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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-Q
(Mark One)
/X/ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (D) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1997
or
/ / TRANSACTION REPORT PURSUANT TO SECTION 13 OR 15 (D) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
Commission File Number 0-18195
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U.S. LONG DISTANCE CORP.
(Exact name of registrant as specified in its charter)
DELAWARE 74-2522103
(State or other jurisdiction of (IRS Employer ID No.)
incorporation or organization)
9311 SAN PEDRO, SUITE 100 78216
SAN ANTONIO, TEXAS (Zip code)
(Address of principal executive offices)
(210) 525-9009
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15 (d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. /X/ Yes / / No
Indicated below is the number of shares outstanding of the registrant's
only class of common stock at April 30, 1997:
TITLE OF CLASS NUMBER OF SHARES
-------------- OUTSTANDING
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Common Stock, $0.01 par value 15,482,159
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U.S. LONG DISTANCE CORP. AND SUBSIDIARIES
QUARTERLY REPORT ON FORM 10-Q
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 1997
INDEX
PAGE
----
PART I FINANCIAL INFORMATION
Item 1. Interim Consolidated Financial Statements (Unaudited)
Consolidated Balance Sheets - March 31, 1997 and September 30,
1996.............................................................. 3
Consolidated Statements of Income - For the Three and Six Months
Ended March 31, 1997 and 1996..................................... 4
Consolidated Statements of Cash Flows - For the Six Months Ended
March 31, 1997 and 1996........................................... 5
Notes to Interim Consolidated Financial Statements................... 6
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations................................................ 10
PART II OTHER INFORMATION
Item 1. Legal Proceedings.................................................... 20
Item 4. Submission of Matters to a Vote of Security Holders.................. 20
Item 6. Exhibits and Reports on Form 8-K..................................... 21
(a) Exhibits................................................ 21
(b) Current Reports on Form 8-K............................. 21
SIGNATURES.................................................................. 22
2
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PART I - FINANCIAL INFORMATION
ITEM 1. INTERIM CONSOLIDATED FINANCIAL STATEMENTS
U.S. LONG DISTANCE CORP. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT PER SHARE AND SHARE AMOUNTS)
(UNAUDITED)
ASSETS
<TABLE>
MARCH 31, SEPTEMBER 30,
1997 1996
-------- -------------
<S> <C> <C>
Current assets:
Cash and cash equivalents.................................................... $ 8,766 $ 8,842
Accounts receivable, net..................................................... 35,528 35,867
Prepaids and other........................................................... 7,518 6,002
-------- -------
Total current assets.................................................... 51,812 50,711
Property and equipment, net.................................................. 33,787 29,577
Equipment held under capital leases, net..................................... 131 282
Other assets:
Excess of cost over net assets acquired, net................................. 13,519 13,804
Other assets, net............................................................ 5,392 4,870
-------- -------
Total assets............................................................ $104,641 $99,244
-------- -------
-------- -------
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Trade accounts payable....................................................... $ 15,160 $10,909
Accrued liabilities.......................................................... 8,346 13,581
Current portion of long-term debt............................................ 6,125 5,854
Current portion of obligations under capital leases.......................... 160 294
-------- -------
Total current liabilities............................................... 29,791 30,638
Other liabilities............................................................ 551 52
Long-term debt, less current portion......................................... 11,824 10,146
Obligations under capital leases, less current portion....................... 83 143
-------- -------
Total liabilities....................................................... 42,249 40,979
Commitments and contingencies (See Notes 6 and 8)
Stockholders' equity:
Preferred stock, $0.01 par value, 10,000,000 shares authorized; no shares
issued or outstanding at March 31, 1997 or September 30, 1996.............. 0 0
Common stock, $0.01 par value, 50,000,000 shares authorized; 15,580,809 and
15,255,977 shares issued and 15,376,708 and 15,051,876 shares outstanding
at March 31, 1997 and September 30, 1996, respectively..................... 156 153
Additional paid-in capital................................................... 56,350 54,554
Retained earnings............................................................ 7,793 5,465
Treasury stock............................................................... (1,907) (1,907)
-------- -------
Total stockholders' equity.............................................. 62,392 58,265
-------- -------
Total liabilities and stockholders' equity.............................. $104,641 $99,244
-------- -------
-------- -------
The accompanying notes are an integral part of these consolidated financial statements.
</TABLE>
3
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U.S. LONG DISTANCE CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
THREE MONTHS ENDED SIX MONTHS ENDED
MARCH 31, MARCH 31,
------------------ ----------------
1997 1996 1997 1996
------- ------- ------- -------
<S> <C> <C> <C> <C>
Operating revenues:
Direct dial long distance services.................................. $39,732 $29,046 $75,107 $54,080
Operator services................................................... 13,240 14,609 26,612 29,283
Local services...................................................... 196 0 196 0
------- ------- ------- -------
Total operating revenues...................................... 53,168 43,655 101,915 83,363
Cost of services...................................................... 35,516 28,875 67,497 55,261
------- ------- ------- -------
Gross profit........................................................ 17,652 14,780 34,418 28,102
Selling, general and administrative expense........................... 12,423 12,929 24,354 24,311
Depreciation and amortization expense................................. 2,704 2,938 5,347 5,709
------- ------- ------- -------
Income (loss) from continuing operations............................ 2,525 (1,087) 4,717 (1,918)
Other income (expense):
Interest income..................................................... 129 200 326 422
Interest expense.................................................... (333) (315) (683) (691)
Other, net.......................................................... 67 (100) 6 (132)
------- ------- ------- -------
Total other expense................................................. (137) (215) (351) (401)
Income (loss) from continuing operations before income tax benefit
(provision)......................................................... 2,388 (1,302) 4,366 (2,319)
Income tax benefit (provision)........................................ (943) 224 (1,768) 395
------- ------- ------- -------
Net income (loss) from continuing operations.......................... 1,445 (1,078) 2,598 (1,924)
Discontinued operations (See Notes 1 and 3):
Income from discontinued operations, net of income taxes of $3,078 and
$5,497, three and six months ended March 31, 1996, respectively..... 0 5,022 0 8,970
------- ------- ------- -------
Net income............................................................ $ 1,445 $ 3,944 $ 2,598 $ 7,046
------- ------- ------- -------
------- ------- ------- -------
Net income (loss) per common share:
Continuing operations............................................... $ 0.09 $ (0.07) $ 0.16 $ (0.13)
Discontinued operations............................................. 0.00 0.33 0.00 0.60
------- ------- ------- -------
Net income per common share......................................... $ 0.09 $ 0.26 $ 0.16 $ 0.47
------- ------- ------- -------
------- ------- ------- -------
Weighted average common shares and common share equivalents
outstanding......................................................... 16,423 15,189 16,286 15,021
The accompanying notes are an integral part of these consolidated financial statements.
</TABLE>
4
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U.S. LONG DISTANCE CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
SIX MONTHS ENDED
MARCH 31,
---------------------
1997 1996
------- --------
<S> <C> <C>
Cash flows from operating activities:
Net income (1997), net loss from continuing operations (1996)......... $ 2,598 $(1,924)
Adjustments to reconcile net income (1997), net loss from continuing
operations (1996) to net cash provided by operating activities:
Depreciation and amortization.................................... 5,347 5,709
Loss on disposition of equipment................................. 33 206
Provision for losses on accounts receivable...................... 3,960 3,664
Deferred compensation............................................ 0 245
Changes in operating assets and liabilities:
Increase in accounts receivable............................. (3,485) (7,825)
Decrease (increase) in prepaids and other................... (2,760) 732
Increase in accounts payable................................ 4,168 6,161
Increase (decrease) in accrued liabilities.................. (4,068) 1,293
Increase (decrease) in other liabilities.................... 499 (175)
------- -------
Net cash provided by operating activities............................... 6,292 8,086
------- -------
Net cash used in discontinued operations................................ 0 (4,016)
Cash flows from investing activities:
Purchases of property and equipment................................... (7,801) (3,522)
Proceeds from sale of assets.......................................... 0 43
Other investing activities............................................ (964) 1,382
------- -------
Net cash used in investing activities................................... (8,765) (2,097)
------- -------
Cash flows from financing activities:
Proceeds from issuance of debt........................................ 5,452 0
Payments on debt...................................................... (3,504) (3,156)
Payments on capital leases............................................ (194) (189)
Proceeds from issuance of common stock................................ 643 1,372
------- -------
Net cash provided by (used in) financing activities..................... 2,397 (1,973)
------- -------
Net decrease in cash and cash equivalents............................... (76) 0
Cash and cash equivalents, beginning of period.......................... 8,842 0
------- -------
Cash and cash equivalents, end of period................................ $ 8,766 $ 0
------- -------
------- -------
The accompanying notes are an integral part of these consolidated financial statements.
</TABLE>
5
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U.S. LONG DISTANCE CORP. AND SUBSIDIARIES
NOTES TO INTERIM CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 1. PRINCIPLES OF CONSOLIDATION AND BASIS OF PRESENTATION
The interim consolidated financial statements included herein have been
prepared by U.S. Long Distance Corp. ("USLD") and subsidiaries (collectively
referred to as the "Company"), without audit, pursuant to the rules and
regulations of the Securities and Exchange Commission ("SEC"). All
adjustments have been made to the accompanying interim consolidated financial
statements which are, in the opinion of the Company's management, necessary
for a fair presentation of the Company's operating results. All adjustments
are of a normal recurring nature. Certain information and footnote
disclosures normally included in financial statements prepared in accordance
with generally accepted accounting principles have been condensed or omitted
pursuant to such rules and regulations. It is recommended that these interim
consolidated financial statements be read in conjunction with the
consolidated financial statements and the notes thereto included in the
Company's Annual Report on Form 10-K for the fiscal year ended September 30,
1996. Certain prior period amounts have been reclassified for comparative
purposes and to reflect the spin-off discussed in Note 3 below.
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
The Company recognizes revenue from its direct dial long distance,
operator and local services as such services are performed.
NOTE 2. RECENT ACCOUNTING PRONOUNCEMENTS
In June 1996, the Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standards ("SFAS") No. 125 "Accounting for
Transfers and Servicing of Financial Assets and Extinguishments of
Liabilities." SFAS No. 125 provides accounting and reporting standards for,
among other things, the transfer and servicing of financial assets, such as
factoring receivables with recourse. SFAS No. 125 is effective for transfers
and servicing of financial assets occurring after December 31, 1996, and is
to be applied prospectively. Earlier or retroactive application is not
permitted. In December 1996, the FASB issued SFAS No. 127, "Deferral of the
Effective Date of Certain Provisions of SFAS No. 125." SFAS No. 127 amends
the effective date for certain provisions of SFAS No. 125 to December 31,
1997. Management of the Company does not anticipate the adoption of SFAS No.
125 will have a material impact on the Company's financial position or
results of operations.
In February 1997, the FASB issued SFAS No. 128, "Earnings Per Share,"
which establishes standards for computing and presenting earnings per share
("EPS") for entities with publicly held common stock or potential common
stock. SFAS No. 128 simplifies the standards for computing EPS previously
found in Accounting Principles Board Opinion No. 15, "Earnings Per Share",
and makes them comparable to international EPS standards. It replaces the
presentation of primary EPS with a presentation of basic EPS, which excludes
dilution. It also requires dual presentation of basic and diluted EPS on the
face of the income statement for all entities with complex capital
structures. SFAS No. 128 is effective for fiscal years ending after December
15, 1997 and early adoption is not permitted. Had SFAS No. 128 been applied,
pro forma basic EPS would have been $0.09 and $0.17 for the three and six
months ended March 31, 1997, respectively, and $0.27 and $0.49 for the three
and six months ended March 31, 1996, respectively. Pro forma diluted EPS
would have been $0.09 and $0.16 for the three and six months ended March 31,
1997, respectively, and $0.26 and $0.47 for the three and six months ended
March 31, 1996, respectively. Management of the Company does not anticipate
the adoption of SFAS No. 128 will have a material impact on the Company's
financial position or results of operations.
6
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NOTE 3. DISCONTINUED OPERATIONS
On August 2, 1996, the Company completed the spin-off of its subsidiary
engaged in the billing clearinghouse and information management services
business, Billing Information Concepts Corp. ("Billing"). The spin-off has
been accounted for as a discontinued operation and, accordingly, the Company
restated its consolidated financial statements for all periods presented
prior to that date in accordance with Accounting Principles Board Opinion No.
30. The spin-off was a tax-free distribution of 100% of the common stock of
Billing to the Company's stockholders.
Revenues of the discontinued operations of Billing were $26.9 million
and $50.3 million for the three and six-month periods ended March 31, 1996,
respectively. Net income of the discontinued operations of Billing was $5.0
million and $9.0 million for the three and six-month periods ended March 31,
1996, respectively.
NOTE 4. STOCKHOLDERS' EQUITY
During the six months ended March 31, 1997, employees of the Company
exercised stock options to purchase an aggregate of 165,792 common shares at
exercise prices ranging from $0.78 to $4.76 per share, resulting in aggregate
consideration to the Company of approximately $424,000 in cash. In addition,
the Company issued an aggregate of 59,040 common shares during the six months
ended March 31, 1997 to participants in the U.S. Long Distance Corp. Employee
Stock Purchase Plan, resulting in aggregate consideration to the Company of
approximately $219,000 in cash.
NOTE 5. STATEMENTS OF CASH FLOWS
Cash payments and non-cash activities during the periods indicated were
as follows:
SIX MONTHS ENDED
MARCH 31,
----------------
1997 1996
------ ------
(IN THOUSANDS)
Cash payments for income taxes................................. $1,257 $4,533
Cash payments for interest..................................... 683 674
Non-cash investing and financing activities:
Assets acquired in connection with pooling of interests..... 110 0
Liabilities assumed in connection with pooling of interests. 118 0
Common stock issued in connection with pooling of interests. 248 0
Tax benefit of options exercised............................ 909 0
Return of escrowed treasury stock........................... 0 118
NOTE 6. INCOME TAXES
The Company has been notified by the Internal Revenue Service ("IRS")
that a fiscal 1992 transaction between a wholly owned foreign subsidiary
(Mega Plus Dialing, Inc.) and its U.S. subsidiary (Billing Information
Concepts, Inc., formerly Zero Plus Dialing, Inc.) is proposed to be treated
differently by the IRS than originally characterized by the Company. The IRS
district office has issued a report that proposed an assessment of taxes,
penalties and interest. The assessment has been appealed to the appellate
division of the IRS. The Company and its tax counsel believe the possibility
that the IRS will prevail in this matter is remote. Consequently, no accrual
for this potential liability or any associated taxes, interest or penalties
has been made. At the present time, management of the Company does not
anticipate this matter will have a material impact on the Company's financial
position or results of operations.
NOTE 7. RELATED PARTY TRANSACTIONS
The Company and Billing share a common individual on their respective
boards of directors. Therefore, the companies are considered related parties
for financial disclosure purposes. At March 31, 1997 and September 30, 1996,
the Company had accounts receivable from Billing of $237,000 and $1.3
million, as well as notes receivable of $902,000 and $1.0 million,
respectively. In addition, the Company had accounts payable to Billing of
$971,000 and $1.1 million at
7
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March 31, 1997 and September 30, 1996, respectively. Operating revenues
recognized from Billing were $621,000 and $948,000 for the three-month
periods ended March 31, 1997 and 1996, respectively. Operating revenues
recognized from Billing were $1.6 million and $1.6 million for the six-month
periods ended March 31, 1997 and 1996, respectively. In addition, the Company
incurred operating expenses related to billing and collection fee charges
from Billing of $1.3 million and $1.2 million for the three-month periods
ended March 31, 1997 and 1996, respectively. Operating expenses related to
billing and collection fee charges from Billing of $2.5 million and $2.6
million were incurred for the six-month periods ended March 31, 1997 and
1996, respectively.
Historically, the Company has obtained financing for capital
expenditures through term debt agreements and capital lease agreements that
were guaranteed and cross-collateralized by the Company and Billing. These
debt agreements were negotiated based on the strength of the consolidated
financial statements, earnings and cash flow of the consolidated group. Most
of these debt agreements were secured by the assets of all the subsidiaries
within the consolidated group. The Company has received from certain lenders
loan agreement amendments or separate loan agreements whereby the subject
indebtedness will be secured by only the Company's assets. In other cases,
the existing guarantees and security arrangements between the Company and
Billing will remain in place for the duration of the facility. In this
regard, the Company has agreed to pay Billing a credit support fee of 1% of
the average annual outstanding balance.
NOTE 8. COMMITMENTS AND CONTINGENCIES
The Company is involved in various claims, legal actions and regulatory
proceedings arising in the ordinary course of business. The Company believes
it is unlikely that the final outcome of any of the claims or proceedings to
which the Company is a party would have a material adverse effect on the
Company's financial position or results of operations; however, due to the
inherent uncertainty of litigation, there can be no assurance that the
resolution of any particular claim or proceeding would not have a material
adverse effect on the Company's results of operations for the fiscal period
in which such resolution occurred.
