renewal hearing and is applicable if the PCS renewal applicant has provided "substantial service" during its license term and substantially complied with all applicable laws and FCC rules and policies. The FCC's rules define "substantial service" in this context as service that is sound, favorable and substantially above the level of mediocre service that might minimally warrant renewal. We believe that the FCC's renewal expectancy and procedures make it likely that Sprint will retain its PCS licenses that we manage for the foreseeable future.
Interconnection
The FCC has the authority to order interconnection between commercial mobile radio service providers and incumbent local exchange carriers. The FCC has ordered local exchange carriers to establish reciprocal compensation with commercial mobile radio service providers, which provide telecommunications services through wireless technology for transport and termination of telecommunications. The FCC rules define reciprocal compensation as compensation from one carrier to another for the transport and termination on each carrier's network facilities of local telecommunications traffic originating on the network facilities of the other carrier. As a commercial
mobile radio service provider, we are required to pay reciprocal compensation to a wireline local exchange carrier that transports and terminates a local call that originated on our network. Similarly, we are entitled to receive reciprocal compensation when we transport and terminate a local call that originated on a wireline local exchange carrier's network. In conjunction with Sprint, we negotiate interconnection agreements for our network with major incumbent local exchange carriers and smaller independent local telephone companies. If an agreement cannot be reached, under certain circumstances, parties to interconnection negotiations can submit outstanding disputes to state authorities for arbitration. Negotiated interconnection agreements are subject to state approval. The FCC rules and rulings, as well as the state arbitration proceedings, will directly impact the nature and cost of the facilities necessary for interconnection of the PCS network of Sprint with other telecommunications networks. They also will determine the nature and amount of revenues we and Sprint can receive for terminating calls originating on the networks of local exchange carriers and other telecommunications carriers.
Other FCC Requirements
CMRS providers, including Sprint, are required to permit manual roaming on their networks. With manual roaming, any user whose mobile phone is technically capable of connecting with a carrier's network must be able to make a call by providing a credit card number or making some other arrangement for payment. Since October 2000, the FCC has been considering changes in its rules that may terminate the manual roaming requirement and could impose automatic roaming obligations, under which users with capable equipment would be permitted to originate or terminate calls without taking action other than turning on their mobile phones.
In October 2003, the FCC issued an order in which it adopted leasing rules and rules governing the streamlined processing of certain de facto transfers of control of wireless service licenses, including cellular and PCS licenses, which will permit a secondary market to develop for the acquisition of spectrum. Under these new rules, licensees may lease spectrum usage rights to spectrum lessees without the need for prior FCC approval so long as the licensee retains effective working control over the use of the spectrum. In addition, these rules will allow licensees to enter into short-term (360 days or less) and long-term leases in which the licensee retains legal control of the licensed spectrum but in which de facto or working control is transferred to the lessee for the term of the lease. Such leases which transfer working control will require FCC approval but will be subject to streamlined FCC review and approval procedures. The FCC also has issued a further notice of proposed rulemaking in which it has sought comment on further changes to its spectrum leasing rules and policies.
FCC rules require that local exchange carriers and most commercial mobile radio service providers allow customers to change service providers without changing telephone numbers, which, for wireless service providers, is referred to as wireless local number portability, or WLNP. FCC regulations required that most commercial mobile radio service providers implement WLNP in the 100 largest metropolitan areas of the United States by November 24, 2003. FCC regulations require most commercial mobile radio service providers to be able to deliver calls from their networks to ported numbers anywhere in the country and to contribute to the Local Number Portability Fund. Wireless carriers outside the top 100 MSAs that receive a request to port numbers must be capable of doing so within six months of the request or by May 24, 2004, whichever is later. The FCC also has adopted rules governing the porting of wireline numbers to wireless carriers. Implementation of WLNP has required wireless PCS providers like us and Sprint to purchase more expensive switches and switch upgrades. However, it also has enabled existing cellular customers to change to wireless personal communications services without losing their existing wireless telephone numbers, which has made it easier for PCS providers to market their services to existing cellular users.
FCC rules require broadband PCS and other commercial mobile radio service providers to implement enhanced emergency 911 capabilities that provide the location of wireless 911 calls to "Public Safety Answering Points." The FCC has approved a plan proposed and amended by Sprint
under which Sprint began selling specially equipped telephone handsets in 2001, with a rollout of such handsets that continued until June 30, 2003, when all new handsets activated nationwide were to be specially-equipped. Sprint's plan requires that by December 31, 2005, 95% of Sprint wireless subscriber handsets in service must be equipped for the Sprint wireless enhanced 911 service. Moreover, Sprint completed its PCS network upgrade to support enhanced 911 service by December 31, 2002 and began providing a specified level of enhanced 911 service by June 30, 2002. As the required equipment becomes more functional and less expensive, emergency 911 services may afford wireless carriers substantial and attractive new service and marketing opportunities. Sprint and other providers of cellular and PCS services are required to contribute to various state and local funds to support enhanced 911 capability through charges on customer invoices.
FCC rules permit broadband PCS and other commercial mobile radio service providers to provide traditional telephone services based on wireless technology and other fixed services that would directly compete with the wireline services of local telephone companies. The FCC currently is undertaking a rulemaking proceeding in which it is considering actions to help ensure that competitive telecommunications providers have reasonable and non-discriminatory access to rights-of-way, buildings, rooftops and facilities in multiple tenant environments, which could facilitate the provision of these services.
Communications Assistance for Law Enforcement Act and USA Patriot Act
The Communications Assistance for Law Enforcement Act, or CALEA, enacted in 1994, requires Sprint and other telecommunications carriers to meet capability and capacity requirements needed by federal, state and local law enforcement to preserve their electronic surveillance capabilities. PCS providers were generally required to comply with the current industry CALEA capability standard, known as J-STD-025A, by June 30, 2000, and with additional standards by September 30, 2001. PCS providers also were required to comply with certain CALEA capability requirements by November 19, 2001. Various other capability requirements established by the Department of Justice and Federal Bureau of Investigation have been temporarily suspended pending further review by the FCC. The USA Patriot Act of 2001 included certain provisions that enable law enforcement agencies and other branches of the government to more easily acquire records and information regarding certain uses of communications facilities from telecommunications carriers, including PCS carriers. CALEA and the USA Patriot Act may cause Sprint and its PCS affiliates to face additional costs and responsibilities for network upgrades related to compliance with law enforcement agencies' expanded surveillance powers. Most PCS providers are ineligible for federal reimbursement for the software and hardware upgrades necessary to comply with CALEA capability and capacity requirements. However, it is possible that some of these costs may be reduced or delayed if law enforcement or legislative initiatives are adopted and implemented.
Other Federal Regulations
Wireless systems must comply with certain FCC and Federal Aviation Administration regulations regarding the siting, lighting and construction of transmitter towers and antennas. In addition, the FCC has implemented the National Environmental Policy Act by requiring towers and antennas to meet certain land use and radio frequency standards.
Review of Universal Service Requirements
The FCC and certain states have established "universal service" programs to ensure that affordable, quality telecommunications services are available to all Americans, and to support the availability of advanced telecommunications services to schools, libraries, and rural health care centers. Sprint is required to contribute to the federal universal service program as well as existing state programs. Effective February 2003, the FCC imposed rules that may have the effect of increasing the universal service "contribution" that Sprint is required to pay as a result of its PCS business, and the
businesses of its PCS affiliates, and various states may follow suit. At the present time it is not possible to predict the extent of Sprint's total federal and state universal service assessments or its ability to recover from the universal service fund. Wireless providers may seek designation as "Eligible Telecommunications Carriers," or ETC, in specific geographic areas. ETC designation makes those carriers eligible to receive funds from the federal universal service fund to support the provision of telecommunications service to customers in certain high cost areas. Sprint has applied to the FCC for ETC status in several states.
Partitioning; Disaggregation
FCC rules allow broadband PCS licensees to partition their market areas and/or to disaggregate their assigned spectrum and to transfer partial market areas or spectrum assignments to eligible third parties.
Wireless Facilities Siting
States and localities are not permitted to regulate the placement of wireless facilities so as to "prohibit" the provision of wireless services or to "discriminate" among providers of such services. In addition, so long as a wireless system complies with the FCC's rules, states and localities are prohibited from using radio frequency health effects as a basis to regulate the placement, construction or operation of wireless facilities. These rules are designed to make it possible for us, Sprint and other wireless entities to acquire necessary tower sites in the face of certain types of local zoning opposition and delays, but they do not completely pre-empt state and local authority over tower siting.
Equal Access
Wireless providers are not required to provide equal access to common carriers for toll services. This enables us and Sprint to generate additional revenues by reselling the toll services of Sprint and other long-distance carriers from whom we can obtain favorable volume discounts. However, the FCC is authorized to require unblocked access to toll carriers subject to certain conditions.
State Regulation of Wireless Service
Section 332 of the Federal Communications Act preempts states from regulating the rates and entry of commercial mobile radio service providers. However, states may petition the FCC to regulate such providers. The FCC may grant such petition if the state demonstrates that:
•market conditions fail to protect subscribers from unjust and unreasonable rates or rates that are unjustly or unreasonably discriminatory; or
•when commercial mobile radio service is a replacement for traditional telephone service within the state.
To date, the FCC has granted no such petition. To the extent we provide fixed wireless service, we may be subject to additional state regulation. These standards and rulings have prevented states from delaying the entry of wireless personal communications services and other wireless carriers into their jurisdictions via certifications and similar requirements, and from delaying or inhibiting aggressive or flexible wireless price competition after entry. Despite Section 332, states may regulate certain aspects of commercial mobile radio service other than market entry and pricing.
Employees
As of December 31, 2003, we employed 477 full-time and 42 part-time employees. None of our employees are represented by a labor union. We believe that our relations with our employees are good.
Executive Officers
The name, age and position of each of our current executive officers are as follows:
Donald A. Harris, 51, has served as our President and Chief Executive Officer and as a director since our inception and was appointed Chairman of the Board in May 2000. Mr. Harris has more than 19 years of experience in the telecommunications industry, and is the former president of Comcast Cellular Communications, Inc., and a former senior vice president of Comcast Corporation. He also participated in Comcast's efforts on the board of Nextel. Mr. Harris managed the build-out of and had operating responsibility for Comcast's cellular operations in Pennsylvania, New Jersey and Delaware with over 8 million residents. Mr. Harris also was responsible for Comcast's PCS experimental trials. Prior to joining Comcast in February 1992, Mr. Harris was Vice President/General Manager of PacTel Cellular's Los Angeles office, the then largest traditional cellular operation in the United States. He also held several senior management positions with PacTel, including Vice President of Corporate Development, and President and Chief Executive Officer of the San Francisco Cellular Partnership. Mr. Harris began his career in the cellular communications industry as a consultant with McKinsey & Company. Mr. Harris is a graduate of the United States Military Academy at West Point and holds a Master of Business Administration degree from Columbia University.
Dean E. Russell, 51, has been our Chief Operating Officer since November 1999. He is responsible for overseeing all of the functional areas of our operations including sales and marketing, network and field operations and human resources. Prior to joining us, Mr. Russell was part of the executive management team of Education Management Corporation from October 1997 to November 1999. He held various positions with Education Management Corporation including Director of Operations for the Art Institute of Fort Lauderdale and President of the Art Institute International at San Francisco. Previously, Mr. Russell was the General Sales Manager for Comcast Cellular Communications, Inc. in Atlantic City and Cape May County in New Jersey from October 1995 to October 1997. Prior to joining Comcast Cellular Communications, Inc., Mr. Russell served in the United States Army for 20 years before retiring as a Lieutenant Colonel. Mr. Russell has 30 years of leadership experience including hands on experience managing diverse operations. Mr. Russell holds a Bachelor of Science degree in Engineering from the United States Military Academy at West Point, a Master of Education degree from the University of Georgia and a Master of Business Administration degree in International Business from Long Island University.
James J. Volk, 40, joined us as Chief Financial Officer in July 2001 and is responsible for all of the company's financial activities. Prior to that, he served as Regional Vice President of Finance and Chief Financial Officer of Cingular Wireless' East Region since September 2000 where he was responsible for all financial aspects of the region which provided service to approximately 4 million customers. He previously served as Vice President of Finance and Chief Financial Officer of Cingular's Philadelphia market from August 1999 to September 2000. Mr. Volk joined Cingular as Director of International Finance in January 1995 where he was responsible for all financial aspects of the international wireless operations and business development of the Comcast Cellular Division. He also served from May 1998 to August 1999 as Director of Strategic Marketing Planning, where he was responsible for planning and analysis as well as business development for the Comcast Cellular Division. Mr. Volk is a Certified Public Accountant and holds a Bachelor of Science degree in Accounting from the University of Delaware and a Master of Business Administration degree from Villanova University.
Patricia E. Knese, 45, joined us in November 2000 as Vice President and General Counsel, and in February 2001 she was appointed our Secretary. From May 1999 to November 2000, Ms. Knese served as Head Transactions and E-Health Counsel for Aetna U.S. Healthcare Inc., the Hartford, Connecticut-based health benefits company, and as General Counsel for InteliHealth Inc., an Aetna Internet subsidiary, where she was responsible for mergers and acquisitions, strategic relationships and investments, and licensing and other e-commerce related legal matters. From September 1993 to April 1999, she was an attorney at Morgan, Lewis & Bockius LLP in the Business and Finance area of
the firm, and served as a federal judicial clerk from 1992 to 1993 with the chief judge of the United States District Court for the District of Delaware. She also has over ten years of management experience in the automotive industry with automotive manufacturers Subaru of America, Inc. and Chrysler Corporation. Ms. Knese holds a Bachelor of Science degree in Management/Marketing from Saint Joseph's University, a Master of Business Administration degree from Drexel University and a Juris Doctor degree, summa cum laude, from Temple University School of Law.
David L. Zylka, 43, joined us in January 2000 as Vice President-Engineering, and in January 2004 he was appointed our Chief Technology Officer. In this role he is responsible for overseeing all activities within the engineering, network operations, implementation and information technology organizations of the company. Mr. Zylka has 13 years experience in the telecommunications industry. From January 1999 to December 1999, he served as Vice President of Engineering for Frontier Cellular Communications in Rochester, New York where he developed and executed a $59 million CDMA network expansion plan. Before he joined Frontier Cellular Communications, Mr. Zylka held various positions at Comcast Communications in Philadelphia, Pennsylvania from May 1991 to November 1998, most recently as Vice President of Operational and Performance Engineering for the Comcast Cellular network. Mr. Zylka holds a Bachelor of Science degree in Electrical Engineering from the United States Military Academy at West Point and a Master of Science degree in Information Systems Management from Golden Gate University.
Andrew W. Buffmire, 56, joined us in May 2000 as Vice President-Business Development. He is responsible for the development and negotiation of strategic business transactions. Prior to joining us, Mr. Buffmire was a Director in the Sprint PCS Affiliates Program. He joined Sprint PCS in January 1996 during its initial development stage. At Sprint PCS he led the state-related regulatory compliance, network infrastructure and interconnection negotiations for the market entry of Sprint PCS and provided legal counsel for various aspects of the network build-out. Before joining Sprint PCS, Mr. Buffmire was an attorney in private legal practice in Salt Lake City, Utah for 16 years, with the exception of two years (1985-1987), when he was the founder, general counsel and registered principal of an NASD-registered investment banking firm. Mr. Buffmire interned with the Commission of the European Economic Community (EU) in Brussels, Belgium. He has a Bachelor of Arts degree in International Relations from the University of Southern California, a Juris Doctor degree from the University of Utah and a Master of Laws degree from the London School of Economics and Political Science. Mr. Buffmire serves on the board of directors of Crown Energy Corporation.
Risk Factors
Various provisions of this Annual Report on Form 10-K contain forward-looking statements that involve risks and uncertainties. Actual results, performance or achievements could differ materially from those anticipated in these forward-looking statements as a result of certain risk factors, including those set forth below and elsewhere in this Annual Report on Form 10-K.
Risks Related to Our Business, Strategy and Operations
Our substantial leverage could adversely affect our financial health
We are highly leveraged. As of December 31, 2003, our total outstanding debt, including capital lease obligations, but excluding future cash flows associated with senior discount notes accrued in our February 2003 debt exchange (see "Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations"), was approximately $363.5 million. Our substantial indebtedness could adversely affect our financial health by, among other things:
•increasing our vulnerability to adverse economic conditions;
•limiting our ability to obtain any additional financing we may need to operate, develop and expand our business;
•requiring us to dedicate a substantial portion of any cash flows from operations to make interest and principal payments on our debt, which reduces funds available for operations and future business opportunities; and
•making us more highly leveraged than some of our competitors, which could potentially decrease our ability to compete in our industry.
