As filed with the Securities and Exchange Commission on May 14, 1999.
Registration No. 333-
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- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-4
REGISTRATION STATEMENT
Under
the Securities Act of 1933
---------------
MUZAK LLC
(Exact name of registrant as specified in its charter)
Delaware 7389 04-3433729
(State or other (Primary Standard (I.R.S. Employer
jurisdiction of Industrial Identification No.)
incorporation or Classification Code
organization) Number)
---------------
2901 Third Avenue, Suite 400
Seattle, WA 98121
Telephone: (206) 633-3000
(Address, including zip code, and telephone number, including area code, of
registrants' principal executive offices)
---------------
William A. Boyd
2901 Third Avenue, Suite 400
Seattle, WA 98121
Telephone: (206) 633-3000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------
Copy to:
Laurie T. Gunther
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
Telephone: (312) 861-2000
---------------
Approximate date of commencement of proposed sale of the securities to the
public: As soon as practicable after this Registration Statement becomes
effective.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance
with General Instruction G, 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, 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(d)
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. [_]
CALCULATION OF REGISTRATION FEE
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Proposed
Proposed Maximum
Amount Maximum Aggregate Amount of
Title of each Class of to be Offering Price Offering Registration
Securities to be Registered Registered Per Unit(1) Price(1) Fee
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Series B 9 7/8% Senior Subordinated Notes
due 2009.................................. $115,000,000 100% $115,000,000 $31,970.00
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Guarantees of Series B 9 7/8% Senior
Subordinated Notes due 2009 (2)........... -- -- -- (3)
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(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(f).
(2) The guarantors are affiliates of the registrants and have guaranteed the
Series B notes being registered.
(3) Pursuant to Rule 457(n), no separate fee is payable with respect to the
guarantees of the Series B notes being registered.
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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 that specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the 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 FINANCE CORP.
Delaware 7389 (applied for)
(State or other (Primary Standard (I.R.S. Employer
jurisdiction of Industrial Identification No.)
incorporation or Classification Code
organization) Number)
---------------
MUZAK CAPITAL CORPORATION
Delaware 7389 91-1722302
(State or other (Primary Standard (I.R.S. Employer
jurisdiction of Industrial Identification No.)
incorporation or Classification Code
organization) Number)
---------------
MLP ENVIRONMENTAL MUSIC, LLC
Washington 7389 91-1936098
(State or other (Primary Standard (I.R.S. Employer
jurisdiction of Industrial Identification No.)
incorporation or Classification Code
organization) Number)
---------------
BUSINESS SOUND, INC.
Ohio 7389 34-1659525
(State or other (Primary Standard (I.R.S. Employer
jurisdiction of Industrial Identification No.)
incorporation or Classification Code
organization) Number)
---------------
MUZAK HOLDINGS LLC
Delaware 7389 04-3433730
(State or other (Primary Standard (I.R.S. Employer
jurisdiction of Industrial Identification No.)
incorporation or Classification Code
organization) Number)
---------------
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information contained in this Prospectus is not complete and may be +
+changed. We may not sell these notes until the registration statement filed +
+with the Securities and Exchange Commission and any applicable State +
+securities commission becomes effective. This Prospectus is not an offer to +
+sell these notes, and it is not seeking an offer to buy these notes in any +
+State where the offer or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
PROSPECTUS
Exchange Offer for
$115,000,000
9 7/8% Senior Subordinated Notes due 2009
of Muzak LLC and
Muzak Finance Corp. Terms of the Exchange Offer
. We are offering to . The terms of the notes
exchange the notes that to be issued are
we sold in a private identical to the
offering for new outstanding notes,
registered exchange except for the transfer
notes. restrictions and
registration rights
relating to the
outstanding notes.
. The exchange offer
expires 5:00 p.m., New
York City time, ,
1999, unless extended.
. This exchange offer is
subject to customary
conditions, which we may
waive.
. You may withdraw your
tender of notes any time
before the expiration of
the exchange offer.
. Our parent company and
our present and future
domestic restricted
subsidiaries will
guarantee the notes with
unconditional guarantees
that will effectively
rank junior in right of
payment to their senior
debt.
. We will exchange all
outstanding notes that
you validly tender and
do not validly withdraw.
. We believe that the
exchange of notes will
not be a taxable
exchange for U.S.
federal income tax
purposes.
. There is no existing
market for the exchange
notes and we do not
intend to apply for
their listing on any
securities exchange.
. We will not receive any
proceeds from the
exchange offer.
We are not making an offer to exchange notes in any jurisdiction where the
offer is not permitted.
You should carefully consider the risks described beginning on page 11 before
tendering your notes.
Neither the Securities and Exchange Commission nor any State securities
commission has approved the notes to be distributed in the exchange offer, nor
have any of these organizations determined that this prospectus is truthful or
complete. Any representation to the contrary is a criminal offense.
Subject to Completion, dated , 1999
TABLE OF CONTENTS
Page
----
Prospectus Summary....................................................... 1
Risk Factors............................................................. 11
The Merger and the Acquisition Transactions.............................. 20
The Exchange Offer....................................................... 22
Use of Proceeds.......................................................... 29
Capitalization........................................................... 30
Unaudited Pro Forma Financial Data....................................... 31
Selected Historical Financial and Other Data............................. 36
Management's Discussion and Analysis of Financial Condition and Results
of Operations........................................................... 39
Business................................................................. 48
Management............................................................... 60
Certain Relationships and Related Transactions........................... 65
Security Ownership of Certain Beneficial Owners and Management........... 68
LLC Agreements........................................................... 70
Description of the Senior Credit Facility................................ 71
Description of the Notes................................................. 73
Exchange Offer; Registration Rights...................................... 115
Certain United States Federal Income Tax Considerations.................. 117
Plan of Distribution..................................................... 122
Legal Matters............................................................ 122
Experts.................................................................. 122
Additional Information................................................... 123
Index to Consolidated Financial Statements............................... F-1
i
PROSPECTUS SUMMARY
The following summary contains basic information about the exchange offer.
It likely does not contain all the information that is important to you. For a
more complete understanding of the exchange offer, we encourage you to read
this entire document and the documents we have referred you to.
The Company
Overview
Muzak is the world's leading provider of business music programming.
Together with our independent affiliates, we have nationwide coverage to serve
our clients. We offer three products. Our core product is Audio ArchitectureSM,
and we offer two complementary products, Audio Marketing and Video Imaging.
Audio Architecture is business music programming designed to enhance a
client's brand image. Our staff of in-house audio architects analyzes a variety
of music to develop and maintain 60 core music programs in 10 genres ranging
from current top-of-the-charts hits to jazz, classic rock, urban, country,
Latin, classical music and others. Our Audio Marketing product provides
telephone on-hold and in-store messages for more than 17,000 client locations.
We have also introduced Video Imaging, which we believe is the most widely used
in-store video product in the U.S.
We complete our clients' business music experience by designing and
installing sound and intercom systems, telephone on-hold and in-store messaging
and video systems at their locations and providing after-sale services and
enhancements to those systems, which we sell or lease to our customers.
Our Clients
We provide music to numerous types of businesses including specialty
retailers, restaurants, department stores, supermarkets, drug stores, financial
institutions, hotels, golf clubs, health and fitness centers, business offices,
manufacturing facilities, medical centers and HMOs, among others. Approximately
70% of our client base is comprised of local clients and the remaining 30% is
comprised of national and regional chains. Our national clients include The
Gap, Barnes & Noble, McDonald's, Staples, Kinko's, Sunglass Hut, Burger King,
Taco Bell, Nordstrom, Citibank, Travelers and Prudential, among many others.
Our regional clients include A&P, Kroger, Rite Aid, Kaiser Permanente,
PetsMart, Dillards and Wells Fargo, among many others.
Operating Strengths
We believe the following attributes have helped us become the world's
leading provider of business music programming:
. market leadership;
. nationwide installation and service presence;
. large and diverse client base;
. attractive economics;
. long-term contracts with recurring revenue and a low churn rate;
. the demand-based nature of capital expenditures;
. unique product offerings; and
. an experienced management team.
Business Strategy
Our strategy is to increase monthly recurring revenue and cash flow by
concentrating on our Audio Architecture, Audio Marketing and Video Imaging
products. Our business strategy focuses on:
. concentrating on our core competency of assisting clients in enhancing their
brand images through planned programs of music and video;
. increasing United States market penetration;
. capitalizing on changes in our sales and marketing strategy; and
. pursuing acquisitions.
1
The Merger and Other Acquisitions
ABRY Broadcast Partners III, L.P. formed Audio Communications Network, LLC
in 1998 to acquire Muzak independent affiliate territories. Before the merger
with Muzak Limited Partnership, Audio Communications Network, LLC acquired:
. eight independent affiliate territories from Audio Communications Network,
Inc. in 1998;
. Business Sound, Inc., the Muzak independent affiliate for the New Orleans,
Louisiana and Mobile, Alabama areas on January 15, 1999; and
. Electro Systems Corporation, the Muzak independent affiliate located in
Panama City, Florida on February 24, 1999.
In 1998, Muzak Limited Partnership acquired certain assets and liabilities
of Music Technologies, Inc., which was a national provider of business music.
On March 18, 1999, concurrently with our initial offering, Muzak Limited
Partnership merged with and into Audio Communications Network, LLC which
changed its name to Muzak LLC in the merger.
On the same day, we acquired the assets of Capstar Broadcasting
Corporation's Muzak independent affiliate territories located in Atlanta,
Albany and Macon, Georgia and Ft. Myers, Florida in exchange for voting
membership units of our parent company and cash.
On May 3, 1999, we acquired the Muzak independent affiliate territory
located in Omaha, Nebraska from Capstar.
Sponsors
As of May 3, 1999, as a result of investments made in connection with the
merger and other acquisitions and investments made by management after the
merger, the approximate beneficial ownership of our parent company's voting
membership units was as follows:
. two private equity funds of ABRY Partners, Inc., ABRY Broadcast Partners III,
L.P. and ABRY Broadcast Partners II, L.P., owned 73.2%;
. Capstar Broadcasting owned 22.9%; and
. our management owned 3.2%.
The Initial Offering
On March 18, 1999, we issued $115,000,000 aggregate principal amount of 9
7/8% Senior Subordinated Note due 2009 to CIBC Oppenheimer Corp. and Goldman,
Sachs & Co. in a private offering. These initial purchasers sold the notes to
institutional investors in transactions exempt from the registration
requirements of the Securities Act of 1933. The notes are guaranteed by Muzak
Capital Corporation, MLP Environmental Music, LLC and Business Sound, Inc.
which are subsidiaries of Muzak and by our parent company.
When we issued the existing notes, we entered into a Registration Rights
Agreement in which we agreed to file a registration statement by June 1, 1999
and to use our reasonable best efforts to have the registration statement
declared effective by August 15, 1999.
The Exchange Offer
We are offering to exchange $115,000,000 principal amount of 9 7/8% senior
subordinated notes which have been registered under the Securities Act of 1933
for the existing notes which we issued in March 1999.
The exchange notes are substantially identical to the existing notes, except
that some of the transfer restrictions and registration rights relating to the
existing notes do not apply to the exchange notes. You may tender your existing
notes by following the procedures described in this prospectus under the
heading "The Exchange Offer."
Expiration Date
The exchange offer will expire at 5:00 p.m., New York City time, on ,
1999, unless we extend it.
Withdrawal Rights
You may withdraw your tender of your notes at any time before 5:00 p.m., New
York City time, on the expiration date of the exchange offer.
2
Conditions of the Exchange Offer
The exchange offer is subject to customary conditions, which we may waive.
Please read "the Exchange Offer--Conditions" section of this prospectus for
more information regarding conditions of the exchange offer.
Procedures for Tendering Your Notes
If you are a holder of existing notes and wish to accept the exchange offer,
you must either:
. complete, sign and date the accompanying Letter of Transmittal, or a
facsimile of that letter and deliver the documentation, together with your
existing notes, to the exchange agent at the address shown under "The
Exchange Offer--Exchange Agent;" or
. arrange for The Depository Trust Company to transmit the required information
to the exchange agent for this exchange offer in connection with a book-entry
transfer.
By tendering your notes in this manner, you will be representing, among
other things, that:
. you are acquiring the exchange notes in the exchange offer in the ordinary
course of your business;
. you are not participating, do not intend to participate, and have no
arrangement or understanding with any person to participate in the
distribution of the exchange notes issued to you in the exchange offer; and
. you are not an "affiliate" of our company.
Tax Considerations
We do not believe that your exchange of existing notes for exchange notes in
the exchange offer will result in any gain or loss to you for federal income
tax purposes. See the "Certain United States Federal Income Tax Consequences"
section of this prospectus.
Consequences of Failure to Exchange
Existing notes that are not tendered, or that are tendered but not accepted,
will continue to be subject to the existing transfer restrictions on those
notes after the exchange offer. We will have no further obligation to register
the existing notes. If you do not participate in the exchange offer, the
liquidity of your notes could be adversely affected.
Procedures for Beneficial Owners
If you are the beneficial owner of existing notes registered in the name of
a broker, dealer or other nominee and you wish to tender your notes, you should
contact the person in whose name your notes are registered and promptly
instruct the person to tender on your behalf.
Guaranteed Delivery Procedures
If you wish to tender your existing notes and time will not permit your
required documents to reach the exchange agent by the expiration date, or the
procedure for book-entry transfer cannot be completed on time, you may tender
your notes according to the guaranteed delivery procedures. See "The Exchange
Offer--Guaranteed Delivery Procedures."
Acceptance of Initial Notes; Delivery of Exchange Notes
Subject to certain conditions, we will accept existing notes which are
properly tendered in the exchange offer and not withdrawn, before 5:00 p.m.,
New York City time, on the expiration date of the exchange offer. The exchange
notes will be delivered as promptly as practicable following the expiration
date.
Exchange Agent
State Street Bank and Trust Company is the exchange agent for the exchange
offer.
Summary of the Exchange Notes
Securities Offered
$115,000,000 principal amount of 9 7/8% senior subordinated notes due 2009.
The terms of the exchange notes and the existing notes are identical in all
material respects, except that certain transfer restrictions and registration
rights relating to the existing notes do not apply to the exchange notes. In
3
addition, the interest rate on the existing notes will increase if we do not
meet certain deadlines in connection with the exchange offer. See "The Exchange
Offer--Purpose and Effect of the Exchange Offer" section of this prospectus for
a discussion of the payment of increased interest.
Maturity Date
March 15, 2009.
Interest Rate
9.875% per year.
Interest Payment Dates
Each March 15 and September 15, beginning September 15, 1999.
Security and Ranking
The exchange notes will not be secured by any collateral.
The exchange notes will rank junior in right of payment to all of our senior
debt and will rank equal to our other senior subordinated debt. Therefore, if
we default, your right to payment under the exchange notes will be junior to
the rights of holders of our senior debt to collect money we owe them at the
time.
We estimate that, as of December 31, 1998, on a pro forma basis, we would
have had approximately $260.4 million of debt, of which approximately $145.4
million would have been senior debt.
Guarantees
Our parent company and our present and future domestic restricted
subsidiaries will guarantee the exchange notes with unconditional guarantees of
payment that will effectively rank junior in right of payment to their senior
debt, but will rank equal in right of payment to their other senior
subordinated debt.
Optional Redemption
Except in the case of certain equity offerings by us, we cannot choose to
redeem the exchange notes prior to March 15, 2004.
At any time from and after that date (which may be more than once), we can
choose to redeem some or all of the exchange notes at certain specified prices,
plus accrued interest.
Optional Redemption after Equity Offerings
At any time, which may be more than once, before March 15, 2002, we can
choose to buy back up to 35% of the outstanding exchange notes with money that
we raise in one or more equity offerings, as long as:
. we pay 109.875% of the face amount of the exchange notes bought, plus
interest;
. we buy the exchange notes back within 60 days of completing the equity
offering; and
. at least 65% of the exchange notes originally issued remain outstanding
afterwards.
Change of Control Offer
If we experience a change in control, we must give holders of the exchange
notes the opportunity to sell us their exchange notes at 101% of their face
amount, plus accrued interest.
We might not be able to pay you the required price for exchange notes you
present to us at the time of a change of control, because:
. we might not have enough funds at that time; or
. the terms of our senior debt may prevent us from paying.
Asset Sale Proceeds
We may have to use the cash proceeds from selling assets to offer to buy
back exchange notes at their face amount, plus accrued interest.
Indenture Provisions
The indenture governing the exchange notes will limit what we (and most or
all of our subsidiaries) may do. The provisions of the indenture will limit our
ability to:
. incur more debt;
. pay dividends and make distributions;
. issue stock of subsidiaries;
4
. make certain investments;
. repurchase stock;
. create liens;
. enter into transactions with affiliates;
. enter into sale-leaseback transactions;
. merge or consolidate; and
. transfer and sell assets.
These covenants are subject to a number of important exceptions.
For more complete information about the exchange notes, see the "Description
of the Notes" section of this prospectus.
Use of Proceeds
We will not receive any cash proceeds from the issuance of the exchange
notes.
Forward Looking Statements
Some of the information contained in this prospectus, including information
with respect to our plans and strategy for our business and its financing, are
forward-looking statements. For a discussion of important factors that could
cause actual results to differ materially from the forward-looking statements,
see "Risk Factors."
Principal Executive Office
Our headquarters are located at 2901 Third Avenue, Suite 400, Seattle,
Washington 98121. Our telephone number is 206-633-3000.
5
SUMMARY UNAUDITED PRO FORMA FINANCIAL DATA
The tables on pages 8 and 9 have been prepared by Audio Communications
Network, LLC and are based on the historical financial statements of Audio
Communications Network, LLC, Audio Communications Network, Inc., Muzak Limited
Partnership, the independent affiliate territories located in Atlanta, Albany
and Macon, Georgia and Ft. Myers, Florida contributed by Capstar Broadcasting,
Business Sound, Music Technologies, the independent affiliate located in Omaha
contributed by Capstar Broadcasting and Electro Systems and the assumptions and
adjustments described in the accompanying notes.
The summary unaudited pro forma financial data (a) give effect to the merger
and completed acquisitions as if they had occurred on January 1, 1998, (b) do
not purport to represent what Muzak's results of operations or financial
position actually would have been if the merger and completed acquisitions had
occurred as of the date indicated or what such results of operations or
financial position will be for future periods and (c) do not give effect to
certain non-recurring charges or cost savings expected to result from the
merger and completed acquisitions, although they are included in "Other
financial data" on the following page.
Management believes that the summary unaudited pro forma financial data is a
meaningful presentation because Audio Communications Network, LLC had only a
partial year of operations as of December 31, 1998, and because its ability to
satisfy debt and other obligations is dependent upon cash flow from the merger
and completed acquisitions. The following information is qualified by reference
to and should be read in conjunction with "Capitalization," "Unaudited Pro
Forma Financial Data," "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and the "Selected Historical Financial and
Other Data" and the audited financial statements and the notes thereto included
elsewhere in this prospectus.
Prior to March 18, 1999, the Capstar Broadcasting Muzak affiliates,
excluding the Omaha affiliate, operated as part of Capstar Broadcasting and the
Muzak affiliate in Omaha operated as part of Triathlon Broadcasting Company.
The tables following this page set forth selected historical carve-out
financial data for the Capstar Broadcasting Muzak affiliates and the Muzak
affiliate in Omaha. The historical carve-out financial data presented on the
following pages reflect periods during which neither the Capstar Broadcasting
Muzak affiliates nor the Muzak affiliate in Omaha operated as an independent
company and, accordingly, certain allocations were made in preparing such
carve-out financial data. Therefore, such carve-out financial data may not
reflect the results of operations or the financial condition which would have
resulted if the Capstar Broadcasting Muzak affiliates or the Muzak affiliate in
Omaha had operated as a separate independent company during such periods, and
are not necessarily indicative of the future results of operations or financial
position of the Capstar Broadcasting Muzak affiliates or the Muzak affiliate in
Omaha.
Prior to December 31, 1998, the assets and liabilities acquired from Music
Technologies operated as part of Music Technologies. The historical carve-out
financial data presented on the following pages reflect periods during which
these assets and liabilities did not operate as an independent company and,
accordingly, certain allocations were made in preparing such carve-out
financial data. Therefore, such carve-out financial data may not reflect the
results of operations or the financial condition which would have resulted if
these assets and liabilities had operated as a separate independent company and
are not necessarily indicative of the future results of operations or financial
position of these assets and liabilities.
As you review the information contained in the tables on pages 8 and 9, you
should note the following:
. Selling, general and administrative expenses. These expenses for Muzak
Limited Partnership include non-cash compensation expense incurred in
conjunction with stock options granted by Muzak Limited Partnership of
approximately $2,217,000 for the three months ended December 31, 1998 and
$750,000 for the year ended December 31, 1998.
. Interest expense. Our interest expense includes amortization of deferred
financing costs related to the merger and other completed acquisitions equal
to $1.2 million for the three months ended December 31, 1998 and $0.3 million
for the year ended December 31, 1998.
6
. Pro forma EBITDA. Represents net income before interest, income taxes,
depreciation and amortization, gain on sale of assets, other income/(expense)
and certain non-cash expenses. Pro forma EBITDA is not intended to be a
performance measure that should be regarded as an alternative to, or more
meaningful than, either operating income or net income as an indicator of
operating performance or cash flow as a measure of liquidity, as determined
in accordance with generally accepted accounting principles, known as GAAP.
However, management believes that pro forma EBITDA is a meaningful measure of
performance and that it is commonly used in similar industries to analyze and
compare companies on the basis of operating performance, leverage and
liquidity.
. Adjusted pro forma EBITDA. Adjusted pro forma EBITDA represents pro forma
EBITDA adjusted for non-recurring or eliminated costs and expenses. See "Pro
Forma Operating Results--Management's Discussion and Analysis" for detail on
the adjustments. Represents pro forma EBITDA adjusted for non-recurring or
eliminated costs and expenses. Adjusted pro forma EBITDA is not intended to
be a performance measure that should be regarded as an alternative to, or
more meaningful than, either operating income or net income as an indicator
of operating performance or cash flow as a measure of liquidity, as
determined in accordance with GAAP. However, management believes that
Adjusted pro forma EBITDA is a meaningful measure of performance but
understands that it is not necessarily comparable to similarly titled amounts
of other companies.
. Adjusted pro forma EBITDA margin. Represents Adjusted pro forma EBITDA as a
percentage of revenues.
. Ratio of total debt to Adjusted pro forma EBITDA. Represents total pro forma
debt outstanding (excluding $2.4 million of debt described in note 7 below)
(as of December 31, 1998) divided by an amount equal to Adjusted pro forma
EBITDA (for the three months ended December 31, 1998) multiplied by four and
reflects the calculation under the terms of the indenture governing the
exchange notes in determining the Company's ability to incur additional debt.
. Total debt. Excludes $2.4 million of debt of Electro Systems that is non-
recourse to the Company. Electro Systems will be an unrestricted subsidiary
under the indenture governing the exchange notes.
7
SUMMARY UNAUDITED PRO FORMA FINANCIAL DATA AS OF
AND FOR THE YEAR AND THREE MONTHS ENDED DECEMBER 31, 1998
(dollars in thousands)
Unaudited Pro Forma
--------------------------
For the year For the three
ended months ended
December 31, December 31,
1998 1998
------------ -------------
Statement of operations data
Revenues............................................ $138,584 $ 36,334
Cost of sales....................................... 58,078 14,726
-------- --------
Gross profit...................................... 80,506 21,608
Selling, general and administrative................. 48,289 13,242
Depreciation and amortization....................... 34,732 8,683
-------- --------
Operating (loss) income............................. (2,515) (317)
Interest expense, net............................... (25,444) (6,361)
Other income (expense), net......................... 48 (73)
-------- --------
Net loss............................................ $(27,911) $ (6,751)
======== ========
Other financial data
Pro forma EBITDA.................................... $ 34,434 $ 9,116
Adjusted pro forma EBITDA........................... 40,086 10,385
Adjusted pro forma EBITDA margin.................... 28.9% 28.6%
Ratio of total debt to Adjusted pro forma EBITDA.... 6.2x
Balance sheet data (end of period)
Total assets........................................ $400,826
Total debt.......................................... 258,050
Member's interest................................... 105,376
see notes on the following page
8
SUMMARY UNAUDITED PRO FORMA STATEMENTS OF OPERATIONS DATA
FOR THE YEAR AND THREE MONTHS ENDED DECEMBER 31, 1998
(dollars in thousands)
Period from Period from
October 7, January 1,
1998 1998
through through Year ended
December 31, October 6, December 31,
1998 1998 Year ended December 31, 1998 1998
------------ ----------- ------------------------------------- ------------
Old Old Capstar Other Pro Forma Unaudited
ACN (1) ACN (1) Muzak Affiliates Acquisitions (2) Adjustments (3) Pro Forma
------------ ----------- -------- ---------- ---------------- --------------- ------------
Revenues................ $ 5,914 $18,917 $ 99,748 $9,845 $7,669 $ (3,509) $138,584
Cost of sales........... 2,556 8,206 42,509 3,970 4,384 (3,547) 58,078
------- ------- -------- ------ ------ -------- --------
Gross profit........... 3,358 10,711 57,239 5,875 3,285 38 80,506
Selling, general and
administrative......... 1,794 7,245 36,536 3,349 2,711 (3,346) 48,289
Depreciation and
amortization........... 1,683 4,372 21,563 1,931 713 4,470 34,732
------- ------- -------- ------ ------ -------- --------
Operating (loss)
income................. (119) (906) (860) 595 (139) (1,086) (2,515)
Interest expense, net... (1,033) (2,520) (10,992) (30) (397) (10,472) (25,444)
Other income (expense),
net.................... 5 (2) (137) 1 17 164 48
------- ------- -------- ------ ------ -------- --------
Net (loss) income....... $(1,147) $(3,428) $(11,989) $ 566 $ (519) $(11,394) $(27,911)
======= ======= ======== ====== ====== ======== ========
----------------------------------------------------------------------------------------------------------------
Period from Period from
October 7, October 1,
1998 1998 Three months
through through ended
December 31, October 6, December 31,
1998 1998 Three months ended December 31, 1998 1998
------------ ----------- ------------------------------------- ------------
Old Old Capstar Other Pro Forma Unaudited
ACN (1) ACN (1) Muzak Affiliates Acquisitions (2) Adjustments (3) Pro Forma
------------ ----------- -------- ---------- ---------------- --------------- ------------
Revenues................ $ 5,914 $ 325 $ 27,082 $2,528 $1,773 $ (1,288) $ 36,334
Cost of sales........... 2,556 88 11,119 1,057 918 (1,012) 14,726
------- ------- -------- ------ ------ -------- --------
Gross profit........... 3,358 237 15,963 1,471 855 (276) 21,608
Selling, general and
administrative......... 1,794 120 11,153 911 714 (1,450) 13,242
Depreciation and
amortization........... 1,683 94 6,484 477 156 (211) 8,683
------- ------- -------- ------ ------ -------- --------
Operating (loss)
income................. (119) 23 (1,674) 83 (15) 1,385 (317)
Interest expense, net... (1,033) (54) (3,050) (8) (85) (2,131) (6,361)
Other income (expense),
net.................... 5 -- (241) (2) 4 161 (73)
------- ------- -------- ------ ------ -------- --------
Net (loss) income....... $(1,147) $ (31) $ (4,965) $ 73 $ (96) $ (585) $ (6,751)
======= ======= ======== ====== ====== ======== ========
see notes on the following page
9
NOTES TO THE SUMMARY UNAUDITED PRO FORMA STATEMENTS OF OPERATIONS DATA
FOR THE YEAR AND THREE MONTHS ENDED DECEMBER 31, 1998
(1) Audio Communications Network, LLC acquired the Old ACN Assets on October
7, 1998. Prior to the acquisition, Audio Communications Network, LLC had
no operations.
(2) Includes the unaudited historical results of operations of Business Sound,
the assets and liabilities of Music Technologies, the Muzak affiliate in
Omaha and Electro Systems.
(3) The pro forma adjustments represent those adjustments necessary to present
the operating results of Audio Communications Network, LLC as if the
merger and the completed acquisitions occurred on January 1, 1998. These
adjustments include the following:
. reflecting the unaudited historical results of operations for the
acquisitions consummated by Muzak Limited Partnership during the year
ended December 31, 1998, as if these acquisitions occurred on January 1,
1998,
. eliminating the unaudited historical results of operations for the year
ended December 31, 1998 of EAIC Corp., a formerly wholly owned
subsidiary of Muzak Limited Partnership. The spin-off of EAIC Corp. was
completed prior to the consummation of the merger,
. conforming the accounting policy for sales commissions of Muzak Limited
Partnership with that of Audio Communications Network, LLC,
. eliminating intercompany revenues and cost of sales (primarily for
royalty fees and equipment sales) for transactions between (i) Muzak
Limited Partnership and (ii) Audio Communications Network, LLC and the
entities acquired by Audio Communications Network, LLC,
. eliminating certain costs not assumed in the acquisition from Music
Technologies and seller transaction costs related to the sales of Audio
Communications Network, Inc., and Muzak Limited Partnership,
. adjusting depreciation and amortization expense due to the excess of
fair value over historical cost generated from the merger and the
completed acquisitions, and
. increasing interest expense as a result of debt incurred in connection
with the merger and the completed acquisitions.
10
RISK FACTORS
You should carefully consider the following factors when you evaluate
tendering your notes in the exchange offer.
Holders of existing notes who fail to exchange their notes may be unable to
resell their notes.
We did not register the existing notes under the federal or any state
securities laws, nor do we intend to register them following the exchange
offer. As a result, the exchange notes may only be transferred in limited
circumstances under the securities laws. If the holders of existing notes do
not exchange their notes in the exchange offer, they lose their right to have
their notes registered under the federal securities laws, subject to certain
limitations. As a result, a holder of existing notes after the exchange offer
may be unable to sell their notes.
Your notes will not be accepted for exchange if you fair to follow the exchange
offer procedures.
The exchange notes will be issued to you in exchange for your notes only
after timely receipt by the exchange agent of:
. your notes; and
. a properly completed and executed Letter of Transmittal and all other
required documentation; or
. a book-entry delivery by transmittal of an agent's message through
The Depository Trust Company.
If you want to tender your notes in exchange for exchange notes, you should
allow sufficient time to ensure timely delivery.
None of the exchange agent nor any of the issuers or any of their affiliates
are under any duty to give you notification of defects or irregularities with
respect to tenders of existing notes for exchange. Existing notes that are not
tendered or are tendered but not accepted will, following the exchange offer,
continue to be subject to their existing transfer restrictions. In addition, if
you tender your notes in the exchange offer to participate in a distribution of
the exchange notes, you will be required to comply with the registration and
prospectus delivery requirements of the federal securities laws in connection
with any resale transaction. For additional information, please refer to "The
Exchange Offer" and "Plan of Distribution" sections of this prospectus.
Our substantial debt could make us unable to make payments on the notes and
could adversely affect our financial health.
We have now and, after the offering, will continue to have a significant
amount of debt. The following chart shows certain important credit statistics
and is presented assuming we had completed the merger and other acquisitions as
of December 31, 1998 and applied the proceeds as intended:
At December 31, 1998
Pro Forma
--------------------
(in millions)
Total debt................................................. $260.4
Member's interest.......................................... 105.4
Debt to equity ratio....................................... 2.5x
Our substantial debt could have important consequences to you. For example,
it could:
. make it more difficult for us to satisfy our obligations with respect
to the exchange notes;
. limit our ability to fund future working capital, capital
expenditures, acquisitions and other general corporate purposes;
11
. require us to dedicate a substantial portion of our cash flow from
operations to payments on our debt, thereby reducing the availability
of our cash flow to fund working capital, capital expenditures,
acquisitions and other general corporate purposes;
. limit our flexibility in planning for, or reacting to, changes in our
business and the industry in which we operate;
. place us at a competitive disadvantage compared to our competitors
that have less debt;
. increase our vulnerability to general adverse economic and industry
conditions; and
. limit, along with the financial and other restrictive covenants in
our debt, among other things, our ability to borrow additional funds.
Failing to comply with those covenants could result in an event of
default which, if not cured or waived, could have a material adverse
effect on us.
A portion of our debt, including debt to be incurred under our credit
facility, bears interest at variable rates. An increase in the interest rates
on our debt will reduce the funds available to repay the exchange notes and our
other debt and for operations and future business opportunities and will
intensify the consequences of our leveraged capital structure.
See "Capitalization," "Management's Discussion and Analysis of Financial
Condition and Results of Operations --Pro Forma Liquidity and Capital
Resources," "Description of the Notes -- Change of Control Offer" and
"Description of the Senior Credit Facility."
Our ability to incur additional debt in the future could increase the risks
facing the holders of exchange notes.
We may be able to incur substantial additional debt in the future. The terms
of the indenture do not fully prohibit us or our subsidiaries from doing so.
Our credit facility would permit additional borrowing of approximately $31.6
million after completion of the offering and all of those borrowings would be
senior to the exchange notes. In addition, prior to December 31, 2000, we may
request lenders to commit to additional loans of up to $50 million under a
second revolving credit facility. The indenture also permits us to incur
certain additional debt which may be senior and which may be secured debt. The
addition of further debt to our current debt levels could intensify the
leverage related risks that we now face. See "Capitalization," "Selected
Historical Financial and Other Data," "Description of the Notes --Change of
Control Offer" and "Description of the Senior Credit Facility."
We may not have sufficient earnings to make payments on your notes in the
future.
Our ability to make payments on and to refinance our debt, including the
exchange notes, and to fund planned capital expenditures will depend on our
ability to generate cash in the future. This, to a certain extent, is subject
to general economic, financial, competitive, legislative, regulatory and other
factors that are beyond our control.
Based on our current level of operations and anticipated operating
improvements, we believe our cash flow from operations, available cash and
available borrowings under our credit facility will be adequate to meet our
future liquidity needs for at least the next few years.
We cannot assure you, however, that our business will generate sufficient
cash flow from operations, that currently anticipated operating improvements
will be realized on schedule or that future borrowings will be available to us
under our credit facility in an amount sufficient to enable us to pay our debt,
including the exchange notes, or to fund our other liquidity needs. If our
future cash flow from operations and other capital resources are insufficient
to pay our obligations as they mature or to fund our liquidity needs, we may be
forced to reduce or delay our business activities and capital expenditures,
sell assets, obtain additional equity capital or restructure or refinance all
or a portion of our debt, including the exchange notes on or before maturity.
We cannot assure you that we can accomplish any of these alternatives on a
timely basis or on satisfactory terms, if at all. In addition, the terms of
certain existing indebtedness such as the exchange notes and our credit
facility and other future indebtedness may limit our ability to pursue any of
these alternatives.
12
Our net losses from operations and working capital deficit may continue.
Muzak Limited Partnership had net losses attributable to general and limited
partners of approximately $11.7 million, $13.8 million and $12.6 million for
the years ended December 31, 1996, 1997 and 1998, respectively. Audio
Communications Network, Inc. had net losses of approximately $0.5 million and
$1.4 million for the years ended December 31, 1996 and 1997, respectively, and
had net losses from operations of approximately $3.4 million for the period of
January 1, 1998 through October 6, 1998. Audio Communications Network, LLC had
net losses of $1.1 million for the period of October 7, 1998 through December
31, 1998. During these periods, Muzak Limited Partnership and Audio
Communications Network, Inc. were highly leveraged. Muzak Limited Partnership's
losses resulted primarily from interest payments on acquisition financing,
accelerated amortization of income-producing contracts acquired through
acquisitions, other related acquisition and financing costs and depreciation
and amortization. In addition to the reasons stated above, Muzak Limited
Partnership expects that it will continue to incur net losses in the future, in
part because of non-cash compensation charges relating to the vesting of
employee stock options in connection with merger and other acquisitions and
fees and expenses incurred in connection with merger and other acquisitions.
Audio Communications Network, Inc.'s losses resulted primarily from interest
payments on acquisition financing and depreciation and amortization. We cannot
assure you that we will generate net profits from operations. Muzak Limited
Partnership had a working capital deficit of $7.1 million at December 31, 1998.
Audio Communications Network, Inc. had a working capital deficit of $1.7
million as of October 6, 1998. Audio Communications Network, LLC had a working
capital deficit of $41.7 million as of December 31, 1998 (which includes the
ABRY Subordinated Note of $40.8 million plus interest, which was repaid upon
the consummation of the merger). We cannot assure you that we will have
positive working capital in the future. See "Management's Discussion and
Analysis of Financial Condition and Results of Operations --General."
You may lose part of your investment because the notes are subordinated to
other debt.
The exchange notes, the subsidiary guarantees and our parent company's
guarantee will each rank junior in right of payment to all of the existing debt
(other than trade payables) of Muzak, the subsidiary guarantors and our parent
company and all of their future borrowings (other than trade payables), except
any future debt that provides that it ranks equal with or subordinated in right
of payment to the Notes, the subsidiary guarantees and our parent company's
guarantee. As a result, upon any distribution to creditors in a bankruptcy,
liquidation or reorganization or similar proceeding, the holders of senior debt
of Muzak or any of the guarantors will be entitled to be paid in full before we
make any payment on the exchange notes. We cannot assure you that sufficient
assets will remain to make any payments on the exchange notes. In addition,
certain events of default under senior debt would prohibit us and the
guarantors from making any payments on the exchange notes. Assuming we had
completed all of our completed acquisitions on December 31, 1998, we would have
had approximately $145.4 million of debt that was senior to the exchange notes
and the subsidiary guarantees, and approximately $31.6 million of additional
borrowing available to us under our credit facility, and our parent company
would have had approximately $40.0 million of debt that was senior to its
guarantee of the exchange notes. In addition, prior to December 31, 2000, we
may request lenders to commit to additional loans of up to $50 million under a
second revolving credit facility. We may also incur additional senior debt in
the future, consistent with the terms of the indenture and our other debt
agreements.
The terms of our debt impose operational and financial restrictions on our
company.
Our credit facility and the indenture will contain various provisions that
limit our management's discretion by restricting our ability to:
.incur additional debt;
.pay dividends and make other distributions;
.make investments and other restricted payments;
.enter into sale and leaseback transactions;
13
.incur liens;
.engage in mergers, acquisitions and asset sales;
.enter into transactions with affiliates;
.make capital expenditures;
.amend or otherwise alter debt and other material agreements; and
.alter the business we conduct.
The credit facility also requires us to meet certain financial ratios. If we
do not comply with the restrictions in our credit facility, the indenture, or
any other financing agreement, a default may occur. This default may allow our
creditors to accelerate the related debt as well as any other debt to which a
cross- acceleration or cross-default provision applies. In addition, the
lenders may be able to terminate any commitments they had made to provide us
with further funds. See "Description of the Senior Credit Facility."
Your investment in the notes is not guaranteed by all of our subsidiaries.
The indenture does not require our future foreign subsidiaries and certain
domestic subsidiaries which we may designate to guarantee the exchange notes.
In the event of a bankruptcy, liquidation or reorganization of any of these
future non-guarantor subsidiaries, holders of their debt and their trade
payables will generally be entitled to payment of their claims from the assets
of those subsidiaries before any assets are made available for distribution to
us.
Our ability to purchase your notes on a change of control may be limited.
If we undergo a change of control, as defined later in this prospectus under
the heading "Description of the Notes -- Change of Control Offer", we may need
to refinance large amounts of our debt, including the exchange notes and our
credit facility. If a change of control occurs, we must offer to buy back your
exchange notes for a price equal to 101% of the principal amount, plus interest
that has accrued but has not been paid as of the repurchase date. We cannot
assure you that we will have sufficient funds available to make the required
repurchases of the exchange notes in that event, or that we will have
sufficient funds to pay our other debts. In addition, our credit facility will
prohibit us from repurchasing the exchange notes after a change of control
until we have repaid in full our debt under the credit facility. If we fail to
repurchase the exchange notes upon a change of control, we will be in default
under both the exchange notes and our credit facility. Any future debt that we
incur may also contain restrictions on repurchases in the event of a change of
control or similar event. These repurchase requirements may delay or make it
harder for others to obtain control of the Company. See "Description of the
Notes -- Change of Control Offer" and "Description of the Senior Credit
Facility."
We are dependent on satellite delivery capabilities of third parties.
We transmit our 60 core music programs via direct broadcast satellite to
clients from transponders located primarily on satellites from two companies.
There are a limited number of satellites with orbital positions suitable for
direct broadcast satellite transmission of our 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. We lease transponder capacity primarily from
Microspace Communications Corporation and EchoStar Satellite Corporation. See
"Business--Distribution Systems--Microspace and EchoStar Agreements."
Prior to May 1998, we transmitted music to many clients from transponders
located on PanAmSat's Galaxy IV satellite. On May 19, 1998, all services on
Galaxy IV were permanently lost when the satellite ceased communicating to
uplink stations throughout the United States. As a result of the Galaxy IV
failure, on May 20, 1998, we began transmitting from transponders located on
the Galaxy IIIR satellite, which required repointing of satellite dishes at
approximately 100,000 client locations. We estimate that our costs for
satellite dish repointing were approximately $2.1 million. We cannot assure you
that any such event will not occur in
14
the future, or that the satellites we use will remain in operation through
their projected useful lives. If such an event were to occur or if our current
transponder lessors were unable to provide us with transponder services, we
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 our current satellites or may require a change in the frequency currently
used to transmit and receive our signal. If we are required to enter into new
transponder lease agreements, we cannot assure you that we will be able to do
so on terms as favorable as those in our current agreements. If we were
required to use alternate satellite facilities, we would incur additional
expenditures. Our ability to serve our client base could degrade. Either of
these events could have a material adverse effect on our financial condition
and results of operations. In July 1998, we purchased insurance that provides
up to $5.0 million of coverage for increased costs and lost revenue in the
event of satellite failure. Such coverage does not cover year 2000 related
satellite failures. See the risk factor relating to the Year 2000 issue and
"Business -- Distribution Systems."
We may be unable to complete acquisitions or integrate acquired businesses.
As part of our long-term strategy, we will seek to acquire providers of
music, audio marketing and video services to businesses at attractive prices.
We cannot assure you that we will have sufficient capital resources to continue
to pursue acquisitions. We cannot assure you that we will successfully
identify, complete or integrate additional acquisitions, or that the acquired
businesses will perform as expected or contribute significant revenues or
profits to us. We may face increased competition for acquisition opportunities,
which may inhibit our ability to consummate suitable acquisitions on terms
favorable to us.
Our results of operations may be adversely affected by the terms of our license
agreement with EAIC Corp.
In connection with our sale of certain digitized music samples to EAIC
Corp., a Delaware corporation, we entered into a license agreement with EAIC in
July, 1998. Under the terms of this license agreement, for a period of 20
years, we cannot own, manage, operate or control any business that provides:
(a) music or certain other data to music retailers or on the Internet to
generate sales of music; (b) music for use on customers' web sites; or (c)
music for the production of individually customized CDs, DVDs or any similar
digital based media by consumers. We cannot assure you that these restrictions
will not have a material adverse effect on our financial condition and results
of operations.
We may be subject to claims relating to assets that we transferred to EAIC.
In 1996, we began providing digitized music samples and images used by
retailers to sell music. We sold our library of these digitized music samples
and images to EAIC in 1998. Certain aspects of copyright law with respect to
use of such materials are not yet settled, industry customs dealing with such
materials have not fully emerged and it is unclear what, if any, consents or
rights companies must secure with music licensors, including the American
Society of Composers, Authors and Publishers, known as ASCAP, and Broadcast
Music, Inc., known as BMI, music publishers and music record companies, to
create and use such materials on the Internet or otherwise. We cannot assure
you that we will not be subject to claims by music licensors or others alleging
breach of contract or copyright infringement with respect to the use of such
materials.
We may not be able to achieve all our anticipated benefits from our amended
affiliate agreement.
We recently introduced an amendment to our agreement with our independent
affiliates. The amendment provides us and our independent affiliates with more
attractive financial terms for each new national client, better coordination
for the installation and service of national account locations and among other
things, the inclusion of the Audio Marketing and Video Imaging products in the
product exclusivity provisions. See "Business -- Nationwide Affiliate
Network -- Independent Affiliate Agreement Terms." The amendment must be
executed by each independent affiliate in order to be effective with respect to
such independent affiliate. If all of our independent affiliates do not execute
the amendment, we will not be able to fully realize the benefits of the
amendment.
15
The controlling equityholder of our company may have interests that conflict
with your interests.
The ABRY Funds, as beneficial owners, control 73.2% of the membership
interests of Muzak Holdings, and Holdings is the sole member of Muzak. The ABRY
Funds can therefore direct Muzak Holdings' policies and those of Muzak, and can
select a majority of our managers and directors. The interests of the ABRY
Funds and their affiliates and the members of our management may conflict with
the interests of the noteholders.
The ABRY Funds and their affiliates make controlling investments in media
businesses and businesses that support or enhance media properties. The ABRY
Funds, their affiliates and members of management, may at any time own
controlling or non-controlling interests in media and related businesses other
than through Muzak, some of which may compete with Muzak. The ABRY Funds and
their affiliates other than Muzak and members of Muzak's management may
identify, pursue and consummate acquisitions of media businesses that would be
complementary to the business of Muzak. If this were to occur, such acquisition
opportunities would not be available to Muzak.
Certain changes in the ABRY Funds' beneficial ownership interest in us would
constitute a change of control under the indenture and a "change in control"
under our credit facility and under our other agreements and obligations. Any
change of control could result in an event of default or otherwise require us
to make an immediate payment under such agreements and obligations.
You should not expect the co-issuer of the exchange notes to participate in
making payments on the notes.
Muzak Finance Corp. is a wholly-owned subsidiary of Muzak that was
incorporated for the sole purpose of serving as a co-issuer of the exchange
notes in order to accommodate the issuance of the exchange notes by Muzak.
Muzak Finance will not have any operations or assets of any kind and will not
have any revenues (other than as may be incidental to its activities as co-
issuer of the exchange notes). You should not expect Muzak Finance to
participate in servicing the interest or principal obligations of additional
interest, if any, on the exchange notes. See "Description of the Notes."
We may be unable to successfully compete in our industry or keep pace with
technological change.
We compete with many local, regional, national and international providers
of business music and business services. Some of our competitors may have
substantially greater financial, technical, personnel and other resources than
we do. There are numerous methods by which our existing and future competitors
can deliver programming, including various forms of direct broadcast satellite
services, wireless cable, fiber optic cable, digital compression over existing
telephone lines, advanced television broadcast channels, Digital Audio Radio
Service and the Internet.
We cannot assure you that we will be able to (a) compete successfully with
our existing or potential new competitors, (b) maintain or increase our current
market share, (c) use, or compete effectively with competitors that adopt, new
delivery methods and technologies, or (d) keep pace with discoveries or
improvements in the communications, media and entertainment industries. We also
cannot assure you that the technology we currently rely upon will not become
obsolete. See "Business -- Competition."
Our business depends on music rights licensed from third parties.
We 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 ASCAP, BMI and the Society of European
Stage Authors and Composers, known as SESAC.
The industry-wide agreement between business music providers and BMI expired
in December 1993. Since then, we have been operating under an interim agreement
pursuant to which we have continued to pay royalties at the 1993 rates and
business music providers and BMI have been negotiating the terms of a new
agreement. If agreement is not reached, BMI may seek to have rates determined
through a rate court
16
proceeding. The industry-wide agreement between business music providers and
ASCAP expires in May, 1999. We cannot predict what the terms of the new BMI or
ASCAP agreements with business music providers will be or when agreements will
be reached, although BMI has indicated that it is seeking royalty rate
increases and a retroactive royalty rate increase. In 1998, Old Muzak paid
approximately $3.5 million in royalties to ASCAP, $1.3 million in royalties to
BMI and $13,000 in royalties to SESAC. Increases in the fees we must pay under
these agreements could adversely affect our operating margin, and, therefore,
our results of operations. See "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and "Business -- Music
Licenses."
Our business results could be adversely affected if we lose key personnel.
Our success depends in large part upon the abilities and continued service
of our senior management personnel. The loss of certain members of senior
management could seriously affect our business prospects. We do not maintain
key man life insurance on any of our senior management personnel. See
"Management."
Changes in the regulation of the transmission of our products could adversely
affect our business.
We are subject to governmental regulation by the United States and by the
governments of other countries in which we provide services. Our business
prospects could be adversely affected by the adoption of new laws, policies or
regulations that change the present regulatory environment. We currently
provide music services in a few areas in the United States through 928 to 960
megahertz radio frequencies licensed by the FCC. Additionally, the FCC licenses
the radio frequencies used by satellites on which we transmit our direct
broadcast satellite services in the United States. If the FCC or any other
person revokes or refuses to extend authorizations for any of these satellites,
we would be required to seek alternate satellite facilities. Laws, regulations
and policies, or changes therein, in other countries could adversely affect our
existing services or restrict the growth of our business in these countries.
The notes could be voided or subordinated to our other debt if the issuance of
the notes constituted a fraudulent conveyance.
If a bankruptcy case or lawsuit is initiated by unpaid creditors of either
Issuer, the debt represented by the exchange notes and the subsidiary
guarantees may be reviewed under the federal bankruptcy laws and comparable
provisions of state fraudulent transfer laws. Under these laws, the debt could
be voided, or claims in respect of the exchange notes and the subsidiary
guarantees could be subordinated to all other debts of either Issuer or the
guarantors if, among other things, the court found that, at the time we
incurred the debt represented by the exchange notes and the subsidiary
guarantors executed the guarantees, we or any guarantor:
. received less than reasonably equivalent value or fair consideration
for the incurrence of such debt; and
. were insolvent or rendered insolvent by reason of such incurrence; or
. were engaged in a business or transaction for which the remaining
assets constituted unreasonably small capital; or
. intended to incur, or believed that we (or a guarantor) would incur,
debts beyond such entity's ability to pay such debts as they matured;
or
. intended to hinder, delay or defraud creditors.
The measure of insolvency for purposes of fraudulent transfer laws varies
depending on the law applied. Generally, however, a debtor would be considered
insolvent if:
. the sum of its debts, including contingent liabilities, were greater
than the fair saleable value of all of its assets; or
17
. the present fair saleable value of its assets was less than the
amount that would be required to pay its probable liability on its
existing debts, including contingent liabilities, as they become
absolute and mature; or
. it could not pay its debts as they become due.
We believe that we will receive fair value for the exchange notes and that
the subsidiary guarantors will receive fair value for their guarantees. On the
basis of historical financial information, recent operating history and other
factors, we believe that after giving effect to the offering and the other
transactions that we completed in connection with the merger, neither Muzak nor
any subsidiary guarantor will be insolvent, will have unreasonably small
capital for the business in which such entity is engaged, or will have incurred
debts beyond such entity's ability to pay such debts as they mature. We can
give no assurance, however, what standard a court would apply in reviewing the
transactions or that a court would agree with our conclusions in this regard.
We may be adversely affected if our year 2000 efforts are not successful.
The year 2000 issue is the result of computer programs being written using
two digits rather than four to define the applicable year. Any of our computer
programs that have date-sensitive software may recognize a date using "00" as
the year 1900 rather than the year 2000.
We use and rely on computer technology in many facets of our operations,
including our satellite broadcast systems. If we or our significant customers
or suppliers are not successful in making necessary modifications and
conversions on a timely basis, the year 2000 issue could have a material
adverse effect on our operations. In particular, if the year 2000 issue causes
failure of one or more of the satellites or uplink and transmission systems on
which we rely for transmission of our programming, we would be unable to
provide service to our customers via satellite or local broadcast technology
until we obtained service on another satellite or resolved the ground system
problem. Depending on the magnitude of satellite failure, we cannot assure you
that we would be able to obtain service on another satellite, or of the costs
of such substitute service. In addition, depending on the substitutes
available, we could be required to redirect our clients' satellite dishes, or
possibly replace satellite dish and receiving equipment. Such an event could
have a material adverse effect on our financial position and results of
operations. Our business interruption insurance does not cover year 2000-
related satellite failures.
We also rely on information technology systems for our accounting, billing,
shipping systems, and in software used to create our Audio Architecture, Audio
Marketing, and Video Imaging products. We are in the process of replacing our
primary computer system at our headquarters, and expect the replacement to be
completed in March 1999. Following completion of the system at our
headquarters, we will begin replacing the software at our owned affiliates. We
estimate that our year 2000 compliance program will cost approximately $1.5
million, of which approximately $1.0 million had been spent as of December 31,
1998. We cannot assure you that our actual costs will not be substantially
higher, however.
We have no control over the year 2000 compliance of our independent
affiliates or our clients. If our information technology systems, or those of
our owned or independent affiliates or clients have not been made year 2000
compliant in a timely manner, we may not be able to generate, collect or
process client bills, or to track our own expenses, both of which could have a
material adverse effect on our financial position and results of operations.
Year 2000 issues could affect our ability to obtain supplies and produce and
distribute our products. We cannot assure you that such problems would not have
a material adverse effect on our financial position or results of operations.
There is currently no prior market for the exchange notes and one may not
develop.
While the existing notes are presently eligible for trading in the Private
Offerings, Resales and Trading Through Automated Linkages, known as PORTAL,
market of the National Association of Securities Dealers by qualified
institutional buyers, there is no existing market for the exchange notes. We
have been informed by the
18
initial purchasers of the existing notes that they intend to make a market,
after the exchange offer is completed, in the exchange notes. However, the
initial purchasers have no obligation to make a market and may cease their
market-making at any time.
We have applied to have the exchange notes designated as eligible for
trading in the PORTAL Market. However, we do not intend to apply for listing of
the existing notes or the exchange notes on any securities exchange or for
quotation through the Nasdaq National Market.
The liquidity of any market for the exchange notes and the market price
quoted for the exchange notes will depend on the number of holders of the
exchange notes, our performance, the market for similar securities, the
interest of securities dealers in making a market in the exchange notes and
other factors. A liquid trading market may not develop for the exchange notes.
Our actual results from operations may differ from those contained in forward-
looking statements.
We make forward-looking statements throughout this prospectus. Whenever you
read a statement that is not simply a statement of historical fact, such as
when we describe what we "believe," "expect," or "anticipate" will occur, and
other similar statements, you must remember that our expectations may not be
correct, even though we believe they are reasonable. We do not guarantee that
the transactions and events described in this prospectus will happen as
described, or that they will happen at all. You should read this prospectus
completely and with the understanding that actual future results may be
materially different from what we expect. We will not update these forward-
looking statements, even though our situation will change in the future.
Whether our actual results will conform with our expectations and predictions
is subject to a number of risks, including those addressed in this section of
this prospectus.
19
THE MERGER AND THE ACQUISITION TRANSACTIONS
Old ACN Acquisition. Audio Communications Network, LLC, which we refer to as
ACN, entered into an Asset Purchase Agreement to acquire the Muzak affiliates
in the Baltimore, Charlotte, Hillsborough, Kansas City, St. Louis,
Jacksonville, Phoenix and Fresno areas (the "Old ACN Assets") from Audio
Communications Network, Inc., which we refer to as Old ACN. On October 7, 1998,
ACN acquired the Old ACN Assets and assumed certain liabilities relating to the
Old ACN Assets from DMA Holdings Statutory Trust. The purchase price for the
Old ACN Acquisition was approximately $66.8 million, including fees, expenses
and certain other adjustments.
On the day prior to the Old ACN Acquisition, DMA Holdings, Inc., a wholly
owned subsidiary of DMA Holdings Statutory Trust, acquired all of the issued
and outstanding stock of Old ACN pursuant to an agreement dated as of June 5,
1998, as amended, whereby Diverse Media Acquisition, Inc., a wholly owned
subsidiary of DMA Holdings, Inc., merged with Old ACN with Old ACN surviving.
DMA Holdings, Inc. received all of the outstanding shares of Old ACN, and the
former holders of Old ACN shares received cash for their shares. The agreement
included representations and warranties with respect to the condition of the
Old ACN Assets, covenants as to the conduct of business prior to the closing
and various closing conditions.
The Asset Purchase Agreement was entered into pursuant to ACN, as the
assignee of ABRY Partners, Inc. ("ABRY"), exercising its option to purchase the
Old ACN Assets under the terms of a letter agreement dated June 5, 1998 between
ABRY and DMA Holdings, Inc. The Asset Purchase Agreement included
representations and warranties with respect to conditions of the Old ACN
Assets, covenants as to the conduct of business prior to the closing and
various closing conditions.
The Merger Transactions. On March 18, 1999, Muzak Limited Partnership, which
we refer to as Old Muzak, merged with and into ACN (the "Merger"). At the time
of the Merger, ACN changed its name to Muzak LLC. As of May 3, 1999, beneficial
ownership of the voting membership units of Muzak Holdings LLC ("Holdings") was
as follows: the ABRY Funds owned approximately 73.2%; Capstar owned
approximately 22.9% and our management owned approximately 3.2%.
In connection with the Merger and ther purchase of the Omaha affiliate, we:
. entered into a new senior secured credit facility (the "Senior Credit
Facility") that provides for $135.0 million of term loans and a $35.0
million revolving credit facility (the "Revolving Credit Facility")
of which $3.4 million was drawn at closing;
. issued the Notes;
. received an equity investment of approximately $74.9 million from
Holdings, of which approximately $17.9 million reflects cash
contributed by ABRY Broadcast Partners III, L.P. ("ABRY III") and
ABRY Broadcast Partners II, L.P. ("ABRY II" and, together with ABRY
III, the "ABRY Funds"), $2.0 million reflects cash contributed by
management, $40.0 million reflects cash contributed from the proceeds
of the Senior Discount Note Offering and $15.0 million reflects the
contribution of the assets acquired, net of consideration to be paid
in cash, pursuant to the acquisition of Capstar Broadcasting's Muzak
affiliates;
. paid cash consideration in the acquisition of Capstar Broadcasting's
Muzak affiliates of approximately $5.5 million;
. paid approximately $127.5 million in cash merger consideration and
issued non-voting equity interests to the partners of Old Muzak;
. completed a tender offer and consent solicitation for the outstanding
10% Senior Notes due 2003 of Old Muzak;
. repaid the majority of other existing debt of Old Muzak;
20
. repaid the majority of existing debt of ACN; and
. paid our fees and expenses in connection with the foregoing
transactions.
The Business Sound Acquisition. On January 15, 1999, ACN acquired all of the
outstanding stock of Business Sound, Inc. for approximately $4.1 million (the
"Business Sound Acquisition"). The Business Sound Acquisition was financed with
approximately $4.1 million of cash contributed by ABRY III. Business Sound is
the Muzak affiliate for the New Orleans, Louisiana and Mobile, Alabama areas.
During 1998, Business Sound had revenues of approximately $2.3 million.
The MTI Acquisition. On December 31, 1998, Old Muzak acquired certain assets
and liabilities of Music Technologies, Inc. ("MTI") for approximately $10.0
million (the "MTI Business"). MTI was a national provider of business music.
The MTI Acquisition was financed by borrowings under Old Muzak's credit
facilities. During 1998, the MTI Business produced revenues of approximately
$2.8 million.
The Electro Systems Acquisition. On February 24, 1999, ACN acquired Electro
Systems, the Muzak independent affiliate located in Panama City, Florida for
approximately $0.6 million (plus the assumption of certain debt, which is non-
recourse to the Company). During 1998, Electro Systems would have contributed
approximately $0.1 million to our EBITDA.
The Capstar Broadcasting Acquisitions. On March 18, 1999, Holdings acquired
Capstar Broadcasting's Muzak affiliate territories in Atlanta, Albany and
Macon, Georgia and Ft. Myers, Florida and on May 3, 1999 acquired the Muzak
affiliate territory located in Omaha, Nebraska from Capstar Broadcasting.
Capstar Broadcasting received $20.5 million, comprised of voting membership
units of Holdings valued at $15.0 million and cash consideration of
approximately $5.5 million. During 1998, the Capstar Broadcasting affiliates
had combined revenues of $11.2 million.
21
THE EXCHANGE OFFER
This is a summary of material provisions of the Registration Rights
Agreement entered into by and among Muzak and Muzak Finance (the "Issuers"),
the guarantors named therein and the initial purchasers as of March 18, 1999.
It does not purport to be complete and reference is made to the provisions of
the Registration Rights Agreement which has been filed as an exhibit to the
registration statement.
General
In connection with the issuance of the existing notes pursuant to a Purchase
Agreement dated as of March 12, 1999 by and among the Issuers, the guarantors
named therein and the initial purchasers, the initial purchasers and their
respective assignees became entitled to the benefits of the Registration Rights
Agreement.
