AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 28, 1996
REGISTRATION NOS. 333-03741
333-03741-01
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- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
AMENDMENT NO. 3
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
MUZAK LIMITED PARTNERSHIP
MUZAK CAPITAL CORPORATION
(FORMERLY MUZAK, INC.)
(EXACT NAME OF REGISTRANTS AS SPECIFIED IN THEIR CHARTERS)
DELAWARE 7389 13-3647593
DELAWARE 7389 91-1722302
(STATE OR OTHER (PRIMARY STANDARD INDUSTRIAL (IRS EMPLOYER
JURISDICTION OF CLASSIFICATION CODE NUMBERS) IDENTIFICATION NO.)
INCORPORATION OR
ORGANIZATION)
---------------
2901 THIRD AVENUE, SUITE 400
SEATTLE, WA 98121
(206) 633-3000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANTS' PRINCIPAL EXECUTIVE OFFICES)
---------------
MR. JOHN R. JESTER
PRESIDENT
MUZAK LIMITED PARTNERSHIP
MUZAK CAPITAL CORPORATION
2901 THIRD AVENUE, SUITE 400
SEATTLE, WA 98121
(206) 633-3000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
NORMAN D. CHIRITE, ESQ. LOUISA BARASH, ESQ. PHILIP E. COVIELLO,JR. ESQ.
WEIL, GOTSHAL & MANGES LLP HELLER, EHRMAN, WHITE & LATHAM & WATKINS
767 FIFTH AVENUE MCAULLIFFE 885 THIRD AVENUE, SUITE 1000
NEW YORK, NY 10153 701 FIFTH AVENUE, NEW YORK, NY 10022-4802
(212) 310-8000 SUITE 6100 (212) 906-1200
SEATTLE, WA 98104
(206) 447-0900
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
---------------
CALCULATION OF REGISTRATION FEE
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- ------------------------------------------------------------------------------------------------------
PROPOSED PROPOSED
TITLE OF EACH CLASS OF AMOUNT TO MAXIMUM AGGREGATE MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED OFFERING PRICE OFFERING PRICE(1) REGISTRATION FEE(2)
- ------------------------------------------------------------------------------------------------------
% Senior Notes due
2003................... $85,000,000 100% $85,000,000 $29,310
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 under the Securities Act of 1933.
(2) The Company previously paid $29,187 of this registration fee.
---------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933, OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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MUZAK LIMITED PARTNERSHIP
MUZAK CAPITAL CORPORATION
CROSS REFERENCE SHEET
PURSUANT TO ITEM 501(B) OF REGULATION S-K
REGISTRATION STATEMENT ITEM NUMBER AND HEADING CAPTION OR LOCATION IN PROSPECTUS
1. Forepart of Registration Statement and Outside
Front Cover Page of Prospectus................. Outside Front Cover Page
2. Inside Front and Outside Back Cover Pages of
Prospectus..................................... Inside Front Cover Page;
Available Information;
Outside Back Cover Page
3. Summary Information, Risk Factors and Ratio of
Earnings to Fixed Charges...................... Outside Front Cover Page;
Prospectus Summary; Risk
Factors; The Issuers;
Unaudited Pro Forma
Financial Information;
Selected Financial Data
4. Use of Proceeds................................. Prospectus Summary; Use of
Proceeds
5. Determination of Offering Price................. Not Applicable
6. Dilution........................................ Not Applicable
7. Selling Security Holders........................ Not Applicable
8. Plan of Distribution............................ Outside Front Cover Page;
Underwriting
9. Description of Securities to be Registered...... Outside Front Cover Page;
Prospectus Summary; Description
of the Senior Notes; Federal
Income Tax Consequences
10. Interests of Named Experts and Counsel.......... Legal Matters; Experts
11. Information with Respect to the Registrants..... Outside Front Cover Page;
Prospectus Summary; Risk
Factors; The Issuers; Use of
Proceeds; Capitalization;
Unaudited Pro Forma Financial
Information; Selected Financial
Data; Management's Discussion
and Analysis of Financial
Condition and Results of
Operations; Business;
Management; Certain
Relationships and Related
Transactions; Security Ownership
of Certain Beneficial Owners;
Description of the Partnership
Agreement; Index to Financial
Statements; Financial Statements
12. Disclosure of Commission Position on
Indemnification for Securities Act
Liabilities.................................... Not Applicable
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED AUGUST 28, 1996
, 1996
$85,000,000
[LOGO OF MUKAK APPEARS HERE]
MUZAK LIMITED PARTNERSHIP
MUZAK CAPITAL CORPORATION
% SENIOR NOTES DUE 2003
The % Senior Notes due 2003 (the "Senior Notes") are being offered (the
"Offering") by Muzak Limited Partnership, a Delaware limited partnership (the
"Company"), and Muzak Capital Corporation, a Delaware corporation ("Capital
Corp.", and together with the Company, the "Issuers"). The Senior Notes are the
joint and several obligations of the Issuers. Capital Corp. is a wholly-owned
subsidiary of the Company. The Company will receive all of the net proceeds of
the Offering.
Interest on the Senior Notes is payable semi-annually in cash on and
of each year, commencing , 1997. The Senior Notes will be redeemable
at the option of the Issuers, in whole or in part, at any time after , 2000,
in cash at the redemption prices set forth herein, plus accrued and unpaid
interest, if any, thereon to the date of redemption. In addition, during the
first 36 months after the date of this Prospectus, the Issuers may on any one
or more occasions redeem up to 35% of the initially outstanding aggregate
principal amount of Senior Notes at a redemption price equal to % of the
principal amount thereof, plus accrued and unpaid interest, if any, thereon to
the redemption date, with the net proceeds of one or more equity offerings of
the Issuers; provided that at least 65% of the initially outstanding aggregate
principal amount of Senior Notes remains outstanding immediately after the
occurrence of any such redemption. See "Description of the Senior Notes--
Optional Redemption." In addition, upon the occurrence of a Change of Control
(as defined herein), each holder of Senior Notes will have the right to require
the Issuers to repurchase all or any part of such holder's Senior Notes at an
offer price in cash equal to 101% of the aggregate principal amount thereof,
plus accrued and unpaid interest, if any, thereon to the date of purchase. See
"Description of the Senior Notes--Repurchase at the Option of Holders--Change
of Control." There can be no assurance that, in the event of a Change of
Control, the Issuers would have sufficient funds to purchase all Senior Notes
tendered. See "Risk Factors--Risk of Inability to Satisfy Change of Control
Offer."
The Senior Notes will represent unsecured senior obligations of the Issuers,
will rank senior in right of payment to all Subordinated Indebtedness (as
defined herein) of the Issuers and will rank pari passu in right of payment
with all senior indebtedness of the Issuers. At June 30, 1996, on a pro forma
basis after giving effect to the Offering and the application of the estimated
net proceeds therefrom, the Issuers would have had approximately $1.1 million
of total indebtedness, other than the Senior Notes. The Senior Notes will be
guaranteed on a senior basis by all future Domestic Subsidiaries (as defined
herein) of the Company (other than Capital Corp.). As of the date hereof, the
Company has no subsidiaries other than Capital Corp. The Indenture (as defined
herein) will limit the ability of the Issuers and their subsidiaries to incur
additional indebtedness; however, the Issuers and their subsidiaries will be
permitted to incur certain indebtedness, which may be secured. See "Description
of the Senior Notes--General" and "--Certain Covenants."
The Issuers do not intend to list the Senior Notes on any national securities
exchange or include the Senior Notes for quotation through an inter-dealer
quotation system. Although the Underwriters have indicated that they presently
intend to make a market in the Senior Notes, there can be no assurance that any
market for the Senior Notes will develop or, if any such market develops, that
it would continue to exist. Such market-making activities may be discontinued
at any time. See "Risk Factors--Absence of Public Market; Illiquidity; Market
Value."
SEE "RISK FACTORS" BEGINNING ON PAGE 9 FOR A DISCUSSION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED IN CONNECTION WITH AN INVESTMENT IN THE SENIOR NOTES.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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PRICE UNDERWRITING PROCEEDS
TO THE DISCOUNTS AND TO THE
PUBLIC (1) COMMISSIONS (2) COMPANY (3)
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Per Senior Note......................... % % %
Total................................... $ $ $
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(1) Plus accrued interest, if any, from the date of issuance.
(2) The Issuers have agreed to indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933, as
amended. See "Underwriting."
(3) Before deducting expenses of the Offering payable by the Issuers estimated
at $ .
The Senior Notes are being offered by the several Underwriters, subject to
prior sale, when, as and if delivered to and accepted by the Underwriters, and
subject to various conditions, including the right of the Underwriters to
reject any order in whole or in part. It is expected that delivery of the
Senior Notes will be made in New York, New York on or about , 1996.
DONALDSON, LUFKIN & JENRETTE LAZARD FRERES & CO. LLC
SECURITIES CORPORATION
[GRAPHICS TO BE SUPPLIED]
IN CONNECTION WITH THE OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SENIOR NOTES
OFFERED HEREBY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
2
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information and financial statements, including the notes thereto, appearing
elsewhere in this Prospectus. Unless the context otherwise requires, all
references to the "Company" include Muzak Limited Partnership and its
consolidated subsidiary, Muzak Capital Corporation ("Capital Corp.").
THE COMPANY
The Company is the leading provider of business music in the United States,
based on the number of customer locations served. The Company and its
franchisees serve approximately 180,000 customer locations in the United
States, representing a market share of approximately 50% of the estimated
number of domestic locations currently served by business music providers and
approximately twice the estimated number of locations served by its nearest
competitor. Through a network of distributors, the Company also provides
business music to subscribers outside the United States. In addition, the
Company offers its customers a range of non-music services, including broadcast
data delivery, video, audio marketing and in-store advertising services, and
sells, installs and services related equipment.
The Company markets business music in a variety of formats, including (i) its
well-known proprietary Environmental Music(R) (or "background" music) and (ii)
over 100 "foreground" music formats ranging from top-of-the-charts hits to
contemporary jazz, country music and classical music. Internal and third-party
studies sponsored by the Company have indicated that properly programmed music
can have a favorable impact on listeners in business and retail environments.
The broadcasting of music, including the rebroadcasting of commercial music, in
such locations is not permitted without licenses and the payment of royalties.
Environmental Music(R), which is principally comprised of instrumental versions
of popular songs that have been adapted and rerecorded by the Company, is
generally used in business offices and manufacturing facilities to improve
employee concentration and reduce stress. Foreground music, consisting
principally of original artist recordings, is most commonly used in public
areas, such as restaurants and retail establishments, primarily as a sales
enhancement tool. The Company distributes 30 of its channels by broadcast media
(principally direct broadcast satellite ("DBS") transmission) and supplies the
balance to subscribers in the form of long-playing audio tapes.
Since 1991, the total number of domestic customer locations served by the
Company and its franchisees has grown from 134,000 to 180,000, with the number
of domestic customer locations served by the Company, growing from
approximately 32,000 to approximately 62,000 and the number of domestic
customer locations served by the Company's franchisees, growing from
approximately 102,000 to approximately 118,000. Over the same period, the
Company's total revenues and earnings before interest, taxes, depreciation,
amortization and other income/expense ("EBITDA") have grown from $56.0 million
and $12.6 million in 1991, respectively, to $86.9 million and $20.0 million in
1995, respectively.
COMPETITIVE STRENGTHS
The Company believes that it possesses a number of attributes that have
allowed it to become the leading provider of business music in the nation
(based on number of customer locations served), including:
Broad Appeal to Diverse Customer Base. The Company's music products have been
programmed to appeal to a variety of end users, including business offices,
manufacturing facilities, retail establishments and restaurants. The Company's
salesforce markets over 100 different music formats, allowing each customer to
select a format appropriate for its line of business and customer base. The
Company's major national customers include national restaurant chains, such as
Taco Bell, McDonald's and Boston Market, and specialty retailers, such as
Nordstrom, Crate & Barrel, Kroger, Staples, Hallmark and Wal-Mart, as well as a
large number of local and regional accounts, none of which represents more than
3% of the Company's consolidated revenues and the top five of which represent
in the aggregate less than 10% of consolidated revenues. The Company believes
that the geographic dispersion of its customers, and the diversity of
businesses in which they are engaged minimizes the impact to the Company of a
cyclical downturn in any one area of the country or in any one sector of the
economy.
3
Attractive Economics to Customers and the Company. The Company believes that
its services are highly cost effective, providing an important business tool to
its customers for a low monthly cost. On average, the Company receives
approximately $45 of revenue per month per subscriber location, net of
licensing fee and applicable royalties, for which it makes an investment per
subscriber location (including sales commission) of approximately $950 for
medium-powered DBS subscribers (substantially lower for local broadcast
technology subscribers). This allows the Company to recover its capital costs
within two years. The Company's customers typically enter into long-term
contracts, which are generally for a period of five years with an automatic
renewal option. The Company's annual cancellation rate is less than 10% of
music and other business services revenues, which equates to an average length
of service per customer of approximately eleven years.
Full Line of Audio, Video and Data Products and Services. The Company can
provide its customers with an integrated package of services including: (i)
over 100 different music formats including both background and foreground
music; (ii) customized audio messages inserted in regular programming; (iii) e-
mail and computer bulk data transfer; (iv) on-premise music videos; (v)
customized messages for use with "on-hold" business telephone systems; and (vi)
"point of purchase" audio advertising and merchandising services. The ability
to deliver a package of music and non-music services over a common transmission
system has been a critical factor in enabling the Company to generate
incremental revenues from its customers at little or no additional cost, gain
new customers and protect existing customers from competitive business music
providers that do not offer such a broad line of products and services.
Multiple Delivery Systems. The Company believes that its ability to
distribute its services through each of high-powered and medium-powered DBS
transmission, local radio broadcast transmission, telephone lines and audio
tapes enables it to effectively serve customers with either single or multiple
locations as well as those having varied music or service needs. The number of
domestic subscriber locations served by medium-powered DBS transmission has
grown from approximately 26,000 at the end of 1991 to approximately 120,000 at
June 30, 1996. In addition, the Company has recently entered into a unique
distribution arrangement with EchoStar Satellite Corporation ("EchoStar"). The
Company anticipates that its agreements with EchoStar will enable it to: (i)
attract additional business music subscribers by offering an expanded array of
DBS-delivered music programming; (ii) deliver music services to residential
subscribers for the first time; and (iii) deliver television programming, such
as CNN(R), MTV(R) and ESPN(R), to business music subscribers in packages
specifically designed for businesses (i.e., news, entertainment or lifestyles).
In addition, the EchoStar agreements provide the Company with high-powered DBS
transmission capability to supplement its existing medium-powered DBS system,
reduced equipment installation costs and an opportunity to shift certain
equipment costs to the subscriber.
Integrated Sales Network. The Company believes that its 35 sales offices in
the United States, its 81 franchisees, whose sales territories cover the
remaining market in the United States, and its 20 international distributors in
15 foreign countries, comprise the largest network of customer sales and
service offices among business music providers in the United States. The
Company further believes that this network allows the Company, among other
things, to more effectively market to and support its national and
international accounts.
OPERATING STRATEGY
The Company believes it has opportunities to achieve growth in revenues and
cash flow by:
Increasing U.S. Market Penetration. The Company intends to increase its
penetration of the U.S. market by expanding its local and national account
sales force, offering more music formats (including up to 60 broadcast formats
with the EchoStar agreements), developing sales strategies focused on
underserved market segments and aggressively marketing its services as part of
a unique bundled package. 1993 census data indicate that there are
approximately 6.4 million business locations in the United States, including
approximately 1.1 million retail outlets and 450,000 restaurant and other food
service locations. Of the total 6.4 million business locations, only about 5%
are currently believed by the Company to subscribe to a business music service.
4
Pursuing Strategic Relationships and Acquisitions. The Company intends to
pursue additional strategic relationships, acquisitions and joint ventures,
such as the Company's recent distribution agreements with EchoStar and its 1994
acquisition of the assets of Comcast Sound Communications Inc. ("Comcast"),
then the Company's largest franchisee, in order to: (i) increase the breadth of
its programming offerings; (ii) further diversify its distribution channels;
and (iii) take advantage of certain economies of scale.
Expanding in International Markets. The Company plans to continue its
expansion in Europe primarily through strategic relationships and joint
ventures, such as Muzak Europe B.V. ("Muzak Europe"), a joint venture formed in
1995 between the Company and Alcas Holdings B.V. ("Alcas"), a leading European
business music provider. This joint venture couples the Company's broadcast
technology skills with Alcas' market knowledge and marketing expertise and
further permits the Company to leverage its assets and programming expertise
and diversify its sources of revenue. The Company also intends to expand into
Latin America and Asia by establishing similar strategic relationships in those
markets.
Exploiting New Market Opportunities. The Company intends to continue to
leverage its music programming expertise and its extensive recorded music
library into new products and markets. For example, the Company has recently
developed and begun operating its proprietary MusicServer (SM) service, which
permits real-time delivery of digitized song samples over the Internet to music
retailers and others (including companies such as CDnow!, Tower Records and
Microsoft) that require access to a large library of recorded music.
Enhancing Operating Margins. The Company seeks to enhance operating margins
through continued centralization of operations and leveraging fixed expenses
over a wider customer base. The Company strives to exploit less costly
transmission technologies and to reduce the capital required to initiate
service to a customer.
The Company was formed in September 1992 by Centre Capital Investors L.P.
("CCI"), a private investment partnership of which Centre Partners L.P.
("Centre Partners") is the general partner, to acquire substantially all of the
assets and business of the Company (the "1992 Acquisition") from a predecessor
entity (the "Predecessor"). MLP Holdings L.P. ("MLP"), an affiliate of CCI, and
the Management Investors (as defined herein), beneficially own approximately
62.9% and 9.7%, respectively, of the outstanding partnership interests of the
Company. Capital Corp., a Delaware corporation, is acting as co-obligor for the
Senior Notes. Capital Corp. is a wholly-owned subsidiary of the Company which
has nominal assets and will not conduct any operations. Certain institutional
investors that might otherwise be limited in their ability to invest in
securities offered by partnerships by reason of the investment laws of their
states of organization or their charter documents may be able to invest in the
Senior Notes because Capital Corp. is a corporation. A portion of the net
proceeds from the Offering will be used to retire indebtedness incurred in the
1992 Acquisition.
THE OFFERING
Securities Offered... $85,000,000 in aggregate principal amount of %
Senior Notes due 2003 (the "Senior Notes").
Maturity Date........ , 2003.
Interest Payment Dates.... and of each year, commencing , 1997.
Optional Redemption....... The Senior Notes will be redeemable at the option
of the Issuers, in whole or in part, at any time
after , 2000, in cash at the redemption prices
set forth herein, plus accrued and unpaid interest,
if any, thereon to the date of redemption. In addi-
tion, during the first 36 months after the date of
this Prospectus, the Issuers may on any one or more
occasions redeem up to 35% of the initially out-
standing aggregate principal amount of Senior Notes
at a redemption price equal to % of the principal
amount thereof, plus accrued and unpaid interest,
if any, thereon to the redemption date, with the
net proceeds of one or more equity offerings of the
Issuers; provided that at least 65% of the
5
initially outstanding aggregate principal amount of
Senior Notes remain outstanding immediately after
the occurrence of any such redemption. See "De-
scription of the Senior Notes--Optional Redemp-
tion."
Change of Control.... Upon the occurrence of a Change of Control, each
holder of Senior Notes will have the right to re-
quire the Issuers to repurchase all or any part of
such holder's Senior Notes at an offer price in
cash equal to 101% of the aggregate principal
amount thereof, plus accrued and unpaid interest,
if any, thereon to the date of purchase. See "De-
scription of the Senior Notes--Repurchase at the
Option of Holders--Change of Control." There can be
no assurance that, in the event of a Change of Con-
trol, the Issuers would have sufficient funds to
purchase all Senior Notes tendered. See "Risk Fac-
tors--Risk of Inability to Satisfy Change of Con-
trol Offer."
Ranking.............. The Senior Notes will represent unsecured senior
obligations of the Issuers, will rank senior in
right of payment to all Subordinated Indebtedness
of the Issuers and will rank pari passu in right of
payment with all senior indebtedness of the Is-
suers. At June 30, 1996, on a pro forma basis after
giving effect to the Offering and the application
of the estimated net proceeds therefrom, the Is-
suers would have had approximately $1.1 million of
total indebtedness, other than the Senior Notes.
The Senior Notes will be guaranteed on a senior ba-
sis by all future Domestic Subsidiaries of the Com-
pany (other than Capital Corp.). As of the date
hereof, the Company has no subsidiaries other than
Capital Corp. The Indenture will limit the ability
of the Issuers and their subsidiaries to incur ad-
ditional indebtedness; however, the Issuers and
their subsidiaries will be permitted to incur cer-
tain indebtedness, which may be secured. See "De-
scription of the Senior Notes" and "--Certain Cove-
nants."
Certain Covenants.... The Indenture will contain certain covenants that
will limit, among other things, the ability of the
Issuers and their subsidiaries to (i) pay dividends
or make certain other restricted payments or in-
vestments, (ii) incur additional indebtedness or
issue preferred equity interests, (iii) merge, con-
solidate or sell all or substantially all of their
assets, (iv) create liens on assets, (v) enter into
certain transactions with affiliates or related
persons and (vi) engage in other lines of business.
See "Description of the Senior Notes--Certain Cove-
nants."
Use of Proceeds...... The net proceeds from the sale of the Senior Notes
are estimated to be approximately $82.0 million
(after deducting underwriting discounts and esti-
mated expenses of the Offering) and will be used:
(i) to repay approximately $49.2 million of secured
indebtedness outstanding under the Company's exist-
ing credit facility; (ii) to repay approximately
$12.5 million of subordinated indebtedness incurred
in connection with the 1992 Acquisition; and (iii)
for general corporate purposes.
RISK FACTORS
SEE "RISK FACTORS" BEGINNING ON PAGE 9 FOR A DISCUSSION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED IN CONNECTION WITH AN INVESTMENT IN THE SENIOR NOTES.
6
SUMMARY FINANCIAL DATA
(DOLLARS IN THOUSANDS)
SIX-MONTH PERIOD
YEAR ENDED DECEMBER 31, ENDED JUNE 30,
---------------------------- ------------------
1993 1994(1) 1995 1995 1996
STATEMENTS OF OPERATIONS
DATA:
Revenues:
Music and other business
services.................. $ 36,800 $ 50,410 $ 52,489 $ 25,916 $ 26,977
Equipment and related
services.................. 21,741 33,006 34,392 16,646 15,179
-------- -------- -------- -------- --------
Total revenues........... 58,541 83,416 86,881 42,562 42,156
-------- -------- -------- -------- --------
Cost of revenues:
Music and other business
services.................. 10,611 13,685 14,465 7,063 7,501
Equipment and related
services.................. 16,756 23,413 23,895 11,465 10,303
-------- -------- -------- -------- --------
Total cost of revenues... 27,367 37,098 38,360 18,528 17,804
-------- -------- -------- -------- --------
Gross profit................ 31,174 46,318 48,521 24,034 24,352
Selling, general and
administrative expenses.... 19,603 28,699 28,496 14,628 15,107
Depreciation................ 4,349 8,211 9,382 4,669 5,155
Amortization................ 6,942 9,622 8,909 4,443 4,463
-------- -------- -------- -------- --------
Operating income (loss)..... 280 (214) 1,734 294 (373)
Interest expense............ 3,785 6,990 7,483 3,791 3,574
Other (income) expense,
net........................ (30) (21) (35) (42) 228
-------- -------- -------- -------- --------
Net income (loss)........... ($ 3,475) ($ 7,183) ($ 5,714) ($ 3,455) ($ 4,175)
======== ======== ======== ======== ========
OTHER INFORMATION:
Gross profit margin(2)...... 53.3% 55.5% 55.8% 56.5% 57.8%
EBITDA(3)................... $ 11,571 $ 17,619 $ 20,025 $ 9,406 $ 9,245
Capital expenditures(4)..... 8,235 13,804 12,757 6,043 7,416
Estimated number of domestic
customer locations:
Company.................. 33,000 56,000 60,000 58,000 62,000
Franchisees.............. 116,000 103,000 111,000 107,000 118,000
-------- -------- -------- -------- --------
Total................... 149,000 159,000 171,000 165,000 180,000
======== ======== ======== ======== ========
Estimated number of domestic
DBS customer locations:
Company.................. 12,000 29,000 35,000 32,000 38,000
Franchisees.............. 49,000 55,000 72,000 64,000 82,000
-------- -------- -------- -------- --------
Total................... 61,000 84,000 107,000 96,000 120,000
======== ======== ======== ======== ========
PRO FORMA INFORMATION:(5)
Total interest expense(6)... -- -- $ 7,337 -- $ 3,610
Ratio of EBITDA to total in-
terest expense(6).......... -- -- 2.73x -- 2.56x
AT JUNE 30, 1996
--------------------
AS
ACTUAL ADJUSTED(7)
BALANCE SHEET DATA:
Cash and cash equivalents................................. $ 3,239 $ 23,490
Total assets.............................................. 95,358 116,037
Total long-term obligations, including current portion.... 50,672 86,085
Redeemable preferred partnership interests................ 16,265 16,265
Partners' deficit......................................... (3,200) (7,184)
Ratio of net debt to LTM EBITDA(8)........................ -- 3.15x
(footnotes on following page)
7
(footnotes to table on preceding page)
- --------------------
(1) Includes the results of Comcast since January 31, 1994. See "Management's
Discussion and Analysis of Financial Condition and Results of Operations."
(2) Gross profit margin represents gross profit as a percentage of total
revenues.
(3) EBITDA represents earnings before interest expense, income taxes,
depreciation, amortization and other income/expense. EBITDA does not
represent and should not be considered as an alternative to net income or
cash flow from operations as determined by generally accepted accounting
principles. The Company, however, believes that EBITDA provides useful
information regarding a company's ability to service and/or incur
indebtedness.
(4) Includes additions to property and equipment and additions to deferred
costs and intangible assets.
(5) Gives pro forma effect to the Offering and the application of $61.7 million
of the net proceeds therefrom to repay existing indebtedness as if the
Offering had taken place on January 1, 1995.
(6) Total interest expense consists of cash interest expense on the Senior
Notes at an assumed rate of 11% plus the amortization of deferred debt
issuance costs. Pro forma total interest expense gives effect to the
issuance of the Senior Notes only to the extent that the proceeds therefrom
are used to repay existing indebtedness. Giving effect to the full amount
of the Senior Notes, cash interest expense would have been $9.4 million and
$4.7 million, and the ratio of EBITDA to cash interest expense would have
been 2.14x and 1.98x, for the year ended December 31, 1995, and the six-
month period ended June 30, 1996, respectively.
(7) As adjusted to give effect to the Offering and the application of the net
proceeds therefrom as if the Offering had taken place on June 30, 1996.
(8) For purposes of calculating the ratio of net debt to LTM EBITDA, net debt
is defined as total long-term obligations (including the current portion
thereof) less cash and cash equivalents, and LTM EBITDA is defined as
EBITDA for the twelve months ended June 30, 1996.
8
RISK FACTORS
Prospective investors should carefully consider the following factors, in
addition to the other information contained in this Prospectus, before
deciding whether to make an investment in the Senior Notes offered hereby.
SUBSTANTIAL LEVERAGE
The Company is, and after the consummation of the Offering will continue to
be, highly leveraged. After giving effect to the Offering and the use of
proceeds therefrom, on an as adjusted basis, the Company will have total long-
term indebtedness (excluding the current portion thereof), of approximately
$85.7 million and a ratio of total long-term indebtedness to total
capitalization of 90.4% at June 30, 1996 (as if the Offering and such use of
proceeds had occurred on such date). The Indenture will permit the Company and
its subsidiaries to incur certain specified additional indebtedness.
The Company currently incurs, and after the consummation of the Offering
will continue to incur, significant annual cash interest expense in connection
with its obligations under its long-term indebtedness. As a result of the
Offering, total interest expense would have increased from $3.6 million for
the six-month period ended June 30, 1996, to $4.8 million on a pro forma basis
(giving full effect to the issuance of the Senior Notes), for the six months
ended June 30, 1996, due primarily to the increase in overall debt levels as
well as substitution of long-term fixed-rate debt for high-rate subordinated
debt and the floating-rate debt under the Company's existing senior secured
credit facility.
The degree to which the Company is leveraged could have important
consequences to holders of the Senior Notes, including, but not limited to,
the following: (i) the Company's ability to obtain additional financing in the
future for working capital, capital expenditures, acquisitions, general
corporate purposes or other purposes will be restricted; (ii) a significant
portion of the Company's cash flow from operations must be dedicated to the
payment of principal and interest on its indebtedness, thereby reducing the
funds available to the Company for its operations; and (iii) such indebtedness
contains financial and restrictive covenants, the failure to comply with which
may result in an event of default which, if not cured or waived, could have a
material adverse effect on the Company. See "Management's Discussion and
Analysis of Financial Condition and Results of Operations--Liquidity and
Capital Resources."
RANKING; UNSECURED STATUS OF THE SENIOR NOTES
The Senior Notes will represent unsecured senior obligations of the Issuers,
will rank senior in right of payment to all Subordinated Indebtedness of the
Issuers and will rank pari passu in right of payment with all senior
indebtedness of the Issuers. At June 30, 1996, on a pro forma basis after
giving effect to the Offering and the application of the estimated net
proceeds therefrom, the Issuers would have had approximately $1.1 million of
total indebtedness, other than the Senior Notes. The Senior Notes will be
guaranteed on a senior basis by all future Domestic Subsidiaries of the
Company (other than Capital Corp.). As of the date hereof, the Company has no
subsidiaries other than Capital Corp. The Indenture will limit the ability of
the Issuers and their subsidiaries to incur additional indebtedness; however,
the Issuers and their subsidiaries will be permitted to incur certain
indebtedness, which may be secured. See "Description of the Senior Notes" and
"--Certain Covenants." In the event of a bankruptcy, liquidation or
reorganization of the Company of any default in the payment of any
indebtedness under any senior secured credit facility or other secured
indebtedness, holders of such secured indebtedness will be entitled to payment
in full from the proceeds of all assets of the Company pledged to secure such
indebtedness prior to any payment of such proceeds to holders of the Senior
Notes. Consequently, there can be no assurance that the Company will have
sufficient funds to make payments to holders of the Senior Notes. See
"Description of the Senior Notes."
RISK OF INABILITY TO SATISFY CHANGE OF CONTROL OFFER
Upon the occurrence of a Change of Control, each holder of Senior Notes will
have the right to require the Issuers to repurchase all or any part of such
holder's Senior Notes at an offer price in cash equal to 101% of the aggregate
principal amount thereof, plus accrued and unpaid interest, if any, thereon to
the date of purchase.
9
There can be no assurance that the Issuers will have the funds necessary to
effect such a purchase if such an event were to occur. In the event a Change
of Control occurs at a time when the Issuers are unable to purchase the Notes,
the Issuers could seek to refinance the Notes. If the Issuers are unsuccessful
in refinancing the Notes, the Issuers' failure to purchase tendered Notes
would constitute an Event of Default under the Indenture. See "Description of
the Senior Notes--Repurchase at the Option of Holders--Change of Control."
NET LOSSES FROM OPERATIONS; WORKING CAPITAL DEFICIT
The Company had net losses from operations of approximately $3.5 million,
$7.2 million and $5.7 million for the years ended December 31, 1993, 1994 and
1995, respectively, and $3.5 million and $4.2 million for the six-month
periods ended June 30, 1995 and 1996, respectively. During these periods, the
Company was highly leveraged and these losses resulted primarily from interest
payments on acquisition financing, accelerated amortization of income-
producing contracts acquired through acquisitions and other related
acquisition and financing costs. The Company anticipates a net loss from
operations for the year ended December 31, 1996. There can be no assurance
that the Company will not continue to incur net losses from operations. As of
June 30, 1996, the Company had a working capital deficit of $12.1 million.
There can be no assurance that the Company will not experience working capital
deficits in the future. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations--General."
DEPENDENCE ON SATELLITE DELIVERY CAPABILITIES
There are a limited number of satellites with orbital positions suitable for
DBS transmission of the Company's signals and a limited number of available
transponders on those satellites. Satellite transponders receive signals,
translate signal frequencies and transmit signals to receiving satellite dish
antennas. The Company leases transponder capacity from Microspace
Communications Corporation ("Microspace"), which also provides facilities for
uplink transmission of the Company's medium-powered DBS signals to the
transponders. Microspace, in turn, leases its transponder capacity on
satellites operated by third parties, including the Galaxy IV satellite
operated by Hughes Communications Galaxy Inc. ("Hughes") through which a
majority of the Company's DBS signals are transmitted. The term of the
Company's principal transponder lease with Microspace for the Galaxy IV
satellite runs through the life of that satellite (which is expected to
continue through 2004). Although there has never been sustained interruption
of the Company's DBS signals due to transponder failure or satellite
unavailability, failure or loss, no assurance can be given that any such event
will not occur in the future. If such an event were to occur or if Microspace
were unable to provide transponder services to the Company, the Company would
have to seek alternative transponder or satellite facilities. However,
alternative facilities may not be available on a timely or cost-effective
basis, may be available only on a satellite that is not positioned as
favorably as the Company's current satellites or may require a change in the
frequency currently used to transmit the Company's signal. Any one or more of
these events would require the Company to incur additional expenditures and
could degrade the Company's ability to serve its customer base and have a
material adverse effect on the Company's financial condition and results of
operations. If the Company is required to enter into new transponder lease
agreements, no assurance can be given that it will be able to do so on terms
as favorable as those in its current agreements with Microspace. See
"Business--Business Music Services."
DEPENDENCE ON ECHOSTAR AND ITS SATELLITES
In December 1995, the Company entered into several agreements with EchoStar,
a high-powered DBS home television service provider. Through these agreements,
the Company furnishes EchoStar with 30 channels of digital music programming,
of which 27 channels have begun to be distributed in stereo to EchoStar's
residential subscribers. The Company has only recently begun providing
services via EchoStar. There can be no assurance that either EchoStar's
business or the Company's relationship with EchoStar will be successful. In
addition, the Company's ability to expand its music services through the
EchoStar satellite system is subject to EchoStar's ability to launch a second
high-powered direct broadcast satellite by December 31, 1997, or, if a second
satellite
10
is not launched by that date, EchoStar's willingness to allocate transponder
capacity to the Company on EchoStar's first satellite. Launch of the second
EchoStar satellite is currently scheduled for September 1996, but there can be
no assurance that this launch will be timely or successful. The Company is
obligated to pay certain fees, rents and royalties to EchoStar in connection
with these agreements. Any business failure of EchoStar, breach by EchoStar of
its agreements with the Company or failure by the Company to satisfy its
obligations to EchoStar, or any loss, failure or malfunction of the EchoStar
satellite system could impair the Company's ability to serve customers through
the EchoStar system. See "Business--EchoStar Agreements."
UNPROVEN CAPABILITIES OF NEW SERVICES
The Company's operating strategy includes developing new services and
technologies to complement and expand its existing technologies and services.
This strategy presents risks inherent in assessing the value, strengths and
weaknesses of development opportunities, in evaluating the costs and uncertain
returns of new services and in integrating and managing new technologies.
Within these new markets, the Company will encounter technical, financial and
operating challenges, including competition from a variety of sources. There
can be no assurance that the Company will successfully develop new services or
that any new service will achieve market acceptance and generate additional
revenues or earnings for the Company.
The Company has recently started providing its Internet MusicServer (SM)
service, which permits music retailers and others to offer visitors to their
websites access to digitized 30-second samples from recordings in the
Company's library of recorded songs. At present, the economic viability of
Internet-based technologies, including the Company's Internet service, cannot
be ascertained. There is no assurance that music sampling on the Internet will
increase sales of compact discs, that extensive music-related content and
sales will be provided over the Internet or that any other service that the
Company may develop will achieve market acceptance. There can also be no
assurance that the Internet will be able to support the high bandwidth
required for multimedia services, such as the MusicServer(SM) service. There are
also relatively limited barriers to entry to the Internet music-sampling
business, so that competition in the market may increase, and it is not
certain that the Company will be able to compete effectively with competitive
services on the Internet. There is also a risk that the record companies that
own the copyrights to the music used in the MusicServer(SM) service will
restrict the use of music samples by third parties, such as the Company, or
will decide to enter the Internet-based music-sampling business directly. See
"Business--Internet Services."
COMPETITION; TECHNOLOGICAL CHANGE
The Company competes in the business music and business services markets
with many competitors. In providing its business services, such as broadcast
data delivery, video, audio marketing and in-store advertising services, the
Company competes with numerous companies using broadcast as well as other
delivery systems to provide similar business services. There are numerous
methods by which programming, such as the Company's business music, broadcast
data delivery, video, audio marketing and in-store advertising services, can
be delivered by existing and future competitors, including medium and high-
powered DBS, wireless cable and fiber optic cable and digital compression over
existing telephone lines. Many competitors or potential competitors with
access to these delivery technologies have substantially greater financial,
technical, personnel and other resources than the Company.
The communications, media and entertainment industries are undergoing
significant and rapid change, including strategic relationships and the
development of new services, delivery systems and interactive technologies.
Many other companies also offer DBS services and strategic relationships
between these companies and cable, telephone, media and other related
businesses may provide increased competition in the future using new systems
and technologies to deliver business music, business data and other similar
services. In addition, the recently enacted Telecommunications Act of 1996 may
increase competition in the markets in which the
11
Company operates. No assurance can be given that the Company will be able to
compete successfully with existing or potential new competitors using new
delivery methods and technologies, or that discoveries or improvements in the
communications, media and entertainment industries will not render obsolete
some or all of the technologies or delivery systems currently relied upon by
the Company. See "Business--Competition."
No assurance can be given that the Company will be able to compete
successfully with its existing or potential new competitors or to maintain or
increase its current market share, that it will be able to use, or compete
effectively with competitors that adopt, new delivery methods and
technologies, or that discoveries or improvements in the communications, media
and entertainment industries will not render obsolete some or all of the
technologies or delivery systems currently relied upon by the Company.
DEPENDENCE ON LICENSED RIGHTS; RISK OF INCREASED FEES
The Company and other business music providers license rights to rerecord
and distribute music from a variety of sources and pay royalties to
songwriters and publishers through contracts negotiated with performing rights
societies such as the American Society of Composers, Authors and Publishers
("ASCAP"), Broadcast Music, Inc. ("BMI") and the Society of European Stage
Authors and Composers ("SESAC"). The industry-wide agreement between business
music providers (including the Company) and ASCAP runs through 1999;
agreements with BMI and SESAC expired on December 31, 1993 and December 31,
1995, respectively, and new agreements are being negotiated. In 1995, the fees
paid by the Company to ASCAP, BMI and SESAC were approximately $2.6 million,
$946,000 and $7,000, respectively. The interim fee structure with BMI provides
for continued licensing at the 1993 payment levels. The BMI license extension
stipulates that any settlement of ongoing fees may include retroactivity to
January 1, 1994. If the fees paid by the Company to these licensors increase,
the Company's operating margin could be adversely affected, although the
Company does not believe that its liquidity or financial condition would be
materially adversely affected. See "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and "Business--Music Licenses."
RELIANCE ON KEY PERSONNEL
The Company is dependent on the continued services of its senior management
personnel. The Company has in effect a $4.0 million key man term life
insurance policy covering John R. Jester, the Company's President and Chief
Executive Officer, but there can be no assurance that the coverage provided by
such policy will be sufficient to compensate the Company for the loss of
Mr. Jester's services. The Company believes that the loss of any one member of
senior management would not have a material adverse effect upon the Company.
However, the loss of the services of more than one member of senior management
could have a material adverse effect upon the Company. See "Management."
CERTAIN BENEFITS TO PRINCIPAL OWNERS AND MANAGEMENT
The Company intends to use a portion of the net proceeds of the Offering to
repay approximately $49.2 million of indebtedness outstanding under the
Company's existing senior credit facility, which is secured by, among other
things, the interests in the Company held by MLP, and the Named Executive
Officers referred to in "Management--Executive Compensation," Wallace R.
Borgeson, Bruce B. Funkhouser, L. Dale Stewart, Jack D. Craig, Richard
Chaffee, Roger C. Fairchild, J. Gary Henderson, Susan P. Chetwin, Dino J.
DeRose, Daniel Lee Hart and Steven Tracy (the "Management Investors"), and
their respective affiliates.
RISKS OF ADVERSE EFFECTS OF GOVERNMENT REGULATION
The Company is subject to the regulatory authority of the U.S. government
and the governments of other countries in which it provides services to
subscribers. The business prospects of the Company could be adversely affected
by the adoption of new laws, policies or regulations that modify the present
regulatory environment. The Company currently provides music services in a few
areas in the United States through 928 to 960 megahertz
12
radio broadcast frequencies, which are transmission facilities licensed by the
Federal Communications Commission ("FCC"). Additionally, the radio frequencies
utilized by satellites on which the Company transmits its DBS services in the
United States are licensed by the FCC. If the FCC authorizations for any of
these satellites are revoked or are not extended, the Company would be
required to seek alternative satellite facilities. Laws, regulations and
policy, or changes therein, in other countries could adversely affect the
Company's existing services or restrict the growth of the Company's business
in these countries.
