<PAGE> 1
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
FORM 10-K
<TABLE>
<S> <S>
(MARK ONE)
X ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF
---- THE SECURITIES EXCHANGE ACT OF 1934 [FEE REQUIRED]
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1996
OR
---- TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934 [NO FEE REQUIRED]
FOR THE TRANSITION PERIOD FROM ------------ TO ------------
</TABLE>
COMMISSION FILE NO. 0-28196
------------------------------
PAGEMART WIRELESS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
<TABLE>
<S> <C>
DELAWARE 75-2575229
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
</TABLE>
6688 NORTH CENTRAL EXPRESSWAY, SUITE 800
DALLAS, TEXAS 75206
(Address of principal executive offices)
(Registrant's telephone number, including area code): (214) 750-5809
------------------------------
SECURITIES REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT: NONE
SECURITIES REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
TITLE OF EACH CLASS
---------------
Class A Common Stock --
par value $0.0001 per share
------------------------------
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
The aggregate market value of the voting stock held by non-affiliates of
the Registrant, based upon the closing sale price of the Common Stock on
February 28, 1997 as reported on the NASDAQ National Market System, was
approximately $45,391,200. Shares of Common Stock held by each executive officer
and director and by each person who owns 5% or more of the outstanding Common
Stock have been excluded in that such persons may be deemed to be affiliates.
This determination of affiliate status for this purpose is not necessarily a
conclusive determination for other purposes.
As of February 28, 1997, 33,946,152 shares of the Registrant's Class A
Common Stock were outstanding.
DOCUMENTS INCORPORATED BY REFERENCE:
Portions of the Registrant's Proxy Statement for its Annual Meeting of
Shareholders scheduled to be held on May 20, 1997, are incorporated by reference
into Part III (items 10, 11, 12 and 13) hereof.
================================================================================
<PAGE> 2
PART I
ITEM 1. BUSINESS
GENERAL
PageMart Wireless, Inc. (hereinafter referred to together with its
subsidiaries as the "Company") is one of the fastest growing providers of
wireless messaging services in the United States. The Company has grown to
become the sixth largest paging carrier in the United States, based on 1,859,407
subscribers at December 31, 1996. The Company's number of subscribers has
increased at annual growth rates of 136%, 60% and 50% in 1994, 1995 and 1996,
respectively. The Company has made no acquisitions, and all subscriber growth
has been internally generated.
The Company offers local, multi-city, regional and nationwide paging and
other one-way wireless services in all 50 states, covering 90% of the population
of the United States. The Company also provides services in Puerto Rico, the
U.S. Virgin Islands and the Bahamas, and Canada. On February 25, 1997, the
Company announced an expansion of services into Mexico and most of Central
America through its affiliation with Buscatel, a subsidiary of Telefonos de
Mexico ("TelMex"), Mexico's largest telecommunications company, as well as other
firms in Central America. The Company employs a digital, state of the art
transmission network that is 100% FLEX(R) enabled, allowing the use of high
speed messaging technology thereby providing increased transmission capacity.
The Company was incorporated in Delaware on November 29, 1994 as a
wholly-owned subsidiary of PageMart, Inc. ("PageMart"). Effective January 19,
1995, PageMart merged with a wholly-owned subsidiary of the Company, pursuant to
which PageMart was the surviving corporation (the "Reorganization"). As part of
the Reorganization, each share of outstanding common stock of PageMart was
converted into the right to receive one share of common stock of the Company.
Upon consummation of the Reorganization, the stockholders of PageMart had the
same ownership interest in the Company as they had in PageMart, and the Company
owned all of the capital stock of PageMart. On December 28, 1995, the name of
the Company was changed from PageMart Nationwide, Inc. to PageMart Wireless,
Inc.
OPERATING STRATEGY
The Company attributes the significant growth of its paging business to the
successful implementation of its six operating principles: (i) diversified
distribution channels, (ii) nationwide and NAFTA-wide common frequency, (iii)
efficient network architecture, (iv) spectrum-rich frequency position, (v)
centralized administration and (vi) customer service capabilities.
DIVERSIFIED DISTRIBUTION CHANNELS. The Company utilizes a number of
distribution channels to market its products and services, including retail
marketing, private brand strategic alliances and national sales offices.
Retail Marketing. The Company believes that it is a leading
supplier of paging units to consumers through retail distribution
channels. The Company has been selected as the pager supplier for a
number of leading retail chains, including Office Depot Inc.,
RadioShack, a division of Tandy Corporation, Federated Department
Stores, Inc., Target Stores, Inc. and Best Buy, Inc.
Private Brand Strategic Alliances. The Company was one of the first
paging companies to broaden its distribution reach by establishing
strategic relationships with large communications providers. The Company
has established strategic relationships with GTE Corporation,
Southwestern Bell Mobile Systems, AT&T Wireless Services, Ameritech
Mobile Services, Inc., EXCEL Communications, Inc. and Puerto Rico
Telephone Company.
National Sales Offices. The Company's national sales offices sell
equipment and services through four distribution channels: direct sales,
agents, third-party resellers and local retailers. The Company has a
direct sales force presence in approximately 80 Metropolitan Statistical
Areas ("MSAs") through 65 offices.
2
<PAGE> 3
Management believes that a diversified approach to distribution is
important to sustain growth as paging services more deeply penetrate the
United States population, especially the consumer market. This
diversification is a key element of the Company's strategy of expanding its
subscriber base as rapidly as possible to increase profitability and cash
flow through greater utilization of its nationwide wireless communication
network.
NATIONWIDE AND NAFTA-WIDE COMMON FREQUENCY. The Company has
constructed its nationwide messaging network on a common frequency. Use of
a common frequency provides the Company with a number of important
strategic advantages not available to many of its competitors which operate
on multiple frequencies across markets. The use of a common frequency
across the United States enables the Company's customers to travel
throughout the United States while continuing to use the same messaging
device. In addition, the use of a common frequency has been expanded to
encompass the countries that are parties to the North American Free Trade
Agreement ("NAFTA"), which enables customers to travel to Canada, the
Bahamas and, by the third quarter of 1997, Mexico and Central America. As a
result, the Company is able to provide multi-city coverage customized to
accommodate the customer's needs ("coverage on demand"). The common
frequency also provides a competitive advantage to the Company when
marketing its services to regional and national retailers and private brand
strategic alliance partners. These distributors are able to buy the paging
unit without being limited by where they can distribute the product or by
the service they sell with the unit. This allows retailers and strategic
partners to offer customers all service options while minimizing the number
of stock keeping units ("SKUs") that the distributor must carry, thus
reducing inventory carrying costs. In addition, the flexibility of the
Network enables the Company to address many of the reasons for customer
disconnections, such as a move to another city or a desire to expand
coverage. The Company's average monthly disconnection rates for the twelve
months ended December 31, 1995 and 1996 were 2.5% and 2.4%, respectively.
EFFICIENT NETWORK ARCHITECTURE. The Company is an industry leader in
the implementation of advanced telecommunications technologies, including
pioneering the use of direct broadcast satellite ("DBS") technology for
paging. The Company's nationwide wireless transmission network is 100%
controlled by DBS technology, which gives the Company a flexible, highly
reliable and efficient network architecture. The use of DBS technology
eliminates the need for expensive terrestrial radio frequency ("RF")
control links and repeater equipment while enabling the Company to provide
a wide range of coverage options. The Company's network covers the top 300
MSAs across the United States, or approximately 90% of the total population
in the United States and is designed to serve a larger subscriber base than
the one currently served by the Company. The Company's wireless
transmission network is 100% FLEX(R) enabled, allowing the use of the high
speed FLEX(R) protocol to transmit messages and maximize system capacity.
SPECTRUM-RICH FREQUENCY POSITION. The Company ranks among the top four
paging carriers in the United States in licensed nationwide frequencies.
The Company's exclusive frequency licenses include two nationwide paging
frequencies and 150 kHz of nationwide Narrowband Personal Communications
Service ("NPCS") frequency (the "NPCS Licenses"). The Company believes that
this frequency has important strategic value because it may enable the
Company to grow its one-way subscriber base and to provide two-way
messaging and other value-added services to its subscribers. As a result,
the Company believes its spectrum-rich frequency position enables it to
attract private brand strategic alliance partners.
CENTRALIZED ADMINISTRATION. The Company has centralized customer
service, information systems, inventory control and distribution, finance
and marketing functions. This centralized administration has enabled the
Company to become one of the lowest cost providers of paging and other
one-way wireless communications services in the United States. In addition,
the administrative infrastructure is designed to support a significantly
larger customer base than that currently served by the Company, which will
allow it to realize additional operating efficiency as the Company
continues to grow.
CUSTOMER SERVICE CAPABILITIES. Management has focused on developing
industry-leading customer service capabilities. The Company employs
approximately 600 highly trained customer service personnel
3
<PAGE> 4
operating in state of the art call center facilities. Management believes
that these services are an important factor in supporting and retaining its
strategic partners, retailers and subscribers.
INTERNATIONAL EXPANSION
The Company plans to provide messaging services in selected countries on a
seamless international network. Management believes that its technology,
operational structure and distribution strategies can be replicated in foreign
countries to establish nationwide wireless networks. In each country in which
the Company plans to offer paging and messaging services, the Company will seek
to obtain or have a local affiliate obtain a nationwide frequency common to at
least one of the nationwide frequencies it holds in the United States in order
to allow a single messaging device to be used in multiple countries. The Company
expects to pursue international opportunities through minority interests in
joint venture arrangements or network affiliation agreements whereby the Company
would contribute its expertise in designing and managing messaging services with
minimal incremental capital investments.
The Company's international strategy is initially to pursue opportunities
in North America, Central America and South America. One of the Company's
affiliates, PageMart Canada Limited ("PageMart Canada"), has obtained a
nationwide license in Canada based on a frequency common to one of its
frequencies in the United States. PageMart Canada began providing service in the
largest metropolitan areas in Canada to United States subscribers in March 1996
and to Canadian subscribers in April 1996. The Company also provides paging
coverage in the Bahamas, Puerto Rico and the U.S. Virgin Islands.
The Company has entered into an exclusive ten year network affiliation
agreement with Telefonos de Mexico through its wholly owned subsidiary,
Buscatel. TelMex has acquired in Mexico the same nationwide frequency the
Company uses nationwide in the United States and Canada and has installed it in
all 33 markets where Buscatel operates. The agreement provides for the linking
of these respective systems so as to provide generally similar services
including local, regional, nationwide and international coverage options all on
the same frequency. The companies will also facilitate roaming between systems.
Under the terms of the agreement, the Company and Buscatel will integrate
networks to enable efficient, user transparent messaging. The companies will
jointly expand coverage, concentrating initially on major cities located along
the 2,000-mile United States/Mexico border. The two companies will also jointly
market services and co-brand pagers where appropriate. With the addition of
Mexico via the TelMex agreement, PageMart offers true NAFTA-wide coverage.
PageMart has also signed network affiliation agreements with leading paging
companies in El Salvador, Guatemala, Honduras, Costa Rica and Panama. As in the
case of Mexico, the same nationwide 900MHz frequency used by the Company has
been licensed by the Company's network affiliates in each country. The extension
of the companies' services, including roaming, to these areas will allow the
PageMart network to offer paging from the Panama Canal to Canada.
The common frequency allows the Company's affiliates in each country to
provide customized coverage that extends beyond the borders of the serving
country, using the same pager. For example, a subscriber in New York could
choose New York and Toronto or Mexico City coverage.
NPCS MESSAGING STRATEGY
One of the Company's principal strategies is to become a leading provider
of two-way messaging services in the United States. Management believes that the
introduction of two-way messaging services may present significant future growth
opportunities to the Company by enabling it to provide a new generation of
advanced messaging services, to new and existing subscribers.
The Company's NPCS messaging strategy is founded on four principal
competitive advantages: (i) nationwide spectrum, (ii) incremental introduction
of technology, (iii) established diversified distribution channels and (iv)
operating efficiency.
NATIONWIDE SPECTRUM. With the acquisition of the NPCS Licenses, the Company
became one of four companies in the United States with 150 kHz or more of
nationwide NPCS frequency. As a result, the
4
<PAGE> 5
Company is positioned to create a nationwide network capable of delivering
local, multi-city, regional, or nationwide data or stored voice messaging
services to a large number of subscribers.
INCREMENTAL INTRODUCTION OF TECHNOLOGY. When ready, the Company intends to
deploy NPCS data messaging technology by building upon its one-way transmission
network, enabling the Company to minimize the level of capital expenditures and
investments. The Company will continue to monitor voice paging opportunities and
technologies and may introduce one-way and /or two-way stored voice service
depending on market demand for such services.
ESTABLISHED DIVERSIFIED DISTRIBUTION CHANNELS. The Company plans to
leverage its established diversified distribution channels to achieve efficient
market penetration of its advanced messaging services.
OPERATING EFFICIENCY. The Company expects to utilize its existing one-way
network and centralized administration to minimize incremental costs of product
and service expansion. Management believes that the Company's centralized
customer service, information systems, inventory control and distribution,
finance and marketing organizations will be capable of supporting the Company's
two-way strategy.
As a result of these operating advantages, the Company plans to offer an
array of advanced messaging services at affordable prices that the Company
believes should appeal to a large number of potential subscribers and to its
current distribution channels.
In 1996, the Company began testing both NPCS data and stored voice
messaging services. Upon successful completion of testing, the two-way data
messaging network is expected to be deployed on a city-by-city basis. Advanced
data messaging services include guaranteed alphanumeric message delivery with
acknowledgment and message with response capabilities.
ONE-WAY MESSAGING OPERATIONS
COAM STRATEGY
The Company's operating model is unique in the industry in that it follows
a strategy of selling rather than leasing messaging equipment to subscribers. As
of December 31, 1996, approximately 98% of the Company's messaging units were
COAM, which compares to an industry average of approximately 62%. The Company
believes that by following a COAM strategy it can achieve significantly better
capital efficiency than if it were to follow a lease strategy, which is
reflected in its relatively low capital employed per subscriber of $43 at
December 31, 1996. Capital employed per subscriber represents total assets, less
NPCS Licenses, cash, non-debt current liabilities and international investments
divided by units in service. The Company believes that its COAM strategy
provides additional benefits, including reduced risk of technological
obsolescence and avoidance of the credit risk associated with leasing pagers to
end-users. In addition, management believes that this strategy minimizes its
disconnection rates in the retail channel. See Item 7. Management's Discussion
and Analysis of Financial Condition and Results of Operations.
PAGERS
The Company does not manufacture any of the pagers used in its paging
operations. Currently, the Company buys approximately 60% of its pagers from
Motorola with the remainder purchased from other manufacturers. The Company is
dependent on such manufacturers to obtain sufficient pager inventory for new
subscriber units and replacement needs.
SALES AND MARKETING
The Company's customers include individuals, corporations and other
organizations that desire affordable communication services offering substantial
mobility, accessibility and the ability to receive timely information. The
Company utilizes a number of distribution channels to market its products and
services, including retail marketing, private brand strategic alliances and
national sales offices. Management believes that a diversified approach to
distribution is important to sustain growth as demand for paging services more
deeply penetrates the United States population, especially the consumer market.
This diversification is a key element of the Company's strategy of expanding its
subscriber base to increase profitability and cash flow through greater
utilization of its nationwide wireless communication network. The Company is not
dependent on any
5
<PAGE> 6
single customer or a few customers, the loss of one or more of whom would have a
material adverse effect on the Company.
RETAIL MARKETING
Since early 1993, the Company has been an industry pioneer in developing
the national retail distribution channel through sales arrangements with
regional and national retail chains that sell electronic and business equipment
or consumer goods. The Company provides equipment to a retailer who then sells
the equipment to potential users. Once the unit is purchased, the customer can
activate it and subscribe for local, regional or nationwide paging coverage with
the Company by simply calling the toll-free number identified on the unit.
Because the Company's pagers operate on a common nationwide frequency, they can
be sold in any retail store located in the Company's nationwide coverage area.
By contrast, competitors that use multiple frequencies across markets require
retailers to maintain many more SKUs to serve each local market that utilizes a
different frequency.
The Company has entered into sales arrangements with a number of large
national retail chains such as Office Depot, Inc., RadioShack, a division of
Tandy Corporation, Federated Department Stores, Inc., Target Stores, Inc. and
Best Buy, Inc. Retail distribution also allows the Company to sell pagers in
markets that would not support a direct sales office but in which it has
installed the necessary equipment required for providing paging services. The
Company can thus enter new markets by capitalizing on its existing
infrastructure of transmitters with the only incremental expense being the
procurement of local access phone lines. The Company expects national retail
sales to continue to be an important channel of distribution for pagers. The
number of national retail store locations has increased to 5,530 stores from
3,411 stores and 2,200 stores at December 31, 1996, 1995 and 1994, respectively.
Approximately 25% of the Company's units in service were sold through the
national retail channel.
PRIVATE BRAND STRATEGIC ALLIANCES
The Company has established numerous strategic relationships with large
communications providers. These companies utilize their brand awareness and
billing efficiencies to market private brand pagers and services using the
Company's transmission network. Approximately 18% of the Company's units in
service were sold through private brand strategic alliances, and the Company
expects this proportion to increase over the next several years.
GTE CORPORATION ("GTE"). During 1993 and 1994, the Company and GTE signed a
series of agreements providing for the sale and marketing through GTE of
GTE-labeled services throughout the United States. In addition, several of these
agreements provide for joint cooperation in the deployment of paging network
facilities for the provision of wireless messaging and data transmission in the
United States. Pursuant to the terms of one of the agreements, GTE agreed to
purchase up to 250 new transmitters to be deployed throughout the Company's
nationwide network. The Company leases, operates and maintains the transmitters
and will provide wireless services to GTE customers, as well as customers of the
Company via the Company's nationwide network. The Company's services are sold
across the United States through GTE Telephone Operations, GTE Phone Mart
Stores, GTE Mobilnet and authorized GTE agents.
SOUTHWESTERN BELL MOBILE SYSTEMS ("SBMS"). In May 1995, the Company and
SBMS signed an agreement for the sale and marketing through SBMS of SBMS-labeled
services. After a successful test in several Texas markets in the third quarter
of 1995, SBMS has expanded marketing of the service into all SBMS markets. In
the fourth quarter of 1996, SBMS initiated direct marketing programs to
Southwestern Bell residential telephone customers.
AT&T WIRELESS SERVICES ("AT&T WIRELESS"). In November 1995, the Company and
AT&T Wireless entered into a three-year agreement for the sale and marketing
through AT&T Wireless of AT&T Wireless-labeled services.
AMERITECH MOBILE SERVICES, INC. ("AMERITECH"). In February 1996, the
Company and Ameritech signed an agreement for the sale and marketing through
Ameritech of Ameritech-labeled services.
6
<PAGE> 7
EXCEL COMMUNICATIONS, INC. ("EXCEL"). In March 1996, the Company and EXCEL,
a long distance reseller, signed an agreement for the sale and marketing through
EXCEL of EXCEL-labeled services.
PUERTO RICO TELEPHONE COMPANY ("PRTC"). In December 1996, the Company and
PRTC, the largest provider of telephone and wireless services in Puerto Rico,
signed a ten-year agreement for the resale of PRTC-labeled PageMart services,
and for the sharing of network infrastructure and marketing of United States and
Puerto Rico coverage to existing PageMart and PRTC customers.
NATIONAL SALES OFFICES
The Company's national sales offices sell equipment and services through
four distribution channels: direct sales, agents, third-party resellers and
local retailers. The Company has a direct sales force of 552 personnel located
in approximately 80 MSAs through 65 offices.
DIRECT SALES. The Company markets its equipment and services through its
direct sales force and related marketing activities such as telemarketing and
advertisements in radio, print media and telephone company yellow pages. Direct
sales representatives are paid in part by commission (which varies depending on
the type of service subscribed for and other factors) for each unit sold or
placed in service. Approximately 22% of the Company's units in service were sold
through its direct sales force.
AGENTS. The Company markets its equipment and services through agents.
Agents establish customers which are billed directly by the Company. Agents earn
a commission and a share of future revenues for the customers they establish.
THIRD-PARTY RESELLERS. In addition to offering paging and messaging
services directly to end-users, the Company also provides services under
marketing agreements with third-party resellers. Typically, the Company offers
third-party resellers paging services in bulk quantities at a wholesale monthly
rate that is lower than the Company's regular retail rates. Approximately 35% of
the Company's units in service were sold through third-party resellers.
LOCAL RETAILERS. The Company markets its services under sales arrangements
with local retailers located in the MSAs where national sales offices are
present.
MESSAGING SERVICES
PAGING SERVICES
The Company charges subscribers a monthly fee which covers the paging and
messaging services subscribed for and any additional services purchased by the
subscriber. The amount of the monthly fee varies primarily based on the type of
service provided and the geographic area covered. The Company charges higher
rates for multi-city and nationwide service options.
The Company currently offers the following two basic types of one-way
paging and messaging services.
<TABLE>
<CAPTION>
SERVICE FUNCTIONS
------- ---------
<S> <C>
Numeric paging........................ Provides the subscriber with the telephone number of
the person who is seeking to contact the subscriber.
Numeric pagers can store and retrieve up to 40
numeric messages, which are displayed on a liquid
crystal display.
Alphanumeric paging................... Offers the subscriber the ability to receive a text
message rather than simply a numeric message.
Alphanumeric pagers can store and retrieve up to 40
messages of up to 80 characters each, which are
displayed on a liquid crystal display.
</TABLE>
7
<PAGE> 8
NUMERIC PAGING. Among the Company's subscribers who use a numeric display
pager, a high percentage select local coverage, although the percentage of
subscribers who select multi-city coverage has been increasing. Monthly fees for
regional and national paging coverage are substantially higher than the fees
charged for single local area coverage. The Company's revenues from multi-city
coverage increased to approximately 37% of airtime revenues for the month ended
December 31, 1996 from approximately 28% during the month ended December 31,
1995.
ALPHANUMERIC PAGING. The Company launched its alphanumeric paging services
in July 1993 under the tradenames InfoPage(R) and InfoNowSM, and the number of
subscribers utilizing this service represented approximately 2.8% of the
Company's total subscribers as of December 31, 1996. The percentage of paging
industry subscribers utilizing alphanumeric pagers at the end of 1996 was
reported to be approximately 12%. The Company has not focused a significant
portion of its selling and marketing efforts on alphanumeric paging service,
primarily because technology has inhibited the Company's ability to deliver the
service in a cost effective manner. With the Company's introduction of high
speed FLEX(R) protocols, the Company anticipates alphanumeric paging service
becoming a larger portion of its selling and marketing efforts. The ability of
alphanumeric pagers to deliver longer text messages, including the ability to
store messages received for playback when desired by the subscriber, allows the
Company to charge higher monthly fees for its InfoPage(R) and InfoNowSM services
than for numeric display paging services.
ROAMING SERVICES. infoRoamSM and OmniRoamSM services allow customers the
flexibility to change their local coverage through a simple phone call. Using a
touchtone phone, the customer needs only to enter the area code of the city to
which he or she is traveling and the local coverage is changed. Numeric and text
messages are automatically sent to the customer's "roaming" city until coverage
is moved back to the "home" city. With these services, the customer does not pay
for paging coverage that is not needed, (i.e., nationwide). These services are
available due to the Company's unique network architecture. These products give
the Company's customers the ability to take local coverage with them when they
travel to the more than 1,500 PageMart communities in the United States, Canada,
U.S. Virgin Islands, Puerto Rico and the Bahamas. In 1997, the Company's
customers using these services will be able to roam throughout NAFTA and most
major cities in Central America.
ADDITIONAL VALUE-ADDED SERVICES
In addition to paging services, the Company offers subscribers a number of
additional value-added services, including voice mail services that allow
subscribers to retrieve voice messages from persons attempting to contact the
subscriber. In addition, the Company offers a numeric message retrieval service
which allows a subscriber to retrieve messages that were sent at a time when the
subscriber was outside of his or her service area. Other optional services
include a nationwide toll-free 800 access number for paging subscribers, a
customized voice prompt that allows subscribers to record a personal greeting,
maintenance agreements and loss protection programs. Approximately 22% of the
Company's recurring revenues during the fiscal quarter ended December 31, 1996
were derived from these additional services.
The Company also plans to offer wireless connectivity to the Internet for
message transfer and information requests through the "PageMart Wireless Web"
service utilizing the Company's wireless communications network. These services
will include electronic mail, news and other information delivered to messaging
devices.
NPCS SERVICES
One of the Company's principal strategies is to become a leading provider
of advanced messaging services in the United States utilizing its NPCS two-way
technology and spectrum. Management believes that the introduction of advanced
messaging services may present significant future growth opportunities to the
Company by enabling it to provide a new generation of advanced messaging
services, including two-way data messaging and other services, to new and
existing subscribers.
In 1996, the Company began testing both NPCS data and stored voice
messaging services. Upon successful completion of testing, the two-way data
messaging network is expected to be deployed on a city-by-
8
<PAGE> 9
city basis. Advanced data messaging services include guaranteed alphanumeric
message delivery with acknowledgment and message with response capabilities.
The Company's planned service offerings are expected to be delivered to a
pocket-sized subscriber unit containing a transmitter, enabling it to send a
signal identifying its location to the Company's network. Management estimates
that the Company's enhanced alphanumeric services will be offered to customers
at monthly prices competitive with current one-way alphanumeric paging services
in similar service areas. The Company's service offerings are expected to
include:
ENHANCED ALPHANUMERIC MESSAGING. The Company's enhanced alphanumeric
messaging service will enable the subscriber to receive alphanumeric messages up
to several hundred characters in length (compared to the approximately 80
characters in traditional one-way alphanumeric messaging) which will be input by
either (i) a computer or other software-enabled device with the proper software
and a modem that can access the Company's network directly or via the Internet
or (ii) a dispatch operator. The service is expected to be based on Motorola
Inc.'s ("Motorola") ReFLEX25(TM) technology. This technology will permit the
network to verify that the subscriber unit has obtained the message ("guaranteed
delivery"), that the subscriber has read the message ("read acknowledgement")
and to store the message for later delivery if the subscriber's unit is not
currently available.
The Company believes that penetration of alphanumeric service on a regional
and nationwide basis has been limited to date due to the reluctance of many
one-way paging operators to promote the service because of its relatively high
use of system capacity during transmission. The NPCS Licenses and the
ReFLEX25(TM) technology should offer significant increases in capacity and
delivery speed over the spectrum and technology currently delivering
alphanumeric messaging services. The Company expects that its enhanced
alphanumeric service will improve upon traditional service by permitting longer
messages, by guaranteeing and acknowledging delivery and, eventually, by
permitting the subscriber to initiate responses. Management believes that these
service enhancements, along with its competitive pricing, will appeal to
subscribers of traditional alphanumeric messaging services and to cost conscious
customers who have not previously subscribed to such services.
OTHER SERVICES. Over time, the Company intends to participate in the growth
of wireless data messaging services through new and existing strategic
alliances, wireless data alliances with software companies and electronic
equipment manufacturers to develop additional text messaging services. In
addition to pocket-sized pagers, the Company expects that wireless text and data
transmissions will be received by computers, organizers or a personal digital
assistant equipped with two-way RF modems or built-in RF capability. It is
anticipated that a limited response by the device will be possible.
ONE-WAY TRANSMISSION NETWORK
The Company utilizes DBS technology exclusively in its one-way transmission
network. Although the Company's one-way transmission network is substantially
built out, the Company continues to make expenditures to improve and expand its
coverage into new areas. The Company's use of the DBS system has certain cost
and performance advantages over traditional paging systems and traditional
satellite paging systems.
Traditional Paging Systems. The traditional method of controlling paging
transmitters in local and regional simulcasting systems is to use terrestrial RF
control links that originate from one broadcast transmitter that is controlled
by a local paging terminal. At the paging terminal, the messages are received
and assembled for transmission via RF or wireline control link to each
transmitter. Once a message is received by each transmitter in a simulcast
market, it in turn broadcasts the paging information using the paging broadcast
frequency. The RF control link frequency is different from the paging broadcast
frequency.
In order to simulcast the paging signal, a traditional system must be
fine-tuned ("optimized") so that each transmitter broadcasts the paging signal
at the same time. Optimization becomes more complex and expensive as the service
area expands. In addition, since a traditional system requires line-of-site
transmission of the RF control link signal, repeater stations must be used to
re-broadcast this RF signal in a large system
9
<PAGE> 10
such as the New York or Los Angeles metropolitan areas. The more distant the
transmitter sites are from the central RF control link transmitter, the more
repeaters are necessary. Repeater stations make optimization more difficult and
increase equipment and recurring tower rental costs. For non-contiguous regional
coverage either telephone lines or microwave communication links are typically
used in lieu of RF control links.
Traditional Satellite Paging Systems. Some paging system operators have
adopted an alternative approach using satellites, rather than telephone lines,
to communicate between the paging terminal and the traditional RF control link
systems. Numeric and alphanumeric messages are processed by a central paging
terminal that uplinks the messages to a satellite, which then broadcasts the
messages to the destination cities. The satellite signal is received by one
central RF radio control transmitter paging dish in each city and broadcast via
traditional RF control link transmitters to the paging transmitters in that
city.
With this infrastructure, the satellite is used only in place of other long
distance communication options. Both an RF control link frequency and a paging
signal frequency must be employed as with a traditional system. The current
broadcast configuration employed by many other leading nationwide carriers has
the added inefficiency of satellite transmissions that address their entire
nationwide system or entire regions whenever a page transmission is sent, thus
limiting the total number of subscribers on the system.
The Company's Direct Broadcast Satellite Paging System. The Company has
developed an innovative satellite-based transmission network that gives the
Company a flexible, highly reliable network architecture and an efficient
operating structure. The Company's network is comprised of three primary
components: network access, a nationwide network linking the Company's paging
terminals and a satellite network which controls the Company's transmitters.
The Company's numeric and alphanumeric paging services can be accessed via
local telephone numbers or 800 numbers using a touch-tone key pad or personal
computer messaging software. Local numbers are provided by regional telephone
companies and 800 number service is provided by long distance telecommunications
services providers. The Company uses a nationwide data network to carry all
paging traffic from local telephone markets to its satellite uplink facilities
in Illinois. This network configuration allows the Company to add new lines
quickly and efficiently and provides the Company with back-up power, fire
protection and diverse routing capabilities.
The Company began using DBS technology in 1990 and was the first one-way
wireless communications carrier to use DBS technology to control all of its
transmitters. With a DBS paging system, the satellite can broadcast messages
directly to each transmitter in the Company's paging system, which then
broadcasts the message to pagers on the Company's nationwide broadcast
frequency. DBS eliminates the expensive terrestrial radio link and repeater
equipment that many paging companies have employed to control simulcast
transmissions in large metropolitan markets. In addition, the Company's
satellite system can selectively address one or any combination of its
transmitters, thereby providing a wide range of coverage options and permitting
efficient use of paging frequencies in each market. The Company leases its
satellite services pursuant to the Satellite Service and Space Segment Lease
Agreement, dated January 2, 1995, with SpaceCom Systems, Inc. ("SpaceCom"). The
agreement subjects the Company to monthly service charges based on the amount
and types of services used and expires on January 31, 2002. The agreement may be
terminated by SpaceCom upon certain failures of the Company to pay monthly
service fees. The agreement does not include any renewal provisions. Although
the Company is currently party to only one satellite service agreement,
management believes that the services provided by SpaceCom are sufficient to
meet the Company's foreseeable needs and that there are numerous alternate
satellite sources available to the Company on comparable terms and conditions.
As a result, the Company does not believe the loss of its relationship with its
current satellite supplier would have a material adverse effect on its business
and operations.
Benefits of the Direct Broadcast Satellite. The use of a DBS broadcast
system provides a number of benefits to the Company including:
- Selectively addresses one or all markets to provide a wide range of
local, multi-city, regional or nationwide coverage options. The Company's
system configuration employs a high degree of spectrum
10
<PAGE> 11
efficiency with regard to the paging frequency because only the coverage
area the customer has selected will be activated with each page.
- Replaces terrestrial RF control link equipment with satellite based
equipment and signaling. This eliminates capital expenditures associated
with terrestrial RF control link equipment and the associated
telecommunications expenses, utilities and ongoing site rent and requires
much lower expenditures for satellite receivers and satellite service.
- Suffers significantly less degradation in performance due to building
reflection and simulcasting problems, such as the overlapping of two
independently controlled markets.
- Allows for rapid deployment of the network system because the
transmitters are operational immediately upon installation, while
terrestrial RF control links need to be optimized, which can take up to
three months in some large urban markets.
- Supports the high data rates that will be required in order to
effectively provide enhanced services such as two-way messaging services.
Management believes that this will allow the Company to implement higher
speed signal technologies quickly and in a cost effective manner.
TWO-WAY MESSAGING NETWORK
NARROWBAND PCS PROTOCOLS
Paging networks use various "protocols" to provide seamless communications
between the various components which make up a paging network. Protocols
regulate the format and flow of messages which are transmitted over the network.
As such, protocols facilitate the orderly and efficient flow of message traffic
over the network. Motorola has developed, and licensed to Glenayre Technologies,
Inc. ("Glenayre"), several protocols, including FLEX(R), ReFLEX25TM, ReFLEX 50TM
and InFLEXionTMVoice. Of these protocols, ReFLEX25TM and ReFLEX50TM support
two-way alphanumeric messaging, and InFLEXionTMVoice supports stored voice
messaging.
These various protocols have different transmission speeds and capacity
characteristics. Consequently, the ability to deliver various types of wireless
messaging services, including stored voice messaging, on a cost-efficient basis
is dependent upon the protocol used. The following table illustrates certain
characteristics of various protocols based on current publicly available
information.
<TABLE>
<CAPTION>
INFLEXION(TM) VOICE REFLEX50(TM) REFLEX25(TM)
------------------- ------------ ------------
<S> <C> <C> <C>
Technology............................................ Analog Digital Digital
Outbound Message Transmission Speed per Channel(1).... -- 6,400 bits 6,400 bits
per second per second
Number of Channels(1)................................. 7 4 3
Outbound Throughput(1)................................ -- 25,600 bps 19,200 bps
per area per area
Frequency Reuse....................................... Yes Yes Yes(2)
Message Acknowledgement............................... Yes Yes Yes
Limited Alphanumeric Message Response................. No Yes Yes
Stored Voice Messaging(3)............................. Yes No No
Advanced Text Messaging(4)............................ No Yes Yes
</TABLE>
- ---------------
(1) Bits per second (bps) gross rate including message overhead. Based on NPCS
networks with 50 kHz outbound frequency. InFLEXion(TM) Voice does not
transmit voice messages digitally.
(2) Motorola states that ReFLEX25(TM) protocol will in the future support
cellular-like frequency reuse within a city/zone if the Company requires it
for additional capacity.
(3) Although the ReFLEX50(TM) and ReFLEX25(TM) protocols technically have the
ability to support digital voice service offerings, management believes that
neither of these protocols can cost-effectively support these service
offerings.
(4) InFLEXion(TM) Voice does not support text messaging. The Company understands
that Motorola may modify the protocol in the future to support data
services.
11
<PAGE> 12
NPCS NETWORK BUILDOUT
The Company expects to design and construct its nationwide NPCS
network to provide advanced messaging services and currently expects to
complete substantially its network buildout by the end of 1999. The key
elements of the network buildout are as follows:
Design. The design of the Company's nationwide NPCS network is
currently expected to be based upon Motorola's ReFLEX25(TM) technology in
order to achieve cost effective sharing of the existing FLEX(R) network,
efficient use of the Company's spectrum and to accommodate a greater number
of subscribers. The design process requires extensive RF planning, which
involves the selection of specific sites for the placement of transmitters
and receivers as well as functioning infrastructure equipment from
manufacturers. As part of the design process, the Company's engineers are
identifying sites using the Company's database (as well as other sources),
which contains specific information about available sites throughout the
nation. Sites are chosen on the basis of their coverage and on frequency
propagation characteristics, such as terrain, topography, building
penetration and population density.
Equipment. The infrastructure of the Company's network will consist of
radio transmitters and receivers, switches, RF controllers and ancillary
equipment, such as coaxial cable and antennas. The Company plans to
purchase this infrastructure equipment (other than the ancillary equipment)
from industry leading equipment suppliers, Motorola and Glenayre. The
Company believes that currently there is only a limited number of suppliers
of terminals and transmitters and as a result the Company is dependent on
such suppliers for its infrastructure equipment needs. The Company
currently has no agreements with Motorola and Glenayre that require it to
purchase infrastructure equipment or messaging units beyond its two test
networks for its two-way services. The Company has entered into a five year
agreement with AvData Systems, Inc. to purchase VSAT equipment and
satellite capacity for its NPCS network.
Development of Technology. Motorola and Glenayre are still developing
and conducting over-the-air testing of ReFLEX25TM technology,
infrastructure equipment and subscriber units. The vendor tests do not take
into account certain factors prevalent in the design of the Company's
two-way network buildout such as terrain topography, building penetration
and population density, hence the Company has constructed its own networks
for the purpose of evaluating these factors as well as the performance of
the infrastructure equipment. The Company believes that Motorola and
Glenayre will establish that the technology and equipment can deliver a
wireless voice message to subscriber unit under controlled circumstances.
The Company also understands that Motorola's ReFLEX50TM technology has been
introduced and is being used commercially by another paging company.
However, there can be no assurance that two-way service will be
commercially viable, and the success of two-way service could be affected
by matters beyond the Company's control.
The Company expects to purchase a significant portion of its subscriber
messaging units from Motorola, with the remainder expected to be purchased from
other manufacturers. The Company understands that Motorola has licensed to other
wireless equipment manufacturers the relevant protocol, as Motorola has done
with its FLEX(R) protocols. Although the Company believes that sufficient
alternative sources of two-way messaging units will exist, the Company would be
adversely affected if it were unable to obtain the units on satisfactory terms.
As the Company begins development and implementation of NPCS services, the
Company expects to incur significant additional operating losses during the
start-up phase for such services, and it will be necessary for the Company to
make substantial investments. The Company anticipates requiring additional
sources of capital to fund the construction of a two-way messaging network,
including expenditures relating to the build-out requirements of the Federal
Communications Commission ("FCC"). See "Government Regulation." The Company
anticipates investing $75 to $100 million to test and construct a two-way
transmission network. Thereafter, the Company anticipates that its two-way
operations may require up to $100 million of additional investment to add
capacity to the network as the Company's two-way customer base grows. The
Company expects to require additional financing to complete the buildout, which
may include entering into joint venture arrangements, however there can be no
assurance that sufficient financing will be available to the Company.
12
<PAGE> 13
See Item 7. Management's Discussion of Financial Condition and Results of
Operations -- Liquidity and Capital Resources.
COMPETITION
The Company competes primarily on the basis of the price of its equipment
and wireless services, quality of service, and its coverage capability. Its
competitors include both companies which provide paging or other mobile
communications services in local markets in which the Company operates and
regional and nationwide paging service providers. These include regional
telephone companies and both small and large paging service providers, such as
Paging Network, Inc., AirTouch Communications, Inc. and Arch Communications
Group, Inc. Certain of these companies have substantially greater financial,
technical and other resources than the Company. In addition, a number of paging
carriers have constructed or are in the process of constructing nationwide
wireless networks that will compete with the Company's services, including the
provision of two-way messaging. Management believes that the Company's low cost
structure and service offerings will enable it to continue to compete
effectively in all markets.
A number of competing technologies, including cellular telephone service,
broadband and narrowband personal communications services, specialized mobile
radio, low speed data networks and mobile satellite services, are used in, or
projected to be used for, two-way wireless messaging services. Cellular
telephone technology provides an alternative communications system for customers
who are frequently away from fixed-wire communications systems (i.e., ordinary
telephones). Compared to cellular telephone service, paging service is generally
less expensive, offers longer battery life, provides better in-building
penetration, extends over wider coverage areas, and is more transportable. For
those cellular customers for whom convenience and price are considerations,
paging can compete successfully by complementing their cellular usage.
Management believes that paging will remain one of the lowest-cost forms of
wireless messaging due to the low cost infrastructure associated with paging
systems, as well as advances in technology that will reduce paging costs.
Broadband personal communications services technologies are currently being
offered commercially in some cities, are under development in other areas of the
United States and are similar to cellular technology. This technology will offer
greater capacity for two-way wireless messaging services and, accordingly, is
expected to result in greater competition.
Technological advances in the telecommunications industry have created, and
are expected to continue to create, new services and products competitive with
the wireless services currently provided by the Company. In addition, certain
companies are developing one-way and two-way wireless messaging services which
may compete with the one-way and two-way wireless messaging services which the
Company expects to provide. There can be no assurance that the Company will not
be adversely affected as new competitive technologies become available and are
implemented in the future. In addition, the Company may be adversely affected if
cellular telephone companies or broadband personal communications service
providers begin to provide other wireless services or enter into partnerships
with other companies to provide wireless services that complement cellular or
broadband PCS services.
GOVERNMENT REGULATION
Wireless messaging operations are subject to regulation by the FCC under
the Communications Act of 1934, as amended (the "Communications Act") including
recent amendments contained in the Telecommunications Act of 1996 (the "1996
Act"). At the present time, wireless messaging services are primarily offered
over radio frequencies that the FCC has allocated for either common carriage
(the licensees for which are known as radio common carriers ("RCCs")), or
private carriage (the licensees for which are known as private carrier paging
operators ("PCPs")). RCCs are granted an exclusive license to a particular radio
frequency in a particular locality or region. Certain qualified PCPs have been
granted such exclusive use of their frequencies as well. In addition, the FCC
has recently granted, by auction, regional and nationwide NPCS licenses that can
be used for advanced paging services, such as two-way paging.
The Company provides one-way paging services directly to subscribers over
its own transmission facilities. The Company (through subsidiaries) holds
certain RCC licenses (the "RCC Licenses") and two
13
<PAGE> 14
exclusive nationwide PCP licenses, as well as exclusive licenses on various PCP
frequencies in certain metropolitan areas, including New York, Los Angeles and
Chicago (the "PCP Licenses"). Additionally, the Company holds a 50 kHz unpaired
nationwide NPCS license (the "Nationwide Narrowband License") and five 50/50 kHz
paired regional NPCS licenses (the "Regional Narrowband Licenses"); the latter
five licenses authorize the Company to operate regional narrowband systems on
the same frequencies throughout the continental United States. The Nationwide
Narrowband License was granted on September 29, 1994, and the Regional
Narrowband Licenses were granted on January 27, 1995. The Nationwide Narrowband
License and the Regional Narrowband Licenses may be utilized in connection with
various two-way NPCS services or to expand the Company's existing one-way
transmission network.
The Omnibus Budget Reconciliation Act of 1993 (the "Budget Act") amended
the Communications Act by eliminating many of the regulatory distinctions
governing mobile service providers. The FCC implemented the new law by creating
a new regulatory category called "commercial mobile radio services" ("CMRS"),
which includes most paging providers previously operating as either RCCs or
PCPs, including the Company. The FCC has adopted new rules to govern regulation
of this new category, which became effective in August 1996. As a result of the
new rules, PCP licensees such as the Company have additional obligations. For
example, these licensees must provide connection upon reasonable request, must
not engage in any unreasonably discriminatory practices and will be subject to
complaints regarding any unlawful practices. PCP licensees also are subject to
provisions that authorize the FCC to provide remedial relief to an aggrieved
party upon finding a violation of the Communications Act and related customer
protection provisions.
The Company's PCP, RCC and NPCS Licenses (collectively, the "Licenses")
authorize the Company to use the radio frequencies necessary to conduct its
paging operations. The Licenses prescribe the technical parameters, such as
power output and tower height, under which the Company is authorized to use
those frequencies. The Licenses are for varying terms of up to 10 years, at the
end of which time renewal applications must be submitted to the FCC for
approval. Several of the Company's PCP and RCC Licenses expire between 1997 and
1999. In order to be granted the exclusive use of a frequency, the Company is
required to construct and maintain a specified minimum number of transmission
sites, depending upon the breadth of the exclusivity, each of which is licensed
by the FCC (the "Operating Licenses"). Of the Company's approximately 1,700
Operating Licenses, 317 require renewal in 1997 and 316 require renewal in 1998.