Additionally, our substantial senior secured debt has a number of important consequences for our operations, including the following:
•due to the liens on substantially all of our assets that secure our senior secured credit facility, senior lenders may control our assets upon a default;
•if the assets pledged to our senior secured creditors are not sufficient to satisfy their claims in a bankruptcy, there will be virtually no assets available to satisfy holders of our other debt; and
•our borrowings under our senior secured credit facility are and will be at variable rates of interest, which could result in higher interest expense in the event of increases in market interest rates.
The ability to make payments on our debt will depend upon our future operating performance, which is subject to general economic and competitive conditions and to financial, business and other factors, many of which we cannot control. If the cash flow from our operating activities is insufficient, we may take actions, such as delaying or reducing capital expenditures, attempting to restructure or refinance our debt, selling assets or operations or seeking additional equity capital. Any or all of these actions may not be sufficient to allow us to service our debt obligations. Further, we may be unable to take any of these actions on satisfactory terms, in a timely manner or at all. The credit agreement for our senior secured credit facility and the indentures governing our outstanding notes limit our ability to take several of these actions. Our failure to generate sufficient funds to pay our debts or to successfully undertake any of these actions could, among other things, materially adversely affect the market value of our securities and our ability to repay our obligations.
We may not be able to sustain our planned growth or obtain sufficient revenue to achieve and sustain profitability
During 2002 and 2003, we experienced overall declining net subscriber growth compared to periods prior to 2002. This trend is attributable to increased competition and slowing aggregate subscriber growth in the wireless telecommunications industry. We are currently experiencing operating and net losses as we continue to add subscribers, which requires a significant up-front investment to acquire those subscribers. If the current trend of slowing net subscriber growth is more rapid than we anticipate, it may lengthen the amount of time it will take for us to reach a sufficient number of subscribers to achieve profitability.
We may not achieve or sustain operating profitability or positive cash flows, which may result in our inability to meet our debt obligations or fund capital expenditures
We have a limited operating history, have incurred significant operating losses to date and expect to continue to incur net losses through at least 2005. Our future operating profitability and cash flows from operating activities will depend upon many factors, including, among others, our ability to market Sprint PCS products and services, achieve projected market penetration and manage subscriber turnover rates. If we do not achieve and maintain operating profitability and positive cash flows from operating activities, we may be unable to make interest or principal payments on our debt. We will have to dedicate a substantial portion of any future cash flows from operations to make interest and
principal payments on our debt and fund capital expenditures, which will reduce funds available for other purposes. Although we have substantially completed our network coverage build-out, our business requires additional capital expenditures of up to approximately $20 to $25 million annually for maintenance, capacity enhancements and coverage improvements. If we do not achieve and maintain positive cash flows from operations on a timely basis, or if our operating cash flows are insufficient to cover our debt obligations in the future, we may be unable to operate our business in an effective or competitive manner or make required payments on our debt.
If we receive less revenues or incur more fees than we anticipate for PCS roaming from Sprint, our results of operations may be negatively affected
We are paid a fee from Sprint for every minute that a Sprint PCS subscriber based outside of our markets uses our network. Similarly, we pay a fee to Sprint for every minute that our customers use the Sprint PCS network outside of our markets. Sprint PCS subscribers based in our markets may spend more time in other Sprint PCS coverage areas than we anticipate, and Sprint PCS subscribers based outside of our markets may use our network less than we anticipate. As a result, we may receive less Sprint PCS roaming revenue and/or have to pay more in Sprint PCS roaming fees than we anticipate. Our ratio of inbound to outbound roaming with Sprint PCS was approximately 1.62 to 1 during the year ended December 31, 2003. We expect this ratio to decline over time.
Roaming revenue from subscribers of wireless communications providers other than Sprint may decline in the future
We derive a significant amount of roaming revenue from wireless communications providers other than Sprint for permitting their subscribers to roam on our network when they are in our markets. We do not have agreements directly with these providers. Instead, we rely on roaming arrangements Sprint has negotiated. If Sprint agrees to a lower negotiated rate, it will similarly lower our revenues. If the rates offered by Sprint are not attractive, these other wireless communications providers may decide to build out their own networks in our markets or enter into roaming arrangements with our competitors who also have networks in our markets. A significant reduction in roaming rates or the loss of all or a significant portion of this roaming revenue would have a material adverse effect on our financial condition and results of operations.
We will incur additional amortization expense as a result of acquiring intangible assets in connection with our acquisition of VIA Wireless LLC, which will result in a charge against our earnings
Our acquisition of VIA Wireless in 2001 was accounted for using the purchase method of accounting, which means assets and liabilities of VIA Wireless, including its intangible assets, were recorded on our balance sheet at their fair market value. We paid approximately $202.1 million for VIA Wireless in the form of UbiquiTel Inc.'s common stock valued at approximately $122.0 million and assumed debt of approximately $80.1 million (which was reduced to $30.1 million on a net basis after giving effect to the post-closing sale of VIA Wireless' California PCS licenses for $50.0 million in cash). As of December 31, 2003, our net intangible assets related to the acquisition of VIA Wireless, other than goodwill, were $68.9 million, representing approximately 14.2% of our total assets as of December 31, 2003. Our intangible assets, other than goodwill, are amortized over an 18-year period. There can be no assurance that the value of the intangible assets will ever be realized by us. Any future determination requiring the write-off of a significant portion of our unamortized intangible assets could have an adverse effect on our results of operations.
The technology that we use may become obsolete, which would limit our ability to compete effectively within the wireless telecommunications industry
The wireless telecommunications industry is experiencing significant technological change. We employ CDMA digital technology, the digital wireless telecommunications technology selected by Sprint and certain other carriers for their nationwide networks. Other carriers employ other technologies, such
as TDMA, GSM and integrated Digital Enhanced Network (iDEN) technology, for their nationwide networks. If another technology becomes the preferred industry standard, we would be at a competitive disadvantage, and competitive pressures may require Sprint to change its digital technology, which in turn could require us to make changes to our network at substantial costs. We may be unable to respond to these pressures and implement new technology on a timely basis or at an acceptable cost.
If we lose the right to install our equipment on wireless towers or are unable to renew expiring leases for wireless towers on favorable terms or at all, we could incur greater operating and capital expenditures and our business and results of operations could be adversely impacted
We lease a significant amount of the radio communications sites for our network through master lease agreements with several national communication site management companies. A few of these tower companies have experienced financial difficulties and sought bankruptcy protection. If a master lease agreement with one of these tower companies were to terminate, or if one of these tower companies were unable to support the use of its tower sites by us, we would have to find new sites or might be required to rebuild the affected portion of our network, which could result in a portion of our network having a temporary disruption in service and a material increase in our operating or capital expenditures. In addition, the concentration of our tower leases with a limited number of tower companies could adversely affect our results of operations and financial condition if we were unable to renew any expiring leases with the tower companies either on favorable terms or at all.
We may not be able to compete with potential acquirors for acquisitions to expand our territory, or successfully overcome risks associated with expanding our territory through acquisitions, which could have a material adverse effect on our business and reduce the market value of our securities
There has been a recent trend in the wireless telecommunications industry towards consolidation of wireless service providers through joint ventures, mergers and acquisitions. We may attempt to further expand our territory through acquisitions of other PCS affiliates of Sprint or through the grant of additional markets from Sprint. If we expand our operations through acquisitions, we will compete with other potential acquirors, some of which may have greater financial or operational resources than us. Any expansion through an acquisition may require the approval of Sprint. If we acquire additional businesses, we may encounter difficulties that may be costly and time-consuming, slow our growth or lower the value of our securities. For example, we may have to:
•assume and/or incur additional debt, including secured debt, to finance the acquisitions and fund the ongoing operations of the acquired companies;
•integrate new operations with our existing operations; or
•divert the attention of our management from other business concerns.
In connection with any of these transactions, we also may incur significant amortization expenses related to intangible assets. The failure to overcome risks encountered in these transactions could have a material adverse effect on our business.
We previously used Arthur Andersen LLP as our independent public accountants
The audited consolidated statements of operations, stockholders' equity and cash flows of UbiquiTel and its subsidiaries for the year ended December 31, 2001 included in this Annual Report on Form 10-K, prior to the revisions discussed in Note 3 to the consolidated financial statements of UbiquiTel and its subsidiaries included in this Annual Report on Form 10-K, were audited by Arthur Andersen LLP, independent public accountants, as stated in their report thereon dated as of February 15, 2002, which is included herein. On March 14, 2002, Arthur Andersen was indicted on federal obstruction of justice charges arising from the federal government's investigation of Enron Corporation. On May 15, 2002, upon the recommendation of the audit committee of UbiquiTel's board of directors, UbiquiTel's board of directors approved the dismissal of Arthur Andersen as UbiquiTel's
independent public accountants and the appointment of PricewaterhouseCoopers LLP to serve as our independent public accountants for the fiscal year ended December 31, 2002. The audit committee of UbiquiTel's board of directors reappointed PricewaterhouseCoopers LLP to serve as our independent public accountants for the fiscal year ended December 31, 2003.
Arthur Andersen was convicted on federal obstruction of justice charges on June 15, 2002, ceased practicing before the SEC on August 31, 2002, and was sentenced to five years probation on October 16, 2002. Arthur Andersen has not reissued their audit report dated as of February 15, 2002 included in this Annual Report on Form 10-K. As a result, you may not be able to recover any amount from Arthur Andersen in connection with any claim that may arise out of Arthur Andersen's audit of our financial statements described above.
The terms of our debt place restrictions on us which may limit our operating flexibility
Our senior secured credit facility and the indentures governing our outstanding notes impose material operating and financial restrictions on us. These restrictions, subject in certain cases to ordinary course of business and other exceptions, may limit our ability to engage in some transactions, including the following:
•incurring additional debt;
•paying dividends, redeeming capital stock or making other restricted payments or investments;
•creating liens on assets;
•merging, consolidating or disposing of assets;
•entering into transactions with affiliates; and
•placing restrictions on the ability of subsidiaries to pay dividends or make other payments.
These restrictions could limit our ability to obtain debt financing, repurchase stock, refinance or pay principal or interest on our outstanding debt, complete acquisitions for cash or debt or react to changes in our operating environment. Any future debt that we incur may contain similar or more restrictive covenants.
If we do not meet all of the conditions required under our senior secured credit facility, we may not be able to draw down on our revolving credit facility if needed to fund operating losses and working capital needs
Our ability to borrow funds under our senior secured credit facility's current unused $47.7 million revolving line of credit could be terminated due to our failure to comply with specific conditions on each funding date, including the following:
•that the representations and warranties in our loan documents are true and correct in all material respects;
•that certain financial covenants are satisfied, including maintaining certain financial ratios;
•that our cash balance (as defined in the credit facility) is below $25.0 million; and
•the absence of a default under our loan documents.
We are currently in compliance with all financial and operating covenants relating to the senior secured credit facility. However, if our business does not generate the results required by the covenants in the senior secured credit facility, our ability to make borrowings under the revolving line of credit required to operate our business would be restricted or terminated and the credit facility could be declared in default.
We may be unable to repay or refinance indebtedness prior to its maturity
As of December 31, 2003, we had $230.0 million outstanding principal amount of term loans, and $163.1 million outstanding principal amount ($137.0 million accreted value, excluding future cash flows associated with senior discount notes accrued in our February 2003 debt exchange (see "Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations")) of senior discount notes, Series B senior discount notes and senior subordinated discount notes. We may not be able to generate sufficient funds from operations to repay all of those obligations as they are currently scheduled to become due. Accordingly, it may be necessary to refinance some of those obligations at or before their respective maturities. Our ability to refinance those obligations will depend on, among other things, our financial condition at the time of refinancing, the restrictions contained in any outstanding financing arrangements and market conditions. We may not be able to refinance those obligations. If we are unable to refinance those obligations, or unable to obtain satisfactory terms, this could have an adverse effect on us, including on our ability to pay cash interest and make scheduled principal repayments on our debt.
Our stock price has suffered significant declines and has been and may continue to be volatile and shareholders may not be able to sell their shares at or above the price they paid for them
The market price of our common stock is subject to wide fluctuations in response to factors such as the following, some of which are beyond our control:
•quarterly variations in our operating results;
•operating results that vary from the expectations of securities analysts and investors;
•changes in expectations as to our future financial performance, including financial estimates by securities analysts and investors;
•changes in our relationship and that of other PCS affiliates with Sprint;
•announcements by Sprint concerning developments or changes in its business, financial condition or results of operations, or in its expectations as to future financial performance;
•actual or potential defaults in bank covenants by us or other PCS affiliates of Sprint;
•announcements of technological innovations or changes to, or new, products and services by Sprint or our competitors;
•changes in results of operations, market valuations and investor perceptions of Sprint, PCS affiliates of Sprint or of other companies in the telecommunications industry in general and the wireless industry in particular, including our competitors;
•changes in laws and regulations;
•announcements by third parties of significant claims or proceedings against us;
•announcements by us or our competitors of significant contracts, acquisitions, strategic partnerships, joint ventures or capital commitments; and
•general economic and competitive conditions.
Future sales of shares of our common stock may negatively affect our stock price
In connection with our debt-for-debt exchange offer consummated in February 2003 and the open market purchases of 14% senior subordinated discount notes during the second quarter of 2003, we issued warrants to purchase approximately 10.9 million shares of our common stock at an exercise price of $0.01 per share, all of which warrants were exercised in 2003. We have registered the shares of common stock for resale by the holders.
As a result of our acquisition of VIA Wireless in 2001, the shareholders of the members of VIA Wireless received 16.4 million shares of our common stock, which were subsequently registered for resale by the holders and are now freely tradable without restriction.
Additionally, approximately 15.8 million outstanding shares of our common stock are owned by certain of our executive officers and directors and their affiliates, and may be resold publicly at any time subject to the volume and other restrictions under Rule 144 of the Securities Act of 1933. Certain of these holders also have the right to require us to register the resales of these shares with the Securities and Exchange Commission under registration rights agreements.
Sales of substantial amounts of shares of our common stock, or even the potential for such sales, could lower the market price of our common stock and impair our ability to raise capital through the sale of equity securities.
Our certificate of incorporation and bylaws include provisions that may discourage a change of control transaction
Some provisions of our certificate of incorporation and bylaws and the provisions of Delaware law could have the effect of delaying, deferring or preventing an acquisition of us. For example, we have a staggered board of directors, the members of which may only be removed for cause, authorized but unissued shares of preferred stock which could be used to fend off a takeover attempt, and our shareholders may not take actions by written consent and are limited in their ability to make proposals at shareholder meetings.
Risks Related to Our Relationship with Sprint
Our ability to conduct our business would be severely restricted if Sprint PCS terminated our management agreement
Our relationship with Sprint is governed by our management agreement with Sprint PCS. Because we do not own any licenses to operate a wireless network, our business depends on the continued effectiveness of our management agreement. Our management agreement with Sprint PCS is subject to termination. Sprint is not obligated to provide us with any support in connection with our business or otherwise, other than performing its contractual obligations under the management agreement and other related agreements between us. Sprint PCS may be able to terminate our management agreement with it if we materially breach the terms of the agreement. These terms include operational and network requirements that are extremely technical and detailed and apply to each retail store, cell site and switch site. Many of these operational and network requirements can be changed by Sprint, in certain cases, with little notice. As a result, we may not always be in compliance with all requirements of our management agreement with Sprint PCS. Sprint conducts periodic audits of compliance with various aspects of its program guidelines and identifies issues it believes need to be addressed. There may be substantial costs associated with remedying any non-compliance, and such costs may adversely affect our results of operations and cash flows. Our management agreement also requires that we provide network coverage to a minimum network coverage area within specified time frames and that we meet and maintain Sprint PCS' technical and customer service requirements. We believe we are in compliance with our network build-out requirements and Sprint PCS' other program requirements. A failure by us to meet any expanded build-out requirements for our markets or Sprint PCS' technical or customer service requirements could constitute a material breach of the management agreement, which could lead to its termination by Sprint. We may amend our management agreement with Sprint PCS in the future to expand our network coverage. Sprint can also choose not to renew the agreement at the expiration of the 20-year initial term in 2018 or any ten-year renewal term. In any event, our management agreement with Sprint PCS terminates in 50 years. If Sprint PCS terminates or fails to renew our management agreement or fails to perform its obligations under the agreement, our ability to conduct our business would be severely restricted.