FRAUDULENT CONVEYANCE
Management believes that the indebtedness represented by the Senior Notes is
being incurred for proper purposes and in good faith, and that, based on
present forecasts, internal asset valuations and other financial information,
the Issuers are, and after the consummation of the Offering will be, solvent,
will have sufficient capital for carrying on their business and will be able
to pay their debts as they mature. Notwithstanding management's belief,
however, if a court of competent jurisdiction in a suit by an unpaid creditor
or a representative of creditors (such as a trustee in bankruptcy or a debtor-
in-possession) were to find that, at the time of the incurrence of such
indebtedness, the Issuers were insolvent, were rendered insolvent by reason of
such incurrence, were engaged in a business or transaction for which their
remaining assets constituted unreasonably small capital, intended to incur, or
believed that they would incur, debts beyond their ability to pay such debts
as they matured, or intended to hinder, delay or defraud their creditors, and
that the indebtedness was incurred for less than reasonably equivalent value,
then such court could, among other things, (a) void all or a portion of the
Issuers' obligations to the holders of the Senior Notes, the effect of which
would be that the holders of the Senior Notes might not be repaid in full,
and/or (b) subordinate the Issuers' obligations to the holders of the Senior
Notes to other existing and future indebtedness of the Issuers, the effect of
which would be to entitle such other creditors to paid in full before any
payment could be made on such Senior Notes.
ABSENCE OF PUBLIC MARKET; ILLIQUIDITY; MARKET VALUE
The Senior Notes will not be listed on any national securities exchange or
included for quotation through an inter-dealer quotation system. The Senior
Notes constitute new issues of securities with no established trading market.
Although the Underwriters have indicated that they presently intend to make a
market in the Senior Notes, there can be no assurance that a trading market
will develop or, if any such market develops, that it would continue to exist.
Such market-making may be discontinued at any time. Therefore, an investment
in the Senior Notes may be illiquid. In addition, the Senior Notes may trade
at a discount from their initial offering prices, depending upon prevailing
interest rates, the market for similar securities and other factors. All of
the foregoing may have an adverse effect on the market value of the Senior
Notes.
13
THE ISSUERS
The Company is the leading provider of business music in the United States,
based on the number of customer locations served. The Company also offers its
customers a range of non-music services, including broadcast data delivery,
video, audio marketing and in-store advertising services, and sells, installs
and services related equipment.
The Company was formed in September 1992 by CCI, a private investment
partnership of which Centre Partners is the general partner, in order to
effectuate the 1992 Acquisition. MLP, an affiliate of CCI, and the Management
Investors beneficially own approximately 62.9% and 9.7%, respectively, of the
outstanding partnership interests of the Company. Capital Corp., a Delaware
corporation, is acting as co-obligor for the Senior Notes. Capital Corp. is a
wholly-owned subsidiary of the Company which has nominal assets and will not
conduct any operations. Certain institutional investors that might otherwise
be limited in their ability to invest in securities offered by partnerships by
reason of the investment laws of their states of organization or their charter
documents may be able to invest in the Senior Notes because Capital Corp. is a
corporation. A portion of the net proceeds from the Offering will be used to
retire indebtedness incurred in the 1992 Acquisition. See "Use of Proceeds."
The Company's business was founded in 1934. The Issuers' principal executive
offices are located at 2901 Third Avenue, Suite 400, Seattle, Washington
98121, and their telephone number is (206) 633-3000.
USE OF PROCEEDS
The net proceeds to the Company from the Offering are estimated to be
approximately $82.0 million.
Of such proceeds, approximately $49.2 million will be used to repay
outstanding senior secured indebtedness payable in semi-annual installments
through January 2001 and bearing interest at an effective rate of 10.6% per
annum at June 30, 1996 and approximately $12.5 million will be used to repay
outstanding subordinated indebtedness bearing interest at an effective rate of
14.5% per annum and due in installments between September 2001 and September
2002. The balance of the net proceeds, approximately $20.3 million, will be
used for general corporate purposes, which may include working capital,
acquisitions or investment opportunities. The Company has no material
arrangement, commitment or understanding with respect thereto. Pending such
use, the balance of the proceeds will be invested in short-term investment
grade obligations as permitted by the Indenture.
14
CAPITALIZATION
The following table sets forth the cash and cash equivalents, short-term
debt and capitalization of the Company at June 30, 1996 and as adjusted to
give effect to the Offering. The information presented below should be read in
conjunction with the financial statements of the Company and the historical
and pro forma financial data included elsewhere in this Prospectus.
AT JUNE 30, 1996
-----------------------
(IN THOUSANDS)
ACTUAL AS ADJUSTED(1)
Cash and cash equivalents.............................. $ 3,239 $ 23,490
======= ========
Short-term borrowings and current portion of long-term
debt.................................................. $17,121 $ 391
======= ========
Long-term debt (excluding current portion):
Senior secured credit facility....................... $32,519 $ --
Senior Notes......................................... -- 85,000
14.5% subordinated indebtedness (net of unamortized
discount of $1,412)................................. 11,088 --
Other long-term debt................................. 694 694
------- --------
Total long-term debt (excluding current por-
tion)........................................... 44,301 85,694
------- --------
Redeemable preferred partnership interest.............. 16,265 16,265
------- --------
Partners' capital (deficit):
Limited interests.................................... 4,328 2,917
General interests.................................... (7,528) (10,101)
------- --------
Total partners' deficit.............................. (3,200) (7,184)
------- --------
Total capitalization............................. $57,366 $ 94,775
======= ========
- ---------------------
(1) Adjusted to reflect the Offering.
15
UNAUDITED PRO FORMA FINANCIAL INFORMATION
The following pro forma financial information sets forth historical
information which has been adjusted to reflect (i) the application of the net
proceeds of the Offering to repay $49.2 million of senior secured indebtedness
and $12.5 million of subordinated debt and (ii) a related reduction in
interest expense.
No effect has been given in the Statements of Operations Data to non-
recurring expenses for the year ended December 31, 1995 and six-month period
ended June 30, 1996 for (i) the write-off of $3,056,000 and $2,572,000,
respectively, of deferred financing costs and (ii) the write-off of $1,536,000
and $1,412,000, respectively, of unamortized discount, both of which are
associated with long-term obligations expected to be repaid with the proceeds
of the Offering.
The Unaudited Pro Forma Statements of Operations Data assumes that the
Offering took place on January 1, 1995, the beginning of the earliest period
presented. The Unaudited Balance Sheet Data assumes the Offering took place on
June 30, 1996. The pro forma information is based on certain assumptions and
estimates that management believes are reasonable in the circumstances and
does not purport to be indicative of the results which actually would have
been attained had the above transactions occurred at the dates indicated or
the results which may be attained in the future. This information should be
read in conjunction with the Company's audited financial statements and
related notes included elsewhere in this Prospectus.
YEAR ENDED SIX MONTHS ENDED
DECEMBER 31, 1995 JUNE 30, 1996
---------------------------- --------------------------
PRO FORMA PRO PRO FORMA PRO
ACTUAL ADJUSTMENTS FORMA ACTUAL ADJUSTMENTS FORMA
(DOLLARS IN THOUSANDS)
STATEMENTS OF OPERATIONS
DATA:
Total interest ex-
pense................ $7,483 ($146)(1) $ 7,337 $3,574 $36 (1) $3,610
Net income (loss)..... (5,714) 146 (5,568) (4,175) (36) (4,211)
OTHER INFORMATION:(2)
Total interest ex-
pense(1)............. $ 7,337 $3,610
Ratio of EBITDA to to-
tal interest
expense.............. 2.73x 2.56x
Ratio of earnings to
fixed charges(3)..... -- --
AT JUNE 30, 1996
----------------------------------
OFFERING
ACTUAL ADJUSTMENTS AS ADJUSTED
(DOLLARS IN THOUSANDS)
BALANCE SHEET DATA:
Cash and cash equivalents................. $ 3,239 $20,251 (4) $ 23,490
Total assets.............................. 95,358 20,679 (5) 116,037
Total long-term obligations, including
current portion.......................... 50,672 35,413 (6) 86,085
Redeemable preferred partnership inter-
ests..................................... 16,265 -- 16,265
Total partners' deficit................... (3,200) (3,984)(7) (7,184)
Ratio of net debt as adjusted to LTM
EBITDA(8)................................ 3.15x
- ---------------------
(1) Total interest expense consists of cash interest expense on the Senior
Notes at an assumed rate of 11% plus the amortization of deferred debt
issuance costs. Pro forma total interest expense gives effect to the
issuance of the Senior Notes only to the extent that the proceeds
therefrom are used to repay existing indebtedness.
16
Historical interest expense was adjusted as follows:
SIX MONTHS
YEAR ENDED ENDED
DECEMBER 31, JUNE 30,
1995 1996
Average principal balance refinanced by Senior Notes.. $62,800 $61,750
Stated interest rate.................................. 11% 11%
------- -------
6,908 3,396
Amortization of new deferred issuance costs........... 429 214
------- -------
Pro forma interest expense............................ 7,337 3,610
Less: actual interest expense and amortization of his-
torical financing fees............................... 7,483 3,574
------- -------
Net increase (decrease) in interest expense........... $ (146) $ 36
======= =======
Giving effect to the full amount of the Senior Notes, cash paid for interest
would have been $9.4 million and $4.7 million for the year ended December 31,
1995 and the six-month period ended June 30, 1996, respectively. Each 1/4%
change in the assumed interest rate on the Senior Notes would
increase/decrease pro forma total interest expense by $0.2 million.
(2) Gives pro forma effect to the Offering and the application of $61.7
million of the net proceeds therefrom to repay existing indebtedness as if
the Offering had taken place on January 1, 1995.
(3) For purposes of computing the ratio of earnings to fixed charges, earnings
include net loss attributable to general and limited partners, plus
redeemable preferred returns and interest expense, including that portion
of lease expense attributable to interest costs. Fixed charges consist of
preferred returns and interest expense, including that portion of lease
expense attributable to interest costs. On a pro forma basis, earnings
were insufficient to cover fixed charges by $6.6 million and $4.7 million
for the year ended December 31, 1995 and the six-month period ended June
30, 1996, respectively.
(4) Reflects the increase in cash and cash equivalents in an amount equal to
net proceeds in excess of refinanced debt calculated as follows:
Net proceeds................................................... $ 82,000
Less refinanced debt........................................... (61,749)
--------
Net increase in cash and cash equivalents.................... $ 20,251
========
(5) Reflects increase in total assets due to the following transactions:
Net increase in cash and cash equivalents....................... $20,251
Write-off of deferred financing fees on refinanced debt......... (2,572)
Deferred debt issuance cost on Senior Notes..................... 3,000
-------
Net increase in total assets.................................. $20,679
=======
(6) Reflects the increase in outstanding indebtedness as a result of the
Offering and the application of net proceeds therefrom:
Retirement of senior secured indebtedness..................... ($38,499)
Retirement of subordinated debt............................... (12,500)
Write-off of unamortized debt discount........................ 1,412
Issuance of Senior Notes...................................... 85,000
--------
Net increase in outstanding indebtedness.................... $35,413
========
(7) Reflects the write-off of deferred financing costs and unamortized debt
discount associated with the refinanced debt:
Write-off of deferred financing costs.......................... ($2,572)
Write-off of unamortized debt discount......................... (1,412)
-------
Net increase in partners' deficit............................ ($3,984)
=======
(8) For purposes of calculating the ratio of net debt to LTM EBITDA, net debt
is defined as total long-term obligations (including the current portion
thereof) less cash and cash equivalents and LTM EBITDA is defined as
EBITDA for the twelve months ended June 30, 1996.
17
SELECTED FINANCIAL DATA
The following table sets forth certain selected historical and financial and
operating data of the Company and the Predecessor as of the dates and for the
periods indicated. The following selected financial data are qualified by
reference to, and should be read in conjunction with, the financial statements,
related notes and other financial information included elsewhere in this
Prospectus as well as "Management's Discussion and Analysis of Financial
Condition and Results of Operations." The statements of operations data set
forth below for each of the three years in the period ended December 31, 1995
and the balance sheet data at December 31, 1994, and 1995 are derived from the
financial statements of the Company audited by Deloitte & Touche LLP,
independent auditors, which are included elsewhere in this Prospectus.
The statements of operations data for the year ended December 31, 1991, the
eight-month period ended August 31, 1992 and the four-month period ended
December 31, 1992 and the balance sheet data at of December 31, 1991, August
31, 1992, and December 31, 1992 and 1993 are derived from audited financial
statements of the Predecessor and the Company, respectively, which are not
included herein.
The statements of operations data for the six-month periods ended June 30,
1995 and 1996 and the balance sheet data as of June 30, 1996 are derived from
unaudited financial statements of the Company that, in the opinion of
management, reflect all adjustments, which are of a normal recurring nature,
necessary to present fairly the information set forth therein. The results for
the six-month period ended June 30, 1996 are not necessarily indicative of the
results that may be expected for any other interim period or for the full year.
The pro forma financial information is based on certain assumptions and
estimates that management believes are reasonable in the circumstances and does
not purport to be indicative of the results which actually would have been
attained had the transactions described in the Unaudited Pro Forma Financial
Information occurred at the dates indicated or the results which may be
attained in the future.
18
SELECTED FINANCIAL DATA
(DOLLARS IN THOUSANDS)
PREDECESSOR THE COMPANY
------------------ ----------------------------------------------------------
EIGHT FOUR
YEAR MONTHS MONTHS SIX MONTH PERIOD
ENDED ENDED ENDED YEAR ENDED DECEMBER 31, ENDED JUNE 30,
DEC. 31, AUG. 31, DEC. 31, ---------------------------- ------------------
1991 1992 1992 1993 1994(1) 1995 1995 1996
STATEMENTS OF OPERATIONS
DATA:
Revenues:
Music and other busi-
ness services......... $ 36,689 $ 23,771 $ 12,039 $ 36,800 $ 50,410 $ 52,489 $ 25,916 $ 26,977
Equipment and related
services.............. 19,318 12,102 6,602 21,741 33,006 34,392 16,646 15,179
-------- -------- -------- -------- -------- -------- -------- --------
Total revenues......... 56,007 35,873 18,641 58,541 83,416 86,881 42,562 42,156
-------- -------- -------- -------- -------- -------- -------- --------
Cost of revenues:
Music and other busi-
ness services......... 9,652 6,420 3,249 10,611 13,685 14,465 7,063 7,501
Equipment and related
services.............. 14,753 9,513 5,235 16,756 23,413 23,895 11,465 10,303
-------- -------- -------- -------- -------- -------- -------- --------
Total cost of reve-
nues.................. 24,405 15,933 8,484 27,367 37,098 38,360 18,528 17,804
-------- -------- -------- -------- -------- -------- -------- --------
Gross profit............ 31,602 19,940 10,157 31,174 46,318 48,521 24,034 24,352
Selling, general & ad-
ministrative expenses.. 19,009 14,230 5,846 19,603 28,699 28,496 14,628 15,107
Depreciation............ 8,187 3,990 1,349 4,349 8,211 9,382 4,669 5,155
Amortization............ 6,936 5,005 2,259 6,942 9,622 8,909 4,443 4,463
-------- -------- -------- -------- -------- -------- -------- --------
Operating income
(loss)................. (2,530) (3,285) 703 280 (214) 1,734 294 (373)
Interest expense........ 7,514 3,639 1,228 3,785 6,990 7,483 3,791 3,574
Other (income) expense,
net.................... (539) (949) (57) (30) (21) (35) (42) 228
-------- -------- -------- -------- -------- -------- -------- --------
Net income (loss)....... (9,505) (5,975) (468) (3,475) (7,183) (5,714) (3,455) (4,175)
Redeemable preferred re-
turns.................. -- -- (188) (572) (933) (1,029) (506) (543)
-------- -------- -------- -------- -------- -------- -------- --------
Net income (loss) at-
tributable to general
and limited partners... ($9,505) ($5,975) ($656) ($4,047) ($8,116) ($6,743) ($3,961) ($4,718)
======== ======== ======== ======== ======== ======== ======== ========
OTHER INFORMATION:
Gross profit margin(2).. 56.4% 55.6% 54.5% 53.3% 55.5% 55.8% 56.5% 57.8%
EBITDA(3)............... $ 12,593 $ 5,710 $ 4,311 $ 11,571 $ 17,619 $ 20,025 $ 9,406 $ 9,245
Capital expendi-
tures(4)............... 7,722 5,034 3,628 8,235 13,804 12,757 6,043 7,416
Ratio of earnings to
fixed charges(5)....... -- -- -- -- -- -- -- --
Estimated number of do-
mestic customer loca-
tions:
Company................ 32,000 32,000 32,000 33,000 56,000 60,000 58,000 62,000
Franchisees............ 102,000 104,000 112,000 116,000 103,000 111,000 107,000 118,000
-------- -------- -------- -------- -------- -------- -------- --------
Total................. 134,000 136,000 144,000 149,000 159,000 171,000 165,000 180,000
======== ======== ======== ======== ======== ======== ======== ========
Estimated number of do-
mestic DBS customer lo-
cations:
Company................ 5,000 7,000 8,000 12,000 29,000 35,000 32,000 38,000
Franchisees............ 21,000 31,000 36,000 49,000 55,000 72,000 64,000 82,000
-------- -------- -------- -------- -------- -------- -------- --------
Total................. 26,000 38,000 44,000 61,000 84,000 107,000 96,000 120,000
======== ======== ======== ======== ======== ======== ======== ========
PRO FORMA INFORMA-
TION:(6)
Total interest ex-
pense(7).............. $ 7,337 $ 3,610
Ratio of EBITDA to to-
tal interest expense.. 2.73x 2.56x
Ratio of earnings to
fixed charges(5)...... -- --
PREDECESSOR THE COMPANY
----------------- ---------------------------------------------------------
AT AT AT AT DECEMBER 31, AT JUNE 30, 1996
DEC. 31, AUG. 31, DEC. 31, ------------------------ -----------------------
1991 1992 1992 1993 1994 1995 ACTUAL AS ADJUSTED(8)
BALANCE SHEET DATA:
Cash and cash
equivalents............ $ 2,171 $ 2,070 $ 1,441 $ 1,436 $ 1,445 $ 1,115 $ 3,239 $ 23,490
Total assets............ 62,939 58,837 66,598 66,294 103,092 96,439 95,358 116,037
Total long-term
obligations, including
current portion........ 39,111 37,889 36,218 35,022 56,833 53,005 50,672 86.085
Redeemable preferred
partnership interests.. -- -- 8,188 8,760 14,693 15,722 16,265 16,265
Partners' capital
(deficit).............. 11,259 7,284 12,199 8,047 7,943 1,373 (3,200) (7,184)
Ratio of net debt to LTM
EBITDA(9).............. 3.15x
(footnotes on following page)
19
footnotes to table on preceding page
- -----------------------------------------
(1) Includes the results of Comcast since January 31, 1994. See "Management's
Discussion and Analysis of Financial Condition and Results of Operations."
(2) Gross profit margin represents gross profit as a percentage of total
revenues.
(3) EBITDA represents earnings before interest expense, income taxes,
depreciation, amortization and other income/expense. EBITDA does not
represent and should not be considered as an alternative to net income or
cash flow from operations as determined by generally accepted accounting
principles. The Company, however, believes that EBITDA provides useful
information regarding a company's ability to service and/or incur
indebtedness.
(4) Includes additions to property and equipment and additions to deferred
costs and intangible assets.
(5) For purposes of computing the ratio of earnings to fixed charges, earnings
include net loss attributable to general and limited partners, redeemable
preferred returns and interest expense, including that portion of lease
expense attributable to interest costs. Fixed charges consist of preferred
returns and interest expense, including that portion of lease expense
attributable to interest costs. Earnings were insufficient to cover fixed
charges by $9.5 million, $6.0 million, $0.7 million, $4.0 million, $8.1
million, $6.7 million, $4.0 million and $4.7 million for the year ended
December 31, 1991, the eight-month period ended August 31, 1992, four-
month period ended December 31, 1992, the years ended December 31, 1993,
1994, and 1995, and the six-month periods ended June 30, 1995 and 1996,
respectively. On a pro forma basis, earnings were insufficient to cover
fixed charges by $6.6 million and $4.7 million for the year ended December
31, 1995 and the six-month period ended June 30, 1996, respectively.
(6) Gives pro forma effect to the Offering and the application of $61.7
million of the net proceeds therefrom to repay existing indebtedness as if
the Offering had taken place on January 1, 1995.
(7) Total interest expense consists of cash interest expense on the Senior
Notes at an assumed rate of 11% plus the amortization of deferred debt
issuance costs. Pro forma total interest expense gives effect to the
issuance of the Senior Notes only to the extent that the proceeds
therefrom are used to repay existing indebtedness. Giving effect to the
full amount of the Senior Notes, cash interest expense would have been
$9.4 million and $4.7 million, and the ratio of EBITDA to cash interest
expense would have been 2.14x and 1.98x, for the year ended December 31,
1995 and the six-months period ended June 30, 1996, respectively.
(8) As adjusted to give effect to the Offering and the application of the net
proceeds therefrom as if the Offering had taken place on June 30, 1996.
(9) For purposes of calculating the ratio of net debt to LTM EBITDA, net debt
is defined as total long-term obligations (including the current portion
thereof) less cash and cash equivalents, and LTM EBITDA is defined as
EBITDA for the twelve months ended June 30, 1996.
20
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
GENERAL
The Company operates as a limited partnership and as such, the income tax
effects of all earnings or losses of the Company are passed directly to the
partners and no provision for income taxes is required.
In January 1994, the Partnership acquired the assets of its largest
franchisee, Comcast, for approximately $33.0 million (the "Comcast
Acquisition"). Operating results in 1994 include eleven months of Comcast
operations, while operating results in 1995 include a full year of Comcast
operations. The former Comcast operations represented approximately 28% of the
Company's revenues in 1995. Following the Comcast Acquisition, the Company
eliminated redundant administrative and field operations, resulting in
annualized net savings estimated by the Company to be approximately $1.8
million, the majority of which was realized immediately.
The Company derives revenues from its business services and from the sale,
installation and servicing of customer premises equipment. The Company's
principal business services include broadcast music services, on-premise
tapes, on-premise music video, audio marketing and in-store advertising.
Business services represented approximately 60% of total revenues in 1995.
Equipment and related revenues accounted for the remaining 40% of 1995
revenues. A large majority of the Company's broadcast and on-premise tape
revenues are generated from subscribers who typically execute five-year
contracts at rates ranging from $35 to $75 per month. These subscription rates
typically include the provision of the Company's equipment for use at the
subscriber's location. Royalties received from franchisees and international
distributors are included in broadcast music revenues and represented
approximately 7.9% of total revenues in 1995. The Company's franchisees pay
royalties to the Company based generally on 10% to 11.5% of adjusted music
revenues, which are broadcast music revenues less licensing payments and bad
debt write-offs. In-store advertising revenues are generated from the sale of
advertising for delivery to certain subscribers. On-premise music video
revenues are derived from the sale of specialized on-premise music videos
targeted for certain segments of the market place. Audio marketing revenues
are generated primarily from the sale of customized audio messages for use
with "on-hold" telephone systems. The Company also provides other broadcast
business services, including AdParting(R), data delivery services, custom
business television and other music-related services.
Equipment revenues are derived from the sale or lease of audio system-
related products, principally sound systems and intercoms, to business music
subscribers and other customers. The Company also sells electronic equipment,
principally DBS receivers and dishes, as well as proprietary tape playback
equipment, audio and video equipment to its franchisees to support their
business music services. Installation, service and repair revenues consist
principally of revenues from the installation of sound systems and other
equipment that is not expressly part of a business music contract, such as
paging, security and drive-through systems. These revenues also include
revenue from the installation, service and repair of equipment installed under
a business music contract. Music contract installation revenues are deferred
and recognized over the term of the respective contracts.
Cost of revenues for business services consists primarily of broadcast,
delivery, manufacturing, licensing and research costs associated with
providing music and other business services to a subscriber or a franchisee.
Cost of revenues for equipment represents the purchase cost plus handling,
shipping and warranty expenses. Cost of revenues for installation, service and
repair consists primarily of service and repair labor and labor for
installation that is not associated with new business music subscribers.
Installation costs associated with new business music subscribers are
capitalized and charged to depreciation expense over ten years.
Selling, general and administrative expenses include salaries, benefits,
commissions, travel, marketing materials, training and occupancy costs
associated with staffing and operating local and national sales offices. Such
expenses also include personnel and other costs in connection with the
Company's headquarters functions. A significant portion of commissions and
certain other selling costs are capitalized on a successful-efforts basis and
charged as amortization expense over the average contract term of five years
and, accordingly, are not
21
reflected in selling, general and administrative expenses. The Company
capitalized $1.3 million, $2.8 million and $3.2 million of such costs in 1993,
1994 and 1995, respectively.
The Company amortizes leasehold improvements over the shorter of the lease
term or five years and deferred costs and intangible assets over lives ranging
from two and one-half to ten years. These deferred costs and intangible assets
consist of the costs associated with subscriber contracts acquired from third
parties (typically amortized on an accelerated basis over eight years),
commissions and certain other sales related expenses (five years), the
acquisition and production costs of a music library (typically five years),
organizational expenses related to acquiring certain franchise operations
(five years) and capitalized financing costs (over the life of the loans).
RESULTS OF OPERATIONS
The following table sets forth certain financial information for the periods
presented and should be read in conjunction with the Company's Financial
Statements, including the Notes thereto, appearing elsewhere in this
Prospectus:
PERCENTAGE CHANGE
SIX-MONTH -----------------------------
PERIOD ENDED FIRST HALF
YEAR ENDED DECEMBER 31, JUNE 30, 1996 VS.
---------------------------- ------------------ 1994 VS. 1995 VS. FIRST HALF
1993 1994 1995 1995 1996 1993 1994 1995
(DOLLARS IN THOUSANDS)
Revenues:
Business services:
Broadcast music........ $28,023 $39,519 $40,664 $20,166 $20,858 41.0 % 2.9 % 3.4 %
On-premise tapes....... 5,067 5,434 4,895 2,483 2,236 7.2 % (9.9)% (9.9)%
Other broadcast........ 950 1,227 1,403 669 742 29.2 % 14.3 % 10.9 %
On-premise music vid-
eo.................... 1,010 1,257 1,741 735 1,029 24.5 % 38.5 % 40.0 %
Audio marketing........ 769 1,615 2,027 970 1,199 110.0 % 25.5 % 23.6 %
In-store advertising... 306 814 913 550 320 166.0 % 12.2 % (41.8)%
Other.................. 675 544 846 343 593 (19.4)% 55.5 % 72.9 %
-------- -------- -------- -------- --------
Total music and other
business services... 36,800 50,410 52,489 25,916 26,977 37.0 % 4.1 % 4.1 %
-------- -------- -------- -------- --------
Equipment.............. 15,885 23,060 23,901 11,641 10,400 45.2 % 3.6 % (10.7)%
Installation, service
and repair............ 5,856 9,946 10,491 5,005 4,779 69.8 % 5.5 % (4.5)%
-------- -------- -------- -------- --------
Total equipment and
related services.... 21,741 33,006 34,392 16,646 15,179 51.8 % 4.2 % (8.8)%
-------- -------- -------- -------- --------
Total revenues....... 58,541 83,416 86,881 42,562 42,156 42.5 % 4.2 % (1.0)%
Gross profit:
Business services...... 26,188 36,725 38,024 18,853 19,476 40.2 % 3.5 % 3.3 %
Equipment.............. 5,139 9,596 10,450 5,206 4,970 86.7 % 8.9 % (4.5)%
Installation, service
and repair............ (153) (3) 47 (25) (94) * * *
-------- -------- -------- -------- --------
Total gross profit... 31,174 46,318 48,521 24,034 24,352 48.6 % 4.8 % 1.3 %
Gross profit margin(1).. 53.3% 55.5% 55.8% 56.5% 57.8%
Selling, general and
administrative ex-
penses................. $19,603 $28,699 $28,496 $14,628 $15,107 46.4 % (0.7)% 3.3 %
S,G&A margin(2)......... 33.5% 34.4% 32.8% 34.4% 35.8%
EBITDA(3)............... $11,571 $17,619 $20,025 $ 9,406 $ 9,245 52.3 % 13.7 % (1.7)%
EBITDA margin(4)........ 19.8% 21.1% 23.0% 22.1% 21.9%
Net income (loss)....... ($ 3,475) ($ 7,183) ($ 5,714) ($ 3,455) ($ 4,175) * * *
- ---------------------
* Not meaningful.
(1) Gross profit margin represents gross profit as a percentage of total
revenues.
(2) S,G&A margin represents selling, general and administrative expenses as a
percentage of total revenues.
(3) EBITDA represents earnings before interest expense, income taxes,
depreciation, amortization and other income/expense. EBITDA does not
represent and should not be considered as an alternative to net income or
cash flow from operations as determined by generally accepted accounting
principles. The Company, however, believes that EBITDA provides useful
information regarding a company's ability to service and/or incur
indebtedness.
(4) EBITDA margin represents EBITDA as a percentage of total revenues.
22
SIX-MONTH PERIOD ENDED JUNE 30, 1996 COMPARED TO SIX-MONTH PERIOD ENDED JUNE
30, 1995
Revenues. Total revenues decreased 1.0% from $42.6 million in the first six
months of 1995 to $42.2 million in the first six months of 1996 as a result of
an 8.8% decrease in equipment and related services revenues that was partially
offset by a 4.1% increase in business services revenues. Equipment sales
decreased 10.7% as the Company maintained its focus on higher margin sales and
reduced its participation in lower margin competitively bid equipment sales.
Starting in late 1995, the Company also began to deemphasize the sale of
equipment not integral to the Company's business services. Installation,
service and repair revenues decreased from strong levels generated in the 1995
period due to fewer installations of large equipment jobs in the 1996 period.
Broadcast music revenues grew 3.4% in the 1996 period due to increased demand
and the conversion of on-premise tape subscribers to broadcast music services,
which was offset in part by the cancellation of three national broadcast
accounts during the 1996 period. On-premise tape revenues continued to decline
principally due to the Company's conversion of many of these customers to
broadcast services. On-premise music video, audio marketing and other
broadcast services revenues continued to benefit from growing demand for these
services, as a group increasing 25.1% in the 1996 period over the 1995 period.
In-store advertising revenues declined 41.8% principally due to sales to a
single customer in the first six months of 1995 that did not continue into the
last six months of 1995 or the first six months of 1996. Other business
services revenues increased as a result of an increase in reimbursable
satellite fee revenue and the one-time sale of proprietary software and other
rights to Muzak Europe.
Gross Profit. Total gross profit increased 1.3% from $24.0 million in the
first six months of 1995 to $24.4 million for the first six months of 1996
while the gross profit margin increased from 56.5% to 57.8%, respectively.
This improvement was principally due to an improvement in equipment sales
gross profit margin from 44.7% in the 1995 period to 47.8% in the 1996 period
reflecting sales of higher margin equipment. This improvement was partially
offset by a slight decline in the business services gross profit margin
primarily due to lower in-store advertising and on-premise tape revenues and a
decrease in on-premise music video margin, combined with higher compensation,
satellite and licensing costs.
Selling, General and Administrative Expenses. Selling, general and
administrative expenses increased 3.3% from $14.6 million in the first six
months of 1995 to $15.1 million in the first six months of 1996 and increased
as a percentage of total revenues from 34.4% to 35.8%, respectively. Selling
and marketing expenses remained essentially unchanged at $5.4 million for the
first six months of 1995 and 1996. General and administrative expenses
increased 5.1% from $9.2 million in the first six months of 1995 to $9.7
million over the same period in 1996. This increase was due primarily to an
increase in relocation expenses, consulting expenses related to the EchoStar
agreements and the Internet MusicServer(SM) project, communication costs
related to the Internet MusicServer(SM) project and national account rollouts,
the continued centralization of data and collection systems, and higher travel
and rent expense and personal property taxes.
Depreciation Expense. Depreciation expense increased 10.4% from $4.7 million
in the first six months of 1995 to $5.2 million in the first six months of
1996 due to an increase in fixed assets of $8.2 million primarily related to
an increased investment in equipment for business service customers, new
service and delivery vehicles and computers and other equipment for video
production, the EchoStar uplink facility and systems upgrades and development.
Amortization Expense. Amortization expense increased 0.5% from $4.4 million
in the first six months of 1995 to $4.5 million in the first six months of
1996 as a result of an increase to intangible assets of $5.6 million primarily
attributable to business acquisitions, obtaining customer contracts and
creating master recordings partially offset by the final amortization in the
1995 period of the music purchased as part of the 1992 Acquisition.
Interest Expense. Interest expense decreased 5.7% from $3.8 million for the
first six months of 1995 to $3.6 million in the first six months of 1996
principally due to a $2.5 million paydown of the Company's term loan in July
1995, a $2.5 million paydown of the term loan in January 1996 and a reduction
of the effective weighted average interest rate under the term loan and
revolving credit facility from 11.3% for the 1995 period to 10.6% for the 1996
period.
23
Other (Income) Expense. Other (income) expense reflected expense of $228,000
in the first six months of 1996 versus income of $42,000 in the comparable
period in 1995, primarily due to a loss on the sale of a product line acquired
in the Comcast Acquisition that was inconsistent with the Company's strategic
plans and equity in losses of Muzak Europe not included in the 1995 period.
YEAR ENDED DECEMBER 31, 1995 COMPARED TO YEAR ENDED DECEMBER 31, 1994
Revenues. Total revenues increased 4.2% from $83.4 million in 1994 to $86.9
million in 1995 principally as a result of a 4.1% increase in business
services revenues and a 4.2% increase in equipment and related revenues.
Business services revenues increased due to an increase in the number of
broadcast music subscribers, offset partially by a reduction in the royalty
surcharges paid by franchisees for DBS services. Other business services
revenues, with the exception of on-premise tape sales, increased at more rapid
rates than broadcast music revenues due to the increased marketing of, and
increasing customer demand for, video, audio messaging, and AdParting(R)
services, among others. On-premise tape revenues declined due to the Company's
conversion of such customers to broadcast services, primarily DBS
transmission. Royalties and other fees from franchisees and international
distributors (included in broadcast music revenues) accounted for $6.9 million
or 7.9% of the Company's revenues in 1995, compared with $6.8 million or 8.2%
of the Company's revenues in 1994 due to growth in the number of customer
locations being served, partially offset by a planned reduction in DBS
surcharges. Equipment revenues increased 3.6% as a result of an increase in
leased equipment subscribers. Installation, service and repair revenues
increased 5.5% primarily related to large job revenue increases. In-store
advertising revenues increased 12.2%, principally due to sales to a single
customer in the first quarter of 1995, which did not continue into the last
three quarters of the year.
Gross Profit. Total gross profit increased 4.8% from $46.3 million in 1994
to $48.5 million in 1995. As a percentage of total revenues, gross profit
increased slightly from 55.5% in 1994 to 55.8% in 1995. The improvement in the
gross profit percentage in 1995 was due to growth in higher margin business
services, such as broadcast music, audio marketing and on-premise music video
services, and improved equipment margins.
Selling, General and Administrative Expenses. Selling, general and
administrative expenses decreased 0.7% from $28.7 million in 1994 to $28.5
million in 1995. As a percentage of total revenues, selling, general and
administrative expenses declined from 34.4% in 1994 to 32.8% in 1995. Selling
and marketing expenses declined 5.1% from $11.3 million in 1994 to $10.7
million in 1995. This decline was primarily attributable to a reduction in
local sales offices' administrative and operating support personnel, reduced
costs of new product and service research, a decrease in promotional expenses
and lower sales award costs, offset somewhat by higher non-capitalized selling
costs. General and administrative costs increased 2.1% from $17.4 million in
1994 to $17.8 million in 1995, primarily due to relocation and expansion of
the headquarters office, additional personnel to support centralization of
local and national sales office services, higher bad debt expense and
consulting expenses for the Internet MusicServer(SM) and EchoStar projects.
These increased expenses were partially offset by a decrease in bonuses
accrued and expenses incurred in 1994 in connection with an unconsummated
financing.
Depreciation Expense. Depreciation expense increased 14.3% from $8.2 million
in 1994 to $9.4 million in 1995, principally as a result of an increased
investment in equipment installed at customers' premises due to an expanded
customer base, and twelve months of depreciation of the assets acquired in the
Comcast Acquisition in 1995 compared to eleven months in 1994.
Amortization Expense. Amortization expense decreased 7.4% from $9.6 million
in 1994 to $8.9 million in 1995. The decline in amortization expense was due
to the final amortization in early 1995 of music acquired in the 1992
Acquisition.
Interest Expense. Total interest expense increased 7.1% from $7.0 million in
1994 to $7.5 million in 1995. The increase in interest expense in 1995 as
compared to 1994 was the result of increased borrowing as well as an increase
in the effective weighted average interest rate under the term loan and
revolving credit facility from 10.0% in 1994 to 11.2% in 1995.
24
YEAR ENDED DECEMBER 31, 1994 COMPARED TO YEAR ENDED DECEMBER 31, 1993
Revenues. Total revenues increased 42.5% from $58.5 million in 1993 to $83.4
million in 1994 primarily as a result of the Comcast Acquisition. Business
services revenues increased 37.0% from $36.8 million to $50.4 million from
1993 to 1994. Equipment revenues increased 45.2% as a result of the Comcast
Acquisition, resulting in higher sales of DBS equipment, sound system
equipment and leased drive-through equipment. Installation, service and repair
revenues increased 69.8% from 1993 to 1994 also as a result of the Comcast
Acquisition. Video revenues increased 24.5% in 1994 as compared to 1993 due to
the acquisition of an on-premises music video operation as of February 28,
1994 that significantly expanded the Company's base of video customers and its
capability to service a larger customer base. In-store advertising revenues
increased 166.0% due to increased efforts in marketing this service.
Gross Profit. Total gross profit increased 48.6% from $31.2 million in 1993
to $46.3 million in 1994 primarily as a result of the Comcast Acquisition. As
a percentage of total revenues, gross profit increased from 53.3% in 1993 to
55.5% in 1994. The improvement in the gross profit percentage in 1994 was
principally due to improved profit margins on equipment revenues and business
services revenues. The significant improvement in equipment profit margin from
32.4% in 1993 to 41.6% in 1994 was due to a greater proportion of higher
margin equipment lease revenues and more selective bidding of competitive
equipment contracts.
Selling, General and Administrative Expenses. Selling, general and
administrative expenses increased 46.4% from $19.6 million in 1993 to $28.7
million in 1994. As a percentage of total revenues, selling, general and
administrative expenses increased from 33.5% in 1993 to 34.4% in 1994. Selling
and marketing expenses increased 44.7% from $7.8 million in 1993 to $11.3
million in 1994. This increase was attributable to the Comcast Acquisition,
and the acquisition of the video operation as well as an increase in research
and development. General and administrative expenses increased 47.6% from
$11.8 million in 1993 to $17.4 million in 1994, primarily due to the new
locations and facilities acquired from Comcast and expenses incurred in
connection with an unconsummated financing.
Depreciation Expense. Depreciation expense increased 88.8% from $4.3 million
in 1993 to $8.2 million in 1994. The significant increase in 1994 as compared
to 1993 is attributable to the acquisition of approximately $16.0 million in
tangible assets in the Comcast Acquisition.
Amortization Expense. Amortization expense increased 38.6% from $6.9 million
in 1993 to $9.6 million in 1994. The significant increase in 1994 as compared
to 1993 is attributable to the acquisition of approximately $14.0 million of
intangible assets related to the Comcast Acquisition.
Interest Expense. Total interest expense increased 84.7% from $3.8 million
in 1993 to $7.0 million in 1994 as a result of additional borrowings and an
effective weighted average interest rate under the term loan and revolving
credit facility of 10.0% in 1994 as compared to 9.1% in 1993. The additional
borrowings in 1994 were a result of the Comcast Acquisition.
LIQUIDITY AND CAPITAL RESOURCES
The Company's liquidity needs have been primarily for capital expenditures,
business acquisitions, debt service and working capital. As of June 30, 1996,
the Company had a working capital deficit of $12.1 million compared with a
working capital deficit of $4.9 million as of June 30, 1995. The increase in
the deficit for this period was due principally to an increase in short-term
debt, utilized primarily to fund capital expenditures and repay term debt.
The Company's investing activities, excluding the Comcast Acquisition, have
historically included the purchase of on-premise customer equipment (such as
satellite dishes and receivers) and certain capitalized deferred costs related
to business acquisitions, obtaining customer contracts and creating master
recordings. Capital expenditures were $4.5 million in 1993, $9.5 million in
1994, $8.1 million in 1995, $3.7 million in the
25
first half of 1995 and $4.5 million in the first half of 1996. Additions to
deferred costs were $3.7 million in 1993, $4.3 million in 1994, $4.6 million
in 1995, $2.4 million in the first half of 1995 and $2.9 million in the first
half of 1996. The Company believes that its future investing activities will
include strategic acquisitions in addition to these capital expenditures and
deferred customer and music acquisition costs.