The Registration Rights Agreement requires us to file the registration
statement of which this prospectus is a part for a registered exchange offer
relating to an issue of exchange notes identical in all material respects to
the existing notes but containing no restrictive legend. Under the Registration
Rights Agreement, the Issuers are required to:
. file the registration statement not later than 75 days following the
date of original issuance of the existing notes (the "Issue Date");
. use their reasonable best efforts to cause the registration statement
to become effective no later than 150 days after the Issue Date;
. use their reasonable best efforts to keep the exchange offer
effective for not less than 30 business days (or longer if required
by applicable law) after the date that notice of the exchange offer
is first mailed to holders of the existing notes; and
. use their reasonable best efforts to consummate the exchange offer on
or prior to the 60th day following the date on which the exchange
offer registration statement is initially declared effective.
The exchange offer being made hereby, if commenced and consummated with the
time periods described above, will satisfy those requirements under the
Registration Rights Agreement.
Upon the terms and subject to the conditions set forth in this prospectus
and in the Letter of Transmittal, we will accept any and all existing notes
validly tendered and not withdrawn prior to 5:00 p.m., New York City time, on
, 1999, or such later date and time as to which the exchange offer has been
extended. We will issue $1,000 principal amount of exchange notes in exchange
for each $1,000 principal amount of outstanding existing notes accepted in the
exchange offer. Holders may tender some or all of their existing notes pursuant
to the exchange offer. However, existing notes may be tendered only in integral
multiples of $1,000.
The form and terms of the exchange notes are substantially the same as the
form and terms of the existing notes except that:
. the exchange notes bear an exchange note designation and a different
CUSIP number from the existing notes;
. the exchange notes have been registered under the federal securities
laws and hence will not bear legends restricting the transfer thereof
as the existing notes do; and
. the holders of the exchange notes will generally not be entitled to
rights under the Registration Rights Agreement, which rights
generally will be satisfied when the exchange offer is consummated.
The exchange notes will evidence the same debt as the tendered existing
notes and will be entitled to the benefits of the indenture under which the
existing notes were issued. As of the date of this prospectus, $115,000,000
aggregate principal amount of existing notes were outstanding.
22
Holders of existing notes do not have any appraisal or dissenters' rights
under the General Corporation Law of Delaware, the Delaware Limited Liability
Company Act or the indentures relating to such notes in connection with the
exchange offer. We intend to conduct the exchange offer in accordance with the
applicable requirements of the Securities Exchange Act of 1934, and the rules
and regulations of the SEC thereunder.
We shall be deemed to have accepted validly tendered existing notes when, as
and if we have given oral or written notice thereof, such notice if given
orally, to be confirmed in writing, to the exchange agent. The exchange agent
will act as agent for the tendering holders for the purpose of receiving the
exchange notes from our company.
If any tendered existing notes are not accepted for exchange because of an
invalid tender, the occurrence of certain other events set forth herein or
otherwise, the certificates for any such unaccepted existing notes will be
returned, without expense, to the tendering holder thereof as promptly as
practicable after the expiration date.
Holders who tender existing notes in the exchange offer will not be required
to pay brokerage commissions or fees or, subject to the instructions in the
Letter of Transmittal, transfer taxes with respect to the exchange of existing
notes pursuant to the exchange offer. We will pay all charges and expenses,
other than transfer taxes in certain circumstances, in connection with the
exchange offer. For additional information, please refer to the "--Fees and
Expenses" section of this prospectus.
Expiration Date; Extensions; Amendments
The expiration date is 5:00 p.m., New York City time, on , 1999, unless we
extend the exchange offer, in which case the expiration date will be the latest
date and time to which the exchange offer is extended.
In order to extend the exchange offer, we will notify the exchange agent of
any extension by oral or written notice, such notice if given orally, to be
confirmed in writing, and will issue a press release or other public
announcement thereof, each prior to 9:00 a.m., New York City time, on the next
business day after the previously scheduled expiration date.
We reserve the right:
. to delay accepting any existing notes, to extend the exchange offer
or to terminate the exchange offer if any of the conditions set forth
below under "conditions" shall not have been satisfied, by giving
oral or written notice, such notice if given orally, to be confirmed
in writing, of such delay, extension or termination to the exchange
agent, or
. to amend the terms of the exchange offer in any manner.
Any such delay in acceptance, extension, termination or amendment will be
followed as promptly as practicable by oral or written notice thereof to the
registered holders.
Interest on the exchange notes
The exchange notes will bear interest from their date of issuance. Holders
of existing notes that are accepted for exchange will receive, in cash, accrued
interest thereon to, but not including, the date of issuance of the exchange
notes. Such interest will be paid with the first interest payment on the
exchange notes on September 15, 1999 to persons who are registered holders of
the exchange notes on September 1, 1999. Interest on the existing notes
accepted for exchange will cease to accrue upon issuance of the exchange notes.
Interest on the exchange notes is payable semi-annually on each March 15 and
September 15, commencing on September 15, 1999.
23
Procedures for Tendering
Only a registered holder of existing notes may tender such notes in the
exchange offer. To tender in the exchange offer, a holder must complete, sign
and date the Letter of Transmittal, or a facsimile thereof, have the signatures
thereon guaranteed if required by the Letter of Transmittal and mail or
otherwise deliver such Letter of Transmittal or such facsimile, together with
the existing notes and any other required documents, or cause The Depository
Trust Company to transmit an agent's message as described below in connection
with a book-entry transfer, to the exchange agent prior to the expiration date.
To be tendered effectively, the existing notes, the Letter of Transmittal or
agent's message and other required documents must be completed and received by
the exchange agent at the address set forth below under "--Exchange Agent"
prior to the expiration date. Delivery of the existing notes may be made by
book-entry transfer in accordance with the procedures described below.
Confirmation of such book-entry transfer must be received by the exchange agent
prior to the expiration date.
The term "agent's message" means a message, transmitted by a book-entry
transfer facility to, and received by, the exchange agent forming a part of a
confirmation of a book-entry, which states that such book-entry transfer
facility has received an express acknowledgment from the participant in such
book-entry transfer facility tendering the existing notes that such participant
has received and agrees:
. to participate in the Automated Tender Option Program ("ATOP");
. to be bound by the terms of the Letter of Transmittal; and
. that we may enforce such agreement against such participant.
By executing the Letter of Transmittal or agent's message, each holder will
make to us the representations set forth above in the fourth paragraph under
the heading "--Purpose and Effect of the Exchange Offer."
The tender by a holder and the acceptance thereof by us will constitute
agreement between such holder and the company in accordance with the terms and
subject to the conditions set forth herein and in the Letter of Transmittal or
agent's message.
The method of delivery of existing notes and the Letter of Transmittal or
agent's message and all other required documents to the exchange agent is at
the election and sole risk of the holder. As an alternative to delivery by
mail, holders may wish to consider overnight or hand delivery service. In all
cases, sufficient time should be allowed to assure delivery to the exchange
agent before the expiration date. No Letter of Transmittal or existing notes
should be sent to any of the Issuers or any of their affiliates. Holders may
request their respective brokers, dealers, commercial banks, trust companies or
nominees to effect the above transactions for such holders.
Any beneficial owner whose existing notes are registered in the name of a
broker, dealer, commercial bank, trust company or other nominee and who wishes
to tender should contact the registered holder promptly and instruct such
registered holder to tender on such beneficial owner's behalf. For additional
information, please refer to the "Instructions to Registered Holder and/or
Book-Entry Transfer Facility Participant from Beneficial Owner" included with
the Letter of Transmittal.
Signatures on a Letter of Transmittal or a notice of withdrawal, as the case
may be, must be guaranteed by an eligible institution (as defined below) unless
the existing notes tendered pursuant thereto are tendered by a registered
holder who has not completed the box entitled "Special Registration
Instructions" or "Special Delivery Instructions" on the Letter of Transmittal,
or for the account of an eligible institution. In the event that signatures on
a Letter of Transmittal or a notice of withdrawal, as the case may be, are
required to be guaranteed, such guarantee must be by a member firm of the
Medallion System (an "eligible institution").
If the Letter of Transmittal is signed by a person other than the registered
holder of any existing notes listed therein, such notes must be endorsed or
accompanied by a properly completed bond power, signed by such registered
holder as such registered holder's name appears on such notes with the
signature thereon guaranteed by an eligible institution.
24
If the Letter of Transmittal or any existing notes or bond powers are signed
by trustees, executors, administrators, guardians, attorneys-in-fact, officers
of corporations or others acting in a fiduciary or representative capacity,
such persons should so indicate when signing, and evidence to our satisfaction
of their authority to so act must be submitted with the Letter of Transmittal.
We understand that the exchange agent will make a request promptly after the
date of this prospectus to establish accounts with respect to the existing
notes at the book-entry transfer facility, The Depository Trust Company (the
"book-entry transfer facility"), for the purpose of facilitating the exchange
offer, and subject to the establishment thereof, any financial institution that
is a participant in the book-entry transfer facility's system may make book-
entry delivery of existing notes by causing such book-entry transfer facility
to transfer such existing notes into the exchange agent's account with respect
to the existing notes in accordance with the book-entry transfer facility's
procedures for such transfer. Although delivery of the existing notes may be
effected through book-entry transfer into the exchange agent's account at the
book-entry transfer facility, unless an agent's message is transmitted to and
received by the exchange agent in compliance with ATOP on or prior to the
expiration date, or, if the guaranteed delivery procedures described below are
complied with, within the time period provided under such procedures, the
tender of such notes will not be valid. Delivery of documents to the book-entry
transfer facility does not constitute delivery to the exchange agent.
All questions as to the validity, form, eligibility, including time of
receipt, acceptance of tendered existing notes and withdrawal of tendered
existing notes will be determined by the Issuers, in their sole discretion,
which determination will be final and binding. The Issuers reserve the absolute
right to reject any and all existing notes not properly tendered or any
existing notes our acceptance of which would, in the opinion of the Issuers'
counsel, be unlawful. The Issuers also reserve the right to waive any defects,
irregularities or conditions of tender as to particular existing notes. The
Issuers may not waive any condition to the exchange offer unless such condition
is legally waiveable. In the event such a waiver by the Issuers gives rise to
the legal requirement to do so, the Issuers will hold the exchange offer open
for at least five business days thereafter. The Issuers' interpretation of the
terms and conditions of the exchange offer, including the instructions in the
Letter of Transmittal, will be final and binding on all parties. Unless waived,
any defects or irregularities in connection with tenders of existing notes must
be cured within such time as the Issuers shall determine. Although the Issuers
intend to notify holders of defects or irregularities with respect to tenders
of existing notes, neither the Issuers, the exchange agent nor any other person
shall incur any liability for failure to give such notification. Tender of
existing notes will not be deemed to have been made until such defects or
irregularities have been cured or waived. Any existing notes received by the
exchange agent that are not properly tendered and as to which the defects or
irregularities have not been cured or waived will be returned by the exchange
agent to the tendering holders, unless otherwise provided in the Letter of
Transmittal, as soon as practicable following the expiration date.
Guaranteed Delivery Procedures
Holders who wish to tender their existing notes and whose existing notes are
not immediately available, who cannot deliver their existing notes, the Letter
of Transmittal or any other required documents to the exchange agent, or who
cannot complete the procedures for book-entry transfer, prior to the expiration
date, may effect a tender if:
(a) the tender is made through an eligible institution;
(b) prior to the expiration date, the exchange agent receives by
facsimile transmission, mail or hand delivery from such eligible
institution a properly completed and duly executed Notice of Guaranteed
Delivery, setting forth the name and address of the holder, the certificate
number(s) of such existing notes and the principal amount of existing notes
tendered, stating that the tender is being made thereby and guaranteeing
that, within three New York Stock Exchange trading days after the
expiration date, the Letter of Transmittal, or facsimile thereof, or, in
the case of a book-entry transfer, an agent's message, together with the
certificate(s) representing the existing notes, or a confirmation of book-
entry transfer of such
25
notes into the exchange agent's account at the Book-Entry Transfer
Facility, and any other documents required by the Letter of Transmittal
will be deposited by the eligible institution with the exchange agent; and
(c) the certificate(s) representing all tendered existing notes in
proper form for transfer, or a confirmation of a book-entry transfer of
such existing notes into the exchange agent's account at the book-entry
transfer facility, together with a Letter of Transmittal, of facsimile
thereof, properly completed and duly executed, with any required signature
guarantees, or, in the case of a book-entry transfer, an agent's message,
are received by the exchange agent within three New York Stock Exchange
trading days after the expiration date of the exchange offer.
Withdrawal of Tenders
Except as otherwise provided herein, tenders of existing notes may be
withdrawn at any time prior to 5:00 p.m., New York City time, on the expiration
date of the exchange offer.
To withdraw a tender of existing notes in the exchange offer, a telegram,
telex, letter or facsimile transmission notice of withdrawal must be received
by the exchange agent at its address set forth herein prior to 5:00 p.m., New
York City time, on the expiration date of the exchange offer. Any such notice
of withdrawal must:
. specify the name of the person having deposited notes to be withdrawn
(the "Depositor");
. identify the notes to be withdrawn, including the certificate
number(s) and principal amount of such notes, or, in the case of
existing notes transferred by book-entry transfer, the name and
number of the account at the book-entry transfer facility to be
credited;
. be signed by the holder in the same manner as the original signature
on the Letter of Transmittal by which such notes were tendered,
including any required signature guarantees, or be accompanied by
documents of transfer sufficient to have the trustee with respect to
the existing notes register the transfer of such notes into the name
of the person withdrawing the tender; and
. specify the name in which any such existing notes are to be
registered, if different from that of the Depositor.
All questions as to the validity, form and eligibility, including time of
receipt, of such notices will be determined by us and shall be final and
binding on all parties. Any existing notes so withdrawn will be deemed not to
have been validly tendered for purposes of the exchange offer and no exchange
notes will be issued with respect thereto unless the existing notes so
withdrawn are validly retendered. Any existing notes which have been tendered
but which are not accepted for exchange will be returned to the holder thereof
without cost to such holder as soon as practicable after withdrawal, rejection
of tender or termination of the exchange offer. Properly withdrawn existing
notes may be retendered by following one of the procedures described above
under "--Procedures for Tendering" at any time prior to the expiration date.
Conditions
Notwithstanding any other term of the exchange offer, the Issuers shall not
be required to accept for exchange, or exchange notes for, any existing notes,
and may terminate or amend the exchange offer as provided herein before the
acceptance of such existing notes, if:
. any action or proceeding is instituted or threatened in any court or
by or before any governmental agency with respect to the exchange
offer which, in the Issuers' sole judgment, might materially impair
the Issuers' ability to proceed with the exchange offer, or any
material adverse development has occurred in any existing action or
proceeding with respect to the Issuers or any of their subsidiaries;
or
. any law, statute, rule, regulation or interpretation by the staff of
the SEC is proposed, adopted or enacted, which, in the Issuers' sole
judgment, might materially impair the Issuers' ability to proceed
with the exchange offer or materially impair the contemplated
benefits of the exchange offer; or
26
. any governmental approval has not been obtained, which approval the
Issuers shall, in their sole discretion, deem necessary for the
consummation of the exchange offer as contemplated hereby.
If the Issuers determine, in their sole discretion, that any of the
conditions are not satisfied, the Issuers may:
. refuse to accept any existing notes and return all tendered existing
notes to the tendering holders;
. extend the exchange offer and retain all existing notes tendered
prior to the expiration of the exchange offer, subject, however, to
the rights of holders to withdraw such existing notes as described in
"--Withdrawal of Tenders" above;
. waive such unsatisfied conditions with respect to the exchange offer
and accept all properly tendered existing notes which have not been
withdrawn.
Exchange Agent
State Street Bank and Trust Company has been appointed as exchange agent for
the exchange offer. Questions and requests for assistance, requests for
additional copies of this prospectus or of the Letter of Transmittal and
requests for Notice of Guaranteed Delivery should be directed to the exchange
agent addressed as follows:
By Registered or Certified Mail By Hand:
or Overnight Courier: [ ]
[ ]
By Facsimile:
(For Eligible Institutions Only):
( ) -
Confirm by Telephone:
( ) -
[ ]
Delivery to an address other than set forth above will not constitute a
valid delivery.
Fees and Expenses
The expenses of soliciting tenders will be borne by the Issuers. The
principal solicitation is being made by mail, however, additional solicitation
may be made by telegraph, telecopy, telephone or in person by officers and
regular employees of the Issuers and their affiliates.
The Issuers have not retained any dealer-manager in connection with the
exchange offer and will not make any payments to brokers, dealers, or others
soliciting acceptances of the exchange offer. The Issuers, however, will pay
the exchange agent reasonable and customary fees for its services and will
reimburse it for its reasonable out-of-pocket expenses in connection therewith.
The Issuers will pay the cash expenses to be incurred in connection with the
exchange offer. Such expenses include fees and expenses of the exchange agent
and trustee, accounting and legal fees and printing costs, among others.
Accounting Treatment
The exchange notes will be recorded at the same carrying value as the
existing notes, which is face value, as reflected in the Issuers' accounting
records on the date of exchange. Accordingly, the Issuers will recognize no
gain or loss for accounting purposes. The expenses of the exchange offer will
be expensed over the term of the exchange notes.
27
Consequences of Failure to Exchange
The existing notes that are not exchanged for exchange notes pursuant to the
exchange offer will remain restricted securities. Accordingly, such existing
notes may be resold only:
. to the Issuers, upon redemption thereof or otherwise;
. so long as the existing notes are eligible for resale pursuant to
Rule 144A under the Securities Act, to a person inside the United
States whom the seller reasonably believes is a qualified
institutional buyer within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A;
. in accordance with Rule 144 under the Securities Act;
. outside the United States to a foreign person in a transaction
meeting the requirements of Rule 904 under the Securities Act;
. pursuant to another exemption from the registration requirements of
the Securities Act, and based upon an opinion of counsel reasonably
acceptable to the Issuers; or
. pursuant to an effective registration statement under the Securities
Act, in each case in accordance with any applicable securities laws
of any state of the United States.
Resale of the exchange notes
With respect to resales of exchange notes, based on interpretations by the
staff of the SEC set forth in no-action letters issued to third parties, we
believe that a holder or other person who receives exchange notes, whether or
not such person is the holder, other than a person that is an "affiliate" of
the Issuers within the meaning of Rule 405 under the Securities Act, in
exchange for existing notes in the ordinary course of business and who is not
participating, does not intend to participate, and has no arrangement or
understanding with any person to participate, in the distribution of the
exchange notes, will be allowed to resell the exchange notes to the public
without further registration under the Securities Act and without delivering to
the purchasers of the exchange notes a prospectus that satisfies the
requirements of Section 10 of the Securities Act. However, if any holder
acquires exchange notes in the exchange offer for the purpose of distributing
or participating in a distribution of the exchange notes, such holder cannot
rely on the position of the staff of the SEC enunciated in such no-action
letters or any similar interpretive letters, and must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any resale transaction, unless an exemption from registration
is otherwise available. Further, each Participating Broker-Dealer that receives
exchange notes for its own account in exchange for existing notes, where such
existing notes were acquired by such Participating Broker-Dealer as a result of
market-making activities or other trading activities, must acknowledge that it
will deliver a prospectus in connection with any resale of such exchange notes.
As contemplated by these no-action letters and the Registration Rights
Agreement, each holder who participates in the exchange offer will be required
to represent to the Issuers in the Letter of Transmittal that:
. any exchange notes received by it will be acquired in the ordinary
course of its business;
. at the time of the consummation of the exchange offer such holder
will have no arrangement or understanding with any person to
participate in the distribution of the exchange notes;
. such holder is not an "affiliate" of any Issuer within the meaning of
the Securities Act; and
. any additional representation that in the written opinion of counsel
to the Issuers are necessary under then-existing interpretations of
the SEC in order for the exchange registration statement to be
declared effective.
28
USE OF PROCEEDS
We used the gross proceeds of approximately $331.7 million from the existing
note offering, the Senior Credit Facility and the equity investment made in
connection with the Merger together with cash on hand:
. to pay approximately $125.5 million in cash merger consideration;
. to repurchase the outstanding 10% senior notes due 2003 of Old Muzak
for approximately $99.7 million and to pay a tender premium for these
notes of approximately $10.7 million;
. to repay approximately $20.5 million of other existing debt of Old
Muzak;
. to repay approximately $42.5 million to ABRY III on a subordinated
note made in connection with the Old ACN Acquisition and the accrued
interest thereon (the "ABRY Subordinated Note");
. to pay cash consideration in the acquisitions of Capstar
Broadcasting's Muzak affiliates of approximately $5.4 million; and
. to pay fees and expenses associated with the merger and related
transactions of approximately $11.5 million.
For information on the interest rates and maturities of the existing debt of
Old Muzak and the existing debt of ACN that was repaid, please see note 7 of
the notes to the audited financial statements of Old Muzak.
We will not receive any cash proceeds from the issuance of the exchange
notes in the exchange offer. In consideration for issuing these notes as
contemplated in this prospectus, we will receive existing notes in like
principal amount, the terms of which are the same in all material respects to
the exchange notes. The existing notes surrendered in exchange for the exchange
notes will be retired and canceled and not reissued. Accordingly, the issuance
of the exchange notes will not result in any increase or decrease in our debt.
29
CAPITALIZATION
The following table sets forth, as of December 31, 1998, the actual
capitalization of ACN and the pro forma capitalization of Muzak, after giving
effect to the Merger and the completed acquisitions (the "Transactions"). You
should read the information contained in the following table in conjunction
with "Use of Proceeds," "Unaudited Pro Forma Financial Data," "Management's
Discussion and Analysis of Financial Condition and Results of Operations" and
the audited financial statements of Old Muzak and ACN and their related notes.
December 31,
1998
----------------
Unaudited
Actual Pro Forma
------ ---------
(in millions)
Revolving credit facility.................................... $ -- $ 3.4
Senior term loans............................................ -- 135.0
Notes offered hereby......................................... -- 115.0
Other debt................................................... 42.7 7.0(a)
----- ------
Total debt................................................. 42.7 260.4(b)
Member's interest............................................ 26.3 105.4(c)
----- ------
Total capitalization....................................... $69.0 $365.8
===== ======
- --------
(a) Other debt includes the following: (i) non-compete agreement of $2.2
million, (ii) $2.4 million of debt of Electro Systems that is non-recourse
to Muzak, (iii) capital lease obligations of $1.4 million, (iv) related
party note payable of $0.9 million in connection with an employment
agreement, and (v) other mortgage obligations of $0.1 million.
(b) Total debt that is recourse to Muzak equals $258.0 million and excludes
$2.4 million of debt of Electro Systems (an unrestricted subsidiary under
the terms of the indenture governing the exchange notes) that is non-
recourse to Muzak.
(c) Unaudited pro forma member's interest includes the following contributions
made to Holdings and contributed as equity into Muzak and the net loss of
approximately $1.0 million generated by ACN for the period from October 7,
1998 through December 31, 1998:
(i) the ABRY Funds' contributions of $47.9 million, consisting of $25.3
million of aggregate cash contributions made in connection with the
acquisition of ACN, $17.9 million made in connection with the
Merger, $4.1 million made in connection with the Business Sound
Acquisition, and $0.6 million made in connection with the Electro
Systems Acquisition,
(ii) the issuance of membership interests valued at $15.0 million made
in connection with the acquisitions of the Capstar Broadcasting
Muzak affiliates.
(iii) a contribution of approximately $40.0 million made from the
proceeds of the Senior Discount Note Offering and
(iv) management contributions of $3.5 million, consisting of $1.5
million contributed in connection with the capitalization of ACN
and $2.0 million contributed in connection with the Merger.
30
UNAUDITED PRO FORMA FINANCIAL DATA
The following tables on pages 38 and 40 have been prepared by ACN and are
based on the historical financial statements of ACN, Old ACN, Old Muzak, the
Capstar Broadcasting Muzak affiliates, Business Sound, MTI and Electro Systems
and the assumptions and adjustments described in the accompanying notes.
The unaudited pro forma statements of operations and unaudited pro forma
financial data (a) give effect to the Transactions as though they had occurred
on January 1, 1998, (b) do not purport to represent what ACN's results of
operations or financial position actually would have been if the Transactions
had occurred as of the date indicated or what such results of operations or
financial position will be for future periods and (c) do not give effect to
certain non-recurring charges or cost savings expected to result from the
Transactions.
The following unaudited pro forma balance sheet was prepared as if the
Transactions had occurred on December 31, 1998. The unaudited pro forma balance
sheet reflects the preliminary allocations of purchase price to tangible and
intangible assets and liabilities. The final allocation of purchase price, and
the resulting depreciation and amortization expense in the accompanying
unaudited pro forma statement of operations, may differ from the preliminary
estimates due to the final allocation being based on (a) actual closing date
amounts of assets and liabilities and (b) actual appraised values of property
and equipment and any identifiable intangible assets.
The unaudited pro forma financial data should be read in conjunction with
the financial statements of ACN, Old ACN and Old Muzak and the respective
accompanying notes thereto included elsewhere in this prospectus.
Management believes that the unaudited pro forma financial data is a
meaningful presentation because ACN had only a partial year of operations as of
December 31, 1998, and because its ability to satisfy debt and other
obligations is dependent upon cash flow from the Transactions. The following
information is qualified by reference to and should be read in conjunction with
"Capitalization," "Management's Discussion and Analysis of Financial Condition
and Results of Operations" and the "Selected Historical Financial and Other
Data" for ACN, Old ACN and Old Muzak and the ACN, Old ACN and Old Muzak audited
financial statements and the respective notes thereto included elsewhere in
this prospectus.
Prior to March 18, 1999, the Capstar Broadcasting Muzak affiliates operated
as part of Capstar Broadcasting (other than the Omaha Affiliate, which operated
as part of Triathlon Broadcasting Company). The tables following this page set
forth selected historical carve-out financial data for the Capstar Broadcasting
Muzak affiliates. The historical carve-out financial data presented on the
following pages reflect periods during which the Capstar Broadcasting Muzak
affiliates did not operate as an independent company and, accordingly, certain
allocations were made in preparing such carve-out financial data. Therefore,
such carve-out financial data may not reflect the results of operations or the
financial condition which would have resulted if the Capstar Broadcasting Muzak
affiliates had operated as a separate independent company during such periods,
and are not necessarily indicative of the future results of operations or
financial position of the Capstar Broadcasting Muzak affiliates.
Prior to December 31, 1998, the MTI Business operated as part of MTI. The
historical carve-out financial data presented on the following pages reflect
periods during which the MTI Business did not operate as an independent company
and, accordingly, certain allocations were made in preparing such carve-out
financial data. Therefore, such carve-out financial data may not reflect the
results of operations or the financial condition which would have resulted if
the MTI Business had operated as a separate independent company, and are not
necessarily indicative of the future results of operations or financial
position of the MTI Business.
31
UNAUDITED PRO FORMA STATEMENT OF OPERATIONS
FOR THE YEAR ENDED DECEMBER 31, 1998
(dollars in thousands)
Period from Period from
October 7, January 1,
1998 1998
through through
December 31, October 6, Year ended
1998 1998 Year ended December 31, 1998 December 31, 1998
------------ ----------- ------------------------------------- -----------------
Georgia
and
Florida
Old Old Capstar Other Pro Forma Unaudited
ACN (1) ACN (1) Muzak Affiliates Acquisitions (2) Adjustments (3) Pro Forma
------------ ----------- -------- ---------- ---------------- --------------- -----------------
Revenues................ $ 5,914 $18,917 $ 99,748 $9,845 $7,669 $ (3,509)(a,b,d) $138,584
Cost of sales........... 2,556 8,206 42,509 3,970 4,384 (3,547)(a,b,d) 58,078
------- ------- -------- ------ ------ -------- --------
Gross profit........... 3,358 10,711 57,239 5,875 3,285 38 80,506
Selling, general and
administrative......... 1,794 7,245 36,536 3,349 2,711 (3,346)(a,b,c,e) 48,289
Depreciation and
amortization........... 1,683 4,372 21,563 1,931 713 4,470 (f) 34,732
------- ------- -------- ------ ------ -------- --------
Operating (loss)
income................. (119) (906) (860) 595 (139) (1,086) (2,515)
Interest expense, net... (1,033) (2,520) (10,992) (30) (397) (10,472)(g) (25,444)
Other income (expense),
net.................... 5 (2) (137) 1 17 164 (b) 48
------- ------- -------- ------ ------ -------- --------
Net (loss) income....... $(1,147) $(3,428) $(11,989) $ 566 $ (519) $(11,394) $(27,911)
======= ======= ======== ====== ====== ======== ========
see notes on the following page
32
NOTES TO THE UNAUDITED PRO FORMA STATEMENT OF OPERATIONS
FOR THE YEAR ENDED DECEMBER 31, 1998
(1) ACN acquired the Old ACN Assets on October 7, 1998. Prior to the
acquisition, ACN had no operations.
(2) Includes the unaudited historical results of operations of Business Sound,
the MTI Business, the Omaha Capstar Broadcasting Muzak affiliate and
Electro Systems.
(3) The pro forma adjustments represent those adjustments necessary to present
the operating results of ACN as if the Transactions occurred on January 1,
1998. These adjustments include the following:
(a) adjustments to increase revenues and cost of sales by approximately
$1,159,000 and $141,000, respectively, and eliminate approximately
$304,000 of selling, general and administrative expenses not
transferred to Old Muzak, to reflect the acquisitions consummated by
Old Muzak during the year as if they occurred on January 1, 1998,
(b) eliminating revenues, cost of sales, selling, general and
administrative expenses and other expense, net of approximately
$1,678,000, $725,000, $1,679,000 and $164,000 respectively, for EAIC, a
formerly wholly owned subsidiary of Old Muzak. The spin-off of EAIC was
completed in March 1999, prior to the consummation of the Merger,
(c) increasing selling, general and administrative expenses by
approximately $2,180,000 in order to conform the accounting policy for
sales commissions of Old Muzak with that of ACN,
(d) eliminating intercompany revenues and cost of sales of approximately
$2,990,000 and $2,963,000, respectively, (primarily for royalty fees
and equipment sales) for transactions between (i) Old Muzak and (ii)
ACN and the entities acquired by ACN,
(e) decreasing selling, general and administrative expenses by
approximately (i) $2,192,000 in order to account for certain costs not
assumed pursuant to the MTI Acquisition and (ii) $1,351,000 in order to
account for seller transaction costs related to the sales of Old ACN
and Old Muzak,
(f) increasing depreciation and amortization expense due to the excess of
fair value over historical cost generated from the Transactions
(dollars in thousands), and
Year ended
December 31, 1998
-----------------
Pro forma depreciation and amortization.................. $34,732
Historical depreciation and amortization................. 30,262
-------
Pro forma adjustment..................................... $ 4,470
=======
(g) increasing interest expense due to the debt incurred in conjunction
with the Transactions (dollars in thousands).
Year ended
December 31, 1998
-----------------
Historical interest expense, net....................................... $ 14,972
--------
Senior Credit Facility (assuming a weighted average rate of 8.9%) (1).. $ 12,292
Notes.................................................................. 11,356
Other debt............................................................. 646
Amortization of deferred financing fees................................ 1,150
--------
Pro forma interest expense, net........................................ 25,444
--------
Pro forma interest adjustment.......................................... $ 10,472
========
--------
(1) If the assumed interest rate on the Senior Credit Facility
increases by 0.125%, total pro forma interest expense would
increase by $173,000.
33
UNAUDITED PRO FORMA BALANCE SHEET
AS OF DECEMBER 31, 1998
(dollars in thousands)
Georgia
and
Florida
Old Capstar Other Pro Forma Unaudited
ACN Muzak Affiliates Acquisitions Adjustments Pro Forma
------- -------- ---------- ------------ ----------- ---------
Current assets:
Cash and cash
equivalents........... $ 1,293 $ 2,971 $ 1,358 $ 499 $ 313,324 (a) $ --
(4,241)(b)
(315,204)(c)
Accounts receivable,
net................... 1,764 21,130 2,469 609 -- 25,972
Inventory ............. 1,323 5,790 664 281 -- 8,058
Prepaids and other
current assets........ 125 3,640 90 20 -- 3,875
------- -------- ------- ------ --------- --------
Total current assets.. 4,505 33,531 4,581 1,409 (6,121) 37,905
Property and equipment,
net.................... 17,499 46,070 6,815 872 47,604 (b) 118,860
Deferred financing
costs.................. -- -- -- -- 11,500 (c) 11,500
Intangible assets, net.. 49,039 42,527 13,725 1,377 111,078 (b) 228,457
10,711 (c)
Other assets............ 1,884 1,003 834 383 -- 4,104
------- -------- ------- ------ --------- --------
Total assets.......... $72,927 $123,131 $25,955 $4,041 $ 174,772 $400,826
======= ======== ======= ====== ========= ========
Current liabilities:
Revolving credit
facility.............. $ -- $ 12,041 $ -- $ -- $ 3,429 (a) $ 3,429
(12,041)(c)
Current portion of
long-term debt........ 42,217 3,582 -- -- (1,829)(b) 1,570
(42,400)(c)
Accounts payable and
accrued expenses...... 3,964 19,521 616 637 -- 24,738
Advance billings....... -- 5,492 -- -- -- 5,492
------- -------- ------- ------ --------- --------
Total current
liabilities.......... 46,181 40,636 616 637 (52,841) 35,229
Senior credit facility.. -- -- -- -- 135,000 (a) 135,000
Senior subordinated
notes.................. -- -- -- -- 115,000 (a) 115,000
Other long-term debt.... 486 102,790 -- 2,623 138,104 (b) 5,451
(238,552)(c)
Other liabilities....... -- 4,770 -- -- -- 4,770
Redeemable preferred
interests.............. -- 10,524 -- -- (10,524)(b) --
------- -------- ------- ------ --------- --------
Total liabilities..... 46,667 158,720 616 3,260 86,187 295,450
Equity/(deficit)........ 26,260 (35,589) 25,339 781 59,895 (a) 105,376
28,690 (d)
------- -------- ------- ------ --------- --------
Total liabilities and
equity............... $72,927 $123,131 $25,955 $4,041 $ 174,772 $400,826
======= ======== ======= ====== ========= ========
see notes on the following page
34
NOTES TO UNAUDITED PRO FORMA BALANCE SHEET
AS OF DECEMBER 31, 1998
(a) To record the sources of cash in the aggregate of $313,324,000
generated from the net proceeds from (i) the Revolving Credit Facility
of $3,429,000, (ii) the term loans under the Senior Credit Facility of
$135,000,000, (iii) the issuance of the Notes of $115,000,000 and (iv)
cash contributed from Holdings of $59,895,000 including $39,996,000
from the issuance of the Senior Discount Notes, $17,899,000 from a new
equity contribution from the ABRY Funds and a new equity contribution
from Old Muzak management of $2,000,000.
(b) To reflect the financial impact of the Transactions on the balance
sheet of the Company as of December 31, 1998: (dollars in thousands)
Georgia
and
Florida
Old Capstar Business Electro
Muzak Affiliates Sound Systems Total
-------- ---------- -------- ------- --------
Purchase Price:
Cash paid at closing... $245,119 $ 5,474 $4,100 $ 550 $255,243
Debt assumed at
closing............... -- -- -- 2,400(1) 2,400
Issuance of members'
interest in Holdings.. -- 15,010 -- -- 15,010
-------- ------- ------ ------ --------
Fair value of the
Transactions........... $245,119 $20,484 $4,100 $2,950 $272,653
======== ======= ====== ====== ========
Allocation of Purchase
Price:
Historical book value
of the net assets
acquired ............ $ 77,116 $25,963 $2,190 $ 590 $105,859
Cash not acquired..... (2,971) (1,358) -- 88 (4,241)
Redeemable preferred
interests............ 10,524 -- -- -- 10,524
Debt not assumed...... 1,829 -- -- -- 1,829
-------- ------- ------ ------ --------
Historical cost basis
of net assets
acquired.............. 86,498 24,605 2,190 678 113,971
Identified value of
property and equipment
in excess of
historical cost....... 47,586 (1,236) 572 682 47,604
Identified value of
intangible assets in
excess of historical
cost.................. 111,035 (2,885) 1,338 1,590 111,078
-------- ------- ------ ------ --------
$245,119 $20,484 $4,100 $2,950 $272,653
======== ======= ====== ====== ========
(1) Debt assumed of $2,400,000 in connection with the Electro Systems
Acquisition, which is non-recourse to the Company.
(c) To reflect the uses of cash in the aggregate of $315,204,000 consisting
of (i) the cash consideration paid in conjunction with the Merger and
the acquisition of the Capstar Broadcasting Muzak affiliates of
$250,593,000, of which $12,041,000 was used to pay the existing
revolving credit facility at Old Muzak, (ii) the payment of existing
ACN indebtedness, plus accrued interest, of $42,400,000, (iii) fees and
expenses of $11,500,000 incurred in conjunction with the Transactions
and (iv) tender premium on Old Muzak's notes of $10,711,000.
(d) The pro forma adjustment of $28,690,000 to equity/(deficit) represents
(i) the issuance of Members' interest in Holdings of $15,010,000 in
connection with the acquisition of the Capstar Broadcasting Muzak
affiliates (ii) the elimination of historical deficit, net for the
acquired entities of $9,469,000 and (iii) additional cash contributions
by the ABRY Funds of $4,211,000 consisting of $3,661,000 and $550,000
for the Business Sound Acquisition and the Electro Systems Acquisition,
respectively.
35
SELECTED HISTORICAL FINANCIAL AND OTHER DATA
ACN and Old ACN
The selected historical financial and other data of Old ACN set forth below
as of and for each of the two years ended December 31, 1997 have been derived
from the consolidated financial statements of Old ACN which have been audited
by Deloitte & Touche LLP, independent auditors. The selected historical
financial and other data of Old ACN as of October 6, 1998 and for the period
from January 1, 1998 through October 6, 1998 have been derived from the
consolidated financial statements of Old ACN which have been audited by
PricewaterhouseCoopers LLP, independent accountants. The selected historical
financial and other data of ACN as of December 31, 1998 and for the period from
October 7, 1998 through December 31, 1998 have been derived from the financial
statements of ACN which have been audited by PricewaterhouseCoopers LLP,
independent accountants. Certain financial information and the auditor's
reports thereon are included elsewhere in this offering memorandum. The audited
consolidated financial statements of Old ACN as of December 31, 1996 and 1997
and for each of the two years ended December 31, 1997 and as of October 6, 1998
and for the period from January 1, 1998 through October 6, 1998 are included
elsewhere in this prospectus. The audited financial statements of ACN as of
December 31, 1998 and for the period from October 7, 1998 through December 31,
1998 are included elsewhere in this prospectus..
On May 30, 1997, Old ACN completed a business combination with SunCom
Communications L.L.C., a Delaware limited liability company . Under the terms
of the business combination, Old ACN, through a wholly owned subsidiary,
acquired the assets and business of SunCom, in exchange for 2.1 million shares
of Old ACN's common stock. The business combination was accounted for as a
reverse acquisition under GAAP. As a result, SunCom was considered to be the
acquiring legal entity and Old ACN the acquired entity for accounting purposes,
even though Old ACN was the surviving legal entity. As a result of this reverse
acquisition accounting treatment, (i) the historical consolidated financial
statements of Old ACN for the periods prior to the date of the business
combination are no longer the historical consolidated financial statements of
Old ACN, and therefore, are no longer presented or relevant; (ii) the
historical consolidated financial statements of Old ACN prior to the date of
the business combination are those of SunCom; (iii) all references to the
consolidated financial statements of Old ACN apply to the historical
consolidated financial statements of SunCom prior to the business combination
and to the consolidated financial statements of Old ACN subsequent to the
business combination.
Year Ended Period from Period from
December 31, January 1, 1998 October 7, 1998
---------------- through through
1996 1997 October 6, 1998 December 31, 1998
------- ------- --------------- -----------------
(dollars in thousands)
Statement of operations
data
Revenues.................. $10,122 $17,552 $18,917 $ 5,914
Cost of revenues.......... 3,412 7,169 8,206 2,556
------- ------- ------- -------
Gross profit............ 6,710 10,383 10,711 3,358
Selling, general and
administrative........... 2,984 5,113 7,245 1,794
Depreciation and
amortization............. 2,356 4,057 4,372 1,683
------- ------- ------- -------
Operating income (loss)... 1,370 1,213 (906) (119)
Interest expense, net..... (1,915) (2,649) (2,520) (1,033)
Other income (expense),
net...................... -- 33 (2) 5
------- ------- ------- -------
Net loss.................. $ (545) $(1,403) $(3,428) $(1,147)
======= ======= ======= =======
Other financial data
EBITDA (1)................ $ 3,726 $ 5,270 $ 3,466 $ 1,564
EBITDA margin (2)......... 36.8% 30.0% 18.3% 26.4%
Capital expenditures...... $ 1,344 $ 296 $ 3,538 $ 1,308
Ratio of earnings to fixed
charges (3).............. -- -- -- --
Balance sheet data (end of
period)
Cash and cash
equivalents.............. $ 133 $ 680 $ 390 $ 1,293
Total assets.............. 23,104 45,306 43,854 72,927
Long-term obligations,
including current
portion.................. 18,666 32,952 34,658 42,703
Net equity................ 2,548 8,178 4,758 26,260
see notes to the Selected Historical Financial and Other Data
36
Old Muzak
The selected historical financial and other data of Old Muzak set forth
below as of and for each of the five years in the period ended December 31,
1998 have been derived from the consolidated financial statements of Old Muzak
which have been audited by Deloitte & Touche LLP, independent auditors. The
following information is qualified by reference to and should be read in
conjunction with the "Summary of Unaudited Pro Forma Financial Data,"
"Management's Discussion and Analysis of Financial Condition and Results of
Operations," and the audited financial statements and related notes thereto of
Old Muzak included elsewhere in this prospectus. The audited financial
statements of Old Muzak as of December 31, 1997 and 1998 and for each of the
three years in the period ended December 31, 1998 are included elsewhere
herein. The audited consolidated financial statements of Old Muzak as of
December 31, 1994, 1995 and 1996 and for each of the two years in the period
ended December 31, 1995 are not included herein.
Year Ended December 31,
-----------------------------------------------
1994 1995 1996 1997 1998
-------- ------- -------- -------- --------
(dollars in thousands)
Statement of operations data
Revenues..................... $ 83,416 $86,881 $ 86,811 $ 91,204 $ 99,748
Cost of revenues............. 37,098 38,360 37,026 40,709 42,509
-------- ------- -------- -------- --------
Gross profit............... 46,318 48,521 49,785 50,495 57,239
Selling, general and
administrative.............. 28,699 28,496 31,659 33,464 36,536
Depreciation and
amortization................ 17,833 18,291 20,219 20,668 21,563
-------- ------- -------- -------- --------
Operating (loss) income...... (214) 1,734 (2,093) (3,637) (860)
Interest expense, net........ (6,887) (7,354) (7,674) (9,758) (10,992)
Other expense, net........... (82) (94) (434) (40) (137)
-------- ------- -------- -------- --------
Net loss before extraordinary
item........................ (7,183) (5,714) (10,201) (13,435) (11,989)
Extraordinary loss on write-
off of deferred financing
and debt discount........... -- -- (3,713) -- --
Extraordinary gain on
retirement of redeemable
preferred partnership
interests................... -- -- 3,091 -- --
-------- ------- -------- -------- --------
Net loss..................... (7,183) (5,714) (10,823) (13,435) (11,989)
Redeemable preferred return.. (933) (1,029) (916) (400) (619)
-------- ------- -------- -------- --------
Net loss attributable to
general and limited
partners.................... $ (8,116) $(6,743) $(11,739) $(13,835) $(12,608)
======== ======= ======== ======== ========
Other financial data
EBITDA (1)................... $ 17,619 $20,025 $ 18,186 $ 17,233 $ 22,920
EBITDA margin (2)............ 21.1% 23.0% 20.9% 18.9% 23.0%
Capital expenditures......... $ 13,804 $12,757 $ 16,337 $ 19,572 $ 21,426
Ratio earnings to fixed
charges (3)................. -- -- -- -- --
Balance sheet data (end of
period)
Cash and cash equivalents.... $ 1,445 $ 1,115 $ 25,686 $ 8,524 $ 2,971
Total assets................. 103,092 96,439 119,042 104,395 123,131
Long-term obligations,
including current portion... 56,833 53,005 101,102 101,044 118,413
Partners' capital (deficit).. 7,943 1,373 (10,078) (26,095) (35,589)
see notes on the following page
37
NOTES TO THE SELECTED HISTORICAL FINANCIAL AND OTHER DATA
(1) Represents net income before interest, income taxes, depreciation and
amortization, gain on sale of assets, other income and non-cash expenses.
Old Muzak's EBITDA excludes non-cash compensation of approximately $60,000,
$202,000, $2,217,000 for the three years ended December 31, 1998.
Management believes that EBITDA is a meaningful measure of performance and
it is commonly used in similar industries to analyze and compare companies
on the basis of operating performance, leverage and liquidity. However,
EBITDA is not intended to be a performance measure that should be regarded
as an alternative to, or more meaningful than, either operating income or
net income as an indicator of operating performance or cash flows as a
measure of liquidity, as determined in accordance with GAAP. EBITDA, as
computed by management, is not necessarily comparable to similarly titled
amounts of other companies. See financial statements, including Statements
of Cash Flows.
(2) Represents EBITDA as a percentage of revenues.
(3) The ratio of earnings to fixed charges represents the number of times fixed
charges were covered by net income adjusted for provision (benefit) for
income taxes and extraordinary gains (losses) and fixed charges. Fixed
charges consist of interest expense, net and a portion of operating leases
rental expense deemed to be representative of the interest factor. Old
Muzak's earnings were inadequate to cover fixed charges by approximately
$8,100,000, $6,700,000, $11,700,000, $13,800,000 and $12,600,000 for each
of the five years ended December 31, 1998, respectively. Old ACN's earnings
were inadequate to cover fixed charges by approximately $545,000,
$1,403,000, and $3,428,000 for each of the two years ended December 31,
1997 and for the period from January 1, 1999 through October 6, 1998,
respectively. ACN's earnings were inadequate to cover fixed charges by
$1,147,000 for the period from October 7, 1998 through December 31, 1998.
On a pro forma basis, Muzak's earnings would have been inadequate to cover
fixed charges by approximately $27,911,000 for the year ended December 31,
1998.
38
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion should be read in conjunction with "Selected
Historical Financial and Other Data" and the related notes thereto and the
financial statements of each of ACN, Old ACN and Old Muzak and the related
notes thereto appearing elsewhere in this prospectus. This prospectus contains
certain forward-looking statements that involve risks and uncertainties. Future
results could differ materially from those discussed herein. Factors that could
cause or contribute to such differences include, but are not limited to, those
set forth under "Risk Factors" and elsewhere in this prospectus.
General
ACN was formed in 1998 to acquire and operate Muzak independent franchises.
On October 7, 1998, ACN acquired the Old ACN Assets. As a result of this
transaction, ACN acquired the eight independent affiliate territories in the
Baltimore, Kansas City, St. Louis, Jacksonville, Phoenix, Charlotte,
Hillsborough and Fresno areas. On March 18, 1999, Old Muzak merged with and
into ACN. At the time of the Merger, ACN changed its name to Muzak LLC.
Additionally, ACN and Old Muzak each have entered into a number of other
acquisition transactions. On January 15, 1999, ACN acquired all of the
outstanding stock of Business Sound. Business Sound is the Muzak affiliate for
the New Orleans, Louisiana and Mobile, Alabama areas. On December 31, 1998, Old
Muzak acquired certain assets and liabilities of MTI, a national provider of
business music. On February 24, 1999, ACN acquired all of the outstanding stock
of Electro Systems, the Muzak independent affiliate located in Panama City,
Florida. On March 18, 1999, Holdings acquired the Georgia and Florida Capstar
Broadcasting Muzak affiliates and on May 3, 1999 acquired the Omaha Capstar
Broadcasting Muzak affiliate.
In connection with these Transactions Muzak plans to implement certain
structural and operating changes to the businesses it has and may acquire
consistent with its acquisition strategy. Our strategy recognizes the operating
leverage inherent to our business. Through acquisitions, we expect to realize
cost savings by eliminating duplicative sales and marketing, programming,
distribution, technical and other general administrative expenses. See "Pro
Forma Operating Results."
Business Overview
Muzak is the world's leading provider of business music programming.
Together with our independent affiliates, we serve an installed base of
approximately 250,000 business locations, and we believe that we have a market
share of approximately 55% of the estimated number of U.S. business locations
currently subscribing to business music programming. Together with our
independent affiliates, we have nationwide coverage. Our owned affiliates
operate in 8 of the 10 largest DMAs and 17 of the largest 25 DMAs. On a pro
forma basis, we generated revenues of $36.3 million and Adjusted EBITDA of
$10.4 million for the quarter ended December 31, 1998 and revenues of $138.6
million and Adjusted EBITDA of $40.1 million for the year ended December 31,
1998.
We offer three products. Our core product is Audio Architecture, and we
offer two complementary products, Audio Marketing and Video Imaging. We believe
that our clients use our products because they recognize them as a key element
in establishing a desired business environment, in promoting their corporate
identities and in strengthening their brand images. We assist our clients in
selecting programming that is appropriate for their business and consistent
with the experiences they are trying to create for their customers. We believe
our products are highly cost effective, providing an important business tool to
our clients at a low monthly cost.
39
We provide music to numerous types of businesses including specialty
retailers, restaurants, department stores, supermarkets, drug stores, financial
institutions, hotels, golf clubs, health and fitness centers, business offices,
manufacturing facilities, medical centers and HMOs, among others. Approximately
70% of our client base is comprised of local clients and the remaining 30% is
comprised of national and regional chains. Our national clients include The
Gap, Barnes & Noble, McDonald's, Staples, Kinko's, Sunglass Hut, Burger King,
Taco Bell, Nordstrom, Citibank, Travelers and Prudential, among many others.
Our regional clients include A&P, Kroger, Rite Aid, Kaiser Permanente,
PetsMart, Dillards and Wells Fargo, among many others.
Revenues and Expenses
We derive the majority of our revenues from the sale of our business music
products. Our core product is Audio Architecture and our two complementary
products are Audio Marketing and Video Imaging. These revenues are generated
from our clients, who pay us monthly subscription fees under noncancelable five
year contracts. For example, our typical Audio Architecture client generates a
monthly net subscription fee of approximately $45 per client location, which
typically includes the provision of music receiving equipment for use at the
client's location. We believe that approximately 52% of revenues from the sale
of our products are generated by our 45 owned affiliate territories. The
remaining 48% are generated by our 123 independent affiliate territories.
We also derive revenues from the sale and lease of audio system-related
products, principally sound systems and intercoms, to business music clients
and other clients. In addition, we sell electronic equipment, such as
proprietary tape playback equipment and other audio and video equipment to our
independent affiliates to support their sale of our 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.
The cost of revenues for business services consists primarily of broadcast
delivery, programming and licensing associated with providing music and other
business programming to a client or an independent affiliate. The cost of
revenues for equipment represents the purchase cost plus handling, shipping and
warranty expenses. The 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 client locations. Installation costs associated with
new client locations are capitalized and charged to depreciation expense over
the estimated life of our clients' contract.
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. Sales commissions are capitalized and charged
as selling, general and administrative expense over the typical contract term
of five years. If a client contract is terminated early, the unamortized sales
commission is typically recovered from the salesperson.
Muzak was organized as a limited liability company as a wholly-owned
subsidiary of Holdings. For federal (and some state) income tax purposes, the
separate existence of Muzak is ignored, and the results of its operations are
included in the operations of Holdings.
Holdings was organized as a limited liability company. Holdings is taxed as a
partnership for federal (and some state) income tax purposes. As such, Holdings
does not pay federal (and where applicable, state) income taxes on income from
its operations (including the operations of Muzak). Rather, any such income is
reported as the taxable income of the owners of Holdings, in amounts allocated
to them as required by the limited liability company agreement of Holdings.
40
Pro Forma Operating Results
As more fully described within the notes to the summary unaudited pro forma
financial data, as a result of the Transactions, certain pro forma adjustments
were recorded in order to present the operating results as if the Transactions
occurred on January 1, 1998. Such adjustments primarily consist of: (a)
including the estimated historical results of operations for the various
acquisitions consummated by Old Muzak during the year ended December 31, 1998
as if such acquisitions occurred on January 1, 1998, (b) conforming the
accounting policy for sales commissions of Old Muzak with that of ACN (c)
eliminating intercompany revenues and cost of sales, (d) eliminating certain
costs not assumed in connection with the MTI Acquisition, and (e) eliminating
seller transaction costs related to the sales of Old ACN and Old Muzak. These
pro forma adjustments resulted in a $1.3 million and $5.7 million increase to
EBITDA for the three months and year ended December 31, 1998, respectively.
Management intends to implement certain structural and operating changes to
the acquired entities. The following adjustments eliminate the impact of
certain non-recurring charges and reflect the estimated impact of management's
operational and organizational changes to its existing business and to the
businesses it has and expects to acquire.
Year ended Three months ended
December 31, 1998 December 31, 1998
----------------- ------------------
(dollars in thousands)
Pro forma EBITDA:................... $34,434 $ 9,116
------- -------
Adjustments:
Galaxy IV non-recurring costs (i)... 2,113 76
Old Muzak non-recurring expenses
(ii)............................... 1,454 784
ACN restructuring (iii)............. 660 --
Business Sound duplicative expenses
(iv)............................... 228 110
MTI duplicative expenses (v)........ 346 86
Cost savings adjustments (vi)....... 851 213
------- -------
Total adjustments............... 5,652 1,269
------- -------
Adjusted pro forma EBITDA: $40,086 $10,385
======= =======
--------
(i) Represents the non-recurring charges of $1,548,000 at Old Muzak and
$565,000 at ACN for the year ended December 31, 1998 and $76,000 at
Old Muzak for the three months ended December 31, 1998 due to costs
associated with reporting satellite dishes at client locations as a
result of the failure in May 1998 of the Galaxy IV satellite.
(ii) Represents one-time and non-recurring expenses incurred by Old
Muzak, including: (a) payments made to an outside marketing and
design firm associated with the repositioning of our brand,
including the design of a new logo and marketing materials and the
creation of our CD ROM sales tool; (b) payments made to outside
consultants related to the design and construction of our web site;
(c) costs associated with temporarily servicing client locations
acquired from a former competitor through a third party music
service while converting these acquired locations to the Muzak
service; and (d) certain legal expenses and the elimination of the
general partner's management fee.
Year ended Three months ended
December 31, 1998 December 31, 1998
----------------- ------------------
(dollars in thousands)
Costs of brand repositioning........ $ 418 $105
Web site design and construction.... 101 91
Expenses of converting acquired
client locations................... 408 287
Non-recurring legal expenses and Old
Muzak general partner's fees....... 527 301
------ ----
$1,454 $784
====== ====
41
(iii) Represents the restructuring actions, completed in connection with
the Old ACN Acquisition, including (a) the termination of seven
employees; (b) the restructuring of compensation for certain
corporate employees and (c) the closure of redundant offices.
Year ended Three months ended
December 31, 1998 December 31, 1998
----------------- ------------------
(dollars in thousands)
Employee terminations and
restructuring of compensation..... $385 $--
Closing of redundant offices....... 275 --
---- ----
$660 $--
==== ====
(iv) Represents the elimination of the expense associated with certain
executive functions at Business Sound that are now being performed
by the management of ACN.
(v) Represents the elimination of duplicative general corporate expenses
as a result of the MTI Acquisition, including rent, legal and
accounting expenses.
(vi) Represents the elimination of duplicative sales and marketing,
finance, administrative and technical support costs to be realized
from the Merger.
After giving effect to the foregoing considerations, the Company believes
that it would have realized Adjusted pro forma EBITDA of $10.4 million and
$40.1 million for the three months and year ended December 31, 1998,
respectively.
Old Muzak -- Results of Operations
Year Ended December 31, 1998 Compared to Year Ended December 31, 1997
Revenues. Total revenues increased 9.4% from $91.2 million in 1997 to $99.7
million in 1998 principally as a result of an 11.1% increase in music and other
business services revenues and a 6.1% increase in equipment sales and related
services. Music and other business services revenues increased due to
(i) increase in the number of broadcast music subscribers, sales growth and the
acquisition of competitors' business music contracts, together with (ii) an
increase in the royalties paid by independent affiliates resulting from growth
in the broadcast music subscribers in the independent affiliate network. Music
and other business services revenues with the exception of on-premise video and
in-store advertising increased at more rapid rates than broadcast music
revenues due to the increased marketing of, and increasing customer demand for,
audio marketing products and services. Royalties and other fees from
independent affiliates and international distributors (included in broadcast
music revenues) accounted for $8.9 million or 8.9% of Old Muzak's revenues in
1998, compared with $8.8 million or 9.6% of Old Muzak's revenues in 1997. The
continued decrease in the surcharges assessed to affiliates for satellite
transmission costs was offset by increased growth in royalties related to new
subscriber billing. Equipment and installation revenues increased 4.7% and
8.7%, respectively due to the expansion of national accounts.
Gross Profit. Total gross profit increased 13.4% from $50.5 million in 1997
to $57.2 million in 1998. As a percentage of total revenues, gross profit
increased from 55.4% in 1997 to 57.4% in 1998. The improvement in gross profit
percentage in 1998 was due to growth of higher margin business services, such
as broadcast music, audio marketing and on-premise music and video services.
The improvement in gross profit was partially offset by approximately $1.5
million of one-time charges related to the Galaxy IV satellite failure. On May
19, 1998, services on the Galaxy IV satellite were permanently lost when the
satellite ceased communicating to uplink stations throughout the United States.
Also impacting gross profit was $0.4 million of non-recurring costs related to
the conversion of competitor locations acquired during 1998. Had we not
incurred these expenses our gross profit margin would have been 59.3% for 1998,
an increase of 17.2% over 1997.
Selling, General and Administrative Expenses. Selling, general and
administrative expenses increased 3.2% from $33.3 million in 1997 to $34.3
million in 1998. As a percentage of total revenues, selling, general and
administrative expenses decreased from 36.5% in 1997 to 34.4% in 1998. Selling
and marketing expenses
42
increased 3.0% from $13.8 million in 1997 to $14.2 million in 1998, principally
due to an increase in commissions paid as a result of increased levels of sales
of our business products. In 1998, selling and marketing expenses included non-
recurring expenses of $0.5 million associated with our cost of repositioning
our brand, the design and construction of our web site and one-time printing
expenses. Had we not incurred such expenses, our selling and marketing expenses
would have decreased 0.8% to $13.6 million in 1998. General and administrative
costs increased 3.3% from $19.5 million in 1997 to $20.1 million in 1998,
primarily due to transaction costs related to the Merger. Had we not incurred
these expenses, our general and administrative costs would have only increased
0.6% to $19.6 million. If we had not incurred the non-recurring selling and
marketing expenses and the non-recurring general and administrative costs, our
1998 selling, general and administrative expenses as a percentage of total
revenues would have been 33.4%.
Non-Cash Incentive Compensation. Non-cash incentive compensation increased
from $0.2 million in 1997 to $2.2 million in 1998. This increase is primarily
due to the meeting of performance criteria for options issued combined with
management's estimate of the increase in value of Old Muzak.
Depreciation Expense. Depreciation expense decreased 8.6% from $10.7 million
in 1997 to $9.7 million in 1998, principally as a result of a reduction of
depreciation expense for assets that were fully depreciated in 1997 related to
the acquisition of Old Muzak in September 1992.
Amortization Expense. Amortization expense increased 18.1% from $10.0
million in 1997 to $11.8 million in 1998. The increase in amortization expense
was due to an increase in intangibles related to the increased investment in
the expanded customer base and acquisitions of competitors' business music
contracts in 1997 and 1998.
Interest Expense. Total interest expense increased 4.4% from $10.8 million
in 1997 to $11.2 million in 1998. The increase in interest expense in 1998
compared to 1997 is related to the increase in the average outstanding debt
during the year. Old Muzak's total interest-bearing debt increased from $101.0
million to $118.4 million at December 31, 1997 and 1998, respectively.