If we materially breach our management agreement with Sprint PCS, Sprint PCS may have the right to purchase our operating assets at a discount to market value on terms that have been agreed to and that are disadvantageous to us
Our management agreement with Sprint PCS provides that upon the occurrence of an event of termination caused by our breach of the agreement, we may be required to sell our operating assets to Sprint. This sale may take place for a price equal to 72% of our entire business value, subject to the valuation criteria and procedures provided in our management agreement with Sprint PCS, and without shareholder approval. The provisions of our management agreement that allow Sprint to purchase our operating assets at a discount may limit our ability to sell our business, may reduce the value a buyer would be willing to pay for our business and may reduce our "entire business value."
Sprint may make decisions that could increase our expenses and/or our capital expenditure requirements, reduce our revenues or make our affiliate relationship with Sprint less advantageous than expected
Under our management agreement with Sprint PCS, Sprint has a substantial amount of control over factors that significantly affect the conduct of our business. Subject to newly established limits set forth in the November 2003 amendment to our management agreement with Sprint PCS, Sprint may make decisions that adversely affect our business, such as the following:
•Sprint prices its national calling plans based on its own objectives and could set price levels or change other characteristics of its plans in a way that may not be economically advantageous for our business;
•Sprint could develop products and services or establish credit policies that may not be economically advantageous for our business;
•Sprint could reduce levels of services or otherwise seek to increase expenses and other amounts charged;
•Sprint could prohibit us from selling non-Sprint PCS approved equipment;
•Sprint may alter its network and technical requirements or request that we build out additional areas within our markets, which could result in increased equipment and build-out costs or in Sprint building out that area itself or assigning it to another PCS affiliate of Sprint; and
•Sprint could make decisions that could adversely affect the Sprint brand name.
Conflicts between Sprint and us may arise, and because Sprint owes us no duties except as set forth in the agreements, these conflicts may not be resolved in our favor.
Certain provisions of our management agreement with Sprint PCS may diminish our value and restrict the sale of our business
Under specific circumstances and without approval of our shareholders, Sprint PCS may purchase our operating assets or capital stock at a discount. In addition, any change of control of our ownership, any assignment of our management agreement with Sprint PCS and any acquisition by us of another PCS affiliate of Sprint is subject to Sprint's approval. Sprint also has a right of first refusal if we decide to sell our operating assets to a third party. We also are subject to a number of restrictions on the transfer of our business, including a prohibition on the sale of our operating assets to competitors of Sprint. These restrictions and the other restrictions contained in our management agreement with Sprint PCS restrict our ability to sell our business, may reduce the value a buyer would be willing to pay for our business and may reduce our "entire business value."
The FCC may fail to renew the Sprint wireless licenses for our markets under certain circumstances, which would prevent us from providing wireless services
Sprint's wireless licenses are subject to renewal and revocation by the FCC. The Sprint wireless licenses in our markets will expire in 2004 through 2007 but may be renewed for additional ten-year terms. The FCC has adopted specific standards that apply to wireless personal communications services license renewals. Any failure by Sprint PCS or us to comply with these standards could result in the nonrenewal of the Sprint licenses for our markets. Additionally, if Sprint does not demonstrate to the FCC that Sprint has met the construction requirements for each of its wireless personal communications services licenses, it can lose those licenses. If Sprint loses its licenses in our markets for any of these reasons, we would not be able to provide wireless services without obtaining rights to other licenses. If Sprint loses its licenses in another territory, Sprint or the applicable PCS affiliate of Sprint would not be able to provide wireless services without obtaining rights to other licenses and our ability to offer nationwide calling plans would be diminished and potentially more costly.
Sprint's failure to timely and accurately generate revenue and cost data for the compilation of our financial statements and other financial disclosures could have a material adverse effect on our business
We place substantial reliance on the timeliness, accuracy and sufficiency of revenue and cost data and information generated by Sprint for the compilation of our financial statements and other financial disclosures, including substantial portions of our revenues, expenses and accounts receivable. As part of our agreements, we outsource several functions to Sprint including billing, customer care, national network operations support, inventory logistics support, long distance transport and national retailer sales support. The data provided by Sprint is the primary source for our recognition of service revenue and a significant portion of our selling and marketing and cost of service and operations expenses. In certain cases, the data is provided at a level of detail that is not adequate for us to verify for accuracy back to the originating source. We rely on Sprint to have designed adequate internal controls with respect to the processes established to provide this data. Because of this reliance, we are dependent on Sprint to periodically evaluate the effectiveness of these controls and report any significant deficiencies and weaknesses in the design or operation of these controls that could have a material impact on our financial statements and disclosures. Sprint provides an annual evaluation of these controls to us by engaging its independent auditors to provide a "Report on Controls Placed in Operation and Tests of Operating Effectiveness for Affiliates" under guidance provided in Statement of Auditing Standards No. 70 ("SAS 70"). There can be no assurance that the SAS 70 procedures will identify all weaknesses that might be material to us. At times, we have been invoiced by Sprint for charges that we believed to be contractually incorrect. We review all charges from Sprint and dispute charges if appropriate based upon our interpretation of our agreements with Sprint PCS. When Sprint does not timely notify us of charges that we have incurred, or when we are invoiced for charges that we believe to be incorrect, we record estimates primarily based on our historical trends and our estimate of the amount which we believe we will remit to Sprint after the disputed item or items have been settled. Although we are not presently aware of any material errors affecting us, errors that are not reconciled on a timely basis by Sprint could cause us to misstate our revenues or expenses and could result in out-of-period adjustments that may materially adversely affect our financial results and could have a material adverse effect on our business, financial condition, results of operations and cash flows. Additionally, if we or any other PCS affiliate of Sprint find significant errors in information provided by Sprint which causes a restatement of financial statements or otherwise affects us, investors and the investment community may lose confidence in us. Should Sprint fail to deliver timely, accurate and sufficient information, this could lead to a greater degree of uncertainty in our business and financial planning and may lead to adverse short-term decisions. Further, the failure of Sprint to remit current or future amounts owing to PCS affiliates of Sprint, including us, could lead to actions on the part of us or other PCS affiliates of Sprint to enforce rights under the Sprint agreements and other remedies available under applicable law.
The inability of Sprint to provide high quality back office services, or our inability to use Sprint's or its third party vendors' back office services, could lead to customer dissatisfaction, increase customer turnover or otherwise disrupt our business and increase our costs
We rely on Sprint's internal support systems, including customer care, billing and back office support. We also depend on Sprint's willingness to continue to offer these services and to provide these services effectively. Our operations could be disrupted if Sprint is unable to provide these back office services and systems in a high quality manner, or to efficiently outsource those services and systems through third party vendors. Sprint recently has consolidated and made reductions in its customer service support structure and may continue to do so in the future, which may have an adverse effect on our churn rate. Sprint has relied on third party vendors for a significant number of important functions, including billing, and components of its internal support systems and may continue to rely on outside vendors in the future or may take these systems in-house. In February 2004, Sprint announced an agreement with IBM Business Consulting Services to outsource several functions of customer service to IBM for five years. The quality of service provided through IBM for our customers could affect our customer satisfaction. Any significant system change, the inability of Sprint to provide or maintain high quality back office services or our inability to use Sprint's back office services and third party vendors' back office systems could lead to customer dissatisfaction, increase customer turnover or otherwise disrupt our business and increase our costs. Our ability to replace Sprint in providing back office services may be limited.
Our costs for internal support systems may increase if Sprint PCS terminates all or part of our services agreement with it
Because we incur the costs for the services provided by Sprint PCS under our services agreement for billing, customer care and other back office functions on a per subscriber basis, we expect the aggregate cost for such services to increase as the number of our subscribers increases. Sprint may terminate a significant service provided under the agreement, including customer care, billing or collections, upon nine months' prior written notice, but if we would like to continue receiving such service, Sprint has agreed that it will assist us in developing that function internally or locating a third party vendor that will provide that service. If Sprint terminates a service for which we have not developed or are unable to develop a cost-effective alternative, our operating costs may increase beyond our expectations and our operations may be interrupted or restricted. We do not currently have a contingency plan if Sprint terminates a service we currently receive from it.
If other PCS affiliates of Sprint have financial difficulties, the Sprint PCS network could be disrupted
The national PCS network of Sprint is a combination of networks. The large metropolitan areas are owned and operated by Sprint, and the areas in between them are owned and operated by PCS affiliates of Sprint, all of which are independent companies like us. We believe that most, if not all, of these companies have incurred substantial debt to pay the large cost of building out their networks. If other PCS affiliates of Sprint experience financial difficulties, the Sprint PCS network could be disrupted in that company's territory. Material disruptions in the Sprint PCS network could have a material adverse effect on our ability to attract and retain customers. If the affiliation agreements of those PCS affiliates of Sprint are like ours, Sprint would have the right to step in and operate the affected territory. However, this right could be delayed or hindered by legal proceedings, including any bankruptcy proceedings related to the affected affiliate. Two PCS affiliates of Sprint are in Chapter 11 bankruptcy proceedings, each alleging that Sprint violated its agreements with the affiliate, and others have experienced financial difficulties. In each case, we believe that there has been no material disruption of the Sprint PCS network to date.
If we default under our senior secured credit facility, our lenders may declare our debt immediately due and payable and Sprint may force us to sell our operating assets to it at a discount to market value on terms that have been agreed to and that are disadvantageous to us
Our senior secured credit facility requires that we comply with specified financial ratios and other performance covenants. If we fail to comply with these covenants or we default on our obligations under our senior secured credit facility, our lenders may accelerate the maturity of our debt. If our lenders accelerate our debt, Sprint has the option to purchase our operating assets at a discount to market value on terms that have been agreed to and that are disadvantageous to us and assume our obligations under the senior secured credit facility. If Sprint does not exercise this option, our lenders may sell our assets to third parties. If Sprint provides notice to our lenders that we are in breach of our management agreement with Sprint PCS and, as a result, our obligations under the credit agreement are accelerated and Sprint does not elect to operate our business, our lenders may designate a third party to operate our business or cause our assets to be sold. In any such case, there is a material risk we will not be able to make payments on our other debt and that our common stock will become worthless.
We may have difficulty in obtaining an adequate supply of certain handsets from Sprint PCS, which could adversely affect our results of operations
We depend on our relationship with Sprint to obtain handsets and other wireless devices at a competitive cost. Sprint PCS orders handsets and other wireless devices from various manufacturers. We could have difficulty obtaining specific types of handsets at a competitive cost and in a timely manner if:
•Sprint PCS does not adequately project the needs for handsets for itself, its PCS affiliates and its other third party distribution channels, particularly during a transition to new technologies, such as 3G;
•Sprint gives preference to other distribution channels;
•we do not adequately project our need for handsets or other wireless devices;
•Sprint PCS modifies its handset logistics and delivery plan in a manner that restricts or delays our access to handsets; or
•there is an adverse development in the relationship between Sprint and its suppliers or vendors.
The occurrence of any of the foregoing could disrupt our customer service and/or result in a decrease in our subscribers, which could adversely affect our results of operations.
Risks Related to the Wireless Telecommunications Industry
We may continue to experience a high rate of customer turnover, which would adversely affect our financial performance
The wireless telecommunications industry in general, and Sprint and its PCS affiliates in particular, have experienced a high rate of customer turnover, commonly known as churn. We believe that Sprint PCS and its affiliates have experienced a high churn rate due to Sprint's programs for marketing its services to sub-prime credit quality subscribers, Sprint's relatively less established customer base and Sprint's focus on adding customers from the consumer segment of the industry rather than business subscribers. Due to significant competition in the industry and general economic conditions, among other things, a decline in the churn rate may not occur and our future rate of customer turnover may be higher than our historical rate or projections. A high rate of customer turnover adversely affects our competitive position, liquidity, results of operations and costs of, or losses incurred in, obtaining new subscribers, especially because we subsidize a significant portion of the costs of initial purchases of
handsets by new customers. Factors that may contribute to higher churn include inability or unwillingness of customers to pay resulting in involuntary deactivations, customer mix and credit class and in particular sub-prime credit class customers, customer credit terms, deposit requirements for sub-prime customers, number of customers receiving services under contracts with terms of a year or greater, attractiveness of competitors' products, services and pricing, network coverage and performance relative to competitors, customer service, and other competitive factors, including the implementation by the FCC of wireless local number portability, or WLNP, in late 2003. Wireless local number portability enables wireless customers to keep, subject to certain geographic limitations, their existing wireless telephone number when switching from one wireless telecommunications carrier to another. The FCC mandated that wireless carriers provide for WLNP by November 24, 2003 for the 100 largest MSAs, and it will be required in all of our markets later in 2004. We anticipate number portability could increase churn, which could lower our revenues. We may be required to increase subsidies for product upgrades and/or reduce pricing to match competitors' initiatives and retain customers, which could adversely impact our revenues, liquidity and profitability.
Significant competition in the wireless telecommunications industry may result in our competitors offering new or better services or lower prices, which could prevent us from operating profitably and may cause prices for our services to continue to decline in the future
Competition in the wireless telecommunications industry is intense. Competition has caused, and we anticipate that competition will continue to cause, the market prices for wireless products and services to decline in the future and the cost to acquire new customers to remain high. We compete throughout our markets with both cellular and PCS providers. Although we face Verizon Wireless, AT&T Wireless Services, Cingular, T-Mobile and Nextel, the other five national wireless operators, in the majority of our markets, Verizon and AT&T are in all of our markets and provide the most competition for market share because in most cases they were the incumbent providers. Competition also spans operators using different competing digital technologies. We also face competition from resellers in certain markets, which provide wireless services to customers but do not hold FCC licenses or own facilities. Instead, the resellers buy blocks of wireless telephone numbers and capacity from a facilities-based carrier and resell services through their own distribution network to the public.
Our dependence on Sprint to develop competitive products and services and the requirement that we obtain Sprint's consent to sell non-Sprint approved products may limit our ability to keep pace with our competitors on the introduction of new products, services and equipment. Our success, therefore, is, to a large extent, dependent on Sprint's ability to distinguish itself from competitors by marketing and anticipating and responding to various competitive factors affecting the wireless industry, including new services that may be introduced, changes in consumer preferences, demographic trends, economic conditions and discount pricing strategies by competitors. To the extent that Sprint is not able to keep pace with technological advances or fails to respond timely to changes in competitive factors in the wireless industry, it could cause us to lose market share or experience a decline in revenue.
Many of our competitors have significantly greater financial and technical resources and subscriber bases, more extensive coverage areas and more well-established marketing programs and brand names than we do. Some of our competitors may market other services, such as landline telephone service, cable television and Internet access, along with their wireless telecommunications services. Furthermore, there has been a recent trend in the wireless telecommunications industry towards consolidation of wireless service providers, which we expect to lead to larger competitors over time. We may be unable to compete successfully with larger companies that have substantially greater resources or that offer more services than we do. In addition, we may be at a competitive disadvantage because we may be more highly leveraged than some of our competitors.
Our ability to compete will depend, in part, on our ability to anticipate and respond to various competitive factors affecting the wireless telecommunications industry. While we try to maintain and
grow our average revenue per user, we cannot be certain that we will be able to do so. If prices for our services continue to decline, it could adversely affect our ability to grow revenue, which would have a material adverse effect on our liquidity, financial condition and results of operations.
Market saturation could limit or decrease our rate of new subscriber additions
Intense competition in the wireless telecommunications industry could cause prices for wireless products and services to continue to decline. If prices drop, then our rate of net subscriber additions will take on greater significance in improving our financial condition and results of operations. However, as our and our competitors' penetration rates in our markets increase over time, our rate of adding net subscribers could decrease. If this decrease were to happen, it could materially adversely affect our liquidity, financial condition and results of operations.
We are a consumer business and a recession in the United States involving significantly lowered consumer and business spending could negatively affect our results of operations
Our primary customer base is individual consumers, and in the event that the economic downturn that the United States has recently experienced becomes more pronounced or lasts longer than currently expected and spending by consumers drops significantly, our business may be negatively affected.
There is also uncertainty as to the extent of customer demand as well as the extent to which airtime and monthly recurring charges may continue to decline. As a result, our future prospects remain uncertain.
Alternative technologies and current uncertainties in the wireless market may reduce demand for PCS products and services
The wireless telecommunications industry is experiencing significant and rapid technological change, as evidenced by the increasing pace of digital upgrades in existing analog wireless systems, evolving industry standards, ongoing improvements in the capacity and quality of digital technology, shorter development cycles for new products and enhancements and changes in end-user requirements and preferences. Technological advances and industry changes could cause the technology used on our network to become obsolete. We rely on Sprint for research and development efforts with respect to Sprint PCS products and services and with respect to the technology used on our network. Sprint may not be able to respond to such changes and implement new technology on a timely basis, or at an acceptable cost.