The Company's primary sources of liquidity have been cash flows from
operations and bank borrowings. Net cash provided by operating activities for
the first half of 1996 was $10.6 million as compared to $8.1 million for the
comparable 1995 period. This increase was due to an increase in cash from
operating assets and liabilities, primarily payables and accruals. Net cash
provided by operating activities for the year ended December 31, 1995 was
$14.2 million as compared to $15.7 million in 1994. Cash provided by the
Company's operations, adjusted for the effect of non-cash items, totaled $14.7
million in 1995, an increase of $2.3 million over the $12.4 million provided
in 1994, due primarily to a reduction in the Company's net loss through
improved operating performance. Net changes in the operating assets and
liabilities utilized cash of $500,000 in 1995 as compared to providing cash of
$3.3 million in 1994. The change in operating assets and liabilities was
primarily attributable to a reduction in accounts payable and accrued
expenses.
The Company has a term loan ($38.5 million outstanding as of June 30, 1996)
and a $13.0 million revolving credit facility ($10.8 million outstanding as of
June 30, 1996) provided by Union Bank of Switzerland, New York Branch ("UBS"),
and other lenders. Substantially all of the Company's assets and the interests
in the Company held by MLP, certain of its affiliates and the Management
Investors are pledged as collateral under the UBS term loan and credit
facility. The revolving credit facility is available for, among other things,
ongoing working capital needs and letters of credit. This credit facility
terminates on January 15, 2001. Interest accrues on the outstanding principal
amounts of the term loan and the revolving credit facility at an interest rate
based on UBS's announced base rate plus 1.75% or LIBOR plus 3.00%. The Company
intends to repay the outstanding amounts under the UBS term loan and revolving
credit facility with the proceeds of the Offering. See "Use of Proceeds." As
of June 30, 1996, aggregate maturities of the Company's term loan were $3.0
million in 1996, $7.0 million in 1997, $8.0 million in 1998, $8.0 million in
1999, $8.3 million in 2000 and $4.2 million in 2001.
The Company leases certain facilities under both operating and capital
leases. Minimum lease payments for 1996 under noncancelable leases are $6.3
million.
The Company anticipates capital expenditures of between $11.9 and $12.4
million in 1996 and additions to deferred costs and intangible assets of
between $4.8 and $5.2 million in 1996. The level of capital expenditures and
additions to deferred costs and intangible assets are subject to a variety of
factors which may cause these expenditures to exceed the ranges set forth
above.
Through June 30, 1996, the Company had capitalized approximately $1.1
million of expenses associated with an initial underwritten public offering of
its equity securities. In August 1996, the Company postponed the equity
offering. If it is determined that a public equity offering is not likely to
occur, these capitalized expenses will be charged to operations in the quarter
such determination is made.
The Company believes that subsequent to the Offering, its cash flows from
operations, borrowing availability and cash on hand will be adequate to
support currently planned business operations, capital expenditures and debt
service requirements at least through the foreseeable future. If the Company
engages in one or more material acquisitions, joint ventures or alliances or
other major business initiatives requiring significant cash commitments, or
incurs unanticipated expenses, additional financing could be required.
The 1992 Acquisition of the business of the Predecessor by CCI and certain
of the Management Investors provides for contingent earn-out payments ("Earn-
Out Payments") of between $5.0 million to $24.0 million to the Predecessor if
certain performance measures are achieved in the five years following the
transaction. The minimum performance requirement for the $5.0 million Earn-Out
Payment requires the Company to achieve a cumulative performance target (as
defined in the acquisition documents) over the five-year period ending
August 31, 1997. The Company believes that the minimum performance target
triggering an Earn-Out Payment will not be reached.
The Washington State Department of Revenue has levied an assessment against
the Predecessor for $1.7 million in sales and use and business and occupation
taxes for the period from 1987 through September 1992.
26
Under successor liability statutes in the State of Washington, the Company
could, if the Predecessor fails to pay its tax obligation, become liable for
the assessment. The assessment is under appeal by the Predecessor. The Company
has the right to offset any future payments from the Company to the
Predecessor if the Predecessor fails to pay its tax obligation. Management
does not believe that the assessment will have an adverse effect on the
Company's financial condition or results of operations.
INFLATION AND CHANGING PRICES
Management does not believe that inflation and other changing prices have
had a significant impact on the Company's operations.
27
BUSINESS
GENERAL
The Company is the leading provider of business music in the United States,
based on the number of customer locations served. The Company and its
franchisees serve approximately 180,000 customer locations in the United
States, representing a market share of approximately 50% of the estimated
number of domestic locations currently served by business music providers and
approximately twice the estimated number of locations served by its nearest
competitor. Through a network of distributors, the Company also provides
business music to subscribers outside the United States. In addition, the
Company offers its customers a range of non-music services, including
broadcast data delivery, video, audio marketing and in-store advertising
services, and sells, installs and services related equipment.
The Company markets business music in a variety of formats, including (i)
its well-known proprietary Environmental Music(R) (or "background" music) and
(ii) over 100 "foreground" music formats ranging from top-of-the-charts hits
to contemporary jazz, country music and classical music. Internal and third-
party studies sponsored by the Company have indicated that properly programmed
music can have a favorable impact on listeners in business and retail
environments. Broadcasting of music, including the rebroadcasting of
commercial music, in such locations is not permitted without licenses and the
payment of royalties. Environmental Music(R), which is principally comprised
of instrumental versions of popular songs that have been adapted and
rerecorded by the Company, is generally used in business offices and
manufacturing facilities to improve employee concentration and reduce stress.
Foreground music, consisting principally of original artist recordings, is
most commonly used in public areas, such as restaurants and retail
establishments, primarily as a sales enhancement tool. The Company distributes
30 of its channels by broadcast media (principally DBS transmission) and
supplies the balance to subscribers in the form of long-playing audio tapes.
Since 1991, the total number of domestic customer locations served by the
Company and its franchisees has grown from 134,000 to 180,000, with the number
of domestic customer locations served by the Company, growing from
approximately 32,000 to approximately 62,000 and the number of domestic
customer locations served by the Company's franchisees, growing from
approximately 102,000 to approximately 118,000. Over the same period, the
Company's total revenues and EBITDA have grown from $56.0 million and $12.6
million in 1991, respectively, to $86.9 million and $20.0 million in 1995,
respectively.
COMPETITIVE STRENGTHS
The Company believes that it possesses a number of attributes that have
allowed it to become the leading provider of business music in the nation
(based on number of customer locations served), including:
Broad Appeal to Diverse Customer Base. The Company's music products have
been programmed to appeal to a variety of end users, including business
offices, manufacturing facilities, retail establishments and restaurants. The
Company's salesforce markets over 100 different music formats, allowing each
customer to select a format appropriate for its line of business and customer
base. The Company's major national customers include national restaurant
chains, such as Taco Bell, McDonald's and Boston Market, and specialty
retailers, such as Nordstrom, Crate & Barrel, Kroger, Staples, Hallmark and
Wal-Mart, as well as a large number of local and regional accounts, none of
which represents more than 3% of the Company's consolidated revenues and the
top five of which represent in the aggregate less than 10% of consolidated
revenues. The Company believes that the geographic dispersion of its
customers, and the diversity of businesses in which they are engaged minimizes
the impact to the Company of a cyclical downturn in any one area of the
country or in any one sector of the economy.
Attractive Economics to Customers and the Company. The Company believes that
its services are highly cost effective, providing an important business tool
to its customers for a low monthly cost. On average, the Company receives
approximately $45 of revenue per month per subscriber location, net of
licensing fee and applicable royalties, for which it makes an investment per
subscriber location (including sales commission) of approximately $950 for
medium-powered DBS subscribers (substantially lower for local broadcast
technology subscribers). This allows the Company to recover its capital costs
within two years. The Company's customers typically enter into long-term
contracts, which are generally for a period of five years with an automatic
renewal
28
option. The Company's annual cancellation rate is less than 10% of music and
other business services revenues, which equates to an average length of
service per customer of approximately eleven years.
Full Line of Audio, Video and Data Products and Services. The Company can
provide its customers with an integrated package of services including: (i)
over 100 different music formats including both background and foreground
music; (ii) customized audio messages inserted in regular programming; (iii)
e-mail and computer bulk data transfer; (iv) on-premise music videos; (v)
customized messages for use with "on-hold" business telephone systems; and
(vi) "point of purchase" audio advertising and merchandising services. The
ability to deliver a package of music and non-music services over a common
transmission system has been a critical factor in enabling the Company to
generate incremental revenues from its customers at little or no additional
cost, gain new customers and protect existing customers from competitive
business music providers that do not offer such a broad line of products and
services.
Multiple Delivery Systems. The Company believes that its ability to
distribute its services through each of high-powered and medium-powered DBS
transmission, local radio broadcast transmission, telephone lines and audio
tapes enables it to effectively serve customers with either single or multiple
locations as well as those having varied music or service needs. The number of
domestic subscriber locations served by medium-powered DBS transmission has
grown from approximately 26,000 at the end of 1991 to approximately 120,000 at
June 30, 1996. In addition, the Company has recently entered into a unique
distribution arrangement with EchoStar. The Company anticipates that its
agreements with EchoStar will enable it to: (i) attract additional business
music subscribers by offering an expanded array of DBS-delivered music
programming; (ii) deliver music services to residential subscribers for the
first time; and (iii) deliver television programming, such as CNN(R), MTV(R)
and ESPN(R), to business music subscribers in packages specifically designed
for businesses (i.e., news, entertainment or lifestyles). In addition, the
EchoStar agreements provide the Company with high-powered DBS transmission
capability to supplement its existing medium-powered DBS system, reduced
equipment installation costs and an opportunity to shift certain equipment
costs to the subscriber.
Integrated Sales Network. The Company believes that its 35 sales offices in
the United States, its 81 franchisees, whose sales territories cover the
remaining market in the United States, and its 20 international distributors
in 15 foreign countries, comprise the largest network of customer sales and
service offices among business music providers in the United States. The
Company further believes that this network allows the Company, among other
things, to more effectively market to and support its national and
international accounts.
OPERATING STRATEGY
The Company believes it has opportunities to achieve growth in revenues and
cash flow by:
Increasing U.S. Market Penetration. The Company intends to increase its
penetration of the U.S. market by expanding its local and national account
sales force, offering more music formats (including up to 60 broadcast formats
with the EchoStar agreements), developing sales strategies focused on
underserved market segments and aggressively marketing its services as part of
a unique bundled package. 1993 census data indicate that there are
approximately 6.4 million business locations in the United States, including
approximately 1.1 million retail outlets and 450,000 restaurant and other food
service locations. Of the total 6.4 million business locations, only about 5%
are currently believed by the Company to subscribe to a business music
service.
Pursuing Strategic Relationships and Acquisitions. The Company intends to
pursue additional strategic relationships, acquisitions and joint ventures,
such as the Company's recent distribution agreements with EchoStar and its
1994 acquisition of the assets of Comcast, then the Company's largest
franchisee, in order to: (i) increase the breadth of its programming
offerings; (ii) further diversify its distribution channels; and (iii) take
advantage of certain economies of scale.
Expanding in International Markets. The Company plans to continue its
expansion in Europe primarily through strategic relationships and joint
ventures, such as Muzak Europe, a joint venture formed in 1995 between the
Company and Alcas, a leading European business music provider. This joint
venture couples the Company's broadcast technology skills with Alcas' market
knowledge and marketing expertise and further permits the Company to leverage
its assets and programming expertise and diversify its sources of revenue. The
Company
29
also intends to expand into Latin America and Asia by establishing similar
strategic relationships in those markets.
Exploiting New Market Opportunities. The Company intends to continue to
leverage its music programming expertise and its extensive recorded music
library into new products and markets. For example, the Company has recently
developed and begun operating its proprietary MusicServer(SM) service, which
permits real-time delivery of digitized song samples over the Internet to
music retailers and others (including companies such as CDnow!, Tower Records
and Microsoft) that require access to a large library of recorded music.
Enhancing Operating Margins. The Company seeks to enhance operating margins
through continued centralization of operations and leveraging fixed expenses
over a wider customer base. The Company strives to exploit less costly
transmission technologies and to reduce the capital required to initiate
service to a customer.
The Company was formed in September 1992 by CCI, a private investment
partnership of which Centre Partners is the general partner, in order to
effectuate the 1992 Acquisition from the Predecessor. MLP, an affiliate of
CCI, and the Management Investors, beneficially own approximately 62.9% and
9.7%, respectively, of the outstanding partnership interests of the Company.
Capital Corp., a Delaware corporation, is acting as co-obligor for the Senior
Notes. Capital Corp. is a wholly-owned subsidiary of the Company which has
nominal assets and will not conduct any operations. Certain institutional
investors that might otherwise be limited in their ability to invest in
securities offered by partnerships by reason of the investment laws of their
states of organization or their charter documents may be able to invest in the
Senior Notes because Capital Corp. is a corporation. A portion of the net
proceeds from the Offering will be used to retire indebtedness incurred in the
1992 Acquisition.
BUSINESS MUSIC SERVICES
MUSIC FORMATS
The Company conducts on-going research into the effects of music on human
behavior. This research has shown that certain types of music may reduce
employee stress and improve worker performance by counteracting the fatigue
cycles that affect workers, particularly those involved in repetitive work.
This research also has shown that, in retail environments, certain types of
music may induce consumers to purchase more and may help the retailer in its
efforts to project a particular image of a store. The Company uses its
research to create proprietary music program formats that will have a
favorable impact on listeners. In addition, the Company's sales staff uses the
results of its research to explain to prospective subscribers the benefits of
business music and to assist each subscriber in choosing a music format which
will further the subscriber's desired business goal. These music formats cover
a wide range of musical tastes.
The Company's best-selling format, Environmental Music(R), is a unique blend
of completely instrumental music that is distributed to subscribers via DBS
transmission and local broadcast technology. Environmental Music(R) is
principally comprised of instrumental versions of popular songs that have been
adapted and rerecorded by the Company ("covers"), instrumentals that have been
composed and recorded exclusively for inclusion in the Environmental Music(R)
program ("originals"), and some commercially available instrumental
recordings, and is generally used in business offices and manufacturing
facilities to improve employee concentration and reduce stress. The
Environmental Music(R) library consists of approximately 30,000 recordings
owned by the Company, of which approximately 5,000 are actively used at any
given time. The library includes the instrumental recordings of titles made
popular by a wide variety of artists and composers, ranging from George
Gershwin to Elvis Presley, Boyz II Men and Toad the Wet Sprocket. The Company
spends over $400,000 annually in payments to third parties to update the
library and adds approximately 1,000 new selections each year. In 1993, in
order to improve the quality of its active Environmental Music(R) library, the
Company digitally remastered all of its recordings on compact discs.
Foreground music, consisting principally of original artist recordings, is
most commonly used in public areas, such as restaurants and retail
establishments, primarily as a sales enhancement tool. The Company's most
popular foreground music product, FM-1(R), features moderate tempo, original
artist recordings of familiar adult contemporary favorites. Like Environmental
Music(R), FM-1(R) has been developed for distribution to subscribers via DBS
transmission and local broadcast technology. With its broad appeal, FM-1(R) is
second to the Environmental Music(R) channel in the total number of subscriber
locations served and is the Company's most
30
widely-used format in the restaurant and retail markets. FM-1(R) features a
broad range of popular artists from the last 30 years, with an emphasis on
current popular music. FM-1(R) artists include Sting, Celine Dion, Elton John
and Bonnie Raitt, among others.
In addition to FM-1(R), foreground music formats developed by the Company
for DBS or local broadcast transmission include:
HITLINE(R) ADULT CONTEMPORARY
An up-to-the-minute mix of top chart A more consumer-oriented version of
hits. FM-1(R) with higher repetition of
current hits.
COUNTRY CURRENTS(R)
An upbeat mix of current and recent ADULT ALTERNATIVE
country music hits. An eclectic mix of artists and
styles with a progressive edge.
JUKEBOX GOLD(R)
Rock 'n' roll hits of the '50s, '60s NON-STOP HIP HOP(SM)
and early '70s. The hottest new music from the
streets.
'70S SONGBOOK(SM)
A mix of familiar hits spanning the POWERROCK(SM)
late '60s to early '80s. Hard-edged hits and heavy metal
album tracks.
URBAN BEAT(SM)
The best of contemporary urban hits THE EDGE(SM)
from today's hottest artists. A mix of top hits and album tracks
from the college and alternative
music charts.
CONTEMPORARY JAZZ FLAVORS(SM)
Today's light contemporary jazz,
mainstream jazz and soft vocals. CLASSIC ROCK
A non-stop collection of the best
rock "n' roll tunes of all time.
LIGHT CLASSICAL
An artful blend of chamber and small
orchestral pieces from the Baroque NEW COUNTRY
and Romantic periods. An upbeat mix of top chart hits from
today's country superstars.
EXPRESSIONS(R)
Light hits from yesterday and today COUNTRY CLASSICS(SM)
plus instrumental versions of hit A blend of classic Country hits from
songs, easy jazz and acoustic music. the 1950s, '60s and '70s.
CONTEMPORARY INSTRUMENTALS CONCERT CLASSICS(SM)
Smart contemporary instrumentals for The most renowned classical
businesses where vocals are symphonies.
inappropriate.
JAZZ TRADITIONS(SM)
HOT FM(SM) The more traditional, acoustic side
The upbeat side of current Adult of the jazz genre.
Contemporary music.
BIG BAND ERA
EUROSTYLE(SM) A blend of the best known standards
Dance and Top 40 tracks hot off the and hits from vocalists and
European music charts. instrumental artists from the 30's,
40's, and 50's.
LATIN STYLES(SM)
A smooth blend of today's Spanish- EASY INSTRUMENTALS(SM)
language hits and Salsa rhythms. A mix of lush and soothing
instrumental favorites.
FIESTA MEXICANA(SM)
An upbeat blend of Mexican regional CONTEMPORARY CHRISTIAN
styles including Mariachi, Nortena The very best from the top artists
and Tejano. of contemporary Christian popular
music.
HOLIDAY
From November 1st through December KIDZONE(SM)
31st the Holiday Channel features a A bright, upbeat mix of sing alongs,
blend of traditional and folk songs, soundtracks and pop hits
contemporary holiday music. targeted to kids ages 3-10.
31
The Company has also developed approximately 80 different tape-based formats
of foreground music targeted to the specialized business needs of subscribers
with more focused customer demographics. Among the formats offered are
contemporary jazz, chamber music, reggae, hard rock, German music, Chinese
music and seasonal (holiday) music. These music programs are distributed to
subscribers in the form of long-playing audio tapes that are replayed by the
subscriber on its own premises using specially-designed equipment that has
been installed by the Company. Subscribers typically receive an initial tape
library of approximately 40 hours of music programming and are allowed
unlimited exchanges of tapes during their first 30 days of service, thereby
enabling them to fine-tune their format selections to their individual
preferences and requirements. New tapes are generally sent to subscribers on a
fixed schedule (30, 60 or 90 days), as selected by the subscriber, although
subscribers can elect unlimited exchange privileges. In all cases, subscribers
are required to return old tapes upon receipt of new tapes, and pricing varies
with the frequency of exchange. As of June 30, 1996, the Company and its
franchisees had approximately 18,000 subscribers for taped-based services.
DISTRIBUTION SYSTEMS
The Company's Environmental Music(R) and FM-1(R) programs are distributed to
subscribers either through the Company's medium-powered DBS system or by local
broadcast technology. The Company also uses its medium-powered DBS system to
distribute these programs to its franchisees for local broadcasting to the
franchisees' subscribers. Medium-powered DBS systems utilize satellite dishes
ranging from 0.75 to 1.8 meters in diameter. At June 30, 1996, approximately
120,000 subscriber locations were served by its medium-powered DBS
transmission and approximately 42,000 locations were served by local broadcast
technology. In addition, at that date, on-premise tape programs were being
distributed to approximately 18,000 subscriber locations.
Satellite transmission has become the Company's primary delivery medium for
its business music programs and most of its newest program formats are
generally available only via satellite. The Company's proprietary Music
Plus(R) service permits its medium-powered DBS subscribers to choose the
traditional Environmental Music(R) and FM-1(R) formats as well as up to
fourteen other foreground music formats from a single satellite transmission
signal. In addition, its proprietary DayParting(R) and WeekParting(R) services
enable a subscriber to arrange for automatic switching from one music format
to another on a predetermined schedule to adjust to changing customer
demographic patterns.
The Company leases substantially all of its transponder capacity from
Microspace, which also provides facilities for the uplink of the Company's
signals to Microspace's transponder. Microspace, in turn, leases its
transponder capacity on satellites operated by third parties, including the
Galaxy IV satellite operated by Hughes, on which a majority of the Company's
DBS signals are transmitted. The term of the Company's principal transponder
lease with Microspace for the Galaxy IV satellite runs through the life of
that satellite (which is expected to continue through 2004). Microspace may
terminate its agreements with the Company if the Company materially breaches
its obligations thereunder or if any governmental restriction results in a
sustained interruption of the Company's performance thereunder. Microspace
also is entitled to terminate its agreements with the Company immediately upon
termination of its underlying agreement with Hughes. See "Risk Factors--
Dependence on Satellite Delivery Capabilities."
The Company has begun offering high-powered DBS transmission service through
the EchoStar satellite system, as more fully described below under "--EchoStar
Agreements." High-powered DBS systems utilize satellite dishes as small as 18
inches in diameter. The Company's ability to expand its music services on the
EchoStar satellite system is subject to EchoStar's ability to launch a second
high-powered direct broadcast satellite by December 31, 1997, or, if a second
satellite is not launched by December 31, 1997, EchoStar's willingness to
allocate additional transponder capacity to the Company on EchoStar's first
satellite. See "Risk Factors--Dependence on EchoStar and its Satellites" and
"--EchoStar Agreements."
Local broadcast transmission is used by the Company and its franchisees to
distribute business music in localized metropolitan areas where the
concentration of subscriber locations is sufficiently large to justify the
32
cost. Local area FM broadcasting is primarily made via commercial FM radio
station subcarriers and requires the use of a separate subcarrier and on-
premises subscriber receiver for each program format being distributed.
Accordingly, local broadcasting is not cost-effective for delivery of more
than two formats to a particular area and is generally limited to the
Company's most popular program formats, Environmental Music(R) and FM-1(R).
OTHER SERVICES
NON-MUSIC BROADCAST SERVICES
The Company offers a variety of non-music services to its medium-powered DBS
business music subscribers that complement its music services. These services
are generally "bundled" and marketed in conjunction with the Company's
business music services. As a result, these services serve to stimulate sales
of music services to new customers. In addition to providing incremental
revenue, these services enable the Company to maintain strong relationships
with its business music subscribers. These non-music services generally carry
higher margins, since they require low incremental costs and when the
associated revenue is shared by the Company and its franchisees, the Company
receives 50% or 60% of these revenues in lieu of royalty payments.
The Company currently offers the following non-music business services to
its medium-powered DBS subscribers:
. AdParting(R). AdParting(R) permits the subscriber to receive customized
audio messages ("spots") interspersed in its business music service and to
control the message content of the spot. This service is used by retailers
ranging from supermarkets and convenience stores, to fast food restaurants
and fashion retailers. At June 30, 1996, the Company was providing
AdParting(R) to approximately 12,300 subscriber locations.
. Broadcast Data Delivery. The Company's broadcast data delivery service
provides point-to-multipoint electronic mail as well as computer to
computer bulk data transfer. This service provides the subscriber with a
low cost alternative to two-way data transmission systems. For example,
fast food chains use this service to deliver software and other data
updates to in-store computers at their outlets, while wholesale grocery
distributors use it to provide price, inventory, product recall and
delivery information to their network retailers. At June 30, 1996, the
Company was providing broadcast data delivery services to approximately
5,200 subscriber locations.
. Custom Business Television. The Company takes advantage of the
availability of occasional use video transponder space to offer its
customers the opportunity to broadcast private customer-specific video
programming. At June 30, 1996, the Company was providing custom business
television services to approximately 600 subscriber locations.
ON-PREMISE MUSIC VIDEO--ZTV(R)
The Company programs, duplicates on videotape and sells its proprietary
ZTV(R) on-premise music video service to subscribers wishing to increase the
impact of music through video. The Company's on-premise video programs allow
subscribers to create an "MTV(R)-type" environment for their customers through
specially programmed, long-playing videotapes. The ZTV(R) taped music videos
are produced and shipped directly from the Company's production facilities to
more than 3,000 viewing locations. Subscribers currently using the ZTV(R)
service include Macy's, Bloomingdale's, Lord & Taylor, Filene's Basement,
Oshman's Sporting Goods and Rent-A-Center.
ZTV(R) offerings are available in the following categories, each consisting
of multiple long-playing programs that are supplied to subscribers on a 30, 60
or 90-day rotation:
. Music and Entertainment Programs. Programs produced for a variety of
retailing environments, such as department stores, specialty shops,
athletic footwear stores, children's apparel stores, sporting goods
33
stores, toy and hobby stores, drug stores and appliance stores. These
programs include licensed music video elements in addition to sports
clips, cartoon and fashion segments and other elements appropriate to the
demographics of a particular customer or application. These targeted
programs are produced monthly and are supplied in four-hour tapes.
. Music Video Programs. These are segued music video programs, representing
a style and tempo of music applicable to particular business environments,
and are produced monthly in two-hour and four-hour lengths.
. VeeJay Programs. These monthly programs are produced exclusively for
nightclubs and dance clubs and are furnished in one-hour lengths.
AUDIO MARKETING
The Company creates, produces and records spoken messages for use with "on-
hold" business telephone systems, AdParting(R) broadcasts and other forms of
in-store messaging and advertising.
IN-STORE ADVERTISING
The Company markets in-store "point of purchase" audio advertising and
merchandising services for transmission through its medium-powered DBS system.
The Company has established an industry-specific network (SuperLink(R)) of
grocery wholesalers and wholesaler-supplied retailers and sells time on the
network to advertisers seeking to deliver a message simultaneously to multiple
locations in the network.
ECHOSTAR AGREEMENTS
Through its agreements with EchoStar (the "EchoStar Agreements"), the
Company has begun providing 30 channels of digital music programming, of which
27 channels are being distributed in stereo to EchoStar's residential
customers, thus providing the Company with access to the residential consumer
market for the first time. EchoStar, as part of its overall sales activities,
will brand and market 27 channels of music programming provided by the Company
and currently plans to package these channels as an automatic inclusion in the
majority of its service packages. The launch of EchoStar's second high-powered
satellite, currently anticipated for September 1996, will give the Company the
exclusive right to distribute approximately 30 additional channels to business
music subscribers and will also provide EchoStar an additional three channels.
However, there can be no assurance that the launch of the second satellite
will be successful or timely.
The music services offered through EchoStar contain much of the Company's
Music Plus(R) programming but are broadcast in digital stereo to appeal to
residential customers instead of the monophonic format used in the Company's
medium-powered DBS transmission system, which is more appropriate to business
music applications. The Company's Environmental Music(R) and FM-1(R) channels
are transmitted in the monophonic format over the EchoStar System to appeal to
business music subscribers.
The EchoStar agreements will allow the Company to expand the range of music
that can be made available to businesses. They also provide the Company with
access to a family of television programming services that the Company
believes can be sold in several critical market segments, such as the
hospitality and retailing markets. The availability of these television
services is expected to allow the Company to penetrate commercial market
segments and reach new customers that have traditionally been outside of its
core subscriber base. The Company believes that EchoStar's high-powered DBS
delivery technology also provides the Company with the opportunity to realize
significant cost savings in furnishing music services to business subscribers.
EchoStar's receiving equipment is smaller, lighter in weight, and simpler to
install than the Company's medium-powered DBS receiving equipment, and as DBS
television service increases in popularity, this equipment is expected to be
mass manufactured and marketed, thus reducing its cost. In addition, the
EchoStar receiving equipment generally is not proprietary and has uses and
applications beyond commercial business music. Accordingly, the
34
Company believes that subscribers to business music services through the
EchoStar system may be more likely to purchase the necessary receiving
equipment rather than rely on Company-provided equipment, as has generally
been the case to date, thus permitting the Company to reduce its per-
subscriber capital investment with only a limited reduction in the monthly
subscription charge.
Pursuant to the EchoStar Agreements, EchoStar will pay the Company a
programming fee for each residential music subscriber and will pay the
Company's franchisees a commission on sales by EchoStar distributors to
commercial customers in a franchisee's territory. Pursuant to the EchoStar
Agreements, the Company pays EchoStar a fee for uplink transmission of the 30
exclusive channels and rents space at EchoStar's Cheyenne, Wyoming uplink
facility. The fees for the uplink of the channels and use of the uplink
facility increase significantly upon the launch of EchoStar's second
satellite, when the Company will be allocated an additional 2.4 megahertz of
transponder capacity. Launch of the second satellite is expected to occur in
September 1996. The Company and its franchisees are obligated to pay EchoStar
a royalty on music sales from EchoStar channels to commercial customers.
EchoStar has agreed that it will not (i) provide transponder space to, (ii)
enter into or maintain distributor agreements or relationships with, or (iii)
enter into any agreements for the programming or delivery of any audio
services via DBS frequencies with, a specified group of the Company's
competitors. The Company has agreed it will not (i) secure transponder space
for, (ii) enter into or maintain distributor agreements or relationships with,
or (iii) enter into any agreement for the programming or delivery of any of
the Company's services with any competitor of EchoStar via DBS frequencies or
with specified competitors of EchoStar via K-band frequencies.
The Company may terminate its agreements with EchoStar if EchoStar is unable
to launch its second satellite by December 31, 1997, unless EchoStar allocates
2.4 megahertz of transponder capacity on the EchoStar-I satellite for the
Company's exclusive use.
EchoStar may cancel the terms of the EchoStar Agreements related to the
provision of residential music channels at any time. Upon such cancellation,
EchoStar is required to pay to the Company the depreciated book value of the
Company's capital investment in equipment to support residential music
channels and to continue to provide 2.4 megahertz of transponder capacity for
use by the Company. The Company and its franchisees also would be permitted to
continue to market and sell the video services carried on the EchoStar system.
The EchoStar relationship is still in its formative stage and there can be
no assurance that the benefits anticipated by the Company will be realized.
See "Risk Factors--Dependence on EchoStar and its Satellites."
INTERNET SERVICES
The Company has recently developed and begun operating its Internet
MusicServer(SM) service.
The Company is seeking to exploit recent software developments in real-time
delivery of audio via low-cost, high-speed modems to provide access to
digitized samples of recordings in its library to businesses having
informational or retailing sites on the Internet. The design of the Company's
Internet MusicServer(SM) service allows the Company to use a hardware and
software server system to, among other things, supply services to many
different Internet-based retailers and thus provide music samples to many
retailers more economically than those retailers could provide themselves. The
MusicServer(SM) service permits music retailers and others to offer visitors to
their websites access to digitized 30-second samples from the Company's
library of recorded music. This service, which permits, among other things, a
consumer to preview recordings offered for sale by a retailer, currently is
being provided to CDnow!, an on-line retailer of compact discs and audio
cassettes, Tower Records and Microsoft.
There can be no assurance that Internet services will be economically viable
or generate significant revenue for the Company. See "Risk Factors--Unproven
Capabilities of New Services."
35
EQUIPMENT AND RELATED SERVICES
The Company sells or leases various audio system-related products,
principally sound systems and intercoms to its business music subscribers and
other customers. The Company also sells electronic equipment, principally DBS
receivers and dishes as well as proprietary tape playback equipment, to its
franchisees to support their business music services business. All the
equipment is manufactured by third parties, although some items bear the
Muzak(R) brand name. Revenues from equipment and related services accounted
for 40% of the Company's revenues in 1995 and 36% of such revenues during the
six-month period ended June 30, 1996.
The Company and its franchisees also sell, install and maintain non-music
related equipment, such as intercoms and paging systems, for use by their
business music subscribers and other customers. Although the maintenance of
program receiving equipment provided to business music subscribers is
typically included as part of the overall music subscription fee, installation
and maintenance of audio or other equipment not directly related to reception
of the Company's business music service is provided on a contractual or time-
and-materials basis. Labor rates and charges for installation and service vary
by location and are determined by the Company or its franchisee. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations."
MARKETING
COMPANY SALES OFFICES
The Company has 35 sales offices in the United States, including in seven of
the top ten U.S. markets (the greater metropolitan areas of New York, Los
Angeles, Chicago, San Francisco, Boston, Dallas and Detroit). These 35 sales
offices accounted for approximately 72% of the Company's revenues in 1995 and
approximately 71% of such revenues during the six-month period ended June 30,
1996.
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The following are the locations of the Company's local sales offices (major
offices are shown in boldface in order of market size):
NEW YORK, NY (LONG ISLAND CITY) SEATTLE/TACOMA, WA
Hicksville, NY Spokane, WA
LOS ANGELES, CA (BURBANK) MINNEAPOLIS, MN
Tustin, CA
DENVER, CO
CHICAGO, IL Colorado Springs, CO
Peoria, IL
Milwaukee, WI ORLANDO, FL
Moline, IL
Springfield, IL PORTLAND, OR
Medford, OR
SAN FRANCISCO, CA
Sacramento, CA SAN DIEGO, CA
San Jose, CA
INDIANAPOLIS, IN
BOSTON, MA Ft. Wayne, IN
Providence, RI
Exeter, NH HARTFORD, CT
DALLAS, TX CINCINNATI, OH
Tyler, TX Columbus, OH
DETROIT, MI BUFFALO, NY
SCRANTON, PA
Holidaysburg, PA
FRANCHISEES
The Company has 81 franchisees serving 138 separate territories in the
United States. The Company's relationships with its franchisees have been very
stable. More than 80% of its franchisees have been affiliated with the Company
for over 20 years and, during the last ten years, the Company has terminated
relations with only one franchisee. Each franchisee has exclusive
responsibility for sales in its territory, except for sales to national
accounts, sales of in-store advertising services and on-premise music video.
All marketing literature, customer and training videos and sales materials are
designed and produced by the Company and made available to its franchisees.
The Company also conducts sales training for its franchisees' sales personnel.
The Company currently has a standard form of franchise agreement in effect
for 132 of 138 of its franchised territories. The standard form of agreement
has a renewable ten-year term, and grants to the franchisee an exclusive
license to offer and sell specified business music services and certain non-
music broadcast services and to use certain of the Company's registered marks
within a defined territory. The agreement also prohibits franchisees from
marketing or selling competing products. The agreement includes provisions
relating to distribution of services via the Company's medium-powered DBS
system and via EchoStar, and establishes terms for the provision of services
to "national accounts" on a unified basis.
Under the standard form of agreement, franchisees pay the Company (i) a
monthly fee based on the number of business locations within the specified
territory, (ii) a monthly royalty equal to 10% of billings for broadcast
business music services (subject to certain deductions and adjustments) and
(iii) additional amounts for non-music broadcast services and on-premise tape
services. In addition, franchisees have paid a variable surcharge of billings
to customers for eight years following the commencement of medium-powered DBS
services in the
37
franchisee's territory. As a result of their agreement to participate in the
delivery of services via the EchoStar satellite system, franchisees also pay a
surcharge of monthly recurring billings in consideration of the Company's
development and implementation of services for delivery over the EchoStar
satellite system. Franchisees are also responsible for paying performing
rights fees in connection with the provision of services in their territories.
Revenues from the sale of other broadcast business services are shared
between the Company and its franchisees and the Company receives 50% or 60% of
these revenues in lieu of royalty payments. Franchisees generally pay a
monthly fee for use of various medium-powered DBS-delivered business music
services offered by the Company, such as Dayparting(R) and Weekparting(R).
NATIONAL SALES PROGRAM
The Company has established a national sales program to market its services
more effectively to subscribers with numerous locations in various
territories, including those served by franchisees, and to address the needs
of these subscribers for uniform service and centralized billing for all of
their locations. Subscribers with 50 or more locations operating in four or
more territories are deemed to be "national accounts." The national sales
program includes a committee of representatives of the Company and its
franchisees that oversees the pricing and other material terms for national
account subscriber contracts. The Company, through its Seattle headquarters,
coordinates the servicing of national accounts by its franchisees and
allocates revenues from national accounts among the participating franchisees.
The national sales office is comprised of 10 salespeople and is supported by
additional customer service personnel. At June 30, 1996, the Company and its
franchisees had national accounts representing over 65,000 subscriber
locations (of which approximately 40,000 were franchisee subscriber
locations), including those of Taco Bell, McDonald's, Burger King, Bob Evans,
Boston Markets, Crate & Barrel, Kroger, Staples, Hallmark and Wal-Mart. None
of the Company's national accounts represents more than 3% of the Company's
consolidated revenues, and the Company's top five national accounts represent
in the aggregate less than 10% of consolidated revenues.
INTERNATIONAL SALES
The Company has agreements with 15 international distributors and
franchisees in 10 countries outside the United States, including Canada,
Mexico, Japan, Argentina and Australia. These distributors and franchisees
either pay royalties to the Company based on their sales of business music
services or a flat fee based on the number of subscribers they serve.
Royalties and other fees from international sales accounted for approximately
2% of the Company's revenues in 1995.
In addition, in August 1995, the Company formed the Muzak Europe joint
venture with Alcas to more aggressively market the Company's services in
Europe. The joint venture, which is headquartered in Hilversum, The
Netherlands, has been offering business music and non-music services via
satellite transmission since January 1996 and is seeking to establish
relationships with key distributors throughout Europe. As of March 31, 1996,
Muzak Europe had entered into agreements with distributors in Ireland, the
United Kingdom, The Netherlands and Belgium. In addition, it recently acquired
the Company's German distributor. As of June 30, 1996, Muzak Europe was
providing services to approximately 3,400 subscriber locations throughout
Europe.
Muzak Europe is a Netherlands corporation in which the Company and Alcas
each own 50% of the outstanding shares. The joint venture agreement between
the Company and Alcas that established Muzak Europe contains restrictions on
the disposition of both parties' shares in Muzak Europe. A credit facility
entered into by Muzak Europe to finance the purchase of the Company's German
distributor requires the Company and Alcas to make any additional investments
in Muzak Europe necessary to maintain equity of four million Netherlands
guilders (approximately $2.5 million), and of at least 25% of its consolidated
total assets. Any additional equity investments must be made equally by the
Company and Alcas. The credit facility also restricts the transfer of the
Company's shares in Muzak Europe.
The Company plans to expand into Latin America and Asia by establishing
similar strategic relationships in those markets.
38
Until recently, the Company has not aggressively pursued the development of
its international business; however, the Company believes that the
international market offers significant growth potential. Although the Company
is now pursuing this market, no assurance can be given that the Company will
achieve significant growth in the international market.
COMPETITION
The Company's principal direct competitors in providing business music
services are AEI Music Network, Inc. ("AEI") of Seattle, Washington, and 3M
Sound and Communications, an affiliate of Minnesota Mining and Manufacturing
Corporation. In addition, the Company competes with a number of local
independent providers of business music. DMX, Inc. and Digital Cable Radio
Associates L.P. market and sell commercial-free music programming over cable
to residential cable television subscribers and have launched DBS services
aimed at business users. No assurance can be given that such competition will
not attract customers to whom the Company markets its services, including its
existing customers. In broadcast data delivery, video, audio marketing and in-
store advertising services, the Company faces competition from numerous
companies using broadcast as well as other delivery systems to provide similar
business services.
There are numerous methods by which programming, such as the Company's
business music services, broadcast data delivery, video, audio marketing and
in-store advertising services, can be delivered by existing and future
competitors, including various forms of DBS services, wireless cable and fiber
optic cable and digital compression over existing telephone lines. Many
competitors or potential competitors with access to these delivery
technologies have substantially greater financial, technical, personnel and
other resources than the Company. In addition, the larger communications
industry of which the Company is a part is undergoing significant and rapid
change, including the development of new services, delivery systems and
interactive technologies. In addition, the recently enacted Telecommunications
Act of 1996 (the "Telecommunications Act") may increase competition in the
markets in which the Company operates. The Telecommunications Act resulted in
comprehensive changes to the regulatory environment for the telecommunications
industry as a whole. The legislation permits telephone companies to enter
certain broadcast services businesses. The entry of telephone companies into
such businesses, with greater access to capital and other resources, could
provide significant competition to the Company. In addition, the legislation
affords relief to DBS transmission providers by exempting them from local
restrictions on small-size reception antennae and preempting the authority of
local governments to impose certain taxes. The Company cannot reasonably
predict how the FCC will enforce the rules and policies promulgated under the
Telecommunications Act, or the effect of such rules and policies on
competition in the market for the Company's services.
The Company competes internationally with AEI and a number of regional
business music providers, some of whom have substantially greater financial,
technical, personnel and other resources than the Company.
The Company competes on the basis of service and system quality, versatility
and flexibility, the variety of its music formats, the availability of its
broadcast data and other non-music services and, to a lesser extent, price.
Even though it is seldom the lowest-priced provider of business music in any
territory, the Company believes that it can compete effectively on all these
bases due to the widespread recognition of the Muzak(R) name, its nationwide
sales and service infrastructure, the quality and variety of its music
programming and its multiple delivery systems. However, no assurance can be
given that the Company will be able to compete successfully with its existing
or potential new competitors or maintain or increase its current market share,
that it will be able to use, or compete effectively with competitors that
adopt, new delivery methods and technologies, or that discoveries or
improvements in the communications, media and entertainment industries will
not render obsolete some or all of the technologies or delivery systems
currently relied upon by the Company.
