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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-K
(Mark One)
[X]ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the Fiscal Year Ended December 31, 1996
[_]TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the Transition Period from to
Commission File No.: 0-21575
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METRO NETWORKS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 76-0505148
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
2800 POST OAK BOULEVARD, SUITE 4000 77056
HOUSTON, TEXAS (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE
OFFICES) (713) 407-6000
(REGISTRANT'S TELEPHONE NUMBER,
INCLUDING AREA CODE)
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
TITLE OF CLASS
COMMON STOCK, $.001 PAR VALUE
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports) and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [_]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to
the best of Registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [X]
The aggregate market value of the shares of Registrant's Common Stock held
by non-affiliates of Registrant as of March 21, 1997 was $182,600,831, based
upon the last reported bid price of $22.875 per share of Common Stock on March
21, 1997, as reported in the NASDAQ National Market.
The number of shares outstanding of Registrant's Common Stock as of March
21, 1997 was 16,550,357.
DOCUMENTS INCORPORATED BY REFERENCE
Part IV of this Form 10-K is incorporated by reference from the Registrant's
Registration Statement on Form S-1, Registration No. 333-6311, originally
filed with the Securities and Exchange Commission on June 19, 1996, as
subsequently amended, and declared effective on October 16, 1996.
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PART I
ITEM 1. BUSINESS.
OVERVIEW
Metro Networks, Inc. (the "Company") is the largest provider of traffic
reporting services and is a leading supplier of local news, sports, weather
and other information reporting services to the television and radio broadcast
industries. The Company's information reports, which are customized to meet
the specific needs of each of the Company's individual radio and television
station affiliates, are presently being broadcast by approximately 1,375 radio
stations affiliates and 114 television station affiliates. The Company
provides local broadcast information reports in 47 of the 50 largest Metro
Survey Area ("MSA") markets in the United States. In exchange for the
Company's information reports, radio and television station affiliates provide
commercial airtime inventory to the Company. The packaging and sale of this
commercial airtime inventory accounts for substantially all of the Company's
revenues.
Because the Company has numerous radio station affiliates in each of its
markets (averaging 21 affiliates per market), the Company believes that its
broadcasts of local information enable advertisers to reach more people, more
often, in a higher impact manner than can be achieved using other advertising
media. The Company's information reports are broadcast daily in 66 MSA markets
and are heard by more than 100 million people (age 12 and over) daily. Such
reports and the Company's commercial messages are listened to by an average of
86% of the population (age 12 and over) in its markets. The Company's large
network of affiliates offers advertisers the opportunity to reach a broad-
based local, regional or national audience, through a single purchase of
commercial airtime inventory from the Company.
The Company offers advertisers three different networks on which to
broadcast their advertisements: (i) the network of radio station affiliates
(the "Radio Traffic Services Network") to which the Company provides its core
information reports (the "Radio Traffic Services"), (ii) the network of radio
station affiliates (the "Expanded Radio Services Network") to which the
Company provides its news, sports, weather and other information reports (the
"Expanded Radio Services"), and (iii) the network of broadcast television
station affiliates and cable news channel affiliates (the "MetroTV Network")
to which the Company provides its traffic information reports (the "Television
Traffic Services") and video news (other than traffic) information products
(the "Video News Services," and collectively with the Television Traffic
Services, the "MetroTV Services").
PROGRAMMING
Every aspect of the Company's information reports (including the length of
report, content of report, specific geographic coverage area, time of
broadcast, number of reports aired per day, broadcaster's style, etc.) is
customized to meet each individual affiliate's requirements. The Company
typically works closely with the program directors, news directors, and
general managers of its affiliates to ensure that the Company's services meet
its affiliates' quality standards. The Company and its affiliates jointly
select the on-air broadcasters to ensure that each broadcaster's style is
appropriate for the station's format. The Company's broadcasters often become
integral "personalities" on such affiliates' stations as a result of their
significant on-air presence and interaction with the stations' on-air
personnel. In order to realize operating efficiencies, the Company endeavors
to utilize its professional broadcasters on multiple affiliate stations within
a particular market. Generally, each of the Company's broadcasters delivers
reports to between two and four of the Company's affiliates.
The Company does not require its affiliates to identify the Company as the
supplier of its information reports. This provides the Company's affiliates
with a high degree of customization and flexibility, as each affiliate has the
right to present the information reports provided by the Company as if the
affiliate had generated such reports with its own resources. For example,
multiple affiliates in a single market may suggest that the Company's
infrastructure, including its airplanes, helicopters and broadcasters, are
those of the affiliate.
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Radio Programming Services
The Company has been supplying radio stations with customized Radio Traffic
Services since its inception in 1978. The Company is now the largest supplier
of the Radio Traffic Services in the United States. The Company has offered
its Expanded Radio Services since 1994 and is now a leading supplier of such
services, with over 250 affiliates in 39 markets as of December 31, 1996. The
Company's total radio station affiliates increased by over 19% from 1,152 in
1995 to 1,374 in 1996.
The Company gathers traffic and other data utilizing the Company's
information-gathering infrastructure, which includes aircraft (jet helicopters
and airplanes), broadcast quality remote camera systems positioned both at
strategically located fixed-positions and on aircraft, mobile units and
cellular systems, and by accessing various government-based traffic tracking
systems. The Company also gathers information through various services
including Reuters America Inc., Turner Program Services, Inc., Weather
Services Corporation, City News Service of Los Angeles, and Bay City News,
Inc. The information is then processed, written into broadcast copy and
entered into the Company's computer systems by the Company's local writers and
producers. The Company's professional broadcasters then read the customized
reports on the air.
As a result of its extensive network of operations and broadcasters, the
Company often reports important news stories and provides its affiliates with
live coverage of these stories. The Company is able to customize and
personalize its reports of breaking stories using its individual affiliates'
call letters from the scene of news events. For example, during the TWA Flight
800 crisis, the Company provided live customized reports from New York to its
affiliates all over the country. The Company believes that it is the only
radio network news organization that has local studio operations that cover 66
markets and that is able to provide such customized reports to these markets.
Television Programming Services
The Company has been supplying its Television Traffic Services to television
stations for over ten years and is currently providing such services to 114
television stations, increasing over 25% from 91 television station affiliates
in 1995. Originally, the Company provided television stations with audio
reports of traffic information and basic graphics; as the Company developed
its Television Traffic Services, it provided more sophisticated graphics
displays and its professional broadcasters to the MetroTV Network. In 1995,
the Company began to expand and enhance the information services that it
provides to television stations. As of December 31, 1996, the Company provided
its Video News Services to approximately 19 television stations in 12 markets.
As with its radio programming services, with its MetroTV Services the Company
supplies customized information reports which are delivered on air by its
professional broadcasters to its television station affiliates. In addition,
the Company supplies customized graphics and other visual programming elements
to its television station affiliates.
The Company began utilizing live studio cameras in order to enable its
traffic reporters to provide its Video News Services on television from the
Company's local broadcast studios. In addition, the Company began in 1995 to
provide its Video News Services from its aircraft and fixed-position based
camera systems. The Video News Services include: (i) full-service, 24 hours
per day/7 days per week video coverage from the Company's camera crews, using
broadcast quality camera equipment and news vehicles; (ii) live video news
feeds from the Company's aircraft; and (iii) live video coverage from
strategically located fixed-position camera systems.
Metro Information Services
The Company initiated its Metro Information Services ("MIS") division to
develop non-broadcast traffic information business. MIS develops innovative
techniques of gathering local traffic and transportation information as well
as new methods of distributing such information to the public. The Company
believes that in order to remain competitive and to continue to provide an
information product of the highest quality to its affiliates, it is necessary
to invest in and participate in the development of new technology. The Company
is currently working with several public and private entities across the
United States to improve dissemination of traffic and transportation
information. The Company is a large supplier of information to the wireless
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telephone industry, providing customized traffic information, direction
services, and other local information to cellular subscribers via the
Company's STAR JAM (TM) and STAR FIND (TM) services. Also, the Company plans
to offer traffic information services via the Internet, other wireless
communications, in-vehicle systems and other potential delivery mechanisms.
The Company believes that it is well-positioned, as a leading supplier of
local traffic and other information, to benefit from the evolution of future
distribution systems.
The Company has participated in several United States Department of
Transportation ("USDOT") funded "Intelligent Transportation Systems" projects
including: (i) The Atlanta Showcase, a federally funded technology
demonstration project which took place during the Summer Olympics in 1996 and
involved the delivery of traffic and mobility information and (ii) TravInfo
Traveler Information Center, a field operational test being conducted in the
San Francisco Bay Area to implement a region-wide, open-access, multi-model
advanced traveler information service.
INFRASTRUCTURE
In each of its larger markets, the Company typically employs a General
Manager who has overall operations and sales management responsibility for
that market. In smaller to medium markets, the Company usually employs one
General Manager to oversee two to four markets. In addition, the Company
employs approximately seven Regional Vice Presidents/General Managers who
oversee its General Managers and who generally have responsibility for 6-10
markets each.
In each of its markets, the Company employs a Director of Operations who is
responsible for all aspects of the Company's day-to-day operations. Each
Director of Operations is responsible for supervising all of the broadcasters,
airborne reporters, producers, editors, and writers in such Director's
operation center. Moreover, the Director of Operations is responsible for
maintaining day-to-day relations with affiliates and pursuing relationships
with unaffiliated stations. In addition, the Company employs seven Vice
President/Regional Directors of Operations who supervise the Directors of
Operations and who report to the Company's Regional Vice Presidents/General
Managers.
The Company believes that its extensive fleet of aircraft and other
information-gathering technology and broadcast equipment have allowed the
Company to provide high quality programming, enabling it to retain and expand
its affiliate base. In the aggregate, the Company utilizes approximately 87
fixed-wing aircraft, 17 helicopters, 30 mobile units, 15 airborne camera
systems, 36 fixed-position camera systems, 53 broadcast studios and 1,528
broadcasters and producers. The Company also maintains a staff of computer
programmers and graphics experts to supply customized graphics and other
visual programming elements to television stations. In addition, the Company's
operations centers and broadcast studios have sophisticated computer
technology, video and broadcast equipment and cellular and wireless technology
which enable the Company's broadcasters to deliver accurate reports to its
affiliates. The infrastructure and resources dedicated to a specific market by
the Company are determined by the size of the market, the number of affiliates
the Company serves in the market and the type of services being provided.
ADVERTISING SALES AND MARKETING
The Company packages its radio commercial airtime inventory on a network
basis, covering all affiliates in relevant markets. This packaged inventory
typically appeals to advertisers seeking a broad demographic reach. Because
the Company sells its commercial airtime inventory on a network basis rather
than station by station, the Company does not compete for advertising dollars
with its local radio station affiliates. The Company believes that this
corporate policy is a key factor in maintaining its affiliate relationships.
Currently, the Company packages its television commercial airtime inventory
on a local, regional and national network basis. However, advertisers on the
MetroTV Network have the ability to select specific markets and television
stations for their advertisements. This enables advertisers to customize
advertising packages to their individual requirements. The Company is
developing a separate sales force to sell its television commercial airtime
inventory.
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In each of the markets in which it conducts operations, the Company
maintains an advertising sales office as part of its operations center. The
Company's advertising sales force is able to sell available commercial airtime
inventory in any and all of the Company's markets in addition to selling such
inventory in each local market, which the Company believes affords its sales
representatives an advantage over certain of their competitors. For example,
an airline advertiser can purchase airtime inventory in multiple markets from
the Company's local sales representative in the city in which the airline is
headquartered. The Company's advertising sales force is comprised of
approximately 150 sales representatives. Although the Company typically has
two or three sales representatives in an individual market, the number of
sales representatives in an individual market ranges from one to eight
depending on the size of the market and the number of potential national and
regional advertising clients headquartered in the market. Specialized programs
and marketing campaigns, which support nationwide sales and other special
forms of advertising, are managed from the Company's headquarters in Houston,
Texas.
Due to the number of the Company's markets, its reach within its markets and
the range of services it provides, the Company has a large number of
advertising clients in a diverse group of industries. For the year ended
December 31, 1996, no single advertiser represented more than 5% of the
Company's total revenues and the Company's top ten advertisers, as a group,
represented less than 20% of the Company's total revenues.
The Radio Traffic Services Network and the Expanded Radio Services Network
The Company's typical radio advertisement on the Radio Traffic Services
Network and the Expanded Radio Services Network consists of an opening
announcement and a ten second commercial message presented immediately prior
to, in the middle of, or immediately following a regularly scheduled
information report. Because the Company has numerous radio station affiliates
in each of its markets (averaging 21 affiliates per market), the Company
believes that its traffic broadcasts reach more people, more often, in a
higher impact manner than can be achieved using any other advertising medium.
The Company combines its commercial airtime inventory into multiple
"sponsorship" packages (generally 125, 250 or 500 sponsorships broadcast over
a four week period in each market) which it then sells as an information
sponsorship package to advertisers. These Company sponsorship packages are run
on a fair and equal rotation (i.e., each advertiser receives its pro rata
share of advertisements sold by the Company for broadcast on each of the
Company's affiliates in the relevant market or markets) throughout the Traffic
Services Network on a local, regional or national basis, primarily during
prime morning and afternoon drive periods. The Company does not allow an
advertiser to select individual stations from the Radio Traffic Services
Network or Expanded Radio Services Network on which to run its advertising
campaign. The Company's 500 sponsorship package (which the Company believes is
its most frequently purchased package), reaches an average of over 70% of the
population (age 12 and over) in the Company's MSA markets. In addition, the
Company's large network of affiliates allows the Company to offer advertisers
the opportunity to purchase advertising in multiple markets nationwide through
a single purchase from the Company.
As the Company has developed and expanded the Expanded Radio Services
Network, it has primarily packaged and sold its commercial sponsorships of the
Expanded Radio Services in conjunction with its existing traffic report
sponsorships. Because the Expanded Radio Services Network is not fully mature,
the Company has not yet maximized the marketing of commercial airtime
inventory on the Expanded Radio Services Network as a separate product line.
Accordingly, the Company has only generated minimal revenues from the sale of
advertisements on the Expanded Radio Services Network. As the Company develops
the Expanded Radio Services Network in individual markets, it intends to
package and sell advertisements as a separate product. During 1996, the
Company began to package and sell separate Expanded Radio Services Network
sponsorship packages in several markets. The Company intends to introduce the
Expanded Radio Services Network sponsorships in additional markets as it
further develops the Expanded Radio Services Network throughout 1997.
As the Company's business has developed, it has sold increasing amounts of
its advertising to regional/national advertisers. For the year ended December
31, 1996, approximately 65% of the Company's radio advertising revenue was
attributable to regional/national advertisers, with the balance attributable
to local advertisers.
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The Company believes that the positioning of advertisements within or
adjacent to its information reports appeals to advertisers because the
advertisers' messages are broadcast along with regularly scheduled programming
during peak morning and afternoon drive times when a majority of the radio
audience is listening. Radio advertisements broadcast during these times
typically generate premium rates. Moreover, surveys commissioned by the Company
demonstrate that because the Company's customized information reports are
related to topics of significant interest to listeners, listeners often seek
out the Company's information reports. Since advertisers' messages are imbedded
in the Company's information reports, such messages have a high degree of
impact on listeners and generally will not be "pre-empted" (i.e., moved by the
radio station to another time slot). Most of the Company's advertisements are
read live by the Company's on-air broadcasters, providing the Company's
advertisers with the added benefit of an implied endorsement for their product.
The MetroTV Network
The Company provides its MetroTV Services to television stations in exchange
for thirty-second commercial airtime inventory. The amount and day-part
placement of the commercial airtime inventory that the Company receives from
television stations varies by market and by the type of service provided by the
Company. As the Company has provided more enhanced MetroTV Services, it has
been able to acquire more commercial airtime inventory with better day-part
placement. The Company, in turn, packages this commercial airtime inventory and
sells it to advertisers on a local, regional and national basis. The Company
believes that it offers advertisers significant benefits because, unlike
traditional television networks, the MetroTV Network often delivers more than
one station in a market and advertisers have the ability to select specific
television stations and markets. Therefore, the Company can customize
advertising packages for individual advertisers based on each advertiser's
requirements.
Historically, revenues from sales of television commercial airtime inventory
have been an insignificant part of the Company's total revenues. In order to
significantly increase the Company's revenues from sales of television
commercial airtime inventory, in 1996 the Company: (i) formed a separate
television advertising sales staff; (ii) began seeking an increased amount of
higher value fixed position commercial airtime inventory from television
stations in exchange for providing enhanced Video News Services; and (iii) pre-
sold a significant amount of commercial airtime inventory to a large national
advertiser. As the Company continues to expand all aspects of its Television
Traffic Services and Video News Services, the Company believes that revenues
from television advertising sales will continue to increase.
ACQUISITIONS
Since July 1994, the Company has expanded into or enhanced its operations in
26 markets through 10 strategic acquisitions.
Cincinnati, Columbus, Dayton, Memphis, Nashville and Miami Acquisition. On
January 3, 1997, the Company acquired all of the tangible and intangible assets
of TWI Networks, Inc. ("TWI"). As of the closing, TWI provided local traffic
and news services to 16 radio station affiliates and one television station
affiliate in Cincinnati, Ohio; six radio station affiliates in Columbus, Ohio;
18 radio station affiliates in Dayton, Ohio, 19 radio station affiliates in
Memphis, Tennessee; two radio station affiliates in Miami, Florida and 12 radio
and two television station affiliates in Nashville, Tennessee. The MSA market
rank of these MSA markets is 25, 32, 52, 43, 11 and 44, respectively.
Kansas City Acquisition. On January 2, 1997, the Company purchased all of the
tangible and intangible assets of Airborne Traffic Network, Inc. ("ATN"). As of
the closing, the Company (through ATN) provided traffic services to 16 radio
station affiliates in Kansas City, Missouri, the 26th largest MSA market; and
Omaha, Nebraska, the 72nd largest MSA market.
Oklahoma City, Albuquerque, Omaha and Milwaukee Acquisition. On October 31,
1996, the Company acquired (the "WIS Acquisition") certain tangible and
intangible assets of Wisconsin Information Systems, Inc. ("WIS"). As of
December 31, 1996, the Company (through WIS) provided traffic services to eight
radio and
one television station affiliates in Oklahoma City, Oklahoma; 12 radio and one
television station affiliates in
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Albuquerque, New Mexico; eight radio station affiliates in Omaha, Nebraska;
and one television station affiliate in Milwaukee, Wisconsin. Oklahoma City is
the 51st largest MSA market; Albuquerque is the 71st largest MSA market; Omaha
is the 72nd largest MSA market; and Milwaukee is the 28th largest MSA market.
Salt Lake City Acquisition. On January 3, 1996, the Company acquired (the
"Salt Lake City Acquisition") all of the tangible and intangible assets of
Aeromedia, Inc. ("Aeromedia"). As of December 31, 1996, the Company, (through
Aeromedia), provided Radio Traffic Services to a network of 24 radio stations
and one television station in Salt Lake City, Utah, which is the 35th largest
MSA market.
New England Acquisition. On January 4, 1996, the Company acquired (the "New
England Acquisition", and together with the WIS Acquisition and the Salt Lake
City Acquisition, the "1996 Acquisitions") all of the stock of Traffic Net
Inc., a Rhode Island corporation, Traffic Net of Connecticut, Inc., a
Connecticut corporation, and The Weather Bureau, Inc. (d/b/a The New England
Weather Bureau), a Massachusetts corporation (collectively, the "Traffic Net
Group"). As of December 31, 1996, the Company (through the Traffic Net Group)
provided local traffic information services to approximately 64 radio station
and three television station affiliates in and around the Hartford,
Connecticut area (the 41st largest MSA market), and Providence, Rhode Island
(the 31st largest MSA market). In addition, the Company (through The New
England Weather Bureau) provides weather reporting services to approximately
49 radio station affiliates in Boston, Massachusetts (the 10th largest MSA
market), and throughout New England.
The Company is currently in discussions with several other entities that, if
acquired, would result in new or expanded coverage of approximately eight to
ten markets by the Company. The Company, however, does not have any
commitments, arrangements, or understandings with respect to any such
acquisitions. Further, there can be no assurance that the Company will be able
to effect any such transaction or that any such transactions, if consummated,
will prove to be beneficial to the Company.
The Company generally consolidates the operations of acquired companies or
assets into its existing operations so that duplicative costs can be
eliminated, resulting in margin improvements for the consolidated operations.
In addition, as a result of the Company's significant sales force and existing
advertising relationships, the Company is generally able to increase revenues
by selling advertising in the acquired market to the Company's existing
regional and national sponsors. Moreover, as the Company continues to add new
markets and to increase its presence in existing markets, it has been able to
offer advertisers increased market penetration and to generate incremental
revenues from existing advertising clients.
INTERNATIONAL
The Company's international presence has been limited to its participation
in licensing agreements in the United Kingdom and France. Pursuant to these
license agreements, the Company provides its licensees the right to use its
name, computer technology, training and sales expertise in exchange for
commercial airtime inventory. Revenues from such licensing agreements are not
material and the Company has no immediate intention to pursue opportunities
internationally, although it may choose to do so in the future if resources
and opportunities are available.
COMPETITION
The Company faces various sources of competition in the provision of its
information reporting services. Single market operators and groups of radio
stations providing their own information reports comprise the Company's
primary competition. Although the Company is significantly larger than the
next largest provider of traffic and local information services, there are
several multi-market operators providing local radio and television
programming services in various markets. The Company believes that the next
largest provider of
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traffic and local information services (which operates under the names "Shadow
Traffic" and "Express Traffic") currently has a presence in approximately 14
MSA markets in the United States, as compared to the Company's operations in 66
MSA markets. Westwood One, Inc., which is 25% owned by Westinghouse Electric
Corporation, owns and operates the Shadow Traffic operations in four of the 14
markets.
The Company also faces competition in the sale of its commercial airtime
inventory. The Company positions its advertising so as not to compete with the
advertising of its local radio and television affiliates. However, the Company
competes for advertising dollars with other media such as newspapers and
magazines, outdoor advertising, network radio and network television
advertising, transit advertising, direct response advertising, yellow page
directories and point-of-sale advertising.
EMPLOYEES
The Company employed approximately 1,078 full-time and 681 part-time persons
as of December 31, 1996, none of whom was covered by a collective bargaining
arrangement. Of these employees, approximately 1,528 were engaged in
broadcasting and operations; 150 in sales and marketing; and 81 in general and
administrative activities. Approximately 10% of the Company's employees are
located in the Company's Houston, Texas headquarters. The Company considers its
relationship with its employees to be satisfactory.
TRADEMARKS
The Company has registered "Metro Traffic Control", "Metro Networks" and
certain other marks which are relevant to its business. The Company does not
believe that its operations are materially dependent on these trademarks.
REORGANIZATION
From 1978 through October 1996, the business of the Company was operated
through Metro Traffic Control, Inc. ("MTC"), Metro Networks, Ltd. ("MNW"),
Metro Video News, Inc. ("MVN"), Metro Reciprocal, Inc. ("MRI") and their
subsidiaries (collectively, the "Predecessor Companies"). Until October 18,
1996, all of the equity interests in the Predecessor Companies were owned by
David I. Saperstein and certain trusts created for the benefit of his children
(the "Saperstein Family"). In October 1996, the Saperstein Family established
the Company as a holding company and consolidated the issued and outstanding
equity interests in the Predecessor Companies, by exchanging such interests for
9,350,607 shares of Metro Networks Inc.'s Common Stock and 2,549,750 shares of
Metro Networks Inc.'s Series A Convertible Preferred Stock (the
"Reorganization").
ITEM 2. PROPERTIES.
The Company's headquarters facility, which includes its principal
administrative, sales, marketing, management information systems and product
development offices and its local operations center, is located in
approximately 30,844 square feet of subleased space in Houston, Texas. The
sublease on this facility terminates in March 2004.
The Company leases additional operation centers/broadcast studios and
marketing and administrative offices across the United States consisting of
approximately 142,331 square feet in the aggregate, pursuant to the terms of
various lease agreements. The Company believes that its existing facilities are
adequate to meet current requirements and that suitable additional space in
close proximity to its existing headquarters will be available as needed to
accommodate growth of its operations and additional sales and support offices
through the foreseeable future.
For the year ended December 31, 1996, the Company incurred $3.4 million in
total facilities expense.
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ITEM 3. LEGAL PROCEEDINGS.
The Company is involved from time to time in routine legal matters incidental
to its business. Management believes that the resolution of such matters will
not have a material adverse effect on the Company's financial position or
results of operations.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF STOCKHOLDERS.
No matters were submitted to a vote of the Company's stockholders during the
quarter ended December 31, 1996.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON STOCK AND RELATED STOCKHOLDER MATTERS.
The Company is authorized to issue 25,000,000 shares of Common Stock, par
value $0.001 per share (the "Common Stock") and 10,000,000 shares of preferred
stock, par value $0.001 per share (the "Preferred Stock"). At March 21, 1997,
16,550,357 shares of Common Stock and 2,549,750 shares of Series A Convertible
Preferred Stock were outstanding.
The Common Stock is listed for trading on the NASDAQ National Market
("Nasdaq") under the symbol "MTNT." The high and low sales prices as reported
by the Nasdaq for the Common Stock from October 17, 1996, the date upon which
the Common Stock commenced trading on the Nasdaq through December 31, 1996 was
$25.75 and $19.125, respectively.
The closing price of the shares of the Common Stock was $22.875 on March 21,
1997.
As of March 21, 1997, there were 15 record owners and in excess of 400
beneficial owners of the Common Stock.
The Company has never paid cash dividends on the Common Stock and does not
intend to pay any such cash dividends in the foreseeable future.
The Transfer Agent and Registrar for the Common Stock is American Stock
Transfer & Trust Company.
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ITEM 6. SELECTED FINANCIAL DATA.
The following selected financial and operating data should be read in
conjunction with the consolidated financial statements of the Company and the
Predecessor Companies' historical combined financial statements and related
notes thereto and with Management's Discussion and Analysis of Financial
Condition and Results of Operations included elsewhere herein. The selected
financial data set forth below with respect to the years ended December 31,
1993, 1994, 1995 and 1996 are derived from the audited financial statements
for that year. The selected financial data for the year ended December 31,
1992 are unaudited and reflect all normal recurring adjustments that in the
opinion of management of the Company are necessary for a fair presentation of
the results of such period.
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<CAPTION>
YEAR ENDED DECEMBER 31,
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1992 1993 1994 1995 1996
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(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
Statement of Operations
Data:
Advertising revenues........ $41,957 $47,905 $60,048 $ 72,433 $ 109,237
Broadcasting costs.......... 26,760 27,384 32,239 41,286 50,686
Marketing expense........... 8,393 8,848 11,355 14,504 21,377
General and administrative
expense.................... 4,522 6,994 5,939 7,193 10,158
Depreciation and
amortization expense....... 1,841 1,814 1,302 3,981 6,213
Total operating costs....... 41,516 45,040 50,835 66,964 88,434
Income from operations...... 441 2,865 9,213 5,469 20,803
Other expenses (income)... (60) 238 (164) (137) (408)
Interest expense.......... 97 145 293 1,260 1,779
Income before tax provision. 404 2,482 9,084 4,346 19,431
Income tax provision...... 2,649 1,066 2,179 1,036 3,462
Income (loss) from
continuing operations...... (2,245) 1,416 6,905 3,310 15,969
Discontinued operations... (563) (561) -- -- --
Net income (loss)........... $(2,808) $ 855 $ 6,905 $ 3,310 $ 15,969
Pro forma net income(1)..... $ 2,803 $ 12,047
Pro forma income per common
share(1)(2)................ $ 0.23 $ 0.94
Pro forma weighted average
shares outstanding(1)(2)... 12,251,997 12,883,938
CASH FLOWS DATA:
Net Cash Provided by (used
in) Operating Activities. $ (33) $ (912) $ 1,253 $ 2,106 $ 13,862
Net Cash Used in Investing
Activities............... (5) (1,218) (2,387) (11,908) (13,200)
Net Cash Provided by (used
in) Financing Activities. $ (907) $ 1,963 $ 3,625 $ 9,175 $ 39,729
<CAPTION>
AT DECEMBER 31,
-------------------------------------------------
1992 1993 1994 1995 1996
------- ------- ------- ---------- ----------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Working capital............. $ (254) $ 1,862 $ 7,414 $ 7,900 $ 49,294
Total assets................ 22,426 16,492 27,502 48,030 105,812
Total debt.................. 597 2,183 6,650 22,624 1,310
Total stockholder's
equity/partners' capital... $ 5,168 $ 4,153 $ 9,401 $ 4,478 $ 71,930
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------------------------
1992 1993 1994 1995 1996
------- ------- ------- ---------- ----------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
OTHER DATA:
EBITDA(3)................. $ 2,282 $ 4,679 $10,515 $ 9,450 $ 27,027
Predecessor shareholder
costs(4)................. 1,091 2,022 1,734 1,392 1,193
Net reciprocal
transactions(5).......... (4,007) (1,019) (637) 106 (3,412)
Adjusted cash EBITDA(6)... (634) 5,682 11,612 10,948 24,808
Capital expenditures...... $ 1,063 $ 891 $ 2,712 $ 2,746 $ 7,329
</TABLE>
9
<PAGE>
- --------
* See discussions of acquisitions in "Business--Acquisitions" and
"Management's Discussion and Analysis of Financial Conditions and Results of
Operations."
(1) The unaudited pro forma financial data for the year ended December 31, 1996
and 1995 give effect to the Reorganization. See "Business--Reorganization."
(2) Pro forma weighted average shares outstanding and pro forma net income per
common share are calculated assuming the shares issued in conjunction with
the Reorganization were outstanding for all periods presented, adjusted for
excess distributions and assuming the Predecessor Companies were taxed at
rates applicable to the Company subsequent to the Reorganization. Metro
Networks, Inc. has not declared or paid any dividends on its Common Stock.
However, the Predecessor Companies have made cash distributions to their
shareholders from time to time. See "Business--Reorganization."
(3) EBITDA is earnings before other expense (income), interest expense, taxes,
depreciation and amortization. EBITDA does not represent cash flows as
defined by generally accepted accounting principles and does not
necessarily indicate that cash flows are sufficient to fund all of the
Company's cash needs. EBITDA should not be considered in isolation or as a
substitute for net income, cash from operating activities or other measures
of liquidity determined in accordance with generally accepted accounting
principles.
(4) Predecessor shareholder costs consist of the expenses incurred by the
Predecessor Companies on behalf of their shareholders.
(5) Reciprocal transactions are transactions in which the Company exchanges a
portion of its commercial airtime inventory for goods and services.
(6) Adjusted cash EBITDA consists of EBITDA plus predecessor shareholder costs,
less the impact of reciprocal arrangements.
10
<PAGE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
GENERAL
The Company, which was founded in 1978, is the largest provider of traffic
reporting services and a leading supplier of local news, sports, weather and
other information reporting services to the television and radio broadcast
industries in the United States. The Company provides customized information
reports to affiliated radio and television stations in exchange for commercial
airtime inventory. The Company generates revenues by packaging such commercial
airtime inventory and selling it on a local, regional or national basis. While
the majority of the Company's revenues are currently generated from sales of
advertising on its Radio Traffic Services Network, the Company is experiencing
increased revenues from its Expanded Radio Services Network and its MetroTV
Network. The Company's expenses are primarily comprised of three categories:
(i) operations, which includes all the expenses related to gathering,
producing, and broadcasting information reports; (ii) marketing, which
includes sales commissions, salaries and benefits for sales personnel; and
(iii) general and administrative expenses, which includes corporate overhead.
Most of the Company's expenses are associated with its Radio Traffic Services.
However, during 1994, 1995 and 1996, the Company incurred additional expenses
attributable to the development and operation of its Expanded Radio Services
(including operating expenses incurred prior to the generation of significant
revenue from the Expanded Radio Services), and during 1995 and 1996, the
Company incurred similar additional expenses associated with the development
of its MetroTV Services.
From 1978 through October 1996, the business of the Company was operated
through the Predecessor Companies and all of the equity interests in the
Predecessor Companies were owned by the Saperstein Family. See "Business--
Reorganization."
In May 1996, the Company was incorporated in Delaware. Immediately prior to
the closing of the initial public offering, the controlling shareholder
established the Company as a holding company and consolidated the issued and
outstanding equity interests in the Predecessor Companies into Metro Traffic
Control, Inc. by exchanging such interests for 9,350,607 shares of the
Company's common stock and 2,549,750 shares of the Company's Series A
Convertible Preferred Stock. Subsequent to the Reorganization, Metro Traffic
Control, Inc. is a wholly owned subsidiary of the Company.
As the equity interests were held under common control and were contributed
by the resulting shareholder of the Company, the underlying assets are
recorded at their historical costs, similar to pooling of interest accounting.
References to Metro Networks, Inc. in the consolidated financial statements of
the Company include the Predecessor Companies prior to the Reorganization.