If Sprint is unable to keep pace with these technological changes or changes in the wireless telecommunications market, the technology used on our network or our business strategy may become obsolete. In addition, other carriers are in the process of completing, or have completed, upgrades to 1xRTT, or other 3G technologies. 3G technology provides high-speed, always-on Internet connectivity and high-quality video and audio. We completed our network upgrade to CDMA 1xRTT in 2002, and offer PCS Vision services in all of our markets.
We also face competition from paging, dispatch and conventional mobile radio operations, enhanced specialized mobile radio, called ESMR, and mobile satellite service. In addition, future FCC regulation or congressional legislation may create additional spectrum allocations that would have the effect of adding new entrants (and, consequently, additional competitors) to the mobile telecommunications market.
Regulation by government agencies and taxing authorities may increase our costs of providing service or require us to change our services, either of which could impair our financial performance
Our operations and those of Sprint may be subject to varying degrees of regulation by the FCC, the Federal Trade Commission, the Federal Aviation Administration, the Environmental Protection
Agency, the Occupational Safety and Health Administration and state and local regulatory agencies and legislative bodies. Adverse decisions or regulations of these regulatory bodies could negatively impact Sprint's and our operations and our costs of doing business. For example, changes in tax laws or the interpretation of existing tax laws by state and local authorities could subject us to increased income, sales, gross receipts or other tax costs or require us to alter the structure of our current relationship with Sprint.
Concerns over health risks posed by the use of wireless handsets may reduce consumer demand for our products and services
Media reports have suggested that radio frequency emissions from wireless handsets may be linked to various health problems resulting from continued or excessive use, including cancer, may interfere with various electronic medical devices, including hearing aids and pacemakers, and may cause explosions if used while fueling an automobile. Widespread concerns over radio frequency emissions may expose us to potential litigation, discourage use of wireless handsets or result in additional regulation imposing restrictions or increasing requirements on the location and operation of cell sites or the use or design of wireless handsets. Any resulting decrease in demand for wireless services or increase in the cost of complying with additional regulations, or costs of litigation and damage awards, could impair our ability to achieve and sustain profitability.
Regulation by government or potential litigation relating to the use of wireless phones while driving may reduce consumer demand for our products and services
Some studies have indicated that some aspects of using wireless phones while driving may impair drivers' attention in certain circumstances, making accidents more likely. A number of U.S. state and local governments have enacted or are considering legislation that would restrict or prohibit the use of a wireless handset while driving a vehicle or, alternatively, require the use of a hands-free wireless phone. These concerns also could lead to potential litigation relating to accidents, deaths or serious bodily injuries. New restrictions or government regulations that restrict or prohibit wireless phone use resulting in a decrease in demand for wireless services, or costs of litigation and damage awards, could impair our ability to achieve and sustain profitability.
ITEM 2.
ITEM 2. Properties
As of December 31, 2003, our material properties were as follows:
Corporate and Regional Offices. Our principal executive offices consist of approximately 20,000 square feet of leased office space located in Conshohocken, Pennsylvania. We own an approximately 34,000 square foot office building located in Fresno, California in which our regional operations for central California are located. We lease approximately 11,500 square feet in this facility to two tenants and may lease additional space to other tenants in the future. We also lease space for regional operations in Reno, Nevada; Spokane, Washington; Boise, Idaho; and Evansville, Indiana.
Sprint Stores. We lease space for 32 Sprint company-owned retail stores in our markets.
Switching Centers. We have four leased and one owned switching centers, located in each regional market.
Cell Sites. We lease space on approximately 847 wireless towers and own 14 towers.
We believe that our facilities are in good operating condition and are currently suitable and adequate for our business operations.
ITEM 3.
ITEM 3. Legal Proceedings
Neither UbiquiTel nor Operating Company is a party to any pending legal proceedings that either UbiquiTel or Operating Company believes would, if adversely determined, individually or in the aggregate, have a material adverse effect on our financial condition or results of operations.
ITEM 4.
ITEM 4. Submission of Matters to a Vote of Security Holders
No matters were submitted during the fourth quarter of fiscal 2003 to a vote of security holders.
PART II
ITEM 5.
Item 5. Other Events and Required FD Disclosure. UbiquiTel announced that it had consummated on October 15, 2003 a sale and leaseback transaction, for the sale of wireless communications tower sites located in the central valley of California for approximately $10.95 million in cash, and the lease-back of space on those sites. *
Item 12. Results of Operations and Financial Condition. UbiquiTel announced its subscriber results for the quarter ended September 30, 2003.
November 10, 2003
Item 9. Regulation FD Disclosure. UbiquiTel announced that it had entered into an addendum to its Sprint management and services agreements.
November 11, 2003
Item 12. Results of Operations and Financial Condition. UbiquiTel announced on November 11, 2003 its operating and financial results for the quarter ended September 30, 2003.
December 30, 2003
Item 9. Regulation FD Disclosure. UbiquiTel announced updated financial and operating guidance for the fourth quarter of 2003 and its participation in a telecommunications conference in January 2004.
*Filed.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, UbiquiTel Inc. has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Conshohocken, State of Pennsylvania, on the 17th day of February, 2004.
UBIQUITEL INC.
By:
/s/ DONALD A. HARRIS Donald A. Harris
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Donald A. Harris and James J. Volk his true and lawful attorneys-in-fact, each acting alone, with full powers of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments to this report, and to file the same, with exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that said attorneys-in-fact or their substitutes, each acting alone, may 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 by the following persons in the capacities and on the dates indicated.
Signature
Title
Date
/s/ DONALD A. HARRIS Donald A. Harris
Chairman of the Board, President and Chief Executive Officer (Principal Executive Officer)
February 17, 2004
/s/ JAMES J. VOLK James J. Volk
Chief Financial Officer (Principal Financial Officer and Accounting Officer)
February 17, 2004
/s/ ROBERT A. BERLACHER Robert A. Berlacher
Director
February 17, 2004
/s/ JAMES E. BLAKE James E. Blake
Director
February 17, 2004
/s/ MATTHEW J. BOOS Matthew J. Boos
Director
February 17, 2004
/s/ PETER LUCAS Peter Lucas
Director
February 17, 2004
/s/ BRUCE E. TOLL Bruce E. Toll
Director
February 17, 2004
/s/ EVE M. TRKLA Eve M. Trkla
Director
February 17, 2004
/s/ JOSEPH N. WALTER Joseph N. Walter
Director
February 17, 2004
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, UbiquiTel Operating Company has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Conshohocken, State of Pennsylvania, on the 17th day of February, 2004.
UBIQUITEL OPERATING COMPANY
By:
/s/ DONALD A. HARRIS Donald A. Harris
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Donald A. Harris and James J. Volk his true and lawful attorneys-in-fact, each acting alone, with full powers of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments to this report, and to file the same, with exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that said attorneys-in-fact or their substitutes, each acting alone, may 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 by the following persons in the capacities and on the dates indicated.
Signature
Title
Date
/s/ DONALD A. HARRIS Donald A. Harris
Sole Director, President and Chief Executive Officer (Principal Executive Officer)
February 17, 2004
/s/ JAMES J. VOLK James J. Volk
Chief Financial Officer (Principal Financial Officer and Accounting Officer)
February 17, 2004
UBIQUITEL INC. AND SUBSIDIARIES
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
REPORT OF INDEPENDENT AUDITORS
To the Board of Directors and Shareholders of UbiquiTel Inc.:
In our opinion, the accompanying consolidated balance sheets as of December 31, 2003 and 2002 and the related consolidated statements of operations, stockholders' equity and cash flows present fairly, in all material respects, the financial position of UbiquiTel Inc. and its subsidiaries at December 31, 2003 and 2002, and the results of their operations and their cash flows for the years then ended in conformity with accounting principles generally accepted in the United States of America. These financial statements are the responsibility of the Company's management; our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits of these statements in accordance with auditing standards generally accepted in the United States of America, which 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, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. The consolidated financial statements of UbiquiTel Inc. and its subsidiaries for the year ended December 31, 2001 were audited by other independent accountants who have ceased operations. Those independent accountants expressed an unqualified opinion on those financial statements in their report dated February 15, 2002.
As discussed above, the consolidated financial statements of UbiquiTel Inc. and its subsidiaries for the year ended December 31, 2001 were audited by other independent accountants who have ceased operations. As described in Note 3, these financial statements have been revised to include the transitional disclosures required by Statement of Financial Accounting Standards No. 142, Goodwill and Other Intangible Assets, which was adopted by the Company as of January 1, 2002. We audited the transitional disclosures described in Note 3. In our opinion, the disclosures for 2001 in Note 3 are appropriate. However, we were not engaged to audit, review, or apply any procedures to the 2001 financial statements of the Company other than with respect to such disclosures and, accordingly, we do not express an opinion or any other form of assurance on the 2001 financial statements taken as a whole.
/s/ PricewaterhouseCoopers LLP
Philadelphia, Pennsylvania
February 13, 2004
This report is a copy of a previously issued Arthur Andersen LLP report and has not been reissued by Arthur Andersen LLP pursuant to Regulation S-X Rule 2-02 as applicable under the Securities Exchange Act of 1934, as amended. As discussed in Note 3, the Company has revised its financial statements for the year ended December 31, 2001 to include the transitional disclosures required by Statement of Financial Accounting Standards No. 142, Goodwill and Other Intangible Assets. The Arthur Andersen LLP report does not extend to these changes. The revisions to the 2001 financial statements related to these transitional disclosures were reported on by PricewaterhouseCoopers LLP, as stated in their report appearing herein.
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Shareholders and Board of Directors of UbiquiTel Inc.:
We have audited the accompanying consolidated balance sheets of UbiquiTel Inc. (a Delaware corporation) and subsidiaries as of December 31, 2001 and 2000, and the related consolidated statements of operations, stockholders' equity and cash flows for the years ended December 31, 2001 and 2000 and the period from inception (September 29, 1999) to December 31, 1999. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with the auditing standards generally accepted in the United States. 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 financial statements referred to above present fairly, in all material respects, the financial position of UbiquiTel Inc. and subsidiaries as of December 31, 2001 and 2000 and the results of their operations and their cash flows for the years ended December 31, 2001 and December 31, 2000 and the period from inception (September 29, 1999) to December 31, 1999 in conformity with accounting principles generally accepted in the United States.
ARTHUR ANDERSEN LLP
New York, New York
February 15, 2002
UbiquiTel Inc. and Subsidiaries
Consolidated Balance Sheets
(In Thousands, Except Per Share Data)
The accompanying notes are an integral part of these consolidated financial statements.
UbiquiTel Inc. and Subsidiaries
Consolidated Statements of Operations
(In Thousands, Except Per Share Data)
The accompanying notes are an integral part of these consolidated financial statements.
UbiquiTel Inc. and Subsidiaries
Consolidated Statements of Cash Flows
(In Thousands)
The accompanying notes are an integral part of these consolidated financial statements.
UbiquiTel Inc. and Subsidiaries
Consolidated Statements of Stockholders' Equity
(In Thousands)
The accompanying notes are an integral part of these consolidated financial statements.
UbiquiTel Inc. and Subsidiaries
Notes to Consolidated Financial Statements
1. ORGANIZATION AND NATURE OF BUSINESS
UbiquiTel Inc. and Subsidiaries ("UbiquiTel" or the "Company") was formed for the purpose of becoming the exclusive provider of Sprint Personal Communications Services ("PCS") in certain defined midsize markets in the western and midwestern United States.
In October 1998, UbiquiTel L.L.C. (a Washington state limited liability company), whose sole member was The Walter Group, entered into a management agreement with Sprint PCS for the exclusive rights to market Sprint's 100% digital, 100% PCS products and services to the residents in the Reno/Tahoe, Nevada market. UbiquiTel L.L.C. had no financial transactions from its inception (August 24, 1998) to September 29, 1999. On September 29, 1999, UbiquiTel Inc. (formerly, UbiquiTel Holdings, Inc.) was incorporated in Delaware. In November 1999, UbiquiTel L.L.C. assigned all of its material contracts including the rights to the Sprint PCS agreements to UbiquiTel Inc. On November 9, 1999, UbiquiTel Operating Company (a Delaware corporation, formerly a Delaware limited liability company) ("Operating Company"), was formed to serve as the operating company for UbiquiTel Inc. Also, on March 17, 2000, UbiquiTel Leasing Company (a Delaware corporation) was formed to serve as the leasing company for UbiquiTel Inc. UbiquiTel Inc. assigned the Sprint PCS agreements to Operating Company following its formation. On December 28, 1999, UbiquiTel amended its management agreement with Sprint PCS to expand its markets to include northern California, Spokane/Montana, southern Idaho/Utah/Nevada and southern Indiana/Kentucky, which together with Reno/Tahoe, contain approximately 7.7 million residents. On February 21, 2001, in connection with UbiquiTel's acquisition of VIA Wireless LLC, UbiquiTel amended its management agreement with Sprint PCS to expand its markets effective at the closing in August 2001 to include 3.4 million additional residents from the six VIA Wireless BTAs including Bakersfield, Fresno, Merced, Modesto, Stockton and Visalia, California (also collectively referred to as the central valley of California market). On August 13, 2001, upon the closing of the merger agreement, VIA Wireless became a wholly owned subsidiary of Operating Company and was later merged into Operating Company in June 2003. On July 31, 2003, Operating Company amended its management agreement with Sprint PCS to eliminate the obligation to build out the state of Montana, thereby reducing its licensed resident population in its markets to approximately 10.0 million.
The consolidated financial statements contain the financial information of UbiquiTel Inc. and its subsidiaries, UbiquiTel Operating Company and UbiquiTel Leasing Company. The Company operates under one segment.
2. LIQUIDITY
From inception through December 31, 2002, the Company has principally relied on the proceeds from equity and debt financings, and to a lesser extent revenues, as the primary sources of capital. In 2003, the Company generated approximately $14.5 million of cash flow from operating activities. Completion of the Company's PCS network has required substantial capital and as of December 31, 2003, the Company had an accumulated deficit of $281.8 million.
As of December 31, 2003, the Company had approximately $60.8 million in cash, cash equivalents and restricted cash, working capital of approximately $40.7 million, and an unused revolving line of credit under the senior secured credit facility of approximately $47.7 million. On January 23, 2004, the Company reached an agreement with its senior lending group to amend the senior secured credit facility to eliminate certain "stage one" covenants, including minimum subscribers effective as of December 31, 2003, minimum revenues and minimum adjusted cash balances (each as defined in the credit agreement), and to modify certain financial covenants and ratios, including minimum
consolidated EBITDA, fixed charge coverage ratio and interest coverage ratio (each as defined in the credit agreement), and leverage ratios, including consolidated indebtedness to consolidated EBITDA and consolidated senior indebtedness to consolidated EBITDA (each as defined in the credit agreement), to reflect the impact of changes in the Company's business. The availability of the $47.7 million revolving line of credit is subject to continued compliance with the restrictive covenants under the facility, including the timing of availability for borrowing under the revolving line of credit, maintaining financial covenants and ratios and limiting annual capital expenditures. The Company presently is in compliance with all financial and operational covenants associated with the senior secured credit facility. As discussed in Note 18 (Subsequent Events), the Company announced on February 13, 2004 that Operating Company has priced an offering of $270.0 million in aggregate principal amount of its senior notes due 2011 in a transaction exempt from the registration requirements of the Securities Act of 1933, as amended. The senior notes will be issued at a price of 98.26% and pay interest semi-annually at an annual rate of 9.875%. If issued, UbiquiTel will fully and unconditionally guarantee Operating Company's obligations under the senior notes due 2011. Operating Company intends to complete the offering on or about February 23, 2004. No assurance can be given as of the date of the filing of this Annual Report on Form 10-K that the offering will be completed, and the completion of the offering is subject to customary conditions. If Operating Company completes the offering, the net proceeds will be used to repay and terminate the senior secured credit facility, including the repayment of $230.0 million in outstanding borrowings plus accrued interest and termination of the $47.7 million revolving line of credit, to redeem all of its outstanding 14% Series B senior discount notes due 2008 ($14.5 million outstanding principal amount) for approximately $12.5 million and to purchase $16.0 million principal value of its outstanding 14% senior discount notes due 2010 for $15.2 million.
Management expects cash and cash equivalents, combined with cash flow from operating activities, to be sufficient to meet capital expenditures needs and service debt requirements through December 31, 2004 and into the foreseeable future.