The Nationwide Narrowband License will expire on September 29, 2004 unless
renewed by the Company. The Regional Narrowband Licenses will expire on January
27, 2005 unless otherwise renewed. FCC renewals are routinely granted in most
cases upon a demonstration of compliance with FCC regulations and adequate
service to the public. Although the Company is unaware of the existence of any
circumstances which would prevent the grant of any pending or future renewal
applications, no assurance can be given that the Licenses will be renewed by the
FCC in the future. Furthermore, although revocation and involuntary modification
of licenses are extraordinary regulatory measures, the FCC has the authority to
restrict the operation of licensed facilities or to revoke or modify licenses.
No License of the Company has ever been revoked or modified involuntarily.
The Company has complied with FCC requirements with respect to the buildout
of its existing one-way paging network. There are separate FCC buildout
requirements with respect to the Company's NPCS Licenses. As a nationwide NPCS
licensee, the Company must construct base stations that provide coverage to a
composite area of 750,000 square kilometers or serve 37.5% of the United States
population within five years of the initial license grant date and must
construct base stations that provide coverage to a composite area of 1,500,000
square kilometers or serve 75% of the United States population within ten years
of the initial license grant date. Additionally, as a regional NPCS licensee,
the Company must construct base stations that provide coverage to a composite
area of 150,000 square kilometers or serve 37.5% of the population of the
service area within five years of its initial license grant date and must
construct base stations that provide coverage to a composite area of 300,000
square kilometers or serve 75% of its service area population within ten years
of the initial license grant date. Failure to meet the construction requirements
will result in forfeiture of the license and ineligibility to regain it.
The Communications Act requires licensees such as the Company to obtain
prior approval from the FCC for the assignment of any station license or the
transfer of control of any entity holding such licenses. The FCC
14
<PAGE> 15
has approved each transfer of control for which the Company has sought approval.
The Communications Act also requires prior approval by the FCC of acquisitions
of paging companies. The Company also regularly applies for FCC authority to use
frequencies, modify the technical parameters of existing licenses, expand its
service territory and provide new services. Although there can be no assurance
that any requests for approval or applications filed by the Company will be
approved or acted upon in a timely manner by the FCC, or that the FCC will grant
the relief requested, the Company has no reason to believe any such requests,
applications or relief will not be approved or granted.
The Communications Act limits foreign ownership of entities that hold
certain licenses from the FCC, including licenses of the type held by the
Company. Because of this limitation, except pursuant to FCC discretion, no more
than 25% of the Company's stock may be owned, directly or indirectly, or voted
by non-United States citizens or their representatives, a foreign government or
its representatives, or a foreign corporation. Based on currently available
information, the Company estimates that its foreign ownership is approximately
22%. However, this percentage is subject to change at any time upon any transfer
of direct or indirect ownership of the Company's Common Stock. If the Company
obtains knowledge that the foreign ownership of its stock exceeds 25%, it would
be forced to either seek approval from the FCC for the additional foreign
ownership or redeem common stock at current market value (determined as set
forth in the Company's certificate of incorporation) from foreign shareholders
in an amount sufficient to reduce such ownership to below 25% (as permitted by
the Company's certificate of incorporation).
The Budget Act imposed a structure of regulatory fees which the Company is
required to pay with respect to its Licenses. The FCC has proposed an increase
in these fees for fiscal year 1997. The Company believes that these regulatory
fees (either as in effect or as proposed) will not have any material adverse
effect on the Company's business.
On February 24, 1997, the FCC released its Second Report and Order, which
sets a system of competitive bidding ("auctions") to issue licenses for
frequencies for which there are mutually exclusive applications. Under the FCC
proposal, licenses for individual paging channels for which there are mutually
exclusive applications would be auctioned on a geographic basis. In defining the
area within which existing users would be protected from interference from the
auction winners or neighboring licensees (an area known as an "interference
contour"), the FCC created a new methodology that in many instances reduces the
size of the area within existing licensees' interference contours. This change,
however, does not have any impact on licensees with nationwide exclusivity (such
as the Company), because no other operator has the right to apply for such
licensees' exclusive frequencies.
The FCC's Second Report and Order contains a Further Notice of Proposed
Rulemaking in which the FCC seeks commentary on whether it should impose
coverage requirements on licensees with nationwide exclusivity (such as the
Company), whether these coverage requirements should be imposed on a nationwide
or regional basis, and whether -- if such requirements are imposed -- failure to
meet the requirements should result in a revocation of the entire nationwide
license or just a portion of the license. If the FCC were to impose stringent
coverage requirements on licensees with nationwide exclusivity, the Company
might have to accelerate the build-out of its system in certain areas.
In a rulemaking proceeding pertaining to interconnection between local
exchange carriers ("LECs") and CMRS providers, the FCC has concluded that LECs
are required to compensate CMRS providers for the reasonable costs incurred by
such providers in terminating traffic that originates at LEC facilities, and
vice versa. With regard to the negotiation of these mutual compensation
arrangements, the FCC has concluded that states have the authority under certain
circumstances to mandate a "bill and keep" arrangement on negotiating parties
(i.e., the LEC and the CMRS provider would charge each other a rate of zero for
the termination of the other's traffic). The Company believes that "bill and
keep" arrangements, if applied to paging services, would not have any material
adverse effect on the Company's business.
Consistent with this ruling mandating compensation for carriers terminating
LEC-originated traffic, the FCC has determined that LECs may not charge a CMRS
provider or other carrier for terminating LEC-originated traffic. Some LECs have
been reluctant to comply with the FCC orders and have threatened to terminate
interconnection arrangements with the Company if it does not agree to pay to
terminate
15
<PAGE> 16
LEC-originated traffic. The Company has made certain payments to the LECs under
protest and has maintained reserves for payments that the LECs claim are due,
but that the Company is presently withholding.
As a result of the enactment of the 1996 Act, the Company may face
additional financial obligations. In November 1996, in response to a directive
in the 1996 Act, the FCC adopted new rules that govern compensation to be paid
to pay phone providers. These rules are the subject of several judicial appeals.
If the FCC rules ultimately are upheld, however, the cost of providing certain
paging services, including 800 number paging, could increase. Also, in response
to changes made by the 1996 Act, the FCC currently is considering the adoption
of new rules regarding payments by telecommunications firms into a revamped fund
that will provide for the widespread availability of telecommunications
services, including to low-income consumers ("Universal Service"). Prior to the
implementation of the 1996 Act, Universal Service obligations largely were met
by local telephone companies. Under the proposed rules, all telecommunications
carriers, including paging companies, will be required to contribute to the
Universal Service Fund. Payments into the fund will likely increase the cost of
doing business and could make the Company's service less competitive with the
other services.
From time to time, legislation and regulations which could potentially
adversely affect the Company are proposed by federal and state legislators and
regulators. Legislation is currently in effect in Texas requiring paging
companies to contribute a portion of their taxable telecommunications revenues
to a Telecommunication Infrastructure Fund created by the state legislature.
Management does not believe that the Texas law will have a material adverse
effect on the Company's operations and is not aware of any other currently
pending legislation or regulations which will have a material adverse impact on
the Company's operations. However, there can be no assurance that Federal or
other state legislation will not be adopted, or that the FCC or the various
state agencies will not adopt regulations or take other actions, that would
adversely affect the business of the Company.
TRADEMARKS
The Company owns certain intellectual property, including without
limitation, trademark and service mark rights associated with certain federal
and foreign trademark registrations and applications, common law trademark,
trade name and service mark rights, and other legal and equitable rights
connected with the Company's voice and data communication products and services
and, in particular, one-way and two-way paging systems and technologies and
related services. The Company markets its multiple city wireless service under
the name Pick-Your-Cities(R) and its nationwide service under the name
Page-Me-USA(R), both of which are federally registered service marks. The
Company has filed applications with the United States Patent and Trademark
Office as well as certain foreign trademark offices to register approximately
107 additional service and trademarks. The Company also has full use of the name
PageMart, as a mark.
EMPLOYEES
At December 31, 1996, the Company had 1,833 full-time employees,
approximately 1,441 of whom were engaged in sales and customer service.
No employees of the Company are covered by a collective bargaining
agreement, and management believes the Company's relationship with its employees
is good.
ITEM 2. PROPERTIES
The principal tangible assets of the Company are its paging network
equipment. Paging network equipment utilized by the Company includes paging
switching terminals, paging transmitters and a host of related equipment such as
satellite and digital link controllers, satellite dishes, antennas, cable, etc.
The Company continues to add equipment as it expands to new service areas. To
date, it has not experienced any difficulty or delay in obtaining equipment as
needed.
16
<PAGE> 17
The Company acquired the NPCS Licenses in auctions held by the FCC. The
NPCS Licenses permit the nationwide operation of NPCS networks with 100 kHz of
outbound capacity and 50 kHz of response capacity.
The Company generally leases the locations used for its transmission
facilities under operating leases. These leases, which are generally for five
years or less, currently provide for aggregate annual rental charges of
approximately $8.1 million. The Company does not anticipate difficulty in
renewing these leases or finding equally suitable alternate facilities on
acceptable terms. The Company also leases approximately 130,000 square feet of
office space for its corporate headquarters in Dallas, Texas, at an annual cost
of approximately $1.3 million and varying lesser amounts for local offices at
other locations. Aggregate annual rental charges under the Company's local
office leases are approximately $2.5 million. Effective February 1, 1998, the
Company's corporate headquarters lease, covering 130,000 square feet of office
space, will expire. On November 26, 1996, the Company entered into a lease
agreement for new facilities for its corporate headquarters. Under the terms of
the lease, the Company is committed to leasing 30,000 square feet of office
space by June 1, 1997 expanding to 120,000 square feet on May 1, 1998.
ITEM 3. LEGAL PROCEEDINGS
The Company is involved in various lawsuits arising in the normal course of
business. In management's opinion, the ultimate outcome of these lawsuits will
not have a material adverse effect on the Company's financial position or
results of operations.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDERS
MATTERS
The Company's Class A Common Stock, $0.0001 par value, was initially
offered to the public on June 14, 1996, and is listed on the Nasdaq National
Market System under the symbol PMWI. Prior to the offering (the "Offering"),
there was no public market for the Company's Class A Common Stock. There
currently is no public market for the Company's Class B, Class C or Class D
Common Stock. Class A Common Stock is convertible by certain holders thereof
into either Class B or C Common Stock. Classes B, C and D Common Stock are
convertible to Class A Common Stock. Set forth below are the high and low sales
prices for shares of the Company's Class A Common Stock in 1996 from June 13,
1996, the date of the Offering, through the end of the second quarter of 1996
and for each full quarterly period thereafter in 1996.
<TABLE>
<CAPTION>
HIGH LOW
---- ----
<S> <C> <C>
1996:
Second Quarter.................................. $13 1/4 $ 10
Third Quarter................................... $11 7/8 $ 8 1/4
Fourth Quarter.................................. $10 1/8 $ 6
</TABLE>
As of February 28, 1997, the Company's Class A, Class B, Class C and Class
D Common Stock was held by approximately 197, 8, 2 and 1 holders of record,
respectively.
The Company has not paid dividends on the common stock since its
organization in 1989. The Company currently intends to retain future earnings
for the development of its business and does not anticipate paying cash
dividends on its common stock in the foreseeable future. The Company's future
dividend policy will be determined by its Board of Directors on the basis of
various factors, including the Company's results of operations, financial
condition, capital requirements and investment opportunities. In addition, the
Company's debt instruments substantially restrict (and currently prohibit) the
payment of cash dividends.
17
<PAGE> 18
ITEM 6. SELECTED FINANCIAL DATA
The following table sets forth summary historical financial information and
operating data for each of the five fiscal years ended December 31, 1996. The
financial information and operating data were derived from, and should be read
in conjunction with, "Management's Discussion and Analysis of Financial
Condition and Results of Operations," the Consolidated Financial Statements of
the Company and the notes thereto included elsewhere in this report.
<TABLE>
<CAPTION>
FISCAL YEAR ENDED DECEMBER 31,
-----------------------------------------------------------------------
1992 1993 1994 1995 1996
----------- ----------- ----------- ------------- -------------
(IN THOUSANDS, EXCEPT UNIT, ARPU, PER SUBSCRIBER AND PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Recurring revenues................... $ 6,668 $ 24,184 $ 56,648 $ 101,503 $ 153,041
Equipment sales and activation
fees............................... 9,837 26,483 53,185 57,688 68,551
-------- -------- -------- ---------- ----------
Total revenues....................... 16,505 50,667 109,833 159,191 221,592
Cost of equipment sold............... 10,044 28,230 57,835 63,982 78,896
Operating expenses................... 25,584 47,448 85,322 118,557 155,265
-------- -------- -------- ---------- ----------
Operating loss....................... (19,123) (25,011) (33,324) (23,348) (12,569)
Interest expense..................... (2,456) (6,538) (12,933) (30,720) (35,041)
Interest income...................... 529 428 858 1,997 1,140
Other................................ -- -- (414) (1,042) (2,128)
-------- -------- -------- ---------- ----------
Net loss............................. (21,050) (31,121) (45,813) (53,113) (48,598)
======== ======== ======== ========== ==========
Net loss per common share............ $ (1.24) $ (1.51) $ (1.72) $ (1.53) $ (1.30)
Weighted average number of common
shares and share equivalents
outstanding........................ 16,962 20,627 26,574 34,653 37,462
BALANCE SHEET DATA (AT PERIOD END):
Current assets....................... $ 13,365 $ 51,279 $ 44,397 $ 62,535 $ 70,572
Total assets......................... 30,772 78,773 142,059 263,829 313,620
Current liabilities.................. 14,754 20,198 37,966 56,508 62,503
Long-term debt, less current
maturities......................... 25,059 78,359 92,632 219,364 240,687
Stockholders' equity (deficit)....... (9,041) (19,784) 11,461 (12,043) 10,430
OTHER DATA:
Units in service -- domestic......... 117,034 327,303 772,730 1,240,024 1,851,445
Units in service -- international.... -- -- -- -- 7,962
Net subscriber additions............. 64,909 210,269 445,427 467,294 619,383
ARPU(1).............................. $ 8.66 $ 9.81 $ 8.64 $ 8.62 $ 8.04
Operating profit (loss) before
selling expenses per subscriber per
month(2)........................... (12.69) (.98) .90 2.11 2.25
Selling expenses per net subscriber
addition(3)........................ 157 91 81 91 87
EBITDA(4)............................ (16,499) (19,930) (25,219) (10,076) 8,623
Capital expenditures................. 13,729 10,810 16,719 33,503 63,804
Depreciation and amortization........ 2,624 5,081 8,105 13,272 21,192
</TABLE>
- ---------------
(1) Average monthly revenue per unit ("ARPU") is calculated by dividing (i)
recurring revenues, consisting of fees for airtime, voice mail, customized
coverage options, excess usage fees and other recurring revenues and fees
associated with the subscriber base for the quarter by (ii) the average
number of units in service for the quarter. ARPU is stated as the monthly
average for the final quarter of the year.
(2) Operating profit (loss) before selling expenses (selling expenses include
loss on sale of equipment) per subscriber for the Company's one-way
operations is calculated by dividing (i) recurring revenues less technical
expenses, general and administrative expenses, and depreciation and
amortization for the final quarter of the period by (ii) the average number
of units in service for the final quarter of the period. Stated as the
monthly average for the fourth fiscal quarter of the period.
(3) Selling expenses per net subscriber addition for the Company's domestic
one-way operations is calculated by dividing (i) selling expenses, including
loss on sale of equipment for the year by (ii) the net domestic subscriber
additions for the year.
(4) EBITDA represents earnings (loss) before interest, taxes, depreciation and
amortization. EBITDA is a financial measure commonly used in the paging
industry. EBITDA is not derived pursuant to generally accepted accounting
principles ("GAAP") and therefore should not be construed as an alternative
to operating income, as an alternative to cash flows from operating
activities (as determined in accordance with GAAP) or as a measure of
liquidity. The calculation of EBITDA does not include the commitments of the
Company for capital expenditures and payment of debt and should not be
deemed to represent funds available to the Company. See Item 7. Management's
Discussion and Analysis of Financial Condition and Results of Operations for
a discussion of the financial operations and liquidity of the Company as
determined in accordance with GAAP.
18
<PAGE> 19
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following is a discussion of the results of operations and financial
condition of the Company for the three years ended December 31, 1996. This
discussion should be read in conjunction with the Company's Consolidated
Financial Statements and the notes thereto included elsewhere in this report.
When used in this discussion, the words "estimate", "project", "plan",
"expect" and similar expressions are intended to identify forward-looking
statements. Such statements are subject to certain risks and uncertainties,
including the timely development and acceptance of new products, the impact of
competitive products and pricing that could cause actual results to differ
materially from those projected. Readers are cautioned not to place undue
reliance on these forward-looking statements, which speak only as of the date
hereof.
GENERAL
The Company has constructed and operates a wireless messaging and
communications network and provides paging and other one-way wireless messaging
services to its subscribers. In addition, the Company sells and distributes
wireless messaging equipment to subscribers, retailers and resellers. The
Company earns recurring revenues from each subscriber in the form of fixed
periodic fees and incurs substantial operating expenses in offering its
services, including technical, customer service and general and administrative
expenses. See "-- Management's Presentation of Results of Operations."
Since commencing operations in 1990, the Company has invested heavily in
its one-way wireless communications network and administrative infrastructure in
order to establish nationwide coverage, sales offices in major metropolitan
areas, customer service call centers and centralized administrative support
functions. The Company incurs substantial fixed operating costs related to its
one-way wireless communications infrastructure, which is designed to serve a
larger subscriber base than the Company currently serves in order to accommodate
growth. In addition, the Company incurs substantial costs associated with new
subscriber additions. As a result, the Company has generated significant net
operating losses for each year of its operations. See "-- Management's
Presentation of Results of Operations."
The Company's strategy is to expand its subscriber base to increase
profitability and cash flow through greater utilization of its nationwide
wireless communications network. From January 1, 1992 to December 31, 1996, the
number of units in service increased from 52,125 to 1,859,407. None of the
Company's growth is attributable to acquisitions. Given its growth strategy and
the substantial associated selling and marketing expenses, the Company expects
to continue to generate operating losses in 1997 from its one-way wireless
communications business. In addition, the Company began testing and development
of two-way wireless messaging services in 1996 and plans to continue the
development and implementation in 1997 and 1998, and expects to incur additional
operating losses during the start-up phase for such services. The Company does
not anticipate any significant revenues from two-way services during 1997,
however, it expects to generate revenues with respect to two-way services in
1998. The Company's ability to generate operating income is primarily dependent
on its ability to attain a sufficiently large installed subscriber base that
generates recurring revenues which offset the fixed operating costs of its
wireless networks, administration and selling and marketing expenses. The
Company intends to achieve this growth by promoting its customized paging and
other wireless messaging services through its national sales offices, retail
distribution channels, private brand strategic alliances with GTE Corporation,
Southwestern Bell Mobile Systems, AT&T Wireless Services, Ameritech Mobile
Services, Inc. and long distance reseller EXCEL Communications, Inc., and
international expansion.
During the twelve months ended December 31, 1996, the Company's affiliate
PageMart Canada added 13,270 subscribers. As a result of its ownership interest
in PageMart Canada, the Company's proportional share of the units in service of
PageMart Canada was 7,962 units at December 31, 1996.
Unlike most other paging carriers, the Company sells, rather than leases,
substantially all of the messaging equipment used by its subscribers. As a
result, the Company has much less capital invested in messaging equipment than
other paging carriers since it recoups a substantial portion of messaging
equipment
19
<PAGE> 20
costs upon sale to retailers and subscribers. This results in significantly
lower capital expenditures and depreciation expense than if the Company leased
such equipment to its subscribers. In addition, the Company's financial results
are much different than other paging carriers that lease messaging equipment to
subscribers because the Company recognizes the cost of messaging equipment sold
in connection with adding new subscribers at the time of sale rather than
capitalizing and depreciating the cost of messaging equipment over periods
ranging from three to five years as occurs with paging carriers that lease
messaging equipment to subscribers. In addition, the Company's retail
distribution strategy results in the recognition of expenses associated with
messaging equipment sales and other sales and marketing expenses in advance of
new subscribers being added to the base and generating revenues (as retailers
carry inventory).
The Company sells its messaging equipment through multiple distribution
channels including direct sales, third-party resellers, private brand strategic
alliances and local and national retail stores. Selling and marketing expenses
are primarily attributable to compensation paid to the Company's sales force,
advertising and marketing costs and to losses resulting from the fact that, for
competitive and marketing reasons, the Company generally sells each new unit for
less than its acquisition cost. The Company's accounting practices result in
selling and marketing expenses, including loss on sale of equipment, being
recorded at the time a unit is sold. Units sold by the Company during a given
month may exceed units activated and in service due to inventory stocking and
distribution strategies of the retailers. As a result, selling and marketing
expenses per net subscriber addition may fluctuate from period to period.
The Company derives its recurring revenue primarily from fixed periodic
fees for services that are not generally dependent on usage. Consequently, the
Company's ability to recoup its initial selling and marketing costs, to meet
operating expenses and to achieve profitability is dependent on the average
length of each customer's subscription period. As long as a subscriber continues
to utilize the Company's service, operating results benefit from the recurring
payments of the fixed fees without the incurrence of additional selling expenses
by the Company. Conversely, operating results are adversely affected by customer
disconnections. Each month a percentage of the Company's existing customers have
their service terminated for a variety of reasons, including failure to pay,
dissatisfaction with service and switching to a competing service provider. The
Company's average monthly disconnection rates for the years ended December 31,
1994, 1995 and 1996 were 3.4%, 2.5% and 2.4%, respectively.
Approximately 90% of the Company's average monthly revenue per unit
("ARPU") is attributable to fixed fees for airtime, coverage options and
features. A portion of the remainder of additional ARPU is dependent on usage.
RESULTS OF OPERATIONS
The Company's principal operations to date are its domestic one-way
wireless messaging division. The following discussion of results of operations
analyzes the results of the Company's one-way wireless messaging operations,
unless otherwise indicated.
Certain of the following financial information is presented on a per unit
basis. Management of the Company believes that such a presentation is useful in
understanding the Company's results because it is a meaningful comparison period
to period given the Company's growth rate and the significant differences in the
number of subscribers of other paging companies.
FISCAL YEARS 1994, 1995 AND 1996
Units in Service
Units in service were 772,730, 1,240,024 and 1,851,445 as of December 31,
1994, 1995 and 1996, respectively. This represents an annual growth rate of 60%
and 49% in 1995 and 1996, respectively. In addition, for the year ended December
31, 1996, PageMart Canada added 13,270 subscribers. As a result of its ownership
interest in PageMart Canada, the Company's proportional share of the units in
service of PageMart Canada was 7,962 units at December 31, 1996. The Company has
experienced strong growth in units in
20
<PAGE> 21
service due primarily to the success of its sales and marketing strategies in
the direct sales, national retail and third-party reseller channels, as well as
from private brand strategic alliance programs.
Revenues
Revenues for the fiscal years 1994, 1995 and 1996 were $109.8 million,
$159.2 million and $221.6 million, respectively. Recurring revenues for airtime,
voice mail and other services for the same periods were $56.6 million, $101.5
million and $153.0 million, respectively. Revenues from equipment sales and
activation fees for 1994, 1995 and 1996 were $53.2 million, $57.7 million and
$68.6 million, respectively. The increases in recurring revenues and revenues
from equipment sales and activation fees were primarily due to rapid growth in
the number of units in service. The increase in equipment sales during 1996 was
somewhat offset by a decline in the average price per unit sold. The Company
expects equipment prices per unit generally to remain constant or decline
slightly as sales volumes increase.
The Company's ARPU was $8.64, $8.62 and $8.04 in the final quarter of 1994,
1995 and 1996, respectively. Over the past twelve months, the Company's ARPU has
decreased primarily as a result of an increase in subscribers added through
private brand strategic alliance and third party reseller channels. This
decrease in ARPU has been offset somewhat by a higher mix of multi-city,
regional and nationwide services as well as increased sales of other value-added
services such as voice mail and toll-free numbers. Management anticipates that
the Company's ARPU will decline in the foreseeable future due to a continued
higher mix of subscribers added through private brand strategic alliance
programs which yield lower ARPU. ARPU is lower for subscribers added through
private brand strategic alliances and third party resellers because these are
generally high volume customers that are charged wholesale airtime rates.
However, because third-party resellers and private brand strategic alliance
partners are responsible for selling and marketing costs, billing, collection
and other administrative costs associated with end-users, the Company incurs
substantially lower marketing and administrative costs with respect to such
subscribers.
Cost of Equipment Sold
The cost of equipment sold in 1994, 1995 and 1996 was $57.8 million, $64.0
million and $78.9 million, respectively. The change in 1996 was a combination of
an increase in the number of units sold and slightly lower average pager prices
paid to suppliers. The Company expects pager costs generally to remain constant,
with modest reductions in cost to the Company as a result of volume purchases.
Management anticipates that loss on equipment sold will increase on a per unit
basis for the foreseeable future due to increased competition, especially in the
national retail channel.
Operating Expenses
Technical expenses were $16.2 million, $25.5 million and $36.7 million in
1994, 1995 and 1996, respectively. The increase resulted primarily from the
continued expansion of the Company's nationwide network infrastructure, which
resulted in greater expenses associated with the addition of new transmitter
sites, transmitter and terminal equipment and telecommunications expenses. On an
average monthly cost per unit in service basis, technical expenses were $2.45,
$2.11 and $1.98 in 1994, 1995 and 1996, respectively. The per unit decreases
were the result of increased operating efficiencies and economies of scale
experienced with the growth of the Company's subscriber base. During 1996, the
Company incurred $297,000 in technical expenses associated with the development
of its two-way wireless messaging services.
Selling expenses in 1994, 1995 and 1996 were $31.3 million, $36.1 million
and $42.6 million, respectively. This increase resulted from greater marketing
and advertising costs related to the growth in units sold as well as from
increased sales compensation because of the addition of sales personnel in new
and existing operating markets. During the years ended December 31, 1994, 1995
and 1996, the Company added 445,427, 467,294 and 611,421 net new domestic units
in service, respectively. Sales and marketing employees decreased from 450 at
December 31, 1994 to 445 at December 31, 1995 and then increased to 552 at
December 31, 1996. Management views the net loss on equipment sold to be a
component of selling and marketing expenses incurred to add new subscribers. See
"-- Management's Presentation of Results of Operations." Selling and
21
<PAGE> 22
marketing expenses per net subscriber addition (including loss on equipment
sales) were $81, $91 and $87 for the years ended December 31, 1994, 1995 and
1996, respectively. During the twelve months ended December 31, 1996, the
Company incurred $447,000 in selling expenses associated with international
operations (including loss on equipment sales).
General and administrative expenses (including costs associated with
customer service, field administration and corporate headquarters) in 1994, 1995
and 1996 were, $29.8 million, $43.4 million and $53.7 million, respectively.
This increase was attributable to the Company's expansion of its customer
service call centers and continued expansion in new and existing markets to
support the growing subscriber base which required additional office space,
administrative personnel and customer service representatives. On an average
cost per month per unit in service basis, general and administrative expenses
were $4.52, $3.59 and $2.89 for fiscal years 1994, 1995, and 1996, respectively.
The per unit decreases were a result of increased operating efficiencies and
economies of scale achieved through the growth of the Company's subscriber base.
During 1996, the Company incurred $341,000 in general and administrative
expenses associated with the development of its two-way wireless messaging
services.
Depreciation and amortization in 1994, 1995 and 1996 was $8.1 million,
$13.3 million and $21.2 million, respectively. The increases resulted from the
expansion of the Company's network infrastructure including transmitter and
terminal equipment, as well as the purchase and development of a new centralized
administrative system in 1995 and 1996. As an average cost per month per unit in
service, depreciation and amortization was $1.23, $1.10 and $1.14 for the years
ended December 31, 1994, 1995 and 1996, respectively.
Interest Expense
Consolidated interest expense increased from $12.9 million in 1994 to $30.7
million in 1995 and $35.0 million in 1996. The increase in 1995 was primarily
the result of the issuance of the Company's 15% Senior Discount Notes due 2005
(the "15% Notes") in January 1995, increased interest related to the 12 1/4%
Senior Discount Notes due 2003 issued by PageMart (the "12 1/4% Notes"), as well
as increased borrowings under vendor financing agreements. Interest expense
related to the 12 1/4% Notes was $10.8 million, $11.8 million and $13.3 million
in 1994, 1995 and 1996, respectively. Interest expense related to the 15% Notes
was $15.3 million and $18.4 million in 1995 and 1996 respectively.
Net Loss
The Company sustained net losses in 1994, 1995 and 1996 of $45.8 million,
$53.1 million and $48.6 million, respectively, principally due to the cost of
funding the growth rate of the Company's subscriber base which resulted in an
increase in units sold, selling and marketing expenses, operating expenses and
interest expense.
MANAGEMENT'S PRESENTATION OF RESULTS OF OPERATIONS
COMPARISON WITH GAAP PRESENTATION
The Company's audited Consolidated Financial Statements for the years ended
December 31, 1994, 1995 and 1996, included elsewhere in this report, have been
prepared in accordance with generally accepted accounting principles ("GAAP").
For internal management purposes, the Company prepares statements of operations
that are derived from the Company's GAAP financial statements but are reordered
in a format that management uses for its internal review of the Company's
performance and that management believes are useful in understanding the
Company's results.
Management believes that operating profit before selling expenses is a
meaningful indicator of the profitability of the Company's installed base of
units in service because it measures the recurring revenues received for
services less the costs (including depreciation and amortization) associated
with servicing that installed base. Operating profit before selling expenses per
subscriber per month for the Company's one-way operations has grown from $(0.46)
during the first quarter of 1994 to $2.25 during the fourth quarter of 1996
22
<PAGE> 23
due primarily to the Company's increase in subscribers, operating efficiency and
resulting benefits in economies of scale.
In addition, selling and marketing expenses (including loss on equipment
sold) provide a measure of the costs associated with obtaining new subscribers
that the Company needs to generate the incremental recurring revenue necessary
to achieve profitability. Under the GAAP presentation, recurring revenues and
equipment and activation revenues are aggregated and are not separately compared
to the costs associated with each.
The items included in management's presentation of the results of
operations and their derivation from financial information presented in
accordance with GAAP are described below.
Recurring Revenues. Recurring revenues include periodic fees for
airtime, voice mail, customized coverage options, toll-free numbers, excess
usage fees and other recurring revenues and fees associated with the
subscriber base. Recurring revenues do not include equipment sales revenues
or initial activation fees. Recurring revenues are the same under both the
management and GAAP presentations.
Technical Expenses. This item is the same under the management and
GAAP presentations.
General and Administrative Expenses. This item is the same under the
management and GAAP presentations.
Depreciation and Amortization. This item is the same under the
management and GAAP presentations.
Operating Profit Before Selling Expenses. Operating profit before
selling expenses under the management presentation is equal to recurring
revenues less technical expenses, general and administrative expenses and
depreciation and amortization. Operating profit before selling expenses is
not derived pursuant to GAAP.
Selling Expenses. Selling expenses under the management presentation
represent the cost to the Company of selling pagers and other messaging
units to a customer, and are equal to selling costs (sales compensation,
advertising, marketing, etc.) plus costs of units sold less revenues from
equipment sales and activation fees. As described above, the Company sells
rather than leases substantially all of the one-way messaging equipment
used by subscribers. Selling expenses under the management presentation are
not derived pursuant to GAAP. Net loss on equipment sales is not included
in the GAAP presentation of selling expenses.
Operating Income (Loss). This item is the same under the management
and GAAP presentations.
EBITDA. EBITDA represents earnings (loss) before interest, taxes,
depreciation and amortization. EBITDA is a financial measure commonly used
in the paging industry. EBITDA is not derived pursuant to GAAP and
therefore should not be construed as an alternative to operating income, as
an alternative to cash flows from operating activities (as determined in
accordance with GAAP) or as a measure of liquidity. The calculation of
EBITDA does not include the commitments of the Company for capital
expenditures and payment of debt and should not be deemed to represent
funds available to the Company. In the fourth quarter of 1995, the
Company's EBITDA from its one-way operations became positive for the first
time.
23
<PAGE> 24
SELECTED QUARTERLY RESULTS OF OPERATIONS
The table below sets forth management's presentation of results of one-way
domestic operations and other data on a quarterly basis for the eight most
recent fiscal quarters. This presentation should be read in conjunction with the
condensed consolidated financial statements of the Company and the notes thereto
included elsewhere in this report and the Company's quarterly reports on Form
10-Q for the corresponding periods below, and should not be considered in
isolation or as an alternative to results of operations that are presented in
accordance with GAAP (in thousands, except other data).
<TABLE>
<CAPTION>
THREE MONTHS ENDED
----------------------------------------------------------------------------------------------------
MARCH 31, JUNE 30, SEPT. 30, DEC. 31, MARCH 31, JUNE 30, SEPT. 30, DEC. 31,
1995 1995 1995 1995 1996 1996 1996 1996
--------- ---------- ---------- ---------- ---------- ---------- ---------- ----------
(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
OPERATING DATA:
Recurring revenues......... $ 20,464 $ 23,387 $ 26,994 $ 30,658 $ 33,743 $ 36,964 $ 39,697 $ 42,637
Technical expenses......... 5,459 6,141 6,842 7,015 7,943 8,783 9,725 10,273
General and administrative
expenses................. 9,698 10,067 11,350 12,243 12,792 13,043 13,668 14,162
Depreciation and
amortization............. 2,802 3,091 3,469 3,910 4,248 4,942 5,714 6,288
-------- ---------- ---------- ---------- ---------- ---------- ---------- ----------
Operating profit before
selling expenses......... 2,505 4,088 5,333 7,490 8,760 10,196 10,590 11,914
Selling expenses(1)........ 9,704 10,614 10,889 11,181 11,601 12,836 13,588 14,900
-------- ---------- ---------- ---------- ---------- ---------- ---------- ----------
Operating income (loss).... $ (7,199) $ (6,526) $ (5,556) $ (3,691) $ (2,841) $ (2,640) $ (2,998) $ (2,986)
======== ========== ========== ========== ========== ========== ========== ==========
EBITDA..................... $ (4,397) $ (3,435) $ (2,087) $ 219 $ 1,407 $ 2,302 $ 2,716 $ 3,302
======== ========== ========== ========== ========== ========== ========== ==========
OTHER DATA:
Units in service(2)........ 874,944 1,008,683 1,131,464 1,240,024 1,374,146 1,524,297 1,684,937 1,851,445
Net subscriber additions... 102,214 133,739 122,781 108,560 134,122 150,151 160,640 166,508
ARPU(3).................... $ 8.28 $ 8.28 $ 8.41 $ 8.62 $ 8.61 $ 8.50 $ 8.25 $ 8.04
Operating profit before
selling expenses per
subscriber per
month(4)................. 1.01 1.45 1.66 2.11 2.23 2.35 2.20 2.25
Selling expenses per net
subscriber
addition(1)(5)........... 95 79 89 103 86 85 85 89
Capital employed per unit
in service(6)............ 45 39 39 40 41 49 49 43
</TABLE>
- ---------------
(1) Includes loss on sale of equipment.
(2) Stated as of the end of each period.
(3) Calculated by dividing recurring revenues for the quarter by the average
number of units in service during that quarter. Stated as the monthly
average for the quarter.
(4) Calculated by dividing operating profit before selling expenses (selling
expenses include loss on sale of equipment) for the quarter by the average
number of units in service during that quarter. Stated as the monthly
average for the quarter.
(5) Calculated by dividing selling expenses, including loss on sale of
equipment, for the quarter by the net subscriber additions for the quarter.
(6) Calculated by dividing total assets (excluding cash, NPCS licenses and
international investments) minus current liabilities (excluding current
maturities of long-term debt) at the end of the period, by units in service
at the end of the period.
24
<PAGE> 25
SUPPLEMENTARY INFORMATION
The following table sets forth supplementary financial information related
to the Company's various operations (in thousands):
<TABLE>
<CAPTION>
FISCAL YEAR ENDED DECEMBER 31, 1994
-----------------------------------------------------
PAGEMART PAGEMART PAGEMART THE COMPANY
ONE-WAY TWO-WAY INTERNATIONAL CONSOLIDATED
-------- -------- ------------- ------------
<S> <C> <C> <C> <C>
Revenues.................................... $109,833 $ -- $ -- $109,833
Operating loss.............................. (33,324) -- -- (33,324)
EBITDA...................................... (25,219) -- -- (25,219)
Total assets................................ 81,470 58,885 1,704 142,059
Capital expenditures........................ 16,719 -- -- 16,719
</TABLE>
<TABLE>
<CAPTION>
FISCAL YEAR ENDED DECEMBER 31, 1995
-----------------------------------------------------
PAGEMART PAGEMART PAGEMART THE COMPANY
ONE-WAY TWO-WAY INTERNATIONAL CONSOLIDATED
-------- -------- ------------- ------------
<S> <C> <C> <C> <C>
Revenues.................................... $159,191 $ -- $ -- $159,191
Operating loss.............................. (22,972) (376) -- (23,348)
EBITDA...................................... (9,700) (376) -- (10,076)
Total assets................................ 120,004 140,235 3,590 263,829
Capital expenditures........................ 32,486 1,017 -- 33,503
</TABLE>
<TABLE>
<CAPTION>
FISCAL YEAR ENDED DECEMBER 31, 1996
------------------------------------------------------
PAGEMART PAGEMART PAGEMART THE COMPANY
ONE-WAY TWO-WAY INTERNATIONAL(1) CONSOLIDATED
-------- -------- ---------------- ------------
<S> <C> <C> <C> <C>
Revenues.................................... $221,592 $ -- $ -- $221,592
Operating loss.............................. (11,465) (657) (447) (12,569)
EBITDA...................................... 9,727 (657) (447) 8,623
Total assets................................ 160,858 151,108 1,654 313,620
Capital expenditures........................ 50,838 12,966 -- 63,804
</TABLE>
- ---------------
(1) Expenses reflected in this table are for the Company's international
headquarters operations. The Company accounts for its investments in Canada
under the equity method, consequently, the Company's share of expenses from
its Canadian operations are not reflected in this table.
SEASONALITY
Pager usage is slightly higher during the spring and summer months, which
is reflected in higher incremental usage fees earned by the Company. The
Company's retail sales are subject to seasonal fluctuations that affect retail
sales generally. Otherwise, the Company's results are generally not
significantly affected by seasonal factors.
LIQUIDITY AND CAPITAL RESOURCES
The Company's operations have historically required substantial capital
investment for the development and installation of its wireless communications
network, the procurement of messaging equipment and expansion into new markets.
To date, these investments by the Company have been funded by the proceeds from
the issuance of common stock, preferred stock, the 12 1/4% Notes and the 15%
Notes, as well as borrowings under vendor financing agreements and revolving
credit agreements.
Capital expenditures were $16.7 million, $33.5 million and $63.8 million
for the years ended December 31, 1994, 1995 and 1996, respectively. Capital
expenditures for 1996 include $34.4 million for the expansion and enhancement of
the Company's one-way network, $13.0 million related to the development of
two-way messaging services, and $6.4 million for the development of the
Company's new administrative system. During October 1996, the Company committed
to purchase network infrastructure equipment and related services for use in its
two-way network. During December 1995, the Company committed to purchase $40
million in network infrastructure equipment from a significant vendor from
December 1, 1995 to
25
<PAGE> 26
October 31, 1999. Through December 31, 1996, the Company had purchased $19.9
million of network infrastructure under this purchase commitment.
The Company's net cash used in operating activities for the years ended
December 31, 1994 and 1995 and provided by operating activities for the year
ended December 31, 1996 was $25.5 million, $2.9 million and $3.6 million,
respectively. The increased operating cash flow in 1996 was a result of improved
operating results from a larger subscriber base offset by a net investment in
working capital. Net cash used in investing activities was $69.1 million, $110.2
million and $64.0 million for the years ended December 31, 1994, 1995 and 1996,
respectively. Of the $64.0 million used in investing activities in 1996, $63.8
million was for capital expenditures. Net cash provided by financing activities,
including proceeds from borrowings and issuances of common and preferred stock
was $83.5 million, $125.5 million and $56 million for the years ended December
31, 1994, 1995 and 1996, respectively. Cash provided in 1995 resulted primarily
from the $100.1 million of net proceeds from the issuance of the 15% Notes and
non-voting common stock in January 1995. Cash provided in 1996 resulted
primarily from $70.5 million in net proceeds received in connection with the
initial public offering of the Company's Class A Common Stock (the "Offering").
In June 1996, the Company sold an aggregate of 6.0 million shares of Class
A Common Stock in the Offering at a price to the public of $13 per share. The
Company received net proceeds of approximately $70.5 million of which
approximately $12.9 million was used to retire vendor debt and $11.9 million was
used to repay outstanding loans under the Company's revolving credit agreement.
As of December 31, 1996, the Company had no amounts outstanding under
vendor financing or revolving credit agreements, its indebtedness under the
12 1/4% Notes was $107.9 million and its indebtedness under the 15% Notes was
$132.7 million.
The 12 1/4% Notes, which are unsecured senior obligations of PageMart,
mature in 2003 and were issued at a substantial discount from their principal
amount at maturity. The accretion of original issue discount on the 12 1/4%
Notes will cause an increase in indebtedness from December 31, 1996 to November
1, 1998 of $28.6 million. From and after November 1, 1998, interest on the
12 1/4% Notes will be payable semiannually, in cash.
The 15% Notes, which are unsecured senior obligations of Wireless, mature
in 2005 and were issued at a substantial discount from their principal amount at
maturity. The accretion of original issue discount on the 15% Notes will cause
an increase in indebtedness from December 31, 1996 to February 1, 2000 of $74.5
million. From and after February 1, 2000, interest on the 15% Notes will be
payable semiannually, in cash.
In 1992, PageMart entered into an equipment lease agreement with Glenayre
(the "Vendor Lease Financing Agreement"), providing for the financing of
transmitter equipment. On June 28, 1996, the Company retired $8.8 million of
debt outstanding under the Vendor Lease Financing Agreement and the Vendor Lease
Financing Agreement was terminated.
In May 1994, PageMart entered into a vendor purchase financing agreement
with Motorola (the "Vendor Purchase Financing Agreement"), providing for the
financing of transmitter equipment. On June 28, 1996, the Company retired $4.1
million of debt outstanding under the Vendor Purchase Financing Agreement and
the Vendor Purchase Financing Agreement was terminated.
In May 1995, the Company entered into a four year Revolving Credit
Agreement (the "Revolving Credit Agreement") with BT Commercial Corporation, as
Agent, and Bankers Trust Company, as Issuing Bank, which provides for a $50
million revolving line of credit. As of December 31, 1996, there were no loans
outstanding under the Revolving Credit Agreement. The maximum amount available
under the Revolving Credit Agreement at any time is limited to a borrowing base
amount equal to the lesser of (i) 80% of eligible accounts receivable plus 50%
eligible inventory owned by Wireless, and (ii) an amount equal to the service
contribution as defined in the Revolving Credit Agreement of Wireless and its
subsidiaries for the immediately preceding three-month period times 4.0. As of
December 31, 1996, the amount available under the Revolving Credit Agreement was
$23.7 million. Management anticipates borrowings under the Revolving Credit
Agreement during 1997.