In the analysis set forth below, the Company discusses its EBITDA and
adjusted cash EBITDA. EBITDA consists of earnings before other expense
(income), interest expense, taxes, depreciation and amortization. EBITDA does
not represent cash flows as defined by generally accepted accounting
principles and does not necessarily indicate that cash flows are sufficient to
fund all of the Company's cash needs. EBITDA should not be considered in
isolation or as a substitute for net income, cash from operating activities or
other measures of liquidity determined in accordance with generally accepted
accounting principles. "Adjusted cash EBITDA" consists of EBITDA plus
predecessor shareholder costs, adjusted for the impact of reciprocal
arrangements (as described below). "Predecessor shareholder costs" consist of
expenses incurred by the Predecessor Companies on behalf of their
shareholders. Such predecessor shareholder costs include the portion of David
I. Saperstein's current salary which exceeds that which Mr. Saperstein
received after October 1996, certain costs incurred by the Company in
connection with the lease of certain real property, costs related to
reciprocal transactions entered into by the Company for the sole benefit of
Mr. Saperstein, certain costs related to the operation of Pro Journey Travel,
Inc., (a company owned by Mr. Saperstein) and certain costs related to the
personal use of the services of certain of the Company's employees by Mr.
Saperstein, which costs have not been incurred since October 1996. The Company
believes that EBITDA is a measure of financial performance widely used in the
media and broadcast industries and that adjusted cash EBITDA is useful to
investors as a measure of the Company's historical financial performance.
11
<PAGE>
In certain circumstances, the Company engages in reciprocal arrangements
with advertisers whereby the Company exchanges a portion of its unsold
commercial airtime inventory for goods and services. The Company believes that
reciprocal transactions are common in the broadcasting industry. The Company's
reciprocal transactions are recorded based on their estimated fair market
value and generally have had net neutral effect on EBITDA over time; the net
impact of reciprocal transactions in 1995 and 1996 on EBITDA was ($0.1)
million and $3.4 million, respectively. In recent years, however, the Company
has reduced the number of reciprocal arrangements in which it engages in order
to better focus its efforts on cash revenue generation and reduce the
administrative costs associated with reciprocal arrangements. In 1993,
revenues from reciprocal arrangements accounted for 16.8% of total revenues
and declined to 13.3% in 1994, 11.6% in 1995 and 8.0% in 1996.
The Company's advertising revenues vary moderately over the calendar year
with the first quarter generally reflecting the lowest revenues and the fourth
quarter the highest revenues for the year. Expenses, other than marketing
expenses, are generally spread evenly over the year, resulting in some
seasonality in the Company's EBITDA.
INCOME TAXES
The consolidated financial statements include the accounts of the Company
and its wholly owned subsidiary, and, prior to the Reorganization, the
combined financial statements of the Predecessor Companies.
Prior to the Reorganization, MNW owned corporations which were taxed under
the C corporation provisions of the Internal Revenue Code. Taxes related to
income from the entities taxed under the C corporation provisions are reported
under the asset and liability method. Accordingly, deferred tax assets and
liabilities are recognized for future tax consequences attributable to
differences between the financial statement carrying amounts of existing
assets and liabilities and their respective tax bases using enacted tax rates
in effect for the year in which the differences are expected to reverse.
Subsequent to the Reorganization all of the operations have been included in
the consolidated tax return of the Company. Accordingly, at the time of the
Reorganization, the Company recorded an increase in the deferred tax liability
of $66,000, which represented the tax basis differential between financial and
tax assets and liabilities associated with the S corporations and partnerships
included in the Reorganization.
Prior to the Reorganization, MRI and MVN elected to be taxed under S
corporation provisions of the Internal Revenue Code of 1986, as amended. Under
these provisions, MRI, MVN and MTC are not liable for federal income taxes.
Instead, the stockholders of such entities are liable individually for federal
income taxes on their taxable income. Also, prior to the Reorganization, MNW
was a partnership for federal income tax purposes and accordingly, the
partners were liable individually for federal income taxes on their respective
partnership income. Accordingly, losses for these entities are not available
to the Company to offset income.
12
<PAGE>
RESULTS OF OPERATIONS
The following table provides a summary of the Company's statement of
operations on an actual and percentage of revenues basis for the periods
indicated:
SUMMARY CONSOLIDATED FINANCIAL DATA
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------------------------------
1994 1995 1996
-------------- -------------- ---------------
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C>
Advertising revenues.......... $60,048 100.0% $72,433 100.0% $109,237 100.0%
Broadcasting costs............ 32,239 53.7 41,286 57.0 50,686 46.4
Marketing expense............. 11,355 18.9 14,504 20.0 21,377 19.6
General and administrative
expense...................... 5,939 9.9 7,193 9.9 10,158 9.3
Depreciation and amortization
expense...................... 1,302 2.2 3,981 5.5 6,213 5.7
Total operating costs....... 50,835 84.7 66,964 92.4 88,434 81.0
Income from operations........ 9,213 15.3 5,469 7.6 20,803 19.0
Other expenses (income) (1). (164) (0.3) (137) (0.2) (408) (0.4)
Interest expense............ 293 0.5 1,260 1.7 1,779 1.6
Income before income tax
provision.................... 9,084 15.1 4,346 6.0 19,431 17.8
Income tax provision........ 2,179 3.6 1,036 1.4 3,462 3.2
Net income.................... $ 6,905 11.5% $ 3,310 4.6% $ 15,969 14.6%
</TABLE>
- --------
(1) Includes loss (gain) on disposition of property, loss (gain) on investment
in partnership and interest income.
Year ended December 31, 1996 compared to year ended December 31, 1995
Revenues. Revenues increased by $36.8 million, or approximately 50.8%, to
$109.2 million in 1996 from $72.4 million in 1995. This increase was primarily
due to revenues generated by increased sales of commercial airtime inventory
on the Radio Traffic Services Network. Acquisitions accounted for $9.5 million
of this increase. Excluding these revenues, same market revenues increased
$27.3 million in 1996 or 41.8%. The Company's sell-through rate increased to
approximately 78% in 1996 from 72% in 1995. Revenues from reciprocal
arrangements as a percentage of total revenues declined to 8.0% in 1996 from
11.6% in 1995.
Broadcasting Costs. Broadcasting costs increased by $9.4 million or
approximately 22.8% to $50.7 million in 1996 from $41.3 million in 1995. This
increase was partially attributable to operating costs associated with
acquisitions, which accounted for approximately $2.4 million of the increase.
Additionally, the Company's continued development of its Expanded Radio
Services and MetroTV Services, and commencement of start-up operations in five
markets accounted for approximately $2.8 million of the increase. The Company
also incurred approximately $1.0 million of additional broadcasting costs
associated with the development of its Metro Information Services division.
Excluding the increases discussed above, the Company's broadcasting costs
would have increased by approximately $3.2 million or 7.7% to $44.5 million in
1996 from $41.3 million in 1995. Broadcasting costs as a percentage of
revenues decreased from 57.0% in 1995 to 46.4% in 1996. Broadcasting costs
associated with reciprocal arrangements decreased by $2.0 million from $5.0
million in 1995 to $3.0 million in 1996.
Marketing Expense. Marketing expense increased by $6.9 million, or
approximately 47.4%, from $14.5 million in 1995 to $21.4 million in 1996. This
increase resulted primarily from increased sales commissions associated with
the increased revenues generated in 1996. Acquisitions accounted for $1.3
million of the increase. As a percentage of revenues, marketing expense was
20.0% in 1995 and 19.6% in 1996. Marketing expense associated with reciprocal
arrangements decreased by $1.0 million to $1.6 million in 1996, from $2.6
million in 1995.
13
<PAGE>
General and Administrative Expense. General and administrative expenses
increased by $3.0 million, or approximately 41.2%, to $10.2 million in 1996
from $7.2 million in 1995. This increase was primarily attributable to
increased salaries and related overhead associated with the Company's continued
growth. General and administrative expense associated with reciprocal
arrangements decreased by $0.2 million to $0.7 million in 1996, from $0.9
million in 1995.
Depreciation and Amortization. Depreciation and amortization expense
increased to $6.2 million in 1996 from $4.0 million in 1995. This increase
resulted primarily from the increases in the Company's asset base resulting
from the 1996 Acquisitions and the Company's increased purchases of video and
broadcast equipment pursuant to the development of its MetroTV Network during
1996.
Other Expenses (Income). Other expenses (income) increased to $(0.4) million
in 1996 from $(0.1) million in 1995. This increase resulted primarily from
increased interest income on the net proceeds from the Company's initial public
offering during the fourth quarter of 1996.
Interest Expense. Interest expense increased to $1.8 million in 1996 from
$1.3 million in 1995. This increase resulted primarily from increases in
indebtedness incurred in connection with the 1996 Acquisitions.
Net Income. As a result of the factors discussed above, net income increased
by $12.7 million to $16.0 million in 1996 from $3.3 million in 1995.
EBITDA and Adjusted Cash EBITDA. EBITDA increased by $17.6 million, or
approximately 186.9%, to $27.0 million in 1996 from approximately $9.4 million
in 1995. EBITDA as a percentage of revenues increased to 24.7% in 1996 from
13.0% in 1995. Adjusted cash EBITDA (i.e., EBITDA plus predecessor shareholder
costs adjusted for the impact of reciprocal arrangements) increased by $14.0
million to $24.8 million in 1996 from $10.9 million in 1995. Adjusted cash
EBITDA as a percentage of revenues, increased to 22.7% in 1996 from 15.1% in
1995.
Year ended December 31, 1995 compared to year ended December 31, 1994
Revenues. Revenues increased by $12.4 million, or approximately 20.6%, to
$72.4 million in 1995 from $60.0 million in 1994. This increase was primarily
due to revenues generated by the operations acquired in connection with certain
acquisitions consummated in 1995 (the "1995 Acquisitions"), as described in
Note 4 to the Consolidated Financial Statements (the "Consolidated Financial
Statements") for the years ended December 31, 1996 and 1995 included herein,
and increased sales of commercial airtime inventory on the Radio Traffic
Services Network. The 1995 Acquisitions generated revenues of approximately
$7.1 million in 1995. Excluding these revenues, same market revenues increased
$5.3 million in 1995, or 8.8%. The Company's sell-through rate increased to
72.0% in 1995 from 69.0% in 1994.
Broadcasting costs. Broadcasting costs increased by $9.0 million, or 28.1%,
to $41.3 million in 1995 from $32.2 million in 1994. This increase was
attributable to the addition of 16 markets to the Company's operations
(including personnel costs and costs related to the facilities required to
support the Company's operations in its new markets), continued development of
the Expanded Radio Services and the development and operation of the MetroTV
Services. The 1995 Acquisitions accounted for $2.8 million, or 4.2%, of the
total cost of operations in 1995. Primarily as a result of an increase in
operating costs associated with the development and operation of the Expanded
Radio Services and the Video News Services from $1.4 million in 1994 to $3.1
million in 1995, broadcasting costs as a percentage of revenues increased from
53.7% in 1994 to 57.0% in 1995. Broadcasting costs associated with reciprocal
arrangements increased by $0.6 million to $5.0 million in 1995, from $4.4
million in 1994.
14
<PAGE>
Marketing Expense. Marketing expense increased by $3.1 million, or
approximately 27.7%, to $14.5 million in 1995 from $11.4 million in 1994. This
increase resulted from increased sales commissions associated with the
increased revenues generated in 1995. As a percentage of revenues, marketing
expense was 20.0% in 1995 and 18.9% in 1994. This increase in percentage terms
resulted primarily from the addition of sales representatives, sales managers
and managerial staff in connection with the Company's efforts to improve the
sell-through rate and higher marketing costs associated with the 1995
Acquisitions. Specifically, the 1995 Acquisitions accounted for $1.5 million
of total marketing expense in 1995. Marketing expense associated with
reciprocal arrangements increased by $0.8 million to $2.6 million in 1995,
from $1.8 million in 1994.
General and Administrative Expense. General and administrative expense
increased by $1.3 million, or approximately 21.1%, to $7.2 million in 1995
from $5.9 million in 1994. This increase was primarily attributable to costs
associated with the acquisition and operation of the 1995 Acquisitions and the
development and expansion of the Expanded Radio Services and the MetroTV
Services. General and administrative expense associated with reciprocal
arrangements decreased by $0.3 million to $0.9 million in 1995, from $1.2
million in 1994.
Depreciation and Amortization. Depreciation and amortization expense
increased to $4.0 million in 1995 from $1.3 million in 1994. This increase
resulted primarily from the increases in the Company's asset base resulting
from the 1995 Acquisitions and the 1994 Acquisitions (as defined herein). The
1995 Acquisitions accounted for $1.9 million of the total depreciation and
amortization costs in 1995. Depreciation and amortization expense associated
with reciprocal arrangements increased to $1.0 million in 1995 from $0.4
million in 1994.
Other Expenses (Income). Other expenses (income) increased to $(0.1) million
in 1995 from $(0.2) million in 1994.
Interest Expense. Interest expense increased to $1.3 million in 1995 from
$0.3 million in 1994. This increase resulted primarily from increases in
indebtedness incurred in connection with the 1995 Acquisitions.
Net Income. As a result of the factors discussed above, net income decreased
by $3.6 million to $3.3 million in 1995 from $6.9 million in 1994.
EBITDA and Adjusted Cash EBITDA. EBITDA decreased by $1.0 million, or
approximately 9.5%, to $9.5 million in 1995 from approximately $10.5 million
in 1994. This decrease was attributable to increases in broadcasting costs,
marketing expense and general and administrative expense as discussed above.
EBITDA as a percentage of revenues decreased to 13.0% in 1995 from 17.5% in
1994. Adjusted cash EBITDA decreased by $2.1 million to $10.7 million in 1995
from $12.8 million in 1994.
Year ended December 31, 1994 compared to year ended December 31, 1993
Revenues. Revenues increased by $12.1 million, or approximately 25.3%, to
$60.0 million in 1994 from $47.9 million in 1993, primarily due to increased
sales of commercial airtime inventory in existing markets. The sell-through
rate increased to approximately 69.0% in 1994 from approximately 65.0% in
1993. In 1994, the operations acquired in connection with certain acquisitions
consummated in 1994 (the "1994 Acquisitions") as described in Note 4 to the
Consolidated Financial Statements generated revenues of approximately $0.6
million. Revenues from reciprocal arrangements as a percentage of total
revenues declined to 13.3% in 1994 from 16.8% in 1993.
Broadcasting costs. Broadcasting costs increased by $4.9 million, or
approximately 17.7%, to $32.2 million in 1994 from $27.4 million in 1993. Such
increase was attributable to the 1994 Acquisitions, start-ups in new markets
and costs of $1.4 million related to the development of the Expanded Radio
Services. Broadcasting costs as a percentage of revenues decreased to 53.7% in
1994 from 57.2% in 1993, primarily as a result of strong revenue growth. Such
costs generally do not increase proportionately with revenues. Broadcasting
costs associated with reciprocal arrangements increased by $0.8 million to
$4.4 million in 1994, from $3.6 million in 1993.
15
<PAGE>
Marketing Expense. Marketing expense increased by $2.5 million, or
approximately 28.3%, to $11.4 million in 1994 from $8.8 million in 1993. This
increase was attributable to increased sales commissions associated with
revenue increases in 1994. Marketing expense as a percentage of revenues
remained relatively constant at 18.9% in 1994 and 18.5% in 1993. Marketing
expense associated with reciprocal arrangements increased by $0.1 million to
$1.8 million in 1994, from $1.7 million in 1993.
General and Administrative Expense. General and administrative expense
decreased $1.1 million, or approximately 15.1%, to $5.9 million in 1994 from
$7.0 million in 1993. This decrease was primarily due to a decrease in
predecessor shareholder costs, specifically a decrease in the salary paid to
the Company's principal stockholder. General and administrative expense
associated with reciprocal arrangements decreased by $0.9 million to $1.2
million in 1994, from $2.1 million in 1993.
Depreciation and Amortization. Depreciation and amortization expense
decreased by $0.5 million, or 28.2%, to $1.3 million in 1994 from $1.8 million
in 1993, as a result of certain intangible assets associated with prior
acquisitions becoming fully amortized. Depreciation and amortization expense
associated with reciprocal arrangements decreased by $0.4 million in 1994 from
$1.1 million in 1993.
Other Expenses (Income). Other expenses (income) decreased to $(0.2) million
in 1994 from $0.2 million in 1993. This decrease was primarily attributable to
a $0.3 million loss on disposition of property in 1993.
Interest Expense. Interest expense increased by $0.2 million, to $0.3
million in 1994 from $0.1 million in 1993. This increase was primarily due to
an increase in indebtedness related to the 1994 Acquisitions.
Net Income. As a result of the factors discussed above, net income increased
by $6.0 million to $6.9 million in 1994 from $0.9 million in 1993.
EBITDA and Adjusted Cash EBITDA. EBITDA increased by $5.8 million, or
124.7%, to $10.5 million in 1994 from $4.7 million in 1993. This increase was
due to an increase in revenues and was partially offset by increases in
broadcasting costs, marketing expense and general and administrative expense.
EBITDA as a percentage of revenues increased to 17.5% in 1994 from 9.8% in
1993. Adjusted cash EBITDA increased by $5.9 million to $11.6 million in 1994
from $5.7 million in 1993. Adjusted cash EBITDA as a percentage of revenues
increased to 19.3% in 1994 from 11.9% in 1993.
LIQUIDITY AND CAPITAL RESOURCES
Historically, the Company has financed its operations with cash generated by
operations and funds provided pursuant to the Credit Agreement (as defined
herein). The Company has used cash provided by operating activities to fund
capital expenditures, operations and distributions to its stockholders.
On October 22, 1996, the Company closed its initial public offering of its
common stock and received approximately $68 million in cash, net of
underwriting discounts and commission, and other expenses. The Company used
approximately $30 million of the proceeds to repay existing indebtedness under
the Credit Agreement among NationsBank of Texas, N.A., Metro Traffic Control,
Inc. and Metro Networks, Ltd., dated October 21, 1994, as amended, and the
balance of the proceeds, including those from the underwriters' exercise of
the over allotment option, will be used for working capital and general
corporate purposes.
Net cash provided by operating activities increased by approximately $11.8
million, to $13.9 million in 1996 from $2.1 million in 1995 primarily as a
result of increases in net earnings, depreciation and amortization, accounts
payable and other accrued liabilities, which was partially offset by the
increase in accounts receivable and cash used by net reciprocal arrangements.
Net cash used in investing activities increased by $1.3 million to $13.2
million in 1996 from $11.9 million in 1995 due to an increase in capital
expenditures which was partially offset by a decrease in acquisition costs.
Net cash provided by financing activities increased by $30.5 million to $39.7
million in 1996 from $9.2 million in 1995 as a result of proceeds from the
Company's initial public offering which was partially offset by a reduction in
long term debt.
16
<PAGE>
Net cash provided by operating activities increased by $0.8 million to $2.1
million in 1995 from $1.3 million in 1994. This increase was primarily
attributable to an increase in income taxes payable and a decrease in cash used
by reciprocal arrangements. These factors were partially offset by a decrease
in net earnings before depreciation and amortization and deferred revenue and a
decrease in the rate of growth of accounts receivable. Net cash used in
investing activities was $2.4 million in 1994 and $11.9 million in 1995. Cash
used in investing activities related primarily to (i) in 1994, the 1994
Acquisitions and advances to a stockholder of the Company (primarily for the
payment of income taxes payable by the shareholders in respect of S Corporation
income) and (ii) in 1995, the 1995 Acquisitions and acquisitions of information
gathering and broadcasting equipment. Net cash provided by financing activities
in 1994 and 1995 was $3.6 million and $9.2 million, respectively. Cash provided
by financing activities was comprised primarily of proceeds from funds provided
pursuant to the Credit Agreement. As of December 31, 1996, the Company had
short-term debt of $0.8 million (excluding a $3.1 million note to a
shareholder) and long-term debt of $0.5 million. Short-term debt consisted of
current portions of long-term debt and current portions of capitalized lease
obligations. Long-term debt consisted of the long-term portion of the notes
relating to certain acquisitions.
Net cash provided by operating activities increased to $1.3 million in 1994
from $(0.9) million in 1993 due to the increases in net earnings and deferred
revenues. The increase in net earnings and deferred revenues was partially
offset by an increase in accounts receivable and cash used by net reciprocal
arrangements and a decrease in income taxes payable. Net cash used in investing
activities increased to $2.4 million in 1994 from $1.2 million in 1993 as a
result of an increase in advances on receivables from stockholders. This
increase was partially offset by an increase in proceeds from the sale of
property and equipment. Net cash provided by financing activities increased to
$3.6 million in 1994 from $2.0 million in 1993 due to an increase in long term
debt. This increase was partially offset by distributions to shareholders.
Cash and cash equivalents increased $40.4 million in 1996 as a result of the
proceeds from the Company's initial public offering, net of long term debt
reduction. Accounts receivable increased $10.7 million in 1996 due to the $36.8
million increase in sales. Property and equipment increased $5.6 million in
1996 as a result of the increase in capital expenditures discussed below.
Additional paid-in capital increased $68.9 million during the year primarily as
a result of the initial public offering.
Accounts receivable increased $4.0 million in 1995 primarily as a result of
an increase in sales to $72.4 million in 1995 from $60.0 million in 1994.
Income taxes payable decreased $1.8 million in 1994 primarily due to the fact
that the largest of the Predecessor Companies elected to be treated as an S
corporation for tax purposes effective July 1, 1994. A major customer's
declaration of bankruptcy caused 1994 bad debt expense to be significantly
higher than in 1995. Since 1994, the Company's bad debt expense has been
relatively constant. Net reciprocal activities decreased by $1.8 million in
1995 primarily due to the Company's decision to decrease its reciprocal
arrangements and concentrate on generation of cash revenues.
The Credit Agreement and Notes Payable
In October 1996, the Company entered into a new line of credit with
NationsBank of Texas, N.A. ("NationsBank"). The maximum aggregate permitted
borrowings (the "New Line of Credit") under the Credit Agreement among
NationsBank, certain lenders and the Company, dated October 22, 1996 (the
"Credit Agreement") is $30.0 million. The New Line of Credit bears interest at
a variable rate determined by the lender's prime rate or LIBOR and the
Company's total leverage; the interest rate ranges from 0 to 50 basis points
over the prime rate or 75 to 150 basis points over LIBOR. The New Line of
Credit has a commitment fee of up to 0.25% per annum on the daily average
unborrowed balance of the New Line of Credit. The New Line of Credit expires
December 31, 2003, and will begin amortizing in March 1999. The Credit
Agreement provides for various restrictions on the Company which preclude the
Company, without first obtaining the lender's consent, from taking certain
actions, including incurring additional indebtedness, purchasing the assets of
any entity other than in the ordinary course of business, merging or
consolidating with any other entity or altering its existing capital structure
and paying certain dividends. As of December 31, 1996, the Company had no debt
outstanding under the New Line of Credit.
17
<PAGE>
The Company issued non-interest-bearing notes in connection with the
acquisitions in 1995 of the stock of Skyview Broadcasting Networks, Inc.
(including Airborne Broadcast Consultants and the acquisition in 1995 of the
assets of Airborne Broadcasting Systems, Inc.) and the 1994 acquisition of
Charlotte Traffic Patrol, Inc. which had principal amounts of $0.1 million and
$0.6 million, respectively, outstanding as of December 31, 1996. The Company
has guaranteed a $0.6 million letter of credit related to the Charlotte
acquisition as of December 31, 1996. See "Business--Acquisitions."
Capital Expenditures
Capital expenditures were $7.3 million in 1996 and $2.7 million in both 1994
and 1995. Historically, the Company's capital expenditures have related
principally to increasing the Company's information-gathering capabilities,
broadcasting capacity and technology base.
The Company believes its existing sources of liquidity, cash provided by
operations, the Credit Agreement and the proceeds of its initial public
offering will satisfy the Company's anticipated working capital and capital
expenditure requirements for the foreseeable future.
EFFECTS OF INFLATION
The Company believes that the relatively moderate rate of inflation over the
past few years has not had a significant impact on the Company's results of
operations.
RECENT ACCOUNTING PRONOUNCEMENTS
The Financial Accounting Standards Board issued SFAS No. 128 "Earnings per
Share" in February, 1997 which specifies the compilation, presentation, and
disclosure requirements for earnings per share for entities with publicly held
common stock or potential common stock. The requirements of this statement
will be effective for both interim and annual periods ending after December
15, 1997. Management does not believe that the implementation of SFAS 128 will
have a material effect on its financial statements.
18
<PAGE>
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Independent Auditors' Report............................................... 20
Consolidated Balance Sheets................................................ 21
Consolidated Statements of Operations...................................... 23
Consolidated Statements of Stockholders' Equity/Partners' Capital.......... 24
Consolidated Statements of Cash Flows...................................... 25
Notes to Consolidated Financial Statements................................. 27
</TABLE>
19
<PAGE>
INDEPENDENT AUDITORS' REPORT
To the Stockholders and Board of Directors
Metro Networks, Inc. and Subsidiaries:
We have audited the accompanying consolidated balance sheets of Metro
Networks, Inc. and Subsidiaries, and its Predecessors as of December 31, 1996
and 1995, and the related consolidated statements of operations, stockholders'
equity/partners' capital and cash flows for each of the years in the three-
year period ended December 31, 1996. These consolidated financial statements
are the responsibility of the Company's management. Our responsibility is to
express an opinion on these consolidated financial statements based on our
audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the consolidated financial position
of the Metro Networks, Inc. and Subsidiaries and its Predecessors as of
December 31, 1996 and 1995, and the results of their operations and their cash
flows for each of the years in the three-year period ended December 31, 1996,
in conformity with generally accepted accounting principles.
KPMG Peat Marwick LLP
Houston, Texas
February 28, 1997
20
<PAGE>
METRO NETWORKS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
DECEMBER 31,
------------------------
ASSETS 1995 1996
------ ----------- ------------
<S> <C> <C>
Current assets:
Cash and cash equivalents.......................... $ 3,049,946 $ 43,441,293
Accounts receivable, net........................... 12,662,716 23,318,182
Prepaid expenses and other current assets.......... 357,473 841,849
Reciprocal receivables............................. 10,155,550 11,397,959
Merchandise and scrip inventory.................... 399,606 567,144
Reciprocal prepaid expenses and other current
assets............................................ 679,199 440,246
----------- ------------
Total current assets............................. 27,304,490 80,006,673
Receivables from related parties..................... 1,075,030 --
Property and equipment:
Operating equipment................................ 7,887,769 14,686,692
Transportation equipment........................... 709,323 706,554
Leasehold improvements............................. 615,380 1,170,189
----------- ------------
9,212,472 16,563,435
----------- ------------
Less: accumulated depreciation....................... 4,234,972 5,992,630
----------- ------------
4,977,500 10,570,805
Purchased broadcast contracts and other intangibles,
net of accumulated amortization of $6,783,078 in
1996 and $4,103,863 in 1995......................... 13,749,644 14,074,242
Other assets......................................... 923,714 1,160,611
----------- ------------
$48,030,378 $105,812,331
=========== ============
</TABLE>
See accompanying notes to consolidated financial statements.
21
<PAGE>
METRO NETWORKS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS--(CONTINUED)
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------------
LIABILITIES 1995 1996
----------- ----------- ------------
<S> <C> <C>
Current liabilities:
Disbursement float................................. $ 1,800,433 $ 2,055,467
Accounts payable................................... 1,808,274 3,076,333
Accrued Payroll Liabilities........................ 996,695 1,578,677
Other accrued liabilities.......................... 1,707,085 6,606,972
Notes payable...................................... 84,280 518,244
Note payable to shareholder........................ -- 3,100,000
Current portion of long-term debt.................. 662,257 318,789
Deferred revenues.................................. 727,947 430,299
Income tax payable................................. 302,000 897,788
Current deferred income taxes...................... -- 61,000
Reciprocal payable................................. 5,593,764 7,837,337
Accrued reciprocal liabilities..................... 2,316,975 1,520,897
Reciprocal and airtime obligations................. 3,404,296 2,711,301
----------- ------------
Total current liabilities........................ 19,404,006 30,713,104
----------- ------------
Long-term debt....................................... 21,877,156 473,356
Other liabilities.................................... 2,270,988 2,696,228
----------- ------------
Total liabilities................................ 43,552,150 33,882,688
----------- ------------
<CAPTION>
STOCKHOLDER'S EQUITY/PARTNERS' CAPITAL
--------------------------------------
<S> <C> <C>
Common stock......................................... 3,015 16,550
Preferred stock...................................... -- 2,550
Additional paid-in capital........................... 4,023,811 72,888,027
Partners' capital.................................... 650,908 --
Retained deficit..................................... (199,506) (977,484)
----------- ------------
Total stockholder's equity/partners' capital..... 4,478,228 71,929,643
----------- ------------
$48,030,378 $105,812,331
=========== ============
</TABLE>
See accompanying notes to consolidated financial statements.
22
<PAGE>
METRO NETWORKS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
FOR THE YEAR ENDED DECEMBER 31,
--------------------------------------
1994 1995 1996
----------- ----------- ------------
<S> <C> <C> <C>
Advertising revenues................... $60,048,350 $72,432,951 $109,237,172
Broadcasting costs..................... 32,239,358 41,285,973 50,686,189
Marketing expense...................... 11,354,698 14,503,640 21,377,330
General and administrative expense..... 5,938,488 7,194,011 10,157,856
Depreciation and amortization.......... 1,302,434 3,980,525 6,213,319
----------- ----------- ------------
Total operating costs................ 50,834,978 66,964,149 88,434,694
----------- ----------- ------------
Income from operations............... 9,213,372 5,468,802 20,802,478
----------- ----------- ------------
Other (income) expense:
Interest income...................... (165,551) (165,079) (396,946)
Interest expense..................... 293,010 1,260,185 1,778,982
Other................................ 1,785 27,967 (10,914)
----------- ----------- ------------
129,244 1,123,073 1,371,122
----------- ----------- ------------
Income before income tax............. 9,084,128 4,345,729 19,431,356
Income tax expense..................... 2,179,143 1,036,352 3,462,335
----------- ----------- ------------
Net income........................... $ 6,904,985 $ 3,309,377 $ 15,969,021
=========== =========== ============
Pro forma income data (unaudited):
Income as reported before tax........ $ 4,345,729 $ 19,431,356
Pro forma federal and state income
tax................................. (1,542,734) (7,383,915)
----------- ------------
Pro forma net income................. $ 2,802,995 $ 12,047,441
=========== ============
Pro forma net income per share....... $ 0.23 $ 0.94
=========== ============
Weighted average shares outstanding.. 11,900,357 12,883,938
Plus shares attributable to excess
distributions....................... 351,640 --
----------- ------------
Pro forma weighted average shares
outstanding......................... 12,251,997 12,883,938
=========== ============
</TABLE>
See accompanying notes to consolidated financial statements.
23
<PAGE>
METRO NETWORKS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY/PARTNERS' CAPITAL
FOR THE YEARS ENDED DECEMBER 31, 1996, 1995 AND 1994
<TABLE>
<CAPTION>
ADDITIONAL RETAINED
PREFERRED COMMON PAID-IN PARTNERS' EARNINGS
STOCK STOCK CAPITAL CAPITAL (DEFICIT) TOTAL
--------- ------- ----------- --------- ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
Balance at December 31,
1993................... $ -- $ 3,005 $ 22,821 $ -- $ 4,127,134 $ 4,152,960
Distribution............ -- -- -- -- (3,857,759) (3,857,759)
Stock issuance.......... -- 10 990 -- -- 1,000
Capital contributed..... -- -- 1,000,000 1,200,000 -- 2,200,000
Net income.............. -- -- -- 35,484 6,869,501 6,904,985
------ ------- ----------- --------- ------------ ------------
Balance at December 31,
1994................... -- 3,015 1,023,811 1,235,484 7,138,876 9,401,186
Distribution............ -- -- -- -- (11,232,335) (11,232,335)
Capital contributed..... -- -- 3,000,000 -- -- 3,000,000
Net income (loss)....... -- -- -- (584,576) 3,893,953 3,309,377
------ ------- ----------- --------- ------------ ------------
Balance at December 31,
1995................... -- 3,015 4,023,811 650,908 (199,506) 4,478,228
Distribution............ -- -- -- -- (16,982,933) (16,982,933)
Capital contributed..... -- -- 700,000 -- -- 700,000
Stock issuance, net of
offering costs......... -- 4,650 67,758,127 -- -- 67,762,777
Issuance of stock loan.. -- 2,550 -- -- -- 2,550
Reorganization.......... 2,550 6,335 406,089 (414,974) -- --
Net income.............. -- -- -- (235,934) 16,204,955 15,969,021
------ ------- ----------- --------- ------------ ------------
Balance at December 31,
1996................... $2,550 $16,550 $72,888,027 $ -- $ (977,484) $ 71,929,643
====== ======= =========== ========= ============ ============
</TABLE>
See accompanying notes to consolidated financial statements.