NOTE 9. REGULATORY MATTERS
BILLED PARTY PREFERENCE
In April 1992, the FCC tentatively proposed adopting a "Billed Party
Preference" ("BPP") system for automatically routing operator assisted calls
to each caller's pre-selected carrier, fundamentally changing the nature of
the operator services industry. Comments were requested by the FCC during
1992 and again in 1994. In each case, industry participants overwhelmingly
opposed the idea as too costly, relative to the perceived benefits of such a
system.
On March 9, 1995, the FCC requested industry comment on two proposals it
had recently received relative to the BPP proceeding. In an ex-parte
petition, the National Association of Attorney's General ("NAAG") suggested
that the FCC modify its current branding requirement such that operator
service providers ("OSPs") would be required to announce at the beginning of
each call more specific information for obtaining access to alternate
carriers (the "NAAG Petition"). Another petition filed by a coalition of
industry members, including most of the RBOCs, two competitive access
providers, the American Public Communications Counsel ("APCC") and the
Competitive Telecommunications Association ("CompTel"), recommended that the
FCC impose certain rate thresholds for interstate operator assisted services,
which the FCC would presume to be reasonable, and any OSP electing to charge
rates higher than such threshold would be required to first prove to the FCC
that such rates are justified based upon the underlying costs of the service
(the "APCC Rate Cap Proposal"). The NAAG Petition was proposed to remain in
effect until such time that BPP is adopted and fully implemented. The APCC
Rate Cap Proposal was proposed to obviate the need to consider any further
action regarding BPP.
Subsequently, in June 1996, the FCC issued a Second Further Notice of
Proposed Rulemaking ("SFNPRM") in this proceeding. In it, the FCC proposed
adopting a rule which would require OSPs to announce the rates for certain
calls to the billed party prior to connecting the call, thereby allowing the
billed party to disconnect such call without incurring any unwanted charges.
In 1996, the FCC released its Second Request for Comment in the SFNPRM,
soliciting technical and other administrative details to support the proposed
announcement requirement. Most commentors objected to the
8
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discriminatory nature of the proposal, which would have some carriers
announcing rates while others would not. If any of these proposals are
adopted by the FCC, the Company's operator service traffic could be
materially adversely affected.
MFJ LEGISLATION
On February 8, 1996, President Clinton signed the Telecommunications Act
of 1996 into law. The new law allows the RBOCs to petition their respective
"in-region" state regulatory agencies to seek authority from the FCC to allow
the applicant RBOC to provide long distance services. To obtain this
authority, each state agency is required to certify to the FCC that the
applicant RBOC has satisfied a legislative "checklist" that outlines the
steps required for an RBOC to open its network to competition on a local
basis. These steps include the provision of competitive network
interconnection, unbundled access to network elements and other necessary
access to poles, ducts, conduits and rights-of-way. Furthermore, applicant
RBOCs must provide non-discriminatory access to white pages listings and
telephone number assignments. Applicant RBOCs must provide local number
portability, toll dialing parity and local service resale. The FCC is
required to consult with the Department of Justice ("DOJ") to assist in
determining if an applicant RBOC's entry into the long distance business
violates any antitrust standards the DOJ considers appropriate. Ninety days
after receiving such an application, the FCC is required to render its
decision. RBOCs are required to establish separate subsidiaries through which
they could first offer in-region long distance services. RBOCs may provide
out-of-region long distance services subject to existing laws and regulations
governing long distance communications.
To date, no RBOC has been granted authority for in-region interLATA
services, because the provisions set forth above have not been satisfied by
any RBOC. However, many entities, including the Company, have reached
interconnection agreements with one or more of the RBOCs to date, and many
states have adopted rules governing local competition. It is reasonable to
expect that the conditions for RBOC entry will be met in the near future, and
carriers in the interLATA long distance business today, such as the Company,
will encounter new, formidable competition.
REGULATORY RATE PROCEEDINGS
During the course of normal operations, a regulated company may at any
time come under specific scrutiny with regard to any of its rates, terms or
conditions by which such service is rendered by a state or federal regulatory
agency charged with such oversight responsibility, or by an attorney general
or other jurisdictional consumer officials. In such cases, a regulated
company can be required to, among other things, provide cost justification
for the charges it imposes on some or all of its services, or to address
perceived consumer inequities. After review of such justification, the
regulatory agency, generally, has the authority to require a carrier to
modify the process by which such services are rendered or to effect changes
to its applicable rate structure. Consumer officials and attorneys general
can pursue civil action if their concerns are not adequately addressed by the
carrier. The Company operates in several jurisdictions in which its tariffs
or services may, from time to time, fall under such scrutiny at the
discretion of the governing regulatory agency or other officials. The
Company could therefore be required, as a result of such an investigation and
subsequent proceeding, to implement changes in its rate structure, which
could ultimately affect its revenues. The Company cannot predict whether or
not any such requirement may be imposed in any particular jurisdiction.
9
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
FORWARD-LOOKING STATEMENTS - CAUTIONARY STATEMENTS
THIS QUARTERLY REPORT ON FORM 10-Q CONTAINS CERTAIN "FORWARD-LOOKING
STATEMENTS" WITHIN THE MEANING OF SECTION 27A OF THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND SECTION 21E OF THE SECURITIES EXCHANGE
ACT OF 1934, AS AMENDED (THE "EXCHANGE ACT"). SPECIFICALLY, ALL STATEMENTS
OTHER THAN STATEMENTS OF HISTORICAL FACTS INCLUDED IN THIS REPORT, INCLUDING
THE OUTLOOK, REGARDING THE COMPANY'S FINANCIAL POSITION, BUSINESS STRATEGY
AND PLANS AND OBJECTIVES OF MANAGEMENT OF THE COMPANY FOR FUTURE OPERATIONS
ARE FORWARD-LOOKING STATEMENTS. THESE FORWARD-LOOKING STATEMENTS ARE BASED
ON THE BELIEFS OF THE COMPANY'S MANAGEMENT, AS WELL AS ASSUMPTIONS MADE BY
AND INFORMATION CURRENTLY AVAILABLE TO THE COMPANY'S MANAGEMENT. WHEN USED IN
THIS REPORT, THE WORDS "ANTICIPATE," "BELIEVE," "COULD," "ESTIMATE," "EXPECT"
AND "INTEND" AND WORDS OR PHRASES OF SIMILAR IMPORT, AS THEY RELATE TO THE
COMPANY OR COMPANY'S MANAGEMENT, ARE INTENDED TO IDENTIFY FORWARD-LOOKING
STATEMENTS. SUCH STATEMENTS REFLECT THE CURRENT VIEW OF THE COMPANY WITH
RESPECT TO FUTURE EVENTS AND ARE SUBJECT TO CERTAIN RISKS, UNCERTAINTIES AND
ASSUMPTIONS RELATED TO CERTAIN FACTORS INCLUDING, WITHOUT LIMITATIONS,
COMPETITIVE FACTORS, GENERAL ECONOMIC CONDITIONS, CUSTOMER RELATIONS,
RELATIONSHIPS WITH VENDORS, THE INTEREST RATE ENVIRONMENT, GOVERNMENTAL
REGULATION AND SUPERVISION, SEASONALITY, THE OPERATION OF THE COMPANY'S
NETWORKS, TRANSMISSION COSTS, PRODUCT INTRODUCTIONS AND ACCEPTANCE,
TECHNOLOGICAL CHANGE, CHANGES IN INDUSTRY PRACTICES, ONE-TIME EVENTS AND
OTHER FACTORS DESCRIBED HEREIN ("CAUTIONARY STATEMENTS"). ALTHOUGH THE
COMPANY BELIEVES THAT THE EXPECTATIONS ARE REASONABLE, IT CAN GIVE NO
ASSURANCE THAT SUCH EXPECTATIONS WILL PROVE TO BE CORRECT. BASED UPON
CHANGING CONDITIONS, SHOULD ANY ONE OR MORE OF THESE RISKS OR UNCERTAINTIES
MATERIALIZE, OR SHOULD ANY UNDERLYING ASSUMPTIONS PROVE INCORRECT, ACTUAL
RESULTS MAY VARY MATERIALLY FROM THOSE DESCRIBED HEREIN AS ANTICIPATED,
BELIEVED, ESTIMATED, EXPECTED OR INTENDED. ALL SUBSEQUENT WRITTEN AND ORAL
FORWARD-LOOKING STATEMENTS ATTRIBUTABLE TO THE COMPANY OR PERSONS ACTING ON
ITS BEHALF ARE EXPRESSLY QUALIFIED IN THEIR ENTIRETY BY THE APPLICABLE
CAUTIONARY STATEMENTS.
GENERAL
The following is a discussion of the consolidated financial condition
and results of operations of the Company for the three and six-month periods
ended March 31, 1997 and 1996. It should be read in conjunction with the
Interim Consolidated Financial Statements of the Company, the Notes thereto
and other financial information included elsewhere in this report. For
purposes of the following discussion, references to year periods refer to the
Company's fiscal year ended September 30 and references to quarterly periods
refer to the Company's fiscal quarter ended March 31.
On July 10, 1996, the Company's Board of Directors approved a plan to
spin off the Company's Billing Group Business as a separate public company.
To effect the spin-off, the Board approved the distribution of the
outstanding shares of common stock of its wholly owned subsidiary that owned
and operated the Billing Group Business, Billing, to the Company's
stockholders. The distribution was completed on August 2, 1996.
The spin-off has been accounted for as a discontinued operation, and
accordingly, the Company restated its consolidated financial statements for
all periods presented prior to that date in accordance with Accounting
Principles Board Opinion No. 30. The unaudited Consolidated Pro Forma
Statements of Income for the three and six-month periods ended March 31, 1996
are also included and discussed in a separate section below.
OVERVIEW
Revenues increased 22% in the second quarter of 1997 to $53.1 million
from $43.7 million in the second quarter of 1996. Revenues increased 22% in
the six-month period ended March 31, 1997, compared to the corresponding
period of 1996. The Company's gross profit margin was 33.2% and 33.8% during
the quarter and six months ended March 31, 1997, respectively, compared to
33.9% and 33.7% during the same periods of 1996.
The Company's selling, general and administrative ("SG&A") expenses as a
percentage of revenues in the quarter ended March 31, 1997 decreased to 23.4%
from 29.6% in the quarter ended March 31, 1996. SG&A expenses as a percentage
of revenues were 23.9% in the first six months of fiscal 1997 compared to
29.2% in the corresponding period of 1996. This decrease was primarily the
result of tighter expense controls and increased efficiencies. Depreciation
and
10
<PAGE>
amortization expenses as a percentage of revenues decreased to 5.1% and 5.2%
during the quarter and six months ended March 31, 1997, respectively, from
6.7% and 6.8% during the same periods of 1996. Income from continuing
operations of $2.5 million was reported for the quarter ended March 31, 1997,
compared to a loss of $1.1 million during the same quarter of the prior year.
For the first six months of fiscal 1997, income from continuing operations
was $4.7 million compared to a loss of $1.9 million during the same period of
the prior year.
RESULTS OF OPERATIONS
The following table presents certain items in the Consolidated
Statements of Income as a percentage of total revenues for the three and
six-month periods ended March 31, 1997 and 1996:
THREE MONTHS ENDED SIX MONTHS ENDED
MARCH 31, MARCH 31,
------------------ ----------------
1997 1996 1997 1996
------ ------ ------ ------
Operating revenues:
Direct dial long distance services....... 74.7% 66.5% 73.7% 64.9%
Operator services........................ 24.9 33.5 26.1 35.1
Local services........................... 0.4 0.0 0.2 0.0
----- ----- ----- -----
Total operating revenues.................100.0 100.0 100.0 100.0
Operating expenses:
Cost of services......................... 66.8 66.1 66.2 66.3
Selling, general and administrative...... 23.4 29.6 23.9 29.2
Depreciation and amortization............ 5.1 6.7 5.2 6.8
----- ----- ----- -----
Income (loss) from continuing operations. 4.7% (2.4)% 4.7% (2.3)%
----- ----- ----- -----
----- ----- ----- -----
THREE MONTHS ENDED MARCH 31, 1997 COMPARED TO THREE MONTHS ENDED MARCH 31, 1996
OPERATING REVENUES
Revenues increased 22% in the second quarter of 1997 to $53.1 million
from $43.7 million in the second quarter of 1996. Growth in direct dial long
distance services revenue accounted for $10.7 million of the total increase
in revenues while operator services revenues decreased by $1.4 million.
DIRECT DIAL LONG DISTANCE SERVICES. Direct dial long distance services
revenue increased 37% to $39.7 million in the second quarter of 1997 compared
to $29.0 million in the second quarter of 1996. The increase in revenue is
primarily attributable to growth in the number of customers serviced.
OPERATOR SERVICES. Operator services revenue was $13.2 million in the
second quarter of 1997 compared to $14.6 million in the second quarter of
1996. The Company processed 3.6 million operator services calls in the second
quarter of 1997 compared to 4.2 million in the second quarter of 1996. The
Company serviced an average of approximately 64,200 pay telephones and
142,000 hospitality rooms per month for the quarter ended March 31, 1997,
compared to an average of approximately 67,500 pay telephones and 121,100
hospitality rooms per month for the quarter ended March 31, 1996. The
decrease in revenue is principally attributable to the decrease in volume of
operator services calls. The decrease in call volume is primarily
attributable to an increasing awareness on the part of the consumer of the
ability to select a carrier of choice by dialing access codes of other
carriers ("dial-around").
LOCAL SERVICES. Local service revenue was $196,000 in the second
quarter of 1997 compared to $0 in the second quarter of 1996. The Company
entered the local service market in Texas during the second quarter of 1997,
and was providing local resale service to approximately 5,000 privately owned
pay telephones in Texas at March 31, 1997.
OPERATING EXPENSES
COST OF SERVICES. The gross profit margin of 33.2% reported for the
quarter ended March 31, 1997 decreased from 33.9% achieved in the comparable
prior year quarter. This decrease is due primarily to an increase in the
direct dial long distance services revenues as a percentage of total revenue.
Such revenues have a lower gross margin than the operator services revenue
and accounted for 74.7% of the Company's total revenues for the second
quarter of 1997 compared to
11
<PAGE>
66.5% for the corresponding quarter of 1996. Additional reoccurring network
fixed costs associated with the Company's newly installed Atlanta switch also
contributed to the decrease. The switch was installed during the second
quarter of 1997. Although management continues to undertake measures to
improve gross profit margins, continued pricing pressures and the impact of
regulatory issues could pressure future gross profit margins.
SELLING, GENERAL AND ADMINISTRATIVE. SG&A expenses for the second
quarter of 1997 were $12.4 million, representing 23.4% of revenues, compared
to $12.9 million in the second quarter of 1996, or 29.6% of revenues. SG&A
expenses decreased $506,000, or 4.0%, compared to the second quarter of 1996.
SG&A expenses as a percentage of revenues have continued to decrease as a
result of tighter expense controls and efforts to streamline the Company's
operations.
DEPRECIATION AND AMORTIZATION. Depreciation and amortization expense
was $2.7 million in the second quarter of 1997, compared to $2.9 million in
the second quarter of 1996. As a percent of revenues, depreciation and
amortization expense declined to 5.1% in the second quarter of 1997 from 6.7%
in the prior year quarter. This decrease is partially attributable to the
increase in revenues from the prior year quarter. In addition, depreciation
and amortization expense decreased $234,000 compared to the second quarter of
1996. This decrease is primarily attributable to the $1.8 million write-off
of certain computer equipment, customer lists and goodwill as part of a
fourth quarter fiscal 1996 restructuring charge.
INCOME (LOSS) FROM CONTINUING OPERATIONS
Income from continuing operations in the second quarter of 1997
increased to $2.5 million for the second quarter of 1997, compared to a loss
of $1.1 million in the second quarter of 1996. The continued improvement in
operations is primarily attributable to the increase in revenues and the
decrease in SG&A expenses as a percentage of revenues, both of which are
discussed above.
OTHER EXPENSE, NET
Net other expense decreased to $137,000 in the second quarter of 1997
from $215,000 in the second quarter of 1996. This decrease is primarily
attributable to other miscellaneous income recognized in the second quarter
of 1997.
INCOME TAXES
The Company's effective tax rate is higher than the federal statutory
rate due to the addition of state income taxes and certain deductions taken
for financial reporting purposes which are not deductible for federal income
tax purposes. The effective tax rate increased to 39.5% in the second quarter
of 1997 from 17.2% in the second quarter of 1996 due to the graduated federal
income tax rate structure.
NET INCOME
The Company reported net income of $1.4 million in the second quarter of
1997 compared to net income of $3.9 million in the second quarter of 1996.
This decrease is attributable to the spin-off of Billing, which provided $5.0
million of net income from discontinued operations in the second quarter of
1996.
SIX MONTHS ENDED MARCH 31, 1997 COMPARED TO SIX MONTHS ENDED MARCH 31, 1996
OPERATING REVENUES
Revenues increased 22% in the first six months of 1997 to $101.9 million
from $83.4 million in the first six months of 1996. Growth in direct dial
long distance services revenue accounted for $21.0 million of the total
increase in revenues while operator services revenue decreased by $2.7
million.
DIRECT DIAL LONG DISTANCE SERVICES. Direct dial long distance services
revenue increased 39% to $75.1 million in the first six months of 1997
compared to $54.1 million in the first six months of 1996. The increase in
revenue is primarily attributable to growth in the number of customers
serviced.