While management does not anticipate the need to raise additional capital to meet the Company's operating or capital expenditure requirements in the foreseeable future, the Company's funding status is dependent on a number of factors influencing projections of operating cash flows, including those related to gross new customer additions, customer turnover, revenues, marketing costs, bad debt expense and roaming and reseller revenue. Management believes the Company's financial position will be sufficient to meet the cash requirements of the business including capital expenditures, any operating losses, cash interest and working capital needs. Should actual results differ significantly from these assumptions, the Company's liquidity position could be adversely affected and the Company could be in a position that would require it to raise additional capital which may not be available or may not be available on acceptable terms.
If the Company fails to make an interest or principal payment when due on any of the Company's senior secured credit facility (if not terminated as described above), senior discount notes, Series B senior discount notes (if not redeemed as described above) and senior subordinated discount notes, it could trigger cross-default provisions on the other long-term debt agreements. If the Company's long-term debt agreements are declared in default, the creditors under these agreements may demand immediate payment of the outstanding indebtedness.
3. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Principles of Consolidation and Use of Estimates
The accompanying financial statements include the accounts of UbiquiTel Inc. and its subsidiaries. All significant intercompany balances and transactions have been eliminated.
The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions. These estimates and assumptions affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements. These assumptions also affect the reported amounts of revenues and expenses during the reporting periods. Actual results could differ from those estimates and assumptions.
Recent Accounting Pronouncements
In May 2003, the Financial Accounting Standards Board ("FASB") issued Statement of Financial Accounting Standards ("SFAS") No. 150, "Accounting for Certain Financial Instruments with Characteristics of Both Liabilities and Equity" ("SFAS No. 150"). The Statement establishes standards for how certain financial instruments with characteristics of both liabilities and equity must be classified and measured. SFAS No. 150 requires that a financial instrument that is within its scope be classified as a liability, or an asset in some circumstances. Many of those instruments were previously classified as equity. This Statement is effective for financial instruments entered into or modified after May 31, 2003, and otherwise is effective at the beginning of the first interim period beginning after June 15, 2003, excluding mandatorily redeemable non-controlling interests associated with finite-lived subsidiaries, for which the accounting provisions of this Statement have been deferred indefinitely pursuant to FASB Staff Position 150-3. The Company has determined that it currently has no instruments within the scope of this Statement.
In April 2003, the FASB issued SFAS No. 149, "Amendment of Statement 133 on Derivative Instruments and Hedging Activities" ("SFAS No. 149"). SFAS No. 149 amends and clarifies the accounting guidance on derivative instruments (including certain derivative instruments embedded in other contracts) and hedging activities that fall within the scope of SFAS No. 133, "Accounting for Derivative Instruments and Hedging Activities." SFAS No. 149 also amends certain other existing pronouncements, which will result in more consistent reporting of contracts that are derivatives in their entirety or that contain embedded derivatives that warrant separate accounting. This Statement is effective for contracts entered into or modified after June 30, 2003, with certain exceptions, and for hedging relationships designated after June 30, 2003. The Company does not have any contracts that are derivatives or that contain embedded derivatives.
In November 2002, the Emerging Issues Task Force ("EITF") issued EITF Issue No. 02-16, "Accounting by a Customer (Including a Reseller) for Certain Consideration Received from a Vendor" ("EITF 02-16"). Among other items, EITF 02-16 requires that consideration received from a vendor be presumed to be a reduction of the cost of the vendor's products or services. This presumption can be overcome if the consideration can be shown to represent either a payment for assets or services delivered to the vendor or a reimbursement of costs incurred by the reseller to sell the vendor's products. This treatment is effective for arrangements entered into or modified on or after January 1, 2003. The adoption of EITF 02-16 did not have a material impact on the Company's financial position, results of operations or cash flows.
In November 2002, the EITF issued EITF Issue No. 00-21, "Accounting for Revenue Arrangements with Multiple Deliverables" ("EITF 00-21"). EITF 00-21 addresses how to account for arrangements that may involve the delivery or performance of multiple products, services and/or rights to use assets. Revenue arrangements with multiple deliverables are required to be divided into separate units of accounting if the deliverables in the arrangement meet certain criteria. Arrangement consideration should be allocated among the separate units of accounting based on their relative fair values. EITF 00-21 is applicable to agreements entered into in quarters beginning after June 15, 2003. The Company has determined that the sale of wireless services through the Company's direct sales channels with an accompanying handset constitutes a revenue arrangement with multiple deliverables. Upon adoption of EITF 00-21, the Company discontinued deferring non-refundable, up-front activation fees and associated costs for the Company's direct sales channels. Additionally, direct sales channel activation fees are now included in equipment revenue rather than service revenue in the consolidated statement of operations to the extent that the aggregate activation fee and handset proceeds received from a subscriber do not exceed the fair value of the handset sold. The Company adopted this new pronouncement effective July 1, 2003 on a prospective basis which did not have a material impact on the Company's financial position, results of operations or cash flows.
In June 2001, the FASB issued SFAS No. 143, "Accounting for Asset Retirement Obligations" ("SFAS No. 143"). This Statement requires entities to record the fair value of a liability for an asset retirement obligation in the period in which it is incurred and capitalize that amount as part of the book value of the long-lived asset. Over time, the liability is accreted to its present value each period, and the capitalized cost is depreciated over the useful life of the related asset. Upon settlement of the liability, an entity either settles the obligation for its recorded amount or incurs a gain or loss upon settlement. This Statement is effective for financial statements for fiscal years beginning after June 15, 2002. The Company's network is primarily located on leased property and the Company has certain legal obligations, principally related to its tower leases, which fall within the scope of SFAS No. 143. These legal obligations primarily include certain obligations to remediate leased land on which the Company's tower assets are located. In addition to its tower leases, the Company has leases related to switch site, retail and administrative locations subject to the provisions of SFAS No.143. In 2003, the Company recorded an initial asset retirement obligation of approximately $0.3 million, and capitalized the same amount by increasing the carrying cost of the related asset. Additionally, for the year ended December 31, 2003, approximately $0.1 million of accretion expense was recorded to increase the asset retirement obligation to its present value, and the capitalized costs were depreciated by approximately $0.1 million.
Cash, Cash Equivalents and Restricted Cash
Cash and cash equivalents include cash and short-term investments with original maturities of three months or less. Restricted cash at December 31, 2003 represented approximately $2.4 million in cash in escrow related to the VIA Wireless acquisition and approximately $1.1 million in cash in escrow related to the sale of wireless communication tower sites located in the central valley of California. Book cash overdrafts are classified as a current liability.
Fair Value of Financial Instruments
Fair value estimates, assumptions and methods used to estimate fair value of the Company's financial instruments are made in accordance with the requirements of SFAS No. 107, "Disclosures about Fair Value of Financial Instruments." The Company has used available information to derive its estimates. However, because these estimates are made as of a specific point in time, they are not
necessarily indicative of amounts the Company could ultimately realize. The use of different assumptions or estimating methods may have a material effect on the estimated fair value amounts.
The carrying amounts of cash and cash equivalents, restricted cash, accounts receivable net, accounts payable and accrued expenses approximate fair value due to the short-term nature of the instruments.
Long-term debt is comprised of the senior secured credit facility, senior discount notes, Series B senior discount notes, senior subordinated discount notes, capital leases and other long-term liabilities. The carrying amounts of the senior secured credit facility are a reasonable estimate of its fair value because market interest rates are variable. Capital leases are recorded at their net present value, which approximates fair value, and carrying values of other long-term liabilities also approximate fair values. The fair value of the senior discount notes, Series B senior discount notes and senior subordinated discount notes is measured at quoted market value. The Company's senior discount notes had a fair value of approximately $37.1 million as of December 31, 2003 versus a carrying value of $40.5 million. The Company's Series B senior discount notes had a fair value of approximately $11.2 million as of December 31, 2003 versus a carrying value of $12.2 million. The Company's senior subordinated discount notes had a fair value of approximately $72.3 million and $18.0 million as of December 31, 2003 and 2002, respectively, versus carrying values of $84.3 million and $220.1 million, respectively.
Inventory
Inventory consists of handsets and related accessories. Inventories purchased for resale are carried at the lower of cost, determined using weighted average, or market using replacement cost.
Property and Equipment and Construction in Progress
Property and equipment are reported at cost less accumulated depreciation. Costs incurred to design and construct the wireless network in a market are classified as construction in progress. When the network assets are placed into service, the related costs are transferred from construction in progress to property and equipment. Repair and maintenance costs are charged to expense as incurred; significant renewals and betterments are capitalized. Costs for software and its installation that are paid to third parties and benefit future periods are capitalized. When property is retired or otherwise disposed of, the cost of the property and the related accumulated depreciation are removed from the accounts, and any resulting gains or losses are reflected in the consolidated statement of operations.
Property and equipment are depreciated using the straight-line method based on estimated useful lives of the assets.
Assets lives are as follows:
Leasehold improvements are depreciated over the shorter of the remaining term of the lease or the estimated useful life of the improvement.
Construction in progress at December 31, 2003 and 2002 included equipment not yet placed into service and engineering and site development costs incurred in connection with the build-out of the Company's PCS network. The Company capitalized interest on its construction in progress activities. Interest capitalized for the years ended December 31, 2003, 2002 and 2001 was $0, $0 and approximately $4.9 million, respectively.
Deferred Costs
Costs incurred in connection with the negotiation and documentation of debt instruments are deferred and amortized over the terms of the debt instruments using the effective interest rate method. Costs incurred in connection with the issuance and sale of equity securities are deferred and netted against the proceeds of the stock issuance upon completion of the transaction. Costs incurred in connection with acquisitions are deferred and included in the aggregate purchase price allocated to the net assets acquired upon completion of the transaction.
Goodwill and Intangible Assets
Upon the adoption of SFAS No. 142, "Goodwill and Other Intangible Assets" ("SFAS No. 142"), as of January 1, 2002, goodwill is no longer subject to amortization. Goodwill is subject to at least an annual assessment for impairment by applying a fair value-based test. If the carrying amount exceeds the fair value, goodwill is considered to be impaired. As of October 31, 2003, the Company completed its annual impairment review and determined that no impairment charge was required. The Company continually evaluates whether events and circumstances have occurred that indicate the remaining balance of goodwill may not be recoverable. In evaluating impairment, the Company estimates the sum of the expected future cash flows derived from such goodwill. Such evaluations for impairment are significantly impacted by estimates of future revenues, costs and expenses and other factors. If the goodwill is considered to be impaired, the impairment loss to be recognized is measured by the amount by which the carrying amount of the goodwill exceeds the fair value of the expected future cash flows. Goodwill was approximately $38.1 million at December 31, 2003 and 2002.
The following table presents the results of operations if goodwill were not amortized as of January 1, 2001:
Intangible assets represent the estimated value of acquired subscriber bases at the dates of acquisitions. Intangible assets of $0 and approximately $2.8 million, net of accumulated amortization expense of approximately $19.1 million and $16.3 million, for the years ended December 31, 2003 and 2002, respectively, were amortized on a straight-line basis over a period of 20 months to five years. The
VIA Wireless and Spokane market subscriber bases acquired were initially being amortized over 36 months and 60 months, respectively, which represented the estimated average lives of a subscriber in these respective markets. Effective April 1, 2002, however, the Company changed the amortization periods of the VIA Wireless and Spokane market subscriber bases to 20 months and 33 months, respectively, resulting from higher customer turnover in these respective markets. As of March 31, 2003, the VIA Wireless subscriber base was fully amortized and as of December 31, 2002, the Spokane market subscriber base was fully amortized. Amortization expense for intangible assets was approximately $2.8 million, $12.8 million and $2.8 million for the years ended December 31, 2003, 2002 and 2001, respectively.
Other intangible assets of approximately $68.9 million and $73.2 million, net of accumulated amortization expense of approximately $10.3 million and $5.9 million, for the years ended December 31, 2003 and 2002, respectively, represent the estimated value of VIA Wireless' Sprint PCS management agreement. Amortization expense for other intangible assets was approximately $4.3 million, $4.3 million and $1.6 million for the years ended December 31, 2003, 2002 and 2001, respectively.
Estimated future amortization expense of intangible assets for the next five years at December 31, 2003 is as follows:
Impairment of Long-Lived Assets
Long-lived assets are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Recoverability is assessed based on the future cash flows expected to result from the use of the asset and its eventual disposition. If the sum of the undiscounted cash flows is less than the carrying value of the asset, an impairment loss is recognized. Any impairment loss, if indicated, is measured as the amount by which the carrying amount of the asset exceeds the estimated fair value of the asset.
Income Taxes
The Company accounts for income taxes in accordance with the provisions of SFAS No. 109, "Accounting for Income Taxes" ("SFAS No. 109"). SFAS No. 109 requires an asset and liability approach which requires the recognition of deferred tax assets and deferred tax liabilities for the expected future tax consequences of temporary differences between the carrying amounts and the tax bases of assets and liabilities. Valuation allowances will be established when necessary to reduce deferred tax assets to the amount expected to be realized.
Net Loss Per Share
The Company computes net loss per common share in accordance with SFAS No. 128, "Earnings per Share" ("SFAS No. 128"). Under the provisions of SFAS No. 128, basic net loss per common share is computed by dividing the net loss applicable to common stockholders for the period by the weighted
average number of shares of common stock outstanding. In accordance with SFAS No. 128, incremental potential common shares from stock options and warrants are excluded in the calculation of diluted loss per share when the effect would be antidilutive. Accordingly, the number of weighted average shares outstanding as well as the amount of net loss per share are the same for basic and diluted per share calculations for the periods reflected in the accompanying financial statements.
The following table summarizes the securities outstanding, which are excluded from the loss per share calculation, as amounts would have an antidilutive effect.
Stock-Based Compensation
At December 31, 2003, UbiquiTel had two stock-based employee compensation plans, an employee stock purchase plan and an equity incentive plan, which are described in Note 9. The employee stock purchase plan was suspended effective with the offering period beginning January 1, 2003 and resumed effective with the offering period beginning January 1, 2004. The Company accounts for those plans in accordance with Accounting Principles Board Opinion No. 25, "Accounting for Stock Issued to Employees," and related interpretations. The following table illustrates the effect on net income and earnings per share if the Company had applied the fair value recognition provisions of SFAS No. 123, "Accounting for Stock-Based Compensation."
The fair value of all option grants was estimated on the date of grant using the Black-Scholes model with the following weighted-average assumptions used for grants:
Revenue Recognition
The Company recognizes revenues when services have been rendered or products have been delivered, the price to the buyer is fixed and determinable, and collectibility is reasonably assured. The Company accounts for rebates, discounts and other sales incentives as a reduction to revenue. Service revenues include subscriber revenues, reseller revenues, Sprint PCS travel revenues and non-Sprint PCS roaming revenues. Equipment revenues include sales of handsets and accessories. Subscriber revenues consist of monthly recurring service charges for voice and third generation data ("3G data") services and monthly non-recurring charges for local, long distance, travel and roaming airtime usage and 3G data usage in excess of the pre-subscribed usage plan received from the Company's subscribers, cancellation and late fee revenues and surcharges, less reductions for billing adjustments and credits. The Company's revenue recognition policies are consistent with the guidance in EITF Issue No. 00-21, "Accounting for Revenue Arrangements with Multiple Deliverables," and Staff Accounting Bulletin No. 104, "Revenue Recognition."
The Company recognizes service revenue from its subscribers as they use the service. The Company pro-rates access revenue over the billing period and records airtime usage in excess of the pre-subscribed usage plan. The Company's subscribers pay an activation fee to the Company when they initiate service. Prior to the adoption of EITF 00-21 on July 1, 2003, the Company deferred all activation fee revenue and direct customer activation costs on a straight-line basis over the average life of its subscribers, which was estimated to be 30 months. Direct customer activation costs in excess of activation fee revenue were recognized immediately. For the years ended December 31, 2003, 2002 and 2001, the Company recognized approximately $4.9 million, $3.0 million and $0.6 million, respectively, of activation fee revenue. As of December 31, 2003 and 2002, deferred revenue in the consolidated balance sheets included deferred activation fee revenue of approximately $4.0 million and $3.9 million, respectively, and also included approximately $7.3 million and $5.4 million of deferred access revenues, which represent customer access fees billed one month in advance, as of December 31, 2003 and 2002, respectively. Deferred activation fee revenue was also included in other long-term liabilities and totaled approximately $1.9 million and $2.5 million as of December 31, 2003 and 2002, respectively.