26
<PAGE> 27
The indenture under which the 12 1/4% Notes were issued (the "12 1/4%
Indenture"), the indenture pursuant to which the 15% Notes were issued (the "15%
Indenture") and the Revolving Credit Agreement contain certain restrictive
covenants that, among other things, limit the ability of the Company to incur
indebtedness, pay dividends, repurchase capital stock, engage in transactions
with stockholders and affiliates, create liens, sell assets, enter into leases
and engage in mergers and consolidations, and the Revolving Credit Agreement
requires the Company to maintain certain financial ratios and limits the ability
of the Company to make capital expenditures. In addition, the 12 1/4% Indenture
prohibits PageMart from paying any dividends or making other distributions on
its capital stock, making loans to Wireless, merging or consolidating with
Wireless or assuming or guaranteeing any obligations of Wireless unless PageMart
is in compliance with certain interest coverage ratios and certain other
requirements. PageMart may, however, sell assets to Wireless in transactions
that are arm's-length in nature. Wireless is currently a holding company with no
business or operations of its own. Because all of Wireless's operations are
conducted through its subsidiaries, Wireless's cash flow and consequently its
ability to service debt, is almost entirely dependent upon the earnings of its
subsidiaries and the distribution of those earnings or upon loans or other
payment of funds by those subsidiaries to Wireless. Wireless's subsidiaries are
separate and distinct legal entities and have no obligation, contingent or
otherwise, to pay any amounts due pursuant to Wireless's obligations or to make
any funds available therefor, whether by dividends, loans or other payments.
Until the maturity of the 12 1/4% Notes, which mature on November 1, 2003,
earlier repayment of such indebtedness or compliance with the requirements of
such debt instruments, Wireless will be unable to use any amount of cash
generated by the operations of PageMart and its subsidiaries. However, currently
Wireless does not have significant cash requirements until March 1999 when the
Revolving Credit Agreement matures.
On November 15, 1995, the Company purchased through PageMart International,
Inc., 200,000 voting shares of common stock of PageMart Canada, which represents
20% of the ownership of PageMart Canada. PageMart International, Inc. also owns
33% of the voting common stock of the holding company parent of PageMart Canada
("Canada Holding"), which owns the remaining 80% of the voting common stock of
PageMart Canada. The Company's investment in Canada Holding and PageMart Canada
totals approximately $3.7 million.
As of December 31, 1996, the Company had approximately $22.6 million in
cash and cash equivalents. The Company's cash balances and borrowings under the
Revolving Credit Agreement are expected to be sufficient to fund the Company's
one-way operations and related capital expenditures through 1997. The Company
anticipates its one-way messaging operations will generate sufficient cash flows
to fund one-way capital expenditures for 1998. The Company's two-way messaging
operations are expected to require additional capital in 1998. The Company
anticipates funding a portion of its two-way messaging operations with available
borrowings under the Revolving Credit Agreement, and from any excess cash
generated from the Company's one-way messaging operations.
Significant additional financing will be required to complete the
construction of a transmission network for two-way services and other start-up
costs and selling and marketing expenses associated with the development and
implementation of two-way services. The Company anticipates investing $75 to
$100 million through fiscal 1998 to test and construct a two-way transmission
network. Thereafter, the Company anticipates that the two-way operations may
require up to $100 million of additional investment to substantially complete
the network buildout. The Company expects to lease rather than sell a portion of
its two-way messaging units. The Company expects to require additional financing
to complete the buildout, which may include new vendor financings or entering
into joint venture arrangements, however, there can be no assurance that
sufficient financing will be available to the Company. The Company's ability to
incur indebtedness is limited by the covenants contained in the 15% Indenture,
the 12 1/4% Indenture, the Revolving Credit Agreement, and as a result any
additional financing may need to be equity financing.
Future revenues, costs, product mix and new product acceptance are all
influenced by a number of factors which are inherently uncertain and difficult
to predict. Therefore, no assurance can be given that financing for such
investments will be available. No assurance can be given that the Company's
strategy will be implemented as currently planned or that the Company's
operations will generate positive cash flows.
27
<PAGE> 28
The Company cautions readers that any forward-looking statements contained
in this Form 10-K or made by management of the Company involve risks and
uncertainties, and are subject to change based on various important factors. The
following factors, among others, in some cases have affected and in the future
could affect the Company's financial performance and actual results, and could
cause actual results for 1997 and beyond to differ materially from those
expressed in any such forward-looking statements -- economic conditions
generally in the United States and consumer confidence; the ability of the
Company to manage its high debt levels; the impact of technological change in
the telecommunications industry; the future cost of network infrastructure and
subscriber equipment; the impact of competition and pricing of paging and
wireless services; changes in regulation by the FCC and various state regulatory
agencies; and the ability of the Company to obtain financing to construct,
operate and market the transmission network for two-way services.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The financial statements and supplementary data are included in this report
beginning on page F-1.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
28
<PAGE> 29
PART III
The information required by Items 10 through 13 are incorporated by
reference to the Registrant's definitive Proxy Statement for its 1997 annual
meeting of stockholders scheduled to be held on May 20, 1997.
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a) The following documents are filed as part of this 10-K:
(1) Financial Statements. See Index to Consolidated Financial Statements
and Financial Statement Schedule on Page F-1 hereof.
(2) Financial Statement Schedules. See Index to Consolidated Financial
Statements and Financial Statement Schedule on Page F-1 hereof.
(3) Exhibits Required by Item 601 of Regulation S-K.
(a) EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<S> <C>
3(i)*** Restated Certificate of Incorporation of PageMart Wireless,
Inc.
3(ii)* By-laws of PageMart Wireless, Inc.
3(iii)*** Certificate of Amendment to Restated Certificate of
Incorporation of PageMart Wireless, Inc.
4.1** Indenture, dated as of October 19, 1993, between PageMart,
Inc. and United States Trust Company of New York, as
Trustee, relating to the 12 1/4% Senior Discount Notes due
2003
4.2** Indenture dated as of January 17, 1995 between PageMart
Nationwide, Inc. and United States Trust Company of New
York, as Trustee, relating to the 15% Senior Discount Notes
due 2005
10.1** Warrant Agreement, dated as of October 19, 1993, between
PageMart, Inc. and United States Trust Company of New York,
as Warrant Agent, relating to the Warrants to purchase
Common Stock of the Company.
10.2** Telecommunications Service Agreement, dated May 29, 1992,
between PageMart, Inc. and WilTel, Inc.
10.3** Equipment Lease Agreement, dated May 20, 1992, between
PageMart, Inc. and Glenayre Electronics, Inc.
10.4** First Addendum to Equipment Lease Agreement, dated May 20,
1992, between PageMart, Inc. and Glenayre Electronics, Inc.
10.5** Amendment No. 2 to Equipment Lease Agreement, dated October
18, 1993, between PageMart, Inc. and Glenayre Electronics,
Inc.
10.6** Lease Agreement and Addendum, dated January 10, 1990,
between Kingston Houston Partners I, Ltd. and PageMart, Inc.
10.7** Expansion and Extension of Lease Agreement, dated April 7,
1993, between Kingston Houston Partners I, Ltd. and
PageMart, Inc.
10.8** Office Lease Agreement, dated January 29, 1992, between
Dallas Central Development Corp. and PageMart, Inc.
10.9** First Amendment to Office Lease Agreement, dated July 29,
1992, between Fulcrum Central Ltd., as successor in interest
to Dallas Central Development Corp., and PageMart, Inc.
10.10** Second Amendment to Office Lease Agreement, dated December
1, 1992, between Fulcrum Central Ltd., as successor in
interest to Dallas Central Development Corp., and PageMart,
Inc.
10.11** Third Amendment to Office Lease Agreement, dated December
29, 1992, between Fulcrum Central Ltd., as successor in
interest to Dallas Central Development Corp., and PageMart,
Inc.
</TABLE>
29
<PAGE> 30
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<S> <C>
10.12** Fourth Amendment to Office Lease Agreement, dated July 21,
1993, between Fulcrum Central Ltd., as successor in interest
to Dallas Central Development Corp., and PageMart, Inc.
10.13** License Agreement, dated May 12, 1994, between PageMart,
Inc., licensee, and International Business Machines
Corporation, licensor
10.14** Sales Contract, dated January 21, 1994, between PageMart,
Inc., buyer, and Mitsui Comtek Corporation, seller
10.15** Resale Agreement, dated November 1, 1993, between PageMart,
Inc., licensor, and GTE Service Corporation, licensee
10.16** Financing and Security Agreement between Motorola and
Pagemart, Inc. dated May 18, 1994
10.17** Subscription Agreement, dated June 9, 1994, between
PageMart, Inc. and Fomento Empresarial Regiomontano, S.A. de
C.V.
10.18** Letter of Intent, dated June 9, 1994, between PageMart, Inc.
and Fomento Empresarial Regiomontano, S.A. de C.V.
10.19* Strategic Alliance Agreement No. 1, dated September 15,
1994, between GTE Service Corporation and PageMart, Inc.
10.20* Strategic Alliance Agreement No. 2, dated October 13, 1994,
between GTE Service Corporation and PageMart, Inc.
10.21* Secured promissory note of John D. Beletic, as Maker, in
favor of PageMart, Inc. dated January 28, 1994, in the
amount of $97,800
10.22* Secured promissory note of John D. Beletic, as Maker, in
favor of PageMart, Inc. dated November 29, 1994, in the
amount of $200,000
10.23* Agreement of Reorganization and Plan of Merger, dated as of
December 5, 1994, between PageMart, Inc., PageMart
Nationwide, Inc. and PM Merger Corp.
10.24* Registration Rights Agreement dated as of January 17, 1995
between PageMart Nationwide, Inc. and Morgan Stanley & Co.
Incorporated
10.25++ PageMart Nationwide, Inc. Third Amended and Restated 1991
Stock Option Plan and Third Amended and Restated 1991 Stock
Issuance Plan(1)
10.26** Satellite Services and Space Segment Lease Agreement, dated
January 2, 1995, between PageMart, Inc. and SpaceCom
Systems, Inc.
10.27** Credit Agreement, dated as of May 11, 1995, by and among
PageMart Nationwide, Inc., the Lenders named therein, BT
Commercial Corporation, as Agent, and Bankers Trust Company,
as Issuing Bank
10.28** Subscription Agreement, dated as of May 11, 1995, by and
among PageMart Nationwide, Inc. and the investors named
therein
10.29+ Amended and Restated Agreement Among Certain Stockholders of
PageMart Nationwide, Inc. dated as of September 19, 1995
10.30*** Secured promissory note of John D. Beletic, as Maker, in
favor of PageMart Nationwide, Inc. dated May 11, 1995, in
the amount of $21,000.
10.31*** Subscription Agreement dated as of July 7, 1995 among
PageMart Nationwide, Inc., PageMart Canada Holding
Corporation and TD Capital Group Ltd.
10.32*** Agreement Among Stockholders among PageMart Nationwide,
Inc., PageMart International, Inc., TD Capital Group Ltd.,
PageMart Canada Holding Corporation and PageMart Canada
Limited.
10.33**** Equipment Purchase Agreement between Motorola, Inc. and
PageMart Wireless, Inc. (2)
10.34**** Technology Asset Agreement dated as of December 1, 1995
between Motorola, Inc. and PageMart Wireless, Inc.(2)
10.35*** PageMart Wireless, Inc. Employee Stock Purchase Plan(1)
10.36*** PageMart Wireless, Inc. Nonqualified Formula Stock Option
Plan for Non-Employee Directors(1)
</TABLE>
30
<PAGE> 31
<TABLE>
<S> <C>
10.37***** Office Lease Agreement date as of November 26, 1996 between Crescent Real Estate
Equities Limited and PageMart Wireless, Inc.
10.38(3) PageMart Wireless, Inc. Fourth Amended and Restated 1991 Stock Option Plan.
11.1***** Computation of earnings (loss) per share
21.1*** PageMart Wireless, Inc. Subsidiaries
27.1***** Financial Data Schedule for the year ended December 31, 1996.
</TABLE>
- ---------------
* Each of these exhibits is hereby incorporated by reference to the Form
10-K of the Company for the fiscal year ended December 31, 1994.
** Each of these exhibits is hereby incorporated by reference to the
Registration Statement on Form S-1 of the Company (Reg. No. 33-91142).
*** Each of these exhibits is hereby incorporated by reference to the
Registration Statement on Form S-1 of the Company (Reg. No. 33-03012).
**** Each of these exhibits is hereby incorporated by reference to the Form
10-K of the Company for the fiscal year ended December 31, 1995.
***** Filed herewith.
+ Each of these exhibits is hereby incorporated by reference to the Form
8-K of the Company dated October 6, 1995.
++ Each of these exhibits is hereby incorporated by reference to the
Registration Statement on Form S-8 of the Company (Reg. No. 33-98116).
(1) This exhibit is a "management contract or compensatory plan or
arrangement" required to be filed as an exhibit to this report pursuant to
Item 14(c) of Form 10-K.
(2) The Company has requested confidential treatment for certain portions of
this agreement.
(3) Originally filed as Exhibit 10.1 in the Company's Form 10-Q for the
quarterly period ended September 30, 1996.
(b) REPORTS ON FORM 8-K
None
31
<PAGE> 32
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
Date: March 24, 1997 PAGEMART WIRELESS, INC.
(Registrant)
By: /s/ JOHN D. BELETIC
------------------------------------
John D. Beletic
Chairman, President and Chief
Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ JOHN D. BELETIC Chairman, President and Chief March 24, 1997
- ----------------------------------------------------- Executive Officer (Principal
John D. Beletic Executive Officer)
/s/ G. CLAY MYERS Vice President, Finance, Chief March 24, 1997
- ----------------------------------------------------- Financial Officer and Treasurer
G. Clay Myers (Principal Financial and
Accounting Officer)
/s/ FRANK V. SICA Director March 24, 1997
- -----------------------------------------------------
Frank V. Sica
/s/ GUY L. DE CHAZAL Director March 24, 1997
- -----------------------------------------------------
Guy L. de Chazal
/s/ ARTHUR PATTERSON Director March 24, 1997
- -----------------------------------------------------
Arthur Patterson
/s/ ROGER D. LINQUIST Director March 24, 1997
- -----------------------------------------------------
Roger D. Linquist
/s/ LEIGH J. ABRAMSON Director March 24, 1997
- -----------------------------------------------------
Leigh J. Abramson
/s/ ALEJANDRO PEREZ ELIZONDO Director March 24, 1997
- -----------------------------------------------------
Alejandro Perez Elizondo
/s/ PAMELA D.A. REEVE Director March 24, 1997
- -----------------------------------------------------
Pamela D.A. Reeve
</TABLE>
<PAGE> 33
PAGEMART WIRELESS, INC. AND SUBSIDIARIES
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Report of Independent Public Accountants.................... F-2
Consolidated Balance Sheets as of December 31, 1995 and
1996...................................................... F-3
Consolidated Statements of Operations for the Years Ended
December 31, 1994, 1995 and 1996.......................... F-4
Consolidated Statements of Stockholders' Equity (Deficit)
for the Years Ended December 31, 1994, 1995 and 1996...... F-5
Consolidated Statements of Cash Flows for the Years Ended
December 31, 1994, 1995 and 1996.......................... F-6
Notes to Consolidated Financial Statements.................. F-7
Report of Independent Public Accountants on Financial
Statement Schedule........................................ S-1
Schedule II -- Valuation and Qualifying Accounts for the
Years Ended December 31, 1994, 1995 and 1996.............. S-2
</TABLE>
F-1
<PAGE> 34
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Board of Directors and Stockholders of PageMart Wireless, Inc.:
We have audited the accompanying consolidated balance sheets of PageMart
Wireless, Inc. (a Delaware corporation) and subsidiaries as of December 31, 1995
and 1996, and the related consolidated statements of operations, stockholders'
equity (deficit) and cash flows for each of the three years in the period ended
December 31, 1996. These financial statements are the responsibility of the
Company's management. Our responsibility is to express an opinion on these
financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of PageMart Wireless, Inc. and
subsidiaries as of December 31, 1995 and 1996, and the results of their
operations and their cash flows for each of the three years in the period ended
December 31, 1996, in conformity with generally accepted accounting principles.
Dallas, Texas, ARTHUR ANDERSEN LLP
January 31, 1997
F-2
<PAGE> 35
PAGEMART WIRELESS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(DOLLARS IN THOUSANDS, EXCEPT SHARE AMOUNTS)
<TABLE>
<CAPTION>
DECEMBER 31,
---------------------
1995 1996
--------- ---------
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents................................. $ 26,973 $ 22,603
Accounts receivable (net of allowance for doubtful
accounts of $4,534 and $4,776 in 1995 and 1996,
respectively)........................................... 21,503 33,446
Inventories............................................... 11,179 11,702
Prepaid expenses and other current assets................. 2,880 2,821
--------- ---------
Total current assets............................... 62,535 70,572
RESTRICTED INVESTMENTS...................................... 500 --
PROPERTY AND EQUIPMENT (net of accumulated depreciation of
$29,163 and $48,851 in 1995 and 1996, respectively)....... 52,827 96,943
NARROWBAND LICENSES......................................... 133,065 133,065
DEFERRED DEBT ISSUANCE COSTS (net of accumulated
amortization of $2,011 and $4,094 in 1995 and 1996,
respectively)............................................. 8,436 6,378
OTHER ASSETS................................................ 6,466 6,662
--------- ---------
Total assets....................................... $ 263,829 $ 313,620
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT)
CURRENT LIABILITIES:
Accounts payable.......................................... $ 23,094 $ 23,186
Deferred revenue.......................................... 21,409 27,047
Current maturities of long-term debt...................... 5,479 --
Other current liabilities................................. 6,526 12,270
--------- ---------
Total current liabilities.......................... 56,508 62,503
LONG-TERM DEBT.............................................. 219,364 240,687
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' EQUITY (DEFICIT):
Common stock, $.0001 par value per share, 75,000,000
shares authorized:
Class A Convertible Common Stock, 33,887,152 shares
issued at December 31, 1996........................... 2 3
Class B Convertible Non-Voting Common Stock, 3,809,363
shares issued at December 31, 1996.................... 1 1
Class C Convertible Non-Voting Common Stock, 1,428,472
shares issued at December 31, 1996.................... -- --
Class D Convertible Non-Voting Common Stock, 679,945
shares issued at December 31, 1996.................... -- --
Additional paid-in capital................................ 154,601 225,661
Accumulated deficit....................................... (166,090) (214,688)
Stock subscriptions receivable............................ (557) (547)
--------- ---------
Total stockholders' equity (deficit)............... (12,043) 10,430
--------- ---------
Total liabilities and stockholders' equity......... $ 263,829 $ 313,620
========= =========
</TABLE>
The accompanying notes to consolidated financial statements are an integral part
of these consolidated financial statements.
F-3
<PAGE> 36
PAGEMART WIRELESS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
--------------------------------
1994 1995 1996
-------- -------- --------
<S> <C> <C> <C>
REVENUES:
Recurring revenue........................................ $ 56,648 $101,503 $153,041
Equipment sales and activation fees...................... 53,185 57,688 68,551
-------- -------- --------
Total revenues................................... 109,833 159,191 221,592
COST OF EQUIPMENT SOLD..................................... 57,835 63,982 78,896
OPERATING EXPENSES:
Technical................................................ 16,155 25,679 37,021
Selling.................................................. 31,252 36,094 43,046
General and administrative............................... 29,810 43,512 54,006
Depreciation and amortization............................ 8,105 13,272 21,192
-------- -------- --------
Total operating expenses......................... 85,322 118,557 155,265
-------- -------- --------
Operating loss................................... (33,324) (23,348) (12,569)
OTHER (INCOME) EXPENSE:
Interest expense......................................... 12,933 30,720 35,041
Interest income.......................................... (858) (1,997) (1,140)
Other.................................................... 414 1,042 2,128
-------- -------- --------
Total other (income) expense..................... 12,489 29,765 36,029
-------- -------- --------
NET LOSS................................................... $(45,813) $(53,113) $(48,598)
======== ======== ========
NET LOSS PER SHARE
(Primary and Fully Diluted).............................. $ (1.72) $ (1.53) $ (1.30)
WEIGHTED AVERAGE NUMBER OF SHARES OUTSTANDING
(Primary and Fully Diluted).............................. 26,574 34,653 37,462
</TABLE>
The accompanying notes to consolidated financial statements are an integral part
of these consolidated financial statements.
F-4
<PAGE> 37
PAGEMART WIRELESS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY (DEFICIT)
(DOLLARS IN THOUSANDS, EXCEPT SHARE AMOUNTS)
<TABLE>
<CAPTION>
CONVERTIBLE
PREFERRED STOCK COMMON STOCK
-------------------- ------------------- ADDITIONAL STOCK
NUMBER OF NUMBER OF PAID-IN ACCUMULATED SUBSCRIPTIONS TREASURY
SHARES AMOUNT SHARES AMOUNT CAPITAL DEFICIT RECEIVABLE STOCK
----------- ------ ---------- ------ ---------- ----------- ------------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
BALANCE, December 31, 1993... 15,310,943 $ 2 2,671,074 $ -- $ 47,523 $ (67,164) $(129) $(16)
11,242,857 shares of common
stock issued in the 1994
Stock Offerings.......... -- -- 11,242,857 1 76,902 -- -- --
Conversion of convertible
preferred stock to common
stock.................... (15,310,943) (2) 15,310,943 2 -- -- -- --
304,651 shares of common
stock issued under the
Stock option/Stock
issuance plan............ -- -- 304,651 -- 269 -- (216) --
Repayment of stock
subscriptions
receivable............... -- -- -- -- -- -- 102 --
Net loss................... -- -- -- -- -- (45,813) -- --
----------- ---- ---------- ---- -------- --------- ----- ----
BALANCE, December 31, 1994... -- -- 29,529,525 3 124,694 (112,977) (243) (16)
Retirement of treasury
stock.................... -- -- (200,000) -- (16) -- -- 16
725,445 shares of
non-voting common stock
issued in the Unit
Offering................. -- -- 725,445 -- 5,078 -- -- --
56,654 shares of common
stock issued under the
Stock option/Stock
issuance plan............ -- -- 56,654 -- 156 -- (125) --
3,598,429 shares of common
stock issued in the 1995
Stock Offering........... -- -- 3,598,429 -- 24,689 -- (189) --
Net loss................... -- -- -- -- -- (53,113) -- --
----------- ---- ---------- ---- -------- --------- ----- ----
BALANCE, December 31, 1995... -- -- 33,710,053 3 154,601 (166,090) (557) --
94,879 shares of common
stock issued under the
Stock option/Stock
issuance plan/Employee
Stock Purchase Plan...... -- -- 94,879 -- 561 -- -- --
Repayment of stock
subscriptions
receivable............... -- -- -- -- -- -- 10 --
6,000,000 shares of common
stock issued in initial
public offering.......... -- -- 6,000,000 1 70,499 -- -- --
Net loss................... -- -- -- -- -- (48,598) -- --
----------- ---- ---------- ---- -------- --------- ----- ----
BALANCE, December 31, 1996... -- $ -- 39,804,932 $ 4 $225,661 $(214,688) $(547) $ --
=========== ==== ========== ==== ======== ========= ===== ====
<CAPTION>
TOTAL
--------
<S> <C>
BALANCE, December 31, 1993... $(19,784)
11,242,857 shares of common
stock issued in the 1994
Stock Offerings.......... 76,903
Conversion of convertible
preferred stock to common
stock.................... --
304,651 shares of common
stock issued under the
Stock option/Stock
issuance plan............ 53
Repayment of stock
subscriptions
receivable............... 102
Net loss................... (45,813)
--------
BALANCE, December 31, 1994... 11,461
Retirement of treasury
stock.................... --
725,445 shares of
non-voting common stock
issued in the Unit
Offering................. 5,078
56,654 shares of common
stock issued under the
Stock option/Stock
issuance plan............ 31
3,598,429 shares of common
stock issued in the 1995
Stock Offering........... 24,500
Net loss................... (53,113)
--------
BALANCE, December 31, 1995... (12,043)
94,879 shares of common
stock issued under the
Stock option/Stock
issuance plan/Employee
Stock Purchase Plan...... 561
Repayment of stock
subscriptions
receivable............... 10
6,000,000 shares of common
stock issued in initial
public offering.......... 70,500
Net loss................... (48,598)
--------
BALANCE, December 31, 1996... $ 10,430
========
</TABLE>
The accompanying notes to consolidated financial statements are an integral part
of these consolidated financial statements.
F-5
<PAGE> 38
PAGEMART WIRELESS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
-------------------------------
1994 1995 1996
-------- --------- --------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss.................................................. $(45,813) $ (53,113) $(48,598)
Adjustments to reconcile net loss to net cash used in
operating activities:
Depreciation and amortization........................... 8,105 13,272 21,192
Provision for bad debt.................................. 6,590 6,135 6,986
Accretion of discount on Senior Discount Exchange
Notes................................................ 10,034 26,322 30,871
Amortization of deferred debt issuance costs............ 800 1,052 2,083
Changes in certain assets and liabilities:
Increase in accounts receivable...................... (14,629) (12,054) (18,929)
(Increase) decrease in inventories................... (4,497) 1,630 (523)
(Increase) decrease in prepaid expenses and other
current assets..................................... (1,091) (1,383) 59
Increase in other assets, net........................ (546) (1,350) (1,052)
Increase in accounts payable......................... 8,491 6,643 92
Increase in deferred revenue......................... 6,780 7,447 5,638
Increase in other current liabilities................ 248 2,486 5,744
-------- --------- --------
Net cash provided by (used in) operating
activities....................................... (25,528) (2,913) 3,563
-------- --------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchases of short-term investments....................... (2,480) -- --
Proceeds from sales of short-term investments............. 11,096 -- --
Purchases of Narrowband Licenses.......................... (58,885) (74,079) --
Purchases of property and equipment....................... (16,719) (33,503) (63,804)
Investment in international ventures...................... (1,902) (2,174) (4)
Purchases of intangible assets............................ (195) (403) (644)
Release of restricted cash................................ -- -- 500
-------- --------- --------
Net cash used in investing activities.............. (69,085) (110,159) (63,952)
-------- --------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from issuance of common stock.................... 76,903 29,578 70,500
Proceeds from issuance of common stock under the stock
option/stock issuance plan.............................. 53 31 561
Proceeds from issuance of Senior Discount Notes, net...... -- 95,001 --
Payment of stock subscriptions receivable................. 102 -- 10
Deferred debt issuance costs incurred for Revolving Credit
Agreement............................................... -- (1,447) (25)
Borrowings under Revolving Credit Agreement............... -- -- 31,100
Payments under Revolving Credit Agreement................. -- -- (31,100)
Borrowings from vendor credit facilities.................. 8,540 6,777 --
Payments on vendor credit facilities...................... (2,052) (4,402) (15,027)
-------- --------- --------
Net cash provided by financing activities.......... 83,546 125,538 56,019
-------- --------- --------
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS........ (11,067) 12,466 (4,370)
CASH AND CASH EQUIVALENTS, beginning of period.............. 25,574 14,507 26,973
-------- --------- --------
CASH AND CASH EQUIVALENTS, end of period.................... $ 14,507 $ 26,973 $ 22,603
======== ========= ========
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
Cash paid during the period for:
Interest................................................ $ 998 $ 2,146 $ 1,231
Income taxes............................................ $ -- $ -- $ --
NONCASH TRANSACTIONS:
Common stock issued in exchange for stock subscriptions
receivable.............................................. $ 216 $ 314 $ --
</TABLE>
The accompanying notes to consolidated financial statements are an integral part
of these consolidated financial statements.
F-6
<PAGE> 39
PAGEMART WIRELESS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. GENERAL
PageMart, Inc. ("PageMart") was incorporated as a Delaware corporation on
May 8, 1989, to provide wireless messaging products and services. In January
1995, PageMart effected a corporate reorganization pursuant to which PageMart
Nationwide, Inc., a Delaware corporation, became the holding company parent of
PageMart. In December 1995, the corporate name was changed from PageMart
Nationwide, Inc. to PageMart Wireless, Inc. ("Wireless"). Wireless and its
subsidiaries are referred to herein as the "Company." The consolidated financial
statements of the Company include the accounts of PageMart and PageMart PCS,
Inc., a wholly owned subsidiary of Wireless, ("PageMart PCS"). PageMart PCS
holds certain narrowband personal communications services licenses. The
consolidated financial statements of PageMart include the accounts of PageMart
II, Inc., PageMart Operations, Inc., PageMart of California, Inc., PageMart of
Virginia, Inc. and PageMart International, Inc. Each of these companies is a
wholly-owned subsidiary of PageMart. PageMart II, Inc. and PageMart Operations,
Inc. hold certain Federal Communications Commission ("FCC") licenses. PageMart
International, Inc., which has had no significant operations to date, holds
certain investments in an international venture in Canada. Other than these
licenses and international investments, the subsidiaries of PageMart have no
significant assets or liabilities.
The Company has incurred substantial losses from operations and negative
cash flows from operations since inception and is highly leveraged. Management
expects to continue to incur operating losses in 1997 and 1998. These losses are
driven by the Company's investment in the growth of its subscriber base and
continued expansion into additional markets. The Company's business plan calls
for substantial growth in its subscriber base in order for the Company to
achieve operating profitability and positive cash flows from operations. There
can be no assurance that the Company will meet its business plan, achieve
operating profitability, or achieve positive cash flows from operations. If the
Company cannot achieve operating profitability, it may not be able to make the
required payments on existing or future obligations.
The Company has made significant investments in Narrowband Personal
Communications Services ("NPCS") licenses through participation in auctions
conducted by the FCC. The Company plans to utilize these assets in connection
with two-way wireless messaging services. The Company's success in implementing
two-way services is dependent primarily upon market acceptance of proposed
two-way services and the ability of the Company to successfully develop and
construct a transmission network and market its two-way services. There can be
no assurance that two-way services offered will be accepted by the market or
that the Company will be successful in developing and constructing a
transmission network or marketing its two-way services.
In management's opinion, the Company's current working capital combined
with borrowings expected to be available from the Revolving Credit Agreement
will be sufficient to support the planned growth for its one-way wireless
communications operations through 1997. As the Company begins implementation and
development of two-way services, the Company anticipates requiring additional
sources of capital to fund the construction and operation of a two-way messaging
network.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
CONSOLIDATION
The accompanying financial statements include the accounts of Wireless and
its wholly owned subsidiaries. All significant intercompany balances and
transactions have been eliminated.
CASH AND CASH EQUIVALENTS
The Company includes as cash and cash equivalents cash on hand, cash in
banks and highly liquid investments with original maturities of three months or
less.
F-7
<PAGE> 40
INVENTORIES
Inventories consist of pagers held for resale and are stated at the lower
of cost or market. Cost is determined by using the specific identification
method, which approximates the first-in, first-out method. The Company purchases
a majority of its pagers from Motorola, Inc.
RESTRICTED INVESTMENTS
In 1995 the Company had Restricted investments which represented
certificates of deposit in the amount of $500,000 pledged as collateral on the
Company's notes payable to vendor. The Restricted investments were released upon
retirement of the note payable to the vendor.
PROPERTY AND EQUIPMENT
Property and equipment are stated at cost and depreciated using the
straight-line method for financial reporting purposes and accelerated methods
for tax reporting purposes over estimated useful lives ranging from three to
seven years. Depreciation expense totaled approximately $7,824,000, $12,683,000
and 19,688,000 for the years ended December 31, 1994, 1995 and 1996,
respectively. The Company purchases a majority of its network equipment from
Motorola, Inc. and Glenayre Technologies, Inc. Maintenance and repair costs are
charged to expense as incurred.
Property and equipment consisted of the following (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------
1995 1996
-------- --------
<S> <C> <C>
Network equipment........................................... $ 58,404 $109,856
Computer equipment.......................................... 16,829 26,268
Furniture and equipment..................................... 6,757 9,670
-------- --------
81,990 145,794
Less: Accumulated depreciation.............................. (29,163) (48,851)
-------- --------
$ 52,827 $ 96,943
======== ========
</TABLE>
REVENUE RECOGNITION
The Company recognizes equipment revenue immediately upon the shipment of
pagers adjusted by allowances for normal returns. Recurring revenue, including
revenue from airtime charges and fees for other services such as voice mail,
customized coverage options and toll-free numbers are recognized in the month in
which the service is provided. All expenses related to the sale of equipment are
recognized at the time of sale. Deferred revenue represents advance billings for
services not yet performed. Such revenue is deferred and recognized in the month
in which the service is provided. Patent licensing revenues are recognized on a
straight-line basis over the term of the related agreement (see Note 6). Patent
licensing revenues of $383,000 and $4,596,000 are included in recurring revenues
in fiscal 1995 and 1996, respectively.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the 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.
ADVERTISING EXPENSES
Advertising expenses are expensed as incurred.
F-8
<PAGE> 41
EARNINGS PER SHARE
Net loss per share amounts as reflected on the statements of operations are
based upon the weighted average number of common shares outstanding. As required
by the Securities and Exchange Commission rules, all warrants, options and
shares issued during the year immediately preceding the initial public offering
(see Note 1) are assumed to be outstanding prior to the closing of the initial
public offering for all periods presented. Shares issuable upon the exercise of
stock options and warrants granted before the year immediately preceding the
initial public offering were not included in the net loss per share calculation
as the effect from the exercise of those options would be antidilutive.
RECLASSIFICATIONS
Certain amounts in the prior years' consolidated financial statements have
been reclassified to conform with the current year presentation.
ACCOUNTING FOR LONG-LIVED ASSETS
In March 1995, the Financial Accounting Standards Board ("FASB") issued
Statement No. 121, "Accounting for the Impairment of Long-Lived Assets and for
Long-Lived Assets to Be Disposed Of" ("SFAS 121"). The Company adopted SFAS 121
for the fiscal year ending December 31, 1996. SFAS 121 establishes accounting
standards for the impairment of long-lived assets, certain identifiable
intangibles, and goodwill related to those assets to be held and used and for
long-lived assets and certain identifiable intangibles to be disposed of. SFAS
121 requires that those assets to be held and used be reviewed for impairment
whenever events or changes in circumstances indicate that the carrying amount of
an asset may not be recoverable through future cash flows. SFAS 121 requires
that those assets to be disposed of be reported at the lower of the carrying
amount or the fair value less cost to sell. Adoption of SFAS 121 did not affect
the 1996 financial statements of the Company. The Company will continue to
evaluate the effect of SFAS 121 in subsequent periods.
3. NARROWBAND PERSONAL COMMUNICATIONS SERVICES LICENSES
During July and December 1994, the Company participated in auctions of NPCS
frequencies conducted by the FCC. As a result of the auctions, the Company was
awarded two nationwide NPCS licenses for a total purchase price of approximately
$133 million. Amortization of the NPCS licenses will commence when placed in
service. The NPCS licenses will be amortized over a period not to exceed 40
years. The Company intends to follow the provisions of Statement of Financial
Accounting Standards No. 34 "Capitalization of Interest Cost" with respect to
its NPCS licenses and the related construction of its two-way messaging network.
4. INVESTMENT IN UNCONSOLIDATED SUBSIDIARY
Effective November 15, 1995, PageMart International, Inc. owns 200,000
shares of common stock of PageMart Canada Limited ("PageMart Canada") which
represents 20% of the ownership of PageMart Canada. The remaining 800,000 shares
(representing 80% of the ownership) is held by PageMart Canada Holding
Corporation ("Canada Holding"). Canada Holding is owned 50% (1,000,000 shares of
Class A Common Stock) by third-party Canadian investors unrelated to PageMart
and 50% (1,000,000 shares of Class B Common Stock) by PageMart International,
Inc. The common shares have identical economic rights. However, voting control
of Canada Holding is held by the Class A Common Stockholders as the Class A
shares have two votes per share. The Company accounts for its investments in
PageMart Canada and Canada Holding under the equity method. Such investments are
included in Other Assets in the Consolidated Balance Sheet.
The agreement among stockholders contains provisions which restrict the
transfer of Canada Holding shares and PageMart Canada shares for periods ranging
from three to five years. During the two years following the third anniversary
of the transactions, the third-party Canadian investors may exchange the
1,000,000 Class A common shares they hold in Canada Holding for 714,286 shares
of voting common stock of Wireless, subject to certain United States and
Canadian ownership requirements. Wireless is ultimately
F-9
<PAGE> 42
responsible for effectuating the exchange within the United States and Canadian
ownership regulations. Such exchange may be accelerated in the event Wireless
enters into an agreement to be acquired. After the third anniversary of the
transactions, Wireless will have the right to purchase the shares held by the
third-party Canadian investors at their fair market value provided regulatory
ownership requirements permit such purchase.
5. LONG-TERM DEBT
Long-term debt, including capital lease obligations, consisted of the
following (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------
1995 1996
-------- --------
<S> <C> <C>
12 1/4% Senior Discount Notes, face amount $136,500 due
November 1, 2003, at accreted value....................... $ 94,952 $107,947
15% Senior Discount Exchange Notes, face amount $207,270 due
February 1, 2005, at accreted value....................... 114,865 132,740
Vendor Purchase Financing Facility of $8 million, bearing
interest at 4% based upon the rate quoted by The Wall
Street Journal from time to time 12.75% at December 31,
1995...................................................... 5,138 --
Capital lease obligations to a vendor up to $15 million,
bearing interest ranging from 11.84% to 15.13% at December
31, 1995.................................................. 9,888 --
-------- --------
Total debt........................................ 224,843 240,687
Less: Current maturities........................ (5,479) --
-------- --------
Long-term debt.................................... $219,364 240,687
======== ========
</TABLE>
During the fourth quarter of 1993, the Company completed an offering in
which it issued $136.5 million principal amount (at maturity) of 12 1/4% Senior
Discount Notes due 2003 (the "12 1/4% Notes") with an initial accreted value of
$71.6 million together with warrants to purchase 627,900 shares of its common
stock for $3.26 per share. From and after May 1, 1999, interest on the 12 1/4%
Notes will be payable semiannually in cash at the rate of 12 1/4% per annum. The
12 1/4% Notes represent senior indebtedness of the Company and are redeemable at
the option of the Company, in whole or in part, at any time after November 1,
1998, at $136.5 million plus accrued interest.
In July 1994, the Company commenced an exchange offer pursuant to an
effective registration statement whereby all outstanding 12 1/4% Notes were
exchanged for the Company's 12 1/4% Senior Discount Exchange Notes due 2003.
In January 1995, the Company completed an offering of 15% Senior Discount
Notes due 2005 and 725,445 shares of non-voting common stock, par value $.0001
per share (the "Unit Offering"). Net proceeds from the Unit Offering were
approximately $100 million, of which approximately $5.1 million was allocated to
the non-voting common stock. The 15% Senior Discount Notes due 2005 (the "15%
Notes") have a principal amount at maturity of $207.3 million with an initial
accreted value of $100 million. The 15% Notes mature on February 1, 2005. From
and after August 1, 2000, interest on the 15% Notes will be payable semiannually
in cash at the rate of 15% per annum. The 15% Notes are redeemable at any time
on or after February 1, 2000, at the option of the Company in whole or in part,
at 105% of their principal amount at maturity, plus accrued and unpaid interest,
declining to 100% of their principal amount at maturity plus accrued interest on
and after February 1, 2002. In addition, at any time prior to February 1, 1998,
up to 35% of the accreted value of the 15% Notes may be redeemed at a redemption
price of 112.5% of their accreted value on the redemption date at the option of
the Company in connection with a public offering of its common stock.
In June 1995, the Company commenced an exchange offer pursuant to an
effective registration statement whereby all outstanding 15% Notes were
exchanged for the Company's 15% Senior Discount Exchange Notes due 2005.
F-11
<PAGE> 43
The 12 1/4% Notes and the 15% Notes carry certain restrictive covenants
that, among other things, limit the ability of the Company to incur
indebtedness, pay dividends, prepay subordinated indebtedness, repurchase
capital stock, create liens, sell assets, engage in mergers and consolidations,
and enter into transactions with any holder of 5% or more of any capital stock
of the Company or any of its affiliates. The Company is in compliance with all
such restrictive covenants.
On May 11, 1995, the Company entered into the Revolving Credit Agreement
which provides for a $50 million revolving line of credit. As of December 31,
1996, there were no loans outstanding under the Revolving Credit Agreement. The
maximum amount available under the Revolving Credit Agreement at any time is
limited to a borrowing base amount equal to the lesser of (i) a specified
percentage of eligible accounts receivable and inventory owned by Wireless, and
(ii) an amount equal to the service contribution of the Company as defined in
the Revolving Credit Agreement for the immediately preceding three-month period
times 4.0 (or 4.5, at all times prior to December 31, 1995). The interest rate
applicable to loans under the Revolving Credit Agreement is, at the option of
Wireless, either at a prime rate plus 1 1/4% or a Eurodollar rate plus 2 1/2%.
Commitments under the Revolving Credit Agreement expire and all loans thereunder
will be due and payable on March 31, 1999.
The Revolving Credit Agreement contains certain covenants that, among other
things, limit the ability of the Company to incur indebtedness, make capital
expenditures and investments, pay dividends, repurchase capital stock, engage in
transactions with affiliates, create liens, sell assets, or engage in mergers
and consolidations, and also requires the Company to maintain certain financial
ratios.
The Revolving Credit Agreement is secured by all trade receivables and
inventory owned by Wireless from time to time and by all of the capital stock of
PageMart owned by Wireless. As of December 31, 1996, the maximum amount
available under the Revolving Credit Agreement was $23.7 million.
Maturities of long-term debt and capital lease obligations are as follows
(in thousands):
<TABLE>
<CAPTION>
FOR THE YEAR ENDING
DECEMBER 31,
- -------------------
<S> <C>
1997................................................................. $ --
1998................................................................. --
1999................................................................. --
2000................................................................. --
2001................................................................. --
Thereafter........................................................... 240,687
--------
$240,687
========
</TABLE>
6. COMMITMENTS AND CONTINGENCIES
The Company has entered into various operating lease agreements for office
space, office equipment and transmission equipment sites. Total rent expense for
1994, 1995 and 1996 was $6,084,000, $8,471,000 and $13,496,000, respectively.
Future minimum lease payments related to the Company's operating leases are
as follows (in thousands):
<TABLE>
<CAPTION>
FOR THE YEAR ENDING OPERATING
DECEMBER 31, LEASES
- ------------------- ---------
<S> <C>
1997.................................................................. $11,309
1998.................................................................. 9,921
1999.................................................................. 8,106
2000.................................................................. 6,342
2001.................................................................. 4,178
Thereafter............................................................ 9,061
-------
Total minimum lease payments.......................................... $48,917
=======
</TABLE>
F-11
<PAGE> 44
The Company is party to various legal proceedings arising out of the
ordinary course of business. The Company believes, based on the advice of legal
counsel, that there is no proceeding, either threatening or pending, against the
Company that could result in a material adverse effect on the results of
operations or financial condition of the Company.
In December 1995, the Company transferred certain intellectual property to
a significant vendor in exchange for certain benefits which will be recognized
over a forty-seven month period. The Company also committed to purchase $40
million in network infrastructure equipment over a forty-seven month period as
part of this transaction. Through December 31, 1996, the Company had purchased
$19.9 million of network infrastructure under this purchase commitment.
7. FAIR VALUES OF FINANCIAL INSTRUMENTS
The following methods and assumptions were used by the Company in
estimating the fair value disclosures for its financial instruments. For cash
and cash equivalents, the carrying amounts reported in the Consolidated Balance
Sheets are equal to fair value. For debt, management estimated the fair value
based upon quoted market prices for publicly traded debt and based on the
appropriate interest rate at year-end for all other debt.
The carrying amounts and fair values of the Company's financial instruments
at December 31, 1995 and 1996, are as follows (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31, 1995 DECEMBER 31, 1996
------------------- -------------------
CARRYING FAIR CARRYING FAIR
AMOUNT VALUE AMOUNT VALUE
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Cash and cash equivalents......................... $ 26,973 $ 26,973 $ 22,603 $ 22,603
Long-term debt.................................... $224,843 $241,621 $240,687 $250,156
</TABLE>
8. STOCKHOLDERS' EQUITY (DEFICIT)
PREFERRED STOCK
On August 5, 1994, in conjunction with the 1994 Stock Offerings and the
related stockholders' agreement, each outstanding share of preferred stock
converted into one share of common stock. In September 1994, the Company's
Certificate of Incorporation was amended to reduce the number of authorized
shares of preferred stock to 10,000,000. At December 31, 1995 and 1996, none of
the authorized shares of preferred stock were issued and outstanding.