MUSIC LICENSES
Most music is copyrighted and the Company is required to enter into license
agreements to rerecord and play music in public spaces. The Company has
various types of licensing agreements and arrangements with
39
major rights owners and organizations to permit the production and
distribution of its business music, including (i) master performance licensing
agreements with ASCAP, BMI and SESAC that permit public performance of
copyrighted music in a customer's location, (ii) mechanical licensing
agreements under which the Company receives rights to rerecord and make copies
of copyrighted music and (iii) licensing agreements with record companies that
allow the Company to produce, advertise and distribute to its on-premise tape
subscribers audio tapes containing original artist recordings.
The Company's agreement with ASCAP expires on May 31, 1999. During 1995, the
Company paid ASCAP fees aggregating approximately $2.6 million. The Company's
agreement with BMI expired on December 31, 1993 and its agreement with SESAC
expired on December 31, 1995. The Company has entered into an interim fee
structure with BMI and is in negotiations with BMI and SESAC with respect to
new agreements. The interim fee structure with BMI has been in place on an
ongoing month-to-month basis since the expiration of the underlying agreement,
and provides for continued payments at 1993 levels. The BMI license extension
stipulates that any settlement relating to ongoing fees may be retroactive to
January 1, 1994. Negotiations on a new contract with BMI began in early 1994
and at this time it is not known when negotiations will be completed. The
Company discontinued use of SESAC licensed material upon expiration of the
underlying agreement. Negotiations on a new contract with SESAC began in mid-
1995 and it is not known when these negotiations will be completed. During
1995, the Company paid BMI and SESAC fees aggregating approximately $950,000
and $7,000, respectively. The Company's total fees for mechanical licenses and
original artist recording licenses and licensing agreements with record
companies have not been material.
The Digital Recordings Act of 1995 ("The Digital Recordings Act") was
enacted into law on November 1, 1995. The Digital Recordings Act amends U.S.
copyright law to provide sound recording owners with an exclusive performance
right in sound recordings that are performed through digital transmissions.
The legislation was drafted to protect performers and copyright owners
potentially disadvantaged by the emergence of digital subscription services.
The Digital Recordings Act provides a compulsory license for non-interactive
subscription services, but does not provide a compulsory license for
interactive services (where the listener selects a musical piece based upon a
menu or schedule). As music services to or within a business are specifically
exempted from the provisions of the Digital Recordings Act, the digital
performance right does not apply to the Company's traditional business music
services (whether analog or digital). However, to the extent the Company
provides digital music services to residential customers, via satellite or
other broadcast delivery or via the Internet or other digital means, the
Digital Recordings Act would require the payment of additional royalties.
GOVERNMENT REGULATION
The Company is subject to the regulatory authority of the United States
government and the governments of other countries in which it provides
services to subscribers. The business prospects of the Company could be
adversely affected by the adoption of new laws, policies or regulations that
modify the present regulatory environment. The Company currently provides
music services in a few areas in the United States through 928 to 960
megahertz radio broadcast frequencies, which are transmission facilities
licensed by the FCC. Additionally, the satellites on which the Company
transmits its DBS services in the United States are licensed by the FCC. If
the FCC authorizations for any of these satellites are revoked or are not
extended, the Company would be required to seek alternative satellite
facilities. Laws, regulations and policy, or changes therein, in other
countries could adversely affect the Company's existing services or restrict
the growth of the Company's business in these countries.
PROPERTIES
The Company's headquarters in Seattle, Washington, consisting of
approximately 43,300 square feet, its 35 local and two national sales offices,
which occupy an aggregate of approximately 150,000 square feet, as well as
office and satellite uplink facilities at Raleigh, North Carolina and
Cheyenne, Wyoming and two warehouses in Seattle, are leased. The Company's
total lease payments during 1995 were approximately $2.4 million. In addition,
the Company owns office and warehouse facilities, aggregating approximately
21,000 square feet, in
40
Buffalo, New York, Irving, Texas and Peoria, Illinois. The Company considers
its facilities to be adequate to meet its current and reasonably foreseeable
needs.
EMPLOYEES
At June 30, 1996, the Company had 734 full-time and part-time employees, of
whom 211 held sales and marketing positions, 186 held administrative positions
and 337 held technical and service positions. A total of 78 of the Company's
technical and service personnel are covered by ten union contracts with the
International Brotherhood of Electrical Workers ("IBEW"). The IBEW contracts
have currently effective terms that expire on dates ranging from November 30,
1996 to May 31, 1999. All of the IBEW contracts provide for successive
automatic one-year renewals, unless a notice of renegotiation or termination
is given prior to the end of the then-effective term. The Company does not
have any pending renegotiations of any of the IBEW contracts, but anticipates
that some of the contracts may be renegotiated as their current terms expire.
The Company believes its relationships with its employees and the IBEW are
good.
LEGAL PROCEEDINGS
The Company is subject to various proceedings arising in the ordinary course
of business, none of which, individually or in the aggregate, is expected to
have a material adverse effect on the Company's financial condition, results
of operations or liquidity.
41
MANAGEMENT
The Board of Directors of Music Holdings Corp. ("Music Holdings"), an
affiliate of Centre Partners and the general partner of MLP Acquisition L.P.
("MLP Acquisition"), the managing general partner of the Company, functions as
the governing body of the Company. Executive officers of the Company also act
as officers of Capital Corp., but do not receive additional compensation for
such services.
DIRECTORS, EXECUTIVE OFFICERS AND OTHER SENIOR MANAGEMENT PERSONNEL
Certain information is set forth below concerning (i) executive officers and
other members of senior management of the Company and (ii) directors of Music
Holdings:
NAME AGE POSITION WITH THE COMPANY
Directors and Executive Officers:
John R. Jester.......... 55 President and Chief Executive Officer and a Director
James F. Harrison....... 49 Senior Vice President, Sales and Marketing
Kirk A. Collamer........ 43 Vice President and Chief Financial Officer
Thomas J. Gentry........ 60 Vice President and General Manager, DBS Division
John A. Neal............ 60 Vice President, Owned Operations
Paul F. Balser.......... 54 Director
William A. Boyd......... 55 Director
Mark E. Jennings........ 34 Director
Bruce G. Pollack........ 37 Director
Other Senior Management Personnel:
Wallace R. Borgeson..... 51 Vice President, Centralized Operations
Bruce B. Funkhouser..... 47 Vice President, Programming and Licensing
L. Dale Stewart......... 49 Vice President, Operations and Engineering
Jack D. Craig........... 61 Vice President, Affiliate Sales and Development
Richard Chaffee......... 52 Vice President, Owned Affiliate Operations
Roger C. Fairchild...... 47 Vice President, Owned Affiliate Sales and Market Development
J. Gary Henderson....... 42 President, In-Store Marketing Group
John R. Jester has been a Director of Music Holdings, an affiliate of Centre
Partners and the general partner of MLP Acquisition, the managing general
partner of the Company, since September 1992, and has been President and Chief
Executive Officer of the Company and its predecessors since January 1988.
Prior to joining the Predecessor, Mr. Jester served from 1985 to 1987 as
President of US West Information Systems. From 1983 to 1985, Mr. Jester was
President of Executone Inc. Prior to that, Mr. Jester held various financial
and management positions with Contel Corporation, ITT Corporation and C & P of
Maryland, Inc. Mr. Jester currently serves as a director of Montana Power
Company.
James F. Harrison has been Senior Vice President for Sales and Marketing of
the Company and the Predecessor since March 1988. Prior to joining the
Predecessor, Mr. Harrison served from 1986 to 1987 as President of Telegence
Corporation, a start-up data communications manufacturer. From 1985 to 1986,
Mr. Harrison was Vice President of Marketing with US West Information Systems.
From 1983 to 1984, Mr. Harrison was Vice President of Business Market
Development for Contel Corporation's unregulated businesses. From 1981 to
1982, he was head of Communications Marketing Division at Wang Laboratories,
Inc., and from 1976 to 1980, Mr. Harrison was PBX Systems Engineering and
Development Supervisor and Member of the Technical Staff for Human Factors
Research with Bell Laboratories, Inc.
Kirk A. Collamer, a certified public accountant, has been Vice President of
Finance and Administration and Chief Financial Officer of the Company since
August 1995. Prior to joining the Company, Mr. Collamer served from July 1990
to July 1995 as Vice President of Finance at Ameritech Corporation for its
Enhanced Business Services division and Chief Financial Officer of its New
Zealand subsidiary. Prior to that time, Mr. Collamer held a variety of
financial and accounting positions with Jack Daniel Distillery/Brown-Forman
Corporation, Aladdin Industries, Inc. and Arthur Andersen LLP.
42
Thomas J. Gentry has been Vice President and General Manager of the DBS
Division of the Company and the Predecessor since June 1988. Prior to joining
the Predecessor, Mr. Gentry served from 1985 to 1987 as President and Chief
Executive Officer of SkySwitch Satellite Communications. Mr. Gentry has over
30 years of experience in telecommunications and satellite communications with
Westinghouse Defense Group, COMSAT Corporation, Western Union and Contel
A.S.C.
John A. Neal has been Vice President, Owned Operations of the Company and
the Predecessor since January 1991. From October 1988 to December 1990, Mr.
Neal served as Vice President of National Sales for the Predecessor. From 1987
to 1988, Mr. Neal was Vice President and Chief Operating Officer of Executone
Telecommunications, Rochester, New York. From 1979 to 1987, he was Vice
President of Sales for Contel Executone, where he developed and managed
Executone's National Account program.
Paul F. Balser has been a Director of Music Holdings since September 1992.
Mr. Balser was a partner of Centre Partners from 1986 until August 1995. In
August 1995, Mr. Balser resigned as an officer of the managing general partner
of Centre Partners to become a founding partner of Generation Capital Partners
L.P., a newly organized private investment partnership. From 1982 to 1986, Mr.
Balser was a Managing Director and a member of the Board of Directors of J.
Henry Schroeder Corp. Mr. Balser currently serves as a director of Kansas City
Southern Industries, Inc. (NYSE), The Carbide/Graphite Group, Inc. (Nasdaq),
The Quarton Group--Publishers, Inc., Jungle Jim's Playlands, Inc., Scientific
Games Holdings Corp. (Nasdaq) and Victory Holdings Corp.
William A. Boyd has been a Director of Music Holdings since August 1996.
From September 1995 to August 1996, Mr. Boyd was a private investor. From 1982
to September 1995, Mr. Boyd was owner and president of the largest franchisee
of the Company. Mr. Boyd was President of the Independent Affiliate
Organization from 1994 to 1995 and from 1986 to 1987. Mr. Boyd was also
President of the Company's Owned Affiliate division in 1987. Prior to owning a
franchise, Mr. Boyd held various positions with the Predecessor.
Mark E. Jennings has been a Director of Music Holdings since September 1992.
Through August 1995, Mr. Jennings was a partner of Centre Partners where he
has been employed since 1987. In August 1995, Mr. Jennings resigned as an
officer of the managing general partner of Centre Partners to become a
founding partner of Generation Capital Partners L.P. From 1986 to 1987, Mr.
Jennings was employed at Goldman, Sachs & Co. in its Corporate Finance
Department. Mr. Jennings currently serves as a director of The
Carbide/Graphite Group, Inc. (Nasdaq), Jungle Jim's Playlands, Inc.,
Scientific Games Holdings Corp. (Nasdaq) and Johnny Rockets Group, Inc.
Bruce G. Pollack has been a Director of Music Holdings since September 1995.
Mr. Pollack is a partner of Centre Partners, which he joined in January 1991,
and is a Managing Director of Centre Partners Management LLC, which was formed
in December 1995 to manage investments on behalf of Centre Capital Investors
II, L.P. and affiliated entities. From 1988 to June 1991, Mr. Pollack was an
officer and director of RSG Partners, Inc. and its predecessors, and from 1985
to 1988, Mr. Pollack was an officer of TSG Holdings, Inc. Mr. Pollack
currently serves as a director of Johnny Rockets Group, Inc., The Quarton
Group--Publishers, Inc., Jungle Jim's Playlands, Inc. and Victory Holdings
Corp. On December 28, 1992, a petition under chapter 11 of the Federal
bankruptcy code was filed by SC Corporation and its operating subsidiaries, of
which Mr. Pollack served as a vice president until January 1991. Mr. Pollack
is also a director of, and prior to October 4, 1994 was a vice president of,
Victory Markets Inc. and New Almacs Inc., operating subsidiaries of Victory
Holdings Corp. that filed petitions under chapter 11 on September 20, 1995.
Wallace R. Borgeson has been Vice President of Centralized Operations of the
Company since August 1995. From April 1990 to August 1995, Mr. Borgeson served
as Vice President of Finance and Administration of the Company and the
Predecessor. From 1988 to 1990, Mr. Borgeson was the Chief Financial Officer
of Hickory Farms, Inc., and from 1971 to 1988, he served in various capacities
with Wurlitzer Company, most recently as Chief Financial Officer.
Bruce B. Funkhouser has been Vice President of Programming and Licensing of
the Company and the Predecessor since October 1987. From 1983 to 1987, Mr.
Funkhouser served as Programming and Production Manager for YesCo, Inc., which
was merged with a predecessor to the Predecessor in 1986. Prior to 1983, Mr.
Funkhouser was a record company owner and producer, former broadcasting
manager and on-air talent and Professor of Communications at Bellevue
Community College. He is a member of The American Federation of Television and
Radio Artists and The National Academy of Recording Arts and Sciences.
43
L. Dale Stewart has been Vice President of Operations and Engineering of the
Company and the Predecessor since November 1987. From 1986 to 1987, Mr.
Stewart was Acting General Manager and Operations Manager at the Predecessor's
New York City office. From 1984 to 1986, Mr. Stewart was General Manager of
the Corpus Christi, Texas franchise, and prior to that he worked for the
franchisee in San Antonio, Texas.
Jack D. Craig has been Vice President, Affiliate Sales and Development of
the Company and the Predecessor since September 1988. From 1983 to 1988, Mr.
Craig was Vice President, Dealer Sales for AEI. From 1979 to 1983, Mr. Craig
was Marketing/Sales Manager for Aiphone Corporation, a leading intercom
manufacturer. Prior to joining Aiphone Corporation, Mr. Craig served as Vice
President/Account Supervisor for 11 years with J. Walter Thompson Advertising.
Richard Chaffee has been Vice President, Owned Affiliate Operations of the
Company and the Predecessor since July 1987. Since joining a predecessor to
the Predecessor in 1968, Mr. Chaffee has served in both local sales offices
and franchisee operations in New York, Boston, Chicago, Minneapolis and
Charlotte, primarily as Chief Engineer and Operations Manager.
Roger C. Fairchild has been Vice President, Owned Affiliate Sales and Market
Development of the Company since December 1993. From January 1991 to December
1993, Mr. Fairchild provided consulting services to the Company and the
Predecessor through Strategic Growth Advisory, a marketing and business
development consultancy. From 1989 to 1991, Mr. Fairchild was President of a
start-up voice processing equipment manufacturer. From 1988 to 1989, Mr.
Fairchild was Director of Marketing for ADC Telecommunications, Inc., a $175
million growth-stage telecommunications manufacturer. From 1983 to 1988, Mr.
Fairchild served as a vice president of operations and marketing for a US West
Information Systems subsidiary.
J. Gary Henderson has been President of the In-Store Marketing Group of the
Company since December 1993. From April 1991 to November 1993, Mr. Henderson
was a private investor. From 1986 to April 1991, Mr. Henderson was Executive
Vice President and Chief Marketing Officer of POP Radio Corporation. From 1982
to 1986, Mr. Henderson was Account Director for Actmedia, Inc.
There are no family relationships among the directors and executive officers
of the Company.
44
EXECUTIVE COMPENSATION
The following table sets forth information concerning the compensation of
the Company's Chief Executive Officer and to each of the Company's four other
most highly compensated executive officers (together with the Chief Executive
Officer, the "Named Executive Officers") for services in all capacities
rendered to the Company and its subsidiaries in 1995.
SUMMARY COMPENSATION TABLE
ANNUAL COMPENSATION
------------------------------
NAME AND OTHER ANNUAL ALL OTHER
PRINCIPAL POSITION SALARY BONUS(1) COMPENSATION COMPENSATION(2)
John R. Jester, $213,725 -- -- $2,310
President and Chief Executive
Officer
James F. Harrison, $172,750 -- -- $2,310
Senior Vice President, Sales &
Marketing
John A. Neal, $155,000 -- -- $1,744
Vice President, Owned
Operations
Thomas J. Gentry, $152,000 -- -- $1,995
Vice President, DBS Division
Wallace R. Borgeson, $113,000 -- -- $1,624
Vice President, Centralized
Operations(3)
- ---------------------
(1) Bonuses in respect of services rendered in 1994 were determined and paid
in 1995 ($20,000 for Mr. Harrison, $25,000 for Mr. Neal, $18,000 for Mr.
Gentry and $12,000 for Mr. Borgeson). No bonuses were awarded to Named
Executive Officers with respect to services rendered in 1995.
(2) Consists of contributions by the Company to a defined contribution 401(k)
plan.
(3) Mr. Borgeson served as an executive officer of the Partnership and the
Predecessor until August 1995.
No restricted partnership interest awards, appreciation rights or long-term
incentive plan awards were awarded to, earned by or paid to the Named
Executive Officers during the fiscal year ended December 31, 1995.
DIRECTORS' COMPENSATION
Directors of Music Holdings, the general partner of the managing partner of
the Company, who are also employees of the Company receive no remuneration for
services as members of the Board or any committee of the Board. Directors who
are not employed by the Company receive an annual retainer of $20,000 plus
$3,000 for each meeting of the Board attended, except in the case of the
Centre Partners designees, who receive an annual retainer of $50,000. See
"Certain Relationships and Related Transactions."
CONTRACTS, TERMINATION OF EMPLOYMENT AND CHANGE-IN-CONTROL ARRANGEMENTS
Effective August 31, 1992, the Company entered into five-year employment
agreements with each of John R. Jester, President and Chief Executive Officer
of the Company, and James F. Harrison, Senior Vice President of the Company.
Under his employment agreement, Mr. Jester currently receives an annual base
salary of $220,000, subject to cost of living adjustments. Under his
employment agreement, Mr. Harrison currently receives an annual base salary of
$178,000, subject to cost of living adjustments. Mr. Jester will receive a
bonus equal to 50% of his annual base salary if the Company achieves a
specified performance target for the 12 months ended December 31, 1996, which
target the Company believes will not be reached. If the target is not reached,
the Board of Directors may nonetheless award Mr. Jester a bonus in an amount
and on the terms determined by the Board of Directors (which amount shall not
exceed 50% of his annual base salary). Each of the agreements also provides
for a severance payment equal to the annual base salary and pro rata bonus in
the event of termination due to disability or death during the term of
employment. Both employment agreements also contain confidentiality covenants
and non-solicitation covenants which extend for five and two years,
respectively,
45
beyond the term of the agreements. The Company can terminate either agreement
without further liability in case of the officer's fraud against, or
embezzlement from, the Company, indictment or conviction of a felony or
misdemeanor having a material adverse effect on the Company or material
failure to discharge his duties. In addition, the Company can terminate the
agreements if there is a material uncured default under the Company's credit
agreements or if the Company's cumulative performance level is less than 80%
of the cumulative target projected for any month; provided that in either such
case the Company is required to pay a severance payment equal to, in the case
of Mr. Jester, his annual base salary plus a pro-rated bonus, or, in the case
of Mr. Harrison, his annual base salary. The Company may otherwise terminate
the agreements for any reason during their terms by paying a severance payment
equal to the lesser of (i) two times the then-effective annual base salary and
(ii) the amount of compensation to which Mr. Jester or Mr. Harrison, as the
case may be, would be entitled to receive between the date of termination and
the fifth anniversary of the employment agreement had the agreement in
question not been terminated; but in no event less than one year's annual base
salary at the then effective rate. Mr. Jester would also be entitled to
receive a pro-rated bonus if cumulative performance targets exceed projections
for the twelve-month period preceding such termination.
Pursuant to a letter dated July 7, 1995, Kirk A. Collamer, Vice President
and Chief Financial Officer of the Company, was hired at an annual salary of
$160,000 and is eligible for discretionary bonuses. In addition, Mr. Collamer
was entitled to purchase up to 150,000 units of partnership interests, of
which 60,000 units were subscribed and paid for at $1.75 per unit and the
remainder forfeited. Mr. Collamer was granted options to purchase 150,000
additional units of partnership interests at $1.75 per unit, conditional upon
the performance of the Company. Mr. Collamer also received $120,000 relating
to the sale of his home in Chicago and his relocation to Seattle.
SENIOR MANAGEMENT INCENTIVE PLAN
In January 1996, the Company adopted the Senior Management Incentive Plan
(the "Incentive Plan"), to provide for annual incentive awards to senior
executives of the Company.
The Incentive Plan will be administered by the Compensation Committee.
Initially, there will be eleven participants in the Incentive Plan, including
Messrs. Jester, Harrison, Neal, Gentry and Borgeson.
Annual incentive awards under the Incentive Plan will be based on the
achievement by the Company of target levels of three distinct measures:
EBITDA, operating cash flow (as defined in the Incentive Plan) and revenue
growth in a calendar year. The annual incentives for participants may range
from no award (if minimum target levels are not reached) to a maximum of 43%
(if maximum target levels are reached) of base salary in effect at the end of
a plan year. No awards will be made under the Incentive Plan unless the
minimum target level for EBITDA is reached, regardless of the performance
levels for the other measurements. The Incentive Plan will first be effective
for the 1996 plan year.
If a participant's employment is terminated during a plan year, a pro-rated
bonus may be awarded at the discretion of the Compensation Committee.
Performance target levels may be modified, at the discretion of the
Compensation Committee, for significant transactions, such as acquisitions,
divestitures or development projects.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
Executive compensation decisions are made by the Board of Directors of the
general partner of the managing general partner of the Company, which consists
of Messrs. Balser, Jennings, Jester and Pollack.
Paul F. Balser and Mark E. Jennings are limited partners of MLP and prior to
August 1995 were officers of Park Road Corporation ("Park Road"), the managing
general partner of Centre Partners. Bruce G. Pollack, a director of the
Company, is a limited partner of MLP and is an officer and director of Park
Road.
Centre Partners was paid (i) $324,000 for its efforts in initiating,
structuring and consummating the Comcast Acquisition and (ii) $150,000 as
consideration for the guarantees by MLP and CCI of a $10.0 million unsecured
46
loan made by UBS (the "UBS Loan"). In addition, the Company agreed to pay
Centre Partners $300,000 if any amounts were required to be paid under either
the MLP or CCI guarantee. Such guarantees have been discharged and no payments
were required to be made thereunder.
During each of 1992, 1993 and 1994, the Company paid to Centre Partners the
aggregate amount of $100,000 for the services of the Centre Partners designees
as directors of Music Holdings for the subsequent calendar year. In 1996, the
Company will pay to Centre Partners $162,500 for services provided by the
Centre Partners designees during 1995 and 1996.
BENEFIT PLAN
The Company maintains a 401(k) defined contribution savings and retirement
plan (the "Benefit Plan") that covers substantially all of the Company's
employees, including certain Named Executive Officers. Under the Benefit
Plan's savings portion, eligible employees may contribute from 2% to 14% of
their compensation per year, subject to certain tax law restrictions. The
Company may make a matching contribution of up to a maximum of 100% of the
first 2% and 50% of the next 4%, up to 6% of the total base salary contributed
by the employee each year. The Company's contributions under the retirement
portion of the Benefit Plan are determined annually by the Company, but may
not exceed 3% of the eligible employee's annual compensation. Benefit Plan
participants are immediately vested in their contributions as well as the
Company's contributions.
LIMITATION OF LIABILITY AND INDEMNIFICATION
Section 17-108 of the Delaware Revised Uniform Limited Partnership Act (the
"RULPA") empowers a limited partnership to indemnify and hold harmless any
partner or other person from and against any and all claims and demands
whatsoever.
The Third Amended and Restated Agreement of Limited Partnership of the
Company, dated as of November 4, 1994, as amended (the "Partnership
Agreement"), provides that the general partners of the Company, their
respective affiliates and all officers, partners, directors, employees,
stockholders and agents of the general partners and their respective
affiliates and all officers, agents and employees of the Company who are
partners of the Company, shall not be liable to the Company, to limited
partners or any other person holding an interest in the Company for any losses
sustained or liabilities incurred, including monetary damages, as a result of
any act or omission of the general partners or any such other person if the
conduct of the general partners or such other person did not constitute fraud,
willful misconduct or criminal conduct.
The Partnership Agreement also provides that the Company shall, to the
fullest extent permitted by law, indemnify and hold harmless the general
partners of the Company, their respective affiliates, and the officers,
directors, employees and agents of the general partners and their respective
affiliates, from and against any and all liabilities and expenses which arise
by reason of any such person's management of the affairs of the Company or of
a general partner, or any such person's status as a general partner of the
Company or affiliate thereof, as a partner, director, officer, employee,
stockholder or agent thereof, or as a partner, director, officer, agent or
employee of the Company or a person serving at the request of such persons,
provided, that such liability or expense is not the result of the fraud,
willful misconduct or criminal conduct of the indemnitee.
In the event of the filing of a public offering of securities of the Company
pursuant to a registration statement under the Securities Act of 1933, as
amended (the "Securities Act"), the Partnership Agreement provides that the
Company shall indemnify and hold harmless holders of such securities
participating in such registration, the directors, officers, partners and
controlling persons of such holders, and partners of the Company for any
liability which arises from such filing under the Securities Act.
Pursuant to the provisions of the Delaware General Corporation Law (the
"DGCL"), Capital Corp. has adopted provisions in its Certificate of
Incorporation which provide that directors of Capital Corp. shall not be
personally liable for monetary damages to Capital Corp. or its stockholders
for a breach of fiduciary duty as a
47
director, except for liability as a result of: (i) a breach of the director's
duty of loyalty to Capital Corp. or its stockholders; (ii) acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law; (iii) an act related to the unlawful stock repurchase or
payment of a dividend under Section 174 of the DGCL; and (iv) transactions
from which the director derived an improper personal benefit. Such limitation
of liability does not affect the availability of equitable remedies such as
injunctive relief or rescission.
Capital Corp.'s Certificate of Incorporation also authorizes the Company to
indemnify its officers, directors and other agents, by bylaws, agreements or
otherwise, to the fullest extent permitted under DGCL.
At present, there is no pending litigation or proceeding involving a
director, officer, employee or other agent of the Company or Capital Corp. as
to which indemnification is being sought, nor is the Company or Capital Corp.
aware of any pending or threatened litigation that may result in claims for
indemnification by any director, officer, employee or other agent.
48
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
In January 1994, the Company purchased substantially all of the assets of
Comcast in the Comcast Acquisition for total consideration of approximately
$33.0 million, $28.0 million of which was paid in cash and the balance of
which was paid with a $5.0 million 7% preferred limited partnership interest
of the Partnership.
In order to finance the Comcast Acquisition, the Company's secured term loan
and revolving credit facility, in respect of which UBS acts as agent bank and
is a lender, was increased. In addition, the Company borrowed $10.0 million
under the UBS Loan. In November 1994, the UBS Loan was repaid in full with
proceeds from a subordinated financing involving the sale of $7.0 million in
additional preferred partnership interests to existing investors, including
MLP and certain of the Management Investors, with a pledge of the limited
partnership interests to the lenders under the term loan and revolving credit
facility, and an increase in a subordinated debt facility provided by Barclays
Bank PLC, New York Branch ("Barclays"), and Exeter Venture Lenders, L.P.
("Exeter"). Barclays and Exeter were also granted the right to purchase for
nominal consideration additional interests in the Company representing
approximately 2.8% of the Company's equity.
During the years ended December 31, 1993, 1994 and 1995, and six-month
periods ended June 30, 1995 and 1996, the Company incurred interest expense of
approximately $3.7 million, $6.9 million, $7.4 million, $3.7 million and $3.5
million, respectively, in connection with the UBS term loan and revolving
credit facility and the Barclays subordinated debt facility. In addition, in
1993, 1994 and 1995, the Company paid an aggregate of $250,000, $1.9 million
and $122,000, respectively, in fees to UBS and Barclays in connection with
increases in the Company's term loan and establishment of and increases in the
revolving credit facility and the subordinated debt facility. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations."
For additional information, see "Management--Compensation Committee
Interlocks and Insider Participation."
49
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
The following table sets forth certain information with respect to the
beneficial ownership of the Company as of the date hereof, by (i) each
interestholder known by the Company to beneficially own more than five percent
of the Company, (ii) each director of the general partner of the managing
general partner of the Company, (iii) the Named Executive Officers and (iv)
all directors of the general partner of the managing general partner of the
Company and executive officers of the Company as a group. Except pursuant to
applicable community property laws or as otherwise noted below, each of the
owners identified in the table has sole voting and investment power with
respect to the partnership interests beneficially owned by such person.
NUMBER OF
PARTNERSHIP
NAME AND ADDRESS OF BENEFICIAL OWNER INTERESTS PERCENT
Centre Partners L.P.(1).............................. 12,668,493 62.9%
30 Rockefeller Plaza
Suite 5050
New York, NY 10020
UBS Capital LLC...................................... 1,803,569 9.0%
299 Park Avenue
34th Floor
New York, NY 10171
Comcast Corporation.................................. 1,420,868 7.1%
1500 Market Street
Philadelphia, PA 19102
Barclays Bank PLC.................................... 1,358,617 6.7%
600 Fifth Avenue
New York, NY 10023
John R. Jester....................................... 366,816 1.8%
James F. Harrison.................................... 217,985 1.1%
Thomas J. Gentry..................................... 158,602 0.8%
John A. Neal......................................... 173,637 0.9%
Wallace R. Borgeson.................................. 99,221 0.5%
Paul F. Balser....................................... -- (2) -- (2)
Mark E. Jennings..................................... -- (2) -- (2)
Bruce G. Pollack..................................... -- (3) -- (3)
All directors and executive officers as a group (8
persons)............................................ 1,016,261(4) 5.1%(4)
- ---------------------
(1) Includes partnership interests held by MLP, of which Centre Partners is
the general partner. Centre Partners may be deemed to be indirectly
controlled, through Park Road, the managing general partner of Centre
Partners, by Lester Pollack, a Managing Director of Lazard Freres & Co.
LLC, an underwriter of this Offering, and the father of Bruce G. Pollack,
a director of the general partner of the managing general partner of the
Company.
(2) Excludes partnership interests held by Centre Partners and MLP. Messrs.
Balser and Jennings are limited partners of MLP and prior to August 1995
were officers of Park Road. Each disclaims beneficial ownership of such
partnership interests.
(3) Excludes partnership interests held by Centre Partners and MLP. Mr.
Pollack is a limited partner of MLP and is an officer and director of Park
Road. He disclaims beneficial ownership of such partnership interests.
(4) Excludes partnership interests held by Centre Partners and MLP.
50
DESCRIPTION OF THE SENIOR NOTES
GENERAL
The Senior Notes will be issued pursuant to an Indenture (the "Indenture")
among the Issuers, as joint and several obligors, and , as trustee
(the "Trustee"). The terms of the Senior Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"). The Senior
Notes are subject to all such terms, and holders of Senior Notes are referred
to the Indenture and the Trust Indenture Act for a statement thereof. The
following summary of certain provisions of the Indenture does not purport to
be complete and is qualified in its entirety by reference to the Indenture,
including the definitions therein of certain terms used below. A copy of the
proposed form of Indenture has been filed as an exhibit to the Registration
Statement of which this Prospectus is a part and is available as set forth
under "--Additional Information." The definitions of certain terms used in the
following summary are set forth below under "--Certain Definitions."
The Senior Notes will represent unsecured senior obligations of the Issuers,
will rank senior in right of payment to all Subordinated Indebtedness of the
Issuers and will rank pari passu in right of payment with all senior
indebtedness of the Issuers. At June 30, 1996, on a pro forma basis after
giving effect to the Offering and the application of the estimated net
proceeds therefrom, the Issuers would have had approximately $1.1 million of
total indebtedness, other than the Senior Notes. The Senior Notes will be
guaranteed on a senior basis by all future Domestic Subsidiaries of the
Company (other than Capital Corp.). As of the date hereof, the Company has no
Subsidiaries other than Capital Corp. The Indenture will limit the ability of
the Issuers and their Subsidiaries to incur additional indebtedness; however,
the Issuers and their Subsidiaries will be permitted to incur certain
indebtedness, which may be secured. See "--Certain Covenants." Capital Corp.
has no substantial assets and no operations of any kind, and the Indenture
will limit Capital Corp.'s ability to acquire or hold any significant assets
or other properties or engage in any business activities. See "--Certain
Covenants--Limitation on Activities of Capital Corp."
PRINCIPAL, MATURITY AND INTEREST
The Senior Notes will be limited in aggregate principal amount to $85.0
million and will mature on , 2003. Interest on the Senior Notes will
accrue at the rate of % per annum and will be payable in cash semi-
annually in arrears on and , commencing on ,
1997, to holders of record on the immediately preceding and
. Interest on the Senior Notes will accrue from the most recent date
to which interest has been paid or, if no interest has been paid, from the
date of original issuance. Interest will be computed on the basis of a 360-day
year comprised of twelve 30-day months. Principal, premium, if any, and
interest on the Senior Notes will be payable at the office or agency of the
Issuers maintained for such purpose within the City and State of New York or,
at the option of the Issuers, payment of interest may be made by check mailed
to the holders of the Senior Notes at their respective addresses set forth in
the register of holders of Senior Notes. Until otherwise designated by the
Issuers, the Issuers' office or agency in New York will be the office of the
Trustee maintained for such purpose. The Senior Notes will be issued in
registered form, without coupons, in denominations of $1,000 and integral
multiples thereof.
SUBSIDIARY GUARANTEES
The Company's payment obligations under the Senior Notes will be jointly and
severally guaranteed on a senior basis (the "Subsidiary Guarantees") by the
Guarantors. Each Subsidiary Guarantee will be a senior unsecured obligation of
the Guarantor issuing such Subsidiary Guarantee and will rank pari passu in
right of payment with all Guarantor Senior Indebtedness of such Guarantor. The
obligations of each Guarantor under its Subsidiary Guarantee will be limited
so as not to constitute a fraudulent conveyance under applicable law. See
"Risk Factors--Fraudulent Conveyance."
The Indenture will provide that no Guarantor may consolidate with or merge
with or into (whether or not such Guarantor is the surviving Person), another
corporation, Person or entity whether or not affiliated with such Guarantor,
unless (i) subject to the provisions of the following paragraph, the Person
formed by or surviving any
51
such consolidation or merger (if other than such Guarantor) assumes all the
obligations of such Guarantor pursuant to a supplemental indenture in form and
substance reasonably satisfactory to the Trustee, under the Senior Notes and
the Indenture, (ii) immediately after giving effect to such transaction, no
Default or Event of Default exists and (iii) such Guarantor, or any Person
formed by or surviving any such consolidation or merger, would be permitted by
virtue of the Company's pro forma Fixed Charge Coverage Ratio to incur,
immediately after giving effect to such transaction, at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in the covenant described above under the caption "--Incurrence of
Indebtedness and Issuance of Preferred Equity Interests;" provided that the
foregoing provisions shall not apply to any Asset Sale subject to the
provisions described below under "Repurchase at the Option of Holders--Asset
Sales."
The Indenture will provide that, in the event of a sale or other disposition
of all of the assets of any Guarantor, by way of merger, consolidation or
otherwise, or a sale or other disposition of all of the capital stock of any
Guarantor, such Guarantor (in the event of a sale or other disposition, by way
of such a merger, consolidation or otherwise, of all of the capital stock of
such Guarantor) or the corporation acquiring the property (in the event of a
sale or other disposition of all of the assets of such Guarantor) will be
released and relieved of any obligations under its Subsidiary Guarantee;
provided that the Net Proceeds of such sale or other disposition are applied
in accordance with the applicable provisions of the Indenture described below
under "Repurchase at the Option of Holders--Asset Sales."
OPTIONAL REDEMPTION
The Senior Notes will not be redeemable at the Issuers' option prior to
, 2000. Thereafter, the Senior Notes will be subject to redemption
at the option of the Issuers, in whole or in part, upon not less than 30 nor
more than 60 days' notice, in cash at the redemption prices (expressed as
percentages of principal amount) set forth below, plus accrued and unpaid
interest thereon to the applicable redemption date, if redeemed during the
twelve-month period beginning on of the years indicated below:
REDEMPTION
YEAR PRICE
---- ----------
2000.............................................................. %
2001.............................................................. %
2002 and thereafter............................................... 100.00%
Notwithstanding the foregoing, during the first 36 months after the date of
this Prospectus, the Issuers may on any one or more occasions redeem up to
35.0% of the initially outstanding aggregate principal amount of Senior Notes
at a redemption price equal to % of the principal amount thereof, plus
accrued and unpaid interest, if any, thereon to the redemption date, with the
net proceeds of one or more equity offerings of the Issuers generating in each
case net proceeds of at least $15.0 million; provided that at least 65.0% of
the initially outstanding aggregate principal amount of Senior Notes remain
outstanding immediately after the occurrence of any such redemption; and
provided, further, that such redemption shall occur within 60 days of the date
of the closing of any such equity offering of the Issuers.
MANDATORY REDEMPTION
Except as set forth below under "Repurchase at the Option of Holders," the
Issuers are not required to make mandatory redemption or sinking fund payments
with respect to the Senior Notes.
REPURCHASE AT THE OPTION OF HOLDERS
Change of Control
Upon the occurrence of a Change of Control, each holder of Senior Notes will
have the right to require the Issuers to repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of such holder's Senior
52
Notes pursuant to the offer described below (the "Change of Control Offer") at
an offer price in cash equal to 101% of the aggregate principal amount
thereof, plus accrued and unpaid interest, if any, thereon to the date of
purchase (the "Change of Control Payment"). Within ten days following any
Change of Control, the Issuers will mail a notice to each holder describing
the transaction or transactions that constitute the Change of Control and
offering to repurchase Senior Notes pursuant to the procedures required by the
Indenture and described in such notice. The Issuers will comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities
laws and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of the Senior Notes as a result
of a Change of Control.
On the payment date set forth in the Change of Control Offer (the "Change of
Control Payment Date"), the Issuers will, to the extent lawful, (i) accept for
payment all Senior Notes or portions thereof properly tendered pursuant to the
Change of Control Offer, (ii) deposit with the Paying Agent an amount equal to
the Change of Control Payment in respect of all Senior Notes or portions
thereof so tendered and (iii) deliver or cause to be delivered to the Trustee
the Senior Notes so accepted together with an Officers' Certificate stating
the aggregate principal amount of Senior Notes or portions thereof being
purchased by the Issuers. The Paying Agent will promptly mail to each holder
of Senior Notes so tendered the Change of Control Payment for such Senior
Notes, and the Trustee will promptly authenticate and mail (or cause to be
transferred by book entry) to each holder a new Senior Note equal in principal
amount to any unpurchased portion of the Senior Notes surrendered, if any;
provided that each such new Senior Note will be in a principal amount of
$1,000 or an integral multiple thereof. The Issuers will publicly announce the
results of the Change of Control Offer on or as soon as practicable after the
Change of Control Payment Date.
"Change of Control" means the occurrence of any of the following: (i) the
sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all
or substantially all of the assets of the Company and its Subsidiaries taken
as a whole to any "person" (as such term is used in Section 13(d)(3) of the
Exchange Act) other than the Principals or their Related Parties (as defined
below), (ii) the adoption of a plan relating to the liquidation or dissolution
of the Company, (iii) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that any
"person" (as defined above), other than the Principals and their Related
Parties, becomes the "beneficial owner" (as such term is defined in Rule 13d-3
and Rule 13d-5 under the Exchange Act), directly or indirectly, of more than a
majority of the voting Capital Interests of the Company, (iv) the first day on
which a majority of the members of the Board of Directors are not Continuing
Directors or (v) prior to the reorganization of the Company as a corporation,
the first day on which the Company ceases to own 100% of the outstanding
Equity Interests of Capital Corp. For purposes of this definition, any
transfer of an equity interest of an entity that was formed for the purpose of
acquiring voting Capital Interests of the Company will be deemed to be a
transfer of such portion of such voting Capital Interests as corresponds to
the portion of the equity of such entity that has been so transferred.
Notwithstanding the foregoing, the reorganization of the Company as a
corporation shall not be deemed to constitute a Change of Control, so long as
such reorganization does not result in any of the occurrences described above
under clauses (i) through (v).
The definition of Change of Control includes a phrase relating to the sale,
lease, transfer, conveyance or other disposition of "all or substantially all"
of the assets of the Company and its Subsidiaries taken as a whole. Although
there is a developing body of case law interpreting the phrase "substantially
all," there is no precise established definition of the phrase under
applicable law. Accordingly, the ability of a holder of Senior Notes to
require the Issuers to repurchase such Senior Notes as a result of a sale,
lease, transfer, conveyance or other disposition of less than all of the
assets of the Company and its Subsidiaries taken as a whole to another person
or group may be uncertain.
"Continuing Directors" means, as of any date of determination, any member of
the Board of Directors who (i) was a member of such Board of Directors on the
date of the Indenture or (ii) was nominated for election
or elected to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of such Board at the time of such
nomination or election.
"Principals" means MLP Acquisition, MLP Holdings, Music Holdings, Centre
Partners and Park Road.