The Company records Sprint PCS travel revenue on a per minute rate for voice services and on a per kilobit rate for data services when Sprint PCS subscribers based outside the Company's markets use the Company's network. The Company earned approximately $48.7 million, $54.9 million and $31.6 million of Sprint PCS travel revenue for the years ended December 31, 2003, 2002 and 2001, respectively. The Company records non-Sprint PCS roaming revenue when non-Sprint PCS subscribers use the Company's network. The Company earned approximately $14.2 million, $6.4 million and $1.0 million of non-Sprint PCS roaming revenue for the years ended December 31, 2003, 2002 and 2001, respectively. During the second quarter of 2003, the Company initiated a reseller program with Virgin Mobile USA. The Company records reseller revenue when reseller subscribers use the Company's network. The Company earned approximately $0.6 million of reseller revenue for the year ended December 31, 2003.
Equipment revenue consists of proceeds from sales of handsets and accessories which are recorded at the time of sale. Revenues from sales of handsets and accessories represent a separate earnings process from service revenues because sales of handsets and accessories do not require customers to subscribe to wireless services. Beginning July 1, 2003, equipment revenue also includes an allocation of the arrangement consideration from activation revenue received as part of revenue arrangements with multiple deliverables.
The Company participates in the Sprint national and regional distribution programs in which national retailers such as RadioShack, Best Buy and Costco sell Sprint PCS products and services. In order to facilitate the sale of Sprint PCS products and services, national retailers purchase wireless handsets from Sprint for resale and receive compensation from Sprint for Sprint PCS products and services sold. For industry competitive reasons, Sprint subsidizes the price of these handsets by selling the handsets at a price below cost. Under the Company's Sprint PCS agreements, when a national retailer sells a handset purchased from Sprint to a subscriber in the Company's markets, the Company is obligated to reimburse Sprint for the handset subsidy. The Company does not receive any revenues from sales of handsets and accessories by national retailers. For a new subscriber activation and a handset upgrade to an existing subscriber, the Company includes these handset subsidy charges in cost of products sold in the consolidated statements of operations. Handset subsidy charges included in cost of products sold for the years ended December 31, 2003, 2002 and 2001 were approximately $15.5 million, $10.8 million and $7.2 million, respectively.
Accounts receivable, net includes amounts due from customers with respect to subscriber revenues and amounts due from the Company's local indirect agents. The Company records an allowance for doubtful accounts to reflect the expected loss on the collection of receivables. Activity in the allowance for doubtful accounts for the years ended December 31, 2003, 2002 and 2001 was as follows:
Advertising Expenses
The Company expenses advertising costs when the advertising occurs. Total advertising expenses amounted to approximately $8.0 million, $12.5 million and $9.7 million for the years ended December 31, 2003, 2002 and 2001, respectively, and are included in selling and marketing expenses in the consolidated statements of operations.
Concentration of Risk
Financial instruments, which potentially subject the Company to concentration of credit risk, consist principally of cash and cash equivalents and accounts receivable. The Company maintains cash and cash equivalents in accounts with financial institutions in excess of the amount insured by the Federal Deposit Insurance Corporation. Management does not believe there is significant credit risk associated with deposits in excess of the federally insured amounts. Further, the Company maintains accounts with nationally recognized investment managers. Such deposits are not insured by the Federal Deposit Insurance Corporation. Management does not believe there is significant credit risk associated with these uninsured deposits.
Concentrations of credit risk with respect to accounts receivable are limited due to a large subscriber base. Initial credit evaluations of subscribers' financial condition are performed and security deposits are generally obtained for subscribers with a high credit risk profile. The Company maintains an allowance for doubtful accounts for potential credit losses.
Additionally, the Company derives substantial revenues and expenses from Sprint. A significant amount of the Company's financial transactions result from the Company's relationship with Sprint.
Reclassifications
Certain prior year amounts have been reclassified to conform with current year presentation.
Comprehensive Income
No statement of comprehensive income has been included in the accompanying financial statements since the Company does not have any other comprehensive income to report.
4. SPRINT AGREEMENTS
The Company entered into four major agreements with Sprint PCS and Sprint in late 1998. They are the management agreement, the services agreement, the trademark and service mark license agreement with Sprint and the trademark and service mark license agreement with Sprint PCS. As amended on December 28, 1999, and as further amended and effective August 13, 2001 in connection with the VIA Wireless acquisition, and as further amended and effective July 31, 2003 to remove the build-out requirement for the state of Montana and as most recently amended and effective November 1, 2003 to provide us with a number of benefits (including fixed rates for back office services provided to us by Sprint and a fixed reciprocal roaming rate through 2006), the management agreement allows the Company to exclusively offer Sprint PCS services in the Company's markets containing approximately 10.0 million residents-Reno/Tahoe, Nevada; northern California; central valley of California; Spokane, Washington; southern Idaho/Utah/Nevada; and southern Indiana/Kentucky.
The management agreement has an initial term of 20 years ending in October 2018 with three 10-year renewals. It can be terminated if either party provides the other with two years' prior written
notice or either Sprint PCS or the Company is in material default of its obligations. The key clauses within the management agreement are summarized as follows:
Exclusivity. The Company is designated as the only person or entity that can manage or operate a PCS network for Sprint PCS in the Company's markets. Sprint PCS is prohibited from owning, operating, building or managing another wireless mobility communications network in the Company's markets while the management agreement is in place.
Network Build-out. The management agreement specifies the terms of the Sprint PCS affiliation, including the required network build-out plan, which requires that the Company provide network coverage to a minimum network coverage area within specified time frames. The Company believes it is in compliance with the Company's network build-out requirements and has satisfied the required deployment schedule under the management agreement.
Products and Services Offered For Sale. The management agreement identifies the products and services that can be offered for sale in the Company's markets. These products and services include, but are not limited to, Sprint PCS consumer and business products and services available as of the date of the agreement or as modified by Sprint PCS. The Company also is allowed to resell Sprint PCS services to wireless resellers who in turn resell Sprint PCS services to their customers using the Company's network.
Service Pricing, Roaming, Travel and Fees. The Company must offer Sprint PCS subscriber pricing plans designated for regional or national offerings. The Company is permitted to establish its own local price plans for Sprint PCS products and services offered only in its markets, subject to Sprint PCS' approval. The Company is entitled to receive fees weekly from Sprint PCS equal to 92% of net "billed revenue" related to customer activity less applicable write-offs, net of deposits applied. Sprint determines the write-offs for any given time period. Outbound non-Sprint PCS roaming billed to subscribers based in the Company's markets, proceeds from the sales of handsets and accessories, amounts collected with respect to taxes and surcharges for enhanced 911, wireless local number portability and universal service fund charges, and customer handset insurance are not considered "billed revenue." Billed revenue generally includes all other customer account activity for Sprint PCS products and services in the Company's markets, which includes such activities billed to, attributed to or otherwise reflected in customers accounts. The Company is generally entitled to 100% of the proceeds from customers for equipment and accessories that it sells or leases and to 81.36% of fees for enhanced 911 and 6.36% of fees for wireless local number portability attributable to customers based in the Company's markets less applicable write-offs. The Company also is entitled to 100% of the universal service funds received from the Universal Service Administrative Company associated with customers in the Company's markets. Many Sprint PCS subscribers purchase nationwide pricing plans that allow roaming anywhere on Sprint PCS' and its affiliates' networks without incremental Sprint PCS roaming charges. However, the Company earns Sprint PCS roaming revenue for every minute that a Sprint PCS subscriber from outside the Company's markets enters its markets and uses its network. The Company earns revenue from Sprint PCS based on a per minute rate when Sprint PCS' or other Sprint PCS affiliates' subscribers travel on the Company's portion of the Sprint PCS network. Similarly, the Company pays the same rate for every minute the Company's subscribers use the Sprint PCS network outside the Company's markets. The roaming rate onto a non-Sprint PCS provider's network is set under Sprint PCS' third party roaming agreements.
The Company also recognizes roaming revenue and expense related to data usage from PCS Vision data services when wireless subscribers are using such services outside of their home territory.
The Company recognizes revenue when a wireless subscriber based outside of the Company's markets uses PCS Vision data services on the Company's network and the Company recognizes expense when its subscribers use such services on the Sprint PCS network or network of another PCS affiliate of Sprint outside of the Company's markets.
Advertising and Promotion. Sprint PCS is responsible for all national advertising and promotion of Sprint PCS products and services. The Company is responsible for advertising and promotion in the Company's markets.
Program Requirements Including Technical and Customer Care Standards. The Company must comply with Sprint PCS' program requirements for technical standards, customer service standards and national and regional distribution and national accounts programs. Some of the technical standards relate to network up-time, dropped calls, blocked call attempts and call origination and termination failures. The Company is required to build a network that meets minimum transport requirements established by Sprint PCS for links between its cell sites and switches. These requirements are measured in milliseconds. The Company is also required to have minimal loss and echo return loss on its telephone lines. The Company must meet substantially high network up-time percentage in excess of 95%. Sprint PCS can adjust the program requirements at its discretion, though the Company has protective rights under certain conditions to decline to implement program requirement changes that Sprint could impose that adversely affect the Company's business.
Non-Competition. The Company may not offer Sprint PCS products and services outside the Company's markets.
Inability to Use Non-Sprint PCS Brands. The Company may not market, promote, advertise, distribute, lease or sell any of the Sprint PCS products on a non-branded, "private label" basis or under any brand, trademark or trade name other than the Sprint brand, except for sales to resellers or as otherwise permitted under the trademark and service license agreements.
Rights of First Refusal. Sprint PCS has certain rights of first refusal to buy the Company's assets upon a proposed sale.
Most Favored Nation Cause. The Company generally has the right to amend the management agreement and services agreement to obtain the most favorable terms provided under a management agreement or services agreement between Sprint and a PCS affiliate of Sprint similarly situated to the Company (defined as having at least 3.0 million POPs) if, prior to December 31, 2006, Sprint amends the terms of any of those agreements of such similarly situated PCS affiliate of Sprint. This right is only effective, however, if the Company agrees to accept all the terms and conditions set forth in the other agreements and is subject to specified restrictions on its applicability.
The management agreement can be terminated as a result of a number of events including an uncured breach of the management agreement or bankruptcy of either party to the agreement. In the event that the management agreement is not renewed or terminated, certain formulas apply to the valuation and disposition of the Company's assets.
The services agreement outlines various support services such as activation, billing and customer care that will be provided to the Company by Sprint PCS. These services are available to the Company at established rates. Sprint PCS may discontinue a service provided that it gives nine months' written notice. The services agreement automatically terminates upon termination of the management agreement.
The trademark and service mark license agreements with Sprint and Sprint PCS provide the Company with non-transferable, royalty free licenses to use the Sprint brand name, the "diamond" symbol and several other trademarks and service marks. The Company's use of the licensed marks is subject to adherence to quality standards determined by Sprint and Sprint PCS. Sprint and Sprint PCS can terminate the trademark and service mark license agreements if the Company files for bankruptcy, materially breaches the agreement or if the management agreement is terminated.
In September 2003, the Company recorded a one-time adjustment to reduce operating expenses by approximately $3.2 million relating to the resolution of more than $7.5 million of previously disputed charges with Sprint PCS for which the Company had fully reserved the amounts under dispute. The adjustment reduced cost of service and operations expense by approximately $3.2 million and the Company paid Sprint PCS approximately $4.3 million in conjunction with other previously disputed charges in November 2003. In addition, in the fourth quarter of 2003, the Company recorded a $1.3 million adjustment to reduce operating expenses when it transitioned from the "collected revenue" to the "billed revenue" method for reconciling amounts due to the Company for accounts receivable.
5. PROPERTY AND EQUIPMENT
Property and equipment consisted of the following:
Depreciation expense was approximately $39.7 million, $34.4 million and $19.3 million for the years ended December 31, 2003, 2002 and 2001, respectively.
During the fourth quarter of 2003, the Company consummated a definitive sale and lease-back agreement for the sale of wireless communication tower sites that the Company owned located in the central valley of California and the lease-back of space on those sites. The Company received approximately $10.5 million, net of transaction costs, for the sale of 98 towers and related assets and completed the assignment of various leases of the ground space on which the towers were situated and co-location leases for third-party wireless providers who leased space on certain of the towers sold. The Company agreed to escrow an amount equal to 10% of the purchase price for indemnification claims that may arise during a one-year period following the closing and that are resolved in the purchaser's favor. This escrowed amount is included in restricted cash in the consolidated balance sheet as of December 31, 2003. The sale and lease-back resulted in a gain of approximately $5.3 million, which has been deferred and will be amortized as a reduction of the rental expense incurred under the related tower site leases over the lives of such leases. The initial term of the lease agreement is for ten years with an option to renew up to three additional five-year terms.
In November 2003, the Company entered into an agreement to systematically replace many of the Company's existing minicell base stations with an equivalent quantity of current generation multi-carrier capable base stations, or modcells. As of the date of the agreement, the estimated useful life of each existing minicell base station has been reduced to reflect the remaining number of months such assets will be in use prior to conversion, thereby accelerating depreciation expense. The impact of this change increased depreciation expense by approximately $1.6 million in 2003, and is estimated to increase depreciation expense by approximately $5.0 million in 2004 and approximately $0.7 million in 2005.
6. ACCRUED EXPENSES
As of December 31, 2003 and 2002, accrued expenses consisted of the following accruals:
7. LONG-TERM DEBT AND CAPITAL LEASE OBLIGATIONS AND DEBT RETIREMENTS
Long-term debt and capital lease obligations outstanding as of December 31, 2003 and 2002 were as follows:
Senior Secured Credit Facility
On March 31, 2000, Operating Company entered into a $250.0 million senior secured credit facility with Paribas, as administrative agent, and certain banks and other financial institutions as parties thereto, which was guaranteed by UbiquiTel. The credit facility consisted of a revolving loan of up to $55.0 million, a term loan A of $120.0 million and a term loan B of $75.0 million. The Company's obligations under the credit facility are secured by all of the Company's assets. On March 1, 2001, Operating Company and Paribas and the other lenders under the senior secured credit facility entered into a second amendment and consent to the credit agreement, whereby the lenders increased the $250.0 million credit facility by $50.0 million to $300.0 million, and approved UbiquiTel's acquisition of VIA Wireless. (See Note 16 for a description of the VIA Wireless acquisition.) The additional borrowing increased the term loan B to $125.0 million. Operating Company fully drew down the term loans according to a mandatory draw down schedule during the years ended December 31, 2002, 2001 and 2000. As described below, the credit facility was reduced to $280.0 million in February 2003. The unused revolving line of credit was further reduced to approximately $47.7 million in the third quarter of 2003. In conjunction with the closing of the facility in March 2000, the increase of the facility in March 2001, an amendment executed in July 2002 and an amendment executed in February 2003, Operating Company incurred financing fees of approximately $11.6 million which are being amortized over the term of the credit facility.
As of December 31, 2003, the Company had $230.0 million aggregate principal amount of outstanding term loans under the senior secured credit facility, including the term loan A of $112.7 million and the term loan B of $117.3 million. The revolving loan and term loan A will mature in October 2007 and the term loan B will mature in October 2008. The term loans A and B are required to be repaid beginning in June 2004 in fourteen and eighteen consecutive quarterly installments, respectively. The amount of each of the quarterly consecutive installments increases incrementally in accordance with the credit agreement. The amount that can be borrowed and outstanding under the revolving loan reduces in seven quarterly reductions beginning in December 2005. Effective March 1, 2003, Operating Company can voluntarily prepay the term loans without a prepayment premium.
Operating Company may borrow funds as either a base rate loan with an interest rate of prime plus 2.00% for the revolving loan and term loan A and prime plus 2.50% for term loan B or a Eurodollar Loan with an interest rate of the London interbank offered rate, commonly referred to as LIBOR, plus 3.25% for the revolving loan and term loan A and LIBOR plus 4.25% for term loan B. In addition, an unused credit facility fee of 0.75% will be charged quarterly on the average unused portion of the facility. The interest rates for the senior secured credit facility ranged from 4.4% to 5.5% during the year ended December 31, 2003.