Under the Company's Certificate of Incorporation, the board of directors
has the power to authorize the issuance of one or more classes or series of
preferred stock and to fix the designations, powers, preferences and relative,
participating, optional or other rights, if any, and the qualifications,
limitations or restrictions thereof, if any, with respect to each such class or
series of preferred stock.
COMMON STOCK
During the fourth quarter 1993 in connection with issuance of the 12 1/4%
Notes (see Note 5), the Company issued warrants to purchase 627,900 shares of
its common stock for $3.26 per share. The warrants were valued at $5.50 per
share at the date issued. The warrants may be exercised at any time prior to
December 31, 2003. Warrants that are not exercised by such date will expire.
During the third quarter of 1994, the Company issued an aggregate of
11,242,857 shares of common stock in the 1994 Stock Offerings at a purchase
price of $7.00 per share. The aggregate net proceeds (after expenses) of the
1994 Stock Offerings were approximately $76.9 million. Of the total shares
issued, 714,287 shares were convertible non-voting common stock and the
remaining 10,528,570 shares were common stock. At the request of the holder, the
non-voting common stock was converted to common stock in January 1995.
During the first quarter of 1995 in connection with the Unit Offering (see
Note 5), the Company issued 725,445 shares of non-voting common stock at a
purchase price of $7.00 per share. During the second quarter
F-12
<PAGE> 45
of 1995, the Company completed a private offering of common stock to a group of
institutional investors and certain officers of the Company (the "1995 Stock
Offering"). In the 1995 Stock Offering, the Company sold 3,598,429 shares of
common stock for net proceeds (after expenses) of approximately $24.5 million.
In October 1995, the Company's Certificate of Incorporation was amended
(the "Amended Certificate") and at that time the Amended and Restated Agreement
Among Certain Stockholders of PageMart Nationwide, Inc. dated September 19, 1995
(the "Stockholders' Agreement"), became effective. The Amended Certificate
provides that the Company will have four classes of outstanding common stock,
summarized as follows:
<TABLE>
<CAPTION>
SHARES ISSUED AND
OUTSTANDING
-----------------------
SHARES DECEMBER 31,
AUTHORIZED 1995 1996
---------- ---------- ----------
<S> <C> <C> <C>
Class A Convertible Common Stock, $.0001 par value per
share (the "Class A Common Stock").................... 60,000,000 23,277,293 33,887,152
Class B Convertible Non-Voting Common Stock, $.0001 par
value per share (the "Class B Common Stock").......... 12,000,000 8,975,469 3,809,363
Class C Convertible Non-Voting Common Stock, $.0001 par
value per share (the "Class C Common Stock").......... 2,000,000 731,846 1,428,472
Class D Convertible Non-Voting Common Stock, $.0001 par
value per share (the "Class D Common Stock").......... 1,000,000 725,445 679,945
---------- ---------- ----------
75,000,000 33,710,053 39,804,932
========== ========== ==========
</TABLE>
Upon filing of the Amended Certificate, all shares of previously
outstanding common stock were automatically converted into shares of Class A
Common Stock, and all shares of previously outstanding non-voting common stock
issued in the Unit Offering were converted into shares of Class D Common Stock.
Additionally, pursuant to the Stockholders' Agreement, a number of shares of
Class A Common Stock owned by certain institutional investors were automatically
converted into shares of Class B Common Stock and Class C Common Stock, such
that voting control of the Company lies with the stockholders generally.
Class A Common Stock, Class B Common Stock and Class C Common Stock are
convertible by certain institutional investors subject to voting control and
regulatory restrictions at any time at the option of the holder, in accordance
with the terms of the Stockholders' Agreement. Class D Common Stock is
convertible, at the option of the holder, at any time after the occurrence of an
initial public offering following which the common stock of the Company is
publicly traded. The Company had an initial public offering on June 13, 1996.
Class A Common Stock is convertible by certain holders thereof into either Class
B or C Common Stock. Classes B, C and D Common Stock are convertible to Class A
Common Stock.
The Stockholders' Agreement provides that the parties thereto ("Holders")
shall collectively have the right to "demand" registrations at any time at least
six months after an initial public offering following which the common stock of
the Company is publicly traded. Pursuant to these "demand" rights, Holders of
common stock (the "Registrable Securities") may request in writing that the
Company file a registration statement under the Securities Act of 1933, as
amended (the "Securities Act"), covering the registration of a number of shares
equal to at least three million shares or a lesser number if such number
represents a majority of the Registrable Securities then outstanding.
On March 20, 1995, the Company granted to a strategic partner warrants to
purchase a total of 206,748 shares of the Company's common stock at an exercise
price of $10.00.
On June 19, 1996, the Company issued an aggregate of 6,000,000 shares of
Class A Common Stock in an initial public offering (the "Offering") at a price
of $13.00 per share. The Company received proceeds from the Offering of
approximately $70.5 million after deducting underwriting discounts, commissions,
fees and expenses associated with the Offering. Upon receipt of the net
proceeds, the Company retired vendor debt of approximately $12.9 million and
repaid approximately $11.9 million of loans outstanding under the Company's
F-13
<PAGE> 46
revolving credit facility. The remaining proceeds are expected to be used to
fund the initial construction of the Company's narrowband personal
communications service transmission network and for general corporate purposes.
Following is a schedule of common stock reserved at December 31, 1996:
<TABLE>
<CAPTION>
SHARES
---------
<S> <C>
Exercise of common stock warrants........................... 834,648
Stock option/stock issuance plan............................ 3,674,017
Employee Stock Purchase Plan................................ 468,725
Non-Employee/Director Stock Option Plan..................... 75,000
---------
5,052,390
=========
</TABLE>
9. STOCK OPTION/STOCK ISSUANCE/STOCK PURCHASE PLANS
STOCK COMPENSATION PLANS
At December 31, 1996, the Company has three stock-based compensation plans,
the 1991 Stock Option/Issuance Plan, the 1996 Nonqualified Stock Option Plan for
Non-Employee Directors and the Employee Stock Purchase Plan. The Company applies
Accounting Principles Board Opinion 25 and related Interpretations to account
for expenses related to its plans. Accordingly, no compensation costs have been
recognized for its fixed option plans or its employee stock purchase plan. If
compensation costs for these plans had been determined based on the fair value
at the grant dates for awards under the plans consistent with the method of
Statement of Financial Accounting Standards No. 123, "Accounting for Stock Based
Compensation", the Company's net income and earnings per share would have been
reduced to the pro forma amounts indicated below:
<TABLE>
<CAPTION>
1995 1996
-------- --------
<S> <C> <C> <C>
Net loss....................................... As reported $(53,113) $(48,598)
Pro forma (53,380) (50,095)
Primary and fully diluted earnings per share... As reported $ (1.53) $ (1.30)
Pro forma (1.54) (1.34)
</TABLE>
As the Employee Stock Purchase Plan and the 1996 Nonqualified Stock Option
Plan for Non-Employee Directors were adopted in 1996, 1995 pro forma balances do
not include expenses for these plans.
FIXED STOCK OPTION PLANS
The Company has two fixed stock option plans. Under the 1991 Stock
Option/Issuance Plan, ("1991 Plan"), the Company may grant options to its
employees for up to 4,550,000 shares of Class A Common Stock. Under the 1996
Nonqualified Stock Option Plan for Non-Employee Directors, ("Directors Plan"),
the Company may grant options to its non-employee directors for up to 100,000
shares of common stock. Under both plans, the exercise price of each option
equals the market price of the Company's stock at the close of the market on the
date of grant and an option's maximum term is 10 years. Options are granted at
various times during the year and vest over a five year period under the 1991
Plan and over a three year period under the Directors Plan. Both plans are
administered by the Board of Directors.
Under the provisions of the 1991 Plan, the Company may also issue stock to
employees. The stock vests over a period not to exceed forty-eight months.
Additional vesting occurs upon death or disability. Upon the termination of an
officer, the Company can repurchase the unvested stock at cost. Under the Plan,
the Company issued 300,000 shares to an officer during 1992 at $0.326 per share.
All awards under the Plan have been made at a price at or above the estimated
fair value of the Company's common stock at the date of grant.
The fair value of each option grant is estimated on the date of grant using
the Black-Scholes option-pricing model with the following weighted-average
assumptions used for grants in 1995 and 1996: dividend
F-14
<PAGE> 47
yield of 0 percent for all years; expected volatility of 40 percent, risk-free
interest rates average 6.44 percent in 1995 and 6.35 percent in 1996 for the
1991 Plan and 6.67 percent in 1996 for the Directors Plan; and expected lives of
8.23 years.
A summary of the status of the Company's 1991 Plan as of December 31, 1994,
1995 and 1996; and the Directors Plan as of December 31, 1996 and changes during
the years ending on these dates is presented below:
1991 PLAN
<TABLE>
<CAPTION>
1994 1995 1996
----------------- ----------------- -----------------
WEIGHTED WEIGHTED WEIGHTED
AVERAGE AVERAGE AVERAGE
SHARES EXERCISE SHARES EXERCISE SHARES EXERCISE
(000) PRICE (000) PRICE (000) PRICE
------ -------- ------ -------- ------ --------
<S> <C> <C> <C> <C> <C> <C>
Outstanding at beginning of year.......... 1,147 $2.02 1,597 $4.83 2,669 $6.59
Granted................................... 866 6.95 1,205 8.84 1,126 8.49
Exercised................................. (304) 0.89 (37) 4.12 (64) 5.24
Forfeited................................. (112) 3.23 (96) 5.82 (258) 8.51
----- ----- -----
Outstanding at end of year................ 1,597 $4.83 2,669 $6.59 3,473 $7.09
===== ===== =====
Options exercisable at year-end........... 237 583 1,077
===== ===== =====
Weighted-average fair value of options
granted during the year................. N/A $5.07 $5.02
===== ===== =====
</TABLE>
DIRECTORS PLAN
<TABLE>
<CAPTION>
1996
--------------------------
WEIGHTED
SHARES AVERAGE
(000) EXERCISE PRICE
------ --------------
<S> <C> <C>
Outstanding at beginning of year............................ -- $ --
Granted..................................................... 25 12.00
Exercised................................................... -- --
Forfeited................................................... -- --
-----
Outstanding at end of year.................................. 25 $12.00
=====
Options exercisable at year-end............................. 6
=====
Weighted-average fair value of options granted during the
year...................................................... $ 7.04
======
</TABLE>
F-15
<PAGE> 48
The following table summarized information about fixed stock options
outstanding at December 31, 1996:
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING OPTIONS EXERCISABLE
----------------------------------------------- ----------------------------
NUMBER WEIGHTED-AVG. NUMBER
RANGE OF OUTSTANDING REMAINING WEIGHTED-AVG. EXERCISABLE WEIGHTED-AVG.
EXERCISE PRICES AT 12/31/96 CONTRACTUAL LIFE EXERCISE PRICE AT 12/31/96 EXERCISE PRICE
- --------------- ----------- ---------------- -------------- ----------- --------------
<C> <C> <C> <C> <C> <C>
1991 PLAN
$ 0.00 to 2.00 245,000 5.2 $ 0.92 212,000 $ 0.86
2.01 to 4.00 443,000 6.5 3.26 295,000 3.26
4.01 to 6.00 40,000 7.1 5.00 13,000 5.00
6.01 to 8.00 1,660,000 8.7 6.94 411,000 7.12
8.01 to 10.00 743,000 8.8 9.99 146,000 9.97
10.01 to 12.00 342,000 8.8 11.12 -- --
--------- ---------
3,473,000 8.2 7.09 1,077,000 5.19
========= =========
DIRECTORS PLAN
$ 0.00 to 12.00 25,000 9.2 $12.00 6,000 $12.00
========= =========
</TABLE>
EMPLOYEE STOCK PURCHASE PLAN
Under the Employee Stock Purchase Plan, the Company is authorized to issue
up to 500,000 shares of common stock to its eligible employees. Under terms of
the Plan, employees can choose on January 1 and July 1 of each year to have a
portion of their earnings not to exceed $25,000 of market value per year
withheld to purchase the Company's common stock. The purchase price of the stock
is 90 percent of the lower of the market price on the grant date or the market
price on the June 30 or December 31 immediately following the grant date of an
option. Under the Plan, the Company sold 31,275 shares to employees in 1996.
Compensation cost is recognized for the fair value of the employees's purchase
rights, which was estimated using the Black-Scholes model with the following
assumptions for 1996: dividend yield of 0 percent; an expected life of 0.5
years; expected volatility of 40 percent; and a risk-free interest rate of 6.27
percent. The weighted-average fair value of those purchased rights granted in
1996 was $2.14.
10. FEDERAL INCOME TAXES
Effective January 1, 1993, the Company adopted Statement of Financial
Accounting Standards No. 109 ("SFAS 109"), "Accounting for Income Taxes." SFAS
109 requires an asset and liability approach which requires the recognition of
deferred tax assets and liabilities for the expected future tax consequences of
events which have been recognized in the Company's financial statements. The
Company had approximately $126.8 million and $149.2 million of net operating
loss carryforwards for federal income tax purposes at December 31, 1995 and
1996, respectively. The net operating loss carryforwards will expire in the
years 2004 through 2011 if not previously utilized. The utilization of these
carryforwards is subject to certain limitations. Of the net operating loss
carryforwards at December 31, 1996, management has estimated that approximately
$38.9 million is subject to an annual utilization limit of $4.8 million.
In connection with the adoption of SFAS 109, the Company has recorded a
valuation reserve equal to its net deferred tax asset at each reporting period,
due to historical and anticipated future operating losses. Accordingly, the
adoption of SFAS 109 did not have an effect on the Company's financial position
or results of operations. Management will evaluate the appropriateness of the
reserve in the future based upon historical and operating results of the
Company.
F-16
<PAGE> 49
Deferred income taxes reflect the tax consequences on future years of
temporary differences between the tax basis of assets and liabilities and their
financial reporting basis and the potential benefits of certain tax
carryforwards. The significant deferred tax assets and liabilities, as
determined under the provisions of SFAS 109, and the change in those assets and
liabilities are as follows (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31, DECEMBER 31,
1995 CHANGE 1996
------------ -------- ------------
<S> <C> <C> <C>
Gross deferred tax asset:
Net operating loss carryforwards...................... $ 43,128 $ 7,613 $ 50,741
Bad debt reserve...................................... 2,098 1,017 3,115
Inventory reserve..................................... 828 699 1,527
Accretion of Senior Discount Notes.................... 13,002 10,495 23,497
Other................................................. 943 (161) 782
-------- -------- --------
59,999 19,663 79,662
Gross deferred tax liability:
Depreciation.......................................... (3,694) (3,305) (6,999)
-------- -------- --------
56,305 16,358 72,663
Valuation allowance................................ (56,305) (16,358) (72,663)
-------- -------- --------
Net deferred tax asset............................. $ -- $ -- $ --
======== ======== ========
</TABLE>
11. RELATED-PARTY TRANSACTIONS
In connection with the Unit Offering completed in 1995 (see Note 5), the
Company incurred $3,805,000 in fees to an affiliate of a shareholder. In
addition, an affiliate of a shareholder acted as an underwriter of the Company's
initial public offering in June 1996 and received $2.0 million in compensation
in the form of an underwriter's discount.
As of December 31, 1996, the president and certain other officers of the
Company are indebted to the Company in the aggregate amount of $671,627 under
promissory notes issued in connection with the purchase of the Company's common
stock (the "Notes"). The Notes have terms ranging from three to four years and
are secured by common stock owned by the officers. The Notes bear interest at
the Applicable Federal Rate in effect on the date of issuance as published by
the Internal Revenue Service. Interest rates on the Notes range from 3.55% to
7.00%. Interest is due and payable annually beginning on the first anniversary
of the date of each Note. All Notes are included in Stock Subscriptions
Receivable in the Consolidated Balance Sheet.
F-17
<PAGE> 50
12. SUPPLEMENTARY INFORMATION
The following table sets forth supplementary financial information related
to the Company's various operations (in thousands):
<TABLE>
<CAPTION>
FISCAL YEAR ENDED DECEMBER 31, 1994
--------------------------------------------------
PAGEMART PAGEMART PAGEMART
ONE-WAY TWO-WAY INTERNATIONAL CONSOLIDATED
-------- -------- ------------- ------------
<S> <C> <C> <C> <C>
Revenues........................................... $109,833 $ -- $ -- $109,833
Operating loss..................................... (33,324) -- -- (33,324)
Total assets....................................... 81,470 58,885 1,704 142,059
Capital expenditures............................... 16,719 -- -- 16,719
</TABLE>
<TABLE>
<CAPTION>
FISCAL YEAR ENDED DECEMBER 31, 1995
--------------------------------------------------
PAGEMART PAGEMART PAGEMART
ONE-WAY TWO-WAY INTERNATIONAL CONSOLIDATED
-------- -------- ------------- ------------
<S> <C> <C> <C> <C>
Revenues........................................... $159,191 $ -- $ -- $159,191
Operating loss..................................... (22,972) (376) -- (23,348)
Total assets....................................... 120,004 140,235 3,590 263,829
Capital expenditures............................... 32,486 1,017 -- 33,503
</TABLE>
<TABLE>
<CAPTION>
FISCAL YEAR ENDED DECEMBER 31, 1996
--------------------------------------------------
PAGEMART PAGEMART PAGEMART
ONE-WAY TWO-WAY INTERNATIONAL CONSOLIDATED
-------- -------- ------------- ------------
<S> <C> <C> <C> <C>
Revenues........................................... $221,592 $ -- $ -- $221,592
Operating loss..................................... (11,465) (657) (447) (12,569)
Total assets....................................... 160,858 151,108 1,654 313,620
Capital expenditures............................... 50,838 12,966 -- 63,804
</TABLE>
F-18
<PAGE> 51
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
ON FINANCIAL STATEMENT SCHEDULE
To the Board of Directors and Stockholders of
PageMart Wireless, Inc.:
We have audited, in accordance with generally accepted auditing standards, the
consolidated financial statements of PageMart Wireless, Inc. and subsidiaries
included in this Form 10-K and have issued our report thereon dated January 31,
1997. Our audit was made for the purpose of forming an opinion on those
financial statements taken as a whole. Schedule II is presented for purposes of
complying with the Securities and Exchange Commission's rules and is not part of
the basic financial statements. This schedule has been subjected to the auditing
procedures applied in the audit of the basic financial statements and, in our
opinion, fairly states in all material respects the financial data required to
be set forth therein in relation to the basic financial statements taken as a
whole.
Dallas, Texas, ARTHUR ANDERSEN LLP
January 31, 1997
S-1
<PAGE> 52
PAGEMART WIRELESS, INC. AND SUBSIDIARIES
SCHEDULE II -- VALUATION AND QUALIFYING ACCOUNTS
FOR THE YEARS ENDED DECEMBER 31, 1994, 1995 AND 1996
(IN THOUSANDS)
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E
ADDITIONS
------------------------
BALANCE AT CHARGED TO CHARGED TO
BEGINNING COSTS AND OTHER BALANCE AT
DESCRIPTION OF PERIOD EXPENSES ACCOUNTS DEDUCTIONS END OF PERIOD
----------- ---------- ---------- ---------- ---------- -------------
<S> <C> <C> <C> <C> <C>
ALLOWANCE FOR DOUBTFUL ACCOUNTS
Year Ended December 31, 1996...... $4,534 $6,986 $-- $6,744(a) $4,776
Year Ended December 31, 1995...... $1,388 $6,135 $-- $2,989(a) $4,534
Year Ended December 31, 1994...... $1,172 $6,590 $-- $6,374(a) $1,388
</TABLE>
- ---------------
(a) Accounts written off as uncollectible, net of recoveries.
S-2
<PAGE> 53
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<S> <C>
3(i)*** Restated Certificate of Incorporation of PageMart Wireless,
Inc.
3(ii)* By-laws of PageMart Wireless, Inc.
3(iii)*** Certificate of Amendment to Restated Certificate of
Incorporation of PageMart Wireless, Inc.
4.1** Indenture, dated as of October 19, 1993, between PageMart,
Inc. and United States Trust Company of New York, as
Trustee, relating to the 12 1/4% Senior Discount Notes due
2003
4.2** Indenture dated as of January 17, 1995 between PageMart
Nationwide, Inc. and United States Trust Company of New
York, as Trustee, relating to the 15% Senior Discount Notes
due 2005
10.1** Warrant Agreement, dated as of October 19, 1993, between
PageMart, Inc. and United States Trust Company of New York,
as Warrant Agent, relating to the Warrants to purchase
Common Stock of the Company.
10.2** Telecommunications Service Agreement, dated May 29, 1992,
between PageMart, Inc. and WilTel, Inc.
10.3** Equipment Lease Agreement, dated May 20, 1992, between
PageMart, Inc. and Glenayre Electronics, Inc.
10.4** First Addendum to Equipment Lease Agreement, dated May 20,
1992, between PageMart, Inc. and Glenayre Electronics, Inc.
10.5** Amendment No. 2 to Equipment Lease Agreement, dated October
18, 1993, between PageMart, Inc. and Glenayre Electronics,
Inc.
10.6** Lease Agreement and Addendum, dated January 10, 1990,
between Kingston Houston Partners I, Ltd. and PageMart, Inc.
10.7** Expansion and Extension of Lease Agreement, dated April 7,
1993, between Kingston Houston Partners I, Ltd. and
PageMart, Inc.
10.8** Office Lease Agreement, dated January 29, 1992, between
Dallas Central Development Corp. and PageMart, Inc.
10.9** First Amendment to Office Lease Agreement, dated July 29,
1992, between Fulcrum Central Ltd., as successor in interest
to Dallas Central Development Corp., and PageMart, Inc.
10.10** Second Amendment to Office Lease Agreement, dated December
1, 1992, between Fulcrum Central Ltd., as successor in
interest to Dallas Central Development Corp., and PageMart,
Inc.
10.11** Third Amendment to Office Lease Agreement, dated December
29, 1992, between Fulcrum Central Ltd., as successor in
interest to Dallas Central Development Corp., and PageMart,
Inc.
10.12** Fourth Amendment to Office Lease Agreement, dated July 21,
1993, between Fulcrum Central Ltd., as successor in interest
to Dallas Central Development Corp., and PageMart, Inc.
10.13** License Agreement, dated May 12, 1994, between PageMart,
Inc., licensee, and International Business Machines
Corporation, licensor
10.14** Sales Contract, dated January 21, 1994, between PageMart,
Inc., buyer, and Mitsui Comtek Corporation, seller
10.15** Resale Agreement, dated November 1, 1993, between PageMart,
Inc., licensor, and GTE Service Corporation, licensee
10.16** Financing and Security Agreement between Motorola and
Pagemart, Inc. dated May 18, 1994
10.17** Subscription Agreement, dated June 9, 1994, between
PageMart, Inc. and Fomento Empresarial Regiomontano, S.A. de
C.V.
10.18** Letter of Intent, dated June 9, 1994, between PageMart, Inc.
and Fomento Empresarial Regiomontano, S.A. de C.V.
</TABLE>
<PAGE> 54
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<S> <C>
10.19* Strategic Alliance Agreement No. 1, dated September 15,
1994, between GTE Service Corporation and PageMart, Inc.
10.20* Strategic Alliance Agreement No. 2, dated October 13, 1994,
between GTE Service Corporation and PageMart, Inc.
10.21* Secured promissory note of John D. Beletic, as Maker, in
favor of PageMart, Inc. dated January 28, 1994, in the
amount of $97,800
10.22* Secured promissory note of John D. Beletic, as Maker, in
favor of PageMart, Inc. dated November 29, 1994, in the
amount of $200,000
10.23* Agreement of Reorganization and Plan of Merger, dated as of
December 5, 1994, between PageMart, Inc., PageMart
Nationwide, Inc. and PM Merger Corp.
10.24* Registration Rights Agreement dated as of January 17, 1995
between PageMart Nationwide, Inc. and Morgan Stanley & Co.
Incorporated
10.25++ PageMart Nationwide, Inc. Third Amended and Restated 1991
Stock Option Plan and Third Amended and Restated 1991 Stock
Issuance Plan(1)
10.26** Satellite Services and Space Segment Lease Agreement, dated
January 2, 1995, between PageMart, Inc. and SpaceCom
Systems, Inc.
10.27** Credit Agreement, dated as of May 11, 1995, by and among
PageMart Nationwide, Inc., the Lenders named therein, BT
Commercial Corporation, as Agent, and Bankers Trust Company,
as Issuing Bank
10.28** Subscription Agreement, dated as of May 11, 1995, by and
among PageMart Nationwide, Inc. and the investors named
therein
10.29+ Amended and Restated Agreement Among Certain Stockholders of
PageMart Nationwide, Inc. dated as of September 19, 1995
10.30*** Secured promissory note of John D. Beletic, as Maker, in
favor of PageMart Nationwide, Inc. dated May 11, 1995, in
the amount of $21,000.
10.31*** Subscription Agreement dated as of July 7, 1995 among
PageMart Nationwide, Inc., PageMart Canada Holding
Corporation and TD Capital Group Ltd.
10.32*** Agreement Among Stockholders among PageMart Nationwide,
Inc., PageMart International, Inc., TD Capital Group Ltd.,
PageMart Canada Holding Corporation and PageMart Canada
Limited.
10.33**** Equipment Purchase Agreement between Motorola, Inc. and
PageMart Wireless, Inc. (2)
10.34**** Technology Asset Agreement dated as of December 1, 1995
between Motorola, Inc. and PageMart Wireless, Inc.(2)
10.35*** PageMart Wireless, Inc. Employee Stock Purchase Plan(1)
10.36*** PageMart Wireless, Inc. Nonqualified Formula Stock Option
Plan for Non-Employee Directors(1)
10.37***** Office Lease Agreement date as of November 26, 1996 between
Crescent Real Estate Equities Limited and PageMart Wireless,
Inc.
10.38(3) PageMart Wireless, Inc. Fourth Amended and Restated 1991
Stock Option Plan.
11.1***** Computation of earnings (loss) per share
21.1*** PageMart Wireless, Inc. Subsidiaries
27.1***** Financial Data Schedule for the year ended December 31,
1996.
</TABLE>
- ---------------
* Each of these exhibits is hereby incorporated by reference to the Form
10-K of the Company for the fiscal year ended December 31, 1994.
** Each of these exhibits is hereby incorporated by reference to the
Registration Statement on Form S-1 of the Company (Reg. No. 33-91142).
*** Each of these exhibits is hereby incorporated by reference to the
Registration Statement on Form S-1 of the Company (Reg. No. 33-03012).
**** Each of these exhibits is hereby incorporated by reference to the Form
10-K of the Company for the fiscal year ended December 31, 1995.
***** Filed herewith.
<PAGE> 55
+ Each of these exhibits is hereby incorporated by reference to the Form
8-K of the Company dated October 6, 1995.
++ Each of these exhibits is hereby incorporated by reference to the
Registration Statement on Form S-8 of the Company (Reg. No. 33-98116).
(1) This exhibit is a "management contract or compensatory plan or
arrangement" required to be filed as an exhibit to this report pursuant to
Item 14(c) of Form 10-K.
(2) The Company has requested confidential treatment for certain portions of
this agreement.
(3) Originally filed as Exhibit 10.1 in the Company's Form 10-Q for the
quarterly period ended September 30, 1996.
<PAGE> 1
EXHIBIT 10.37
3333 LEE PARKWAY
OFFICE LEASE
THIS OFFICE LEASE (this "Lease") is made as of the _____ day of
___________________, 1996, by and between Crescent Real Estate Equities Limited
Partnership, a Delaware limited partnership ("Landlord"), and the Tenant named
below.
WITNESSETH:
<TABLE>
<S> <C> <C>
1. BASIC PROVISIONS.
(a) TENANT: PageMart Wireless, Inc.
-------------------------------------------------------------
6688 North Central Expressway
-------------------------------------------------------------
Suite 800
-------------------------------------------------------------
Dallas, Texas 75206
-------------------------------------------------------------
(b) BUILDING: 3333 Lee Parkway
-------------------------------------------------------------
Dallas, Texas 75219
-------------------------------------------------------------
-------------------------------------------------------------
(c) PREMISES: Suite , on the floor of the Building
---- -----
Approximate Rentable Area of the Premises(1):
30,000 square feet(2)
------------------------
</TABLE>
__________________________________
1 Landlord agrees that Tenant shall have the right to cause the Rentable
Area of the Premises to be verified by an architect selected by Tenant and
approved by Landlord, at Tenant's sole cost and expense, one time only, after
each of the following dates, and with respect to that portion of the Premises
then being added only: (1) the Commencement Date of this Lease (as such term is
defined in Paragraph 3 of this Lease), (2) the First Expansion Space
Commencement Date (as such term is defined in Rider No. 101 attached to this
Lease), and (3) the Second Expansion Space Commencement Date (as such term is
defined in Rider No. 101 attached to this Lease), or one time only, with
respect to the entire Premises, after the Second Expansion Space Commencement
Date. The results of any such verification shall be binding on both Landlord
and Tenant, and in the event of a discrepancy between the Rentable Area of the
Premises as determined by the architect and the Rentable Area specified in this
Paragraph 1(c), the Lease shall be modified to reflect the actual Rentable Area
of the Premises.
2 Landlord and Tenant agree that after the Second Expansion Space
Commencement Date (as such term is defined in Rider No. 101 attached to this
Lease), Tenant shall lease a total of approximately 120,000 rentable square
feet in the Building, and that such space shall consist of all of the eighth,
ninth, tenth, eleventh, and twelfth floors, and a portion of the first and
seventh floors of the Building; provided that, at Landlord's option, Landlord
may substitute the fifth floor of the Building for the seventh floor of the
Building. The Premises shall be constructed by Landlord and occupied by Tenant
pursuant to the terms and conditions of the Construction Agreement and Rider
No. 101 attached to this Lease. On or before each of the following dates, (i)
the Commencement Date of this Lease, (ii) the First Expansion Space
Commencement Date, and (iii) the Second Expansion Space Commencement Date,
Landlord and Tenant will enter into an amendment to this Lease modifying the
description of the Premises to include the applicable space and containing
other appropriate terms and conditions related to the addition of such space.
<PAGE> 2
<TABLE>
<S> <C> <C>
Rentable Area of the Building:
233,484 square feet(3)
---------------------
(d) BASIC RENTAL: Months 1-12: $ per month; annual rental rate per
----------
square foot of Rentable Area: $17.70.
-----
Months 13-24: $ per month; annual rental rate per
----------
square foot of Rentable Area: $17.95.
-----
Months 25-36: $ per month; annual rental rate per
----------
square foot of Rentable Area: $18.20.
-----
Months 37-48: $ per month; annual rental rate per
----------
square foot of Rentable Area: $18.70.
-----
Months 49-72: $ per month; annual rental rate per
----------
square foot of Rentable Area: $18.95.
-----
Months 73-84: $ per month; annual rental rate per
----------
square foot of Rentable Area: $19.20.
-----
Months 85-96: $ per month; annual rental rate per
----------
square foot of Rentable Area: $19.70.
-----
</TABLE>
__________________________________
3 Landlord agrees that the Rentable Area of the Building specified in
this Paragraph 1(c) shall not be modified during the initial term of this
Lease, except in the event of an expansion or addition to the Building, if any.
-2-
<PAGE> 3
<TABLE>
<S> <C> <C>
Months 97-108: $ per month; annual rental rate per
----------
square foot of Rentable Area: $19.95.
-----
Months 109-128: $ per month; annual rental rate
----------
per square foot of Rentable Area: $20.20.
-----
(e) SECURITY DEPOSIT: $190,900.00 .
-----------------------------------------------------------
(f) LEASE TERM: Ten (10) years and eight (8) months .
------------------------------------------------------------
(g) ESTIMATED
COMMENCEMENT DATE: June 1 , 1997.
------------------------------------------------------
(h) OPERATING EXPENSE STOP: The quotient of (i) the amount of the Actual Operating Expenses for
the Project for the calendar year 1997, divided by (ii) the number of
square feet of Rentable Area in the Building.
(i) PERMITTED USE: General office use(4), but excluding(5) any use for collection
agency, credit processing or telemarketing purposes.
</TABLE>
2. LEASE GRANT. Landlord hereby leases to Tenant and Tenant
hereby leases from Landlord the Premises described above, which will(6) consist
of(7) approximately 30,000 square feet of Rentable Area (herein so called)
located on the _____ floor(s) of the building described above (the "Building"),
as shown in Exhibit A-1.(8) The Premises are located in the Building which is
located on the real property described in Exhibit A-2 attached hereto
__________________________________
4 , including employee training, data processing, customer service,
retail sales and service,
5 (except to the extent that the following services are provided
for Tenant's benefit only, and not for the benefit of a third party)
6 initially
7 a minimum of
8 which shall be attached hereto pursuant to Rider No. 101 attached
to this Lease. Landlord shall lease to Tenant and Tenant shall lease from
Landlord additional space in the Building pursuant to the terms and
conditions of Rider No. 101 attached to this Lease.
-3-
<PAGE> 4
(the "Land"). The Land, the Building, the parking facilities, parking garage
and other structures and improvements, landscaping, fixtures, appurtenances and
other common areas now or hereafter placed, constructed or erected thereon
comprise the project (the "Project") known as 3333 Lee Parkway in Dallas,
Dallas County, Texas. Tenant is hereby granted a nonexclusive right to use the
Common Areas during the term of this Lease for their intended purposes, in
common with others, subject to the terms and conditions of this Lease,
including, without limitation, the rules and regulations promulgated by
Landlord. "Common Areas" will mean all areas, spaces, facilities, and
equipment (whether or not located within the Building) made available by
Landlord for the common and joint use of Landlord, Tenant and others,
including, but not limited to, tunnels, walkways, sidewalks and driveways
necessary for access to the Building, Building lobbies, landscaped areas,
enclosed mall areas, loading areas, public corridors, public restrooms,
Building stairs and elevators, drinking fountains and such other areas and
facilities, if any, as are designated by Landlord from time to time as Common
Areas. "Service Areas" will refer to areas, spaces, facilities and equipment
serving the Building (whether or not located within the Building) but to which
Tenant and other occupants of the Building will not have access, including, but
not limited to, mechanical, telephone, electrical and similar rooms, and air
and water refrigeration equipment. This Lease is granted subject to the terms
hereof, the rights and interests of third parties under existing liens,
easements and encumbrances affecting such property, all zoning regulations,
rules, ordinances, building restrictions and other laws and regulations now in
effect or hereafter adopted by any governmental authority having jurisdiction
over the Project or any part thereof.
3. LEASE TERM. This Lease shall be for the term of years
described above, commencing on the(9) of (a) the Estimated Commencement Date
set forth in Paragraph 1,(10) (b) ten (10) days after Landlord's substantial
completion of the Finish Work, as such term is defined in the Construction
Agreement (as defined in Paragraph 4),(11). The date the Lease Term commences
shall be referred to in this Lease as the "Commencement Date". If the Lease
Term expires on a date other than the last day of a calendar month, Landlord
and Tenant shall be deemed to have agreed that the Lease Term shall be extended
through the last day of the calendar month in which the expiration date falls
(the "Expiration Date"). On the Commencement Date(12) Tenant will, within ten
(10) days after
__________________________________
9 later
10 or
11 but if Tenant takes possession of the Premises for the conduct of
business before either such date, then the Lease Term shall commence on the
date Tenant in fact occupies the Premises
12 of this Lease, the First Expansion Space Commencement Date, and the
Second Expansion Space Commencement Date,
-4-
<PAGE> 5
request from Landlord, execute, acknowledge, and deliver to Landlord a
statement in the form of Exhibit B attached hereto.(13)
4. CONSTRUCTION. In the event any construction of tenant
improvements is necessary for the Premises, such construction will be
accomplished and the cost of such construction will be paid in accordance with
a separate "Construction Agreement" (herein so called) between Landlord and
Tenant(14). Except as expressly provided in this Lease or in the Construction
Agreement, Tenant acknowledges that Landlord has not undertaken to perform any
modification, alteration or improvement to the Premises.
5. TENANT'S BASIC RENTAL OBLIGATION. Beginning on the
Commencement Date, all Basic Rental shall be paid monthly by Tenant to Landlord
in advance on or before the first day of each calendar month during the Lease
Term, without demand, deduction or setoff(15). All rental and other payments
which are due hereunder shall be made payable to Landlord. Tenant agrees to
pay said rental and other payments to Landlord at Crescent Real Estate Equities
Limited Partnership, P.O. Box 844255, Dallas, Texas 75284-4255, or at such
other place as may from time to time be designated in writing by Landlord, in
lawful money of the United States of America without any prior demand therefor
and without any deduction or setoff whatsoever(16). If the day on which Basic
Rental is first due is other than the first day of a calendar month, rent for
such partial month shall be prorated on a daily basis.
6. TENANT'S ADDITIONAL RENTAL OBLIGATIONS.
(a) Additional Rental. Beginning on the Commencement
Date, Tenant shall pay to Landlord each calendar year the Additional
Rental (herein so called) equal to Tenant's proportionate share of (i)
the Actual Operating Expenses (defined below) for the Project for such
calendar year in excess of (ii) the Operating Expense Stop multiplied
by the number of square feet of Rentable Area in the Building.
Additional Rental shall be prorated on a daily basis for each partial
calendar year in the Lease Term. Tenant's proportionate share shall
be based on the ratio which the Rentable Area in the Premises
(adjusted for office expansions) bears to the Rentable Area within the
Building(17).
__________________________________
13 Tenant shall have the option to terminate this Lease pursuant to
the terms and conditions of Rider No. 501 attached to this Lease.
14 attached hereto as Exhibit C and incorporated herein for all purposes
15 , except as otherwise set forth herein
16 , except as otherwise set forth herein
17 (adjusted for Building expansions)
-5-
<PAGE> 6
Rentable Area of the Premises and Rentable Area of the Building shall
be computed in accordance with Paragraph 19(x).
(b) Adjustment of Actual Operating Expenses.
Notwithstanding any language herein to the contrary, if the Building
is not fully occupied during any calendar year of the Lease Term,18)
Actual Operating Expenses(19) shall be determined as if the Building
had been fully occupied during such year. For the purposes of this
Lease, "fully occupied" shall mean(20) occupancy of(21) of the
Rentable Area in the Building(22).
(c) Actual Operating Expenses Enumerated. Actual
Operating Expenses shall include all expenses, costs and disbursements
of every kind and nature incurred or paid by Landlord in connection
with the ownership and/or the operation, maintenance, repair and
security of the Project, including, without limitation, expenses for
the following:
(i) garbage and waste disposal;
(ii) janitorial service and window cleaning for
the Building and the Common Areas and Service Areas (including
materials, supplies, Building Standard light(23) and ballasts,
equipment and tools therefor and rental and depreciation costs related
to any of the foregoing) or contracts with third parties to provide
same (the term "Building Standard" as used herein shall mean the type,
brand and/or quality of materials Landlord designates from time to
time to be the minimum quality to be used in the Building or the
exclusive type, grade or quality of material to be used in the
Building);
(iii) security;
(iv) insurance premiums (including, without
limitation, property, liability and any other types of insurance
carried by Landlord with respect to the Building and the Common Areas
and Service Areas, the costs of which may include an allocation of a
portion of the premium of a blanket insurance policy maintained by
Landlord);
__________________________________
18 those
19 which vary with occupancy
20 the actual occupancy of the Building or
21 ninety percent (90%)
22 , whichever is greater
23 tubes
-6-
<PAGE> 7
(v) real estate taxes, assessments, business
taxes, excises, and any other governmental levies and charges of every
kind and nature whatsoever, general and special, extraordinary and
ordinary, foreseen and unforeseen, which may during the Lease Term be
levied or assessed against, or arising in connection with the
ownership, use, occupancy, operation or possession of, the Building
and the Common Areas and Service Areas, or any part thereof, or
substituted, in whole or in part, for a real estate tax, assessment,
excise or governmental charge or levy previously in existence, by any
authority having the direct or indirect power to tax, including
interest on installment payments and all costs and fees (including
attorneys' fees) incurred by Landlord in contesting or negotiating
with taxing authorities as to same, but excluding any inheritance,
estate, succession, transfer, gift, franchise, corporation, income or
profits tax imposed upon Landlord;
(vi) water and sewer charges and any add-ons;
(vii) operation, maintenance, and repair (to
include replacement of components(24)) of the Building, including but
not limited to all floor, wall and window coverings and personal
property in the Common Areas, Building systems (such as heat,
ventilation and air conditioning systems), elevators, escalators, and
all other mechanical or electrical systems serving the Building and
the Common Areas and Service Areas and service agreements for all such
systems and equipment;
(viii)
(ix) license, permit and inspection fees;
(x) compliance with any fire safety or other
governmental rules, regulations, laws, statutes, ordinances or
requirements imposed by any governmental authority or insurance
company with respect to the Building during the Lease Term;
(xi) wages, salaries, employee benefits and taxes
(or an allocation of the foregoing) for personnel(25) working full or
part time in connection with the
__________________________________
24 ; provided, that if such components are properly classified as capital
in nature, the cost of such components shall be included in Actual Operating
Expenses and amortized pursuant to subparagraph (xv) below only to the extent
that the replacement of such components constitutes a Required Capital
Improvement or Cost Savings Improvement, as those terms are defined in such
subparagraph
25 , at or below the level of regional property manager and regional
asset manager,
-7-
<PAGE> 8
operation, maintenance and management of the Building and the Common
Areas and Service Areas;
(xii) accounting and legal services (but
excluding(26) legal services in connection with negotiations and
disputes with specific tenants unless the matter involved affects all
tenants of the Building);
(xiii) management fees for the Building(27) and
Landlord's overhead expenses directly attributable to the Building,
including without limitation, the cost of an office in the Building
maintained for management of the Project;
(xiv) indoor and outdoor landscaping;
(xv) depreciation (or amortization) of Required
Capital Improvements and Cost Savings Improvements. "Required Capital
Improvements" will mean capital improvements or replacements made in
or to the Building in order to conform to any Applicable Law.(28)
"Cost Savings Improvements" will mean any capital improvements or
replacements which are intended to reduce, stabilize or limit
increases in Actual Operating Expenses. The cost of Cost Savings
Improvements will be amortized by spreading such costs uniformly over
a term equal to the lesser of (a) the period of years over which the
amount by which Actual Operating Expenses are reduced would be equal
to the cost of such installation or (b) ten (10) years. The cost of
Required Capital Improvements and depreciable (or amortizable)
maintenance and repair items (e.g., painting of Common Areas,
replacement of carpet in elevator lobbies), will be amortized by
spreading such costs uniformly over a term equal to the lesser of (A)
the period employed by Landlord for federal income tax purposes or (B)
ten (10) years;
(xvi) ; and
__________________________________
26 accounting and
27 (which fees shall not exceed five percent (5%) of the gross revenues
for the Project)
28 For purposes of this Paragraph 6(c)(xv), Landlord represents that, to
Landlord's current and actual knowledge, the Building is in compliance with all
Applicable Laws in effect as of the execution of this Lease. This
representation shall not apply to The Americans With Disabilities Act and the
Texas Architectural Barriers Act, and all rules, regulations and guidelines
promulgated thereunder.
-8-
<PAGE> 9
(xvii) expenses and fees (including attorneys' fees)
incurred contesting the validity or applicability of any governmental
enactments which may affect Actual Operating Expenses.