OPERATOR SERVICES. Operator services revenue was $26.6 million in the
first six months of 1997 compared to $29.3 million in the first six months of
1996. The Company processed 7.2 million operator services calls in the first
six months of 1997 compared to 8.5 million in the first six months of 1996.
The Company serviced an average of approximately 63,500 pay telephones and
140,300 hospitality rooms per month for the six months ended March 31, 1997,
compared to an average
12
<PAGE>
of approximately 66,800 pay telephones and 126,400 hospitality rooms per
month for the six months ended March 31, 1996. The decrease in revenue is
principally attributable to the decrease in volume of operator services
calls. The decrease in call volume is primarily attributable to an increasing
awareness on the part of the consumer of the ability to select a carrier of
choice by dialing access codes of other carriers ("dial-around").
LOCAL SERVICES. Local service revenue was $196,000 in the first six
months of 1997 compared to $0 in the first six months of 1996. The Company
entered the local service market in Texas during the second quarter of 1997,
and was providing local resale service to approximately 5,000 privately owned
pay telephones in Texas at March 31, 1997.
OPERATING EXPENSES
COST OF SERVICES. The gross profit margin of 33.8% reported for the six
months ended March 31, 1997 increased slightly from 33.7% achieved in the
comparable prior year period. This increase is due primarily to improved
direct dial long distance and operator services gross margins. The direct
dial and operator services margins have increased primarily as a result of
continued improvements in networking efficiencies and reductions in
transmission costs. However, this increase was virtually offset by an
increase in the direct dial long distance services revenues as a percentage
of total revenue. Such revenues have a lower gross margin than the operator
services revenue and accounted for 73.7% of the Company's total revenues for
the first six months of 1997 compared to 64.9% for the corresponding six
months of 1996. Additional reoccurring network fixed costs associated with
the Company's newly installed Atlanta switch also impacted the margin. The
switch was installed during the second quarter of 1997. Although management
continues to undertake measures to improve gross profit margins, continued
pricing pressures and the impact of regulatory issues could pressure future
gross profit margins.
SELLING, GENERAL AND ADMINISTRATIVE. SG&A expenses for the first six
months of 1997 were $24.4 million, representing 23.9% of revenues, compared
to $24.3 million in the first six months of 1996, or 29.2% of revenues. SG&A
expenses as a percentage of revenues have continued to decrease as a result
of tighter expense controls and efforts to streamline the Company's
operations.
DEPRECIATION AND AMORTIZATION. Depreciation and amortization expense
was $5.3 million in the first six months of 1997, compared to $5.7 million
in the first six months of 1996. As a percent of revenues, depreciation and
amortization expense declined to 5.2% in the first six months of 1997 from
6.8% in the prior year period. This decrease is partially attributable to the
increase in revenues from the prior year period. In addition, depreciation
and amortization expense decreased $362,000 compared to the first six months
of 1996. This decrease is primarily attributable to the $1.8 million
write-off of certain computer equipment, customer lists and goodwill as part
of a fourth quarter fiscal 1996 restructuring charge.
INCOME (LOSS) FROM CONTINUING OPERATIONS
Income from continuing operations in the first six months of 1997
increased to $4.7 million for the first six months of 1997, compared to a
loss of $1.9 million in the first six months of 1996. The continued
improvement in operations is primarily attributable to the increase in
revenues and the decrease in SG&A expenses as a percentage of revenues, both
of which are discussed above.
OTHER EXPENSE, NET
Net other expense decreased slightly to $351,000 in the first six months
of 1997 from $401,000 in the first six months of 1996. This decrease is
primarily attributable to other miscellaneous income recognized in the second
quarter of 1997.
INCOME TAXES
The Company's effective tax rate is higher than the federal statutory
rate due to the addition of state income taxes and certain deductions taken
for financial reporting purposes which are not deductible for federal income
tax purposes. The effective tax rate increased to 40.5% in the first six
months of 1997 from 17.0% in the first six months of 1996 due to the
graduated federal income tax rate structure.
13
<PAGE>
NET INCOME
The Company reported net income of $2.6 million in the first six months
of 1997 compared to net income of $7.0 million in the first six months of
1996. This decrease is attributable to the spin-off of Billing, which
provided $8.9 million of net income from discontinued operations in the first
six months of 1996.
EFFECTS OF SPIN-OFF OF BILLING GROUP BUSINESS
The Consolidated Statements of Income included in this report reflect
the continuing operations of the Company for the three and six-month periods
ended March 31, 1997, and continuing operations and discontinued operations
of the Company for the three and six-month periods ended March 31, 1996.
Included below is supplemental unaudited pro forma financial information that
management believes is important to provide an understanding of the results
of the Company on a stand-alone basis. Consolidated Pro Forma Statements of
Income are presented below for the three and six-month periods ended March
31, 1996. These unaudited Consolidated Pro Forma Statements of Income are
based on the historical statements of that period adjusted to reflect a pro
forma benefit for income taxes at a 42% tax rate reflective of the Company's
three-year historical tax rate. The unaudited Consolidated Pro Forma
Statements of Income give effect to the spin-off as if it had occurred on
September 30, 1995. For comparative purposes, the Company's historical
Interim Consolidated Statements of Income for the three and six-month periods
ended March 31, 1997, are also included below.
The unaudited consolidated pro forma financial information is presented
for informational purposes only and should be read in conjunction with the
Company's historical Interim Consolidated Financial Statements and Notes
thereto and "Management's Discussion and Analysis of Financial Condition and
Results of Operations" set forth herein. The unaudited Consolidated Pro Forma
Statements of Income of the Company reflect, in management's opinion, all
adjustments necessary to fairly state the pro forma results of operations for
the periods presented and to make the unaudited pro forma statements not
misleading.
14
<PAGE>
U.S. LONG DISTANCE CORP. AND SUBSIDIARIES
CONSOLIDATED PRO FORMA STATEMENTS OF INCOME
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
THREE MONTHS ENDED SIX MONTHS ENDED
MARCH 31, MARCH 31,
------------------- --------------------
1996 1997 1996 1997
--------- ------ --------- ------
PRO FORMA ACTUAL PRO FORMA ACTUAL
<S> <C> <C> <C> <C>
Operating revenues:
Direct dial long distance services................ $29,046 $39,732 $54,080 $ 75,107
Operator services................................. 14,609 13,240 29,283 26,612
Local services.................................... 0 196 0 196
------- ------- ------- --------
Total operating revenues....................... 43,655 53,168 83,363 101,915
Cost of services..................................... 28,875 35,516 55,261 67,497
------- ------- ------- --------
Gross profit...................................... 14,780 17,652 28,102 34,418
Selling, general and administrative expense.......... 12,929 12,423 24,311 24,354
Depreciation and amortization expense................ 2,938 2,704 5,709 5,347
------- ------- ------- --------
Income (loss) from operations........................ (1,087) 2,525 (1,918) 4,717
Other expense, net................................... (215) (137) (401) (351)
------- ------- ------- --------
Income (loss) before income tax benefit (provision).. (1,302) 2,388 (2,319) 4,366
Income tax benefit (provision)....................... 547 (943) 975 (1,768)
------- ------- ------- --------
Net income (loss).................................... $ (755) $ 1,445 $(1,344) $ 2,598
------- ------- ------- --------
------- ------- ------- --------
Net income (loss) per common share................... $ (0.05) $ 0.09 $ (0.09) $ 0.16
Weighted average common shares and common share
equivalents outstanding.............................. 15,189 16,423 15,021 16,286
</TABLE>
15
<PAGE>
OUTLOOK
The statements contained in this Outlook are based on management's
current expectations. These statements are forward-looking, and actual
results may differ materially.
The industry in which the Company operates is very competitive and is
characterized by rapid change. In addition, the Company has faced, and
continues to face, regulatory issues that have affected or that may affect
operating revenues and operating profit. The continued success of the Company
is dependent on its ability to adapt to these competitive and regulatory
changes. In developing strategies to achieve continued growth in operating
revenues and operating profits, the Company anticipates continuing geographic
expansion, expanding its product offerings and controlling costs to improve
gross margins and reduce SG&A expense as a percentage of revenue.
The Company continues to evaluate and take actions to improve the
profitability of its existing products through, among other things, a
regionalized approach to pricing, to identify new products to fully utilize
the Company's existing sales distribution channels and to evaluate programs
that are expected to increase revenues through partnerships with independent
sales agents. In December 1996 and February 1997, management expanded product
offerings to include Internet access and local access services, respectively.
Furthermore, the Company is in the process of expanding product offerings to
include paging, cellular, integrated services digital network ("ISDN") and
frame relay services in selected markets within the next 12 to 18 months. The
Company is expanding its direct dial long distance services residential
customer base by offering long distance services to employees of commercial
customers. In addition, due to the Telecommunications Act of 1996, which
requires RBOCs desiring to enter the long distance services market to, among
other things, open their networks to competition on a local basis as well as
establish separate subsidiaries through which they can offer in-region long
distance services, the Company's opportunities in the operator services
market have expanded. In addition to the 350,000 private pay telephones the
Company has traditionally marketed its services to, operator, long distance
and local services will now be marketed to an additional 1.7 million public
pay telephones, or to a total pay telephone market of approximately 2.0
million. The Company is currently developing new products and redesigning
existing products to support the expanded market. The Company expects that
both the expanding operator services market opportunity and the expansion of
product offerings will increase revenues, as well as strengthen customer
relationships and increase customer retention. However, as the Company is in
the early stages of its marketing efforts, the revenue increase cannot be
accurately predicted and may not be material to the Company's financial
position or results of operations.
Management believes that there are opportunities for continued
geographic expansion through acquisition and continued development of the
Company's network. The Company believes that its base of operator services
business affords it the opportunity to expand its direct dial long distance
and local services on a more cost effective basis than many of its
competitors. The Company continues to evaluate acquisition candidates in
strategic geographic areas to expand its market. Acquisition activity is
focused primarily on small to medium-sized companies that will grow the
Company's direct dial long distance business. To expand its footprint
nationally over the next several years, management is considering and will
continue to consider new investments in switching and related networking
equipment. In January 1997, the Company purchased a digital switch in
Atlanta, Georgia, and completed the acquisition of Omni Communications, Inc.
("Omni"), a regional direct dial long distance service provider headquartered
in Palm Beach Gardens, Florida. The Omni acquisition, although not material
to the Company's financial position or results of operations, was
strategically planned to increase the Company's presence in the Southeast
region of the United States as it brings to the Company a high quality
customer base concentrated in Florida. Omni's existing customer base
complements the Company's network expansion strategy, as Omni's customers are
being serviced directly by the recently purchased digital switch discussed
above.
The Company believes that the introduction of the local service product
provides the Company a large opportunity for growth. The local services
industry in the United States is estimated to be a $95 billion market. The
Company is aggressively expanding into the local service business and has
signed resale agreements with three RBOCs covering 15 states and
interconnection agreements with two RBOCs covering six states. The Company
believes that it has the potential to capitalize on its relationship with
existing customers to bundle the local product with its existing products and
services. These factors will enable the Company to quickly and efficiently
enter the local services market in targeted areas. The Company's strategy is
to roll out three product offerings over a six-month period. The first is a
resale product targeted to the Company's private pay telephone customers. The
Company's existing relationship with private pay telephone customers
16
<PAGE>
provides a unique opportunity for the Company. The Company has the potential
to provide local access to a large volume of phone lines, yet a limited
number of customers. This product was offered in the second quarter of 1997
and generated $196,000 of revenue in that quarter. In the third quarter of
1997, a resale local product will be offered to commercial customers. This
product will be offered in targeted markets where the Company has an existing
high concentration of long distance customers. This strategy should provide
the Company a higher than average sales success rate and increase customer
retention. In addition, it should enable the Company to more quickly attain
the critical mass necessary to justify a capital investment in local
switching equipment. The third product, a switched local product, will be
offered to commercial and pay telephone customers in selected markets in the
fourth quarter of 1997. The bundling of these services with operator and long
distance services will enhance the Company's product offerings and provide
new and existing customers with the integrated communication services they
desire. Initially, all three products will be sold into the Company's
existing customer base in an effort to leverage existing strong relationships
and minimize SG&A expenses. The Company anticipates that it could have
approximately 30,000 pay telephones and more than 60,000 commercial lines on
its local service products by the end of fiscal 1998.
The Company has implemented a number of actions designed to improve
overall profitability and reduce the Company's cost structure. With regard to
improving the Company's gross margins, management is focused on maximizing
network efficiencies by implementing technological improvements and reducing
unit costs. In November 1995, the Company joined the Associated Communication
Companies of America ("ACCA"), a cooperative that provides members with
opportunities to pool purchasing power to acquire lower transmission rates
from interexchange carriers and discounts on switching equipment purchases
through volume discounts and to work in partnership with other members to
capitalize on resource sharing arrangements such as switch partitioning and
network sharing. The Company already has realized, from this arrangement,
lower network costs and expects continued benefits as the organization
broadens its member and vendor base.
In an effort to improve sales force productivity, streamline functional
processes and reduce future SG&A expenses, the Company has implemented
several technologically advanced tools. An example of one such implementation
is the Company's recent deployment of notebook computers to the sales force.
These notebook computers have software that allows the Company's sales force
to quickly prepare sales proposals and make enhanced marketing presentations
on site at customer locations. In addition, once a proposal has been accepted
by the customer, the sales force will use the notebook computer to
electronically transmit the order information into the Company's centralized
order system automatically. This sales automation tool will not only
accelerate the Company's revenue flow as customer orders will be received on
an on-line, real-time basis, but should also streamline the sales and order
processing functions and thus reduce SG&A expenses. In addition, management
has streamlined and reorganized certain corporate, administrative and
overhead functions to align its infrastructure with the smaller operation
that resulted from the spin-off.
Over the past several years, the Company has undertaken a program of
developing new products and expanding its existing service offerings,
geographic focus and network. In connection with these new products and
services, the Company has made significant investments in circuitry, switches
and related equipment and software. These investments, generally, are timed
to coincide closely with anticipated revenue growth. In addition, the
Company continues to increase its sales and marketing, customer support,
network operations and field services commitments in anticipation of the
expansion of its customer base in targeted geographic markets. The Company
expects to continue to expand the breadth and scale of its network and
related sales and marketing, customer support and operations activities. The
Company attempts to carefully plan these expansion efforts to minimize the
effect on SG&A expenses; however, these expansion efforts could cause the
Company to incur significant increases in expenses, from time to time, in
anticipation of potential future growth in the Company's customer base and
targeted geographic markets.
On February 8, 1996, President Clinton signed the Telecommunications Act
of 1996 ("the Act") into law. The new law allows the RBOCs to petition their
respective "in-region" state regulatory agencies to seek authority from the
FCC to allow the applicant RBOC to provide long distance services in
competition with the Company. To obtain this authority, each state agency is
required to certify to the FCC that the applicant RBOC has satisfied a
legislative "checklist" that outlines the steps required for an RBOC to open
its network to competition on a local basis, which would allow the Company to
offer local service in RBOC service areas. It is reasonable to expect that
the conditions for RBOC entry will be met in the near future, and carriers in
the interLATA long distance business today, such as the Company,
17
<PAGE>
will encounter new, formidable competition. The viability of competition in
the local market depends greatly upon the conditions under which such service
is made available by the RBOCs. Local network pricing and contract
requirement decisions promulgated by the FCC in their Interconnection Order
released in August 1996 are currently under appeal in the Eighth Circuit
Court of Appeals. The outcome of these appeals will have significant
influence on the Company's strategy in entering the local market.
Additionally, as a result of the Act, the FCC has undertaken to restructure
the means by which long distance access services are priced, and the manner
in which universal service subsidies are collected and re-distributed. The
charges currently assessed in support of these subsidies are a significant
component of the Company's overall line costs. Changes in this structure will
be reflected in the Company's network costs. The Company cannot predict
whether the ultimate dispensation of the FCC's rulemakings or adjudication of
the aforementioned appeals will have a material impact upon the Company's
financial position or results of operations. The continued success of the
Company is dependent on its ability to adapt to these competitive and
regulatory changes.
The Company's future results of operations and the other forward-looking
statements contained in this Outlook, in particular the statements regarding
revenue growth and reducing cost structure, involve a number of risks and
uncertainties. In addition to the factors discussed above, other factors that
could cause actual results to differ materially are the following: business
conditions and the general economy, regulatory developments, competitive
factors, introduction and acceptance of new products, pricing pressures,
availability of leased network facilities, risk of collection of accounts
receivable, technological advancements, regulatory factors, litigation and
other factors as discussed in the cautionary statements and elsewhere herein.
The Company believes that it has the competitive product offerings,
personnel and financial resources for continued business success; however,
future revenues, costs and profits all are influenced by a number of factors
and are subject to certain risks and uncertainties, as discussed above.