Year Ended December 31, 1997 Compared to Year Ended December 31, 1996
Revenues. Total revenues increased 5.1% from $86.8 million in 1996 to $91.2
million in 1997 principally as a result of an 8.7% increase in music and other
business services revenues offset by a 1.2% decrease in equipment and related
services revenues. Music and other business services revenues increased due to
an increase in the number of broadcast music subscribers and an increase in the
royalties paid by independent affiliates resulting from an increase in the
broadcast music subscribers in the affiliate network. Music and other business
services revenues (with the exception of on-premises tape sales) increased at
more rapid rates than broadcast music revenues due to the increased marketing
of, and increasing customer demand for, on-premise music video and audio
marketing services, among others. On-premise tape revenues declined due to Old
Muzak's conversion of such customers to broadcast services, primarily direct
broadcast satellite ("DBS") transmission. Royalties and other fees from
franchisees and international distributors (included in broadcast music
revenues) accounted for $8.8 million or 9.6% of Old Muzak's revenues in 1997,
compared with $8.2 million or 9.5% of Old Muzak's revenues in 1996. This
increase is principally due to a reduction in the surcharges assessed to
franchisees for satellite transmission costs. Equipment revenues decreased 3.9%
as Old Muzak continued to exit the low margin business of reselling equipment
to its affiliates and reduced its participation in lower margin competitively
bid equipment sales. Installation, service and repair revenues increased 4.6%
from the level generated in 1996 due to more installations and large equipment
orders during 1997.
Gross Profit. Total gross profit increased 1.4% from $49.8 million in 1996
to $50.5 million in 1997. As a percentage of total revenues, gross profit
decreased from 57.3% in 1996 to 55.4% in 1997. Declines in gross profit as a
percentage of sales reflect a dilution of the margin percentage due to the
continued development of
43
the Internet music sampling business and the EchoStar residential revenues, net
of EchoStar satellite costs, both of which contributed a negative gross profit
for the year. Additionally, 1997 was impacted by approximately $0.5 million in
one-time charges related to inventory writedowns.
Selling, General and Administrative Expenses. Selling, general and
administrative expenses increased 5.3% from $31.6 million in 1996 to $33.3
million in 1997. As a percentage of total revenues, selling, general and
administrative expenses increased from 36.4% in 1996 to 36.5% in 1997. Selling
and marketing expenses increased 19.7% from $11.5 million in 1996 to $13.8
million in 1997, principally due to an increase in sales volumes for business
service products. General and administrative costs decreased 3.1% from $20.1
million in 1996 to $19.5 million in 1997, primarily due to costs associated
with the unconsummated initial public offering in 1996. General and
administrative costs also include $0.8 million in non-recurring severance
charges in 1997 related to certain executive officers.
Non-Cash Incentive Compensation. Non-cash incentive compensation increased
from $0.1 million in 1996 to $0.2 million in 1997. This increase is primarily
due to the increase in options issued combined with management's estimate of
the increase in value of Old Muzak.
Depreciation Expense. Depreciation expense increased 0.3% from $10.6 million
in 1996 to $10.7 million in 1997, principally as a result of an increased
investment in equipment installed at customers' premises due to an expanded
customer base and related to new investments in the EchoStar system and the
Internet music sampling business.
Amortization Expense. Amortization expense increased 4.4% from $9.6 million
in 1996 to $10.0 million in 1997. The increase in amortization expense was due
to an increase in intangibles related to the increased investment in the
expanded customer base.
Interest Expense. Total interest expense increased 32.8% from $8.1 million
in 1996 to $10.8 million in 1997. The increase in interest expense in 1997
compared to 1996 resulted from a full year of interest expense on the $100
million of senior notes issued by Old Muzak in October 1996. Old Muzak's total
interest-bearing debt remained constant at $101.0 million at December 31, 1996
and 1997.
Extraordinary Items. Extraordinary items reflected non-recurring non-cash
charges from the write-off of $3.7 million of deferred financing fees, debt
discount and organizational costs and a non-recurring gain of $3.1 million from
the retirement of a redeemable preferred limited partnership interest during
1996.
ACN--Results of Operations
Period From October 7, 1998 Through December 31, 1998
Revenues totaled $5.9 million for the period ended December 31, 1998,
comprised primarily of business music revenues. For the same period, cost of
sales totaled $2.6 million, resulting in a gross profit margin of 56.8%. Total
selling, general and administrative expenses for the period totaled $1.8
million, comprised principally of salary, benefits and overhead expenses.
Old ACN--Results of Operations
Period From January 1, 1998 Through October 6, 1998 Compared to the Nine Month
Period Ended September 30, 1997
Revenues. Total revenues increased 60.2% from $11.8 million in 1997 to $18.9
million in 1998, primarily as a result of the impact of the reverse acquisition
which occurred in May 1997, as well as growth in business music revenues and
equipment sales and related services.
Gross Profit. Total gross profit increased 35.0% from $8.0 million in 1997
to $10.7 million in 1998. Old ACN's gross margin in 1998 was 56.7%. Such gross
margin is not comparable to the prior period as a result of
44
the reverse acquisition in 1997. The 1998 gross margin was negatively impacted
by approximately 3.0% or $0.6 million resulting from one-time charges related
to the Galaxy IV satellite failure.
Selling, General and Administrative Expenses. Selling, general and
administrative expenses increased 84.6% from $3.9 million in 1997 to $7.2
million in 1998. Such increase was primarily the result of (i) the impact of
the reverse acquisition in 1997, (ii) the growth in business music revenues and
equipment sales and related services and (iii) approximately $0.8 million being
incurred in 1998 pertaining to transaction costs related to the sale of Old ACN
in October 1998.
Year Ended December 31, 1997 Compared to Year Ended December 31, 1996
Revenues. Total revenues increased 73.4% from $10.1 million in 1996 to $17.6
million in 1997, primarily as a result of the impact of the reverse acquisition
in 1997 and growth in business music revenues and equipment sales and related
services.
Gross Profit. Total gross profit increased 54.7% from $6.7 million in 1996
to $10.4 million in 1997. Such gross profit, as well as gross margin for the
periods, is not comparable as a result of the reverse acquisition in 1997.
Selling, General and Administrative Expenses. Selling, general and
administrative expenses increased 71.3% from $3.0 million in 1996 to $5.1
million in 1997. Such increase was primarily the result of, (i) the impact of
the reverse acquisition in 1997 and (ii) the growth in business music revenues
and equipment sales and related services.
Pro Forma Liquidity and Capital Resources
Our business generally requires capital for the installation of equipment
for new business music clients. We estimate that in 1998, demand-based capital
expenditures represented approximately 80% of our total capital expenditures.
Pro forma for the Transactions, capital expenditures for the year ended
December 31, 1998 were approximately $25.2 million. Capital expenditures for
1999 are not expected to change significantly from the 1998 level. In addition,
we have pursued and will continue to pursue a business strategy that includes
selective acquisitions. We have historically funded our operations and
acquisitions with proceeds from equity contributions, bank borrowings and cash
flow from operations. We intend to use amounts available under the Senior
Credit Facility, future debt and equity financings and internally generated
funds to finance our working capital requirements, capital expenditures and
future acquisitions.
Our financing consisted of the Senior Credit Facility, the existing notes,
and the new equity investment. The net proceeds of which were used principally:
. to pay the merger consideration of $127.5 million to the partners of Old
Muzak;
. to repay approximately $100.0 million of borrowings by Old Muzak under
its 10% Senior Notes due 2003 together with accrued interest,
. to repay approximately $17.6 million of other borrowings by Old Muzak
together with accrued interest,
. to repay approximately $42.4 million of borrowings by ACN under the ABRY
Subordinated Note, together with accrued interest,
. to pay approximately $10.7 million as a tender premium in connection
with the tender offer and consent solicitation for the senior notes of
Old Muzak, and
. to pay our fees and expenses in connection with the foregoing.
45
As of December 31, 1998, on a pro forma basis, after giving effect to the
Transactions, we had $260.4 million of indebtedness outstanding which includes:
. $115.0 million under the existing notes,
. $138.4 million under the Senior Credit Facility, excluding $31.6 million
of availability under the Revolving Credit Facility, and
. $7.0 million of other debt.
In October 1998, ACN borrowed $40.8 million from ABRY III under the ABRY
Subordinated Note. Amounts outstanding under the ABRY Subordinated Note earn
interest at the rate of 9.0% per annum. Interest and principal under the ABRY
Subordinated Note are payable within one year from the date of the related
borrowing. We repaid the ABRY Subordinated Note with the proceeds from the
offering.
The Senior Credit Facility provides for a $35.0 million Revolving Credit
Facility, a $30.0 million term loan facility ("Term Loan A") which matures on
December 31, 2005 and a $105.0 million term loan facility ("Term Loan B") which
matures on December 31, 2006. Subject to compliance with the terms of the
Senior Credit Facility, borrowings under the Revolving Credit Facility will be
available for working capital purposes, capital expenditures and pending and
future acquisitions. Prior to December 31, 2000, we may request lenders to
commit to additional loans of up to $50 million under a second revolving credit
facility.
The Revolving Credit Facility terminates, and all amounts outstanding
thereunder are payable, on December 31, 2005. Advances under Term Loan A and
the Revolving Credit Facility subject to the base rate (as defined in the
Senior Credit Facility) bear interest, payable in quarterly installments at the
base rate plus a margin ranging from 1.00% to 2.00%, and advances under Term
Loan A and the Revolving Credit Facility subject to LIBOR bear interest,
payable in installments at periods no greater than six months, at LIBOR plus a
margin, ranging from 2.00% to 3.00%. Advances under Term Loan B subject to the
base rate bear interest at the base rate plus 2.50% and advances under Term
Loan B subject to the LIBOR rate bear interest at the LIBOR rate plus 3.50%.
Borrowings under the Senior Credit Facility are guaranteed by Holdings and the
Company's present and future direct and indirect domestic subsidiaries. The
Senior Credit Facility is secured by substantially all of our assets in which a
security interest may be granted. For additional information concerning the
Senior Credit Facility, including the timing of scheduled payments, see
"Description of the Senior Credit Facility."
The Senior Credit Facility and the indenture contain financial and other
covenants that restrict, among other things, our ability and the ability of
certain of our affiliates to incur additional indebtedness, incur liens, pay
dividends or make certain other restricted payments, consummate certain asset
sales, enter into certain transactions with affiliates, merge or consolidate
with any other person or sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of our assets. Such limitations, together
with our highly leveraged nature, could limit our corporate and operating
activities in the future, including the implementation of our growth strategy.
We believe that cash generated from operations and borrowings expected to be
available under the Senior Credit Facility will be sufficient to meet our debt
service, capital expenditure and working capital requirements for the
foreseeable future. We will require additional financing if our plans
materially change in an adverse manner or prove to be materially inaccurate, or
if we engage in any significant acquisitions. We cannot assure you that such
financing, if permitted under the terms of the Senior Credit Facility and the
indenture, will be available on terms acceptable to us or at all.
46
Year 2000 Compliance
The year 2000 issue is the result of computer programs being written using
two digits rather than four to define the applicable year. Any of our computer
programs that have date-sensitive software may recognize a date using "00" as
the year 1900 rather than the year 2000.
We use and rely on computer technology in many facets of our operations,
including our satellite broadcast systems. If we or our significant customers
or suppliers are not successful in making necessary modifications and
conversions on a timely basis, the year 2000 issue could have a material
adverse effect on our operations. We cannot quantify the impact at this time,
however. We believe our competitors face similar risks.
We are in the process of replacing our primary computer system at our
headquarters, and expect the replacement to be completed in March 1999.
Following completion of the system at our headquarters, we will begin
replacing the software at our owned affiliates. The new software is also
available to our independent affiliates. We expect that our remediation
efforts for our critical computer systems will be completed by the end of the
third quarter of 1999. We are conducting ongoing reassessments to confirm that
all critical risks have been identified and will be addressed.
Costs related to the year 2000 issue are funded through operating cash
flows. We estimate that our year 2000 compliance program will cost
approximately $1.5 million, of which approximately $1.0 million had been
expended as of December 31, 1998.
While we believe all necessary work will be completed in a timely fashion,
we cannot assure you that all systems will be compliant by the year 2000, or
that the systems of other companies and government agencies on which we rely
will be compliant.
Since 1997, we have been communicating with outside vendors to determine
their state of readiness with regard to the year 2000 issue. Based on our
assessment to date, we have not received any indication from a third party
indicating that it expects to experience year 2000 non-compliance of a nature
which would have a material impact on us. However, the risk remains that
outside vendors or other third parties may not have accurately determined
their state of readiness, in which case such parties' lack of year 2000
compliance may have a material adverse effect on our results of operations. We
continue to monitor the year 2000 compliance of third parties with which we do
business.
We believe the most likely worst-case scenarios that we might confront with
respect to the year 2000 issues have to do with the possible failure of third
party systems over which we have no control, such as, but not limited to,
satellite, power and telephone services. We are currently developing a
specific year 2000 contingency plan.
Inflation and Changing Prices
We do not believe that inflation and other changing prices have had a
significant impact on our operations.
47
BUSINESS
General
Muzak is the world's leading provider of business music programming.
Together with our independent affiliates, we serve an installed base of
approximately 250,000 business locations, and we believe that we have a market
share of approximately 55% of the estimated number of U.S. business locations
currently subscribing to business music programming. Together with our
independent affiliates, we have nationwide coverage. Our owned affiliates
operate in 8 of the 10 largest DMAs and 17 of the largest 25 DMAs. On a pro
forma basis, we generated revenues of $36.3 million and Adjusted EBITDA of
$10.4 million for the quarter ended December 31, 1998 and revenues of $138.6
million and Adjusted EBITDA of $40.1 million for the year ended December 31,
1998.
We offer three products. Our core product is Audio Architecture, and we
offer two complementary products, Audio Marketing and Video Imaging. We believe
that our clients use our products because they recognize them as a key element
in establishing a desired business environment, in promoting their corporate
identities and in strengthening their brand images. We assist our clients in
selecting programming that is appropriate for their business and consistent
with the experiences they are trying to create for their customers. We believe
our products are highly cost effective, providing an important business tool to
our clients at a low monthly cost.
Audio Architecture is business music programming designed to enhance a
client's brand image. Our staff of in-house audio architects analyzes a variety
of music to develop and maintain 60 core music programs in 10 genres ranging
from current top-of-the-charts hits to jazz, classic rock, urban, country,
Latin, classical music and others. Our audio architects change our music
programs on a daily basis, incorporating the continuous release of contemporary
artists' new music recordings and drawing from our current library of
approximately 1,250,000 recordings. In addition, we offer individual music
programs to clients who seek further customization beyond that offered by our
core music programs. As a complement to Audio Architecture, we have recently
focused on developing our Audio Marketing product that provides telephone on-
hold and in-store messages for more than 17,000 client locations. We have also
introduced Video Imaging, which we believe is the most widely used in-store
video product in the U.S. and is viewed in approximately 9,000 client
locations. Our programs are delivered to our clients through DBS, telephone
lines, local broadcast technology, audio and video tapes and compact discs.
We complete our clients' business music experience by designing and
installing sound and intercom systems, telephone on-hold and in-store messaging
and video systems at their locations and providing after-sale services and
enhancements to those systems, which we sell or lease to our customers. We
provide our products and services domestically through our integrated,
nationwide network of owned and independent affiliates. We believe our
nationwide network is the largest in the industry and provides us with a key
competitive advantage in effectively marketing and servicing clients ranging
from local accounts with single or multiple locations to national accounts with
significant geographic presences. We believe that approximately 52% of revenues
from the sale of our products are generated by our 45 owned affiliate
territories. The remaining 48% are generated by our 123 independent affiliate
territories.
We provide music to numerous types of businesses including specialty
retailers, restaurants, department stores, supermarkets, drug stores, financial
institutions, hotels, golf clubs, health and fitness centers, business offices,
manufacturing facilities, medical centers and HMOs, among others. Approximately
70% of our client base is comprised of local clients and the remaining 30% is
comprised of national and regional chains. Our national clients include The
Gap, Barnes & Noble, McDonald's, Staples, Kinko's, Sunglass Hut, Burger King,
Taco Bell, Nordstrom, Citibank, Travelers and Prudential, among many others.
Our regional clients include A&P, Kroger, Rite Aid, Kaiser Permanente,
PetsMart, Dillards and Wells Fargo, among many others.
Our clients typically enter into a noncancelable five-year contract that
renews automatically for at least one additional five-year term unless
specifically terminated at the initial contract expiration date. Our average
length of service per client is approximately 12 years. For a typical local
business music client generated by an
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owned affiliate, we receive approximately $45 of net revenue per month per
location. We typically make an initial one-time installation investment per
location (including sales commissions) averaging approximately $1,000. This
allows us to recover our capital costs within 22 months for a typical local
client. We generate an over 50% annual return on investment per music client
location, based on a twelve-year client relationship. In contrast, for music
clients generated by our independent affiliates, we receive a net monthly fee
of approximately $5 for each client location in exchange for our music
programming. We incur no capital outlay for a new client location generated by
an independent affiliate.
Operating Strengths
We believe the following attributes have helped us become the world's
leading provider of business music programming:
Market Leadership for 65 Years. We believe that Muzak is the most widely
recognized brand name in the industry. Together with our independent
affiliates, we have an estimated 55% share of the U.S. business music market.
We believe that we have been the leader in the business music programming
industry since its inception by the founders of Old Muzak 65 years ago.
Nationwide Presence. Our nationwide network is the largest in the industry
and would be costly and difficult to replicate. As a result, we believe this
nationwide network is a key competitive advantage. Our nationwide network
enables us to provide same-day sales, installation and service to clients
throughout the country and to service multiple widespread locations
efficiently. This network is comprised of 168 territories, of which 45 are
served by our 33 owned affiliate offices and the remaining 123 are served by
our 75 independent affiliates. The independent affiliate component of our
network is highly stable, as a significant majority of our independent
affiliates has been associated with us for over 20 years.
Large and Diverse Client Base. Our music products appeal to a variety of
clients, including specialty retailers, restaurants, department stores,
supermarkets, drug stores, financial institutions, hotels, golf clubs, health
and fitness centers, business offices, manufacturing facilities, medical
centers and HMOs, among others. Together with our independent affiliates, we
currently serve approximately 250,000 client locations. Our national clients
include The Gap, Barnes & Noble, McDonald's, Staples, Kinko's, Sunglass Hut,
Burger King, Taco Bell, Nordstrom, Citibank, Travelers and Prudential, among
many others. Our regional clients include A&P, Kroger, Rite Aid, Kaiser
Permanente, PetsMart, Dillards and Wells Fargo, among many others. We also have
numerous local clients with single or multiple locations. During 1998, none of
our clients represented more than 2% of our revenues and our top ten clients
represented in the aggregate less than 10% of our revenues.
Attractive Economics to Clients and the Company. We believe our products and
services are highly cost effective for our clients, providing them with an
important business tool at a low monthly cost. We also believe that our
business provides us with attractive economics. Our costs for incremental sales
are low because the nature of our business enables us to leverage our corporate
infrastructure (including programming, sales and marketing and general
administrative costs), our established music library, and our nationwide
network and music delivery system. As a result, our financial results are
favorably impacted by growth through incremental client locations. Our annual
return on investment is over 50% per client location, based on a twelve-year
client relationship. In addition, we receive a monthly fee for each client
location generated by our independent affiliates, for which we have no direct
incremental costs.
Long Term Contracts; Recurring Revenue Base; Low Churn. Our client contracts
generally have a non-cancelable term of five years that renews automatically
for at least one additional five-year term unless specifically terminated at
the initial contract expiration date. Our long term contracts provide us with
steady recurring monthly revenues per client location. In the majority of
cases, we also have the right to match any increase in our operating costs with
a corresponding price increase of up to 10% each year. During 1998, our monthly
churn rate averaged approximately 0.7% and our annual churn rate was
approximately 8%. We have an average length of service per client of
approximately 12 years. Based on our experience, economic
49
downturns have not significantly affected our monthly recurring revenues or our
historical churn rate, which we believe is primarily because we deliver
products to a geographically diverse client base in a range of industries at a
low monthly cost.
Demand-Based Capital Expenditures. The substantial majority of our capital
expenditures are comprised of the initial investment for each new client
location. We incur those costs only after receiving a signed contract from a
client. Our typical initial investment per music client location (including
sales commission) averages approximately $1,000, and our after-sale service
costs are low. In the event of a contract termination, we can typically recover
and reuse the installed equipment. We estimate that in 1998, demand-based
capital expenditures represented approximately 80% of our total capital
expenditures.
Unique Product Offerings. Our staff of trained audio architects use their
intuition, innovation and skill and our proprietary software package to
continually change the content of our music programs for our clients. Our audio
architects create programs using music from our extensive music library, which
currently contains approximately 1,250,000 recordings and is continually
updated with new releases. In addition, we have the ability to create
integrated audio and video services through our Audio Marketing and Video
Imaging products.
Experienced Management. Our senior management team has extensive experience
in the business music programming industry. The Company is led by Mr. William
Boyd, its Chief Executive Officer, who has over 30 years of experience in the
industry. Prior to re-joining Old Muzak in 1996, Mr. Boyd owned one of the
largest independent affiliates and also served as President of our independent
affiliate organization. We believe that Mr. Boyd has brought a consistent
vision for sustained growth and profitability to the Company, has renewed focus
on our Audio Architecture, Audio Marketing and Video Imaging core products and
has strengthened our relationships with our independent affiliates. In
addition, Mr. Boyd has selected a dedicated and energetic senior management
team, that together with Mr. Boyd, has an average of approximately 13 years of
experience in the business music programming industry.
Business Strategy
Our strategy is to increase monthly recurring revenue and cash flow by
concentrating on our Audio Architecture, Audio Marketing and Video Imaging
products. Our strategy recognizes the operating leverage inherent to our
business. In addition to internal growth, we also believe that opportunities
exist to create synergies and enhance value through the selective acquisition
of in-market competitors and of our independent affiliates.
Concentrate on Core Competency. In late 1997, we discontinued our in-store
marketing program and spun-off our other non-core operations, allowing us,
under the strategic direction of our new management, to focus on our core
competency of assisting our clients in enhancing their brand images and the
experiences of their customers through planned programs of music and video. In
this pursuit, we have focused on our core Audio Architecture, Audio Marketing
and Video Imaging products. This focus has increased the opportunities for
sales growth and profitability for each of these products. In the short time
since implementing these changes, we have increased our monthly recurring
revenue by approximately 13% from December 1997 to December 1998 and increased
EBITDA by 33% from the fiscal year ended December 31, 1997 to December 31,
1998.
Increase United States Market Penetration. We have identified the potential
market for our products to include approximately six million U.S. businesses
that are operating in an industry currently served by us. We believe that less
than 10% of our identified market currently enhance their brand images through
business music. As the leading provider of business music services, we believe
we are well positioned to capitalize on the substantial growth opportunities
available within this significantly under-penetrated market. We also believe
that our ability to offer an integrated set of audio and video products through
Audio Architecture, Audio Marketing and Video Imaging will allow us to increase
penetration of our services to new clients and cross-sell new services to our
existing clients.
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Capitalize on Changes in Sales and Marketing Strategy. We have recently
restructured our sales and marketing strategy. We expect the following changes
to increase sales of and cash flows from our products by our owned and
independent affiliates:
. We recently began amending our agreements with our independent
affiliates. The amendment provides us and our independent affiliates
with more attractive financial terms for each new national client and
provides for better coordination of the installation and service of
national account locations. The amendment also extends the prohibition
of sales of competing products from Audio Architecture to include Audio
Marketing and Video Imaging. In addition, the amended agreements give us
the ability to set sales goals and incentive plans for these new
products, similar to goals and plans previously established for Audio
Architecture.
. We have set more aggressive selling targets for our account executives
and increased the number of our national account executives. In
addition, we plan to hire product managers, each exclusively focused on
assisting the owned and independent affiliates in selling our newer
products, Audio Marketing and Video Imaging.
. In July 1998, we provided laptop computers to the account executives of
our owned affiliates to assist in the demonstration of product benefits
to potential clients. These computers include an interactive CD-ROM and
customized software which enhances the sales efforts of account
executives. Previously, account executives had no way to demonstrate our
music products other than from written brochures.
. We continue to strengthen our brand image and awareness of our products
through an updated Internet web site (www.muzak.com), new marketing
materials that focus on the Muzak brand and the recent establishment of
a charitable program, Muzak Heart and Soul Foundation, that promotes
music education.
Pursue Acquisitions. The business music industry remains highly fragmented,
with numerous independent operators. For example, we have 75 individuals or
entities that operate in our 123 independent affiliate territories. Since
September 1997, Old Muzak has acquired two affiliate territories and has
acquired client accounts of thirteen of its competitors' affiliates as well as
one national competitor, MTI. In 1998, ABRY III formed ACN to acquire and
operate Muzak independent affiliates. ACN acquired the Old ACN Assets, which
included eight independent affiliate territories. ACN subsequently acquired two
additional affiliate territories in January 1999, one additional affiliate
territory in February 1999, four affiliate territories from Capstar
Broadcasting in March 1999 and one additional affiliate territory from Capstar
Broadcasting in May 1999. Through acquisitions, we expect to realize cost
savings by eliminating duplicative programming, distribution, sales and
marketing, technical and other general administrative expenses. We will
continue to seek attractive opportunities to acquire music contract portfolios
in the future and will review the acquisition of our own independent affiliates
if they become available. Future acquisition targets may also include providers
of complementary marketing on-hold and on-premises video products.
Products
We offer three products, Audio Architecture, Audio Marketing, and Video
Imaging, to assist our clients in strengthening their brand images and in
enhancing the experiences of their customers. We believe our clients use our
products because they recognize that our products can provide a key element in
establishing a desired business environment, in promoting their corporate
identity and in strengthening their brand image.
Audio Architecture
Audio Architecture is business music programming designed to strengthen a
client's brand image. Our in-house staff of 19 audio architects analyzes a
variety of music to develop and maintain 60 core music programs in 10 genres
that appeal to a wide range of tastes. Our programs include current top-of-the-
charts hits to jazz, classic rock, urban, country, Latin, classical music and
others. Our audio architects update our music programs on a daily basis,
incorporating the continuous release of new music recordings and drawing from
our library of
51
approximately 1,250,000 recordings, which we believe is the largest of its
kind. In designing our music programs, our audio architects use a proprietary
computer software package that allows them to efficiently access our extensive
library, avoid repeated songs and manage tempo and music variety to provide
clients with high quality, seamlessly arranged programs.
We assist our clients in selecting music programming that is appropriate for
their business and consistent with the experiences they are trying to create
for their customers. We accomplish this goal in two ways. First, we can suggest
one or more of our 60 core music programs. For example, in 1997, Barnes &
Noble, one of the nation's largest retail bookstore chains, engaged Muzak to
recommend music programming to evoke the appropriate blend of relaxation and
education and create a uniform atmosphere in all of their stores. Second, we
can create custom music programs for our clients that wish to convey a unique
and specific brand image, a process we call Audio Imaging. Our Audio Imaging
clients include Crate & Barrel, DKNY, Esprit, Fossil, Liz Claiborne, Lindt
Chocolate, Spencer Gifts, Sunglass Hut and Watch Station.
Clients who subscribe to our 60 program core music service may utilize our
DayParting and WeekParting services. These services allow us to vary the
programs that are delivered to our clients during different hours of the day
and days of the week in response to our clients' changing customer patterns.
All of our clients have access to our extensive in-house programming and
editing capabilities and the technological strengths we have developed in
engineering, equipment, and delivery systems.
Some of our popular programs include:
FM-1(R) -- A mainstream mix of Hot FM SM -- A mix of melodic upbeat
familiar adult contemporary adult oriented pop vocals and
favorites. instrumentals.
Country Currents(R) -- Current EuroStyle SM -- An ultra-hip mix of
country hits by established and cutting edge sounds from Europe.
emerging artists.
Contemporary Jazz Flavors SM -- A
Urban Beat SM -- A youth-oriented smooth mix of contemporary
mix of contemporary urban music with instrumentals and adult pop vocals
a focus on funky beats and tough by popular artists.
jams.
Contemporary Christian -- Today's
KidTunes SM -- A mix of educational popular Christian music.
and entertaining music for kids.
Hitline(R) -- A youth-oriented mix
Latin Styles SM -- The smooth side of up-tempo styles that reflect the
of contemporary Spanish language diversity of today's pop music
music. culture.
In addition, we offer approximately 600 different tape and compact disc
based programs of music. We develop these tapes to meet the specialized
business needs of our clients with more focused customer demographics. Some of
the formats offered are Italian-American, reggae, hard rock, German and
Chinese. We distribute these music programs to clients in the form of long-
playing audio tapes or compact discs that our clients play using specially-
designed equipment that we installed.
Audio Marketing
Our Audio Marketing staff creates customized music and messages that allow
our clients' telephone systems to deliver targeted music and messaging during
their customers' time on hold. Several studies have substantiated the value of
on-hold marketing. A study performed by Telemarketing Magazine found that 85%
of calling customers prefer hearing about a company's products to silence or
music and 20% of those who hear such messages purchase the item or service
advertised. The cost implications of this data for a telephone-oriented
business can be very significant. Because on-hold music and messaging reduce
the need for telephone operators, it is appealing to both cost-conscious larger
businesses and to smaller businesses that are, by their nature, more sensitive
to the incremental fixed costs associated with telephone operators. In addition
to cost savings, on-hold messaging provides a revenue enhancing opportunity.
52
We have the in-house capability to write, voice, edit, produce and duplicate
messages. Our fully integrated sound studios and editing and tape duplication
facilities provide us with flexibility in responding to clients' needs. Our
telephone and satellite delivery technologies allow us to expeditiously change
our clients' music and message mixes and styles. We also offer our clients a
tape-based product which operates from equipment at the client's location.
As of December 31, 1998, more than 17,000 locations subscribed to our Audio
Marketing product. As in our sales of business music, we generally require our
clients in this area to commit to a five year contract. Clients using Audio
Marketing to effectively convey messages to their customers include Citibank,
GTE, Kinko's, Kaiser Permanente, Coldwell Banker, Harrah's Casino, Esprit,
Texaco, Shell, BPAmoco and Budget Car Rental. We believe that our Audio
Marketing product creates an opportunity to attract new clients in new market
segments and to increase penetration of our existing client base. Our existing
client base includes many smaller businesses, and we believe that our existing
client base is sufficiently sophisticated to appreciate the added value of
business music and messaging to their on-hold customers.
Video Imaging
We believe we are the largest producer and distributor of in-store video
programs in the world. Video Imaging is unique, demographically-tailored video
programming designed to enhance the brand personality of our clients by
entertaining, informing and captivating their customers. We have a library of
over 30,000 video programs. These video programs use both original artist music
videos and other non-music video content such as sports, entertainment, fashion
and comedy. We produce our video programs through our in-house production
facilities and distribute them on high-grade VHS videotape to our clients on a
monthly rotation. We produce these programs for a variety of retail
environments, such as department stores, specialty shops, athletic footwear
stores, children's apparel stores, restaurants, sporting goods stores, toy and
hobby stores, drug stores and appliance stores. Clients currently using Video
Imaging include Macy's, McDonald's, Bloomingdale's, Lord & Taylor, Oshman's
Sporting Goods, Burger King, Camelot Music, Rooms to Go, Rent-A-Center, KFC,
Game Works, Best Way and Donna Karan Jeans Shop. As of December 31, 1998, we
had approximately 9,000 client locations subscribing to our Video Imaging
product.
Our 22 in-store video programs are available in the following genres:
. Total Music Programs. Segued music video programs in two-hour or four-
hour lengths that represent a style and tempo of music applicable to
particular business environments.
. Variety Programs. A series of video programs hosted by an off-camera
voice talent that incorporate music videos and entertainment features
targeting specific audiences.
. Children's Programs. Children's programs incorporate select music
videos, sing-alongs, educational features and cartoons that are selected
specifically to entertain and educate children.
. Sports Programs. Sports documentaries, sports trivia, classic sports
features, high energy music videos, and extreme sports features.
. VeeJay Programs. One-hour long programs produced exclusively for
nightclubs and entertainment facilities with video jockeys or "veejays."
Equipment Sales and Related Services
In connection with the sale of our Audio Architecture, Audio Marketing and
Video Imaging products, we sell and lease various audio and video system-
related products, principally sound systems. We believe that style and
placement of sound and video systems can further enhance the experience we
create through Audio Architecture and Video Imaging. As part of a typical music
programming contract, we provide music receiving or playback equipment to our
client. Our business music clients generally purchase or lease audio equipment
from us that supplements the music receiving or playback equipment.
We also sell, install and maintain non-music related equipment, such as
intercom, paging and drive-thru systems. We provide these services for our
business music and other clients. Maintenance of program-receiving
53
equipment that we provide to business music clients is typically included as
part of the overall music service. Installation and maintenance of audio or
other equipment not directly related to reception of our business music service
is provided on a contractual or time-and-materials basis. In addition, we sell
electronic equipment such as proprietary tape playback equipment to our
independent affiliates to support their business music services business. All
of the equipment is manufactured by third parties, although some items bear the
Muzak(R) brand name.
Nationwide Affiliate Network
We believe our integrated nationwide network is the largest and most
comprehensive in the business music industry and enables us to pursue sales on
a nationwide basis to local, regional and national accounts. It also allows us
to provide same-day installation and service to our clients throughout the
country and to service multiple geographically disperse locations efficiently.
Our nationwide network divides the country into 168 affiliate territories, of
which 45 are served by our 33 owned affiliate offices and the remaining 123 are
served by our 75 independent affiliates. Our owned affiliates generally operate
in the larger and the more populated territories. For example, 17 of our owned
affiliate territories are located in the top 25 DMAs. We believe that
approximately 52% of revenues from the sale of our products are generated by
our owned affiliates, with the remaining 48% generated by our independent
affiliates.
Independent Affiliate Agreement Terms
Our business relationships with our independent affiliates are governed by
independent affiliate agreements that have renewable ten-year terms. Under
these agreements, the independent affiliate is granted an exclusive license to
offer and sell our Audio Architecture, Audio Marketing, Video Imaging products,
as well as other products such as Dayparting and Weekparting. The independent
affiliate is also permitted to use our registered marks within a defined
territory which allows us to promote a uniform Muzak brand image nationally.
The agreements also contain terms relating to distribution of services via our
DBS distribution system.
Pursuant to the agreements, each independent affiliate pays us a monthly fee
based on the number of businesses within its territory and a monthly
broadcasting royalty equal to approximately 10% of its billings. Typically,
this combined fee and royalty payment represents approximately $5 per month per
client location. However, this monthly royalty is subject to certain
adjustments, as we charge the independent affiliate additional amounts for on-
premise tape services and other services. We share revenues from the sale of
other broadcast business services with our independent affiliates.
In order to increase our national and regional sales in January 1999, we
began amending our independent affiliate and national sales agreements in a
number of respects. As part of these amendments we are:
. restructuring commission and other provisions to increase national and
regional sales and make these sales more profitable for our independent
affiliates and for us, and to coordinate sales, installation and service
of national and regional client locations;
. extending our product exclusivity requirements to include our Audio
Marketing and Video Imaging products in order to preclude independent
affiliates from selling products which compete with Audio Marketing and
Video Imaging;
. introducing an incentive plan to encourage independent affiliates to
increase their sales of our products and exceed an agreed-upon budget by
offering credits against future royalties to be paid to us;
. reducing the requirements for approval of future amendments to the
independent affiliate agreement from 100% to 75% of the independent
affiliates, thereby allowing us the opportunity to further amend the
agreements and introduce new programs and products more efficiently; and
. agreeing to remit amounts owed to each independent affiliate under bills
we collect for it within 60 days of our receipt of its customers'
payments in exchange for the right to withhold from those amounts any
past due fees and royalties owed by the affiliate, with clients' bad
debts charged back to the affiliate.
54
Sales and Marketing
We employ a direct sales process in marketing our products, which is focused
on securing new client contracts and renewing existing contracts. Our client
agreements typically have a noncancelable term of five years and renew
automatically for at least one additional five-year term unless specifically
terminated at the initial contract expiration date. Repeat clients comprise the
core of our account base. We believe that our high renewal rate of existing
client contracts reflects the importance of our products to our clients'
business operations.
Local salesforce
We build and maintain our local client base through a team of over 200 local
sales account executives. Local account executives typically focus on clients
that have fewer than 50 locations. For clients with more locations a regional
or national specialist is available to assist the local account executive in
securing the sale. Our local account executives are almost exclusively
compensated on commission. Each year, local account executives are given sales
goals and their progress is monitored by their General Manager. Local account
executives are provided the opportunity to attend our week-long sales training
program in Seattle and completion of this program is mandatory for local
account executives employed by our owned affiliates. Each affiliate, whether
owned or independent, is responsible for installing, servicing and billing the
local client base within its territory.
National and Regional Salesforce
We build and maintain our existing client base of national and regional
accounts primarily through our national and regional sales group headquartered
in Chicago. Our National Sales Director has a sales force of five national
account executives. The Regional Sales Director has a sales force of five
account executives each responsible for coverage of a particular region of the
United States. Both national and regional account executives are given sales
goals each year and their progress is then monitored and reviewed by their
respective Sales Director. The majority of billing for national and regional
accounts is centrally performed in our Seattle headquarters.
Continuing Training and Sales Tools
In addition to our training program for new account executives, we use
continuing education programs and update our sales tools to improve the
effectiveness of our account executives. Our newly hired training staff is
developing educational programs designed to strengthen account executives'
knowledge of our Audio Marketing and Video Imaging products. In July 1998 we
provided account executives associated with our owned affiliates with laptop
computers equipped with an interactive CD-ROM based sales tool. This software
enables us to give multimedia sales presentations that vividly demonstrate how
our products can help potential clients enhance their brand images. These
presentations also enable us to simulate the use of our products at a potential
client's business location. The CD-ROM program is also available to account
executives associated with our independent affiliates.
Recent Changes in Sales Approach
During 1998, our new senior management team designed and implemented a
number of changes in our approach to marketing and selling our Audio Marketing
and Video Imaging products. The majority of changes fall into three categories:
(a) changes in organizational structure, (b) improved sales training and
support, and (c) changes to our independent affiliate agreement.
During 1998, we reorganized our staffing in order to operate more
efficiently, to assign responsibility for our Audio Marketing and Video Imaging
products and to ensure adequate support for the future growth of such products.
Accordingly, we:
. eliminated certain positions that did not contribute to the
profitability of Audio Marketing;
55
. appointed Vice Presidents of Audio Marketing and Video Imaging who
are responsible for the day-to-day operation of our Audio Marketing
and Video Imaging divisions and their profitability; and
. created industry product positions to focus exclusively on markets
with significant future growth potential.
In order to improve our sales training and support for our Audio Marketing
and Video Imaging products, we hired a training coordinator responsible for
educating our newly hired account executives and our existing owned and
independent affiliate account executives. Our training coordinator created a
training program and sales kit for our account executives. These guides provide
account executives with the information they need to approach prospective
clients, including direct mail pieces, information on product pricing and
equipment and answers to questions most frequently asked by potential clients.
We also equipped our salespeople with demonstration CDs that illustrate our
Audio Marketing and Video Imaging products.
We also have begun amending our independent affiliate agreements with
changes that promote the sale of our Audio Marketing and Video Imaging products
throughout our nationwide network. Prior to these changes, our independent
affiliates did not actively market our Audio Marketing or Video Imaging
products. We extended our product exclusivity requirements in the amended
independent affiliate agreement to include our Audio Marketing and Video
Imaging products thus prohibiting independent affiliates from selling products
competing with Muzak's Audio Marketing and Video Imaging products.
Branding and Corporate Promotion
In addition to providing greater support for our account executives, we are
continuing to strengthen our brand image and awareness of our products through
an updated Internet web site (www.muzak.com), new marketing materials that
focus on the Muzak brand and the recent establishment of a charitable program,
the Muzak Heart and Soul Foundation, that promotes music education.
Distribution Systems
We believe that our ability to distribute our products through DBS
transmission, telephone lines, local broadcast transmission, audio and video
tapes and compact discs enables us to effectively serve our clients that have
either single or multiple locations as well as those having varied music or
service needs. At December 31, 1998, we served our music client locations
through the following means: approximately 65% through DBS transmission or
telephone lines, approximately 25% through local broadcast technology, and
approximately 10% through on-premises tapes or compact discs. From time to
time, we also evaluate new delivery systems.
Microspace and EchoStar Agreements
We transmit our 60 core music programs via DBS to clients primarily from
transponders leased from Microspace and EchoStar. Microspace provides us with
facilities for uplink transmission of our medium-powered DBS signals to the
transponders. Microspace, in turn, leases its transponder capacity on
satellites operated by third parties, including the Galaxy IIIR satellite
operated by PanAmSat through which a majority of our DBS client locations are
served. The term of our principal transponder lease with Microspace for the
Galaxy IIIR satellite is projected to end in 2004. Microspace can terminate its
agreements with us immediately upon termination of its underlying agreement
with PanAmSat. We regularly review the availability of alternate transponders.
As part of our arrangements with EchoStar, we furnish 60 music channels to
commercial subscribers and 30 music channels to residential subscribers over
EchoStar's satellite system. Pursuant to our agreements with EchoStar, EchoStar
pays us a programming fee for each of its residential subscribers and pays our
affiliates a
56
commission for sales made by EchoStar or its agents to commercial subscribers
in an affiliate's territory. We pay EchoStar a fee for uplink transmission of
music channels to our clients and we rent space at EchoStar's Cheyenne, Wyoming
uplink facility. We also pay EchoStar a royalty and combined access fees on
music programs sold by us which are distributed by EchoStar to commercial
subscribers. EchoStar has the right to cancel its distribution of the 30 music
programs to residential subscribers at any time upon 60 days notice. Upon such
cancellation, EchoStar must pay us the depreciated book value of our capital
investment in equipment to support the residential music channels and continue
to provide 2.4 megahertz of transponder capacity for our use in serving
commercial subscribers. In such event, we would only be able to provide
30 music programs and would need to lease other transponder space in order to
continue providing the other 30 music programs. We would also lose the
programming fee and commission revenue generated by EchoStar's residential
subscribers, which was approximately $1.4 million during 1998. The term of our
agreements with EchoStar is projected to end in 2010.
EchoStar has agreed that it will not provide transponder space to, enter
into or maintain distributor agreements or relationships with, or enter into
any agreements for the programming or delivery of any audio services via DBS
frequencies with, a specified group of our competitors. We have agreed that we
will not secure transponder space for, enter into or maintain distributor
agreements or relationships with, or enter into any agreement for the
programming or delivery of any of our services with any competitor of EchoStar
via DBS frequencies or with specified competitors of EchoStar via specified
frequencies.
Local Broadcast Transmission
We also use local broadcast transmission to distribute business music in
localized metropolitan areas where the concentration of client locations is
sufficiently large to justify the cost. Local area FM broadcasting is primarily
made via commercial FM radio station subcarriers and requires the use of a
separate subcarrier and an on-premises client 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 our most popular program formats.
Competition
We compete with many local, regional, national and international providers
of business music and business services. We compete on the basis of service,
the quality and variety of our music programs, versatility and flexibility, the
availability of our non-music services and, to a lesser extent, price. Even
though we are seldom the lowest-priced provider of business music in any
territory, we believe that we can compete effectively on all these bases due to
the widespread recognition of the Muzak(R) name, our nationwide network, the
quality and variety of our music programming, the talent of our audio
architects and our multiple delivery systems.
Some of our competitors may have substantially greater financial, technical,
personnel and other resources than we do. There are numerous methods by which
our existing and future competitors can deliver programming, including various
forms of DBS services, wireless cable, fiber optic cable, digital compression
over existing telephone lines, advanced television broadcast channels, DARS and
the Internet. We cannot assure you that we will be able to (a) compete
successfully with our existing or potential new competitors, (b) maintain or
increase our current market share, (c) use, or compete effectively with
competitors that adopt, new delivery methods and technologies, or (d) keep pace
with discoveries or improvements in the communications, media and entertainment
industries such that our existing technologies or delivery systems that we
currently rely upon will not become obsolete.
Music Licenses
We 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 ASCAP, BMI and SESAC.
57
The industry-wide agreement between business music providers and BMI expired
in December 1993. Since then, we have been operating under an interim agreement
pursuant to which we have continued to pay royalties at the 1993 rates and
business music providers and BMI have been negotiating the terms of a new
agreement. If an agreement is not reached, BMI may seek to have rates
determined through a rate court proceeding. The industry-wide agreement between
business music providers and ASCAP expires in May, 1999. We cannot predict what
the terms of the new BMI or ASCAP agreements with business music providers will
be or when agreements will be reached, although BMI has indicated that it is
seeking royalty rate increases and a retroactive royalty rate increase. In
1998, Old Muzak paid approximately $3.5 million in royalties to ASCAP, $1.3
million in royalties to BMI and $13,000 in royalties to SESAC. Increases in the
fees we must pay under these agreements could adversely affect our operating
margin, and, therefore, our results of operations.
The Digital Performance Right in Sound Recordings Act of 1995 (the "DPRA")
amended U.S. copyright law to create a limited performance right in sound
recordings publicly performed by means of digital audio transmission ("digital
performance right"). Our digital transmission of music to businesses are
considered public performances for the purposes of U.S. copyright law but may
qualify for an exemption from copyright liability for digital performance
rights, and any obligation to pay a royalty therefor, under the DPRA. The DPRA
exempts digital transmissions to business establishments for use in the
ordinary course of business from copyright liability, provided those
transmissions satisfy certain limitations on the number of selections from one
phonorecord or by the same featured artist, as set forth in the DPRA. We
believe our music services to businesses satisfy the conditions necessary to
qualify for the exemption. To the extent we provide digital audio services to
residential clients or consumers by means of digital transmissions, the DPRA
would require the payment of additional royalties.
The Fairness in Music Licensing Act enacted in 1998 revised the U.S.
copyright law to expand an exemption that enables certain small businesses to
transmit background music by means of radio and television. Those exemptions
are subject to limitations on the size of area of the business location in
which such transmissions are received, limitations on the number of speakers or
television sets and the restriction that the business does not charge
admission. As a result of the Fairness in Music Licensing Act, more small
businesses can transmit background music at their business locations without
paying licensing fees which may reduce the potential number of clients for our
products. However, we do not believe that small businesses could replicate our
products and services because of our extensive music library, unique product
offerings and the talents of our audio architects.
Government Regulation
We are subject to the governmental regulation by the United States and the
governments of other countries in which we provide services. Our business
prospects could be adversely affected by the adoption of new laws, policies or
regulations that change the present regulatory environment. We currently
provide music services in a few areas in the United States through 928 to 960
megahertz radio frequencies licensed by the FCC. Additionally, the FCC licenses
the radio frequencies used by satellites on which we transmit our DBS services
in the United States. If the FCC or any other person revokes or refuses to
extend any of these licenses, we would be required to seek alternative
transmission facilities. Laws, regulations and policy, or changes therein, in
other countries could also adversely affect our existing services or restrict
the growth of our business in these countries.
Properties
Our headquarters are located in Seattle, Washington and consist of
approximately 80,000 square feet. We also have 51 local sales offices in
various locations, a national sales office in Chicago, office and satellite
uplink facilities at Raleigh, North Carolina and Cheyenne, Wyoming and five
warehouses in various locations. We consider our facilities to be adequate to
meet our current and reasonably foreseeable needs.
58
Muzak's executive offices are located at 2901 Third Avenue, Suite 400,
Seattle, Washington 98121, and its telephone number is (206) 633-3000.
Employees
As of December 31, 1998, on a pro forma basis, we had 1,041 full-time and
part-time employees, of whom 275 held sales and marketing positions, 215 held
administrative positions and 551 held technical and service positions. A total
of 100 of our technical and service personnel are covered by twelve union
contracts, eleven of which are with the International Brotherhood of Electrical
Workers and one of which is with the Communications Workers of America. One of
the International Brotherhood of Electrical Workers contracts that covers 11
employees expired on December 31, 1998 and we are in the process of negotiating
a replacement agreement. The other contracts expire on dates ranging from
October 31, 1999 to April 30, 2001. All of the International Brotherhood of
Electrical Workers 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. We believe that our relationships with our
employees and the unions are good.
Divestitures
In March of 1998, as part of new management's focus on our core products, a
non-core operation which provided music sampling on the Internet was spun-off
into a wholly-owned subsidiary of Old Muzak, EAIC. In July 1998, the voting
equity interests in EAIC were sold to a related party investor, with Old Muzak
retaining an equity interest in the form of non-voting equity. Prior to the
consummation of the Merger, Old Muzak will divest itself of its remaining
ownership interests in EAIC through a distribution to Music Holdings Corp.
Legal Proceedings
We are subject to various proceedings arising in the ordinary course of
business. On March 5, 1999, one of our former employees initiated a suit
against us in the United States District Court for the Northern District of
Illinois alleging certain violations of the Americans with Disabilities Act.
While we are still in the process of evaluating this claim, we anticipate that
neither this claim nor any other proceeding to which we are a party,
individually or in the aggregate, will have a material adverse effect on our
financial condition, results of operations or liquidity.
59
MANAGEMENT
Executive Officers and Directors
Muzak is a wholly owned subsidiary of Holdings. Holdings is a limited
liability company whose affairs are governed by a Board of Directors (the
"Board"). The following table sets forth certain information about the
directors ("Directors") of Holdings and the executive officers of Muzak as of
March 31, 1999 and their ages as of March 31, 1999. Each of the Directors
identified below is currently a Director of Holdings and has served as Director
of Holdings since March 1999. The election of the Directors is subject to the
terms of the Members Agreement and the Securityholders Agreement (each, as
defined). See "Certain Relationships and Related Transactions."
Name Age Position and Offices
---- --- --------------------
William A. Boyd.......... 57 Director, President and Chief Executive Officer
Charles A. Saldarini..... 55 Chief Operating Officer
Brad D. Bodenman......... 35 Chief Financial Officer and Treasurer
Steven M. Tracy.......... 48 Senior Vice President, Owned Operations
Robert L. Cauley......... 45 Vice President, Audio Marketing
Richard Chaffee.......... 54 Vice President, Operations
D. Alvin Collis.......... 46 Vice President, Audio Architecture
Jack D. Craig............ 63 Vice President, Affiliate Sales and Development
Dino J. DeRose........... 38 Vice President, National Sales
Kenneth F. Kahn.......... 37 Vice President, Marketing
Bruce McKagan............ 48 Vice President, Video Imaging
Peni Garber.............. 36 Director, Vice President and Secretary
David W. Unger........... 42 Director and Vice President
Royce G. Yudkoff......... 43 Director and Vice President
Steven Hicks............. 48 Chairman of the Board
D. Geoff Armstrong....... 41 Director
Andrew Banks............. 44 Director
The following sets forth biographical information with respect to the
Directors of Holdings and executive officers of Muzak.
William A. Boyd is a director, has been the Chief Executive Officer of Muzak
since March 1999 and was the Chief Executive Officer of Old Muzak from 1997 to
March 1999, Chairman of the Board of Music Holdings Corp., the general partner
of the managing general partner of Old Muzak, from 1997 to March 1999 and was a
director of Music Holdings Corp. from 1996 to March 1999. From 1995 to 1996,
Mr. Boyd was a private investor. From 1982 to 1995, Mr. Boyd was owner and
president of SunCom Communications, the largest independent affiliate 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 Old Muzak's
Owned Affiliate division in 1987. Prior to owning an independent affiliate, Mr.
Boyd held various positions with Old Muzak. Mr. Boyd is the father of Robert T.
Boyd.
Charles A. Saldarini has been Chief Operating Officer of Muzak since March
1999 and was Chief Operating Officer of Old Muzak from 1997 to March 1999.
Prior to joining Old Muzak, Mr. Saldarini was employed from 1976 to 1997 by
First Union National Bank where he rose to the rank of Senior Vice President.
From 1971 to 1976, Mr. Saldarini held commercial/corporate lender positions
with Irving Trust Company.
Brad D. Bodenman has been Chief Financial Officer and Treasurer of Muzak
since March 1999 and was the Chief Financial Officer of Old Muzak from 1998 to
March 1999. Mr. Bodenman served as Old Muzak's Vice President, Finance and
Administration from 1997 to 1998, as its controller from 1996 to 1997, as its
Director of Finance from 1994 to 1996, as an Accounting Manager from 1991 to
1994, and Accounting Supervisor from 1990 to 1991 and as Senior Accountant from
1989 to 1990. Prior to joining Old Muzak, he served as a senior accountant at
Price Waterhouse.
60
Steven M. Tracy has served as Senior Vice President, Owned Operations of
Muzak since March 1999 and was the Senior Vice President, Owned Operations of
Old Muzak from 1998 to March 1999. From 1997 to 1998, Mr. Tracy was Old Muzak's
Vice President, Owned Operations, Western Region. Prior to 1997, Mr. Tracy
served as a Regional Director from 1994 to 1997, General Manager from 1988 to
1994 and Vice President/General Manager for Old Muzak from 1986 to 1988.
Robert L. Cauley has served as Vice President, Audio Marketing of Muzak
since March 1999. From 1998 to March 1999, Mr. Cauley was Old Muzak's Manager
of Audio Marketing. From 1996 to 1998, Mr. Cauley served as Operations Manager
of Audio Marketing. Mr. Cauley was Lead Coordinator-Eastern Region for Audio
Marketing from 1994 through 1996. Mr. Cauley joined Old Muzak's Audio Marketing
as an Account Coordinator in 1993. Prior to joining Old Muzak he was Media
Relations Officer for Escambia County Florida from 1987 through 1991. Mr.
Cauley was Operations Manager for EJM Broadcasting in New Orleans from 1984 to
1987. From 1979 through 1984, he was Program Director for Seaway Broadcasting.
Richard Chaffee has been Muzak's Vice President, Operations since March 1999
and was Old Muzak's Vice President, Operations from 1997 to March 1999.
Previously, Mr. Chaffee had been Vice President, Owned Affiliate Operations of
Old Muzak since 1987. Since joining Old Muzak in 1968, Mr. Chaffee has served
in both local sales offices and independent affiliate operations in New York,
Boston, Chicago, Minneapolis and Charlotte, primarily as Chief Engineer and
Operations Manager.
D. Alvin Collis has been Muzak's Vice President, Audio Architecture since
March 1999 and was Old Muzak's Vice President, Audio Architecture from 1997 to
March 1999. From 1994 to 1997, Mr. Collis served as Old Muzak's Director of
Programming. Prior to that time, he served as an audio architect at Old Muzak
from 1988 to 1994 and as an audio architect at Yesco from 1984 to 1988. From
1980 to 1983, Mr. Collis was a partner at MoDaMu (Modern Dance Music) Records.
Prior to 1980, Mr. Collis was a record producer/engineer for various record
companies.
Jack D. Craig has been Muzak's Vice President, Affiliate Sales and
Development since March 1999 and was Vice President, Affiliate Sales and
Development of Old Muzak from 1988 to March 1999. 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.
Dino J. DeRose has been Muzak's Vice President, National Sales since March
1999 and was Old Muzak's Vice President, National Sales from 1997 to March
1999. Prior to 1997, Mr. DeRose served as Director of National Sales from 1994
to 1997, as General Manager of Old Muzak's InStore Marketing Group from 1992 to
1994 and as a National Account Executive from 1988 to 1992. From 1985 to 1988,
he served as National Retail Sales Manager with SelfVision and was Regional
Sales Manager at Steidel Wine from 1982 to 1985.
Kenneth F. Kahn has been Muzak's Vice President, Marketing since March 1999
and was Old Muzak's Vice President, Marketing from 1997 to March 1999. From
1996 to 1997, Mr. Kahn served as Sales Manager for Old Muzak's New York office.
From 1995 to 1996, Mr. Kahn served as Director of Sales and Marketing at
Emphasis Music. From 1992 to 1994, he served as Vice President, Sales and
Marketing at Astroland Amusement Park. From 1989 to 1992, he was Partner and
Vice President of Phase One Distribution. From 1982 to 1989, he was Partner and
Vice President at Ezra Kahn & Associates.
Bruce McKagan has been Muzak's Vice President, Video Imaging since March
1999 and was Old Muzak's Vice President, Video Imaging from 1998 to March 1999.
From 1995 to 1998, Mr. McKagan served as Old Muzak's Director, Video Imaging.
Prior to joining Old Muzak, Mr. McKagan was Vice President of Sales, Marketing
and Programming for Sight and Sound Entertainment from 1990 to 1995. Mr.
McKagan was Vice President of Entertainment at Restaurant Enterprises Group,
Inc. from 1987 to 1990 and Director of Entertainment for Black Angus
Restaurants from 1981 to 1987.
Peni Garber is a principal and Secretary of ABRY. She joined ABRY in 1990
from Price Waterhouse, where she served as Senior Accountant in the Audit
Division from 1985 to 1990. Ms. Garber is presently a director (or the
equivalent) of Nexstar Broadcasting Group LLC, Network Music Holdings LLC,
Quorum Broadcast Holdings Inc. and Pinnacle Towers Inc. Ms. Garber graduated
summa cum laude from Bryant College.
61
David W. Unger has served as Vice President of Muzak since March 1999 and
was Executive Vice President of ACN from May 30, 1997 to March 1999. Since
1995, Mr. Unger has invested in, operated and sold communications businesses.
Prior to 1995, Mr. Unger worked for Communications Equity Associates,
Teleprompter Corp., TKR Cable Co. and as an investment banker. Mr. Unger is a
director of Avalon Cable LLC and Mercom, Inc., operators of cable television
systems. ABRY is the principal investor in Avalon Cable and Mercom.
Royce Yudkoff is the President and Managing Partner of ABRY. Prior to
joining ABRY, Mr. Yudkoff was affiliated with Bain & Company, an international
management consulting firm. At Bain, where he was a partner from 1985 through
1988, he shared significant responsibility for the firm's media practice. Mr.
Yudkoff is presently a director (or the equivalent) of various companies
including Quorum Broadcast Holdings Inc., Nexstar Broadcasting Group LLC,
Metrocall, Inc. and Pinnacle Towers Inc. Mr. Yudkoff graduated as a Baker
Scholar from the Harvard Business School and is an honors graduate of Dartmouth
College.
Steven Hicks has served as President, Chief Executive Officer and a director
of Capstar Broadcasting since June 1997, and as Chairman of the Board of
Capstar Broadcasting from June to September 1997. Previously, Mr. Hicks acted
as Chairman of the Board and Chief Executive Officer of Gulfstar
Communications, Inc. from January 1987 to July 1997 and as President and Chief
Executive Officer of SFX from November 1993 to May 1996.
D. Geoff Armstrong has served as Chief Operating Officer of Capstar
Broadcasting since 1998, and as Executive Vice President and Director of SFX
Entertainment since 1996. From 1996 to 1998, Mr. Armstrong was Executive Vice
President and Chief Operating Officer of SFX Broadcasting, Inc. From 1989 to
1996, Mr. Armstrong served as Executive Vice President, Chief Financial Officer
and Director of SFX Broadcasting. Mr. Armstrong served as Chief Financial
Officer of Sterling Communications from 1986 to 1988 and as Chief Executive
Officer from 1988 to 1989.
Andrew Banks is Chairman of ABRY Holdings, Inc. Previously, Mr. Banks was
affiliated with Bain & Company, an international management consulting firm. At
Bain, where he was a partner from 1986 until 1988, he shared significant
responsibility for the firm's media practice. Mr. Banks is presently a director
(or the equivalent) of DirecTel International, LLC and Pinnacle Towers, Inc.
Mr. Banks is a graduate of the Harvard Law School, a Rhodes Scholar holding a
Master's degree from Oxford University and a graduate of the University of
Florida.
Voting and Terms of Office
Pursuant to the Amended and Restated Limited Liability Company Agreement of
Holdings, each Director is designated as either a "Class A Director" or a
"Class B Director." Each Class A Director is entitled to three votes and each
Class B Director is entitled to one vote. Any decisions to be made by the Board
requires the approval of a majority of the votes of the Board. Following the
Merger Transactions, the authorized numbers of each class of Directors will be
three Class A Directors (Messrs. Banks and Yudkoff and Ms. Garber) and four
Class B Directors (Messrs. Hicks, Armstrong, W. Boyd and Unger). The number of
Directors may be increased or decreased by the Board. Directors hold office
until their respective successors are elected and qualified or until their
earlier death, resignation or removal.
Compensation of Directors
Directors who are not employees of Muzak do not receive any compensation for
serving on the Board. All Directors receive reimbursement of reasonable out-of-
pocket expenses incurred in connection with meetings of the Board.
Management Employment Agreements
Concurrently with the consummation of the Merger Transactions, we entered
into an employment agreement with Mr. W. Boyd and amended Mr. Unger's
employment agreement with ACN. After the Meger, we entered into employment
agreements with the other executive officers, the terms of which are the same
in all material respects. The terms of these agreements are described below.
62
William A. Boyd. Pursuant to the employment agreement dated as of March 18,
1999 by and among Mr. Boyd, Muzak and Holdings. Muzak agreed to employ Mr. Boyd
as President and Chief Executive Officer until his resignation, death,
disability or termination of employment. Under the employment agreement, Mr.