On January 23, 2004, the Company reached an agreement with its senior lending group to amend the senior secured credit facility to eliminate certain "stage one" covenants, including minimum subscribers effective as of December 31, 2003, minimum revenues and minimum adjusted cash balances (each as defined in the credit agreement), and to modify certain financial covenants and ratios and their applicable measurement periods, including minimum consolidated EBITDA beginning in the first quarter of 2004, fixed charge coverage ratio beginning in the first quarter of 2005 and interest coverage ratio beginning in the first quarter of 2004 (each as defined in the credit agreement), and leverage ratios, including consolidated indebtedness to consolidated EBITDA beginning in the first quarter of 2004 and consolidated senior indebtedness to consolidated EBITDA beginning in the first quarter of 2004 (each as defined in the credit agreement), to reflect the impact of changes in the Company's business. The Company also must comply with restrictive covenants and must achieve other financial
ratios including consolidated indebtedness to adjusted consolidated EBITDA and consolidated senior indebtedness to adjusted consolidated EBITDA beginning in the third quarter of 2002 (each as defined in the credit agreement), as well as complying with minimum network coverage levels and maximum capital spending limits. Operating Company incurred financing fees of approximately $0.4 million in connection with the amendment which are being amortized over the term of the credit facility. The Company presently is in compliance with all financial and operational covenants associated with the senior secured credit facility.
Building Mortgage and Other
The Company has a mortgage relating to a building and land with a balance of approximately $3.5 million at December 31, 2003. The mortgage carries a fixed interest rate of 6.99% and is payable in monthly installments of approximately $37,000. The mortgage is due to be repaid in full by April 2015.
In August 2001, the Company paid $69.6 million to the Rural Telephone Finance Cooperative to retire VIA Wireless' outstanding senior secured credit facility and paid $5.8 million to the Federal Communications Commission ("FCC") in repayment of the outstanding notes of VIA Wireless for the purchase of its FCC licenses for Fresno, Merced, Modesto, Stockton and Visalia, California, Johnstown, Pennsylvania, and Ada, Oklahoma.
Notes
In April 2000, Operating Company issued 14% senior subordinated discount notes due April 15, 2010 (the "14% Subordinated Notes") with a maturity value of $300.0 million and warrants to purchase 3,579,000 shares of common stock of UbiquiTel at an exercise price of $11.37 per share under Section 4(2) of the Securities Act of 1933. In August 2000, the 14% Subordinated Notes and warrants were registered with the Securities and Exchange Commission. The 14% Subordinated Notes were issued at a discount and generated approximately $152.3 million in gross proceeds. The value assigned from the proceeds to the warrants was approximately $15.9 million. The 14% Subordinated Notes have a ten-year maturity and will accrete in value until April 15, 2005 at an interest rate of 14%. Interest will become payable semiannually beginning on October 15, 2005. The 14% Subordinated Notes are redeemable on or after April 15, 2005.
The indenture governing the 14% Subordinated Notes contains customary covenants, including covenants limiting indebtedness, dividends and distributions on, and redemptions and repurchases of, capital stock and other similar payments, the acquisition and disposition of assets, and transactions with affiliates or related persons. The indenture governing the 14% Subordinated Notes provides for customary events of default, including cross defaults, judgment defaults and events of bankruptcy.
In February 2003, Operating Company consummated certain transactions which reduced its long-term debt outstanding and related future minimum annual principal payments due under the senior secured credit facility and the 14% Subordinated Notes. Operating Company consummated a private placement exchange of $48.2 million aggregate principal amount of its new 14% senior discount notes due May 15, 2010 ("14% Senior Notes") and $9.6 million in cash for $192.7 million aggregate principal amount of its outstanding 14% Subordinated Notes. Additionally, Operating Company consummated a related new financing, in a private placement offering, of $12.8 million aggregate principal amount of 14% Series B senior discount notes due 2008 ("14% Series B Senior Notes") in which Operating Company received cash proceeds of $9.6 million to fund the cash portion of the exchange. Under the new financing, the Company issued detachable warrants to purchase up to
approximately 9.6 million shares of UbiquiTel's common stock at an exercise price of $0.01 per share. Three directors of UbiquiTel or their affiliates participated in the private placement offering for consideration of approximately $3.3 million, and were issued approximately $4.4 million aggregate principal amount of 14% Series B Senior Notes and approximately 3.3 million detachable warrants, which became exercisable upon shareholder approval on May 16, 2003 in accordance with Nasdaq Marketplace Rule 4350(i)(1)(A). The Company wrote off approximately $2.9 million in deferred financing fees related to the original issuance of the 14% Subordinated Notes and the Company incurred estimated fees and expenses of approximately $3.7 million in connection with the issuance of the 14% Senior Notes, which reduced the gain resulting from the private placement exchange, and the Company incurred estimated expenses of approximately $0.3 million in connection with the issuance of the 14% Series B Senior Notes. The Company recognized a gain of $39.0 million as a result of the private placement exchange.
As a condition to these transactions, Operating Company's senior lenders required Operating Company to prepay $15.0 million of its outstanding term loans under its senior secured credit facility, thereby reducing the outstanding term loans under the senior secured credit facility to $230.0 million. In addition, the $55.0 million unused revolving line of credit was permanently reduced by $5.0 million to $50.0 million, which was further reduced to $47.7 million during the third quarter of 2003.
The Company followed the provisions of SFAS No. 15, "Accounting by Debtors and Creditors for Troubled Debt Restructurings," and EITF Issue No. 02-04, "Determining Whether a Debtor's Modification or Exchange of Debt Instruments Is Within the Scope of FASB Statement No. 15," in recording the private placement exchange transaction. These provisions require that the carrying value of the 14% Senior Notes be recorded at the total future cash payments (principal and interest) specified by the 14% Senior Notes; therefore, the 14% Senior Notes were classified on the Company's balance sheet as long-term liabilities and were valued at $81.9 million as of the transaction date. As a result, no interest expense related to the 14% Senior Notes will be recognized in future periods.
The following table presents the gain recognized in the private placement exchange transaction in 2003 (in thousands, except per share data):
As a result of these transactions, the Company reduced overall debt by approximately $146.7 million aggregate principal amount ($113.8 million aggregate accreted value) and annual cash interest requirements by approximately $9.7 million in 2005 and approximately $19.3 million beginning in 2006, providing cumulative savings of approximately $243.0 million.
The 14% Senior Notes have substantially the same terms as the 14% Subordinated Notes, except they rank senior in right of payment to the 14% Subordinated Notes, they mature on May 15, 2010, thirty days after the maturity of the 14% Subordinated Notes, and they are not subject to the blocking rights of Operating Company's senior lenders in the event of default with respect to the debt under Operating Company's senior secured credit facility. Like the 14% Subordinated Notes, the 14% Senior Notes will accrete in value until April 15, 2005 and interest thereon will become payable semiannually beginning on October 15, 2005. The 14% Senior Notes are redeemable on or after April 15, 2005 and are governed by an indenture substantially the same as the indenture governing the 14% Subordinated Notes, except that the indenture for the 14% Senior Notes contains, among other things, a "basket" permitting up to $10 million of restricted payments.
The 14% Series B Senior Notes rank pari passu in right of payment to the 14% Senior Notes and senior to the 14% Subordinated Notes and contain customary covenants and terms. The 14% Series B Senior Notes mature in 2008 and, like the 14% Senior Notes, are not subject to the blocking rights of Operating Company's senior lenders in the event of default with respect to the debt under Operating Company's senior secured credit facility. Like the 14% Subordinated Notes and 14% Senior Notes, the 14% Series B Senior Notes will accrete in value until April 15, 2005 and interest thereon will become payable semiannually beginning on October 15, 2005. The 14% Series B Senior Notes are redeemable.
UbiquiTel has fully and unconditionally guaranteed Operating Company's obligations under the 14% Subordinated Notes, the 14% Senior Notes and the 14% Series B Senior Notes. UbiquiTel has no independent assets or operations separate from its investment in Operating Company.
The Company presently is in compliance with all financial and operational covenants associated with the 14% Subordinated Notes, the 14% Senior Notes and the 14% Series B Senior Notes.
Additionally, in a series of transactions during 2003, Operating Company received cash proceeds of approximately $1.3 million, of which $1.1 million were used by Operating Company to fund open market purchases of $6.9 million aggregate principal amount ($5.3 million aggregate accreted value) of 14% Subordinated Notes, and Operating Company issued approximately $1.7 million aggregate principal amount of additional 14% Series B Senior Notes. Under these private placement sales, the Company issued detachable warrants to purchase up to approximately 1.3 million shares of UbiquiTel's common stock at an exercise price of $0.01 per share. Three directors of UbiquiTel or their affiliates participated in the private placement sales for aggregate consideration of approximately $0.4 million, and were issued approximately $0.6 million aggregate principal amount of 14% Series B Senior Notes and approximately 0.4 million detachable warrants. In connection with these transactions, the Company wrote off approximately $0.1 million in deferred financing fees and $0.3 million in unamortized debt discount for detachable warrants related to the original issuance of the 14% Subordinated Notes, which reduced the gain resulting from the open market purchases. The Company recorded a gain of approximately $3.9 million during 2003. During 2003, the holders exercised all of the warrants issued in connection with the issuance of the 14% Series B Senior Notes, and UbiquiTel issued 10,913,607 shares of its common stock in the aggregate upon the exercises.
The Company may from time to time purchase outstanding 14% Subordinated Notes and 14% Senior Notes in the open market, in privately negotiated transactions or otherwise in accordance with its debt instruments and applicable law.
No related income tax effect is reflected on the gain from the private placement exchange or the open market purchases, as the Company expects to utilize a portion of its net operating loss carryforwards to offset any resulting taxable income. Prior to the exchange, the net operating loss
carryforwards expected to be utilized had a corresponding valuation allowance applied to reduce their carrying value to zero.
Aggregate minimum annual principal payments due on all issues of long-term debt for the next five years at December 31, 2003 and thereafter are as follows:
8. STOCKHOLDERS' EQUITY
Common Stock
The holders of common stock are entitled to one vote for each share held of record on all matters submitted to a vote of shareholders and do not have any cumulative voting rights. Subject to the rights of the holders of any series of preferred stock, holders of common stock are entitled to receive ratably such dividends as may be declared by the board of directors out of funds legally available therefor. Holders of shares of common stock have no preemptive, conversion, redemption, subscription or similar rights. If the Company liquidates, dissolves or winds up, the holders of shares of common stock are entitled to share ratably in the assets which are legally available for distribution, if any, remaining after the payment or provision for the payment of all debts and other liabilities and the payment and setting aside for payment of any preferential amount due to the holders of shares of any series of preferred stock.
Warrants
At December 31, 2003, the Company had outstanding warrants to purchase an aggregate of 3,665,183 shares of common stock, including warrants to purchase 3,579,000 shares issued in connection with the 14% Subordinated Notes. These warrants, which were detachable, have been exercisable at any time after April 15, 2001 at $11.37 per share and have a ten-year life. Warrants to purchase 86,183 shares of common stock at an exercise price of $8.00 per share were issued to Credit Suisse First Boston Corporation in connection with the 14% Subordinated Notes offering and have been exercisable since June 13, 2001 and expire June 12, 2005.
Warrants to purchase 1,148,804 shares of common stock exercisable at $0.005 per share were issued to Paribas in connection with a 1999 credit facility agreement. Paribas exercised these warrants in May 2001 on a cashless basis and received 1,147,861 shares of common stock (net of 943 shares surrendered as payment of the exercise price). The Company's accounting for the warrants issued to Paribas was, at the time of issuance, based on the fair market value of the warrants of approximately $0.6 million and was determined by using the Black-Scholes model with the following assumptions: risk free interest rate of 6.4%, expected dividend yield of 0%, expected life of five years and expected volatility of 70%.
In connection with the private placement issuances of 14% Series B Senior Notes in 2003 discussed in Note 7, the Company issued detachable warrants to purchase approximately 10.9 million shares of common stock at an exercise price of $0.01 per share, all of which were exercised for cash during 2003.
9. STOCK-BASED COMPENSATION
Employee Stock Purchase Plan
The Company commenced an Employee Stock Purchase Plan (the "ESP Plan") on April 15, 2002. Under the terms of the ESP Plan, during any calendar year there were four quarterly offering periods beginning January 1st, April 1st, July 1st and October 1st, during which eligible employees could participate. The purchase price is the lower of 85% of the fair market value of the common stock on the first trading day of the offering period or 85% of the fair market value of the common stock on the last trading day of the offering period. The Company issued 315,383 shares of common stock at an average per share price of approximately $0.35 in 2002 and 158,686 shares of common stock at a per share price of $0.204 in 2003.
On October 29, 2002, UbiquiTel's board of directors approved amendments to the ESP Plan, which among other items, authorized the suspension of the ESP Plan, which suspension became effective with the offering period beginning January 1, 2003. The ESP Plan was resumed effective January 1, 2004.
Stock Option Plan
On November 29, 1999, the Company entered into an employment agreement with its chief executive officer. Under the employment agreement, the Company granted non-qualified options for 2,550,000 shares of common stock at a purchase price of $0.50 per share which the Company believes was the fair market value of the stock at that time. The options vested in three equal installments over a period of three years.
In January 2000, the board of directors and shareholders of the Company approved the 2000 Equity Incentive Plan. In 2001, the Company's board of directors and shareholders approved the Amended and Restated 2000 Equity Incentive Plan (the "Equity Incentive Plan"). The purpose of the Equity Incentive Plan is to attract, retain and reward key employees, consultants and non-employee directors. A committee consisting of non-employee members from the board of directors administers the Equity Incentive Plan. The committee may grant stock options, stock appreciation rights and other equity-based awards to eligible persons, as defined in the Equity Incentive Plan, including directors. The Equity Incentive Plan authorizes up to 7,500,000 shares of common stock for issuance and does not include awards paid in cash. Stock options are normally granted with an exercise price equal to the fair value of the common stock on the date of grant.
In January 2000, the Company issued 260,000 options with an exercise price that was approximately $7.50 less per share than the fair market value of the common stock on the date of grant. The Company recognized compensation expense over the 48-month vesting period for these options. The deferred compensation expense was fully amortized as of December 31, 2003. During the years ended December 31, 2003, 2002 and 2001, the Company amortized $0.2 million, $0.4 million and $0.4 million of this expense, respectively.
In May 2002, the Company modified 1,220,800 options previously issued to employees and board members to reduce the exercise price to $4.00, which was approximately $2.14 above the fair market value on the date of modification. The modification results in variable accounting for these options
until exercised, forfeited or they expire unexercised; however, no compensation expense has been recorded as the fair market value of the Company's stock has not exceeded the modified exercise price in any period since modification.
The following is a summary of the options granted and outstanding at December 31, 2003, 2002 and 2001, respectively:
The following table summarizes information about stock options outstanding at December 31, 2003:
10. INCOME TAXES
The income tax expense of approximately $766,000 for the year ended December 31, 2003 is comprised of deferred income tax expense of $793,000, net of an income tax refund of approximately $27,000. The increase in deferred income tax liabilities resulted from an income tax deduction for amortization of goodwill, which is not amortizable to expense for financial reporting purposes. As goodwill can only be reduced and charged against accounting income if an impairment of goodwill exists or if the related business were to be disposed of, the reversal of this deferred income tax liability cannot be expected to occur in a similar period to deferred tax assets. The income tax expense for the year ended December 31, 2002 is comprised of a deferred income tax benefit of approximately $3.1 million and a current federal income tax benefit of approximately $8.8 million resulting from our ability to carry back 2002 net operating losses from our former wholly owned VIA Holding subsidiary to realize a federal income tax refund.
As of December 31, 2003, the Company had consolidated net operating loss carryforwards for federal and state income tax purposes totaling approximately $186.0 million, which will carry forward to future years. The net operating loss carryforwards will begin to expire in 2020 and may be limited due to changes in ownership in accordance with Internal Revenue Service guidelines.
Income tax expense (benefit) for the years ended December 31, 2003, 2002 and 2001 differed from the amount computed by applying the statutory federal income tax rate of 34% to the loss recorded as a result of the following:
The Company's net deferred tax asset consisted of the following amounts of deferred tax assets and liabilities as of December 31, 2003 and 2002:
As of December 31, 2003 and 2002, the Company's deferred income tax assets exceeded its deferred income tax liabilities. It is expected that deferred income tax assets will either expire unused or give rise to future tax deductions that will be available to offset the future taxable income arising from the reversal of the deferred income tax liabilities, except for the liability arising from goodwill amortization. As a result, a full valuation allowance was recorded as of December 31, 2003 and 2002 against all deferred income tax assets that are not offset by anticipated reversals of deferred income tax liabilities.
11. COMMITMENTS
Leases
The Company is obligated under operating leases for office space, retail stores, land for radio communications sites, leased space on radio communications sites and office equipment. The Company recognizes rent expense on a straight-line basis over the life of the lease, which establishes deferred rent on the balance sheet. The Company considers the lease term to include the renewal periods of any lease that could cause a significant economic detriment to the Company if such lease renewal option is not exercised. Future minimum annual lease payments under these operating leases for the next five years at December 31, 2003 and thereafter are as follows:
Rental expense for operating leases was approximately $16.9 million, $15.7 million and $12.0 million for the years ended December 31, 2003, 2002 and 2001, respectively.