24
<PAGE>
METRO NETWORKS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
FOR THE YEAR ENDED DECEMBER 31,
---------------------------------------
1994 1995 1996
----------- ------------ ------------
<S> <C> <C> <C>
Cash flows from operating activities:
Net (loss) earnings................. $ 6,904,985 $ 3,309,377 $ 15,969,021
Adjustments to reconcile net
earnings to cash provided by (used
in) operating activities:
Depreciation and amortization..... 1,302,434 3,980,525 6,213,319
(Gain) loss on disposition of
property and equipment........... (98,215) 1,607 (12,089)
Loss on investment................ 100,000 26,900 --
Amortization of discount on note
payable.......................... -- 27,580 76,460
Deferred federal income tax....... 366,599 -- (109,000)
Decrease (increase) in, net of
acquisition of businesses
Accounts receivable, net.......... (3,376,416) (3,053,276) (10,045,099)
Prepaid expenses and other current
assets........................... (8,822) (124,344) (484,376)
Other assets...................... (116,606) (286,221) (196,318)
(Decrease) increase in, net of
acquisition of businesses
Accounts payable.................. 365,984 (521,669) 1,160,099
Accrued payroll liabilities....... 152,979 132,864 581,982
Other accrued liabilities......... 37,852 506,101 4,899,887
Deferred revenues................. 725,347 (612,070) (297,648)
Income tax payable................ (1,810,851) 220,328 595,788
Other liabilities................. (77,043) (77,043) 425,240
Net reciprocal arrangements......... (3,214,830) (1,424,927) (4,915,659)
----------- ------------ ------------
Net cash provided by operating
activities....................... 1,253,397 2,105,732 13,861,607
----------- ------------ ------------
Cash flows from investing activities:
Acquisitions of companies........... (585,432) (9,218,718) (4,943,814)
Advances on receivables to related
parties............................ (316,993) (786,361) (1,749,347)
Payments on receivables from related
parties............................ -- 315,927
Advances on receivable from
stockholders....................... (1,693,043) (84,227) --
Proceeds from sale of property and
equipment.......................... 1,043,601 224,957 17,171
Acquisitions of property and
equipment.......................... (835,050) (2,043,245) (6,839,588)
----------- ------------ ------------
Net cash used in investing
activities....................... $(2,386,917) $(11,907,594) $(13,199,651)
=========== ============ ============
</TABLE>
See accompanying notes to consolidated financial statements.
25
<PAGE>
METRO NETWORKS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS--(CONTINUED)
<TABLE>
<CAPTION>
FOR THE YEAR ENDED DECEMBER 31,
--------------------------------------
1994 1995 1996
----------- ----------- ------------
<S> <C> <C> <C>
Cash flows from financing activities:
Increase in disbursement float....... $ 451,249 $ 288,761 $ 255,034
Financing costs...................... (229,885) (314,601) --
Proceeds from long-term debt......... 8,008,536 16,890,155 9,411,309
Principal payments on long-term debt. (4,441,471) (2,057,748) (30,801,073)
Distributions........................ (2,364,225) (8,631,116) (7,601,206)
Issuance of stock, net of offering
costs............................... 1,000 -- 67,765,327
Capital contributions................ 2,200,000 3,000,000 700,000
----------- ----------- ------------
Net cash provided by financing
activities........................ 3,625,204 9,175,451 39,729,391
----------- ----------- ------------
Net (decrease) increase in cash and
cash equivalents...................... 2,491,684 (626,411) 40,391,347
Cash and cash equivalents at beginning
of year............................... 1,184,673 3,676,357 3,049,946
----------- ----------- ------------
Cash and cash equivalents at end of
year.................................. $ 3,676,357 $ 3,049,946 $ 43,441,293
=========== =========== ============
Supplemental disclosures of cash flow
information:
Cash paid during the year for
interest............................ $ 261,000 $ 1,246,000 $ 1,832,843
=========== =========== ============
Cash paid during the year for income
taxes............................... $ 4,325,000 $ 923,000 $ 2,855,546
=========== =========== ============
Supplemental noncash investing and
financing activities:
Stockholder distributions by:
Reduction of stockholder note
receivable........................ 560,165 1,790,868 4,819,390
Increase in shareholder note
payable........................... -- -- 3,100,000
Transfer of property............... 933,369 966,518 1,462,337
----------- ----------- ------------
$ 1,493,534 $ 2,757,386 $ 9,381,727
=========== =========== ============
Property and equipment acquired
through reciprocal activities....... $ 1,877,372 $ 702,970 $ 489,537
=========== =========== ============
Reciprocal activities related to
business acquisitions............... $ 2,000,000 $ 1,500,000 $ --
=========== =========== ============
</TABLE>
See accompanying notes to consolidated financial statements.
26
<PAGE>
METRO NETWORKS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1--SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Principles of Consolidation
From 1978 until the closing of the the Company's initial public offering
(the "Public Offering") in October 1996, the business of Metro Networks, Inc.
and subsidiaries ("the Company") was operated through Metro Traffic Control,
Inc. ("MTC"), a Maryland corporation; Metro Reciprocal, Inc. ("MRI"), a Texas
corporation; Metro Networks, Ltd. ("MNW"), a Texas limited partnership; Metro
Video News, Inc. ("MVN"), a Texas corporation; and their subsidiaries
(collectively, the "Predecessor Companies"). Until the closing of the Public
Offering, all of the equity interests in the Predecessor Companies were owned
by the Chairman and Chief Executive Officer of the Company, and certain trusts
(the "Trusts") created for the benefit of this individual's children.
In May 1996, Metro Networks, Inc. was incorporated in Delaware. Immediately
prior to the closing of the Public Offering, the controlling shareholder
established Metro Networks, Inc. as a holding company and consolidated the
issued and outstanding equity interests in the Predecessor Companies into
Metro Traffic Control, Inc., by exchanging such interests for 9,350,607 shares
of Metro Networks, Inc.'s common stock and 2,549,750 shares of Metro Networks,
Inc.'s Series A Convertible Preferred Stock (the "Reorganization"). Subsequent
to the Reorganization, Metro Traffic Control, Inc. is a wholly owned
subsidiary of the Company.
As the equity interests were held under common control and were contributed
by the resulting shareholder of the Company, the underlying assets are
recorded at their historical costs, similar to pooling of interest accounting.
References to Metro Networks, Inc. in the accompanying financial statements
include the predecessor entities prior to the Reorganization.
The accompanying consolidated financial statements include the accounts of
the Company and its wholly owned subsidiary and, prior to the Reorganization,
the combined financial statements of the Predecessor Companies. All
intercompany accounts and transactions have been eliminated in
consolidation/combination.
Business
The Company provides traffic reporting services, local news, sports, weather
and other information reporting services to the television and radio broadcast
industries. In exchange for the Company's information reports, television and
radio station broadcast affiliates provide commercial airtime to the Company.
The packaging and sale of this commercial airtime accounts for substantially
all of the Company's revenue. The Company's information reports are broadcast
by radio and television broadcast affiliates throughout the United States.
Revenue Recognition
The Company provides programming to radio and television stations in
exchange for commercial airtime. The airtime is subsequently sold to
advertisers for either cash or other goods and services. Revenue and the
related accounts receivable is recognized at the time commercials are
broadcast. If cash, merchandise or services are received prior to the
broadcast of the commercial, deferred revenue is recorded.
Revenue from the Company's exchange of advertising time for goods and
services is recorded at the estimated fair market value of goods or services
received or to be received. The value of goods and services is charged to
expense when used.
Operations are charged with a provision for doubtful accounts based on
collection experience and a current review of the collectibility of accounts.
Accounts deemed uncollectable are applied against the allowance for doubtful
accounts.
27
<PAGE>
METRO NETWORKS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
Cash and Cash Equivalents
The Company considers all highly liquid debt instruments purchased with an
original maturity of three months or less to be cash equivalents. The
disbursement float liability represents uncleared checks related to zero
balance accounts. The Company records these amounts as liabilities.
Property and Equipment
Property and equipment are stated at cost. The cost of ordinary maintenance
is charged to operations, while renewals and replacements are capitalized.
Depreciation is computed based on the straight-line method over the following
estimated useful lives:
<TABLE>
<S> <C>
Operating equipment............................................ 3-10 years
Transportation equipment....................................... 3 years
Leasehold improvements......................................... 10 years
</TABLE>
Depreciation expense for the years ended December 31, 1996, 1995 and 1994
was $1,770,043, $1,249,702 and $882,577, respectively.
Intangible Assets
Intangible assets include goodwill, purchased broadcast contracts, non-
compete agreements, trademarks and licenses. Intangible assets are amortized
on a straight-line basis over the estimated eventual term of the customer's
contract or the estimated useful life of the asset for periods ranging from
three to five years.
Federal and State Income Tax
Prior to the Reorganization, MNW owned corporations which were taxed under
the C corporation provisions of the Internal Revenue Code. Taxes related to
income from the entities taxed under the C corporation provisions are reported
under the asset and liability method. Accordingly, deferred tax assets and
liabilities are recognized for future tax consequences attributable to
differences between the financial statement carrying amounts of existing
assets and liabilities and their respective tax bases using enacted tax rates
in effect for the year in which the differences are expected to reverse.
Subsequent to the Reorganization all of the operations will be included in the
consolidated tax return of the Company. Accordingly at the time of
Reorganization the Company recorded an increase in the deferred tax liability
of $66,000, which represented the tax basis differential between financial and
tax assets and liabilities associated with the S Corporations and partnerships
included in the Reorganization.
Prior to the Reorganization, MRI and MVN and MTC elected to be taxed under S
corporation provisions of the Internal Revenue Code. Under these provisions,
MRI, MVN and MTC are not liable for federal income taxes. Instead, the
stockholders are liable for individual federal income taxes on their taxable
income. Also, prior to the Reorganization, MNW was a partnership for federal
income tax purposes and accordingly, the partners were liable for federal
income taxes on their respective income. Accordingly, losses are not available
to the Company to offset income.
The Company uses the asset and liability method of accounting for income
taxes. Under this method, deferred tax assets and liabilities are determined
based on differences between financial reporting and tax bases of assets and
liabilities and are measured using the enacted tax rate and laws that will be
in effect when the differences are expected to reverse.
28
<PAGE>
METRO NETWORKS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
Stock-Based Compensation
Effective January 1, 1996, the Company adopted Financial Accounting
Standards No. 123 ("Accounting for Stock-Based Compensation"). This standard
allows a company to adopt a fair value based method of accounting for a stock-
based employee compensation plan or to continue to use the intrinsic value
based method of accounting prescribed by Accounting Principles Board Opinion
No. 25 ("Accounting for Stock Issued to Employees"). The Company has chosen to
continue to account for stock-based compensation under the intrinsic value
method and provides the pro forma effects of the fair value method as
required. Accordingly, there was no significant impact as a result of the
Company's adoption of this standard.
Accrued Reciprocal Liabilities
Accrued reciprocal liabilities represent goods and services owed to radio
stations in exchange for airtime received from these radio stations.
Reciprocal and Airtime Obligations
Reciprocal and airtime obligations represent broadcast obligations incurred
as part of the purchase price for acquisitions. Such obligations are recorded
at the fair market value of the airtime when the acquisition was made.
Earnings Per Share
Weighted average shares outstanding, net income per share and pro forma net
income per share are calculated assuming the shares issued in conjunction with
the Reorganization were outstanding for the periods presented. In addition, an
adjustment has been made to reflect the distributions which exceeded capital
contributions and net income in accordance with the rules of the Securities
and Exchange Commission.
For purposes of computing earnings per share, the common shares outstanding
as a result of the Stock Loan and Pledge Agreement (see Note 15) are
considered outstanding, however the shares related to the convertable
preferred stock are not considered to be common stock equivalents. This is due
to the fact that under the terms and provisions of the Stock Loan and Pledge
Agreement the preferred shares outstanding can not be converted into common
stock while the stock loan is outstanding.
Pro Forma Financial Data (unaudited)
Pro forma income taxes are set forth herein because certain of the
Predecessor Companies operated as subchapter S corporations or Partnerships
for federal income tax purposes. Pro forma income taxes reflect federal income
taxes that would have been incurred had all the Predecessor Companies been
subject to such taxes. Such amounts have been deducted from net earnings for
pro forma purposes in the accompanying statements of operations pursuant to
the rules and regulations of the Securities and Exchange Commission.
Use of Estimates
The preparation of the financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
Fair Value of Financial Instruments
The estimated fair value of related party receivables and long-term debt are
not materially different from carrying value for financial statement purposes.
29
<PAGE>
METRO NETWORKS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
Accounting Pronouncements
The Company adopted Financial Accounting Standards No.121 ("Accounting for
Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed of")
effective January 1, 1996. This standard requires that long-lived assets and
certain identifiable intangibles held and used by the Company be reviewed for
impairment whenever events or changes in events indicate that the carrying
amount of the asset cannot be recoverable. The adoption of this standard did
not materially affect the Company's consolidated results of operations or
financial position.
Reclassifications
Certain reclassifications have been made to prior year amounts in order to
conform to the 1996 presentation. Reciprocal receivables and liabilities are
shown gross in the current year and had been shown net in prior years.
NOTE 2--INITIAL PUBLIC OFFERING
In October 1996, the Company completed its initial public offering of its
common stock (the "Public Offering"). Of the 7,200,000 shares of common stock
offered, 3,600,000 shares were sold by the selling shareholder. In addition,
the Company's underwriters exercised the underwriters' over-allotment option
which resulted in the Company selling an additional 1,050,000 shares. The
Company received approximately $67.8 million in cash, net of underwriting
discounts and commissions, and other expenses.
NOTE 3--MERCHANDISE AND SCRIP INVENTORY
Merchandise and scrip inventory consists of miscellaneous merchandise and
airline tickets, lodging, meals and other goods received by the Company in
exchange for advertising time, and are valued at the fair market value of
goods received. The components of the merchandise and scrip inventory are as
follows:
<TABLE>
<CAPTION>
DECEMBER 31,
-----------------
1995 1996
-------- --------
<S> <C> <C>
Merchandise inventory................................... $156,496 $198,310
Scrip inventory......................................... 243,110 368,834
-------- --------
$399,606 $567,144
======== ========
</TABLE>
NOTE 4--ACQUISITIONS
The Company made the following acquisitions, each of which has been
accounted for using the purchase method of accounting.
On July 19, 1994, the Company acquired substantially all of the tangible and
intangible assets, contracts, distributor relationships, and advertiser and
affiliate lists of Hildebrand Communications, Inc. ("Hildebrand"), and assumed
certain liabilities in exchange for cash consideration of $100,000. The excess
of the aggregate purchase price over the fair market value of the net assets
acquired of $15,000 was recognized as the value of the non-compete agreement
executed by the seller and is being amortized over a five-year period.
On July 1, 1994, the Company acquired certain of the tangible and intangible
assets, contracts, distributor relationships, and advertiser and affiliate
lists of Wisconsin Information Systems, Inc. d/b/a The Milwaukee Traffic
Network ("Wisconsin"), and assumed certain liabilities in exchange for cash
consideration of $79,000. MTC also agreed to provide the seller with a
performance fee for the initial twenty-four months of MTC's ownership equal to
15% of net operating revenue, as defined. The excess of the aggregate purchase
price over the fair market value of the assets acquired of $15,000 was
recognized as the value of the non-compete agreement executed by the seller
and is being amortized over a five-year period.
On October 26, 1994, the Company acquired substantially all of the business
assets and assumed certain liabilities of Charlotte Traffic Patrol, Inc.
("CTP"), a North Carolina corporation. CTP is engaged in the business
30
<PAGE>
METRO NETWORKS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
of providing vehicular traffic condition reports through the broadcast media
in the metropolitan area of Charlotte, North Carolina and certain surrounding
areas. The purchase price of $3.5 million consisted of a $600,000 cash payment
at closing and notes payable of $900,000. The notes payable are secured by a
stand-by letter of credit issued by a commercial bank. As part of the
consideration for the purchase of the assets, the Company agreed to provide
CTP with certain radio advertising in the Charlotte area each calendar month
during the five-year period beginning the date of closing and ending October
31, 1999. The Company also assumed CTP's obligations under its existing office
lease and CTP's affiliate contracts.
On March 24, 1995, the Company acquired 100% of the stock of TrafficScan,
Incorporated ("TSI"). TSI is in the business of providing traffic information
services to the broadcast media in the greater Atlanta geographic region. The
consideration for the stock of TSI included cash of approximately $4 million
and trade credits of approximately $1.5 million. Approximately $5.1 million of
the purchase price was allocated to the value of purchased broadcast
contracts, non-compete agreements and goodwill and is being amortized on a
straight-line basis over five years.
On March 9, 1995, the Company acquired all of the outstanding shares of
Skyview Broadcasting Networks Inc. ("SBN"), an Arizona corporation. The
consideration for the stock of SBN included cash of $2.28 million and non-
interest bearing notes payable of approximately $463,000. The purchase price
was allocated to the net assets based upon their estimated fair market values.
The excess of the purchase price over the estimated fair value of the net
assets acquired was approximately $2.5 million. The excess purchase price was
allocated to the value of purchased broadcast contracts, non-compete
agreements and goodwill and is being amortized on a straight-line basis over
five years.
On March 9, 1995, the Company also acquired 100% of the shares of Airborne
Broadcast Consultants ("Airborne"), a Nevada corporation. The Company acquired
the stock for cash consideration of $1.14 million and noninterest bearing
notes payable of approximately $232,000. The purchase price was allocated to
the net assets of the acquired company based upon their estimated fair value.
The excess purchase price of approximately $1.3 million was allocated to the
value of purchased broadcast contracts, non-compete agreements and goodwill
and is being amortized on a straight-line basis over five years. The
consideration represented by the notes payable for the SBN and Airborne stock
purchases are payable in the amounts of approximately $347,000 each to the two
previous owners in twenty-three equal installments of approximately $15,000,
with a final payment in the twenty-fourth month. These notes payable are
noninterest bearing and are discounted at an interest rate of 8%.
On March 9, 1995, the Company acquired substantially all of the tangible and
intangible business assets and acquired certain liabilities of Airborne
Broadcasting Systems, Inc. ("ABS"), a Tennessee corporation. ABS operates a
network of broadcast affiliates serving the greater Nashville and Memphis,
Tennessee markets and the Louisville, Kentucky market. Through these
affiliates, ABS provides traffic, news and weather information in exchange for
advertising availabilities. The purchase price of approximately $2.1 million
consisted of cash consideration of $1,780,000 and noninterest bearing notes
payable of approximately $358,000, less note discount at 8%. The purchase
price was allocated to the net assets based upon their estimated fair market
values. The excess purchase price of approximately $2.1 million was allocated
to the value of purchased broadcast contracts, non-compete agreements and
goodwill and is being amortized over a five-year period.
On January 3, 1996, the Company acquired substantially all of the tangible
and intangible business assets and assumed certain liabilities of Aeromedia,
Inc. ("Aeromedia"), a Utah corporation. Aeromedia operates a network of
broadcast affiliates serving the Salt Lake City metropolitan area in exchange
for advertising availabilities and other compensation. As consideration for
the asset purchase, the Company paid $200,000 at closing and agreed to pay
additional contingent consideration in a final payment based upon net sales of
Aeromedia for the calendar year 1996. The final payment which was based upon
net sales as defined in the Asset Purchase Agreement was $250,000.
31
<PAGE>
METRO NETWORKS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
On January 4, 1996, the Company acquired the stock of Traffic Net Inc.
("TNI"), a Rhode Island corporation, Traffic Net of Connecticut, Inc.
("TNCI"), a Connecticut corporation, and The Weather Bureau, Inc. ("TWB"), a
Massachusetts corporation (collectively, the "Traffic Net Group"). In exchange
for 100% of the outstanding shares of the Traffic Net Group, the Company paid
cash consideration of approximately $2.9 million, net of $100,000 in deferred
purchase price related to certain contingent liabilities, as described in the
TNI Stock Purchase Agreement. As additional consideration, the Company paid
cash of approximately $410,000 to acquire existing trade receivables all of
which has been subsequently collected.
On October 31, 1996, the Company acquired substantially all of the tangible
and intangible assets of Wisconsin Information Systems, Inc. ("Wisconsin"), an
Ohio corporation. Wisconsin operates a network of broadcast affiliates serving
the Milwaukee, Wisconsin, Oklahoma City, Oklahoma, Albuquerque, New Mexico and
Omaha, Nebraska areas. The cash purchase price of approximately $650,000 was
allocated to the net assets based upon their estimated fair market values. The
excess purchase price of approximately $600,000 was allocated to the value of
purchased broadcast contracts, non-compete agreements and goodwill and is
being amortized over a five-year period.
Subsequent to December 31, 1996, the Company made the following
acquisitions, each of which will be accounted for using the purchase method of
accounting.
On January 2, 1997, the Company acquired substantially all of the tangible
and intangible assets of Airborne Traffic Network, Inc.("Airborne"), a Kansas
corporation. Airborne operates a network of broadcast affiliates serving the
Kansas City, Kansas and Omaha, Nebraska metropolitan areas. As consideration
for the asset purchase, the Company paid $1,350,000 at closing and agreed to
pay an additional contingent consideration in a final payment based upon net
revenue or operating cash flow of Airborne for the 12 month period following
the closing date. The final payment, based upon net revenue or operating cash
flow as defined in the Asset Purchase Agreement, ranges from zero for net
revenue less than $1,200,000 or operating cash flow less than $400,000 up to
$150,000 for net revenue greater than or equal to $1,800,000 or operating cash
flow greater than or equal to $600,000.
On January 3, 1997, the Company acquired substantially all of the tangible
and intangible assets and assumed certain liabilities of TWI Networks, Inc.,
an Ohio corporation ("TWI"). TWI operates a network of broadcast affiliates
serving the Cincinnati, Columbus and Dayton, Ohio areas, the Memphis and
Nashville, Tennessee areas and the Miami, Florida area. The purchase price of
approximately $3.7 million consisted of cash consideration of $2,700,000 and
installment notes payable of $1,000,000. The purchase price was allocated to
the net assets based upon their estimated fair market values. The excess
purchase price of approximately $3.25 million was allocated to the value of
purchased broadcast contracts, non-compete agreements and goodwill and is
being amortized over a five-year period.
32
<PAGE>
METRO NETWORKS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
The following is a summary of the 1995 and 1996 acquisitions:
<TABLE>
<CAPTION>
DECEMBER 31,
---------------------------------
1994 1995 1996
---------- ----------- ----------
<S> <C> <C> <C>
Assets acquired:
Accounts receivable..................... $ 126,821 $ 994,803 $ 553,982
Fixed assets............................ 226,911 513,670 122,870
Other assets............................ 30,000 17,180 74,224
Purchased broadcast contracts and other
intangibles............................ 5,053,258 13,187,162 5,427,149
---------- ----------- ----------
5,437,000 14,712,815 6,178,225
Liabilities assumed:
Notes payable........................... 601,839 730,452 --
Other liabilities....................... 3,156,161 3,752,838 1,804,498
---------- ----------- ----------
3,758,000 4,483,290 1,804,498
Less: Notes payable issued................ 900,000 1,052,913 --
---------- ----------- ----------
Cash paid................................. $ 779,000 $ 9,176,612 $4,373,727
---------- ----------- ----------
</TABLE>
The following unaudited pro forma information represents the combined
results of operations of the Company as if the TSI, SBN, Airborne and ABS
acquisitions had been combined with the Company as of January 1, 1995.
<TABLE>
<CAPTION>
DECEMBER 31,
(UNAUDITED)
----------------
1995 1996
------- --------
<S> <C> <C>
Advertising Revenues (thousands)........................ $74,846 $109,899
Net Income (thousands).................................. 2,854 15,950
</TABLE>
The pro forma information is not necessarily indicative of operating results
that would have occurred if each major acquisition had been consummated as of
January 1, 1995, nor is it necessarily indicative of future operating results.
The actual results of operations of an acquired company are included in the
Company's consolidated financial statements only from the date of acquisition
and as if the Wisconsin acquisition had been combined with the Company as of
January 1, 1996.
NOTE 5--ALLOWANCE FOR DOUBTFUL ACCOUNTS
The activity in the allowance for doubtful accounts is as follows:
<TABLE>
<CAPTION>
BALANCE BALANCE
AT CHARGED TO WRITE-OFFS AT END
BEGINNING COSTS AND NET OF OF
OF PERIOD EXPENSES RECOVERIES PERIOD
--------- ---------- ----------- --------
<S> <C> <C> <C> <C>
Year ended December 31, 1994......... $691,912 $802,230 $(1,000,299) $493,843
Year ended December 31, 1995......... 493,843 443,169 (626,750) 310,262
Year ended December 31, 1996......... 310,262 801,625 (448,744) 663,143
</TABLE>
33
<PAGE>
METRO NETWORKS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
NOTE 6--OTHER ACCRUED LIABILITIES
The following are the components of other accrued liabilities as of the
respective dates:
<TABLE>
<CAPTION>
DECEMBER 31,
---------------------
1995 1996
---------- ----------
<S> <C> <C>
Trade payables...................................... $ 267,741 $1,599,076
Bonus accrual....................................... 416,043 1,349,036
Commission.......................................... 534,860 1,815,160
Other............................................... 488,441 1,843,700
---------- ----------
$1,707,085 $6,606,972
========== ==========
</TABLE>
NOTE 7--RECIPROCAL REVENUES AND EXPENSES
The following is a summary of reciprocal revenues and expenses for the
respective periods:
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------------------
1994 1995 1996
---------- ---------- ----------
<S> <C> <C> <C>
Reciprocal revenues...................... $7,983,076 $8,375,372 $8,730,531
========== ========== ==========
Reciprocal expenses...................... 7,755,871 9,464,790 6,314,230
========== ========== ==========
</TABLE>
NOTE 8--PURCHASED BROADCAST CONTRACTS AND OTHER INTANGIBLES
Purchased broadcast contracts and other intangibles is comprised of the
following:
<TABLE>
<CAPTION>
DECEMBER 31,
-----------------------
1995 1996
----------- -----------
<S> <C> <C>
Non-compete agreements........................... $ 2,935,649 $ 2,924,214
Purchased broadcast contracts.................... 12,403,544 14,232,769
Goodwill, trademarks and licenses................ 2,514,314 3,700,337
----------- -----------
17,853,507 20,857,320
Less: accumulated amortization................... 4,103,863 6,783,078
----------- -----------
$13,749,644 $14,074,242
=========== ===========
</TABLE>
NOTE 9--NOTES PAYABLE AND LONG-TERM DEBT
Short-term notes payable consists of various notes with an original maturity
of less than one year. Long-term debt consists of:
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------
1995 1996
----------- --------
<S> <C> <C>
Notes payable related to $30,000,000 revolving credit
agreement at variable rates (weighted average of 7.57% at
December 31, 1995)....................................... 21,121,000 --
Various acquisition notes payable, discounted at 8%, due
1997 through 1999........................................ 1,224,083 686,395
Unsecured note payable to bank at prime (8.25% at December
31, 1996), due 1997 through 2000......................... 132,750 105,750
Various notes payable at fixed rates of 7% to 9.50%....... 61,580 --
----------- --------
22,539,413 792,145
Less: Current portion..................................... 662,257 318,789
----------- --------
$21,877,156 $473,356
=========== ========
</TABLE>
34
<PAGE>
METRO NETWORKS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
The following is a schedule of future maturities of long-term debt as of
December 31, 1996:
<TABLE>
<S> <C>
1997............................................................. $318,789
1998............................................................. 146,107
1999............................................................. 153,533
2000............................................................. 161,786
2001............................................................. 11,930
--------
$792,145
========
</TABLE>
On October 22, 1996, the Company paid off the notes payable related to the
$30,000,000 million revolving agreement and replaced this facility with a
reducing revolving credit facility which provides for maximum aggregate
permitted borrowings of $30,000,000. The new line of credit expires December
31, 2003, and will begin reducing in March 1999. The new line of credit bears
interest at a variable rate indexed to the lender's prime rate or LIBOR. The
new line of credit has a commitment fee based on the daily average unborrowed
balance and is secured by the granting of a lien by the Company and its
subsidiary on all of their respective assets and a pledge of the Company's
equity interest in its subsidiary in favor of the lender. The new line of
credit provides for various restrictions on the Company which would restrict
the Company, without first obtaining the lender's consent, from taking certain
actions, including but not limited to incurring additional indebtedness,
making certain acquisitions or consolidating with any other entity, altering
its existing capital structure and paying certain dividends.
NOTE 10--INCOME TAXES
Income tax expense from continuing operations is comprised of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------------------
1994 1995 1996
---------- ---------- ----------
<S> <C> <C> <C>
Current, federal.............................. $1,265,662 $ 722,254 $2,392,913
Current, state................................ 546,882 314,098 1,178,422
Deferred, federal............................. 366,599 -- (109,000)
---------- ---------- ----------
$2,179,143 $1,036,352 $3,462,335
========== ========== ==========
</TABLE>
The difference between the effective tax rate of income tax expense and the
amount which would be determined by applying the statutory U.S. income tax
rates to income from continuing operations before income tax expense is
explained below according to the tax implications of various items of income
or expense:
<TABLE>
<CAPTION>
DECEMBER 31,
------------------------------------
1994 1995 1996
----------- ---------- -----------
<S> <C> <C> <C>
Provision for income tax expense at U.S.
stautory rates.......................... $ 3,088,604 $1,477,548 $ 6,800,975
Increase (decrease) in tax provision
resulting from:
Nontaxable S-Corporation and
partnership (earnings) losses......... (1,645,277) (666,838) (5,448,781)
State income taxes, net of federal tax
benefit............................... 351,042 204,164 1,024,183
Deferred federal income tax reversal
due to change in tax status........... 321,599 -- --
Amortization of goodwill............... -- -- 1,099,686
Other.................................. 63,175 21,478 (13,728)
----------- ---------- -----------
$ 2,179,143 $1,036,352 $ 3,462,335
=========== ========== ===========
</TABLE>
35
<PAGE>
METRO NETWORKS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
Deferred income taxes reflect the net tax effect of temporary differences
between the carrying amounts of assets and liabilities for financial reporting
purposes and amounts used for income tax purposes related to the C
corporations included in the combined group.
The components of the net deferred income tax assets and liabilities at
December 31, 1996 consist of the following:
<TABLE>
<S> <C>
Deferred income tax assets:
Allowance for uncollectable accounts.......................... $ 232,000
Accrued liabilities........................................... 148,000
Fixed asset basis difference.................................. 197,000
Book over tax amortization on intangible assets............... 464,000
----------
Total deferred income tax assets.............................. 1,041,000
Deferred income tax liabilities:
Tax over book depreciation on property and equipment.......... (491,000)
Book over tax barter valuation................................ (441,000)
----------
Total deferred income tax liabilities......................... (932,000)
----------
Net deferred income tax asset................................. 109,000
Current deferred income tax liability......................... (61,000)
----------
Net long-term income tax asset................................ $ 170,000
==========
</TABLE>
Prior to the Reorganization, MNW owned corporations which were taxed under
the C corporation provisions of the Internal Revenue Code. Taxes related to
income from the entities taxed under the C corporation provisions are reported
under the asset and liability method. Accordingly, deferred tax assets and
liabilities are recognized for future tax consequences attributable to
differences between the financial statement carrying amounts of existing
assets and liabilities and their respective tax bases using enacted tax rates
in effect for the year in which the differences are expected to reverse.
Subsequent to the Reorganization all of the operations will be included in the
consolidated tax return of the Company. Accordingly at the time of
Reorganization the Company recorded an increase in the deferred tax liability
of $66,000, which represented the tax basis differential between financial tax
associated with the S Corporations and partnerships included in the
reorganization.
NOTE 11--COMMITMENTS AND CONTINGENCIES
The Company leases certain of its office facilities and equipment over
periods ranging from one to ten years. Total facility expense for the years
ended December 31, 1996, 1995 and 1994 was $3,384,000, $2,701,000 and
$2,256,000, respectively. Future rentals for operating leases at December 31,
1996 are as follows:
<TABLE>
<S> <C>
1997........................................................... $1,885,807
1998........................................................... 1,618,490
1999........................................................... 1,205,435
2000........................................................... 1,009,689
2001........................................................... 761,588
Thereafter..................................................... 1,888,473
----------
$8,369,482
==========
</TABLE>
36
<PAGE>
METRO NETWORKS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
Additionally, the Company is obligated to provide advertising in exchange
for leasing certain office facilities and equipment over periods ranging from
one to ten years. Future rentals for operating leases at December 31, 1996
based on the fair market value of the leases are as follows:
<TABLE>
<S> <C>
1997........................................................... $1,276,563
1998........................................................... 747,740
1999........................................................... 531,376
2000........................................................... 362,110
2001........................................................... 247,673
Thereafter..................................................... 295,674
----------
$3,461,136
==========
</TABLE>
The Company is subject to litigation arising in the ordinary course of
business. Management believes that the resolution of such matters will not
have a material adverse effect on the Company's financial position or results
of operations.
NOTE 12--DEFINED CONTRIBUTION PLAN AND EMPLOYEE STOCK PURCHASE PLAN
Effective April 1995, the Company established a profit sharing plan under
Section 401(k) of the Internal Revenue Code for all eligible employees. All
eligible employees are permitted to defer compensation up to a maximum of 10%
of their income. The plan provides for a matching contribution by the Company,
which amounted to $274,000 and $195,000 in 1996 and 1995, respectively.
A total of 1,500,000 shares of the Company's Common Stock have been reserved
for issuance under the Company's 1996 Employee Stock Purchase Plan (the
"Purchase Plan"). None of such shares have been issued. The Purchase Plan
permits an eligible employee of the Company to purchase common stock at a
discount through payroll deductions not to exceed 10% of the compensation
received by such employee during such pay period ("Employee Purchases"). An
employee's right to purchase shares under the Purchase Plan will be granted at
the beginning of each six month period based on payroll deductions made in the
prior six month period. All purchases will be made automatically at the end of
each six month period. Employee Purchases cannot exceed $25,000 in any plan
year. The price at which the Common Stock is purchased under the Purchase Plan
as set by the Board of Directors is the lesser of 95% of the fair market value
of the Common Stock at the time an employee's right to purchase the stock is
granted, or the fair market value of the Common Stock on the date of purchase.