53
"Related Party" with respect to any Principal means (a) any controlling
stockholder or general partner, 80% (or more) owned Subsidiary, or spouse or
immediate family member (in the case of an individual) of such Principal or (b)
any trust, corporation, partnership or other entity, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding an 80% or more
controlling interest of which consist of such Principal and/or such other
Persons referred to in the immediately preceding clause (a), or (c) any Person
employed by the Company in a management capacity as of the date of the
Indenture.
Except as described above with respect to a Change of Control, the Indenture
does not contain provisions that permit the holders of the Senior Notes to
require that the Issuers repurchase or redeem the Senior Notes in the event of
a takeover, recapitalization or similar restructuring.
Asset Sales
The Indenture will provide that the Company and Capital Corp. will not, and
will not permit any of their respective Subsidiaries to, engage in an Asset
Sale, unless (a) the Company or Capital Corp. (or the Subsidiary, as the case
may be) receives consideration at the time of such Asset Sale at least equal to
the fair market value (evidenced by a resolution of the Board of Directors set
forth in an Officers' Certificate delivered to the Trustee) of the assets or
Equity Interests issued or sold or otherwise disposed of and (b) at least 75%
of the consideration therefor received by the Company, Capital Corp. or such
Subsidiary is in the form of cash or Cash Equivalents; provided that the amount
of (i) any liabilities (as shown on the Company's, Capital Corp.'s or such
Subsidiary's most recent balance sheet or in the notes thereto), of the
Company, Capital Corp. or any Subsidiary (other than liabilities that are by
their terms subordinated to the Senior Notes or any guarantee thereof) that are
assumed by the transferee of any such assets and (ii) any notes or other
obligations received by the Company, Capital Corp. or any such Subsidiary from
such transferee that are promptly converted by the Company, Capital Corp. or
such Subsidiary into cash (to the extent of the cash received), shall be deemed
to be cash for purposes of this provision; and provided, further, that the
limitation in clause (b) above shall not apply to any Asset Sale in which the
cash portion of the consideration received therefor, determined in accordance
with foregoing proviso, is equal to or greater than what the after-tax net
proceeds would have been had such Asset Sale complied with the aforementioned
limitation.
Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the
Issuers may apply such Net Proceeds (a) to permanently reduce Pari Passu
Indebtedness, (b) to permanently reduce Indebtedness permitted to be incurred
pursuant to clause (i) of the second paragraph of the covenant described below
under "--Incurrence of Indebtedness and Issuance of Preferred Equity Interests"
or (c) an investment in another business, the making of a capital expenditure
or the acquisition of other tangible assets, in each case, in the same or a
similar or related line of business as the Issuers were engaged in on the date
of the Indenture. Pending the final application of any such Net Proceeds, the
Company may temporarily reduce Senior Revolving Debt or otherwise invest such
Net Proceeds in any manner that is not prohibited by the Indenture. Any Net
Proceeds from Asset Sales that are not applied or invested as provided in the
first sentence of this paragraph will be deemed to constitute "Excess
Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million,
the Issuers will be required to make an offer to all holders of Senior Notes
(an "Asset Sale Offer") to purchase the maximum principal amount of Senior
Notes that may be purchased out of the Excess Proceeds, at an offer price in
cash in an amount equal to 101% of the principal amount thereof, plus accrued
and unpaid interest thereon to the date of purchase (the "Asset Sale Offer
Price"), in accordance with the procedures set forth in the Indenture. To the
extent that the aggregate amount of Senior Notes tendered pursuant to an Asset
Sale Offer is less than the Excess Proceeds, the Issuers may use any remaining
Excess Proceeds for general corporate purposes. If the aggregate principal
amount of Senior Notes surrendered by holders thereof exceeds the amount of
Excess Proceeds, the Trustee shall select the Senior Notes to be purchased on a
pro rata basis. Upon completion of such offer to purchase, the amount of Excess
Proceeds shall be reset at zero.
SELECTION AND NOTICE
If less than all of the Senior Notes are to be redeemed at any time,
selection of Senior Notes for redemption will be made by the Trustee in
compliance with the requirements of the principal national securities exchange,
if
54
any, on which the Senior Notes are listed, or, if the Senior Notes are not so
listed, on a pro rata basis, by lot or by such method as the Trustee shall deem
fair and appropriate; provided that no Senior Notes of $1,000 or less shall be
redeemed in part. Notices of redemption shall be mailed by first class mail at
least 30 but not more than 60 days before the redemption date to each holder of
Senior Notes to be redeemed at its registered address. If any Senior Note is to
be redeemed in part only, the notice of redemption that relates to such Senior
Note shall state the portion of the principal amount thereof to be redeemed. A
new Senior Note in principal amount equal to the unredeemed portion thereof
will be issued in the name of the holder thereof upon cancellation of the
original Senior Note. On and after the redemption date, interest ceases to
accrue on Senior Notes or portions of them called for redemption.
CERTAIN COVENANTS
Restricted Payments
The Indenture will provide that the Company and Capital Corp. will not, and
will not permit any of their respective Subsidiaries to, directly or
indirectly, (i) declare or pay any dividend or make any distribution on account
of the Company's, Capital Corp.'s or any of their respective Subsidiaries'
Equity Interests (including, without limitation, any such distribution by such
Persons in connection with any merger or consolidation involving the Company or
Capital Corp.)(other than dividends or distributions payable in Equity
Interests (other than Disqualified Interests) of the Company or dividends or
distributions payable to the Company or any Wholly Owned Subsidiary of the
Company); (ii) purchase, redeem or otherwise acquire or retire for value any
Equity Interests of the Company or any direct or indirect parent of the
Company; (iii) make any principal payment on, or purchase, redeem, defease or
otherwise acquire or retire for value any Subordinated Indebtedness, except at
final maturity; or (iv) make any Restricted Investment (all such payments and
other actions set forth in clauses (i) through (iv) above being collectively
referred to as "Restricted Payments"), unless, at the time of and after giving
effect to such Restricted Payment:
(A) no Default or Event of Default shall have occurred and be continuing
or would occur as a consequence thereof; and
(B) the Company would, at the time of such Restricted Payment and after
giving pro forma effect thereto as if such Restricted Payment had been made
at the beginning of the most recently ended four fiscal quarters for which
financial statements are available, have been permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage
Ratio test set forth in the first paragraph of the covenant described above
under caption "--Incurrence of Indebtedness and Issuance of Preferred
Equity Interests;" and
(C) such Restricted Payment, together with the aggregate of all other
Restricted Payments made by the Company and its Subsidiaries after the date
of the Indenture (excluding Restricted Payments permitted by clauses (ii),
(iii), (iv), (vi), (vii) and (viii) of the next succeeding paragraph), is
less than the sum of (1) 50% of the Consolidated Net Income of the Company
for the period (taken as one accounting period) from the beginning of the
first fiscal quarter commencing after the date of the Indenture to the end
of the Company's most recently ended fiscal quarter for which internal
financial statements are available at the time of such Restricted Payment
(or, if such Consolidated Net Income for such period is a deficit, less
100% of such deficit), plus (2) 100% of the aggregate net cash proceeds
received by the Company from the issue or sale since the date of the
Indenture of Equity Interests of the Company or of debt securities of the
Company that have been converted into such Equity Interests (other than
Equity Interests (or convertible debt securities) sold to a Subsidiary of
the Company and other than Disqualified Interests or debt securities that
have been converted into Disqualified Interests), plus (3) to the extent
that any Restricted Investment that was made after the date of the
Indenture is sold for cash or otherwise liquidated or repaid for cash, the
lesser of (x) the cash return of capital with respect to such Restricted
Investment (less the cost of disposition, if any) and (y) the initial
amount of such Restricted Investment.
The foregoing provisions will not prohibit (i) the payment of any dividend or
distribution within 60 days after the date of declaration thereof, if at said
date of declaration such payment would have complied with the provisions of the
Indenture; (ii) the redemption, repurchase, retirement or other acquisition of
any Equity
55
Interests of the Company in exchange for, or out of the proceeds of, the
substantially concurrent sale (other than to a Subsidiary of the Company) of
other Equity Interests of the Company (other than any Disqualified Interests);
provided that the amount of any such net cash proceeds that are utilized for
any such redemption, repurchase, retirement or other acquisition shall be
excluded from clause (C)(2) of the preceding paragraph; (iii) the defeasance,
redemption or repurchase of Subordinated Indebtedness with the net cash
proceeds from an incurrence of Permitted Refinancing Indebtedness or the
substantially concurrent sale (other than to a Subsidiary of the Company) of
Equity Interests of the Company (other than Disqualified Interests); provided
that the amount of any such net cash proceeds that are utilized for any such
redemption, repurchase, retirement or other acquisition shall be excluded from
clause (C)(2) of the preceding paragraph; (iv) quarterly distributions in
accordance with the Code in respect of partners' income tax liability in an
amount not to exceed the Tax Amount; (v) the repurchase, redemption or other
acquisition or retirement for value of any Equity Interests of the Company or
any Subsidiary of the Company held by any member of the Company's (or any of
its Subsidiaries') management pursuant to any management equity subscription
agreement or stock option agreement in effect as of the date of the Indenture;
provided that the aggregate price paid for all such repurchased, redeemed,
acquired or retired Equity Interests shall not exceed $500,000 in each twelve-
month period, plus the amount of any such amounts which remain unused at the
end of the two prior twelve-month periods but in no event in excess of $1.5
million in any such twelve-month period, plus the aggregate cash proceeds
received by the Company during such twelve-month period from any reissuance of
Equity Interests by the Company to members of management of the Company and its
Subsidiaries; and no Default or Event of Default shall have occurred and be
continuing immediately after such transaction; (vi) the redemption, or
conversion to subordinated convertible Indebtedness in accordance with the
Partnership Agreement as in effect on the date of the Indenture, of the
Company's Class C Limited Partner Interest outstanding as of the date of the
Indenture and any repayment of such subordinated convertible Indebtedness into
which such Class C Limited Partner Interest is converted; (vii) prior to the
reorganization of the Company as a corporation, distributions or payments to
partners of the Company in an aggregate amount not to exceed $750,000 in any
fiscal year in respect of Administrative Expenses; and (viii) following the
reorganization of the Company as a corporation, (A) payments by the Company to
its parent pursuant to any tax sharing agreement between the Company and such
parent, (B) reimbursement payments by the Company to such parent in respect of
out-of-pocket insurance payments made by such parent on behalf of the Company
and its Subsidiaries and (C) payments by the Company to such parent in respect
of Administrative Expenses.
The amount of all Restricted Payments (other than cash) shall be the fair
market value (evidenced by a resolution of the Board of Directors set forth in
an Officers' Certificate delivered to the Trustee) on the date of the
Restricted Payment of the asset(s) proposed to be transferred by the Company,
Capital Corp. or such Subsidiary, as the case may be, pursuant to the
Restricted Payment. Not later than the date of making any Restricted Payment,
the Issuers shall deliver to the Trustee an Officers' Certificate stating that
such Restricted Payment is permitted and setting forth the basis upon which the
calculations required by the covenant "Restricted Payments" were computed,
which calculations may be based upon the Issuers' latest available financial
statements.
Incurrence of Indebtedness and Issuance of Preferred Equity Interests
The Indenture will provide that the Company and Capital Corp. will not, and
will not permit any of their respective Subsidiaries to, directly or
indirectly, create, incur, issue, assume, guaranty or otherwise become directly
or indirectly liable, contingently or otherwise, with respect to (collectively,
"incur") any Indebtedness (including Acquired Debt) and that the Company and
Capital Corp. will not issue any Disqualified Interests and will not permit any
of their respective Subsidiaries to issue any shares of preferred stock or
preferred partnership interests; provided that the Company and any of its
Subsidiaries that is a Guarantor may incur Indebtedness (including Acquired
Debt) or issue Disqualified Interests, if the Fixed Charge Coverage Ratio for
the Company's most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on which such
additional Indebtedness is incurred or such Disqualified Interests is issued
would have been at least (a) 2.0 to 1, on or prior to December 31, 1998, and
(b) 2.25 to 1, thereafter, in each
case, determined on a pro forma basis (including a pro forma application of the
net proceeds therefrom), as if the additional Indebtedness had been incurred,
or the Disqualified Interests had been issued, as the case may be, at the
beginning of such four-quarter period.
56
The foregoing provisions will not apply to:
(i) the incurrence by the Company and any of its Subsidiaries that is a
Guarantor of Senior Revolving Debt and letters of credit pursuant to any
Credit Facility for working capital purposes (with letters of credit being
deemed to have a principal amount equal to the maximum potential liability
of the Company thereunder) in an aggregate principal amount not to exceed
the amount of the Borrowing Base;
(ii) the incurrence by the Company and its Subsidiaries of the Existing
Indebtedness and the Company's Class C Limited Partner Interest outstanding
as of the date of the Indenture;
(iii) the incurrence by the Company and Capital Corp. of the Indebtedness
represented by the Senior Notes;
(iv) the incurrence by the Company and any of its Subsidiaries that is a
Guarantor of Permitted Refinancing Indebtedness in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund, Indebtedness that was permitted by the Indenture to be incurred;
(v) the incurrence by the Company or any of its Subsidiaries of
intercompany Indebtedness between or among the Company and any of its
Wholly Owned Subsidiaries; provided that (A) any subsequent issuance or
transfer of Equity Interests that results in any such Indebtedness being
held by a Person other than a Wholly Owned Subsidiary and (B) any sale or
other transfer of any such Indebtedness to a Person that is not either the
Company or a Wholly Owned Subsidiary shall be deemed, in each case, to
constitute an incurrence of such Indebtedness by the Company or such
Subsidiary, as the case may be;
(vi) the incurrence by the Company and any of its Subsidiaries that is a
Guarantor of Indebtedness represented by Capital Lease Obligations,
mortgage financings or purchase money obligations, in each case incurred
for the purpose of financing up to all or any part of the purchase price or
cost of construction or improvement of property used in the business of the
Company or such Subsidiary, in an aggregate principal amount not to exceed
$2.0 million at any time outstanding;
(vii) the incurrence by the Company and any of its Subsidiaries that is a
Guarantor of Hedging Obligations that are incurred for the purpose of
fixing or hedging interest rate risk with respect to any floating rate
Indebtedness that is permitted by the terms of this Indenture to be
outstanding;
(viii) the incurrence by the Company and any of its Subsidiaries that is
a Guarantor of statutory obligations, surety or appeal bonds, performance
bonds or other obligations of a like nature incurred in the ordinary course
of business;
(ix) the incurrence by the Foreign Subsidiaries of the Company of
Indebtedness in an aggregate amount not to exceed $3.0 million at any time
outstanding; and
(x) the incurrence by the Company and any of its Subsidiaries that is a
Guarantor of Indebtedness not otherwise permitted under the Indenture in an
aggregate amount not to exceed $5.0 million at any time outstanding, less
the aggregate principal amount of any Indebtedness incurred pursuant to
clause (ix) of this paragraph.
Liens
The Indenture will provide that the Company and Capital Corp. will not, and
will not permit any of their respective Subsidiaries to, create, incur, assume
or otherwise cause or suffer to exist or become effective any Lien of any kind
(other than Permitted Liens) upon any of their property or assets, now owned
or hereafter acquired, unless all payments due under the Indenture and the
Senior Notes and the Subsidiary Guarantees, if any, are secured on an equal
and ratable basis with the obligations so secured until such time as such
obligations are no longer secured by a Lien.
Dividend and Other Payment Restrictions Affecting Subsidiaries
The Indenture will provide that the Company and Capital Corp. will not, and
will not permit any of their respective Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective
any encumbrance or restriction on the ability of any Subsidiary to (a)(i) pay
dividends or make any other
57
distributions to the Company, Capital Corp. or any of their respective
Subsidiaries (A) on their Capital Interests or (B) with respect to any other
interest or participation in, or measured by, its profits, or (ii) pay any
indebtedness owed to the Company, Capital Corp. or any of their respective
Subsidiaries, (b) make loans or advances to the Company, Capital Corp. or any
of their respective Subsidiaries or (c) transfer any of its properties or
assets to the Company, Capital Corp. or any of their respective Subsidiaries,
except for such encumbrances or restrictions existing under or by reason of
(i) Existing Indebtedness as in effect on the date of the Indenture, (ii) any
Credit Facility, provided that any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings
thereto are no more restrictive with respect to such dividend and other
payment restrictions than those contained in such Credit Facility as in effect
on the date of its execution, (iii) the Indenture and the Senior Notes, (iv)
applicable law, (v) by reason of customary non-assignment provisions in leases
entered into in the ordinary course of business and consistent with past
practices, (vi) purchase money obligations for property acquired in the
ordinary course of business that impose restrictions of the nature described
in clause (c) above on the property so acquired, (vii) existing with respect
to any Person or the property or assets of such Person acquired by the Company
or any of its Subsidiaries, at the time of such acquisition and not incurred
in contemplation thereof, which encumbrances or restrictions are not
applicable to any Person or the property or assets of any Person other than
such Person or the property or assets of such Person so acquired, or (viii)
Permitted Refinancing Indebtedness, provided that the restrictions contained
in the agreements governing such Permitted Refinancing Indebtedness are no
more restrictive than those contained in the agreements governing the
Indebtedness being refinanced.
Merger, Consolidation, or Sale of Assets
The Indenture will provide that neither the Company nor Capital Corp. may
consolidate or merge with or into (whether or not the Company or Capital
Corp., as the case may be, is the surviving corporation), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of
its properties or assets in one or more related transactions to, another
corporation, Person or entity, unless (i) the Company or Capital Corp., as the
case may be, is the surviving Person or the entity or the Person formed by or
surviving any such consolidation or merger (if other than the Company or
Capital Corp., as the case may be) or to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have been made is
organized and existing under the laws of the United States, any state thereof
or the District of Columbia, provided that Capital Corp. may not consolidate
or merge with or into any entity other than a corporation satisfying such
requirements for so long as the Company remains a partnership; (ii) the entity
or Person formed by or surviving any such consolidation or merger (if other
than the Company or Capital Corp.) or the entity or Person to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made assumes all the obligations of the Issuers under the Senior Notes and the
Indenture pursuant to a supplemental indenture in a form reasonably
satisfactory to the Trustee; (iii) immediately after such transaction no
Default or Event of Default exists; and (iv) the Company, Capital Corp. or the
entity or Person formed by or surviving any such consolidation or merger, or
to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made (A) will have Consolidated Net Worth
immediately after the transaction equal to or greater than the Consolidated
Net Worth of the Company or Capital Corp. immediately preceding the
transaction and (B) will, at the time of such transaction and after giving pro
forma effect thereto as if such transaction had occurred at the beginning of
the applicable four-quarter period, be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in the first paragraph of the covenant described above under the caption
"Incurrence of Indebtedness and Issuance of Preferred Equity Interests."
Notwithstanding the foregoing, the Indenture will permit the Company to
reorganize as a corporation in accordance with the procedures established in
the Indenture provided that such reorganization is not materially adverse to
holders of the Senior Notes (it being recognized that such reorganization
shall not be considered materially adverse to the holders of Senior Notes
solely because (a) of the accrual of deferred tax liabilities resulting from
such reorganization or (b) the successor or surviving corporation (i) is
subject to income taxation as an entity or (ii) is considered to be an
"includible corporation" of an affiliated group of corporations within the
meaning of Section 1504(a)(1) of the Code or any similar state or local law)
and certain other conditions are satisfied.
58
Transactions with Affiliates
The Indenture will provide that the Company and Capital Corp. will not, and
will not permit any of their respective Subsidiaries to, sell, lease, transfer
or otherwise dispose of any of its properties or assets to, or purchase any
property or assets from, or enter into or make any contract, agreement,
understanding, loan, advance or guarantee with, or for the benefit of, any
Affiliate (each of the foregoing, an "Affiliate Transaction"), unless (a) such
Affiliate Transaction is on terms that are no less favorable to the Company,
Capital Corp. or the relevant Subsidiary than those that would have been
obtained in a comparable transaction by the Company, Capital Corp. or such
Subsidiary with an unrelated Person and (b) the Company or Capital Corp., as
the case may be, delivers to the Trustee (i) with respect to any Affiliate
Transaction involving aggregate consideration in excess of $1.0 million, a
resolution of the Board of Directors set forth in an Officers' Certificate
certifying that such Affiliate Transaction complies with clause (a) above and
that such Affiliate Transaction has been approved by a majority of the
disinterested members of the Board of Directors and (ii) with respect to any
Affiliate Transaction involving aggregate consideration in excess of $7.5
million, an opinion as to the fairness to the Company, Capital Corp. or such
Subsidiary of such Affiliate Transaction from a financial point of view issued
by a nationally-recognized investment banking firm; provided that (A) any
reasonable employment arrangement entered into by the Company, Capital Corp.
or any of their respective Subsidiaries in the ordinary course of business of
the Company, Capital Corp. or such Subsidiary, (B) transactions between or
among the Company, Capital Corp. and/or their respective Subsidiaries, (C)
following the reorganization of the Company as a corporation, the payment of
reasonable fees, expense reimbursement and customary indemnification and other
similar arrangements to directors of the Company, (D) reasonable loans or
advances to employees of the Company and its Subsidiaries in the ordinary
course of business and (E) transactions permitted by the provisions of the
Indenture described above under the caption "--Restricted Payments," in each
case, shall not be deemed to be Affiliate Transactions.
Sale and Leaseback Transactions
The Indenture will provide that the Company and Capital Corp. will not, and
will not permit any of their respective Subsidiaries to, enter into any sale
and leaseback transaction; provided that the Company and any of its
Subsidiaries that is a Guarantor may enter into a sale and leaseback
transaction if (a) the Company or such Subsidiary could have (i) incurred
Indebtedness in an amount equal to the Attributable Debt relating to such sale
and leaseback transaction pursuant to the covenant described above under the
caption "--Incurrence of Indebtedness and Issuance of Preferred Equity
Interests" and (ii) incurred a Lien to secure such Indebtedness pursuant to
the covenant described above under the caption "--Liens," (b) the gross cash
proceeds of such sale and leaseback transaction are at least equal to the fair
market value (as determined in good faith by the Board of Directors and set
forth in an Officers' Certificate delivered to the Trustee) of the property
that is the subject of such sale and leaseback transaction and (c) the
transfer of assets in such sale and leaseback transaction is permitted by, and
the Company or such Subsidiary applies the proceeds of such transaction in
compliance with, the covenant described above under the caption "--Asset
Sales."
Limitation on Issuances and Sales of Capital Interests of Wholly Owned
Subsidiaries
The Indenture will provide that the Company and Capital Corp. (a) will not,
and will not permit any Wholly Owned Subsidiary of the Company or Capital
Corp. to, transfer, convey, sell, lease or otherwise dispose of any Capital
Interests of any Wholly Owned Subsidiary of the Company or Capital Corp. to
any Person (other than the Company, Capital Corp. or a Wholly Owned Subsidiary
of the Company or Capital Corp.), unless (i) such transfer, conveyance, sale,
lease or other disposition is of all the Capital Interests of such Wholly
Owned Subsidiary and (ii) the cash Net Proceeds from such transfer,
conveyance, sale, lease or other disposition are applied in accordance with
the covenant described above under the caption "--Asset Sales," and (b) will
not permit any Wholly Owned Subsidiary of the Company or Capital Corp. to
issue any of its Equity Interests (other than, if necessary, Capital Interests
constituting directors' qualifying shares or interests) to any Person other
than to the Company, Capital Corp. or a Wholly Owned Subsidiary of the Company
or Capital Corp.; provided that, notwithstanding the foregoing, Capital Corp.
shall, at all times prior to the reorganization of the Company as a
corporation, remain a Wholly Owned Subsidiary of the Company.
59
Limitations on Issuances of Guarantees of Indebtedness
The Indenture will provide that the Company and Capital Corp. will not
permit any Subsidiary, directly or indirectly, to Guarantee or secure the
payment of any other Indebtedness, unless such Subsidiary simultaneously
executes and delivers a supplemental indenture to the Indenture providing for
the Guarantee of the payment of the Senior Notes by such Subsidiary, which
Guarantee shall be senior to or pari passu with such Subsidiary's Guarantee
of, or pledge to secure, such other Indebtedness. Notwithstanding the
foregoing, any such Guarantee by a Subsidiary of the Senior Notes shall
provide by its terms that it shall be automatically and unconditionally
released and discharged upon either (a) the release or discharge of such
Guarantee of such Indebtedness, except a discharge by or as a result of
payment under such Guarantee, or (b) any sale, exchange or transfer, to any
Person not an Affiliate of the Company or Capital Corp., of all of the
Company's or Capital Corp.'s Capital Interests in, or all or substantially all
the assets of, such Subsidiary, which sale, exchange or transfer is made in
compliance with the applicable provisions of the Indenture. The form of such
Guarantee will be attached as an exhibit to the Indenture.
Subsidiary Guarantees
The Indenture will provide that if the Company or any of its Subsidiaries
shall, after the date of the Indenture, transfer or cause to be transferred,
in one or a series of transactions (whether or not related), any assets,
businesses, divisions, real property or equipment having an aggregate fair
market value (as determined in good faith by the Board of Directors) in excess
of $1.0 million to any Subsidiary that is not a Guarantor, or if the Company
or any of its Subsidiaries shall acquire another Subsidiary having total
assets with a fair market value (as determined in good faith by the Board of
Directors) in excess of $1.0 million, then such transferee or acquired
Subsidiary shall execute a Subsidiary Guarantee and a supplemental indenture
and deliver an opinion of counsel, in accordance with the terms of the
Indenture.
Business Activities
The Company will not, and will not permit any Subsidiary to, engage in any
business other than such business activities as the Company or its
Subsidiaries are engaged in on the date of the Indenture and such business
activities similar or reasonably related thereto.
Limitation on Activities of Capital Corp.
In addition to the restrictions set forth under "--Incurrence of
Indebtedness and Issuance of Preferred Equity Interests," the Indenture will
provide that Capital Corp. may not incur any Indebtedness, unless (a) the
Company is a co-obligor or guarantor of such Indebtedness or (b) the net
proceeds of such Indebtedness are lent to the Company, used to acquire
outstanding debt securities issued by the Company or used directly or
indirectly to refinance or discharge Indebtedness permitted under the
limitations of this paragraph. The Indenture will also provide that Capital
Corp. may not acquire or hold any significant assets or other properties or
engage in any business activities, other than those business activities
related directly or indirectly to obtaining money or arranging financing for
the Company.
Payments for Consent
The Indenture will provide that neither the Company, Capital Corp. nor any
of their respective Subsidiaries will, directly or indirectly, pay or cause to
be paid any consideration, whether by way of interest, fee or otherwise, to
any holder of any Senior Notes for or as an inducement to any consent, waiver
or amendment of any of the terms or provisions of the Indenture or the Senior
Notes, unless such consideration is offered to be paid or agreed to be paid to
all holders of the Senior Notes that consent, waive or agree to amend in the
time frame set forth in the solicitation documents relating to such consent,
waiver or agreement.
Reports
The Indenture will provide that, whether or not required by the rules and
regulations of the Commission, so long as any Senior Notes are outstanding,
the Issuers will furnish to the holders of Senior Notes (i) all quarterly
60
and annual financial information that would be required to be contained in a
filing with the Commission on Forms 10-Q and 10-K if the Issuers were required
to file such Forms, including a "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and, with respect to the annual
information only, a report thereon by the Issuers' certified independent
accountants and (ii) all current reports that would be required to be filed
with the Commission on Form 8-K if the Issuers were required to file such
reports. In addition, whether or not required by the rules and regulations of
the Commission, the Issuers will file a copy of all such information and
reports with the Commission for public availability (unless the Commission
will not accept such a filing) and make such information available to
securities analysts and prospective investors upon request.
EVENTS OF DEFAULT AND REMEDIES
The Indenture will provide that each of the following constitutes an Event
of Default: (i) default for 30 days in the payment when due of interest on the
Senior Notes; (ii) default in the payment of all or any part of the principal,
or premium, if any, on the Senior Notes when and as the same becomes due and
payable at maturity, upon redemption, by acceleration, or otherwise,
including, without limitation, the payment of the Change of Control Payment or
the Asset Sale Offer Price, or otherwise; (iii) failure by any of the Issuers
or any of their respective Subsidiaries to observe or perform any other
covenant or agreement on the part of such Issuer or such Subsidiary contained
in the Senior Notes or the Indenture and, subject to certain exceptions, the
continuance of such failure for a period of 30 days after written notice is
given to the Issuers by the Trustee or to the Issuers and the Trustee by the
holders of at least 25% in aggregate principal amount of the Senior Notes then
outstanding, specifying such default and requiring that it be remedied; (iv)
default under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness for
money borrowed by the Company, Capital Corp. or any of their respective
Subsidiaries (or the payment of which is guaranteed by the Company, Capital
Corp. or any of their respective Subsidiaries) whether such Indebtedness or
guarantee now exists, or is created after the date of the Indenture, which
default (A) is caused by a failure to pay principal of or premium, if any, or
interest on such Indebtedness prior to the expiration of the grace period
provided in such Indebtedness on the date of such default (a "Payment
Default") or (B) results in the acceleration of such Indebtedness prior to its
express maturity and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a Payment Default or the maturity of
which has been so accelerated, aggregates $5.0 million or more; (v) failure by
the Company, Capital Corp. or any of their respective Subsidiaries to pay
final judgments aggregating in excess of $5.0 million, which judgments are not
paid, discharged or stayed for a period of 60 days; (vi) except as permitted
by the Indenture, any Subsidiary Guarantee shall be held in any judicial
proceeding to be unenforceable or invalid or shall cease for any reason to be
in full force and effect or any Guarantor, or any Person acting on behalf of
any Guarantor, shall deny or disaffirm its obligations under its Subsidiary
Guarantee; and (vii) certain events of bankruptcy or insolvency with respect
to the Company, Capital Corp. or any of their respective Significant
Subsidiaries.
If any Event of Default occurs and is continuing, the Trustee or the holders
of at least 25% in principal amount of the then outstanding Senior Notes may
declare all the Senior Notes to be due and payable immediately.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency, with respect to the Company,
Capital Corp., any Significant Subsidiary or any group of Subsidiaries that,
taken together, would constitute a Significant Subsidiary, all outstanding
Senior Notes will become due and payable without further action or notice.
Holders of the Senior Notes may not enforce the Indenture or the Senior Notes
except as provided in the Indenture. Subject to certain limitations, holders
of a majority in principal amount of the then outstanding Senior Notes may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from holders of the Senior Notes notice of any continuing Default or
Event of Default (except a Default or Event of Default relating to the payment
of principal or interest) if it determines that withholding notice is in their
interest.
In the case of any Event of Default occurring by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Issuers with
the intention of avoiding payment of the premium that the Issuers would have
had to pay if the Issuers then had elected to redeem the Senior Notes pursuant
to the optional redemption provisions of the Indenture, an equivalent premium
shall also become and be immediately due and payable to the extent permitted
by law upon the acceleration of the Senior Notes. If an Event of Default
occurs prior to , 2000 by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of
61
the Issuers with the intention of avoiding the prohibition on redemption of
the Senior Notes prior to , 2000, then the premium specified in
the Indenture shall also become immediately due and payable to the extent
permitted by law upon the acceleration of the Senior Notes.
The holders of a majority in aggregate principal amount of the Senior Notes
then outstanding by notice to the Trustee may on behalf of the holders of all of
the Senior Notes waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of Default
in the payment of interest on, or the principal of, the Senior Notes.
The Issuers are required to deliver to the Trustee annually a statement
regarding compliance with the Indenture, and the Issuers are required upon
becoming aware of any Default or Event of Default, to deliver to the Trustee a
statement specifying such Default or Event of Default.
NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES, PARTNERS AND
STOCKHOLDERS
No director, officer, employee, incorporator, partner or stockholder of any
Issuer, as such, shall have any liability for any obligations of such Issuer
under the Senior Notes or the Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each holder of Senior
Notes by accepting a Senior Note waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Senior
Notes. Such waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the Commission that such a waiver is
against public policy.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
The Issuers may, at their option and at any time, elect to have all of its
obligations discharged with respect to the outstanding Senior Notes ("Legal
Defeasance") except for (i) the rights of holders of outstanding Senior Notes
to receive payments in respect of the principal of, premium, if any, and
interest on such Senior Notes when such payments are due from the trust
referred to below, (ii) the Issuers' obligations with respect to the Senior
Notes concerning issuing temporary Senior Notes, registration of Senior Notes,
mutilated, destroyed, lost or stolen Senior Notes and the maintenance of an
office or agency for payment and money for security payments held in trust,
(iii) the rights, powers, trusts, duties and immunities of the Trustee, and
the Issuers' obligations in connection therewith and (iv) the Legal Defeasance
provisions of the Indenture. In addition, the Issuers may, at their option and
at any time, elect to have the obligations of the Issuers released with
respect to certain covenants that are described in the Indenture ("Covenant
Defeasance") and thereafter any omission to comply with such obligations shall
not constitute a Default or Event of Default with respect to the Senior Notes.
In the event Covenant Defeasance occurs, certain events (not including non-
payment, bankruptcy, receivership, rehabilitation and insolvency events)
described under "Events of Default" will no longer constitute an Event of
Default with respect to the Senior Notes.
In order to exercise either Legal Defeasance or Covenant Defeasance, (i) the
Issuers must irrevocably deposit with the Trustee, in trust, for the benefit
of the holders of the Senior Notes, cash in U.S. dollars, non-callable
Government Securities, or a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of independent
public accountants, to pay the principal of, premium, if any, and interest on
the outstanding Senior Notes on the stated maturity or on the applicable
redemption date, as the case may be, and the Issuers must specify whether the
Senior Notes are being defeased to maturity or to a particular redemption
date; (ii) in the case of Legal Defeasance, the Issuers shall have delivered
to the Trustee an opinion of counsel in the United States reasonably
acceptable to the Trustee confirming that (A) the Issuers have received from,
or there has been published by, the Internal Revenue Service a ruling or (B)
since the date of the Indenture, there has been a change in the applicable
federal income tax law, in either case to the effect that, and based thereon
such opinion of counsel shall confirm that, the holders of the outstanding
Senior Notes will not recognize income, gain or loss for federal income tax
purposes as a result of such Legal Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not occurred; (iii) in
the case of Covenant Defeasance, the Issuers shall have delivered to the
Trustee an opinion of counsel in the United States reasonably acceptable to
the Trustee
62
confirming that the holders of the outstanding Senior Notes will not recognize
income, gain or loss for federal income tax purposes as a result of such
Covenant Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such Covenant Defeasance had not occurred; (iv) no Default or Event of
Default shall have occurred and be continuing on the date of such deposit
(other than a Default or Event of Default resulting from the borrowing of
funds to be applied to such deposit) or insofar as Events of Default from
bankruptcy or insolvency events are concerned, at any time in the period
ending on the 91st day after the date of deposit; (v) such Legal Defeasance or
Covenant Defeasance will not result in a breach or violation of, or constitute
a default under any material agreement or instrument (other than the
Indenture) to which the Company, Capital Corp. or any of their respective
Subsidiaries is a party or by which the Company, Capital Corp. or any of their
respective Subsidiaries is bound; (vi) the Issuers must have delivered to the
Trustee an opinion of counsel to the effect that after the 91st day following
the deposit, and assuming that prior to such 91st day no voluntary or
involuntary bankruptcy case has been commenced with respect to any Issuer,
such deposit will not constitute a preference as defined in Section 547 of the
U.S. Bankruptcy Code, and, assuming such a bankruptcy case is commenced on or
after such 91st day, the trust funds will not constitute property included
within the estate of the debtor; (vii) the Issuers must deliver to the Trustee
an Officers' Certificate stating that the deposit was not made by the Issuers
with the intent of preferring the holders of Senior Notes over the other
creditors of the Issuers with the intent of defeating, hindering, delaying or
defrauding creditors of the Issuers or others; and (viii) the Issuers must
deliver to the Trustee an Officers' Certificate and an opinion of counsel,
each stating that all conditions precedent provided for relating to the Legal
Defeasance or the Covenant Defeasance have been complied with.
TRANSFER AND EXCHANGE
A holder may transfer or exchange Senior Notes in accordance with the
Indenture. The Registrar and the Trustee may require a holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Issuers may require a holder to pay any taxes and fees required by law or
permitted by the Indenture. The Issuers are not required to transfer or
exchange any Senior Note selected for redemption. Also, the Issuers are not
required to transfer or exchange any Senior Note for a period of 15 days
before a selection of Senior Notes to be redeemed.
The registered holder of a Senior Note will be treated as the owner of it
for all purposes.
AMENDMENT, SUPPLEMENT AND WAIVER
Except as provided in the next two succeeding paragraphs, the Indenture or
the Senior Notes may be amended or supplemented with the consent of the
holders of at least a majority in principal amount of the Senior Notes then
outstanding (including consents obtained in connection with a tender offer or
exchange offer for Senior Notes), and any existing default or compliance with
any provision of the Indenture or the Senior Notes may be waived with the
consent of the holders of a majority in principal amount of the then
outstanding Senior Notes (including consents obtained in connection with a
tender offer or exchange offer for Senior Notes).
Without the consent of each holder affected, an amendment or waiver may not
(with respect to any Senior Notes held by a non-consenting holder) (i) reduce
the principal amount of Senior Notes whose holders must consent to an
amendment, supplement or waiver, (ii) reduce the principal of or change the
fixed maturity of any Senior Note or alter the provisions with respect to the
redemption of the Senior Notes, (iii) reduce the rate of or change the time
for payment of interest on any Senior Note, (iv) waive a Default or Event of
Default in the payment of principal of or premium, if any, or interest on the
Senior Notes (except a rescission of acceleration of the Senior Notes by the
holders of at least a majority in aggregate principal amount of the Senior
Notes and a waiver of the payment default that resulted from such
acceleration), (v) make any Senior Note payable in money other than that
stated in the Senior Notes, (vi) make any change in the provisions of the
Indenture relating to waivers of past Defaults or the rights of holders of
Senior Notes to receive payments of principal of or premium, if any, or
interest on the Senior Notes, (vii) waive a redemption payment with respect to
any Senior Note or (viii) make any change in the foregoing amendment and
waiver provisions.
Notwithstanding the foregoing, without the consent of any holder of Senior
Notes, the Issuers and the Trustee may amend or supplement the Indenture or
the Senior Notes to cure any ambiguity, defect or
63
inconsistency, to provide for uncertificated Senior Notes in addition to or in
place of certificated Senior Notes, to provide for the assumption of the
Issuers' obligations to holders of Senior Notes in the case of a merger or
consolidation, to make any change that would provide any additional rights or
benefits to the holders of Senior Notes or that does not materially adversely
affect the legal rights under the Indenture of any such holder, to provide for
Subsidiary Guarantees of the Senior Notes or to comply with requirements of
the Commission in order to effect or maintain the qualification of the
Indenture under the Trust Indenture Act.
CONCERNING THE TRUSTEE
The Indenture contains certain limitations on the rights of the Trustee,
should it become a creditor of any Issuer, to obtain payment of claims in
certain cases, or to realize on certain property received in respect of any
such claim as security or otherwise. The Trustee will be permitted to engage
in other transactions; however, if it acquires any conflicting interest it
must eliminate such conflict within 90 days, apply to the Commission for
permission to continue or resign.
The holders of a majority in principal amount of the then outstanding Senior
Notes will have the right to direct the time, method and place of conducting
any proceeding for exercising any remedy available to the Trustee, subject to
certain exceptions. The Indenture provides that in case an Event of Default
shall occur (which shall not be cured), the Trustee will be required, in the
exercise of its power, to use the degree of care of a prudent man in the
conduct of his own affairs. Subject to such provisions, the Trustee will be
under no obligation to exercise any of its rights or powers under the
Indenture at the request of any holder of Senior Notes, unless such holder
shall have offered to the Trustee security and indemnity satisfactory to it
against any loss, liability or expense.
ADDITIONAL INFORMATION
Anyone who receives this Prospectus may obtain a copy of the Indenture
without charge by writing to Muzak Limited Partnership, 2901 Third Avenue,
Suite 400, Seattle, Washington 98121, Attention: Chief Financial Officer.
CERTAIN DEFINITIONS
Set forth below are certain defined terms used in the Indenture. Reference
is made to the Indenture for a full disclosure of all such terms, as well as
any other capitalized terms used herein for which no definition is provided.
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person,
including, without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"Administrative Expenses" means, with respect to the General Partner, any
general partner of the Company or the parent of the Company (in the event that
the Company is reorganized as a corporation), ordinary operating expenses
(including reasonable professional fees and expenses) in connection with (a)
complying with reporting obligations pursuant to the federal securities laws
and obligations to prepare and distribute business records in the ordinary
course of business, (b) maintaining such Person's corporate or partnership
existence and franchise (including annual franchise taxes) and (c) the payment
of reasonable fees and expense reimbursements to directors thereof.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled
by" and "under common control with"), as used with respect to any Person,
shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of such Person, whether
through the ownership of voting securities, by agreement or otherwise;
provided that beneficial ownership of 10% or more of the voting securities of
a Person shall be deemed to be control.