LIQUIDITY AND CAPITAL RESOURCES
The Company's cash balance was $8.8 million at both March 31, 1997 and
September 30, 1996. Working capital was $22.0 million at March 31, 1997,
compared to $20.1 million at September 30, 1996. The Company's current ratio
was 1.7:1 at both March 31, 1997 and September 30, 1996. Additionally, the
Company's cash flow provided by continuing operations was $6.3 million for
the six months ended March 31, 1997, as compared to $8.1 million for the six
months ended March 31, 1996. Refer to the Consolidated Statements of Cash
Flows on page five of this Form 10-Q for a detailed account of the Company's
cash flow activity.
Capital expenditures amounted to approximately $7.8 million during the
six months ended March 31, 1997. These expenditures were related primarily to
the purchase of telecommunications equipment, computer equipment and
software, and office furniture. During the remaining six months of fiscal
1997, the Company anticipates capital expenditures of $7.0 million to $9.0
million to service the Company's projected growth. Approximately $5.0 million
to $6.0 million of these capital expenditures are expected to be purchases of
telecommunications equipment, approximately $2.0 million to $3.0 million are
expected to be purchases of computer hardware and software to develop systems
to support the anticipated growth of the Company's business and the remainder
is expected to be for purchases of office furniture and equipment. The
Company anticipates financing these capital expenditures primarily through
term notes with various lending institutions. The Company's operations and
expansion into new geographic markets will continue to require substantial
capital investment for the development and procurement of transmission
facilities and telecommunications and office equipment. In addition, any
acquisitions that the Company may consummate may require substantial capital
investment. The Company believes that it has the ability to continue to
secure long-term equipment financing and that this ability, combined with
cash flow generated from operations and available borrowing capacity under
its existing credit facilities, will be sufficient to fund capital
expenditures, working capital needs and debt repayment requirements for the
foreseeable future. Although line of credit commitments have been made by
various lenders for equipment purchases, there is no assurance that the
Company will continue to be able to obtain satisfactory financing for these
capital expenditures and investments.
The Company has equipment financing facilities with several lenders for
a total of $16.0 million. At March 31, 1997, the Company had $3.3 million
borrowed under these facilities. The Company also has a $5.0 million
revolving credit
18
<PAGE>
receivable financing facility with Billing, which allows the Company to
borrow against its own operator services accounts receivable. At March 31,
1997, the Company did not have any amounts borrowed under this facility. In
addition, the Company has a $10.0 million credit receivable financing
facility which allows the Company to borrow against its own direct dial long
distance services accounts receivable. At March 31, 1997, the Company did not
have any amounts borrowed under this facility.
The Company continually evaluates business opportunities, including
potential acquisitions. The primary focus of the Company's acquisition
activities is to make additional acquisitions that will grow the Company's
direct dial long distance business. One or more of such acquisitions could
result in a substantial change in the Company's operations and financial
condition. The success of the Company's acquisition activities will depend,
among other things, on the availability of acquisition candidates, the
availability of funds to finance acquisitions and the availability of
management resources to oversee the operation of acquired businesses. As
consideration for any acquisitions, the Company may issue common stock,
preferred stock, convertible debt or other securities, in addition to or in
lieu of the payment of cash, that could result in dilution of the percentage
ownership of public stockholders. The Company does not intend to seek
stockholder approval for any such acquisitions or security issuances unless
required by applicable laws or regulations.
19
<PAGE>
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The Company is involved in various claims, legal actions and regulatory
proceedings arising in the ordinary course of business. The Company believes
it is unlikely that the final outcome of any of the claims or proceedings to
which the Company is a party would have a material adverse effect on the
Company's financial position or results of operations; however, due to the
inherent uncertainty of litigation, there can be no assurance that the
resolution of any particular claim or proceeding would not have a material
adverse effect on the Company's results of operations for the fiscal period
in which such resolution occurred.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
At the Company's Annual Meeting of Stockholders held on February 25,
1997, the following members were elected to the Board of Directors:
Votes For Votes Withheld
---------- --------------
Parris H. Holmes, Jr................. 13,904,345 140,288
F. Gardner Parker.................... 13,904,345 140,288
Continuing directors not standing for re-election until the 1998 and
1999 Annual Meetings of Stockholders are Larry M. James (1998), Gary D.
Becker (1999) and Charles E. Amato (1999).
The following proposals were approved at the Company's Annual Meeting:
Votes For Votes Against Votes Abstained
---------- ------------- ---------------
Amendments to the 1993 Non-Employee
Director Plan of U.S. Long Distance
Corp................................. 10,701,752 2,684,730 170,110
Ratification of outstanding stock
option grant to Parris H. Holmes, Jr. 10,733,912 2,351,288 152,786
Ratification of Arthur Andersen LLP as
independent public accountants....... 13,917,457 64,330 64,698
20
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits:
The exhibits listed below are filed as part of or incorporated by
reference in this report. Where such filing is made by incorporation by
reference to a previously filed document, such document is identified in
parentheses.
EXHIBIT
NUMBER DESCRIPTION
------- -----------
3.1 Restated Certificate of Incorporation (Exhibit 3.1 to Form 10-K
for the Fiscal Year Ended September 30, 1996)
3.2 Bylaws, as amended (Exhibit 3.2 to Form 10-K for the Fiscal
Year Ended September 30, 1996)
4.1 Form of Certificate Evidencing Common Stock (Exhibit 4.1 to
Form 10-K for the Fiscal Year Ended September 30, 1996)
10.38 Office Lease Agreement entered into on March 14, 1997, and
effective April 1, 1997, by and between U.S. Long Distance, Inc.
and Nowlin Partners (filed herewith)
11.1 Computation of Earnings Per Share (filed herewith)
27.1 Financial Data Schedule (filed herewith)
(b) Current Reports on Form 8-K:
None.
21
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the Registrant has duly caused this report to be signed on its
behalf by the undersigned thereunto duly authorized.
U.S. LONG DISTANCE CORP.
(Registrant)
Date: May 12, 1997 By: /s/ PHILLIP J. STORIN
------------------------------
Phillip J. Storin
SENIOR VICE PRESIDENT
CHIEF FINANCIAL OFFICER
(Duly authorized and Principal
Financial Officer)
Date: May 12, 1997 By: /s/ PATRICK M. AELVOET
------------------------------
Patrick M. Aelvoet
VICE PRESIDENT
CORPORATE CONTROLLER
(Duly authorized and Principal Accounting Officer)
22
<PAGE>
OFFICE LEASE AGREEMENT
BETWEEN
NOWLIN PARTNERS,
A DELAWARE GENERAL PARTNERSHIP
AND
U.S. LONG DISTANCE, INC.
<PAGE>
TABLE OF CONTENTS
ARTICLE TITLE PAGE
------- ----- ----
I. 1. Premises . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. 1. Term . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2. Use. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3. Base Rental. . . . . . . . . . . . . . . . . . . . . . . . 2
4. Adjustment to Base Rental. . . . . . . . . . . . . . . . . 3
5. Security Deposit . . . . . . . . . . . . . . . . . . . . . 5
III. 1. Public Utility Service . . . . . . . . . . . . . . . . . . 5
2. Services to be Furnished by Lessor . . . . . . . . . . . . 5
3. Keys and Locks . . . . . . . . . . . . . . . . . . . . . . 6
4. Graphics . . . . . . . . . . . . . . . . . . . . . . . . . 6
5. Peaceful Enjoyment . . . . . . . . . . . . . . . . . . . . 6
6. Limitation of Lessor's Personal Liability. . . . . . . . . 7
IV. 1. Payments by Lessee . . . . . . . . . . . . . . . . . . . . 7
2. Leasehold Improvements . . . . . . . . . . . . . . . . . . 7
3. Repairs by Lessor. . . . . . . . . . . . . . . . . . . . . 7
4. Repairs by Lessee. . . . . . . . . . . . . . . . . . . . . 7
5. Care of the Premises . . . . . . . . . . . . . . . . . . . 7
6. Assignment for Sublease. . . . . . . . . . . . . . . . . . 7
7. Alterations, Additions, Improvements . . . . . . . . . . . 8
8. Legal Use and Violations of Insurance Coverage . . . . . . 9
9. Laws and Regulations; Rules of Building. . . . . . . . . . 9
10. Entry for Repairs and Inspection. . . . . . . . . . . . . 9
11. Nuisance. . . . . . . . . . . . . . . . . . . . . . . . . 9
12. Subordination to Mortgage . . . . . . . . . . . . . . . . 9
13. Estoppel Certificates . . . . . . . . . . . . . . . . . . 10
V. 1. Condemnation and Loss of Damage . . . . . . . . . . . . . 10
2. Damage from Certain Causes. . . . . . . . . . . . . . . . 10
3. Lien For Rent . . . . . . . . . . . . . . . . . . . . . . 11
4. Holding Over. . . . . . . . . . . . . . . . . . . . . . . 11
5. Fire Clause . . . . . . . . . . . . . . . . . . . . . . . 11
6. Attorney's Fees . . . . . . . . . . . . . . . . . . . . . 11
7. Alteration. . . . . . . . . . . . . . . . . . . . . . . . 12
8. Assignment by Lessor. . . . . . . . . . . . . . . . . . . 12
9. Default by Lessee . . . . . . . . . . . . . . . . . . . . 12
10. Non-Waiver. . . . . . . . . . . . . . . . . . . . . . . . 13
11. Casualty Insurance. . . . . . . . . . . . . . . . . . . . 13
12. Liability Insurance . . . . . . . . . . . . . . . . . . . 13
13. Hold Harmless . . . . . . . . . . . . . . . . . . . . . . 13
14. Lessee's Use at Its Own Risk. . . . . . . . . . . . . . . 14
15. Waiver of Subrogation Rights. . . . . . . . . . . . . . . 14
16. Recordation . . . . . . . . . . . . . . . . . . . . . . . 14
17. Brokers . . . . . . . . . . . . . . . . . . . . . . . . . 14
18. Notices . . . . . . . . . . . . . . . . . . . . . . . . . 14
19. Substitution of Space . . . . . . . . . . . . . . . . . . 15
20. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . 15
21. Force Majeure . . . . . . . . . . . . . . . . . . . . . . 15
EXHIBITS
- --------
Exhibit A Legal Description
Exhibit B Floor Plans (Levels 1, 2, 3, 4, 8 & 9)
SCHEDULES
- ---------
Schedule 1 Special Air Conditioning and Heating Service/ Sub-Metered
Electrical
Schedule 2 Construction Work Letter
Schedule 3 Building Rules and Regulations
RIDER
- -----
Rider No. 1 Garage Parking
Rider No. 2 Renewal Option
Rider No. 3 Preferential Right of First Refusal
Rider No. 4 Termination Option
Rider No. 5 Schedule of Janitorial Services
Rider No. 6 Lessee's Signage
<PAGE>
OFFICE LEASE AGREEMENT
THIS OFFICE LEASE AGREEMENT is made and entered into on this the 14th day
of March, 1997, (hereinafter called the "Lease") by and between NOWLIN
PARTNERS, A DELAWARE GENERAL PARTNERSHIP whose address for purposes hereof is
9311 San Pedro, Suite 1115, San Antonio, Texas, 78216, (hereinafter called
"Lessor") and U.S. LONG DISTANCE, INC., whose address for purposes hereof is
9311 SAN PEDRO, SUITE 100, SAN ANTONIO, TEXAS 78216,(hereinafter called
"Lessee").
W I T N E S S E T H
I.
1. PREMISES. Subject to and upon the terms, provisions and conditions
hereinafter set forth, and each in consideration of the duties, covenants and
obligations of the other hereunder, Lessor does hereby lease, demise and let to
Lessee and Lessee does hereby lease and take from Lessor those certain premises
(hereinafter called the "Premises") in the building located at 9311 San Pedro,
San Antonio, Texas 78216, (herein sometimes called the "Building") constructed
or to be constructed by Lessor on a tract of land in the City of San Antonio,
Bexar County, Texas (hereinafter sometimes called the "Land"), said Land being
more particularly described in Exhibit A attached hereto and made a part hereof,
such Premises being more particularly described as Suites #100, 102, 105, 110,
200, 280, 300, 400, 800, 900 as reflected on the floor plans of such Premises
attached hereto and made a part hereof as Exhibit B. The Premises are
delivered to and accepted by Lessee "AS IS" AND "WITH ALL FAULTS". TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LESSOR HEREBY DISCLAIMS, AND LESSEE
HEREBY WAIVES, ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF SUITABILITY,
FITNESS FOR PURPOSE, AND QUALITY OF CONSTRUCTION.
The term "Net Rentable Area," as used herein, shall refer to (i) in the case of
a single tenancy floor, all floor area measured from the inside surface of the
outer glass line (or outer terrace wall) of the Building to the inside surface
of the opposite outer glass line (or outer terrace wall) and excluding only the
areas ("service areas") used for building stairs, fire towers, elevator shafts,
flues, vents, stacks, pipe shafts and vertical ducts (which service areas shall
be measured from the midpoint of walls enclosing such service areas), but
including any such service areas which are for the specific use of the
particular Lessee such as special stairs or elevators, plus an allocation of the
square footage of the Building's elevator machine rooms, mechanical and
electrical rooms, and public lobbies, and (ii) in the case of a floor to be
occupied by more than one Lessee, all floor areas within the inside surface of
the outer glass walls (or outer terrace walls) enclosing the Premises and
measured to the midpoint of the walls separating areas leased by or held for
lease to other lessees or from areas devoted to corridors, elevator foyers,
restrooms, mechanical rooms, janitor closets, vending areas and other similar
facilities for the use of all lessees on the particular floor (hereinafter
sometimes called "Common Areas"), but including a proportionate part of the
Common Areas located on such floor based upon the proration which the Lessee's
rentable space (excluding Common Areas) on such floor bears to the aggregate
rentable space (excluding Common Areas) on such floor, plus an allocation of the
square footage of the Building's elevator machine rooms, mechanical and
electrical rooms, and public lobbies. No deductions from Net Rentable Area
shall be made for columns or projections necessary to the Building. The Net
Rentable Area in the Premises has been calculated on the basis of the foregoing
definition and is hereby stipulated for all purposes hereof to be 83,171
square feet, whether the same should be more or less as a result of minor
variations resulting from actual construction and completion of the Premises for
occupancy so long as such work is done substantially in accordance with the
terms and provisions hereof.
Lessor and Lessee hereby acknowledge and agree that Lessee's pro rata share of
the building shall be deemed to be 34.965% (based on the stipulated amount of
the net rentable area of the Premises described above and the building,
containing approximately 237,869 square feet of net rentable area).
1
<PAGE>
II.
1. TERM.
(a) Subject to and upon the terms and conditions set forth herein,
exhibit, addendum or rider hereto, this Lease shall continue in
force for a term of EIGHTY-FOUR (84) months, beginning on the 1ST
day of APRIL, 1997 (herein called the "Commencement Date"), and
ending on the 31ST day of MARCH, 2004.
UPON THE FULL EXECUTION OF THIS LEASE AGREEMENT BY BOTH LESSEE AND
LESSOR, THE PRECEDING TWO LEASES BETWEEN LESSEE AND LESSOR, DATED A)
JULY 1, 1995 (TOGETHER WITH ALL AMENDMENTS AND MODIFICATIONS
THERETO) FOR 15,500 SQUARE FEET OF NET RENTABLE AREA, AND B)
SEPTEMBER 29, 1988 (TOGETHER WITH ALL TWELVE AMENDMENTS AND
MODIFICATIONS THERETO) FOR 67,671 SQUARE FEET OF NET RENTABLE AREA,
SHALL BECOME NULL AND VOID IN THEIR ENTIRETY.
(b) In the event the Premises should not be ready for occupancy by
the Commencement Date stated in Paragraph (1a) above for any reason,
Lessor shall not be liable or responsible for any claims, damages or
liabilities in connection therewith or by reason thereof, and
subject to the provisions contained in Article IV, paragraph 2, or
Schedule 2, attached hereto, the term of this Lease shall commence
at the time that the Premises are ready for occupancy by Lessee.
For purposes of this Lease, the Premises shall be "ready for
occupancy" on the first to occur of (i) the date a certificate of
substantial completion of Lessor's initial leasehold construction
obligations from Lessor's architect is given to Lessee, (ii) the
date Lessee occupies the Premises, or (iii) the date Lessor's
substantial completion would have occurred but for delays requested
or caused by Lessee. Should the term of this Lease commence on a
date other than that specified in Paragraph 1(a) above for any
reason, Lessor and Lessee will, at the request if either, execute a
declaration specifying the revised Commencement Date if the term of
this Lease. In such event, rental under this Lease shall not
commence until said revised Commencement Date, and the stated term
in this Lease shall thereupon commence and the expiration date shall
be revised so as to give effect to the full stated term.
2. USE. The Premises are to be used and occupied by Lessee solely for the
purpose of normal office activities and for no other purpose.