NOTE 13--STOCK OPTIONS
The Company's Board of Directors adopted the 1996 Incentive Stock Option
Plan (the "1996 Plan") for the Company's officers and employees. The total
number of shares reserved for issuance under the 1996 Plan is 1,000,000, of
which approximately 540,000 were issued at $16 per share upon the effective
date of the Public Offering. The exercise price of options granted under the
1996 Plan may not be less than 100% of the fair market value (or not less than
110% of the fair market value as to any individual who, at the time the option
is granted, owned more than 10% of the total combined voting power of all
classes of stock of the Company) of the common stock on the date such option
was granted. Options granted under the 1996 Plan typically become vested and
exercisable for up to 33 1/3% of the total optioned shares upon the first
anniversary of the grant of the option and for an additional 33 1/3% of the
total optioned shares upon each succeeding anniversary until the option is
fully exercisable at the end of the third year. Generally, the unexercised
portion of any option automatically terminates upon the earlier of (i)
termination of the optionee's employment with the Company, (ii) the expiration
of 90 days from the date the optionee's employment with the Company terminates
for any reason other than cause,
37
<PAGE>
METRO NETWORKS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
death, or disability, (iii) the expiration of one year after the optionee's
death or (iv) the expiration of the option. Upon the sale, merger or
liquidation of the Company, outstanding options may be exercised immediately
prior to the consummation of such transaction, whether or not vested as of such
date of consummation. In addition, 30,000 options were granted in October 1996
to non-employee members of the Board of Directors at an exercise price of $16
per share.
At December 31,1996, 570,000 options were outstanding and no options were
exercisable.
The Company applies APB Opinion No. 25 in accounting for its stock option
plan and, accordingly, no compensation cost has been recognized for its stock
options in the financial statements. Had the Company determined compensation
cost based on the fair value at the grant date for its stock options under SFAS
No. 123, there would have not been a material effect on either net income or
net income per share. The fair value of the options granted during 1996 is
estimated as $3,715,200 (unaudited) on the date of grant using the Black-
Scholes option-pricing model with the following assumptions: no dividend yield,
volatility of 37.5%, risk free interest rate of 6.2%, assumed annual forfeiture
rate of 5%, and an expected life of 5 years.
NOTE 14--COMMON STOCK, PREFERRED STOCK AND PARTNERS' CAPITAL
Immediately prior to the closing of the Public Offering, the Company entered
into a Stock Loan and Pledge Agreement with the controlling shareholder
pursuant to which the Company loaned the controlling shareholder 2,549,750
shares of common stock (the "Loaned Stock"). The loan is for a term of ten
years, although the Company has the right to require the return of the Loaned
Stock from the controlling shareholder prior to that time upon three days
notice. As security for the loan, the controlling shareholder pledged 2,549,750
shares of Series A Convertible Preferred Stock of the Company which, when
converted into common stock, will equal the number of shares of Loaned Stock.
The controlling shareholder is obligated to pay the Company an annual fee over
the term of the loan of 0.1% of the average fair market value of the Loaned
Stock during the five day period immediately following the date of the Stock
Loan and Pledge Agreement. One-half of this fee is payable annually, and the
remaining one-half is payable upon the termination of the loan if such
termination occurs pursuant to an Event of Default (as defined in the Stock
Loan and Pledge Agreement) or at the end of the ten year term. The Company will
forfeit this portion of the fee if it calls the loan prior to the end of the
ten year term. The controlling shareholder paid an initial transaction fee of
$2,550 to the Company and is obligated to repay to the Company any dividends
that are paid by the Company on the Loaned Stock. The Series A Convertible
Preferred Stock does not pay any dividends.
Common stock is as follows:
<TABLE>
<CAPTION>
DECEMBER 31,
--------------
1995 1996
------ -------
<S> <C> <C>
METRO NETWORKS, INC.
Common stock--$0.001 par value, 25,000,000 shares authorized,
16,550,000 shares issued and outstanding..................... $ -- $16,550
METRO TRAFFIC CONTROL, INC.
Common stock--stated value $2.50, 2,600 shares authorized,
1,198 shares issued and outstanding.......................... 2,995 --
METRO RECIPROCAL, INC.
Common stock--$0.01 par value, 1,000,000 shares authorized,
1,000 shares issued and outstanding.......................... 10 --
METRO VIDEO NEWS, INC.
Common stock--$0.01 par value, 1,000,000 shares authorized,
1,000 shares issued and outstanding.......................... 10 --
------ -------
$3,015 $16,550
------ -------
</TABLE>
38
<PAGE>
METRO NETWORKS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
The table above represents the common stock outstanding of the combined
Company as of December 31, 1995 and the ultimate Parent as of December 31,
1996.
Preferred stock is as follows:
<TABLE>
<CAPTION>
DECEMBER
31,
-----------
1995 1996
---- ------
<S> <C> <C>
METRO NETWORKS, INC.
Preferred stock--$0.001 par value, 10,000,000 shares authorized,
Series A Convertible Preferred Stock, 2,549,750 shares issued
and outstanding................................................ $ -- $2,550
</TABLE>
NOTE 15--RELATED PARTY TRANSACTIONS
Prior to the Public Offering, the Company entered into certain reciprocal
arrangements with unrelated third parties as a result of which the Company
received goods and services for the benefit of the controlling shareholder.
The reciprocal arrangements obligate the Company to provide commercial
airtime, provide other goods and services, and make cash disbursements to such
third parties in exchange for the goods and services received by the Company.
The dollar values of such arrangements have typically been calculated based
upon the Company's estimate of the fair market value of the commercial airtime
inventory involved on a basis similar to the basis on which estimates are made
by others in the broadcast industry. As of December 31, 1996, the Company is
obligated to provide approximately $3.4 million of commercial airtime, goods
and services under these reciprocal arrangements. Immediately prior to the
Public Offering, the Company entered into an agreement with the controlling
shareholder pursuant to which the controlling shareholder was distributed the
goods and services the Company held for his benefit. The Company also
distributed to the controlling shareholder all of its rights to the goods and
services that are subject of existing reciprocal arrangements but which had
not yet been delivered to the Company. The value of such goods and services
was approximately $4.1 million.
Immediately prior to the closing of the Public Offering, the Company entered
into a Stock Loan and Pledge Agreement with the controlling shareholder
pursuant to which the Company loaned the controlling shareholder 2,549,750
shares of common stock (the "Loaned Stock"). The loan is for a term of ten
years, although the Company has the right to require the return of the Loaned
Stock from the controlling shareholder prior to that time upon three days
notice. As security for the loan, the controlling shareholder pledged
2,549,750 shares of Series A Convertible Preferred Stock of the Company which,
when converted into common stock, will equal the number of shares of Loaned
Stock. The controlling shareholder is obligated to pay the Company an annual
fee over the term of the loan of 0.1% of the average fair market value of the
Loaned Stock during the five day period immediately following the date of the
Stock Loan and Pledge Agreement. One-half of this fee is payable annually, and
the remaining one-half is payable upon the termination of the loan if such
termination occurs pursuant to an Event of Default (as defined in the Stock
Loan and Pledge Agreement) or at the end of the ten year term of the Stock
Loan and Pledge Agreement. The Company will forfeit this portion of the fee if
it calls the loan prior to the end of the ten year term. The controlling
shareholder paid an initial transaction fee of $2,550 to the Company and is
obligated to repay to the Company any dividends that are paid by the Company
on the Loaned Stock. The Series A Convertible Preferred Stock does not pay any
dividends.
During 1996, the Company leased certain real property in Vail, Colorado and
in Malibu, California from Five S Properties, Ltd., a limited partnership of
which a company owned by the controlling shareholder is the general partner
("Five S"). Such properties were used for affiliate relations and for other
Company business-related purposes. The annual lease payments on these
properties are $60,000 and $240,000, respectively. The amounts of such lease
payments were determined by the Company based on its estimate of the values of
the leased properties but without preference to outside sources of valuation.
Because the Company did not make full-time use of these properties, such
leases were terminated as of October 1996, and the Company has no intention to
enter into similar leases. The Company paid $250,000, $300,000 and $100,000 in
rent expense to
39
<PAGE>
METRO NETWORKS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
Five S for the years ended December 31, 1996, 1995 and 1994, respectively.
Prior to October 1996, the Company incurred certain operating and interest
expenses on behalf of Five S. In October 1996, the Company distributed a note
receivable from Five S to the controlling shareholder in the amount of
$832,495, representing the amounts incurred on behalf of Five S net of the
lease payments.
The Company entered into certain transactions with a company owned by the
controlling shareholder. The Company guaranteed the annual lease payments for
such company in the amount of $60,000; such obligations continued through
December 31, 1996. The Company purchased the majority of its travel tickets
through such company, and as of December 31, 1996, the Company has ceased all
transactions with such company.
The controlling shareholder has personally utilized the services of several
of the Company's employees. The total compensation paid to such employees was
$178,246 in 1996. Except for certain individuals who provide security and
transportation services to the controlling shareholder, these persons ceased
to be employees of the Company.
At December 31, 1994, the Company had a demand note receivable from the
controlling shareholder totaling $1,706,641, bearing interest at the prime
rate plus 1% for cash advances made to him. At December 31, 1995, the Company
had outstanding receivables from entities owned by the controlling shareholder
totaling $1,075,030 bearing interest at the prime rate plus 1%. For the years
ended December 31, 1996, 1995 and 1994, the Company had recorded $107,438,
$131,797 and $105,641, respectively, in interest income related to the above
receivables.
As of October 1996, the Company and the controlling shareholder entered into
an agreement pursuant to which the controlling shareholder may seek
reimbursement from the Company for any income tax obligation attributable to
any period prior to the Reorganization. Alternatively, in the event that the
status of any of MVN, MRI or MTC as a subchapter S corporation is not
respected, the Company may seek reimbursement from the controlling
shareholder, but only to the extent that the controlling shareholder receives
a tax refund attributable to amounts he previously included in income in his
capacity as a shareholder of such corporations. In October 1996, the Company
distributed to the controlling shareholder a note for $3,100,000. This note
relates to estimated tax amounts owed by the controlling shareholder as a
result of his ownership interest in S corporations and partnerships for the
period January 1, 1996 to the date of the Reorganization. The note does not
bear interest and is due on demand, but in all events no later than December
31, 1997.
40
<PAGE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE.
Not applicable.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT.
DIRECTORS AND EXECUTIVE OFFICERS
The current Directors and executive officers of the Company are as follows:
<TABLE>
<CAPTION>
NAME AGE POSITION WITH THE COMPANY
---- --- -------------------------
<S> <C> <C>
David I. Saperstein.......... 56 Chairman of the Board of Directors and Chief
Executive Officer
Charles I. Bortnick.......... 42 President and Director
Shane E. Coppola............. 30 Executive Vice President and Director
Curtis H. Coleman............ 47 Senior Vice President, Chief Financial Officer
and Director
Gary L. Worobow.............. 31 Senior Vice President, General Counsel,
Secretary and Director
Ivan N. Shulman.............. 34 Senior Vice President, Marketing
James A. Arcara.............. 61 Director
Dennis F. Holt............... 62 Director
Robert M. Miggins............ 69 Director
</TABLE>
The Board of Directors is divided into three classes, with each class
holding office for staggered three-year terms. The terms of Class 1 Directors
David I. Saperstein and Gary L. Worobow expire in 1997, the terms of Class 2
Directors Charles I. Bortnick, Curtis H. Coleman and Robert M. Miggins expire
in 1998 and the terms of Class 3 Directors Shane E. Coppola, James A. Arcara
and Dennis F. Holt expire in 1999. All executive officers of the Company are
chosen by the Board of Directors and serve at the Board's discretion.
DAVID I. SAPERSTEIN founded the Company in 1978. Since 1978, Mr. Saperstein
has been the Chief Executive Officer and a Director of the Company. Mr.
Saperstein served as President of the Company from 1978 through June 1996. Mr.
Saperstein serves on the Boards of Directors for the Business Arts Fund, the
Houston Symphony and the Toxoplasmosis Research Institute of the Michael Reese
Hospital in Chicago. Mr. Saperstein serves on the Board of Trustees for the
local chapter of the United Way and is a member of the Dean's Advisory Council
for Touro College of Law in New York. Prior to 1978, Mr. Saperstein owned and
operated several Ford automobile dealerships in Baltimore, Maryland.
CHARLES I. BORTNICK has been President and a Director of the Company since
June 1996. From April 1994 to May 1996, Mr. Bortnick served as Executive Vice
President/General Manager of the Company. Mr. Bortnick joined the Company in
March 1993 as Vice President/General Manager--Midwest Region based in Chicago.
Prior to joining the Company, Mr. Bortnick had 17 years of experience in the
radio broadcasting industry. From November 1987 through March 1993, Mr.
Bortnick served as Vice President/General Manager for Malrite Communications
at its WMMS-FM/WHK-AM radio station in Cleveland, Ohio and its KKHT-FM radio
station in Houston, Texas. From September 1984 to October 1987, Mr. Bortnick
served as Vice President/General Manager for TK Communications at its WSHE-
FM/WSRF-AM radio stations in Miami/Ft. Lauderdale.
SHANE E. COPPOLA has served as Executive Vice President and a Director of
the Company since June 1996. From April 1992 through May 1996, Mr. Coppola was
Vice President--Corporate Development of the Company.
41
<PAGE>
From August 1989 through March 1992, Mr. Coppola was a member of the
Communications Finance Group at The Toronto-Dominion Bank. Mr. Coppola earned
a Masters of Business Administration from the William E. Simon School of
Business Administration in 1989 and a Bachelor of Arts from the University of
Rochester in 1988. Mr. Coppola is the son-in-law of Mr. Saperstein.
CURTIS H. COLEMAN has served as Chief Financial Officer of the Company since
September 1995, as a Senior Vice President and a Director of the Company since
June 1996. Mr. Coleman served as Vice President-Treasurer and Vice President-
Controller of the Company from March 1990 through September 1995. Prior to
joining the Company, Mr. Coleman served in various financial and accounting
positions with Energy Service Company, Inc., Crutcher Resources Corporation
and Arthur Young & Company. Mr. Coleman is a certified public accountant.
GARY L. WOROBOW has served as General Counsel and Secretary of the Company
since May 1995, as a Senior Vice President and a Director of the Company since
June 1996. From August 1991 until joining the Company, Mr. Worobow was an
attorney with the New York law firm of Stursberg & Veith. Mr. Worobow earned a
Juris Doctorate from Fordham Law School in 1991, a Masters of Business
Administration from the William E. Simon School of Business Administration in
1989 and a Bachelor of Arts from the University of Rochester in 1987.
IVAN N. SHULMAN has served as Senior Vice President of Marketing of the
Company since January 1997. From July 1995 through December 1996, Mr. Shulman
was Vice President of Marketing of the Company. From July 1994 through July
1995, he was Vice President--Merchandising of the Company; and from January
1991 through June 1994, Mr. Shulman was National Merchandising Manager of the
Company. Mr. Shulman joined the Company in October 1987. Prior to joining the
Company, Mr. Shulman worked in the consumer products industry with Carnation
Company.
JAMES A. ARCARA became a Director of the Company in October 1996. Mr. Arcara
is Chairman of Radio Enterprises Incorporated, a company that he founded in
1996 to acquire and operate radio stations. Mr. Arcara served as President of
Capital Cities/ABC Radio, a division of Capital Cities/ABC, Inc., from 1986
until April 1996. From 1980 until 1986, prior to the merger of Capital Cities
Communications, Inc. with ABC, Inc., Mr. Arcara served as Executive Vice
President for Capital Cities Radio. Mr. Arcara is a past President of the
Radio Advertising Bureau and a past Director of the National Association of
Broadcasters. From 1970 until 1980, Mr. Arcara served as Vice
President/General Manager for WPAT-AM/FM radio in Clifton, New Jersey. From
1967 until 1970, Mr. Arcara served as Vice President/General Manager for WPRO-
AM radio in Providence, Rhode Island. From 1961 until 1967, Mr. Arcara served
as General Sales Manager for WKBW-AM radio in Buffalo, New York.
DENNIS F. HOLT became a Director of the Company in October 1996. Mr. Holt
has been the President and Chief Executive Officer of Western International
Media Corporation since founding the company in 1969. Western International
Media is the largest media-buying organization in the United States. Mr. Holt
serves as a member of Skull and Dagger, Blue Key, the Silver Shield
Foundation, the Board of Counselors for the University of Southern California
School of Public Administration, the Board of Directors of Aames Home Loan,
St. John's Hospital, the SKIRBALL Cultural Center and the United States
Information Agency. Mr. Holt received the Los Angeles AD Club's Silver Medal,
and the Hollywood Radio and Television Society's Advertising Executive of the
Year Award. Mr. Holt was named Man of the Year in Advertising in 1993 and was
awarded the Advertising Industry Emergency Fund's Golden Life Savers Award in
1994.
ROBERT M. MIGGINS became a Director of the Company in October 1996. Mr.
Miggins served as Vice President/Western Region Manager for TeleRep, Inc. a
leading national television station representation company, from 1988 until
his retirement in December 1995. TeleRep is the National Sales division of Cox
Broadcasting Co. Prior to 1988, Mr. Miggins served as a principal and Vice
President and Regional Area Manager for Petry Television. Mr. Miggins also
served as Vice President of TeleRep from its formation in 1969 to 1980. Mr.
Miggins formed the Los Angeles Television Representative Association and was
President of the Association for nearly 5 years.
42
<PAGE>
Compensation Committee Interlocks and Insider Participation
Messrs. Arcara, Coppola and Miggins comprise the Company's Compensation
Committee. Prior to October 1996, the Company did not have a Compensation
Committee and compensation decisions were made primarily by Mr. Saperstein.
Audit Committee
The outside directors serve as the Company's Audit Committee. The committee
meets periodically with management and representatives of the Company's
independent auditors to assure that appropriate audits of the Company's
affairs are being conducted. In carrying out these responsibilities, the
committee reviews the scope of internal and external audit activities and the
results of the annual audit. The committee is also responsible for
recommending a public accounting firm to serve as independent auditors each
year. The independent auditors have direct access to the Audit Committee to
discuss the results of their examinations, the adequacy of internal accounting
controls, and the integrity of financial reporting.
Non-Employee Director Compensation
Each member of the Board of Directors who is not an officer or an owner, or
the representative of an owner, of more than 5% of the outstanding Common
Stock of the Company receives compensation of $1,000 per meeting for serving
on the Board of Directors. The Company also reimburses Directors for any
expenses incurred in attending meetings of the Board of Directors and the
committees thereof. Upon their election to the Board of Directors, each non-
employee Board member was granted options to purchase 10,000 shares of the
Company's Common Stock. Such options will be exercisable at the fair market
value of the common stock at the date of grant. These options will become
vested and exercisable for up to 33% of the total optioned shares upon the
first anniversary of the grant of the options and for an additional 33% of the
total optioned shares upon each succeeding anniversary until the option is
fully exercisable at the end of the third year.
COMPLIANCE WITH SECTION 16(A) OF THE SECURITIES EXCHANGE ACT OF 1934
Section 16(a) of the Securities Exchange Act of 1934 requires the Company's
executive officers, Directors and 10% stockholders to file reports regarding
initial ownership and changes in ownership with the Securities and Exchange
Commission and the NASDAQ National Market. Executive officers, Directors and
10% stockholders are required by Securities Exchange Commission regulations to
furnish the Company with copies of all Section 16(a) forms they file. The
Company's information regarding compliance with Section 16(a) is based solely
on a review of the copies of such reports furnished to the Company by the
Company's executive officers, Directors and 10% stockholders. The Company is
not aware of any noncompliance with the requirements of Section 16(a) to file
reports during the Company's last fiscal year.
43
<PAGE>
ITEM 11. EXECUTIVE COMPENSATION.
Summary of Cash and Certain Other Compensation. The following table provides
certain summary information concerning compensation paid or accrued by the
Company to or on behalf of the Company's Chief Executive Officer and the four
executive officers of the Company who received an annual salary and bonus in
excess of $100,000 (the "Named Executive Officers") for the year ended
December 31, 1996:
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
ANNUAL COMPENSATION
----------------------------
OTHER SECURITIES
ANNUAL UNDERLYING
SALARY BONUS COMPENSATION STOCK
NAME AND PRINCIPAL POSITION YEAR ($) ($) ($) OPTIONS (#)
--------------------------- ---- ------- ------- ------------ -----------
<S> <C> <C> <C> <C> <C>
David I. Saperstein............. 1996 858,333 -- 117,286(1) 100,000
Chairman of the Board of 1995 960,000 -- 84,438(2) --
Directors
and Chief Financial Officer
Charles I. Bortnick............. 1996 267,708 153,192 8,517(3) 75,000
President 1995 253,980 58,303 2,310(4) --
Shane E. Coppola................ 1996 384,583 -- 20,389(5) 75,000
Executive Vice President 1995 247,917 -- -- --
Curtis H. Coleman............... 1996 150,000 -- 57,541(6) 55,000
Senior Vice President and Chief 1995 131,042 -- 938(4) --
Financial Officer
Gary L. Worobow................. 1996 101,979 -- 995(7) 45,000
Senior Vice President, General 1995 46,643 -- -- --
Counsel and Secretary
</TABLE>
- --------
(1) Includes expenses related to automobiles of $90,880, certain medical
benefits of $22,231, the Company's contributions on behalf of the named
individual under the 401(k) Plan of $2,375 and group term life insurance
premiums of $1,800.
(2) Includes expenses related to automobiles of $58,982, the Company's
contributions on behalf of the named individual under the 401(k) Plan of
$2,310 and a non-taxable shareholder distribution of $23,081.
(3) Includes expenses related to automobiles of $3,453, fringe benefits of
$2,281, the Company's contributions on behalf of the named individual
under the 401(k) Plan of $2,375 and group term life insurance premiums of
$408.
(4) Represents the Company's contributions on behalf of the named individual
under the 401(k) Plan.
(5) Includes expenses related to automobiles of $3,690, fringe benefits of
$16,482 and group term life insurance premiums of $216.
(6) Includes expenses related to automobiles of $1,494, fringe benefits of
$52,976, the Company's contributions on behalf of the named individual
under the 401(k) Plan of $2,375 and group term life insurance premiums of
$696.
(7) Includes fringe benefits of $75, the Company's contributions on behalf of
the named individual under the 401(k) Plan of $754 and group term life
insurance premiums of $166.
Stock Options. The following table contains information concerning the stock
options granted during 1996 to the Named Executive Officers. All grants were
made under the Company's 1996 Incentive Stock Option Plan (the "1996 Plan").
44
<PAGE>
OPTIONS GRANTED IN LAST FISCAL YEAR
<TABLE>
<CAPTION>
TAX LIMIT POTENTIAL
REALIZABLE VALUE AT
ASSUMED ANNUAL RATES
OF STOCK PRICE
APPRECIATION FOR
INDIVIDUAL GRANTS OPTION TERM(2)
--------------------------------------------- --------------------
NUMBER OF % OF TOTAL
SECURITIES OPTIONS EXERCISE
UNDERLYING GRANTED TO OR BASE
OPTIONS EMPLOYEES IN PRICE EXPIRATION
NAME GRANTED (#) FISCAL YEAR ($/SH)(1) DATE 5%($) 10%($)
---- ---------- ------------ --------- ---------- ---------- ---------
<S> <C> <C> <C> <C> <C> <C>
David I. Saperstein..... 100,000 18.5% $17.60 10/16/01 $2,470,000 4,658,000
Charles I. Bortnick..... 75,000 13.9% 16.00 10/16/06 $1,852,500 3,613,500
Shane E. Coppola........ 75,000 13.9% 16.00 10/16/06 $1,852,500 3,613,500
Curtis H. Coleman....... 55,000 10.2% 16.00 10/16/06 $1,358,500 2,649,900
Gary L. Worobow......... 45,000 8.3% 16.00 10/16/06 $1,111,500 2,168,100
</TABLE>
- --------
(1) All options other than those granted to a participant who owns more than
10% of the combined voting power of all classes of outstanding stock of
the Company (a "Ten Percent Stockholder") were granted at market value at
the date of grant for a term of ten years. Options granted to Ten Percent
Stockholders were granted at 110% of the market value at the date of grant
for a term of five years. All options granted under the 1996 Plan are
subject to vesting and to earlier termination in certain instances
relating to termination of employment.
(2) Calculation of potential realizable value is based on the closing price of
the Common Stock at December 31, 1996 ($25.25) minus the exercise price
per share, times the number of options held by the named executive
officer, increased at the indicated rate and compounded annually through
the stated expiration date.
Options Exercised and Holdings. The following table sets forth information
concerning the exercise of options during the last fiscal year and unexercised
options held as of December 31, 1996 by the Named Executive Officers.
AGGREGATED OPTIONS EXERCISED IN LAST FISCAL YEAR
AND FISCAL YEAR-END OPTION VALUES
<TABLE>
<CAPTION>
NUMBER OF SECURITIES
UNDERLYING UNEXERCISED VALUE OF UNEXERCISED
SHARES OPTIONS AT FISCAL IN-THE-MONEY OPTIONS AT
ACQUIRED YEAR-END (#) FISCAL YEAR-END ($)(2)
ON VALUE ------------------------- -------------------------
NAME EXERCISE(#) REALIZED(1) EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
---- ---------- ----------- ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
David I. Saperstein..... 0 0 0 100,000 0 $765,000
Charles I. Bortnick..... 0 0 0 75,000 0 693,750
Shane E. Coppola........ 0 0 0 75,000 0 693,750
Curtis H. Coleman....... 0 0 0 55,000 0 508,750
Gary L. Worobow......... 0 0 0 45,000 0 416,250
</TABLE>
- --------
(1) Calculation of value realized is based on the closing price of the Common
Stock at December 31, 1996 ($25.25) minus the exercise price per share
times the number of shares acquired upon the exercise of stock options by
the Named Executive Officer.
(2) Calculation of the value of unexercised in-the-money options at December
31, 1996 is based on the closing price of the Common Stock at December 31,
1996 ($25.25) minus the exercise price per share of the options granted,
times the number of options held by the Named Executive Officer.
1996 INCENTIVE STOCK OPTION PLAN
The Company's Board of Directors adopted the 1996 Incentive Stock Option
Plan (the "1996 Plan") for the Company's officers and employees. The Board of
Directors has discretionary authority, subject to certain restrictions, to
administer the 1996 Plan, including but not limited to determining the
individuals to whom, the
45
<PAGE>
times at which, and the exercise price for which options will be granted. The
total number of shares reserved for issuance under the 1996 Plan is 1,000,000,
of which approximately 540,000 were issued during 1996. The exercise price of
options granted under the 1996 Plan may not be less than 100% of the fair
market value (or not less than 110% of the fair market value as to any
individual who, at the time the option is granted, owned more than 10% of the
total combined voting power of all classes of stock of the Company) of the
Common Stock on the date such option was granted. Options granted under the
1996 Plan are not transferable by the optionholders except by will or by the
laws of descent and distribution. Options granted under the 1996 Plan
typically become vested and exercisable for up to 33 1/3% of the total
optioned shares upon the first anniversary of the grant of the option and for
an additional 33 1/3% of the total optioned shares upon each succeeding
anniversary until the option is fully exercisable at the end of the third
year. Generally, the unexercised portion of any option automatically
terminates upon the earlier of (i) termination of the optionee's employment
with the Company, (ii) the expiration of 90 days from the date his employment
with the Company terminates for any reason other than cause, death, or
disability (iii) the expiration of one year after the optionee's death or (iv)
the expiration of the option. Upon the sale, merger or liquidation of the
Company, outstanding options may be exercised immediately prior to the
consummation of such a transaction, whether or not vested as of such date of
consummation.
EMPLOYEE STOCK PURCHASE PLAN
A total of 1,500,000 shares of the Company's Common Stock have been reserved
for issuance under the Company's 1996 Employee Stock Purchase Plan (the
"Purchase Plan"). None of such shares have been issued. The Purchase Plan
permits an eligible employee of the Company to purchase common stock at a
discount through payroll deductions not to exceed 10% of the compensation
received by such employee during such pay period ("Employee Purchases"). An
employee's right to purchase shares under the Purchase Plan will be granted at
the beginning of each six month period based on payroll deductions made in the
prior six month period. All purchases will be made automatically at the end of
each six month period. Employee Purchases cannot exceed $25,000 in any plan
year. The price at which the Common Stock is purchased under the Purchase Plan
as set by the Board of Directors is the lesser of 95% of the fair market value
of the Common Stock at the time an employee's right to purchase the stock is
granted, or the fair market value of the Common Stock on the date of purchase.
DEFINED CONTRIBUTION PLAN
Effective in April 1995, the Company established a profit sharing plan under
Section 401(k) of the Internal Revenue Code (the "401(k) Plan") for all
eligible employees. Under the 401(k) Plan, all eligible employees are
permitted to defer compensation up to a maximum of 10% of their income. The
401(k) Plan provides for a matching contribution by the Company equal to 25%
of the amount contributed by the employee, up to 6% of the employee's total
compensation. These contributions amounted to $274,294 in 1996. The employee's
contribution is immediately vested and 20% of the Company's matching
contribution vests every year after the second year of the employee's
participation in the plan. Accordingly, the matching contribution is fully
vested six years after such contribution.
EMPLOYMENT AGREEMENTS
The Company has entered into employment agreements with each of the Named
Executive Officers. Such employment agreements prohibit each of the Named
Executive Officers from competing with the Company for a period of one year
after termination of employment.
Mr. Saperstein is a party to an employment agreement with the Company
pursuant to which he serves as Chief Executive Officer of the Company. Under
the terms of Mr. Saperstein's employment agreement, he is entitled to receive
an annual base salary of $350,000. Such base salary will increase by 5% during
each year term of the employment agreement. The employment agreement provides
that Mr. Saperstein may receive a bonus of up to $150,000 per annum at the
discretion of the Board of Directors or the Compensation Committee. The bonus
potential will increase by 5% during each year of the term of the employment
agreement. Pursuant to the employment agreement, Mr. Saperstein was granted
stock options under the 1996 Plan to purchase up to
46
<PAGE>
100,000 shares of the Company's Common Stock at an exercise price equal to
110% of the initial public offering price. Subsequent grants of options to Mr.
Saperstein during the term of the employment agreement will be at the
discretion of the Board of Directors or the Compensation Committee. Mr.
Saperstein's employment agreement became effective as of October 16, 1996, and
has a two year term subject to automatic renewal at the end of the second year
for an additional period of one year, unless the Company gives written notice
at least 90 days prior to the end of such second year of its election to
terminate such employment agreement at the end of such second year
(hereinafter, a "Non-Renewal").
Mr. Bortnick is a party to an employment agreement with the Company pursuant
to which he serves as President of the Company. Under the terms of Mr.
Bortnick's employment agreement he is entitled to receive an annual base
salary of $275,000. Such base salary will increase by 5% upon each anniversary
of the closing during the term of the employment agreement. The agreement
provides that Mr. Bortnick may receive a bonus of up to $100,000 per annum at
the discretion of the Board of Directors or the Compensation Committee. The
bonus potential increases by 5% during each year of the term of the employment
agreement. Pursuant to the employment agreement, Mr. Bortnick was granted
stock options under the 1996 Plan to purchase up to 75,000 shares of the
Company's Common Stock at an exercise price equal to the initial public
offering price. Subsequent grants during the term of the employment agreement
will be at the discretion of the Board of Directors or the Compensation
Committee. Mr. Bortnick's employment agreement has a two year term from
October 16, 1996 with an automatic renewal provision of one year, subject to
Non-Renewal. Mr. Bortnick currently receives a base salary of $275,000. Mr.
Bortnick's agreement also provides that upon the termination of such agreement
by the Company or Mr. Bortnick under certain circumstances, Mr. Bortnick will
continue to receive the salary provided for under his employment agreement for
three months following termination of employment. Additionally, upon a change
of control (as defined in the employment agreement) of the Company, if Mr.
Bortnick's employment does not continue for a minimum of one year, he would be
entitled to receive two (2) times his then current base salary.
Mr. Coppola is a party to an employment agreement with the Company pursuant
to which he serves as Executive Vice President of the Company. Under the terms
of Mr. Coppola's employment agreement he is entitled to receive an annual base
salary of $200,000. Such base salary will be increased by 5% during each year
of the term of the employment agreement. The employment agreement provides
that Mr. Coppola may receive a bonus of up to $100,000 per annum at the
discretion of the Board of Directors or the Compensation Committee. The bonus
potential will increase by 5% during each year of the term of the employment
agreement. Pursuant to the employment agreement, Mr. Coppola was granted stock
options under the 1996 Plan to purchase up to 75,000 shares of the Company's
Common Stock at an exercise price equal to the initial public offering price.
Subsequent grants during the term of the employment agreement will be at the
discretion of the Board of Directors or the Compensation Committee. Mr.
Coppola's employment agreement became effective as of October 16, 1996, and
has a two year term with an automatic renewal provision of one year, subject
to Non-Renewal.