64
"Asset Sale" means (a) the sale, lease, conveyance or other disposition of
any assets (including, without limitation, by way of a sale and leaseback)
other than sales of inventory in the ordinary course of business consistent
with past practices (provided that the sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company or
Capital Corp. and its Subsidiaries taken as a whole will be governed by the
provisions of the Indenture described above under the caption "--Change of
Control" and/or the provisions described above under the caption "--Merger,
Consolidation or Sale of Assets" and not by the provisions of the Asset Sale
covenant), and (b) the issue or sale by the Company or Capital Corp. or any of
its Subsidiaries of Equity Interests of any of the Company's or Capital
Corp.'s Subsidiaries, in the case of either clause (a) or (b), whether in a
single transaction or a series of related transactions (i) that have a fair
market value in excess of $2.0 million or (ii) for net proceeds in excess of
$2.0 million. Notwithstanding the foregoing, (a) a transfer of assets by the
Company or Capital Corp. to a Wholly Owned Subsidiary or by a Wholly Owned
Subsidiary to the Company or Capital Corp. or to another Wholly Owned
Subsidiary, (b) an issuance of Equity Interests by a Wholly Owned Subsidiary
to the Company or Capital Corp. or to another Wholly Owned Subsidiary, (c) a
Restricted Payment that is permitted by the covenant described above under the
caption "--Restricted Payments" and (d) any sale and leaseback transaction
otherwise permitted pursuant to the covenant described above under "--Sale and
Leaseback Transactions" will not be deemed to be Asset Sales.
"Attributable Debt" in respect of a sale and leaseback transaction means, at
the time of determination, the present value (discounted at the rate of
interest implicit in such transaction, determined in accordance with GAAP) of
the obligation of the lessee for net rental payments during the remaining term
of the lease included in such sale and leaseback transaction (including any
period for which such lease has been extended or may, at the option of the
lessor, be extended).
"Board of Directors" means the Board of Directors of the General Partner, on
behalf of the Company (or the Company, if the Company is reorganized as a
corporation), or of Capital Corp. or any authorized committee of the Board of
Directors.
"Borrowing Base" means, as of any date, an amount equal to (a) 80.0% of the
face amount of all accounts receivable owned by the Company and its
Subsidiaries as of such date that are not more than 90 days past due, plus (b)
60.0% of the book value (calculated on an average cost basis) of all inventory
owned by the Company and its Subsidiaries as of such date, minus (c) any
amount applied pursuant to the second paragraph of the covenant described
above under the caption "--Asset Sales" to permanently reduce Indebtedness
permitted to be incurred pursuant to clause (i) of the second paragraph of the
covenant described above under the caption "--Incurrence of Indebtedness and
Issuance of Preferred Equity Interests," all calculated on a consolidated
basis and in accordance with GAAP. To the extent that information is not
available as to the amount of accounts receivable or inventory as of a
specific date, the Company may utilize the most recent available information
for purposes of calculating the Borrowing Base.
"Capital Lease Obligation" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that
would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Interests" means (i) in the case of a corporation, corporate stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (iii) in the case of a partnership, partnership interests
(whether general or limited) and (iv) any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person.
"Cash Equivalents" means (i) United States dollars, (ii) securities issued
or directly and fully guaranteed or insured by the United States government or
any agency or instrumentality thereof having maturities of not more than six
months from the date of acquisition, (iii) certificates of deposit and
eurodollar time deposits with maturities of six months or less from the date
of acquisition, bankers' acceptances with maturities not exceeding six months
and overnight bank deposits or demand deposits, in each case with any lender
party to any Credit Facility or with any domestic commercial bank having
capital and surplus in excess of $1.0 billion, (iv) repurchase obligations
with a term of not more than seven days for underlying securities of the types
described
65
in clauses (ii) and (iii) above entered into with any financial institution
meeting the qualifications specified in clause (iii) above, (v) commercial
paper having the highest rating obtainable from Moody's Investors Service,
Inc. or Standard & Poor's Ratings Service, a division of The McGraw-Hill
Companies, Inc., and in each case maturing within six months after the date of
acquisition and (vi) investments in money market funds all of whose assets
comprise securities of the types described in clauses (i), (ii) and (iii)
above.
"Centre Partners" means Centre Partners L.P., a Delaware limited
partnership, the parent of Music Holdings and the general partner of MLP
Holdings.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission.
"Consolidated Cash Flow" means, with respect to any Person for any period,
the Consolidated Net Income of such Person for such period plus (i) an amount
equal to any extraordinary loss plus any net loss realized in connection with
an Asset Sale (to the extent such losses were deducted in computing such
Consolidated Net Income), plus (ii) provision for taxes based on income or
profits of such Person and its Subsidiaries for such period, to the extent
that such provision for taxes was included in computing such Consolidated Net
Income, plus (iii) consolidated interest expense of such Person and its
Subsidiaries for such period, whether paid or accrued and whether or not
capitalized (including, without limitation, amortization of original issue
discount, non-cash interest payments, the interest component of any deferred
payment obligations, the interest component of all payments associated with
Capital Lease Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in respect of
letter of credit or bankers' acceptance financings, and net payments (if any)
pursuant to Hedging Obligations), to the extent that any such expense was
deducted in computing such Consolidated Net Income, plus (iv) all items
classified as "depreciation" or "amortization" on such Person's statement of
operations and other non-cash charges (including non-cash equity-based
compensation charges but excluding any non-cash charge to the extent that it
represents an accrual of or reserve for cash charges in any future period or
amortization of a prepaid cash expense that was paid in a prior period) of
such Person and its Subsidiaries for such period to the extent that such
depreciation, amortization and other non-cash charges were deducted in
computing such Consolidated Net Income, plus (v) in the case of calculations
with respect to the Company, the amount of any Tax Distributions by the
Company to its partners, in each case, on a consolidated basis and determined
in accordance with GAAP. Notwithstanding the foregoing, the provision for
taxes on the income or profits of, and the depreciation and amortization and
other non-cash charges of, a Subsidiary of the referent Person shall be added
to Consolidated Net Income to compute Consolidated Cash Flow only to the
extent (and in same proportion) that the Net Income of such Subsidiary was
included in calculating the Consolidated Net Income of such Person and only if
a corresponding amount would be permitted at the date of determination to be
dividended to the Company by such Subsidiary without prior approval (that has
not been obtained), pursuant to the terms of its charter and all agreements,
instruments, judgments, decrees, orders, statutes, rules and governmental
regulations applicable to that Subsidiary or its stockholders or partners.
"Consolidated Net Income" means, with respect to any Person for any period,
the aggregate of the Net Income of such Person and its Subsidiaries for such
period, on a consolidated basis, determined in accordance with GAAP; provided
that (i) the Net Income (but not loss) of any Person that is not a Subsidiary
or that is accounted for by the equity method of accounting shall be included
only to the extent of the amount of dividends or distributions paid in cash to
the referent Person or a Wholly Owned Subsidiary thereof, (ii) the Net Income
of any Subsidiary shall be excluded to the extent that the declaration or
payment of dividends or similar distributions by that Subsidiary of that Net
Income is not at the date of determination permitted without any prior
governmental approval (which has not been obtained) or, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Subsidiary or its stockholders or partners, (iii) the Net
Income of any Person acquired in a pooling of interests transaction for any
period prior to the date of such acquisition shall be excluded, (iv) in the
case of calculations with respect to the Company, Consolidated Net Income of
the Company shall be reduced by the amount of any Tax Distributions by the
Company to its partners, (v) the cumulative effect of a change in accounting
principles shall be excluded, (vi) Consolidated Net Income shall not include
any gain (but not loss), together with any related provision for taxes on such
gain (but not loss), realized in connection with (A) any Asset Sale
(including, without limitation, dispositions pursuant to sale and leaseback
transactions) or (B) the
66
disposition of any securities by such Person or any of its Subsidiaries or the
extinguishment of any Indebtedness of such Person or any of its Subsidiaries
and (vii) Consolidated Net Income shall not include any extraordinary or
nonrecurring gain (but not loss), together with any related provision for
taxes on such extraordinary or nonrecurring gain (but not loss).
"Consolidated Net Worth" means, (a) with respect to a partnership, the
common and preferred partnership interests of such partnership and its
consolidated Subsidiaries, as determined on a consolidated basis in accordance
with GAAP, and (b) with respect to any other Person, the sum of (i) the
consolidated equity of the common stockholders of such Person and its
consolidated Subsidiaries plus (ii) the respective amounts reported on such
Person's most recent balance sheet with respect to any series of preferred
stock; provided that the preferred partnership interests or the preferred
stock, as the case may be, shall be included in Consolidated Net Worth only if
such preferred partnership interests or preferred stock (A) is not a
Disqualified Interest and (B) is not by its terms entitled to the payment of
dividends or distributions, unless such dividends or distributions may be
declared and paid only out of net earnings in respect of the year of such
declaration and payment, but only to the extent of any cash received by such
Person upon issuance of such preferred partnership interests or preferred
stock, less (x) all write-ups (other than write-ups resulting from foreign
currency translations and write-ups of tangible assets of a going concern
business made within twelve months after the acquisition of such business)
subsequent to the date of the most recently completed fiscal quarter in the
book value of any asset owned by such Person or a consolidated subsidiary of
such Person, (y) all investments in unconsolidated Subsidiaries and in Persons
that are not Subsidiaries (except, in each case, investments in marketable
securities), and (z) all unamortized debt discount and expense and unamortized
deferred financing charges, all of the foregoing determined in accordance with
GAAP.
"Credit Facility" means any credit facility entered into by and among the
Company, any of its Subsidiaries that is a Guarantor and the lending
institutions party thereto, including any credit agreement, related notes,
Guarantees, collateral documents, instruments and agreements executed in
connection therewith, and in each case as amended, modified, renewed,
refunded, replaced or refinanced from time to time.
"Default" means any event that is or with the passage of time or the giving
of notice or both would be an Event of Default.
"Disqualified Interests" means any Equity Interest which, by its terms (or
by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is
redeemable at the option of the holder thereof, in whole or in part, on or
prior to the 91st day after the date on which the Senior Notes mature.
"Domestic Subsidiary" means any Subsidiary of the Company that is not a
Foreign Subsidiary.
"Equity Interests" means Capital Interests and all warrants, options or
other rights to acquire Capital Interests (but excluding any debt security
that is convertible into, or exchangeable for, Capital Interests).
"Existing Indebtedness" means the aggregate principal amount of Indebtedness
of the Company and its Subsidiaries in existence on the date of the Indenture,
until such amounts are repaid.
"Fixed Charges" means, with respect to any Person for any period, the sum of
(i) the consolidated interest expense of such Person and its Subsidiaries for
such period, whether paid or accrued (including, without limitation,
amortization of original issue discount, non-cash interest payments, the
interest component of any deferred payment obligations, the interest component
of all payments associated with Capital Lease Obligations, imputed interest
with respect to Attributable Debt, commissions, discounts and other fees and
charges incurred in respect of letter of credit or bankers' acceptance
financings, and net payments (if any) pursuant to Hedging Obligations but
excluding amortization of deferred financing fees), (ii) the consolidated
interest expense of such Person and its Subsidiaries that was capitalized
during such period, (iii) any interest expense on Indebtedness of another
Person that is Guaranteed by such Person or one of its Subsidiaries or secured
by a Lien on assets of such Person or one of its Subsidiaries (whether or not
such Guarantee or Lien is called upon) and (iv) the amount of dividends or
distributions paid in respect of preferred stock or preferred partnership
interests of such Person, in each case, on a consolidated basis and in
accordance with GAAP.
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"Fixed Charge Coverage Ratio" means with respect to any Person for any
period, the ratio of the Consolidated Cash Flow of such Person and its
Subsidiaries for such period to the Fixed Charges of such Person and its
Subsidiaries for such period. In the event that the Company or any of its
Subsidiaries incurs, assumes, Guarantees or redeems any Indebtedness (other
than revolving credit borrowings) or issues preferred stock or preferred
partnership interests subsequent to the commencement of the period for which
the Fixed Charge Coverage Ratio is being calculated but prior to the date on
which the event for which the calculation of the Fixed Charge Coverage Ratio
is made (the "Calculation Date"), then the Fixed Charge Coverage Ratio shall
be calculated giving pro forma effect to such incurrence, assumption,
Guarantee or redemption of Indebtedness, or such issuance or redemption of
preferred stock or preferred partnership interests, as if the same had
occurred at the beginning of the applicable four-quarter reference period. For
purposes of making the computation referred to above, (i) acquisitions that
have been made by the Company or any of its Subsidiaries, including through
mergers or consolidations and including any related financing transactions,
during the four-quarter reference period or subsequent to such reference
period and on or prior to the Calculation Date shall be deemed to have
occurred on the first day of the four-quarter reference period, (ii) the
Consolidated Cash Flow attributable to discontinued operations, as determined
in accordance with GAAP, and operations or businesses disposed of prior to the
Calculation Date, shall be excluded, and (iii) the Fixed Charges attributable
to discontinued operations, as determined in accordance with GAAP, and
operations or businesses disposed of prior to the Calculation Date, shall be
excluded, but only to the extent that the obligations giving rise to such
Fixed Charges will not be obligations of the referent Person or any of its
Subsidiaries following the Calculation Date.
"Foreign Subsidiary" means any direct or indirect Subsidiary of the Company
that is organized under the laws of any jurisdiction outside the United
States, any district or territoriality thereof and The Commonwealth of Puerto
Rico.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the date of the Indenture.
"General Partner" means Music Holdings Corp., as general partner of MLP
Acquisition, the general partner of the Company.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"Guarantor" means any Domestic Subsidiary of the Company (other than Capital
Corp.) that executes a Subsidiary Guarantee in accordance with the provisions
of the Indenture, and their respective successors and assigns.
"Guarantor Senior Indebtedness" means any Indebtedness permitted to be
incurred by any Guarantor under the terms of the Indenture, unless the
instrument under which such Indebtedness is incurred expressly provides that
it is subordinated in right of payment to such Guarantor's Subsidiary
Guarantee. Notwithstanding the foregoing, Guarantor Senior Indebtedness shall
not include (i) any Obligation of such Guarantor to any Subsidiary of such
Guarantor, (ii) any liability for federal, state, local or other taxes owed or
owing by such Guarantor, (iii) any accounts payable or other liability to
trade creditors arising in the ordinary course of business (including
Guarantees thereof or instruments evidencing such liabilities), (iv) any
Indebtedness, Guarantee or Obligation of the Guarantor that is contractually
subordinated or junior in any respect to any other Indebtedness, Guarantee or
Obligation of such Guarantor or (v) any Indebtedness incurred in violation of
the Indenture.
"Hedging Obligations" means, with respect to any Person, the obligations of
such Person under (i) interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements and (ii) other agreements or
arrangements designed solely to protect such Person against fluctuations in
interest rates.
"Indebtedness" means, with respect to any Person, any indebtedness of such
Person, whether or not contingent, in respect of borrowed money or evidenced
by bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or banker's acceptances or
representing Capital
68
Lease Obligations or the balance deferred and unpaid of the purchase price of
any property or representing any Hedging Obligations, except any such balance
that constitutes an accrued expense or trade payable, if and to the extent any
of the foregoing indebtedness (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP, as well as all indebtedness of others
secured by a Lien on any asset of such Person (whether or not such
indebtedness is assumed by such Person) and, to the extent not otherwise
included, the Guarantee by such Person of any indebtedness of any other
Person.
"Investments" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees of Indebtedness or other obligations but
excluding advances to customers in the ordinary course of business that are
recorded as accounts receivable on the balance sheet of such Person or its
Subsidiaries in accordance with GAAP), advances or capital contributions
(excluding commission, travel and similar advances to officers and employees
made in the ordinary course of business), purchases or other acquisitions for
consideration of Indebtedness, Equity Interests or other securities and all
other items that are or would be classified as investments on a balance sheet
prepared in accordance with GAAP; provided that an acquisition of assets,
Equity Interests or other securities by the Company for consideration
consisting of common equity securities of the Company shall not be deemed to
be an Investment.
"Lien" means, with respect to any asset, any mortgage, lien, pledge, charge,
security interest or encumbrance of any kind in respect of such asset, whether
or not filed, recorded or otherwise perfected under applicable law (including
any conditional sale or other title retention agreement, any lease in the
nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement
under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction).
"MLP Acquisition" means MLP Acquisition L.P., a Delaware limited partnership
and the general partner of the Company.
"MLP Holdings" means MLP Holdings L.P., a Delaware limited partnership and a
limited partner of MLP Acquisition.
"Music Holdings" means Music Holdings Corp., a Delaware corporation, a
wholly owned subsidiary of Centre Partners and the general partner of MLP
Acquisition.
"Net Income" means, with respect to any Person, the net income (loss) of
such Person, determined in accordance with GAAP.
"Net Proceeds" means the aggregate cash proceeds received by the Company or
any of its Subsidiaries in respect of any Asset Sale (including, without
limitation, any cash received upon the sale or other disposition of any non-
cash consideration received in any Asset Sale), net of the direct costs
relating to such Asset Sale (including, without limitation, legal, accounting
and investment banking fees, and sales commissions) and any relocation
expenses incurred as a result thereof, taxes paid or payable as a result
thereof (after taking into account any available tax credits or deductions and
any tax sharing arrangements), amounts required to be applied to the repayment
of Indebtedness (other than Senior Revolving Debt) secured by a Lien on the
asset or assets that were the subject of such Asset Sale and any reserve for
adjustment in respect of the sale price of such asset or assets established in
accordance with GAAP.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Pari Passu Indebtedness" means any Indebtedness which ranks pari passu in
right of payment with, and which is not expressly by its terms subordinated in
right of payment of principal, interest or premium, if any, to, the Senior
Notes.
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"Park Road" means Park Road Corporation, a Delaware corporation and the
managing general partner of Centre Partners.
"Partnership Agreement" means the Third Amended and Restated Agreement of
Limited Partnership of the Company, as amended, supplemented or otherwise
modified and as in effect from time to time.
"Permitted Investments" means (a) any Investments in the Company or in a
Wholly Owned Subsidiary of the Company that is engaged in the same or a similar
or related line of business as the Company and its Subsidiaries were engaged in
on the date of the Indenture; (b) any Investments in Cash Equivalents; (c)
Investments by the Company or any Subsidiary of the Company in a Person, if as a
result of such Investment (i) such Person becomes a Wholly Owned Subsidiary of
the Company that is engaged in the same or a similar or related line of business
as the Company and its Subsidiaries were engaged in on the date of the Indenture
or (ii) such Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is liquidated into,
the Company or a Wholly Owned Subsidiary of the Company that is engaged in the
same or a similar or related line of business as the Company and its
Subsidiaries were engaged in on the date of the Indenture; (d) Restricted
Investments made as a result of the receipt of non-cash consideration from an
Asset Sale that was made pursuant to and in compliance with the covenant
described above under the caption "--Repurchase at the Option of Holders--Asset
Sales;" (e) Investments in endorsements of negotiable instruments and similar
negotiable documents in the ordinary course of business; (f) Investments
existing on the date of the Indenture; (g) Investments in obligations of account
debtors to the Company or any of its Subsidiaries and stock or obligations
issued to the Company or any such Subsidiary by any Person, in each case, in
connection with the insolvency, bankruptcy, receivership or reorganization of
such Person or a composition or readjustment of such Person's Indebtedness and
(h) other Investments in any Person that do not exceed $5.0 million at any time
outstanding.
"Permitted Liens" means (i) Liens on accounts receivable and inventory
securing Indebtedness permitted to be incurred under clause (i) of the second
paragraph of the covenant described above under "--Incurrence of Indebtedness
and Issuance of Preferred Equity Interests;" (ii) Liens in favor of the
Company; (iii) Liens on property of a Person existing at the time such Person
is merged into, consolidated with or acquired by the Company or any Subsidiary
of the Company; provided that such Liens were in existence prior to the
contemplation of such merger or consolidation and do not extend to any assets
other than those of the Person merged into or consolidated with the Company;
(iv) Liens on property existing at the time of acquisition thereof by the
Company or any Subsidiary of the Company, provided that such Liens were in
existence prior to the contemplation of such acquisition; (v) Liens to secure
the performance of statutory obligations, surety or appeal bonds, performance
bonds or other obligations of a like nature incurred in the ordinary course of
business; (vi) Liens to secure Indebtedness permitted by clause (vi) of the
second paragraph of the covenant entitled "Incurrence of Indebtedness and
Issuance of Preferred Equity Interests" covering only the assets acquired with
such Indebtedness; (vii) Liens existing on the date of the Indenture; (viii)
Liens for taxes, assessments or governmental charges or claims that are not
yet delinquent or that are being contested in good faith by appropriate
proceedings promptly instituted and diligently concluded, provided that any
reserve or other appropriate provision as shall be required in conformity with
GAAP shall have been made therefor; (ix) Liens securing Permitted Refinancing
Indebtedness, provided that such Liens do not extend to or cover any assets or
property other than the collateral securing the Indebtedness to be refinanced;
(x) Liens arising by operation of law in connection with judgments, for a
period not resulting in an Event of Default with respect thereto; (xi)
easements, rights of way, zoning restrictions and other similar encumbrances
or title defects which do not materially detract from the value of the
property or the assets subject thereto or interfere with the ordinary conduct
of the business of the Company and its Subsidiaries, taken as a whole; (xii)
Liens securing Attributable Debt with respect to any sale and leaseback
transaction in an aggregate amount not to exceed the aggregate principal
amount of Attributable Debt permitted to be incurred pursuant to the covenant
described above under "--Incurrence of Indebtedness and Issuance of Preferred
Equity Interests," provided that such Liens do not extend to or cover any
assets or property other than the collateral securing such Attributable Debt;
(xiii) Liens on assets of any Foreign Subsidiary securing Indebtedness of such
Foreign Subsidiary incurred pursuant to clause
70
(ix) of the second paragraph of the covenant described above under "--
Incurrence of Indebtedness and Issuance of Preferred Equity Interests;" and
(xiv) Liens incurred in the ordinary course of business of the Company or any
Subsidiary of the Company with respect to obligations that (A) are not
incurred in connection with the borrowing of money or the obtaining of
advances or credit (other than trade credit in the ordinary course of
business) and (B) do not in the aggregate materially detract from the value of
the property or materially impair the use thereof in the operation of business
by the Company or such Subsidiary.
"Permitted Refinancing Indebtedness" means any Indebtedness of the Company or
any of its Subsidiaries issued in exchange for, or the net proceeds of which are
used to extend, refinance, renew, replace, defease or refund other Indebtedness
of the Company or any of its Subsidiaries; provided that (i) the principal
amount of such Permitted Refinancing Indebtedness does not exceed the principal
amount of the Indebtedness so extended, refinanced, renewed, replaced, defeased
or refunded (plus the amount of reasonable expenses incurred in connection
therewith); (ii) such Permitted Refinancing Indebtedness has a final maturity
date later than the final maturity date of, and has a Weighted Average Life to
Maturity equal to or greater than the Weighted Average Life to Maturity of, the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded; (iii) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to the Senior
Notes, such Permitted Refinancing Indebtedness has a final maturity date later
than the final maturity date of, and is subordinated in right of payment to, the
Senior Notes on terms at least as favorable to the holders of Senior Notes as
those contained in the documentation governing the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; and (iv) such Indebtedness
is incurred either by the Company or by the Subsidiary who is the obligor on the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Securities Act" means the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Senior Revolving Debt" means revolving credit borrowings under any Credit
Facility.
"Significant Subsidiary" means any Subsidiary that would be a "significant
subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act, as such Regulation is in effect on the date
hereof; provided that each Guarantor shall be deemed a Significant Subsidiary.
"Subordinated Indebtedness" means any Indebtedness which is expressly by its
terms subordinated in right of payment of principal, interest or premium, if
any, to the Senior Notes.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total
voting power of Capital Interests entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a
combination thereof) and (ii) any partnership (A) the sole general partner or
the managing general partner of which is such Person or a Subsidiary of such
Person or (B) the only general partners of which are such Person or one or
more Subsidiaries of such Person (or any combination thereof).
"Tax Amount" means, with respect to any Person for any period, the aggregate
amount of tax distributions required to be made by the Company to its partners
under the Partnership Agreement as in effect on the date of the Indenture.
Notwithstanding anything to the contrary, Tax Amount shall not include taxes
resulting from such Person's reorganization as or change in the status to a
corporation.
"Tax Distribution" means a distribution in respect of taxes to the partners
of the Company pursuant to clause (iv) of the second paragraph of the covenant
described above under the caption "--Certain Covenants-- Restricted Payments."
71
"Taxable Income" means, with respect to any Person for any period, the
taxable income or loss of such Person for such period for federal income tax
purposes; provided that (i) all items of income, gain, loss or deduction
required to be stated separately pursuant to Section 703(a)(1) of the Code
shall be included in taxable income or loss, (ii) any basis adjustment made in
connection with an election under Section 754 of the Code shall be disregarded
and (iii) such taxable income shall be increased or such taxable loss shall be
decreased by the amount of any interest expense incurred by such Person that
is not treated as deductible for federal income tax purposes by a partner or
member of such Person.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness
at any date, the number of years obtained by dividing (a) the sum of the
products obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (ii)
the number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment, by (b) the then outstanding
principal amount of such Indebtedness.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such Person
all of the outstanding Capital Interests or other ownership interests of which
(other than directors' qualifying shares or interests) shall at the time be
owned by such Person or by one or more Wholly Owned Subsidiaries of such
Person and one or more Wholly Owned Subsidiaries of such Person.
72
FEDERAL INCOME TAX CONSEQUENCES
The following discussion is a general summary of the material federal income
tax consequences expected to result to holders of the Senior Notes. The
discussion is based on laws, regulations, rulings and judicial decisions now
in effect, all of which are subject to change, possibly on a retroactive
basis. The discussion does not cover all aspects of federal income taxation
that may be relevant to a particular holder in light of its individual
investment circumstances or to holders that may be subject to special tax
treatment (such as life insurance companies, financial institutions, tax-
exempt organizations (including qualified pension or profit sharing plans) and
foreign taxpayers), and no aspect of foreign, state or local taxation is
addressed. The discussion is limited to holders who hold their Senior Notes as
"capital assets" (generally, property held for investment) within the meaning
of Section 1221 of the Code.
EACH HOLDER IS URGED TO CONSULT ITS OWN TAX ADVISOR FOR THE FEDERAL AND
STATE INCOME AND OTHER TAX CONSEQUENCES PECULIAR TO IT FROM HOLDING OR
DISPOSING OF THE SENIOR NOTES.
INTEREST
Holders of the Senior Notes will be required to report any interest earned
on the Senior Notes as ordinary interest income for federal income tax
purposes in accordance with their method of tax accounting.
MARKET DISCOUNT
Generally, a holder who purchases its Senior Note subsequent to original
issuance at a "market discount" (i.e., at a price below the stated redemption
price at maturity) must, unless the amount thereof is de minimis, treat gain
recognized on the disposition of such Senior Note as ordinary income to the
extent market discount accrued while the Senior Note was held by the holder.
Further, if a subsequent holder makes a gift of a Senior Note, accrued market
discount, if any, will be recognized by such holder as if such Senior Note had
been sold for its fair market value. In addition, the holder may be required
to defer, until the maturity of the Senior Note or its earlier disposition in
a taxable transaction, the deduction of a portion of the interest expense on
any indebtedness incurred or continued to purchase or carry such Senior Note.
Any market discount will be considered to accrue on a straight-line basis
during the period from the date of acquisition to the maturity date of the
Senior Note, unless the holder elects to accrue market discount under a
constant interest method. A holder also may elect to include market discount
in income currently as it accrues (under either a straight-line or constant
interest method), in which case the holder would increase its adjusted tax
basis in the Senior Note by the amount includible in income and would not be
subject to the rules described above regarding the recognition of gain as
ordinary income and the deferral of interest deductions. Such an election to
include market discount in income currently would apply to all market discount
obligations acquired on or after the first day of the first taxable year of
the holder to which the election applies and may be revoked only with the
consent of the Internal Revenue Service (the "IRS").
Holders who purchase Senior Notes subsequent to original issuance should
consult their own tax advisors regarding the treatment of any market discount
with respect to their Senior Notes.
AMORTIZABLE BOND PREMIUM
If the holder's initial tax basis in the Senior Notes at acquisition exceeds
the amount payable at maturity, the excess will be treated as "amortizable
bond premium." In such case, the Holder may elect under Section 171 of the
Code to amortize the bond premium annually under a constant yield method. The
holder's adjusted tax basis in the Senior Note would be decreased by the
amount of the allowable amortization. Because the Senior Notes have early call
provisions, holders must take such call provisions into account to determine
the amount of amortizable bond premium. Amortizable bond premium is treated as
an offset to interest received on the
73
obligation rather than as an interest deduction, except as may be provided in
the Treasury regulations. An election to amortize bond premium would apply to
amortizable bond premium on all taxable bonds held at or acquired after the
beginning of the holder's taxable year as to which the election is made, and
may be revoked only with the consent of the IRS. Holders who acquire their
Senior Notes with amortizable bond premium should consult their own tax
advisor.
REORGANIZATION OF THE COMPANY
Any assumption of the Senior Notes by a corporate successor to the Company
upon its reorganization into a corporation, as is specifically permitted by
the Indenture, should not be a taxable event for federal income tax purposes.
As a result, holders should not recognize any gain or loss upon such
assumption of the Senior Notes. Instead, each holder should have a tax basis
in its new Senior Note of the corporate successor to the Company equal to its
basis in its old Senior Note immediately prior to the reorganization of the
Company as a corporation and its holding period in such new Senior Note should
include the period the old Senior Note was held.
SALE, REDEMPTION AND MATURITY OF THE SENIOR NOTES
A holder will recognize gain or loss, if any, on the sale, redemption or
maturity of a Senior Note equal to the difference between the fair market
value of all consideration received (excluding amounts received that are
attributable to accrued and unpaid interest, which amounts must be included as
ordinary interest income) upon such sale, redemption or maturity of the Senior
Note and the holder's adjusted tax basis in the Senior Note. Except to the
extent of any unrecognized accrued market discount, discussed above, such gain
or loss will be capital gain or loss and will be long-term if the holder has
held the Senior Notes for more than one year.
BACKUP WITHHOLDING
A holder of Senior Notes may be subject to backup withholding at the rate of
31% with respect to interest paid on or gross proceeds from the sale of the
Senior Notes, unless such holder (a) is a corporation or comes within certain
other exempt categories or (b) provides a correct taxpayer identification
number, certifies as to no loss of exemption from backup withholding, and
otherwise complies with applicable requirements of the backup withholding
rules. A holder of Senior Notes who does not provide the Company with its
correct taxpayer identification number may be subject to penalties imposed by
the IRS. Any amounts withheld under the backup withholding rules will be
allowed as a refund or a credit against the holder's federal income tax
liability, provided that the required information is furnished to the IRS.
The Company will report to the holders of the Senior Notes and the IRS the
amount of any "reportable payments" (including any interest paid) and any
amount withheld with respect to the Senior Notes during the calendar year.
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DESCRIPTION OF THE PARTNERSHIP AGREEMENT
The Company was organized on February 18, 1992 as a limited partnership
under the RULPA. The following is a summary of certain provisions of the
Partnership Agreement. The rights and obligations of the General Partners and
of the Limited Partners (each as defined in the Partnership Agreement) are as
set forth in the Partnership Agreement. This summary does not constitute a
complete discussion of the Partnership Agreement and is qualified in its
entirety by reference to the Partnership Agreement, a copy of which has been
filed as an exhibit to the Registration Statement of which this Prospectus is
a part.
MANAGEMENT OF THE COMPANY
The Managing General Partner (as defined in the Partnership Agreement) is
responsible for the general management and operation of the Company. The
General Partners receive no compensation for the performance of their services
under the Partnership Agreement, provided that the Managing General Partner
and its affiliates are entitled to reimbursement for expenses incurred on
behalf of the Company and for certain directors' fees and expenses of the
general partner of the Managing General Partner. In addition, the General
Partners and their affiliates are entitled to the benefit of certain
exculpatory and indemnification provisions in the Partnership Agreement. See
"Management--Limitation of Liability and Indemnification."
DISSOLUTION OF THE COMPANY
The Company will be dissolved and its affairs wound up upon the occurrence
of any of the following events: (i) the expiration of the term of the Company
on December 31, 2020 (subject to extension with the consent of the General
Partners and a majority vote of the partners); (ii) certain events of
withdrawal or bankruptcy of a General Partner under the RULPA, subject to the
right of a remaining General Partner or a successor general partner to
continue the Company in accordance with terms of the Partnership Agreement;
(iii) the consent of the General Partners and the majority vote of the
partners to dissolve the Company; (iv) an incorporation of the Company in
accordance with the Partnership Agreement; (v) a sale of all or substantially
all of the assets of the Company in one transaction or a series of related
transactions; or (vi) the entry of a decree of dissolution under Section 17-
802 of the RULPA.
DISTRIBUTIONS
Distributions by the Company generally may be made at the discretion of the
Managing General Partner from cash on hand in excess of costs and expenses of
the Company, including reserves, subject to Section 17-607(a) of the RULPA or
other applicable law and subject to any applicable contractual restrictions on
such payments. In addition, the Managing General Partner is required to make
distributions from time to time for periods in which Company exists in the
form of a partnership to the holders of equity interests in the Company (other
than the Class C Limited Partner Interest) in an amount equal to the product
of (A) the taxable income of the Company for any taxable year for which the
Company reports taxable income for federal income tax purposes determined as
if the Company were a separately taxable entity and (B) the sum of (x) the
highest marginal federal income tax rate applicable to individuals in effect
for such year and (y) ten percentage points; provided that no such payments
shall be permitted if any amounts due in respect of the Class C Limited
Partner Interest shall not have been paid on the required retirement date
thereof as described below.
TRANSFERABILITY OF PARTNERSHIP INTERESTS
The Partnership Agreement contains significant restrictions on the
transferability of the equity interests in the Company.
Partnership interests held by management employees of the Company are
subject to purchase at the option of the Company upon termination of
employment for a termination price equal to either the fair market value or
cost of such interests, depending on the circumstances of the termination and
subject to certain vesting criteria set forth in the Partnership Agreement.
Upon any such purchase of partnership interests of a terminated
75
employee, the remaining management holders are permitted to acquire such
interests for fair market value. In addition to the foregoing, certain
interests held by management are subject to additional restrictions on
transfer prior to September 4, 1997.
Subject to limited exceptions (including transfers upon death of a Limited
Partner to his estate, transfers to family members and related trusts, certain
transfers to other Limited Partners of the Company and other transfers to
affiliates), transfers of Limited Partner interests in the Company are subject
to rights of first refusal of the Company and certain other interestholders.
In addition to the rights of first refusal, in connection with certain
transfers of equity interests the transferring holder is required to offer the
other interestholders the right to sell a ratable portion of their respective
equity interests on the same terms and at the same price as the interests
proposed to be disposed of by the transferring holder.
PUT OPTION
At any time and from time to time after September 4, 1998, the Managing
General Partner, certain affiliates of MLP and certain other non-management
interestholders have the right to cause the Company to purchase the
partnership interests held by such persons at the fair market value thereof,
provided that such purchase would not result in a material adverse change in
the business of the Company or a breach of or default under any agreement or
instrument to which the Company is party or by which it or its assets is bound
and as to which a consent or waiver thereunder for such purpose (or any
related incurrence of indebtedness) has not been obtained after all best
efforts by the Company (including consideration of a sale of the Company) and
the Company provides appropriate notice thereof to the interestholder. In
connection with any such purchase, the Company is required to retire all of
the outstanding Class C Limited Partner Interest, Class C-1 Limited Partner
Interests (unless such interests have been converted into participating
partnership interests as described below) and Preferred Limited Partner
Interests.
REGISTRATION RIGHTS
The Managing General Partner and MLP have the right to require the Company
to use best efforts to register under the Securities Act the partnership
interests held by such persons. If the Company receives such a request or
otherwise determines to effect any such registration of equity securities, the
Company is required to offer to register the equity interests held by the
other Limited Partners (other than the Class C Limited Partner Interest). The
registration rights provisions contain additional customary rights and
obligations of the parties, including holdback, indemnification and cut-back
rights, subject to certain priorities of a non-management equity holder.
INCORPORATION
The Partnership Agreement permits the Managing General Partner to
incorporate the Company pursuant to specified procedures. In the event of an
incorporation, the Partnership Agreement provides that the partners shall
negotiate in good faith such arrangements as are reasonably required to
reflect substantially the same rights and restrictions that the equityholders
have pursuant to the Partnership Agreement. In the event of any such
incorporation, the Partnership Agreement further provides for the conversion
of the Preferred Limited Partner Interests into preferred stock of the
incorporated entity having substantially similar terms and provisions as the
applicable preferred interests.
CLASS C LIMITED PARTNER INTEREST
The Class C Limited Partner Interest is a non-participating preferred
limited partner interest having a liquidation preference of $8 million plus a
preferred return of 7% per annum compounding annually from August 1992. The
Company may convert the Class C Limited Partner Interest into a subordinated
note or retire the interest at any time. Until the retirement of the Class C
Limited Partner Interest, the Company is required to observe certain
covenants, including restrictions on dispositions of assets for less than fair
market value, certain affiliate party transactions and distributions in
respect of, or purchases or retirements of, equity interests in the
76
Company, subject to limited exceptions specified in the Partnership Agreement.
The Company is required to retire the Class C Limited Partner Interest on the
91st day following August 31, 2002 or, if earlier, upon the occurrence of
certain specified change of control or sale transactions.
CLASS C-1 LIMITED PARTNER INTEREST
The Class C-1 Limited Partner Interest is a convertible preferred limited
partner interest having a liquidation preference of $5 million plus a preferred
return of 7% per annum compounded annually from November 1994, that may be
converted into 8% of the aggregate participating Limited Partner interests in
the Company at the election of the holder in connection with an equity
registration by the Company. The Class C-1 Limited Partner Interest may be
converted into a convertible subordinated note at the election of the Company
and may be redeemed for its liquidation preference in connection with a change
of control event, and may otherwise be redeemed for such amount subject to the
right of the holder to retain an equity purchase option to preserve its equity
conversion right until the date such interest would have been required to be
retired, unless the holder shall have had the right to convert into a
participating equity interest in connection with a proposed equity registration
by the Company but shall have elected to retain its liquidation preference.
Unless earlier converted into a participating equity interest, the Company is
obligated to retire the Class C-1 Limited Partner Interest on the earlier of
November 4, 2004 or the occurrence of certain specified change of control or
sale transactions. Until the conversion of such interest into a participating
equity security or the retirement thereof, the Company is required to observe
the same covenants as are applicable to the Class C Limited Partner Interest.
PREFERRED LIMITED PARTNER INTERESTS
The Preferred Limited Partner Interests are convertible senior preferred
limited partner interests having an aggregate liquidation preference of $8
million plus a preferred return of 8% per annum compounded annually from
November 1994, that currently may be converted into approximately an aggregate
23% of the participating limited partner interests in the Company. The
Preferred Limited Partner Interests may be redeemed by the Company in
connection with any registration of its equity securities, subject to the
right of the holders to exercise the equity conversion right specified above.
77
UNDERWRITING
Subject to the terms and conditions of the Underwriting Agreement (the
"Underwriting Agreement") among the Issuers and Donaldson, Lufkin & Jenrette
Securities Corporation ("DLJ") and Lazard Freres & Co. LLC ("Lazard," and
together with DLJ, the "Underwriters"), the Underwriters have agreed,
severally and not jointly, to purchase from the Issuers, and the Issuers have
agreed to sell to each of the Underwriters, the respective principal amount of
Senior Notes set forth opposite its name below, at the public offering price
set forth on the cover page of this Prospectus, less the underwriting
discounts and commissions:
PRINCIPAL
AMOUNT OF
SENIOR
UNDERWRITER NOTES
Donaldson, Lufkin & Jenrette Securities Corporation............
Lazard Freres & Co. LLC........................................
-----------
Total...................................................... $85,000,000
===========
The Underwriting Agreement provides that the obligations of the several
Underwriters thereunder are subject to certain conditions precedent. The
Underwriting Agreement also provides that the Issuers will indemnify the
Underwriters and certain persons controlling the Underwriters against certain
liabilities and expenses, including liabilities under the Securities Act or
will contribute to payments the Underwriters are required to make in respect
thereof. The nature of the Underwriters' obligations under the Underwriting
Agreement is such that they are committed to purchase all of the Senior Notes
if any of the Senior Notes are purchased.
The Underwriters have advised the Issuers that they propose to offer the
Senior Notes directly to the public initially at the public offering price set
forth on the cover page of this Prospectus and to certain dealers at such
price less a concession not in excess of % of the principal amount of the
Senior Notes. The Underwriters may allow, and such dealers may reallow, a
concession to certain other dealers not in excess of % of the principal
amount of the Senior Notes. After the initial public offering of the Senior
Notes, the public offering price, concession and reallowance may be changed by
the Underwriters.
Under Rule 2720 of the Conduct Rules ("Rule 2720") of the National
Association of Securities Dealers, Inc. (the "NASD"), the Company may be
considered an affiliate of Lazard because affiliates of Lazard beneficially
own voting securities of the Company. This Offering is being conducted in
accordance with Rule 2720, which provides that, among other things, when an
NASD member participates in the underwriting of an affiliate's debt
securities, the yield to maturity can be no lower than that recommended by a
"qualified independent underwriter" meeting certain standards ("QIU"). In
accordance with this requirement, DLJ has assumed the responsibilities of
acting as QIU and will recommend a minimum yield to maturity in compliance
with the requirements of Rule 2720. In connection with the Offering, DLJ is
performing due diligence investigations and reviewing and participating in the
preparation of this Prospectus and the Registration Statement of which this
Prospectus forms a part. As compensation for the services of DLJ as QIU, the
Company has agreed to pay DLJ $5,000.