(d) Exclusions from Actual Operating Expenses. Actual
Operating Expenses shall exclude the following:
(i) leasing commissions, attorneys' fees, costs
and disbursements and other expenses incurred in connection with
leasing,(29) renovating or improving space for tenants or prospective
tenants of the Building;
(ii) costs (including permit, license and
inspection fees) incurred in renovating or otherwise improving or
decorating, painting or redecorating space for tenants or vacant
space;
(iii) Landlord's costs of any services sold to
tenants for which Landlord is entitled to be reimbursed by such
tenants as an additional charge or rental over and above the Basic
Rental and Actual Operating Expenses payable under the lease with such
tenant or other occupant;
(iv) any depreciation and amortization on the
Building except as expressly permitted herein;
(v) costs incurred due to violation by Landlord
of any of the terms and conditions of this Lease or any other lease
relating to the Building;
(vi) interest on debt or amortization payments on
any mortgages or deeds of trust or any other debt for borrowed money;
(vii) all items and services for which Tenant
reimburses Landlord outside of Actual Operating Expenses or pays third
persons or which Landlord provides selectively to one or more tenants
or occupants of the Building (other than Tenant) without
reimbursement;
(viii) (30) repairs or other work occasioned by
fire, windstorm or other work(31) insurance or condemnation proceeds;
__________________________________
29 lease disputes,
30 the cost of
31 to the extent such cost is reimbursed by
-9-
<PAGE> 10
(ix) repairs resulting from any defect in the
original design or construction of the Building;
(32)
__________________________________
32 (x) Landlord's general overhead and administrative
expenses (except as otherwise provided in Paragraph 6(c) above);
(xi) Advertising and promotional expenditures in excess of
$35,000.00 per calendar year;
(xii) Fees for professional services including legal,
architectural, engineering, accounting and appraisal that (i) are not directly
related to the management, operation, repair and maintenance of the Project, or
(ii) are related to the sale, leasing, attempted sale or attempted leasing of
the Project or any part thereof;
(xiii) Ground lease payments, mortgage principal, interest
or other charges commonly referred to as "points" or other loan charges and
fees in connection with any financing or refinancing associated with the
Project, the land it is located on, or with respect to all or any part of
either;
(xiv) The cost of any electric current other than that
furnished to the Premises or other Rentable Area of the Building for purposes
other than the operation of the Building;
(xv) Except as provided in subparagraph (c)(xv) above, the
cost of any additions, repairs, alterations, changes, replacements and other
items which are not properly classified as an expense;
(xvi) Any costs and expenses payable to affiliates of
Landlord to the extent such costs and expenses exceed competitive fees charged
by unaffiliated persons or entities of similar skill, competence and
reputation;
(xvii) The cost of any work or service performed for or
facilities furnished to any tenant of the Building to a greater extent or in a
manner more favorable to such tenant than performed for or furnished to Tenant;
(xviii) The cost of any work or service performed for any
facility other than the Project;
(xix) Any expenses for repairs or maintenance related to
the Project that are reimbursed to Landlord pursuant to warranties or service
contracts;
(xx) Any costs, penalties and fines including interest
thereon incurred due to the violation by Landlord of any building codes, or any
other governmental rule or requirement pertaining to the Building, except such
as may be incurred by Landlord in contesting in good faith the alleged
violation;
(xxi) Interest and penalties due to late payment of taxes
payable by Landlord, except such as may be incurred by Landlord in contesting
in good faith the payment of such taxes; and
(xxii) Interest upon the undepreciated (or unamortized)
balance of the original cost of items which Landlord is entitled to depreciate
(or amortize) as an Actual Operating Expense.
-10-
<PAGE> 11
(e) Credits. Landlord will credit against Actual
Operating Expenses any refunds received as a result of tax contests,
after deduction for Landlord's costs in connection with same.
(f) Discretionary Items. The foregoing provisions of
this Paragraph 6 will not be deemed to require Landlord to furnish or
cause to be furnished any service or facility not otherwise required
to be furnished by Landlord pursuant to the provisions of this Lease,
although Landlord, in Landlord's absolute discretion, may choose to do
so from time to time.
(g) Estimated Actual Operating Expenses. Landlord shall
have the right to estimate Additional Rental to accrue hereunder and
Tenant shall pay to Landlord one-twelfth (1/12) of the amount of such
estimate monthly with each of Tenant's Basic Rental payments. If
Landlord estimates Additional Rental in advance, then by each April 1
or as soon thereafter as practical, Landlord shall furnish to Tenant a
statement of Landlord's Actual Operating Expenses for the previous
calendar year. If for any calendar year Tenant's Additional Rental
collected for the prior year, as a result of payment of Tenant's
estimated Additional Rental, is in excess of Tenant's Additional
Rental actually due during such prior year, then, so long as Tenant is
not in default hereunder, Landlord shall refund to Tenant(33) any
overpayment(34). Likewise, Tenant shall pay to Landlord, on demand,
any underpayment with respect to the prior year, which obligation of
Tenant shall survive the expiration or earlier termination of this
Lease.
(h) Energy Costs. As additional rental, Tenant shall pay
to Landlord along with each of Tenant's Basic Rental payments,
Tenant's proportionate share of the(35) costs incurred by Landlord for
(i) any and all forms of fuel or energy utilized in connection with
the operation, maintenance, and use of the Project, (ii) sales, use,
excise and other taxes assessed by governmental authorities on energy
sources supplied to the Project, and (iii) other(36) costs of
providing energy to the Project. Tenant's proportionate share shall
be based on the ratio which the Rentable Area in the Premises
(adjusted for office expansions(37)) bears to the number of square feet
of all Rentable Area occupied by tenants in the Building from time to
time. Landlord shall have the
__________________________________
33 within thirty (30) days
34 , which obligation shall survive the expiration or earlier termination
of this Lease
35 actual
36 actual
37 , and excluding the Rentable Area of that portion of the Premises
which is separately metered
-11-
<PAGE> 12
right to estimate such energy costs in the same manner as the
estimation of Actual Operating Expenses pursuant to Paragraph 6(g)
above.
(38)
7. LANDLORD'S OBLIGATIONS.
(a) Water, Heat, Air Conditioning, Janitorial and
Elevator Service and Maintenance Obligations. Subject to the
limitations hereinafter set forth, Landlord agrees to furnish Tenant
while occupying the Premises and while Tenant is not in default under
this Lease: (i) water (hot and cold) at those points of supply
provided for general use of tenants of the Building; (ii) Building
Standard heat and air conditioning in season, as determined by
Landlord, weekdays (other than holidays) between 7:00 a.m. and 6:00
p.m., and Saturdays between 8:00 a.m. and 1:30 p.m., at such
temperatures and in such amounts as are reasonably considered by
Landlord to be standard (Landlord shall only furnish heat and air
conditioning weekdays after 6:00 p.m., on Saturdays after 1:30 p.m.,
and on Sundays and holidays at the written request of Tenant (which
must be received by Landlord at least twenty-four (24) hours in
advance, but no later than 12:00 noon of the preceding Friday, if the
request is for Saturday, Sunday or a holiday), and at Tenant's cost
payable within fifteen (15) days after receipt of an invoice); (iii)
Building Standard janitorial service on weekdays other than holidays
for Building installations(39) and Building Standard window washing;
(iv) operatorless passenger elevators for ingress
__________________________________
38 (i) Right to Audit. Tenant shall have the right, at Tenant's sole
cost and expense, for a period of sixty (60) days after Landlord delivers to
Tenant the statement of Landlord's Actual Operating Expenses for the previous
calendar year (the "Review Period") to conduct an audit of that portion of
Landlord's books and records pertaining only to the Actual Operating Expenses
for such preceding calendar year; provided that the accounting firm conducting
the audit and Tenant execute a confidentiality agreement for the benefit of
Landlord prior to the commencement of any such audit. This paragraph shall not
be construed to limit or abate Tenant's obligation to pay the Additional Rental
when due as set forth hereinabove. If such audit conducted by Tenant discloses
that Tenant has overpaid or underpaid Tenant's proportionate share of Actual
Operating Expenses, then, after verification of such audit by Landlord or by
accountants selected by Landlord, any overpayment shall be refunded to Tenant
(so long as Tenant is not then in default of any of the terms of this Lease, in
which event such overpayment shall be applied against any amount Tenant owes as
a result of such default) within thirty (30) days after the verification of the
audit, or any underpayment shall be paid to Landlord within thirty (30) days
after the verification of the audit. If the audit proves that Landlord's
calculation of Tenant's Additional Rental for the calendar year under
inspection was overstated by more than five percent (5%), then, after
verification, Landlord shall pay Tenant's actual reasonable out-of-pocket audit
and inspection fees applicable to the review of said calendar year statement
within thirty (30) days after receipt of Tenant's invoice therefor.
39 (a copy of the current Building Standard Janitorial Services is
attached hereto as Exhibit D, such services are subject to change by Landlord
at any time without notice to Tenant)
-12-
<PAGE> 13
and egress to the floor(s) on which the Premises are located(40); and
(v) replacement of Building Standard fluorescent tubes, but(41).(42)
Landlord additionally agrees to maintain in the Building the exterior
walls, roof, windows, structural steel, load-bearing nondemising
walls, floors below the level of Tenant's floor covering(43) and the
HVAC, electrical and plumbing systems serving the Premises, but
located outside the Premises, subject to the terms and conditions of
this Lease which may limit Landlord's maintenance, repair and
rebuilding obligations under various circumstances.(44)
__________________________________
40 , including, but not limited to, an operatorless passenger elevator
for ingress and egress between the tenth, eleventh, and twelfth floors of the
Premises
41 the cost of replacement of such tubes shall be charged by
Landlord as an Actual Operating Expense of the Project
42 Notwithstanding any provision to the contrary in Paragraph
7(a)(ii) above, Landlord and Tenant agree that Tenant shall install, at
Tenant's sole cost and expense, the equipment necessary to supply heat, air
conditioning, and electricity to any floor(s) in the Premises which
requires twenty-four (24) hour HVAC service ("Tenant's HVAC Equipment").
In addition, Landlord shall install and maintain, at the sole cost and expense
of Tenant, a submeter which shall be read by Landlord and which shall
determine the amount of electricity consumed by Tenant per month on such
floor(s), and Tenant shall pay to Landlord monthly, upon demand, the actual
cost of such electrical service. For the purposes hereof, the terms month
or monthly shall include any other billing period used by the utility
supplying electricity to the Building. Landlord shall not be liable in any
way to Tenant for any failure or defect in the supply or character of
electric energy furnished to the separately metered floor(s) by reason of
any requirement, act, or omission of the public utility serving the Building
with electricity, nor shall Landlord be liable in any way to Tenant for the
maintenance or operation of Tenant's HVAC Equipment. All installations of
electrical fixtures, appliances, and equipment within the Premises shall be
subject to Landlord's prior approval, which approval shall not be
unreasonably withheld, conditioned, or delayed. If Tenant desires that
Landlord provide such electrical services to the separately metered floor(s)
at any time during the Lease Term, then Tenant shall design the installation
of Tenant's HVAC Equipment in such a manner so that Landlord is capable of
providing electrical service to the separately metered floor(s), and in such
event, Tenant shall pay to Landlord all costs associated with Landlord's supply
of such electrical power. Landlord acknowledges that Tenant's use of the
Premises will require the placement of a separate generator on a portion of
the Project to serve the Premises throughout the term of this Lease.
Landlord agrees to allow Tenant to install such generator at Tenant's sole
cost and expense prior to the commencement of the Lease Term upon a
location within the Project to be mutually agreed upon by Landlord and
Tenant. Tenant shall maintain the generator at Tenant's sole cost and
expense, and shall have access to the generator at all times during the Lease
Term. Notwithstanding anything to the contrary set forth herein, Tenant shall
not be required to pay any additional rental with respect to the space
utilized by the generator. Landlord shall have the right to relocate such
generator at any time during the term of this Lease to another area within the
Project mutually agreed upon by Landlord and Tenant, at Landlord's sole cost
and expense.
43 , the Common Areas and the Service Areas,
44 Landlord agrees that the above-described services and maintenance of
the Building and its components shall be comparable to services and maintenance
provided in other office buildings in the Dallas, Texas area which are
comparable in size, quality and location, throughout the Lease Term and any
renewals, extensions or expansions thereof. Landlord has provided Tenant with
a copy of the Report of Property Condition Survey for the Project prepared by
Law Engineering, Inc., and dated December, 1995 (the "Property Condition
Report"). Except as otherwise provided in the Property Condition Report, the
HVAC, electrical and plumbing systems serving the Premises are in good working
condition on the date of execution of this Lease.
-13-
<PAGE> 14
(b) Electrical Service. Tenant's use of electrical
services furnished by Landlord shall be subject to the following:
(i) * Landlord shall not be required to furnish
electrical current for computers, electronic data processing
equipment, special lighting, equipment that requires more than
110 volts, or any other equipment whose electrical energy
consumption exceeds normal office usage.(45)
(ii) The amount of electricity consumed by Tenant
shall be determined, at the election of Landlord, either (A)
based upon a survey performed by a reputable consultant to be
selected by Landlord and paid by Tenant, or (B) through a
separate meter to be installed, maintained and read by
Landlord at the sole cost of Tenant.
(iii) If(46) Tenant's requirements for or
consumption of electrical services(47) the usage amount
specified in Paragraph 7(b)(i) hereof, then(48) subject to the
following terms:
(A) Tenant shall pay for all costs of
installation and maintenance of submeters, wiring,
air conditioning and other items required by
Landlord, in Landlord's discretion, to accommodate
Tenant's excess design loads and capacities.
__________________________________
* Except as otherwise provided herein,
45 Landlord acknowledges that Tenant will require excess electrical
service in all or a portion of the Premises. Landlord agrees to inform Tenant,
in connection with the approval of the Preliminary Plans (as such term is
defined in the Construction Agreement), if Tenant's electrical requirements
will exceed normal office usage. In the event that Tenant's electrical
requirements exceed normal office usage, Landlord will furnish such excess
electrical current to Tenant pursuant to the terms and conditions of Paragraph
7(b)(iii) below.
46 , during the approval of the Preliminary Plans for the Premises (as
such term is defined in the Construction Agreement attached hereto as Exhibit
C), Landlord determines that
47 will exceed
48 Landlord agrees to furnish such excess electrical current to Tenant
-14-
<PAGE> 15
(B) Tenant shall pay to Landlord, upon
demand, the(49) cost of the excess demand and
consumption of electrical service at rates(50) by
Landlord which shall be in accordance with any
Applicable Laws.
(C)
(c) Interruption of Services. Failure to any extent to
make available, or any slow-down, stoppage or interruption of any
services described in this Paragraph 7 resulting from any cause
whatsoever (other than Landlord's gross negligence(51)) shall not
render Landlord liable in any respect for damages, nor be construed as
an eviction of Tenant, nor relieve Tenant from fulfillment of any
covenant or agreement hereof. Should any service being furnished by
Landlord be interrupted for any cause whatsoever, Tenant shall notify
Landlord(52) and Landlord shall use reasonable diligence to restore
such service promptly.(53)
__________________________________
49 actual
50 paid
51 or willful misconduct
52 in writing
53 Tenant shall be entitled to an equitable diminution of rent based upon
the pro rata portion of the Premises which is rendered unfit for occupancy for
the Permitted Use, if such interruption of service continues for more than five
(5) consecutive business days. Such equitable diminution of rent shall
commence on the sixth business day of such interruption and shall constitute
Tenant's sole and exclusive remedy in the event of any such occurrence, except
as otherwise set forth herein. Notwithstanding anything in this Lease to the
contrary, in addition to Tenant's foregoing rights, in the event of a failure
by Landlord (except due to Tenant's negligence, gross negligence or willful
misconduct) for any reason to provide any of the services described in
Paragraphs 7(a)(i) (other than supply of heated water), 7(a)(ii), 7(a)(iv), or
7(b)(i), and if such failure (the "Services Failure") should continue beyond a
period of sixty (60) days (or such longer period as is reasonably necessary to
remedy such Services Failure, provided Landlord shall continuously and
diligently pursue such remedy at all times until such Services Failure is
cured), Tenant shall have the right to deliver a written notice thereof (the
"Services Notice") to Landlord (with a copy of said notice being sent
simultaneously therewith to Landlord's mortgagee in accordance with Paragraph
13(e) hereof). If such Services Failure shall continue uncured by Landlord and
Landlord's mortgagee for an additional thirty (30) days after the receipt of
the Services Notice, Tenant shall have the right to cure such Services Failure,
and Landlord shall reimburse Tenant (which reimbursement Tenant may effect
through the withholding of rent) for all reasonable sums expended in so curing
such failure. In the event Tenant undertakes to correct or cure the Services
Failure, Tenant shall indemnify, defend and hold Landlord harmless from and
against any loss, costs, claim, expense or liability arising out of the actions
of Tenant or its contractors, agents or employees. The foregoing rental
abatement and self-help (and offset) rights of Tenant for a Services Failure
shall constitute Tenant's sole and exclusive remedies involving or with respect
to a Services Failure, unless such Services Failure is due to the gross
negligence or willful misconduct of Landlord. Tenant agrees there shall be no
abatement of rent, nor shall Tenant have the right to avail itself of self-help
(and offset) rights, on account of a Services Failure due to Tenant's
negligence, gross negligence or willful misconduct. The foregoing self-help
and offset rights (but not the abatement right) of Tenant for a Services
Failure shall be personal solely to PageMart Wireless, Inc., and shall not be
available to any assignee or sublessee, other than a Fortune 500 company or an
Affiliate (as hereinafter defined).
-15-
<PAGE> 16
(d) Discontinuance of Service. Landlord reserves the
right, upon not less than thirty (30) days written notice to Tenant,
to discontinue the availability of electrical service to the Premises.
If Landlord elects such option, Tenant will contract directly with
such public utility for the continuance of service to the Premises.
8. TENANT'S COVENANTS. Tenant covenants and agrees as follows:
(a) Alterations. Tenant shall make no alterations,
changes or improvements to the Premises without first submitting to
Landlord plans and specifications and obtaining the prior written
consent of Landlord(54). All work done by Tenant shall be performed in
a good and workmanlike manner by a contractor approved by Landlord, in
compliance with Applicable Laws and at such times and in such manner
as not to cause interference with construction in progress or with
other tenants in the Building.(55)
__________________________________
54 , which consent shall not be unreasonably withheld provided: (i)
Tenant notifies Landlord in writing and furnishes Landlord with complete plans
and specifications of all such alterations, changes or improvements
(collectively, "Modifications") at least ten (10) days prior to undertaking
them, (ii) Tenant agrees to provide Landlord with "record" plans and
specifications related to such Modifications upon completion of same, (iii)
such Modifications are not visible from the exterior of the Premises or the
Building, (iv) such Modifications are completed in compliance with all
Applicable Laws and do not adversely affect the mechanical, electrical or
plumbing systems or the structural integrity of the Building, and (v) Tenant
coordinates the construction of such Modifications with the Building's property
manager. Notwithstanding the foregoing, Landlord's prior written consent shall
not be required for work to the interior of the Premises (hereinafter referred
to as "Cosmetic Work") which (i) is not visible from and does not affect the
exterior of the Premises or the Building, (ii) is completed in accordance with
all Applicable Laws, and (iii) does not adversely affect the mechanical,
electrical or plumbing systems or the structural integrity of the Building, so
long as Tenant provides advance written notice to Landlord of such Cosmetic
Work. Landlord shall, at the written request of Tenant, indicate whether such
alterations, changes or improvements must be removed by Tenant upon the
expiration or termination of this Lease. Tenant agrees that the Modifications
and Cosmetic Work shall be completed at Tenant's sole cost and expense
55 Notwithstanding the foregoing, Landlord's approval of the contractor
performing the work shall not be required so long as (i) the work is purely
Cosmetic Work to the interior of the Premises, and (ii) the contractor is
experienced, licensed, insured, and bonded.
-16-
<PAGE> 17
(b) Mechanic's and Materialmen's Liens. Tenant shall
have no authority or power, express or implied, to create or cause any
mechanic's or materialmen's lien, charge or encumbrance of any kind
against the Premises or the Project or any portion thereof. Tenant
shall promptly cause any such liens which have arisen by reason of any
work or materials claimed to have been provided to or undertaken by or
through Tenant to be released by payment, bonding or otherwise within
thirty (30) days after request by Landlord, and Tenant shall indemnify
Landlord against losses arising out of any such claim. Tenant's
indemnification of Landlord contained in this Paragraph 8(b) shall
survive the expiration or earlier termination of this Lease.
(c) Permitted Use of Premises. Tenant shall not permit
the Premises to be used for any purpose other than for the use
specified in Paragraph 1 of this Lease. Tenant will, at Tenant's sole
cost, promptly comply with all Applicable Laws(56). The judgment of
any court of competent jurisdiction or the admission of Tenant in any
action against Tenant, whether Landlord is a party thereto or not,
that Tenant has violated any Applicable Law will be conclusive of that
fact between Landlord and Tenant. Tenant will conduct its business
and occupy the Premises and will control its agents, employees,
licensees and(57) invitees in such a manner so as not to create any
nuisance or interfere with, annoy or disturb any of the other tenants
in the Building or Landlord in its management of the Building and so
as not to injure the reputation of the Building.
(d) Repairs. Tenant will not in any manner deface or
injure the Building, and will pay the cost of repairing and replacing
any damage or injury done to the Building or any part thereof by
Tenant or Tenant's agents, contractors or employees(58). Tenant shall
throughout the Lease Term keep the Premises free from deterioration,
waste and nuisance of any kind, excluding (i) ordinary and customary
wear and tear, and (ii) damage resulting from a fire or other
casualty. Tenant agrees to keep the Premises in good condition and
repair and Tenant shall make all necessary repairs and
replacements(59). If Tenant fails to make such repairs or
replacements within fifteen (15) days after notice from Landlord,
Landlord may at its option make such repairs or replacements, and
Tenant shall upon demand pay Landlord for the cost thereof.
__________________________________
56 , except to the extent that the Applicable Laws apply to obligations
and responsibilities of Landlord pursuant to the terms of this Lease
57 will use its best efforts to control its
58 to the extent such damage or injury is not covered by the
insurance maintained by Landlord pursuant to Paragraph 10 of this Lease
59 for which Tenant is responsible pursuant to the terms of this Lease
-17-
<PAGE> 18
(e) Security. Tenant shall take all reasonable steps
necessary to adequately secure the Premises from unlawful intrusion,
theft, fire and other hazards, and shall keep and maintain all
security devices in or on the Premises in good working order,
including, but not limited to, locks, smoke detectors and burglar
alarms, and shall cooperate with Landlord and other tenants in the
Building with respect to Building security matters.
9. ASSIGNMENT AND SUBLETTING.
(a) Assignment and Subletting. Tenant shall not sublet
the Premises in whole or in part or market the Premises for sublease
and shall not sell, assign or in any manner transfer this Lease or any
interest herein, directly or indirectly (by transfer of control of
Tenant, for example), or voluntarily or by operation of law or
otherwise, or permit any transfer of Tenant's interest created hereby,
or allow any lien upon Tenant's interest by operation of law or
otherwise, or permit the use or occupancy of the Premises or any part
thereof, by anyone other than Tenant, nor shall Tenant sublease space
in the Building from another tenant thereof, without Landlord's prior
written consent(60). (61)
__________________________________
60 , which consent shall not be unreasonably withheld or delayed so long
as (i) the assignee's or sublessee's financial condition is reasonably
satisfactory to Landlord, in that such assignee's or sublessee's financial
statements indicate the ability to pay all of such party's obligations under
the proposed assignment or sublease, as applicable; (ii) the assignee or
sublessee has a net worth of at least $5,000,000.00; (iii) the assignee's or
sublessee's use of the Premises complies with the Permitted Use provisions
hereof; (iv) the assignee or sublessee does not have a bad or negative
reputation in the business community; (v) the proposed assignment or sublease
will not have an adverse effect on the real estate investment trust
qualification tests applicable to Landlord and its affiliates; (vi) Tenant is
not in default under the Lease at the time of such assignment or subletting;
and (vii) Tenant shall remain liable for the performance of each and every
term, covenant and condition hereof, as the same may be amended from time to
time
61 Notwithstanding the foregoing, Tenant may assign this Lease to an
Affiliate (as hereinafter defined) without the prior written consent of
Landlord, provided that (i) such assignee's use of the Premises complies with
the Permitted Use provisions hereof; (ii) assignee does not have a bad or
negative reputation in the business community; (iii) Tenant notifies Landlord
in advance of such assignment, which notice shall include the identity of such
assignee; (iv) such assignee has a net worth at the time of such assignment of
not less than $5,000,000.00; (v) such assignee agrees in writing to assume and
fully perform and observe the obligations and agreements of Tenant under this
Lease; (vi) Tenant is not in default under the Lease at the time of such
assignment; and (vii) Tenant remains liable for the performance of each and
every term, covenant and condition hereof, as the same may be amended from time
to time. Any permitted assignment of Tenant's interest in this Lease shall not
become effective until an assumption agreement is executed by the permitted
assignee, including an Affiliate, which assumption agreement shall be approved
by Landlord and promptly delivered to Landlord following the execution thereof.
As used herein, "Affiliate" means any person or entity controlling, controlled
by or under common control with Tenant. "Control" as used herein means the
power, directly or indirectly, to direct or cause the direction of the
management and policies of the controlled person or entity. The ownership,
directly or indirectly, of at least fifty-one percent (51%) of the voting
securities of, or the possession of the right to vote in the ordinary direction
of its affairs at least fifty-one percent (51%) of the voting interest in, any
person or entity shall be presumed to constitute such control. In addition to
the foregoing, Tenant may assign this Lease to a Fortune 500 company, without
the prior written consent of Landlord, provided that (i) such assignee's use of
the Premises complies with the Permitted Use provisions hereof; (ii) Tenant
notifies Landlord in advance of such assignment, which notice shall include the
identity of such assignee; (iii) Tenant is not in default under the Lease at
the time of such assignment; and (iv) such assignee agrees in writing to assume
and fully perform and observe the obligations and agreements of Tenant under
this Lease. Any permitted assignment of Tenant's interest in this Lease to a
Fortune 500 company shall not become effective until an assumption agreement is
executed by the Fortune 500 company, which assumption agreement shall be
approved by Landlord and promptly delivered to Landlord following the execution
thereof. Upon delivery to Landlord of an assumption agreement executed by the
Fortune 500 company, Tenant shall be released from liability for the
performance of the terms, covenants and conditions of this Lease, as the same
may be amended from time to time.
-18-
<PAGE> 19
If this Lease or any interest in this Lease is sold, assigned or
transferred, or Tenant subleases any part of the Premises, without
Landlord's consent, Landlord may, cumulative of any other right or
remedy available to Landlord, elect to terminate this Lease (as it
affects the portion of the Premises sought to be sublet or assigned)
as of the effective date of the proposed transfer. Landlord's
acceptance of any name for listing on the Building directory will not
be deemed, nor will it substitute for, Landlord's consent, as required
by this Lease, to any sublease, assignment or other occupancy of the
Premises.
(b) Consent to Assignment. Consent by Landlord to one or
more assignments or sublettings shall not operate as a waiver of
Landlord's rights as to any subsequent assignments and
sublettings. (62)any assignment or subletting, Tenant shall at all
times remain fully responsible and liable for the payment of the rent
and other sums herein specified and for compliance with all of
Tenant's other obligations under this Lease, and Landlord may proceed
against Tenant for the enforcement of such obligations without first
proceeding against any other party. No direct collection by Landlord
from any such assignee or sublessee shall be construed to constitute a
novation or a release of Tenant from the further performance of its
obligations hereunder. If the proposed sublessee or assignee is
subject to compliance with additional requirements under The Americans
with Disabilities Act beyond those requirements which are applicable
to the Tenant desiring to sublet or assign, Landlord may condition
Landlord's consent upon receipt of (i) plans and specifications
acceptable to Landlord for complying with the additional requirements,
and (ii) security acceptable to Landlord that such construction will
be completed timely and lien-free. In addition, any rights which
Tenant may have relating to the renewal or extension of the Lease or
the expansion of the Premises, if any, are personal to Tenant and
shall not be available to any proposed or actual sublessee, assignee
or transferee(63).
__________________________________
62 Except as otherwise expressly provided herein, notwithstanding
63 , other than a Fortune 500 company or an Affiliate, if any
-19-
<PAGE> 20
(c) Excess Rents. If any rents or other sums received by
Tenant under any sublease are in excess of the rent and other sums
payable by Tenant under this Lease (prorated for a sublease of less
than one hundred percent (100%) of the Premises), or if any additional
consideration is paid to Tenant by any assignee under any assignment,
then such excess rents under any sublease or such additional
consideration under any assignment (64) shall be paid by Tenant to
Landlord as additional rent hereunder within ten (10) days after
Tenant receives the same. Tenant will exercise its best efforts to
structure any sublease or assignment so that the portion of the excess
rents which become payable to Landlord will not have an adverse effect
on the real estate investment trust qualification tests applicable to
Landlord and its affiliates.
(d) Landlord's Right to Transfer. Landlord shall have
the right to transfer, assign and convey, in whole or in part, the
Building and any and all of its rights under this Lease, and in such
event, Landlord shall thereby be released from any further obligations
hereunder(65), and Tenant agrees to look solely to such
successor-in-interest of Landlord for performance of such obligations.
10. INDEMNITY AND INSURANCE.
(a) (66)Indemnity(67). (68)Tenant hereby agrees to
indemnify, protect, defend and hold harmless Landlord and its
partners, affiliated companies, officers, directors, shareholders,
employees and agents (collectively, "Landlord Indemnitees") for, from
and against all liabilities, claims, fines, penalties, costs, damages
or injuries to persons, damages to property, losses, liens, causes of
action, suits, judgments and expenses (including court costs,
attorneys' fees and costs of investigation), of any nature, kind or
description of any person or entity, directly or indirectly arising
out of, caused by, or resulting from (in whole or part)(69) Tenant's
construction of or use, occupancy or
__________________________________
64 (after deducting therefrom all expenses and concessions or inducements
(excluding Tenant's internal overhead and administrative and legal expenses)
incurred or provided by Tenant in connection with such assignment or sublease)
65 (except for any obligations accruing prior to such transfer which
are not expressly assumed by the successor- in-interest of Landlord)
66 (i)
67 of Landlord by Tenant
68 Subject to the provisions of Paragraph 10(c) of this Lease,
69 (A)
-20-
<PAGE> 21
enjoyment of the Premises,(70) any activity, work or other things
done, permitted or suffered by Tenant and its agents and employees in
or about the Premises,(71) any breach or default in the performance of
any obligation on Tenant's part to be performed under the terms of
this Lease including, but not limited to, Tenant's security
obligations set forth in Paragraph 8(f) of this Lease,(72) any act,
omission, negligence or willful misconduct of Tenant or any of its
agents, contractors, employees, business invitees or licensees, or(73)
damage to Tenant's property, or the property of Tenant's agents,
employees, contractors, business invitees or licensees, located in or
about the Premises (collectively, "Tenant Liabilities"), EVEN IF SUCH
TENANT LIABILITIES ARE CAUSED SOLELY OR IN PART BY THE NEGLIGENCE OF
LANDLORD OR ANY OTHER LANDLORD INDEMNITEE, BUT NOT IF SUCH TENANT
LIABILITIES ARE CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT
OF LANDLORD OR ANY OTHER LANDLORD INDEMNITEE. Tenant shall promptly
advise Landlord in writing of any action, administrative or legal
proceeding or investigation as to which this indemnification may
apply, and Tenant, at Tenant's expense, shall assume on behalf of
Landlord (and the other Landlord Indemnitees) and conduct with due
diligence and in good faith the defense thereof with counsel
satisfactory to Landlord; provided, however, that any Landlord
Indemnitee shall have the right, at its option, to be represented
therein by advisory counsel of its own selection and at its own
expense. In the event of failure by Tenant to fully perform in
accordance with this Paragraph 10(a), Landlord, at its option, and
without relieving Tenant of its obligations hereunder, may so perform,
but all costs and expenses so incurred by Landlord in that event shall
be reimbursed by Tenant to Landlord, together with interest on the
same from the date any such expense was paid by Landlord until
reimbursed by Tenant, at the rate of interest provided to be paid on
judgments, by the law of the jurisdiction to which the interpretation
of this Lease is subject. This indemnification shall not be limited
to damages, compensation or benefits payable under insurance policies,
workers' compensation acts, disability benefit acts or other
employees' benefit acts and shall survive the expiration or earlier
termination of this Lease.
(74)
__________________________________
70 (B)
71 (C)
72 (D)
73 (E)
74 (ii) Indemnity of Tenant by Landlord. Subject to the
provisions of Paragraph 10(c) of this Lease, Landlord hereby agrees to
indemnify, protect, defend and hold harmless Tenant and its partners, officers,
directors, shareholders, employees and agents (collectively, "Tenant
Indemnitees") for, from and against all liabilities, claims, fines, penalties,
costs, damages to persons, damages to property, losses, liens, causes of
action, suits, judgments and expenses (including court costs, attorneys' fees
and costs of investigation), of any nature, kind or description of any person
or entity, directly or indirectly arising out of, caused by, or resulting from
(in whole or part) (A) any activity, work or other things done, permitted or
suffered by Landlord and its agents and employees in or about the Common Areas,
(B) any breach or default in the performance of any obligation on Landlord's
part to be performed under the terms of this Lease, or (C) any gross negligence
or willful misconduct of Landlord or any of its agents, contractors, employees,
business invitees or licensees (collectively, "Landlord Liabilities"), EVEN IF
SUCH LANDLORD LIABILITIES ARE CAUSED SOLELY OR IN PART BY THE NEGLIGENCE OF
TENANT OR ANY OTHER TENANT INDEMNITEE, BUT NOT IF SUCH LIABILITIES ARE CAUSED
BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF TENANT OR ANY OTHER TENANT
INDEMNITEE. Landlord shall promptly advise Tenant in writing of any action,
administrative or legal proceeding or investigation as to which this
indemnification may apply, and Landlord, at Landlord's expense, shall assume on
behalf of Tenant (and the other Tenant Indemnitees) and conduct with due
diligence and in good faith the defense thereof; provided, however, that any
Tenant Indemnitee shall have the right, at its option, to be represented
therein by advisory counsel of its own selection and at its own expense. In
the event of failure by Landlord to fully perform in accordance with this
indemnification paragraph, Tenant, at its option, and without relieving
Landlord of its obligations hereunder, may so perform, but all costs and
expenses so incurred by Tenant in that event shall be reimbursed by Landlord to
Tenant, together with interest on the same from the date any such expense was
paid by Tenant until reimbursed by Landlord, at the rate of interest provided
to be paid on judgments, by the law of the jurisdiction to which the
interpretation of this Lease is subject. This indemnification shall not be
limited to damages, compensation or benefits payable under insurance policies,
workers' compensation acts, disability benefit acts or other employees' benefit
acts, but shall be limited by the provisions of Paragraph 19(c) hereof.
-21-
<PAGE> 22
(b) Insurance.
(i) (75) Tenant at all times during the Lease
Term shall, at its own expense, keep in full force and effect
(A) commercial general liability insurance providing coverage
against bodily injury and disease, including death resulting
therefrom, personal injury and property damage to a combined
single limit of $3,000,000 to one or more than one person as
the result of any one accident or occurrence, which shall
include provision for contractual liability coverage insuring
Tenant for the performance of its indemnity obligations set
forth in Paragraphs 10(a) and 18 of this Lease, (B) worker's
compensation insurance to the statutory limit and employer's
liability insurance to the limit of $500,000 per occurrence,
and (C) all risk personal property insurance covering full
replacement value of all of Tenant's personal property.
Landlord shall be named an additional insured on each of said
policies (excluding the worker's compensation policy) and said
policies shall be issued by an insurance company or
companies(76) acceptable to Landlord. Each of said policies
shall also include a waiver of subrogation provision or
endorsement in favor of Landlord, and an endorsement providing
__________________________________
75 Tenant's Insurance.
76 reasonably
-22-
<PAGE> 23
that Landlord shall receive ninety (90) days prior notice of
any cancellation of, non-renewal of, reduction of coverage or
material change in coverage on said policies. Tenant hereby
waives its right of recovery(77) of any amounts paid by Tenant
or on Tenant's behalf to satisfy applicable worker's
compensation laws. The policies or duly executed certificates
for the same, together with satisfactory evidence of the
payment of the premiums therefor, shall be deposited with
Landlord on the date Tenant first occupies the Premises and
upon renewals of such policies not less than fifteen (15) days
prior to the expiration of the term of such coverage.
(ii) It is expressly understood and agreed that
the coverages required represent Landlord's minimum
requirements and such are not to be construed to void or limit
Tenant's indemnity obligations contained in this Lease.
Neither shall (A) the insolvency, bankruptcy or failure of any
insurance company carrying Tenant, (B) the failure of any
insurance company to pay claims occurring nor (C) any
exclusion from or insufficiency of coverage be held to affect,
negate or waive any of Tenant's indemnity obligations under
Paragraphs 10(a) and 18 or any other provision of this Lease.
With respect to insurance coverages, except worker's
compensation, maintained hereunder by Tenant and insurance
coverage separately obtained by Landlord, all insurance
coverages afforded by policies of insurance maintained by
Tenant shall be primary insurance as such coverages apply to
Landlord, and such insurance coverages separately maintained
by Landlord shall be excess, and Tenant shall have its
insurance policies endorsed to reflect that policies
maintained by Tenant naming Landlord as an additional insured
are primary, and policies separately maintained by Landlord
are excess. The amount of liability insurance under insurance
policies maintained by Tenant shall not be reduced by the
existence of insurance coverage under policies separately
maintained by Landlord. Tenant shall be solely responsible
for any premiums, assessments, penalties, deductible
assumptions, retentions, audits, retrospective adjustments or
any other kind of payment due under its policies.
(iii) Tenant's occupancy of the Premises without
delivering the certificates of insurance shall not constitute
a waiver of Tenant's obligations to provide the required
coverages. If Tenant provides to Landlord a certificate that
does not evidence the coverages required herein, or that is
faulty in any respect, such shall not constitute a waiver of
Tenant's obligations to provide the proper insurance.
__________________________________
77 from Landlord
-23-
<PAGE> 24
(78)
(c) Mutual Waivers of Recovery. It is the intent of
Landlord and Tenant not to hold each other responsible for that
portion of any loss or damage paid or reimbursed by an insurer of
Landlord or Tenant under any fire, extended coverage or other property
insurance policy maintained by Tenant with respect to its Premises or
by Landlord with respect to the(79). Therefore, with respect to the
amount of any damage, loss, claim or liability paid or reimbursed by
an insurer under any fire, extended coverage or property insurance
policy maintained by Tenant with respect to the Premises, or Landlord
with respect to the(80), Landlord, Tenant and all parties claiming
under them each mutually release and discharge each other from such
damages, losses, claims or liabilities, no matter how caused,
including negligence, and each waives any right of recovery from the
other including, but not limited to, claims for contribution or
indemnity, which might otherwise exist on account thereof. Any fire,
extended coverage or property insurance policy maintained by Tenant
with respect to the Premises, or Landlord with respect to the(81),
shall contain, in the case of Tenant's policies, a waiver of
subrogation provision or endorsement in favor of Landlord, and in the
case of Landlord's policies, a waiver of subrogation provision or
endorsement in favor of
__________________________________
78 (iv) Landlord's Insurance.
(A) Landlord shall, at its own cost and expense, keep in
full force and effect commercial general liability insurance covering
the Project, insuring against claims for personal or bodily injury or
death or property damage caused by the negligence of Landlord
occurring upon, in or about the Project to afford protection to the
limit of not less than $1,000,000 combined single limit with respect
to injury or death to any number of persons and property damage
arising out of any one occurrence. This insurance coverage shall
extend to any liability of Landlord arising out of the indemnities
provided for in this Lease.
(B) Landlord shall, at its own cost and expense, keep in
full force and effect a policy or policies of "all risk" property
insurance covering the Project (excluding property required to be
insured by Tenant) endorsed to provide replacement cost coverage up to
policy limits in providing protection against perils included within
the applicable standard form of fire and extended coverage insurance
policy, together with insurance against sprinkler damage, vandalism,
malicious mischief, and such risks as Landlord may from time to time
determine, and with any such deductibles as Landlord may from time to
time determine.
(C) Any insurance provided for in this subparagraph may
be effected by a policy or policies of blanket insurance covering
additional items or locations or assureds, provided that the
requirements of this subparagraph are otherwise satisfied. Tenant
shall have no rights in any policy or policies maintained by Landlord.
79 Project
80 Project
81 Project
-24-
<PAGE> 25
Tenant, or, in the event that such insurers cannot or will not include
or attach such waiver of subrogation provision or endorsement, Tenant
and Landlord shall obtain the approval and consent of their respective
insurers, in writing, to the terms of this Lease. Neither Tenant nor
its insurers shall be entitled to receive any contribution from any
insurance policies separately maintained by Landlord, and Tenant
agrees to indemnify, protect, defend and hold harmless Landlord and
any of Landlord's insurers from any claim, suit or cause of action
asserted or brought by Tenant's insurers for, on behalf of, or in the
name of Tenant, including but not limited to, claims for contribution,
indemnity or subrogation.(82) The mutual releases, discharges and
waivers contained in this provision shall apply EVEN IF THE LOSS OR
DAMAGE TO WHICH THIS PROVISION APPLIES IS CAUSED SOLELY OR IN PART BY
THE NEGLIGENCE OF LANDLORD OR TENANT.
(d) Business Interruption. Landlord shall not be
responsible for, and Tenant releases and discharges Landlord from, and
Tenant further waives any right of recovery from Landlord for, any
loss from business interruption or loss of use of the Premises
suffered by Tenant in connection with Tenant's use or occupancy of the
Premises, EVEN IF SUCH LOSS IS CAUSED SOLELY OR IN PART BY THE
NEGLIGENCE OF LANDLORD.
(e) Adjustment of Claims. Tenant shall cooperate with
Landlord and Landlord's insurers in the adjustment of any insurance
claim pertaining to the Building or Landlord's use thereof.(83)
(f) Increase in Landlord's Insurance Costs. Tenant
agrees to pay to Landlord any increase in premiums for Landlord's
insurance policies resulting from Tenant's use or occupancy of the
Premises.
(g) Failure to Maintain Insurance. Any failure of
Tenant(84) to obtain and maintain the insurance policies and coverages
required hereunder or failure by Tenant(85)
__________________________________
82 Neither Landlord nor its insurers shall be entitled to receive any
contribution from any insurance policies separately maintained by Tenant, and
Landlord agrees to indemnify, protect, defend and hold harmless Tenant and any
of Tenant's insurers from any claim, suit or cause of action asserted or
brought by Landlord's insurers for, on behalf of, or in the name of Landlord,
including but not limited to, claims for contribution, indemnity or
subrogation.
83 Landlord shall cooperate with Tenant and Tenant's insurers in the
adjustment of any insurance claim pertaining to the Premises and Tenant's use
thereof.
84 or Landlord
85 or Landlord
-25-
<PAGE> 26
to meet any of the insurance requirements of this Lease shall
constitute a material breach hereof(86) shall entitle Landlord to
pursue, exercise or obtain any of the remedies provided for in
Paragraph 13, and Tenant shall be solely responsible for any loss
suffered by Landlord as a result of such failure. In the event of
failure by Tenant to maintain the insurance policies and coverages
required by this Lease or to meet any of the insurance requirements of
this Lease, Landlord, at its option, and without relieving Tenant of
its obligations hereunder, may obtain said insurance policies and
coverages or perform any other insurance obligation of Tenant, but all
costs and expenses incurred by Landlord in obtaining such insurance or
performing Tenant's insurance obligations shall be reimbursed by
Tenant to Landlord, together with interest on same from the date any
such cost or expense was paid by Landlord until reimbursed by Tenant,
at the rate of interest provided to be paid on judgments, by the law
of the jurisdiction to which the interpretation of this Lease is
subject.
11. FIRE OR CASUALTY. In the event that (a) the Premises or the
Building should be so damaged by fire or other casualty that rebuilding or
repairs cannot be completed within one (1) year after the date of commencement
of reconstruction, as determined by Landlord, or (b) the Premises shall be so
damaged during the last two (2) years of the Lease Term to the extent that more
than thirty percent (30%) of the area thereof is rendered untenantable,
Landlord may at its option terminate this Lease within ninety (90) days after
such damage by giving written notice to Tenant, in which event rent shall be
abated effective with the date of such damage.(87)
__________________________________
86 . Any such failure by Tenant
87 Tenant shall have the right to terminate this Lease following the
occurrence of a fire or other casualty under the following conditions:
(a) If the time it will take to restore the Premises to
substantially its condition immediately prior to the fire or other
casualty will exceed two hundred seventy (270) days after the date of
such casualty, Landlord shall give Tenant written notice thereof
within ninety (90) days after the occurrence of the casualty, and
Tenant shall have the option to terminate this Lease by giving
Landlord written notice within thirty (30) days after Tenant's receipt
of Landlord's notice.