3. BASE RENTAL. Lessee hereby agrees to pay to Lessor, without offset
or deduction, a MONTHLY base rental (herein called "Base Rental"), the total
value of the lease being $8,412,747.00, payable as follows:
April 1, 1997 through March 31, 2004 $100,151.75 per month
The Lessee shall also pay, as additional rent, all such other sums of money as
shall become due and payable by Lessee to Lessor under this Lease. The Base
Rental, together with any adjustment of rent provided for herein then in effect
(including, but not limited to the adjusted Base Rental described in Paragraphs
4(c) and 4(d) of this Article II), shall be due and payable in twelve (12) equal
installments on the first day of each calendar month during the initial term of
this Lease and any extensions or renewals thereof, and Lessee hereby agrees to
pay such rent to Lessor at Lessor's address as provided herein (or such other
address as may be designated by Lessor from time to time) monthly in advance
without demand, counterclaim or setoff. If the term of this Lease as heretofore
described commences on other than the first day of a calendar month or
terminates on other than the last day of a calendar month, then the installments
of Base Rental for such month or months shall be prorated and the installment or
installments so prorated shall be paid in advance. All past due installments of
rent, and additional rent, shall bear interest, until paid in full, at the lower
rate per annum of: (i) 24% or (ii) the maximum lawful rate; or Lessor, at
Lessor's option, may elect to charge a late fee equal to five percent (5%) of
the amount of the past due payment.
2
<PAGE>
4. ADJUSTMENT TO BASE RENTAL.
(a) "Basic Cost," as that term is used herein, shall consist of all
"Operating Expenses" of the Project (which term for purposes hereof
means and includes the Land, together with the Building, the Garage
and all other improvements constructed thereon), which shall be
computed on the accrual basis and shall consist of all expenditures
to maintain all facilities in the operation of the Project and such
additional facilities in subsequent years as may be necessary or
desirable in the operation of the Project. The term "Operating
Expenses" as used herein shall mean all expenses, costs and
disbursements (but not replacements of capital investment items
except as specifically provided below nor specific costs especially
billed to specific lessees) of every kind and nature relating to or
incurred or paid in connection with the ownership, management and
operation of the Project, including but not limited to, the
following:
1) Wages and salaries of all employees directly engaged in the
supervision, operation, maintenance or guard services of the
Project, and personnel who may provide traffic control relating to
ingress and egress to and from the Project to the adjacent public
streets and the costs (based upon fair market rental rates) of a
management office in the Project. All taxes, insurance and benefits
relating to employees providing these services shall be included.
2) All supplies, tools, equipment and materials used in the
operation and maintenance of the Project.
3) Cost of all utilities for the Project, including the cost of
water and power, heating, lighting, air conditioning and ventilating
(excluding those costs billed to specific lessees).
4) Cost of all maintenance, management and service agreements for
the Project and the equipment therein, including guard services,
window cleaning, elevator maintenance, landscaping and janitorial
service.
5) Cost of all insurance relating to the Project, including, but
not limited to, the cost of casualty, rental abatement and liability
insurance applicable to the Project and Lessor's personal property
used in connection therewith.
6) All taxes, assessments and governmental charges with respect to
the Project, whether federal, state, county or municipal, and
whether they be by taxing districts or authorities presently taxing
the Project or by other subsequently created or otherwise, and any
other taxes and assessments attributable to the Project or its
operation, including tax consultants, whether or not directly paid
by Lessor, excluding however, federal and state taxes on income,
death taxes, excess profit taxes, franchise taxes, or any taxes
imposed or measured on or by the income of Lessor from the operation
of the Project or imposed in connection with any change of ownership
of the Building or the Land. It is agreed that Lessee will be
responsible for ad valorem taxes on Lessee's personal property and
on the value of the leasehold improvements in the Premises to the
extent that the same exceed building standard allowances.
7) Cost of repairs and general maintenance (excluding repairs and
general maintenance paid by proceeds of insurance or by Lessee or
other third parties, and alterations attributable solely to lessees
of the Building other than Lessee).
8) A reasonable amortization charge on account of any capital
expenditure incurred to effect a reduction in the operating expenses
of the Project or as may be required by governmental authority.
9) Lessor's central accounting costs and audit fees attributable to
the Project.
3
<PAGE>
10) Legal and professional fees and related costs reasonably
incurred in the operation of the Project.
(b) The "Initial Basic Cost" is stipulated to be the actual
"Operating Expense" of the Project incurred in calendar 1997
adjusted to actual occupancy but not less than though the Building
was 95% occupied and divided by the net rentable area of the
building.
(c) The term "Actual Basic Cost" shall mean, with respect to each
calendar year during the term of this Lease, the actual Basic Cost
for said year computed in accordance with the provisions of
Paragraph 4(a) of this Article II. The term "Lessee's Share of
Actual Basic Cost" shall mean, with respect to any calendar year,
the Actual Basic Cost for such year multiplied times a fraction, the
numerator of which is the Net Rentable Area of the Premises and the
denominator of which is one hundred percent (100%) of the total Net
Rentable Area of office space leased and held for lease in the
Building. Lessor shall, within a period of one hundred fifty (150)
days (or as soon thereafter as possible) after the end of each
calendar year of the term of this Lease, provide Lessee a statement
itemized in reasonable detail, showing the Actual Basic Cost for
such year and a comparison (based thereon) of the Initial Basic Cost
with Lessee's Share of the Actual Basic Cost for such year. If
Lessee's Share of Actual Basic Cost for such year is greater than
the Initial Basic Cost, Lessee shall pay to Lessor within thirty
(30) days after Lessee's receipt of such statement the amount of
such excess. If Lessee's Share of Actual Basic Cost for any year is
less than the Initial Basic Cost, Lessee shall not receive any
credit for or be paid the amount of such difference. Any sums
payable under this Paragraph 4(c) of Article II shall be deemed
additional rent.
(d) For each calendar year during the term of this Lease following
the calendar year in which the commencement of the term of this
Lease occurs, prior to January 1 of each such year or as soon
thereafter as practical, Lessor shall provide Lessee in writing a
comparison of the Initial Basic Cost with the projected Lessee's
Share of Actual Basic Cost with respect to such succeeding calendar
year, and thereafter Lessee shall pay an adjusted Base Rental for
such succeeding calendar year which shall include an appropriate
amount on account of the excess of such projected Lessee's Share of
Actual Basic Cost over the Initial Basic Cost. Lessor shall, within
a period of one hundred fifty (150) days (or as soon thereafter as
possible) after the close of each calendar year, provide Lessee a
statement itemized in reasonable detail, showing the Actual Basic
Cost for such year and a calculation (based thereon) of Lessee's
Share of Actual Basic Cost for such year. If Lessee's Share of
Actual Basic Cost for such year is greater than the projected amount
theretofore paid by Lessee for such year, Lessee shall pay to Lessor
within thirty (30) days after Lessee's receipt of the statement the
amount of such excess. However, if Lessee's Share of Actual Basic
Cost for such year is less than the projected amount theretofore
paid by Lessee for such year, Lessor shall pay to Lessee within
thirty (30) days after Lessee's receipt of the statement the amount
of such overpayment. Any sums payable by Lessee to Lessor under
this Paragraph 4(d) of Article II shall be deemed additional rent.
(e) Should this Lease commence or terminate at any time other than
the first day of a calendar year, Lessee's Share of Actual Basic
Cost referred to in Paragraphs 4(c) and 4(d) of this Article shall
be calculated only for the commencement or termination year by
multiplying each such amount, respectively, by a fraction, the
numerator of which shall be the number of days of the Lease term
during the commencement or termination year, as the case may be, and
the denominator of which shall be 365.
(f) Notwithstanding any other provision herein to the contrary, it
is agreed that in the event the Building is not fully occupied
during any calendar year or in the event the entire Building is not
provided with building standard services during any calendar year,
an adjustment shall be made in computing the Actual Basic Cost for
such year as though the Building had been fully occupied during such
year and as
4
<PAGE>
though the entire Building had been provided with building standard
services during such year.
(g) Lessee at its expense shall have the right at any reasonable
time within six (6) months after the end of a calendar year to audit
Lessor's books and records relating to Operating Expenses for any
calendar year for which additional rental payments become due; or at
Lessor's sole discretion Lessor will provide such audit prepared by
a certified public accountant.
5. SECURITY DEPOSIT. Upon the execution of this Lease, Lessee agrees to
pay N/A ($ -0- ), representing one month of Base Rental due under this
Lease for the first month of the term of this Lease and a security deposit of
TEN THOUSAND AND NO/100 DOLLARS ($10,000.00) SHALL BE TRANSFERRED AND CARRIED
FORWARD FROM LESSEE'S PREVIOUS LEASE WITH LESSOR DATED SEPTEMBER 29, 1988 AND
SHALL BE HELD BY LESSOR as security for the faithful performance and observance
by Lessee of the terms, provisions, and conditions of this Lease. It is agreed
that in the event Lessee defaults in respect to any of the terms, provisions and
conditions of this Lease, including, but not limited to, the payment of rent,
Lessor may at Lessor's option use, apply or retain the whole or any part of the
security deposit to the extent required for the payment of any rent or any other
sum as to which Lessee is in default or for any sum which Lessor may expend or
may be required to expend by reason of Lessee's default in respect of any of the
terms, provisions and conditions of this Lease, including, but not limited to,
damages, costs or deficiency in rental suffered in the re-letting of the
Premises, whether such damages, costs or deficiency accrue before, during or
after re-entry pursuant to judicial process or other means. In the event all or
any part of the security deposit is applied toward payment of an obligation or
liability of Lessee as described above, Lessee shall, within ten (10) days after
request therefor by Lessor, again pay Lessor as a security deposit an amount
equal to any amount so applied, so that the security deposit shall equal its
original amount. In the event that Lessee shall fully and faithfully comply
with all of the terms, provisions, covenants and conditions of this Lease, the
security deposit shall be returned to Lessee, without interest, within thirty
(30) days after the termination of the Lease (provided such termination is not
the result of a default by Lessee) and after delivery of possession of the
Premises to Lessor and payment of all sums due to Lessor. In the event of a
sale or lease of the Building, Lessor shall have the right to transfer the
security deposit to the vendee or lessee, and Lessor upon said transfer is
hereby released by Lessee from all liability for the return of such security
deposit; and Lessee agrees to look solely to the new Lessor for the return of
such security deposit, and it is agreed that the provisions hereof shall apply
to every transfer or assignment made of the security deposit to a new lessor.
III.
Lessor and Lessee covenant and agree as follows:
1. PUBLIC UTILITY SERVICES. Lessor shall use reasonable efforts to cause
public utilities to furnish the electricity and water utilized in operating any
and all facilities serving the Premises.
2. SERVICES TO BE FURNISHED BY LESSOR. Lessor shall use reasonable
efforts to furnish Lessee while occupying the Premises:
(a) Hot and cold water at those points of supply provided for
general use of other lessees in the Building, central heat and air
conditioning in season, at such temperatures and in such amounts as
are considered by Lessor to be standard, but such service at times
during week days other than normal business hours for the Building,
on Saturday afternoons, Sunday and holidays to be furnished only
upon the request of Lessee, who shall bear the entire cost thereof
as provided in Schedule 1 attached hereto and made a part hereof;
routine maintenance and electric lighting service for all public
areas and special service areas of the Building in the manner and to
the extent deemed by Lessor to be standard.
5
<PAGE>
(b) Janitor service on a five (5) day week basis, exclusive of
holidays; provided, however, if Lessee's floor coverings or other
improvements are other than building standard, Lessee shall pay the
additional cleaning cost attributable thereto as additional rent
within ten (10) days after presentation of a statement therefor by
Lessor.
(c) Personnel or equipment to maintain reasonable control for the
Building; provided, however, Lessor shall have no responsibility to
prevent, and shall not be liable to Lessee for and shall be
indemnified by Lessee against liability or loss to Lessee, its
agents, employees and visitors arising out of, losses due to theft,
burglary or damage or injury to persons or property caused by
persons gaining access to the Building or the Premises.
(d) Electrical facilities to furnish sufficient power for
typewriters, voice writers, calculating machines, photocopying
machines and other machines of similar low electrical consumption;
but not including electricity required for electronic data
processing equipment, special lighting in excess of building
standard, or any other item of electrical equipment (whether listed
above or not) which (singly) consumes more than 0.5 kilowatts per
hour at rated capacity or requires a voltage other than 120 volts
single phase; and provided that if the installation or operation of
said electrical equipment requires additional air conditioning
capacity above that provided by the building standard system, then
the additional air conditioning installation and operating costs
will be the obligation of Lessee.
(e) All building standard fluorescent bulb replacement in all areas
and all incandescent bulb replacement in public areas, toilet and
restroom areas and stairwells.
(f) Non-exclusive elevator service to the Premises.
Failure by Lessor to any extent to furnish the services described in
Paragraphs 1 and 2 of this Article III, or any cessation thereof,
resulting from causes beyond the reasonable control of Lessor shall
not render Lessor liable in any respect for damages to either person
or property, nor be construed as an eviction of Lessee nor work an
abatement of rent, nor relieve Lessee from fulfillment of any
covenant or agreement hereof. Should any of Lessor's equipment or
machinery break down, or for any cause cease to function properly,
Lessee shall have no claim for rebate of rent or damages on account
of an interruption in service occasioned thereby or resulting
therefrom; provided, however, Lessor agrees to use reasonable
efforts to promptly repair said equipment or machinery and to
restore said services.
3. KEYS AND LOCKS. Lessor shall furnish Lessee with two (2) keys for the
lock on each building corridor door entering the Premises. Additional keys will
be furnished at a charge by Lessor on an order signed by Lessee or Lessee's
authorized representative. All such keys shall remain the property of Lessor.
No additional locks shall be allowed on any door of the Premises without
Lessor's permission, and Lessee shall not make, or permit to be made any
duplicate keys, except those furnished by Lessor. Upon termination of the
Lease, Lessee shall surrender to Lessor all keys of the Premises, and give to
Lessor the explanation of the combination of all locks for safes, safe cabinets
and vault doors, if any, in the Premises; provided, however, Lessee shall place
no safes, safe cabinets or vaults within the Premises without the prior written
consent of Lessor.
4. GRAPHICS. Lessor shall provide and install, at Lessors cost, all
letters or numerals on entrance doors to the Premises; all such letters and
numerals shall be in the building standard graphics, and no others shall be used
or permitted on the exterior of, or which may be visible from outside of the
Premises.
5. PEACEFUL ENJOYMENT. Lessor covenants that Lessee shall, and may
peacefully have, hold and enjoy the Premises, subject to the other terms hereof,
provided that Lessee pays
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the rental and other sums herein recited to be paid by Lessee and performs
all of Lessee's covenants and agreements herein contained. It is understood
and agreed that this covenant and any and all other covenants of Lessor
contained in this Lease shall be binding upon Lessor and its successors only
with respect to breaches occurring during its and their respective ownership
of the Lessor's interest hereunder.
6. LIMITATION OF LESSOR'S PERSONAL LIABILITY. Lessee specifically agrees
to look solely to Lessor's interest in the Building for the recovery of any
judgement from Lessor, it being agreed that Lessor shall never be personally
liable for any such judgement. The provision contained in the foregoing
sentence is not intended to, and shall not, limit any right that Lessee might
otherwise have to obtain injunctive relief against Lessor or Lessor's successors
in interest or any suit or action in connection with enforcement or collection
of amounts which may become owing or payable under or on account of insurance
maintained by Lessor.
IV.
Lessee and Lessor further covenant and agree as follows:
1. PAYMENTS BY LESSEE. Lessee shall pay all rent and sums provided to be
paid to Lessor hereunder at the times and in the manner herein provided, without
demand, counterclaim or set off.
2. LEASEHOLD IMPROVEMENTS. The Premises are delivered to and accepted
by Lessee "AS IS" AND "WITH ALL FAULTS". Leasehold improvements required by
Lessee shall be at Lessee's sole cost and expense and shall be in accordance
with the attached Schedule 2.
3. REPAIRS BY LESSOR. Unless otherwise stipulated herein, Lessor shall
not be required to make any improvements to or repairs of any kind or character
on the Premises during the term of this Lease. Non-building standard leasehold
improvements will, at Lessee's written request, be maintained by Lessor at
Lessee's expense, at a cost or charge equal to the costs incurred in such
maintenance plus an additional charge of fifteen percent (15%) to cover
overhead.
4. REPAIRS BY LESSEE. Lessee shall, at its own cost and expense, repair
or replace any damage or injury done to the Project or the Premises, or any part
thereof, caused by Lessee or Lessee's agents, employees, invitees or visitors;
provided, however, that, at Lessor's option, all repairs to the Project (other
than the Premises) shall be made by Lessor at Lessee's expense at a cost equal
to the cost incurred by Lessor plus a charge of fifteen percent (15%) to cover
overhead. If Lessee fails to promptly make such repairs or replacements to the
Premises, Lessor may, at its option, make such repairs or replacements, and
Lessee shall repay to Lessor on demand the cost thereof, (plus a charge of
fifteen percent (15%) to cover Lessor's overhead in making said repairs or
replacements).
5. CARE OF THE PREMISES. Lessee shall not commit or allow any waste or
damage to be committed on any portion of the Premises, and at the termination of
this Lease, by lapse of time or otherwise, shall deliver up the Premises to
Lessor in as good condition as at the date of possession by Lessee, ordinary
wear and tear excepted, and upon such termination of this Lease, Lessor shall
have the right to re-enter and resume possession of the Premises.