Mr. Coleman is a party to an employment agreement with the Company pursuant
to which he will serve as Senior Vice President and Chief Financial Officer of
the Company. Under the terms of Mr. Coleman's employment agreement he is
entitled to receive an annual base salary of $150,000. Such base salary will
increase by 5% during each year of the term of the employment agreement. The
employment agreement provides that Mr. Coleman may receive a bonus of up to
$50,000 per annum at the discretion of the Board of Directors or the
Compensation Committee. The bonus potential will increase by 5% during each
year of the term of the employment agreement. Pursuant to the employment
agreement, Mr. Coleman was granted stock options under the 1996 Plan to
purchase up to 55,000 shares of the Company's Common Stock at an exercise
price equal to the initial public offering price. Subsequent grants during the
term of the employment agreement will be at the discretion of the Board of
Directors or the Compensation Committee. Mr. Coleman's employment agreement
became effective as of October 16, 1996, and has a two year term with an
automatic renewal provision of one year, subject to Non-Renewal.
Mr. Worobow is a party to an employment agreement with the Company pursuant
to which he serves as Senior Vice President, General Counsel and Secretary of
the Company. Under the terms of Mr. Worobow's
47
<PAGE>
employment agreement he is entitled to receive an annual base salary of
$117,500. Such base salary will increase by 5% during each year of the term of
the employment agreement. The employment agreement provides that Mr. Worobow
may receive a bonus of up to $37,500 per annum at the discretion of the Board
of Directors or the Compensation Committee. The bonus potential will increase
by 5% during each year of the term of the employment agreement. Pursuant to
the employment agreement, Mr. Worobow was granted stock options under the 1996
Plan to purchase up to 45,000 shares of the Company's Common Stock at an
exercise price equal to the initial public offering price. Subsequent grants
during the term of the employment agreement will be at the discretion of the
Board of Directors or the Compensation Committee. Mr. Worobow's employment
agreement became effective as of October 16, 1996, and has a two year term
with an automatic renewal provision of one year, subject to Non-Renewal.
INDEMNIFICATION MATTERS
The Company's Amended and Restated Certificate of Incorporation and Bylaws
require the Company to indemnify each officer, director or employee in respect
of claims made by reason of his or her status with the Company, including
stockholder derivative suits, provided he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interest of the Company and, with respect to any criminal act or proceeding,
had no reasonable cause to believe his or her conduct was unlawful. Expenses
incurred in the defense of any such action may be paid by the Company in
advance of final disposition upon receipt of an undertaking from the officer,
director or employee to repay the advances if there is an ultimate
determination that he or she is not entitled to be indemnified.
BOARD COMPENSATION COMMITTEE REPORT ON EXECUTIVE COMPENSATION
The Compensation Committee of the Board of Directors (the "Committee")
consists of James A. Arcara, Shane E. Coppola and Robert M. Miggins. The
Committee is charged with reviewing and approving compensation of the
Company's executives. The Company's executive compensation program consists of
three main components: base salary, potential for an annual bonus based on
performance, and the opportunity to receive stock options exercisable for the
purchase of Common Stock of the Company. The Committee is charged with the
responsibility of granting stock options to employees.
The Company has previously entered into employment agreements with each of
the Named Executive Officers covered in the Summary Compensation Table above.
See "Executive Compensation--Employment Agreements." Each of such persons
receives a base salary with increases at the discretion of the Committee and
is eligible to receive a bonus in accordance with such contracts at the
discretion of the Committee. In general, bonuses are calculated using as
criteria the Company's performance and the performance of the executive during
the relevant year.
The Company's executives are eligible to receive stock options in accordance
with the Company's stock option plans. The objectives of such participation
are to align the long-term interests of executives and stockholders by
encouraging executives to develop and maintain a significant, long-term stock
ownership position in the Company. The Committee has the responsibility of
granting stock options to executives and other employees. In granting stock
options, the Committee takes into account Company performance and individual
performance. Company performance is measured by increases in earnings and, to
a lesser extent, increases in revenues, and individual performance is measured
by the individuals' contributions to such enhanced performance.
The Company's Chairman of the Board and Chief Executive Officer, David I.
Saperstein, received compensation in 1996 determined in accordance with the
provisions of his employment agreement with the Company. See "Executive
Compensation--Employment Agreements."
James A. Arcara
Shane E. Coppola
Robert M. Miggins
48
<PAGE>
PERFORMANCE GRAPH
The following graph compares the Company's cumulative total return to
stockholders since the Company's initial public offering on October 17, 1996,
with that of the Standard & Poor's 500 Stock Index (the "S&P 500 Index") and a
peer group index (the "Peer Group Index") consisting of those public companies
traded on an exchange and listed under the same standard industry
classification code as the Company (SIC No. 4899--Communications Services, Not
Elsewhere Classified). The total return calculations set forth below assume
$100 invested on October 17, 1996, in each of the Company, the S&P 500 Index
and the Peer Group Index, with reinvestment of dividends into additional shares
of the same class of securities at the frequency with which dividends were paid
on such securities through December 31, 1996. Historical results are not
necessarily indicative of future performance.
COMPARISON OF CUMULATIVE TOTAL RETURN
AMONG THE COMPANY, THE S&P 500 INDEX
AND THE PEER GROUP INDEX
[GRAPH APPEARS HERE]
FISCAL YEAR ENDING
<TABLE>
<CAPTION>
OCT 17, OCT 31, NOV 30, DEC 31,
COMPANY 1996 1996 1996 1996
- ------- -------- -------- -------- --------
<S> <C> <C> <C> <C>
METRO NETWORKS, INC. 100.00 98.78 118.29 123.17
PEER GROUP INDEX 100.00 100.00 104.79 102.87
S&P 500 INDEX 100.00 100.00 107.56 105.43
</TABLE>
49
<PAGE>
ITEM 12. SHARE OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
The following table sets forth certain information regarding the beneficial
ownership of the Company's Common Stock as of March 21, 1997, by all persons
known by the Company to own beneficially more than five percent (5%) of the
Company's Common Stock, each Director, the Chief Executive Officer of the
Company and the four most highly compensated executive officers of the Company
whose total salary and bonus exceeded $100,000 at December 31, 1996, and all
Directors and executive officers of the Company as a group.
<TABLE>
<CAPTION>
SHARES
BENEFICIALLY
OWNED
-----------------------
NAME OF BENEFICIAL OWNER NUMBER PERCENT
------------------------ --------- -------
<S> <C> <C>
David I. Saperstein................................... 8,300,357(1)(2) 50.2
Metro Networks, Inc.
2800 Post Oak Boulevard
Suite 4000
Houston, Texas 77056
BAMCO, Inc./Baron Capital Management, Inc............. 1,535,000(3) 9.9%
767 Fifth Avenue
24th Floor
New York, New York 10153
Charles I. Bortnick................................... 1,000(4) *
Shane E. Coppola...................................... 211,050(5)(6) 1.3%
Curtis H. Coleman..................................... 1,000(7) *
Gary L. Worobow....................................... 500(8)(9) *
James A. Arcara....................................... 2,000(10) *
Dennis F. Holt........................................ 50,000(11) *
Robert M. Miggins..................................... 500(12) *
All executive officers and directors as a group (9
persons)............................................. 8,567,807 51.8%
</TABLE>
- --------
* Less than 1%.
(1) Does not include shares held by the Trusts (as defined below), beneficial
ownership of which Mr. Saperstein disclaims. In addition, the number of
shares beneficially owned does not include 2,549,750 shares of Series A
Convertible Preferred Stock owned by Mr. Saperstein and pledged to the
Company in connection with the stock loan under the Stock Loan and Pledge
Agreement. See "Certain Transactions." Such shares have not been included
because they can only be converted into Common Stock upon repayment of
such stock loan; repayment may be achieved either through the acquisition
of shares of Common Stock in the open market and delivery of such shares
to the Company or the delivery of shares of Series A Convertible
Preferred Stock. Mr. Saperstein retains the voting rights to all pledged
shares of Series A Convertible Preferred Stock.
(2) Does not include stock options to purchase 100,000 shares of Common Stock
granted under the 1996 Plan on October 16, 1996.
(3) BAMCO, Inc. ("BAMCO") and Baron Capital Management, Inc. ("Baron") have
filed with the Securities and Exchange Commission a Schedule 13G dated
February 7, 1997 reporting that BAMCO and Baron may be deemed to
beneficially own 1,270,000 and 265,000 shares, respectively, of the
Common Stock. BAMCO and Baron have filed the Schedule 13G as a group,
pursuant to Rule 13d-1(b)(1)(ii) (F) of the Securities Exchange Act of
1934, as amended.
(4) Does not include stock options to purchase 75,000 shares of Common Stock
granted under the 1996 Plan on October 16, 1996.
(5) Includes 210,050 shares beneficially owned through the Michelle Joy
Coppola Trust. Mrs. Coppola, the beneficiary of the trust, is Mr.
Coppola's wife. These shares have been loaned to the Selling Stockholder
in connection with the initial public offering.
(6) Does not include stock options to purchase 75,000 shares of Common Stock
granted under the 1996 Plan on October 16, 1996.
(7) Does not include stock options to purchase 55,000 shares of Common Stock
granted under the 1996 Plan on October 16, 1996.
(8) Does not include stock options to purchase 45,000 shares of Common Stock
granted under the 1996 Plan on October 16, 1996.
(9) Includes 200 shares owned by Mr. Worobow's minor child for which Mr.
Worobow is custodian.
(10) Does not include stock options to purchase 10,000 shares of Common Stock
granted pursuant to a Nonqualified Stock Option Agreement between Mr.
Arcara and the Company dated October 16, 1996.
(11) Does not include stock options to purchase 10,000 shares of Common Stock
granted pursuant to a Nonqualified Stock Option Agreement between Mr.
Holt and the Company dated October 22, 1996.
(12) Does not include stock options to purchase 10,000 shares of Common Stock
granted pursuant to a Nonqualified Stock Option Agreement between Mr.
Miggins and the Company dated October 22, 1996.
50
<PAGE>
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
During 1996, the Company leased certain real property in Vail, Colorado and
in Malibu, California from Five S Properties, Ltd., a limited partnership of
which a company owned by Mr. Saperstein is the general partner ("Five S").
Such properties were used for affiliate relations and for other Company
business-related purposes. The annual lease payments on these properties are
$60,000 and $240,000, respectively. The amounts of such lease payments were
determined by the Company based on its estimate of the value of the leased
properties but without reference to outside sources of valuation. Because the
Company did not make full-time use of these properties, such leases were
terminated as of October 1996, and the Company has no intention to enter into
similar leases. Prior to October 1996, the Company incurred certain operating
and interest expenses on behalf of Five S. In October 1996, the Company
distributed a note receivable from Five S to Mr. Saperstein in the amount of
$832,495, representing the amounts incurred on behalf of Five S net of the
lease payments.
During 1996, the Company entered into certain reciprocal arrangements with
unrelated third parties as a result of which the Company received or will
receive goods and services for the benefit of Mr. Saperstein. The reciprocal
arrangements obligate the Company to provide commercial airtime, provide other
goods and services, and make cash disbursements to such third parties in
exchange for the goods and services received by the Company. The dollar values
of such arrangements have typically been calculated based upon the Company's
estimate of the fair market value of the commercial airtime inventory involved
and the Company believes that its estimates have been made on a basis similar
to the basis on which estimates are made by others in the broadcast industry.
As of December 31, 1996, the Company was obligated to provide approximately
$3.4 million of commercial airtime, goods and services and cash under these
reciprocal arrangements. The Company has entered into an agreement with Mr.
Saperstein pursuant to which Mr. Saperstein has been distributed the goods and
services the Company holds for Mr. Saperstein's benefit. The Company also
distributed to Mr. Saperstein all of its rights to the goods and rights to
services that are the subject of existing reciprocal arrangements but which
have not yet been delivered to the Company. The value of such goods and
services was approximately $4.1 million.
During 1996, the Company entered into certain transactions with Pro Journey
Travel, Inc., a company owned by Mr. Saperstein ("Pro Journey"). The total
value of such transactions was approximately $80,000. As of October 1996, Pro
Journey owed the Company approximately $57,582. In October 1996, the Company
forgave this receivable. As of December 31, 1996, the Company ceased all
transactions and arrangements with Pro Journey.
Mr. Saperstein has personally utilized the services of several of the
Company's employees. The total compensation paid to such employees was
$178,246 in 1996. Except for certain individuals who provide security and
transportation services to Mr. Saperstein, these persons ceased to be
employees of the Company.
As of October 1996, the Company and Mr. Saperstein entered into an agreement
pursuant to which Mr. Saperstein may seek reimbursement from the Company for
any income tax obligation attributable to any period prior to the
Reorganization. Alternatively, in the event that the status of any of Metro
Video News, Inc., Metro Reciprocal, Inc., or Metro Traffic Control, Inc. as a
subchapter S corporation is not respected, the Company may seek reimbursement
from Mr. Saperstein, but only to the extent that Mr. Saperstein receives a tax
refund attributable to amounts he previously included in income in his
capacity as a shareholder of such corporations. The Company does not
anticipate that the subchapter S status of Metro Video News, Inc., Metro
Reciprocal, Inc., or Metro Traffic Control, Inc., will be successfully
challenged. In October 1996, the Company distributed to Mr. Saperstein a non-
interest bearing promissory note in the amount of $3.1 million representing
the estimated tax obligation attributable to the period prior to the
Reorganization. Such note is payable on demand, but in all events no later
than December 31, 1997.
As of October 1996, the Company entered into a Stock Loan and Pledge
Agreement with Mr. Saperstein pursuant to which the Company loaned Mr.
Saperstein 2,549,750 shares of Common Stock. The loan is for a
51
<PAGE>
term of ten years, although the Company has the right to require the return of
the loaned Common Stock (the "Loaned Stock") from Mr. Saperstein prior to that
time upon three days notice. As security for the loan, Mr. Saperstein pledged
a number of shares of Series A Convertible Preferred Stock of the Company
which when converted into common stock will be equal to the number of shares
of Loaned Stock. Mr. Saperstein is obligated to pay to the Company an annual
fee over the term of the loan of 0.1% of the average fair market value of the
Loaned Stock during the five day period immediately following the date of the
Stock Loan and Pledge Agreement. One-half of this fee is payable annually, and
the remaining one-half of this fee is payable upon the termination of the loan
if such termination occurs pursuant to an Event of Default (as defined in the
Stock Loan and Pledge Agreement) or at the end of the ten year term of the
Stock Loan and Pledge Agreement. The Company will forfeit this portion of the
fee if it calls the loan prior to the end of the ten year term. In addition,
Mr. Saperstein paid an upfront transaction fee of $2,550 to the Company and is
obligated to repay to the Company any dividends that are paid by the Company
on the Loaned Stock. The Series A Convertible Preferred Stock does not pay any
dividends.
52
<PAGE>
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K.
(a) List of documents filed as part of this report.
(1)Financial Statements
The Independent Auditors' Report and the following consolidated
financial statements are filed as part of this report:
Consolidated Statements of Operations for the years ended
December 31, 1996, 1995 and 1994.
Consolidated Balance Sheets as of December 31, 1996 and 1995.
Consolidated Statement of Stockholder's Equity/Partners' Capital
for the years ended December 31, 1996, 1995 and 1994.
Consolidated Statements of Cash Flow for the years ended
December 31, 1996, 1995 and 1994.
Notes to Consolidated Financial Statements.
(2)Financial Statement Schedules
All information required to be included in a financial statement
schedule is disclosed in the consolidated financial statements
referred to above.
(3)Exhibits.
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
3.1* --Form of Amended and Restated Certificate of Incorporation of the
Registrant
3.2* --Form of Amended and Restated Bylaws of Registrant
4.1* --Form of Common Stock Certificate
4.2* --Form of Series A Convertible Preferred Stock Certificate
10.1* --Lease Agreement, dated April 15, 1988 between Tower, Limited and
Metro Traffic Control, Inc.
10.2* --First Amendment to Lease Agreement, dated September 1, 1988 between
Tower, Limited and Metro Traffic Control, Inc.
10.3* --Lease Amendment Number Two, dated April 23, 1991 between Tower,
Limited and the Registrant
10.4* --Lease Amendment Number Three, dated January 28, 1992 between Tower,
Limited and the Registrant
10.5* --Sublease Agreement dated January 5, 1996 between Transcontinental
Gas Pipe Line Corporation and Metro Traffic Control, Inc.
10.6* --Lease Agreement dated April 18, 1990 between Transco Tower Limited
and Metro Traffic Control, Inc.
10.7* --Lease Amendment Number One dated October 19, 1988 between Transco
Tower, Limited and Metro Traffic Control, Inc.
10.8* --Lease Amendment Number Two dated January 29, 1992 between Transco
Tower, Limited and Metro Traffic Control, Inc.
10.9* --Lease Amendment Number Three dated May 28, 1992 between Transco
Tower, Limited and Metro Traffic Control, Inc.
</TABLE>
53
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
10.10* --Employment Agreement between the Registrant and Mr. David I.
Saperstein
10.11* --Employment Agreement between the Registrant and Mr. Charles I.
Bortnick
10.12* --Employment Agreement between the Registrant and Mr. Shane E. Coppola
10.13* --Employment Agreement between the Registrant and Mr. Curtis H.
Coleman
10.14* --Employment Agreement between the Registrant and Mr. Gary L. Worobow
10.15* --Metro Networks, Inc. Employee Stock Purchase Plan
10.16* --1996 Incentive Stock Option Plan
10.17* --Stock Loan and Pledge Agreement between the Registrant and David I.
Saperstein
10.18* --Indemnification Agreement between the Registrant and David I.
Saperstein
10.19 --Credit Agreement among Metro Networks, Inc., certain lenders, and
NationsBank of Texas, N.A., as Administrative Lender, dated as of
October 22, 1996.
11.1 --Statement re: computation of per share earnings
21.1 --Subsidiaries of the Company.
23.1 --Consent of KPMG Peat Marwick LLP
27.1 --Financial Data Schedule
</TABLE>
- --------
(*) Incorporated by reference to the Registrant's Registration Statement on
Form S-1, Registration No. 333-6311, originally filed with the Securities
and Exchange Commission on June 19, 1996, as subsequently amended, and
declared effective on October 16, 1996.
54
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, the Registrant has duly caused this report
to be signed on its behalf by the undersigned, thereunto duly authorized, on
March 31, 1997.
METRO NETWORKS, INC.
/s/ David I. Saperstein
By: _________________________________
David I. Saperstein
Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, this report has been signed below by the following persons on behalf
of the Registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ David I. Saperstein Chairman of the Board of March 31, 1997
____________________________________ Directors and Chief
David I. Saperstein Executive Officer (Principal
Executive Officer)
/s/ Charles I. Bortnick President and Director March 31, 1997
____________________________________
Charles I. Bortnick
/s/ Shane E. Coppola Executive Vice President and March 31, 1997
____________________________________ Director
Shane E. Coppola
/s/ Curtis H. Coleman Senior Vice President, Chief March 31, 1997
____________________________________ Financial Officer and
Curtis H. Coleman Director (Principal
Financial and Accounting
Officer)
/s/ Gary L. Worobow Senior Vice President, March 31, 1997
____________________________________ General Counsel, Secretary
Gary L. Worobow and Director
Director
____________________________________
James A. Arcara
Director
____________________________________
Robert M. Miggins
Director
____________________________________
Dennis F. Holt
</TABLE>
55
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NO. DESCRIPTION OF EXHIBIT PAGE
------- ---------------------- ------------
<C> <S> <C>
3.1* --Form of Amended and Restated Certificate of
Incorporation of the Registrant
3.2* --Form of Amended and Restated Bylaws of Registrant
4.1* --Form of Common Stock Certificate
4.2* --Form of Series A Convertible Preferred Stock
Certificate
10.1* --Lease Agreement, dated April 15, 1988 between Tower,
Limited and Metro Traffic Control, Inc.
10.2* --First Amendment to Lease Agreement, dated September
1, 1988 between Tower, Limited and Metro Traffic
Control, Inc.
10.3* --Lease Amendment Number Two, dated April 23, 1991
between Tower, Limited and the Registrant
10.4* --Lease Amendment Number Three, dated January 28, 1992
between Tower, Limited and the Registrant
10.5* --Sublease Agreement dated January 5, 1996 between
Transcontinental Gas Pipe Line Corporation and Metro
Traffic Control, Inc.
10.6* --Lease Agreement dated April 18, 1990 between Transco
Tower Limited and Metro Traffic Control, Inc.
10.7* --Lease Amendment Number One dated October 19, 1988
between Transco Tower, Limited and Metro Traffic
Control, Inc.
10.8* --Lease Amendment Number Two dated January 29, 1992
between Transco Tower, Limited and Metro Traffic
Control, Inc.
10.9* --Lease Amendment Number Three dated May 28, 1992
between Transco Tower, Limited and Metro Traffic
Control, Inc.
10.10* --Employment Agreement between the Registrant and Mr.
David I. Saperstein
10.11* --Employment Agreement between the Registrant and Mr.
Charles I. Bortnick
10.12* --Employment Agreement between the Registrant and Mr.
Shane E. Coppola
10.13* --Employment Agreement between the Registrant and Mr.
Curtis H. Coleman
10.14* --Employment Agreement between the Registrant and Mr.
Gary L. Worobow
10.15* --Metro Networks, Inc. Employee Stock Purchase Plan
10.16* --1996 Incentive Stock Option Plan
10.17* --Stock Loan and Pledge Agreement between the
Registrant and David I. Saperstein
10.18* --Indemnification Agreement between the Registrant and
David I. Saperstein
10.19 --Credit Agreement among Metro Networks, Inc., certain
lenders, and NationsBank of Texas, N.A., as
Administrative Lender, dated as of October 22, 1996.
11.1 --Statement re: computation of per share earnings
21.1 --Subsidiaries of the Company.
23.1 --Consent of KPMG Peat Marwick LLP
27.1 --Financial Data Schedule
</TABLE>
- --------
(*) Incorporated by reference to the Registrant's Registration Statement on
Form S-1, Registration No. 333-6311, originally filed with the Securities
and Exchange Commission on June 19, 1996, as subsequently amended, and
declared effective on October 16, 1996.
56
<PAGE>
EXHIBIT 10.19
===============================================================================
CREDIT AGREEMENT
AMONG
METRO NETWORKS, INC.,
CERTAIN LENDERS
AND
NATIONSBANK OF TEXAS, N.A.,
AS ADMINISTRATIVE LENDER
October 22, 1996
===============================================================================
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE 1
Definitions
Section 1.1 Defined Terms 1
Section 1.2 Amendments and Renewals 16
Section 1.3 Construction 16
ARTICLE 2
Advances
Section 2.1 The Advances 16
Section 2.2 Manner of Borrowing and Disbursement 17
Section 2.3 Interest 19
Section 2.4 Fees 20
Section 2.5 Prepayment 21
Section 2.6 Reduction of Commitment 21
Section 2.7 Non-Receipt of Funds by the Administrative Lender 23
Section 2.8 Payment of Principal of Advances 23
Section 2.9 Reimbursement 23
Section 2.10 Manner of Payment 24
Section 2.11 LIBOR Lending Offices 24
Section 2.12 Sharing of Payments 25
Section 2.13 Calculation of LIBOR Rate 25
Section 2.14 Booking Loans 25
Section 2.15 Taxes 25
Section 2.16 Letters of Credit 28
ARTICLE 3
Conditions Precedent
Section 3.1 Conditions Precedent to the Initial Advance to, and
Letters of Credit on behalf of, the Borrower 34
Section 3.2 Conditions Precedent to All Advances 37
<PAGE>
ARTICLE 4
Representations and Warranties
Section 4.1 Representations and Warranties 38
Section 4.2 Survival of Representations and Warranties, etc 44
ARTICLE 5
General Covenants
Section 5.1 Preservation of Existence and Similar Matters 44
Section 5.2 Business; Compliance with Applicable Law 45
Section 5.3 Maintenance of Properties 45
Section 5.4 Accounting Methods and Financial Records 45
Section 5.5 Insurance 45
Section 5.6 Payment of Taxes and Claims 45
Section 5.7 Visits and Inspections 46
Section 5.8 Payment of Indebtedness 46
Section 5.9 Use of Proceeds 46
Section 5.10 Indemnity 46
Section 5.11 Environmental Law Compliance 47
Section 5.12 Interest Rate Hedging 48
Section 5.13 Subsidiaries 48
Section 5.14 Prior Credit Agreement 48
ARTICLE 6
Information Covenants
Section 6.1 Quarterly Financial Statements and Information 49
Section 6.2 Annual Financial Statements and Information;
Certificate of No Default 49
Section 6.3 Compliance Certificates 50
Section 6.4 Copies of Other Reports and Notices 50
Section 6.5 Notice of Litigation, Default and Other Matters 52
Section 6.6 ERISA Reporting Requirements 52
ARTICLE 7
Negative Covenants
Section 7.1 Indebtedness 54
Section 7.2 Liens 54
ii
<PAGE>
Section 7.3 Investments 55
Section 7.4 Amendment and Waiver 55
Section 7.5 Liquidation, Disposition or Acquisition of Assets,
Merger, New Subsidiaries 55
Section 7.6 Acquisitions 56
Section 7.7 Dividends 56
Section 7.8 Affiliate Transactions 57
Section 7.9 Compliance with ERISA 57
Section 7.10 Leverage Ratio 57
Section 7.11 Fixed Charges Coverage Ratio 58
Section 7.12 Debt Service Coverage Ratio 58
Section 7.13 Capital Stock of the Borrower 58
Section 7.14 Sale and Leaseback 58
Section 7.15 Sale or Discount of Receivables 58
Section 7.16 Conduct of Business 58
Section 7.17 Subordinated Debt 59
Section 7.18 Affiliate Contracts 59
ARTICLE 8
Default
Section 8.1 Events of Default 59
Section 8.2 Remedies 63
ARTICLE 9
Changes in Circumstances
Section 9.1 LIBOR Basis Determination Inadequate 63
Section 9.2 Illegality 64
Section 9.3 Increased Costs 64
Section 9.4 Effect On Prime Rate Advances 65
Section 9.5 Capital Adequacy 65
ARTICLE 10
AGREEMENT AMONG LENDERS
Section 10.1 Agreement Among Lenders 66
Section 10.2 Lender Credit Decision 68
Section 10.3 Benefits of Article 68
iii
<PAGE>
ARTICLE 11
Miscellaneous
Section 11.1 Notices 68
Section 11.2 Expenses 69
Section 11.3 Waivers 70
Section 11.4 Determination by the Lenders Conclusive and Binding 70
Section 11.5 Set-Off 71
Section 11.6 Assignment 71
Section 11.7 Counterparts 73
Section 11.8 Severability 73
Section 11.9 Interest and Charges 73
Section 11.10 Headings 74
Section 11.11 Amendment and Waiver 74
Section 11.12 Exception to Covenants 74
Section 11.13 No Liability of Issuing Bank 74
Section 11.14 Credit Agreement Governs 75
SECTION 11.15 GOVERNING LAW 75
SECTION 11.16 WAIVER OF JURY TRIAL 75
SECTION 11.17 ENTIRE AGREEMENT 75
Section 11.18 Waiver of Subrogation 76
iv
<PAGE>
Schedules and Exhibits
Schedule 1: LIBOR Lending Offices
Schedule 2: Existing Liens
Schedule 3: Existing Litigation
Schedule 4: Licenses, Permits and Other Authorizations
Schedule 5: Rights Relating to Pledged Stock
Schedule 6: Subsidiaries
Schedule 7: Existing Investments
Schedule 8: Existing Indebtedness
Exhibit A: Promissory Note
Exhibit B: Borrower Pledge Agreement
Exhibit C: Subsidiary Pledge Agreement
Exhibit D: Subsidiary Guaranty
Exhibit E: Borrower Security Agreement
Exhibit F: Subsidiary Security Agreement
Exhibit G: Compliance Certificate
Exhibit H: Assignment and Acceptance Agreement
v
<PAGE>
CREDIT AGREEMENT
THIS CREDIT AGREEMENT is dated as of October 22, 1996, among METRO
NETWORKS, INC., a Delaware corporation ("Borrower"), the Lenders from time to
time party hereto, and NATIONSBANK OF TEXAS, N.A., a national banking
association, as administrative agent for the Lenders.
BACKGROUND
The Borrower has requested that the Lenders make a credit facility
available to the Borrower up to the maximum amount of $30,000,000. The Lenders
have agreed to do so, subject to the terms and conditions set forth below.
In consideration of the mutual covenants and agreements contained herein,
and other good and valuable consideration hereby acknowledged, the parties
hereto agree as follows:
ARTICLE 1
Definitions
Section 1.1 Defined Terms. For purposes of this Agreement:
"Accounts" shall have the meaning assigned to such term in the UCC.
"Acquisition" shall mean any transaction pursuant to which the Borrower or
any Subsidiary, (i) whether by means of a capital contribution or purchase or
other acquisition of stock or other securities or other equity participation or
interest, (A) acquires more than 50% of the equity interest in any Person
pursuant to a solicitation by the Borrower or such Subsidiary of tenders of
equity securities of such Person, or through one or more negotiated block,
market, private or other transactions not involving a tender offer, or a
combination of any of the foregoing, (B) makes any corporation a Subsidiary, or
causes any corporation to be merged into the Borrower or such Subsidiary (or
agrees to be merged into any other corporation other than a wholly-owned
Subsidiary), or (C) agrees to purchase all or substantially all of the assets of
any corporation, pursuant to a merger, purchase of assets or other
reorganization providing for the delivery or issuance to the holders of such
corporation's then outstanding securities, in exchange for such securities, of
cash or securities of the Borrower or such Subsidiary, or any combination
thereof, or (ii) purchases all or substantially all of the business or assets of
any Person or of any operating division of any Person.
<PAGE>
"Acquisition Consideration" shall mean, without duplication, the
consideration given by the Borrower or any Subsidiary for an Acquisition,
including, but not limited to, the fair market
value of any cash, property, stock or services given, the amount of any
Indebtedness assumed or incurred.
"Administrative Lender" shall mean NationsBank of Texas, N.A., a national
banking association, as administrative agent for Lenders, or such successor
administrative agent appointed pursuant to Section 10.1(b) hereof.
"Advance" shall mean any amount advanced by the Lenders to the Borrower
pursuant to Article 2 hereof on the occasion of any borrowing, including without
limitation any Refinancing Advance.
"Affiliate" shall mean any Person that directly or indirectly through one
or more Subsidiaries Controls, or is Controlled By or Under Common Control with,
the Borrower.
"Affiliate Contracts" shall mean any agreements between the Borrower or any
Subsidiary and any television or radio station pursuant to which such television
or radio station agrees to broadcast the Borrower's or such Subsidiary's
traffic, news, sports, weather or similar informational reports.
"Agreement" shall mean this Credit Agreement, as amended or renewed from
time to time.
"Agreement Date" shall mean the date of this Agreement.
"Applicable Environmental Laws" shall mean applicable laws pertaining to
health or the environment, including without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended by
the Superfund Amendments and Reauthorization Act of 1986 (as amended from time
to time, "CERCLA"), the Resource Conservation and Recovery Act of 1976, as
amended by the Used Oil Recycling Act of 1980, the Solid Waste Disposal Act
amendments of 1980, and the Hazardous and Solid Waste Amendments of 1984 (as
amended from time to time, "RCRA"), the Texas Water Code, and the Texas Solid
Waste Disposal Act.
"Applicable Law" shall mean (a) in respect of any Person, all provisions of
constitutions, statutes, rules, regulations and orders of governmental bodies or
regulatory agencies applicable to such Person and its properties, including,
without limiting the foregoing, all orders and decrees of all courts and
arbitrators in proceedings or actions to which the Person in question is a
party, and (b) in respect of contracts relating to interest or finance charges
that are made or performed in the State of Texas, "Applicable Law" shall mean
the laws of the United States of America, including without limitation 12 USC
(S)(S) 85 and 86, as amended from time to time, and any other statute of the
United States of America now or at any time hereafter prescribing the maximum
rates of interest on loans and extensions of credit, and the laws of the State
of Texas, including, without limitation, Article 5069-1.04, Title 79, Revised
Civil Statutes of Texas, 1925, as amended ("Art. 1.04"), and any other statute
of the State of Texas now or at any time hereafter prescribing maximum rates of
interest on loans and extensions of credit; provided that the parties hereto
agree that the provisions
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of Chapter 15, Title 79, Revised Civil Statutes of Texas, 1925, as amended,
shall not apply to Advances, this Agreement, the Notes or any other Loan
Documents.