Boyd is:
. required to devote substantially all of his business time to Muzak,
. entitled to a minimum base salary of $300,000, with annual increases by
the consumer price index of the preceding year,
. eligible for a bonus, as determined by the Board, up to $150,000 with
annual increases by the consumer price index of the preceding year,
. prohibited from competing with Muzak during the term of his employment
period and for a period of twelve months thereafter, and
. prohibited from disclosing any confidential information gained during
his employment period.
If Muzak terminates Mr. Boyd's employment without "cause," Mr. Boyd will be
entitled to receive his base salary for a period of one year thereafter.
David W. Unger. Pursuant to an employment agreement dated as of October 6,
1998, as amended as of March 18, 1999, between Mr. Unger and ACN, ACN agreed to
employ Mr. Unger as Vice President until his earlier resignation, death,
disability or termination of employment. Under the agreement Mr. Unger is:
. required to devote approximately thirty-three percent of his business
time to ACN,
. entitled to receive a minimum base salary of $75,000,
. eligible to receive a bonus, as determined by the Board,
. prohibited from competing with ACN during the term of his employment
period and for six months thereafter, and
. prohibited from disclosing any confidential information gained during his
employment period.
If ACN terminates Mr. Unger's employment without "cause," Mr. Unger is
entitled to receive his base salary then in effect and benefits for a period of
six months thereafter subject to compliance with all other applicable
provisions of the Employment Agreement.
Other Executive Officers. Each of the other executive officers of Muzak and
Muzak are parties to an employment agreement the terms of which are the same in
all material respects. Each agreement may be terminated at any time by either
party. Under the agreement, the executive is:
. entitled to compensation in accordance with Muzak's employee
compensation plan, which may be amended by Muzak at any time,
. prohibited from competing with Muzak during the term of employment and
for 18 months thereafter, and
. prohibited from disclosing any confidential information gained during
the executive's employment period.
63
Executive Compensation
The following table sets forth information concerning the compensation of
Muzak's Chief Executive Officer, the predecessor's former Chief Executive
Officers and each of Muzak's four and the predecessor's other most highly
compensated executive officers, at December 31, 1998 (collectively the "Muzak
Named Executive Officers") for services in all capacities rendered to Muzak and
its subsidiaries in 1998. ACN is the predecessor entity to Muzak as a result of
the Merger on March 18, 1999 of Muzak Limited Partnership with and into ACN.
Summary Compensation Table
Long-Term
Annual Compensation Compensation
----------------------------- ------------
Securities
Name and Principal Other Annual Underlying All Other
Position Year Salary Bonus Compensation Options/SARs Compensation (1)
- ------------------ ---- -------- ------- ------------ ------------ ----------------
William A. Boyd......... 1998 $300,017 -- $42,000(2) -- $ 2,625
Chief Executive Officer
Charles A. Saldarini.... 1998 $250,014 -- $36,000(3) -- $ 2,552
President and Chief
Operating Officer
Steven M. Tracy......... 1998 $135,008 -- $ 6,000(4) -- $ 4,707
Senior Vice President,
Owned Operations
Dino J. DeRose.......... 1998 $150,217 -- -- -- $ 4,302
Vice President,
National Sales
Kenneth F. Kahn......... 1998 $115,008 $29,000 $ 6,000(4) -- $ 5,250
Vice President,
Marketing
Joseph Koff............. 1998 $116,287 -- -- -- --
Former Chief Executive
Officer and President
of ACN
Mitchell Kleinhandler... 1998 $187,500 -- -- -- --
Former Chief Executive
Officer of ACN
David Unger............. 1998 $93,750 -- -- -- $68,000(5)
Vice President of ACN
and Muzak
- --------
(1) Consists of contributions by Old Muzak to a defined contribution 401(k)
plan.
(2) Consists of a housing allowance of $36,000 and a car allowance of $6,000.
(3) Consists of a housing allowance of $30,000 and a car allowance of $6,000.
(4) Reflects a car allowance.
(5)Amounts payable in connection with the sale of Old ACN.
64
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Investor Securities Purchase Agreement
David W. Unger, ABRY III and Holdings are parties to an Investor Securities
Purchase Agreement dated as of October 6, 1998, pursuant to which Holdings sold
to certain investors, and such investors purchased from Holdings, certain Class
A Units of Holdings for $1,000 per Unit, in cash. The investors are entitled to
indemnification in certain circumstances to the extent that Holdings is
determined to have breached certain representations, warranties or agreements
contained in the Investor Securities Purchase Agreement.
Management Securities Repurchase Agreements
Mr. Unger has entered into a Management Securities Repurchase Agreement with
Holdings, pursuant to which Holdings sold to Mr. Unger and Unger purchased from
Holdings certain Incentive Units. The Incentive Units purchased by Unger are
subject to vesting over a five-year period. In addition, the Management
Securities Repurchase Agreement provides that the Incentive Units purchased
thereunder will (i) subject to certain limitations, automatically vest in full
upon a Sale (as defined in the Management Securities Repurchase Agreement) of
Holdings and (ii) cease to vest upon the date on which Mr. Unger ceases to be
employed by Holdings or any of its subsidiaries. The Management Securities
Repurchase Agreement further provides that Holdings or MEM Holdings, LLC may
repurchase the Mr. Unger's unvested units at the initial purchase price at any
time within 18 months of termination of his employment. On November 30, 1998,
ABRY III transferred all of its membership units as well as, among other
things, all of its rights and obligations under the original Members Agreement
to MEM Holdings.
Members Agreement
Holdings, MEM Holdings, Joseph Koff, Mr. Unger and Music Holdings Corp.
("MHC") are parties to an Amended and Restated Members Agreement dated as of
March 18, 1999. Pursuant to the Members Agreement, MEM Holdings, Mr. Koff, Mr.
Unger and MHC have agreed to vote their equity interests in Holdings to elect
Mr. Unger to the Board. The Members Agreement also contains (i) certain "co-
sale" rights exercisable in the event of certain sales by ABRY III, (ii)
certain "drag along" sale rights exercisable by the Board of Holdings and
holders of a majority of the then Class A Units, in the event of an Approved
Company Sale (as defined in the Members Agreement), (iii) certain preemptive
rights and (iv) certain restrictions on transfers of membership interests by
Mr. Koff, Mr. Unger, MHC and its permitted transferees. The voting, co-sale,
drag along and transfer restrictions will terminate upon the consummation of
the first to occur of (a) a Qualified Public Offering (as defined in the
Members Agreement) or (b) an Approved Company Sale.
Securityholders Agreement
Holdings, MEM Holdings and Capstar Broadcasting are parties to a
Securityholders Agreement dated as of March 18, 1999. Pursuant to the
Securityholders Agreement, MEM Holdings and Capstar Broadcasting have agreed to
vote their equity interests in Holdings to establish the composition of the
Board and elect Steven Hicks as the Chairman. The Securityholders Agreement
also contains (i) certain "co-sale" rights exercisable in the event of certain
sales by MEM Holdings or Capstar Broadcasting, respectively, (ii) certain "drag
along" sale rights exercisable by the Board of Holdings and holders of a
majority of the then Class A Units, in the event of an Approved Company Sale
(as defined in the Securityholders Agreement), (iii) certain preemptive rights,
and (iv) any transfer by MEM Holdings is subject to a right of first offer by
Capstar Broadcasting, and vice versa. The voting restrictions will terminate
upon an Approved Company Sale. The drag-along and the transfer restrictions
will terminate upon the consummation of the first to occur of (a) a Qualified
Public Offering (as defined in the Securityholders Agreement) or (b) an
Approved Company Sale. The co-sale rights will terminate upon the consummation
of the first to occur of (a) an initial public offering by Holdings or (b) an
Approved Company Sale.
65
Registration Agreement
Holdings, MEM Holdings, Mr. Koff, Mr. Unger, MHC and Capstar are
Broadcasting parties to an Amended and Restated Registration Agreement.
Pursuant to the Registration Agreement, the holders of a majority of the ABRY
Registrable Securities (as defined in the Registration Agreement) may request
registration (a "Demand Registration") under the Securities Act of all or any
portion of the ABRY Registrable Securities (i) on Form S-1 or any similar long-
form registration, (ii) on Form S-2 or S-3 or any similar short-form
registration, if available, and (iii) on any applicable form pursuant to Rule
415 under the Securities Act. The holders of a majority of Capstar Registrable
Securities (as defined in the Registration Agreement), subject to certain terms
and conditions, may request a Demand Registration under the Securities Act of
all or any portion of the Capstar Registrable Securities (i) on Form S-1 or any
similar long-form registration and (ii) on Form S-2 or S-3 or any similar
short-from registration. In addition, all holders of Registrable Securities (as
defined in the Registration Agreement) will have unlimited "piggyback"
registration rights, which, subject to certain terms and conditions, entitle
them to include their registrable equity securities in any registration of
securities by Holdings (other than in certain registrations).
Holdings is responsible for all expenses incident to its performance under
the Registration Agreement, including without limitation all registration and
filing fees, fees and expenses of compliance with securities or blue sky laws,
printing expenses, fees of counsel for Holdings and the holders of registrable
securities and all independent certified public accountants and underwriters.
ABRY Management and Consulting Services Agreement
Pursuant to a Management Agreement between ABRY and Muzak dated as of
October 6, 1998, ABRY is entitled to a management fee when, and if, it provides
certain advisory and management consulting services to the Company and based on
the amount invested by ABRY and its affiliates in ACN. Muzak anticipates that
any such management fee, if incurred, would be $300,000 per annum payable
quarterly in arrears plus reimbursable expenses, adjusted as follows. The
Management Agreement provides that beginning in 1999, any applicable management
fee should be multiplied by 1.05 raised to the power obtained by subtracting
1998 from the number of the calendar year. Either ABRY or Muzak (with the
approval of the Board) may terminate the Management Agreement by prior written
notice to the other.
ABRY Subordinated Note
In connection with the Old ACN Acquisition, ACN borrowed approximately $40.8
million from ABRY III under the ABRY Subordinated Note. During 1998, no
interest payments were made on the ABRY Subordinated Note and interest accrued
at 9% per annum. The approximately $42.4 million outstanding under the ABRY
Subordinated Note (which includes the accrued interest) was paid in full and
the commitments thereunder terminated concurrently with the closing of the
Merger Transactions. See "Use of Proceeds."
Intercompany Loans
In connection with the Old ACN Acquisition, ACN borrowed $17.6 million from
Holdings. On October 9, 1998, ACN borrowed $850,000 from Holdings to provide
working capital and for acquisitions. On November 25, 1998, ACN borrowed an
additional $210,000 from Holdings for acquisitions. Each of these loans bore
interest at market rates and did not require scheduled cash payments.
On December 4, 1998, Holdings converted these loans of $18.7 million plus
accrued interest of approximately $0.1 million into membership units of ACN.
66
Certain Family Relationships
William Boyd, Muzak's Chief Executive Officer, is the father of Robert Boyd,
the Company's Vice President, Eastern Region. Robert Boyd earned over $60,000
during 1998.
Richard Chaffee, Muzak's Vice President, Operations, is the husband of Susan
Chetwin, the Company's Vice President, Strategic Planning and Development and
is the brother of Donald Chaffee, the Company's Western Regional Operations
Manager. Both Ms. Chetwin and Donald Chaffee earned over $60,000 during 1998.
Old Muzak Option Plans
The Old Muzak Named Executive Officers held options that became fully
exercisable upon a change in control of Old Muzak. Upon the consummation of the
Merger such executives received cash payments of merger consideration with
respect to such options, estimated to be as follows: Mr. W. Boyd--$3,245,000;
Mr. Saldarini--$1,585,000, Mr. Tracy--$101,250, Mr. DeRose--$35,750 and Mr.
Kahn--$27,000.
67
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Holdings owns all of the membership units of Muzak. The following table sets
forth certain information regarding the beneficial ownership of the Class A
Units of Holdings, which are the only outstanding membership interests in
Holdings with voting rights, as of May 3, 1999, by:
. holders having beneficial ownership of more than 5% of the voting equity
interests of Holdings,
. each director of Holdings,
. each Muzak Named Executive Officer and each ACN Named Executive Officer
of Holdings, and
. all directors and executive officers as a group.
For descriptions of certain voting and other arrangements among such
holders, see "Certain Relationships and Related Transactions."
Beneficial
Ownership(a)
-----------------
Beneficial Owner Number Percentage
- ---------------- ------ ----------
ABRY Broadcast Partners III, L.P. ........................... 40,948 58.8%
18 Newbury Street
Boston, MA 02116
Capstar Broadcasting Corporation............................. 15,921 22.9%
600 Congress, Suite 1400
Austin, Texas 28701
ABRY Broadcast Partners II, L.P. ............................ 10,000 14.4%
18 Newbury Street
Boston, MA 02116
William A. Boyd.............................................. 1,155 1.7%
Charles A. Saldarini......................................... -- --
Steven M. Tracy.............................................. -- --
Joseph Koff.................................................. 534 *
Dino J. DeRose............................................... -- --
Kenneth F. Kahn.............................................. -- --
Steven Hicks................................................. -- --
Geoff Armstrong.............................................. -- --
Andrew Banks................................................. -- --
Peni Garber.................................................. -- --
David W. Unger............................................... 1,067 1.5%
Royce G. Yudkoff (b)......................................... 50,948 73.2%
Mitchell Kleinhandler........................................ -- --
All Directors and executive officers as a
group (18 persons).......................................... 69,625 100%
- --------
*Less than 1%
(a) "Beneficial ownership" generally means any person who, directly or
indirectly, has or shares voting or investment power with respect to a
security or has the right to acquire such power within 60 days. Unless
otherwise indicated, we believe that each holder has sole voting and
investment power with regard to the equity interests listed as beneficially
owned.
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(b) Mr. Yudkoff is the sole owner of the equity interests of ABRY Holdings III,
Inc., the general partner of ABRY Equity Investors, L.P., the general
partner of ABRY III. Mr. Yudkoff is also the sole owner of ABRY Holdings,
Inc., the general partner of ABRY Capital, L.P., which is the general
partner of ABRY II. As a result, Mr. Yudkoff may be deemed to beneficially
own the shares owned by ABRY III and ABRY II. The address of Mr. Yudkoff is
the address of ABRY.
Holdings Equity Structure
Muzak is a wholly-owned subsidiary of Holdings. Holdings has authorized two
classes of equity units: class A units and class B units, which we refer to
collectively as Units. Each class of the Units represents a fractional part of
the membership interests of Muzak and has the rights and obligations specified
in Holdings' Amended and Restated Limited Liability Company Agreement. To date,
certain of Holdings' class A units and class B units have been issued and are
outstanding.
Voting Units
Each class A unit is entitled to voting rights equal to the percentage such
Unit represents of the aggregate number of outstanding class A units (the
"Voting Units"). A preferred return (the "ACN Holdings Preferred Return")
accrues annually on the original issue price (the "Capital Value") of each
Voting Unit at a rate of 15% per annum. Holdings cannot pay distributions
(other than Tax Distributions) in respect of other classes of securities
(including distributions made in connection with a liquidation) until the
Capital Value and accrued Holdings Preferred Return in respect of each Voting
Unit is paid to each holder thereof (such distributions being the "Priority
Distributions"). In addition to the Priority Distributions, each holder of
Voting Units is also entitled to participate in distributions payable to the
residual common equity interests of Holdings (the "Last Priority
Distributions").
Non-Voting Units
The class B units (the "Non-Voting Units") are non-voting equity interests
in Holdings. The class B-1 units, class B-2 units and class B-3 units (the
"Incentive Units") were issued to Mr. Unger subject to the terms and conditions
set forth in his Management Securities Repurchase Agreement. The class B-4
units were issued to Music Holdings Corp. concurrently with the closing of the
Merger under the terms and conditions set forth in the Merger Agreement. On
March 25, 1999, Holdings issued a total of 7,501 Incentive Units to all of the
executive officers of Muzak except Richard Chaffee and Jack D. Craig, and to
other employees of Muzak. Each holder of the class B units is entitled to
participate in Last Priority Distributions, if any, provided that Priority
Distributions on all Voting Units shall have been paid in full.
69
LLC AGREEMENTS
Muzak and Holdings are each limited liability companies organized under the
Delaware Limited Liability Company Act, and each are governed by a limited
liability company agreement that governs the relative rights and duties of the
members.
Muzak LLC
The Amended and Restated Limited Liability Company Agreement of Muzak
provides that the business and affairs of Muzak are to be managed by or under
the direction of a Board. The Directors are to be elected by the members,
although the Board may fill a vacancy. Directors hold office until their
successors are elected and qualified or until their earlier resignation or
removal. The number of Directors may be increased or decreased by the
Directors. Each Director is entitled to one vote. The ownership interests of
Holdings in Muzak consist of 100 membership units.
This agreement, and therefore Muzak's existence, will continue in effect
until the earlier to occur of:
. the sale or other disposition by Muzak of all or substantially all of
the assets it then owns;
. the written consent of the Members holding greater than a majority of
the outstanding Common Units; or
. the entry of a decree of judicial dissolution under the Delaware Limited
Liability Company Act.
Holdings LLC
The Limited Liability Company Agreement of Holdings was amended and restated
concurrently with the closing of the Merger. Pursuant to this agreement, the
business and affairs of Holdings are managed by or under the direction of a
Board. The Directors are elected by the Members. Each Director is designated as
either a "Class A Director" or a "Class B Director." Directors hold office
until their successors are elected and qualified or until their earlier
resignation or removal. The number of Directors may be increased or decreased
by the Board. Each Class A Director is entitled to three votes and each Class B
Director is entitled to one vote. Any decisions to be made by the Board
requires the approval of a majority of votes of the Board. ABRY III, as the
beneficial owner, owns the majority of the voting membership units of Holdings,
and as such controls the policies and operations of Holdings and of Muzak
through Holdings.
This agreement, and therefore Holdings' existence, will continue in effect
until the earlier to occur of:
. the sale or other disposition by Holdings of all or substantially all of
the assets it then owns;
. a vote to dissolve Holdings by members that own units representing at
least a majority of the voting interests; or
. the entry of a decree of judicial dissolution under the Delaware Limited
Liability Company Act.
70
DESCRIPTION OF THE SENIOR CREDIT FACILITY
General. As part of the Merger Transactions, we entered into a senior credit
facility (the "Senior Credit Facility") with Goldman Sachs Credit Partners L.P.
("GSCP") as a lender and as Syndication Agent, Canadian Imperial Bank of
Commerce ("CIBOC") as a lender and as Administrative Agent, and certain other
financial institutions (the "Lenders").
The Senior Credit Facility provides for two term loans to Muzak for $30.0
million and $105.0 million ("Term Loan A" and "Term Loan B," respectively, and
collectively, the "Term Loans") and revolving loans to Muzak for up to $35.0
million (the "Revolving Loan" and, together with the Term Loans, the "Loans").
Subject to certain restrictions, the Senior Credit Facility may be used to
finance the acquisition of Merger Transactions (including the repayment of up
to $42.4 million of loans made by ABRY III) and the Electro Systems, and for
working capital and general corporate purposes of Muzak and its subsidiaries,
including transaction fees and expenses. Prior to December 31, 2000, Muzak may
request lenders to commit to additional loans of up to $50 million under a
second revolving credit facility, subject to certain conditions. The
obligations of the Lenders to provide the initial advances under the Senior
Credit Facility will be subject to the satisfaction of certain conditions.
Repayment. The Revolving Loan must be repaid on or before December 31, 2005.
Prior to that time, the Revolving Loan may be borrowed, repaid and reborrowed,
without premium or penalty subject to the satisfaction of certain conditions on
the date of any such borrowing. The Term Loans are required to be amortized in
equal semi-annual installments on June 30 and December 31 of each year,
beginning on June 30, 2000, as set forth below:
Term Loan A Term Loan B
Year Amortization Amortization
---- ------------ ------------
2000 7.5% 1.0%
2001 12.5% 1.0%
2002 17.5% 1.0%
2003 20.0% 1.0%
2004 20.0% 15.0%
2005 22.5% 25.0%
2006 N/A 56.0%
------ ------
Totals: 100.0% 100.0%
Prepayments of Term Loan B other than scheduled payments will be subject to
prepayment penalties of 2% of the amount of the repayment, within the first
year, or 1% of the amount of the repayment during the second year. In addition,
the Senior Credit Facility provides for mandatory repayments with corresponding
permanent reductions on Revolving Loan commitments of any outstanding
borrowings, subject to certain exceptions) out of any proceeds received from a
sale of assets, net cash proceeds of permitted debt issuances, net cash
proceeds from insurance recovery and condemnation events and, beginning
December 31, 2000 the Senior Credit Facility requires certain annual excess
cash repayments.
Security; Guaranty. The obligations of the Company under the Senior Credit
Facility are guaranteed by Holdings and will be guaranteed by each of Muzak's
future direct and indirect domestic subsidiaries. The obligations of Muzak
under the Senior Credit Facility and each of the guarantors under its guarantee
is or will be secured by first priority security interests in all material
intellectual property of Muzak and the guarantors, all other property and
assets (other than non-material real property) of Muzak and the guarantors, and
a pledge of all of the membership units, or stock, as applicable, of Muzak and
each guarantor.
Interest. At Muzak's option, the interest rates per annum applicable to the
loans under the Senior Credit Facility will be a fluctuating rate of interest
measured by reference to one or a combination, at Muzak's election, of the
following rates plus the applicable borrowing margin:
71
. the greater of (a) CIBOC's announced prime commercial lending rate or
(b) the federal funds rate plus 0.5% (the "Base Rate"); or
. LIBOR, adjusted for reserves.
The applicable borrowing margin for Base Rate borrowings under Term Loan A
and the Revolving Loan ranges from 1.0% if the Company's Total Leverage Ratio
is less than 3.75:1 to 2.0% if the Company's Total Leverage Ratio is greater
than or equal to 5.25:1. The applicable borrowing margin for LIBOR loans under
Term Loan A and the Revolving Loan ranges from 2.0% if the Company's Total
Leverage Ratio is less than 3.75:1 to 3.0% if the Company's Total Leverage
Ratio is greater than or equal to 5.25:1. The applicable margin for borrowings
under Term Loan B is 2.50% for all Base Rate borrowings and 3.50% for all
LIBOR borrowings.
Fees. Muzak has agreed to pay certain fees in connection with the Senior
Credit Facility, including: (i) arrangement fees; (ii) agency fees; and (iii)
commitment fees. Commitment fees range from 0.375% if the Company's Leverage
Ratio is less than or equal to 4:1 to 0.625% if Muzak's Leverage Ratio is
greater than or equal to 5:1.
Covenants. The Senior Credit Facility contains negative covenants which,
among other things, restrict the ability of Holdings, Muzak and its
subsidiaries (subject to certain exceptions) to incur indebtedness, incur
liens, issue guarantees, transact with affiliates, declare or pay dividends or
redeem or repurchase capital stock, make loans and investments, repay other
debt, engage in other lines of business, engage in mergers, acquisitions, sale
and leaseback transactions and asset sales, acquire assets, stock, or debt
securities of any person, have additional subsidiaries, amend certain material
agreements, including the Indenture and make capital expenditures. The Senior
Credit Facility also requires Muzak and its restricted subsidiaries to satisfy
certain customary affirmative covenants, including financial reporting, notice
provisions, books and records, inspection of property, maintenance of property
and insurance, maintenance of corporate rights, maintain interest rate
protection, payment of taxes, contributions from Holdings to Muzak, cash
management systems, pledges of additional collateral, security and guarantees,
use of proceeds, to make certain representations and warranties, including
Year 2000 preparedness and to make certain customary indemnifications to the
Lenders and the agents under the Senior Credit Facility.
The Senior Credit Facility further requires Muzak to maintain compliance
with four financial covenants:
. Total Leverage Ratio: restricts the amount of total debt less amounts
outstanding under certain letters of credit as a ratio of annualized
operating cash flow for the most recent fiscal quarter, adjusted for
acquisitions, dispositions, exchanges and franchise terminations;
. Senior Leverage Ratio: restricts the amount of senior debt as a ratio
of annualized operating cash flow for the most recent fiscal quarter,
adjusted for acquisitions, dispositions, exchanges and franchise
terminations;
. Interest Coverage Ratio: establishes minimum amounts of operating cash
flow as a ratio of consolidated interest expense; and
. Fixed Charge Coverage Ratio: establishes minimum amounts of operating
cash flow as a ratio of fixed charges.
Events of Default. The Senior Credit Facility contains customary events of
default, including payment defaults, breach of representations and warranties,
covenant defaults, certain events of bankruptcy and insolvency, ERISA
violations, judgment defaults, cross-default to certain other indebtedness,
and a change in control of Holdings or Muzak.
72
DESCRIPTION OF THE NOTES
The Issuers have issued the existing notes and will issue the exchange notes
(collectively, the "Notes") under an Indenture, dated as of March 18, 1999 by
and among themselves, the Guarantors and State Street Bank and Trust Company,
as trustee. The terms of the 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 "TIA") as in effect on the date of the Indenture. The
Notes are subject to all such terms, and holders of the Notes are referred to
the indenture and the TIA for a statement of them. The following is a summary
of the material terms and provisions of the Notes. This summary does not
purport to be a complete description of the Notes and is subject to the
detailed provisions of, and qualified in its entirety by reference to, the
Notes and the indenture (including the definitions contained therein). A copy
of the form of indenture may be obtained from the Issuers by any holder or
prospective investor upon request. Definitions relating to certain capitalized
terms are set forth under "--Certain Definitions." Capitalized terms that are
used but not otherwise defined herein have the meanings ascribed to them in the
Indenture and such definitions are incorporated herein by reference.
General
The Notes are limited in aggregate principal amount to $150 million of which
$115 million in aggregate principal amount was issued in the initial offering.
Additional Notes in an aggregate principal amount of up to $35 million may be
issued from time to time, subject to the limitations set forth under "--Certain
Covenants--Limitation on Additional Indebtedness" below. The Notes are general
unsecured joint and several obligations of the Issuers, subordinated in right
of payment to Senior Indebtedness of each Issuer and senior in right of payment
to any current or future subordinated indebtedness of each Issuer.
The Guarantors, together with each other Restricted Subsidiary of Muzak,
other than Capital Corp., which guarantees payment of the Notes pursuant to the
covenant described under "--Certain Covenants--Limitation on Creation of
Subsidiaries." will jointly and severally guarantee the Notes, on a senior
unsecured subordinated basis, as to payment of principal, premium, if any, and
interest.
Maturity, Interest and Principal
The Notes will mature on March 15, 2009. The Notes will bear interest at a
rate of 9.875% per annum from the Issue Date until maturity. Interest is
payable semi-annually in arrears on each March 15 and September 15 commencing
September 15, 1999, to holders of record of the Notes at the close of business
on the immediately preceding March 1 and September 1, respectively. The
interest rate on the Notes is subject to increase, and such Additional Interest
will be payable on the payment dates set forth above, in certain circumstances,
if the Notes (or other securities substantially similar to the Notes) are not
registered with the Commission within the prescribed time periods. See
"Exchange Offer; Registration Rights."
Optional Redemption
The Issuers may redeem the Notes at their option in whole at any time or in
part from time to time on or after March 15, 2004 at the following redemption
prices (expressed as percentages of the principal amount thereof), together, in
each case, with accrued and unpaid interest, if any, to the redemption date, if
redeemed during the twelve-month period beginning on March 15 of each year
listed below:
Year Percentage
---- ----------
2004........................................................... 104.938%
2005........................................................... 103.292%
2006........................................................... 101.646%
2007 and thereafter............................................ 100.000%
Notwithstanding the foregoing, the Issuers may redeem in the aggregate up to
35% of the original principal amount of Notes at any time and from time to time
prior to March 15, 2002 at a redemption price
73
equal to 109.875% of the aggregate principal amount so redeemed, plus accrued
and unpaid interest, if any, to the redemption date out of the net cash
proceeds of one or more Equity Offerings; provided that
(1) at least 65% of the principal amount of Notes originally issued
remains outstanding immediately after the occurrence of any such redemption
and
(2) any such redemption occurs within 60 days following the closing of
any such Equity Offering.
In the event of a redemption of fewer than all of the Notes, the trustee
shall select the Notes to be redeemed in compliance with the requirements of
the principal national securities exchange, if any, on which such Notes are
listed, or if such Notes are not then listed on a national securities
exchange, on a pro rata basis, by lot or in such other manner as the Trustee
shall deem fair and equitable. The Notes will be redeemable in whole or in
part upon not less than 30 nor more than 60 days' prior written notice, mailed
by first class mail to a holder's last address as it shall appear on the
register maintained by the Registrar of the Notes. On and after any redemption
date, interest will cease to accrue on the Notes or portions thereof called
for redemption.
Subordination
The payment of all Obligations on the Notes is, to the extent and in the
manner provided in the Indenture, subordinated in right of payment to the
prior indefeasible payment and satisfaction in full in cash of all existing
and future Senior Indebtedness of each Issuer. As of December 31, 1998, after
giving pro forma effect to the Transactions, the principal amount of
outstanding Senior Indebtedness of the Issuers, on a consolidated basis, would
have been $145.4 million.
In the event of any
(1) bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to any Issuer or to its assets, whether voluntary or
involuntary;
(2) liquidation or dissolution or other winding-up of any Issuer,
whether voluntary or involuntary;
(3) assignment by any Issuer for the benefit of its creditors; or
(4) marshalling of assets or liabilities of any Issuer
(all of the foregoing events described in clauses (1) through (4) referred to
herein individually as a "Bankruptcy Proceeding" and collectively as
"Bankruptcy Proceedings"), the holders of Senior Indebtedness of such Issuer
will be entitled to receive indefeasible payment and satisfaction in full in
cash of all amounts due on or in respect of all Senior Indebtedness (including
interest after the commencement of any such proceedings at the rate specified
in the applicable Senior Indebtedness, whether or not an allowed claim) of
such Issuer before the holders of the Notes are entitled to receive or retain
any payment or distribution of any kind (other than a payment or distribution
from the trust described under "--Defeasance and Covenant Defeasance") on
account of the Notes or any Obligations under the Notes, the Registration
Rights Agreement or the Indenture. By reason of such subordination, in the
event of any such Bankruptcy Proceeding, creditors of an Issuer who are
holders of Senior Indebtedness may recover more, ratably, than other creditors
of such Issuer, including holders of the Notes.
Upon the occurrence of a Payment Default on Senior Indebtedness, no payment
or distribution (other than a payment or distribution from the trust described
under "--Defeasance and Covenant Defeasance") of any kind or character
(including, without limitation, cash, property and any payment or distribution
which may be payable or deliverable by reason of the payment of any other
indebtedness of any Issuer being subordinated to the payment of the Notes by
such Issuer) may be made by or on behalf of such Issuer or any Restricted
Subsidiary of such Issuer, including, without limitation, by way of set-off or
otherwise, for or on account of the Notes or any Obligations under the Notes,
the Registration Rights Agreement or the Indenture, or for or on account of
the purchase, redemption or other acquisition of any Notes or any Obligations
under the Notes, the Registration Rights Agreement or the Indenture, and
neither the Trustee nor any holder or owner of any Notes shall take or receive
from such Issuer or any Restricted Subsidiary of such Issuer, directly or
indirectly in any
74
manner, payment in respect of all or any portion of Notes or any Obligations
under the Notes, the Registration Rights Agreement or the Indenture commencing
on the date of receipt by the Trustee of written notice from the representative
of the holders of Senior Indebtedness (the "Representative") of the occurrence
of such Payment Default, and in any such event, such prohibition shall continue
until such Payment Default is cured, waived in writing or otherwise ceases to
exist. At such time as the prohibition set forth in the preceding sentence
shall no longer be in effect, subject to the provisions of the following
paragraph, such Issuer shall resume making any and all required payments in
respect of the Notes, including any missed payments.
Upon the occurrence of a Non-Payment Event of Default on Designated Senior
Indebtedness, no payment or distribution (other than a payment or distribution
made from the trust described under "--Defeasance and Covenant Defeasance") of
any kind or character (including, without limitation, cash, property and any
payment or distribution which may be payable or deliverable by reason of the
payment of any other indebtedness of any Issuers being subordinated to the
payment of the Notes by such Issuer) may be made by such Issuer or any
Restricted Subsidiary of such Issuer, including, without limitation, by way of
set-off or otherwise, for or on account of the Notes or any Obligations under
the Notes, the Registration Rights Agreement or the Indenture, or for or on
account of the purchase, redemption or other acquisition of any Notes or any
Obligations under the Notes, the Registration Rights Agreement or the
Indenture, and neither the Trustee nor any holder or owner of any Notes shall
take or receive from such Issuer or any Restricted Subsidiary of such Issuer,
directly or indirectly in any manner, payment in respect of all or any portion
of the Notes or any Obligations under the Notes, the Registration Rights
Agreement or the Indenture for a period (a "Payment Blockage Period")
commencing on the date of receipt by the Trustee of written notice from the
Representative of such Non-Payment Event of Default unless and until (subject
to any blockage of payments that may then be in effect under the preceding
paragraph) the earliest of
(1) more than 179 days shall have elapsed since receipt of such written
notice by the Trustee,
(2) such Non-Payment Event of Default shall have been cured or waived in
writing or otherwise shall have ceased to exist or such Designated Senior
Indebtedness shall have been indefeasibly paid in full or
(3) such Payment Blockage Period shall have been terminated by written
notice to such Issuer or the Trustee from such Representative,
after which, in the case of clause (1), (2) or (3), such Issuer shall resume
making any and all required payments in respect of the Notes, including any
missed payments. Notwithstanding any other provision of the Indenture, in no
event shall a Payment Blockage Period commenced in accordance with the
provisions of the Indenture described in this paragraph extend beyond 179 days
from the date of the receipt by the Trustee of the notice referred to above
(the "Initial Blockage Period"). Any number of additional Payment Blockage
Periods may be commenced during the Initial Blockage Period; provided, however,
that no such additional Payment Blockage Period shall extend beyond the Initial
Blockage Period. After the expiration of the Initial Blockage Period, no
Payment Blockage Period may be commenced until at least 180 consecutive days
have elapsed from the last day of the Initial Blockage Period. Notwithstanding
any other provision of the Indenture, no Non-Payment Event of Default with
respect to Designated Senior Indebtedness which existed or was continuing on
the date of the commencement of any Payment Blockage Period initiated by the
Representative shall be, or be made, the basis for the commencement of a second
Payment Blockage Period initiated by the Representative, whether or not within
the Initial Blockage Period, unless such Non-Payment Event of Default shall
have been cured or waived for a period of not less than 90 consecutive days.
In the event that, notwithstanding the foregoing, the Trustee or any holder
of Notes receives any payment or distribution of assets of such Issuer of any
kind, whether in cash, property or securities, including, without limitation,
by way of set-off or otherwise, in respect of the Notes or any Obligations
under the Notes, the Registration Rights Agreement or the Indenture, before all
Senior Indebtedness of such Issuer is indefeasibly paid and satisfied in full
in cash, then such payment or distribution (other than a payment or
distribution from the trust described under "--Defeasance and Covenant
Defeasance") will be held by the recipient in trust for
75
the benefit of holders of Senior Indebtedness and will be immediately paid over
or delivered to the holders of Senior Indebtedness or their representative or
representatives to the extent necessary to make payment in full of all Senior
Indebtedness remaining unpaid, after giving effect to any concurrent payment or
distribution, or provision therefor, to or for the holders of Senior
Indebtedness.
Each Guarantee will, to the extent set forth in the Indenture, be
subordinated in right of payment to the prior indefeasible payment in full of
all Senior Indebtedness of the respective Guarantor and will be subject to the
rights of holders of Designated Senior Indebtedness of such Guarantor to
initiate blockage periods, upon terms substantially comparable to the
subordination of the Notes to all Senior Indebtedness of the Issuers.
If the Issuers or any Guarantor fail to make any payment on the Notes or any
Guarantee, as the case may be, when due or within any applicable grace period,
whether or not on account of payment blockage provisions, such failure would
constitute an Event of Default under the Indenture and would enable the holders
of the Notes to accelerate the maturity thereof. See "--Events of Default."
A holder of Notes by its acceptance of Notes agrees to be bound by such
provisions and authorizes and expressly directs the Trustee, on its behalf, to
take such action as may be necessary or appropriate to effectuate the
subordination provided for in the Indenture and appoints the Trustee its
attorney-in-fact for such purpose.
Certain Covenants
The Indenture contains, among others, the following covenants:
Limitation on Additional Indebtedness
Muzak will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, incur (as defined) any Indebtedness (including Acquired
Indebtedness); provided that if no Default or Event of Default shall have
occurred and be continuing at the time or as a consequence of the incurrence of
such Indebtedness, the Issuers and any of the Guarantors may incur Indebtedness
(including Acquired Indebtedness) if after giving effect to the incurrence of
such Indebtedness and the receipt and application of the proceeds thereof,
Muzak's Consolidated Leverage Ratio is less than 6.5 to 1 if such Indebtedness
is incurred on or before March 15, 2001 and 6.0 to 1 if such Indebtedness is
incurred thereafter.
Notwithstanding the foregoing, Muzak and its Restricted Subsidiaries may
incur Permitted Indebtedness. For purposes of determining compliance with this
covenant, in the event that an item of proposed Indebtedness meets the criteria
of more than one of the categories of Permitted Indebtedness as of the date of
incurrence thereof or is entitled to be incurred pursuant to the first
paragraph of this covenant as of the date of incurrence thereof, Muzak shall,
in its sole discretion, classify or reclassify such item of Indebtedness in any
manner that complies with this covenant. Accrual of interest, the accretion of
accreted value and the payment of interest in the form of additional
Indebtedness will not be deemed to be an incurrence of Indebtedness for
purposes of this covenant and the payment of dividends on Disqualified Capital
Stock in the form of additional shares of the same class of Disqualified
Capital Stock will not be deemed an issuance of Disqualified Capital Stock.
Limitation on Other Senior Subordinated Indebtedness
Muzak will not, and will not permit any of the Guarantors to, directly or
indirectly, incur, contingently or otherwise, any Indebtedness (other than the
Notes and the Guarantees, as the case may be) that is both (i) subordinated in
right of payment to any Senior Indebtedness of Muzak or any of the Guarantors,
as the case may be, and (ii) senior in right of payment to the Notes and the
respective Guarantee of any such Guarantor, as the case may be. For purposes of
this covenant, Indebtedness is deemed to be senior in
76
right of payment to the Notes or the Guarantees, as the case may be, if it is
not explicitly subordinated in right of payment to Senior Indebtedness at least
to the same extent as the Notes and the Guarantees, as the case may be, are
subordinated to such Senior Indebtedness.
Limitation on Restricted Payments
Muzak will not make, and will not permit any of its Restricted Subsidiaries
to, directly or indirectly, make, any Restricted Payment, unless:
(1) no Default or Event of Default shall have occurred and be continuing
at the time of or immediately after giving effect to such Restricted
Payment;
(2) immediately after giving pro forma effect to such Restricted
Payment, Muzak could incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) under "--Limitation on Additional Indebtedness"
above; and
(3) immediately after giving effect to such Restricted Payment, the
aggregate of all Restricted Payments declared or made after the Issue Date
does not exceed the sum of
(a) 100% of Muzak's Cumulative EBITDA (or, in the event that such
Cumulative EBITDA shall be a deficit, minus 100% of such deficit) minus
1.4 times Muzak's Cumulative Consolidated Interest Expense,
(b) 100% of the aggregate net cash proceeds received by Muzak from
the issue or sale after the Issue Date of Capital Stock (other than
Disqualified Capital Stock or Capital Stock of the Company issued to
any Subsidiary of the Company) of the Company or any Indebtedness or
other securities of Muzak convertible into or exercisable or
exchangeable for Capital Stock (other than Disqualified Capital Stock)
of Muzak which have been so converted, exercised or exchanged, as the
case may be,
(c) without duplication of any amounts included in clause (3)(b)
above, 100% of the aggregate net proceeds (including the fair market
value of property other than cash) received by Muzak from any equity
contribution from a holder of Muzak's Capital Stock, excluding, in the
case of clauses (3)(b) and (c), (i) any net proceeds from an Equity
Offering to the extent used to redeem the Notes and (ii) any net
proceeds directly or indirectly received in connection with the Pending
Capstar Acquisition, and
(d) without duplication, the sum of
(i) the aggregate amount returned in cash on or with respect to
Investments (other than Permitted Investments) made subsequent to
the Issue Date whether through interest payments, principal
payments, dividends or other distributions;
(ii) the net proceeds received by Muzak or any of its Restricted
Subsidiaries from the disposition, retirement or redemption of all
or any portion of such Investments (other than to a Subsidiary of
Muzak); and
(iii) upon redesignation of an Unrestricted Subsidiary as a
Restricted Subsidiary, the fair market value of the net assets of
such Subsidiary;
provided, however, that the sum of clauses (i), (ii) and (iii) above shall not
exceed the aggregate amount of all such Investments made subsequent to the
Issue Date.
For purposes of determining under clause (3) above the amount expended for
Restricted Payments, cash distributed shall be valued at the face amount
thereof and property other than cash shall be valued at its fair market value.
The provisions of this covenant shall not prohibit
(1) the payment of any distribution within 60 days after the date of
declaration thereof, if at such date of declaration such payment would
comply with the provisions of the indenture,
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(2) the repurchase, redemption, defeasance or other acquisition or
retirement of any shares of Capital Stock of Muzak or of Indebtedness that
is subordinated to the Notes by conversion into, or by or in exchange for,
shares of Capital Stock of Muzak (other than Disqualified Capital Stock),
or out of the net cash proceeds of the substantially concurrent sale (other
than to a Subsidiary of the Company) of other shares of Capital Stock of
Muzak (other than Disqualified Capital Stock),
(3) the redemption, repurchase, defeasance, retirement or other
acquisition of Indebtedness of Muzak that is subordinated to the Notes in
exchange for, by conversion into, or out of the net cash proceeds of a
substantially concurrent sale or incurrence of, Indebtedness of Muzak
(other than any Indebtedness owed to a Subsidiary) that is Refinancing
Indebtedness,
(4) the retirement of any shares of Disqualified Capital Stock of Muzak
by conversion into, or by exchange for, shares of Disqualified Capital
Stock of Muzak, or out of the net cash proceeds of the substantially
concurrent sale (other than to a Subsidiary of the Company) of other shares
of Disqualified Capital Stock of Muzak,
(5) the payment of any dividend or distribution to the extent necessary
to permit direct or indirect beneficial owners of shares of Capital Stock
of Muzak to pay federal, state or local income tax liabilities arising from
income of the Company and attributable to them solely as a result of Muzak
(and any intermediate entity through which the holder owns such shares)
being a limited liability company, partnership or similar entity for
federal income tax purposes (collectively "Permitted Tax Distributions"),
(6) the repurchase, redemption or other acquisition or retirement for
value of any Capital Stock of Muzak or the payment of a dividend to
Holdings to effect the repurchase, redemption or other acquisition or
retirement for value of Holdings' Capital Stock that is held by any current
or former members of the management of Muzak (or any of its Restricted
Subsidiaries) pursuant to any management equity subscription or purchase
agreement, members agreement, securityholders agreement or stock option
agreement or similar agreement, in an aggregate amount not to exceed $2
million in any fiscal year (which amount shall be increased by the amount
of any proceeds to Muzak from (x) without duplication of any amounts
included in clauses 3(b) and (c) of the first paragraph above, sales of
Capital Stock (other than Disqualified Capital Stock) of the Company or
Holdings (which net proceeds have been contributed by Muzak) to management
or other employees subsequent to the Issue Date and (y) any "key-man" life
insurance policies which are used to make such redemptions or repurchases);
provided, that the cancellation of Indebtedness owing to Muzak from
management or other employees of Muzak or any of its Restricted
Subsidiaries in connection with a repurchase of Capital Stock of the
Company will not be deemed to constitute a Restricted Payment under the
Indenture,
(7) the making of distributions, loans or advances in an amount not to
exceed $1 million in any calendar year sufficient to permit Holdings to pay
the ordinary operating expenses of Holdings (including, without limitation,
directors' fees, indemnification obligations, professional fees and
expenses) relating to Holdings' ownership of Capital Stock of Muzak,
(8) payments or distributions to Holdings on and after September 15,
2004 in an amount sufficient to permit Holdings to make cash interest
payments when due to holders of Holdings' Senior Discount Notes in
accordance with the terms of the Senior Discount Notes as in effect on the
Issue Date or such earlier time as Holdings shall become obligated to pay
additional interest thereon pursuant to the registration rights agreement
related thereto as in effect on the Issue Date,
(9) any payments or distributions or other transactions to be made in
connection with the Merger Transactions, the Electro Systems Acquisition or
the Pending Capstar Acquisition, including the repayment of loans made by
ABRY III (including, in each case, fees and expenses incurred in connection
therewith),
(10) Investments received in connection with an Asset Sale that complies
with the covenant described under "--Limitation on Certain Asset Sales"
below,
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(11) payments or distributions to dissenting stockholders pursuant to
transactions permitted under the terms of the indenture,
(12) repurchases of Capital Stock deemed to occur upon the exercise of
stock options if such Capital Stock represents a portion of the exercise
price thereof,
(13) payments to enable the Company or Holdings to make payments to
holders of their Capital Stock in lieu of issuance of fractional shares of
their Capital Stock,
(14) payment of principal and interest on funds on the ABRY Subordinated
Debt in accordance with the terms thereof,
(15) any dividend or distribution made so long as concurrently therewith
a capital contribution in an equal amount is made to the Company, and
(16) other Restricted Payments in an aggregate amount not to exceed $5
million.
In calculating the aggregate amount of Restricted Payments made subsequent
to the Issue Date for purposes of clause (3) of the first paragraph above,
amounts expended pursuant to clauses (1), (2), (8) and (15) of the immediately
preceding paragraph shall be included in such calculation.
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 described above were computed, which calculations may
be based upon the Issuers' latest available financial statements, and (other
than with respect to any Restricted Payment permitted under clauses (5), (6)
and (7)) that no Default or Event of Default has occurred and is continuing
and no Default or Event of Default will occur immediately after giving effect
to any such Restricted Payments.
Limitation on Investments
Muzak will not, and will not permit any of its Restricted Subsidiaries to,
make any Investment other than
(1) a Permitted Investment or
(2) an Investment that is made after the Issue Date as a Restricted
Payment in compliance with the "Limitation on Restricted Payments"
covenant.
Limitation on Liens
Muzak will not, and will not permit any of its Restricted Subsidiaries to,
create, incur or otherwise cause or suffer to exist or become effective any
Liens of any kind (other than Permitted Liens) upon any property or asset of
Muzak or any of its Restricted Subsidiaries or any shares of Capital Stock or
Indebtedness of any Restricted Subsidiary of Muzak which owns property or
assets, now owned or hereafter acquired, unless
(1) if such Lien secures Indebtedness which is subordinated to the
Notes, any such Lien shall be subordinated to any Lien granted to the
holders of the Notes to the same extent as such Indebtedness is
subordinated to the Notes and
(2) in all other cases, the Notes are equally and ratably secured.
Limitation on Transactions with Affiliates
Muzak will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, enter into or suffer to exist any transaction or
series of related transactions (including, without limitation, the sale,
purchase, exchange or lease of assets, property or services) with any
Affiliate (each an "Affiliate
79
Transaction") or extend, renew, waive or otherwise modify the terms of any
Affiliate Transaction entered into prior to the Issue Date unless
(1) such Affiliate Transaction is between or among Muzak and its
Restricted Subsidiaries; or
(2) the terms of such Affiliate Transaction are at least as favorable as
the terms which could be obtained by Muzak or such Restricted Subsidiary,
as the case may be, in a comparable transaction made on an arm's-length
basis between unaffiliated parties.
In any Affiliate Transaction (or any series of related Affiliate
Transactions which are similar or part of a common plan) involving an amount or
having a fair market value in excess of $2.5 million which is not permitted
under clause (1) above, Muzak must obtain a resolution of the Board of
Directors of Muzak certifying that such Affiliate Transaction complies with
clause (2) above. In any Affiliate Transaction (or any series of related
Affiliate Transactions which are similar or part of a common plan) involving an
amount or having a fair market value in excess of $10 million which is not
permitted under clause (1) above, Muzak must obtain a favorable written opinion
as to the fairness of such transaction or transactions, as the case may be,
from an Independent Financial Advisor.
The foregoing provisions will not apply to
(1) any Restricted Payment that is not prohibited by the provisions
described under "--Limitation on Restricted Payments" above,
(2) reasonable fees and compensation paid to, and indemnity provided on
behalf of, officers, Directors, employees or consultants of Muzak or any
Restricted Subsidiary of Muzak as determined in good faith by Muzak's Board
of Directors or senior management,
(3) any agreement as in effect as of the Issue Date or any amendment
thereto or any transaction contemplated thereby (including pursuant to any
amendment thereto) in any replacement agreement thereto so long as any such
amendment or replacement agreement is not more disadvantageous to the
holders in any material respect than the original agreement as in effect on
the Issue Date,
(4) transactions effected as part of a Qualified Securitization
Transaction,
(5) any employment agreement entered into by Muzak or any of its
Restricted Subsidiaries in the ordinary course of business, and advances to
employees for moving, entertainment and travel expenses, drawing accounts
and similar expenditures in the ordinary course of business,
(6) the existence of, or the performance by Muzak or any of its
Restricted Subsidiaries of its obligations under the terms of, any
securityholders agreement (including any registration rights agreement or
purchase agreement related thereto) to which it is a party as of the Issue
Date and any similar agreements which it may enter into thereafter;
provided, however, that the existence of, or the performance by Muzak or
any of its Restricted Subsidiaries of obligations under, any future
amendment to any such existing agreement or under any similar agreement
entered into after the Issue Date shall only be permitted by this clause
(6) to the extent that the terms of any such amendment or new agreement are
not otherwise disadvantageous to the Holders of the Notes in any material
respect,
(7) transactions permitted by, and complying with, the provisions
described under "--Merger, Consolidation and Sale of Assets" below,
(8) payments of principal and interest on the ABRY Subordinated Debt in
accordance with the terms thereof,
(9) transactions with customers, clients, suppliers, joint venture
partners or purchasers or sellers of goods or services, in each case in the
ordinary course of business (including, without limitation, pursuant to
joint venture agreements) and otherwise in compliance with the terms of the
Indenture which are fair to Muzak or its Restricted Subsidiaries, in the
reasonable determination of the Board of Directors of
80
Muzak or the senior management thereof, or are on terms at least as
favorable as might reasonably have been obtained at such time from an
unaffiliated party,
(10) all transactions associated with the Merger Transactions and the
Pending Capstar Acquisition, including the repayment of loans made by ABRY
III,
(11) transactions pursuant to the ABRY Management Agreement or pursuant
to the terms of any amendment thereto or restatement thereof which terms
are not more disadvantageous to the holders in any material respect than
the terms of such agreement as in effect on the Issue Date as determined in
good faith by the Board of Directors of Muzak and evidenced by a board
resolution, and
(12) with regard to the requirement to obtain the opinion of an
Independent Financial Advisor only, the issuance of Capital Stock of Muzak;
provided that said issuance has been approved by the Board of Directors of
Muzak and the board resolution described in the immediately preceding
paragraph has been delivered to the Trustee.
Limitation on Creation of Subsidiaries
Muzak will not create or acquire, and will not permit any of its Restricted
Subsidiaries to create or acquire, any Subsidiary other than
(1) a Restricted Subsidiary existing as of the Issue Date,
(2) a Restricted Subsidiary that is acquired or created after the Issue
Date, provided, however, that each Restricted Subsidiary (other than any
Foreign Restricted Subsidiary or Capital Corp.) acquired or
created pursuant to this clause (2) shall have executed a Guarantee,
satisfactory in form and substance to the Trustee (and with such
documentation relating thereto as the Trustee shall require, including,
without limitation a supplement or amendment to the Indenture and opinions
of counsel as to the enforceability of such Guarantee), pursuant to which
such Restricted Subsidiary will become a Guarantor, or
(3) an Unrestricted Subsidiary.
As of the Issue Date, Muzak will have no Restricted Subsidiaries, other
than the Guarantors and Capital Corp. See "Description of the Notes--General."
Limitation on Certain Asset Sales
Muzak will not, and will not permit any of its Restricted Subsidiaries to,
consummate an Asset Sale unless
(1) Muzak or such Restricted Subsidiary, as the case may be, receives
consideration at the time of such sale or other disposition at least equal
to the fair market value of the assets sold or otherwise disposed of (as
determined in good faith by the Board of Directors of Muzak, and evidenced
by a board resolution);
(2) not less than 75% of the consideration received by Muzak or such
Restricted Subsidiary, as the case may be, is in the form of cash or Cash
Equivalents or a controlling interest in a Person whose assets are useful
to Muzak, or any combination thereof, except to the extent to which Muzak
is undertaking a Permitted Asset Swap; provided that the amount of
(a) any liabilities (as shown on Muzak's or such Restricted
Subsidiary's most recent balance sheet), of Muzak or any of its
Restricted Subsidiaries (other than contingent liabilities and
liabilities that are by their terms subordinated to the Notes) that are
assumed by the transferee of any such assets shall be deemed to be cash
for purposes of this clause (2); and
(b) any securities, notes or other obligations received by Muzak or
any such Restricted Subsidiary from such transferee that are promptly
converted by Muzak or such Restricted Subsidiary into cash (to the
extent of the cash received), shall be deemed to be cash for purposes of
this clause (2); and
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(3) the Asset Sale Proceeds received by Muzak or such Restricted
Subsidiary are applied
(a) first, to the extent Muzak or any such Restricted Subsidiary, as
the case may be, elects, or is required, to prepay, repay or purchase
indebtedness under any then existing Senior
Indebtedness of Muzak or any such Restricted Subsidiary within 360 days
following the receipt of the Asset Sale Proceeds from any Asset Sale;
provided that any such repayment shall result in a permanent reduction
of the commitments thereunder in an amount equal to the principal
amount so repaid;
(b) second, to the extent of the balance of Asset Sale Proceeds
after application as described above, to the extent Muzak elects, to an
investment in assets (including Capital Stock or other securities
purchased in connection with the acquisition of Capital Stock or
property of another Person) used or useful in businesses reasonably
related, ancillary or complementary to the business of Muzak or any
such Restricted Subsidiary as conducted on the Issue Date; provided
that such investment occurs within 360 days following receipt of such
Asset Sale Proceeds; and
(c) third, if on such 360th day with respect to any Asset Sale, the
Available Asset Sale Proceeds exceed $10 million, Muzak shall apply an
amount equal to the Available Asset Sale Proceeds to an offer to
repurchase the Notes and all other pari passu Indebtedness of Muzak
containing provisions substantially similar to those set forth in the
Indenture regarding offers to purchase or redeem with Asset Sale
Proceeds, in each case, at a purchase price in cash equal to 100% of
the principal amount thereof plus accrued and unpaid interest, if any,
to the purchase date (an "Excess Proceeds Offer").
If an Excess Proceeds Offer is not fully subscribed, Muzak may retain the
portion of the Available Asset Sale Proceeds not required to repurchase Notes
and such pari passu Indebtedness.
Pending the final application of any Asset Sale Proceeds, Muzak or such
Restricted Subsidiary may temporarily reduce Indebtedness under a revolving
credit facility, if any, or otherwise invest such Asset Sale Proceeds in Cash
Equivalents.
If Muzak is, or may be, required to make an Excess Proceeds Offer, Holdings
may be required to make a similar offer to purchase the Senior Discount Notes
(and any pari passu Indebtedness) from the holders thereof. In such event,
Muzak and Holdings may make concurrent similar offers to purchase the Notes
(and any pari passu Indebtedness) and the Senior Discount Notes (and any pari
passu Indebtedness containing similar provisions), respectively. If such
concurrent offers are made, the Asset Sale Proceeds will first be used to
redeem any Notes (and any pari passu Indebtedness of the Company) tendered
pursuant to such offer by Muzak. To the extent that any Asset Sale Proceeds
remain after such offer by Muzak and to the extent permitted by the indenture
including, without limitation, pursuant to "--Limitation on Restricted
Payments" above, such remaining Asset Sale Proceeds will be used to redeem
Indebtedness of Holdings including the Senior Discount Notes.
If Muzak is required to make an Excess Proceeds Offer, Muzak shall mail,
within 45 days following the date specified in clause (3)(c) above, a notice to
the holders stating, among other things:
(1) that such holders have the right to require Muzak to apply the
Available Asset Sale Proceeds to repurchase such Notes at a purchase price
in cash equal to 100% of the principal amount thereof plus accrued and
unpaid interest, if any, to the purchase date;
(2) the purchase date, which shall be no earlier than 45 days and not
later than 60 days from the date such notice is mailed;
(3) the instructions that each holder must follow in order to have such
Notes purchased; and
(4) the calculations used in determining the amount of Available Asset
Sale Proceeds to be applied to the purchase of such Notes.
82
In the event of the transfer of substantially all of the property and
assets of Muzak and its Restricted Subsidiaries as an entirety to a Person in
a transaction permitted under "--Merger, Consolidation or Sale of Assets"
below but which transaction does not constitute a Change of Control, the
successor Person shall be deemed to have sold the properties and assets of
Muzak and its Restricted Subsidiaries not so transferred for purposes of this
covenant, and shall comply with the provisions of this covenant with respect
to such deemed sale as if it were an Asset Sale.
Muzak will comply with the requirements of Rule 14e-1 under the Exchange
act and other securities laws and regulations thereunder to the extent such
laws and regulations are applicable in connection with the repurchase of Notes
pursuant to an Excess Proceeds Offer. To the extent that the provisions of any
securities laws or regulations conflict with the "Asset Sale" provisions of
the indenture, Muzak shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under the
"Asset Sale" provisions of the indenture by virtue thereof.
Limitation on Preferred Stock of Restricted Subsidiaries
Muzak will not permit any of its Restricted Subsidiaries to issue any
Preferred Stock (except Preferred Stock issued to Muzak or a Restricted
Subsidiary of Muzak) or permit any Person (other than Muzak or a Restricted
Subsidiary of Muzak) to hold any such Preferred Stock unless such Restricted
Subsidiary would be entitled to incur or assume Indebtedness under "--
Limitation on Additional Indebtedness" above (other than Permitted
Indebtedness) in the aggregate principal amount equal to the aggregate
liquidation value of the Preferred Stock to be issued.
Limitation on Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries
Muzak will not, and will not permit any of its Restricted 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 Restricted
Subsidiary of Muzak to
(1) (a) pay dividends or make any other distributions to Muzak or any
Restricted Subsidiary of Muzak
(i) on its Capital Stock or
(ii) with respect to any other interest or participation in, or
measured by, its profits or
(b) repay any Indebtedness or any other obligation owed to Muzak or
any Restricted Subsidiary of Muzak,
(2) make loans or advances or capital contributions to Muzak or any of
its Restricted Subsidiaries or
(3) transfer any of its properties or assets to Muzak or any of its
Restricted Subsidiaries,
except for such encumbrances or restrictions existing under or by reason of
(1) encumbrances or restrictions existing on the Issue Date to the
extent and in the manner such encumbrances and restrictions are in effect
on the Issue Date,
(2)(a) the indenture, the Notes and the Guarantees and the Exchange
Notes and the Guarantees thereof and (b) the Senior Credit Facility,
(3) applicable law or applicable rules, regulations or orders,
(4) any instrument governing Acquired Indebtedness, which encumbrance or
restriction is not applicable to any Person, or the properties or assets of
any Person, other than the Person, or the property or assets of the Person
(including any Subsidiary of the Person), so acquired,
(5) customary non-assignment provisions in leases or other agreements
entered in the ordinary course of business,
83
(6) Refinancing Indebtedness; provided that such restrictions are not
materially more restrictive, when taken as a whole, than those contained in
the agreements governing the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded,
(7) customary restrictions in security agreements or mortgages securing
Indebtedness of Muzak or a Restricted Subsidiary to the extent such
restrictions restrict the transfer of the property subject to such security
agreements and mortgages,
(8) customary restrictions pursuant to an agreement that has been
entered into for the sale or disposition of Capital Stock or assets
permitted under the Indenture,
(9) restrictions on the transfer of assets subject to any Lien permitted
under the Indenture imposed by the holder of such Lien,
(10) any agreement or instrument governing Capital Stock of any Person
that is acquired; provided that no such restriction is created in
contemplation of the acquisition of such Capital Stock,
(11) Indebtedness or other contractual requirements of a Securitization
Entity in connection with a Qualified Securitization Transaction; provided
that such restrictions apply only to such Securitization Entity,
(12) Purchase Money Indebtedness incurred to acquire property in the
ordinary course of business which Indebtedness imposes restrictions
regarding transfer of the property acquired,
(13) the terms of any Indebtedness permitted by the Indenture to be
incurred by any Guarantor,
(14) any agreement or instrument governing Indebtedness (whether or not
outstanding) of Foreign Restricted Subsidiaries of Muzak incurred in
reliance on clauses (8) and (16) of the definition of Permitted
Indebtedness, or
(15) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business.