6. ASSIGNMENT OR SUBLEASE. In the event Lessee should desire to assign
this Lease or sublet the Premises or any part thereof (including a mortgage of
Lessee's interest herein), Lessee shall give Lessor written notice of such
desire (and the proposed effective date thereof), together with sufficient
information to allow Lessor to approve the proposed assignee or sublessee based
upon the criteria set forth below, at least sixty (60) days in advance of the
date on which Lessee desires to make such assignment or sublease. Lessor shall
then have a period of thirty (30) days following receipt of such notice and
information within which to notify Lessee in writing that Lessor elects either
(ii) to permit Lessee to
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assign this Lease or sublet such space, or (iii) to refuse to consent to
Lessee's assignment or subleasing of such space and to continue this Lease in
full force and effect as to the entire Premises. Options (i) and (ii) may be
exercised by Lessor as determined by Lessor in its sole and unreviewable
discretion. Regarding option (iii), Lessor's approval of the proposed
assignee or sublessee shall not be unreasonably withheld if:
(a) the proposed assignee or sublessee is engaged in a business
which is in keeping with the then standards of the Building;
(b) the proposed assignee or sublessee is a respectable party of
substantial financial worth and Lessee shall have provided Lessor
with proof thereof;
(c) Lessee shall remain primarily liable under this Lease;
(d) the occupancy by the proposed assignee or sublessee will not
create unreasonable elevator loads or otherwise interfere with
standard building operations; and
(e) Lessee enters into a written agreement with Lessor whereby it is
agreed that any profit realized by Lessee as a result of said
sublease or assignment (that is, after deducting all of Lessee's
costs associated therewith, including reasonable brokerage fees and
the reasonable cost of remodeling or otherwise improving the
Premises for said assignee or sublessee) shall be payable to Lessor
as it accrues as additional rent hereunder. If Lessor, consistent
with the foregoing, does not approve the proposed assignee or
sublessee and does not terminate this Lease, then the proposed
assignment or sublease will be void. If Lessor should fail to
notify Lessee in writing of its election to terminate the Lease or
to approve or disapprove the proposed assignee or sublessee within
said thirty (30) day period, Lessor shall be deemed to have elected
option (iii) above. If Lessee is a corporation and if the parties
that own a majority of its voting shares at the time of the
execution of this Lease cease for any reason, including merger,
consolidation or other reorganization involving another corporation,
to own a majority of such shares (except as the result of transfers
by gift, bequest or inheritance to or for the benefit of members of
the immediate family of the majority shareholder or shareholders),
such transaction shall constitute an assignment subject to the
provisions hereof. Stock ownership shall be determined in
accordance with the principles set forth in Section 544 of the
Internal Revenue Code of 1954, as the same existed on August 16,
1954, and the term "voting stock" shall refer to shares of stock
regularly entitled to vote for the election of directors of the
corporation. Similarly, if Lessee is a partnership, any transfer
(or conversion to limited partnership interests) of any general
partnership interests in Lessee shall constitute an assignment
subject to the provisions hereof. No assignment or subletting by
Lessee shall relieve Lessee of any obligation under this Lease. Any
attempted assignment or sublease by Lessee in violation of the terms
and covenants of this Paragraph 6 shall be void.
IN THE EVENT THAT LESSEE ENTERS INTO A SUBLEASE AGREEMENT WITH NORWOOD
PROMOTIONAL PRODUCTS, INC. ("SUBLESSEE") WITHIN NINETY (90) DAYS FROM THE FULL
EXECUTION OF THIS LEASE AGREEMENT BETWEEN LESSOR AND LESSEE, THEN LESSOR GRANTS
LESSEE PERMISSION TO SUBLEASE SUITE 900 (CONSISTING OF APPROXIMATELY 7,986
RENTABLE SQUARE FEET) TO SUBLESSEE FOR A PERIOD OF FIVE (5) YEARS AT AN ANNUAL
BASE RENTAL RATE OF $13.50 WITH NO LEASEHOLD IMPROVEMENT ALLOWANCE. HOWEVER,
LESSEE AND SUBLESSEE AGREE THAT ALL FINAL PLANS AND SPECIFICATIONS FOR ANY AND
ALL LEASEHOLD IMPROVEMENTS SHALL HAVE LESSOR'S PRIOR WRITTEN APPROVAL AND THAT
ALL RELATED CONSTRUCTION SHALL BE COORDINATED THROUGH THE BUILDING MANAGEMENT
OFFICE PRIOR TO THE COMMENCEMENT OF ALL CONSTRUCTION OF LEASEHOLD IMPROVEMENTS.
7. ALTERATIONS, ADDITIONS, IMPROVEMENTS. Lessee shall not permit the
Premises to be used for any purpose other than that stated in the use clause
hereof, or make or allow to be made any alterations or physical additions in or
to the Premises, or place signs on the Premises which are visible from outside
the Premises, without first obtaining the written consent of Lessor. Any and
all such alterations, physical additions, or improvements, when made to the
Premises by Lessee, shall at once become the property of Lessor and shall be
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surrendered to Lessor upon termination of this Lease by lapse of time or
otherwise; provided, however, that, if no default by Lessee exists, then this
provision shall not apply to movable equipment or furniture owned by Lessee.
Lessee shall not permit any mechanic's lien to be filed against the Building,
and shall immediately discharge any such liens relating to Lessee's alterations
or additions.
8. LEGAL USE AND VIOLATIONS OF INSURANCE COVERAGE. Lessee shall not
occupy or use, or permit any portion of the Premises to be occupied or used, for
any business or purpose which is unlawful, disreputable or deemed to be
extra-hazardous on account of fire or other hazards, or permit anything to be
done which would in any way increase the rate of fire or liability or any other
insurance coverage on the Building and/or its contents.
9. LAWS AND REGULATIONS; RULES OF BUILDING. Lessee shall comply with all
laws, ordinances, orders, rules and regulations (state, federal, municipal and
other agencies or bodies having any jurisdiction thereof) relating to the use,
condition or occupancy of the Premises. Lessee will comply with the rules of
the Building adopted and altered by Lessor from time to time for the safety,
care and cleanliness of the Premises and Building and for preservation of good
order therein, all of which will be sent by Lessor to Lessee in writing and
shall be thereafter carried out and observed by Lessee. Initial rules of the
Building are attached hereto as Schedule 3.
10. ENTRY FOR REPAIRS AND INSPECTION. Lessee shall permit Lessor or its
agents or representatives to enter into and upon any part of the Premises at all
reasonable hours to inspect the same, clean or make repairs, alterations or
additions thereto, as Lessor may deem necessary or desirable, and Lessee shall
not be entitled to any abatement or reduction of rent by reason thereof nor
shall such be an eviction of Lessee.
11. NUISANCE. Lessee shall conduct its business and control its agents,
employees, invitees and visitors in such manner as not to create any nuisance or
interfere with, annoy or disturb any other lessee or Lessor in its operations of
the Building.
12. SUBORDINATION TO MORTGAGE. Lessee hereby subordinates this lease to
any mortgage or deed of trust which may now or hereafter encumber the Building
and/or the Land and to all renewals, modifications, consolidations, replacements
and extensions thereof. In the event of the enforcement by the mortgagee,
trustee or the beneficiary under any such mortgage or deed of trust of the
remedies provided for by law or by such mortgage or deed of trust, Lessee will,
upon request of any person or party succeeding to the interest of Lessor as a
result of such enforcement, automatically become the Lessee of such successor in
interest without change in the terms or provisions of the Lease; provided,
however, that such successor in interest shall not be (i) liable for any act or
omission of any prior lessor, (ii) subject to any offsets or defenses which
Lessee may have against any prior lessor, (iii) bound by any payment of rent or
additional rent for more than one month in advance except prepayments in the
nature of security for the performance by Lessee of its obligations under this
Lease, or (iv) bound by any amendment or modification of this Lease made after
such successor in interest acquires its interest in this Lease, unless such
amendment or modification is made with the written consent of such mortgagee,
trustee or such beneficiary or such successor in interest. Upon request by such
beneficiary or such successor in interest, Lessee shall execute and deliver an
instrument or instruments confirming the attornment herein provided for.
Notwithstanding anything contained in this Lease to the contrary, in the event
of any default by Lessor in performing its covenants or obligations hereunder
which would give Lessee the right to terminate this Lease, Lessee shall not
exercise such right unless and until (i) Lessee gives written notice of such
default (which notice shall specify the exact nature of said default and how the
same may be cured) to the holder(s) of any mortgage or deed of trust encumbering
the Building and/or the Land who had theretofore notified Lessee in writing of
its interest and the address to which notices are to be sent, and (ii) said
holder(s) fails to cure or cause to be cured said default within thirty (30)
days from the giving of such notice by Lessee. The provisions of Paragraph 17
of
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Article V shall govern the manner and effective date of any notice to be
given by Lessee to any such holder(s).
LESSEE SHALL NOT BE DISTURBED IN ITS POSSESSION OF THE DEMISED PREMISES,
PROVIDED THAT LESSEE IS NOT, AT THE TIME OF SUCH TERMINATION OR FORECLOSURE AS
THE CASE MAY BE, IN DEFAULT UNDER THIS LEASE BEYOND APPLICABLE GRACE AND NOTICE
PERIODS. LESSEE AGREES TO ATTORN TO ANY SUCH LESSOR OR HOLDER (AND TO THEIR
RESPECTIVE SUCCESSORS IN INTEREST INCLUDING ANY PURCHASER AT A FORECLOSURE SALE)
FROM WHOM LESSEE SHALL HAVE RECEIVED SUCH AN AGREEMENT AS AFORESAID.
13. ESTOPPEL CERTIFICATES. Lessee agrees within ten (10) days following
request by Lessor (i) to execute and deliver to Lessor any documents (including
an estoppel certificate which, without limitation (a) certifies that this Lease
is unmodified and in full force and effect and the date to which the rent and
other charges are paid in advance, if any, and (b) acknowledges that there are
not, to Lessee's knowledge, any uncured defaults on the part of Lessor
hereunder, or so specifying such defaults, if any, as are claimed), evidencing
the status of the Lease as may be required either by a lender making a loan to
Lessor to be secured by a deed of trust or mortgage covering the Premises or a
potential purchaser of the Premises from Lessor and (ii) to deliver to Lessor
current financial statements of Lessee (with an opinion by a certified public
accountant, if required by Lessor), including a balance sheet and a profit and
loss statement for at lease two (2) years, all prepared in accordance with
generally accepted accounting principles consistently applied. Lessee's failure
to deliver an estoppel certificate within such time shall be conclusive upon
Lessee (i) that this Lease is in full force and effect, without modification
except as may be represented by Lessor, (ii) that to Lessee's knowledge there
are no uncured defaults in Lessor's performance, (iii) that no rent has been
paid in advance except as set forth in this Lease, and (iv) that Lessee agrees
to all requested attornment and notice provisions. Failure to deliver an
estoppel certificate or any other item to be delivered by Lessee pursuant to
this paragraph shall constitute a material default of Lessee under this Lease.
V.
Lessor and Lessee additionally mutually covenant and agree as follows:
1. CONDEMNATION AND LOSS OR DAMAGE. If the whole or substantially the
whole of the Building or the Premises should be taken for any public or
quasi-public use under any governmental law, ordinance, or regulation, or by
right of eminent domain or should be sold to the condemning authority in lieu of
condemnation, then this Lease shall terminate as of the date when physical
possession of the Building or the Premises is taken by the condemning
authority. If less than the whole or substantially the whole of the Building or
the Premises is thus taken or sold, Lessor (whether or not the Premises are
affected thereby) may terminate this Lease by giving written notice thereof to
Lessee within sixty (60) days after Lessor receives notice of such taking, in
which event this Lease shall terminate as of the date when physical possession
of such portion of the Building or Premises is taken by the condemning
authority. If upon any such taking or sale of less than the whole or
substantially the whole of the Building or the Premises this Lease shall not be
thus terminated, the Basic Rental payable hereunder shall be diminished based
upon the area of the Premises, if any, which was so taken or sold; and Lessor
shall, at Lessor's sole expense, restore and reconstruct the Building and the
Premises to substantially their former condition to the extent that the same, in
Lessor's judgement, may be feasible, but such work shall not exceed the scope of
the work done by Lessor in originally constructing the Building and installing
building standard items in the Premises, nor shall Lessor in any event be
required to spend for such work an amount in excess of the amount received by
Lessor as compensation awarded upon a taking of any part or all of the Building
or the Premises. All proceeds payable as a lump sum from any taking or
condemnation of the Premises shall belong and be paid to Lessor. Nothing
contained herein shall prevent Lessee from seeking a separate award from the
condemning authority.
2. DAMAGES FROM CERTAIN CAUSES. Lessor shall not be liable or responsible
to Lessee for any loss or damage to any property or person occasioned by theft,
fire, act of God, public enemy, injunction, riot, strike, insurrection, war,
court order, requisition or order of
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governmental body or authority, or any cause beyond Lessor's control, or for
any damage or inconvenience which may arise through repair, failure to repair
or alteration of any part of the Project.
4. HOLDING OVER. In the event of holding over by Lessee after expiration
or termination of this Lease without the written consent of Lessor, Lessee shall
pay as liquidated damages ONE AND ONE HALF (1 1/2) TIMES THE rent for the
entire holdover period. No holding over by Lessee after the term of this Lease
shall be construed to extend the Lease; in the event of any unauthorized holding
over, Lessee shall also indemnify Lessor against all claims for damages by any
other lessee to whom Lessor may have leased all or any part of the Premises
effective upon the termination of this Lease. Any holding over with the consent
of Lessor in writing shall thereafter constitute this Lease a lease from month
to month.
5. FIRE CLAUSE. In the event of a fire or other casualty in the Premises,
Lessee shall immediately give notice thereof to Lessor. If the Premises through
no fault or neglect of Lessee, its agents or employees shall be partially
destroyed by fire or other casualty so as to render the Premises untenantable in
whole or in part, the rental provided for herein shall abate thereafter as to
the portion of the Premises rendered untenantable until such time as the
Premises are made tenantable as determined by Lessor and Lessor shall, upon
receipt of insurance proceeds, commence and prosecute such repair work promptly
and with all due diligence; provided, however, in the event such destruction
results in the Premises being untenantable in whole or in substantial part for a
period reasonably estimated by a responsible contractor selected by Lessor to be
six (6) months or longer after Lessor's insurance settlement, or in the event of
total or substantial damage or destruction of the Building from any cause and if
Lessor shall decide not to rebuild, then all rent owed up to the time of such
destruction or termination shall be paid by Lessee and thenceforth this Lease
shall cease and terminate. Lessor shall give Lessee written notice of its
decisions, estimates or elections under this Paragraph 5, Lessor shall only be
obligated to restore or rebuild the Premises to a building standard condition;
provided, however, Lessee shall have the right to cause Lessor to rebuild or
restore the Premises to the condition they were in prior to such damage or
destruction, in which event Lessee shall bear the cost of such restoration or
rebuilding to the extent the same exceeds the costs Lessor would have incurred
had only building standard improvements been used; provided, as a condition
precedent to commencement of construction, Lessor may, at its option, require
Lessee to PREPAY the construction costs in excess of those costs necessary to
complete the Premises to building standard condition or provide evidence
satisfactory to Lessor of Lessee's ability to pay such costs. Notwithstanding
anything to the contrary in this Lease, if the holder of any debt secured by a
lien on the Building or Premises requires insurance proceeds to be applied to
that debt, then Lessor may terminate this Lease on written notice to Lessee,
whereupon all further rights and obligations of each party shall terminate.
6. ATTORNEY'S FEES. In the event either party defaults in the performance
of any of the terms, covenants, agreements or conditions contained in this Lease
and the other party
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places the enforcement of this Lease, or any part thereof, or the collection
of any rent due, or to be come due, hereunder or recovery of the possession
of the Premises, in the hands of an attorney, the defaulting party agrees to
pay the other party's reasonable attorney's fees.
7. ALTERATION. This Lease may not be altered, changed or amended, except
by an instrument in writing signed by both parties hereto.
8. ASSIGNMENT BY LESSOR. Lessor shall have the right to transfer and
assign, in whole or in part, all its rights and obligations hereunder and in the
Building, the Land and all property referred to herein, and in such event and
upon such transfer (any such transferee to have the benefit of, and be subject
to, the provisions of Paragraphs 5 and 6 of Article III hereof) no further
liability or obligation shall thereafter accrue against Lessor hereunder.
9. DEFAULT BY LESSEE. If default shall be made in the payment of any sum
to be paid by Lessee under this Lease and such default shall continue for five
(5) days, or default shall be made in the performance of any of the other
covenants or conditions which Lessee is required to observe and to perform and
such default shall be made in the performance of any of the other covenants or
conditions which Lessee is required to observe and to perform and such default
shall continue for fifteen (15) days after written notice to Lessee, or if
Lessee abandons a substantial part of the Premises, or if the interest of Lessee
under this Lease shall be levied on under execution or other legal process, or
if any petition shall be filed by or against Lessee to declare Lessee bankrupt
or to delay, reduce or modify Lessee's debts or obligations, or if any petition
shall be filed or other legal action brought to force reorganization or
modification of Lessee's capital structure, or if Lessee be declared insolvent
according to law, or if any assignment of Lessee's property shall be made for
the benefit of creditors, or if a receiver or trustee is appointed for Lessee or
its property, or if Lessee shall abandon the Premises during the term of this
Lease or any renewals or extensions thereof, or if Lessee be a corporation and
Lessee shall cease to exist as a corporation in good standing in the state of
its incorporation or if Lessee be a partnership or other entity and Lessee shall
be dissolved, terminated or liquidated, then Lessor may treat the occurrence of
any one or more of the foregoing events as a breach of this Lease (provided that
no such levy, execution, legal process or petition filed against Lessee shall
constitute a breach of this Lease if Lessee shall vigorously contest the same by
appropriate proceedings and shall remove or vacate the same within thirty (30)
days from the date of its creation, service or filing) and thereupon, at
Lessor's option, Lessor may have any one or more of the following described
remedies in addition to all other rights and remedies provided at law or in
equity, Lessor's rights and remedies being cumulative.