(b) If the time it takes to restore the Premises to
substantially its condition immediately prior to the fire or other
casualty exceeds two hundred seventy (270) days after the date of such
casualty, Tenant shall have the option to terminate this Lease by
giving Landlord written notice within thirty (30) days after the
expiration of such two hundred seventy (270) day period.
(c) If the parking facilities associated with the
Building are so damaged by fire or other casualty that Landlord is
unable to provide at least fifty percent (50%) of the parking spaces
to which Tenant is entitled under this Lease, and if Landlord is
unable to (i) restore the parking facilities to substantially their
condition immediately prior to the fire or other casualty within two
hundred seventy (270) days after the date of such casualty, and (ii)
provide temporary alternative parking arrangements, including
transportation which provides reasonable access to the Building,
within a one and one-half (1.5) mile radius of the Building within
thirty (30) days after the date of such casualty, then Tenant shall
have the option to terminate this Lease by giving Landlord written
notice within thirty (30) days after the expiration of such thirty
(30) day or two hundred seventy (270) day period. If Tenant is unable
to use, or Landlord is unable to provide, all or a portion of the
parking spaces to which Tenant is entitled under this Lease, Landlord
shall abate Tenant's obligation to pay parking charges for such spaces
for so long as Tenant does not have the use thereof.
-26-
<PAGE> 27
If, following any such casualty, Landlord(88) does not terminate this Lease, or
in the event of casualty damage of a lesser extent to the Building, Landlord
shall, following receipt of insurance proceeds if such proceeds are made
available to Landlord by the holder of any mortgage encumbering the Project or
the Building, rebuild or repair the Premises or the Building to substantially
the same condition in which they were immediately prior to the happening of the
fire or other casualty, except that Landlord shall not be required to (i) spend
more than the amount of insurance proceeds actually received, or (ii) rebuild,
repair or replace any part of the furniture, equipment, fixtures and other
personal property which may have been placed by Tenant or other tenants within
the Building or the Premises. Landlord shall allow Tenant a fair diminution of
rental during the time the Premises are unfit for occupancy, and at Landlord's
option, the Lease Term shall be extended for a period equal to the period that
the Premises are unfit for occupancy.
12. CONDEMNATION. In the event that the Premises or the Building
or any part thereof shall be taken for public use or condemned under eminent
domain or conveyed under threat of such a taking or condemnation, or access to
the Premises precluded by any such event, either Landlord or Tenant may cancel
and terminate this Lease as it affects the portion of the Premises taken, or
the portion to which access is precluded, by giving notice to the other within
ten (10) days after the date on which title to the property taken vests in the
condemnor. Notwithstanding the foregoing, Tenant may not terminate this Lease
pursuant to the preceding sentence as a result of the condemnation of the
Building or any part thereof unless such condemnation materially affects
Tenant's use of or access to the Premises.(89) If this Lease is not terminated
as to all of the Premises following any of said actual takings or conveyances
of any part of the Premises,
__________________________________
88 or Tenant
89 In the event of a taking or condemnation which materially affects
Tenant's use of or access to more than fifty percent (50%) of the Premises,
Tenant shall have the option to terminate this Lease with respect to the entire
Premises by giving Landlord written notice within ten (10) days after the date
on which title to the property taken vests in the condemnor. Furthermore, in
the event of a taking or condemnation of the parking facilities associated with
the Building which affects Tenant's use of or access to more than fifty percent
(50%) of the parking spaces to which Tenant is entitled under this Lease, and
in the event that Landlord is unable to provide alternative parking
arrangements, including transportation which provides reasonable access to the
Building, within a one and one-half (1.5) mile radius of the Building within
thirty (30) days after the date on which title to the property taken vests in
the condemnor, Tenant shall have the option to terminate this Lease with
respect to the entire Premises by giving Landlord written notice within sixty
(60) days after the date on which title to the property taken vests in the
condemnor.
-27-
<PAGE> 28
then Landlord shall, to the extent of an equitable proportion of the award for
the portion of the Premises taken (excluding any award for land) and to the
extent such award is made available to Landlord from the holder of any mortgage
encumbering the Project or the Building, make such repairs to the Premises as
are necessary to constitute a complete architectural and tenantable unit.(90)
In the event of a partial taking or conveyance of the Premises, Landlord shall
allow Tenant a fair diminution of rental.(91) Tenant shall not be entitled to
claim, or have paid to Tenant, any compensation or damages whatsoever for or on
account of any taking or conveyance of any right, interest or estate of Tenant
under this Lease, and Tenant hereby relinquishes and assigns to Landlord any
rights to any such compensation or damages. Tenant does not hereby waive or
release claims for moving expenses, inconvenience or business interruption
related to a condemnation of the Premises, but any such claim shall be
asserted, if at all, in a proceeding independent of Landlord's primary
condemnation suit.
13. DEFAULT AND REMEDIES.
(a) Events of Default. The following events shall be
deemed to be events of default (herein so called) by Tenant under this
Lease: (i) Tenant shall fail to pay within five (5) days of the due
date Basic Rental, Additional Rental or any other rental or sums
payable by Tenant hereunder;(92) (ii) Tenant shall fail to comply with
or observe any other provision of this Lease and such failure shall
continue for(93) days after written notice to Tenant(94) (or, in the
case of Tenant's failure to comply with or observe any other single
provision of this Lease more than three (3) times during the Lease
Term, upon the occurrence of the fourth and all subsequent such
failures, without notice from Landlord); (iii) Tenant or any guarantor
of Tenant's obligations hereunder shall
__________________________________
90 If Landlord elects not to make the repairs to the Premises as
described in the immediately preceding sentence, then Landlord shall notify
Tenant of such election and Tenant shall have the option to terminate this
Lease by giving Landlord written notice within thirty (30) days after receipt
of Landlord's notice.
91 In the event of a taking or condemnation which affects Tenant's use of
or access to all or a portion of the parking spaces to which Tenant is entitled
under this Lease and in the event that Landlord is unable to provide
alternative parking arrangements, including transportation which provides
reasonable access to the Building, within a one and one-half (1.5) mile radius
of the Building, Landlord shall abate Tenant's obligation to pay parking
charges for the affected spaces.
92 provided, however, that the first two (2) times during any consecutive
twelve (12) month period Tenant so fails to timely pay any of such amounts,
Landlord shall provide Tenant with written notice (either by hand delivery or
by facsimile with electronic confirmation), and a period of five (5) days in
which to pay same before Tenant shall be in default hereunder;
93 thirty (30)
94 or, if such failure cannot be cured within such thirty (30) day period
with reasonable diligence, such failure shall continue beyond a reasonable time
not to exceed thirty (30) days, provided that Tenant has commenced curative
action within such thirty (30) day period and is diligently attempting to cure
such failure
-28-
<PAGE> 29
make a general assignment for the benefit of creditors; (iv) any
petition shall be filed by or against Tenant or any guarantor of
Tenant's obligations hereunder under the United States Bankruptcy
Code, as amended, or under any similar law or statute of the United
States or any state thereof, and such petition shall not be dismissed
within(95) days of filing, or Tenant or any guarantor of Tenant's
obligations hereunder shall be adjudged bankrupt or insolvent in
proceedings filed thereunder; (v) a receiver or trustee shall be
appointed for all or substantially all of the assets of Tenant or any
guarantor of Tenant's obligations hereunder, and such appointment
shall not be vacated or otherwise terminated, and the action in which
such appointment was ordered dismissed, within(96) days of filing; (vi)
Tenant shall fail to take possession of or shall desert, abandon or
vacate the Premises; (vii) or (viii) the occurrence of an event
described in clauses (iv) or (v) of this Paragraph 13(a) (without
regard to any cure periods contained therein) and the failure
thereafter of Tenant (A) to timely and fully make any payment of rent
or any other sum of money due hereunder or (B) to perform or observe
any other covenant, condition or agreement to be performed or observed
by it hereunder.
(b) Remedies. (97)the occurrence of any event of default
specified in this Lease, Landlord shall have the option to pursue any
one or more of the following remedies without any notice or demand
whatsoever and without releasing Tenant from any obligation under this
Lease(98):
(i) Landlord may enter the Premises without
terminating this Lease and perform any covenant or agreement
or cure any condition creating or giving rise to an event of
default under this Lease and Tenant shall pay to Landlord on
demand, as additional rent, the amount expended by Landlord in
performing such covenants or agreements or satisfying or
observing such condition. Landlord or its agents or employees
shall have the right to enter the Premises, and such entry and
such performance shall not terminate this Lease or constitute
an eviction of Tenant.
__________________________________
95 sixty (60)
96 sixty (60)
97 Except as otherwise provided below, upon
98 Notwithstanding anything to the contrary contained herein, upon the
occurrence of an event of default by Tenant based solely on Paragraph 13(a)(vi)
above, and so long as Tenant continues to comply with all other terms and
provisions of this Lease, including, but not limited to, Tenant's obligation to
pay Basic Rental, Additional Rental and all other sums payable by Tenant under
the Lease, Landlord's only remedy shall be the option to terminate Tenant's
right of possession with respect to that portion of the Premises which Tenant
has either deserted, abandoned or vacated, without terminating this Lease, in
accordance with the terms and provisions of this Paragraph 13(b).
-29-
<PAGE> 30
(ii) Landlord may terminate this Lease by written
notice to Tenant (and not otherwise) or Landlord may terminate
Tenant's right of possession without terminating this Lease.
In either of such events Tenant shall surrender possession of
and vacate the Premises immediately and deliver possession
thereof to Landlord, and Tenant hereby grants to Landlord full
and free license to enter the Premises, in whole or in part,
with or without process of law and to expel or remove Tenant
and any other person, firm or corporation who may be occupying
the Premises or any part thereof and remove any and all
property therefrom, using such lawful force as may be
necessary.
(iii) In the event Landlord elects to re-enter or
take possession of the Premises after Tenant's default, with
or without terminating this Lease, Landlord may change or pick
locks or alter security devices and lock out, expel or remove
Tenant and any other person who may be occupying all or any
part of the Premises without being liable for any claim for
damages. Notwithstanding anything to the contrary contained
herein or in Section 93.002 of the Texas Property Code,
Landlord may exercise any and all of its rights or remedies
under this Lease following an event of default by Tenant
without compliance with Section 93.002 of the Texas Property
Code, the benefits of which are hereby expressly waived by
Tenant.
(iv) If Landlord elects to re-enter or take
possession of the Premises without terminating this Lease,
then Tenant shall be liable for and shall pay to Landlord all
Basic Rental and any other amounts of money due to Landlord
hereunder as of the date of such election. Tenant shall also
pay to Landlord all Basic Rental required to be paid by Tenant
during the remainder of the Lease Term as such amounts become
due, diminished by any net sums received by Landlord, if any,
through reletting the Premises during said period (after
deducting all expenses incurred by Landlord in connection with
any reletting of the Premises). Landlord is not obligated to
relet the Premises, and if no reletting occurs, Tenant shall
be responsible for the full amounts due. If Landlord elects
to relet, Landlord shall have the sole and unfettered right to
relet all or any part of the Premises for such rent and upon
such terms as shall be satisfactory to Landlord (including but
not limited to the right to relet the Premises for a term
shorter or longer than that remaining under this Lease, the
right to relet the Premises as a part of a larger area and the
right to change the character or use made of the Premises).
Tenant shall not in any event be entitled to any sums
collected in connection with a reletting of the Premises that
exceed the amount of Basic Rental and other sums of money due
hereunder. Landlord shall not be required to wait until the
expiration of the Lease Term in order to collect any such
deficiencies, and shall have the right to file suit from time
to time, on one or more occasions, to collect the deficiencies
then due. Any such suit shall not
-30-
<PAGE> 31
prejudice in any way the right of Landlord to bring similar
actions for any subsequent deficiency or deficiencies.
(v) Notwithstanding any prior election by
Landlord to not terminate this Lease, Landlord may at any
time, including subsequent to any re-entry or taking of
possession of the Premises as allowed hereinabove, elect to
terminate this Lease. Tenant shall be liable for and shall
immediately pay to Landlord the amount of all Basic Rental and
other sums of money due under this Lease as may have accrued
as of the date of termination. Tenant shall also immediately
pay to Landlord, as agreed and liquidated damages, an amount
of money equal to the Basic Rental and other amounts due for
the remaining portion of the Lease Term (had such term not
been terminated by Landlord prior to the expiration of the
Lease Term), less the fair rental value of the Premises for
the residue of the Lease Term, both discounted to their
present value based upon an interest rate of eight percent
(8%) per annum. In determining fair rental value, Landlord
shall be entitled to take into account the time and expenses
necessary to obtain a replacement tenant or tenants, including
anticipated expenses hereinafter described relating to
recovery, preparation and reletting of the Premises; provided,
however, the parties hereto stipulate and agree that the fair
rental value shall never be deemed to exceed eighty-five
percent (85%) of the Basic Rental provided for herein for said
residual period. If Landlord elects to relet the Premises, or
any portion thereof, before presentation of proof of such
liquidated damages, the amount of rent reserved upon such
reletting shall be deemed prima facie evidence of the fair
rental value of the portion of the Premises so relet.
(vi) In addition to any sum provided to be paid
above, Tenant shall also be liable for and shall immediately
pay to Landlord all broker's fees incurred by Landlord in
connection with any reletting of the whole or any part of the
Premises, the costs of removing and storing Tenant's or any
other occupant's property, the cost of repairing, altering,
remodeling, renovating or otherwise putting the Premises into
a condition acceptable to a new tenant or tenants, the cost of
removal and replacement of signage and all reasonable expenses
by Landlord in enforcing Landlord's remedies, including
reasonable attorneys' fees.
(vii) Landlord may apply Tenant's Security Deposit
to the extent necessary to make good any rent arrearage, to
pay the cost of remedying Tenant's default or to reimburse
Landlord for expenditures made or damages suffered as a
consequence of Tenant's default. Following any such
application of the Security Deposit, Tenant shall pay to
Landlord on demand the amount so applied in order to restore
the Security Deposit to its original amount.
(viii) Nothing contained in this Paragraph 13(b)
shall be construed as imposing any enforceable duty upon
Landlord to relet the Premises or otherwise
-31-
<PAGE> 32
mitigate or minimize Landlord's damages by virtue of Tenant's
default. Landlord shall not be liable in any manner, nor
shall Tenant's obligations hereunder be diminished, by the
failure of Landlord to relet the Premises, or in the event of
reletting to collect rent.
(c) Effect of Suit or Partial Collection. Institution of
a forcible detainer action to re-enter the Premises shall not be
construed to be an election by Landlord to terminate this Lease.
Landlord may collect and receive any rent due from Tenant and the
payment thereof shall not constitute a waiver of or affect any notice
or demand given, suit instituted or judgment obtained by Landlord, or
be held to waive or alter the rights or remedies which Landlord may
have at law or in equity or by virtue of this Lease at the time of
such payment.
(d) Remedies Cumulative. All rights and remedies of
Landlord herein or existing at law or in equity are cumulative and the
exercise of one or more rights or remedies shall not be taken to
exclude or waive the right to the exercise of any other.
(e) Notice to Mortgagees. If Landlord defaults under
this Lease and, if as a consequence of such default, Tenant will have
the right to terminate this Lease, Tenant will not exercise such right
to terminate unless and until (i) Tenant gives notice of such default
(specifying the exact nature of such default and how such default may
be remedied) to any lessor under a ground lease or any mortgagee of
the Building, and (ii) such lessor and/or mortgagee fails to cure, or
to cause to be cured, such default within thirty (30) days after such
lessor's or mortgagee's receipt of notice.
(99)
14. SURRENDER OF PREMISES.
(a) Surrender. (100)the Expiration Date or earlier
termination of this Lease, Tenant shall peaceably surrender to
Landlord the Premises, including the alterations, improvements and
changes (except as provided in Paragraph 14(b)) other than Tenant's
fixtures remaining the property of Tenant, broom-clean and in the
condition the
__________________________________
99 (f) Landlord Defaults and Tenant Remedies. Except as provided
otherwise in this Lease and subject to Paragraphs 13(e), 19(c) and 19(n)
hereof, if Landlord shall fail in the performance of any of Landlord's
obligations hereunder and such failure shall continue for a period of thirty
(30) days after Landlord's receipt of written notice thereof from Tenant (or an
additional reasonable time after such receipt if (i) such failure cannot be
cured within such thirty (30) day period, and (ii) Landlord commences curing
such failure within such thirty (30) day period and thereafter diligently
pursues the curing of such failure), then Tenant shall be entitled to exercise
any remedies that Tenant may have at law or in equity.
100 Subject to the terms of Paragraph 15 hereof, upon
-32-
<PAGE> 33
same were in on the Commencement Date, subject only to (i) ordinary
and customary wear and tear, and (ii) damage resulting from a fire or
other casualty.
(b) Removal of Alterations and Tenant's Property.
(i) (101)all permanent or built-in
fixtures or improvements and all mechanical, electrical and
plumbing equipment in the Premises shall be the property of
Landlord upon the termination of this Lease,(102) all
furnishings, equipment, furniture, trade fixtures and other
removable equipment installed in the Premises by Tenant shall
remain the property of Tenant and shall be removed by Tenant
upon the expiration or termination of this Lease. Tenant
shall repair any damage caused by such removal.
(ii) If any furnishings, equipment,
furniture, trade fixtures or other removable equipment are not
removed within five (5) business days after the expiration of
this Lease, then Tenant hereby grants to Landlord the option,
exercisable at any time thereafter without the requirement of
any notice to Tenant, (A) to treat such property, or any
portion thereof, as being abandoned by Tenant to Landlord,
whereupon Landlord shall be deemed to have full rights of
ownership thereof; (B) to elect to remove and store such
property, or any portion thereof, on Tenant's behalf (but
without assuming any liability to any person) and at Tenant's
sole cost and expense, with reimbursement therefor to be made
to Landlord upon demand; and/or (C) to sell, give away, donate
or dispose of as trash or refuse any or all of such property
without any responsibility to deliver to Tenant any proceeds
therefrom. If(103) rights to occupy the Premises are
terminated by Landlord, prior to Landlord's termination or the
expiration of this Lease, and any of Tenant's furnishings,
equipment, furniture, trade fixtures or other removable
equipment are not removed within five (5) business days
thereafter, then Tenant hereby grants to Landlord the option,
exercisable at any time thereafter without the requirement of
notice to Tenant, (x) to treat such property, or any portion
thereof, as being abandoned by Tenant to Landlord, whereupon
Landlord shall be deemed to have full rights of ownership
thereof; (y) to elect to remove and store such property, or
any portion thereof, on Tenant's behalf (but without assuming
any liability to any person)
__________________________________
101 Except as otherwise provided in writing by Landlord and Tenant, (A)
102 and (B)
103 Tenant's
-33-
<PAGE> 34
and at Tenant's sole cost and expense, with reimbursement
therefor to be made to Landlord upon demand; and/or (z) to
sell, give away, donate or dispose of as trash or refuse any
or all of such property without responsibility to deliver to
Tenant any proceeds therefrom. Landlord shall have no
liability of any kind whatsoever to Tenant in respect of the
exercise or failure to exercise the options set forth in this
Paragraph 14(b). Specifically, Tenant shall not have the
right to assert against Landlord a claim either for the value,
or the use, of any such property, either as an offset against
any amount of money owing to Landlord or otherwise. The
provisions of this Paragraph 14(b) shall supersede the
provisions of Section 93.002(d) and (e) of the Texas Property
Code, as such may be amended from time to time, and any other
law which purports to restrict the options granted to Landlord
herein.
15. HOLDING OVER. If Tenant remains in possession of the Premises
after the expiration of the tenancy created hereunder and without the execution
of a new lease, Tenant shall be deemed to be occupying the Premises as a tenant
at will and subject to all of the provisions of this Lease except those
relating to term and except that the Basic Rental and Additional Rental shall
be(104) the amount payable during the last month of the Lease Term(105)
(without waiver of Landlord's right to recover damages as permitted by this
Lease or by law). Said tenancy may be terminated by Landlord or Tenant by
giving(106) written notice to the other at any time. Landlord's acceptance
during any such holdover period of Basic Rental and/or Additional Rental
payments from Tenant of less than the full amounts to which Landlord is
entitled under this Paragraph 15 shall not be deemed to constitute a waiver of
Landlord's right to later collect from Tenant the difference between the
amounts actually paid by Tenant and the full amounts due hereunder.
16. MORTGAGES. This Lease shall be subordinate to all deeds of
trust and ground leases now or hereafter encumbering the Building, and all
refinancings, replacements, renewals, modifications, extensions or
consolidations thereof. Tenant agrees to attorn to any mortgagee, ground
lessor, trustee under a deed of trust or purchaser at a foreclosure sale or
trustee's sale as Landlord under this Lease. Tenant covenants and agrees that
Tenant shall within five (5) days after Landlord's request execute in
recordable form and deliver to Landlord whatever instruments may be required to
acknowledge and further evidence the subordination of this Lease
__________________________________
104 one hundred fifty percent (150%) of
105 for the first ninety (90) days of any such holdover and double the
amount payable during the last month of the Lease Term thereafter
106 thirty (30) days prior
-34-
<PAGE> 35
and/or the attornment by Tenant to such mortgagee, ground lessor, trustee or
purchaser.(107) If within five (5) business days after submission of any such
instrument, Tenant fails to execute the same, Landlord is hereby authorized to
execute the same as attorney-in-fact for Tenant. Any holder of a deed of trust
covering all or any part of the Building may at any time elect to have this
Lease have priority over its deed of trust by executing unilaterally an
instrument of subordination or placing a clause of such subordination in any
pleadings or in its deed of trust and recording the same.
17. CERTAIN RIGHTS RESERVED BY LANDLORD. Landlord shall have the
following rights:
(a) Common and Service Area Alterations. To decorate and
to make repairs, alterations, additions, changes or improvements,
whether structural or otherwise, in, about or on the exterior of the
Building, or any part thereof, and to change, alter, relocate, remove
or replace Service Areas and/or Common Areas; to place, inspect,
repair and replace in the Premises (below floors, above ceilings or
next to columns) utility lines, pipes, cables and the like to serve
other areas of the Building outside the Premises; and to otherwise
alter or modify the Project, and for such purposes to enter upon the
Premises and, during the continuance of any such work, to take such
measures for safety or for the expediting of such work as may be
required, in Landlord's judgment, all without affecting any of
Tenant's obligations hereunder, provided Landlord's entries in the
Premises shall be subject to the terms of Paragraph 19(l).(108)
(b) Parking. To permit Tenant and its employees to use
the parking facilities associated with the Building only in accordance
with rules and regulations promulgated from time to time by Landlord
and/or the operator of the parking facilities and at such charges as
then may be in effect; and to prohibit Tenant and its employees to use
any on-site surface parking spaces within the Project designated for
visitors, occupants of the Building, or otherwise.(109) The number of
parking spaces available for Tenant's use
__________________________________
107 Notwithstanding the foregoing, Tenant's agreement to subordinate this
Lease and to attorn to any mortgagee, ground lessor, trustee or purchaser as
provided in this Paragraph 16 shall be contingent on Landlord obtaining a
nondisturbance agreement for the benefit of Tenant from any future holder of a
deed of trust covering all or any part of the Building. Such nondisturbance
agreement shall be in the form required by such holder provided that such form
does not materially diminish Tenant's rights under this Lease.
108 Landlord agrees to take such actions as may be reasonably required to
minimize interference with Tenant's access to the Building and use and occupancy
of the Premises for the Permitted Use, so long as such actions do not increase
the cost of the work performed or caused to be performed by Landlord in the
exercise of its rights under this Paragraph 17(a).
109 Notwithstanding the foregoing, during the initial term of this
Lease, so long as Tenant is not in default hereunder, Tenant shall be permitted
to use at no charge to Tenant nonreserved parking spaces in the parking garage
associated with the Building at the ratio of one (1) parking space for every
three hundred (300) square feet of Rentable Area in the Premises. In the event
Tenant requires additional parking spaces, Landlord agrees to use reasonable
efforts to accommodate Tenant's parking needs to the extent that available
parking spaces exist in the Building parking facilities.
-35-
<PAGE> 36
shall not exceed one (1) space for every three hundred (300) square
feet of Rentable Area in the Premises. Parking spaces will be
unassigned, provided that Landlord may at any time assign parking
spaces. Landlord shall not be obligated to control any unauthorized
parking in any reserved or assigned parking spaces of Tenant. Tenant
shall, if requested by Landlord, furnish to Landlord a complete list
of the license plate numbers of all vehicles operated by Tenant and
Tenant's employees and agents. Landlord shall not be liable for any
damage of any nature whatsoever to, or any theft of, vehicles, or
contents therein, in or about such parking facility. If, for any
reason, Landlord fails or is unable to provide, or Tenant is not
permitted to use, all or any portion of the parking spaces to which
Tenant is entitled hereunder, then Tenant's obligation to pay for such
spaces shall be abated for so long as Tenant does not have the use
thereof; this abatement shall be in full settlement of all claims that
Tenant might otherwise have against Landlord because of Landlord's
failure or inability to provide Tenant with such parking spaces.
(c) Rules and Regulations. To establish and amend from
time to time rules and regulations governing all tenants' use and
occupancy of the Building, provided that in the event of a conflict
between those rules and this Lease, this Lease shall control.(110)
The rules and regulations now enforced by Landlord are(111).
(d) Food Preparation. To prohibit the preparation of
food within the Premises for commercial purposes or the placing of
vending or dispensing machines of any kind in or about the Premises if
such vending or dispensing machines are available to the general
public.
(e) Signs. (112)prohibit all signs, posters,
advertisements, or notices from being painted or affixed on any of the
windows, or doors, or any other part of the Building, except of such
color, size, and style, and in such places as shall be first approved
in writing by Landlord(113).
__________________________________
110 Such rules and regulations will be uniformly applied to and
enforced against all tenants in the Building.
111 attached hereto as Exhibit E, and are subject to change from time to
time
112 Except as otherwise provided in this Lease, to
113 , which approval shall not be unreasonably withheld as long as any
such signs, posters, advertisements or notices are consistent with the
operation and appearance of the Building as a Class A office building
-36-
<PAGE> 37
(f) Security Measures. To take all such reasonable
measures as Landlord may deem advisable for the security of the
Building and its occupants(114). Landlord, however, shall have no
liability to Tenant or its employees, agents, invitees or licensees
for loss of property or personal injury except to the extent caused by
Landlord's gross negligence or willful misconduct. Tenant shall
cooperate fully in Landlord's efforts to maintain security in the
Building and shall follow all regulations promulgated by Landlord with
respect thereto.
(g) Right To Relocate Tenant. (115)any time after the
execution of this Lease and on thirty (30) days prior written notice,
Landlord may substitute for the Premises other premises in the
Building (the "New Premises"), in which event the New Premises shall
be deemed to be the Premises for all purposes hereunder, provided: (i)
the New Premises shall be similar in area, finish and appropriateness
for the Permitted Use; (ii) the Basic Rental and other rentals payable
under this Lease shall remain the same; and (iii) reasonable out-of-
pocket costs in connection with relocation to the New Premises shall
be reimbursed by Landlord after receipt of third party invoices
therefor.
18. HAZARDOUS MATERIAL; INDEMNITY.
(a) Indemnity. Tenant shall not cause or permit any
Hazardous Material (as hereinafter defined) to be brought upon, kept
or used in or about the Premises or the Project by Tenant or its
agents, employees, contractors or invitees without the prior written
consent of Landlord (which Landlord shall not unreasonably withhold as
long as Tenant demonstrates to Landlord's reasonable satisfaction that
such Hazardous Material is necessary or useful to Tenant's business
and will be used, kept and stored in a manner that complies with all
laws regulating any such Hazardous Material so brought upon or used or
kept in or about the Premises or the Project).(116) If Tenant
breaches the obligations stated in the preceding sentence, or if the
presence of Hazardous Material on the Premises or the Project caused
or permitted by Tenant results in contamination of the Premises or the
Project, or if contamination of the Premises or the Project by
Hazardous Material otherwise occurs for which Tenant is legally liable
to Landlord for damage resulting therefrom, then Tenant shall
indemnify, defend and hold Landlord harmless
__________________________________
114 ; provided, that such measures shall be commensurate with the
security provided for buildings of similar size and quality in the Dallas,
Texas area
115 With respect to the portion of the Premises located on multiple
tenant floors of the Building only, excluding the first floor of the Building,
at
116 Notwithstanding the foregoing, Tenant may, without Landlord's prior
consent, but in compliance with all Applicable Laws, use any ordinary and
customary Hazardous Material reasonably required to be used by Tenant in the
normal course of Tenant's business permitted on the Premises, so long as such
Hazardous Material is used, kept and stored in a manner that complies with all
laws regulating any such Hazardous Material.
-37-
<PAGE> 38
from any and all claims, judgments, damages, penalties, fines, costs,
liabilities or losses, including, without limitation, diminution in
value of the Premises, damages, penalties, fines, costs, liabilities
or losses (including, without limitation, restriction on use of
rentable or usable space or of any amenity of the Premises or the
Project, damages arising from any adverse impact on marketing of
space, and sums paid in settlement of claims, attorneys' fees,
consultant fees and expert fees) which arise during or after the Lease
Term as a result of such contamination. This indemnification of
Landlord by Tenant includes, without limitation, costs incurred in
connection with any investigation of site conditions or any clean up,
remedial, removal or restoration work required by any federal, state
or local governmental agency or political subdivision because of
Hazardous Material(117) present in the soil or ground water on or under
the Premises or the Project. Without limiting the foregoing, if the
presence of any Hazardous Material on the Premises or the Project
caused or permitted by Tenant results in any contamination of the
Premises or the Project, Tenant shall promptly take all actions at its
sole expense as are necessary to return the Premises and the Project
to the condition existing prior to the introduction of any such
Hazardous Material to the Premises or the Project; provided that
Landlord's approval of such actions shall first be obtained, which
approval shall not be unreasonably withheld so long as such actions
would not potentially have any material adverse long-term or
short-term effect on the Premises or the Project. The indemnification
of Landlord by Tenant contained in this Paragraph 18 shall survive the
expiration or earlier termination of this Lease.
(b) Definition. As used herein, the term "Hazardous
Material" means any hazardous or toxic substance, material or waste
which is or becomes regulated by any local governmental authority, the
State of Texas or the United States Government, including, but not
limited to, any material or substance that is (i) petroleum, (ii)
asbestos, (iii) designated as a "hazardous substance" pursuant to
Section 311 of the Water Pollution Control Act (33 U.S.C. Section
1321), (iv) defined as a "hazardous waste" pursuant to Section 1004 of
the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901,
(v) defined as a "hazardous substance" pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation and Liability Act,
42 U.S.C. Section 9601, or (vi) defined as a "regulated substance"
pursuant to Subchapter IX, Solid Waste Disposal Act, 42 U.S.C. Section
6991.
(118)
__________________________________
117 caused or permitted by Tenant to be
118 Landlord has provided Tenant with a copy of the Environmental Site
Assessment for the Project prepared by Law Engineering and Environmental
Services and dated February 1996 (the "Environmental Report"). Except as
otherwise provided in the Environmental Report, Landlord has no actual knowledge
of the presence of any Hazardous Material in, on, under or about the Premises.
-38-
<PAGE> 39
19. MISCELLANEOUS.
(a) Time Is of the Essence. The time of the performance
of all of the covenants, conditions and agreements of this Lease is of
the essence.
(b) Force Majeure. If either Landlord or Tenant is
prevented or hindered from timely satisfying any provisions set forth
herein because of a shortage of or inability to obtain materials or
equipment, strikes or other labor difficulties, governmental
restrictions, casualties or any other cause beyond such party's
reasonable control, such party shall be permitted an extension of time
of performance by the number of days during which such performance was
prevented or hindered; provided, however, that this paragraph shall
not apply to the payment of rent or other monies by Landlord or
Tenant(119), nor shall the provisions of this paragraph postpone the
date that rent is payable pursuant to this Lease, except as expressly
provided to the contrary in the Construction Agreement (if any)
entered into pursuant to Paragraph 4.
(c) No Personal Liability of Landlord. If Landlord shall
fail to perform any covenant, term or condition of this Lease and, as
a consequence, if Tenant shall recover a money judgment against
Landlord, such judgment shall be satisfied only out of the proceeds
received at a judicial sale upon execution and levy against the right,
title and interest of Landlord in the Building and in the rents or
other income from the Building receivable by Landlord, and neither
Landlord nor Landlord's affiliated companies nor their respective
owners, partners, venturers, shareholders, directors or officers shall
have any personal, corporate or other liability hereunder.(120)
__________________________________
119 (except as otherwise set forth in this Lease)
120 If Tenant recovers a final, non-appealable money judgment against
Landlord for Landlord's default of its obligations hereunder or otherwise, such
judgment shall be satisfied from (i) the proceeds of sale received upon
execution of such judgment and levy thereon against the right, title and
interest of Landlord in the Project (or any portion thereof), (ii) rent or other
income from the Project received and/or receivable by Landlord, (iii) a credit
against future rent and other charges as they become payable under this Lease,
and/or (iv) the consideration received by Landlord from the sale or other
disposition of all or any part of Landlord's right, title or interest in the
Project or any portion thereof; provided further, that in the event of
Landlord's failure to perform any covenant or obligation of Landlord under
either Paragraph 11 or Paragraph 12 of this Lease, following damage to or
destruction of or a taking of all or any part of the Project, any final,
non-appealable judgment recovered by Tenant as a consequence thereof may also be
satisfied out of the insurance proceeds or condemnation award, as the case may
be, paid and/or payable to Landlord as a result of such damage, destruction or
taking. The provisions of this paragraph shall not be deemed to deny Tenant, or
to lessen Tenant's right to obtain, injunctive relief or specific performance of
Landlord's covenants under this Lease or to avail itself of any other right or
remedy (not involving the personal liability of Landlord) which may be afforded
to Tenant by law or under the terms of this Lease by reason of Landlord's
failure to perform its obligations under this Lease.
-39-
<PAGE> 40
(d) Quiet Enjoyment. Landlord hereby covenants and
agrees that if Tenant shall perform all of the covenants and
agreements herein stipulated to be performed on Tenant's part, Tenant
shall at all times during the continuance hereof have peaceable and
quiet enjoyment and possession of the Premises without hindrance from
Landlord or any person or persons lawfully claiming the Premises by or
through Landlord, subject, however, to the terms of this Lease and to
all mortgages, ground leases, deeds of trust, leases and agreements to
which this Lease is subordinate.
(e) Entire Agreement and Amendments. This Lease is the
only agreement between the parties hereto and their representatives
and agents. There are no representations or warranties between the
parties other than the representations and warranties contained in
this document. No agreement shall be effective to change, modify or
terminate this Lease in whole or in part unless such agreement is in
writing and duly signed by the party against whom enforcement of such
change, modification or termination is sought.
(f) Interpretation. The necessary grammatical changes
required to make the provisions of this Lease apply in the plural
sense where there is more than one Tenant and to either corporations,
associations, partnerships or individuals, male or female, shall in
all instances be assumed as though in each case fully expressed. The
laws of the State of Texas shall govern the validity, performance and
enforcement of this Lease. All obligations hereunder are performable
in Dallas County, Texas. If this Lease is executed by more than one
person or entity as "Tenant", each such person or entity executing
this Lease as Tenant shall be jointly and severally bound and liable
hereunder.
(g) Severability. No provision of this Lease shall be
construed or interpreted in any manner which would render such
provision invalid. If any provision of this Lease is held to be
invalid, such invalid provision shall be deemed to be severable from
and shall not affect the validity of the remainder of this Lease.
(h) Terms Binding. Subject to the limitations on
subletting and assignment set forth in this Lease, all covenants,
promises, conditions, representations and agreements herein contained
shall be binding upon and apply and inure to the benefit of the
parties hereto and their respective heirs, executors, administrators,
successors and assigns.
(i) Estoppel Certificates. Within(121) days after
request by Landlord, Tenant agrees to execute and deliver to Landlord
estoppel or offset letters as required by Landlord or by Landlord's
lenders. The letters shall certify the date of this Lease and any
amendments, that Landlord is not in default of any of the terms and
provisions of
__________________________________
121 ten (10) business
-40-
<PAGE> 41
this Lease or specifying the provisions as to which Landlord is in
default if Landlord shall be in default, that Landlord has performed
all inducements required of Landlord in connection with this Lease,
including any construction obligations, specifying any inducements
which have not been fulfilled by Landlord, the date to which rent has
been paid, and any other matters which Landlord or its lenders may
reasonably require. Tenant's failure to deliver such letters to
Landlord within said(122) day period will be conclusive evidence of
the matters set forth therein. Tenant further agrees to furnish to
Landlord from time to time when requested by Landlord a letter of
acceptance in conformity with any requirements made by any existing or
proposed lenders.
(j) Late Payment Charge and Interest Payable. Landlord
may impose a late payment charge equal to five percent (5%) of any
amount due if not paid within five (5) days from the date required to
be paid hereunder. In addition, any payment due under this Lease not
paid within ten (10) days after the date herein specified to be paid
shall bear interest from the date such payment is due to the date of
actual payment at the rate of(123) per annum or the highest lawful
rate of interest permitted by Texas or federal law, whichever rate of
interest is lower.
(k) Security Deposit. Tenant shall deposit with Landlord
the amount shown in Paragraph 1(e) above as a Security Deposit(124).
Landlord shall hold Tenant's Security Deposit without interest, and
the same shall not be considered prepaid rent or a measure of
Landlord's damages in case of default by Tenant. The remaining
balance of the Security Deposit (after application of any part thereof
in accordance with Paragraph 13(b) or for necessary repairs to the
Premises) shall be refundable to Tenant within thirty (30) days after
the expiration or earlier termination of this Lease.
(l) Access to Premises. Tenant agrees that Landlord and
its agents may enter the Premises for the purpose of inspecting and
making such repairs (structural or otherwise), additions,
improvements, changes or alterations to the Premises or the Building
as may be permitted or required under this Lease or as Landlord may
elect, and to exhibit the same to prospective purchasers, mortgagees
or(125) tenants. In the event of any such repairs, additions,
improvements, changes or alterations, Tenant shall
__________________________________
122 ten (10) business
123 fourteen percent (14%)
124 in three (3) separate installments as follows: (i) $47,725.00 within
five (5) business days after execution of this Lease, (ii) $95,450.00 on the
Commencement Date of this Lease (as such term is defined in Paragraph 3
contained herein), and (iii) $47,725.00 on or before December 1, 1997
125 , during the last year of the Lease Term, to prospective
-41-
<PAGE> 42
cooperate with Landlord to facilitate Landlord's efforts. Landlord's
entries in the Premises shall be preceded by reasonable notice (except
in the case of an emergency) and shall not unreasonably interfere with
Tenant's use and occupancy of the Premises for the Permitted Use.
(m) Notices. Notices hereunder must be hand-delivered or
sent by(126) nationally recognized overnight courier or by certified
mail, return receipt requested, postage prepaid, addressed, if to
Landlord, at Suite 110, 3333 Lee Parkway, Dallas, Texas 75219,
Attention: Property Manager, with a copy to Crescent Real Estate
Equities Limited Partnership, 777 Main Street, Suite 2100, Fort Worth,
Texas 76102, Attention: James S. Wassel, and if to Tenant, at the
address specified for Tenant in Paragraph 1(a) above prior to the
Commencement Date and to the Premises thereafter, or to such other
address as may be specified by written notice actually received by the
other party. Notice shall be deemed given upon tender of delivery (in
the case of a hand- delivered notice) or upon posting of same with the
overnight courier service or in an official depository of the United
States Postal Service (in the case of a certified or registered
letter), provided that no notice of either party's change of address
shall be effective until fifteen (15) days after the addressee's
actual receipt thereof.
(n) Acceptance of Premises and Building by Tenant.
LANDLORD HEREBY DISCLAIMS ANY EXPRESS OR IMPLIED REPRESENTATION OR
WARRANTY THAT THE PREMISES ARE SUITABLE FOR TENANT'S INTENDED PURPOSE
OR USE. THE TAKING OF POSSESSION BY TENANT SHALL BE CONCLUSIVE
EVIDENCE THAT TENANT:
(I) ACCEPTS THE PREMISES AS SUITABLE FOR THE PURPOSES
FOR WHICH THEY WERE LEASED;
(II) ACCEPTS THE BUILDING AND EVERY PART AND
APPURTENANCE THEREOF(127) AS BEING IN GOOD AND SATISFACTORY
CONDITION; AND
(III) WAIVES ANY DEFECTS IN THE PREMISES AND ITS
APPURTENANCES EXISTING NOW OR IN THE FUTURE (128), EXCEPT THAT
TENANT'S TAKING OF POSSESSION SHALL NOT BE DEEMED TO WAIVE
LANDLORD'S COMPLETION OF MINOR FINISH WORK ITEMS
__________________________________
126 facsimile (with electronic confirmation) or by
127 (EXCLUDING LATENT DEFECTS)
128 (EXCLUDING LATENT DEFECTS)
-42-
<PAGE> 43
THAT DO NOT INTERFERE WITH TENANT'S OCCUPANCY OF THE PREMISES.
TENANT ACKNOWLEDGES THE DISCLAIMER BY LANDLORD SET FORTH HEREIN AND
WAIVES ALL CLAIMS BASED ON ANY IMPLIED WARRANTY OF SUITABILITY.
FURTHERMORE, TENANT CONFIRMS THAT ITS OBLIGATIONS TO PAY BASIC RENTAL,
ADDITIONAL RENTAL AND OTHER AMOUNTS OF MONEY DUE TO LANDLORD HEREUNDER
ARE NOT DEPENDENT OF THE CONDITION OF THE PREMISES OR THE BUILDING,
THE COMPLETION OF ANY MINOR FINISH WORK ITEMS OR THE PERFORMANCE BY
LANDLORD OF ITS OBLIGATIONS HEREUNDER. TENANT SHALL CONTINUE TO PAY
BASIC RENTAL, ADDITIONAL RENTAL AND OTHER AMOUNTS OF MONEY DUE TO
LANDLORD HEREUNDER, WITHOUT ABATEMENT, SETOFF OR DEDUCTION,
NOTWITHSTANDING ANY BREACH OR ALLEGED BREACH BY LANDLORD OF ITS
OBLIGATIONS HEREUNDER.
(o) Building Name. (129)
(p) Landlord's Lien. (130)
__________________________________
129 Landlord agrees that, so long as Tenant occupies at least 120,000
square feet of Rentable Area in the Building, Tenant shall have the right to
designate the name of the Building. Tenant agrees that the name selected by
Tenant shall be subject to Landlord's reasonable approval, and shall not be
changed thereafter. Tenant further agrees that Landlord shall not be required
to use the name on stationary, cards, and other printed material used by the
management of the Building.
130 Landlord hereby agrees that no equipment, furnishings, furniture,
supplies or other personal property of any kind (other than fixtures and items
which Landlord and Tenant have agreed in writing will remain the property of
Landlord upon the expiration or earlier termination of this Lease) which are
placed upon or permitted to be placed upon the Premises by Tenant, or by any of
Tenant's employees, agents, representatives, subtenants, successors or assigns,
during the term of this Lease or any renewal thereof, shall be subject to or
liable for levy or distress or any legal process whatsoever for the collection
of rent, additional rent or other charges payable hereunder by Tenant. Landlord
thus hereby waives, releases and negates any and all contractual liens and
security interests, constitutional liens and security interests, statutory liens
and security interests and/or any and all other liens and security interests,
arising by operation of law or otherwise, to which Landlord might now or
hereafter be entitled upon all equipment, furnishings, furniture, supplies,
trade fixtures or other personal property which Tenant now or hereafter places
(or causes or permits to be placed) in or upon the Premises.