Limitation on Conduct of Business
Muzak and its Restricted Subsidiaries will not engage in any businesses
which are not reasonably similar, ancillary, complementary or related to the
businesses in which Muzak and its Restricted Subsidiaries are engaged in on the
Issue Date except to such extent as would not be material to Muzak and its
Restricted Subsidiaries, taken as a whole.
Limitation on Sale and Lease-Back Transactions
Muzak will not, and will not permit any of its Restricted Subsidiaries to,
enter into any Sale and Lease-Back Transaction unless
(1) the consideration received in such Sale and Lease-Back Transaction
is at least equal to the fair market value of the property sold, as
determined in good faith by the Board of Directors of Muzak and evidenced
by a board resolution,
(2) Muzak could incur the Attributable Indebtedness in respect of such
Sale and Lease-Back Transaction in compliance with "--Limitation on
Additional Indebtedness" above and
(3) the transfer of assets in such Sale and Lease-Back Transaction is
permitted by, and Muzak or such Restricted Subsidiary applies the proceeds
of such transaction in compliance with "--Limitation on Certain Asset
Sales" above.
84
Payments for Consent
Muzak will not, and will not permit any of its Subsidiaries to, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any holder of any Notes for or as an inducement
to any consent, waiver or amendment of any of the terms or provisions of the
Indenture or the Notes unless such consideration is offered to be paid or
agreed to be paid to all holders of the Notes which so consent, waive or agree
to amend in the time frame set forth in solicitation documents relating to such
consent, waiver or agreement.
Change of Control Offer
Upon the occurrence of a Change of Control, the Issuers shall be obligated
to make an offer to purchase (the "Change of Control Offer") each holder's
outstanding Notes at a purchase price (the "Change of Control Purchase Price")
equal to 101% of the principal amount thereof plus accrued and unpaid interest,
if any, to the Change of Control Payment Date (as defined) in accordance with
the procedures set forth below.
Within 20 days of the occurrence of a Change of Control, the Issuers shall
(i) cause a notice of the Change of Control Offer to be sent at least once to
the Dow Jones News Service or similar business news service in the United
States and (ii) send by first-class mail, postage prepaid, to the Trustee and
to each holder of the Notes, at the address appearing in the register
maintained by the Registrar of the Notes, a notice stating:
(1) that the Change of Control Offer is being made pursuant to this
covenant and that all Notes tendered will be accepted for payment;
(2) the Change of Control Purchase Price and the purchase date (which
shall be a Business Day no earlier than 30 days nor later than 60 days from
the date such notice is mailed (the "Change of Control Payment Date"));
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Issuers default in the payment of the Change of
Control Purchase Price, any Notes accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest after the Change of
Control Payment Date;
(5) that holders accepting the offer to have their Notes purchased
pursuant to a Change of Control Offer will be required to surrender the
Notes to the Paying Agent at the address specified in the notice prior to
the close of business on the Business Day preceding the Change of Control
Payment Date;
(6) that holders will be entitled to withdraw their acceptance if the
Paying Agent receives, not later than the close of business on the third
Business Day preceding the Change of Control Payment Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the
holder, the principal amount of the Notes delivered for purchase, and a
statement that such holder is withdrawing his election to have such Notes
purchased;
(7) that holders whose Notes are being purchased only in part will be
issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered;
(8) any other procedures that a holder must follow to accept a Change of
Control Offer or effect withdrawal of such acceptance; and
(9) the name and address of the Paying Agent.
On the Change of Control Payment Date, the Issuers shall, to the extent
lawful,
(1) accept for payment Notes or portions thereof properly tendered
pursuant to the Change of Control Offer,
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(2) deposit with the Paying Agent money sufficient to pay the purchase
price of all Notes or portions thereof so tendered, and
(3) deliver or cause to be delivered to the Trustee the Notes so
accepted together with an Officers' Certificate stating the Notes or
portions thereof tendered to the Issuers.
The Paying Agent shall promptly mail to each holder of Notes so accepted
payment in an amount equal to the purchase price for such Notes, and the
Issuers shall execute and issue, and the Trustee shall promptly authenticate
and mail to such holder, a new Note equal in principal amount to any
unpurchased portion of the Notes surrendered; provided that each such new Note
shall be issued in an original principal amount in denominations of $1,000 and
integral multiples thereof.
The Indenture requires that if the Senior Credit Facility is in effect, or
any amounts are owing thereunder or in respect thereof, at the time of the
occurrence of a Change of Control, prior to the mailing of the notice to
holders described in the second preceding paragraph, but in any event within 60
days following any Change of Control, the Issuers covenant to
(1) repay in full all obligations and terminate all commitments under or
in respect of the Senior Credit Facility and all other Senior Indebtedness
the terms of which require repayment upon a Change of Control or offer to
repay in full all obligations and terminate all commitments under or in
respect of the Senior Credit Facility and all such Senior Indebtedness and
repay the Indebtedness owed to each such lender who has accepted such
offer, or
(2) obtain the requisite consents under the Senior Credit Facility and
all such other Senior Indebtedness to permit the repurchase of the Notes as
described above.
The Issuers must first comply with the covenant described in the preceding
sentence before they shall be required to purchase Notes in the event of a
Change of Control; provided that the Issuers' failure to comply with the
covenant described in the preceding sentence constitutes an Event of Default
described in clause (3) under "--Events of Default" below if not cured within
30 days after the notice required by such clause. As a result of the foregoing,
a holder of the Notes may not be able to compel the Issuers to purchase the
Notes unless the Issuers are able at the time to refinance all of the
obligations under or in respect of the Senior Credit Facility and all such
other Senior Indebtedness or obtain requisite consents under the Senior Credit
Facility and all such other Senior Indebtedness.
If a Change of Control Offer is made, there can be no assurance that the
Issuers will have available funds sufficient to pay the Change of Control
Purchase Price for all the Notes that might be delivered by Holders seeking to
accept the Change of Control Offer. In the event the Issuers are required to
purchase outstanding Notes pursuant to a Change of Control Offer, the Issuers
expect that they would seek third party financing to the extent they do not
have available funds to meet their purchase obligations. However, there can be
no assurance that the Issuers would be able to obtain such financing.
Neither the Board of Directors of any Issuer nor the Trustee may waive the
covenant relating to a Holder's right to redemption upon a Change of Control.
Restrictions in the Indenture described herein on the ability of the Company
and its Restricted Subsidiaries to incur additional Indebtedness, to grant
liens on their respective properties, to make Restricted Payments and to make
Asset Sales may also make more difficult or discourage a takeover of Muzak,
whether favored or opposed by the management of Muzak. Consummation of any such
transaction in certain circumstances may require redemption or repurchase of
the Notes, and there can be no assurance that the Issuers or the acquiring
party will have sufficient financial resources to effect such redemption or
repurchase. Such restrictions and the restrictions on transactions with
Affiliates may, in certain circumstances, make more difficult or discourage any
leveraged buyout of Muzak or any of its Subsidiaries by the management of
Muzak. While such restrictions cover a wide variety of arrangements which have
traditionally been used to effect highly leveraged transactions, the Indenture
may not afford the holders of
86
Notes protection in all circumstances from the adverse aspects of a highly
leveraged transaction, reorganization, restructuring, merger or similar
transaction.
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 Notes pursuant to a Change of Control Offer. To the extent that
the provisions of any securities laws or regulations conflict with the "Change
of Control" provisions of the indenture, the Issuers shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached their obligations under the "Change of Control" provisions of the
Indenture by virtue thereof.
Merger, Consolidation or Sale of Assets
Muzak will not consolidate with, merge with or into, or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of the
assets of Muzak (as an entirety or substantially as an entirety in one
transaction or a series of related transactions), to any Person unless:
(1) the Company shall be the continuing Person, or the Person (if other
than Muzak) formed by such consolidation or into which Muzak is merged or
to which the properties and assets of Muzak are sold, assigned,
transferred, leased, conveyed or otherwise disposed of shall be a
corporation, partnership, trust or a limited liability company organized
and existing under the laws of the United States or any State thereof or
the District of Columbia and shall expressly assume, by a supplemental
indenture, executed and delivered to the trustee, in form satisfactory to
the trustee, all of the obligations of Muzak under the Indenture, the Notes
and the Guarantees, and the obligations thereunder shall remain in full
force and effect; provided that if at any time Muzak or such successor
Person is a limited liability company, partnership or trust there shall be
a co-issuer of the Notes that is a Restricted Subsidiary of Muzak and that
is a corporation organized and existing under the laws of the United States
or any State thereof or the District of Columbia;
(2) immediately before and immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing; and
(3) immediately after giving effect to such transaction on a pro forma
basis Muzak or such Person could incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) under""--Certain
Covenants--Limitation on Additional Indebtedness" above; provided that
Muzak may merge into any Guarantor without complying with this clause (3).
In connection with any consolidation, merger or transfer of assets
contemplated by this provision, Muzak shall deliver, or cause to be delivered,
to the trustee, in form and substance reasonably satisfactory to the trustee,
an Officers' Certificate and an opinion of counsel, each stating that such
consolidation, merger or transfer and the supplemental indenture in respect
thereto comply with this provision and that all conditions precedent herein
provided for relating to such transaction or transactions have been complied
with.
For purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Restricted
Subsidiaries of Muzak the Capital Stock of which constitutes all or
substantially all of the properties and assets of Muzak, shall be deemed to be
the transfer of all or substantially all of the properties and assets of Muzak.
Notwithstanding the foregoing, Muzak may merge or consolidate with or
transfer substantially all of its assets to an Affiliate that has no
significant assets or liabilities and was formed solely for the purpose of
changing the jurisdiction of organization of Muzak or the form of organization
of Muzak so long as the amount of Indebtedness of Muzak and its Restricted
Subsidiaries is not increased thereby and that the successor assumes all
obligations of Muzak under the indenture, the Notes and the Registration Rights
Agreement. Nothing in this covenant shall be deemed to prevent the consummation
of the Merger Transactions.
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Guarantees
The Guarantors will guarantee the Notes on a senior subordinated basis. All
payments pursuant to the Guarantees by the Guarantors are subordinated in right
of payment to the prior indefeasible payment in full of all Senior Indebtedness
of each respective Guarantor, to the same extent and in the same manner that
all payments pursuant to the Notes or any Obligations under the Notes, the
Registration Rights Agreement or the Indenture are subordinated in right of
payment to the prior payment in full of all Senior Indebtedness of each Issuer.
The obligations of each Guarantor are limited to the maximum amount as will,
after giving effect to all other contingent and fixed liabilities of such
Guarantor (including, without limitation, any guarantees of Senior
Indebtedness) and after giving effect to any collections from or payments made
by or on behalf of any other Guarantor in respect of the obligations of such
other Guarantor under its Guarantee or pursuant to its contribution obligations
under the Indenture, result in the obligations of such Guarantor under the
Guarantee not constituting a fraudulent conveyance or fraudulent transfer under
federal or state law. Each Guarantor that makes a payment or distribution under
a Guarantee shall be entitled to a contribution from each other Guarantor in a
pro rata amount based on the Adjusted Net Assets of each Guarantor.
A Guarantor shall be released from all of its obligations under its
Guarantee if all of its assets or Capital Stock is sold, in each case in a
transaction in compliance with "--Certain Covenants--Limitation on Certain
Asset Sales" above, or the Guarantor merges with or into or consolidates with,
or transfers all or substantially all of its assets in compliance with the
terms of the Indenture, and such Guarantor has delivered to the Trustee an
Officers' Certificate and an opinion of counsel, each stating that all
conditions precedent herein provided for relating to such transaction have been
complied with.
Events of Default
The following events are defined in the Indenture as "Events of Default":
(1) default in payment of any principal of, or premium, if any, on the
Notes whether at maturity, upon redemption or otherwise (whether or not
such payment shall be prohibited by the subordination provisions of the
Indenture);
(2) default for 30 days in payment of any interest on the Notes;
(3) default by any Issuer or any Restricted Subsidiary in the observance
or performance of any other covenant in the Notes or the Indenture for 30
days after written notice from the Trustee or the holders of not less than
25% in aggregate principal amount of the Notes then outstanding (except in
the case of a default with respect to the "Change of Control" or "Merger,
Consolidation or Sale of Assets" covenant which shall constitute an Event
of Default with such notice requirement but without such passage of time
requirement);
(4) failure to pay at final maturity (after giving effect to any
applicable grace period) any Indebtedness of Muzak or any Restricted
Subsidiary thereof (other than a Securitization Entity), or the
acceleration of any such Indebtedness, which acceleration shall not be
rescinded or annulled within 20 days after written notice as provided in
the Indenture, if the aggregate amount of such Indebtedness, together with
the amount of any other such Indebtedness in default for failure to pay or
which has been accelerated, aggregates $5 million or more at any time;
(5) any final judgment or judgments which can no longer be appealed for
the payment of money in excess of $5 million (excluding amounts covered by
insurance for which coverage is not being challenged or denied unless Muzak
is contesting such challenge or denial in good faith) shall be rendered
against Muzak or any Restricted Subsidiary thereof, and shall not be
discharged for any period of 60 consecutive days during which a stay of
enforcement shall not be in effect;
88
(6) certain events involving bankruptcy, insolvency or reorganization of
any Issuer or any Significant Subsidiary thereof; and
(7) any Guarantee of a Significant Subsidiary ceases to be in full force
and effect or any Guarantee of a Significant Subsidiary is declared to be
null and void and unenforceable or any Guarantee of a Significant
Subsidiary is found to be invalid or any of the Guarantors denies its
liability under its Guarantee (other than by reason of release of a
Guarantor in accordance with the terms of the indenture).
The indenture provides that the trustee may withhold notice to the holders
of the Notes of any default (except in payment of principal or premium, if any,
or interest on the Notes) if the trustee considers it to be in the best
interest of the holders of the Notes to do so.
The indenture provides that if an Event of Default (other than an Event of
Default of the type described in clause (6) above) shall have occurred and be
continuing, then the trustee or the holders of not less than 25% in aggregate
principal amount of the Notes then outstanding may declare to be immediately
due and payable the entire principal amount of all the Notes then outstanding
plus accrued interest to the date of acceleration and (1) the same shall become
immediately due and payable or (2) if there are any amounts outstanding under
the Senior Credit Facility, shall become immediately due and payable upon the
first to occur of an acceleration
under the Senior Credit Facility or five business days after receipt by the
Issuers and the representative under the Senior Credit Facility of a notice of
acceleration; provided, however, that after such acceleration but before a
judgment or decree based on acceleration is obtained by the trustee, the
holders of a majority in aggregate principal amount of outstanding Notes may,
under certain circumstances, rescind and annul such acceleration if
(1) all Events of Default, other than nonpayment of principal, premium,
if any, or interest that has become due solely because of the acceleration,
have been cured or waived as provided in the indenture,
(2) to the extent the payment of such interest is lawful, interest on
overdue installments of interest and overdue principal, which has become
due otherwise than by such declaration of acceleration, has been paid,
(3) the Issuers have paid the trustee its reasonable compensation and
reimbursed the trustee for its expenses, disbursements and advances and
(4) in the event of the cure or waiver of an Event of Default of the
type described in clause (6) of the above Events of Default, the trustee
shall have received an Officers' Certificate and an opinion of counsel that
such Event of Default has been cured or waived.
No such rescission shall affect any subsequent Default or impair any right
consequent thereto. In case an Event of Default of the type described in clause
(6) of the first paragraph above shall occur, the principal, premium and
interest amount with respect to all of the Notes shall be due and payable
immediately without any declaration or other act on the part of the trustee or
the holders of the Notes.
The holders of a majority in principal amount of the Notes then outstanding
shall have the right to waive any existing default or compliance with any
provision of the indenture or the Notes and to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee,
subject to certain limitations provided for in the indenture and under the TIA.
No holder of any Note will have any right to institute any proceeding with
respect to the Indenture or for any remedy thereunder, unless such holder shall
have previously given to the trustee written notice of a continuing Event of
Default and unless the holders of at least 25% in aggregate principal amount of
the outstanding Notes shall have made written request and offered reasonable
indemnity to the trustee to institute such proceeding as trustee, and unless
the trustee shall not have received from the holders of a majority in aggregate
principal amount of the outstanding Notes a direction inconsistent with such
request and shall have
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failed to institute such proceeding within 60 days. Notwithstanding the
foregoing, such limitations do not apply to a suit instituted on such Note on
or after the respective due dates expressed in such Note.
Defeasance and Covenant Defeasance
The indenture provides that the Issuers may elect either
(1) to defease and be discharged from any and all of their and any
Guarantor's obligations with respect to the Notes (except for the
obligations to register the transfer or exchange of such Notes, to replace
temporary or mutilated, destroyed, lost or stolen Notes, to maintain an
office or agency in respect of the Notes and to hold monies for payment in
trust) ("defeasance") or
(2) to be released from their obligations with respect to the Notes
under certain covenants contained in the indenture ("covenant defeasance")
upon the deposit with the trustee (or other qualifying trustee), in trust for
such purpose, of money and/or non-callable U.S. government obligations which
through the payment of principal and interest in accordance with
their terms will provide money, in an amount sufficient to pay the principal
of, premium, if any, and interest on the Notes, on the scheduled due dates
therefor or on a selected date of redemption in accordance with the terms of
the indenture. Such a trust may only be established if, among other things,
(1) the Issuers have delivered to the trustee an opinion of counsel (as
specified in the indenture)
(a) to the effect that neither the trust nor the trustee will be
required to register as an investment company under the Investment
Company Act of 1940, as amended, and
(b) describing either a private ruling concerning the Notes or a
published ruling of the Internal Revenue Service, to the effect that
holders of the Notes or persons in their positions will not recognize
income, gain or loss for federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to federal
income tax on the same amount and in the same manner and at the same
times, as would have been the case if such deposit, defeasance and
discharge had not occurred;
(2) no Default or Event of Default shall have occurred and be continuing
on the date of such deposit or insofar as Events of Default from
bankruptcy, insolvency or reorganization events are concerned, at any time
in the period ending on the 91st day after the date of deposit;
(3) such defeasance or covenant defeasance shall not result in a breach
or violation of, or constitute a Default under the indenture or any other
material agreement or instrument to which any Issuer or any of its
Subsidiaries is a party or by which any Issuer or any of its Subsidiaries
is bound;
(4) the Issuers shall have delivered to the trustee an Officers'
Certificate stating that the deposit was not made by the Issuers with the
intent of preferring the holders of the Notes over any other creditors of
the Issuers or with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Issuers or others;
(5) the Issuers shall have delivered to the trustee an Officers'
Certificate and an opinion of counsel, each stating that all conditions
precedent provided for or relating to the defeasance or the covenant
defeasance have been complied with;
(6) the Issuers shall have delivered to the trustee an opinion of
counsel to the effect that
(a) the trust funds will not be subject to any rights of holders of
Senior Indebtedness, including, without limitation, those arising under
the Indenture, and
(b) assuming no intervening bankruptcy shall occur and that no
Holder is an insider of the Issuers, after the 91st day following the
deposit, the trust funds will not be subject to the effect of any
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applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally; and
(7) certain other customary conditions precedent are satisfied.
Modification of Indenture
From time to time, the Issuers, the Guarantors and the trustee may, without
the consent of holders of the Notes, amend or supplement the Indenture for
certain specified purposes, including providing for uncertificated Notes in
addition to certificated Notes, and curing any ambiguity, defect or
inconsistency, or making any other change that does not, in the opinion of the
trustee, materially and adversely affect the rights of any holder. The
indenture contains provisions permitting the Issuers, the Guarantors and the
trustee, with the consent of holders of at least a majority in principal amount
of the outstanding Notes, to modify or supplement the indenture, except that no
such modification shall, without the consent of each holder affected thereby,
(1) reduce the amount of Notes whose holders must consent to an
amendment, supplement, or waiver to the indenture,
(2) reduce the rate of or change the time for payment of interest,
including defaulted interest, on any Note,
(3) reduce the principal of or premium on or change the stated maturity
of any Note or change the date on which any Notes may be subject to
redemption or repurchase or reduce the redemption or repurchase price
therefor,
(4) make any Note payable in money other than that stated in the Note or
change the place of payment from New York, New York,
(5) waive a default on the payment of the principal of, interest on, or
redemption payment with respect to any Note,
(6) make any change in provisions of the indenture protecting the right
of each holder of Notes to receive payment of principal of and interest on
such Note on or after the due date thereof or to bring suit to enforce such
payment, or permitting holders of a majority in principal amount of Notes
to waive Defaults or Events of Default,
(7) amend, change or modify in any material respect the obligation of
Muzak to make and consummate a Change of Control Offer in the event of a
Change of Control or make and consummate an Excess Proceeds Offer with
respect to any Asset Sale that has been consummated or modify any of the
provisions or definitions with respect thereto,
(8) modify or change any provision of the indenture or the related
definitions affecting the subordination or ranking of the Notes or any
Guarantee in a manner which adversely affects the holders of Notes or
(9) release any Guarantor from any of its obligations under its
Guarantee or the indenture otherwise than in accordance with the terms of
the indenture.
Reports to Holders
For fiscal periods ending after the Issue Date, so long as the Issuers are
subject to the periodic reporting requirements of the Exchange Act, they will
continue to furnish the information required thereby to the Commission and to
the holders of the Notes. The indenture provides that even if the Issuers are
entitled under the Exchange Act not to furnish such information to the
Commission or to the holders of the Notes, they will nonetheless continue to
furnish such information to the Commission and holders of the Notes.
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The Trustee
The trustee under the Indenture will be the Registrar and Paying Agent with
regard to the Notes. The indenture provides that, except during the continuance
of an Event of Default, the trustee will perform only such duties as are
specifically set forth in the indenture. During the existence of an Event of
Default, the trustee will exercise such rights and powers vested in it under
the indenture and use the same degree of care and skill in its exercise as a
prudent person would exercise under the circumstances in the conduct of such
person's own affairs.
Transfer and Exchange
Holders of the Notes may transfer or exchange Notes in accordance with the
Indenture. The Registrar under such indenture may require a holder, among other
things, to furnish appropriate endorsements and transfer documents, and to pay
any taxes and fees required by law or permitted by the Indenture. The Registrar
is not required to transfer or exchange any Note selected for redemption and,
further, is not required to transfer or exchange any Note for a period of 15
days before selection of the Notes to be redeemed.
The Notes will be issued in a transaction exempt from registration under the
Securities Act and will be subject to the restrictions on transfer described in
"Notice to Investors."
The registered holder of a Note may be treated as the owner of it for all
purposes.
Certain Definitions
Set forth below is a summary of certain of the defined terms used in the
Indenture. Reference is made to the Indenture for the full definition of all
such terms as well as any other capitalized terms used herein for which no
definition is provided.
"ABRY" means ABRY Partners, Inc., a Delaware corporation.
"ABRY Management Agreement" means the Management Agreement dated as of
October 6, 1998, and as amended prior to the Issue Date, between ABRY and
Muzak.
"ABRY Subordinated Debt" means Indebtedness of Muzak in principal amount not
to exceed $30 million in the aggregate at any time outstanding (a) that is owed
to ABRY III, ABRY, MEM Holdings, Inc. or any other investment fund controlled
by ABRY, (b) as to which the payment of principal of (and premium, if any) and
interest and other payment obligations in respect of such Indebtedness shall be
subordinate to the prior payment in full of Muzak's Obligations under the Notes
such that no payments of principal (or premium, if any) or interest on or
otherwise due in respect of such Indebtedness may be permitted for so long as
any Default or Event of Default shall have occurred and be continuing, (c) that
shall automatically convert into common equity of Holdings within 18 months of
the date of issuance thereof, unless refinanced, and (d) the terms of which
have been determined to be fair and reasonable to Muzak as determined in good
faith by the Board of Directors of Muzak and evidenced by a board resolution
delivered to the trustee.
"ABRY II" means ABRY Broadcast Partners II, L.P., a Delaware limited
partnership.
"ABRY III" means ABRY Broadcast Partners III, L.P., a Delaware limited
partnership.
"Acquired Indebtedness" means Indebtedness of a Person (including an
Unrestricted Subsidiary) existing at the time such Person becomes a Restricted
Subsidiary or is merged into or consolidated with any other Person or which is
assumed in connection with the acquisition of assets from such Person and, in
each case, whether or not incurred by such Person in connection with, or in
anticipation or contemplation of, such Person becoming a Restricted Subsidiary
or such merger, consolidation or acquisition.
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"Acquisition EBITDA" means, with respect to any Asset Acquisition, (i)
EBITDA attributable to the assets to be acquired in such Asset Acquisition for
the same fiscal quarter utilized in determining "Consolidated Leverage Ratio"
plus (ii) the projected, quantifiable cost reductions expected to be realized
and non-recurring costs and expenses, in each case, in connection with such
Asset Acquisition and as a result of, in the case of cost reductions, an
established program of cost reductions adopted in good faith by the Board of
Directors of Muzak. For purposes of the foregoing, cost reductions and non-
recurring costs and expenses, in each case, shall be calculated on a pro forma
basis as if such cost reductions and non-recurring costs and expenses, in each
case, had been implemented at the beginning of such fiscal quarter. Prior to
the consummation of any transaction requiring the inclusion of Acquisition
EBITDA in the calculation of Consolidated Leverage Ratio, Muzak shall deliver
to the trustee an Officers' Certificate indicating the cost reductions and non-
recurring costs and expenses, in each case, taken into account in determining
Acquisition EBITDA and the assumptions underlying such cost reductions and non-
recurring costs and expenses.
"Adjusted Net Assets" of any Person at any date shall mean the lesser of
(1) the amount by which the fair salable value of the assets of such
Person at such date exceeds the total amount of liabilities, including,
without limitation, contingent liabilities (after giving effect to all
other fixed and contingent liabilities), but excluding liabilities under
the Guarantee of such Person at such date, and
(2) the amount by which the fair salable value of the assets of such
Person at such date exceeds the amount that will be required to pay the
probable liability of such Person on its debts (after giving effect to all
other fixed and contingent liabilities and after giving effect to any
collection from any Subsidiary of such Person in respect of the obligations
of such Person under the Guarantee of such Person), excluding Indebtedness
in respect of the Guarantee of such Person, as they become absolute and
matured.
"Affiliate" means, with respect to any specific Person, any other Person
that directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such specified Person. For the
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, means 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, for purposes of the covenant described under "--
Certain Covenants--Limitation on Transactions with Affiliates" beneficial
ownership of at least 10% of the voting securities of a Person, either directly
or indirectly, shall be deemed to be control. Notwithstanding the foregoing, no
Person (other than the Company or any Subsidiary of Muzak) in whom a
Securitization Entity makes an Investment in connection with a Qualified
Securitization Transaction shall be deemed to be an Affiliate of Muzak or any
of its Subsidiaries solely by reason of such Investment.
"Asset Acquisition" means
(1) an Investment by Muzak or any Restricted Subsidiary of Muzak in any
other Person pursuant to which such Person shall become a Restricted
Subsidiary of Muzak or any Restricted Subsidiary of Muzak, or shall be
merged with or into Muzak or any Restricted Subsidiary of Muzak or
(2) the acquisition by Muzak or any Restricted Subsidiary of Muzak of
the assets of any Person (other than a Restricted Subsidiary of Muzak)
which constitute all or substantially all of the assets of such Person or
comprise any division or line of business of such Person or any other
properties or assets of such Person other than in the ordinary course of
business.
"Asset Sale" means any direct or indirect sale, issuance, conveyance,
assignment, transfer, lease or other disposition (including any Sale and Lease-
Back Transaction), other than in the ordinary course of business or to Muzak or
any of its Restricted Subsidiaries, in any single transaction or series of
related transactions of
93
(1) any Capital Stock of or other equity interest in any Restricted
Subsidiary of Muzak or
(2) any other property or assets of Muzak or of any Restricted
Subsidiary thereof;
provided that Asset Sales shall not include
(1) a transaction or series of related transactions for which Muzak or
its Restricted Subsidiaries receive aggregate consideration of less than $1
million,
(2) the sale, lease, conveyance, disposition or other transfer of all or
substantially all of the assets of Muzak as permitted under "--Merger,
Consolidation or Sale of Assets" above or any disposition that constitutes
a Change of Control,
(3) the sale or discount, in each case without recourse, of accounts
receivable arising in the ordinary course of business, but only in
connection with the compromise or collection thereof,
(4) the factoring of accounts receivable arising in the ordinary course
of business pursuant to customary arrangements,
(5) the licensing of intellectual property,
(6) disposals or replacements of obsolete equipment in the ordinary
course of business,
(7) sales of accounts receivable, equipment and related assets
(including contract rights) of the type specified in the definition of
Qualified Securitization Transaction to a Securitization Entity for the
fair market value thereof, including cash in an amount at least equal to
75% of the fair market value thereof as determined in accordance with GAAP,
(8) transfers of accounts receivable, equipment and related assets
(including contract rights) of the type specified in the definition of
Qualified Securitization Transaction (or a fractional undivided interest
therein) by a Securitization Entity in a Qualified Securitization
Transaction (for the purposes of this clause (8), Purchase Money Notes
shall be deemed to be cash), and
(9) any transfer of assets acquired by Muzak or any of its Restricted
Subsidiaries to an independent affiliate of Muzak or any of its Restricted
Subsidiaries in accordance with the terms of the License Agreements as such
agreements are in effect on the Issue Date and as the same may be amended
or restated in a manner which is not more disadvantageous to the Holders in
any material respect than the terms of such agreements as in effect on the
Issue Date.
"Asset Sale Proceeds" means, with respect to any Asset Sale,
(1) cash and Cash Equivalents received by Muzak or any Restricted
Subsidiary of Muzak from such Asset Sale (including cash and Cash
Equivalent received as consideration for the assumption of liabilities
incurred in connection with or in anticipation of such Asset Sale), after
(a) provision for all income or other taxes measured by or resulting
from such Asset Sale (after taking into account any reduction in
consolidated tax liability due to available tax credits or deductions
and any tax sharing arrangements),
(b) payment of all brokerage commissions, underwriting and other
fees and expenses related to such Asset Sale,
(c) provision for minority interest holders in any Restricted
Subsidiary of Muzak as a result of such Asset Sale,
(d) repayment of Indebtedness that is secured by the assets subject
to such Asset Sale or otherwise required to be repaid in connection
with such Asset Sale and
(e) deduction of appropriate amounts to be provided by Muzak or a
Restricted Subsidiary of Muzak as a reserve, in accordance with GAAP,
against any liabilities associated with the assets sold
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or disposed of in such Asset Sale and retained by Muzak or a Restricted
Subsidiary after such Asset Sale, including, without limitation,
pension and other post-employment benefit liabilities and liabilities
related to environmental matters or against any indemnification
obligations associated with the assets sold or disposed of in such
Asset Sale, and
(2) promissory notes and other noncash consideration received by Muzak
or any Restricted Subsidiary of Muzak from such Asset Sale or other
disposition upon the liquidation or conversion of such notes or noncash
consideration into cash or Cash Equivalents.
"Attributable Indebtedness" in respect of a Sale and Lease-Back Transaction
means, as at the time of determination, the greater of
(1) the fair value of the property subject to such arrangement and
(2) the present value of the notes (discounted at the rate of interest
implied in such transaction, determined in accordance with GAAP) of the
total obligations of the lessee for rental payments during the remaining
term of the lease included in such Sale and Lease-Back Transaction
(including any period for which such lease has been extended).
"Available Asset Sale Proceeds" means, with respect to any Asset Sale, the
aggregate Asset Sale Proceeds from such Asset Sale that have not been applied
in accordance with clauses (3)(a) or (3)(b), and which have not yet been the
basis for an Excess Proceeds Offer in accordance with clause (3)(c) of the
first paragraph of "--Certain Covenants--Limitation on Certain Asset Sales."
"Bank Indebtedness" means (i) the Indebtedness outstanding or arising under
the Senior Credit Facility, (ii) all obligations incurred by or owing to the
holders of such Indebtedness or any agent or representative thereof outstanding
or arising under the Senior Credit Facility (including, but not limited to, all
premium, interest (including, but not limited to, interest accruing pursuant to
the terms of the Senior Credit Facility on or after the filing of any petition
in any bankruptcy, reorganization or similar proceeding relating to Muzak or
any Restricted Subsidiary, whether or not a claim for such is allowed in such
proceeding), all fees and expenses of counsel, reimbursement obligations,
indemnities and all other charges, fees, expenses, claims, and other amounts),
and (iii) all interest rate agreement and hedging obligations arising in
connection therewith with any party to the Senior Credit Facility or any of
their affiliates.
"Board of Directors" means, with respect to any Person, the board of
directors of such Person (or, if such Person is a limited liability company,
the board of managers of such company) or similar governing body or any duly
authorized committee thereof.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated and whether
or not voting) of corporate stock, partnership or limited liability company
interests or any other participation, right or other interest in the nature of
an equity interest in such Person including, without limitation, Common Stock
and Preferred Stock of such Person, or any option, warrant or other security
convertible into any of the foregoing.
"Capitalized Lease Obligations" means with respect to any Person,
Indebtedness represented by obligations under a lease that is required to be
capitalized for financial reporting purposes in accordance with GAAP, and the
amount of such Indebtedness shall be the capitalized amount of such obligations
determined in accordance with GAAP.
"Cash Equivalents" means
(1) marketable direct obligations issued by, or unconditionally
guaranteed by, the United States Government or issued by any agency or
instrumentality thereof and backed by the full faith and credit of the
United States, in each case maturing within one year from the date of
acquisition thereof;
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(2) marketable direct obligations issued by any state of the United
States of America or any political subdivision of any such state or any
public instrumentality thereof maturing within one year from the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from either Standard & Poor's Corporation
("S&P") or Moody's Investors Service, Inc. ("Moody's");
(3) commercial paper maturing no more than one year from the date of
creation thereof and, at the time of acquisition, having a rating of at
least A-1 from S&P or at least P-1 from Moody's;
(4) certificates of deposit or bankers' acceptances maturing within one
year from the date of acquisition thereof issued by (i) any bank organized
under the laws of the United States of America or any state thereof or the
District of Columbia or any U.S. branch of a foreign bank having at the
date of acquisition thereof combined capital and surplus of not less than
$250,000,000 or (ii) Brown Brothers Harriman;
(5) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clause (1) above entered
into with any bank meeting the qualifications specified in clause (4)
above; and
(6) investments in money market funds which invest substantially all
their assets in securities of the types described in clauses (1) through
(5) above.
A "Change of Control" of the Company will be deemed to have occurred at such
time as
(1) any Person or group of related Persons for purposes of Section 13(d)
of the Exchange Act (a "Group"), other than a Permitted Holder, becomes the
beneficial owner (as defined in Rule under Rule 13d-3 or any successor rule
or regulation promulgated under the Exchange Act, except that a Person
shall be deemed to have "beneficial ownership" of all securities that such
Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time) of more than 35% of the
total voting power of Muzak's Capital Stock, and the Permitted Holders
beneficially do not own, in the aggregate, a greater percentage of the
total voting power of the Capital Stock of Muzak than such other Person or
Group and do not have the right or ability by voting power, contract or
otherwise to elect or designate for election a majority of the Board of
Directors of Muzak,
(2) there shall be consummated any consolidation or merger of Muzak in
which Muzak is not the continuing or surviving Person or pursuant to which
the Common Stock of the Company would be converted into cash, securities or
other property, other than a merger or consolidation of the Company in
which the holders of the Capital Stock of Muzak outstanding immediately
prior to the consolidation or merger hold, directly or indirectly, at least
a majority of the Capital Stock of the surviving corporation immediately
after such consolidation or merger,
(3) during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board of Directors of Muzak
(together with any new Directors whose election by such Board of Directors
or whose nomination for election by the equityholders of the Company has
been approved by 66 2/3% of the Directors then still in office who either
were Directors at the beginning of such period or whose election or
recommendation for election was previously so approved) cease to constitute
a majority of the Board of Directors of Muzak or
(4) the approval by the holders of Capital Stock of Muzak of any plan or
proposal for the liquidation or dissolution of Muzak (whether or not
otherwise in compliance with the provisions of the Indenture).
"Common Stock" of any Person means all Capital Stock of such Person that is
generally entitled to
(1) vote in the election of directors of such Person or
(2) if such Person is not a corporation, vote or otherwise participate
in the selection of the governing body, partners, managers or others that
will control the management and policies of such Person.
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"Consolidated Interest Expense" means, with respect to any Person, for any
period, the aggregate amount of interest which, in conformity with GAAP, would
be set forth opposite the caption "interest expense" or any like caption on an
income statement for such Person and its Restricted Subsidiaries on a
consolidated basis including, but not limited to,
(1) Redeemable Dividends, whether paid or accrued, on Preferred Stock,
(2) imputed interest included in Capitalized Lease Obligations,
(3) all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing,
(4) the net costs associated with Hedging Obligations,
(5) amortization of other financing fees and expenses,
(6) the interest portion of any deferred payment obligation,
(7) amortization of discount or premium, if any, and
(8) all other non-cash interest expense (other than interest amortized
to cost of sales)
plus, without duplication,
(1) all net capitalized interest for such period,
(2) all interest incurred or paid under any guarantee of Indebtedness
(including a guarantee of principal, interest or any combination thereof)
of any Person, and
(3) the amount of all dividends or distributions paid on Disqualified
Capital Stock (other than dividends paid or payable in shares of Capital
Stock of Muzak that does not constitute Disqualified Capital Stock).
"Consolidated Leverage Ratio" means, with respect to any Person, the ratio
of
(1) the sum of the aggregate outstanding amount of Indebtedness of such
Person and its Restricted Subsidiaries and Preferred Stock of any such
Restricted Subsidiary issued in accordance with "-- Certain Covenants --
Limitation on Preferred Stock of Restricted Subsidiaries" as of the date
of calculation (the "Transaction Date") on a consolidated basis determined
in accordance with GAAP to
(2) the product of (a) such Person's EBITDA for the full fiscal quarter
(the "One Quarter Period") ending on or prior to the date of determination
for which financial statements are available and (b) four.
For purposes of this definition, clauses (1) and (2) above shall be calculated
after giving effect on a pro forma basis to:
(a) the incurrence or repayment of any Indebtedness of such Person or
any of its Restricted Subsidiaries or the issuance or redemption or other
repayment of Preferred Stock of any such Restricted Subsidiary (and the
application of the proceeds thereof) giving rise to the need to make such
calculation and any incurrence or repayment of other Indebtedness and, in
the case of any Restricted Subsidiary, the issuance or redemption or other
repayment of Preferred Stock (and the application of the proceeds thereof),
other than the incurrence or repayment of Indebtedness in the ordinary
course of business for working capital purposes pursuant to working capital
facilities, occurring during the One Quarter Period or at any time
subsequent to the last day of the One Quarter Period and on or prior to the
Transaction Date, as if such incurrence or repayment or issuance or
redemption or other repayment, as the case may be (and the application of
the proceeds thereof), occurred on the first day of the One Quarter Period;
and
(b) any Asset Sales or Asset Acquisitions occurring during the One
Quarter Period or at any time subsequent to the last day of the One Quarter
Period and on or prior to the Transaction Date, as if such
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Asset Sale or Asset Acquisition (including the incurrence, assumption or
liability for any Acquired Indebtedness) occurred on the first day of the
One Quarter Period as follows:
(x) with respect to Asset Sales, the EBITDA attributable to the
assets which are the subject of Asset Sales that occurred shall be
excluded; and
(y) with respect to Asset Acquisitions, the Acquisition EBITDA
attributable to the assets which are the subject of the applicable
Asset Acquisition shall be included.
If such Person or any of its Restricted Subsidiaries directly or indirectly
guarantees Indebtedness of a third Person, the preceding paragraph shall give
effect to the incurrence of such guaranteed Indebtedness as if such
Person or any Restricted Subsidiary or such Person had directly incurred or
otherwise assumed such guaranteed Indebtedness.
"Consolidated Net Income" means, with respect to any Person, for any period,
the aggregate of the Net Income of such Person and its Restricted Subsidiaries
for such period, on a consolidated basis, determined in accordance with GAAP;
provided, however, that
(1) the Net Income of any Person other than a Restricted Subsidiary of
the referent Person shall be included only to the extent of the amount of
dividends or distributions paid to the referent Person or a Restricted
Subsidiary of such referent Person,
(2) the Net Income of any Restricted Subsidiary of the Person in
question that is subject to any restriction or limitation on the payment of
dividends or the making of other distributions shall be excluded to the
extent of such restriction or limitation,
(3) 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,
(4) any net gain or loss (in the case of any net loss, only to the
extent that such determination of Consolidated Net Income is being made in
connection with the determination of amounts available for Restricted
Payments pursuant to the provisions described under "--Certain Covenants--
Limitation on Restricted Payments" above) resulting from an Asset Sale by
the Person in question or any of its Restricted Subsidiaries other than in
the ordinary course of business shall be excluded,
(5) extraordinary gains and losses shall be excluded,
(6) income or loss attributable to discontinued operations (including,
without limitation, operations disposed of during such period whether or
not such operations were classified as discontinued) shall be excluded and
(7) in the case of a successor to the referent Person by consolidation
or merger or as a transferee of the referent Person's assets, any earnings
of the successor corporation prior to such consolidation, merger or
transfer of assets shall be excluded.
"Control Investment Affiliate" means, as to any Person, any other Person
which (a) is an Affiliate of such Person and (b) is organized by such Person
primarily for the purpose of making equity or debt investments in one or more
companies.
"Cumulative Consolidated Interest Expense" means, with respect to any
Person, as of any date of determination, Consolidated Interest Expense from
April 1, 1999 to the end of such Person's most recently ended full fiscal
quarter prior to such date, taken as a single accounting period.
"Cumulative EBITDA" means, with respect to any Person, as of any date of
determination, EBITDA from April 1, 1999 to the end of such Person's most
recently ended full fiscal quarter prior to such date, taken as a single
accounting period.
"Designated Senior Indebtedness," as to Muzak or any Guarantor, as the case
may be, means
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(1) any Bank Indebtedness and
(2) any other Senior Indebtedness which at the time of determination
exceeds $25 million in aggregate principal amount (or accreted value in the
case of Indebtedness issued at a discount) outstanding or available under a
committed facility, which is specifically designated in the instrument
evidencing such Senior Indebtedness as "Designated Senior Indebtedness" by
such Person and as to which the Trustee has been given written notice of
such designation.
"Director" means, with respect to any Person, a member of the Board of
Directors of such Person (or, if such Person is a limited liability company, a
member of the board of managers of such Person).
"Disqualified Capital Stock" means any Capital Stock of a Person or a
Restricted Subsidiary thereof which, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable at the
option of the holder), 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 maturity date of the Notes. Without limitation of the foregoing,
Disqualified Capital Stock shall be deemed to include any Preferred Stock of a
Person or a Restricted Subsidiary of such Person, with respect to either of
which, under the terms of such Preferred Stock, by agreement or otherwise, such
Person or Restricted Subsidiary is obligated to pay current dividends or
distributions in cash during the period prior to the maturity date of the
Notes; provided, however, that Preferred Stock of a Person or any Restricted
Subsidiary thereof that is issued with the benefit of provisions requiring a
change of control offer or asset sale offer to be made for such Preferred Stock
in the event of a change of control of such Person or Restricted Subsidiary or
the sale of any assets of such Person or Restricted Subsidiary which provisions
have substantially the same effect as the provisions described under "--Change
of Control Offer" and "--Certain Covenants--Limitation on Certain Asset Sales,"
respectively, above, shall not be deemed to be Disqualified Capital Stock
solely by virtue of such provisions.
"EBITDA" means, with respect to any Person and its Restricted Subsidiaries,
for any period, an amount equal to
(1) the sum of
(a) Consolidated Net Income for such period, plus
(b) the provision for taxes for such period based on income or
profits to the extent such income or profits were included in computing
Consolidated Net Income and any provision for taxes utilized in
computing net loss under clause (a) hereof, plus
(c) Consolidated Interest Expense for such period, plus
(d) depreciation for such period on a consolidated basis, plus
(e) amortization of intangibles for such period (but excluding any
non-cash item to the extent it represents the amortization of a prepaid
cash expense that was paid in any prior period) on a consolidated
basis, plus
(f) any other non-cash items reducing Consolidated Net Income for
such period except for any non-cash items that represent accruals of,
or reserves for, cash disbursements to be made in any future accounting
period, minus
(2) all non-cash items increasing Consolidated Net Income (other than
any non-cash items representing deferred revenue to the extent that such
revenue was not included in Consolidated Net Income in any prior period)
for such period, all for such Person and its Restricted Subsidiaries
determined on a consolidated basis in accordance with GAAP;
provided, however, that, for purposes of calculating EBITDA during any fiscal
quarter, cash income from a particular Investment (other than a Restricted
Subsidiary) of such Person shall be included only
99
(1) if cash income has been received by such Person with respect to such
Investment during each of the previous four fiscal quarters, or
(2) if the cash income derived from such Investment is attributable to
Cash Equivalents.
"Electro Systems Acquisition" means the acquisition of Electro Systems
Corporation pursuant to a Stock Purchase Agreement dated as of February 18,
1999 between the Company and Carolina Georgia Sound, Inc.
"Equity Offering" means any public or private sale of Common Stock (other
than Disqualified Capital Stock) of the Company or Holdings pursuant to which
Muzak or Holdings, as the case may be, receives net proceeds of at least $20
million; provided, however, that in the case of an Equity Offering by Holdings,
Holdings shall have contributed to the capital of Muzak the portion of the Net
Proceeds necessary to redeem the Notes pursuant to the second paragraph of "--
Optional Redemption" above.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"fair market value" means, with respect to any asset or property, the price
which could be negotiated in an arm's-length, free market transaction, for
cash, between a willing seller and a willing and able buyer, neither of whom is
under undue pressure or compulsion to complete the transaction. Fair market
value shall be determined by the Board of Directors of Muzak acting reasonably
and in good faith and shall be evidenced by a resolution of the Board of
Directors of Muzak delivered to the Trustee.
"Finance Corp." means Muzak Finance Corp., a Delaware corporation, or any
successor corporation that is a co-issuer of the Notes.
"Foreign Restricted Subsidiary" means any Restricted Subsidiary of Muzak
that is not organized under the laws of the United States or any State thereof
or the District of Columbia.
"GAAP" means generally accepted accounting principles consistently applied
as in effect in the United States from time to time.
"Guarantor" means each of Holdings and each Restricted Subsidiary of Muzak
which is required to guarantee the Notes pursuant to the terms of the
Indenture.
"Hedging Obligations" means, with respect to any Person, the net payment
obligations of such Person under (a) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements and (b) other
agreements or arrangements entered into in order to protect such Person against
fluctuations in commodity prices, interest rates or currency exchange rates.
"Holdings" means Muzak Holdings LLC, a Delaware limited liability company.
"incur" means, with respect to any Indebtedness or other obligation of any
Person, to create, issue, incur (by conversion, exchange or otherwise), assume,
guarantee or otherwise become liable in respect of such
Indebtedness or other obligation or the recording, as required pursuant to GAAP
or otherwise, of any such Indebtedness or other obligation on the balance sheet
of such Person (and "incurrence," "incurred," "incurrable," and "incurring"
shall have meanings correlative to the foregoing); provided that a change in
GAAP that results in an obligation of such Person that exists at such time
becoming Indebtedness shall not be deemed an incurrence of such Indebtedness.
"Indebtedness" means (without duplication), with respect to any Person, any
indebtedness at any time outstanding, secured or unsecured, contingent or
otherwise, which is for borrowed money (whether or not the recourse of the
lender is to the whole of the assets of such Person or only to a portion
thereof), or evidenced by bonds, notes, debentures or similar instruments or
representing the balance deferred and unpaid of the purchase price of any
property (excluding, without limitation, any balances that constitute accounts
payable or trade payables, and other accrued liabilities arising in the
ordinary course of business) if and to the extent any of the
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foregoing indebtedness would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP, and shall also include, to the extent
not otherwise included
(1) any Capitalized Lease Obligations of such Person,
(2) obligations secured by a lien to which the property or assets owned
or held by such Person is subject, whether or not the obligation or
obligations secured thereby shall have been assumed,
(3) guarantees of items of other Persons which would be included within
this definition for such other Persons (whether or not such items would
appear upon the balance sheet of the guarantor),
(4) all obligations for the reimbursement of any obligor on any letter
of credit, banker's acceptance or similar credit transaction,
(5) Disqualified Capital Stock of such Person or any Restricted
Subsidiary thereof, and
(6) hedging obligations of any such Person (if and to the extent such
hedging obligations would appear as a liability upon a balance sheet of
such Person prepared in accordance with GAAP).
The amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above and,
with respect to contingent obligations, the maximum liability upon the
occurrence of the contingency giving rise to the obligation; provided that
(1) the amount outstanding at any time of any Indebtedness issued with
original issue discount is the principal amount of such Indebtedness less
the remaining unamortized portion of the original issue discount of such
Indebtedness at such time as determined in conformity with GAAP,
(2) Indebtedness shall not include any liability for federal, state,
local or other taxes,
(3) the amount of Indebtedness of a Person which is without recourse to
any property or assets of such Person except to the extent of any Lien on
property or assets of such Person which secures such Indebtedness shall be
the lesser of the principal amount of such Indebtedness and the fair market
value of the property or assets subject to the Lien, and
(4) the amount of Indebtedness represented by Disqualified Capital Stock
shall be the greater of its voluntary or involuntary liquidation preference
and its maximum fixed repurchase price, but excluding accrued dividends, if
any.
The "maximum fixed repurchase price" of any Disqualified Capital Stock which
does not have a fixed repurchase price shall be calculated in accordance with
the terms of such Disqualified Capital Stock as if such Disqualified Capital
Stock were purchased on any date on which Indebtedness shall be required to be
determined pursuant to the Indenture, and if such price is based upon, or
measured by, the fair market value of such Disqualified Capital Stock, such
fair market value shall be determined reasonably and in good faith by the Board
of Directors of the issuer of such Disqualified Capital Stock.
Notwithstanding any other provision of the foregoing definition, any trade
payable arising from the purchase of goods or materials or for services
obtained in the ordinary course of business shall not be deemed to be
"Indebtedness" of the Company or any of its Restricted Subsidiaries for
purposes of this definition. Furthermore, guarantees of (or obligations with
respect to letters of credit supporting) Indebtedness otherwise included in the
determination of such amount shall not also be included.
"Independent Financial Advisor" means an investment banking firm of national
reputation in the United States
(1) which does not, and whose directors, officers and employees or
Affiliates do not, have a direct or indirect financial interest in Muzak
and
(2) which, in the judgment of the Board of Directors of Muzak, is
otherwise independent and qualified to perform the task for which it is to
be engaged.
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"Investments" means, with respect of any Person, directly or indirectly, any
advance, account receivable (other than advances and accounts receivable
arising in the ordinary course of business of such Person), loan or capital
contribution to (by means of transfers of property to others, payments for
property or services for the account or use of others or otherwise), the
purchase of any Capital Stock, bonds, notes, debentures, partnership or joint
venture interests or other securities of, the acquisition, by purchase or
otherwise, of all or substantially all of the business or assets or stock or
other evidence of beneficial ownership of, any Person or the making of any
investment in any Person. Investments shall exclude
(1) extensions of trade credit on commercially reasonable terms in
accordance with normal trade practices of such Person and
(2) the repurchase of securities of any Person by such Person.
If the Company or any Restricted Subsidiary of Muzak sells or otherwise
disposes of any Capital Stock of any direct or indirect Restricted Subsidiary
of Muzak such that such Restricted Subsidiary would no longer constitute a
Subsidiary, Muzak shall be deemed to have made an Investment on the date of any
such sale or disposition equal to the fair market value of the Capital Stock of
such Restricted Subsidiary not sold or disposed of.
"Issue Date" means the date the Notes are first issued by the Issuers and
authenticated by the trustee under the indenture.
"License Agreements" means the License Agreements between Muzak and its
independent affiliates.
"Lien" means, with respect to any property or assets of any Person, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement, encumbrance,
preference, priority, or other security agreement or preferential arrangement
of any kind or nature whatsoever on or with respect to such property or assets
(including without limitation, any Capitalized Lease Obligation, conditional
sales, or other title retention agreement having substantially the same
economic effect as any of the foregoing).
"Merger Transactions" means those transactions referred to collectively in
this offering memorandum as "Merger Transactions."
"Net Income" means, with respect to any Person, for any period, the net
income (loss) of such Person determined in accordance with GAAP.
"Non-Payment Event of Default" means any event (other than a Payment
Default) the occurrence of which entitles one or more Persons to accelerate the
maturity of any Designated Senior Indebtedness.
"Obligations" means all obligations for principal, premium, interest,
penalties, charges, fees, fees and expenses of counsel, indemnities,
reimbursement obligations, damages, claims and other liabilities payable under
the documentation governing any Indebtedness.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by the Chief Executive Officer, the President or any Vice President and
the Chief Financial Officer or any Treasurer of such Person that shall comply
with applicable provisions of the indenture.
"Payment Default" means any default, whether or not any requirement for the
giving of notice, the lapse of time or both, or any other condition to such
default becoming an event of default has occurred, in the payment of principal
of or premium, if any, or interest on or any other amount payable in connection
with Designated Senior Indebtedness.
"Pending Capstar Acquisition" means the acquisition by Holdings of certain
Muzak franchises from Capstar Broadcasting Corporation pursuant to a
Contribution Agreement between Holdings and Capstar Broadcasting Corporation,
dated February 19, 1999, and the subsequent transfer of such assets to Muzak in
exchange for equity interests in Muzak .
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"Permitted Asset Swap" means, with respect to any Person, the substantially
concurrent exchange of assets of such Person for assets of another Person which
are useful to the business of such aforementioned Person.
"Permitted Holders" means each of ABRY III, ABRY II and each Control
Investment Affiliate of ABRY III or ABRY II.
"Permitted Indebtedness" means:
(1) Indebtedness of Muzak or any Restricted Subsidiary arising under or
in connection with the Senior Credit Facility in an aggregate principal
amount not to exceed $200 million outstanding at any time less (i) any
mandatory prepayment actually made thereunder (to the extent, in the case
of payments of revolving credit borrowings, that the corresponding
commitments have been permanently reduced) or scheduled payments actually
made thereunder and (ii) the aggregate amount of Indebtedness of
Securitization Entities in Qualified Securitization Transactions (other
than Qualified Securitization Transactions involving equipment and related
assets);
(2) Indebtedness under the Notes and the Guarantees outstanding on the
Issue Date and Indebtedness under the Exchange Notes and the Guarantees
thereof in an aggregate principal amount not to exceed $115 million;
(3) Indebtedness not covered by any other clause of this definition
which is outstanding on the Issue Date;
(4) Indebtedness of Muzak to any Guarantor or to any Wholly Owned
Subsidiary that is not a Guarantor and Indebtedness of any Restricted
Subsidiary to the Company or to any Guarantor or to any Wholly Owned
Subsidiary that is not a Guarantor;
(5) Purchase Money Indebtedness that does not in the aggregate exceed 5%
of Muzak's consolidated total assets;
(6) the incurrence by Muzak or any Restricted Subsidiary of Hedging
Obligations that are incurred in the ordinary course of business of Muzak
or such Restricted Subsidiary and not for speculative purposes; provided
that, in the case of any Hedging Obligation that relates to (i) interest
rate risk, the notional principal amount of such Hedging Obligation does
not exceed the principal amount of the Indebtedness to which such Hedging
Obligation related and (ii) currency risk, such Hedging Obligation does not
increase the Indebtedness of Muzak and its Restricted Subsidiaries
outstanding other than as a result of fluctuations in foreign currency
exchange rates or by reason of fees, indemnities and compensation payable
thereunder;
(7) Refinancing Indebtedness;
(8) Indebtedness of Foreign Restricted Subsidiaries of Muzak in an
aggregate principal amount not to exceed $10 million at any one time
outstanding; provided the aggregate amount then outstanding under this
clause (8) when added to the aggregate amount then outstanding under clause
(1) above shall not exceed the aggregate amount permitted under clause (1)
above;
(9) guarantees by Muzak and its Restricted Subsidiaries of each other's
Indebtedness; provided that such Indebtedness is permitted to be incurred
under the Indenture;
(10) Indebtedness incurred by Muzak or any of its Restricted
Subsidiaries constituting reimbursement obligations with respect to letters
of credit issued in the ordinary course of business, including, without
limitation, letters of credit in respect of workers' compensation claims or
self-insurance, or other Indebtedness with respect to reimbursement type
obligations regarding workers' compensation claims;
(11) Indebtedness arising from agreements of Muzak or a Restricted
Subsidiary of Muzak providing for indemnification, adjustment of purchase
price, earn out or other similar obligations, in each case, incurred or
assumed in connection with the acquisition or disposition of any business,
assets or a Restricted Subsidiary of Muzak, other than guarantees of
Indebtedness incurred by any Person acquiring
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all or any portion of such business, assets or Restricted Subsidiary for
the purpose of financing such acquisition; provided that, in the case of a
disposition, the maximum assumable liability in respect of all such
Indebtedness shall at no time exceed the gross proceeds actually received
by Muzak and its Restricted Subsidiaries in connection with such
disposition;
(12) obligations in respect of performance and surety bonds and
completion guarantees provided by Muzak or any Restricted Subsidiary of
Muzak in the ordinary course of business;
(13) the ABRY Subordinated Debt;
(14) the incurrence by a Securitization Entity of Indebtedness in a
Qualified Securitization Transaction that is not recourse to Muzak or any
Subsidiary of Muzak (except for Standard Securitization Undertakings);
(15) Indebtedness of Muzak issued to current or former members of
management of Muzak or any of its Restricted Subsidiaries to finance the
repurchase, redemption or other acquisition of Capital Stock of Holdings
pursuant to clause (6) of the second paragraph under "--Certain Covenants--
Limitation on Restricted Payments" above; and
(16) additional Indebtedness of Muzak and its Restricted Subsidiaries
not to exceed $5 million in aggregate principal amount at any one time
outstanding.
"Permitted Investments" means
(1) Investments by Muzak, or by a Restricted Subsidiary thereof, in
Muzak, a Guarantor or a Wholly Owned Subsidiary that is not a Guarantor;
(2) Investments by Muzak, or by a Restricted Subsidiary thereof, in a
Person, if as a result of such Investment
(a) such Person becomes a Guarantor or a Wholly Owned Subsidiary that
is not a Guarantor or
(b) such Person is merged, consolidated or amalgamated with or into,
or transfers or conveys substantially all of its assets to, or is
liquidated into, Muzak, a Guarantor or a Wholly Owned Subsidiary that is
not a Guarantor;
(3) Investments in cash and Cash Equivalents;
(4) reasonable and customary loans and advances made to employees in the
ordinary course of business;
(5) an Investment that is made by Muzak or a Restricted Subsidiary
thereof in the form of any Capital Stock, bonds, notes, debentures,
partnership or joint venture interests or other securities that are issued
by a third party to Muzak or such Restricted Subsidiary solely as partial
consideration for the consummation of an Asset Sale that is otherwise
permitted under "--Certain Covenants--Limitation on Certain Asset Sales"
above;
(6) Hedging Obligations entered into in the ordinary course of Muzak's
or its Restricted Subsidiaries' business and not for speculative purposes;
(7) any acquisition of assets to be used in the business of Muzak or any
of its Restricted Subsidiaries solely in exchange for the issuance of
Capital Stock (other than Disqualified Capital Stock) of Muzak;
(8) additional Investments not to exceed $5 million at any one time
outstanding;
(9) Investments existing on the Issue Date;
(10) Investments in securities of trade creditors or customers received
pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of such trade creditors or customers;
(11) guarantees by Muzak or any Restricted Subsidiary of Indebtedness
otherwise permitted to be incurred by Restricted Subsidiaries of Muzak
under the indenture; and
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(12) any Investment by Muzak or a Restricted Subsidiary of Muzak in a
Securitization Entity or any Investment by a Securitization Entity in any
other Person in connection with a Qualified Securitization Transaction;
provided that any Investment in a Securitization Entity is in the form of a
Purchase Money Note or an equity interest.