(a) Lessor may terminate this Lease and forthwith repossess the
Premises and be entitled to recover forthwith as damages a sum of
money equal to the total of (i) the cost of recovering the Premises,
(ii) the unpaid rent earned at the time of termination, plus
interest thereon from the due date at the lower rate per annum of
18% or the highest lawful rate, (iii) the present value (discounted
at the rate of eight percent [8%] per annum) of the balance of the
rent for the remainder of the term and (iv) any other sum of money
and damages owed by Lessee to Lessor.
(b) Lessor may terminate Lessee's right of possession (but not this
Lease) and may repossess the Premises by forcible entry or detainer
suit or otherwise, without demand or notice of any kind to Lessee
and without terminating this Lease, in which event Lessor may, but
shall be under no obligation to do so, relet the same for the
account of Lessee for such rent and upon such terms as shall be
satisfactory to Lessor. Lessee will pay to Lessor all costs of
Lessor including reasonable attorney's fees and court costs in
recovering the Premises. Lessor is authorized to decorate or to
make any repairs, changes, alterations or additions in or to the
Premises that may be necessary for the purpose of reletting the
Premises. While the Premises are not relet, Lessee will pay to
Lessor as damages the unpaid Base Rental and all other additional
rent due under the Lease as the rent becomes due. If and when the
Leased Premises are relet, Lessee will pay to Lessor as damages the
unpaid Base Rental and all other additional rent due under the Lease
as the rent becomes due, the cost of the decoration, repair, change,
alteration or additions in and to the
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Premises required for the reletting and the cost of the
collection of the rent accruing from the reletting and the
cost of broker's commissions associated with reletting, less
the amount of rent realized by Lessor from the reletting.
Lessee agrees that Lessor may file suit to recover any sums
due under this subparagraph from time to time and that no
delivery to or recovery by Lessor of any portion due Lessor
hereunder shall be construed as an election on the part of
Lessor to terminate this Lease unless a written notice of such
intention is given by Lessor to Lessee. Notwithstanding any
such reletting without termination, Lessor may at any time
thereafter elect to terminate this Lease for such previous
breach.
10. NON-WAIVER. Failure by either party to declare any default
immediately upon occurrence thereof, or delay in taking any action in connection
therewith, shall not waive such default, but said party shall have the right to
declare any such default at any time and take such action as might be lawful or
authorized hereunder, either in law or in equity.
11. CASUALTY INSURANCE. Lessor shall maintain fire and extended coverage
insurance on the portion of the Building constructed by Lessor, including
building standard leasehold improvements and any additions and improvements by
Lessee which are required to be made by Lessee by this Lease and which have
become or are to become the property of Lessor upon vacation of the Premises by
Lessee. Said insurance shall be maintained with an insurance company authorized
to do business in Texas, in amounts desired by Lessor and at the expense of
Lessor and payments for losses thereunder shall be made solely to Lessor.
Lessee shall maintain at its expense fire and extended coverage insurance on all
of its personal property, including removable trade fixtures, located in the
Premises and on its non-building standard leasehold improvements and all
additions and improvements made by Lessee and not required to be insured by
Lessor above. Without limiting Lessor's remedies with respect to a violation of
Article IV, Paragraph 8, if the annual premiums to be paid by Lessor for any
such insurance shall exceed the rates they would otherwise be because Lessee's
operation, contents of the Premises or improvements with respect to the Premises
beyond building standard, result in extra-hazardous exposure, Lessee shall
promptly pay the excess amount of the premium upon request by Lessor.
12. LIABILITY INSURANCE. Lessor and Lessee shall each, at their
respective expense, maintain a policy or policies of comprehensive general
liability insurance with the premiums thereon fully paid on or before the due
dates, issued by and binding upon some solvent insurance company, such insurance
to afford minimum protection (which may be affected by primary and/or excess
coverage) of not less than $1,000,000 in respect of personal injury or death in
respect of any one occurrence and of not less than $500,000 for property damage
in any one occurrence. At least ten (10) days before the commencement of the
term of this Lease, Lessee shall deliver to Lessor certificates evidencing the
insurance required herein, which certificates shall evidence that Lessor has
been named an additional insured and shall contain the obligation from the
insurer to give Lessor at least ten (10) days written notice prior to cancelling
or materially changing the insurance.
13. HOLD HARMLESS. Lessor shall not be liable to Lessee, or to Lessee's
agents, servants, employees, customers or invitees for any damage to person or
property caused by any act, omission or neglect of Lessee, its agents, servants
or employees, and Lessee agrees to indemnify and hold Lessor harmless from all
liability and claims for any such damage or injury. Except as expressly
provided herein, Lessee shall not be liable to Lessor, or to Lessor's agents,
servants, employees, customers or invitees for any damage to person or property
caused by any act, omission or neglect of Lessor, its agents, servants or
employees, and Lessor agrees to indemnify and hold Lessee harmless from all
claims for such damage.
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14. LESSEE'S USE AT ITS OWN RISK. Neither Lessor nor its agents shall be
liable for any damage to property at Lessee or of others entrusted to employees
of the building, or for any loss of or damage to any property of Lessee by theft
or otherwise. Neither property resulting from fire, explosion, falling plaster,
steam, gas, electricity, water, rain, or snow or leaks from any part of the
building or from the pipes, appliances, or plumbing works or from the roof,
street, or subsurface or from any other place or by the dampness or by any other
cause of whatsoever nature, unless caused by or due to gross negligence of
Lessor, its agents, servants, or employees; nor shall Lessor or its agents be
liable for any such damage caused by operations in construction of any private,
public, or quasi-public work; nor shall Lessor be liable for any latent defect
in the premises and other facilities of the building at its own risk and hereby
releases Lessor, its agents and employees, from all claims for any damage or
injury to the full extent permitted by law.
15. WAIVER OF SUBROGATION RIGHTS. Anything in this Lease to the contrary
notwithstanding, Lessor and Lessee each hereby waives any and all rights of
recovery, claim, action or cause of action, against the other, its agents,
officers or employees, for any loss or damage that may occur to the Premises or
the Building, or any improvements thereto, or any personal property of such
party therein, by reason of fire, the elements or any other cause which could be
insured against under the terms of standard fire and extended coverage insurance
policies referred to in Article V, Paragraph 11 hereof, regardless of cause or
origin, including negligence of the other party hereto, its agents, officers or
employees, and covenants that no insurer shall hold any right of subrogation
against such other party. These respective waivers of subrogation will be in
effect only so long as the insured's right to recovery under the applicable
policy is not affected by the waiver of subrogation. Clauses specifying that
waiver of subrogation will not affect the right of the insured to recover under
the policy will be obtained by the parties whenever possible.
16. RECORDATION. Lessee shall not record this Lease, or any other
document relating to this Lease, without the prior written consent of Lessor.
17. BROKERS. Lessee warrants that it has had no dealing with any broker
or agent in connection with the negotiation or execution of this Lease other
than THE PINNACLE GROUP and Lessor's broker (SOUTHWEST REALTY MANAGEMENT, INC.)
for the Building. In the event any agent or broker other than THE PINNACLE
GROUP or Lessor's broker for the Building, shall make a claim for a commission
or fee, Lessee shall be responsible for payment thereof and hereby indemnifies
and holds Lessor harmless from such claim for commission or fees.
18. NOTICES. Any notice or other communications to Lessor or Lessee
required or permitted to be given under this Lease (and copies of the same to be
given to Lessor's mortgagees as below described) must be in writing and shall be
effectively given if delivered to the addresses for Lessor and Lessee stated
above or if sent by United States Mail, certified or registered, return receipt
requested, to said addresses. Any notice mailed shall be deemed to have been
given on the second day (exclusive of Saturday, Sunday and postal holidays)
following the date of deposit of such item in a depository of the United States
Postal Service. Notice effected other than by mail shall be deemed to have been
given at the time of actual delivery. Either party shall have the right to
change its address to which notices shall thereafter be sent by giving the other
notice thereof. Additionally, Lessee shall send copies of all notices required
or permitted to be given to Lessor to any holder of a mortgage or deed of trust
encumbering the Building and/or the Land who notifies Lessee in writing of its
interest and the address to which notices are to be sent.
LESSOR: LESSEE:
- ------- -------
Nowlin Partners U.S. Long Distance, Inc.
9311 San Pedro, Suite 1115 9311 San Pedro, Suite 100
San Antonio, TX 78216 San Antonio, Texas 78216
ATTN: Building Manager ATTN: Audie Long
14
<PAGE>
20. MISCELLANEOUS.
(a) Entire Agreement; Amendments; Binding Effect. This Lease
contains the entire agreement between the parties and may not be
altered, changed or amended, except by instrument in writing signed
by both parties hereto. No provision of this Lease shall be deemed
to have been waived by Lessor unless such waiver be in writing
signed by Lessor and addressed to Lessee, nor shall any custom or
practice which may grow up between the parties in the administration
of the terms hereof be construed to waive or lessen the right of
Lessor to insist upon the performance by Lessee in strict accordance
with the terms hereof. No payment by Lessee or receipt by Lessor of
a lesser amount than the Monthly Rental Instalment, or additional
rental, which may then be due under this Lease shall be deemed to be
other than on account of the earliest rent due hereunder, nor shall
statement or endorsement on any check or in any letter accompanying
any check or payment of rent be deemed an accord and satisfaction,
and Lessor may accept such check for payment without prejudice to
Lessor's right to recover the balance of such rent or pursue any
other remedy in this Lease provided.
(b) This Lease shall be binding upon and inure to the benefit of
the successors and assigns of Lessor, and shall be binding upon and
inure to the benefit of Lessee, its successors, and, to the extent
assignment may be approved by Lessor hereunder, Lessee's assigns.
The pronouns of any gender shall include the other genders, and
either the singular or the plural shall include the other.
(c) This lease is subject to the approval by the Building Lender.
21. FORCE MAJEURE. Events of "Force Majeure" shall include strikes,
riots, acts of God, shortages of labor or materials, war, governmental law,
regulations or restrictions and any other cause whatsoever that is beyond the
control of Lessor. Whenever a period of time is herein prescribed for the
taking of any action by Lessor, Lessor shall not be liable or responsible for,
and there shall be excluded from the computation of such period of time, any
delays to events of Force Majeure.
This Lease is declared to be a Texas contract, and all of the terms thereof
shall be construed according to the laws of the State of Texas.
The terms and provisions of Exhibits "A" & "B", Schedules 1, 2, & 3 and
Rider(s) 1, 2, 3, 4, 5 & 6 attached hereto are hereby made a part hereof for all
purposes.
15
<PAGE>
IN TESTIMONY WHEREOF, the parties hereto have executed this Lease as of
the date aforesaid.
LESSOR:
NOWLIN PARTNERS
a Delaware General Partnership
By: SAN ANTONIO PROPERTIES, L.P.
Delaware Limited Partnership
General Partner
By: NOWLIN PROPERTIES, INC.
Delaware Corporation
General Partner
By: [ILLEGIBLE]
--------------------------
LESSEE:
U.S. LONG DISTANCE, INC.
By: /s/ LARRY M. JAMES
----------------------------------
Name: Larry M. James
----------------------------------
Title: President & CEO
----------------------------------
16
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION
3.33 acres including all of the land known as
Lot 57, Block 5, NCB 11715, Nowlin Subdivision,
City of San Antonio, Bexar County Texas, according
to Plat recorded in Volume 9515, Page 179.
<PAGE>
EXHIBIT B
FLOOR PLAN - LEVEL 1
[GRAPHIC]
<PAGE>
EXHIBIT B
FLOOR PLAN - LEVEL 2
[GRAPHIC]
<PAGE>
EXHIBIT B
FLOOR PLAN - LEVEL 3
[GRAPHIC]
<PAGE>
EXHIBIT B
FLOOR PLAN - LEVEL 4
[GRAPHIC]
<PAGE>
EXHIBIT B
FLOOR PLAN - LEVEL 8
[GRAPHIC]
<PAGE>
EXHIBIT B
FLOOR PLAN - LEVEL 9
[GRAPHIC]
<PAGE>
SCHEDULE 1
SPECIAL AIR CONDITIONING AND HEATING SERVICES
1. AIR CONDITIONING AND HEATING:
Building standard air conditioning throughout the Premises commencing with
the Commencement Date.
Lessor will furnish at its expense building standard air conditioning
and heating from 7 a.m. to 7 p.m. five days a week, that is, from
Monday through Friday, inclusive, and from 8 a.m. to 2 p.m. on
Saturdays, exclusive of holidays. Upon request of Lessee, lessor will
furnish air conditioning and heating at other times (that is, at times
other than the times specified above); provided, however, Lessee shall
reimburse Lessor for furnishing such services at $30.00 per hour of
overtime air conditioning.
2. SUB-METERED ELECTRICAL
LESSEE, AT LESSEE'S SOLE COST AND EXPENSE, SHALL BE RESPONSIBLE FOR THE
MAINTENANCE AND REPAIR OF ALL OF LESSEE'S CURRENT AND FUTURE ELECTRICAL
SUB-METERS AND SUB-METERED EQUIPMENT, AS WELL AS ALL ELECTRICAL
SUB-METERED CONSUMPTION IN RELATION TO THE PREMISES AND LESSEE'S
SIGNAGE.
3. HOLIDAYS:
The following dates shall constitute "holidays" as said term is used in
this Lease:
(a) New Year's Day
(b) Memorial Day
(c) Independence Day
(d) Labor Day
(e) Thanksgiving Day
(f) Friday following Thanksgiving Day
(g) Christmas
(h) Any other holiday recognized and taken by Lessees occupying at least
one-half (1/2) of the net rental area of office space of the Building.
If in the case of any holiday a different day shall be observed, other than the
respective day above-described, then that day which constitutes the day observed
by national banks in San Antonio, Texas, on account of such holiday shall
constitute the holiday under this Lease.
<PAGE>
SCHEDULE 2
CONSTRUCTION WORK LETTER
1. The work to be done shall be in accordance with the plans and
specifications prepared by LESSEE'S ARCHITECTS AND AS APPROVED BY LESSOR AND
REQUIRED GOVERNMENTAL AGENCIES, hereinafter referred to as the "Work", is
described as follows: Leasehold Improvements for THE PREMISES AND ALL OF
LESSEE'S SIGNAGE in The Nowlin Building located at 9311 San Pedro, San Antonio,
Texas 78216.
2. Lessee, at Lessee's sole cost and expense, shall pay all costs
(including but not limited to space planning, construction drawings, MEP
drawings, engineering, general contracting and subcontracting fees, remodeling
sales tax, etc.) associated with the Work.
3. LESSOR MAKES NO EXPRESS OR IMPLIED WARRANTIES.
4. Lessee shall insure that any contractor engaged by Lessee shall deliver
to Lessor prior to commencement of the Work a certificate denoting the required
insurances. During the period of construction, any independent contractors
engaged by Lessee shall obtain and maintain insurance in form, type, and amount
acceptable to Lessor, including but not limited to the following:
COMPREHENSIVE GENERAL LIABILITY INSURANCE, including products and
operations and contractual liability insurance, endorsed with Broad
Form Property Damage Endorsement (including products and completed
operations, coverage to remain in force for two (2) years following
completion of the Work) in such limits as required by Lessor and naming
Lessor, its architect, and contractors as additional insureds.
WORKMEN'S COMPENSATION INSURANCE in statutory form and amount covering
operations of contractor and its sub-contractor and subcontractors
performed in connection with the Work, endorsed with Waiver of
Subrogation with respect to Lessor and its architect and contractors.
5. LIEN WAIVER - Lessee shall cure immediately any and all liens that may
be placed on the Nowlin Building, as a result of their contractors or
subcontractors.
<PAGE>
SCHEDULE 3
BUILDING RULES AND REGULATIONS
1. Sidewalks, doorways, vestibules, halls, stairways and other similar
areas shall not be used for the disposal of trash; be obstructed
by Lessees; or used by Lessees for any purpose other than entrance
and exit to and from their leased areas and for going from one
part of the Building to another part of the Building.
2. Plumbing fixtures shall be used only for the purposes for which they
are designed, and no sweepings, rubbish, rags or other unsuitable
materials shall be disposed into them. Damage resulting to any
such fixtures from misuse by a Lessee shall be the liability of
that Lessee.