The Underwriters have informed the Company that they will not confirm sales
to any accounts over which they exercise discretionary authority without prior
written approval of such transactions by the customer.
78
There is currently no public market for the Senior Notes, and the Issuers
have no present plan to list any of the Senior Notes on a national securities
exchange or to include any of the Senior Notes for quotation through an inter-
dealer quotation system. The Underwriters have advised the Issuers that they
currently intend to make a market in the Senior Notes, but are not obligated
to do so and may discontinue any such market-making at any time without
notice. Accordingly, there can be no assurance that an active public market
will develop for, or as to the liquidity of, the Senior Notes. See "Risk
Factors--Absence of Public Market; Illiquidity; Market Value."
LEGAL MATTERS
Certain legal matters in connection with the Senior Notes offered hereby
will be passed upon for the Issuers by Weil, Gotshal & Manges LLP, New York,
New York. Certain legal matters in connection with the offering of the Senior
Notes will be passed upon for the Underwriters by Latham & Watkins, New York,
New York.
EXPERTS
The financial statements of Muzak Limited Partnership included in this
Prospectus and the related financial statement schedules included elsewhere in
the Registration Statement have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their reports appearing herein and
elsewhere in the Registration Statement. These financial statements and the
financial statement schedule have been included herein and elsewhere in the
Registration Statement in reliance upon the reports of said firm given upon
their authority as experts in accounting and auditing.
The financial statement of Muzak Capital Corporation included in this
Prospectus has been audited by Deloitte & Touche LLP, independent auditors, as
stated in their report appearing herein and has been so included in reliance
upon the report of said firm given upon their authority as experts in
accounting and auditing.
The financial statements of Comcast Sound Communications, Inc. and
subsidiaries included in this Prospectus have been audited by Deloitte &
Touche LLP, independent auditors, as stated in their report appearing herein
(which report expresses an unqualified opinion and includes an explanatory
paragraph referring to allocated management fees and costs), and have been so
included in reliance upon the report of said firm given upon their authority
as experts in accounting and auditing.
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-1 (the "Registration
Statement") pursuant to the Securities Act, covering the Senior Notes offered
hereby. This Prospectus does not contain all of the information set forth in
the Registration Statement, certain parts of which are omitted in accordance
with the rules and regulations of the Commission. Statements made in this
Prospectus as to the contents of any contract, agreement or other document are
summaries of the material terms of such contract, agreement or document. With
respect to each such contract, agreement or other document filed as an exhibit
to the Registration Statement, reference is made to the exhibits for a more
complete description of the matter involved. The Registration Statement
(including the exhibits and schedules thereto) filed with the Commission by
the Company may be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, 450 Fifth Street, N.W., Washington,
D.C. 20549 and at the regional offices of the Commission at Seven World Trade
Center, 13th Floor, New York, New York 10048 and Northwestern Atrium Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such
material may be obtained at prescribed rates from the Public Reference Section
of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549.
The Company is not subject to the informational requirements of the Exchange
Act. The Company intends to furnish to the Trustee and the holders of the
Senior Notes annual reports containing audited financial statements certified
by its independent auditors and quarterly reports containing unaudited
financial information for the first three quarters of each fiscal year.
79
MUZAK LIMITED PARTNERSHIP
MUZAK CAPITAL CORPORATION
INDEX TO FINANCIAL STATEMENTS
PAGE
MUZAK LIMITED PARTNERSHIP
Independent Auditors' Report............................................ F-2
Balance Sheets as of December 31, 1994 and 1995 and June 30, 1996....... F-3
Statements of Operations for the years ended December 31, 1993, 1994,
and 1995 and the six-month periods ended June 30, 1995 and 1996........ F-4
Statements of Partners' Capital (Deficit) for the years ended December
31, 1993, 1994, and 1995 and the six-month period ended June 30, 1996.. F-5
Statements of Cash Flows for the years ended December 31, 1993, 1994,
and 1995
and the six-month periods ended June 30, 1995 and 1996................. F-6
Notes to Financial Statements........................................... F-7
MUZAK CAPITAL CORPORATION
Independent Auditors' Report............................................ F-18
Balance Sheet as of May 8, 1996......................................... F-19
Note to Financial Statement............................................. F-20
COMCAST SOUND COMMUNICATIONS, INC. AND SUBSIDIARIES
Independent Auditors' Report............................................ F-21
Consolidated Statement of Operations and Retained Earnings
for the year ended December 31, 1993................................... F-22
Consolidated Statement of Cash Flows for the year ended December 31,
1993................................................................... F-23
Notes to Consolidated Financial Statements.............................. F-24
F-1
INDEPENDENT AUDITORS' REPORT
General and Limited Partners
Muzak Limited Partnership
Seattle, Washington
We have audited the accompanying balance sheets of Muzak Limited Partnership
(the "Company") as of December 31, 1995 and 1994, and the related statements
of operations, partners' capital (deficit), and cash flows for each of the
three years in the period ended December 31, 1995. 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, such financial statements present fairly, in all material
respects, the financial position of Muzak Limited Partnership as of December
31, 1995 and 1994, and the results of operations and its cash flows for each
of the three years in the period ended December 31, 1995 in conformity with
generally accepted accounting principles.
Deloitte & Touche LLP
Seattle, Washington
March 6, 1996
(August 23, 1996, as to Note 10)
F-2
MUZAK LIMITED PARTNERSHIP
BALANCE SHEETS
(IN THOUSANDS)
DECEMBER 31,
---------------- JUNE 30,
1994 1995 1996
(UNAUDITED)
ASSETS
CURRENT ASSETS:
Cash and cash equivalents...................... $ 1,445 $ 1,115 $ 3,239
Accounts receivable, net of allowance for
doubtful accounts
of $736, $632 and $576........................ 15,868 15,534 14,630
Inventories.................................... 4,070 3,473 3,041
Prepaid expenses............................... 1,462 1,543 1,443
Other.......................................... 491 357 346
-------- ------- -------
Total current assets......................... 23,336 22,022 22,699
Property and equipment, net...................... 37,588 36,586 36,055
Deferred costs and intangible assets, net........ 41,435 36,706 35,357
Other............................................ 733 1,125 1,247
-------- ------- -------
Total assets................................. $103,092 $96,439 $95,358
======== ======= =======
LIABILITIES AND PARTNERS' CAPITAL (DEFICIT)
CURRENT LIABILITIES:
Revolving credit facility...................... $ 6,000 $ 9,300 $10,750
Accounts payable............................... 8,085 6,818 9,048
Advance billings............................... 4,337 4,533 4,641
Accrued expenses............................... 3,525 2,902 3,990
Current portion of long-term obligations....... 4,455 5,911 6,371
-------- ------- -------
Total current liabilities.................... 26,402 29,464 34,800
Long-term obligations, net of current portion.... 52,378 47,094 44,301
Unearned installation income..................... 1,676 2,786 3,192
Commitments and contingencies (Note 7)...........
Redeemable preferred partnership interests....... 14,693 15,722 16,265
PARTNERS' CAPITAL (DEFICIT):
Limited partners' interests.................... 7,368 5,637 4,328
General partners' interests (deficiencies)..... 575 (4,264) (7,528)
-------- ------- -------
Total partners' capital (deficit)............ 7,943 1,373 (3,200)
-------- ------- -------
Total liabilities and partners' capital (def-
icit)....................................... $103,092 $96,439 $95,358
======== ======= =======
The accompanying notes are an integral part of these financial statements.
F-3
MUZAK LIMITED PARTNERSHIP
STATEMENTS OF OPERATIONS
(IN THOUSANDS)
SIX-
MONTH PERIOD
YEAR ENDED DECEMBER 31, ENDED JUNE 30,
------------------------- ----------------
1993 1994 1995 1995 1996
(UNAUDITED)
Revenues:
Music and other business
services....................... $36,800 $50,410 $52,489 $25,916 $26,977
Equipment and related services.. 21,741 33,006 34,392 16,646 15,179
------- ------- ------- ------- -------
Total revenues................ 58,541 83,416 86,881 42,562 42,156
------- ------- ------- ------- -------
Cost of revenues:
Music and other business
services....................... 10,611 13,685 14,465 7,063 7,501
Equipment and related services.. 16,756 23,413 23,895 11,465 10,303
------- ------- ------- ------- -------
Total cost of revenues........ 27,367 37,098 38,360 18,528 17,804
------- ------- ------- ------- -------
Gross profit...................... 31,174 46,318 48,521 24,034 24,352
Selling, general and
administrative expenses.......... 19,603 28,699 28,496 14,628 15,107
Depreciation...................... 4,349 8,211 9,382 4,669 5,155
Amortization...................... 6,942 9,622 8,909 4,443 4,463
------- ------- ------- ------- -------
Operating income (loss)......... 280 (214) 1,734 294 (373)
Interest expense.................. 3,785 6,990 7,483 3,791 3,574
Other (income) expense, net....... (30) (21) (35) (42) 228
------- ------- ------- ------- -------
Net loss........................ (3,475) (7,183) (5,714) (3,455) (4,175)
Redeemable preferred returns.... (572) (933) (1,029) (506) (543)
------- ------- ------- ------- -------
Net loss attributable to general
and limited partners........... ($4,047) ($8,116) ($6,743) ($3,961) ($4,718)
======= ======= ======= ======= =======
The accompanying notes are an integral part of these financial statements.
F-4
MUZAK LIMITED PARTNERSHIP
STATEMENTS OF PARTNERS' CAPITAL (DEFICIT)
FOR THE YEARS ENDED DECEMBER 31, 1993, 1994 AND 1995 AND THE UNAUDITED SIX-
MONTH PERIOD ENDED JUNE 30, 1996
(IN THOUSANDS)
GENERAL PARTNERS' CLASS B TOTAL LIMITED
INTERESTS CLASS A CLASS B LIMITED PREFERRED PARTNERS' INTERESTS
------------------- LIMITED CLASS A LIMITED PARTNERS' LIMITED ----------------------
NUMBER PARTNERS' PUT/CALL PARTNERS' SUBSCRIPTIONS PARTNERS' NUMBER
OF UNITS AMOUNT INTERESTS OPTIONS INTERESTS RECEIVABLE INTERESTS OF UNITS AMOUNT
Balance, January
1, 1993......... 9,101 $ 8,921 $ 1,315 $ 927 $ 1,628 ($ 592) $ -- 4,376 $ 3,278
Net loss........ (2,422) (360) (255) (438) (1,053)
Payment of
foreign income
taxes.......... (56) (8) (6) (10) (24)
Preferred return
on redeemable
preferred
interests...... (399) (59) (42) (72) (173)
Redemption of
Class B limited
partnership
interest....... (50) 25 (50) (25)
------- --------- ------- ------ ------- ------ ------ -------- ----------
Balance, December
31, 1993........ 9,101 6,044 888 624 1,058 (567) -- 4,326 2,003
Net loss........ (4,802) (887) (561) (933) (2,381)
Payment of
foreign income
taxes.......... (43) (8) (5) (8) (21)
Preferred return
on redeemable
preferred
interests...... (624) (115) (73) (121) (309)
Contributions by
partners....... 967 175 (246) 7,000 4,663 7,896
Principal
payments on
subscriptions
receivable..... 180 180
------- --------- ------- ------ ------- ------ ------ -------- ----------
Balance, December
31, 1994........ 9,101 575 (122) 952 171 (633) 7,000 8,989 7,368
Net loss........ (3,690) (682) (621) (721) (2,024)
Payment of
foreign income
taxes.......... (51) (14) (9) (12) (35)
Preferred return
on redeemable
preferred
interests...... (665) (123) (112) (129) (364)
Preferred return
on preferred
limited
partners'
interests...... (433) (80) (73) (85) 671 433
Principal
payments on
subscriptions
receivable..... 259 259
------- --------- ------- ------ ------- ------ ------ -------- ----------
Balance, December
31, 1995........ 9,101 (4,264) (1,021) 137 (776) (374) 7,671 8,989 5,637
Net loss........ (2,697) (499) (453) (526) (1,478)
Payment of
foreign income
taxes.......... (17) (3) (3) (4) (10)
Preferred return
on redeemable
preferred
interests...... (351) (65) (59) (68) (192)
Preferred return
on preferred
limited
partners'
interests...... (199) (37) (33) (39) 308 199
Principal
payments on
subscriptions
receivable..... 67 67
Contribution by
Partner........ 105 60 105
------- --------- ------- ------ ------- ------ ------ -------- ----------
Balance, June 30,
1996
(unaudited)..... 9,101 ($7,528) ($1,625) ($ 411) ($1,308) ($ 307) $7,979 9,049 $ 4,328
======= ========= ======= ====== ======= ====== ====== ======== ==========
TOTAL
-----------------
NUMBER
OF UNITS AMOUNT
Balance, January
1, 1993......... 13,477 $12,199
Net loss........ (3,475)
Payment of
foreign income
taxes.......... (80)
Preferred return
on redeemable
preferred
interests...... (572)
Redemption of
Class B limited
partnership
interest....... (50) (25)
-------- --------
Balance, December
31, 1993........ 13,427 8,047
Net loss........ (7,183)
Payment of
foreign income
taxes.......... (64)
Preferred return
on redeemable
preferred
interests...... (933)
Contributions by
partners....... 4,663 7,896
Principal
payments on
subscriptions
receivable..... 180
-------- --------
Balance, December
31, 1994........ 18,090 7,943
Net loss........ (5,714)
Payment of
foreign income
taxes.......... (86)
Preferred return
on redeemable
preferred
interests...... (1,029)
Preferred return
on preferred
limited
partners'
interests...... --
Principal
payments on
subscriptions
receivable..... 259
-------- --------
Balance, December
31, 1995........ 18,090 1,373
Net loss........ (4,175)
Payment of
foreign income
taxes.......... (27)
Preferred return
on redeemable
preferred
interests...... (543)
Preferred return
on preferred
limited
partners'
interests...... --
Principal
payments on
subscriptions
receivable..... 67
Contribution by
Partner........ 60 105
-------- --------
Balance, June 30,
1996
(unaudited)..... 18,150 ($3,200)
======== ========
The accompanying notes are an integral part of these financial statements.
F-5
MUZAK LIMITED PARTNERSHIP
STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
SIX-
MONTH PERIOD
YEAR ENDED DECEMBER 31, ENDED JUNE 30,
------------------------- ----------------
1993 1994 1995 1995 1996
(UNAUDITED)
OPERATING ACTIVITIES
Net loss........................ ($3,475) ($7,183) ($5,714) ($3,455) ($4,175)
Adjustments to reconcile net
loss to net cash provided by
operating activities:
Provision for doubtful
accounts..................... 464 610 810 299 225
Depreciation.................. 4,349 8,211 9,382 4,669 5,155
Amortization, net of deferred
financing costs.............. 6,942 9,622 8,909 4,443 4,463
Deferred financing cost
amortization................. 529 1,159 1,310 658 605
Loss in equity of joint
venture...................... -- -- -- -- 117
Changes in operating assets and
liabilities:
Accounts receivable........... (3,442) (1,890) (476) 1,988 750
Inventories................... (476) (259) 597 995 220
Accounts payable.............. 1,137 1,970 (1,267) (1,631) 1,531
Accrued expenses.............. (840) 1,198 (623) (362) 1,089
Advance billings.............. 507 1,200 194 27 107
Unearned installation income.. 577 1,099 1,110 558 406
Other, net.................... 154 (79) (35) (85) 70
------- ------- ------- ------- -------
Net cash provided by operating
activities................... 6,426 15,658 14,197 8,104 10,563
------- ------- ------- ------- -------
INVESTING ACTIVITIES
Additions to property and
equipment...................... (4,537) (9,531) (8,116) (3,675) (4,546)
Additions to deferred costs and
intangible assets.............. (3,698) (4,273) (4,641) (2,368) (2,870)
Acquisitions of businesses and
ventures, net of cash
acquired....................... -- (33,294) (557) -- --
Other, net...................... 42 52 3 -- 156
------- ------- ------- ------- -------
Net cash used in investing
activities................... (8,193) (47,046) (13,311) (6,043) (7,260)
------- ------- ------- ------- -------
FINANCING ACTIVITIES
Borrowings (repayment) under
revolving notes
payable, net................... 3,250 2,250 3,300 (400) 1,450
Borrowings on term debt......... -- 34,034 -- -- --
Principal payments on term
debt........................... (900) (11,500) (4,111) (1,622) (2,490)
Borrowing (payments) on other
long-term debt................. -- (986) (30) 47 (46)
Payments under capital leases... (484) (413) (432) (246) (213)
Contributions by partners....... -- 8,076 259 48 172
Other, net...................... (104) (64) (202) (21) (52)
------- ------- ------- ------- -------
Net cash provided by (used in)
financing activities......... 1,762 31,397 (1,216) (2,194) (1,179)
------- ------- ------- ------- -------
Net increase (decrease) in
cash and cash equivalents.... (5) 9 (330) (133) 2,124
CASH AND CASH EQUIVALENTS,
beginning of period.............. 1,441 1,436 1,445 1,445 1,115
------- ------- ------- ------- -------
CASH AND CASH EQUIVALENTS, end of
period........................... $ 1,436 $ 1,445 $ 1,115 $ 1,312 $ 3,239
======= ======= ======= ======= =======
The accompanying notes are an integral part of these financial statements.
F-6
MUZAK LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS
(INFORMATION AS OF AND FOR THE SIX-MONTH PERIODS ENDED JUNE 30, 1995 AND 1996
IS UNAUDITED.)
1. THE COMPANY AND ITS BUSINESS:
Muzak Limited Partnership (the "Company") provides business music services
and also produces, markets and sells broadcast data delivery, video, audio
marketing and in-store advertising services through a network of domestic and
international franchises and owned operations. The franchisees are charged a
fee based on their revenues, as well as certain other fees, in exchange for
broadcast music, marketing, technical and administrative support. The Company
and its franchisees also sell, install and maintain electronic equipment
related to the Company's business.
The Company develops and uses proprietary techniques for blending music into
programs which have a measurable and predictable effect on listeners. The
Company's music is primarily sold for use in public areas, such as retail
establishments and restaurants, and work areas, such as business offices and
manufacturing facilities. Services are distributed through direct broadcast
satellite transmission, local broadcast transmissions and pre-recorded tapes
played on the customers' premises.
The Company is subject to certain business risks which could affect future
operations and financial performance. These risks include rapid technological
change, competitive pricing, concentrations in and dependence on satellite
delivery capabilities, and development of new services.
BUSINESS ACQUISITIONS
As of September 1, 1992, the Company commenced operations in its current
form (the "Partnership") through an acquisition (the "1992 Acquisition") of
substantially all of the assets, including the right to operate under its
current name, from a predecessor partnership (the "Seller"). The acquisition
was accounted for as a purchase with the purchase price allocated to the
individual assets, based on their estimated fair values at the date of
acquisition.
On January 31, 1994, the Company acquired substantially all the net assets
of Comcast Sound Communications, Inc. ("Comcast"), previously the Company's
largest franchisee. The net assets were acquired for approximately $33
million, including a $5 million redeemable preferred partnership interest
issued to Comcast and closing costs. The acquisition was financed through
additional bank borrowings and the contribution of certain assets by Comcast
in exchange for a redeemable preferred partnership interest. The transaction
was accounted for as a purchase with the purchase price allocated to the
individual assets based on the fair values at the date of acquisition.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
INTERIM FINANCIAL INFORMATION
The interim financial information, as of and for the six-month periods ended
June 30, 1995 and 1996, was prepared by the Company in a manner consistent
with the audited financial statements and pursuant to the rules and
requirements of the Securities and Exchange Commission. The unaudited
information, in management's opinion, reflects all adjustments which are of a
normal recurring nature and which are necessary to present fairly the results
of the periods presented. The results of operations for the six-month period
ended June 30, 1996, are not necessarily indicative of the results to be
expected for the entire year.
CASH EQUIVALENTS
Short-term investments with maturities at the date of purchase of ninety
days or less are considered cash equivalents. Their recorded amount
approximates fair value.
F-7
MUZAK LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
(INFORMATION AS OF AND FOR THE SIX-MONTH PERIODS ENDED JUNE 30, 1995 AND 1996
IS UNAUDITED.)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES, (CONTINUED)
INVENTORIES
Inventories consist primarily of electronic equipment and are recorded at
the lower of cost (first-in, first-out) or market.
PROPERTY AND EQUIPMENT
Property and equipment consist primarily of equipment provided to
subscribers and machinery and equipment, recorded at cost. Major renewals and
betterments are capitalized to the property accounts while replacements,
maintenance and repairs that do not improve or extend the lives of the
respective assets are expensed.
Property and equipment are depreciated on a straight-line basis over the
estimated useful lives of the related assets, ranging from five to forty
years. Assets acquired under capital leases and leasehold improvements are
amortized on a straight-line basis over the shorter of their estimated useful
lives or the term of the related leases.
DEFERRED COSTS AND INTANGIBLE ASSETS
Income producing contracts, acquired through acquisitions, are being charged
to amortization expense on an accelerated method over their period of expected
benefit of eight years. Deferred financing costs are being charged to interest
expense on the effective interest method over the term of the related
agreements. Other deferred costs and intangible assets are recorded at cost
and are being charged to amortization expense over their estimated useful
lives or their period of expected benefit ranging from two and one-half to ten
years.
The carrying value of long lived assets is reviewed on a regular basis for
the existence of facts or circumstances that may indicate that the carrying
amount is not recoverable. To date, no impairment has been indicated. Should
there be an impairment in the future, the Company will measure the impairment
based on the discounted expected future cash flows from the impaired assets.
REVENUE RECOGNITION
Revenues are recognized in the month that the services are provided. Fees
from franchisees are recognized as music revenues in the month that the
franchisee generates its revenues. Equipment and related services revenues are
recorded in the period that the installation is completed.
ADVANCE BILLINGS
The Company bills certain customers in advance for contracted music and
other business services. Amounts billed in advance of the service period are
deferred when billed and recognized as revenue in the period earned.
UNEARNED INSTALLATION INCOME
The Company defers recognition of income from the installation of equipment
provided to subscribers and recognizes these amounts as revenue on a straight-
line basis over the average subscriber service period.
INCOME TAXES
The income tax effects of all earnings or losses of the Company are passed
directly to the partners. Payment of foreign income taxes is reflected as a
reduction to the partners' capital accounts. Thus, no provision or benefit for
federal, state, local or foreign income taxes is required.
F-8
MUZAK LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
(INFORMATION AS OF AND FOR THE SIX-MONTH PERIODS ENDED JUNE 30, 1995 AND 1996
IS UNAUDITED.)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES, (CONTINUED)
USE OF ESTIMATES IN PREPARATION OF FINANCIAL STATEMENTS
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amount of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and reported amounts of revenues and expenses during the reporting
period. Actual results could differ from those estimates.
ACCOUNTING FOR STOCK-BASED COMPENSATION
Statement of Financial Accounting Standard ("SFAS") Number 123, "Accounting
for Stock-Based Compensation" was recently issued and is effective for the
Company beginning January 1, 1996. SFAS Number 123 requires expanded
disclosures of equity-based compensation arrangements with employees and does
not require, but encourages compensation cost to be measured based on fair
value of the equity instrument when awarded. The Company, as allowed, intends
to continue to measure equity-based compensation using its current method of
accounting prescribed by Accounting Principles Board Opinion Number 25 that
recognizes compensation cost based on the intrinsic value of the equity
instrument awarded. The Company will be required to disclose certain
additional information related to its stock-based compensation; however,
management believes the impact to the financial statements, as a whole, will
not be material.
3. PROPERTY AND EQUIPMENT, NET:
Property and equipment consist of the following (in thousands):
DECEMBER 31,
------------------ JUNE 30,
1994 1995 1996
Equipment provided to subscribers............ $ 37,305 $ 42,847 $ 45,668
Machinery and equipment...................... 6,469 7,628 8,654
Vehicles..................................... 2,403 2,872 2,959
Furniture and fixtures....................... 1,948 2,133 2,205
Land and buildings........................... 1,001 858 858
Leasehold improvements....................... 710 833 850
-------- -------- --------
Total property and equipment............... 49,836 57,171 61,194
Less--accumulated depreciation and amortiza-
tion........................................ (12,248) (20,585) (25,139)
-------- -------- --------
$ 37,588 $ 36,586 $ 36,055
======== ======== ========
F-9
MUZAK LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
(INFORMATION AS OF AND FOR THE SIX-MONTH PERIODS ENDED JUNE 30, 1995 AND 1996
IS UNAUDITED.)
4. DEFERRED COSTS AND INTANGIBLE ASSETS, NET:
Deferred costs and intangible assets consist of the following (in
thousands):
DECEMBER 31,
------------------ JUNE 30,
1994 1995 1996
Income producing contracts................... $ 39,676 $ 39,826 $ 39,828
Deferred subscriber acquisition costs........ 4,604 7,784 9,356
Master recording rights and deferred
production costs............................ 6,310 7,770 8,664
Deferred financing costs..................... 5,661 5,783 6,508
Organization costs........................... 4,202 4,454 4,836
Non-compete agreements....................... 846 846 846
Other........................................ 634 702 722
-------- -------- --------
Total deferred costs and intangible
assets.................................... 61,933 67,165 70,760
Less--accumulated amortization............... (20,498) (30,459) (35,403)
-------- -------- --------
$ 41,435 $ 36,706 $ 35,357
======== ======== ========
5. LONG-TERM OBLIGATIONS:
Long-term obligations are summarized as follows (in thousands):
DECEMBER 31,
---------------- JUNE 30,
1994 1995 1996
Variable rate senior term loan................... $45,100 $40,989 $38,499
Fixed rate subordinated note, net of unamortized
discount
of $1,792, $1,536 and $1,412.................... 10,708 10,964 11,088
Capital lease obligations........................ 705 762 842
Other............................................ 320 290 243
------- ------- -------
Total long-term obligations.................... 56,833 53,005 50,672
Less--current portion............................ ( 4,455) ( 5,911) (6,371)
------- ------- -------
$52,378 $47,094 $44,301
======= ======= =======
CREDIT AGREEMENTS
The variable rate senior term loan is a $46,600,000 term loan (the "Credit
Agreement") with a group of banks for which Union Bank of Switzerland (the
"Agent Bank"), an affiliate of a limited partner, is acting as agent. The
Credit Agreement also includes a $13,000,000 revolving credit facility. The
terms of the Credit Agreement, as amended, require the Company to meet certain
financial ratios and performance criteria and impose restrictions on capital
spending, the incurrence of additional debt, and distributions to partners,
among other things. Distributions to partners are limited to distributions
that offset tax liabilities to the partners resulting from the Company's
taxable income. Substantially all of the Company's assets and proceeds from
certain insurance policies are pledged as collateral under the Credit
Agreement.
The fixed rate subordinated note (the "Subordinated Note") was obtained from
a group of banks that were issued options to purchase Class A limited
partnership units (the "Put/Call Units") in connection with this credit
arrangement. The value of these Put/Call Units has been accounted for as debt
discount and amortized on the effective interest method over the term of this
note. The Subordinated Note requires the Company to maintain certain
performance criteria and covenants, similar to, but less restrictive than the
Credit Agreement. Substantially all of the Company's assets and proceeds from
certain insurance policies are pledged as collateral under this agreement.
F-10
MUZAK LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
(INFORMATION AS OF AND FOR THE SIX-MONTH PERIODS ENDED JUNE 30, 1995 AND 1996
IS UNAUDITED.)
5. LONG-TERM OBLIGATIONS, (CONTINUED)
INTEREST RATES AND PAYMENTS
Interest under the Credit Agreement is paid at an interest rate based on the
Agent Bank's prime rate or LIBOR in quarterly installments. During the years
ended December 31, 1993, 1994 and 1995 and for the six-month periods ended
June 30, 1995 and 1996, the effective weighted average interest rates on
borrowings under the Credit Agreement were 9.1%, 10.0%, 11.2%, 11.3% and
10.6%, respectively, including the effects of the interest rate swap agreement
described below. Interest under the Subordinated Note is paid in semi-annual
installments at a rate of 12.5%, an effective rate of 14.5%, after
amortization of the debt discount. The capital lease obligations require
monthly installments of interest at a weighted average interest rate of
approximately 10.0%. Total cash paid for interest on long-term obligations was
approximately $3,340,000, $5,460,000 and $5,760,000 for the years ended
December 31, 1993, 1994 and 1995, and for the six-month periods ended June 30,
1995 and 1996 were $3,214,000 and $3,025,000, respectively.
FUTURE MATURITIES
The variable rate senior term loan under the Credit Agreement requires semi-
annual principal installments through 2001. The Subordinated Note payable is
due in semi-annual installments in 2001 and 2002. The lease obligations are
due in monthly installments through 1999. The revolving credit facility
terminates and requires final payment on January 15, 2001. Total future
maturities of long-term obligations, for the five years following December 31,
1995 are: $5,911,000 in 1996; $7,323,000 in 1997; $8,139,000 in 1998;
$8,064,000 in 1999; and $8,297,000 in 2000.
INTEREST RATE HEDGING
The Company has entered into an interest rate swap agreement with the Agent
Bank that effectively fixed the rate on $10,000,000 of the debt under the
Credit Agreement at December 31, 1995 and June 30, 1996. Net settlements are
recorded in interest expense. The risk of credit loss in the event of non-
performance by the counterparty to the swap agreement is considered by
management to be minimal.
FINANCING COSTS PAID TO RELATED PARTIES
As of December 31, 1995 and June 30, 1996, the Agent Bank was an affiliate
of a Class A limited partner. In addition, the Subordinated Note holder held
the Put/Call Units. During the years ended December 31, 1993, 1994 and 1995,
and six-month periods ended June 30, 1995 and 1996, the Company incurred
interest expense related to these credit facilities of $3,670,000, $6,888,000,
$7,367,000, $3,736,000 and $3,514,000, respectively. Of these amounts,
$1,046,000, $1,336,000 and $1,252,000 are included in accrued expenses at
December 31, 1994 and 1995 and June 30, 1996, respectively. In addition, the
Company paid fees to the holders of the senior and subordinated notes payable
of $250,000, $1,943,000 and $122,000 in 1993, 1994 and 1995, respectively,
related to amendments to the Credit Agreement and the subordinated note
agreement. During the year ended December 31, 1994, the Company paid the
general partner $474,000 for its efforts related to obtaining the Company's
credit facilities and acquiring Comcast.
FAIR VALUE
The recorded amount of the Company's long-term debt and related deferred
financing costs approximate current market prices for the same or similar
issues available to the Company for debt with similar remaining maturities.
F-11
MUZAK LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
(INFORMATION AS OF AND FOR THE SIX-MONTH PERIODS ENDED JUNE 30, 1995 AND 1996
IS UNAUDITED.)
6. BENEFIT PLANS:
DEFINED CONTRIBUTION PLAN
The Company maintains a defined contribution savings and retirement plan
(the "Benefit Plan") that covers substantially all employees. Under the
savings portion of the Benefit Plan, eligible employees may contribute from 2%
to 14% of their compensation, subject to Internal Revenue Code limitations.
For the years ended 1993, 1994 and 1995 the Company, at its discretion, may
contribute a matching amount of up to 50% of the first 6% contributed by the
employee. Employees are 100% vested in their contribution at all times and
vest 100% in the Company portion at December 31 of the year of the
contribution. The Company recorded contribution expense for the savings
portion of the Benefit Plan of approximately $114,000, $170,000 and $181,000
for the years ended December 31, 1993, 1994 and 1995 and $90,000 and $202,000
for the six-month periods ended June 30, 1995 and 1996, respectively.
The retirement portion of the Benefit Plan is determined annually by the
Company at its discretion, but may not exceed 3% of the eligible employee's
compensation. The employees vest in the retirement portion of the Benefit Plan
ratably over five years, but become fully vested in the event of death,
disability or the attainment of the age of 65. The Company accrued $180,000,
$260,000 and $135,000 for the retirement portion of the Benefit Plan for the
years ended December 31, 1993 and 1994 and the six-month period ended June 30,
1995, respectively. No amounts were accrued for the year ending December 31,
1995, or the six-month period ended June 30, 1996.
MULTI-EMPLOYER DEFINED CONTRIBUTION PLANS
The Company participates in several multi-employer defined contribution
benefit plans that provide benefits to employees covered by certain labor
union contracts. The amount of expense related to contributions to these plans
was approximately $83,000, $110,000 and $108,000 for the years ended December
31, 1993, 1994 and 1995 and approximately $54,000 and $60,000 for the six-
month periods ended June 30, 1995 and 1996, respectively. These amounts were
determined by union contract and the Company does not administer or control
the funds.
7. COMMITMENTS AND CONTINGENCIES:
LEASES
The Company leases certain facilities and equipment under both operating and
capital leases. In addition, the Company has entered into agreements to obtain
satellite channel capacity and subsidiary communication authorization rights
for the transmission of programs to the Company's customers. Total rental
expense under operating leases was approximately $5,590,000, $6,384,000 and
$7,698,000 for the years ended December 31, 1993, 1994 and 1995 and $3,833,000
and $3,148,000 for the six-month periods ended June 30, 1995 and 1996,
respectively.
F-12
MUZAK LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
(INFORMATION AS OF AND FOR THE SIX-MONTH PERIODS ENDED JUNE 30, 1995 AND 1996
IS UNAUDITED.)
7. COMMITMENTS AND CONTINGENCIES, (CONTINUED)
Future annual minimum lease payments under noncancelable leases for the
years ended December 31 are as follows (in thousands):
CAPITAL OPERATING
LEASES LEASES
1996................................................... $338 $ 6,011
1997................................................... 275 4,842
1998................................................... 147 3,955
1999................................................... 67 3,202
2000................................................... -- 2,765
Thereafter............................................. -- 6,208
---- -------
Total minimum lease payments........................... 827 $26,983
=======
Less amount representing interest...................... (65)
----
Present value of future minimum capital lease payments
included in long-term obligations..................... $762
====
Assets acquired under capital leases were $135,000, $460,000 and $489,000
for the years ended December 31, 1993, 1994 and 1995, respectively. Assets
recorded under capital leases were $1,294,000, $1,141,000 and $1,412,000 with
accumulated amortization of $428,000, $307,000 and $439,000 as of December 31,
1994 and 1995 and June 30, 1996, respectively.
CONTINGENT PURCHASE CONSIDERATION
The 1992 Asset Purchase Agreement, as amended ("Purchase Agreement"),
provides for contingent payments to the Seller if certain performance levels
are achieved in the five years following the closing of the 1992 Acquisition.
If the performance levels are achieved the Company will owe the Seller
additional purchase price of $5 million to $24 million. Any such payments, if
earned, will be allocated to the assets acquired or, if applicable, recorded
as additional purchased assets. No amounts have been paid or accrued as of
December 31, 1995 or June 30, 1996 pursuant to this provision, as the
possibility of obtaining the required performance objectives has been deemed
remote by management.
TAXES
An assessment was made against the Seller resulting from an audit performed
by the Washington State Department of Revenue for sales and use and business
and occupation taxes paid for the period from 1987 through September 1992.
Under successor liability statutes in the state of Washington, the Company
could, if the Seller fails to pay its tax obligation, become liable for the
assessment outstanding against the Seller of approximately $1,700,000.
This assessment is under appeal by the Seller, who under the Purchase
Agreement is liable for the entire assessment. Under the terms of the Purchase
Agreement, the Company has the right to offset any future payments (including
any contingent purchase payments or any redemption of Class C redeemable
preferred partnership interests) from the Company to the Seller if the Seller
fails to pay its tax obligation. The Company's management does not believe
that the assessment will have an adverse effect on the Company's financial
condition or results of operations.
F-13
MUZAK LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
(INFORMATION AS OF AND FOR THE SIX-MONTH PERIODS ENDED JUNE 30, 1995 AND 1996
IS UNAUDITED.)
7. COMMITMENTS AND CONTINGENCIES, (CONTINUED)
EMPLOYMENT AGREEMENTS
The Company has five-year employment agreements with certain senior
executive officers. These five-year agreements, expiring August 31, 1997,
provide certain benefits to the officers if involuntarily terminated by the
Company. As of December 31, 1994 and 1995 and June 30, 1996 no amounts have
been accrued related to these agreements.
LEGAL PROCEEDINGS
The Company is subject to various legal proceedings which arise in the
ordinary course of business. Company management believes none of these
proceedings, individually or in the aggregate, will have a material adverse
effect on the financial condition or results of operations of the Company.
8. REDEEMABLE PREFERRED PARTNERSHIP INTERESTS:
The redeemable preferred partnership interests are comprised of a Class C
and a C-1 preferred partnership interest. Both are non-voting interests that
do not participate in the Company's profits or losses. A summary of these
interests and their accumulated returns by period are as follows (in
thousands):
CLASS C CLASS C-1 TOTAL
Balance, January 1, 1993.......................... $ 8,188 $ -- $ 8,188
Preferred return................................. 572 -- 572
------- ------ -------
Balance, December 31, 1993........................ 8,760 -- 8,760
Class C-1 contribution........................... -- 5,000 5,000
Preferred return................................. 613 320 933
------- ------ -------
Balance, December 31, 1994........................ 9,373 5,320 14,693
Preferred return................................. 657 372 1,029
------- ------ -------
Balance, December 31, 1995........................ 10,030 5,692 15,722
Preferred return................................. 344 199 543
------- ------ -------
Balance, June 30, 1996............................ $10,374 $5,891 $16,265
======= ====== =======
CLASS C INTEREST
The Class C limited partner is entitled to receive the amount of its initial
contribution of $8,000,000, plus a return of 7% compounded annually, through
November 30, 2002, the date of redemption. The Class C limited partner is
entitled to a preference in liquidation equal to its contribution plus
accumulated return. A general partner may, at its sole discretion, require the
Class C limited partner to exchange its interest for a note equal its then
aggregate liquidation preference amount. If the Class C limited partnership
units remain outstanding on November 30, 2002 the Company is required to
redeem such units for an amount equal to the Class C contribution plus
accumulated return.
CLASS C-1 INTEREST
The Class C-1 limited partner is entitled to receive the amount of its
initial contribution of $5,000,000, plus a return of 7% compounded annually,
through January 31, 2004, the date of redemption. The Class C-1 limited
partner may become, at its option, a participating partner. Upon becoming a
participating partner, the Class C-1
F-14
MUZAK LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
(INFORMATION AS OF AND FOR THE SIX-MONTH PERIODS ENDED JUNE 30, 1995 AND 1996
IS UNAUDITED.)
8. REDEEMABLE PREFERRED PARTNERSHIP INTERESTS, (CONTINUED)
limited partner will forfeit any accrued portion of the return. If it has not
previously become a participating partner, the Class C-1 limited partner is
entitled to a preference in liquidation equal to its contribution plus
accumulated return. Unless the Class C-1 interest becomes a participating
interest, a general partner may, at its sole discretion, require the Class C-1
limited partner to exchange its interest for a note equal to its then
aggregate liquidation preference amount. If such exchange occurs prior to the
time the Class C-1 limited partner has the opportunity to obtain participation
status, the Class C-1 limited partner will also be issued an option to acquire
the participating interest on substantially the same terms as if such exchange
had not occurred. If the Class C-1 limited partner has not obtained
participation status, or has not exchanged such units for notes, on or prior
to January 31, 2004, the Company is required to redeem such units for an
amount equal to the Class C-1 contribution plus accumulated return.
9. PARTNERS' CAPITAL:
Partners' capital is comprised of two general partners ("General Partners'
Interests"); Class A limited partners and Class B limited partners ("Limited
Partners' Interests"); Put/Call Units, and; preferred limited partners'
interests.
PUT/CALL UNITS
In connection with obtaining the fixed rate subordinated note payable, the
Company issued a lender an option to purchase 1,529,898 units of Class A
limited partnership interests, for an aggregate exercise price of $10. These
units are currently exercisable. The estimated value of the Put/Call Units was
recorded as a debt discount and is being amortized as an adjustment to
interest expense over the life of the related debt obligation.
SUBSCRIPTIONS RECEIVABLE
Officers and key employees of the Company have acquired limited partnership
interests, a portion of which were financed with subscription notes. As of
December 31, 1994 and 1995 and June 30, 1996, the Class B limited partners'
capital accounts were reduced by subscription notes receivable. Interest
income on the subscriptions receivable totaled $51,000 and $49,000 for the
years ended December 31, 1994 and 1995, and $28,000 and $16,000 for the six-
month periods ended June 30, 1995 and 1996.
PREFERRED LIMITED PARTNERS' INTERESTS
The preferred limited partners' interests, which were issued on November 4,
1994, do not participate in the Company's profits or losses. Such limited
partners are entitled to receive an 8% return, compounded quarterly, on the
amount of their initial contribution and are generally entitled to a priority
on distributions from the Company. At December 31, 1995 and June 30, 1996, the
return was credited to the preferred limited partners. These limited partners
are also entitled to a preference in liquidation equal to their initial
contribution plus accumulated and unpaid return. Upon the occurrence of
certain events, the units may, at the option of the Company, be redeemed by
the Company for an amount equal to the then aggregate liquidation preference
amount. The units (and any accrued and unpaid return) may, at the option of
the holder, be converted into units of Class B limited partnership interest at
any time.