"Permitted Liens" means
(1) Liens on property or assets of, or any shares of Capital Stock of or
secured indebtedness of, any Person existing at the time such Person
becomes a Restricted Subsidiary of Muzak or at the time such Person is
merged into Muzak or any of its Restricted Subsidiaries; provided that such
Liens are not incurred in connection with, or in contemplation of, such
Person becoming a Restricted Subsidiary of Muzak or merging into Muzak or
any of its Restricted Subsidiaries,
(2) Liens securing Indebtedness under the Senior Credit Facility and
Liens securing other Senior Indebtedness of Muzak or any Guarantor;
provided in each case, such Indebtedness is incurred in compliance with "--
Certain Covenants--Limitation on Additional Indebtedness" above,
(3) Liens securing Refinancing Indebtedness; provided that any such Lien
does not extend to or cover any Property, Capital Stock or Indebtedness
other than the Property, shares or debt securing the Indebtedness so
refunded, refinanced or extended,
(4) Liens in favor of Muzak or any of its Restricted Subsidiaries,
(5) Liens securing industrial revenue bonds,
(6) Liens to secure Purchase Money Indebtedness that is otherwise
permitted under the indenture; provided that
(a) the principal amount of the Indebtedness secured by such Lien
does not exceed 100% of the purchase price, or the cost of
installation, construction or improvement, of the Property to which
such Purchase Money Indebtedness relates, and
(b) such Lien does not extend to or cover any Property other than
such item of Property and any improvements on such Property,
(7) statutory liens or landlords', carriers', warehouseman's,
mechanics', suppliers', materialmen's, repairmen's or other like Liens
arising in the ordinary course of business which do not secure any
Indebtedness and with respect to amounts not yet delinquent or being
contested in good faith by appropriate proceedings, if a reserve or other
appropriate provision, if any, as shall be required in conformity with GAAP
shall have been made therefor,
(8) Liens for taxes, assessments or governmental charges that are being
contested in good faith by appropriate proceedings,
(9) easements, rights-of-way, zoning restrictions and other similar
charges or encumbrances or title defects or leases or subleases granted to
others in respect of real property not interfering in any material respect
with the ordinary conduct of the business of Muzak or any of its Restricted
Subsidiaries,
(10) other Liens securing obligations incurred in the ordinary course of
business which obligations do not exceed $5 million in the aggregate at any
one time outstanding,
(11) Liens existing on the Issue Date and Liens securing the Notes and
the Guarantees and the Exchange Notes and the Guarantees thereof,
(12) Liens incurred or deposits made in the ordinary course of business
in connection with workers' compensation, unemployment insurance and other
types of social security, including landlord Liens on leased properties and
any Lien securing letters of credit issued in the ordinary course of
business consistent with past practice in connection therewith, or to
secure the performance of tenders, statutory
105
obligations, surety and appeal bonds, bids, leases, government contracts,
performance and return-of-money bonds and other similar obligations,
(13) attachment or judgment Liens not giving rise to an Event of
Default,
(14) Liens upon specific items of inventory or other goods and proceeds
of any Person securing such Person's obligations in respect of bankers'
acceptances issued or created for the account of such Person to facilitate
the purchase, shipment, or storage of such inventory or other goods,
(15) Liens securing reimbursement obligations with respect to commercial
letters of credit which encumber documents and other property relating to
such letters of credit and products and proceeds thereof,
(16) Liens encumbering deposits made to secure obligations arising from
statutory, regulatory, contractual, or warranty requirements of Muzak or
any of its Restricted Subsidiaries, including rights of offset and set-off,
(17) Liens securing Hedging Obligations with respect to Indebtedness
that is otherwise permitted under the Indenture,
(18) Liens securing Indebtedness of Foreign Restricted Subsidiaries of
Muzak incurred in reliance on clause (8) of the definition of Permitted
Indebtedness,
(19) Liens on assets transferred to a Securitization Entity or on assets
of a Securitization Entity, in either case incurred in connection with a
Qualified Securitization Transaction,
(20) Liens arising from filing Uniform Commercial Code financing
statements regarding leases,
(21) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of custom duties in connection with the
importation of goods,
(22) deposits made in the ordinary course of business to secure
liability to insurance carriers,
(23) any interest or title of a lessor or a sublessor under an operating
lease,
(24) Liens under licensing agreements for use of intellectual property
entered into in the ordinary course of business,
(25) Liens imposed by law incurred by Muzak or any of its Restricted
Subsidiaries in the ordinary course of business, and
(26) any extensions, substitutions, replacements or renewals of the
foregoing.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government (including any agency or political subdivision
thereof).
"Preferred Stock" means any Capital Stock of a Person, however designated,
which entitles the holder thereof to a preference with respect to dividends,
distributions or liquidation proceeds of such Person over the holders of other
Capital Stock issued by such Person.
"Property" of any Person means all types of real, personal, tangible,
intangible or mixed property owned by such Person whether or not included in
the most recent consolidated balance sheet of such Person and its Subsidiaries
under GAAP.
"Purchase Money Indebtedness" means Indebtedness and Capitalized Lease
Obligations of any Person incurred in the normal course of business of such
Person for the purpose of financing all or any part of the purchase price, or
the cost of installation, construction or improvement of, any Property.
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"Purchase Money Note" means a promissory note of a Securitization Entity
evidencing a line of credit, which may be irrevocable, from Muzak or any
Subsidiary of Muzak in connection with a Qualified Securitization Transaction
to a Securitization Entity, which note shall be repaid from cash available to
the Securitization Entity, other than amounts required to be established as
reserves pursuant to agreements, amounts paid to investors in respect of
interest, principal and other amounts owing to such investors and amounts paid
in connection with the purchase of newly generated receivables or newly
acquired equipment.
"Qualified Securitization Transaction" means any transaction or series of
transactions that may be entered into by the Company or any of its Subsidiaries
pursuant to which Muzak or any or its Subsidiaries may sell, convey or
otherwise transfer to (a) a Securitization Entity (in the case of a transfer by
Muzak or any of its Subsidiaries) and (b) any other Person (in the case of a
transfer by a Securitization Entity), or may grant a security interest in, any
accounts receivable or equipment (whether now existing or arising or acquired
in the future) of Muzak or any of its Subsidiaries, and any assets related
thereto including, without limitation, all collateral securing such accounts
receivable and equipment, all contracts and contract rights and all guarantees
or other obligations in respect of such accounts receivable and equipment,
proceeds of such accounts receivable and equipment and other assets (including
contract rights) which are customarily transferred or in respect of which
security interests are customarily granted in connection with asset
securitization transactions involving accounts receivable and equipment.
"Redeemable Dividend" means, for any dividend or distribution with regard to
Preferred Stock, the quotient of the dividend or distribution divided by the
difference between one and the maximum statutory federal income tax rate
(expressed as a decimal number between 1 and 0) then applicable to the issuer
of such Preferred Stock.
"Refinancing Indebtedness" means Indebtedness that refunds, refinances,
modifies, replaces, defers, supplements or extends any Indebtedness outstanding
on the Issue Date or other Indebtedness permitted to be incurred by Muzak or
its Restricted Subsidiaries pursuant to the terms of the indenture (other than
pursuant to clauses (1), (4), (6) and (8) through (16) of the definition of
Permitted Indebtedness), but only to the extent that
(1) the Refinancing Indebtedness is subordinated to the Notes to at
least the same extent as the Indebtedness being refunded, refinanced,
modified, replaced, deferred, supplemented or extended, if at all,
(2) the Refinancing Indebtedness is scheduled to mature either
(a) no earlier than the Indebtedness being refunded, refinanced,
modified, replaced, deferred, supplemented or extended, or
(b) after the maturity date of the Notes,
(3) the portion, if any, of the Refinancing Indebtedness that is
scheduled to mature on or prior to the maturity date of the Notes has a
Weighted Average Life to Maturity at the time such Refinancing Indebtedness
is incurred that is equal to or greater than the Weighted Average Life to
Maturity of the portion of the Indebtedness being refunded, refinanced,
modified, replaced, deferred, supplemented or extended that is scheduled to
mature on or prior to the maturity date of the Notes, and
(4) such Refinancing Indebtedness is in an aggregate principal amount
that is equal to or less than the sum of
(a) the aggregate principal amount of the Indebtedness being
refunded, refinanced, modified, replaced, deferred, supplemented or
extended,
107
(b) the amount of accrued and unpaid interest, if any, and premiums
owed, if any, not in excess of preexisting prepayment provisions on
such Indebtedness being refunded, refinanced, modified, replaced,
deferred, supplemented or extended and
(c) the amount of customary fees, expenses and costs related to the
incurrence of such Refinancing Indebtedness.
"Restricted Payment" means any of the following:
(1) the declaration or payment of any dividend or any other distribution
or payment on Capital Stock of Muzak or any Restricted Subsidiary of Muzak
or any payment made to the direct or indirect holders (in their capacities
as such) of Capital Stock of Muzak or any Restricted Subsidiary of Muzak
(other than (a) dividends or distributions payable solely in Capital Stock
(other than Disqualified Capital Stock), and (b) in the case of Restricted
Subsidiaries of Muzak, dividends or distributions payable to Muzak or to a
Restricted Subsidiary of Muzak and to the other holders of Capital Stock of
each such Restricted Subsidiary, in each case on a pro rata basis),
(2) the purchase, redemption or other acquisition or retirement for
value of any Capital Stock of the Company or any of its Restricted
Subsidiaries (other than Capital Stock owned by Muzak or a Wholly Owned
Subsidiary of Muzak, excluding Disqualified Capital Stock),
(3) the making of any principal payment on, or the purchase, defeasance,
repurchase, redemption or other acquisition or retirement for value of any
Indebtedness which is subordinated in right of payment to the Notes prior
to any scheduled maturity, scheduled repayment or scheduled sinking fund
payment (other than subordinated Indebtedness acquired in anticipation of
satisfying a scheduled sinking fund obligation, principal installment or
final maturity, in each case due within one year of the date of
acquisition) other than the ABRY Subordinated Debt,
(4) the making of any Investment or guarantee of any Investment in any
Person other than a Permitted Investment,
(5) any designation of a Restricted Subsidiary as an Unrestricted
Subsidiary (valued at the fair market value of the net assets of such
Restricted Subsidiary) and
(6) forgiveness of any Indebtedness of an Affiliate of Muzak (other than
a Restricted Subsidiary) to Muzak or a Restricted Subsidiary of Muzak.
"Restricted Subsidiary" means a Subsidiary of Muzak other than an
Unrestricted Subsidiary. The Board of Directors of Muzak may designate any
Unrestricted Subsidiary or any Person that is to become a Subsidiary as a
Restricted Subsidiary if immediately after giving effect to such action (and
treating any Indebtedness of such Unrestricted Subsidiary or Person as having
been incurred at the time of such action),
(1) Muzak could have incurred at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) pursuant to "--Certain Covenants--
Limitation on Additional Indebtedness" above, and
(2) no Default or Event of Default shall have occurred and be continuing
or result therefrom.
"Sale and Lease-Back Transaction" means any arrangement with any Person
providing for the leasing by Muzak or any Restricted Subsidiary of Muzak of any
real or tangible personal property, which property has been or is to be sold or
transferred by Muzak or such Restricted Subsidiary to such Person in
contemplation of such leasing.
"Securitization Entity" means a Wholly Owned Subsidiary of Muzak (or another
Person in which the Company or any Subsidiary of Muzak makes an Investment and
to which Muzak or any Subsidiary of Muzak transfers accounts receivable or
equipment and related assets) which engages in no activities other than in
connection with the financing of accounts receivable or equipment and which is
designated by the Board of Directors of Muzak (as provided below) as a
Securitization Entity: (a) no portion of the Indebtedness or any
108
other obligation (contingent or otherwise) of which (i) is guaranteed by the
Company or any Subsidiary of Muzak (excluding guarantees of obligations (other
than the principal of, and interest on, Indebtedness) pursuant to Standard
Securitization Undertakings), (ii) is recourse to or obligates Muzak or any
Subsidiary of Muzak in any way other than pursuant to Standard Securitization
Undertakings or (iii) subjects any property or asset of Muzak or any Subsidiary
of Muzak, directly or indirectly, contingently or otherwise, to the
satisfaction thereof, other than pursuant to Standard Securitization
Undertakings, (b) with which neither Muzak nor any Subsidiary of Muzak has any
material contract, agreement, arrangement or understanding other than on terms
no less favorable to Muzak or such Subsidiary than those that might be obtained
at the time from Persons that are not Affiliates of Muzak, other than fees
payable in the ordinary course of business in connection with servicing
receivables of such entity, and (c) to which neither Muzak nor any Subsidiary
of Muzak has any obligation to maintain or preserve such entity's financial
condition or cause such entity to achieve certain levels of operating results.
Any such designation by the Board of Directors of Muzak shall be evidenced to
the Trustee by filing with the Trustee a certified copy of the resolution of
the Board of Directors of Muzak giving effect to such designation and an
officers' certificate certifying that such designation complied with the
foregoing conditions.
"Senior Credit Facility" means one or more credit agreements, loan
agreements or similar agreements providing for working capital advances, term
loans, letter of credit facilities or similar advances, loans, or facilities to
the Company or any of its Subsidiaries, including the Credit and Guaranty
Agreement to be dated as of March 18, 1999, among Muzak, Holdings, Muzak's
subsidiaries, the lenders party thereto in their capacities as lenders
thereunder, Goldman Sachs Credit Partners L.P., as Syndication Agent, Canadian
Imperial Bank of Commerce, as Administrative Agent, and Goldman Sachs Credit
Partners L.P. and CIBC Oppenheimer Corp., as Co-Lead Arrangers, initially
providing for term loan and revolving credit facilities including any related
notes, guarantees, collateral documents, instruments and agreements executed in
connection therewith, as such credit facilities and/or related documents may be
further amended, restated, supplemented, renewed, refinanced, replaced,
restructured or otherwise modified from time to time whether or not with the
same agents, trustee, representative lenders or group of lenders or holders,
and irrespective of any changes in the terms and conditions thereof. Without
limiting the generality of the foregoing, the term "Senior Credit Facility"
shall include agreements in respect of interest rate agreements and hedging
obligations with lenders party to any Senior Credit Facility and their
affiliates and shall also include any amendment, amendment and restatement,
renewal, extension, restructuring, supplement or modification to any Senior
Credit Facility and any and all refundings, refinancings (in whole or in part)
and replacements of any Senior Credit Facility, whether by the same or any
other agents, trustee, representative lenders or lenders or group of lenders,
including one or more agreements (i) extending the maturity of, or increasing
the amount of, any Indebtedness incurred thereunder or contemplated thereby, or
(ii) adding or deleting borrowers or guarantors thereunder, so long as
borrowers and issuers include one or more of Muzak and its Restricted
Subsidiaries and their respective successors and assigns,
"Senior Discount Notes" means $75.0 million aggregate principal amount at
maturity of 13% Senior Discount Notes due 2010 of Holdings and Muzak Holdings
Finance Corp., a Delaware corporation, as co-issuers, in accordance with the
terms of such security as in effect on the Issue Date.
"Senior Indebtedness" means (1) all Bank Indebtedness and (2) all principal
of and premium, if any, and interest (including, but not limited to, interest
accruing on or after the filing of any petition in any bankruptcy,
reorganization or similar proceeding relating to Muzak or any Restricted
Subsidiary, whether or not a claim for such is allowed in such proceeding) on,
and any and all other fees, fees and expenses of counsel, expense reimbursement
obligations, indemnities and other amounts due pursuant to the terms of all
agreements, indentures, documents and instruments providing for, creating,
securing or evidencing or otherwise entered into in connection with
(a) all obligations of Muzak or any Guarantor with respect to any
Hedging Obligations,
(b) all obligations of Muzak or any Guarantor to reimburse any bank or
other person in respect of amounts paid under letters of credit,
acceptances or other similar instruments,
109
(c) all other Indebtedness of Muzak or any Guarantor which does not
provide that it is to rank pari passu with or subordinate to the Notes or
the Guarantee of such Guarantor, as the case may be, and
(d) all deferrals, renewals, extensions and refundings of, and
amendments, modifications and supplements to, any of the Senior
Indebtedness described above,
in each case, whether outstanding on the Issue Date or created thereafter.
Notwithstanding anything to the contrary in the foregoing, Senior Indebtedness
will not include
(1) Indebtedness of Muzak or any Guarantor to any of its Subsidiaries,
or to any Affiliate of Muzak or such Guarantor or any of such Affiliate's
Subsidiaries,
(2) Indebtedness represented by the Notes and the Guarantees,
(3) any Indebtedness which by the express terms of the agreement or
instrument creating, evidencing or governing the same is junior or
subordinate in right of payment to any item of Senior Indebtedness,
(4) any trade payable arising from the purchase of goods or materials or
for services obtained in the ordinary course of business,
(5) Indebtedness incurred in violation of the Indenture,
(6) Indebtedness represented by Disqualified Capital Stock and
(7) any Indebtedness to or guaranteed on behalf of, any shareholders,
Director, officer or employee of Muzak or any Guarantor or any Subsidiary
of Muzak or such Guarantor.
"Significant Subsidiary" means, with respect to any Person, any Restricted
Subsidiary of such Person that satisfies the criteria for a "significant
subsidiary" set forth in Rule 1.02(w) of Regulation S-X under the Securities
Act, as such Rule is in effect on the Issue Date.
"Standard Securitization Undertakings" means representations, warranties,
covenants and indemnities entered into by the Company or any Subsidiary of
Muzak which are reasonably customary in an accounts receivable or equipment
transaction.
"Subsidiary" of any specified Person means any corporation, partnership,
limited liability company, joint venture, association or other business entity,
whether now existing or hereafter organized or acquired,
(1) in the case of a corporation, of which more than 50% of the total
voting power of the Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors,
officers or trustees thereof is held by such first-named Person or any of
its Subsidiaries; or
(2) in the case of a partnership, limited liability company, joint
venture, association or other business entity, with respect to which such
first-named Person or any of its Subsidiaries has the power to direct or
cause the direction of the management and policies of such entity by
contract or otherwise or if in accordance with GAAP such entity is
consolidated with the first-named Person for financial statement purposes.
Notwithstanding the foregoing a charitable trust or foundation organized
pursuant to section 501(c)(3) of the Internal Revenue Code of 1986, as amended,
shall not be a "Subsidiary."
"Unrestricted Subsidiary" means
(1) any Subsidiary of an Unrestricted Subsidiary and
(2) any Subsidiary of Muzak which is classified after the Issue Date as
an Unrestricted Subsidiary by a resolution adopted by the Board of
Directors of Muzak;
provided that a Subsidiary may be so classified as an Unrestricted Subsidiary
only if
(a) such classification is in compliance with the "Limitation on
Restricted Payments" covenant,
110
(b) immediately after giving effect to such classification, Muzak could
have incurred at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) pursuant to "--Certain Covenants--Limitation on
Additional Indebtedness" above,
(c) no Default or Event of Default shall have occurred and be continuing
or result therefrom, and
(d) neither Muzak nor any Restricted Subsidiary shall at any time
(i) provide a guarantee of, or similar credit support to, any
Indebtedness of such Subsidiary (including any undertaking, agreement or
instrument evidencing such Indebtedness),
(ii) be directly or indirectly liable for any Indebtedness of such
Subsidiary or
(iii) be directly or indirectly liable for any other Indebtedness
which provides that the holder thereof may (upon notice, lapse of time
or both) declare a default thereon (or cause the payment thereof to be
accelerated or payable prior to its final scheduled maturity) upon the
occurrence of a default with respect to any other Indebtedness (other
than Indebtedness assumed by such Subsidiary in connection with the
Electro Systems Acquisition) that is Indebtedness of such Subsidiary
(including any corresponding right to take enforcement action against
such Subsidiary),
except in the case of clause (i) or (ii) to the extent
(i) that Muzak or such Restricted Subsidiary could otherwise provide
such a guarantee or incur such Indebtedness (other than as Permitted
Indebtedness) pursuant to "--Certain Covenants--Limitation on Additional
Indebtedness" above and
(ii) the provision of such guarantee and the incurrence of such
Indebtedness otherwise would be permitted under "--Certain Covenants--
Limitation on Restricted Payments" above.
The Trustee shall be given prompt notice by Muzak of each resolution adopted by
the Board of Directors of Muzak under this provision, together with a copy of
each such resolution adopted. Electro Systems shall be an Unrestricted
Subsidiary as of the Issue Date.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness
at any date, the number of years obtained by dividing (a) the then outstanding
aggregate principal amount of such Indebtedness into (b) the sum of the total
of the products obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment of
principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"Wholly Owned Subsidiary" means any Restricted Subsidiary, all of the
outstanding voting securities (other than directors' qualifying shares) of
which are owned, directly or indirectly, by Muzak.
Book-Entry, Delivery and Form
The exchange notes initially will be represented by one or more global notes
in registered, global form without interest coupons (collectively, the "Global
Note"). The Global Note will be deposited upon issuance with the Trustee as
custodian for the Depositary, in New York, New York, and registered in the name
of the Depositary or its nominee, in each case for credit to an account of a
direct or indirect participant as described below.
Except as set forth below, the Global Note may be transferred, in whole and
not in part, only to another nominee of the Depositary or to a successor of the
Depositary or its nominee. Beneficial interest in the Global Note may not be
exchanged for exchange notes in certificated form except in the limited
circumstances described below. Except in the limited circumstances described
below, owners of beneficial interests in the Global Note will not be entitled
to receive physical delivery of Certificated Notes (as defined below).
111
The exchange notes may be presented for registration of transfer and
exchange at the offices of the Exchange Agent.
The Depositary has advised the Issuers that the Depositary is a limited-
purpose trust company created to hold securities for its participating
organizations (collectively, the "Participants") and to facilitate the
clearance and settlement of transactions in those securities between
Participants through electronic book-entry changes in accounts of Participants.
The Participants include securities brokers and dealers (including the Initial
Purchaser), banks, trust companies, clearing corporations and certain other
organizations. Access to the Depositary's system is also available to other
entities such as banks, brokers, dealers and trust companies that clear through
or maintain a custodial relationship with a Participant, either directly or
indirectly (collectively, "Indirect Participants"). Persons who are not
Participants may beneficially own securities held by or on behalf of the
Depositary only through the Participants or Indirect Participants. The
ownership interest and transfer of ownership interest of each actual purchaser
of each security held by or on behalf of the Depositary are recorded on the
records of the Participants and Indirect Participants.
The Depositary has also advised the Issuers that pursuant to procedures
established by it:
. upon deposit of the Global Note, the Depositary will credit the accounts
of Participants designated by the exchanging holders with portions of the
principal amount of Global Note and
. ownership of such interests in the Global Note will be shown on, and the
transfer of ownership thereof will be effected only through, records
maintained by the Depositary (with respect to Participants) or by
Participants and the Indirect Participants (with respect to other owners
of beneficial interests in the Global Note).
Except as described below, owners of interests in the Global Note will not
have exchange notes registered in their names, will not receive physical
delivery of exchange notes in certificated form and will not be considered the
registered owners or "Holders" thereof under the Indenture for any purpose.
Payments in respect of the principal of, and premium, if any, and Liquidated
Damages, if any, and interest on a Global Note registered in the name of the
Depositary or its nominee will be payable by the Trustee to the Depositary or
its nominee in its capacity as the registered Holder under the Indenture. Under
the terms of the Indenture, the Issuers and the Trustee will treat the persons
in whose names the exchange notes, including the Global Note, are registered as
the owners thereof for the purpose of receiving such payments and for any and
all other purposes whatsoever. Consequently, neither the Issuers, the Trustee
nor any agent of the Issuers or the Trustee has or will have any responsibility
or liability for:
. any aspect of the Depositary's records or any Participant's or Indirect
Participant's records relating to or payments made on account of
beneficial ownership interests in the Global Note, or for maintaining,
supervising or reviewing any of the Depositary's records or any
Participant's or Indirect Participant's records relating to the
beneficial ownership interests in the Global Note or
. any other matter relating to the actions and practices of the Depositary
or any of its Participants or Indirect Participants.
The Depositary has advised the Issuers that its current practice upon
receipt of any payment in respect of securities such as the exchange notes
(including principal and interest) is to credit the accounts of the relevant
Participants with the payment on the payment date, in amounts proportionate to
their respective holdings in principal amount of beneficial interests in the
relevant security as shown on the records of the Depositary unless the
Depositary has reason to believe it will not receive payment on such payment
date. Payments by Participants and the Indirect Participants to the beneficial
owners of exchange notes will be governed by standing instructions and
customary practices and will be the responsibility of the Participants or the
Indirect Participants and will not be the responsibility of the Depositary, the
Trustee or the Issuers. Neither the Issuers nor the Trustee will be liable for
any delay by the Depositary or its Participants in identifying the beneficial
owners of the exchange notes, and the Issuers and the Trustee may conclusively
rely on and will be protected in relying on instructions from the Depositary or
its nominee for all purposes.
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Interests in the Global Note are expected to be eligible to trade in the
Depositary's Same-Day Funds Settlement System and secondary market trading
activity in such interests will, therefore, settle in immediately available
funds, subject in all cases to the rules and procedures of the Depositary and
its Participants. See
"--Same Day Settlement and Payment."
The Depositary has advised the Issuers that it will take any action
permitted to be taken by a Holder of exchange notes only at the direction of
one or more Participants to whose account the Depositary has credited the
interests in the Global Note and only in respect of such portion of the
aggregate principal amount of the exchange notes as to which such Participant
or Participants has or have given direction. However, if there is an Event of
Default under the exchange notes, the Depositary reserves the right to exchange
Global Note for legended exchange notes in certificated form, and to distribute
such exchange notes to its Participants.
The information in this section concerning the Depositary and its book entry
systems has been obtained from sources that the Issuers believe to be reliable,
but the Issuers take no responsibility for the accuracy thereof.
Although the Depositary has agreed to the foregoing procedures to facilitate
transfers of interests in the Global Note among Participants in the Depositary,
it is under no obligation to perform or to continue to perform such procedures,
and such procedures may be discontinued at any time. None of the Issuers, the
Initial Purchaser or the Trustee or any of their respective agents will have
any responsibility for the performance by the Depositary or its respective
participants or indirect participants of their respective obligations under the
rules and procedures governing their operations.
Exchange of Book-Entry Notes for Certificated Notes
A Global Note is exchangeable for definitive exchange notes in registered
certificated form ("Certificated Notes") if:
. the Depositary (A) notifies the Issuers that it is unwilling or unable to
continue as depositary for the Global Note and the Issuers thereupon fail
to appoint a successor depositary or (B) has ceased to be a clearing
agency registered under the Securities Exchange Act,
. the Issuers, at their option, notify the Trustee in writing that they
elect to cause issuance of the Certificated Notes or
. there shall have occurred and be continuing a Default or Event of Default
with respect to the exchange notes.
Neither the Issuers nor the Trustee will be liable for any delay by the
Global Note Holder or the Depositary in identifying the beneficial owners of
exchange notes and the Issuers and the Trustee may conclusively rely on, and
will be protected in relying on, instructions from the Global Note Holder or
the Depositary for all purposes.
Exchange of Certificated Notes for Book-Entry Notes
Certificated Notes may not be exchanged for beneficial interests in any
Global Note unless the transferor first delivers to the Trustee a written
certificate (in the form provided in the indenture) to the effect that such
transfer will comply with the appropriate transfer restrictions applicable to
such Notes. See "Notice to Investors."
Same Day Settlement and Payment
The indenture requires that payments in respect of the exchange notes
represented by the Global Note (including principal, premium, if any, interest
and Liquidated Damages, if any) be made by wire transfer of immediately
available funds to the accounts specified by the Global Note Holder. With
respect to Certificated
113
Notes, the Issuers will make all payments of principal, premium, if any,
interest and Liquidated Damages, if any, by wire transfer of immediately
available funds to the accounts specified by the Holders thereof or, if no such
account is specified, by mailing a check to each such Holder's registered
address. The exchange notes represented by the Global Note are expected to be
eligible to trade in the PORTAL market and to trade in the Depositary's Same-
Day Funds Settlement System, and any permitted secondary market trading
activity in such exchange notes will, therefore, be required by the Depositary
to be settled in immediately available funds. The Issuers expect that secondary
trading in the certificated Notes will also be settled in immediately available
funds.
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EXCHANGE OFFER; REGISTRATION RIGHTS
The Issuers have entered into the Exchange Offer Registration Rights
Agreement pursuant to which they have agreed, for the benefit of the holders
of the existing notes, that they will, at their cost,
(1) within 75 days after the Issue Date, file a registration statement
with the Commission with respect to a registered offer to exchange the
existing notes for the exchange notes, which will have terms substantially
identical in all material respects to the existing notes (except that the
exchange notes will not contain terms with respect to transfer
restrictions) and will be guaranteed by the Guarantors on terms
substantially identical in all material respects to the Guarantees,
(2) within 150 days after the Issue Date, use their best efforts to
cause the exchange offer registration statement to be declared effective
under the Securities Act. Upon the exchange offer registration statement
being declared effective, the Issuers will offer the exchange notes in
exchange for surrender of the existing notes, and
(3) keep the exchange offer open for not less than 30 days (or longer if
required by applicable law) after the date notice of the exchange offer is
mailed to the holders of the existing notes. For each existing note
surrendered to the Issuers pursuant to the exchange offer, the holder of
such note will receive an exchange note having a principal amount equal to
that of the surrendered note.
Under existing Commission interpretations, the exchange notes would in
general be freely transferable after the exchange offer without further
registration under the Securities Act; provided that, in the case of broker-
dealers, a prospectus meeting the requirements of the Securities Act be
delivered as required. The Issuers have agreed for a period of 180 days after
consummation of the exchange offer to make available a prospectus meeting the
requirements of the Securities Act to any broker-dealer for use in connection
with any resale of any such exchange notes acquired as described below. A
broker-dealer that delivers such a prospectus to purchasers in connection with
such resales will be subject to certain of the civil liability provisions
under the Securities Act, and will be bound by the provisions of the Exchange
Offer Registration Rights Agreement (including certain indemnification rights
and obligations).
Each holder of existing notes that wishes to exchange such notes for
exchange notes in the exchange offer will be required to make certain
representations including representations that
(1) any exchange notes to be received by it will be acquired in the
ordinary course of its business,
(2) it has no arrangement with any person to participate in the
distribution of the exchange notes, and
(3) it is not an "affiliate," as defined in Rule 405 of the Securities
Act, of the Issuers or any of the Guarantors, or if it is an affiliate, it
will comply with the registration and prospectus delivery requirements of
the Securities Act to the extent applicable.
If the holder is not a broker-dealer, it will be required to represent that
it is not engaged in, and does not intend to engage in, the distribution of
the exchange notes. If the holder is a broker-dealer that will receive
exchange notes for its own account in exchange for existing notes that were
acquired as a result of market-making activities or other trading activities,
it will be required to acknowledge that it will deliver a prospectus in
connection with any resale of such exchange notes.
In the event that applicable interpretations of the staff of the Commission
do not permit the Issuers to effect such an exchange offer, or if for any
other reason the exchange offer is not consummated within 185 days of the
Issue Date or, under certain circumstances, if the initial purchasers shall so
request, the Issuers will, at their own expense,
(1) as promptly as practicable, file a shelf registration statement
covering resales of the existing notes.
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(2) use their respective best efforts to cause the shelf registration
statement to be declared effective under the Securities Act, and
(3) use their respective best efforts to keep effective the shelf
registration statement until the earlier of the disposition of the existing
notes covered by the shelf registration statement or two years after the
Issue Date.
The Issuers will, in the event of the shelf registration statement, provide
to each holder of the existing notes copies of the prospectus which is a part
of the shelf registration statement, notify each such holder when the shelf
registration statement for the existing notes has become effective and take
certain other actions as are required to permit unrestricted resales of the
existing notes. A holder of the existing notes that sells such existing notes
pursuant to the Shelf Registration Statement generally would be required to be
named as a selling securityholder in the related prospectus and to deliver a
prospectus to purchasers, will be subject to certain of the civil liability
provisions under the Securities Act in connection with such sales and will be
bound by the provisions of the Exchange Offer Registration Rights Agreement
which are applicable to such a holder (including certain indemnification rights
and obligations).
Although the Issuers intend to file one of the registration statements
described above there can be no assurance that such registration statement will
be filed or, if filed, that it will become effective. If the Issuers fail to
comply with the above provisions or if such registration statement fails to
become effective, then, as liquidated damages, additional interest shall become
payable in respect of the existing notes as follows:
(1) If (a) the exchange offer registration statement or shelf
registration statement is not filed within 75 days after the Issue Date or
(b) notwithstanding that the Issuers have consummated or will consummate an
exchange offer, the Issuers are required to file a shelf registration
statement and such shelf registration statement is not filed on or prior to
the date required by the Exchange Offer Registration Rights Agreement;
(2) If (a) an exchange offer registration statement or shelf
registration statement is not declared effective within 150 days after the
Issue Date or (b) notwithstanding that the Issuers have consummated or will
consummate an exchange offer, the Issuers are required to file a shelf
registration statement and such shelf registration statement is not
declared effective by the Commission on or prior to the 75 day following
the date such shelf registration statement was filed; or
(3) If either (a) the Issuers have not exchanged the exchange notes for
all existing notes validly tendered in accordance with the terms of the
exchange offer on or prior to 35 days after the date on which the exchange
offer registration statement was declared effective or (b) the exchange
offer registration statement ceases to be effective at any time prior to
the time that the exchange offer is consummated or (c) if applicable, the
shelf registration statement ceases to be effective at any time prior to
the second anniversary of the Issue Date;
(each such event referred to in clauses (1) through (3) above is a
"Registration Default"), the sole remedy available to holders of the existing
notes will be the immediate assessment of additional interest ("Additional
Interest") as follows: the per annum interest rate on the existing notes will
increase by 50 basis points, and the per annum interest rate will increase by
an additional 25 basis points for each subsequent 90-day period during which
the Registration Default remains uncured, up to a maximum additional interest
rate of 200 basis points per annum in excess of the interest rate on the cover
of this offering memorandum. All Additional Interest will be payable to holders
of the existing notes in cash on each interest payment date, commencing with
the first such date occurring after any such Additional Interest commences to
accrue, until such Registration Default is cured. After the date on which such
Registration Default is cured, the interest rate on the existing notes will
revert to the interest rate originally borne by the existing notes (as shown on
the cover of this offering memorandum).
The summary herein of certain provisions of the Exchange Offer Registration
Rights Agreement does not purport to be complete and is subject to, and is
qualified in its entirety by reference to, all the provisions of the Exchange
Offer Registration Rights Agreement, a copy of which will be available upon
request to any Issuer.
116
CERTAIN UNITED STATES
FEDERAL INCOME TAX CONSIDERATIONS
The following discussion is a summary of certain U.S. Federal income tax
considerations of the exchange of existing notes for exchange notes pursuant
to the exchange offer and the ownership and disposition of exchange notes.
This summary does not purport to be a complete analysis of all the potential
federal income tax effects relating to the purchase, ownership and disposition
of the exchange notes. There can be no assurance that the U.S. Internal
Revenue Service (the "IRS") will take a similar view of such consequences.
Further, the discussion does not address all aspects of taxation that may be
relevant to particular purchasers in light of their individual circumstances
(including the effect of any foreign, state or local laws) or to certain types
of purchasers subject to special treatment under U.S. Federal income tax laws
(including dealers in securities, insurance companies, financial institutions,
persons that hold exchange notes that are a hedge or that are hedged against
currency risks or that are part of a straddle or conversion transaction,
persons whose functional currency is not the U.S. dollar and tax-exempt
entities). The discussion below assumes that the exchange notes are held as
capital assets.
The discussion of the U.S. Federal income tax consequences below is based
on currently existing provisions of the Internal Revenue Code of 1986, as
amended (the "Code"), judicial decisions, and administrative interpretations.
Because individual circumstances may differ, each prospective purchaser or
owner of the exchange notes is strongly urged to consult its own tax advisor
with respect to its particular tax situation and the particular tax effects of
any state, local, non-U.S. or other tax laws and possible changes in the tax
laws. As used herein, the term "U.S. Holder" means a beneficial owner of an
exchange note who or which is for U.S. Federal income tax purposes either:
(a) a citizen or resident of the U.S.;
(b) a corporation, partnership or other entity created or organized in or
under the laws of the U.S. or of any political subdivision thereof;
(c) an estate the income of which is subject to U.S. Federal income
taxation regardless of its source; or
(d) a trust if a court within the U.S. is able to exercise primary
supervision over the administration of the trust and one or more U.S. persons
have the authority to control all substantial decisions of the trust.
The term "U.S. Holder" also includes certain former citizens of the U.S.
whose income and gain on the exchange notes will be subject to U.S. taxation.
As used herein, the term "Non-U.S. Holder" means a beneficial owner of an
exchange note that is not a U.S. holder.
Payments of Interest
Interest paid on an exchange note generally will be taxable to a U.S.
Holder as ordinary income at the time it accrues or is received, in accordance
with the U.S. Holder's method of accounting for federal income tax purposes.
The Company is required to furnish certain information to the IRS, and will
furnish annually to record holders of exchange notes, information with respect
to interest during the calendar year.
Under certain circumstances, Muzak may be entitled to redeem all or a
portion of the exchange notes. In addition, under certain circumstances, each
holder of exchange notes will have the right to require Muzak to repurchase
all or any part of such holder's exchange notes. Treasury Regulations contain
special rules for determining the yield to maturity and maturity on a debt
instrument in the event the debt instrument provides for a contingency that
could result in the acceleration or deferral of one or more payments. Muzak
does not believe that these rules are likely to apply to either Muzak's right
to redeem the exchange notes or to the holders' rights to require Muzak to
repurchase the exchange notes. Therefore, Muzak does not intend to treat such
redemption and repurchase provisions of the exchange notes as affecting the
computation of the yield to maturity or maturity date of the exchange notes.
117
Market Discount and Premium
If a U.S. Holder that acquires an exchange note has a tax basis in the
exchange note that is less than its "stated redemption price at maturity," the
amount of the difference is treated as "market discount" for U.S. federal
income tax purposes, unless such difference is less than a statutory de minimis
amount. Under the market discount rules of the Code, a U.S. Holder must treat
any principal payment on, or any amount received on the sale, exchange,
retirement or other disposition of, an exchange note as ordinary income to the
extent of any market discount that has not previously been included in income
and is treated as having accrued on the exchange note by the time of such
payment or disposition. Market discount accrues on a straight-line basis over
the remaining term of an exchange note, unless the holder makes an irrevocable
election with the IRS to accrue market discount on the basis of a constant
interest rate. If a U.S. Holder makes a gift of such an exchange note, accrued
market discount, if any, is recognized as if the U.S. Holder had sold the
exchange note for its fair market value. A U.S. Holder may not be allowed to
deduct immediately all or a portion of the interest expense on any indebtedness
incurred or continued to purchase or to carry such Note. A U.S. Holder may
elect to include market discount in income currently as it accrues (either on a
straight-line basis or, if the Holder so elects, on a constant yield basis), in
which case the interest deferral rule described in the preceding sentence will
not apply. Such an election will apply to all bonds acquired by the U.S. Holder
on or after the first day of the first taxable year to which such election
applies and may be revoked only with the consent of the IRS.
If a U.S. Holder purchases an exchange note for an amount greater than the
sum of all amounts payable on the exchange note after the purchase date, other
than stated interest, the holder is considered to have purchased the exchange
note with "amortizable bond premium" equal to such excess, and may elect to
amortize such premium using a constant yield method over the remaining term of
the exchange note. The amount amortized in any year is treated as a reduction
of the U.S. Holder's interest income from the exchange note in such year. A
U.S. Holder that elects to amortize bond premium must reduce its tax basis in
the exchange note by the amount of the premium amortized each year. An election
to amortize bond premium applies to all taxable debt obligations then owned and
thereafter acquired by the U.S. Holder and may be revoked only with the consent
of the IRS.
Exchange of existing notes
The exchange of existing notes for exchange notes with terms identical to
those of the existing notes and the filing of a registration statement with
respect to the resale of the existing notes will not be a taxable event to
holders of the existing notes. Consequently, as a result of such an exchange or
such a filing, no gain or loss will be recognized by a holder, the holding
period of the exchange note will include the holding period of the existing
note and the basis of the exchange note will be the same as the basis of the
existing note immediately before the exchange. The Issuers are obligated to pay
liquidated damages to the holders of the existing notes under certain
circumstances described under the "The Exchange Offer--Purpose and Effect of
the Exchange Offer" above. Any such payments should be treated for tax purposes
as interest, taxable to holders as such payments are received or accrued in
accordance with the holder's method of accounting for federal income tax
purposes.
In any event, persons considering the exchange of existing notes for
exchange notes should consult their own tax advisors concerning the United
States federal income tax consequences in light of their particular situations
as well as any consequences arising under the laws of any other taxing
jurisdiction.
Sale, Exchange or Retirement of Notes
Upon the sale, exchange or retirement of an exchange note, a U.S. Holder
will recognize taxable gain or loss equal to the difference between the amount
realized on the sale, exchange or retirement (not including any amount
attributable to accrued but unpaid interest) and such holder's adjusted tax
basis in the exchange note. A U.S. Holder's adjusted tax basis in an exchange
note generally is equal to the cost of the exchange note to such holder,
increased by the amount of any market discount previously included in income by
the holder with respect to such exchange note and reduced by any amortized bond
premium and any principal payment on an exchange note received by such holder.
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Subject to the discussion of market discount above, gain or loss realized on
the sale, exchange or retirement of an exchange note by a U.S. Holder will be
capital gain or loss, and will be long-term capital gain or loss if at the time
of the sale, exchange or retirement, the U.S. Holder has held the Note for more
than one year. For a U.S. Holder who is an individual, net capital gain is
taxed at a maximum rate of 20% if the U.S. Holder's holding period is more than
12 months. The distinction between capital gain or loss and ordinary income or
loss is also relevant for purposes of, among other things, limitations on the
deductibility of capital losses.
Tax Consequences to Non-U.S. Holders
Under present U.S. federal income tax law, and subject to the discussion
below concerning backup withholding:
(1) payments of principal or interest on the exchange notes by Muzak or any
paying agent to a beneficial owner of an exchange note that is a Non-U.S.
Holder will not be subject to U.S. federal withholding tax, provided that, in
the case of interest:
(a) such Non-U.S. Holder does not own, actually or constructively, 10%
or more of Muzak;
(b) such Non-U.S. Holder is not, for U.S. federal income tax purposes, a
controlled foreign corporation related, directly or indirectly, to Muzak
through stock ownership;
(c) such Non-U.S. Holder is not a bank receiving interest described in
Section 881(c)(3)(A) of the Code; and
(d) the certification requirements under Section 871(h) or Section
881(c) of the Code and Treasury Regulations thereunder (summarized below)
are met; and
(2) a Non-U.S. Holder of an exchange note will not be subject to U.S.
federal income tax on gains realized on the sale, exchange or other disposition
of such exchange note, unless:
(a) such holder is an individual who is present in the U.S. for 183 days
or more in the taxable year of sale, exchange or other disposition, and
certain other conditions are met;
(b) such gain is effectively connected with the conduct by such Non-U.S.
Holder of a trade or business in the U.S., and if certain tax treaties
apply, is attributable to a U.S. permanent establishment maintained by the
Non-U.S. Holder; or
(c) the Non-U.S. Holder is subject to tax pursuant to the Code
provisions applicable to certain U.S. expatriates.
Sections 871(h) and 881(c) of the Code and currently effective Treasury
Regulations thereunder require that, to obtain the exemption from withholding
tax described above, either (a) the beneficial owner of an exchange note must
certify, under penalties of perjury, to Muzak or paying agent, as the case may
be, that such owner is a Non-U.S. Holder and must provide such owner's name and
address, and U.S. taxpayer identification number ("TIN"), if any, or (b) a
securities clearing organization, bank or other financial institution that
holds customers' securities in the ordinary course of its trade or business (a
"Financial Institution") that holds the exchange note on behalf of the
beneficial owner thereof must certify, under penalties of perjury, to Muzak or
paying agent, as the case may be, that such certificate has been received from
the beneficial owner by it or by a Financial Institution between it and the
beneficial owner and must furnish the payor with a copy thereof. A certificate
described in this paragraph is effective only with respect to payments of
interest made to the certifying Non-U.S. Holder after delivery of the
certificate in the calendar year of its delivery and the two immediately
succeeding calendar years. Under currently effective U.S. Treasury Regulations,
such requirement
119
will be fulfilled if the beneficial owner of an exchange note certifies on IRS
Form W-8, under penalties of perjury, that it is a Non-U.S. Holder and provides
its name and address, and any Financial Institution holding the Note on behalf
of the beneficial owner files a statement with the withholding agent to the
effect that it has received such a statement from the beneficial owner (and
furnishes the withholding agent with a copy thereof).
If a Non-U.S. Holder of an exchange note is engaged in a trade or business
in the U.S., and if interest on the exchange note, or gain realized on the
sale, exchange or other disposition of the exchange note, is effectively
connected with the conduct of such trade or business and, if certain tax
treaties apply, is attributable to a U.S. permanent establishment maintained by
the Non-U.S. Holder, the Non-U.S. Holder, although exempt from U.S. withholding
tax, will generally be subject to regular U.S. income tax on such interest or
gain in the same manner as if it were a U.S. Holder. In lieu of the certificate
described in the preceding paragraph, such a holder must provide Muzak a
properly executed IRS Form 4224 to claim an exemption from withholding tax. In
addition, if such Non-U.S. Holder is a foreign corporation, it may be subject
to a branch profits tax equal to 30% (or such lower rate provided by an
applicable treaty) of its effectively connected earnings and profits for the
taxable year, subject to certain adjustments. For purposes of the branch
profits tax, interest on and any gain recognized on the sale, exchange or other
disposition of an exchange note is included in the earnings and profits of the
Non-U.S. Holder if such interest or gain is effectively connected with the
conduct by the Non-U.S. Holder of a trade or business in the U.S.
Treasury Regulations released on October 6, 1997 (the "New Regulations") and
effective for payments made after December 31, 2000, will provide alternative
methods for satisfying the reporting and certification requirements described
herein. The New Regulations also will require, in the case of exchange notes
held by a foreign partnership, that (x) the certification be provided by the
partners rather than by the foreign partnership and (y) the partnership provide
certain information, including a U.S. taxpayer identification number. A look-
through rule will apply in the case of tiered partnerships.
Backup Withholding
Under current U.S. federal income tax law, a 31% backup withholding tax
requirement applies to certain payments of interest on and the proceeds of a
sale, exchange or redemption of, the exchange notes.
Backup withholding generally does not apply with respect to payments made to
certain exempt recipients, such as corporations or certain tax-exempt entities.
In the case of a non-corporate U.S. Holder, backup withholding applies only if:
(a) such holder fails to furnish the holder's TIN, which, for an
individual, is his or her Social Security number;
(b) furnishes an incorrect TIN;
(c) the Issuer is notified by the IRS that the holder has failed to
properly report payments of interest and dividends; or
(d) under certain circumstances, the holder fails to certify, under
penalties of perjury, that the holder has furnished a correct TIN and has
not been notified by the IRS that the holder is subject to backup
withholding for failure to report interest and dividend payments.
In the case of a Non-U.S. Holder, under currently effective Treasury
Regulations, backup withholding will not apply to payments made by Muzak or any
paying agent thereof on a Note if the holder has provided the required
certification under penalties of perjury that it is not a U.S. Holder or has
otherwise established an exemption, provided in each case that Muzak or such
paying agent, as the case may be, does not have actual knowledge that the payee
is a U.S. Holder.
Under currently effective Treasury Regulations, if payments on an exchange
note are made to or through a foreign office of a custodian, nominee or other
agent acting on behalf of a beneficial owner of an exchange note, such
custodian nominee or other agent will not be required to apply backup
withholding to such payments
120
made to such beneficial owner. However, under the New Regulations, backup
withholding may apply to payments made after December 31, 2000 if such
custodian, nominee or other agent has actual knowledge that the payee is a U.S.
Holder.
Under currently effective Treasury Regulations, payments on the sale,
exchange or other disposition of a Note made to or through a foreign office of
a broker generally will not be subject to backup withholding. However, under
the New Regulations, backup withholding may apply to payments made after
December 31, 2000 if the broker has actual knowledge that the payee is a U.S.
Holder. In the case of proceeds from a sale of a Note by a Non-U.S. Holder paid
to or through the foreign office of a U.S. broker or a foreign office of a
foreign broker that is (a) a controlled foreign corporation for U.S. tax
purposes or (b) a person 50% or more of whose gross income for the three-year
period ending with the close of the taxable year preceding the year of payment
(or for the part of that period that the broker has been in existence) is
effectively connected with the conduct of a trade or business within the U.S.,
information reporting is required unless the broker has documentary evidence in
its files that the payee is not a U.S. person and certain other conditions are
met, or the payee otherwise establishes an exemption. Payments to or through
the U.S. office of a broker are subject to backup withholding and information
reporting unless the holder certifies, under penalties of perjury, that it is
not a U.S. Holder and that certain other conditions are met or otherwise
establishes an exemption.
Holders of exchange notes should consult their tax advisors regarding the
application of backup withholding in their particular situations, the
availability of an exemption therefrom, and the procedure for obtaining such an
exemption, if available. Any amounts withheld from payment under the backup
withholding rules will be allowed as a credit against the holder's U.S. federal
income tax liability and may entitle the holder to a refund if the required
information is furnished to the IRS.
THE FOREGOING DISCUSSION IS FOR GENERAL INFORMATION ONLY AND IS NOT TAX
ADVICE. ACCORDINGLY, EACH PROSPECTIVE HOLDER OF A NOTE SHOULD CONSULT ITS OWN
TAX ADVISOR AS TO THE PARTICULAR TAX CONSEQUENCES TO THE PROSPECTIVE HOLDER OF
PURCHASING, HOLDING AND DISPOSING OF THE NOTES, INCLUDING THE APPLICABILITY AND
EFFECT OF ANY STATE, LOCAL, OR NON-U.S. INCOME TAX LAWS AND ANY RECENT OR
PROSPECTIVE CHANGES IN APPLICABLE TAX LAWS AND THE EFFECT OF THE NEW
REGULATIONS WITH RESPECT TO PAYMENTS MADE AFTER DECEMBER 31, 2000.
121
PLAN OF DISTRIBUTION
Each Participating Broker-Dealer that receives exchange notes for its own
account pursuant to the exchange offer must acknowledge that it will deliver a
prospectus in connection with any resale of such exchange notes. This
prospectus, as it may be amended or supplemented from time to time, may be used
by a Participating Broker-Dealer in connection with the resale of exchange
notes received in exchange for existing notes where such existing notes were
acquired as a result of market-making activities or other trading activities.
The Issuers have agreed that for a period of 180 days from the consummation of
the exchange offer, they will make this prospectus, as amended or supplemented,
available to any Participating Broker-Dealer for use in connection with any
such resale. In addition, until 90 days after the commencement of the exchange
offer, all dealer effecting transactions in the exchange notes may be required
to deliver a prospectus.
The Issuers will not receive any proceeds from any sales of the exchange
notes by Participating Broker- Dealers. Exchange notes received by
Participating Broker-Dealers for their own account pursuant to the exchange
offer may be sold from time to time in one or more transactions in the over-
the-counter market, in negotiated transactions, through the writing of options
on the exchange notes or a combination of such methods of resale, at market
prices prevailing at the time of resale, at prices related to such prevailing
market prices or negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation in
the form of commissions or concessions from any such Participating Broker-
Dealer and/or the purchasers of any such exchange notes. Any Participating
Broker-Dealer that resells the exchange notes that were received by it for its
own account pursuant to the exchange offer and any broker or dealer that
participates in a distribution of such exchange notes may be deemed to be an
"underwriter" within the meaning of the Securities Act and any profit on any
such resale of exchange notes and any commissions or concessions received by
any such persons may be deemed to be underwriting compensation under the
Securities Act. The Letter of Transmittal states that by acknowledging that it
will deliver and by delivering a prospectus, a Participating Broker-Dealer will
not be deemed to admit that it is an "underwriter" within the meaning of the
Securities Act.
For a period of 180 days after the Expiration Date, the Issuers will
promptly send additional copies of this prospectus and any amendment or
supplement to this prospectus to any Participating Broker-Dealer that requests
such documents in the Letter of Transmittal.
LEGAL MATTERS
Kirkland & Ellis, Chicago, Illinois will pass upon the validity of the
exchange notes offered hereby and certain other legal matters on behalf of the
Issuers.
EXPERTS
The financial statements of Audio Communications Network, LLC as of December
31, 1998 and for the period from October 7, 1998 through December 31, 1998
included in this prospectus, have been so included in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
The consolidated statements of operations, changes in stockholders' equity
and cash flows of Audio Communications Network, Inc. for the period from
January 1, 1998 through October 6, 1998 included in this prospectus, have been
so included in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
The consolidated financial statements of Audio Communications Network, Inc.
as of December 31, 1996 and 1997 and for each of the two years ended December
31, 1997 included in this prospectus, have been audited by Deloitte & Touche
LLP, independent auditors, as stated in their report appearing herein, and are
included in reliance upon the reports of such firm given upon their authority
as experts in accounting and auditing.
122
The consolidated financial statements of Muzak Limited Partnership as of
December 31, 1997 and 1998 and for each of the three years ended December
31,1998 included in this prospectus, have been audited by Deloitte & Touche
LLP, independent auditors, as stated in their report appearing herein, and are
included in reliance upon the reports of such firm given upon their authority
as experts in accounting and auditing.
ADDITIONAL INFORMATION
We have filed with the Commission a Registration Statement on Form S-4 (the
"Registration Statement," which term shall encompass all amendments, exhibits,
annexes and schedules thereto) pursuant to the Securities Act, and the rules
and regulations promulgated thereunder, covering the exchange offer
contemplated hereby. This prospectus does not contain all the information set
forth in the Registration Statement. For further information with respect to
our company and the exchange offer, reference is made to the Registration
Statement. Statements made in this prospectus as to the contents of any
contract, agreement, or other document filed as an exhibit to the Registration
Statement, reference is made to the exhibit for a more complete description of
the document or matter involved, and each such statement shall be deemed
qualified in its entirety by such reference.
We are not currently subject to the periodic reporting and other
informational requirements of the Securities Exchange Act. Upon the
effectiveness of the Registration Statement, we will become subject to the
periodic reporting and other informational requirements of the Securities
Exchange Act, and in accordance therewith, will be required to file periodic
reports and other information with the SEC. We have agreed that, whether or not
we are required to do so by the rules and regulations of the SEC, for so long
as any of the exchange notes remain outstanding, we will furnish to the holders
of the exchange notes, on a combined consolidated basis:
. quarterly and annual financial statements substantially equivalent to
financial statements that would have been included in a filing with the
SEC on Forms 10-Q and 10-K if we were required to file such financial
information, including a "Management's Discussion and Analysis of
Financial Condition and Results of Operations" that describes our
financial condition and results of operations and, with respect to the
annual information only, reports thereon by our independent public
accountants, and
. all information that would be required to be filed with the SEC on Form
8-K if we were required to file such reports.
In addition, for so long as any of the exchange notes remain outstanding, we
have agreed to furnish to the holders and to securities analysts and
prospective investors, upon their request, the information required to be
delivered by Rule 144A(d)(4) under the Securities Act.
The Registration Statement may be inspected at the public reference
facilities maintained by the SEC at 450 Fifth Street, N.W., Washington, D.C.
20549 and at the regional offices of the SEC located at 7 World Trade Center,
Suite 1300, New York, New York 10048 and Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of such materials may
be obtained from the Public Reference Section of the SEC, 450 Fifth Street,
N.W., Washington, D.C. 20549 at prescribed rates. The SEC maintains a web site
at http://www.sec.gov that contains reports and other information regarding
registrants, like Avalon, that file electronically with the SEC.
123
INDEX TO THE FINANCIAL STATEMENTS
Page
----
Audio Communications Network, LLC
Report of Independent Accountants....................................... F-2
Balance Sheet as of December 31, 1998................................... F-4
Statement of Operations for the period from October 7, 1998
through December 31, 1998.............................................. F-5
Statement of Changes in Members' Interest for the period from October 7,
1998
through December 31, 1998.............................................. F-6
Statement of Cash Flows for the period from October 7, 1998
through December 31, 1998.............................................. F-7
Notes to the Financial Statements....................................... F-8
Audio Communications Network, Inc.
Report of Independent Accountants....................................... F-3
Consolidated Statement of Operations for the period from January 1, 1998
through October 6, 1998................................................ F-5
Consolidated Statement of Changes in Stockholders' Equity for the period
from January 1, 1998 through October 6, 1998........................... F-6
Consolidated Statement of Cash Flows for the period from January 1, 1998
through October 6, 1998................................................ F-7
Notes to the Financial Statements....................................... F-8
Audio Communications Network, Inc.
Report of Independent Certified Public Accountants...................... F-13
Consolidated Balance Sheets as of December 31, 1996 and 1997............ F-14
Consolidated Statement of Operations for the two years ended December
31, 1996 and 1997...................................................... F-16
Consolidated Statement of Stockholders' Equity for the two years ended
December 31, 1996 and 1997............................................. F-17
Consolidated Statement of Cash Flows for the two years ended December
31, 1996 and 1997...................................................... F-18
Notes to the Consolidated Financial Statements.......................... F-20
Muzak Limited Partnership
Independent Auditors' Report............................................ F-27
Consolidated Balance Sheets as of December 31, 1997 and 1998............ F-28
Consolidated Statement of Operations for the three years ended December
31, 1996, 1997 and 1998................................................ F-29
Consolidated Statements of Partners' Deficit for the three years ended
December 31, 1996, 1997 and 1998....................................... F-30
Consolidated Statements of Cash Flows for the three years ended December
31, 1996, 1997 and 1998................................................ F-32
Notes to the Consolidated Financial Statements.......................... F-33
F-1
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors
of Audio Communications Network, LLC
In our opinion, the accompanying balance sheet and the related statements of
operations, changes in member's interest and of cash flows present fairly, in
all material respects, the financial position of Audio Communications Network,
LLC (the "Company") at December 31, 1998, and the results of its operations and
its cash flows for the period from October 7, 1998 to December 31, 1998, in
conformity with generally accepted accounting principles. 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 of these statements in accordance with
generally accepted auditing standards which require that we plan and perform
the audit to obtain reasonable assurance about whether the financial statements
are free of material misstatement. An audit includes examining, on a test
basis, evidence supporting the amounts and disclosures in the financial
statements, assessing the accounting principles used and significant estimates
made by management, and evaluating the overall financial statement
presentation. We believe that our audit provides a reasonable basis for the
opinion expressed above.
/s/ PricewaterhouseCoopers LLP
February 19, 1999
Charlotte, North Carolina
F-2
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors
of Audio Communications Network, LLC
In our opinion, the accompanying consolidated statements of operations,
changes in stockholders' equity and cash flows of Audio Communications Network,
Inc. ("ACN" or "Predecessor Company") present fairly, in all material respects,
the results of their operations and their cash flows for the period from
January 1, 1998 to October 6, 1998 in conformity with generally accepted
accounting principles. These financial statements are the responsibility of
ACN's management; our responsibility is to express an opinion on these
financial statements based on our audit. We conducted our audit of these
statements in accordance with generally accepted auditing standards which
require that we plan and perform the audit to obtain reasonable assurance about
whether the financial statements are free of material misstatement. An audit
includes examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statements, assessing the accounting principles
used and significant estimates made by management, and evaluating the overall
financial statement presentation. We believe that our audit provides a
reasonable basis for the opinion expressed above.
/s/ PricewaterhouseCoopers LLP
February 19, 1999
Charlotte, North Carolina
F-3
AUDIO COMMUNICATIONS NETWORK, LLC
BALANCE SHEET
(dollars in thousands)
Audio
Communications
Network, LLC
December 31,
1998
--------------
Assets
Current assets:
Cash and cash equivalents..................................... $ 1,293
Accounts receivable, net of allowance for doubtful accounts of
$450......................................................... 1,764
Inventories................................................... 1,323
Prepaid expenses and other assets............................. 125
-------
Total current assets........................................ 4,505
Property and equipment, net..................................... 17,499
Intangible assets, net.......................................... 49,039
Deposits and other assets....................................... 1,884
-------
Total assets................................................ $72,927
=======
Liabilities and Member's Interest
Current liabilities:
Current portion of notes payable to related parties........... $42,183
Current portion of obligations under capital lease............ 34
Accounts payable.............................................. 2,439
Accrued expenses.............................................. 1,525
-------
Total current liabilities................................... 46,181
Notes payable to related parties, net of current portion........ 460
Obligations under capital lease, net of current portion......... 26
-------
Total liabilities........................................... 46,667
Commitment and contingencies (Note 9)...........................