-43-
<PAGE> 44
(q) Authority To Sign Lease. If Tenant is a corporation
or a partnership (general or limited), each person(s) signing this
Lease as an officer or partner of Tenant represents to Landlord that
such person(s) is authorized to execute this Lease without the
necessity of obtaining any other signature of any other officer or
partner, that the execution of this Lease has been authorized by the
board of directors of the corporation or by the partners of the
partnership, as the case may be, and that this Lease is fully binding
on Tenant. Landlord reserves the right to request evidence of the
approval of
-44-
<PAGE> 45
this Lease and authorization of Tenant's signatories to bind Tenant,
which evidence shall be satisfactory in form and content to Landlord
and its counsel.
(r) Attorneys' Fees. In the event either party is in
default beyond any applicable grace or notice period in the
performance of any of the terms of this Lease and the other party
employs an attorney in connection therewith, the nonprevailing party
agrees to pay the prevailing party's reasonable attorneys' fees.
(s) Execution of Lease. The submission of this Lease for
examination does not constitute a reservation of or option for the
Premises or any other space within the Building and shall vest no
right in either party. This Lease shall become effective only after
the full execution and delivery hereof by all of the parties hereto
and upon the approval by the holder of any mortgage encumbering the
Project.
(t) No Attornment. All checks tendered to Landlord as
and for the Basic Rental and/or Additional Rental required hereunder
shall be deemed payments for the account of Tenant. Acceptance by
Landlord of Basic Rental and/or Additional Rental from anyone other
than Tenant shall not be deemed to operate as an attornment to
Landlord by the payor of such Basic Rental and/or Additional Rental or
as a consent by Landlord to an assignment of this Lease or subletting
by Tenant of the Premises to such payor, or as a modification of any
of the provisions of this Lease.
(u) Applicable Laws. As used herein, the term
"Applicable Laws" shall mean all laws, statutes, ordinances,
regulations, guidelines or requirements now in force or hereafter
enacted and the requirements of any governmental authority having
jurisdiction over the Building, board of fire underwriters, utility
company serving the Building or other similar body now or hereafter
constituted, relating to or affecting the condition, use or occupancy
of the Premises, including without limitation, Title III of The
Americans with Disabilities Act of 1990, all regulations issued
thereunder, and the Accessibility Guidelines for Buildings and
Facilities issued pursuant thereto, and the Texas Architectural
Barriers Act, as the same are in effect on the date of this Lease and
as hereafter amended.
(v) Arms-Length Transaction. This Lease has been entered
into by the undersigned after arms-length negotiation, with each party
acknowledging that it and its counsel, if it so chooses, have had an
opportunity to review this Lease, and therefore, the parties agree
that this Lease shall not be construed against Landlord on the ground
that Landlord's representatives prepared this Lease.
(w) Waiver. No covenant, term or condition or the breach
thereof will be deemed waived, except by written consent of the party
against whom the waiver is claimed and any waiver of the breach of any
covenant, term or condition will not be deemed to be a waiver of any
preceding or succeeding breach of the same or any other
-45-
<PAGE> 46
covenant, term or condition. Acceptance by Landlord of any
performance by Tenant after the time the same was due will not
constitute a waiver by Landlord of the breach or default of any
covenant, term or condition unless otherwise expressly agreed to by
Landlord in writing.
(x) Computation of Rentable Area.
(1) Single Tenant Floor. With respect to a
single tenant floor, "Rentable Area" will mean the sum of (i) the
floor area (in square feet) bounded by the inside surfaces of the
exterior glass walls of the Building, excluding standard openings in
the floor slab used, for example, for Building stairs, elevator and
other shafts and vertical ducts (collectively, the "Excluded Spaces"),
and (ii) an allocation of the floor area of Common Areas and Service
Areas located in or serving the Building.
(2) Multiple Tenant Floor. With respect to a
multiple tenant floor, "Rentable Area" will mean the sum of (i) the
floor area (in square feet) bounded by the inside surfaces of the
exterior glass walls, the outside surfaces of partitions separating
the Premises from corridors and other Common Areas and Service Areas,
and the center line of partitions separating the Premises from
adjoining leasable spaces, less any Excluded Spaces located within
such boundaries, and (ii) an allocation of the floor area of the
Common Areas and Service Areas on such floor, and (iii) an allocation
of the floor area of Common Areas and Service Areas located in or
serving the Building.
(3) Columns and Non-Standard Openings. No
deductions will be made in either Paragraph 19(x)(1) or Paragraph
19(x)(2) for (i) columns and projections necessary to the structural
support of the Building or (ii) for openings in the floor slab which
were made at the request of Tenant or to accommodate items installed
at the request of Tenant.
(y) Exhibits and Riders. The following exhibits and
riders are attached hereto, incorporated herein and made a part of
this Lease for all purposes:
<TABLE>
<S> <C>
Exhibit A-1: Floor Plan of Premises
Exhibit A-2: Property Description
Exhibit B: Certificate of Acceptance of Premises
Exhibit C: Construction Agreement
Exhibit D: Building Standard Janitorial Services
Exhibit E: Building Rules and Regulations
Exhibit F: Rooftop License Agreement
Rider No. 101: Leasing Rights and Obligations
Rider No. 201: Option to Expand
Exhibit 201-A: Columbia Space
Rider No. 301: Right of First Refusal
</TABLE>
-46-
<PAGE> 47
<TABLE>
<S> <C>
Exhibit 301-A: Right of First Refusal Space
Rider No. 401: Option to Extend
Rider No. 501: Termination Option
</TABLE>
(z) Counterparts. This Lease may be executed in several
counterparts, each of which will be deemed an original, and all of
which will constitute but one and the same instrument.
(131)
__________________________________
131 (aa) Club Memberships. Landlord agrees to pay, out of the
Basic Rental payable for the first month of the Lease Term, either directly to
Tenant or, at the request of Tenant, on behalf of Tenant, the initiation fees in
connection with a total of eighteen (18) memberships to either The Crescent Club
or The Spa at The Crescent, which memberships will be activated on the
Commencement Date (or as soon thereafter as is practicable). The issuance of
such memberships shall be subject to the prior approval of the applicable of The
Crescent Club and The Spa at The Crescent. Monthly dues and all other expenses
incurred by Tenant or any other person in connection with the use of such
memberships shall be solely the responsibility of Tenant.
(bb) Signage. Landlord agrees that, during the term of
this Lease, Tenant shall have the right to place exterior signage reflecting
Tenant's name on the upper portion of two (2) opposite sides of the Building
and the non-exclusive right to place Tenant's name on the monument sign in
front of the Building (collectively, the "Signage"). The Signage shall be
installed and maintained at Tenant's sole cost and expense throughout the term
of this Lease; provided, however that, at Tenant's option, the cost of
installing the Signage may be included in the cost of the Finish Work and may
be paid out of the Finish Allowance (as such terms are defined in the
Construction Agreement attached hereto as Exhibit C) to the extent sufficient
funds are available for such purpose. The location, size, material and design
of the Signage shall be subject to the prior written approval of Landlord, and
Tenant shall be responsible for compliance with any laws, rules, regulations,
ordinances, building codes, restrictive covenants, or architectural guidelines
applicable to the Project, as the same may be amended or modified from time to
time. Upon the expiration or earlier termination of this Lease, Tenant shall
remove the Signage, at Tenant's sole cost and expense, and restore the areas of
the Project to which the Signage was affixed to their condition prior to the
installation of the Signage.
(cc) Rooftop Access. Tenant may install communication
equipment and related wiring on the roof of the Building pursuant to the terms
and conditions of the Rooftop License Agreement attached to this Lease as
Exhibit F.
(dd) Broker. Landlord and Tenant each warrant and
represent to the other that neither has dealt with any real estate broker,
agent or finder in connection with this transaction other than The Staubach
Company ("Staubach"), which is acting as Tenant's agent in connection herewith;
and Landlord and Tenant agree to protect, defend, indemnify and hold harmless
the other from and against any and all liabilities, costs, causes of action,
damages and expenses, including without limitation, attorneys' fees, for any
claims made by any real estate broker, agent or finder with respect to this
transaction other than claims of Staubach, which shall be compensated by
Landlord pursuant to a separate agreement.
(ee) Lobby Improvements. Landlord will construct certain
improvements to the lobby of the Building (the "Lobby Improvements"). Prior to
the commencement of construction of the Lobby Improvements, Landlord shall
deliver to Tenant plans and specifications for the Lobby Improvements for
Tenant's review and approval, which approval shall not be unreasonably withheld
or delayed. Landlord agrees that the total cost of the Lobby Improvements
shall be at least $40,000.00, and that Landlord shall commence construction of
the Lobby Improvements during construction of the First Expansion Space Finish
Work (as such term is defined in the Construction Agreement), and Landlord
shall complete construction of the Lobby Improvements no later than the date of
substantial completion of the First Expansion Space Finish Work.
-47-
<PAGE> 48
[Remainder of page intentionally left blank.]
-48-
<PAGE> 49
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Lease as of the day and year first above written.
LANDLORD:
--------
CRESCENT REAL ESTATE EQUITIES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Crescent Real Estate Equities, Ltd.,
a Delaware corporation, its general partner
By: /s/ JAMES S. WASSEL
----------------------------------------
Name: James S. Wassel
Title: Senior Vice President
TENANT:
------
PAGEMART WIRELESS, INC.,
a Delaware corporation
By: /s/ JOHN D. BELETIC
------------------------------------------------
Name: John D. Beletic
Title: President, CEO
-49-
<PAGE> 50
EXHIBIT A-1
FLOOR PLAN OF PREMISES
[To be attached]
<PAGE> 51
EXHIBIT A-2
PROPERTY DESCRIPTION
BEING all of Lot 8A, Block Z/1039 of Bank of Dallas Addition, an addition to
the City of Dallas as recorded in Volume 82054, Page 2955, Deed Records, Dallas
County, Texas and being more particularly described as follows:
BEGINNING at an "x" set for corner in the Easterly line of Welborn Street (a
60' R.O.W.), said point being the Northwest corner of Block Z/1039;
THENCE South 45 degrees 00 minutes East, along the Southerly line of Rawlins
Street, 400 feet to an "x" set for corner, said point being the Northeast
corner of Block Z/1039;
THENCE South 45 degrees 00 minutes West, along the Westerly R.O.W. line of Lee
Parkway (a 60' R.O.W.), 153 feet to an "x" set for corner;
THENCE North 45 degrees 00 minutes West, along the North side of a 15 foot
alley, 400 feet to an "x" set for corner in the Easterly R.O.W. line of Welborn
Street;
THENCE North 45 degrees 00 minutes East, along said Easterly R.O.W. line of
Welborn Street, 153 feet to the POINT OF BEGINNING and containing 61,200 square
feet of land, more or less.
<PAGE> 52
EXHIBIT B
CERTIFICATE OF ACCEPTANCE OF PREMISES
Re: Office Lease for space in 3333 Lee Parkway, dated the _____
day of ______________, 1996, between Crescent Real Estate Equities Limited
Partnership ("Landlord"), and PageMart Wireless, Inc. ("Tenant").
Landlord and Tenant hereby agree that:
1. Except for those items shown on the attached "punch list", if
any, Landlord has fully completed any construction work required under the
terms of the Lease.
2. The Premises are tenantable, the Landlord has no further
obligation for construction (except as specified above), and Tenant
acknowledges that both the Building and the Premises (excluding any latent
defects) are satisfactory in all respects.
3. The Commencement Date of the Lease is the _____ day of
________________, 19__.
4. The Expiration Date of the Lease is to be the _____ day of
_______________, 19___.
All other terms and conditions of the Lease are hereby ratified and
acknowledged to be unchanged.
EXECUTED this _____ day of ______________________, 1996.
TENANT: LANDLORD:
- ------ --------
PAGEMART WIRELESS, INC. CRESCENT REAL ESTATE EQUITIES
LIMITED PARTNERSHIP
By: By: Crescent Real Estate Equities, Ltd.,
-------------------------- its General Partner
Name:
-------------------
Title:
-------------------
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
<PAGE> 53
EXHIBIT C
CONSTRUCTION AGREEMENT
This Construction Agreement is executed by and between CRESCENT REAL
ESTATE EQUITIES LIMITED PARTNERSHIP ("Landlord") and PAGEMART WIRELESS, INC.
("Tenant") in connection with that certain Office Lease (the "Lease") executed
by the parties on even date herewith (the "Effective Date") relating to the
lease by Landlord to Tenant of certain premises in the building commonly known
as "3333 Lee Parkway", and located at 3333 Lee Parkway, Dallas, Texas. All
defined terms used herein, unless otherwise defined herein, shall have the same
meanings given to such terms in the Lease.
Landlord shall construct, or cause to be constructed, leasehold
improvements in and upon the Premises in up to a total of three (3) separate
phases as Landlord prepares the Initial Space, the First Expansion Space and
the Second Expansion Space for occupancy by Tenant. Landlord agrees that
Tenant may require, at Tenant's option, that Landlord construct the leasehold
improvements for the First Expansion Space and the Second Expansion Space
simultaneously. Landlord's construction of all phases of the leasehold
improvements shall be governed by the terms and conditions of this Construction
Agreement, and all defined terms used herein shall have their respective
meanings in connection with the construction of the leasehold improvements for
the Initial Space, the First Expansion Space, and the Second Expansion Space.
If Tenant elects to have the leasehold improvements for the First Expansion
Space and Second Expansion Space constructed simultaneously, then the term
"First Expansion Space" wherever used in this Lease shall be deemed to include
the Second Expansion Space, and all terms and provisions of this Lease
referring to the term "Second Expansion Space" shall be null, void, and of no
further force or effect.
(a) Construction Costs. Landlord shall construct, or cause to be
constructed, leasehold improvements (the "Finish Work"), in a good and
workmanlike manner in and upon the applicable space, in accordance with the
Final Working Drawings (hereinafter defined). Landlord shall provide Tenant
with an allowance to be applied towards the cost of constructing the Finish
Work in an amount not to exceed $15.00 per rentable square foot in the
applicable space (the "Finish Allowance"). The cost of all space planning and
construction drawings shall be included in the cost of the Finish Work and may
be paid out of the Finish Allowance, to the extent sufficient funds are
available for such purpose. In the event that the total cost of the Finish
Work exceeds the Finish Allowance, Tenant may elect to (i) pay such excess
amount to Landlord promptly upon demand prior to Landlord's commencing
construction, or (ii) with respect to a portion of such excess, not to exceed
an amount equal to $8.00 per rentable square foot in the applicable space (the
"Amortizable Amount"), increase the amount of monthly payments of Basic Rental
due under the Lease by an amount equal to the amount of the monthly installment
payment which would be required to fully amortize a loan of a principal amount
equal to the Amortizable Amount bearing interest at twelve and one-half percent
(12.5%) per annum, and having a loan term equal to the initial term of the
Lease with respect to the Initial
<PAGE> 54
Space, and equal to the remainder of the initial term of the Lease with respect
to the First Expansion Space and the Second Expansion Space. Change orders
requested by Tenant and approved by Landlord after construction has commenced
and which increase the cost of construction over the amount of the Finish
Allowance shall be paid by Tenant to Landlord promptly upon demand. All
installations and improvements now or hereafter placed in the Premises other
than Building Standard (as defined in the Lease) improvements shall be for
Tenant's account and at Tenant's cost (and Tenant shall pay ad valorem taxes
and increased insurance thereon or attributable thereto), which cost shall be
payable by Tenant to Landlord upon demand as additional rent. Tenant further
agrees to pay Landlord a fee of three percent (3%) of the contract price for
the Finish Work (the "Construction Management Fee") as compensation for
Landlord's supervision of the construction and installation of the Finish Work
on the commencement of construction thereof. Landlord and Tenant agree that
the Construction Management Fee may be paid out of the Finish Allowance to the
extent funds are available for such purpose. Tenant agrees that in the event
of default of payment thereof, Landlord (in addition to all other remedies)
shall have the same rights as in the event of default of payment of rent under
the Lease.
(b) Preparation of Plans. Tenant shall deliver to Landlord
preliminary construction drawings and space plans (the "Preliminary Plans") for
the Finish Work no later than the applicable Preliminary Plans Date
(hereinafter defined). Landlord will review the Preliminary Plans and notify
Tenant of Landlord's reasonable approval or disapproval thereof (and any such
notice of disapproval shall state the reasons for Landlord's disapproval)
within five (5) business days after receipt of the Preliminary Plans. Tenant
shall then revise the Preliminary Plans and resubmit them to Landlord for
Landlord's approval or disapproval within five (5) business days of Tenant's
receipt of Landlord's notice of disapproval. If Landlord does not notify
Tenant of Landlord's approval or disapproval within the five (5) business day
period, Landlord will be deemed to have approved the Preliminary Plans. The
Preliminary Plans, as revised and approved by Landlord (or which are deemed to
be approved by Landlord) shall constitute "Final Working Drawings".
(c) Construction. Upon completion of the Final Working Drawings,
Landlord shall select a minimum of three (3) experienced, licensed contractors
(which contractors shall be subject to Tenant's approval) to bid for the
construction of the Finish Work based on the Final Working Drawings. Landlord
will employ the contractor who submits the lowest qualified and complete bid to
construct the Finish Work and will require in the construction contract that
such contractor construct the Finish Work in a good and workmanlike manner and
in compliance with all Applicable Laws; provided, however, Tenant will be
solely responsible for determining whether or not Tenant is a public
accommodation under The Americans with Disabilities Act and whether or not the
Final Working Drawings comply with such laws and the regulations thereunder.
The parties acknowledge that Landlord is not an architect or engineer, and that
the Finish Work will be designed and performed by independent architects,
engineers and contractors. Accordingly, Landlord does not guarantee or warrant
that the plans or Final Working Drawings will be free from errors or omissions,
nor that the Finish Work will be free
-2-
<PAGE> 55
from defects, and Landlord will have no liability therefor. In the event of
such errors, omissions, or defects, Landlord will, at the request of Tenant,
demand performance under any warranties related to the Finish Work and
diligently pursue the enforcement of such warranties, and Landlord will use
reasonable efforts to cooperate in any action Tenant desires to bring against
such parties.
(d) Substantial Completion. For purposes hereof, the Finish Work
shall be deemed to be "substantially complete" when:
(i) all ceilings and lighting in the applicable space are
in and operative;
(ii) all walls and partitions in the applicable space have
been erected with final painting or wall covering complete, and doors and
hardware have been installed;
(iii) all built-in cabinetry, millwork, glass, stairways,
plumbing and bookshelves in the applicable space have been completed and
installed;
(iv) all floor coverings in the applicable space have been
installed;
(v) building elevators, plumbing, HVAC and electrical
systems serving the applicable space have been installed and are in good
working condition; electrical service is adequate for Tenant's lighting
fixtures, office equipment and additional requirements, in keeping with the
approved space plans and Final Working Drawings; and HVAC system has been
balanced;
(vi) all debris has been removed from the applicable
space, and the applicable space cleaned; and
(vii) a certificate of occupancy for the applicable space
has been granted by the City of Dallas, Texas.
Landlord and Tenant agree that minor "punch-list" type items which do
not impede Tenant's use of the applicable space will not prevent the Finish
Work from being considered "substantially complete". Prior to the applicable
space being delivered to Tenant, a representative of Landlord and a
representative of Tenant shall walk through the applicable space and jointly
prepare a list (the "Punch List") of minor items which, in the mutual opinion
of Landlord and Tenant, have not been fully completed or require repair (the
"Punch List Items"). Landlord will deliver a copy of the Punch List to Tenant
immediately upon request by Tenant. Landlord shall diligently cause the
completion of the Punch List Items within a reasonable time after Tenant
commences occupancy of the space, taking reasonable steps to minimize
disruption to Tenant's use and occupancy of the space while the Punch List
Items are being completed.
-3-
<PAGE> 56
(e) Delays.
(i) Initial Space. Subject to the occurrence of a Force
Majeure Delay or a Tenant Delay (both hereinafter defined), Landlord
agrees to substantially complete the construction of the Initial Space
Finish Work by June 1, 1997 (the "Estimated Commencement Date"). In
the event of a Force Majeure Delay or a Tenant Delay, the Estimated
Commencement Date shall be extended one (1) day for every day of such
delay. If Landlord is delayed in completing such construction by the
Estimated Commencement Date for any reason other than a Force Majeure
Delay or a Tenant Delay, then the delay in commencement of Tenant's
obligation to pay rent under the Lease for that portion of the Initial
Space which is untenable until ten (10) days after substantial
completion of the Initial Space Finish Work, shall constitute full
settlement of all claims that Tenant may have against Landlord based
on such a delay. Likewise, if Landlord is delayed in completing such
construction by the Estimated Commencement Date due to the occurrence
of a Force Majeure Delay, then the delay in commencement of Tenant's
obligation to pay rent under the Lease for that portion of the Initial
Space which is untenable until ten (10) days after substantial
completion of the Initial Space Finish Work, shall constitute full
settlement of all claims that Tenant may have against Landlord based
on such a delay. However, if Landlord is unable to complete the
Initial Space Finish Work by the Estimated Commencement Date due to a
Tenant Delay or due to any other cause related to the acts, neglects,
failures or omissions of Tenant, Tenant's servants, employees, agents
or representatives, then Tenant's rental obligations under the Lease
with respect to the Initial Space shall begin on the date on which
Landlord would have delivered possession of the Initial Space to
Tenant absent such Tenant Delay, and such date shall be the Initial
Space Commencement Date.
(ii) First Expansion Space. Subject to the occurrence of
a Force Majeure Delay or a Tenant Delay (both hereinafter defined),
Landlord agrees to substantially complete the construction of the
First Expansion Space Finish Work by January 15, 1998 (the "First
Expansion Space Estimated Commencement Date"). In the event of a
Force Majeure Delay or a Tenant Delay, the First Expansion Space
Estimated Commencement Date shall be extended one (1) day for every
day of such delay. If Landlord is delayed in completing such
construction by January 15, 1998, for any reason other than a Force
Majeure Delay or a Tenant Delay, then (i) Tenant's obligation to pay
rent under the Lease for that portion of the First Expansion Space
which is untenable shall be abated until ten (10) days after
substantial completion of the First Expansion Space Finish Work, and
(ii) Tenant shall be entitled to an additional rental abatement, which
shall be applied towards the rent payable for the Initial Space, in an
amount equal to the difference between (a) the base rental (at the
holdover rates) payable by Tenant for the portion of Tenant's existing
premises which Tenant intends to vacate in order to occupy the First
Expansion Space, and (b) the Basic Rental which would be payable by
Tenant under this Lease for the First Expansion Space for each day of
such delay prior to the date of substantial completion of the First
Expansion Space Finish Work. The foregoing rental
-4-
<PAGE> 57
abatements shall constitute full settlement of all claims that Tenant
may have against Landlord based on such a delay. Notwithstanding the
foregoing, if Landlord is delayed in completing such construction by
January 15, 1998, due to the occurrence of a Force Majeure Delay, then
the delay in commencement of Tenant's obligation to pay rent under the
Lease for that portion of the First Expansion Space which is untenable
until ten (10) days after substantial completion of the First
Expansion Space Finish Work shall constitute full settlement of all
claims that Tenant may have against Landlord based on such a delay.
Furthermore, if Landlord is unable to complete the First Expansion
Space Finish Work by January 15, 1998, due to a Tenant Delay or due to
any other cause related to the acts, neglects, failures or omissions
of Tenant, Tenant's servants, employees, agents or representatives,
then Tenant's rental obligations under the Lease with respect to the
First Expansion Space shall begin on the date on which Landlord would
have delivered possession of the First Expansion Space to Tenant
absent such Tenant Delay, and such date shall be the First Expansion
Space Commencement Date.
(iii) Second Expansion Space. Subject to the occurrence of
a Force Majeure Delay or a Tenant Delay (both hereinafter defined),
Landlord agrees to substantially complete the construction of the
Second Expansion Space Finish Work by May 1, 1998 (the "Second
Expansion Space Estimated Commencement Date"). In the event of a
Force Majeure Delay or a Tenant Delay, the Second Expansion Space
Estimated Commencement Date shall be extended one (1) day for every
day of such delay. If Landlord is delayed in completing such
construction by May 1, 1998, for any reason other than a Force Majeure
Delay or a Tenant Delay, then (i) Tenant's obligation to pay rent
under the Lease for that portion of the Second Expansion Space which
is untenable shall be abated until ten (10) days after substantial
completion of the Second Expansion Space Finish Work, and (ii) Tenant
shall be entitled to an additional rental abatement, which shall be
applied towards the rent payable for the Initial Space and the First
Expansion Space, in an amount equal to the difference between (a) the
base rental (at the holdover rates) payable by Tenant for the portion
of Tenant's existing premises which Tenant intends to vacate in order
to occupy the Second Expansion Space, and (b) the Basic Rental which
would be payable by Tenant under this Lease for the Second Expansion
Space for each day of such delay prior to the date of substantial
completion of the Second Expansion Space Finish Work. The foregoing
rental abatements shall constitute full settlement of all claims that
Tenant may have against Landlord based on such a delay.
Notwithstanding the foregoing, if Landlord is delayed in completing
such construction by May 1, 1998, due to the occurrence of a Force
Majeure Delay, then the delay in commencement of Tenant's obligation
to pay rent under the Lease for that portion of the Second Expansion
Space which is untenable until ten (10) days after substantial
completion of the Second Expansion Space Finish Work shall constitute
full settlement of all claims that Tenant may have against Landlord
based on such a delay. Furthermore, if Landlord is unable to complete
the Second Expansion Space Finish Work by May 1, 1998, due to a Tenant
Delay or due to any other cause related to the acts, neglects,
failures or omissions of Tenant, Tenant's servants, employees, agents
or
-5-
<PAGE> 58
representatives, then Tenant's rental obligations under the Lease with
respect to the Second Expansion Space shall begin on the date on which
Landlord would have delivered possession of the Second Expansion Space
to Tenant absent such Tenant Delay, and such date shall be the Second
Expansion Space Commencement Date.
(iv) Tenant Delay. As used herein, the term "Tenant
Delay" shall mean (i) any delay resulting from Tenant's failure to
deliver space plans and preliminary construction drawings to Landlord
on or before (a) February 1, 1997, with respect to the Initial Space,
(b) May 15, 1997, with respect to the First Expansion Space, or (c)
September 1, 1997, with respect to the Second Expansion Space
(respectively, the "Preliminary Plans Date"), or Tenant's failure to
submit Final Working Drawings to Landlord on or before (a) February
15, 1997, with respect to the Initial Space, (b) June 15, 1997, with
respect to the First Expansion Space, or (c) October 1, 1997, with
respect to the Second Expansion Space; provided, however, if the delay
in submitting Final Working Drawings is due solely to Landlord
unreasonably withholding its approval of such drawings, then the delay
in submitting the Final Working Drawings shall not constitute a Tenant
Delay; (ii) changes in plans and specifications; or (iii) the
selection of non-building standard items requiring additional time for
delivery, installation or fabrication or the presence of installers.
Tenant shall be responsible for and shall pay to Landlord any and all
costs and expenses incurred by Landlord and caused by a Tenant Delay.
Landlord shall not be liable for any damages caused by a Tenant Delay.
(v) Force Majeure Delay. As used herein, "Force Majeure
Delay" shall mean any actual delay caused solely by (a) civil
disturbance; future order or regulation of any government, court or
regulatory body claiming jurisdiction; the failure of any governmental
or regulatory body with an appropriate jurisdiction to issue any
necessary permit, approval or inspection within the time period
typically required to issue such permit, approval or inspection as of
the date of this Lease (provided that such delay shall be a Force
Majeure Delay only to the extent that such delay is caused by or
within the control of the governmental or regulatory body and not to
the extent that such delay is caused by or within the control of
Landlord); or (b) the act of public enemy, war, riot, sabotage,
blockade, embargo; inability to secure customary materials, supplies
or labor through ordinary sources by reason of regulation or order of
any governmental or regulatory body; lightning, earthquake, hurricane,
tornado, flood, explosion, fire or casualty; and strikes, boycotts or
labor disturbances and any other causes provided such cause is beyond
the reasonable control of the party from whom performance is required,
or any of its contractors or other representatives.
[Remainder of page intentionally left blank.]
-6-
<PAGE> 59
EXECUTED as of the Effective Date.
TENANT: LANDLORD:
- ------ --------
PAGEMART WIRELESS, INC. CRESCENT REAL ESTATE EQUITIES
LIMITED PARTNERSHIP
By: /s/ JOHN D. BELETIC By: Crescent Real Estate Equities, Ltd.,
-------------------------- its General Partner
Name: John D. Beletic
--------------------
Title: President and CEO
-------------------
By: /s/ JAMES S. WASSEL
-------------------------------------
Name: James S. Wassel
-------------------------------
Title: Sr. V.P of Asset Mgmt.
-------------------------------
-7-
<PAGE> 60
EXHIBIT D
3333 LEE PARKWAY
BUILDING STANDARD JANITORIAL SERVICES
AREAS TO BE SERVICED
OFFICE AREAS
A. Services to be performed nightly:
1. Empty all waste receptacles; remove wastepaper and trash from
the premises; replace trash can liners.
2. Empty and damp wipe all ashtrays.
3. Vacuum all rugs and carpeted areas in offices, including under
furniture.
4. Hand dust and wipe clean with damp or treated cloth all office
furniture, files, fixtures, paneling, window sills, and all
other horizontal surfaces; wash windows on inside when
necessary.
5. Damp wipe and polish all glass furniture tops.
6. Remove all finger marks and smudges from all vertical
surfaces, including doors, door frames, around light switches
and private entrance glass partitions.
7. All entry glass next to door will be damp wiped.
B. Services to be performed as necessary:
1. Sweep all stairways weekly, dust handrails and vacuum if
carpeted.
2. Police all stairwells throughout the entire building weekly
and keep in clean condition.
3. Damp dust all vinyl covered furniture and vacuum all of the
upholstered furniture as needed.
4. Dust mini-blinds bi-weekly.
D-1
<PAGE> 61
RESTROOMS
A. Services to be performed nightly:
1. Mop and rinse floors nightly.
2. Empty and sanitize all receptacles and sanitary disposals;
thoroughly clean and wash at least once per week; replace
trash can liners.
3. Clean and polish all mirrors, bright work, and enameled
surfaces.
4. Fill toilet tissue, soap, and towel dispensers.
5. Clean flushometers, piping, toilet seat hinges, and other
metal work.
B. Services to be performed as necessary:
1. Remove all spots, stains and fingerprints from metal
partitions, walls and outside surfaces of all dispensers and
soap dishes.
2. Vacuum louvers, ventilation grills and dust light fixtures as
needed.
3. Spray buff all hard surface floors.
4. Wash all baseboards.
PUBLIC AREAS
A. Services to be performed nightly:
1. Empty, damp wipe, sift or otherwise service all ashtrays and
sand urns.
2. Clean and sanitize all drinking fountains; vending machines,
table tops, chairs, counter tops and sinks in lunch room
facilities.
3. Dust all furniture and fixtures.
4. Vacuum all carpeted areas.
5. Spot clean all hard surface floors.
D-2
<PAGE> 62
6. Spot clean all fingerprints from door frames, light switches,
push/kick plates and handles.
7. Spot clean stains on carpeted areas.
8. Clean and polish all metal fittings.
9. Dust mop all hard surface floors with a treated dust mop.
10. Sweep and/or vacuum entrance mats.
11. Keep supply rooms in a clean, neat and orderly condition.
12. Glass globes in common areas shall be damp wiped every two
weeks.
13. All hand railing and woodwork shall be dusted.
B. Services to be performed as necessary:
1. Dust all fire extinguishers.
2. Damp dust all ceiling air conditioning diffusers, wall grids,
registers and other ventilation louvers.
3. Dust the exterior surfaces of lighting fixtures, including
glass and plastic enclosures.
D-3
<PAGE> 63
EXHIBIT E
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply to the Premises, the
Building, the parking garage associated therewith, the Land and the
appurtenances thereto:
1. Sidewalks, doorways, vestibules, halls, stairways, and other
similar areas shall not be obstructed by tenants or used by any tenant for
purposes other than ingress and egress to and from their respective leased
premises and for going from one to another part of the Building.
2. Plumbing, fixtures and appliances shall be used only for the
purposes for which designed, and no sweepings, rubbish, rags or other
unsuitable material shall be thrown or deposited therein. Damage resulting to
any such fixtures or appliances from misuse by a tenant or its agents,
employees or invitees, shall be paid by such tenant.
3. No signs, advertisements or notices shall be painted or
affixed on or to any windows, doors, or elevators, or other part of the
Building without the prior written consent of Landlord. No curtains or other
window treatments shall be placed between the glass and the Building standard
window treatments.
4. Landlord shall provide and maintain an alphabetical directory
for all tenants in the main lobby of the Building.
5. Landlord shall provide all door locks in each tenant's leased
premises, at the cost of such tenant, and no tenant shall place any additional
door locks in its leased premises without Landlord's prior written consent.
Landlord shall furnish to each tenant a reasonable number of keys to such
tenant's leased premises, at such tenant's cost, and no tenant shall make a
duplicate thereof.
6. Movement in or out of the Building of furniture or office
equipment, or dispatch or receipt by tenants of any bulky material, merchandise
or materials which require use of elevators or stairways, or movement through
the Building entrances or lobby shall be conducted under Landlord's supervision
at such times and in such a manner as Landlord may reasonably require. Each
tenant assumes all risks of and shall be liable for all damage to articles
moved and injury to persons or public engaged or not engaged in such movement,
including equipment, property and personnel of Landlord if damaged or injured
as a result of acts in connection with carrying out this service for such
tenant.
7. Landlord may prescribe weight limitations and determine the
locations for safes and other heavy equipment or items, which shall in all
cases be placed in the Building so as to distribute weight in a manner
acceptable to Landlord which may include the use of such
E-1
<PAGE> 64
supporting devices as Landlord may require. All damages to the Building caused
by the installation or removal of any property of a tenant, or done by a
tenant's property while in the Building, shall be repaired at the expense of
such tenant.
8. Corridor doors, when not in use, shall be kept closed.
Nothing shall be swept or thrown into the corridors, halls, elevator shafts or
stairways. No birds, fish, or other animals shall be brought into or kept in,
on or about any tenant's leased premises. No portion of any tenant's leased
premises shall at any time be used or occupied as sleeping or lodging quarters.
9. Tenant shall cooperate with Landlord's employees in keeping
its leased premises neat and clean. Tenants shall not employ any person for
the purpose of such cleaning other than the Building's cleaning and maintenance
personnel.
10. To ensure orderly operation of the Building, no ice, mineral
or other water, towels, newspapers, etc. shall be delivered to any leased area
except by persons approved by Landlord.
11. Tenant shall not make or permit any improper, objectionable or
unpleasant noises or odors in the Building or otherwise interfere in any way
with other tenants or persons having business with them.
12. No machinery of any kind (other than normal office equipment)
shall be operated by any tenant on its leased area without Landlord's prior
written consent, nor shall any tenant use or keep in the Building any flammable
or explosive fluid or substance.
13. Landlord will not be responsible for lost or stolen personal
property, money or jewelry from tenant's leased premises or public or common
areas regardless of whether such loss occurs when the area is locked against
entry or not.
14. No vending or dispensing machines of any kind may be
maintained in any leased premises without the prior written permission of
Landlord.
15. All mail chutes located in the Building shall be available for
use by Landlord and all tenants of the Building according to the rules of the
United States Postal Service.
E-2
<PAGE> 65
RIDER NO. 101
LEASING RIGHTS AND OBLIGATIONS
Initial Space. Effective on the Commencement Date of this Lease (as
defined in Paragraph 3 of the Lease), the Premises shall consist of a minimum
of 30,000 rentable square feet, located on all or a portion of one or more of
the first, seventh, eighth, ninth, tenth, eleventh, or twelfth floors of the
Building; provided that, at Landlord's option, Landlord may substitute the
fifth floor of the Building for the seventh floor of the Building
(collectively, the "Initial Space"). Tenant shall have the right to require
that Landlord construct leasehold improvements in space which contains more
than 30,000 rentable square feet, so long as the additional space (the
"Additional Square Footage") is necessary to complete the remainder of an
entire floor on which a portion of the required 30,000 rentable square feet
(the "Required Square Footage") is located. In the event that Tenant requires
the construction of leasehold improvements in the Additional Square Footage,
Landlord agrees that Tenant shall not be obligated to pay Basic Rental for the
Additional Square Footage until January 15, 1998; provided that Tenant pays its
proportionate share of Actual Operating Expenses for the Additional Square
Footage, and that the Additional Square Footage shall be deemed to be part of
the Initial Space. Upon completion of the Finish Work for the Initial Space,
Landlord and Tenant agree to enter into an amendment to this Lease which
modifies the description of the Premises contained in Paragraph 1(c) of this
Lease to reflect the location(s) and Rentable Area of the Initial Space; which
attaches Exhibit A-1, the Floor Plan of the Premises, to this Lease; which
recalculates the Basic Rental amounts shown in Paragraph 1(d) of this Lease
based on the Rentable Area of the Initial Space; and which contains other
appropriate terms and provisions relating to the addition of the Initial Space.
First Expansion Space. Effective on the First Expansion Space
Commencement Date (hereinafter defined), the Premises shall be expanded to
include an additional 70,000 square feet of Rentable Area (in excess of the
minimum 30,000 rentable square feet in the Initial Space), which space shall be
located on all or a portion of one or more of the first, seventh, eighth,
ninth, tenth, eleventh, or twelfth floors of the Building; provided that, at
Landlord's option, Landlord may substitute the fifth floor of the Building for
the seventh floor of the Building (collectively, the "First Expansion Space").
The First Expansion Space shall be leased by Tenant subject to the same terms,
covenants and conditions as provided in this Lease for the Premises, except
that the amount of the Finish Allowance (as defined in the Construction
Agreement) provided by Landlord with respect to the First Expansion Space shall
not exceed $15.00 per square foot of Rentable Area contained in the First
Expansion Space. Except as otherwise provided in the Construction Agreement in
the event of a delay, Tenant's right to occupy the First Expansion Space and
its obligation to pay Basic Rental, Additional Rental, and all other sums due
under this Lease for the First Expansion Space shall commence on the later of
(a) the First Expansion Space Estimated Commencement Date, or (b) ten (10) days
after Landlord's substantial completion of the First Expansion Space Finish
Work, as such terms are defined in the Construction Agreement, but if Tenant
takes possession of the First Expansion
<PAGE> 66
Space for the conduct of business before either such date, then the
commencement date shall be the date Tenant in fact occupies the First Expansion
Space (the "First Expansion Space Commencement Date"), and shall terminate with
the term of this Lease. From and after the First Expansion Space Commencement
Date, except as otherwise specifically provided herein, any reference to the
term "Premises" in this Lease and any amendments thereto, shall be deemed to
include the First Expansion Space as though originally a part of the Premises
under this Lease, and Tenant's occupancy of the First Expansion Space shall be
subject to all terms and conditions of this Lease, as amended from time to
time. Upon completion of the Finish Work for the First Expansion Space,
Landlord and Tenant agree to enter into an amendment to this Lease which
modifies the description of the Premises contained in Paragraph 1(c) of this
Lease to include the location(s) and Rentable Area of the First Expansion
Space; which attaches a revised Exhibit A-1, the Floor Plan of the Premises, to
this Lease; which recalculates the Basic Rental amounts shown in Paragraph 1(d)
of this Lease based on the addition of the Rentable Area of the First Expansion
Space; and which contains other appropriate terms and provisions relating to
the addition of the First Expansion Space.
Second Expansion Space. Effective on the Second Expansion Space
Commencement Date (hereinafter defined), the Premises shall be expanded to
include an additional 20,000 square feet of Rentable Area (in excess of the
100,000 rentable square feet contained in the Initial Space and the First
Expansion Space), which space shall be located on all or a portion of one or
more of the first, seventh, eighth, ninth, tenth, eleventh, or twelfth floors
of the Building; provided that, at Landlord's option, Landlord may substitute
the fifth floor of the Building for the seventh floor of the Building
(collectively, the "Second Expansion Space"). The Second Expansion Space shall
be leased by Tenant subject to the same terms, covenants and conditions as
provided in this Lease for the Premises, except that the amount of the Finish
Allowance (as defined in the Construction Agreement) provided by Landlord with
respect to the Second Expansion Space shall not exceed $15.00 per square foot
of Rentable Area contained in the Second Expansion Space. Except as otherwise
provided in the Construction Agreement in the event of a delay, Tenant's right
to occupy the Second Expansion Space and its obligation to pay Basic Rental,
Additional Rental, and all other sums due under this Lease for the Second
Expansion Space shall commence on the later of (a) the Second Expansion Space
Estimated Commencement Date, or (b) ten (10) days after Landlord's substantial
completion of the Second Expansion Space Finish Work, as such terms are defined
in the Construction Agreement, but if Tenant takes possession of the Second
Expansion Space for the conduct of business before either such date, then the
commencement date shall be the date Tenant in fact occupies the Second
Expansion Space (the "Second Expansion Space Commencement Date"), and shall
terminate with the term of this Lease. From and after the Second Expansion
Space Commencement Date, except as otherwise specifically provided herein, any
reference to the term "Premises" in this Lease and any amendments thereto,
shall be deemed to include the Second Expansion Space as though originally a
part of the Premises under this Lease, and Tenant's occupancy of the Second
Expansion Space shall be subject to all terms and conditions of this Lease, as
amended from time to time. Upon completion of the Finish Work for the Second
Expansion Space, Landlord and Tenant agree to enter into an amendment to this
Lease which modifies the description of the
2
<PAGE> 67
Premises contained in Paragraph 1(c) of this Lease to include the location(s)
and Rentable Area of the Second Expansion Space; which attaches a revised
Exhibit A-1, the Floor Plan of the Premises, to this Lease; which recalculates
the Basic Rental amounts shown in Paragraph 1(d) of this Lease based on the
addition of the Rentable Area of the Second Expansion Space; and which contains
other appropriate terms and provisions relating to the addition of the Second
Expansion Space.
3
<PAGE> 68
RIDER NO. 201
OPTION TO EXPAND
Tenant shall have the option to lease additional space consisting of
approximately 30,000 rentable square feet located on the third and fourth
floors of the Building, as designated and referred to on Exhibit "201-A"
attached to this Lease as the "Columbia Space", pursuant to the terms and
provisions contained in this Rider No. 201. The Columbia Space is currently
occupied by Columbia/HCA Healthcare Corporation ("Columbia"), as the
successor-in-interest to Keystone Homehealth Management, Inc. ("Keystone"),
under that certain Office Lease dated January 5, 1996, by and between Keystone
and Landlord (the "Columbia Lease"), which expires on January 31, 1999 (the
"Columbia Expiration Date"). Under the Columbia Lease, both Landlord and
Columbia have the right to terminate the Columbia Lease, at any time, by giving
the other party six (6) months prior written notice. Columbia also has the
right to extend the term of the Columbia Lease for one (1) additional period of
three (3) years by giving Landlord written notice at least nine (9) months
before the Columbia Expiration Date. Tenant shall have the option to lease the
Columbia Space, as it becomes available, pursuant to the following terms and
conditions:
(a) Events of Availability:
(1) Termination by Columbia. In the event Columbia
elects to terminate the Columbia Lease by giving Landlord six (6)
months prior written notice, Landlord shall, upon receipt of such
notice, promptly notify Tenant of such fact and of the date such
termination shall become effective. Upon such a termination, Tenant
shall have the right to lease all or a portion of the Columbia Space,
so long as Tenant leases a minimum of 10,000 rentable square feet of
the Columbia Space. Tenant shall have a period of thirty (30) days
after receipt of Landlord's notice to notify Landlord whether Tenant
elects to exercise its right to lease all or a portion of the Columbia
Space. If Tenant elects to lease only a portion of the Columbia
Space, then Tenant shall specify in the notice the amount of rentable
square feet which Tenant desires to lease (which amount cannot be less
than 10,000 rentable square feet), and Landlord shall have the right
to determine the location of such portion. If Tenant waives its right
to lease all or a portion of the Columbia Space (either by giving
written notice thereof or by failing to give any notice to Landlord
within the required thirty (30) day period), this Option to Expand
shall thereafter be null, void and of no further force or effect.