"Applicable Margin" shall mean the following per annum percentages,
applicable in the following situations:
Prime Rate LIBOR
Applicability Basis Basis
------------- ---------- -----
(i) If the Leverage Ratio is not less
than 1.5 to 1 0.500 1.500
(ii) If the Leverage Ratio is less than
1.5 to 1 but is not less than 1.0 to 1 0.250 1.250
(iii) If the Leverage Ratio is less than 1.0
to 1 but is not less than 0.5 to 1 0.000 1.000
(iv) If the Leverage Ratio is less than 0.5 to 1 0.000 0.750
The Applicable Margin payable by the Borrower on the Advances outstanding
hereunder shall be subject to reduction or increase, as applicable and as set
forth in the table above, on a quarterly basis according to the performance of
the Borrower as tested by the Leverage Ratio. Except as set forth in the last
sentence hereof, any such increase or reduction in the Applicable Margin
provided for herein shall be effective three Business Days after receipt by
Administrative Lender of the financial statements required to be delivered
pursuant to Section 6.1(b) or 6.2(b) hereof, as applicable. If financial
statements of the Borrower setting forth the Leverage Ratio are not received by
the Administrative Lender by the date required pursuant to Section 6.1(b) or
6.2(b) hereof, as applicable, the Applicable Margin shall be determined as if
the Leverage Ratio is not less than 1.5 to 1 until such time as such financial
statements are received. For the final quarter of any fiscal year of the
Borrower, the Borrower may provide its unaudited financial statements, subject
only to year-end adjustments, for the purpose of adjusting the Applicable
Margin. The Applicable Margin from and including the Closing Date to the date
of the initial adjustment to be made therein as provided above shall be
determined based on the Compliance Certificate delivered by the Borrower on the
Closing Date.
"Art. 1.04" shall have the meaning ascribed thereto in the definition of
"Applicable Law."
"Assignees" shall mean any assignee of a Lender pursuant to an Assignment
Agreement and shall have the meaning ascribed thereto in Section 11.6 hereof.
"Assignment Agreement" shall have the meaning ascribed thereto in Section
11.6 hereof.
"Authorized Signatory" shall mean such senior personnel of the Borrower as
may be duly authorized and designated in writing by the Borrower to execute
documents, agreements and instruments on behalf of the Borrower, and to request
Advances and Letters of Credit hereunder.
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"Borrower" shall have the meaning given such term in the introductory
paragraph of this Agreement.
"Borrower Pledge Agreement" shall mean one or more pledge agreements,
executed by the Borrower, granting a first priority Lien on (i) the Pledged
Stock owned directly by the Borrower and (ii) each Intercompany Note evidencing
intercompany advances made by the Borrower, as security for the Obligations,
substantially in the form of Exhibit B hereto, as such agreement may be amended,
modified, renewed or extended from time to time.
"Borrower Security Agreement" shall mean one or more security agreements,
executed by the Borrower, granting a first priority Lien on (i) the Accounts and
related items of the Borrower and (ii) the tangible personal property of the
Borrower, as security for the Obligations, substantially in the form of Exhibit
E hereto, as such agreement may be amended, modified, renewed or extended from
time to time.
"Business Day" shall mean a day on which banks are open for the transaction
of business as required by this Agreement in Dallas, Texas and, with respect to
any LIBOR Advance, in London, England, and as otherwise relevant to the
determination to be made or the action to be taken.
"Capital Expenditures" shall mean cash expenditures for the purchase of
tangible assets of long-term use which are capitalized in accordance with GAAP.
"Capitalized Lease Obligations" shall mean that portion of any obligation
of the Borrower or any Subsidiary as lessee under a lease which at the time
would be required to be capitalized on a balance sheet prepared in accordance
with GAAP.
"Change of Control" shall mean the occurrence of either of the following
events after the Agreement Date: (a)(i) any Person or any Persons acting
together which would constitute a "group" (a "Group") for purposes of Section
13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
or any successor provision thereto, other than the Group whose nominees
constituted a majority of the board of directors of the Borrower as of the
Agreement Date, together with any Affiliates or Related Persons thereof, shall
beneficially own (as defined in Rule 13d-3 of the Securities and Exchange
Commission under the Exchange Act or any successor provision thereto) at least
25% of the aggregate voting power of all classes of capital stock of the
Borrower entitled to vote generally in the election of directors of the Borrower
and (ii) David Saperstein shall (X) fail to own at least 25% of the aggregate
voting power of all classes of capital stock of the Borrower entitled to vote
generally in the election of directors of the Borrower or (Y) fail to be a
director of the Borrower; or (b) any Person or Group, other than any Person or
Group whose nominees constituted a majority of the board of directors of
the Borrower as of the Agreement Date, together with any Affiliates or Related
Persons thereof, shall succeed in having sufficient of its or their nominees
elected to the board of directors of the Borrower such that the nominees shall
constitute a majority of the board of directors of the Borrower.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
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"Collateral" shall mean any collateral hereafter granted by any Person to
the Administrative Lender for the benefit of the Lenders to secure the
Obligations.
"Commitment" shall mean $30,000,000, as reduced from time to time pursuant
to Section 2.6 hereof.
"Commitment Reduction Date" shall mean the last Business Day of March 1999.
"Control" or "Controlled By" or "Under Common Control" shall mean
possession, directly or indirectly, of power to direct or cause the direction of
management or policies (whether through ownership of voting securities, by
contract or otherwise); provided, however, that any Person which beneficially
owns, directly or indirectly, 5% or more (in number of votes) of the securities
(or in the case of a Person that is not a corporation, 5% or more of the equity
interest) having ordinary voting power shall be conclusively presumed to control
such Person.
"Controlled Group" shall mean, as to any Person, all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) which are under common control with such Person and which,
together with such Person, are treated as a single employer under Section
414(b), (c), (m) or (o) of the Code; provided, however, that the Subsidiaries of
the Borrower shall be deemed to be members of the Borrower's Controlled Group,
and the Borrower and any other entities (whether incorporated or not
incorporated) which are under common control with the Borrower and which,
together with the Borrower, are treated as a single employer under Section
414(b), (c), (m) or (o) of the Code, shall be deemed to be members of the
Borrower's Controlled Group on and after the Agreement Date.
"Default" shall mean an Event of Default and/or any of the events specified
in Section 8.1, regardless of whether there shall have occurred any passage of
time or giving of notice that would be necessary in order to constitute such
event an Event of Default.
"Default Rate" shall mean a simple per annum interest rate equal to the
lesser of (a) the Highest Lawful Rate, or (b) the sum of the Prime Rate Basis
plus two percent.
"Determining Lenders" shall mean, on any date of determination, any
combination of the Lenders having at least 100% of the aggregate amount of
Advances then outstanding; provided, however, that if there are no Advances
outstanding hereunder, "Determining Lenders" shall mean any combination of
Lenders whose Specified Percentages aggregate 100%. In the event that at any
time there shall be more than two Lenders, "Determining Lenders" shall mean, on
any date of determination, any combination of the Lenders having at least 66-
2/3% of the aggregate amount of the Advances then outstanding; provided,
however, that if there are no Advances outstanding hereunder, "Determining
Lenders" shall mean any combination of Lenders whose Specified Percentages
aggregate at least 66-2/3%.
"Dividend" shall mean, as to any Person, (a) any payment of any dividend
(other than a stock dividend) on, or the making of any distribution, loan,
advance or investment to or in any holder of,
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any shares of capital stock of such Person and with respect to such shares, or
(b) any purchase, redemption, or other acquisition or retirement for value of
any shares of capital stock of such Person.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any regulation promulgated thereunder.
"ERISA Event" shall mean, with respect to the Borrower and its
Subsidiaries, (a) a Reportable Event (other than a Reportable Event not subject
to the provision for 30-day notice to the PBGC under regulations issued under
Section 4043 of ERISA), (b) the withdrawal of any such Person or any member of
its Controlled Group from a Plan during a plan year in which it was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA, (c) the filing
of a notice of intent to terminate under Section 4041 of ERISA, (d) the
institution of proceedings to terminate a Plan by the PBGC, (e) the failure to
make required contributions which could result in the imposition of a lien under
Section 412 of the Code or Section 302 of ERISA, or (f) any other event or
condition which might reasonably be expected to constitute grounds under Section
4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan or the imposition of any liability under Title IV of ERISA
other than PBGC premiums due but not delinquent under Section 4007 of ERISA.
"Event of Default" shall mean any of the events specified in Section 8.1,
provided that any requirement for notice or lapse of time has been satisfied.
"Excess Cash Flow" shall mean, for any year, calculated for the Borrower
and its Subsidiaries on a combined basis, an amount equal to the remainder of
(a) Operating Cash Flow for said year, minus (b) the sum of (i) Capital
Expenditures for said year, plus (ii) cash expenditures for the payment of taxes
during said year, plus (iii) principal, interest, fees, and other amounts
scheduled to be paid for said year with respect to Indebtedness.
"Federal Funds Rate" shall mean, for any day, the rate per annum (rounded
upwards if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day, provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate quoted to the
Administrative Lender on such day on such transactions as determined by
Administrative Lender.
"Fixed Charges" shall mean, for the Borrower and the Subsidiaries on a
combined basis determined in accordance with GAAP, for the four most recently
ended fiscal quarters preceding any date of determination, an amount equal to
the sum of (a) all payments of principal, interest, fees and other amounts paid
on all Indebtedness, plus (b) all payments under Capitalized Leases, plus (c)
all Capital Expenditures, plus (d) cash expenditures for the payment of taxes.
For purpose of
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calculation of Fixed Charges with respect to any Subsidiary not owned at all
times during the four fiscal quarters preceding the date of determination of
Fixed Charges there shall be (i) included in Fixed Charges the Fixed Charges of
any Subsidiary acquired during any of such four fiscal quarters for the twelve
month period preceding the date of determination and (ii) excluded from Fixed
Charges the Fixed Charges of any Subsidiary disposed of during any of such four
fiscal quarters for the twelve month period preceding the date of determination.
"GAAP" shall mean generally accepted accounting principles applied on a
consistent basis, set forth in the Opinions of the Accounting Principles Board
of the American Institute of Certified Public Accountants, or the successors
which are applicable in the circumstances as of the date in question. The
requisite that such principles be applied on a consistent basis shall mean that
the accounting principles observed in a current period are comparable in all
material respects to those applied in a preceding period.
"Governmental Authority" shall mean (a) the government of (i) the United
States of America and any State or other political subdivision thereof or (ii)
any jurisdiction in which the Borrower or any Subsidiary conducts all or any
part of its business or owns any property or (b) any entity exercising
executive, legislative, judicial, regulatory or administrative functions of, or
pertaining to, any such government.
"Guaranty" or "Guaranteed", as applied to an obligation, shall mean and
include (a) a guaranty, direct or indirect, in any manner, of any part or all of
such obligation, and (b) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of nonperformance) of any part
or all of such obligation.
"Highest Lawful Rate" shall mean at the particular time in question the
maximum rate of interest which, under Applicable Law, the Lenders are then
permitted to charge on the Obligations. If the maximum rate of interest which,
under Applicable Law, the Lenders are permitted to charge on the Obligations
shall change after the Agreement Date, the Highest Lawful Rate shall be
automatically increased or decreased, as the case may be, from time to time as
of the effective time of each change in the Highest Lawful Rate without notice
to the Borrower. For purposes of determining the Highest Lawful Rate under the
Applicable Law of the State of Texas, the applicable rate ceiling shall be (a)
the indicated rate ceiling described in and computed in accordance with the
provisions of Section (a)(1) of Art. 1.04, or (b) if the parties subsequently
contract as allowed by Applicable Law, the quarterly ceiling or the
annualized ceiling computed pursuant to Section (d) of Art. 1.04; provided,
however, that at any time the indicated rate ceiling, the quarterly ceiling or
the annualized ceiling shall be less than 18% per annum or more than 24% per
annum, the provisions of Sections (b)(1) and (2) of said Art. 1.04 shall control
for purposes of such determination, as applicable.
"Indebtedness" shall mean, with respect to any Person, (a) all items,
except items of partners' equity or of capital stock or of surplus or of general
contingency or deferred tax reserves, which in accordance with GAAP would be
included in determining total liabilities as shown on the liability
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side of a balance sheet of such Person, (b) the market value of any property or
asset owned by such Person on which a Lien has been granted to secure any
obligation, whether or not the obligation secured thereby shall have been
assumed, (c) to the extent not otherwise included, all Capitalized Lease
Obligations of such Person, all obligations of such Person with respect to
leases constituting part of a sale and leaseback arrangement, all Guaranties,
all obligations under Interest Hedge Agreements or similar hedge agreements, all
indebtedness for borrowed money (excluding, for purposes of calculation of
financial covenants only, indebtedness evidenced by Intercompany Notes), and all
reimbursement obligations with respect to outstanding letters of credit, (d) any
"withdrawal liability" of the Borrower or Subsidiary, as such term is defined
under Part I of Subtitle E of Title IV of ERISA, and (e) all Seller Obligations
of the Borrower or Subsidiary.
"Indemnified Matters" shall have the meaning ascribed to it in Section
5.10(a) hereof.
"Indemnitees" shall have the meaning ascribed to it in Section 5.10(a)
hereof.
"Intercompany Notes" shall mean any promissory note executed by any
Subsidiary made payable to the order of the Borrower in the original principal
amount not to exceed $30,000,000 evidencing loans and advances made or to be
made by the Borrower to such Subsidiary, together with any extension, renewal,
increase or amendment thereof, or substitution therefor.
"Interest Hedge Agreements" shall mean any and all agreements, devices or
arrangements designed to protect at least one of the parties thereto from the
fluctuations of interest rates, exchange rates or forward rates applicable to
such party's assets, liabilities or exchange transactions, including, but not
limited to, dollar-denominated or cross-currency interest rate exchange
agreements, forward currency exchange agreements, interest rate cap or collar
protection agreements, forward rate currency or interest rate options, puts and
warrants, as the same may be amended or modified and in effect from time to
time, and any and all cancellations, buy backs, reversals, terminations or
assignments of any of the foregoing.
"Interest Period" shall mean (a) for any Prime Rate Advance, the period
beginning on the day the Advance was made and ending on the first Quarterly Date
thereafter, and (b) for any LIBOR Advance, the period beginning on the day the
Advance is made and ending one, two, three, six months or, to the extent
available, twelve months thereafter (as the Borrower shall select).
"Investment" shall mean any acquisition of all or substantially all assets
of any Person, or any direct or indirect purchase or other acquisition of, or
beneficial interest in, capital stock or other securities of any other Person,
or any direct or indirect loan, advance (other than advances to employees for
moving and travel expenses, drawing accounts and similar expenditures in the
ordinary course of business) or capital contribution to, or investment in any
other Person, including without limitation the incurrence or sufferance of
Indebtedness or the purchase (other than purchases in connection with an
Acquisition) of accounts receivable of any other Person that are not current
assets or do not arise in the ordinary course of business, which is not an
Acquisition.
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"Issuing Bank" shall mean NationsBank of Texas, N.A., in its capacity as
issuer of the Letters of Credit.
"Lender" shall mean each financial institution shown on the signature pages
hereof so long as such financial institution maintains a Commitment or is owed
any part of the Obligations (including the Administrative Lender in its
individual capacity), and each Assignee that hereafter becomes party hereto
pursuant to Section 11.6 hereof.
"L/C Cash Collateral Account" shall have the meaning specified in Section
2.16(g) hereof.
"L/C Related Documents" shall have the meaning specified in Section 2.16(d)
hereof.
"Letter of Credit" shall have the meaning specified in Section 2.16(a)
hereof.
"Letter of Credit Agreement" shall have the meaning specified in Section
2.16(b) hereof.
"Letter of Credit Facility" shall mean the amount of the Letters of Credit
the Issuing Bank may issue pursuant to Section 2.16(a) hereof.
"Leverage Ratio" shall mean, for any date of determination, the ratio of
Total Debt as of the date of determination to Operating Cash Flow for the four
most recently ended fiscal quarters preceding such date of determination.
"LIBOR Advance" shall mean an Advance which the Borrower requests to be
made as a LIBOR Advance or which is reborrowed as a LIBOR Advance, in accordance
with the provisions of Section 2.2 hereof.
"LIBOR Basis" shall mean a simple per annum interest rate equal to the
lesser of (a) the Highest Lawful Rate, or (b) the sum of the LIBOR Rate plus the
Applicable Margin. The LIBOR Basis shall, with respect to LIBOR Advances with
Interest Periods in excess of six months, be subject to premiums assessed by
each Lender, which are payable directly to each Lender. Once determined, the
LIBOR Basis shall remain unchanged during the applicable Interest Period.
"LIBOR Lending Office" shall mean, with respect to a Lender, the office
designated as its LIBOR Lending Office on Schedule 1 attached hereto, and such
other office of the Lender or any of its affiliates hereafter designated by
notice to the Borrower and the Administrative Lender.
"LIBOR Rate" means, for any LIBOR Advance for any Interest Period therefor,
the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in Dollars at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period. If for any reason such rate is not
available, the term "LIBOR Rate" shall mean, for any LIBOR Advance for any
Interest Period therefor, the rate per annum (rounded upwards, if necessary, to
the nearest 1/100th of 1%) appearing on Reuters Screen LIBO
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Page as the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period; provided,
however, if more than one rate is specified on Reuters Screen LIBO Page, the
applicable rate shall be the arithmetic mean of all such rates.
"Lien" shall mean, with respect to any property, any mortgage, lien,
pledge, collateral assignment, hypothecation, charge, security interest, title
retention agreement, levy, execution, seizure, attachment, garnishment or other
encumbrance of any kind in respect of such property, whether or not choate,
vested or perfected.
"Loan Documents" shall mean this Agreement, the Notes, the Pledge
Agreements, the Subsidiary Guaranties, the Security Agreements, any Interest
Hedge Agreement, with any of the Lenders, fee letters, and any other document,
agreement or instrument executed or delivered from time to time by the Borrower,
any Subsidiary or any other Person in connection herewith or as security for the
Obligations.
"Material Adverse Effect" shall mean any act or circumstance or event which
(a) causes a Default, (b) otherwise could be material and adverse to the
business, consolidated assets, liabilities, financial condition, results of
operations or prospects of the Borrower and the Subsidiaries, together taken as
a whole, (c) in any material manner could adversely affect the validity or
enforceability of any of the Loan Documents, or (d) in any manner could impair
the value of any Collateral.
"Maturity Date" shall mean the last Business Day of December 2003.
"Maximum Amount" shall mean the maximum amount of interest which, under
Applicable Law, the Lenders are permitted to charge on the Obligations.
"Multiemployer Plan" shall mean, as to any Person, at any time, a
"multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA and to
which such Person or any member of its Controlled Group is making, or is
obligated to make contributions or has made, or been obligated to make,
contributions.
"Necessary Authorization" shall mean any license, permit, consent, approval
or authorization from, or any filing or registration with, any governmental or
other regulatory authority necessary or appropriate to enable the Borrower or
Subsidiary to maintain and operate its business and properties.
"Net Cash Proceeds" shall mean the net proceeds received by the Borrower in
connection with or as a result of any initial public offering of its capital
stock, minus the sum of reasonable out-of-pocket costs and expenses (including
underwriting fees) in connection with such initial public offering.
"Note" shall mean each promissory note of the Borrower evidencing Advances
hereunder, substantially in the form of Exhibit A hereto, together with any
extension, renewal or amendment thereof, or substitution therefor.
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"Obligations" shall mean (a) all obligations of any nature (whether matured
or unmatured, fixed or contingent, including the Reimbursement Obligations) of
the Borrower and the Subsidiaries to the Lenders under the Loan Documents
(including obligations under any Interest Hedge Agreement to any Lender), as
they may be amended from time to time, and (b) all obligations of the Borrower
and the Subsidiaries for losses, damages, expenses or any other liabilities of
any kind that any Lender may suffer by reason of a breach by the Borrower or any
Subsidiary of any obligation, covenant or undertaking with respect to any Loan
Document.
"Operating Cash Flow" shall mean, for any period, determined in accordance
with GAAP on a combined basis for the Borrower and the Subsidiaries, the sum of
(a) pre-tax net income (pre-tax net income shall exclude (i) any items of
extraordinary gain, including net gains on the sale of assets other than asset
sales in the ordinary course of business, (ii) any items of extraordinary loss,
including net losses on the sale of assets other than asset sales in the
ordinary course of business, (iii) non-cash credits to the extent included in
net income, and (iv) any Seller Obligations to the extent such Seller
Obligations are treated as an expense and not a liability according to GAAP),
plus (b) interest expense, depreciation and amortization, and other non-cash
expenses. For purpose of calculation of Operating Cash Flow with respect to
assets not owned at all times during the four fiscal quarters preceding the date
of determination of Operating Cash Flow there shall be (i) included in Operating
Cash Flow the Operating Cash Flow of any assets acquired during any of such four
fiscal quarters for the twelve month period preceding the date of determination
and (ii) excluded from Operating Cash Flow the Operating Cash Flow of any assets
disposed of during any of such four fiscal quarters for the twelve month period
preceding the date of determination.
"Participant" shall have the meaning ascribed to it in Section 11.6(c)
hereof.
"Participation" shall have the meaning ascribed to it in Section 11.6(c)
hereof.
"Payment Date" shall mean the last day of the Interest Period for any
Advance.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Liens" shall mean, as applied to any Person:
(a) any Lien in favor of the Lenders to secure the Obligations hereunder;
(b) (i) Liens on real estate for real estate taxes not yet delinquent, (ii)
Liens created by lease agreements to secure the payments of rental amounts and
other sums not yet due thereunder, (iii) Liens on leasehold interests created by
the lessor in favor of any mortgagee of the leased premises, and (iv) Liens for
taxes, assessments, governmental charges, levies or claims that are being
diligently contested in good faith by appropriate proceedings and for which
adequate reserves shall have been set aside on such Person's books, but only so
long as no foreclosure, restraint, sale or similar proceedings have been
commenced with respect thereto;
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(c) Liens of carriers, warehousemen, mechanics, laborers and materialmen
and other similar Liens incurred in the ordinary course of business for sums not
yet due or being contested in good faith, if such reserve or appropriate
provision, if any, as shall be required by GAAP shall have been made therefor;
(d) Liens incurred in the ordinary course of business in connection with
worker's compensation, unemployment insurance or similar legislation;
(e) Easements, right-of-way, restrictions and other similar encumbrances on
the use of real property which do not interfere with the ordinary conduct of the
business of such Person;
(f) Liens created to secure Indebtedness permitted by Section 7.1(f) hereof
which is incurred solely for the purpose of financing the acquisition of such
assets and incurred at the time of acquisition, so long as (i) each such Lien
shall at all times be confined solely to the asset or assets so acquired (and
proceeds thereof), and refinancings thereof and (ii) the amount of Indebtedness
related thereto does not result in a violation of Section 7.1(f) hereof;
(g) Liens in respect of judgments or awards for which appeals or
proceedings for review are being prosecuted and in respect of which a stay of
execution upon any such appeal or proceeding for review shall have been secured,
provided that (i) such Person shall have established adequate reserves for such
judgments or awards, (ii) such judgments or awards shall be fully insured and
the insurer shall not have denied coverage, or (iii) such judgments or awards
shall have been bonded to the satisfaction of the Determining Lenders; and
(h) Any Liens existing on the Agreement Date which are described on
Schedule 2 hereto, and Liens resulting from the refinancing of the related
Indebtedness, provided that the Indebtedness secured thereby shall not be
increased and the Liens shall not cover additional assets of the Borrower or the
Subsidiaries.
"Person" shall mean an individual, corporation, partnership, trust or
unincorporated organization, or a government or any agency or political
subdivision thereof.
"Plan" shall mean an employee pension benefit plan as defined in Section
3(2) of ERISA (including a Multiemployer Plan) that is covered by Title IV of
ERISA or subject to the minimum funding standards under Section 412 of the Code
and is maintained for the employees of the Borrower, its Subsidiaries or any
member of their Controlled Group.
"Pledge Agreements" shall mean the Borrower Pledge Agreements and the
Subsidiary Pledge Agreements.
"Pledged Stock" shall mean the equity interests in each Subsidiary of the
Borrower, including, without limitation, the shares of each class of capital
stock of any Subsidiary that is a corporation and partnership interests (general
and limited) in any Subsidiary that is a partnership.
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"Prime Rate" shall mean, at any time, the prime interest rate announced or
published by the Administrative Lender from time to time as its reference rate
for the determination of interest rates for loans of varying maturities in
United States dollars to United States residents of varying degrees of
creditworthiness and being quoted at such time by the Administrative Lender as
its "prime rate;" it being understood that such rate may not be the lowest rate
of interest charged by the Administrative Lender.
"Prime Rate Advance" shall mean any Advance bearing interest at the Prime
Rate Basis.
"Prime Rate Basis" shall mean, for any day, a per annum interest rate equal
to the lesser of (a) the Highest Lawful Rate on such day, or (b) the higher of
(i) the sum of (A) 0.50% plus (B) the Federal Funds Rate plus (C) the Applicable
Margin, or (ii) the sum of (A) the Prime Rate on such day plus (B) the
Applicable Margin. The Prime Rate Basis shall be adjusted automatically as of
the opening of business on the effective date of each change in the Prime Rate
or Federal Funds Rate, as the case may be, to account for such change.
"Prior Credit Agreement" shall mean that certain Credit Agreement dated as
of October 21, 1994, among Metro Traffic Control, Inc., Metro Networks, Ltd.,
the lenders party thereto, and NationsBank of Texas, N.A., as Administrative
Lender, as amended or modified from time to time.
"Pro-Forma Debt Service" shall mean, as of any date of determination,
determined in accordance with GAAP for the Borrower and the Subsidiaries on a
combined basis, the sum (without duplication) of all payments of principal,
interest, fees and other amounts scheduled to be paid on all Indebtedness during
the succeeding four fiscal quarters (assuming for any Indebtedness subject to a
floating interest rate, an interest rate equal to the applicable rate in effect
on the date of determination).
"Quarterly Date" shall mean the last Business Day of each September,
December, March and June, beginning December, 1996.
"Refinancing Advance" shall mean any Advance which is used to pay the
principal amount (or any portion thereof) of an Advance at the end of its
Interest Period and which, after giving effect to such application, does not
result in an increase in the aggregate amount of outstanding Advances.
"Reimbursement Obligation" shall mean, in respect of any Letter of Credit
as at any date of determination, the maximum aggregate amount which is then
available to be drawn under such Letter of Credit.
"Related Person" shall mean (a) any Affiliate of the Borrower, (b) any
individual or entity who directly or indirectly holds 10% or more of any class
of capital stock of the Borrower, (c) any relative of such individual by blood,
marriage or adoption not more remote than first cousin and (d) any officer or
director of the Borrower.
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"Release Date" shall mean the date on which the Notes have been paid, all
other Obligations due and owing have been paid and performed in full, and the
Commitment has been terminated.
"Reportable Event" shall have the meaning set forth in Title IV of ERISA.
"Security Agreements" shall mean the Borrower Security Agreements and the
Subsidiary Security Agreements.
"Seller Obligations" shall mean all unconditional obligations to pay a sum
certain, of the Borrower or Subsidiary in respect of an Acquisition, whether or
not such obligations arise under a non-competition agreement, management
agreement, employment contract, earn-out or under any other agreement.
"Solvent" shall mean, with respect to any Person, that the fair value of
the assets of such Person (both at fair valuation and at present fair saleable
value) is, on the date of determination, greater than the total amount of
liabilities (including contingent and unliquidated liabilities) of such Person
as of such date and that, as of such date, such Person is able to pay all
liabilities of such Person as such liabilities mature and such Person does not
have unreasonably small capital with which to carry on its business. In
computing the amount of contingent or unliquidated liabilities at any time, such
liabilities will be computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability discounted to present value
at rates believed to be reasonable by such Person.
"Special Counsel" shall mean the law firm of Donohoe, Jameson & Carroll,
P.C., or such other legal counsel as the Administrative Lender may select.
"Specified Percentage" shall mean, as to any Lender, the percentage
indicated beside its name on the signature pages hereof, or if applicable,
specified in its most recent Assignment Agreement.
"Subordinated Debt" shall mean any Indebtedness of the Borrower or
Subsidiary which shall have been and continues to be, validly and effectively
subordinated to the prior payment of the Obligations on terms and documentation
approved in writing by the Determining Lenders.
"Subsidiary" shall mean (a) any corporation of which 50% or more of the
outstanding stock (other than directors' qualifying shares) having ordinary
voting power to elect a majority of its board of directors, regardless of the
existence at the time of a right of the holders of any class of securities of
such corporation to exercise such voting power by reason of the happening of any
contingency, is at the time owned by the Borrower, directly or through one or
more intermediaries, and (b) any other entity which is Controlled or then
capable of being Controlled by the Borrower, directly or through one or more
intermediaries.
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"Subsidiary Guaranty" shall mean any Guaranty executed by one or more
Subsidiaries, guarantying payment and performance of the Obligations,
substantially in the form of Exhibit D hereto, as such agreement may be amended,
modified, renewed or extended from time to time.
"Subsidiary Pledge Agreement" shall mean one or more Pledge Agreements
executed by a Subsidiary, granting a first priority Lien on (i) the Pledged
Stock owned by such Subsidiary and (ii) each Intercompany Note evidencing
intercompany advances made by such Subsidiary, as security for the Obligations,
substantially in the form of Exhibit C hereto, as such agreement may be amended,
modified, renewed or extended from time to time.
"Subsidiary Security Agreement" shall mean one or more security agreements,
executed by a Subsidiary, granting a first priority Lien on (i) the Accounts and
related items of such Subsidiary and (ii) the tangible personal property of such
Subsidiary, as security for the Obligations, substantially in the form of
Exhibit F hereto, as such agreement may be amended, modified, renewed or
extended from time to time.
"Subsidiaries' Business" shall mean the communications, broadcasting
(including, but not limited to, traffic, news, sports and weather reports on
radio and television stations), media, information services, and advertising and
activities related thereto.
"Tax" shall mean all taxes, assessments, imposts, fees, or other charges at
any time imposed by any laws or any state, commonwealth, federal, foreign,
international or other court or government body, subdivision, agency,
department, commission, board, bureau, or instrumentality of a governmental
body.
"Termination Event" shall mean, with respect to the Borrower, any
Subsidiary, or any Plan, (a) a Reportable Event, (b) the withdrawal from a Plan
during a Plan year in which it was a "substantial employer" as defined in
Section 4001(a)(2) of ERISA, (c) the filing of a notice of intent to terminate a
Plan or the treatment of a Plan amendment as a termination under Section 4041 of
ERISA, (d) the institution of proceedings by the Pension Benefit Guaranty
Corporation to terminate a Plan or appoint a trustee to administer a Plan, (e)
the failure to comply with the minimum funding requirements of ERISA with
respect to any Plan, or (f) any other event or condition which might constitute
grounds under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Plan.
"Total Debt" shall mean, as of any date of determination, determined for
the Borrower and the Subsidiaries on a combined basis, the sum (without
duplication and excluding debt evidenced by Intercompany Notes) of (a) all
principal and interest owing under the Loan Documents, (b) all debt evidenced by
a promissory note or otherwise representing borrowed money, (c) all Capitalized
Lease Obligations, (d) all Guaranties, (e) all reimbursement obligations for
letters of credit, and (f) all Seller Obligations.
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Section 1.2 Amendments and Renewals. Each definition of an agreement in
this Article 1 shall include such agreement as amended to date, and as amended
or renewed from time to time in accordance with its terms, but only with the
prior written consent of the Determining Lenders.
Section 1.3 Construction. The terms defined in this Article 1 (except as
otherwise expressly provided in this Agreement) for all purposes shall have the
meanings set forth in Section 1.1 hereof, and the singular shall include the
plural, and vice versa, unless otherwise specifically required by the context.
All accounting terms used in this Agreement which are not otherwise defined
herein shall be construed in accordance with GAAP on a combined basis for the
Borrower and the Subsidiaries, unless otherwise expressly stated herein. For
the purpose of calculating Excess Cash Flow and the financial ratios set forth
in Sections 7.10, 7.11 and 7.12 hereof, such calculations shall be based solely
on cash financial statements without inclusion of any barter transactions.
ARTICLE 2
Advances
Section 2.1 The Advances. Each Lender severally agrees, upon the terms
and subject to the conditions of this Agreement, to make Advances to the
Borrower from time to time in an aggregate amount not to exceed its Specified
Percentage of the Commitment less its Specified Percentage of the Reimbursement
Obligations then outstanding (assuming compliance with all conditions to
drawing) for the purposes set forth in Section 5.9 hereof. Subject to Section
2.9 hereof, Advances may be repaid and then reborrowed. Any Advance shall, at
the option of the Borrower as provided in Section 2.2 hereof (and, in the case
of LIBOR Advances, subject to availability and to the provisions of Article 9
hereof), be made as a Prime Rate Advance or a LIBOR Advance; provided that there
shall not be outstanding to any Lender, at any one time, more than six LIBOR
Advances. Notwithstanding any provision in any Loan Document to the contrary, in
no event shall the principal amount of all outstanding Advances and
Reimbursement Obligations exceed the Commitment. On the Maturity Date unless
sooner paid as provided herein, the Obligations shall be repaid in full.
Section 2.2 Manner of Borrowing and Disbursement.
(a) In the case of Prime Rate Advances, the Borrower, through an Authorized
Signatory, shall give the Administrative Lender at least one Business Days'
irrevocable written notice, or irrevocable telephonic notice followed
immediately by written notice (provided, however, that the Borrower's failure to
confirm any telephonic notice in writing shall not invalidate any notice so
given), of the Borrower's intention to borrow or reborrow a Prime Rate Advance
hereunder. Notice shall be given to the Administrative Lender prior to 11:00
a.m., Dallas, Texas time, in order for such Business Day to count toward the
minimum number of Business Days required. Such notice of borrowing shall
specify the requested funding date, which shall be a Business Day, and the
amount of the proposed aggregate Prime Rate Advances to be made by Lenders.