3. Signs, advertisements, graphics or notices visible in or from public
corridors or from outside the Building shall be subject to
Lessor's prior written approval.
4. No Lessee will make any alterations or physical additions in or to
ITS LEASED SPACE without first obtaining the written consent of
Lessor.
5. All locks for doors in each Lessee's leased areas shall be building
standard and no Lessee shall place an additional lock or locks on
any door in its leased area without written consent. All requests
for duplicate keys shall be made to Lessor.
6. Movement in or out of the Building of furniture, office equipment,
or any other bulky or heavy materials shall be restricted to such
hours as Lessor designates. At least forty-eight hours advance
written notice of intent to move such items must be made to
Lessor. Lessor will determine the method and routing of said
items so as to ensure the safety of all concerned.
7. All routine deliveries to a Lessee's leased area during 8:00 a.m. to
5:00 p.m. weekdays shall be made through the designated elevators.
Passenger elevators are to be used only for the movement of
persons, unless an exception is approved by Lessor.
8. Lessor shall have the authority to prescribe the weight and manner
that safes and other heavy equipment are positioned.
9. Corridor doors, when not in use, shall be kept closed.
10. Lessee space that is visible from public areas must be kept neat
and clean.
11. All freight elevator lobbies are to be kept neat and clean. The
disposal of trash or storage of materials in these areas is
prohibited.
12. No birds or animals shall be brought into or kept in, on or about
public or a Lessee's leased space.
13. No Lessee shall tamper with or attempt to adjust temperature control
thermostats in its leased space. Lessor shall adjust thermostats
as required to maintain the building standard temperature, as
determined by Lessor. It is requested that all window blinds
remain drawn to help maintain comfortable room temperatures and
conserve energy.
14. Lessee must comply with all requirements necessary for control of
the Building both during business hours and after hours and on
weekends.
15. Lessees are requested to lock all office doors leading to corridors
and to turn out all lights at the close of their working day.
16. All Lessee modifications resulting from remodeling in or to its
leased area must conform with the City of San Antonio
Building/Fire Codes. Lessees shall inform
<PAGE>
Lessor of any such modifications and shall deliver "as built"
plans therefore to Lessor upon completion.
17. Lessor reserves the right to rescind any of these rules and
regulations and to make such other and further rules and
regulations as its judgment shall, from time to time, be required
for the safety, protection, care and cleanliness of the Building,
the operation thereof, the preservation of good order therein and
the protection and comfort of the Lessees and their agents,
employees and invitees. Such rules and regulations, when made and
when written notice thereof is given to a Lessee, shall be binding
upon it in like manner as if originally herein prescribed.
18. Lessor will not be liable or responsible for lost or stolen money,
or other personal property, regardless of whether such loss occurs
when the areas are locked against entry or not.
<PAGE>
RIDER NO. 1
GARAGE PARKING
Lessor hereby agrees to make available to Lessee, and Lessee hereby
agrees to take, during the full term of this Lease, permits to park, on an
unassigned basis, TWO HUNDRED SIXTY-EIGHT (268) automobiles and on an
assigned/reserved basis, TWENTY-NINE (29) automobiles (hereinafter
called the "Garage Parking Permits") in the parking garage adjacent to the
Building (hereinafter called the "Garage") constructed on the Land, at no
charge to Lessee.
In the event all or part of the Garage shall be taken or condemned
for any public purpose or in the event of destruction of all or part of
the Garage due to fire or other casualty, the obligations set out in this
Rider No. 1, at the option of Lessor, shall cease and terminate. If
Lessor elects to rebuild the Garage, such obligations shall continue,
provided that the rental for the Garage shall abate during such time as
parking is unavailable in the Garage. Lessor shall only be obligated to
rebuild to the extent of the amount of insurance or condemnation proceeds
received by Lessor.
<PAGE>
RIDER NO. 2
-----------
RENEWAL OPTION
Subject to the conditions set out below and provided Lessee is not in
default under this Lease either at the time it exercises this option to
extend or at the time such option term commences, Lessee is hereby granted
the option to extend the term of this Lease for TWO (2) successive epriods,
the first period for a term of TWO (2) years and the second period for a term
of FIVE (5) years, respectively, (collectively the "Renewal Terms" and
individually a "Renewal Term"). The first Renewal Term shall commence at the
expiration of the initial term of this Lease and the second Renewal Term
shall commence at the expiration of the first Renewal Term.
To exercise this option, Lessee must deliver written notice (an "Extension
Notice") of such election to Lessor at least SIX (6) months prior to the
expiration of the initial term of this Lease or first Renewal Term,
respectively. The Renewal Terms shall be upon the same terms and conditions of
this Lease, except:
(a) the Base Rental for the first Renewal Term shall be $16.00 per
rentable square foot per annum, and
(b) the Base Rental for the second Renewal Term shall be the then current
market rate for comparable properties in the market place for like space,
for a like term taking into consideration all factors involved in the
Lease, such as market concessions, finish-out costs and other similar
factors, or the lack thereof.
Lessee's failure to exercise timely an extension option for any reason
whatsoever shall conclusively be deemed a waiver of such option. Lessee shall
have no guaranteed right to extend this Lease beyond the expiration of the
second Renewal Term unless subsequently agreed to by Lessor and Lessee.
IN THE EVENT LESSEE EXERCISES LESSEE'S OPTION TO EXTEND FOR THE FIRST
RENEWAL TERM, LESSOR AGREES TO PAY A COMMISSION OF 1.67% TO SOUTHWEST REALTY
MANAGEMENT, INC. AND 3.33% TO THE PINNACLE GROUP. THE COMMISSION SHALL BE
PAYABLE ON THE GROSS BASE RENTAL SPECIFIED IN THE FIRST RENEWAL TERM AND SHALL
BE PAID UPON THE FULL EXECUTION OF THE EXTENSION AGREEMENT BETWEEN LESSOR AND
LESSEE.
<PAGE>
RIDER NO. 3
-----------
PREFERENTIAL RIGHT OF FIRST REFUSAL
Provided that Lessee is not then in default of any of the terms or
provisions of this Lease during the original term of this Lease, or, if
applicable, any Renewal Term, then Lessee shall have the Preferential Right of
First Refusal on all space in the Building as it becomes available for lease
(whether such space is presently leased or unleased). Such right shall be
subordinate to all other existing lessee's rights to the premises. Lessor shall
not enter into a lease of such space (except with Lessee) except on compliance
with the following procedure.
(1) Lessee shall be notified of any space available for Lease in the
Building (whether or not such space is contiguous to the Premises and
whether or not Lessee has previously declined to Lease such space).
(2) Lessee shall then have a period of five (5) business days from
receipt of such notice from Lessor within which to elect whether to
include such space under this Lease. The Base Rental for such space shall
be at the then current market rental rate. In the event Lessee elects to
lease such space, an amendment of this Lease shall be executed by Lessor
and Lessee after Lessor has submitted to Lessee copies of such amendment
for execution purposes. The Lease term for such space shall commence upon
the date of tender of possession by Lessor and shall continue for the then
unexpired current term (original or any renewal term, as the case may be)
of the Lease.
(3) Lessee agrees to accept such space in an "as is" condition.
(4) In the event of failure by Lessee to timely exercise its Preferential
Right of First Refusal to enter into such lease, Lessor may enter into a
lease with a bona fide lessee; but, if for any reason such lease between
Lessor and a bona fide lessee is not executed within ninety (90) days
following the notice to Lessee, then Lessor shall not be free to lease such
space without again offering to lease such space to Lessee in the same
manner as provided for above.
<PAGE>
RIDER NO. 4
-----------
TERMINATION OPTION
Beginning April 1, 1997, and continuing thereafter, provided Lessee is
not then in default under the Lease beyond any grace or curative period,
Lessee shall have the right to terminate this Lease. The said termination
right shall be exercised by Lessee (i) giving Lessor prior written notice of
termination of at least one hundred eighty (180) days, and (ii) Lessee paying
to Lessor liquidated damages in the amount of $675,000.00 which sum shall be
reduced by $8,000.00 per month for each month after April 1, 2002, in which
such termination occurs.
Lessor and Lessee stipulate and agree that such termination payment is not
a penalty but a reasonable estimate of Lessor's loss should Lessee timely
exercise its termination option. If Lessee fails to timely notify Lessor of its
exercise of the termination option or fails to pay the termination payment, the
option shall not be effective. Exercise of the termination option shall not
affect Lessee's obligations under this Lease through the date of termination.
Any termination shall not affect the ninth (9th) floor space (Suite 900)
consisting of approximately 7,986 square feet of net rentable area, which shall
continue on the same terms and conditions as set forth in the Lease.
<PAGE>
RIDER NO. 5
-----------
SCHEDULE OF JANITORIAL SERVICES
A. OFFICE AREAS
1. Empty, clean and damp dust all waste receptacles and remove waste
paper and rubbish from the premises nightly; wash receptacles as
necessary.
2. Empty and clean all ash trays, screens, and sand urns nightly and
supply and replace sand as necessary.
3. Vacuum all rugs and carpeted areas in offices, lobbies, and
corridors nightly.
4. Hand dust and wipe clean with damp or treated cloth all office
furniture, files, fixtures, panelling, window sills, and all other
horizontal surfaces nightly; wash window sills when necessary. Desks
and other furniture must be reasonably cleared of all items by Lessee
to be eligible hereunder.
5. Damp wipe and polish all glass furniture tops nightly. Furniture
must be reasonably cleared of all items by Lessee to be eligible
hereunder.
6. Remove all finger marks and smudges from all doors, door frames
around light switches, private entrance glass and partitions nightly.
7. Wash clean all water coolers nightly.
8. Police all stainless throughout the entire building daily and keep
in clean condition.
9. Damp mop spillage in office and public areas as required.
10. Damp dust all telephones as necessary.
B. WASH ROOMS
1. Mop, rinse and dry floors nightly.
2. Scrub floors as necessary.
3. Clean all mirrors, bright work, and enameled surfaces nightly.
4. Wash and disinfect all basins, urinals and bowls nightly, using
scouring powder to remove stains and clean undersides of rims of urinals
and bowls.
5. Wash both sides of all toilet seats with soap and water and
disinfect nightly.
6. Damp wipe nightly, wash with disinfectant when necessary, all
partitions, tile walls, and outside surface of all dispensers and
receptacles.
7. Empty and sanitize all receptacles and sanitary disposals nightly;
thoroughly clean and wash at least once per week.
8. Fill toilet tissue, soap, towel, sanitary napkin dispensers nightly.
9. Clean flushometers, piping, toilet seat hinges and other metal work
nightly.
10. Wash and polish all walls, partitions, tile walls and enamel
surfaces from top to floor monthly.
11. Vacuum all louvers, ventilating grills and dust light fixtures
monthly.
<PAGE>
C. FLOORS
1. Ceramic tile, to be swept and buffed nightly and washed or scrubbed
as necessary.
2. Vinyl asbestos, asphalt, vinyl, rubber or other composition floors
and bases to be swept nightly. Such floors in public areas on multiple
tenancy floors to be waxed and buffed monthly.
3. Tile floors in office areas will be waxed and buffed monthly.
4. All floors stripped and rewaxed as necessary.
5. All carpeted areas and rugs to be vacuum cleaned nightly.
6. Carpet shampooing will be performed at Lessee's request and billed
to Lessee.
D. GLASS
1. Clean glass entrance doors and adjacent glass panels nightly.
E. HIGH DUSTING (QUARTERLY)
1. Dust and wipe clean all closet shelving when empty and carpet sweep
or dry mop all floors in closets if each are empty.
2. Dust all picture frames, charts, graphs, and similar wall hangings.
3. Dust clean all verticle surfaces such as walls, partitions, doors,
door bucks and other surfaces above shoulder height.
4. Damp dust all ceiling air conditioning diffusers, wall grills,
registers and other ventilating louvers.
5. Dust the exterior surfaces of lighting fixtures, including glass and
plastic enclosures.
F. DAY SERVICE
1. Periodically each day, check men's washrooms for soap, towels and
toilet tissue replacements.
2. Periodically each day, check ladies' washrooms for soap, towels and
toilet tissue and sanitary napkin replacements.
3. As needed, cleaning of elevator cabs will be performed.
4. There will be constant surveillance of public areas to insure
cleanliness.
G. GENERAL
1. Wipe all interior metal window frames, mullions and other unpainted
interior metal surfaces of the perimeter walls of the building each
time the interior of the windows is washed.
2. Keep slopsink rooms in a clean, neat and orderly condition at all
times.
3. Wipe clean and polish all metal hardware fixtures and other bright
work nightly.
<PAGE>
RIDER NO. 6
-----------
LESSEE'S SIGNAGE
Lessee shall continue the maintenance of all of Lessee's signage on the
outside surface of the Nowlin Building and on the monument signage at the
front of the property identifying U.S. Long Distance, Inc. Lessee shall
maintain adequate insurance naming Lessor as an additional insured covering
all risks associated with said sign or signs during installation, existence
and removal. Lessee shall also assure compliance with all applicable local,
state and national laws, rules and regulations.
Lessee agrees to pay all costs associated with the design, construction,
installation, maintenance, and removal of said signs and shall hold Lessor
harmless against all claims, liens and other actions resulting from said Lessee
signs.
In the event Lessee defaults on this Lease, assigns or terminates this
Lease, changes corporate names or otherwise causes said sign or signs to be of
no use, Lessee shall promptly remove or replace as appropriate said sign or
signs and return the outside surface of the Building and monument signage to its
original condition or a condition satisfactory to Lessor. All costs of such
replacement or removal and disposition shall be at Lessee's expense.
Any changes to the design, materials, installation, maintenance, number and
location of such signs shall be subject to Lessor's prior written approval and
consent.
<PAGE>
EXHIBIT 11.1
U.S. LONG DISTANCE CORP. AND SUBSIDIARIES
COMPUTATION OF EARNINGS PER SHARE
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
THREE MONTHS ENDED SIX MONTHS ENDED
MARCH 31, MARCH 31,
------------------ ----------------
1997 1996 1997 1996
---- ---- ---- ----
<S> <C> <C> <C> <C>
Primary
Earnings:
Net income (loss) from continuing operations . . . . . . . . . $ 1,445 $(1,078) $ 2,598 $(1,924)
Net income from discontinued operations. . . . . . . . . . . . 0 5,022 0 8,970
------- ------- ------- -------
Net income applicable to common stock. . . . . . . . . . . . . $ 1,445 $ 3,944 $ 2,598 $ 7,046
------- ------- ------- -------
------- ------- ------- -------
Shares:
Weighted average number of shares of common stock
outstanding . . . . . . . . . . . . . . . . . . . . . . . . 15,285 14,447 15,175 14,272
Weighted average common share equivalents applicable
to stock options and warrants . . . . . . . . . . . . . . . 1,138 742 1,111 749
------- ------- ------- -------
Weighted average shares used for computation . . . . . . . . . 16,423 15,189 16,286 15,021
------- ------- ------- -------
------- ------- ------- -------
Primary earnings per common share:
Net income (loss) from continuing operations . . . . . . . . . $ 0.09 $ (0.07) $ 0.16 $ (0.13)
Net income from discontinued operations. . . . . . . . . . . . 0.00 0.33 0.00 0.60
------- ------- ------- -------
Net income applicable to common stock. . . . . . . . . . . . . $ 0.09 $ 0.26 $ 0.16 $ 0.47
------- ------- ------- -------
------- ------- ------- -------
Fully Diluted (a)
Earnings:
Net income (loss) from continuing operations . . . . . . . . . $ 1,445 $(1,078) $ 2,598 $(1,924)
Net income from discontinued operations. . . . . . . . . . . . 0 5,022 0 8,970
------- ------- ------- -------
Net income applicable to common stock. . . . . . . . . . . . . $ 1,445 $ 3,944 $ 2,598 $ 7,046
------- ------- ------- -------
------- ------- ------- -------
Shares:
Weighted average number of shares of common stock
outstanding . . . . . . . . . . . . . . . . . . . . . . . . 15,285 14,447 15,175 14,272
Weighted average common share equivalents applicable
to stock options and warrants . . . . . . . . . . . . . . . 1,257 893 1,171 1,018
------- ------- ------- -------
Weighted average shares used for computation . . . . . . . . . 16,542 15,340 16,346 15,290
------- ------- ------- -------
------- ------- ------- -------
Fully diluted earnings per common share:
Net income (loss) from continuing operations . . . . . . . . . $ 0.09 $ (0.07) $ 0.16 $ (0.13)
Net income from discontinued operations. . . . . . . . . . . . 0.00 0.33 0.00 0.59
------- ------- ------- -------
Net income applicable to common stock. . . . . . . . . . . . . $ 0.09 $ 0.26 $ 0.16 $ 0.46
------- ------- ------- -------
------- ------- ------- -------
</TABLE>
(a) This calculation is submitted in accordance with Regulation S-K item
601(b)(11) although not required by APB Opinion No. 15 because it results
in dilution of less than 3%.
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS FOR US LONG DISTANCE CORP. AND
SUBSIDIARIES AS OF AND FOR THE SIX MONTHS ENDED MARCH 31, 1997 AND IS QUALIFIED
IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> SEP-30-1997
<PERIOD-START> OCT-01-1996
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