Purchase Obligation
In November 2003, Operating Company entered into an agreement with a third party to systematically replace many of the Company's existing minicell base stations with an equivalent quantity of current generation multi-carrier capable base stations, or modcells. Under this agreement, all existing equipment will be deinstalled and the new equipment will be installed in the same locations and will include significantly upgraded technology. Operating Company is committed to convert 285 base stations during the years 2004 through 2006 at prices fixed in the agreement. The minimum annual payments required under this agreement for such years are approximately $2.8 million in 2004, $4.2 million in 2005 and $6.0 million in 2006.
Employment Agreements
In November 2002, the Company entered into a new employment agreement with its chief executive officer. The employment agreement is for a three-year term and provides for an annual base salary of approximately $231,500, with a guaranteed minimum annual increase of 5% over the next two years. In addition to his base salary, the chief executive officer is eligible to receive bonuses in such
amounts and at such times as determined by the disinterested members of the board of directors. The employment agreement provides that the chief executive officer's employment may be terminated by the Company with or without cause, as defined in the agreement, at any time or by the chief executive officer for any reason at any time upon thirty days' written notice to the Company. If the Company terminates the employment of the executive without cause, or if the executive terminates employment for good reason, as defined in the agreement, within 30 days of termination (or such other date mutually agreed to) the Company must pay the executive a single lump sum payment in cash equal to one year's gross salary, plus all outstanding unreimbursed expenses. Following termination for a period of one year, the Company is required to maintain for the executive health, life insurance, long-term disability, dental and medical programs specified in the employment agreement. If the Company is required to make such payment within 24 months of a change of control (as defined in the employment agreement) or the executive is terminated without cause or terminates for good reason (each as defined in the employment agreement) due to, and within six months prior to, a change of control, the executive would be entitled to receive a lump sum cash payment (in lieu of any other payments), within 30 days of termination, equal to 2.99 times of the executive's annual gross salary and bonus for the year in which the change of control occurs or the immediately preceding year, whichever is higher. The executive would be entitled to health, life insurance, long-term disability, dental and medical program benefits for him and his family for the greater of 12 months or the remainder of the term as if his employment had not been terminated.
In November 2003, the Company entered into employment agreements with two executive officers, including its chief financial officer and its vice president and general counsel. The employment agreements provide that the executive officer's employment may be terminated by the Company with or without cause, as defined in the agreement, at any time or by the executive officer for any reason at any time upon thirty days' written notice to the Company. If the Company terminates the employment of the executive officer without cause, or if the executive officer terminates employment for good reason, as defined in the agreement, within 30 days of termination (or such other date mutually agreed to) the Company must pay the executive officer a single lump sum payment in cash equal to the total of one year's gross salary and the amount of the executive officer's bonus for the fiscal year preceding the year in which the termination occurs, plus all outstanding unreimbursed expenses. If the Company is required to make such payment within 24 months of a change of control (as defined in the employment agreement) or the executive officer is terminated without cause or terminates for good reason (each as defined in the employment agreement) due to, and within six months prior to, a change of control, the executive officer would be entitled to receive from the Company or the Company's successor-in-interest, as applicable, a lump sum cash payment, within 30 days of termination, equal to two times the executive officer's gross salary, excluding bonus, for the twelve-month period preceding the date of termination, plus all outstanding unreimbursed expenses, and the executive officer's outstanding stock options will terminate on the earlier of the date that is three years following the date on which the executive officer's employment is terminated or the termination date in the applicable stock option agreement. Following a termination by the Company or its successor-in-interest, if applicable, of the executive officer without cause, in connection with a change of control or otherwise, for a period of one year following termination, the Company is required to maintain for the executive officer health, life insurance, long-term disability, dental and medical program benefits to which the executive officer is then entitled.
12. DEFERRED FINANCING COSTS
In March 2000, the Company replaced a 1999 credit facility with the $250.0 million senior secured credit facility. Costs to secure the facility of approximately $7.1 million were included in deferred financing and are being amortized over the term of the facility.
In April 2000, the Company issued $300.0 million principal amount of 14% Subordinated Notes, and an amount of $6.3 million was incurred on the issuance.
In March 2001, the Company increased its senior secured credit facility from $250.0 million to $300.0 million. An amount of approximately $2.8 million was incurred in connection with the increase in the facility, and is being amortized over the term of the facility.
In July 2002, the Company amended its senior secured credit facility to modify certain covenants. An amount of approximately $1.2 million was incurred in connection with the amendment, and is being amortized over the term of the facility.
In connection with the debt-for-debt exchange in February 2003, the Company wrote off certain deferred financing costs associated with the issuance of the 14% Subordinated Notes and incurred costs which reduced the gain resulting from the exchange. In addition, the Company incurred costs of approximately $0.3 million in connection with the issuances of 14% Series B Senior Notes in the first and second quarters of 2003.
In February 2003, the Company amended its senior secured credit facility in connection with its debt-for-debt exchange and incurred financing fees of approximately $0.6 million which are being amortized over the term of the facility.
In January 2004, the Company amended its senior secured credit facility to modify certain covenants. An amount of approximately $0.4 million was incurred in connection with the amendment and will be amortized over the term of the facility.
Amortization of deferred financing charges amounted to approximately $1.8 million, $1.9 million and $1.5 million for the years ended December 31, 2003, 2002 and 2001, respectively, and was included in interest expense.
If the offering described in Note 18 (Subsequent Events) is completed, the repayment of the senior secured credit facility in connection with the offering would result in a write-off of unamortized deferred financing charges, which were approximately $7.2 million as of December 31, 2003. In addition, the redemption of the 14% Series B Senior Notes in connection with the offering would result in a write-off of unamortized debt issuance costs and unamortized debt discount for detachable warrants, which were approximately $0.3 million and approximately $3.7 million as of December 31, 2003, respectively.
13. RELATED PARTY TRANSACTIONS
On September 24, 1999, the Company entered into an agreement with an affiliate of a shareholder, LCC International, Inc., which provided radio base station network design and optimization and site acquisition services to the Company in connection with the Company's network build-out. For the year ended December 31, 2001, the Company incurred costs of approximately $13.2 million from LCC for network design and optimization and site acquisition expenses incurred during the year.
On October 28, 1999, the Company entered into an agreement with a shareholder, SpectraSite Communications Inc., that owns and operates communications towers. For the year ended December 31, 2001, the Company incurred costs of approximately $16.1 million from SpectraSite for capital expenditures and lease expenses incurred during the year. In addition, SpectraSite owed the Company approximately $1.2 million as of December 31, 2001. The amount was paid by SpectraSite in 2002.
In July 2001, the Company's board of directors authorized a $300,000 payment to the former interim chief financial officer, who is a director and a shareholder, for his services in connection with the VIA Wireless acquisition and related matters, subject to the consummation of the VIA Wireless acquisition. Following the VIA Wireless acquisition in August 2001, the payment was made during the year ended December 31, 2001.
Credit Suisse First Boston Corporation, a shareholder and holder of 86,163 warrants to purchase common stock, served as the Company's financial advisor in connection with the VIA Wireless acquisition. The Company paid CSFB approximately $2.8 million for the financial advisory services in the year ended December 31, 2001.
Effective February 20, 2002, UbiquiTel's board of directors approved an approximate $2.6 million short-term demand loan to the Company's chief executive officer. The loan was repaid in full on March 12, 2002 with accrued interest of approximately $7,000.
As described in Note 7, three directors of UbiquiTel or their affiliates participated in the Company's private placement offerings of 14% Series B Senior Notes and warrants in the first and second quarters of 2003.
14. LITIGATION
UbiquiTel is not a party to any pending legal proceedings that management believes would, if adversely determined, individually or in the aggregate, have a material adverse effect on the Company's financial condition or results of operations.
15. WHOLLY OWNED OPERATING SUBSIDIARY
UbiquiTel has fully and unconditionally guaranteed Operating Company's obligations under the 14% Subordinated Notes, the 14% Senior Notes and the 14% Series B Senior Notes (see Note 7). If the offering by Operating Company of $270.0 million in aggregate principal amount of senior notes due 2011 described in Note 18 (Subsequent Events) is completed, UbiquiTel will fully and unconditionally guarantee Operating Company's obligations under its senior notes due 2011. UbiquiTel has no independent assets or operations separate from its investment in Operating Company. UbiquiTel Leasing Company is a minor subsidiary.
16. ACQUISITION OF VIA WIRELESS LLC
On February 22, 2001, UbiquiTel entered into a merger agreement for the acquisition of VIA Wireless, a privately-held PCS affiliate of Sprint. Upon the closing of the merger agreement, as amended and restated, on August 13, 2001, VIA Wireless became a wholly owned subsidiary of UbiquiTel through a series of mergers and related transactions. In the transaction, shareholders of the members of VIA Wireless and certain employees of VIA Wireless received in the aggregate 16,400,000 shares of UbiquiTel's common stock valued at approximately $122.0 million, and UbiquiTel assumed approximately $80.1 million of debt and incurred transaction costs of approximately $10.7 million. The
total purchase price and transaction costs were approximately $212.8 million. On October 17, 2001, UbiquiTel sold the VIA Wireless California PCS licenses for $50.0 million in cash, resulting in net debt assumed in the acquisition of $30.1 million. VIA Wireless was the exclusive provider of Sprint PCS digital wireless services to the central valley of California.
UbiquiTel obtained an independent valuation of certain assets of VIA Wireless to allocate the purchase price. The result of the valuation was as follows (in thousands):
A condensed unaudited balance sheet stating the assigned values for each major asset, liability and equity account of VIA Wireless as of the date of acquisition (August 13, 2001) was as follows (in thousands):
As a result of the acquisition, the Company recorded goodwill of $27.3 million. Goodwill was not amortized after the adoption of SFAS No. 142. The subscriber base acquired was initially being amortized over 36 months, which represented the estimated average life of a subscriber in that market. Effective April 1, 2002, however, the Company changed the amortization period to 20 months as a result of an updated estimate of average subscriber life resulting from higher customer turnover in this market. The Sprint PCS management agreement is being amortized over 18 years, which approximates
the remaining life of the initial term of the Sprint PCS agreement covering the VIA Wireless service area.
The acquisition of VIA Wireless has been accounted for as a purchase and accordingly the results of VIA Wireless have been included in the consolidated financial statements of the Company from the date of acquisition. VIA Wireless was merged into Operating Company in 2003. The following unaudited pro forma financial information assumes the acquisition had occurred as of January 1, 2001:
The pro forma information is not necessarily indicative of the results that would have been reported had such acquisition actually occurred on the date specified, nor is it intended to project the Company's results of operations or financial position for any future period.
17. SUPPLEMENTARY FINANCIAL INFORMATION
UbiquiTel's selected quarterly financial results of operations (unaudited) for each quarter in the years ended December 31, 2003 and 2002 were as follows:
The sum of the quarterly per share amounts may not equal the annual per share amount due to relative changes in the weighted average number of shares used in the per share computation.
(1)Includes gain on debt retirement of approximately $39.0 million recognized in connection with the Company's debt-for-debt exchange.
(2)Includes gain on debt retirement of approximately $3.9 million in connection with the Company's open market purchases of 14% Subordinated Notes.
(3)In conjunction with the amendments to our Sprint PCS agreements, the Company resolved all previously disputed charges between us and Sprint. As a result, the Company recorded a one-time adjustment to reduce operating expenses by approximately $3.2 million.
(4)Includes a $1.3 million reduction in operating expenses related to the transition from the "collected revenue" to the "billed revenue" method with Sprint for reconciling amounts due to the Company for accounts receivable and a $1.6 million increase in depreciation expense related to the reduction of the estimated useful lives of certain minicell base stations. 18. SUBSEQUENT EVENTS
The Company announced on February 13, 2004 that its operating subsidiary, Operating Company, has priced an offering of $270.0 million in aggregate principal amount of its senior notes due 2011 in a transaction exempt from the registration requirements of the Securities Act of 1933, as amended. The senior notes will be issued at a price of 98.26% and pay interest semi-annually at an annual rate of 9.875%. If issued, UbiquiTel will fully and unconditionally guarantee Operating Company's obligations under the senior notes due 2011. Operating Company intends to complete the offering on or about February 23, 2004. No assurance can be given as of the date of the filing of this Annual Report on Form 10-K that the offering will be completed, and the completion of the offering is subject to customary conditions. If Operating Company completes the offering, the net proceeds will be used to repay and terminate its senior secured credit facility, including the repayment of $230.0 million in outstanding borrowings plus accrued interest and termination of the $47.7 million revolving line of credit, to redeem all of its outstanding 14% Series B senior discount notes due 2008 ($14.5 million outstanding principal amount) for approximately $12.5 million and to purchase $16.0 million principal value of its outstanding 14% senior discount notes due 2010 for $15.2 million.
EXHIBIT INDEX
Exhibit
Number
Description
10.45
Eighth Amendment to Credit Agreement dated as of January 23, 2004 among UbiquiTel Inc., UbiquiTel Operating Company, the financial institutions party thereto from time to time and BNP Paribas as agent.
10.46
Employment Agreement dated as of November 19, 2003 by and between UbiquiTel Inc. and James J. Volk.
10.47
Employment Agreement dated as of November 19, 2003 by and between UbiquiTel Inc. and Patricia E. Knese.
21.1
Subsidiaries of UbiquiTel Inc.
23.1
Consent of PricewaterhouseCoopers LLP relating to UbiquiTel Inc.'s Registration Statements on Form S-3 (Registration No. 333-39956), Form S-3 (Registration No. 333-68082), Form S-8 (Registration No. 333-70148), Form S-8 (Registration No. 333-84852) and Form S-3 (Registration No. 333-104705) and to UbiquiTel Operating Company's Registration Statement on Form S-3 (Registration No. 333-106418).
24.1
Powers of Attorney (included on signature pages).
31.1
Certification Pursuant to Item 601(b)(31) of Regulation S-K, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
31.2
Certification Pursuant to Item 601(b)(31) of Regulation S-K, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
32.1
Certification Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 9.06 of the Sarbanes-Oxley Act of 2002 (furnished pursuant to Item 601(b)(32) of Regulation S-K).
32.2
Certification Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 9.06 of the Sarbanes-Oxley Act of 2002 (furnished pursuant to Item 601(b)(32) of Regulation S-K).
UbiquiTel Inc. and UbiquiTel Operating Company Joint Annual Report on Form 10-K
PART I
ITEM 2. Properties
ITEM 3. Legal Proceedings
ITEM 4. Submission of Matters to a Vote of Security Holders
PART II
ITEM 5. Market for Registrant's Common Equity and Related Stockholder Matters
ITEM 6.
ITEM 6. Selected Financial Data
ITEM 7.
ITEM 7. Management's Discussion and Analysis of Financial Condition and Results of Operations
ITEM 7A.
ITEM 7A. Quantitative and Qualitative Disclosures About Market Risk
ITEM 8.
ITEM 8. Financial Statements and Supplementary Data
ITEM 9.
ITEM 9. Changes In and Disagreements With Accountants on Accounting and Financial Disclosure
ITEM 9A.
ITEM 9A. Controls and Procedures
PART III
ITEM 10.
ITEM 10. Directors and Executive Officers
ITEM 11.
ITEM 11. Executive Compensation
ITEM 12.
ITEM 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
ITEM 13.
ITEM 13. Certain Relationships and Related Transactions
ITEM 14.
ITEM 14. Principal Accountant Fees and Services
PART IV
ITEM 15.
ITEM 15. Exhibits, Financial Statement Schedules, and Reports on Form 8-K
SIGNATURES
POWER OF ATTORNEY
SIGNATURES
POWER OF ATTORNEY
UBIQUITEL INC. AND SUBSIDIARIES INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
REPORT OF INDEPENDENT AUDITORS
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
UbiquiTel Inc. and Subsidiaries Consolidated Balance Sheets (In Thousands, Except Per Share Data)
UbiquiTel Inc. and Subsidiaries Consolidated Statements of Operations (In Thousands, Except Per Share Data)
UbiquiTel Inc. and Subsidiaries Consolidated Statements of Cash Flows (In Thousands)
UbiquiTel Inc. and Subsidiaries Consolidated Statements of Stockholders' Equity (In Thousands)
UbiquiTel Inc. and Subsidiaries Notes to Consolidated Financial Statements
EXHIBIT INDEX