Each Prime Rate Advance
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shall have an Interest Period beginning on the date such Advance is made and
ending on the Quarterly Date next following the date the Advance is made;
provided that no such Interest Period shall extend past the Maturity Date.
(b) In the case of (i) LIBOR Advances other than the initial LIBOR Advance,
the Borrower, through an Authorized Signatory, shall give the Administrative
Lender at least three Business Days' irrevocable written notice, or irrevocable
telephonic notice followed immediately by written notice (provided, however,
that the Borrower's failure to confirm any telephonic notice in writing shall
not invalidate any notice so given), of the Borrower's intention to borrow or
reborrow a LIBOR Advance hereunder and (ii) the initial LIBOR Advance, the
Borrower, through an Authorized Signatory, shall give the Administrative Lender
at least two Business Days' irrevocable written notice, or irrevocable
telephonic notice followed immediately by written notice (provided, however,
that the Borrower's failure to confirm any telephonic notice in writing shall
not invalidate any notice so given), of the Borrower's intention to borrow or
reborrow a LIBOR Advance hereunder. Notice shall be given to the Administrative
Lender prior to 11:00 a.m., Dallas, Texas time, in order for such Business Day
to count toward the minimum number of Business Days required. LIBOR Advances
shall in all cases be subject to availability and to Article 9 hereof. For
LIBOR Advances, the notice of borrowing shall specify the requested funding
date, which shall be a Business Day, the amount of the proposed aggregate LIBOR
Advances to be made by Lenders and the Interest Period of the proposed aggregate
LIBOR Advances, provided that no such Interest Period shall extend past the
Maturity Date or prohibit or impair the Borrower's ability to comply with
Section 2.8 hereof.
(c) Subject to Sections 2.1 and 2.9 hereof, at least three Business Days
prior to each Payment Date for a LIBOR Advance, the Borrower, through an
Authorized Signatory, shall give the Administrative Lender irrevocable written
notice, or irrevocable telephonic notice followed immediately by written notice
(provided, however, that the Borrower's failure to confirm any telephonic notice
in writing shall not invalidate any notice so given), specifying whether all or
a portion of such LIBOR Advance outstanding on the Payment Date (i) is to be
repaid and then reborrowed in whole or in part as a LIBOR Advance, (ii) is to be
repaid and then reborrowed in whole or in part as a Prime Rate Advance, or (iii)
is to be repaid and not reborrowed; provided, however, notwithstanding anything
in this Agreement to the contrary, if on any Payment Date a Default shall exist,
such LIBOR Advance may only be reborrowed as a Prime Rate Advance. Upon such
Payment Date, such LIBOR Advance shall, subject to the provisions hereof, be so
repaid and, as applicable, reborrowed.
(d) Subject to Sections 2.1 and 2.9 hereof, upon at least one Business
Day's irrevocable prior written notice (or three Business Days if the Borrower
wishes to reborrow a LIBOR Advance), the Borrower, through an Authorized
Signatory, or irrevocable telephonic notice followed immediately by written
notice (provided, however, that the Borrower's failure to confirm any telephonic
notice in writing shall not invalidate any notice so given), the Borrower may
repay a Prime Rate Advance on its Payment Date, or prepay a Prime Rate Advance
without regard to its Payment Date, and (i) reborrow all or a portion of the
principal amount thereof as a Prime Rate Advance, (ii) reborrow all or a portion
of the principal amount thereof as one or more LIBOR
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Advances, or (iii) not reborrow all or any portion of such Prime Rate Advance.
Upon such Payment Date or date of repayment, such Prime Rate Advance shall,
subject to the provisions hereof, be so repaid and, as applicable, reborrowed.
(e) The aggregate amount of Prime Rate Advances to be made by the Lenders
on any day shall be in a principal amount which is at least $50,000 and which is
an integral multiple of $10,000; provided, however, that such amount may equal
the unused amount of the Commitment. The aggregate amount of LIBOR Advances
having the same Interest Period and to be made by the Lenders on any day shall
be in a principal amount which is at least $250,000 and which is an integral
multiple of $50,000.
(f) The Administrative Lender shall promptly notify the Lenders of each
notice received from the Borrower pursuant to this Section. Failure of the
Borrower to give any notice in accordance with Sections 2.2(c) and (d) hereof
shall result in a repayment of any such existing Advance on the applicable
Payment Date by a Refinancing Advance which is a Prime Rate Advance. Each
Lender shall, not later than noon, Dallas, Texas time, on the date of any
Advance that is not a Refinancing Advance, deliver to the Administrative Lender,
at its address set forth herein, such Lender's Specified Percentage of such
Advance in immediately available funds in accordance with the Administrative
Lender's instructions. Prior to 2:00 p.m., Dallas, Texas time, on the date of
any Advance hereunder, the Administrative Lender shall, subject to satisfaction
of the conditions set forth in Article 3, disburse the amounts made available to
the Administrative Lender by the Lenders by (i) transferring such amounts by
wire transfer pursuant to the Borrower's instructions, or (ii) in the absence of
such instructions, crediting such amounts to the joint account of the Borrower
maintained with the Administrative Lender. All Advances shall be made by each
Lender according to its Specified Percentage.
Section 2.3 Interest.
(a) On Prime Rate Advances.
(i) The Borrower shall pay interest on the outstanding unpaid
principal amount of each Prime Rate Advance, from the date such Advance is
made until it is due (whether at maturity, by reason of acceleration, by
scheduled reduction, or otherwise) or repaid, at a simple interest rate per
annum equal to the Prime Rate Basis as in effect from time to time,
provided that interest on Prime Rate Advances shall not exceed the Maximum
Amount. If at any time the Prime Rate Basis would exceed the Highest
Lawful Rate, interest payable on Prime Rate Advances shall be limited to
the Highest Lawful Rate, but the Prime Rate Basis shall not thereafter be
reduced below the Highest Lawful Rate until the total amount of interest
accrued on such Advances equals the amount of interest that would have
accrued if the Prime Rate Basis had been in effect at all times.
(ii) Interest on each Prime Rate Advance shall be computed on the
basis of a year of 365 or 366 days, as applicable, for the number of days
actually elapsed, and shall be payable in arrears on each Quarterly Date
and on the Maturity Date.
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(b) On LIBOR Advances.
(i) The Borrower shall pay interest on the unpaid principal amount of
each LIBOR Advance, from the date such Advance is made until it is due
(whether at maturity, by reason of acceleration, by scheduled reduction, or
otherwise) or repaid, at a rate per annum equal to the LIBOR Basis for such
Advance. The Administrative Lender, whose determination shall be
conclusive, shall determine the LIBOR Basis on the second Business Day
prior to the applicable funding date and shall notify the Borrower and the
Lenders of such LIBOR Basis.
(ii) Subject to Section 11.9 hereof, interest on each LIBOR Advance
shall be computed on the basis of a 360-day year for the actual number of
days elapsed, and shall be payable in arrears on the applicable Payment
Date and on the Maturity Date; provided, however, that if the Interest
Period for such Advance exceeds three months, interest shall also be due
and payable in arrears on each Quarterly Date during such Interest Period.
(c) Interest if No Notice of Selection of LIBOR Basis or Interest Period.
If the Borrower fails to give the Administrative Lender timely notice of the
Borrower's selection of a LIBOR Basis for a LIBOR Advance, or if for any reason
a determination of a LIBOR Basis for any Advance is not timely concluded due to
the fault of the Borrower, the Prime Rate Basis shall apply to the applicable
Advance. If the Borrower fails to give the Administrative Lender timely notice
of the Borrower's selection of an Interest Period for a LIBOR Advance, a one-
month Interest Period shall apply to the applicable Advance.
(d) Interest After an Event of Default. (i) After an Event of Default
(other than an Event of Default specified in Section 8.1(g) or (h) hereof) and
during any continuance thereof, at the option of Determining Lenders, and (ii)
after an Event of Default specified in Section 8.1(g) or (h) hereof and during
any continuance thereof, automatically and without any action by the
Administrative Lender or any Lender, the Obligations shall bear interest at a
rate per annum equal to the Default Rate. Such interest shall be payable on the
earlier of demand or the Maturity Date, and shall accrue until the earlier of
(i) waiver or cure (to the satisfaction of the Determining Lenders) of the
applicable Event of Default, (ii) agreement by the Lenders to rescind the
charging of interest at the Default Rate, or (iii) payment in full of the
Obligations. The Lenders shall not be required to accelerate the maturity of
the Advances, to exercise any other rights or remedies under the Loan Documents,
or to give notice to the Borrower of the decision to charge interest at the
Default Rate. The Lenders will undertake to notify the Borrower, after the
effective date, of the decision to charge interest at the Default Rate.
Section 2.4 Fees.
(a) Commitment Fee. Subject to Section 11.9 hereof, the Borrower agrees to
pay to the Administrative Lender, for the ratable account of the Lenders, a
commitment fee from the Agreement Date through the end of the fiscal quarter
immediately preceding any fiscal quarter
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during which outstanding Advances exceed $10,000,000 in aggregate amount at any
one time, equal to the sum of (i) 0.25% per annum times the remainder of (x)
$10,000,000 minus (y) the daily average Advances outstanding during such fiscal
quarter plus (ii) 0.1875% per annum times $20,000,000. If at any time
outstanding Advances exceed $10,000,000 in aggregate amount, the Borrower agrees
to pay to the Administrative Lender, for the ratable account of the Lenders, a
commitment fee for the fiscal quarter in which outstanding Advances exceed
$10,000,000 and thereafter equal to 0.25% per annum of the daily unborrowed
balance of the Commitment. Such fees shall be (i) payable in arrears on each
Quarterly Date and the Maturity Date, fully earned when due and, subject to
Section 11.9 hereof, nonrefundable when paid and (ii) subject to Section 11.9
hereof, computed on the basis of a year of 360 days for the actual number of
days elapsed. For purposes of calculating the commitment fee, any Reimbursement
Obligations outstanding from time to time will reduce the unused portion of the
Commitment.
(b) Other Fees. Subject to Section 11.9 hereof, the Borrower agrees to pay
directly to Administrative Lender the fees on the dates and in the amounts
provided for in a fee letter between the Borrower and Administrative Lender.
Such fees shall be fully earned when due and, subject to Section 11.9 hereof,
nonrefundable when paid.
Section 2.5 Prepayment.
(a) Voluntary Prepayments. The principal amount of any Prime Rate Advance
may be prepaid in full or in part at any time, without penalty and without
regard to the Payment Date for such Advance, upon one Business Day's (or three
Business Days for prepayment of a LIBOR Advance) prior telephonic notice (to be
promptly followed by written notice) by the Borrower, through an Authorized
Signatory, to the Administrative Lender. LIBOR Advances may be voluntarily
prepaid only so long as the Borrower concurrently reimburses the Lenders in
accordance with Section 2.9 hereof. Any notice of prepayment shall be
irrevocable.
(b) Mandatory Prepayment. On or before the date of any reduction of the
Commitment, the Borrower shall prepay applicable outstanding Advances in an
amount necessary to reduce the sum of outstanding Advances and Reimbursement
Obligations to an amount less than or equal to the Commitment as so reduced.
The Borrower shall first prepay all Prime Rate Advances and shall thereafter
prepay LIBOR Advances. To the extent that any prepayment requires that a LIBOR
Advance be repaid on a date other than the last day of its Interest Period, the
Borrower shall reimburse each Lender in accordance with Section 2.9 hereof.
(c) Prepayments from Excess Cash Flow. For any fiscal year in which the
Borrower elects to pay Dividends on its capital stock pursuant to Section 7.7
hereof, the Borrower shall prepay (prior to declaring or paying such Dividend)
Advances in an aggregate amount equal to 50% of the Excess Cash Flow, if any,
for the fiscal year ending on December 31 immediately preceding such fiscal year
in which such Dividend is declared and any such prepayment shall be made no
later than March 31 of the fiscal year immediately following the fiscal year in
which such Dividend is declared.
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(d) Prepayments, Generally. Any prepayment of an Advance shall be
accompanied by interest accrued on the principal amount being prepaid. Any
voluntary partial prepayment of a Prime Rate Advance shall be in a principal
amount which is at least $50,000 and which is an integral multiple of $10,000.
Any voluntary partial prepayment of a LIBOR Advance shall be in a principal
amount which is at least $100,000 and which is an integral multiple thereof.
Following the Commitment Reduction Date, prepayments shall be applied to the
mandatory reductions of the Commitment pursuant to Section 2.6(c) hereof in
inverse order and such prepayment shall not otherwise reduce the scheduled
Commitment reductions required pursuant to Section 2.6(c) hereof.
Section 2.6 Reduction of Commitment.
(a) Voluntary Reduction. The Borrower shall have the right, upon not less
than three Business Days' notice (provided no notice shall be required for a
termination in whole of the Commitment) by the Borrower, through an Authorized
Signatory, to the Administrative Lender (if telephonic, to be confirmed by telex
or in writing on or before the date of reduction or termination), which shall
promptly notify the Lenders, to terminate or reduce the Commitment, in whole or
in part. Each partial termination shall be in an aggregate amount which is at
least $100,000 and which is an integral multiple of $100,000, and no voluntary
reduction in the Commitment shall cause any LIBOR Advance to be repaid prior to
the last day of its Interest Period. Notwithstanding anything herein to the
contrary, in no event shall the Borrower have the right to reduce the Commitment
to an amount less than the aggregate outstanding Reimbursement Obligations.
(b) Mandatory Reduction. The Commitment shall be automatically reduced (i)
by the amount of any amount prepaid or required to be prepaid pursuant to
Sections 2.5(b) or (c) hereof, and (ii) as set forth in Section 2.6(c) hereof.
Notwithstanding anything herein to the contrary, in no event shall the Borrower
reduce the Commitment to an amount less than the aggregate outstanding
Reimbursement Obligations.
(c) Scheduled Reductions. On each Quarterly Date, commencing on the
Commitment Reduction Date, through the last Business Day of December 2003, the
Commitment outstanding on the Commitment Reduction Date shall automatically
reduce by an amount equal to the product of (i) $30,000,000 times (ii) the
percentage reduction that the Commitment is to reduce on the Quarterly Date
pursuant to the table below. Notwithstanding the foregoing, on the Maturity
Date, the Commitment shall automatically reduce to zero.
Quarterly Date % Reduction
-------------- -----------
March 1999 5.00%
June 1999 5.00%
September 1999 5.00%
December 1999 5.00%
March 2000 5.00%
June 2000 5.00%
September 2000 5.00%
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December 2000 5.00%
March 2001 5.00%
June 2001 5.00%
September 2001 5.00%
December 2001 5.00%
March 2002 5.00%
June 2002 5.00%
September 2002 5.00%
December 2002 5.00%
March 2003 5.00%
June 2003 5.00%
September 2003 5.00%
December 2003 5.00% and any remaining balance
such that the Commitment
shall be zero
(d) General Requirements. Upon any reduction of the Commitment pursuant to
Section 2.6(b) or 2.6(c), the Borrower shall immediately make a repayment of
applicable Advances in accordance with Section 2.5(b) hereof. The Borrower
shall reimburse each Lender for any loss or out-of-pocket expense incurred by
each Lender in connection with any such payment, as set forth in Section 2.9
hereof. The Borrower shall not have any right to rescind any termination or
reduction. Once reduced, the Commitment may not be increased or reinstated.
Section 2.7 Non-Receipt of Funds by the Administrative Lender. Unless the
Administrative Lender shall have been notified by a Lender prior to the date of
any proposed Advance (which notice shall be effective upon receipt) that such
Lender does not intend to make the proceeds of such Advance available to the
Administrative Lender, the Administrative Lender may assume that such Lender has
made such proceeds available to the Administrative Lender on such date, and the
Administrative Lender may in reliance upon such assumption (but shall not be
required to) make available to the Borrower a corresponding amount. If such
corresponding amount is not in fact made available to the Administrative Lender
by such Lender, the Administrative Lender shall be entitled to recover such
amount on demand from such Lender (or, if such Lender fails to pay such amount
forthwith upon such demand, from the Borrower) together with interest thereon in
respect of each day during the period commencing on the date such amount was
available to the Borrower and ending on (but excluding) the date the
Administrative Lender receives such amount from the Lender, with interest
thereon at a per annum rate equal to the Federal Funds Rate. No Lender shall be
liable for any other Lender's failure to fund an Advance hereunder.
Section 2.8 Payment of Principal of Advances. The Borrower agrees to pay
the principal amount of the Advances to the Administrative Lender for the
account of the Lenders as follows:
(a) End of Interest Period. The principal amount of each Advance hereunder
shall be due and payable on its Payment Date, which principal payment may be
made by means of a Refinancing Advance.
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(b) Commitment Reduction. On the date of reduction of the Commitment
pursuant to Section 2.6 hereof, including the Maturity Date, the aggregate
amount of the Advances outstanding on such date of reduction in excess of the
Commitment as reduced minus all outstanding Reimbursement Obligations shall be
due and payable, which principal payment may not be made by means of Refinancing
Advances.
(c) Maturity Date. The principal amount of the Advances, all accrued
interest and fees thereon, and all other Obligations, shall be due and payable
in full on the Maturity Date.
Section 2.9 Reimbursement. Whenever any Lender shall sustain or incur any
losses or reasonable out-of-pocket expenses in connection with (a) failure by
the Borrower to borrow any LIBOR Advance after having given notice of their
intention to borrow in accordance with Section 2.2 hereof (whether by reason of
the Borrower's election not to proceed or the non-fulfillment of any of the
conditions set forth in Article 3 hereof), or (b) any prepayment for any reason
of any LIBOR Advance in whole or in part (including a prepayment pursuant to
Section 9.3(b) hereof), the Borrower agrees to pay to any such Lender, upon its
demand, an amount sufficient to compensate such Lender for all such losses and
out-of-pocket expenses. Such Lender's good faith determination of the amount of
such losses or out-of-pocket expenses, calculated in its usual fashion, absent
manifest error, shall be binding and conclusive. Such losses shall include,
without limiting the generality of the foregoing, lost profits and reasonable
expenses incurred by such Lender in connection with the re-employment of funds
prepaid, repaid, converted or not borrowed, converted or paid, as the case may
be. Upon request of the Borrower, such Lender shall provide a certificate
setting forth the amount to be paid to it by the Borrower hereunder and
calculations therefor.
Section 2.10 Manner of Payment.
(a) Each payment (including prepayments) by the Borrower of the principal
of or interest on the Advances, fees, and any other amount owed under this
Agreement or any other Loan Document shall be made not later than 1:00 p.m.
(Dallas, Texas time) on the date specified for payment under this Agreement to
the Administrative Lender at the Administrative Lender's office, in lawful money
of the United States of America constituting immediately available funds.
(b) If any payment under this Agreement or any other Loan Document shall be
specified to be made upon a day which is not a Business Day, it shall be made on
the next succeeding day which is a Business Day, unless such Business Day falls
in another calendar month, in which case payment shall be made on the preceding
Business Day. Any extension or reduction of time shall in such case be included
in computing interest and fees, if any, in connection with such payment.
(c) The Borrower agrees to pay principal, interest, fees and all other
amounts due under the Loan Documents without deduction for set-off or
counterclaim or any deduction whatsoever.
(d) If some but less than all amounts due from the Borrower are received by
the Administrative Lender, the Administrative Lender shall apply such amounts in
the following order
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of priority: (i) to the payment of the Administrative Lender's expenses incurred
on behalf of the Lenders then due and payable, if any; (ii) to the payment of
all other fees then due and payable; (iii) to the payment of interest then due
and payable on the Advances; (iv) to the payment of all other amounts not
otherwise referred to in this clause (d) then due and payable under the Loan
Documents; and (v) to the payment of principal then due and payable on the
Advances.
Section 2.11 LIBOR Lending Offices. Each Lender's initial LIBOR Lending
Office is set forth opposite its name in Schedule 1 attached hereto. Each Lender
shall have the right at any time and from time to time to designate a different
office of itself or of any Affiliate as such Lender's LIBOR Lending Office, and
to transfer any outstanding LIBOR Advance to such LIBOR Lending Office. No such
designation or transfer shall result in any liability on the part of the
Borrower for increased costs or expenses resulting solely from such designation
or transfer (except any such transfer which is made by a Lender pursuant to
Section 9.2 or 9.3 hereof, or otherwise for the purpose of complying with
Applicable Law). Increased costs for expenses resulting from a change in law
occurring subsequent to any such designation or transfer shall be deemed not to
result solely from such designation or transfer.
Section 2.12 Sharing of Payments. Any Lender obtaining a payment (whether
voluntary or involuntary, due to the exercise of any right of set-off, or
otherwise) on account of its Advances in excess of its Specified Percentage of
all payments made by the Borrower with respect to Advances shall purchase from
each other Lender such participation in the Advances made by such other Lender
as shall be necessary to cause such purchasing Lender to share the excess
payment pro rata according to Specified Percentages with each other Lender which
is not in default of its obligations hereunder with respect to such Advance;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, the purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but
without interest. The Borrower agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section, to the fullest
extent permitted by law, may exercise all its rights of payment (including the
right of set-off) with respect to such participation as fully as if such Lender
were the direct creditor of the Borrower in the amount of such participation.
Section 2.13 Calculation of LIBOR Rate. The provisions of this Agreement
relating to calculation of the LIBOR Rate are included only for the purpose of
determining the rate of interest or other amounts to be paid hereunder that are
based upon such rate, it being understood that each Lender shall be entitled to
fund and maintain its funding of all or any part of a LIBOR Advance as it sees
fit.
Section 2.14 Booking Loans. Any Lender may make, carry or transfer
Advances at, to or for the account of any of its branch offices or the office of
any Affiliate.
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Section 2.15 Taxes.
(a) Any and all payments by the Borrower hereunder shall be made, in
accordance with Section 2.10, free and clear of and without deduction for any
and all present or future taxes, levies, imposts, and withholdings, and all
liabilities in respect of the Obligations, excluding, in the case of each Lender
and the Administrative Lender, taxes imposed on its overall net income, and
franchise taxes imposed on it (including interest and penalties imposed
thereon), by the jurisdiction under the laws of which such Lender or the
Administrative Lender (as the case may be) is organized or any political
subdivision thereof (all such non-excluded taxes, levies, imposts, withholdings
and liabilities being hereinafter referred to as "Taxes"). If the Borrower shall
be required by law to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender or the Administrative Lender, (x) the sum payable shall
be increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.15) such Lender or the Administrative Lender (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(y) the Borrower shall make such deductions and (z) the Borrower shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, the Borrower agrees to pay any and all stamp and
documentary taxes and any and all other excise and property taxes, charges and
similar levies that arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or any
other Loan Document (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender and the Administrative Lender
for the full amount of Taxes and Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this
Section 2.15) paid by such Lender or the Administrative Lender (as the case may
be) and all liabilities (including penalties, additions to tax, interest and
reasonable expenses) arising therefrom or with respect thereto whether or not
such Taxes or Other Taxes were correctly or legally asserted, other than
penalties, additions to tax, interest and expenses arising as a result of gross
negligence on the part of such Lender or the Administrative Lender, provided,
however, that the Borrower shall have no obligation to indemnify such Lender or
the Administrative Lender unless (i) such Lender or the Administrative Lender,
as applicable, has paid such Taxes or Other Taxes, (ii) notice has been given by
such Lender or the Administrative Lender, as applicable, to the Borrower, in a
time sufficient to afford the Borrower, in good faith and in the names of and on
behalf of such Lender or the Administrative Lender, a reasonable opportunity to
contest such payment by such Lender or the Administrative Lender, provided such
opportunity to contest exists under Applicable Law, and (iii) until such Lender
or the Administrative Lender shall have delivered to the Borrower a certificate
setting forth in reasonable detail the basis of the Borrower's obligation to
indemnify such Lender or the Administrative Lender pursuant to this Section
2.15. This indemnification shall be made within 45 days from the date such
Lender or the Administrative Lender (as the case may be) makes written demand
therefor.
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(d) Within 30 days after the date of any payment of Taxes, the Borrower
will furnish to the Administrative Lender the original or a certified copy of a
receipt evidencing payment thereof. If no Taxes are payable in respect of any
payment hereunder, the Borrower will furnish to the Administrative Lender a
certificate from each appropriate taxing authority, or an opinion of counsel
acceptable to the Administrative Lender, in either case stating that such
payment is exempt from or not subject to Taxes, provided, however, that such
certificate or opinion need only be given if: (i) the Borrower make any payment
from any account located outside the United States, or (ii) the payment is made
by a payor that is not a United States Person. For purposes of this Section
2.15 the terms "United States" and "United States Person" shall have the
meanings set forth in Section 7701 of the Code.
(e) Each Lender which is not a United States Person hereby agrees that:
(i) it shall, no later than the Agreement Date (or, in the case of a
Lender which becomes a party hereto pursuant to Section 11.16 after the
Agreement Date, the date upon which such Lender becomes a party hereto)
deliver to the Borrower through the Administrative Lender, with a copy to
the Administrative Lender:
(A) if any lending office is located in the United States of America,
two (2) accurate and complete signed originals of Internal
Revenue Service Form 4224 or any successor thereto ("Form 4224"),
(B) if any lending office is located outside the United States of
America, two (2) accurate and complete signed originals of
Internal Revenue Service Form 1001 or any successor thereto
("Form 1001").
in each case indicating that such Lender is on the date of delivery thereof
entitled to receive payments of principal, interest and fees for the
account of such lending office or lending offices under this Agreement free
from withholding of United States Federal income tax;
(ii) if at any time such Lender changes its lending office or lending
offices or selects an additional lending office it shall, at the same time
or reasonably promptly thereafter but only to the extent the forms
previously delivered by it hereunder are no longer effective, deliver to
the Borrower through the Administrative Lender, with a copy to the
Administrative Lender, in replacement for the forms previously delivered by
it hereunder:
(A) if such changed or additional lending office is located in the
United States of America, two (2) accurate and complete signed
originals of Form 4224; or
(B) otherwise, two (2) accurate and complete signed originals of Form
1001,
in each case indicating that such Lender is on the date of delivery thereof
entitled to receive payments of principal, interest and fees for the
account of such changed or additional lending office under this Agreement
free from withholding of United States Federal income tax;
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(iii) it shall, before or promptly after the occurrence of any event
(including the passing of time but excluding any event mentioned in clause
(ii) above) requiring a change in the most recent Form 4224 or Form 1001
previously delivered by such Lender and if the delivery of the same be
lawful, deliver to the Borrower through the Administrative Lender with a
copy to the Administrative Lender, two (2) accurate and complete original
signed copies of Form 4224 or Form 1001 in replacement for the forms
previously delivered by such Lender; and
(iv) it shall, promptly upon the request of the Borrower to that
effect, deliver to the Borrower such other forms or similar documentation
as may be required from time to time by any applicable law, treaty, rule or
regulation in order to establish such Lender's tax status for withholding
purposes.
(f) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 2.15 shall survive the payment in full of principal and interest
hereunder.
(g) Any Lender claiming any additional amounts payable pursuant to this
Section 2.15 shall use its reasonable best efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
lending office, if the making of such a change would avoid the need for, or
reduce the amount of, any such additional amounts which may thereafter accrue
and would not, in the sole judgment of such Lender, be otherwise disadvantageous
to such Lender.
(h) Each Lender (and the Administrative Lender with respect to payments to
the Administrative Lender for its own account) agrees that (i) it will take all
reasonable actions by all usual means to maintain all exemptions, if any,
available to it from United States withholding taxes (whether available by
treaty, existing administrative waiver, by virtue of the location of any
Lender's lending office) and (ii) otherwise cooperate with the Borrower to
minimize amounts payable by the Borrower under this Section 2.15; provided,
however, the Lenders and the Administrative Lender shall not be obligated by
reason of this Section 2.15(h) to contest the payment of any Taxes or Other
Taxes or to disclose any information regarding its tax affairs or tax
computations or reorder its tax or other affairs or tax or other planning.
Section 2.16 Letters of Credit.
(a) The Letter of Credit Facility. The Borrower, through an Authorized
Signatory, may request the Issuing Bank, on the terms and conditions hereinafter
set forth, to issue, and the Issuing Bank shall, if so requested, issue, letters
of credit (the "Letters of Credit") for the account of the Borrower from time to
time on any Business Day from the date of the initial Advance until the Maturity
Date in an aggregate maximum amount (assuming compliance with all conditions to
drawing) not to exceed at any time outstanding the lesser of (i) $2,500,000 (the
"Letter of Credit Facility"), and (ii) the sum of (A) the Commitment minus (B)
the aggregate principal amount of Advances then outstanding. No Letter of
Credit shall have an expiration date (including all rights
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of renewal) later than the earlier of (i) the Maturity Date or (ii) one year
after the date of issuance thereof. The Borrower shall be liable for all
obligations in respect of Letters of Credit. Immediately upon the issuance of
each Letter of Credit, the Issuing Bank shall be deemed to have sold and
transferred to each Lender, and each Lender shall be deemed to have purchased
and received from the Issuing Bank, in each case irrevocably and without any
further action by any party, an undivided interest and participation in such
Letter of Credit, each drawing thereunder and the obligations of the Borrower
under this Agreement in respect thereof in an amount equal to the product of (i)
such Lender's Specified Percentage of the Commitment times (ii) the maximum
amount available to be drawn under such Letter of Credit (assuming compliance
with all conditions to drawing). Within the limits of the Letter of Credit
Facility, and subject to the limits referred to above, the Borrower, through an
Authorized Signatory, may request the issuance of Letters of Credit under this
Section 2.16(a), repay any Advances resulting from drawings
thereunder pursuant to Section 2.16(c) and request the issuance of additional
Letters of Credit under this Section 2.16(a). During the term of this
Agreement, provided that no Default or Event of Default then exists and subject
to the appropriate conditions for the issuance of a Letter of Credit set forth
in Article 3 hereof, the Issuing Bank shall automatically renew any expiring
Letters of Credit for a period of time not to exceed the earlier of (x) the
Maturity Date or (y) one year after the date of issuance thereof.
(b) Request for Issuance. Each Letter of Credit shall be issued upon
notice, given not later than 11:00 a.m. (Dallas time) on the third Business Day
prior to the date of the proposed issuance of such Letter of Credit, by the
Borrower, through an Authorized Signatory, to the Issuing Bank, which shall give
to the Administrative Lender and each Lender prompt notice thereof by telex,
telecopier or cable. Each Letter of Credit shall be issued upon notice given in
accordance with the terms of any separate agreement between the Borrower and the
Issuing Bank in form and substance reasonably satisfactory to the Borrower and
the Issuing Bank providing for the issuance of Letters of Credit pursuant to
this Agreement and containing terms and conditions not inconsistent with this
Agreement (a "Letter of Credit Agreement"), provided that if any such terms and
conditions are inconsistent with this Agreement, this Agreement shall control.
Each such notice of issuance of a Letter of Credit (a "Notice of Issuance")
shall be by telex, telecopier or cable, specifying therein, in the case of a
Letter of Credit, the requested (A) date of such issuance (which shall be a
Business Day), (B) maximum amount of such Letter of Credit, (C) expiration date
of such Letter of Credit, (D) name and address of the beneficiary of such Letter
of Credit, (E) form of such Letter of Credit and (F) such other information as
shall be required pursuant to the relevant Letter of Credit Agreement. If the
requested terms of such Letter of Credit are acceptable to the Issuing Bank in
its reasonable discretion, the Issuing Bank will, upon fulfillment of the
applicable conditions set forth in Article 3 hereof, make such Letter of Credit
available to the Borrower at its office referred to in Section 11.1 or as
otherwise agreed with the Borrower in connection with such issuance.
(c) Drawing and Reimbursement. The payment by the Issuing Bank of a draft
drawn under any Letter of Credit shall constitute for all purposes of this
Agreement the making by the Issuing Bank of an Advance, which shall bear
interest at the applicable Prime Rate Basis, in the amount of such draft (but
without any requirement for compliance with the conditions set forth in Article
3 hereof). In the event that a drawing under any Letter of Credit is not
reimbursed by the Borrower by 11:00 a.m. (Dallas time) on the first Business Day
after such drawing, the Issuing Bank
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shall promptly notify Administrative Lender and each other Lender. Each such
Lender shall, on the first Business Day following such notification, make an
Advance, which shall bear interest at the applicable Prime Rate Basis, and shall
be used to repay the applicable portion of the Issuing Bank's Advance with
respect to such Letter of Credit, in an amount equal to the amount of its
participation in such drawing for application to reimburse the Issuing Bank (but
without any requirement for compliance with the applicable conditions set forth
in Article 3 hereof) and shall make available to the Administrative Lender for
the account of the Issuing Bank, by deposit at the Administrative Lender's
office, in same day funds, the amount of such Advance. In the event that any
Lender fails to make available to the Administrative Lender for the account of
the Issuing Bank the amount of such Advance, the Issuing Bank shall be entitled
to recover such amount on demand from such Lender together with interest thereon
at a rate per annum equal to the lesser of (i) the Highest Lawful Rate or (ii)
the Federal Funds Rate.