Member's interest:
Member's capital.............................................. 27,407
Accumulated deficit........................................... (1,147)
-------
Total member's interest..................................... 26,260
-------
Total liabilities and member's interest..................... $72,927
=======
The accompanying notes are an integral part of these financial statements
F-4
AUDIO COMMUNICATIONS NETWORK, LLC
STATEMENTS OF OPERATIONS
(dollars in thousands)
Audio Communications Audio Communications
Network, Inc. for the Network, LLC for the
period from period from
January 1, 1998 October 7, 1998
through through
October 6, 1998 December 31, 1998
--------------------- --------------------
Revenues............................................................................ $18,917 $ 5,914
Costs and expenses:
Cost of sales..................................................................... 8,206 2,556
Selling, general and administrative expenses...................................... 7,245 1,794
Depreciation and amortization expense............................................. 4,372 1,683
------- -------
Total cost and expenses......................................................... 19,823 6,033
------- -------
Loss from operations................................................................ (906) (119)
Other income (expense)
Interest expense.................................................................. (2,520) (1,033)
Other, net........................................................................ 6 5
------- -------
Loss before income taxes............................................................ (3,420) (1,147)
Provision for income taxes.......................................................... (8) --
------- -------
Net loss............................................................................ (3,428) $(1,147)
- --------------------------------------------------
======= =======
The accompanying notes are an integral part of these financial statements
F-5
AUDIO COMMUNICATIONS NETWORK, LLC
STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY AND MEMBER'S INTEREST
(dollars in thousands)
AUDIO COMMUNICATIONS NETWORK, INC:
Contributed
Capital Total
Common in Excess Accumulated Stockholders'
Stock of Par Deficit Equity
------ ----------- ----------- -------------
Balance at December 31, 1997...... $1,126 $9,851 $(2,799) $ 8,178
Stock options exercised........... 1 6 -- 7
Net loss.......................... -- -- (3,428) (3,428)
------ ------ ------- -------
Balance at October 6, 1998........ $1,127 $9,857 $(6,227) $ 4,757
====== ====== ======= =======
- --------------------------------------------------------------------------------
AUDIO COMMUNICATIONS NETWORK, LLC:
Total
Member's Accumulated Member's
Capital Deficit Interest
-------- ----------- --------
Balance at October 7, 1998 (prior to initial
contribution by Parent)........................ $ -- $ -- $ --
Contribution by Parent.......................... 8,602 -- 8,602
Conversion of notes payable due to Parent....... 18,805 -- 18,805
Net loss........................................ -- (1,147) (1,147)
------- ------- -------
Balance at December 31, 1998.................... $27,407 $(1,147) $26,260
======= ======= =======
The accompanying notes are an integral part of these financial statements
F-6
AUDIO COMMUNICATIONS NETWORK, LLC
STATEMENTS OF CASH FLOWS
(dollars in thousands)
Audio Communications Audio Communications
Network, Inc. for the Network, LLC for the
period from period from
January 1, 1998 October 7, 1998
through through
October 6, 1998 December 31, 1998
--------------------- --------------------
Cash flows from operating activities:
Net loss.......................................................................... $(3,428) $(1,147)
Adjustments to reconcile net loss to net cash provided by operating activities:
Depreciation and amortization................................................... 4,372 1,683
Amortization of discount on notes payable to a related party.................... 58 20
Interest contributed to equity.................................................. -- 145
Deferred commissions............................................................ (524) (209)
Loss on disposal of fixed assets................................................ 26 13
(Increase) decrease in operating assets and liabilities net of effects of
acquisitions:
Accounts receivable........................................................... 241 95
Inventories................................................................... 303 (524)
Prepaid expenses and other.................................................... 54 (52)
Accounts payable.............................................................. 379 546
Accrued liabilities........................................................... 112 597
------- -------
Net cash provided by operating activities................................... 1,593 1,167
Cash flows from investing activities:
Capital expenditures.............................................................. (3,538) (1,308)
Acquisitions net of cash.......................................................... -- (67,028)
------- -------
Net cash used in investing activities....................................... (3,538) (68,336)
Cash flows from financing activities:
Proceeds from related party notes payable......................................... -- 59,478
Proceeds from long-term debt...................................................... 2,200 --
Proceeds from contributions by Parent............................................. -- 8,602
Principal payments under capital lease obligations................................ (52) (8)
Repayment of long-term debt....................................................... (500) --
Proceeds from sale of stock....................................................... 7 --
------- -------
Net cash provided by financing activities................................... 1,655 68,072
Net Increase (decrease) in cash and cash equivalents................................ (290) 903
Cash and cash equivalents, beginning of period...................................... 680 390
------- -------
Cash and cash equivalents, end of period............................................ $ 390 $ 1,293
======= =======
- --------
Supplemental disclosures:
Cash paid for interest ........................................................... $ 2,900 $ 2
--------------------------------------------------
======= =======
The accompanying notes are an integral part of these financial statements
F-7
AUDIO COMMUNICATIONS NETWORK, LLC
NOTES TO THE FINANCIAL STATEMENTS
(dollars in thousands)
1. Description of Business
Audio Communications Network, LLC (the "Company") was formed in September
1998, pursuant to the laws of Delaware, as a wholly owned subsidiary of ACN
Holdings, LLC (the "Parent"). The Company owns and operates Muzak Limited
Partnership ("Muzak") franchises, which provide background music programming
and ancillary services to customers, located in Baltimore, Maryland; Kansas
City and St. Louis, Missouri; Jacksonville, Florida; Fresno, California;
Phoenix, Arizona; Charlotte and Hillsborough, North Carolina; as its single
line of business. The Company began its operations on October 7, 1998, with
the acquisition of certain assets and liabilities of Audio Communications
Network, Inc ("ACN" or "Predecessor Company") (Note 3).
2. Summary of Significant Accounting Policies
Principles of Consolidation
All intercompany balances and transactions are eliminated in the ACN
consolidated financial statements.
Cash and Cash Equivalents
Cash equivalents include demand and interest-bearing deposits due from
banks with original maturities of 90 days or less. Cash and cash equivalents
also includes a contribution from the Parent of $202, which use is restricted
for the January 15, 1999 acquisition of Business Sound, Inc. (Note 10).
Inventories
Inventories consist primarily of electronic equipment and are stated at the
lower of cost or market. Cost is determined by the first-in, first-out method.
Property and Equipment
Property is recorded at cost. Depreciation is computed on the straight-line
method over the estimated useful lives of the assets, ranging from three to
twenty years. Sound and music equipment installed at customer premises under
contracts to provide music programming services is transferred from inventory
to property and equipment at cost plus an allocation of installation costs and
is amortized over 8 years.
Intangible Assets
Goodwill, the excess of the purchase price over the fair value of net
assets of businesses acquired, is amortized over twenty years using the
straight-line method. Other intangible assets acquired, principally subscriber
contract rights, are amortized using the straight-line method over periods
ranging from 8 to 14 years. Management evaluates the recoverability of
intangibles by comparing recorded values to the undiscounted future cash flows
that can be generated by such assets. Impairment losses are recognized if
recorded values exceed undiscounted future cash flows, by reducing them to
estimated fair value. No impairment losses were recognized by the Company or
ACN for the periods presented.
Income Taxes
As a Limited Liability Company ("LLC"), federal and state income taxes are
the responsibility of the Company's member. Accordingly, the financial
statements of the Company includes no provision for income taxes.
F-8
AUDIO COMMUNICATIONS NETWORK, LLC
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands)
Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities,
disclosure of contingent assets and liabilities at the date of the financial
statements, and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
Revenue Recognition
Revenues from music services are recognized on a straight-line basis over
the term of the customer contracts in the period services are provided.
Revenues for equipment sales and installation are recognized upon delivery or
installation. Contracts are typically for a five-year period with renewal
options for an additional five years.
Concentrations of Credit Risk
The Company maintains its cash in bank accounts that at times may exceed
federally insured limits. The Company performs ongoing credit evaluations of
its customers and generally requires no collateral from the customers. Credit
losses are provided for in the financial statements and consistently have been
within management's expectations. Management believes that the Company's credit
risk is somewhat lessened due to the fact that its customers operate in a wide
range of industries and are geographically disbursed.
3. Acquisition of ACN
On October 7, 1998, the Company acquired certain assets and liabilities of
ACN for $66,818. The acquisition was accounted for using the purchase method of
accounting. Accordingly, the consideration paid was allocated based on the
estimated fair market value of the net assets acquired as determined by an
independent appraisal. The excess of the consideration paid over the estimated
fair market value of the net assets acquired approximated $17,000 and is being
amortized using the straight-line method over 20 years.
In order to complete the acquisition of ACN, the Company received a $8,400
capital contribution from the Parent, and issued notes payable to a related
party and the Parent for $40,817 (see note 6) and $17,600, respectively.
On December 4, 1998, the Parent converted the $17,600 note payable along
with additional notes issued during the period of October 7, 1998 through
December 31, 1998 which approximated $1,060, plus accrued interest of $145,
into membership interest.
As a result of the transaction and application of purchase accounting,
financial information for the period from October 7, 1998 through December 31,
1998 represents that of the Company, which is presented on a different basis
than that of the Predecessor Company for the period from January 1, 1998
through October 6, 1998, and therefore is not comparable.
The following presents the unaudited pro forma results of the Company for
the twelve month period ended December 31, 1998, as if the acquisition of ACN,
by the Company, occurred on January 1, 1998. These unaudited pro forma results
are not necessarily indicative of the results that will occur in the future.
Revenue............................. $24,831
=======
Loss from operations................ $(2,197)
=======
Net loss............................ $(6,622)
=======
F-9
AUDIO COMMUNICATIONS NETWORK, LLC
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands)
4. Property and Equipment
At December 31, 1998, property and equipment consist of the following:
Leasehold improvements............... $ 132
Equipment............................ 17,770
Furniture and fixtures............... 397
-------
18,299
Less: accumulated depreciation....... (800)
-------
$17,499
=======
Depreciation expense approximated $800 for the period from and October 7,
1998 through December 31, 1998.
Depreciation expense approximated $1,865 for the period from January 1,
1998 through October 6, 1998.
5. Intangible Assets
At December 31, 1998, intangible assets consist of the following:
Subscriber contracts................. $32,930
Goodwill............................. 16,971
Other................................ 21
-------
49,922
Less: accumulated amortization....... (883)
-------
$49,039
=======
Amortization expense approximated $883 for the period from October 7, 1998
through December 31, 1998.
Amortization expense approximated $2,507 for the period from January 1,
1998 through October 6, 1998.
6. Notes Payable to Related Parties
At December 31, 1998, notes payable to related parties included the
following;
Promissory note payable to a related party due October 6, 1999;
including unpaid interest of $866, which compounds quarterly at
variable interest rate (approximately 9% at December 31, 1998)
and is payable at maturity....................................... $41,683
Note payable to a related party; two annual payments of $500 due
January 1999 and 2000, respectively, net of unamortized discount
(at 10%) of $40 at December 31, 1998............................. 960
-------
42,643
Less: current portion of notes payable to related parties...... (42,183)
-------
$ 460
=======
F-10
AUDIO COMMUNICATIONS NETWORK, LLC
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands)
7. Income Taxes
The income tax provision for ACN for the period from January 1, 1998 through
October 6, 1998 consists of deferred state taxes of $8. ACN's effective tax
rate differs from the statutory federal income tax rate as a result of
nondeductible expenses and an increase in the valuation allowance for deferred
tax assets.
8. Employee Benefit Plans
ACN had a noncontributory defined contribution pension plan covering
substantially all of ACN employees who met certain age and length of service
qualifications. ACN's policy was to fund pension cost with annuity contracts.
During 1998, ACN decided to terminate the plan. Vested benefits will be
contributed to the successor plan sponsored by the Company.
The Company has a profit-sharing plan continued from the Predecessor Company
which covers all employees of the Company who have at least one-half year of
service. Contributions to the plan by employees may be at least 1% but not more
than 15% of annual salary, subject to certain restrictions. Contributions by
the Company to the plan are discretionary. Employees are always 100% vested in
employee contributions; no vesting in employer contributions occurs prior to
the first two years of service and 100% vesting occurs after the third year of
service. Plan expense for the period from October 7, 1998 to December 31, 1998
and the period from January 1, 1998 to October 6, 1998 was $55 and $23,
respectively.
9. Commitments and Contingencies
Certain equipment and office and warehouse facilities are held under non-
cancelable operating leases. The Company has also entered into various
agreements with broadcasting companies in order to transmit music service to
its customers through the broadcasting companies' subchannels. Rent expense
under the operating leases and broadcasting agreements was approximately $94
during the period from October 7, 1998 through December 31, 1998. The following
is a summary of future payments on equipment under non-cancelable operating
leases together with the present value of net minimum payments of equipment
under capital leases at December 31, 1998:
Lease Obligations
Operating Capital
--------- -------
1999................................................... $ 416 $ 39
2000................................................... 409 22
2001................................................... 323 6
2002................................................... 216 --
2003................................................... 138 --
Thereafter............................................. 39 --
------ ----
Total minimum lease payments......................... $1,541 67
======
Less: portion related to interest.................... (7)
----
Present value of net minimum lease payments.......... 60
Less: current portion of capital lease obligations... (34)
----
Long-term portion of capital lease obligations....... $ 26
====
Rent expense for the period form January 1, 1998 to October 6, 1998 was
approximately $225.
F-11
AUDIO COMMUNICATIONS NETWORK, LLC
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands)
From time to time the Company is involved with claims that arise out of the
normal course of business. In the opinion of management, the ultimate liability
with respect to these claims will not have a material adverse effect on the
financial statements of the Company.
10. Muzak Finance Corp.
Muzak Finance Corp. ("Finance Corp.") was formed in February, 1999, pursuant
to the laws of Delaware, as a wholly owned subsidiary of the Company. Finance
Corp. had no 1998 activities.
11. Subsequent Events (unaudited)
On January 15, 1999, the Company acquired all of the outstanding stock of
Business Sound, Inc. ("Business Sound") for approximately $4,100. The Business
Sound acquisition was financed with approximately $4,100 of cash contributed by
the Parent. Business Sound is the Muzak affiliate for the New Orleans,
Louisiana and Mobile, Alabama areas.
On February 24, 1999, the Company acquired all of the outstanding stock of
Electro Systems Corporation ("Electro Systems") the Muzak independent affiliate
located in Panama City, Florida for cash of approximately $550, plus the
assumption of $2,400 of existing indebtedness.
On March 18, 1999, the Company merged with and into Muzak (the "merger").
Under the terms of the agreement, total consideration was approximately
$245,000. At the time of the merger, the Company changed its name to Muzak LLC.
On March 18, 1999, the Company acquired Capstar Broadcasting Corporation's
("Capstar") Muzak affiliates comprised of territories which are located in
Atlanta, Albany and Macon, Georgia; Ft. Myers, Florida; and on May 3, 1999
acquired the Muzak affiliate territory located in Omaha, Nebraska (the "Capstar
Acquisition"). The purchase price for the Capstar Acquisition was approximately
$20,484, comprised of voting membership units of the Parent and a cash payment
of approximately $5,474 which is subject to adjustment.
In connection with the Merger, the Company entered into a new senior credit
facility ("Senior Credit Facility"), which provides for two term loans (the
"Term Loans") for $30,000 and $105,000 and revolving loans (the "Revolving
Loan") for up to $35,000 of which $3,400 was drawn at closing. The Term Loans
are required to be paid in semi-annual installments on June 30 and December 31
of each year beginning on June 30, 2000. The Revolving Loan must be repaid on
or before December 31, 2005. The obligations of the Company under the Senior
Credit Facility are guaranteed by each of the Company's future direct and
indirect domestic subsidiaries. Interest accrues at the Company's election at a
rate based on either (a) the Base Rate (as described in the Senior Credit
Facilities Agreement) or b) Libor (as defined in the Senior Credit Facilities
Agreement) plus in either case, the applicable margin. The applicable borrowing
margin under Term Loans and Revolving Loans range from 1% to 3.5%. Commitment
fees range from .375% to .0625%.
On March 18, 1999, the Company coissued of a $115,000,000, principal amount,
Senior Subordinated Notes ("Subordinated Notes") offering executed by its
wholly owned subsidiary Muzak, LLC. Interest on the Subordinated Notes is
expected to accrue at a rate of 9.875%, per annum. Interest is expected to be
payable semi-annually, in arrears, on each March 15 and September 15 of each
year, commencing on September 15, 1999. The Subordinated Notes will mature on
March 15, 2009.
F-12
The following table summarizes the unaudited pro forma results of operations
for the year ended December 31, 1998, as if the acquisitions and financings
described above and the acquisition of ACN as disclosed in Note 3 occurred on
January 1, 1998:
December
31, 1998
-----------
(Unaudited)
Revenue....................................................... $138,584
Loss from operations.......................................... $ (2,515)
Net loss...................................................... $(33,273)
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
To the Board of Directors and Stockholders of
Audio Communications Network, Inc.:
We have audited the accompanying consolidated balance sheets of Audio
Communications Network, Inc. and its subsidiaries (the "Company") as of
December 31, 1996 and 1997, and the related consolidated statements of
operations, stockholders' equity and cash flows for each of the two years in
the period ended December 31, 1997. 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 consolidated financial statements present fairly, in
all material respects, the financial position of the Company at December 31,
1996 and 1997, and the results of its operations and its cash flows for each of
the two years in the period ended December 31, 1997 in conformity with
generally accepted accounting principles.
/s/ DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
March 31, 1998
Orlando, Florida
F-13
AUDIO COMMUNICATIONS NETWORK, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
December 31, 1996 and 1997
1996 1997
----------- -----------
ASSETS
CURRENT ASSETS:
Cash and cash equivalents (Note 1)................. $ 132,565 $ 680,195
Accounts receivable--trade (less allowance for
doubtful accounts
of $105,797 in 1996 and $484,227 in 1997)......... 839,442 2,159,163
Inventories (Note 1)............................... 443,969 1,150,133
Prepaid expenses and other current assets.......... 124,372 196,891
----------- -----------
Total current assets............................. 1,540,348 4,186,382
----------- -----------
PROPERTY--At cost: (Notes 1 and 4)
Leasehold improvements............................. 55,572 79,459
Equipment.......................................... 6,651,052 14,797,638
Furniture and fixtures............................. 122,647 523,598
----------- -----------
Total............................................ 6,829,271 15,400,695
Less accumulated depreciation...................... (920,839) (2,271,197)
----------- -----------
Property--net.................................... 5,908,432 13,129,498
----------- -----------
OTHER ASSETS:
Subscriber contract rights and other intangible
assets (net of accumulated amortization of
approximately $2,678,000 in 1996 and $5,095,000 in
1997) (Note 1).................................... 14,921,299 19,984,882
Goodwill (net of accumulated amortization of
approximately $49,000 in 1996 and $377,000 in
1997) (Note 1).................................... 653,666 7,974,059
Deposits and other................................. 80,349 30,819
----------- -----------
Total other assets............................... 15,655,314 27,989,760
----------- -----------
TOTAL.......................................... $23,104,094 $45,305,640
=========== ===========
F-14
AUDIO COMMUNICATIONS NETWORK, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
December 31, 1996 and 1997
1996 1997
----------- -----------
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Current portion of long-term debt (Note 4)......... $ 1,468,420 $ 556,830
Accounts payable................................... 1,530,200 1,739,800
Royalties payable.................................. -- 660,264
Accrued liabilities (Note 3)....................... 359,429 1,775,590
----------- -----------
Total current liabilities........................ 3,358,049 4,732,484
----------- -----------
LONG-TERM DEBT (Note 4).............................. 17,197,865 32,395,375
----------- -----------
COMMITMENTS AND CONTINGENCIES (Note 8)
STOCKHOLDERS' EQUITY (Note 5):
Preferred stock, $.001 par value, authorized -0- in
1996, 1,000,000 shares in 1997; issued and
outstanding, -0- shares in 1996 and 1997............ -- --
Common stock, $.25 par value, authorized, -0- in
1996; 12,000,000 shares in 1997, issued and
outstanding, -0- shares in 1996 and 4,502,135 shares
in 1997............................................. -- 1,125,534
Contributed capital in excess of par value........... -- 9,850,850
Investment........................................... 3,750,000 --
Contributed capital--preferred warrants.............. 193,646 --
Accumulated deficit.................................. (1,395,466) (2,798,603)
----------- -----------
Total stockholders' equity....................... 2,548,180 8,177,781
----------- -----------
TOTAL.......................................... $23,104,094 $45,305,640
=========== ===========
See notes to consolidated financial statements.
F-15
AUDIO COMMUNICATIONS NETWORK, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
Years Ended December 31, 1996 and 1997
1996 1997
----------- -----------
REVENUES............................................ $10,122,175 $17,552,024
----------- -----------
COSTS AND EXPENSES:
Cost of sales..................................... 3,412,161 7,168,978
Selling, general and administrative expenses...... 2,984,414 5,113,403
Depreciation and amortization..................... 2,356,185 4,057,052
----------- -----------
Total........................................... 8,752,760 16,339,433
----------- -----------
INCOME BEFORE OTHER INCOME (EXPENSE) AND INCOME
TAXES.............................................. 1,369,415 1,212,591
OTHER INCOME (EXPENSE):
Interest income................................... 10,794 20,221
Interest expense (Note 4)......................... (1,925,552) (2,669,160)
Other............................................. -- 59,561
----------- -----------
Other--net...................................... (1,914,758) (2,589,378)
----------- -----------
LOSS BEFORE INCOME TAXES............................ (545,343) (1,376,787)
PROVISION FOR INCOME TAXES (Notes 1 and 6).......... -- 26,350
----------- -----------
NET LOSS............................................ $ (545,343) $(1,403,137)
=========== ===========
LOSS PER COMMON SHARE (Note 1)...................... $ (.13) $ (.32)
=========== ===========
See notes to consolidated financial statements.
F-16
AUDIO COMMUNICATIONS NETWORK, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
Years Ended December 31, 1996 and 1997
Contributed Contributed
Capital- Capital Total
Preferred Common in Excess Accumulated Stockholders'
Investment Warrants Stock of Par Deficit Equity
----------- ----------- ---------- ----------- ----------- -------------
BALANCE, JANUARY 1,
1996................... $ 3,750,000 $193,646 $ -- $ -- $ (850,123) $ 3,093,523
Net loss............... -- -- -- -- (545,343) (545,343)
----------- -------- ---------- ---------- ----------- -----------
BALANCE, DECEMBER 31,
1996................... 3,750,000 193,646 -- -- (1,395,466) 2,548,180
Merger-related
activity.............. (3,750,000) (193,646) 1,102,300 9,682,920 -- 6,841,574
Stock issued to
directors and
employees in lieu of
cash compensation..... -- -- 9,978 110,778 -- 120,756
Stock purchased by
employees under stock
purchase plan......... -- -- 756 10,042 -- 10,798
Stock options
exercised............. -- -- 12,500 47,110 -- 59,610
Net loss............... -- -- -- -- (1,403,137) (1,403,137)
----------- -------- ---------- ---------- ----------- -----------
BALANCE, DECEMBER 31,
1997................... $ -- $ -- $1,125,534 $9,850,850 $(2,798,603) $ 8,177,781
=========== ======== ========== ========== =========== ===========
See notes to consolidated financial statements
F-17
AUDIO COMMUNICATIONS NETWORK, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
Years Ended December 31, 1996 and 1997
1996 1997
---------- -----------
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss............................................ $ (545,343) $(1,403,137)
Adjustments to reconcile net loss to net cash
provided by operating activities:
Depreciation and amortization..................... 2,407,341 4,259,207
Interest accrued to amortize discount on
subordinated debt................................ 21,270 --
Stock issued to directors and employees in lieu of
cash compensation................................ -- 120,756
Deferred commissions.............................. (474,780) (712,373)
Loss on disposal of fixed assets.................. -- 45,400
(Increase) decrease in operating assets and
increase (decrease) in operating liabilities--net
of business acquired:
Accounts receivable............................. (184,720) (1,054,796)
Inventories..................................... (1,065,402) (3,389,917)
Prepaid expenses and other...................... 169,616 (41,037)
Accounts payable................................ 585,394 (998,670)
Royalties payable............................... (83,257) 660,264
Accrued liabilities............................. 24,150 575,695
Other--net...................................... (75,625) 34,895
---------- -----------
Net cash (used in) provided by operating
activities................................... 778,644 (1,903,713)
---------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Acquisition of certain assets and liabilities of
Chambers, Inc.
and SunCom Group, Inc.............................. (810,842) --
Capital expenditures--net........................... (1,344,264) (296,169)
Proceeds from the sale of intangible assets......... -- 185,908
Cash acquired in the acquisition.................... -- 876,068
Purchase of subscriber rights and other
intangibles........................................ -- (295,180)
---------- -----------
Net cash provided by (used in) investing
activities................................... (2,155,106) 470,627
---------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from long-term debt........................ 750,000 25,534,420
Principal payments under capital lease obligations.. (37,479) (113,764)
Debt issuance costs................................. (3,750) --
Repayment of long-term debt......................... -- (23,510,348)
Proceeds from sale of stock......................... -- 70,408
---------- -----------
Net cash provided by financing activities..... 708,771 1,980,716
---------- -----------
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS.. (667,691) 547,630
CASH AND CASH EQUIVALENTS, BEGINNING OF YEAR.......... 800,256 132,565
---------- -----------
CASH AND CASH EQUIVALENTS, END OF YEAR................ $ 132,565 $ 680,195
========== ===========
F-18
AUDIO COMMUNICATIONS NETWORK, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
YEARS ENDED DECEMBER 31, 1996 AND 1997
1996 1997
---------- ------------
SUPPLEMENTAL DISCLOSURES--Cash paid during the year
for:
Interest............................................ $2,064,190 $ 2,175,692
========== ============
Income taxes........................................ $ -- $ --
========== ============
NONCASH INVESTING AND FINANCING ACTIVITIES:
Inventory leased to customers and reclassified to
property during the year........................... $ 969,000 $ 3,187,000
========== ============
Capital expenditures financed through increase in
debt............................................... $ -- $ 38,000
========== ============
Acquisition:
Fair value of assets acquired..................... $ -- $ 21,081,000
Intangible assets................................. $ -- $ 7,305,000
Liabilities assumed............................... $ -- $(11,935,000)
Notes issued...................................... $ -- $ (1,304,000)
See notes to consolidated financial statements.
F-19
AUDIO COMMUNICATIONS NETWORK, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Years Ended December 31, 1996 and 1997
1. BASIS OF PRESENTATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
BASIS OF PRESENTATION--
On May 30, 1997, Suncom Communications LLC ("SCL") sold its net assets to
Audio Communications Network, Inc. ("ACN") (the "Merger"). In connection with
the Merger, ACN issued to SCL an aggregate of 2,100,000 shares of ACN's common
stock, and 597,986 shares were purchased from ACN's chairman by SCL. Upon
completion of the Merger, SCL held securities having an aggregate of
approximately 60% of outstanding voting power of ACN. As noted below, the
Merger was accounted for as a reverse acquisition with SCL being the acquiring
company.
REVERSE PURCHASE METHOD OF ACCOUNTING--As described above, SCL owned an
aggregate of approximately 60% of the outstanding voting power of ACN
immediately following the Merger. Accordingly, the Merger has been accounted
for as a reverse purchase under generally accepted accounting principles as a
result of which SCL is considered to be the acquiring entity and ACN the
acquired entity for accounting purposes, even though ACN is the surviving legal
entity. As a result of this reverse purchase accounting treatment, (i) the
historical financial statements of the Company for periods prior to the date of
the Merger are no longer the historical financial statements of ACN, and
therefore, are no longer presented; (ii) the historical financial statements of
the Company for periods prior to the date of the Merger are those of SCL; (iii)
all references to the financial statements of the "Company" apply to the
historical financial statements of SCL prior to the Merger and to the
consolidated financial statements of ACN subsequent to the Merger; and (iv) any
reference to ACN applies solely to Audio Communications Network, Inc. and its
financial statements prior to the Merger.
DESCRIPTION OF BUSINESS--The Company owns and operates MUZAK (R) franchises,
which provide background music programming and ancillary services to customers,
in seven major metropolitan areas, as its single line of business.
All intercompany balances and transactions are eliminated in these
consolidated financial statements.
SIGNIFICANT ACCOUNTING POLICIES--
USE OF ESTIMATES--The preparation of financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts of assets and liabilities,
disclosure of contingent assets and liabilities at the date of the financial
statements, and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
REVENUE RECOGNITION--Revenues for equipment sales and installations are
recognized at the point of sale. Revenues from music services are recognized on
a straight-line basis over the term of the customer contracts. Contracts are
typically for a five-year period with renewal options for an additional five
years.
FINANCIAL INSTRUMENTS--Management believes the book value of financial
instruments (cash and cash equivalents, accounts receivable, accounts payable,
royalties payable, accrued liabilities, and long-term debt) approximates fair
value.
INVENTORIES--Inventories, which consist of equipment held for sale or lease
and supplies, are stated at the lower of cost or market. Cost is determined by
the first-in, first-out method.
F-20
AUDIO COMMUNICATIONS NETWORK, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Years Ended December 31, 1996 and 1997
PROPERTY--Property is recorded at cost. Depreciation is provided on the
straight-line method over estimated useful lives of 3 to 10 years.
GOODWILL AND INTANGIBLE ASSETS--Goodwill, the excess of the purchase price
over the fair value of net assets of businesses acquired, is amortized over 20
years using the straight-line method. Other intangible assets acquired,
principally subscriber contract rights, are amortized using the straight-line
method over various periods from three to ten years. Management evaluates the
recoverability of goodwill and other intangible assets quarterly and annually
based on current operating trends in relation to the recorded intangible
values.
INCOME TAXES--Prior to the Merger, the Company was a limited liability
company, and, as such, for federal and state income tax purposes, income and
losses of the Company passed through to the members of the Company for
inclusion in their income tax returns. In connection with the Merger, the
Company became a taxable entity and accounts for income taxes in accordance
with Statement of Financial Accounting Standards No. 109 ("FAS 109"),
Accounting for Income Taxes. A significant provision of FAS 109 is the use of
the liability method of computing deferred income taxes. Deferred tax assets
and liabilities are measured using enacted tax rates expected to apply to
taxable income in the years in which those temporary differences are expected
to be recovered or settled. Under FAS 109, the effect on deferred tax assets
and liabilities of a change in tax rates is recognized in income in the period
that includes the enactment date. Additionally, under FAS 109, the Company
recognizes, subject to a valuation allowance regarding asset realization, the
future tax benefits of expenses which have been recognized in the consolidated
financial statements.
LOSS PER COMMON SHARE--Loss per common share is computed by dividing net
loss by the weighted average number of shares of common stock outstanding
during the year. Common stock equivalents for purposes of diluted loss per
share include shares issuable on the exercise of employee stock options under
the incentive stock option plan adopted in May 1984 and amended in February
1991. The weighted average number of common shares outstanding were 4,352,134
for 1996 (assuming retroactive treatment of the reverse acquisition) and
4,447,251 for 1997. Diluted loss per common share has been excluded since the
effect of including the options would be antidilutive.
CASH EQUIVALENTS--Cash equivalents include demand and interest-bearing
deposits due from banks with original maturities of 90 days or less.
CONCENTRATIONS OF CREDIT RISK--The Company performs ongoing credit
evaluations of its customers and generally requires no collateral from the
customers. Management feels that the Company's credit risk is somewhat lessened
due to the fact that its customers operate in a wide range of industries.
There are no single customers that individually had billings greater than 5%
of net operating revenues for the years ended December 31, 1996 and 1997.
MANAGEMENT AGREEMENT--Prior to the Merger, the Company had a management
agreement in which the Company paid certain members of management a monthly fee
of 1.75%--3.5% of gross operating revenues. The amount of the fee depended on
the results of operations as compared to projected cumulative results. In
addition to these fees, certain expenses incurred by management were reimbursed
by the Company. Such reimbursements were not to exceed .5% of the Company's
gross operating revenues for the period. The management agreement was
terminated in connection with the Merger.
F-21
AUDIO COMMUNICATIONS NETWORK, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Years Ended December 31, 1996 and 1997
Total management fees included in selling, general and administrative
expense during the years ended December 31, 1996 and 1997 were approximately
$440,000 and $202,000.
RECLASSIFICATIONS--Certain amounts shown in 1996 have been reclassified to
conform to the 1997 presentation.
2. THE MERGER
A summary of the Merger is as follows:
THE MERGER--As described in Note 1 herein, the Merger was accounted for
as a reverse acquisition, utilizing the purchase method of accounting, in
which SCL acquired control of ACN for accounting purposes.
The total purchase price of the Merger was $7,647,874, which represents
the number of shares of ACN's common stock outstanding immediately prior to
the Merger valued at the market price of such shares as of the date of the
signing of the merger agreement. This amount was allocated to the assets of
ACN acquired and liabilities assumed, based on their estimated fair value
as of May 30, 1997. At May 30, 1997, assets acquired and liabilities
assumed were deemed to have fair values substantially equal to their
historic book values, except for certain intangible assets.
PRO FORMA RESULTS OF OPERATIONS--The following represents the summary
unaudited pro forma results of operations as if the Merger had occurred at the
beginning of 1996 and 1997. The pro forma results are not necessarily
indicative of the results that will occur in the future.
Year Ended December 31,
------------------------
1996 1997
----------- ------------
Revenues............................................ $21,173,000 $ 21,725,000
Net loss............................................ $ (365,000) $(2,425,000)
Loss per share...................................... $ (.08) $ (.55)
3. ACCRUED LIABILITIES
Accrued liabilities consist of the following at December 31, 1996 and 1997:
1996 1997
----------- ------------
Accrued interest.................................... $ -- $ 506,300
Unearned revenue.................................... 271,042 696,051
Amount due to SCL................................... -- 500,000
Other............................................... 88,387 73,239
----------- ------------
$ 359,429 $ 1,775,590
=========== ============
F-22
AUDIO COMMUNICATIONS NETWORK, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Years Ended December 31, 1997 and 1996
4. LONG-TERM DEBT
Long-term debt consists of the following at December 31, 1997 and 1996:
1996 1997
----------- -----------
Credit agreement, interest rate varies........... $ -- $26,700,000
Term loan, interest rate varies; repaid in 1997.. 14,000,000 --
Subordinated promissory note to a limited partner
of SCL; interest payable quarterly at a per
annum rate of 12.27% through July 1, 2004;
principal payments of $250,000 payable quarterly
commencing January 1, 2000 and due July 1, 2004;
principal may be subject to mandatory
prepayments under certain conditions............ 4,584,136 4,750,000
Note payable to director; noninterest bearing,
payments of $500,000 due annually commencing
January 1998, net of discount (at 10%) of
$118,202 at December 31, 1997................... -- 1,381,798
Other long-term debt............................. 82,149 120,407
----------- -----------
Total............................................ 18,666,285 32,952,205
Less current portion............................. 1,468,420 556,830
----------- -----------
Long-term portion................................ $17,197,865 $32,395,375
=========== ===========
Long-term debt matures as follows:
Year
----
1998............................................. $ 566,830
1999............................................. 527,754
2000............................................. 1,410,553
2001............................................. 1,006,539
2002............................................. 1,000,529
Thereafter....................................... 28,450,000
-----------
Total.......................................... $32,952,205
===========
CREDIT AGREEMENT--In connection with the Merger, the Company entered into a
new Credit Agreement with PNC Bank, National Association, individually and as
Agent, SunTrust Bank, Central Florida, N.A., and Lehman Commercial Paper Inc.
on May 30, 1997. Pursuant to the Credit Agreement, the Company has the ability
to borrow monies on a revolving basis until May 2004. Initially, the Company
can borrow up to $32,000,000 and the maximum available decreases at quarterly
intervals. Loans bear interest based on either the rate of interest announced
by the Agent periodically as its prime rate or the London interbank offered
rates quoted periodically by the British Bankers' Association, as selected by
the Company at the time of each borrowing. Interest is payable quarterly in
arrears on the last business day of March, June, September, and December. The
Company must make annual payments of principal equal to 75% of "excess cash
flow" for 1997 and 50% thereafter in addition to mandatory payments upon
certain sales of assets or stock. No principal payments were required in 1997.
For purposes of the debt maturity schedule above, the expected maturity date is
assumed to be 2004.
F-23
AUDIO COMMUNICATIONS NETWORK, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Years Ended December 31, 1996 and 1997
The Company's obligations under the Credit Agreement are secured by a lien
on substantially all of its assets, including its stock in all of its
subsidiaries, and is further secured by a guaranty by all of its subsidiaries
which guaranty is, in turn, secured by a lien on substantially all of the
assets of all such subsidiaries.
The Credit Agreement sets forth a variety of affirmative, negative, and
financial covenants which the Company has agreed to, including, without
limitation (a) prohibitions against dividends, the incurrence of additional
debt or liens, the disposition or acquisition of assets, the issuance of
additional stock, and a material change in business, (b) requirements that the
Company not exceed certain levels of capital expenditures and that the Company
meet certain fixed charge coverage, maximum leverage, and minimum interest
coverage ratios, and (c) requirements that the Company provide the lenders with
certain financial statements and other information on an ongoing basis, all as
more fully set forth in the Credit Agreement.
TERM LOAN--Of the aggregate principal balance due at December 31, 1996,
interest on $7,000,000 was payable at a rate equal to the sum of the weekly
average yield on U.S. Treasury securities adjusted to a constant maturity
mutually agreed-upon between the financial institution and the Company, subject
to certain restrictions, plus 3.5%. The interest rate was 9.35% at December 31,
1996.
Interest on $7,000,000 of the aggregate principal balance due at December
31, 1996, was payable at a rate equal to the sum of the London interbank
Eurodollar market rate, subject to certain adjustments, plus 4.0%. The interest
rate was 9.38% at December 31, 1996. All portions of the loan were repaid with
proceeds from the Credit Agreement.
5. STOCKHOLDERS' EQUITY
The Company has two stock-based compensation plans, which are described
below. The Company applied APB Opinion 25, Accounting for Stock Issued to
Employees, and related interpretations in accounting for its plans.
Accordingly, no compensation cost has been recognized for the plans. Had
compensation cost for the Company's two stock-based compensation plans been
determined based on the fair value at the grant dates for awards under those
plans consistent with the method of Statement of Financial Accounting Standards
No. 123, Accounting for Stock-Based Compensation, the Company's 1997 net loss
and loss per common share would have changed to the pro forma amounts indicated
below:
Net loss:
As reported............................................... $(1,403,000)
Pro forma................................................. $(1,526,000)
Loss per common share assuming no dilution:
As reported............................................... $ (.32)
Pro forma................................................. $ (.34)
The Company has an incentive stock option plan (the "Plan") with 200,000
shares of common stock authorized to be granted thereunder. The Plan provides
for the options to be granted to key employees, requires expiration within ten
years of date of grant, allows the options to be exercised two years from the
date of the grant, and requires the option price to be at least the fair market
value, as determined by the Board of Directors, of the common stock on the date
of grant. All options granted under the plan have been for five-year terms. The
fair value of each option grant is estimated on the date of grant using the
Black-Scholes option-pricing model with the following weighted-average
assumptions: no dividend yield, expected volatility of 154%, risk-free interest
rate of 6.15%, and expected lives of five years.
F-24
AUDIO COMMUNICATIONS NETWORK, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Years Ended December 31, 1996 and 1997
Stock option activity for the year ended December 31, 1997 is as follows:
Weighted average
Shares exercise price
------- ----------------
ACN outstanding at May 30, 1997............... 111,000 $1.26
Granted..................................... 48,500 $3.38
Exercised................................... (50,000) $1.19
-----
Outstanding at December 31, 1997
(51,000 exercisable at December 31, 1997)... 109,500 $2.26
=====
The Company also has an employee stock purchase and bonus plan with up to
500,000 shares of common stock authorized to be issued thereunder. This plan
provides for the purchase of up to 200,000 shares of common stock at fair
value by eligible participants, as defined under the plan (up to 10,000 shares
per participant), and for the remainder of the shares to be awarded as bonuses
to key employees. During the years ended December 31, 1997, 3,022 shares were
purchased by participants under this plan.
6. INCOME TAXES
The components of the provision for income taxes for the year ended
December 31, 1997 are as follows:
Current:
Federal......................................... $ --
State........................................... 26,350
-------
$26,350
=======
The Company's effective tax rate differs from the statutory federal income
tax rate for the following reasons:
Computed statutory amount.................................... $ (477,000)
Increases (decreases):
State income taxes, net of benefit of federal taxes........ 17,000
Nondeductible expenses..................................... 253,000
Increase in valuation allowance............................ 294,000
Other--net................................................. (60,650)
----------
$ 26,350
==========
The components of the Company's net deferred tax asset are as follows:
Noncurrent liabilities--depreciation......................... $ 462,000
----------
Noncurrent assets:
Net operating loss carryforwards........................... 1,093,000
Other...................................................... 171,000
----------
Total noncurrent assets.................................. 1,264,000
----------
Net deferred tax asset--before valuation allowance......... 802,000
Valuation allowance for deferred tax asset................. (802,000)
----------
Net deferred tax asset..................................... $ --
==========
F-25
AUDIO COMMUNICATIONS NETWORK, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Years Ended December 31, 1996 and 1997
It is more likely than not that realization of the net deferred tax asset
through future taxable income within the carryforward periods will not occur.
Accordingly, the net deferred tax asset has been fully reserved with a
valuation allowance at December 31, 1997.
At December 31, 1997, the Company has net operating loss carryforwards for
federal tax purposes approximating $3,215,000. Such loss carryforwards will
expire in 2002 through 2012.
7. EMPLOYEE BENEFIT PLANS
Effective January 1, 1996, the Company instituted a profit-sharing plan
which covers all employees of the Company who have at least one-half year of
service. Contributions to the plan by employees may be at least 1% but not more
than 15% of annual salary, subject to certain restrictions. Contributions by
the Company to the plan are discretionary. Employees are always 100% vested in
employee contributions; no vesting in employer contributions occurs prior to
the first two years of service and 100% vesting occurs after the third year of
service. Contribution expense for the years ended December 31, 1996 and 1997,
was $24,507 and $-0-, respectively.
ACN has a noncontributory defined contribution pension plan covering
substantially all ACN employees who have met certain age and length of service
qualifications. The Company's policy is to fund pension cost with annuity
contracts. Pension expense amounted to approximately $32,000 for 1997.
8. COMMITMENTS AND CONTINGENCIES
Certain equipment and office and warehouse facilities are held under
noncancelable operating leases. The Company has also entered into various
agreements with broadcasting companies in order to transmit music service to
its customers through the broadcasting companies' subchannels. Expense under
the operating leases and broadcasting agreements was approximately $420,000 and
$733,000 during the years ended 1996 and 1997, respectively.
Future minimum payments under the leases and broadcasting agreements are as
follows:
Year
----
1998........................................ $ 512,427
1999........................................ 475,798
2000........................................ 421,672
2001........................................ 197,676
2002........................................ 148,778
Thereafter.................................. 170,411
----------
Total minimum lease payments................ $1,926,762
==========
The Company has entered into employment agreements with its Chairman,
President, and Chief Financial Officer. The agreements provide for the
employees to receive a stated minimum annual salary. The agreements, which
contain renewal provisions, expire from May 1998 through May 2000.
F-26
INDEPENDENT AUDITORS' REPORT
General and Limited Partners
Muzak Limited Partnership
We have audited the accompanying consolidated balance sheets of Muzak
Limited Partnership and subsidiaries (the Partnership) as of December 31, 1997
and 1998, and the related consolidated statements of operations, partners'
deficit, and cash flows for each of the three years in the period ended
December 31, 1998. These financial statements are the responsibility of the
Partnership'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 consolidated financial statements present fairly, in
all material respects, the financial position of Muzak Limited Partnership and
subsidiaries as of December 31, 1997 and 1998, and the results of their
operations and their cash flows for each of the three years in the period ended
December 31, 1998, in conformity with generally accepted accounting principles.
/s/ DELOITTE & TOUCHE LLP
February 5, 1999
(May 14, 1999, as to Note 14)
Seattle, Washington
F- 27
MUZAK LIMITED PARTNERSHIP AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS (in thousands)
December 31, 1997 and 1998
1997 1998
-------- --------
Assets
Current Assets:
Cash and cash equivalents................................ $ 8,524 $ 2,971
Accounts receivable, net of allowance for doubtful ac-
counts of $501, and $1,004.............................. 16,790 21,130
Inventories.............................................. 3,850 5,790
Prepaid expenses......................................... 1,400 1,650
Other receivables........................................ 688 1,455
Other.................................................... 428 535
-------- --------
Total current assets 31,680 33,531
Property and equipment, net................................ 39,659 46,070
Deferred costs and intangible assets, net.................. 31,694 42,527
Other...................................................... 1,362 1,003
-------- --------
Total...................................................... $104,395 $123,131
======== ========
Liabilities and partners' deficit
Current liabilities:
Credit facility.......................................... $ -- $ 12,041
Accounts payable......................................... 8,435 13,118
Advance billings......................................... 5,216 5,492
Accrued interest......................................... 2,500 2,608
Accrued expenses......................................... 2,556 3,795
Current portion of long-term obligations................. 469 3,582
-------- --------
Total current liabilities.............................. 19,176 40,636
Long-term obligations, net of current portion.............. 100,575 102,790
Unearned installation income............................... 4,249 4,770
Commitments and contingencies (note 9) -- --
Redeemable preferred interests............................. 6,490 10,524
Partners' deficit:
Limited partners' deficit (preference in liquidation of
$8,841 and $9,591)...................................... (3,597) (4,433)
General partners' deficit................................ (22,498) (31,156)
-------- --------
Total partners' deficit................................ (26,095) (35,589)
-------- --------
Total.................................................. $104,395 $123,131
======== ========
See notes to consolidated financial statements.
F-28
MUZAK LIMITED PARTNERSHIP AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS (in thousands)
Years Ended December 31, 1996, 1997, and 1998
1996 1997 1998
---- ---- ----
Revenues:
Music and other business services............. $ 54,585 $ 59,351 $ 65,956
Equipment and related services................ 32,226 31,853 33,792
-------- -------- --------
Total revenues.............................. 86,811 91,204 99,748
Cost of revenues:
Music and other business services............. 15,263 18,502 19,820
Equipment and related services................ 21,763 22,207 22,689
-------- -------- --------
Total cost of revenues...................... 37,026 40,709 42,509
-------- -------- --------
Gross profit................................ 49,785 50,495 57,239
Selling, general and administrative expenses.... 31,599 33,262 34,319
Noncash incentive compensation.................. 60 202 2,217
Depreciation.................................... 10,625 10,652 9,734
Amortization.................................... 9,594 10,016 11,829
-------- -------- --------
Operating loss.............................. (2,093) (3,637) (860)
Interest expense................................ (8,112) (10,775) (11,248)
Interest income................................. 438 1,017 256
Equity in losses of joint venture............... (225) (755) (45)
Other, net...................................... (209) 715 (92)
-------- -------- --------
Net loss before extraordinary items......... (10,201) (13,435) (11,989)
Extraordinary loss on write-off of deferred fi-
nancing
fees and debt discount......................... (3,713) -- --
Extraordinary gain on retirement of redeemable
preferred partnership interests................ 3,091 -- --
-------- -------- --------
Net loss........................................ (10,823) (13,435) (11,989)
Redeemable preferred return..................... (916) (400) (619)
-------- -------- --------
Net loss attributable to general and limited
partners....................................... $(11,739) $(13,835) $(12,608)
======== ======== ========
See notes to consolidated financial statements
F-29
MUZAK LIMITED PARTNERSHIP AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF PARTNERS' DEFICIT (in thousands)
Years Ended December 31, 1996, 1997, and 1998
(Continued on page F-31)
General partners' interest Class A Class B
-------------------------- Limited Class A Limited
Number partners' put/call partners'
of units Amount interests options interests
-------------- -------------- --------- -------- ---------
Balance, January 1,
1996................... 9,101 $ (4,264) $(1,021) $ 137 $ (776)
Net loss ............. -- (6,973) (1,288) (1,172) (1,390)
Payment of foreign
income taxes......... -- (54) (11) (9) (10)
Preferred return on
redeemable preferred
partnership
interests............ -- (591) (109) (99) (117)
Preferred return on
preferred limited
partners' interests.. -- (407) (75) (69) (81)
Principal payments on
subscriptions
receivable........... -- -- -- -- --
Capital contribution
from noncash
incentive
compensation......... -- -- -- -- --
Contribution by
partner.............. -- -- -- -- 105
----------- -------------- ------- ------- -------
Balance, December 31,
1996................... 9,101 (12,289) (2,504) (1,212) (2,269)
Net loss.............. -- (8,730) (1,593) (1,527) (1,585)
Payment of foreign
income taxes......... -- (50) (10) (8) (8)
Preferred return on
redeemable preferred
partnership
interests............ -- (257) (49) (48) (46)
Preferred return on
preferred limited
partners' interests.. -- (367) (72) (88) (85)
Principal payments on
subscriptions
receivable........... -- -- -- -- --
Capital contribution
from noncash
incentive
compensation......... -- -- -- -- --
Contribution by
partner.............. -- -- -- -- 2,072
Withdrawal by
partner.............. (7) (805) -- -- (2,032)
----------- -------------- ------- ------- -------
Balance, December 31,
1997................... 9,094 (22,498) (4,228) (2,883) (3,953)
Net loss.............. -- (7,730) (1,620) (1,300) (1,339)
Payment of foreign
income taxes......... -- (40) (10) (6) (6)
Preferred return on
redeemable preferred
partnership
interests............ -- (298) (60) (48) (48)
Preferred return on
interest in EAIC
Corp. ............... -- (107) (24) (17) (17)
Preferred return on
preferred limited
partners' interests.. -- (483) (101) (83) (83)
Principal payments on
subscriptions
receivable........... -- -- -- -- --
Capital contribution
from noncash
incentive
compensation......... -- -- -- -- --
Contribution by
partner.............. -- -- 895 -- 244
Withdrawal by
partner.............. -- -- -- -- (215)
----------- -------------- ------- ------- -------
Balance, December 31,
1998................... 9,094 $(31,156) $(5,148) $(4,337) $(5,417)
=========== ============== ======= ======= =======
See notes to consolidated financial statements.
F-30
MUZAK LIMITED PARTNERSHIP AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF PARTNERS' DEFICIT (in thousands)
Years Ended December 31, 1996, 1997, and 1998
(Continued from page F-30)
Class B Total limited
limited Preferred partners' interests Total partners' interests
partners' limited Class B ---------------------- ---------------------------
subscriptions partners' partnership Number Number
receivable interests unit options of units Amount of units Amount
- ------------- --------- ------------ ---------- ---------- ------------- -------------
$ (374) $7,671 $ -- 8,989 $ 5,637 18,090 $ 1,373
-- -- -- -- (3,850) -- (10,823)
-- -- -- -- (30) -- (84)
-- -- -- -- (325) -- (916)
-- 632 -- -- 407 -- --
207 -- -- -- 207 -- 207
-- -- 60 -- 60 -- 60
-- -- -- 60 105 60 105
- ------- ------ ------ --------- ---------- ----------- -------------
(167) 8,303 60 9,049 2,211 18,150 (10,078)
-- -- -- -- (4,705) -- (13,435)
-- -- -- -- (26) -- (76)
-- -- -- -- (143) -- (400)
-- 612 -- -- 367 -- --
132 -- -- -- 132 -- 132
-- -- 202 -- 202 -- 202
(1,601) -- -- 889 471 889 471
-- (74) -- (1,250) (2,106) (1,257) (2,911)
- ------- ------ ------ --------- ---------- ----------- -------------
(1,636) 8,841 262 8,688 (3,597) 17,782 (26,095)
-- -- -- -- (4,259) -- (11,989)
-- -- -- -- (22) -- (62)
-- -- -- -- (156) -- (454)
-- -- -- -- (58) -- (165)
-- 750 -- -- 483 -- --
35 -- -- -- 35 -- 35
-- -- 2,217 -- 2,217 -- 2,217
-- -- -- 375 1,139 375 1,139
-- -- -- (100) (215) (100) (215)
- ------- ------ ------ --------- ---------- ----------- -------------
$
(1,601) $9,591 $2,479 8,963 $ (4,433) 18,057 $ (35,589)
======= ====== ====== ========= ========== =========== =============
F-31
MUZAK LIMITED PARTNERSHIP AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (in thousands)
Years Ended December 31, 1996, 1997, and 1998
1996 1997 1998
-------- -------- --------
Operating activities:
Net loss........................................ $(10,823) $(13,435) $(11,989)
Adjustments to reconcile net loss to net cash
provided by operating activities:
Provision for doubtful accounts............... 472 620 503
Depreciation.................................. 10,625 10,652 9,734
Amortization, net of deferred financing
costs........................................ 9,594 10,016 11,829
Deferred financing cost amortization.......... 1,042 653 633
Equity in losses of joint venture............. 225 755 45
Noncash incentive compensation................ 60 202 2,217
Extraordinary loss on write-off of deferred
financing fees and debt discount............. 3,713 -- --
Extraordinary gain on retirement of redeemable
preferred partnership interests.............. (3,091) -- --
Gain on sale of territory..................... -- (757) --
Loss on write-off of equity offering costs.... 1,353 -- --
Loss on write-off of inventories.............. -- 530 --
Cash provided (used) by changes in operating
assets and liabilities, net of
effects of acquisitions:
Accounts receivable......................... (555) (2,498) (4,664)
Inventories................................. (461) (658) (1,784)
Prepaid expenses and other current assets... 130 (558) (357)
Other receivables........................... (137) (694) 688
Accounts payable............................ 1,863 (246) 4,683
Accrued interest............................ 834 -- 108
Accrued expenses............................ 1,188 214 1,239
Advance billings............................ 155 528 276
Unearned installation income................ 850 613 521
Other, net.................................. 517 697 364
-------- -------- --------
Net cash provided by operating activities.. 17,554 6,634 14,046
Investing activities:
Additions to property and equipment............. (10,913) (12,639) (12,850)
Additions to deferred costs and intangible as-
sets........................................... (5,424) (6,933) (8,576)
Acquisitions of businesses and ventures......... -- (2,836) (14,180)
Disposition of businesses and ventures.......... -- 1,588 1,081
Other, net...................................... (291) 6 --
-------- -------- --------
Net cash used by investing activities...... (16,628) (20,814) (34,525)
Financing activities:
Borrowings from credit facility................. -- -- 19,591
Payments on credit facility..................... (9,300) -- (7,550)
Proceeds from issuance of senior notes.......... 100,000 -- --
Proceeds from long-term obligations............. -- -- 248
Principal payments on long-term obligations..... (53,612) (92) (26)
Payment of financing fees....................... (5,802) -- --
Principal payments under capital leases......... (414) (505) (754)
Retirement of redeemable preferred partnership
interests...................................... (7,456) -- --
Contributions by partners....................... 312 603 279
Withdrawals by partners......................... -- (2,911) (215)
Proceeds from sale of subsidiary stock.......... -- -- 3,415
Other, net...................................... (83) (77) (62)
-------- -------- --------
Net cash provided (used) by financing ac-
tivities.................................. 23,645 (2,982) 14,926
-------- -------- --------
Net increase (decrease) in cash and cash equiva-
lents........................................... 24,571 (17,162) (5,553)
Cash and cash equivalents:
Beginning of year............................... 1,115 25,686 8,524
-------- -------- --------
End of year..................................... $ 25,686 $ 8,524 $ 2,971
======== ======== ========
See notes to consolidated financial statements
F-32
MUZAK LIMITED PARTNERSHIP AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Years Ended December 31, 1996, 1997 and 1998
NOTE 1: THE PARTNERSHIP AND ITS BUSINESS
Muzak Limited Partnership and subsidiaries (the Partnership) provides
business music services and produces, markets and sells video and audio
marketing services through a network of domestic and international independent
affiliates and owned operations. The independent affiliates are charged a fee
based on their revenues, in addition to other fees, in exchange for broadcast
music, marketing, technical and administrative support. The Partnership and its
franchisees also sell, install and maintain electronic equipment related to the
Partnership's business.
The Partnership's music services are primarily sold for use in public areas,
such as retail and restaurant establishments, and work areas, such as business
offices and manufacturing facilities. Services are distributed through direct
broadcast satellite transmission, local broadcast transmission and pre-recorded
tapes played on the customers' premises.
The Partnership 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.
Principles of consolidation: The accompanying consolidated financial
statements of the Partnership include the accounts of the Partnership, its
wholly owned subsidiaries, Muzak Capital Corporation and Enso Audio Imaging
Corporation (EAIC Corp.) (Note 10). In addition, the Partnership transferred
net assets of $869,797 consisting of purchased music to a newly formed, wholly
owned subsidiary, MLP Environmental Music, LLC on December 30, 1998. All
significant inter-company accounts and transactions have been eliminated in
consolidation.
Public offering: In August 1996, the general and limited partners filed a
registration statement for the underwritten public offering of 10% senior notes
(the Offering). The Offering closed on October 2, 1996. A portion of the net
proceeds from the Offering was used to repay certain bank debt and other
indebtedness and to repurchase the Partnership's Class C redeemable preferred
partnership interest. The remainder of the net proceeds were used for certain
strategic investments and other general corporate purposes.
NOTE 2: SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Cash and cash equivalents: The Partnership considers all highly liquid debt
instruments purchased with a maturity of three months or less to be cash
equivalents. Cash and cash equivalents at December 31, 1997, included
commercial paper investments of approximately $4,900,000. There were no
commercial paper investments at December 31, 1998. The balance of cash and cash
equivalents at December 31, 1997 and 1998, is held at various institutions
throughout the United States.
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 and are recorded
at cost. Major improvements 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 40 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.
F-33
MUZAK LIMITED PARTNERSHIP AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Years Ended December 31, 1996, 1997 and 1998
Deferred costs and intangible assets: Income-producing contracts, acquired
through acquisition, are being charged to amortization expense using an
accelerated method over their expected benefit period of eight years. Deferred
financing costs are charged to interest expense using 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 the period of their expected
benefit, ranging from five to ten years.
Impairment of long-lived assets: 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 impairment in the future, the
Partnership 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 related
services are provided. Fees from independent affiliates are recognized as music
revenues in the month that the independent affiliate generates its revenues.
Equipment sales and related services revenues are recorded in the period that
the installation is completed.
Advance billings: The Partnership 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 Partnership 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
Partnership 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 are
required.
Partnership unit options: The Partnership accounts for its partnership unit
options in accordance with Statement of Financial Accounting Standards (SFAS)
No. 123, Accounting for Stock-Based Compensation, which permits entities to
recognize as expense over the vesting period the fair value of all stock-based
awards on the date of grant. Alternatively, SFAS No. 123 also allows entities
to continue to apply the provisions of Accounting Principles Board Opinion
(APB) No. 25, Accounting for Stock Issued to Employees, and provide pro forma
net income, and pro forma earnings per share disclosures for employee stock
option grants made in 1995 and beyond as if the fair value-based method defined
in SFAS No. 123 had been applied. The Partnership has elected to continue to
apply the provisions of APB No. 25, which recognizes compensation expense based
on the intrinsic value of the equity instrument when awarded, and provide the
pro forma disclosure provisions of SFAS No. 123.
Fair value of financial instruments: The carrying amounts of cash and cash
equivalents and the revolving credit facility approximate fair value because of
the short maturity of these instruments. The fair value of the senior notes at
December 31, 1997 and 1998, approximates $105,000,000 and $104,000,000,
respectively. The carrying amount of the notes receivable and long-term
obligations other than the senior notes approximates the fair value, as the
rates are either comparable to or based on the current prime rate.
European joint venture: During 1998 the Partnership sold its interest in a
joint venture providing business music services in Europe (Muzak Europe) in
exchange for a note receivable of approximately
F-34
MUZAK LIMITED PARTNERSHIP AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Years Ended December 31, 1996, 1997 and 1998
$800,000, which is due in full April 2005, and a royalty based on recurring
billings beginning April 2000. No gain or loss was recorded on this
transaction. The joint venture was accounted for using the equity method, as
the Partnership owned 50% of that venture but did not have a controlling
interest. Equity in losses of joint venture in the Partnership's consolidated
statements of operations includes the Partnership's share of net losses. As of
December 31, 1997, the joint venture had total assets of $7,307,000 and total
liabilities of $5,509,000. As of December 31, 1997, the carrying value on the
Partnership's books was $1,100,000 and was included in other long-term assets.