OPTION PLAN
Certain limited partners and key employees of the Company have the ability,
under certain conditions, as defined in the Management Option Plan (the
"Management Option Plan"), to exercise options to purchase partnership units.
These options vest at a rate of 20% per year, however, the scheduled vesting
rate of the options
F-15
MUZAK LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
(INFORMATION AS OF AND FOR THE SIX-MONTH PERIODS ENDED JUNE 30, 1995 AND 1996
IS UNAUDITED.)
9. PARTNERS' CAPITAL, (CONTINUED)
will be delayed and exercise precluded, if the Company fails to meet certain
performance standards, similar to those described in Note 7.
Activity under this plan and option price information is as follows:
NUMBER OF EXERCISE
OPTIONS PRICE
Balance, January 1, 1993............................... 1,704,545 $1.00
Options granted....................................... -- --
Options canceled...................................... (70,000) 1.00
--------- ------------
Balance, December 31, 1993............................. 1,634,545 1.00
Options granted....................................... 165,000 1.50 - 1.75
Options canceled...................................... (85,000) 1.00
--------- ------------
Balance, December 31, 1994............................. 1,714,545 1.00 - 1.75
Options granted....................................... 150,000 1.75
Options canceled...................................... (30,000) 1.00
--------- ------------
Balance, December 31, 1995............................. 1,834,545 1.00 - 1.75
--------- ------------
Options granted....................................... -- --
Options canceled...................................... -- --
--------- ------------
Balance, June 30, 1996................................. 1,834,545 $1.00 - 1.75
========= ============
Non-cash compensation expense resulting from this plan, if any, will be
charged to operations over the periods subject to these conditions when
management determines that it is probable that these performance objectives
will occur. From the inception of the Management Option Plan through June 30,
1996, no options have become exercisable. As the possibility of obtaining the
required performance objectives has been deemed remote by management, no
compensation expense has been recorded.
PUT OPTION
After September 4, 1998, a general partner and certain of the Class A
limited partners can require the Company to purchase limited partnership units
held by them at fair market value. However, such right may not be exercised if
the purchase of units would have a material adverse effect on the Company or
would be in contravention of any then existing agreement to which the Company
is a party.
ALLOCATION OF PROFITS AND LOSSES
Losses are allocated among the general partners and Class A and B limited
partners based upon the total of the interests held by each individual,
including the Put/Call Units under option, as a percentage of the total of all
such interests.
10. SUBSEQUENT EVENTS:
JOINT VENTURE GUARANTEE
The Company and Alcas Holding B.V., 50/50 joint venture partners in Muzak
Europe B.V. ("Muzak Europe"), have agreed to make pro rata equity
contributions to Muzak Europe to the extent necessary to enable
F-16
MUZAK LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
(INFORMATION AS OF AND FOR THE SIX-MONTH PERIODS ENDED JUNE 30, 1995 AND 1996
IS UNAUDITED.)
Muzak Europe to maintain minimum net worth requirements under its outstanding
credit facility. As of June 30, 1996, the amount outstanding under the credit
facility was $1.8 million.
PUBLIC OFFERING AND MUZAK CAPITAL CORPORATION
In May 1996, the Company organized Muzak Capital Corporation ("Capital
Corp.") (formerly Muzak, Inc.), a wholly-owned subsidiary of the Company. In
August 1996, the general and limited partners authorized a plan for the filing
of a registration statement for the underwritten public offering of the
Company's Senior Notes. In connection with this plan, Capital Corp. is being
utilized for the purpose of serving as a co-issuer of the Senior Notes in
order to facilitate the offering. The offering is expected to close in the
third quarter of 1996.
F-17
INDEPENDENT AUDITORS' REPORT
Board of Directors
Muzak Capital Corporation
Seattle, Washington
We have audited the accompanying balance sheet of Muzak Capital Corporation
(the "Company") as of August 27, 1996. This financial statement is the
responsibility of the Company's management. Our responsibility is to express
an opinion on this financial statement based on our audit.
We conducted our audit 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 audit provides a reasonable basis
for our opinion.
In our opinion, such financial statement presents fairly, in all material
respects, the financial position of Muzak Capital Corporation as of August 27,
1996 in conformity with generally accepted accounting principles.
Deloitte & Touche LLP
Seattle, Washington
August 27, 1996
F-18
MUZAK CAPITAL CORPORATION
BALANCE SHEET
AS OF INCEPTION MAY 8, 1996
ASSETS
Cash.................................................................. $ 1
====
STOCKHOLDER'S EQUITY
Preferred Stock--authorized 10,000,000 shares of $0.01 par value each;
no shares issued and outstanding..................................... $ --
Common Stock--authorized 30,000,000 shares of $0.01 par value each;
100 shares issued and outstanding.................................... 1
----
TOTAL............................................................... $ 1
====
F-19
NOTE TO FINANCIAL STATEMENT
Muzak Capital Corporation (the "Company") (formerly Muzak, Inc.), a wholly-
owned subsidiary of Muzak Limited Partnership ("MLP"), was formed on May 8,
1996. The Company intends, along with MLP, to file a registration statement
for the underwritten offering of senior notes of which the Company and MLP
will be co-issuers. The offering is expected to close in the third quarter of
1996.
F-20
INDEPENDENT AUDITORS' REPORT
Board of Directors
Comcast Corporation
Philadelphia, Pennsylvania
General and Limited Partners
Muzak Limited Partnership
Seattle, Washington
We have audited the accompanying consolidated statements of operations and
retained earnings and cash flows of Comcast Sound Communications, Inc. (a
wholly owned subsidiary of Comcast Corporation) and subsidiaries (the
"Company") for the year ended December 31, 1993. 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 audit.
We conducted our audit 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 audit provides a reasonable basis
for our opinion.
In our opinion, such consolidated financial statements referred to above
present fairly, in all material respects, the results of operations and cash
flows of Comcast Sound Communications, Inc. and subsidiaries for the year
ended December 31, 1993 in conformity with generally accepted accounting
principles.
As discussed in Note 1 to the consolidated financial statements, the Company
changed its method of accounting for postretirement benefits other than
pensions effective January 1, 1993, to conform with Statement of Financial
Accounting Standards No. 106.
As discussed in Note 5 to the consolidated financial statements, Comcast
Corporation provided financing, allocated management fees and costs, and
conducted certain other business transactions with the Company. The
accompanying consolidated financial statements may not necessarily be
indicative of the conditions that would have existed or the results of
operations if Comcast Sound Communications, Inc. and subsidiaries had been
unaffiliated with Comcast Corporation.
Deloitte & Touche LLP
Philadelphia, Pennsylvania
February 10, 1994
F-21
COMCAST SOUND COMMUNICATIONS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF OPERATIONS AND RETAINED EARNINGS
FOR THE YEAR ENDED DECEMBER 31, 1993
Revenues:
Music and other business services................................ $16,710,062
Equipment and related services................................... 9,410,707
-----------
Total revenue................................................... 26,120,769
Cost of revenues.................................................. 10,255,239
-----------
Gross profit.................................................... 15,865,530
Selling, general and administrative expenses...................... 12,338,877
Depreciation and amortization..................................... 3,078,293
-----------
Operating income................................................ 448,360
Interest expense.................................................. 443,201
Other income...................................................... (70,866)
-----------
Income before income taxes and cumulative effect of accounting
change......................................................... 76,025
Income taxes...................................................... (152,000)
-----------
Loss before cumulative effect of accounting change................ (75,975)
Cumulative effect of accounting change............................ (405,000)
-----------
Net loss........................................................ (480,975)
Retained earnings, beginning of year.............................. 9,060,949
-----------
Retained earnings, end of year.................................... $ 8,579,974
===========
See notes to consolidated financial statements.
F-22
COMCAST SOUND COMMUNICATIONS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CASH FLOWS
YEAR ENDED DECEMBER 31, 1993
OPERATING ACTIVITIES
Net loss........................................................ ($ 480,975)
Noncash items included in net loss:
Cumulative effect of accounting change......................... 405,000
Depreciation and amortization.................................. 3,078,293
Deferred income taxes.......................................... 242,000
-----------
3,244,318
Adjustments to reconcile net income to net cash provided by op-
erating activities:
Increase in accounts receivable, inventories, and prepaid
charges and other assets...................................... (1,515,717)
Increase in accounts payable and accrued expenses, state income
and other taxes,
and deferred revenue.......................................... 327,118
-----------
Net cash provided by operating activities...................... 2,055,719
-----------
FINANCING ACTIVITIES
Repayment of long-term debt..................................... (11,929)
Proceeds from note payable...................................... 121,235
Net transactions with Comcast and affiliates.................... 1,668,899
-----------
Net cash provided by financing activities...................... 1,778,205
-----------
INVESTING ACTIVITIES
Additions to property and equipment............................. (4,389,710)
Deferred charges and other...................................... (221,938)
-----------
Net cash used in investing activities.......................... (4,611,648)
-----------
Net decrease in cash and cash equivalents...................... (777,724)
CASH AND CASH EQUIVALENTS, beginning of year...................... 1,397,347
-----------
CASH AND CASH EQUIVALENTS, end of year............................ $ 619,623
===========
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Interest paid................................................... $ 445,000
Income taxes paid............................................... 483,000
See notes to consolidated financial statements.
F-23
COMCAST SOUND COMMUNICATIONS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. SIGNIFICANT ACCOUNTING POLICIES
The consolidated financial statements include the accounts of Comcast Sound
Communications, Inc. and its subsidiaries (the "Company"). The Company
provides sound communication services in the following states: California,
Colorado, Connecticut, Florida, Illinois, Indiana, Michigan, New York,
Pennsylvania and Texas. All significant intercompany accounts and transactions
among the consolidated entities have been eliminated. Through January 31,
1994, the Company was a wholly owned subsidiary of Comcast Corporation
("Comcast") (See Note 6).
Cash and cash equivalents includes cash on deposit and overnight investments
at a financial institution.
Depreciation of property and equipment is provided by the straight-line
method over estimated useful lives of 3-25 years.
Deferred charges and other assets include contract acquisition costs and
non-compete covenants and are being amortized over estimated useful lives
ranging from 5-10 years.
Excess of costs over net assets acquired is being amortized over 40 years
except for costs arising prior to November 1, 1970 of approximately $441,000,
which are not being amortized.
Revenues from the sale, service and installation of equipment are recognized
at the time the customer receives the product or service. Revenue for audio
services to customers under five-year contracts is recognized over the
contract period when earned.
Effective January 1, 1993, the Company adopted the provisions of Statement
of Financial Accounting Standards ("SFAS") No. 109, "Accounting for Income
Taxes" (see Note 2), and SFAS No. 106, "Employers' Accounting for
Postretirement Benefits Other Than Pensions" (see Note 5).
2. INCOME TAXES
The Company joins with Comcast in filing a consolidated federal income tax
return. Effective January 1, 1993, Comcast and the Company adopted SFAS No.
109. SFAS No. 109 generally provides that deferred tax assets and liabilities
be recognized for temporary differences between the financial reporting basis
and the tax basis of the Company's assets and liabilities and expected
benefits utilizing net operating loss ("NOL") carryforwards. The impact on
deferred taxes of changes in tax rates and laws, if any, applied to the years
during which temporary differences are expected to be settled is reflected in
the financial statements in the period of enactment.
Pursuant to the deferred method under Accounting Principles Board Opinion
No. 11, "Accounting for Income Taxes," which was applied in 1992 and prior
years, deferred income taxes were recognized for income and expense items that
were reported in different years for financial reporting purposes and income
tax purposes using the tax rate applicable for the year of the calculation.
Under the deferred method, deferred taxes were not adjusted for subsequent
changes in tax rates.
In 1992 and prior years, under a tax sharing arrangement between the Company
and Comcast, income taxes were computed based upon book income and were
recorded as due to Comcast and affiliates. This tax sharing arrangement was
amended with the adoption of SFAS No. 109 to require the Company to pay to
Comcast taxes currently payable as if the Company was filing separate tax
returns.
F-24
COMCAST SOUND COMMUNICATIONS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The Company has determined the amount of its deferred tax liability balance
at January 1, 1993, computed on a separate return basis, using Comcast's
effective tax rate, and has adjusted the due to Comcast and affiliate to
separately report this amount as a deferred tax liability, computed under SFAS
No. 109. The cumulative effect of adopting SFAS No. 109 is not material to the
Company's results of operations. Income tax expense consists of the following
components:
1993
Current expense (benefit):
Federal......................................................... ($174,000)
State........................................................... 84,000
---------
(90,000)
---------
Deferred expense:
Federal......................................................... 222,000
State........................................................... 20,000
---------
242,000
---------
Income tax expense............................................... $152,000
=========
The effective income tax expense of the Company differs from the statutory
amount because of the effect of the following items:
1993
Federal tax at statutory rate ................................... $ 26,600
State income taxes, (net federal benefit)........................ 67,600
Increase in corporate federal income tax rate from 34% to 35%.... 43,000
Other............................................................ 14,800
---------
Income tax expense............................................... $152,000
=========
3. COMMITMENTS
The Company and its subsidiaries lease office, warehouse and distribution
space and other equipment under various noncancellable operating leases.
Certain of the lease agreements contain renewal options.
At December 31, 1993, minimum annual commitments for rentals under
noncancellable leases are:
1994.............................................................. $1,066,779
1995.............................................................. 853,741
1996.............................................................. 651,311
1997.............................................................. 469,926
1998.............................................................. 303,615
Thereafter........................................................ 488,176
----------
$3,833,548
==========
Rental expense (including amounts charged by Comcast) was approximately
$1,399,000 in 1993.
4. RELATED PARTY TRANSACTIONS
Management fees are charged by Comcast based on the Company's recurring and
nonrecurring revenues in 1993. Under these policies, management fees of
approximately $2,601,000 were charged to the Company and recorded in selling,
general and administrative expense in 1993. The 1993 management fee included
charges to
F-25
COMCAST SOUND COMMUNICATIONS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
the Company of approximately $2,000,000 for salary continuation, closing
bonuses and legal fees associated with, but not contingent upon, the
subsequent sale of certain assets and liabilities of the Company (see Note 6).
The Company has entered into cost sharing arrangements with Comcast for
certain services, including insurance, rent and employee benefits. Under these
arrangements, the Company was charged approximately $1,682,000 in 1993.
The Company incurred $428,000 of interest expense related to a note payable
of $9,500,000, bearing an interest rate of 4.5%, to an affiliate (see Note 6).
See Note 2--Income Taxes.
See Note 3--Commitments
See Note 5--Postretirement Benefits Other than Pensions.
5. POSTRETIREMENT BENEFITS OTHER THAN PENSIONS
Certain employees of the Company are participants in Comcast's
postretirement benefit plans other than pensions. Effective January 1, 1993,
the Company adopted SFAS No. 106. This statement requires the Company to
accrue the estimated cost of retiree benefits earned during the years the
employee provides services. The Company previously expensed the cost of these
benefits as claims were incurred.
The Company's allocation from Comcast for the cumulative effect as of
January 1, 1993 of the adoption of SFAS No. 106 was to increase the Company's
amount due to Comcast and affiliate by approximately $675,000 and net loss by
approximately $405,000 (net of tax). The effect of SFAS No. 106 on loss before
the cumulative effect of accounting change was not significant to the
Company's 1993 results of operations.
6. SUBSEQUENT EVENT
On January 31, 1994, Comcast sold substantially all of the Company's assets
and liabilities to Muzak Limited Partnership. In connection with this sale,
the Company's $9.5 million long-term debt payable to an affiliate of Comcast
has been forgiven.
F-26
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFOR-
MATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROS-
PECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY THE ISSUERS OR ANY OF THE UNDERWRIT-
ERS. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF
AN OFFER TO BUY SENIOR NOTES BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER
OR SOLICITATION IS NOT AUTHORIZED, OR IN WHICH THE PERSON MAKING THE OFFER OR
SOLICITATION IS NOT QUALIFIED TO DO SO, OR TO ANY PERSON TO WHOM IT IS UNLAWFUL
TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR
ANY SALE MADE HEREUNDER SHALL CREATE ANY IMPLICATION THAT THE INFORMATION CON-
TAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
------------
TABLE OF CONTENTS
PAGE
Prospectus Summary....................................................... 3
Risk Factors............................................................. 9
The Issuers.............................................................. 14
Use of Proceeds.......................................................... 14
Capitalization........................................................... 15
Unaudited Pro Forma Financial Information................................ 16
Selected Financial Data.................................................. 18
Management's Discussion and Analysis of Financial Condition and Results
of Operations........................................................... 21
Business................................................................. 28
Management............................................................... 42
Certain Relationships and Related Transactions........................... 49
Security Ownership of Certain Beneficial Owners.......................... 50
Description of the Senior Notes.......................................... 51
Federal Income Tax Consequences.......................................... 73
Description of the Partnership Agreement................................. 75
Underwriting............................................................. 78
Legal Matters............................................................ 79
Experts.................................................................. 79
Available Information.................................................... 79
Index to Financial Statements............................................ F-1
------------
UNTIL , 1996 (90 DAYS AFTER THE DATE OF THIS PROSPECTUS), ALL DEALERS
EFFECTING TRANSACTIONS IN THE SENIOR NOTES, WHETHER OR NOT PARTICIPATING IN
THIS DISTRIBUTION, MAY BE REQUIRED TO DELIVER A PROSPECTUS. THIS IS IN ADDITION
TO THE OBLIGATION OF DEALERS TO DELIVER A PROSPECTUS WHEN ACTING AS UNDERWRIT-
ERS AND WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR SUBSCRIPTIONS.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
$85,000,000
LOGO
Muzak Limited Partnership
Muzak Capital Corporation
% SENIOR NOTES DUE 2003
----------------
PROSPECTUS
----------------
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
LAZARD FRERES & CO. LLC
, 1996
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the Registrants' estimated expenses in
connection with the issuance of the securities being registered, other than
underwriting discounts and commissions.
Securities and Exchange Commission Registration Fee........... $29,310
NASD Filing Fee............................................... 9,000
Printing and Engraving Expenses............................... *
Counsel Fees and Expenses..................................... *
Financial Advisory Fee........................................ *
Accountants' Fees and Expenses................................ *
Blue Sky Fees and Expenses.................................... *
Trustee Fees.................................................. *
Rating Agency Fees............................................ *
Miscellaneous................................................. *
-------
Total....................................................... $38,310
=======
- ---------------------
* To be filed by amendment
All such fees and expenses have been or will be paid by the Registrants.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 17-108 of the Delaware Revised Uniform Limited Partnership Act
empowers a limited partnership to indemnify and hold harmless any partner or
other person from and against any and all claims and demands whatsoever.
The Third Amended and Restated Agreement of Limited Partnership of Muzak
Limited Partnership (the "Company"), dated as of November 4, 1994, as amended
(the "Partnership Agreement"), provides that the general partners of the
Company, their respective affiliates and all officers, partners, directors,
employees, stockholders and agents of the general partners and their
respective affiliates and all officers, agents and employees of the Company
who are partners of the Company shall not be liable to the Company, to limited
partners or any other person holding an interest in the Company for any losses
sustained or liabilities incurred, including monetary damages, as a result of
any act or omission of the general partners or any such other person if the
conduct of the general partners or such other person did not constitute fraud,
willful misconduct or criminal conduct.
The Partnership Agreement also provides that the Company shall, to the
fullest extent permitted by law, indemnify and hold harmless the general
partners of the Company, their respective affiliates, and the officers,
directors, employees and agents of the general partners and their respective
affiliates, from and against any and all liabilities and expenses which arise
by reason of any such person's management of the affairs of the Company or of
a general partner, or any such person's status as a general partner of the
Company or affiliate thereof, as a partner, director, officer, employee,
stockholder or agent thereof, or as a partner, director, officer, agent or
employee of the Company or a person serving at the request of such persons,
provided, that such liability or expense is not the result of the fraud,
willful misconduct or criminal conduct of the indemnitee.
In the event of the filing of a public offering of securities of the Company
pursuant to a registration statement under the Securities Act, the Partnership
Agreement provides that the Company shall indemnify and hold harmless holders
of such securities participating in such registration, the directors,
officers, partners and controlling persons of such holders, and partners of
the Company for any liability which arises from such filing under the
Securities Act.
II-1
Section 145 of the General Corporation Law of the State of Delaware (the
"DGCL"), the law of the state in which Muzak Capital Corporation ("Capital
Corp.") is incorporated, empowers a corporation within certain limitations to
indemnify a director, officer, employee or agent of the corporation and
certain other persons serving at the request of the corporation in related
capacities against expenses, including attorneys' fees, judgments, fines and
amounts paid in settlement actually and reasonable incurred by him in
connection with any action, suit or proceeding to which he is or was
threatened to be a party (other than an action by or in the right of the
corporation) by reason of the fact that he is or was a director, officer,
employee or agent of the corporation or is or was serving at the request of
the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, as long as
he acted in good faith and in a manner which he reasonably believed to be in,
or not opposed to, the best interests of the corporation. With respect to any
criminal proceeding, he must have had no reasonable cause to believe his
conduct was unlawful. No such indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery of the State of Delaware or the Court in which such action or suit
was brought shall determine upon application that despite the adjudication of
liability but in view of all of the circumstances of the case such person is
fairly and reasonably entitled to indemnity for such expenses which the Court
of Chancery of the State of Delaware or such other court shall deem proper.
The Certificate of Incorporation of Capital Corp. provides that any person
may be indemnified against all expenses and liabilities to the fullest extent
permitted by the DGCL. The By-Laws of Capital Corp. allow Capital Corp. to
advance or reimburse litigation expenses upon submission by the director,
officer or employee of an undertaking to repay such advances or reimbursements
if it is ultimately determined that indemnification is not available to such
director, officer or employee and allow Capital Corp. to purchase and maintain
insurance for its directors and officers against liability asserted against
them in such capacity whether or not Capital Corp. would have the power to
indemnify them against such liability.
As permitted by Section 102 of the DGCL, the Certificate of Incorporation of
Capital Corp. provides that no director shall be liable to Capital Corp. or
its stockholders for monetary damages for breach of fiduciary duty as a
director other than (i) for breaches of the director's duty of loyalty to
Capital Corp. and its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) for the unlawful payment of dividends or unlawful stock purchases or
redemptions under Section 174 of the DGCL and (iv) for any transaction from
which the director derived an improper personal benefit.
The Underwriting Agreement being filed as Exhibit 1 hereto provides for
indemnification of directors and officers of the Registrants under certain
circumstances, including for liabilities under the Securities Act.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
In connection with the closing of the acquisition of the franchises of
Comcast Sound Communications, Inc. ("Comcast"), on January 31, 1994, the
Registrant issued a $5.0 million 7% preferred limited partnership interest of
the Partnership to Comcast. This transaction was exempt from registration
under Section 4(2) of the Securities Act as not involving a public offering.
No underwriter was involved in the transaction.
In November 1994, the Registrant amended its senior credit facility whereby
the Company's $10.0 million loan from Union Bank of Switzerland, New York
Branch, was repaid in full with proceeds from a subordinated financing
involving the sale of $7.0 million additional preferred partnership interests
to certain existing investors, identified below, with a pledge of the limited
partnership interests to the lenders under the senior credit facility and an
increase in the number of units subject to the option agreement of Barclays
Bank PLC, New York Branch. This transaction was exempt from registration under
Section 4(2) of the Securities Act as not involving a public offering. No
underwriter was involved in the transaction. The purchasers of the preferred
partnership interests were MLP Holdings L.P., MLP Acquisition L.P., UBS
Capital Corp., Barclays Bank PLC, John A. Hawkins, John R. Jester, James F.
Harrison, Thomas J. Gentry, Jack D. Craig, Richard Chaffe, Bruce B.
Funkhouser, L. Dale Stewart, Dino J. DeRose, J. Gary Henderson and Susan P.
Chetwin.
II-2
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
The following documents are filed as part of this Registration Statement:
(a) Exhibits
EXHIBIT
NO. DESCRIPTION
* 1 --Form of Underwriting Agreement
** 3.1 --Certificate of Incorporation of Capital Corp.
** 3.2 --By-Laws of Capital Corp.
* 3.3 --Certificate of Amendment to the Certificate of Incorporation of
Capital Corp.
* 3.4 --Third Amended and Restated Agreement of Limited Certificate of
Limited Partnership Partnership of Muzak Limited Partnership
(formerly, MLP Operating, L.P.), dated as of November 4, 1994, as
amended
* 4.1 --Form of Indenture, dated as of , 1996, among the Registrants
and , as trustee, in respect of the Registrants' % Senior Notes
due 2003
* 4.2 --Form of Senior Note (included in the form of Indenture to be filed
as Exhibit 4.2 to this Registration Statement)
* 5 --Opinion of Weil, Gotshal & Manges LLP
10.1 --Asset Purchase Agreement dated as of March 11, 1992, among Muzak
Limited Partnership, Field/Muzak Inc., The Field Corporation and MLP
Operating, L.P., as amended by Muzak Limited Partnership's letters
dated April 22, 1992, August 6, 1992 and August 20, 1992, Amendment
No. 1 dated as of June 26, 1992, Amendment No. 2, dated July 31,
1992 and Amendment No. 3, dated as of August 26, 1992
**10.2 --Asset Purchase Agreement and Contribution Agreement dated as of
November 24, 1993 among Comcast Corporation, et al. and Muzak
Limited Partnership
**10.3 --Amended and Restated Credit Agreement dated as of September 4,
1992, as amended as of October 22, 1992 and as of December 15, 1993;
and as amended and restated as of January 31, 1994 among Muzak
Limited Partnership, Union Bank of Switzerland, New York Branch,
Internationale Nederlanden (U.S.) Capital Corporation and the other
Lenders parties thereto and Union Bank of Switzerland, New York
Branch, as Agent; as amended by Waiver and Agreement dated as of
February 10, 1994; Waiver and Amendment No. 1 dated as of October
31, 1994; Waiver and Amendment No. 2 dated as of November 2, 1994;
Amendment No. 3 and Consent dated as of November 4, 1994; Amendment
No. 4 to Amended and Restated Credit Agreement dated as of November
17, 1994; Waiver dated January 10, 1995; Waiver dated as of July 31,
1995; Amendment No. 5 to Amended and Restated Credit Agreement dated
as of November 7, 1995; and Waiver dated as of April 1, 1996
**10.4 --Amended and Restated Term Notes issued as of September 4, 1992,
amended and restated as of January 31, 1994
**10.5 --Subordinated Loan Agreement dated as of September 4, 1992, as
amended, between Muzak Limited Partnership and Barclays Bank PLC,
New York Branch
**10.6 --Option Agreement dated as of September 4, 1992 between Muzak
Limited Partnership and Barclays Bank PLC, New York Branch
+10.7 --Uplink Facility Agreement dated as of December 28, 1995 between
EchoStar Satellite Corporation and Muzak Limited Partnership
+10.8 --DBS Programming Affiliation Agreement dated as of December 28, 1995
between EchoStar Satellite Corporation and Muzak Limited Partnership
**+10.9 --Video Programming Sales Agent Agreement dated as of December 28,
1995 between EchoStar Satellite Corporation and Muzak Limited
Partnership
+10.10 --Form of Muzak(R) Participating Affiliate Agreement
**10.11 --Third and Broad Office Lease dated June 8, 1994, between Martin
Selig and Muzak Limited Partnership
**10.12 --ASCAP License
**10.13 --Joint Venture Agreement dated August 2, 1995 between Muzak Limited
Partnership and Alcas Holdings B.V.
II-3
EXHIBIT
NO. DESCRIPTION
**10.14 --Muzak(R) Master Affiliate Agreement (Mexico) dated March 1, 1992
between Muzak Limited Partnership and Audioplan S.A.
**10.15 --Muzak(R) Master Affiliate Agreement (Canada) dated August 30, 1990
between Muzak Limited Partnership and Chum Limited, as amended--Form
of Underwriting Agreement
**10.16 --FCC Licenses
**10.17 --Form of License Agreement (New Franchise Agreement), as amended
**10.18 --Form of Music Services Agreement
**10.19 --Form of Multi-Territory Account Service Agreement
**10.20 --Form of Sales of Adjunct Services and Form of Muzak Adjunct
Services Subscriber Agreement
+10.21 --Transponder Lease Agreement dated December 9, 1993 between
Microspace Communications Corporation and Muzak Limited Partnership
+10.22 --Transmission Lease Agreement dated January 31, 1995 between
Microspace Communications Corporation and Muzak Limited Partnership
+10.23 --Transponder Lease Agreement dated January 31, 1995 between
Microspace Communications Corporation and Muzak Limited Partnership
+10.24 --Transponder Lease Agreement dated April 27, 1995 between Microspace
Communications Corporation and Muzak Limited Partnership
+10.25 --Transponder Lease Agreement dated July 5, 1995 between Microspace
Communications Corporation and Muzak Limited Partnership
+10.26 --Transponder Lease Agreement dated April 29, 1996 between Microspace
Communications Corporation and Muzak Limited Partnership
**+10.27 --Agreement to Provide Telecommunications Service dated August 8 and
9, 1995 between Keystone Communications Corporation and Muzak
Limited Partnership
+10.28 --Sales Agreement and License dated September 28, 1995 between
Mainstream Data, Inc. and Muzak Limited Partnership
**10.29 --Muzak Limited Partnership Tempo Savings and Retirement Plan
**10.30 --Muzak Limited Partnership Tempo Savings and Retirement Trust
**10.31 --Muzak Limited Partnership Management Incentive Plan
**10.32 --Muzak Limited Partnership Management Option Plan
**10.35 --Employment Agreement dated August 31, 1992 of John R. Jester
**10.36 --Employment Agreement dated August 31, 1992 of James F. Harrison
**10.37 --Employment Letter dated July 7, 1995 of Kirk A. Collamer
12 --Statement of Computations of Ratios of Earnings to Fixed Charges
21 --List of Subsidiaries of the Registrants
23.1 --Consent of Deloitte & Touche LLP and Report on Financial Statement
Schedule of Muzak Limited Partnership
23.2 --Consent of Deloitte & Touche LLP
23.3 --Consent of Deloitte & Touche LLP
*23.4 --Consent of Weil, Gotshal & Manges LLP (included in Exhibit 5)
**24 --Power of Attorney (included on the signature page to this
Registration Statement)
*25 --Statement of Eligibility and Qualification of , as Trustee, on
Form T-1 with respect to the % Senior Notes due 2003.
**27 --Financial Data Schedules
- ---------------------
* To be filed by amendment
** Previously filed
+ Confidential treatment requested
II-4
(b) Financial Statement Schedules
Schedule II--Valuation and Qualifying Accounts and Reserves
All other Schedules have been omitted because the information is not
applicable or is presented in the financial statements or the notes thereto.
ITEM 17. UNDERTAKINGS
The undersigned Registrants hereby undertake to file an application for the
purpose of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the Act.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "Securities Act") may be permitted to directors, officers and
controlling persons of the Registrants under the General Corporation Law of
the State of Delaware or under the Delaware Revised Uniform Limited
Partnership Act or pursuant to Capital Corp.'s Certificate of Incorporation or
By-Laws or the Company's Partnership Agreement, or otherwise, the Registrants
have been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrants in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrants will, unless
in the opinion of their counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
The undersigned Registrants hereby undertake that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Registrants pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrants
have duly caused this Registration Statement to be signed on their behalf by
the undersigned, thereunto duly authorized, in the City of Seattle, State of
Washington, on August 28, 1996.
MUZAK LIMITED PARTNERSHIP
(Registrant)
MLP Acquisition L.P.,
By _____________________________
Managing General Partner
Music Holdings Corp.,
By _____________________________
General Partner
/s/ John R. Jester
By _____________________________
John R. Jester
President
MUZAK CAPITAL CORPORATION
(Registrant)
/s/ John R. Jester
By __________________________________
John R. Jester
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURES TITLE DATE
---------- ----- ----
/s/ John R. Jester
_____________________________________ President and Chief August 28, 1996
JOHN R. JESTER Executive Officer
(Principal Executive
Officer) of the Company
and Capital Corp. and
Director of Music
Holdings and Capital
Corp.
/s/ Kirk A. Collamer
_____________________________________ Vice President and Chief August 28, 1996
KIRK A. COLLAMER Financial Officer
(Principal Financial
Officer and Principal
Accounting Officer) of
the Company and Capital
Corp.
*
_____________________________________ Director of Music August 28, 1996
BRUCE G. POLLACK Holdings and Capital
Corp.
*
_____________________________________ Director of Music August 28, 1996
PAUL F. BALSER Holdings and Capital
Corp.
II-6
*
_____________________________________ Director of Music August 28, 1996
MARK E. JENNINGS Holdings and Capital
Corp.
/s/ Kirk A. Collamer
By___________________________________
Kirk A. Collamer Attorney-in-fact
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints each of John R. Jester and Kirk A. Collamer, or
any of them, each acting alone, his true and lawful attorney-in-fact and agent
with full powers of substitution and resubstitution, for such person and in
his name, place and stead, in any and all capacities, in connection with the
Registrant's Registration Statement on Form S-1 under the Securities Act of
1933, including to sign the Registration Statement and any and all amendments
or supplements to the Registration Statement, including any and all stickers
and post-effective amendments to the Registration Statement and to sign any
and all additional registration statements relating to the same offering of
securities as those that are covered by the Registration Statement that are
filed pursuant to Rule 462(b) under the Securities Act of 1933, and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission and any applicable
securities exchange or securities self-regulatory body, granting unto said
attorneys-in-fact and agents, each acting alone, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises, as fully, to all intents and purposes, as he might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
/s/ William A. Boyd Director of Music August 28, 1996
Holdings and Capital
_________________________________ Corp.
WILLIAM A. BOYD
II-7
MUZAK LIMITED PARTNERSHIP
VALUATION AND QUALIFYING ACCOUNTS AND RESERVES
SCHEDULE II (REG 210.12-09)
ADDITIONS
--------------------- DEDUCTIONS,
BALANCE AT CHARGED TO CHARGED TO WRITE-OFFS, BALANCE
BEGINNING COSTS AND OTHER NET OF AT END OF
DESCRIPTION OF PERIOD EXPENSES ACCOUNTS RECOVERIES PERIOD
YEAR ENDED DECEMBER 31,
1995
Allowance for Doubtful
Accounts............... $736,000 $810,000 ($914,000) $632,000
======== ======== ========= ========
YEAR ENDED DECEMBER 31,
1994
Allowance for Doubtful
Accounts............... $558,000 $610,000 $359,000(a) ($791,000) $736,000
======== ======== ======== ========= ========
YEAR ENDED DECEMBER 31,
1993
Allowance for Doubtful
Accounts............... $648,000 $464,000 ($554,000) $558,000
======== ======== ========= ========
- ---------------------
(a) Comcast Sound Communications, Inc. acquisition as of January 31, 1994.
S-1
EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION
* 1 --Form of Underwriting Agreement
** 3.1 --Certificate of Incorporation of Capital Corp.
** 3.2 --By-Laws of Capital Corp.
* 3.3 --Certificate of Amendment to the Certificate of Incorporation of
Capital Corp.
* 3.4 --Third Amended Restated Agreement of Limited Partnership of Muzak
Limited Partnership (formerly, MLP Operating, L.P.), dated as of
November 4, 1994, as amended.
* 4.1 --Form of Indenture, dated as of , 1996, among the
Registrant and , as trustee, in respect of the Registrants'
% Senior Notes due 2003.
* 4.2 --Form of Senior Note (included in the form of Indenture to be
filed as Exhibit 4.2 to this Registration Statement)
* 5 --Opinion of Weil, Gotshal & Manges LLP
10.1 --Asset Purchase Agreement dated as of March 11, 1992, among
Muzak Limited Partnership, Field/Muzak Inc., The Field
Corporation and MLP Operating, L.P., as amended by Muzak
Limited Partnership's letters dated April 22, 1992, August 6,
1992 and August 20, 1992, Amendment No. 1 dated as of June 26,
1992, Amendment No. 2, dated July 31, 1992 and Amendment No.
3, dated as of August 26, 1992
**10.2 --Asset Purchase Agreement and Contribution Agreement dated as
of November 24, 1993 among Comcast Corporation, et al. and
Muzak Limited Partnership
**10.3 --Amended and Restated Credit Agreement dated as of September
4, 1992, as amended as of October 22, 1992 and as of December
15, 1993; and as amended and restated as of January 31, 1994
among Muzak Limited Partnership, Union Bank of Switzerland,
New York Branch, Internationale Nederlanden (U.S.) Capital
Corporation and the other Lenders parties thereto and Union
Bank of Switzerland, New York Branch, as Agent; as amended by
Waiver and Agreement dated as of February 10, 1994; Waiver and
Amendment No. 1 dated as of October 31, 1994; Waiver and
Amendment No. 2 dated as of November 2, 1994; Amendment No. 3
and Consent dated as of November 4, 1994; Amendment No. 4 to
Amended and Restated Credit Agreement dated as of November 17,
1994; Waiver dated January 10, 1995; Waiver dated as of July
31, 1995; Amendment No. 5 to Amended and Restated Credit
Agreement dated as of November 7, 1995; and Waiver dated as of
April 1, 1996
**10.4 --Amended and Restated Term Notes issued as of September 4,
1992, amended and restated as of January 31, 1994
**10.5 --Subordinated Loan Agreement dated as of September 4, 1992, as
amended, between Muzak Limited Partnership and Barclays Bank
PLC, New York Branch
**10.6 --Option Agreement dated as of September 4, 1992 between Muzak
Limited Partnership and Barclays Bank PLC, New York Branch
+10.7 --Uplink Facility Agreement dated as of December 28, 1995
between EchoStar Satellite Corporation and Muzak Limited
Partnership
+10.8 --DBS Programming Affiliation Agreement dated as of December
28, 1995 between EchoStar Satellite Corporation and Muzak
Limited Partnership
**+10.9 --Video Programming Sales Agent Agreement dated as of December
28, 1995 between EchoStar Satellite Corporation and Muzak
Limited Partnership
+10.10 --Form of Muzak(R) Participating Affiliate Agreement
**10.11 --Third and Broad Office Lease dated June 8, 1994, between
Martin Selig and Muzak Limited Partnership
**10.12 --ASCAP License
**10.13 --Joint Venture Agreement dated August 2, 1995 between Muzak
Limited Partnership and Alcas Holdings B.V.
**10.14 --Muzak(R) Master Affiliate Agreement (Mexico) dated March 1,
1992 between Muzak Limited Partnership and Audioplan S.A.
EXHIBIT
NO. DESCRIPTION
**10.15 --Muzak(R) Master Affiliate Agreement (Canada) dated August 30,
1990 between Muzak Limited Partnership and Chum Limited, as
amended--Form of Underwriting Agreement
**10.16 --FCC Licenses
**10.17 --Form of License Agreement (New Franchise Agreement), as
amended
**10.18 --Form of Music Services Agreement
**10.19 --Form of Multi-Territory Account Service Agreement
**10.20 --Form of Sales of Adjunct Services and Form of Muzak Adjunct
Services Subscriber Agreement
+10.21 --Transponder Lease Agreement dated December 9, 1993 between
Microspace Communications Corporation and Muzak Limited
Partnership
+10.22 --Transmission Lease Agreement dated January 31, 1995 between
Microspace Communications Corporation and Muzak Limited
Partnership
+10.23 --Transponder Lease Agreement dated January 31, 1995 between
Microspace Communications Corporation and Muzak Limited
Partnership
+10.24 --Transponder Lease Agreement dated April 27, 1995 between
Microspace Communications Corporation and Muzak Limited
Partnership
+10.25 --Transponder Lease Agreement dated July 5, 1995 between
Microspace Communications Corporation and Muzak Limited
Partnership
+10.26 --Transponder Lease Agreement dated April 29, 1996 between
Microspace Communications Corporation and Muzak Limited
Partnership
**+10.27 --Agreement to Provide Telecommunications Service dated August
8 and 9, 1995 between Keystone Communications Corporation and
Muzak Limited Partnership
+10.28 --Sales Agreement and License dated September 28, 1995 between
Mainstream Data, Inc. and Muzak Limited Partnership
**10.29 --Muzak Limited Partnership Tempo Savings and Retirement Plan
**10.30 --Muzak Limited Partnership Tempo Savings and Retirement Trust
**10.31 --Muzak Limited Partnership Management Incentive Plan
**10.32 --Muzak Limited Partnership Management Option Plan
**10.35 --Employment Agreement dated August 31, 1992 of John R. Jester
**10.36 --Employment Agreement dated August 31, 1992 of James F.
Harrison
**10.37 --Employment Letter dated July 7, 1995 of Kirk A. Collamer
12 --Statement of Computations of Ratios of Earnings to Fixed
Charges
21 --List of Subsidiaries of the Registrants
23.1 --Consent of Deloitte & Touche LLP and Report on Financial
Statement Schedule of Muzak Limited Partnership
23.2 --Consent of Deloitte & Touche LLP
23.3 --Consent of Deloitte & Touche LLP
*23.4 --Consent of Weil, Gotshal & Manges LLP (included in Exhibit 5)
**24 --Power of Attorney (included on the signature page to this
Registration Statement)
*25 --Statement of Eligibility and Qualification of , as
Trustee, on Form T-1 with respect to the % Senior Notes due
2003
**27 --Financial Data Schedules
- -------------------
* To be filed by amendment
** Previously filed
+ Confidential treatment requested