(2) Expiration of the Columbia Lease. In the event
Columbia waives its right to extend the term of the Columbia Lease,
either by giving written notice thereof to Landlord or by failing to
give any notice to Landlord by April 30, 1998, Landlord shall promptly
notify Tenant of such fact. Upon such an expiration, Tenant shall
have the right to lease all or a portion of the Columbia Space, so
long as Tenant leases a minimum of 10,000 rentable square feet of the
Columbia Space. Tenant shall have a period of thirty (30) days after
receipt of Landlord's notice to notify Landlord whether Tenant elects
to exercise its right to lease all or a portion of the Columbia Space.
If Tenant elects to lease only a portion of the Columbia Space, then
Tenant shall specify
<PAGE> 69
in the notice the amount of rentable square feet which Tenant desires
to lease (which amount cannot be less than 10,000 rentable square
feet), and Landlord shall have the right to determine the location of
such portion. If Tenant waives its right to lease all or a portion of
the Columbia Space (either by giving written notice thereof or by
failing to give any notice to Landlord within the required thirty (30)
day period), this Option to Expand shall thereafter be null, void and
of no further force or effect.
(3) Extension of the Columbia Lease With the Termination
Right. In the event Columbia elects to exercise its right to extend
the term of the Columbia Lease through and including January 31, 2002,
subject to all the terms, covenants and conditions of the Columbia
Lease, including, but not limited to, the right of either Landlord or
Columbia to terminate the Columbia Lease upon six (6) months prior
written notice to the other party, Landlord shall promptly notify
Tenant of such fact. At any time after receipt of Landlord's notice,
if Tenant requires additional space in the Building and desires to
expand into the Columbia Space, then Tenant shall have the right to
request that Landlord exercise its termination right with respect to
the Columbia Space, by giving Landlord written notice at least seven
(7) months prior to the date on which Tenant desires to commence
construction on the Columbia Space. Landlord will then notify
Columbia of the termination of the Columbia Lease. In the event
Columbia exercises its termination right during the extended term of
the Columbia Lease, Landlord shall notify Tenant of such fact pursuant
to the terms and conditions of subparagraph (1) above.
(4) Extension of the Columbia Lease Without the
Termination Right. In the event Columbia notifies Landlord of its
desire to exercise its right to extend the term of the Columbia Lease
through and including January 31, 2002, subject to all the terms,
covenants and conditions of the Columbia Lease, except for the right
of either Landlord or Columbia to terminate the Columbia Lease upon
six (6) months prior written notice to the other party, Landlord shall
promptly notify Tenant of such fact. Tenant shall have a period of
thirty (30) days after receipt of Landlord's notice to notify Landlord
whether Tenant elects to exercise its right to lease the entire
Columbia Space. If Tenant waives its right to lease the Columbia
Space (either by giving written notice thereof or by failing to give
any notice to Landlord within the required thirty (30) day period),
Tenant shall be deemed to have waived its right to exercise this
Option to Expand through and including January 31, 2002. Tenant shall
have the right to lease the Columbia Space after January 31, 2002,
provided that Tenant gives Landlord written notice no later than
January 31, 2001, of Tenant's desire to lease the Columbia Space upon
the expiration of the extended term of the Columbia Lease.
(b) Tenant's Exercise of Its Option to Expand. Tenant's Option to
Expand provided herein is subject to the condition that on the date Tenant
notifies Landlord of Tenant's election to lease the Columbia Space and on the
Columbia Space Commencement Date (hereinafter defined), (i) no event of
default, as defined in Paragraph 13 of this Lease, shall have occurred, and
(ii) Tenant occupies no less than 100,000 rentable square feet in the Building.
If the foregoing conditions are met, and if Tenant timely notifies Landlord of
Tenant's election to exercise its Option to Expand upon one (1) of the events
of availability of the Columbia Space
2
<PAGE> 70
set forth in paragraph (a) above, then Landlord and Tenant shall enter into a
written agreement modifying and supplementing this Lease and specifying that
the Columbia Space is part of the Premises under this Lease and containing
other appropriate terms and provisions relating to the addition of such space
to this Lease (including specifically any increase of rent as a result of such
addition) as follows: Tenant shall lease the Columbia Space for a term
commencing on the date of substantial completion of the leasehold improvements
to the Columbia Space, but in no event later than seventy-five (75) days after
Columbia vacates the Columbia Space (the "Columbia Space Commencement Date"),
and ending contemporaneously with the expiration of the term of this Lease
(unless sooner terminated pursuant to the terms and provisions of this Lease).
Tenant's obligation to pay Basic Rental, Additional Rental, and all other sums
due under this Lease for the Columbia Space shall commence on the Columbia
Space Commencement Date, and shall terminate with the term of this Lease. If
the Columbia Space Commencement Date occurs during the first three (3) years of
the Lease Term, then (i) the Basic Rental for the Columbia Space shall be at
the same rental rate then in effect for the Premises pursuant to the Lease,
which Basic Rental shall be increased as provided in and under the Lease, and
(ii) the amount of the tenant improvement allowance given for the Columbia
Space shall be reduced by $0.12 for each month of the Lease Term that has
expired prior to the Columbia Space Commencement Date (for example, if the
Columbia Space Commencement Date is ten (10) months after the Commencement Date
of the Lease, then the tenant improvement allowance payable by Landlord with
respect to the Columbia Space shall not exceed $13.80 per square foot of
Rentable Area contained in the Columbia Space). If the Columbia Space
Commencement Date occurs after the third anniversary of the Commencement Date
of the Lease, then (i) the Basic Rental for the Columbia Space shall be at the
prevailing rate for comparable space in the Building on the Columbia Space
Commencement Date, and (ii) the amount of the tenant improvement allowance
given for the Columbia Space shall be at the prevailing rate for comparable
space in the Building on the Columbia Space Commencement Date. Landlord shall
not be liable for the failure to give possession of the Columbia Space upon the
occurrence of an event of availability as set forth in paragraph (a) above by
reason of the holding over or retention of possession of any tenant, tenants or
occupants, and such failure shall not impair the validity of this Lease, or
extend the Lease Term, but the rent for the Columbia Space shall be abated
until possession is delivered to Tenant and such abatement shall constitute
full settlement of all claims that Tenant might otherwise have against Landlord
by reason of such failure to give possession of the Columbia Space to Tenant on
such date. Any assignment or subletting by Tenant pursuant to Paragraph 9 of
this Lease, other than to a Fortune 500 company or an Affiliate, if any, shall
terminate the option of Tenant contained herein. If Tenant shall exercise its
right of expansion as provided in this Rider No. 201, and shall occupy the
Columbia Space during the initial Lease Term, then, for purposes of the
extension of the Lease Term pursuant to an option to extend this Lease, if any,
the Columbia Space shall be considered to be a part of the Premises under this
Lease, and the Basic Rental for the Columbia Space shall be adjusted as
provided in and under such option to extend.
3
<PAGE> 71
RIDER NO. 301
RIGHT OF FIRST REFUSAL
Provided this Lease is then in full force and effect and no event of
default, as defined in Paragraph 13 of this Lease, shall have occurred, Tenant
shall have the right of first refusal as hereinafter described to lease that
portion of the space to be leased to a prospective tenant (the "Offered Space")
which is all or part of the third, fourth, fifth, and/or sixth floor of the
Building (collectively, the "Right of First Refusal Space"), as shown and
designated on Exhibit "301-A" attached to this Lease as the "Right of First
Refusal Space", at such time as Landlord engages in negotiations with a
prospective tenant, exercisable at the following times and upon the following
conditions:
1. If Landlord enters into negotiations with a prospective tenant
to lease the Offered Space, Landlord shall notify Tenant of such fact and shall
include in such notice the rent, term, and other terms (including finish out)
at which Landlord is prepared to offer such Offered Space to such prospective
tenant. Tenant shall have a period of five (5) business days from the date of
delivery of the notice to notify Landlord whether Tenant elects to exercise the
right granted hereby to lease the Offered Space on terms which result in the
same economic benefit to Landlord as the rent, term, and other terms specified
in the notice. With respect to the Columbia Space only (as defined in Rider
No. 201 attached to this Lease), Tenant shall have the option to lease the
Offered Space either (i) upon the same rent, term, and other terms specified in
the notice, or (ii) for a term which expires upon the expiration date of this
Lease and at a rate and other terms which collectively provide the same
economic benefit to Landlord as the rent, term, and other terms specified in
the notice. With respect to the Columbia Space only, Tenant shall have a
period of five (5) business days from the date of delivery of the notice to
notify Landlord whether Tenant elects to exercise the right granted hereby to
lease the Offered Space and under which of the foregoing options Tenant elects
to lease the Offered Space. If Tenant fails to give any notice to Landlord
within the required five (5) business day period, Tenant shall be deemed to
have waived its right to lease the Offered Space.
2. If Tenant so waives its right to lease the Offered Space
(either by giving written notice thereof or by failing to give any notice),
Landlord shall have the right to lease the Offered Space to the prospective
tenant, on terms which result in the same economic benefit to Landlord as the
terms contained in Landlord's notice to Tenant, and upon the execution of such
lease between Landlord and the prospective tenant this Right of First Refusal
as to the Offered Space shall thereafter be null, void and of no further force
or effect.
3. If Landlord does not enter into a lease with such prospective
tenant covering the Offered Space, or if Landlord offers the Offered Space to
the prospective tenant on terms which do not result in the same economic
benefit to Landlord as the terms contained in Landlord's notice to Tenant, then
Landlord shall not thereafter engage in other lease negotiations with respect
to the Right of First Refusal Space without first complying with the provisions
of this Rider No. 301.
<PAGE> 72
4. Upon the exercise by Tenant of its right of first refusal as
provided in this Rider No. 301, Landlord and Tenant shall, within twenty (20)
days after Tenant delivers to Landlord notice of its election, enter into a
lease or an amendment to this Lease covering the Offered Space for the rent,
for the term, and containing such other terms and conditions as Landlord
notified Tenant pursuant to paragraph 1 above.
5. Any assignment or subletting by Tenant pursuant to Paragraph 9
of this Lease, other than to a Fortune 500 company or an Affiliate, if any,
shall terminate the right of first refusal of Tenant contained herein.
2
<PAGE> 73
RIDER NO. 401
OPTION TO EXTEND
Tenant at its option may extend the term of this Lease for one (1)
extension term of five (5) years by serving written notice thereof upon
Landlord at least twelve (12) months before the expiration of the initial lease
term, provided that at the time of such notice and at the commencement of such
extended term, no event of default, as defined in Paragraph 13 of this Lease,
shall have occurred. Upon the service of such notice and subject to the
conditions set forth in the preceding sentence, this Lease shall be extended
without the necessity of the execution of any further instrument or document.
Such extended term shall commence upon the expiration date of the initial lease
term, expire upon the annual anniversary of such date five (5) years
thereafter, and be upon the same terms, covenants, and conditions as provided
in this Lease for the initial term, except that the Basic Rental payable during
the extended term shall be at the prevailing rate for comparable space in the
Building, at the commencement of such extended term, which new Basic Rental
shall be adjusted as provided in and under this Lease. Payment of all
additional rent and other charges required to be made by Tenant as provided in
this Lease for the initial term shall continue to be made during the extended
term. Any termination of this Lease during the initial term shall terminate
all rights of extension hereunder. Any assignment or subletting by Tenant
pursuant to Paragraph 9 of this Lease, other than to a Fortune 500 company or
an Affiliate, if any, shall terminate the option of Tenant contained herein.
Notwithstanding the foregoing, in no event shall the Basic Rental for the
extension term be less than the Basic Rental during the last year of the
initial term.
<PAGE> 74
RIDER NO. 501
TERMINATION OPTION
Tenant shall have the option to terminate this Lease on the last day
of any month after the date which is five (5) years and eight (8) months after
the Commencement Date of this Lease (as applicable, the "Termination Date");
provided that (i) Tenant gives Landlord at least nine (9) months prior written
notice to terminate, and (ii) Tenant is not in default under the Lease at the
time of the giving of such notice nor on the Termination Date. Additionally,
Tenant's right to terminate hereunder is conditioned upon the payment in full
by Tenant, on or before the Termination Date, of (a) all Basic Rental,
Additional Rental and other sums owed by Tenant under the Lease through and
including the Termination Date; and (b) an amount equal to the sum of (i) the
amount obtained by multiplying $5,685,000.00 by a fraction having as its
numerator, the number of months remaining in the initial Lease Term, and having
as its denominator, the number sixty (60), plus (ii) the unamortized cost of
all tenant improvement allowances, leasing commissions and other transaction
costs actually paid by Landlord in connection with this Lease with interest
thereon at the rate of twelve and one-half percent (12.5%) per annum
(collectively, the "Termination Payment"). After Landlord's receipt of the
Termination Payment, and so long as Tenant has surrendered the Premises in the
condition required under this Lease, neither party shall have any rights,
liabilities or obligations under this Lease for the period accruing after the
Termination Date, except those which, by the provisions of this Lease,
expressly survive the termination of this Lease.
<PAGE> 75
EXHIBIT F
ROOFTOP LICENSE AGREEMENT
THIS ROOFTOP LICENSE AGREEMENT (this "Agreement") is entered into as
of the ____ day of _________, 1996, by and between CRESCENT REAL ESTATE
EQUITIES LIMITED PARTNERSHIP ("Licensor") and PAGEMART WIRELESS, INC.
("Licensee").
RECITALS:
A. Licensee and Licensor entered into that certain Office Lease
dated _________________________ (as amended, the "Lease") pursuant to which
Licensee has leased from Licensor certain premises in the building (the
"Building") located in the project commonly known as "3333 Lee Parkway" and
located at 3333 Lee Parkway, Dallas, Dallas County, Texas (the "Project").
B. Licensee desires to license from Licensor certain space
located on the roof of the Building for the installation of the Communications
Equipment (defined below) of Licensee.
AGREEMENT:
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00),
the mutual promises set forth herein and in the Lease, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and confessed, Licensor and Licensee hereby agree as follows:
1. License of Equipment Area. Subject to the terms and
conditions hereof, Licensor hereby licenses to Licensee, and Licensee hereby
licenses from Licensor, the right to use approximately ______________ square
feet of space located on the roof of the Building (the "Equipment Area") for
the installation and operation of the Communications Equipment. The location
of the Equipment Area is depicted on Exhibit A attached hereto and incorporated
herein by reference. Licensee accepts the Equipment Area in its "as-is"
condition and acknowledges that Licensor makes no representations or warranties
whatsoever with respect thereto.
2. Term. The term of this Agreement (the "Term") shall commence
on _______________________, 19____, and shall expire on the date of the
expiration or termination of the Lease, unless sooner terminated pursuant to
the provisions hereof. This Agreement may be cancelled at any time by Licensor
delivering to Licensee ____________ (____) days prior written notice of such
cancellation. Licensee may terminate this Agreement at any time by delivering
to Licensor ninety (90) days prior written notice of such termination.
3. License Fee; Electrical Costs. As consideration for the
license granted to Licensee herein, Licensee agrees to pay to Licensor, in
advance without deduction or setoff, and on the first day of the month, a
license fee (the "License Fee") in the amount of $_______________
<PAGE> 76
_ per month. Such payments shall be made in the same manner as Licensee's
rental payments are made under the Lease, or at such other place as may from
time to time be designated by Licensor. In the event that the Term begins or
ends on a day other than the first or last day of a month, as applicable, the
License Fee for such period shall be prorated on a per diem basis. The License
Fee for the first calendar month or portion thereof shall be paid concurrently
with the execution of this Agreement. Licensee shall also pay to Licensor as
an additional license fee hereunder, within fifteen (15) days after the receipt
of an invoice therefor, the costs incurred by Licensor in providing electrical
service to the Equipment Area.
4. Security Deposit. Licensee shall deposit with Licensor a
security deposit (the "Security Deposit") in the amount of $__________
contemporaneously with the execution hereof. Licensor shall hold the Security
Deposit without interest, and the same shall not be considered a prepayment of
the License Fee nor a measure of Licensor's damages in case of default by
Licensee. Licensor may apply the Security Deposit to the extent necessary to
make good any payment arrearages, to pay the cost of remedying Licensee's
default or to reimburse Licensor for expenditures made or damages suffered as a
consequence of Licensee's default. Following any such application of the
Security Deposit, Licensee shall pay to Licensor on demand the amount so
applied in order to restore the Security Deposit to its original amount. Any
remaining balance of the Security Deposit shall be refundable to Licensee
within thirty (30) days after the expiration or earlier termination of this
Agreement.
5. Communications Equipment. Licensee shall have the right to
install and maintain in the Equipment Area, at Licensee's sole cost and
expense,[ _________ (____) MICROWAVE DISHES (NOT TO EXCEED SIX (6) FEET IN
DIAMETER), ___________ (_____) DIRECTIONAL PANEL OR OMNIDIRECTIONAL WHIP RADIO
COMMUNICATIONS ANTENNAE] and any necessary connecting equipment or cabling
(collectively, the "Communications Equipment").
6. Compliance With Legal Requirements. The installation,
maintenance, use, removal and any relocation of the Communications Equipment
shall comply with all laws, rules, regulations, restrictions, restrictive
covenants and architectural guidelines applicable to the Project and/or the
Communications Equipment, as the same may be amended from time to time (the
"Legal Requirements"), and Licensee shall obtain, at its sole cost and expense,
all approvals, consents, licenses, authorizations and permits required under
the Legal Requirements in connection with any such installation, maintenance,
use, removal or relocation.
7. Installation of Communications Equipment. Before beginning
the installation of the Communications Equipment, Licensee shall deliver to
Licensor final plans and specifications setting forth in detail the design,
location, size, weight, color scheme, material composition, method of
installation, and frequency of the Communications Equipment for Licensor's
review and approval, together with evidence reasonably satisfactory to Licensor
that all Legal Requirements have been satisfied. Licensor's approval of any
such plans and specifications shall not constitute a representation or warranty
by Licensor that such plans and specifications comply with the Legal
Requirements. Such compliance shall be the sole responsibility of Licensee,
but Licensor shall, at Licensee's request and expense, use reasonable efforts
to assist Licensee in
F-2
<PAGE> 77
complying therewith. Upon approval by Licensor of the plans and specifications
therefor and the location thereof, Licensee may install the Communications
Equipment in the Equipment Area, provided that such work is coordinated with
and completed in accordance with the instructions of Licensor and Licensor's
roofing contractor, and is performed in a good and workmanlike manner, in
accordance with all Legal Requirements and the plans and specifications
therefor, and in a manner so as not to damage the Project or materially
interfere with the use of any portion of the Project while such installation is
taking place. Except to the extent otherwise directed by Licensor, Licensee
shall, at Licensee's sole cost and expense, connect the Communications
Equipment to the Premises through cables in conduit in the utility chases in
the Building and to the Building lightning protection system and electrical
service, and install a submeter for the providing of electrical service to the
Equipment Area.
8. Equipment Changes. From time to time Licensee shall have the
right, with the prior written approval of Licensor and at Licensee's sole cost
and expense, to install, maintain, repair and replace the Communications
Equipment or components thereof, including, without limitation, electrical and
communications wires, cables and other pipes, conduits and lines linking
various components of the Communications Equipment with other components
thereof. In exercising the rights granted hereunder, Licensee shall comply
with all Legal Requirements and with the reasonable rules and regulations of
the Building which may from time to time be prescribed by Licensor.
9. Interference. Licensee acknowledges and agrees that its use
of the rooftop of the Building is of a non-exclusive nature and that Licensor
has the right to grant other licenses, leases or rights of use, of any kind or
nature, to parties other than Licensee. The Communications Equipment shall be
of such type and frequencies, and shall be operated in a manner, that will not
cause measurable frequency interference with the business or operations of any
tenant, occupant or other licensee of the Building, including the operation of
transmitting and receiving devices operated within their assigned frequencies
and within Federal Communications Commission ("FCC") rules and regulations.
Licensor shall use reasonable efforts to ensure that any rights to use the roof
of the Building (including, without limitation, any rights to install other
antenna equipment), or any other lease or license for use of the Building for
communications uses, granted to third parties hereafter shall not result in
measurable frequency interference with the Communications Equipment, and
Licensor shall use reasonable diligence to prevent or stop such interference
upon receiving notice thereof from Licensee. Licensor and Licensee agree that
Licensor (or, if requested by Licensee, an independent third party qualified in
the communications industry, provided any fees charged by such third party
shall be paid by Licensee) shall arbitrate any disputes between Licensee and
other tenants, occupants or licensees of the Building concerning alleged
interference with the operation of the Communications Equipment, whether
claimed to be caused by Licensee or such other tenants, occupants or licensees.
Licensee shall be bound by Licensor's (or, if applicable, the third party's)
determination in such disputes. In determining such disputes, the underlying
assumption shall be that the device installed later in time shall be required
to have frequencies and operating characteristics that minimize interference
with devices installed prior in time, but that all devices shall be designed,
maintained and upgraded to minimize interference with other
F-3
<PAGE> 78
devices in accordance with industry standards as they change from time to time.
In the event the Communications Equipment causes interference to any device
installed prior in time, Licensee will take all steps necessary to correct and
eliminate the interference. If said interference cannot be eliminated within a
reasonable length of time, Licensee agrees, at the request of Licensor, to
remove the Communications Equipment from the Project and this Agreement shall
then terminate without further obligation on the part of Licensor or Licensee,
except as expressly provided otherwise herein.
10. Access to Equipment Area. Licensee shall have access to the
Equipment Area twenty-four (24) hours per day, each and every day during the
Term; provided, that (i) Licensee shall provide to Licensor at least two (2)
hours advance notice of any need for access, and (ii) a representative of
Licensor may accompany Licensee on the roof of the Building during such access.
Access to the Equipment Area may be arranged through Licensor's property
management personnel or, after the normal business hours for the Building,
through Licensor's security personnel at the Building. In the event that
Licensee requests access to the Equipment Area at times other than the normal
business hours for the Building, Licensee shall compensate Licensor for
reasonable trip charges and overtime charges resulting from employees or agents
of Licensor making trips to the Building to provide such after hours access.
11. Service Interruptions; Equipment Malfunctions. Licensor shall
not be liable to Licensee for the interruption or suspension of electrical
service to the Communications Equipment. In addition, Licensor shall not be
liable or responsible for any alleged malfunction or non-functioning of the
Communications Equipment or for the repair, maintenance or any loss of, or
damage to, such equipment.
12. Licensee's Covenants. Licensee covenants and agrees as
follows:
(a) Condition of Equipment; Repairs. Licensee shall use,
maintain, and operate the Communications Equipment in a good and safe condition
and in accordance with all Legal Requirements, and shall keep the Equipment
Area free from all trash, debris and waste resulting from the use thereof by
Licensee. Licensee shall repair all damage caused to the Project by the
installation, use, maintenance, relocation or removal of the Communications
Equipment and shall, upon its removal, restore the Equipment Area to its
condition immediately before the installation thereof, ordinary wear and tear
excepted. If Licensee fails to do so within five (5) days after Licensor's
request, Licensor may perform such work and Licensee shall reimburse Licensor
for all reasonable costs incurred in connection therewith within fifteen (15)
days after Licensor's request therefor, which reimbursement obligation of
Licensee shall survive the expiration or earlier termination of this Agreement.
(b) Costs; Liens. Licensee shall pay or cause to be paid
all costs for materials provided or work performed by or at the direction of
Licensee related to the Communications Equipment or the Equipment Area. In the
event of any claim of any kind or nature against Licensor or, if other than
Licensor, the owner of the property on which the Building is located
(including, but not limited to, mechanic's liens), arising out of the failure
of payment or
F-4
<PAGE> 79
performance of an obligation required of Licensee under this Agreement,
Licensee shall be solely responsible to adjust, settle and/or pay any and all
such claims, in full, at the sole cost and expense of Licensee. If a
mechanic's lien is filed against the Building or the Project as a result of
such claim, Licensee shall bond against or discharge any such liens within five
(5) days after notice from Licensor. In the event Licensor or, if other than
Licensor, the owner of the property on which the Building is located sustains
any loss or damage by reason of any such claim, Licensee will fully indemnify
Licensor and/or said owner for any such loss or damage, including reasonable
attorneys' fees incurred in connection therewith, which indemnity obligation of
Licensee shall survive the expiration or earlier termination of this Agreement.
(c) Taxes. Licensee shall pay any sales, use and
personal property taxes assessed on, or any portion of such taxes attributable
to, the Communications Equipment. In addition, Licensee shall pay, as an
additional license fee hereunder, any increase in real property taxes levied
against the Building (excluding any additional taxes that relate to the period
prior to the commencement date of the Term) which is directly attributable to
Licensee's use of the Equipment Area.
(d) Surrender; Removal of Equipment. Upon the expiration
or earlier termination of this Agreement, Licensee shall remove the
Communications Equipment from the Project and peaceably surrender the Equipment
Area to Licensor in the condition the same was in at the commencement of this
Agreement, ordinary wear and tear excepted. In addition, Licensee shall remove
the Communications Equipment from the Project within ten (10) days after the
termination of Licensee's right to possess the premises therein. If Licensee
fails to perform any such removal work, Licensor may do so and store or dispose
of the Communications Equipment in any manner Licensor deems appropriate
without liability to Licensee. Licensee shall reimburse Licensor for all
reasonable costs incurred by Licensor in connection therewith within fifteen
(15) days after Licensor's request therefor, which reimbursement obligation of
Licensee shall survive the expiration or earlier termination of this Agreement.
(e) Increases in Operating Expenses or Insurance. If
Licensee's installation or operation of the Communications Equipment results in
an increase in Licensor's operating expenses (including taxes) or insurance
premiums related to the Project at any time during the Term, Licensee shall be
responsible for the payment of the amount of such increase which is
attributable to such installation or operation, as reasonably determined by
Licensor. Licensee shall pay any such amounts to Licensor within ten (10) days
after receipt of an invoice therefor. Licensee shall not install or operate the
Communications Equipment in a manner that results in the cancellation or
termination of Licensor's insurance.
(f) Relocation Expenses. Licensee shall pay all costs
associated with any relocation of the Communications Equipment required by any
governmental authority.
F-5
<PAGE> 80
13. Certain Rights Reserved by Licensor. Licensor shall have the
following rights:
(a) Right to Relocate Equipment. At any time after the
execution of this Agreement and on fifteen (15) days prior written notice,
Licensor may substitute for the Equipment Area other space on the roof of the
Building (the "New Equipment Area"), in which event the New Equipment Area
shall be deemed to be the Equipment Area for all purposes hereunder. Licensor
shall reimburse Licensee for Licensee's reasonable out-of-pocket costs in
connection with the relocation of the Communications Equipment to the New
Equipment Area.
(b) Screening of Equipment. At any time during the Term,
Licensor may require that Licensee install, at Licensee's sole cost and
expense, a screening device to ensure that the Communications Equipment cannot
be viewed by the public. Such screening device shall comply with all Legal
Requirements and any requirements regarding the construction, maintenance and
removal of such screening device that Licensor may establish from time to time.
Licensee shall obtain Licensor's prior written approval of all plans and
specifications for such screening device.
14. Licensee's Insurance.
(a) No construction, alteration or removal operations
shall be initiated by Licensee unless Licensee has first obtained builders risk
insurance in limits and with coverage reasonably acceptable to Licensor.
(b) At all times during the Term, Licensee shall maintain
in force, at its expense, a policy of public liability insurance insuring
Licensee with a combined single limit of at least $2,000,000.00 for injury or
death or property damage, with an umbrella policy providing excess liability
coverage of not less than $3,000,000.00 insuring against the liability of
Licensee arising out of or in connection with its installation, maintenance,
operation and use of the Telecommunications Equipment and/or the provision of
services at the Equipment Area.
(c) At all times during the Term, Licensee shall maintain
workers compensation insurance covering Licensee's employees entering the
Building.
(d) At all times during the Term, Licensee shall maintain
fire and casualty insurance on Licensee's personal property for the replacement
cost thereof.
(e) All insurance required to be maintained by Licensee
hereunder shall be issued by an insurance company licensed to do business in
the State of Texas, shall name Licensor and its managing agent, if any, as
additional insureds, and shall insure Licensee's performance of its obligations
under the indemnity provisions of this Agreement. Licensee's insurance shall
contain provisions providing that such insurance shall be primary insurance
insofar as Licensor and Licensee are concerned, with any other insurance
maintained by Licensor being excess and non-contributing with the insurance of
Licensee required hereunder. Licensee shall provide a certificate evidencing
such insurance to Licensor prior to
F-6
<PAGE> 81
commencement of any construction pursuant to this Agreement and upon renewals
of such policies prior to the renewal date. Licensor shall have the right to
review the adequacy of the limits of insurance coverage required of Licensee
hereunder, and make changes it deems necessary, not less than every year.
15. Waiver of Subrogation. It is the intent of Licensor and
Licensee not to hold each other responsible for that portion of any loss or
damage paid or reimbursed by an insurer of Licensor or Licensee under any fire,
extended coverage or other property insurance policy maintained by Licensee
with respect to the Equipment Area or by Licensor with respect to the Building.
Therefore, with respect to the amount of any damage, loss, claim or liability
paid or reimbursed by an insurer under any fire, extended coverage or property
insurance policy maintained by Licensee with respect to the Equipment Area, or
Licensor with respect to the Building, Licensor, Licensee and all parties
claiming under them each mutually release and discharge each other from such
damages, losses, claims or liabilities, no matter how caused, including
negligence, and each waives any right of recovery from the other including, but
not limited to, claims for contribution or indemnity, which might otherwise
exist on account thereof. Any fire, extended coverage or property insurance
policy maintained by Licensee with respect to the Equipment Area, or Licensor
with respect to the Building, shall contain, in the case of Licensee's
policies, a waiver of subrogation provision or endorsement in favor of
Licensor, and in the case of Licensor's policies, a waiver of subrogation
provision or endorsement in favor of Licensee, or, in the event that such
insurers cannot or will not attach such waiver of subrogation provisions or
endorsements, Licensee and Licensor shall obtain the approval and consent of
their respective insurers, in writing, to the terms of this Agreement. Neither
Licensee nor its insurers shall be entitled to receive any contribution from
any insurance policies separately maintained by Licensor, and Licensee agrees
to indemnify, protect, defend and hold harmless Licensor and any of Licensor's
insurers from any claim, suit or cause of action asserted or brought by
Licensee's insurers for, on behalf of, or in the name of Licensee, including
but not limited to, claims for contribution, indemnity or subrogation. The
mutual releases, discharges and waivers contained in this provision shall apply
EVEN IF THE LOSS OR DAMAGE TO WHICH THIS PROVISION APPLIES IS CAUSED SOLELY OR
IN PART BY THE NEGLIGENCE OF LICENSOR OR LICENSEE.
16. INDEMNITY. LICENSEE HEREBY AGREES TO INDEMNIFY, DEFEND AND
HOLD HARMLESS LICENSOR AND ITS MANAGING AGENT, AND THEIR RESPECTIVE PARTNERS,
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES AND SUCCESSORS-IN-INTEREST
(COLLECTIVELY AND TOGETHER WITH LICENSOR, THE "LICENSOR PARTIES") FROM AND
AGAINST ALL LIABILITY, LOSS, DAMAGE, COST OR EXPENSE, INCLUDING ATTORNEYS'
FEES, ON ACCOUNT OF ANY CLAIMS OF ANY NATURE WHATSOEVER (INCLUDING CLAIMS OR
LIENS OF LABORERS OR MATERIALMEN OR OTHERS) FOR WORK PERFORMED, MATERIALS OR
SUPPLIES FURNISHED, DAMAGE TO PROPERTY OR INJURY TO PERSONS CAUSED BY THE
NEGLIGENCE OR MISCONDUCT OF LICENSEE OR LICENSEE'S AGENTS, SERVANTS, OR
EMPLOYEES OR ANY OTHER PERSONS ENTERING UPON THE EQUIPMENT AREA OR THE BUILDING
UNDER THE EXPRESS
F-7
<PAGE> 82
OR IMPLIED INVITATION OF LICENSEE, OR WHERE SUCH INJURY IS THE RESULT OF THE
VIOLATION OF THE PROVISIONS OF THIS AGREEMENT BY ANY SUCH PERSON OR CAUSED BY
THE CONSTRUCTION, INSTALLATION, ALTERATION, MAINTENANCE, REPAIR, RELOCATION OR
USE OF THE COMMUNICATIONS EQUIPMENT. LICENSEE'S OBLIGATIONS AND LIABILITIES
UNDER THIS PARAGRAPH SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS
AGREEMENT.
17. Hazardous Materials. Licensee shall not cause or permit the
storage, use, generation or disposition of any Hazardous Materials (as
hereinafter defined) in the Equipment Area without the prior written consent of
Licensor. Licensee hereby agrees to indemnify, defend and hold harmless the
Licensor Parties from and against all fines, suits, procedures, claims and
actions of every kind, and all costs associated therewith (including attorneys'
and consultants' fees) arising out of or in any way connected with any deposit,
spill, discharge or other release of Hazardous Materials that occurs in or from
the Equipment Area, or which arises from Licensee's use or occupancy of the
Equipment Area. Licensee's obligations and liabilities under this paragraph
shall survive the expiration or termination of this Agreement. For purposes of
this Agreement, the term "Hazardous Materials" means any explosives,
radioactive materials or other hazardous substances which are governed by any
federal, state or local statute, law, ordinance, code, rule, regulation or
decree applicable to the Project.
18. Default and Remedies. Licensor and Licensee hereby agree that
time is of the essence with respect to the payment by Licensee of the License
Fee and any other monetary obligation of Licensee under this Agreement and the
performance by Licensee of the terms, covenants and conditions of this
Agreement. If Licensee fails to pay the License Fee or other monetary
obligation under this Agreement when due or otherwise defaults in the
performance of any of the terms, covenants and conditions of this Agreement,
Licensor may, at its option and in addition to all other remedies available
under applicable law, terminate this Agreement. In the event of such a
default, all payments previously made by Licensee under this Agreement will
remain the property of Licensor. Termination of Licensee's right to use the
Equipment Area under this Agreement will not affect Licensee's obligation to
make all License Fee payments coming due after the date of termination. Upon
termination of Licensee's right to use the Equipment Area under this Agreement,
Licensor will have the right, but no obligation, to relicense the Equipment
Area to another party. In the event the Equipment Area is licensed by Licensor
to another party, any License Fee received from the other party applicable to
the remainder of the Term will be applied first to any costs and expenses
incurred in attempting to enforce this Agreement or in relicensing the
Equipment Area, including costs of court and attorneys' fees with respect
thereto, and then to the satisfaction of Licensee's obligations under this
Agreement. The remedies provided in this paragraph are cumulative and not to
the exclusion of any other rights or remedies that may be available to
Licensor, at law or in equity. No waiver of any default or breach by Licensee
hereunder shall be construed to be a waiver or release of any other default or
breach of this Agreement at a later time. No failure or delay by Licensor in
the exercise of any remedy provided for in this paragraph shall be construed as
a forfeiture or waiver of the same or any other remedy at a later time.
F-8
<PAGE> 83
19. Miscellaneous.
(i) Assignment. Licensee shall have no right to assign,
sell or transfer its rights or obligations under this Agreement to any third
party without the prior written consent of Licensor, which consent may be
withheld by Licensor for any reason in its sole and absolute discretion. Any
purported sale, transfer or assignment in violation of the provisions of this
paragraph shall be null and void and shall constitute an event of default
hereunder. This Agreement and the rights of Licensor to any payments hereunder
are fully assignable by Licensor, and Licensee shall pay any such assignee
directly upon delivery of written notice of any such assignment to Licensee.
(ii) Notices. All notices, demands, payments and other
communications required to be given or made hereunder shall be in writing and
shall be hand-delivered or sent by nationally recognized overnight courier or
mailed by certified or registered mail, first class postage prepaid, to
Licensor at Suite 110, 3333 Lee Parkway, Dallas, Texas 75219, Attention:
Property Manager, with a copy to Crescent Real Estate Equities Limited
Partnership, 777 Main Street, Suite 2100, Fort Worth, Texas 76102, Attention:
James S. Wassel, or to Licensee at _____________________________________
___________________, _______________________, _____________________________ __,
Attention: __________________________________________, or to such other address
as Licensor or Licensee shall provide to each other in writing, provided that
no notice of either party's change of address shall be effective until fifteen
(15) days after the addressee's actual receipt thereof. Notice shall be deemed
given upon tender of delivery (in the case of a hand-delivered notice) or upon
posting of same with the overnight courier or upon the depositing of same in an
official depository of the United States Postal Service (in the case of a
certified or registered letter).
(iii) Entire Agreement. This Agreement (including all
exhibits attached hereto, which are hereby incorporated by reference herein) is
the entire agreement between the parties concerning its subject matter, and it
supersedes and cancels all prior agreements or understandings, written or oral,
between the parties.
(iv) Choice of Laws. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS
WITHOUT REGARD TO ANY OTHERWISE APPLICABLE PRINCIPLES OF CONFLICTS OF LAW.
(v) No Lease. The parties hereto acknowledge that this
Agreement is merely a license to use, and not an agreement to lease, the
Equipment Area. This Agreement does not create any property rights or rights
of possession or occupancy whatsoever in favor of or on behalf of Licensee, but
only licenses to Licensee the right to use the Equipment Area for the purposes,
and in the manner, provided for in this Agreement.
(vi) Binding Effect. This Agreement shall be binding on
the successors, permitted assigns, heirs, executors and administrators of the
parties hereto.
F-9
<PAGE> 84
(vii) Amendments and Waiver. This Agreement cannot be
changed or modified, and no breach hereof shall be deemed waived or released,
except in a writing executed by the party sought to be charged therewith.
(viii) Late Charges and Interest. Licensor may impose a
late payment charge equal to five percent (5%) of any amount due if not paid
within five (5) days from the date required to be paid hereunder. In addition,
any payment due under this Agreement not paid within ten (10) days after the
date herein specified to be paid shall bear interest from the date such payment
is due to the date of actual payment at the rate of eighteen percent (18%) per
annum or the highest lawful rate of interest permitted by Texas or federal law,
whichever rate of interest is lower.
(ix) Attorneys' Fees. In the event either party is in
default beyond any applicable grace or notice period in the performance of any
of the terms of this Agreement and the other party employs an attorney in
connection therewith, the nonprevailing party agrees to pay the prevailing
party's reasonable attorneys' fees.
(x) Interpretation. Whenever the context shall require,
the singular shall include the plural, the plural shall include the singular
and words of any gender shall be deemed to include words of any other gender.
The captions contained in this Agreement are inserted only as a matter of
convenience and in no way define, limit, extend or describe the scope of this
Agreement or the intent of any provisions hereof.
(xi) Severability. In the event one or more of the
provisions of this Agreement are declared invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions hereof, and this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein.
(xii) No Personal Liability of Licensor. If Licensor shall
fail to perform any covenant, term or condition of this Agreement and, as a
consequence, if Licensee shall recover a money judgment against Licensor, such
judgment shall be satisfied only out of the proceeds received at a judicial
sale upon execution and levy against the right, title and interest of Licensor
in the Building and in the rents or other income from the Building receivable
by Licensor, and neither Licensor nor Licensor's owners, partners, shareholders
or venturers shall have any personal, corporate or other liability hereunder.
(xiii) Execution of Agreement. The submission of this
Agreement for examination does not constitute a reservation of or option for
the Equipment Area or any other space within or on the Building and shall vest
no right in either party. This Agreement shall become effective only after the
full execution and delivery hereof by all of the parties hereto and, if
required, upon the approval by the holder of any mortgage encumbering the
Project.
F-10
<PAGE> 85
IN WITNESS WHEREOF, Licensor and Licensee have caused this Agreement
to be duly executed as of the date first set forth above.
LICENSOR:
--------
CRESCENT REAL ESTATE EQUITIES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Crescent Real Estate Equities, Ltd., a
Delaware corporation, its general partner
By:
---------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
LICENSEE:
--------
PAGEMART WIRELESS, INC.,
a Delaware corporation
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
---------------------------------------------
F-11
<PAGE> 1
EXHIBIT 11.1
PAGEMART WIRELESS, INC.
<TABLE>
<CAPTION>
YTD ENDED JUNE 13, 1996
-------------------------------------
NUMBER PERCENT EQUIVALENT
OF SHARES OUTSTANDING SHARES
---------- ----------- ----------
<S> <C> <C> <C>
COMMON STOCK
From Founders' Stock..................................... 2,300,000 100.00% 2,300,000
Stock Options Exercised.................................. 537,414 99.47% 534,581
Preferred Stock Converted to Common Stock................ 15,310,943 100.00% 15,310,943
1994 Common Stock Offerings.............................. 11,242,857 100.00% 11,242,857
1995 Common Stock Offerings.............................. 4,323,874 100.00% 4,323,874
---------- ----------
33,715,088 33,712,255
Adjustments to outstanding shares:
Add Exercises for 6/13/95 - 6/13/96 at 100%.............. 2,833
Add Shares Issuable upon Exchange of Shares in PageMart
Canada Holding........................................ 714,286
Add Weighted Average Grants Issued 6/13/95 - 6/13/96..... 261,869
-------
Total adjustments to outstanding shares:................... 978,988
----------
Weighted Average Shares Outstanding (as adjusted) at
6/13/96.................................................. 34,691,243
6/13/96 Shares Weighted at 165 days........................ 15,639,494
</TABLE>
<TABLE>
<CAPTION>
JUNE 14 THROUGH DECEMBER 31, 1996
---------------------------------------
NUMBER PERCENT EQUIVALENT
OF SHARES OUTSTANDING SHARES
---------- ----------- ------------
<S> <C> <C> <C>
COMMON STOCK
From Founders' Stock................................... 2,300,000 100.00% 2,300,000
Stock Options Exercised................................ 595,983 93.82% 559,154
Preferred Stock Converted to Common Stock.............. 15,310,943 100.00% 15,310,943
1994 Common Stock Offerings............................ 11,242,857 100.00% 11,242,857
1995 Common Stock Offerings............................ 4,323,874 100.00% 4,323,874
1996 Common Stock Offerings............................ 6,000,000 100.00% 6,000,000
Employee Stock Purchase Plan Shares Issued............. 31,275 0.50% 156
---------- ------------
39,804,932 39,736,984
Weighted Average Shares Outstanding at 12/31/96.......... 39,736,984
12/31/96 Shares Weighted at 201 days..................... 21,822,770
WEIGHTED AVERAGE OF SHARES OUTSTANDING at 6/13/96 and
12/31/96............................................... 37,462,264
NET LOSS................................................. $(48,598,000)
NET LOSS PER SHARE....................................... $ (1.30)
============
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
COMPANY'S DECEMBER 31, 1995 CONDENSED FINANCIAL STATEMENTS AND IS QUALIFIED IN
ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> DEC-31-1996
<CASH> 22,603
<SECURITIES> 0
<RECEIVABLES> 38,222
<ALLOWANCES> 4,776
<INVENTORY> 11,702
<CURRENT-ASSETS> 70,572
<PP&E> 145,794
<DEPRECIATION> 48,851
<TOTAL-ASSETS> 313,620
<CURRENT-LIABILITIES> 62,503
<BONDS> 240,687
<COMMON> 4
0
0
<OTHER-SE> 10,426
<TOTAL-LIABILITY-AND-EQUITY> 313,620
<SALES> 68,551
<TOTAL-REVENUES> 221,592
<CGS> 78,896
<TOTAL-COSTS> 78,896
<OTHER-EXPENSES> 155,265
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 35,041
<INCOME-PRETAX> (48,598)
<INCOME-TAX> 0
<INCOME-CONTINUING> (48,598)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (48,598)
<EPS-PRIMARY> (1.30)
<EPS-DILUTED> (1.30)
</TABLE>