The Partnership used the foreign country's local currency as the functional
currency for its overseas operations. The translation gains and losses
resulting from the remeasurement of the foreign operations' financial
statements are insignificant.
Comprehensive loss: The Partnership has adopted SFAS No. 130, Reporting
Comprehensive Income, which requires comprehensive income and its components to
be reported in the financial statements in the period in which they are
recognized. The Partnership has no other significant components of
comprehensive income.
New accounting pronouncements: SFAS No. 133, Accounting for Derivative
Instruments and Hedging Activities, was issued in June 1998 and is effective
for all fiscal quarters of fiscal years beginning after June 15, 1999. This
standard requires an entity to recognize all derivatives as either assets or
liabilities in the statement of financial position and measure those
instruments at fair value. The Partnership is still in the process of
evaluating the impact of this standard on their financial statements and
anticipates adopting the standard in the year ending December 31, 2000.
In March 1998, the Accounting Standards Executive Committee of the AICPA
issued Statement of Position 98-1 (SOP 98-1), Accounting for the Costs of
Computer Software Developed or Obtained for Internal Use, which requires that
certain software costs be capitalized and amortized over the period of use. The
SOP is effective for financial statements for the fiscal years beginning after
December 15, 1998. The Partnership will adopt SOP 98-1 for the year ending
December 31, 1999. This statement is not expected to have a material effect on
the financial statements.
In April 1998, the Accounting Standards Executive Committee of the AICPA
issued SOP 98-5, Reporting on the Costs of Start-up Activities, which requires
costs of start-up activities and organization costs to be expensed as incurred.
This SOP is effective for financial statements for fiscal years beginning after
December 15, 1998. The Partnership will adopt SOP 98-5 for the year ending
December 31, 1999. This statement is not expected to have a material effect on
the financial statements; however, organization costs of approximately $272,000
will be written off.
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.
Reclassifications: Certain amounts from the 1996 and 1997 financial
statements were reclassified in order to be consistent with the 1998
presentation.
F-35
MUZAK LIMITED PARTNERSHIP AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Years Ended December 31, 1996, 1997 and 1998
NOTE 3: Business Acquisitions and Sales
In 1997, the Partnership sold its Spokane territory subscriber accounts and
granted the Spokane franchise to an existing independent affiliate of the
Partnership for $1,400,000. This transaction resulted in a gain of $800,000 to
the Partnership, which is included in other income in the consolidated
statement of operations, for the year ended December 31, 1997.
In 1997, the Partnership acquired substantially all of the assets of four
business music providers for approximately $4,100,000. The acquisitions were
financed with cash remaining from the Offering.
In 1998, the Partnership acquired, through separate transactions,
substantially all of the net assets of twelve business music providers for a
total purchase price of approximately $20,200,000, of which approximately
$6,500,000 was paid for in cash, approximately $12,800,000 in debt incurred,
and approximately $895,000 in exchange for equity instruments at a unit price
of $3.25. Of the total purchase price, the portion related to certain assets of
Music Technologies Incorporated (MTI) was approximately $10,000,000.
As part of the acquisition of MTI, the Partnership entered into an agreement
in principle with an independent affiliate to sell a portion of the income-
producing contracts obtained in the MTI acquisition. This asset of $1,455,000
has been recorded as other receivables as of December 31, 1998. In addition,
during 1998, the Partnership sold, through separate transactions, income
producing contracts to several independent affiliates for approximately
$1,081,000 in cash. No gain or loss was recognized on these sales.
For financial statement purposes, the acquisitions were accounted for as
purchases with the purchase prices allocated to the individual assets based on
the fair market values at the date of acquisition. Results of operations from
the acquired businesses are also included in the consolidated statement of
operations from the date of each respective acquisition.
The following unaudited pro forma consolidated results of operations have
been prepared as if the acquisitions made during 1998 had occurred as of the
beginning of 1997 and 1998, (in thousands):
1997 1998
-------- --------
Pro forma amounts for the years ended December 31:
Total revenues.................................... $ 97,790 $103,808
======== ========
Net loss from continuing operations............... $(12,133) $(11,381)
======== ========
The pro forma results above do not purport to be indicative of results that
would have occurred had the acquisitions been in effect for the period
presented, nor do they purport to be indicative of the results that will be
obtained in the future.
F-36
MUZAK LIMITED PARTNERSHIP AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Years Ended December 31, 1996, 1997 and 1998
NOTE 4: PROPERTY AND EQUIPMENT
Property and equipment at December 31 consist of the following (in
thousands):
1997 1998
-------- --------
Equipment provided to subscribers..................... $ 57,393 $ 67,548
Machinery and equipment............................... 13,129 16,802
Vehicles.............................................. 3,337 4,034
Furniture and fixtures................................ 2,546 2,710
Land and buildings.................................... 858 858
Leasehold improvements................................ 865 992
-------- --------
Total property and equipment........................ 78,128 92,944
Less accumulated depreciation and amortization........ (38,469) (46,874)
-------- --------
$ 39,659 $ 46,070
======== ========
NOTE 5: DEFERRED COSTS AND INTANGIBLE ASSETS
Deferred costs and intangible assets at December 31 consist of the following
(in thousands):
1997 1998
-------- -------
Income producing contracts........................... $ 42,152 $54,161
Deferred subscriber acquisition costs................ 14,593 17,863
Master recording rights and deferred production
costs............................................... 12,125 15,669
Organization costs................................... 4,501 4,635
Deferred financing costs............................. 4,341 4,391
Noncompete agreements................................ 860 3,814
Goodwill............................................. 467 1,018
Trademarks........................................... 344 787
-------- -------
Total deferred costs and intangible assets......... 79,383 102,338
Less accumulated amortization........................ (47,689) (59,811)
-------- -------
$ 31,694 $42,527
======== =======
NOTE 6: CREDIT FACILITY
In March 1998, the Partnership obtained a credit facility for working
capital purposes with an initial availability of $3,000,000, increasing to
$5,000,000 upon the attainment of certain cash flow related targets. In July
1998, the Partnership met the cash flow targets required to increase the
available cash to $5,000,000. The credit facility was secured by inventories
and accounts receivable of the Partnership. The outstanding balance on the
credit facility was paid in full and the facility was cancelled on December 31,
1998.
A new revolving credit facility was obtained by the Partnership in December
1998. The amount available under the facility is $20,000,000. Amounts
outstanding under the facility bear a variable rate of interest, to be paid
quarterly, based on the lender's prime rate plus 1.25%. The terms of the credit
facility require the Partnership to maintain certain performance standards and
covenants include a limit on the Partnership's capital spending and
acquisitions of other businesses, as well as the Partnership's ability to incur
additional debt and make distributions to partners. The credit facility is
secured by accounts receivable, inventories, and other assets, including
proceeds of certain insurance policies.
F-37
MUZAK LIMITED PARTNERSHIP AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Years Ended December 31, 1996, 1997 and 1998
As of December 31, 1998, the Partnership had approximately $12,000,000
outstanding under this credit facility. The interest rate at December 31, 1998,
was 9%. To provide collateral for a portion of the advances under the credit
facility, certain limited partners set forth a letter of credit in the amount
of $4,211,000. The Partnership has pledged to reimburse the limited partners
for related costs and fees. For the year ended December 31, 1998, no amounts
were reimbursed by the Partnership.
In September 1998, the Partnership's wholly owned subsidiary, EAIC Corp.,
obtained a credit facility. The amount available under this facility is
$750,000 and is to be used for equipment purchases. Amounts outstanding under
the facility bear a variable rate of interest to be paid at a rate equal to the
lender's prime rate plus 1% per annum. The unpaid principal balance shall be
repaid in 24 equal monthly installments of principal, plus interest, commencing
on October 1, 1999. As of December 31, 1998, EAIC Corp. had approximately
$276,000 outstanding under this credit facility. The interest rate at December
31, 1998, was 8.75%.
Total cash paid for interest on the credit facilities was approximately
$366,000 for the year ended December 31, 1998. There were no credit facilities
in 1996 or 1997.
NOTE 7: LONG-TERM OBLIGATIONS
Long-term obligations at December 31 consist of the following (in
thousands):
1997 1998
--------- --------
Senior notes......................................... $ 100,000 $100,000
Notes payable........................................ -- 2,550
Capital lease obligations............................ 969 1,338
Other................................................ 75 2,484
--------- --------
Total long-term obligations........................ 101,044 106,372
Less current portion................................. (469) (3,582)
--------- --------
$ 100,575 $102,790
========= ========
Senior notes: The senior notes were issued as part of the Offering discussed
in Note 1. These unsecured notes bear interest at 10% and are due on October 1,
2003. The notes require the maintenance of certain covenants including
restricting the Partnership's ability to incur additional debt, as well as
limiting the Partnership's ability to make certain investments and
distributions to partners. The Partnership has the option to redeem up to 35%
of the senior notes during the first three years after the Offering with the
proceeds from an equity offering, at a redemption price of 109% of the
principal amount thereof, plus accrued and unpaid interest. The entire balance
of the senior notes is redeemable at the option of the Partnership, in whole or
in part, beginning October 1, 2000. The redemption price is 105% of par value
through October 1, 2001, 102.5% through October 1, 2002, and 100% thereafter,
through maturity.
Notes payable: As part of the acquisition of MTI discussed in Note 3, the
Partnership entered into a note payable of approximately $2,550,000. The note
bears an interest rate of 14% per annum, with principal and interest payments
of $500,000 due monthly through March 31, 1999, and the balance due April 30,
1999. The Partnership has the option to extend the due date for additional
fees. The Partnership also agreed to make a deferred purchase price payment,
interest free, which is subject to adjustment. Due to the contingent nature of
this consideration and significant uncertainties related to the ultimate amount
to be paid, the Partnership has not recorded any obligation as of December 31,
1998.
F-38
MUZAK LIMITED PARTNERSHIP AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Years Ended December 31, 1996, 1997 and 1998
Capital leases: Assets acquired under capital leases were $579,000, $635,000
and $1,123,000 for the years ended December 31, 1996, 1997, and 1998,
respectively. Total assets recorded under capital leases were $3,337,000 and
$4,316,000 with accumulated amortization of $1,944,000 and $1,938,000 as of
December 31, 1997 and 1998, respectively.
Other long-term obligations: Pursuant to an acquisition, the Partnership
paid $510,000 in exchange for a non-compete agreement and agreed to pay seven
additional annual installments of $510,000. The Partnership has recorded this
liability of $2,187,000, using a discount rate of 14%.
Interest rates and payments: The senior notes require semi-annual interest
payments of 10%. The capital lease obligations require monthly payments of
interest at a weighted average interest rate of approximately 8%. Total cash
paid for interest on the long-term obligations was approximately $5,954,000,
$10,087,000, and $10,136,000 for the years ended December 31, 1996, 1997, and
1998, respectively.
Financing and other costs paid to related parties: During 1996, the credit
agreement with Union Bank of Switzerland (Agent Bank) and the subordinated note
were paid with part of the proceeds from the Offering discussed in Note 1. The
Agent Bank was an affiliate of a Class A limited partner. In addition, the
subordinated noteholder held the put/call units. During the year ended December
31, 1996, the Partnership incurred interest expense related to these credit
facilities of $5,489,000. The Partnership paid board fees and expenses to the
general partner and other related parties of $162,500, $287,700, and $102,000
in 1996, 1997, and 1998, respectively. In addition, $277,000 of board fees is
accrued as of December 31, 1998.
Future maturities: Total future maturities of long-term obligations,
including capital leases, for the five years following December 31, 1998, are
approximately $3,582,000 in 1999, $718,000 in 2000, $601,000 in 2001, $534,000
in 2002, $100,344,000 in 2003, and $593,000 thereafter.
NOTE 8: BENEFIT PLANS
Defined contribution plan: The Partnership maintains a defined contribution
savings and retirement plan (Benefit Plan) that covers substantially all of the
Partnership's employees. Under the savings portion of the Benefit Plan,
eligible employees may contribute from 1% to 14% of their compensation per
year, subject to certain tax law restrictions. The Partnership has the option
to make a matching contribution of up to a maximum of 100% of the first 3% and
50% of the next 3%, up to 6% of the total base salary contributed by the
employee each year. Participants are immediately vested in their contributions
as well as the Partnership's contributions under the savings portion of the
Benefit Plan. For the savings portion of the Benefit Plan, the Partnership
recorded contribution expense of $408,000, $694,000, and $609,000 for the years
ended December 31, 1996, 1997, and 1998, respectively.
Contributions under the retirement portion of the Benefit Plan are
determined annually by the Partnership at its discretion for up to 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. No contribution
amounts were recorded for the years ended December 31, 1996, 1997, and 1998.
Multi-employer defined contribution plans: The Partnership participates in
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 $136,000, $138,000
and $146,000 for the years ended December 31, 1996, 1997, and 1998,
respectively. These amounts were determined by union contract and the
Partnership does not administer or control the funds.
F-39
MUZAK LIMITED PARTNERSHIP AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Years Ended December 31, 1996, 1997 and 1998
NOTE 9: COMMITMENTS AND CONTINGENCIES
Leases: The Partnership leases certain facilities and equipment under both
operating and capital leases. In addition, the Partnership has entered into
agreements to obtain satellite channel capacity and subsidiary communication
authorization rights for the transmission of programs to the Partnership's
customers. Total rental expense under operating leases and rights agreements
was approximately $7,751,000, $8,401,000 and $8,712,000 for the years ended
December 31, 1996, 1997, and 1998, respectively.
Future annual minimum lease payments under noncancellable operating leases
as of December 31, 1998, are $7,451,000 in 1999, $7,080,000 in 2000, $3,019,000
in 2001, $1,963,000 in 2002, $1,459,000 in 2003 and $1,631,000 thereafter.
Music licenses: In the ordinary course of the Partnership's business, the
Partnership has agreements with various organizations for the rights to re-
record and play music in public spaces. The expenses incurred under these
agreements were approximately $3,578,000, $4,831,000 and $4,991,000 for the
years ended December 31, 1996, 1997, and 1998, respectively.
The Partnership's agreement with Business Music, Inc. (BMI) expired on
December 31, 1993. The Partnership has entered into an interim fee structure
with BMI and is in negotiations with BMI to establish an ongoing rate
structure. The interim arrangement with BMI provides for continued payments at
1993 levels. BMI has indicated that they are seeking royalty rate increases and
has asserted that this sought-after increase will be retroactive to January 1,
1994. If an agreement is not reached, BMI may seek to have the rates determined
through a court proceeding. The ultimate outcome of the negotiations is not
estimable as of December 31, 1998, and accordingly, no provision has been
recorded in the financial statements.
Taxes: During 1993, an assessment was made against the predecessor
partnership (Seller) resulting from an audit performed by the Washington State
Department of Revenue for sales and use, and business and occupation taxes paid
for during the period from 1988 through September 1992. Under successor
liability statutes in the State of Washington, the Partnership 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. The Seller and certain of its affiliates have
agreed to indemnify the Partnership for any liabilities in connection with such
assessment. The Partnership's management does not believe that the assessment
will have an adverse effect on the Partnership's financial condition or results
of operations.
Employment agreements: The Partnership has entered into employment
agreements with several executive officers. Under two of these agreements, the
officers will receive a bonus based upon the sales price of the Partnership
(Note 14).
Legal proceedings: The Partnership is subject to various legal proceedings
that arise in the ordinary course of business. In the opinion of management,
the outcome of these matters is not expected to have any material effect on the
consolidated financial position or results of operations of the Partnership.
NOTE 10: ENSO AUDIO IMAGING CORPORATION
On March 16, 1998, the Partnership established Enso Audio Imaging
Corporation (EAIC Corp.), to provide Internet music samples to businesses. On
July 10, 1998, EAIC Corp. consummated a recapitalization and capital financing
agreement. Pursuant to the agreement, shares held by the Partnership were
converted to 10,000,000 shares of Class B nonvoting common stock. Additionally,
73,500 shares of Series A voting
F-40
MUZAK LIMITED PARTNERSHIP AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Years Ended December 31, 1996, 1997 and 1998
convertible mandatorily redeemable preferred stock of EAIC Corp. were issued
to a related party investor for a total consideration of $3,415,000, net of
costs. After January 5, 1999, but prior to April 15, 1999, 26,250 shares of
Series B preferred stock could be purchased by the related party investor for
$2,500,000. In the event that certain performance criteria is met by EAIC
Corp., the related party investor is required to purchase these shares of
Series B preferred stock. EAIC Corp. has not met this criteria as of December
31, 1998.
The preferred stock has voting rights, certain liquidation features, and
accrues dividends annually at a rate of 7%. The Series A preferred stock has a
mandatory redemption requirement at the option of the holder, such that, at
any time after June 30, 2005, the holder may redeem his interest at the
greater of his original investment plus 10%, or at the fair value of the
common stock as if the preferred stock interest were converted. The cumulative
return per share as of December 31, 1998 was $2.24. The Series A preferred
stock is convertible at the option of the holder into shares of Class A voting
common stock as determined by dividing its preferential amount, which is the
original purchase price of $48 divided by an internal rate of return, by the
conversion price. The original conversion price of approximately $48 per share
will be adjusted subsequently for any additional issuances of common stock at
consideration per share less than the Class A conversion price.
An affiliate of the Partnership was issued 10,000 shares of super voting
Class C common stock which has voting rights equal to 1,000 votes per share
and is convertible to an equal number of Class A voting common stock at the
option of the holder. Further, both the Series A preferred stock and the Class
C common stock are automatically convertible to Class A voting common stock
under certain circumstances.
On August 31, 1998, the Board of Directors of EAIC Corp. authorized a 100-
to-one common stock split. All applicable share data has been retroactively
adjusted for this stock split.
NOTE 11: REDEEMABLE PREFERRED INTERESTS
The redeemable preferred interests is comprised of the following at
December 31:
EAIC--Series A
Class C Class C-1 Preferred Stock Total
----------- ---------- --------------- -----------
BALANCE, January 1, 1996.. $10,030,000 $5,692,000 $ -- $15,722,000
Preferred return........ 518,000 398,000 -- 916,000
Repurchase of Class C
interests.............. (10,548,000) -- -- (10,548,000)
----------- ---------- ---------- -----------
BALANCE, December 31,
1996..................... -- 6,090,000 -- 6,090,000
Preferred return........ -- 400,000 -- 400,000
----------- ---------- ---------- -----------
BALANCE, December 31,
1997..................... -- 6,490,000 -- 6,490,000
Interest in EAIC........ -- -- 3,415,000 3,415,000
Preferred return........ -- 454,000 165,000 619,000
----------- ---------- ---------- -----------
BALANCE, December 31,
1998..................... $ -- $6,944,000 $3,580,000 $10,524,000
=========== ========== ========== ===========
The Class C non-voting limited partner interests were repurchased by the
Partnership in October 1996.
The Class C-1 non-voting preferred partner interest does not participate in
the Partnership's profits or losses. 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 limited partner
will forfeit any accrued portion of the return. If it has not previously
become a
F-41
MUZAK LIMITED PARTNERSHIP AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Years Ended December 31, 1996, 1997 and 1998
participating partner, the Class C-1 limited partner is entitled to a
preference in liquidation equal to its contribution plus accumulated return.
The cumulative return per unit as of December 31, 1997 and 1998, was $1.05 and
$1.37, respectively. At December 31, 1997 and 1998, the total number of units
outstanding, on an if-converted basis, was 1,420,368.
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
Partnership is required to redeem such units for an amount equal to the Class
C-1 contribution plus accumulated return.
NOTE 12: PARTNERS' DEFICIT
Partners' deficit is comprised of two general partners; Class A limited
partners, Class B limited partners, and preferred limited partners' interests;
Class A put/call units; Class B limited partner subscriptions receivable; and
Class B partnership unit options.
Class A put/call units: In connection with obtaining a fixed-rate
subordinated note payable, the Partnership issued an option to purchase
1,529,898 units of Class A limited partnership interests to a lender for an
aggregate exercise price of $10. These units are currently exercisable.
Subscriptions receivable: Officers and key employees of the Partnership have
acquired limited partnership interests, a portion of which was financed with
subscription notes. As of December 31, 1997 and 1998, the Class B limited
partners' capital accounts were reduced by subscription notes receivable.
Interest income on the subscriptions receivable totalled $27,000, $22,000, and
$94,000 for the years ended December 31, 1996, 1997, and 1998, and interest
receivable on subscription notes receivable was $16,000 and $107,000, as of
December 31, 1997 and 1998, respectively.
Preferred limited partners' interests: The preferred limited partners'
interests do not participate in the Partnership'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 Partnership. At December 31, 1997 and 1998,
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 Partnership may, at its option, redeem the units 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.
Cumulative per unit return as of December 31, 1997 and 1998, was $0.48 and
$0.68, respectively, and total aggregate return was $1,814,000 and $2,665,000,
respectively.
Other limited partners' interests: During 1997, the Partnership repurchased
1,250,000 Class B limited partnership units from eight members of former
management at a unit price of $2.33 for a total repurchase amount of
approximately $2,900,000. Seventeen new and existing members of management
purchased 889,000 units at a per unit price of $2.33 for a total purchase price
of approximately $2,100,000. The purchases were primarily financed by the
Partnership through subscription notes from the new management members and bear
F-42
MUZAK LIMITED PARTNERSHIP AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Years Ended December 31, 1996, 1997 and 1998
an interest rate of 7% per annum. This repurchase of partnership units in
exchange for subscription notes receivable is considered a noncash transaction
for purposes of the consolidated statements of cash flows.
Also during 1997, options to purchase 1,440,000 partnership units at prices
ranging from $1.00 to $1.75 per unit were forfeited by the separated management
members. Furthermore, 26,500 options to purchase partnership units at $1.00 per
unit were granted to two former senior manager executives.
In July 1998, the Partnership repurchased 100,000 Class B limited
partnership units at a unit price of $2.15 for a total repurchase amount of
$215,000 from a former member of management. The Partnership resold the units
at a unit price of $2.33 to current members of management.
Partnership unit options: Certain limited partners and key employees of the
Partnership have the ability, under certain conditions, to exercise options to
purchase units of Class B limited partnership interests (Class B Interests).
Through October 1, 1996, the Partnership was authorized to grant 1,869,545
units of Class B Interests, as established in the 1996 option plan (1996 Option
Plan), which vested at a rate of 20% per year, based on specific performance
standards. The options did not vest prior to October 1, 1996, as these
performance standards were not met.
Effective October 2, 1996, the Partnership amended the 1996 Option Plan
(Amended and Restated Management Option Plan) to decrease the number of options
the Partnership was authorized to grant to 1,840,000, and change the required
performance standards, along with other changes. The options now vest according
to the following schedule: 5% of the options vest on the first anniversary of
the Partnership's Offering; 5% of the options vest on the second anniversary of
the Partnership's Offering; the remaining 90% vests ratably at each calendar
year end over a five-year period beginning January 1, 1997, and become
exercisable if certain performance standards are met. These options expire on
October 1, 2003.
No compensation expense has been recorded for the options, which vest based
on the anniversary of the Offering, as management's estimate of the market
value was less than the exercise price at the date of the grant. Additionally
no compensation expense has been recognized for the remaining performance-based
options, as management, at this time, has deemed the probability of meeting the
performance standards to be remote.
Effective October 19, 1998, the Partnership granted 450,000 options, under a
new 1998 option plan, to members of management to purchase Class B limited
partnership units for $4.50 per unit. The options vest ratably over five years.
These options expire October 19, 2008. Exercisability of these options is not
based on performance standards. No compensation expense has been recorded for
these options, as management's estimate of the market value was approximately
equal to the exercise price at the date of the grant.
Other options granted: On December 19, 1996, the Board of Directors granted
a member of the Board of Directors options to purchase 30,000 Class B limited
partnership units for $3.00 per unit. These options vest ratably over a five-
year period and expire in September 2003. No material compensation expense has
been recorded for these options, as management's estimate of the market value
was less than the exercise price at the date of the grant.
Effective May 10, 1997, and June 1, 1997, the Board of Directors granted two
senior officers of the Partnership a total of 1,500,000 options to purchase
Class B limited partnership units for $2.33 per unit. These options vest in
equal amounts over a three-year period commencing from the grant date.
Exercisability of 60%
F-43
MUZAK LIMITED PARTNERSHIP AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Years Ended December 31, 1996, 1997 and 1998
of these options is subject to certain performance standards being met. At
December 31, 1998, it is probable the performance standards will be met. The
Partnership has recognized approximately $202,000 and $1,993,000 in
compensation expense for the years ended December 31, 1997 and 1998,
respectively.
In July 1997, the Board of Directors granted a member of the Board of
Directors options to purchase 150,000 Class B limited partnership units for
$2.33 per unit. These options vest ratably over a three-year period and expire
in July 2002. Exercisability of 60% of these options is subject to certain
performance standards being met. At December 31, 1998, it is probable the
performance standards will be met. The Partnership has recognized $-0- and
approximately $224,000 in compensation expense for the years ended December 31,
1997 and 1998, respectively.
Weighted
Range of average
Number of exercise exercise
options price price
---------- ----------- --------
Outstanding, January 1, 1996.................. 1,834,545 $1.00--1.75 $1.12
Options granted (weighted average fair value
of $1.91).................................. 40,000 3.00 3.00
Options forfeited........................... (75,000) 1.00 1.00
---------- ----------- -----
Outstanding, December 31, 1996................ 1,799,545 1.00--3.00 1.16
Options granted (weighted average fair value
of $.37)................................... 1,706,500 1.00--3.00 2.32
Options forfeited........................... (1,440,000) 1.00--1.75 1.15
---------- ----------- -----
Outstanding, December 31, 1997................ 2,066,045 1.00--3.00 2.09
Options granted (weighted average fair value
of $1.45).................................. 450,000 4.50 4.50
Options forfeited........................... (15,000) 1.00 1.00
---------- ----------- -----
Outstanding, December 31, 1998................ 2,501,045 1.00--4.50 $2.56
========== =========== =====
Additional information regarding options outstanding as of December 31, 1998,
is as follows:
Weighted
average Weighted Weighted
contractual average average
Exercise Number life exercise Number exercise
prices outstanding (years) price exercisable price
----------- ----------- ----------- -------- ----------- --------
$1.00 331,045 0.8 $1.00 33,105 $1.00
2.33 1,650,000 5.4 2.33 220,000 2.33
3.00 70,000 5.0 3.00 4,000 3.00
4.50 450,000 9.8 4.50 -- 4.50
----------- --------- --- ----- ------- -----
$1.00--4.50 2,501,045 5.6 $2.56 257,105 $2.17
=========== ========= === ===== ======= =====
Fair value stock-based compensation: The Partnership has calculated the pro
forma net loss under SFAS No. 123 using a multiple option valuation approach
and certain weighted-average assumptions deemed reasonable by management. These
assumptions include a risk-free interest rate ranging from 4.5% to 4.6%, an
expected life of two to five years, a partnership unit volatility of 0.0% and
no partnership distributions over the expected life. Had compensation expense
for the stock option plans been recognized under SFAS No. 123, the
Partnership's net loss would have been adjusted to the pro forma amount for the
years ended December 31 as follows (in thousands):
1997 1998
-------- --------
Net loss as reported................................ $(13,435) $(11,989)
======== ========
Pro forma net loss under SFAS No. 123............... $(13,599) $(12,225)
======== ========
F-44
MUZAK LIMITED PARTNERSHIP AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Years Ended December 31, 1996, 1997 and 1998
Put options: A general partner and certain of the Class A limited partners
can require the Partnership 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 Partnership or would be in
contravention of any then-existing agreement to which the Partnership is a
party. These partners have not elected to exercise their redemption rights as
of December 31, 1998.
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.
NOTE 13: ENTERPRISE-WIDE INFORMATION
Management organizes its business around its independent and owned
affiliates. These operating segments have been aggregated as each segment has
similar economic characteristics and the nature of the segments, its production
processes, customers and distribution methods are similar. Information related
to the Partnership's products and services revenue is summarized for the years
ended December 31, as follows (in thousands):
1996 1997 1998
------- ------- -------
Revenues:
Broadcast music...................................... $42,242 $43,761 $47,916
On-premise music..................................... 4,368 4,035 4,157
Other broadcast services............................. 1,530 1,546 1,746
Audio marketing...................................... 2,480 3,248 4,418
On-premise video..................................... 2,108 4,126 2,973
In-store advertising................................. 717 949 745
Internet music server................................ 22 359 1,678
Other................................................ 1,118 1,327 2,323
------- ------- -------
Total music and other business services............ 54,585 59,351 65,956
Equipment............................................ 21,873 21,026 22,021
Installation, service, and repair.................... 10,353 10,827 11,771
------- ------- -------
Total equipment and related services............... 32,226 31,853 33,792
------- ------- -------
Total revenue.......................................... $86,811 $91,204 $99,748
======= ======= =======
NOTE 14: SUBSEQUENT EVENTS
On January 29, 1999, the Partnership entered into a definite merger
agreement to be acquired by Audio Communications Network Holdings, LLC (ACN).
Under the terms of the agreement which was effective March 18, 1999, the
Partnership merged into a subsidiary of ACN for total consideration of
approximately $245,000,000. The current partners retained a minor ownership
interest in the merged entity. The accounts of EAIC Corp. were not part of the
merger.
Upon change of control of the Partnership, all outstanding options to
purchase partnership units became immediately vested and exercisable unless the
performance criteria was not achievable. The accelerated vesting of certain
options resulted in a significant charge as performance criteria for these
options became achievable.
F- 45
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
$115,000,000
M
muzak
Muzak LLC
Muzak Finance Corp.
9 7/8% Senior Subordinated Notes due 2009
-----------------------
PROSPECTUS
-----------------------
CIBC Oppenheimer
Goldman, Sachs & Co.
Subject to completion, , 1999
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PART II: INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 20. Indemnification of Directors and Officers.
Muzak LLC. Muzak LLC is a limited liability company organized under the laws
of the State of Delaware. Section 18-108 of the Delaware Limited Liability
Company Act (the "Act") provides that, subject to such standards and
restrictions, if any, as are set forth in its limited liability company
agreement, a limited liability company may, and shall have the power to,
indemnify and hold harmless any member or manager or other person from and
against any and all claims and demands whatsoever.
Section 7.5 of Muzak LLC's Limited Liability Company Agreement provides,
among other things, that directors and officers of Muzak LLC shall be not be
liable, responsible or accountable for damages or otherwise to Muzak LLC or to
its members. Section 7.5 also provides that each director and each officer of
Muzak LLC shall be indemnified and held harmless by Muzak LLC, including
advancement of reasonable attorney's fees and other expenses, but only to the
extent that Muzak LLC's assets are sufficient therefor, from and against all
claims, liabilities, and expenses arising out of any management of Muzak LLC
affairs (but excluding those caused by the gross negligence or willful
misconduct of such director or officer), to the fullest extent allowed by law.
Section 7.5 of Muzak LLC's Limited Liability Company Agreement also provides
that, the rights of indemnification will be in addition to any rights to which
such directors or officers may otherwise be entitled by contract or as a matter
of law and shall extend to his heirs, personal representatives and assigns.
All of Muzak LLC's directors and officers and the directors and officers of
the subsidiaries of Muzak LLC are covered by insurance policies obtained by
Muzak LLC against certain liabilities for actions taken in such capacities,
including liabilities under the Securities Act of 1933.
Muzak Finance Corp. Muzak Finance Corp. is incorporated under the laws of
the State of Delaware. Section 145 of the General Corporation Law of the State
of Delaware, inter alia ("Section 145") provides that a Delaware corporation
may indemnify any persons who were, are or are threatened to be made, parties
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of such corporation), by reason of the fact that such person is or
was an officer, director, employee or agent of such corporation, or is or was
serving at the request of such corporation as a director, officer, employee or
agent of another corporation or enterprise. The indemnity may include expenses,
such as attorneys' fees, judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding, provided such person acted in good faith and in a manner he
or she reasonably believed to be or not opposed to the corporation's best
interests and, with respect to any criminal action or proceeding, had no
reasonable cause to believe that his or her conduct was illegal. A Delaware
corporation may indemnify any persons who are, were or are threatened to be
made, party to any threatened, pending or completed action or suit by or in the
right of the corporation by reasons of the fact that such person was a
director, officer, employee or agent of such corporation, or is or was serving
at the request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. The indemnity may include expenses,
including attorneys' fees, actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit, provided such
person acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the corporation's best interests, provided that no
indemnification is permitted without judicial approval if the officer,
director, employee or agent is adjudged to be liable to the corporation. Where
an officer, director, employee or agent is successful on the merits or
otherwise in the defense of any action referred to above, the corporation must
indemnify him or her against the expenses which such officer or director has
actually and reasonably incurred.
Article Eight of Muzak Finance Corp.'s Certificate of Incorporation
("Article Eight") provides that each person who was or is made a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of
II-1
the fact that he (or a person of whom he is the legal representative), is or
was a director or officer of Muzak Holdings Finance Corp. or is or was serving
at the request of Muzak Holdings Finance Corp. as a director, officer,
employee, fiduciary, or agent of another corporation or of a partnership, joint
venture, trust or other enterprise, including service with respect to employee
benefit plans, whether the basis of such proceeding is alleged action in an
official capacity as a director, officer, employee, fiduciary or agent or in
any other capacity while serving as a director, officer, employee, fiduciary or
agent, shall be indemnified and held harmless by Muzak Holdings Finance Corp.
to the fullest extent which it is empowered to do so by the General Corporation
Law of the State of Delaware, as the same exists or may hereafter be amended
(but, in the case of any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than said law
permitted Muzak Holdings Finance Corp. to provide prior to such amendment). The
indemnity may include all expense, liability and loss, including attorneys'
fees actually and reasonably incurred by such person in connection with such
proceeding, and such indemnification shall inure to the benefit of his or her
heirs, executors and administrators; provided, however, that, except as
otherwise provided in Article Eight, Muzak Holdings Finance Corp. shall
indemnify any such person seeking indemnification in connection with a
proceeding initiated by such person only if such proceeding was authorized by
the Board of Directors of Muzak Holdings Finance Corp. Article Eight also
provides that Muzak Holdings Finance Corp. may, by action of the Board of
Directors, provide indemnification its employees and agents with the same scope
and effect as the foregoing indemnification of directors and officers.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who 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 or
enterprise, against any liability asserted against him and incurred by him or
her in any such capacity, arising out of his or her status as such, whether or
not the corporation would otherwise have the power to indemnify him or her
under Section 145.
Article Eight further provides that Muzak Finance Corp. may purchase and
maintain insurance on its own behalf and on behalf of any person who is or was
a director, officer, employee, fiduciary or agent of Muzak Finance Corp. or was
serving at the request of Muzak Finance Corp. as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him or her and incurred by
him or her in any such capacity, whether or not Muzak Finance Corp. would have
the power to indemnify such person against such liability under Article Eight.
Muzak Capital Corporation. Muzak Capital Corporation is incorporated under
the laws of the State of Delaware. Section 145 of the General Corporation Law
of the State of Delaware, inter alia, provides that a Delaware corporation may
indemnify any persons who were, are or are threatened to be made, parties to
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of such corporation), by reason of the fact that such person is or was an
officer, director, employee or agent of such corporation, or is or was serving
at the request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. The indemnity may include expenses, such as
attorneys' fees, judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, provided such person acted in good faith and in a manner he or she
reasonably believed to be or not opposed to the corporation's best interests
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe that his or her conduct was illegal. A Delaware corporation may
indemnify any persons who are, were or are threatened to be made, party to any
threatened, pending or completed action or suit by or in the right of the
corporation by reasons of the fact that such person was a director, officer,
employee or agent of such corporation, or is or was serving at the request of
such corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses, including
attorneys' fees, actually and reasonably incurred by such person in connection
with the defense or settlement of such action or suit, provided such person
acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the corporation's best interests, provided that no
indemnification is permitted without judicial approval if the officer,
director, employee or agent is adjudged to be liable to the corporation. Where
an officer, director, employee or agent is
II-2
successful on the merits or otherwise in the defense of any action referred to
above, the corporation must indemnify him or her against the expenses which
such officer or director has actually and reasonably incurred.
Article V of Muzak Capital Corporation's Certificate of Incorporation
("Article V") provides, among other things, that no director of Muzak Capital
Corporation shall be personally liable to Muzak Capital Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to
the Muzak Capital Corporation or its stockholders; (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law; (iii) under Section 174 of the General Corporation Law of the
State of Delaware; or (iv) for any transaction from which the director derived
an improper personal benefit. Article V also provides that Muzak Capital
Corporation shall have the power to indemnify any person who is or was or is a
party or is threatened to be made a party to, or testifies in, any
administrative or investigative in nature, by reason of the fact that such
person is or was a director, officer, employee or agent of the Muzak Capital
Corporation, or is or was serving at the request of Muzak Capital Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, employee benefit plan, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding to the full extent permitted by law, and Muzak
Capital Corporation may adopt Bylaws or enter into agreements with any such
person for the purpose of providing for such indemnification.
Article VI of the By-laws of Muzak Capital Corporation ("Article VI")
provides, among other things, that each person who was or is made a party or is
threatened to be made a party to or is involved in any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative, by reason of the fact that he or she is or was a director or
officer of the corporation or is or that he or she, being at the time a
director or officer of Muzak Capital Corporation, is or was serving at the
request of Muzak Capital Corporation as a director, officer, member, employee,
fiduciary, or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to an employee
benefit plan, shall be indemnified and held harmless by Muzak Capital
Corporation to the fullest extent which it is empowered to do so unless
prohibited from doing so by the General Corporation Law of the State of
Delaware, as the same exists or may hereafter be amended but, in the case of
any such amendment, only to the extent that such amendment permits Muzak
Capital Corporation to provide broader indemnification rights than said law
permitted the corporation to provide prior to such amendment, against all
expense, liability and loss, including attorneys' and other professionals' fees
and expenses, claims, judgments, fines, ERISA excise taxes or penalties and
amounts paid in settlement, actually and reasonably incurred by such person in
connection therewith. Such indemnification shall inure to the benefit of his or
her heirs, executors and administrators; provided, however, that, Muzak Capital
Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding initiated by such person only if such proceeding
was authorized by the board of directors of Muzak Capital Corporation.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who 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 or
enterprise, against any liability asserted against him and incurred by him or
her in any such capacity, arising out of his or her status as such, whether or
not the corporation would otherwise have the power to indemnify him or her
under Section 145.
Article VI further provides that Muzak Capital Corporation may purchase and
maintain insurance on behalf of any person who is or was a director, officer or
employee of Muzak Capital Corporation or is or was serving at the request of
Muzak Capital Corporation as a director, officer, member, employee, fiduciary
or agent of another against any liability asserted against him or her and
incurred by him or her in any such capacity, or arising out of such person's
status as such, whether or not Muzak Capital Corporation would have the power
or the obligation to indemnify such person against such liability under Article
VI.
II-3
MLP Environmental Music, LLC. MLP Environmental Music, LLC is a limited
liability company organized under the laws of the State of Washington. Section
25.15.040 of the Limited Liability Company Act of the State of Washington
provides, among other things, that the limited liability company agreement may
contain provisions not inconsistent with law that eliminate or limit the
personal liability of a member or manager to the limited liability company or
its members for monetary damages for conduct as a member or manager, provided
that such provisions shall not eliminate or limit the liability of a member or
manager for acts or omissions that involve intentional misconduct or a knowing
violation of law by a member or manager, for conduct of the member or manager,
violating section 25.15.235 of the Limited Liability Act of the State of
Washington, or for any transaction from which the member or manager will
personally receive a benefit in money, property, or services to which the
member or manager is not legally entitled. Section 25.15.040 of the Washington
Limited Liability Company Act also provides that the limited liability company
agreement may contain provisions not inconsistent with law that indemnify any
member or manager from and against any judgments, settlements, penalties,
fines, or expenses incurred in a proceeding to which an individual is a party
because he or she is, or was, a member or a manager, provided that no such
indemnity shall indemnify a member or a manager from or on account of acts or
omissions of the member or manager finally adjudged to be intentional
misconduct or a knowing violation of law by the member or manager, conduct of
the member or manager adjudged to be in violation of section 25.15.235 of the
Limited Liability Act of the State of Washington, or any transaction with
respect to which it was finally adjudged that such member or manager received a
benefit in money, property, or services to which such member or manager was not
legally entitled.
Section 5.3 of MLP Environmental Music, LLC's Amended and Restated Limited
Liability Company Agreement provides that neither the manager nor any affiliate
of the manager of MLP Environmental Music, LLC shall be liable, responsible or
accountable in damages or otherwise to MLP Environmental Music, LLC or the
members for any act or omission by any such person performed in good faith
pursuant to the authority granted to such person by the Amended and Restated
Limited Liability Company Agreement of MLP Environmental Music, LLC or in
accordance with its provisions, and in a manner reasonably believed by such
person to be within the scope of the authority granted to such person and in
the best interest of MLP Environmental Music, LLC; provided, that such act or
omission did not involve intentional misconduct or a knowing violation of law,
conduct violating section 25.15.235 of the Limited Liability Act of the State
of Washington, or any transaction from which the person will, without the
approval of members collectively holding a majority interest, receive a benefit
in money, property, or services to which such person is not legally entitled.
Section 5.3 also provides that MLP Environmental Music, LLC shall indemnify,
defend and hold harmless the manager, any affiliate, and each director,
officer, partner, employee or agent thereof, against any liability, loss,
damage, cost or expense incurred by them on behalf of MLP Environmental Music,
LLC or in furtherance of MLP Environmental Music, LLC's interests without
relieving any such person of liability for intentional misconduct or a knowing
violation of law, conduct violating section 25.15.235 of the Limited Liability
Act of the State of Washington, or any transaction from which the person will,
without the approval of members collectively holding a majority interest,
receive a benefit in money, property, or services to which such person is not
legally entitled.
Section 5.3 of MLP Environmental Music, LLC's Amended and Restated Limited
Liability Company Agreement also provides that any indemnification required to
be made by MLP Environmental Music, LLC shall be made promptly following the
fixing of the liability, loss, damage, cost or expense incurred or suffered by
a final judgment of any court, settlement, contract or otherwise. In addition,
MLP Environmental Music, LLC shall advance funds to a person claiming
indemnification under this section 5.3 for legal expenses and other costs
incurred as a result of legal action brought against such person only if (i)
the legal action relates to the performance of duties or services by the person
on behalf of MLP Environmental Music, LLC, (ii) the legal action is initiated
by a party other than a member and (iii) such person undertakes to repay the
advanced funds to MLP Environmental if it is determined that such person is not
entitled to indemnification pursuant to the terms of MLP Environmental Music,
LLC's Amended and Restated Limited Liability Company Agreement.
Business Sound, Inc. Business Sound, Inc. is a corporation organized under
the laws of the State of Ohio. Section 1701.13(E) of the General Corporation
Law of Ohio provides, among other things, that a corporation
II-4
may indemnify or agree to indemnify any person who was or is a party, or is
threatened to be made a party, to any threatened, pending, or completed action,
suit, or proceeding, whether civil, criminal, administrative, or investigative,
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, trustee, officer, employee, member, manager, or agent of another
corporation, domestic or foreign, nonprofit or for profit, a limited liability
company, or a partnership, joint venture, trust, or other enterprise. The
indemnity may include expenses, including attorney's fees, judgments, fines,
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit, or proceeding, if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, if he had no reasonable cause to believe his conduct was unlawful.
Section 1701.13(E) of the General Corporation Law of Ohio also provides that
an Ohio corporation may indemnify or agree to indemnify any person who was or
is a party, or is threatened to be made a party, to any threatened, pending, or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor, 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, trustee, officer, employee, member,
manager, or agent of another corporation, domestic or foreign, nonprofit or for
profit, a limited liability company, or a partnership, joint venture, trust, or
other enterprise. The indemnity may include expenses, including attorney's
fees, actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification shall be made in respect of any of
the following:
(a) Any claim, issue, or matter as to which such person is adjudged to
be liable for negligence or misconduct in the performance of his duty to
the corporation unless, and only to the extent that, the court of common
pleas or the court in which such action or suit was brought determines,
upon application, that, despite the adjudication of liability, but in view
of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses as the court of common pleas or
such other court shall deem proper;
(b) Any action or suit in which the only liability asserted against a
director is pursuant to section 1701.95 of the Revised Code of Ohio.
Article V of the Code of Regulations of Business Sound, Inc. provides, among
other things, that Business Sound, Inc. shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative,
or investigative, including all appeals (other than an action, suit or
proceeding by or in the right of the Corporation) by reason of the fact that he
is or was a Director, officer or employee of Business Sound, Inc., or is or was
serving at the request of the Business Sound, Inc. as a Director, trustee,
officer or employee of another corporation, partnership, joint venture, trust
or other enterprise, against expenses (including attorneys' fees), judgments,
decrees, fines, penalties and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding
if he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of Business Sound, Inc. and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interest of Business Sound, Inc. and, with respect to
any criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful.
Article V of the Code of Regulations of Business Sound, Inc. further
provides, among other things, that Business Sound, Inc. shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit, including all appeals, by or
in the right of Business Sound, Inc. to procure a judgment in its favor by
reason of the fact that he is or was a Director, officer or employee of
II-5
Business Sound, Inc., or is or was serving at the request of Business Sound,
Inc. as a Director, trustee, officer or employee of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys, fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of Business Sound, Inc., except that no indemnification
shall be made in respect of any claim, issue or matter as to which such person
shall have been finally adjudged to be liable for negligence or misconduct in
the performance of his duty to Business Sound, Inc. unless and only to the
extent that the Court of Common Pleas 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 the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses as the Court of
Common Pleas or such other Court shall deem proper.
Section 1701.13 (E) of the General Corporation Law of Ohio authorizes a
corporation to purchase and maintain insurance or furnish similar protection,
including, but not limited to, trust funds, letters of credit, or self-
insurance, on behalf of or for any person who 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, trustee, officer, employee, member, manager, or
agent of another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust, or other
enterprise, against any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability under
this section. Insurance may be purchased from or maintained with a person in
which the corporation has a financial interest.
Article V of the Code of Regulations of Business Sound, Inc. provides that
Business Sound, Inc. may purchase and maintain insurance on behalf of any
person who is or was a Director, officer or employee of Business Sound, Inc.,
or is or was serving at the request of Business Sound, Inc. as a Director,
trustee, officer or employee of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not Business Sound, Inc. would have the power to indemnify him
against such liability under the provisions of Article V of the Code of
Regulations of Business Sound, Inc. or of the Ohio General Corporation Law.
Muzak Holdings LLC. Muzak Holdings LLC is a limited liability company
organized under the laws of the State of Delaware. Section 18-108 of the
Delaware Limited Liability Company Act (the "Act") provides that, subject to
such standards and restrictions, if any, as are set forth in its limited
liability company agreement, a limited liability company may, and shall have
the power to, indemnify and hold harmless any member or manager or other person
from and against any and all claims and demands whatsoever.
Section 3.6 of Muzak Holdings LLC's Amended and Restated Limited Liability
Company Agreement provides, among other things, that directors and officers of
Muzak Holdings LLC shall be not be liable, responsible or accountable for
damages or otherwise to Muzak Holdings LLC, or to its members. Section 3.6 of
Muzak Holdings LLC's Amended and Restated Limited Liability Company Agreement
also provides that each director and each officer of Muzak Holdings LLC shall
be indemnified and held harmless by Muzak Holdings LLC, including advancement
of reasonable attorney's fees and other expenses, but only to the extent that
Muzak Holdings LLC's assets are sufficient therefor, from and against all
claims, liabilities, and expenses arising out of any management of Muzak
Holdings LLC affairs (but excluding those caused by the gross negligence or
willful misconduct of such director or officer), to the fullest extent allowed
by law.
Section 3.6 of Muzak Holdings LLC's Amended and Restated Limited Liability
Company Agreement also provides that, the rights of indemnification will be in
addition to any rights to which such directors or officers may otherwise be
entitled by contract or as a matter of law and shall extend to his heirs,
personal representatives and assigns.
II-6
Item 21. Exhibits and Financial Statement Schedules.
(a) Exhibits.
Exhibit
Number Exhibit
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2.1 Agreement and Plan of Merger, dated as of January 29, 1999 among ACN
Holdings, LLC, Audio Communications Network, LLC, Muzak Limited
Partnership, MLP Acquisition L.P. and Muzak Holdings Corp.
2.2 First Amendment to the Agreement and Plan of Merger dated as of March 17,
1999 by and among Muzak Holdings LLC (f/k/a ACN Holdings, LLC), Audio
Communications Network, LLC, Muzak Limited Partnership, MLP Acquisition,
L.P. and Muzak Holdings Corp.
3.1 Certificate of Formation of ACN Operating, LLC.
3.2 Certificate of Amendment of the Certificate of Formation of ACN Operating,
LLC.
3.3 Certificate of Merger Merging Muzak Limited Partnership into Audio
Communications Network, LLC.
3.4 Certificate of Incorporation of Muzak Finance Corp.
3.5 Certificate of Incorporation of Muzak, Inc.
3.6 First Amendment to Certificate of Incorporation of Muzak, Inc.
3.7 Certificate of Formation of MLP Environmental Music, LLC.
3.8 Articles of Incorporation of Music Acquisition, Inc.
3.9 Certificate of Amendment by Shareholders of Music Acquisition, Inc. to the
Articles of Incorporation of Music Acquisition, Inc.
3.10 Certificate of Amendment by Shareholders to the Articles of Incorporation
of Ohio Sound and Music, Inc.
3.11 Certificate of Amendment by Shareholders to the Articles of Incorporation
of Ohio Sound and Music, Inc.
3.12 Certificate of Formation of ACN Holdings, LLC.
3.13 Certificate of Amendment to the Certificate of Formation of ACN Holdings,
LLC.
3.14 Amended and Restated Limited Liability Company Agreement of Muzak LLC,
dated as of March 18, 1999.
3.15 By-laws of Muzak Finance Corp.
3.16 By-laws of Muzak, Inc.
3.17 Amended and Restated Limited Liability Agreement of MLP Environmental
Music, LLC, dated as of March 18, 1999.
3.18 Code of Regulations of Business Sound, Inc.
3.19 Amended and Restated Limited Liability Company Agreement of Muzak Holdings
LLC, dated as of March 18, 1999.
II-7
Exhibit
Number Exhibit
------- --------------------------------------------------------------------------
4.1 Indenture, dated as of March 18, 1999 by and among Muzak LLC and Muzak
Finance Corp., as Issuers, Muzak Capital Corporation, MLP Environmental
Music, LLC, Business Sound, Inc. and ACN Holdings LLC, as Guarantors and
State Street Bank and Trust Company, as Trustee.
4.2 Form of 9 7/8% Senior Subordinated Notes due 2009 (included in Exhibit 4.1
above as Exhibit A).
4.3 Registration Rights Agreement, dated as of March 18, 1999 by and among
Muzak LLC and Muzak Finance Corp., the Guarantors named therein and CIBC
Oppenheimer Corp. and Goldman, Sachs & Co., as Initial Purchasers.
4.4 Purchase Agreement, dated March 12, 1999 by and among Audio Communications
Network, LLC and Muzak Finance Corp., the Guarantors named therein and
CIBC Oppenheimer Corp. and Goldman, Sachs & Co., as Initial Purchasers.
*5.1 Opinion of Kirkland & Ellis.
10.1 Credit and Guaranty Agreement, dated as of March 18, 1999 among Audio
Communications Network, LLC, as Borrower, Muzak Holdings LLC and certain
subsidiaries of Audio Communications Network, LLC, as Guarantors, various
lenders, Goldman Sachs Credit Partners L.P., as Syndication Agent,
Canadian Imperial Bank of Commerce, as Administrative Agent and Goldman
Sachs Credit Partners L.P. and CIBC Oppenheimer Corp. as Co-Lead
Arrangers.
10.2 Pledge and Security Agreement, dated as of March 18, 1999, among Audio
Communications Network, LLC, Muzak Holdings LLC, and certain present and
future domestic subsidiaries of Audio Communications Network, LLC, as
Guarantors, and Canadian Imperial Bank of Commerce, as agent for the
benefit of Lenders and Lender Counterparties and Indemnitees.
10.3 Indenture relating to the Senior Discount Notes, dated as of March 18,
1999, by and among, Muzak Holdings LLC and Muzak Holdings Finance Corp.,
as Issuers, and State Street Bank and Trust Company, as Trustee.(1)
10.4 Amended and Restated Members Agreement, dated as of March 18, 1999, by and
among Muzak Holdings LLC (f/k/a ACN Holdings, LLC), MEM Holdings LLC,
David Unger, Joseph Koff, William Boyd and Music Holdings Corp.
10.5 Management and Consulting Services Agreement dated as of October 6, 1998
by and between ABRY Partners, Inc. and ACN Operating, LLC.
*10.6 Form of Employment Agreement by and between Muzak LLC and each of the
executive officers of Muzak other than William A. Boyd and David Unger.
10.7 Executive Employment Agreement, dated as of March 18, 1999, among Muzak
Holdings LLC, Muzak LLC and William A. Boyd.
10.8 Executive Employment Agreement dated as of October 6, 1998, by and among
ACN Operating, LLC, Audio Communications Network, LLC and David Unger.
10.9 First Amendment to the Executive Employment Agreement dated as of March
18, 1999 to the certain Executive Employment Agreement dated as of October
6, 1998, by and between Audio Communications Network, LLC f/k/a ACN
Operating, LLC and David Unger.
*12.1 Statement regarding computation of ratio of earnings to fixed charges.
21.1 Subsidiaries of Muzak LLC, Muzak Finance Corp., Muzak Capital Corporation,
MLP Environmental Music, LLC, Business Sound, Inc. and Muzak Holdings,
LLC.
II-8
Exhibit
Number Exhibit
------- --------------------------------------------------------------------------
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.2 Consent of Deloitte & Touche LLP, Independent Auditors.
*23.4 Consent of Kirkland & Ellis (included in Exhibit 5.1 above).
24.1 Power of Attorney (included in signature page to the Registration
Statement).
*25.1 Statement of Eligibility of Trustee on Form T-1 with respect to the New
Notes.
*25.2 Statement of Eligibility of Trustee on Form T-1 with respect to the
guarantees of the New Notes.
*27.1 Financial Data Schedule.
*99.1 Form of Letter of Transmittal.
*99.2 Form of Notice of Guaranteed Delivery.
*99.3 Form of Tender Instructions.
- --------
* To be filed by Amendment.
(1) Filed as an Exhibit to the Registration Statement on Form S-4 (File No.
333- ) filed by Muzak Holdings LLC on May , 1999.
(b) Financial Statement Schedules.
All schedules for which provision is made in the applicable accounting
regulations of the Securities and Exchange Commission are not required under
the related instructions, are inapplicable or not material, or the information
called for thereby is otherwise included in the financial statements and
therefore has been omitted.
Item 22. Undertakings.
(a) The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at the time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
II-9
(4) 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 pursuant to
the provisions described under Item 20 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
registrants 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 them is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
(5) The undersigned registrants hereby undertake to respond to requests
for information that is incorporated by reference into the prospectus
pursuant to Item 4, 10(b), 11, or 13 of this form, within one business day
of receipt of such request, and to send the incorporated documents by first
class mail or other equally prompt means. This includes information
contained in documents filed subsequent to the effective date of the
registration statement through the date of responding to the request.
(6) The undersigned registrants hereby undertake to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-10
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Muzak LLC has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in City of Seattle, State
of Washington, on the day of May, 1999.
Muzak LLC
/s/ William A. Boyd
By: _________________________________
Name: William A. Boyd
Title: Chief Executive Officer and
President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Brad D. Bodenman and Royce Yudkoff, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments)
to this registration statement, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully 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 any of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities indicated on the day of May, 1999.
Signature Capacity
--------- --------
/s/ William A. Boyd President and Chief Executive Officer
___________________________________________ (Principal Executive Officer)
William A. Boyd
/s/ Brad D. Bodenman Chief Financial Officer (Principal
___________________________________________ Financial Officer and Principal
Brad D. Bodenman Accounting Officer)
/s/ Royce Yudkoff Director
___________________________________________
Royce Yudkoff
II-11
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Muzak Finance Corp. has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in City of Seattle,
State of Washington, on the day of May, 1999.
Muzak Finance Corp.
/s/ William A. Boyd
By: _________________________________
Name: William A. Boyd
Title: Chief Executive Officer and
President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Brad D. Bodenman and Royce Yudkoff, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments)
to this registration statement, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully 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 any of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities indicated on the day of May, 1999.
Signature Capacity
--------- --------
/s/ William A. Boyd President and Chief Executive Officer
___________________________________________ (Principal Executive Officer)
William A. Boyd
/s/ Brad D. Bodenman Chief Financial Officer (Principal
___________________________________________ Financial Officer and Principal
Brad D. Bodenman Accounting Officer)
/s/ Royce Yudkoff Director
___________________________________________
Royce Yudkoff
II-12
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Muzak Capital Corp. has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in City of Seattle,
State of Washington, on the day of May, 1999.
Muzak Capital Corporation
/s/ William A. Boyd
By: _________________________________
Name: William A. Boyd
Title: Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Brad D. Bodenman and Royce Yudkoff, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments)
to this registration statement, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully 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 any of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities indicated on the day of May, 1999.
Signature Capacity
--------- --------
/s/ William A. Boyd President and Chief Executive Officer
___________________________________________ (Principal Executive Officer)
William A. Boyd
/s/ Brad D. Bodenman Chief Financial Officer (Principal
___________________________________________ Financial Officer and Principal
Brad D. Bodenman Accounting Officer)
/s/ Royce Yudkoff Director
___________________________________________
Royce Yudkoff
II-13
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, MLP
Environmental Music, LLC has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in City of
Seattle, State of Washington, on the day of May, 1999.
MLP Environmental Music, LLC
/s/ William A. Boyd
By: _________________________________
Name: William A. Boyd
Title: Chief Executive Officer and
President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Brad D. Bodenman and Royce Yudkoff, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments)
to this registration statement, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully 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 any of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities indicated on the day of May, 1999.
Signature Capacity
--------- --------
/s/ William A. Boyd President and Chief Executive Officer
___________________________________________ (Principal Executive Officer)
William A. Boyd
/s/ Brad D. Bodenman Chief Financial Officer (Principal
___________________________________________ Financial Officer and Principal
Brad D. Bodenman Accounting Officer)
/s/ Royce Yudkoff Manager
___________________________________________
Royce Yudkoff
II-14
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Business Sound, Inc. has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in City of
Seattle, State of Washington, on the day of May, 1999.
Business Sound, Inc.
/s/ William A. Boyd
By: _________________________________
Name: William A. Boyd
Title: Chief Executive Officer and
President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Brad D. Bodenman and Royce Yudkoff, his or her
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him or her and in his or her name, place and stead, in
any and all capacities, to sign any or all amendments (including post-effective
amendments) to this registration statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully 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 any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities indicated on the day of May, 1999.
Signature Capacity
--------- --------
/s/ William A. Boyd President and Chief Executive Officer
___________________________________________ (Principal Executive Officer)
William A. Boyd
/s/ Brad D. Bodenman Chief Financial Officer (Principal
___________________________________________ Financial Officer and Principal
Brad D. Bodenman Accounting Officer)
/s/ Royce Yudkoff Director
___________________________________________
Royce Yudkoff
II-15
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Muzak Holdings LLC has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in City of Seattle,
State of Washington, on the 14th day of May, 1999.
Muzak Holdings LLC
/s/ William A. Boyd
By: _________________________________
Name: William A. Boyd
Title: Chief Executive Officer and
President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Brad D. Bodenman and Royce Yudkoff, his or her
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him or her and in his or her name, place and stead, in
any and all capacities, to sign any or all amendments (including post-effective
amendments) to this registration statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their, his or her substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities indicated on the 14th day of May, 1999.
Signature Capacity
--------- --------
/s/ William A. Boyd Director, President and Chief Executive
___________________________________________ Officer (Principal Executive Officer)
William A. Boyd
/s/ Brad D. Bodenman Chief Financial Officer (Principal
___________________________________________ Financial Officer and Principal
Brad D. Bodenman Accounting Officer)
/s/ Peni Garber Director
___________________________________________
Peni Garber
/s/ David W. Unger Director
___________________________________________
David W. Unger
/s/ Royce Yudkoff Director
___________________________________________
Royce Yudkoff
___________________________________________ Chairman of the Board
Steven Hicks
II-16
Signature Capacity
--------- --------
___________________________________________ Director
D. Geoff Armstrong
/s/ Andrew Banks Director
___________________________________________
Andrew Banks
II-17