(d) Increased Costs. If any change in any law or regulation or in the
interpretation thereof by any court or administrative or governmental authority
charged with the administration thereof shall either (i) impose, modify or deem
applicable any reserve, special deposit or similar requirement against letters
of credit or guarantees issued by, or assets held by, or deposits in or for the
account of, the Issuing Bank or any Lender or (ii) impose on the Issuing Bank or
any Lender any other condition regarding this Agreement or such Lender or any
Letter of Credit, and the result of any event referred to in the preceding
clause (i) or (ii) shall be, in the reasonable opinion of the Issuing Bank or
any Lender, to increase the cost to the Issuing Bank of issuing or maintaining
any Letter of Credit or to any Lender of purchasing any participation therein or
making any Advance pursuant to Section 2.16(c), then, upon demand by the Issuing
Bank or such Lender upon the Borrower, the Borrower shall, subject to Section
11.9 hereof, pay to the Issuing Bank or such Lender, from time to time as
specified by the Issuing Bank or such Lender, additional amounts that shall be
sufficient to compensate the Issuing Bank or such Lender for such increased
cost. A certificate as to the amount of such increased cost, submitted to the
Borrower by the Issuing Bank or such Lender, shall include in reasonable detail
the basis for the demand for additional compensation and shall be conclusive and
binding for all purposes, absent demonstrable error. The obligations of the
Borrower under this Section 2.16(d) shall survive termination of this Agreement.
The Issuing Bank or any Lender claiming any additional compensation under this
Section 2.16(d) shall use reasonable efforts (consistent with legal and
regulatory restrictions) to reduce or eliminate any such additional compensation
which may thereafter accrue and which efforts would not, in the sole discretion
of the Issuing Bank or such Lender, be otherwise disadvantageous.
(e) Obligations Absolute. The obligations of the Borrower under this
Agreement with respect to any Letter of Credit, any Letter of Credit Agreement
and any other agreement or instrument relating to any Letter of Credit or any
Advance pursuant to Section 2.16(c) shall be unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this Agreement, such
Letter of Credit Agreement and such other agreement or instrument under all
circumstances, including, without limitation, the following circumstances:
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(i) any lack of validity or enforceability of this Agreement, any
other Loan Document, any Letter of Credit Agreement, any Letter of Credit
or any other agreement or instrument relating thereto (collectively, the
"L/C Related Documents");
(ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations of the Borrower in respect of
the Letters of Credit or any Advance pursuant to Section 2.16(c) or any
other amendment or waiver of or any consent to departure from all or any of
the L/C Related Documents;
(iii) the existence of any claim, set-off, defense or other right
that the Borrower may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), the Issuing Bank, any
Lender or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by the L/C Related Documents or any
unrelated transaction;
(iv) any statement or any other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect,
except to the extent that any payment by the Issuing Bank against any such
statement or other document shall be as a result of the Issuing Bank's
gross negligence or willful misconduct;
(v) payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or certificate that does not comply with the terms
of the Letter of Credit, except for any payment made upon the Issuing
Bank's gross negligence or willful misconduct;
(vi) any exchange, release or non-perfection of any Collateral, or any
release or amendment or waiver of or consent to departure from any
Subsidiary Guaranty or any other guarantee, for all or any of the
Obligations of the Borrower in respect of the Letters of Credit or any
Advance pursuant to Section 2.16(c); or
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including, without limitation, any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, the Borrower or a guarantor, other than the Issuing's Bank
gross negligence or wilful misconduct.
(f) Compensation for Letters of Credit.
(i) Credit Fees. Subject to Section 11.9 hereof, the Borrower shall
pay to the Administrative Lender for the account of each Lender a credit
fee (which shall be payable quarterly in arrears on each Quarterly Date and
on the Maturity Date) on the average daily amount available for drawing
under all outstanding Letters of Credit (computed, subject to Section 11.9
hereof, on the basis of a 360-day year for the actual number of days
elapsed) at the following per annum percentages, applicable in the
following situations:
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Applicability Percentage
------------- -----------
(A) If the Leverage Ratio is not less than 1.5 to 1 1.500%
(B) If the Leverage Ratio is less than 1.5 to 1 but
is not less than 1.0 to 1 1.250%
(C) If the Leverage Ratio is less than 1.0 to 1 but
is not less than 0.5 to 1 1.000%
(D) If the Leverage Ratio is less than 0.5 to 1 0.750%
(ii) Adjustment of Credit Fee. The credit fee payable in respect of
the Letters of Credit shall be subject to reduction or increase, as
applicable and as set forth in the table in (i) above, on a quarterly basis
according to the performance of the Borrower as tested by the Leverage
Ratio. Except as set forth in the last sentence hereof, any such increase
or reduction in such fee shall be effective on the third Business Day
following the date of receipt of the applicable financial statements
required to be delivered pursuant to Section 6.1(b) or 6.2(b) hereof. If
financial statements of the Borrower setting forth the Leverage Ratio are
not received by the Administrative Lender by the date required pursuant to
Section 6.1(b) or 6.2(a) hereof, as applicable, the fee payable in respect
of the Letters of Credit shall be determined as if the Leverage Ratio
exceeds 1.5 to 1 until such time as such financial statements are received.
For the last fiscal quarter of any fiscal year of the Borrower, the
Borrower may provide its unaudited financial statements, subject only to
year-end adjustments, for the purpose of adjusting the Letter of Credit
fee. From and including the Closing Date to the date of the initial
adjustment of the Credit Fee to be made as provided above, the percentage
shall be determined based on the Compliance Certificate delivered by the
Borrower on the Closing Date.
(iii) Issuance Fee. Subject to Section 11.9 hereof, the Borrower
shall pay to the Administrative Lender, for the sole account of the Issuing
Bank, an issuance fee of $500 on the date of issuance of each Letter of
Credit.
(g) L/C Cash Collateral Account.
(i) Upon the occurrence of an Event of Default and demand by the
Administrative Lender pursuant to Section 8.2(c), the Borrower will
promptly pay to the Administrative Lender in immediately available funds an
amount equal to 100% of the maximum amount then available to be drawn under
the Letters of Credit then outstanding. Any amounts so received by the
Administrative Lender shall be deposited by the Administrative Lender in a
deposit account maintained by the Issuing Bank (the "L/C Cash Collateral
Account").
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(ii) As security for the payment of all Reimbursement Obligations and
for any other Obligations, the Borrower hereby grants, conveys, assigns,
pledges, sets over and transfers to the Administrative Lender (for the
benefit of the Issuing Bank and Lenders), and creates in the Administrative
Lender's favor (for the benefit of the Issuing Bank and Lenders) a Lien in,
all money, instruments and securities at any time held in or acquired in
connection with the L/C Cash Collateral Account, together with all proceeds
thereof. The L/C Cash Collateral Account shall be under the sole dominion
and control of the Administrative Lender and the Borrower shall have no
right to withdraw or to cause the Administrative Lender to withdraw any
funds deposited in the L/C Cash Collateral Account except as otherwise
provided in Section 2.16(g)(iii). At any time and from time to time, upon
the Administrative Lender's request delivered to the Borrower, the Borrower
promptly shall execute and deliver any and all such further instruments and
documents, including UCC financing statements, as may be necessary,
appropriate or desirable in the Administrative Lender's judgment to obtain
the full benefits (including perfection and priority) of the security
interest created or intended to be created by this paragraph (ii) and of
the rights and powers herein granted. The Borrower shall not create or
suffer to exist any Lien on any amounts or investments held in the L/C Cash
Collateral Account other than the Lien granted under this paragraph (ii)
and Liens arising by operation of Applicable Law and not by contract which
secure amounts not yet due and payable.
(iii) The Administrative Lender shall (A) apply any funds in the L/C
Cash Collateral Account on account of Reimbursement Obligations when the
same become due and payable if and to the extent that the Borrower shall
fail directly to pay such Reimbursement Obligations, (B) after the Maturity
Date, apply any proceeds remaining in the L/C Cash Collateral Account first
to pay any unpaid Obligations then outstanding hereunder and then to refund
any remaining amount to the Borrower, and (C) provided no Default or Event
of Default shall be in existence, return any funds in the L/C Cash
Collateral Account to the Borrower.
(iv) The Borrower, no more than once in any calendar month, may,
through an Authorized Signatory, direct the Administrative Lender to invest
the funds held in the L/C Cash Collateral Account (so long as the aggregate
amount of such funds exceeds any relevant minimum investment requirement)
in (A) direct obligations of the United States or any agency thereof, or
obligations guaranteed by the United States or any agency thereof and (B)
one or more other types of investments permitted by the Determining
Lenders, in each case with such maturities as the Borrower, with the
consent of the Determining Lenders, may specify, pending application of
such funds on account of Reimbursement Obligations or on account of other
Obligations, as the case may be. In the absence of any such direction from
the Borrower through an Authorized Signatory, the Administrative Lender
shall invest the funds held in the L/C Cash Collateral Account (so long as
the aggregate amount of such funds exceeds any relevant minimum investment
requirement) in one or more types of investments with the consent of the
Determining Lenders with such maturities as the Borrower, with the consent
of the Determining Lenders and through an Authorized Signatory, may
specify, pending application of such funds on account of Reimbursement
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Obligations or on account of other Obligations, as the case may be. All
such investments shall be made in the Administrative Lender's name for the
account of the Lenders. The Borrower recognizes that any losses or taxes
with respect to such investments shall be borne solely by the Borrower, and
the Borrower agrees to hold the Administrative Lender and the Lenders
harmless from any and all such losses and taxes. Administrative Lender may
liquidate any investment held in the L/C Cash Collateral Account in order
to apply the proceeds of such investment on account of the Reimbursement
Obligations (or on account of any other Obligation then due and payable, as
the case may be) without regard to whether such investment has matured and
without liability for any penalty or other fee incurred (with respect to
which the Borrower hereby agrees to reimburse the Administrative Lender) as
a result of such application.
(v) The Borrower shall pay to the Administrative Lender the fees
customarily charged by the Issuing Bank with respect to the maintenance of
accounts similar to the L/C Cash Collateral Account in an amount not to
exceed $1,000 in aggregate per calendar year.
ARTICLE 3
Conditions Precedent
Section 3.1 Conditions Precedent to the Initial Advance to, and Letters of
Credit on behalf of, the Borrower. The obligation of each Lender to make the
initial Advance to the Borrower, and the obligation of the Issuing Bank to issue
the initial Letter of Credit on behalf of, the Borrower is subject to receipt by
the Administrative Lender of each of the following, in form and substance
satisfactory to the Administrative Lender, with a copy (except for the Notes)
for each Lender:
(a) a loan certificate of the Borrower certifying as to the incumbency of
each Authorized Signatory, and including (i) a copy of the Articles of
Incorporation of the Borrower, certified to be true, complete and correct by the
secretary of state of its state of incorporation, (ii) a copy of the By-Laws of
the Borrower, as in effect on the Agreement Date, (iii) a copy of the
resolutions of the Borrower authorizing it to execute, deliver and perform this
Agreement, the Notes, and the other Loan Documents to which it is a party, and
(iv) a copy of a certificate of good standing and a certificate of existence, as
applicable, for its state of incorporation and a certificate of authority to do
business for each state in which it is qualified to do business;
(b) for each Subsidiary, a certificate of an officer acceptable to the
Lenders of each such Subsidiary, certifying as to the incumbency of the officers
signing the Loan Documents to which it is a party, and including (i) a copy of
its Articles of Incorporation, certified as true, complete and correct by the
secretary of state of its state of incorporation, (ii) a copy of its By-Laws, as
in effect on the Agreement Date, (iii) a copy of the resolutions authorizing it
to execute, deliver and perform the Loan Documents to which it is a party, and
(iv) a copy of a certificate of good standing and a certificate of existence, as
applicable, for its state of incorporation and certificate of authority to do
business in each state in which it is qualified to do business;
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(c) duly executed Notes, payable to the order of each Lender and in an
amount for each Lender equal to its Specified Percentage of the Commitment;
(d) a Borrower Pledge Agreement, duly executed and completed by the
Borrower, dated as of the Agreement Date, granting the Lenders a first priority
Lien and security interest in (i) the Pledged Stock owned directly by the
Borrower (together with related, blank, undated stock powers) and (ii)
Intercompany Notes evidencing intercompany advances made, or to be made, by the
Borrower to Subsidiaries, together with related UCC-1 financing statements;
(e) duly executed and completed Subsidiary Pledge Agreements, dated as of
the Agreement Date, granting the Lenders a first priority Lien and security
interest in the (i) Pledged Stock owned directly by each Subsidiary (together
with related, blank, undated stock powers), and (ii) Intercompany Notes
evidencing intercompany advances made, or to be made, each Subsidiary to other
Subsidiaries, together with related UCC-1 financing statements;
(f) a duly executed and completed Borrower Security Agreement, dated as of
the Agreement Date, granting the Lenders a first priority Lien and security
interest in (i) the Accounts of the Borrower and (ii) the tangible personal
property of the Borrower, together with related UCC-1 financing statements;
(g) a duly executed and completed Subsidiary Security Agreement, dated as
of the Agreement Date, granting the Lenders a first priority Lien and security
interest in (i) the Accounts of each Subsidiary and (ii) the tangible personal
property of each Subsidiary, together with related UCC-1 financing statements;
(h) the Pledged Stock, together with stock powers duly executed in blank;
(i) the Intercompany Notes, duly endorsed;
(j) a duly executed and completed Subsidiary Guaranty, dated as of the
Agreement Date executed by each Subsidiary;
(k) the Borrower shall have received Net Cash Proceeds of at least
$40,000,000 from an initial public offering of its capital stock;
(l) copies of insurance binders or certificates covering the assets of the
Borrower and the Subsidiaries, and meeting the requirements of Section 5.5
hereof;
(m) reimbursement for Administrative Lender for Special Counsel's
reasonable fees and expenses rendered through the Agreement Date;
(n) evidence that all corporate proceedings of the Borrower and the
Subsidiaries taken in connection with the transactions contemplated by this
Agreement and the other Loan Documents shall be reasonably satisfactory in form
and substance to the Lenders and Special Counsel; and the
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Lenders shall have received copies of all documents or other evidence which the
Administrative Lender, Special Counsel or any Lender may reasonably request in
connection with such transactions;
(o) copies of the following combined financial statements for the Borrower
and its Subsidiaries, as of and for the period ended June 30, 1996: (i)
combined balance sheets as of the end of such period, and (ii) combined
statements of income and changes in cash for such period; which financial
statements shall set forth in comparative form figures for the corresponding
periods in the previous fiscal year, all in reasonable detail and certified by
an Authorized Signatory to the best of his knowledge to be complete and correct
and prepared in accordance with GAAP (other than footnotes thereto), subject to
year-end adjustment;
(p) the fees as required pursuant to Section 2.4(b) hereof;
(q) opinions of counsel to the Borrower and the Subsidiaries addressed to
the Lenders and in form and substance reasonably satisfactory to the Lenders,
dated the Agreement Date;
(r) UCC-11 searches in appropriate jurisdictions where Collateral is
located;
(s) a duly completed and executed Compliance Certificate dated as of the
Agreement Date;
(t) the corporate organization of the Borrower shall have been reorganized
such that as of the Closing Date, (i) the Borrower shall own 100% of the
outstanding capital stock of Metro Traffic Control, Inc. and (ii) each of Metro
Video News, Inc., Metro Reciprocal, Inc., Metro Networks, Ltd. and MTC GP, Inc.
and each of its Subsidiaries shall have been consolidated into Metro Traffic
Control, Inc.;
(u) simultaneously with the making of the initial Advance or the issuance
of the initial Letter of Credit, the Borrower shall cause (i) all outstanding
Indebtedness, interest, fees and expenses under the Prior Credit Agreement to be
paid in full and (ii) the commitment of the lenders thereunder to make advances,
and the issuing bank thereunder to issue letters of credit, to terminate; and
(v) in form and substance satisfactory to the Lenders and Special Counsel,
such other documents, instruments and certificates as the Administrative Lender
may reasonably require in connection with the transactions contemplated hereby,
including without limitation the status, organization or authority of the
Borrower or any Subsidiary, and the enforceability of and security for the
Obligation.
Section 3.2 Conditions Precedent to All Advances and Letters of Credit.
The obligation of each Lender to make each Advance (including the initial
Advance) and the obligation of the Issuing Bank to issue each Letter of Credit
(including the initial Letter of Credit) hereunder is subject to fulfillment of
the following conditions immediately prior to or contemporaneously with each
such Advance or issuance:
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(a) With respect to Advances (including the initial Advance) (other than
Refinancing Advances) and each issuance of a Letter of Credit (including the
initial Letter of Credit), all of the representations and warranties of the
Borrower under this Agreement, which, pursuant to Section 4.2 hereof, are made
at and as of the time of such Advance or issuance, shall be true and correct at
such time in all material respects, both before and after giving effect to the
application of the proceeds of the Advance or issuance;
(b) The incumbency of the Authorized Signatories and other officers shall
be as stated in the certificate of incumbency delivered in the certificate
pursuant to Section 3.1(a) hereof or as subsequently modified and reflected in
certificates of incumbency delivered to the Administrative Lender. The Lenders
may, without waiving this condition, consider it fulfilled and a representation
by the Borrower made to such effect if no written notice to the contrary, dated
on or before the date of such Advance or issuance, is received by the
Administrative Lender prior to the making of such Advance or issuance;
(c) There shall not exist a Default hereunder, with respect to Advances
(other than Refinancing Advances) and with respect to issuance of each Letter of
Credit, or an Event of Default, with respect to any Refinancing Advance;
(d) The aggregate Advances and amount available for draws under Letters of
Credit, after giving effect to such proposed Advance or Letter of Credit, shall
not exceed the Commitment; and
(e) The Administrative Lender shall have received all such other
certificates, reports, statements or other documents as the Administrative
Lender may reasonably request.
Each request by the Borrower to the Administrative Lender or the Issuing
Bank, as appropriate, for an Advance or the issuance of a Letter of Credit shall
constitute a representation and warranty by the Borrower as of the date of the
making of such Advance or the issuance of such Letter of Credit that all the
conditions contained in this Section 3.2 have been satisfied.
ARTICLE 4
Representations and Warranties
Section 4.1 Representations and Warranties. The Borrower hereby represents
and warrants to each Lender as follows:
(a) Organization; Power; Qualification. As of the Agreement Date, the
respective jurisdictions of incorporation and percentage ownership by the
Borrower and each Subsidiary listed on Schedule 6 are true and correct. The
Borrower and each Subsidiary is a corporation duly organized, validly existing
and in good standing under the laws of its state of organization. The Borrower
and each Subsidiary has the corporate power and authority to own its properties
and to carry on its business as now being and hereafter proposed to be
conducted. The Borrower and each
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Subsidiary is duly qualified, in good standing and authorized to do business in
each jurisdiction in which the character of its properties or the nature of its
business requires such qualification or authorization.
(b) Authorization. The Borrower has the corporate or partnership
power, as applicable, and has taken all necessary corporate or partnership
action, as applicable, to authorize it to borrow hereunder. The Borrower and
each Subsidiary has the corporate or partnership power, as applicable, and has
taken all necessary corporate or partnership action, as applicable, to execute,
deliver and perform the Loan Documents to which it is party in accordance with
the terms thereof, and to consummate the transactions contemplated thereby.
Each Loan Document has been duly executed and delivered by the Borrower or the
Subsidiary executing it. Each of the Loan Documents to which the Borrower or
Subsidiary is party is a legal, valid and binding respective obligation of the
Borrower or Subsidiary, as applicable, enforceable in accordance with its terms,
subject, to enforcement of remedies, to the following qualifications: (i)
equitable principles generally, and (ii) bankruptcy, insolvency, liquidation,
reorganization, reconstruction and other similar laws affecting enforcement of
creditors' rights generally (insofar as any such law relates to the bankruptcy,
insolvency or similar event of the Borrower or Subsidiary).
(c) Compliance with Other Loan Documents and Contemplated
Transactions. The execution, delivery and performance by the Borrower and each
Subsidiary of the other Loan Documents to which they are respectively a party,
and the consummation of the transactions contemplated thereby, do not and will
not (i) require any consent or approval not already obtained, (ii) violate any
Applicable Law, (iii) conflict with, result in a breach of, or constitute a
default under the articles of incorporation, by-laws or partnership agreement as
applicable, of the Borrower or Subsidiary, or under any Necessary Authorization,
indenture, agreement or other instrument, to which the Borrower or Subsidiary is
a party or by which they or their respective properties may be bound, or (iv)
result in or require the creation or imposition of any Lien upon or with respect
to any property now owned or hereafter acquired by the Borrower or Subsidiary,
except Permitted Liens.
(d) Business. The Borrower (a) is engaged solely in the business of
owning the capital stock of its Subsidiaries and activities incidental thereto
and (b) each Subsidiary is engaged solely in the Subsidiaries' Business.
(e) Licenses, etc. All Necessary Authorizations have been duly
authorized and obtained, and are in full force and effect. The Borrower and
each Subsidiary is and will continue to be in compliance in all material
respects with all provisions thereof. No Necessary Authorization is the subject
of any pending or, to the best of the Borrower's knowledge, threatened challenge
or revocation.
(f) Compliance with Law. The Borrower and each Subsidiary is in
compliance with all Applicable Laws, the violation of which could reasonably be
expected to have a Material Adverse Effect. The Borrower and each Subsidiary
has duly and timely filed all reports, statements and filings that are required
to be filed by any of them with any Governmental Authority, and are in all
material respects in compliance therewith, including without limitation the
rules and regulations of
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any Governmental Authority relating to their business. The Borrower and each
Subsidiary has obtained all appropriate approvals and consents of, and has made
all filings with, the Governmental Authorities in connection with the
acquisition and ownership of each of their respective assets and the operation
of their business where the failure to obtain such consents and approvals could
have a Material Adverse Effect.
(g) Title to Properties. The Borrower and each Subsidiary has good
and indefeasible title to, or a valid leasehold interest in, all of their
material assets. None of their assets are subject to any Liens, except Permitted
Liens. No financing statement or other Lien filing (except relating to Permitted
Liens) is on file in any state or jurisdiction that names the Borrower or
Subsidiary as debtor or covers (or purports to cover) any assets of the Borrower
or Subsidiary. The Borrower and each Subsidiary has not signed any such
financing statement or filing, nor any security agreement authorizing any Person
to file any such financing statement or filing.
(h) Litigation. Except as reflected on Schedule 3 hereto, there is no
action, suit or proceeding pending against, or, to the best of the Borrower's
knowledge, threatened against the Borrower or any Subsidiary, or in any other
manner relating directly and materially adversely to the Borrower, any
Subsidiary, or any of their material properties, in any court or before any
arbitrator of any kind or before or by any governmental body the result of which
could reasonably be expected to require the payment of money by the Borrower or
any Subsidiary in an amount of $250,000 or more in any one such action, suit or
proceeding or $500,000 or more in the aggregate for all such actions, suits or
proceedings.
(i) Taxes. Except for where extensions have been duly filed and
obtained, all federal, state and other tax returns of the Borrower and each
Subsidiary required by law to be filed have been duly filed and all federal,
state and other taxes, assessments and other governmental charges or levies upon
the Borrower, each Subsidiary or any of their properties, income, profits and
assets, which are due and payable, have been paid, unless the same are
being diligently contested in good faith by appropriate proceedings, with
adequate reserves established therefor, and no Lien (other than a Permitted
Lien) has attached and no foreclosure, distraint, sale or similar proceedings
have been commenced. The charges, accruals and reserves on the books of the
Borrower and each Subsidiary in respect of their taxes are, in the judgment of
the Borrower, adequate.
(j) Financial Statements; Material Liabilities. The Borrower has
furnished or caused to be furnished to the Lenders copies of its audited
December 31, 1995, and its unaudited June 30, 1996, financial statements, which
are prepared in good faith and complete in all material respects and present
fairly in accordance with GAAP the financial position of the Borrower and its
Subsidiaries as at such dates and the results of operations for the periods then
ended, subject to normal year-end adjustments. The Borrower nor any Subsidiary
has any material liabilities, contingent or otherwise, or material losses,
except as disclosed in writing to the Lenders prior to the Agreement Date.
(k) No Adverse Change. Since December 31, 1995, no event or
circumstance has occurred or arisen that could have a Material Adverse Effect.
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(l) ERISA. The Borrower nor its Controlled Group maintains or
contributes to any Plan other than those disclosed to the Administrative Lender
in writing. Each such Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code, and any other applicable Federal or
state law, rule or regulation. With respect to each Plan of the Borrower and
each member of its Controlled Group (other than a Multiemployer Plan), all
reports required under ERISA or any other Applicable Law to be filed with any
governmental authority, the failure of which to file could reasonably result in
liability of the Borrower or any member of its Controlled Group in excess of
$100,000, have been duly filed. All such reports are true and correct in all
material respects as of the date given. No such Plan of the Borrower or any
member of its Controlled Group has been terminated nor has any accumulated
funding deficiency (as defined in Section 412(a) of the Code) been incurred
(without regard to any waiver granted under Section 412 of the Code), nor has
any funding waiver from the Internal Revenue Service been received or requested.
The Borrower nor any member of its Controlled Group has failed to make any
contribution or pay any amount due or owing as required by Section 412 of the
Code or Section 302 of ERISA or the terms of any such Plan prior to the due date
under Section 412 of the Code and Section 302 of ERISA. There has been no ERISA
Event or any event requiring disclosure under Section 4041(c)(3)(C), 4068(f),
4063(a) or 4043(b) of ERISA with respect to any Plan or trust of the Borrower or
any member of its Controlled Group since the effective date of ERISA. The value
of the assets of each Plan (other than a Multiemployer Plan) of the Borrower and
each member of its Controlled Group equaled or exceeded the present value of the
benefit liabilities, as defined in Title IV of ERISA, of each such Plan as of
the most recent valuation date using Plan actuarial assumptions at such date.
There are no pending or, to the best of the Borrower's knowledge, threatened
claims, lawsuits or actions (other than routine claims for benefits in the
ordinary course) asserted or instituted against, and the Borrower nor any member
of its Controlled Group has knowledge of any threatened litigation or claims
against, (i) the assets of any Plan or trust or against any fiduciary of a Plan
with respect to the operation of such Plan, or (ii) the assets of any employee
welfare benefit plan within the meaning of Section 3(1) or ERISA, or against any
fiduciary thereof with respect to the operation of any such plan. The Borrower
nor any member of its Controlled Group has engaged in any prohibited
transactions, within the meaning of Section 406 of ERISA or Section 4975 of the
Code, in connection with any Plan. The Borrower nor any member of its Controlled
Group has withdrawn from any Multiemployer Plan, nor has incurred or reasonably
expects to incur (A) any liability under Title IV of ERISA (other than premiums
due under Section 4007 of ERISA to the PBGC), (B) any withdrawal liability (and
no event has occurred which with the giving of notice under Section 4219 of
ERISA would result in such liability) under Section 4201 of ERISA as a result of
a complete or partial withdrawal (within the meaning of Section 4203 or 4205 of
ERISA) from a Multiemployer Plan, or (C) any liability under Section 4062 of
ERISA to the PBGC or to a trustee appointed under Section 4042 of ERISA. The
Borrower, nor any member of its Controlled Group, or any organization to which
the Borrower or any member of its Controlled Group is a successor or parent
corporation within the meaning of ERISA Section 4069(b), has engaged in a
transaction within the meaning of ERISA Section 4069. The Borrower nor any
member of its Controlled Group maintains or has established any welfare benefit
plan within the meaning of Section 3(1) of ERISA which provides for continuing
benefits or coverage for any participant or any beneficiary of any participant
after such participant's termination of employment except as may be required by
the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA")
and the regulations
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thereunder, and at the expense of the participant or the beneficiary of the
participant, or retiree medical liabilities. The Borrower and its Controlled
Group which maintains a welfare benefit plan within the meaning of Section 3(1)
of ERISA has complied in all material respects with any applicable notice and
continuation requirements of COBRA and the regulations thereunder.
(m) Compliance with Regulations G, T, U and X. The Borrower is not
engaged principally or as one of its important activities in the business of
extending credit for the purpose of purchasing or carrying any margin stock
within the meaning of Regulations G, T, U and X of the Board of Governors of the
Federal Reserve System, and no part of the proceeds of the Advances or the
Letters of Credit will be used to purchase or carry any margin stock or to
extend credit to others for the purpose of purchasing or carrying any margin
stock. No assets of the Borrower or any Subsidiary are margin stock, and none
of the Pledged Stock is margin stock. The Borrower nor Subsidiary, nor any
agent acting on their behalf, have taken or will knowingly take any action which
might cause this Agreement or any Loan Documents to violate any regulation of
the Board of Governors of the Federal Reserve System or to violate the
Securities Exchange Act of 1934, in each case as in effect now or as the same
may hereafter be in effect.
(n) Governmental Regulation. The Borrower and each Subsidiary is not
required to obtain any Necessary Authorization that has not already been
obtained from, or effect any material filing or registration that has not
already been effected with, any federal, state or local regulatory authority in
connection with the execution and delivery of this Agreement or any other Loan
Document, or the performance thereof (other than any enforcement of remedies by
the Administrative Lender on behalf of the Lenders), in accordance with their
respective terms, including any borrowings hereunder.
(o) Absence of Default. The Borrower and each Subsidiary is in
compliance in all material respects with all of the provisions of their articles
of incorporation and by-laws, and no event has occurred or failed to occur,
which has not been remedied or waived, the occurrence or non-occurrence of which
constitutes, or which with the passage of time or giving of notice or both would
constitute, (i) an Event of Default or (ii) a default by the Borrower or
Subsidiary under any material indenture, agreement or other instrument, or any
judgment, decree or order to which the Borrower or Subsidiary is a party or by
which they or any of their material properties is bound.
(p) Investment Company Act. The Borrower is not required to register
under the provisions of the Investment Company Act of 1940, as amended. Neither
the entering into or performance by the Borrower of this Agreement nor the
issuance of the Notes violates any provision of such act or requires any
consent, approval, or authorization of, or registration with, the Securities and
Exchange Commission or any other governmental or public body of authority
pursuant to any provisions of such act.
(q) Environmental Matters. The Borrower nor any Subsidiary has any
actual knowledge or reason to believe that any substance deemed hazardous by any
Applicable Environmental Law, has been installed on any real property now owned
by the Borrower or any of its Subsidiaries. The Borrower and each Subsidiary
are not in violation of or subject to any existing, pending or, to the
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best of the Borrower's knowledge, threatened investigation or inquiry by any
governmental authority or to any material remedial obligations under any
Applicable Environmental Laws, and this representation and warranty would
continue to be true and correct following disclosure to the applicable
governmental authorities of all relevant facts, conditions and circumstances, if
any, pertaining to any real property of the Borrower and its Subsidiaries. The
Borrower and each Subsidiary have not obtained and are not required to obtain
any permits, licenses or similar authorizations to construct, occupy, operate or
use any buildings, improvements, fixtures, and equipment forming a part of any
real property of the Borrower or any Subsidiary by reason of any Applicable
Environmental Laws. The Borrower and each Subsidiary undertook, at the time of
acquisition of any real property, reasonable inquiry into the previous ownership
and uses of such real property consistent with good commercial or customary
practice. The Borrower and each Subsidiary has taken all reasonable steps to
determine, and the Borrower nor any Subsidiary has actual knowledge or reason to
believe, after reasonable investigation, that any hazardous substances or solid
wastes have been disposed of or otherwise released on or to the real property of
the Borrower or any Subsidiary in any manner or quantities which would be deemed
a violation of the Applicable Environmental Laws.
(r) Valid Issuance of Securities. All Pledged Stock has been duly
authorized and validly issued, and is fully paid and nonassessable. The capital
stock described on Exhibit A to the Pledge Agreements constitutes all the issued
and outstanding capital stock of the Borrower, the Subsidiaries of the Borrower
or the Subsidiaries of another Subsidiary. No Person has conversion rights with
respect to, or any subscription rights, calls, commitments or claims of any
character for, or any repurchase or redemption options relating to, the Pledged
Stock, except for those listed on Schedule 5 hereto. The Pledged Stock, when
issued or sold, was either (i) registered or qualified under applicable federal
or state securities laws, or (ii) exempt therefrom.
(s) Certain Fees. No broker's, finder's or other fee or commission
will be payable by the Borrower (other than to the Lenders hereunder) with
respect to the making of the Commitments or the Advances hereunder or the
issuance of Letters of Credit. The Borrower agrees to indemnify and hold
harmless the Administrative Lender and each Lender from and against any claims,
demand, liability, proceedings, costs or expenses asserted with respect to or
arising in connection with any such fees or commissions.
(t) Compliance. Attached as Schedule 4 hereto is a complete list of
all material licenses, consents, authorizations, permits and Necessary
Authorizations as of the Agreement Date. Such licenses, consents, permits and
authorizations constitute all that are necessary, appropriate or advisable for
the Borrower and each Subsidiary to operation its business and own its
properties, and are in full force and effect. No event has occurred which
permits (or with the passage of time would permit) the revocation or termination
of any such license, consents, permits and authorizations, or which could result
in the imposition of any restriction thereon of such a nature that could
reasonably be expected to have a Material Adverse Effect.
(u) Patents, Etc. The Borrower and each Subsidiary has obtained all
patents, trademarks, service-marks, trade names, copyrights, licenses and other
rights, free from burdensome restrictions,
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that are necessary for the operation of their business as presently conducted
and as proposed to be conducted, the loss of which could reasonably be expected
to have a Material Adverse Effect. Nothing has come to the attention of the
Borrower or any Subsidiary to the effect that (i) any process, method, part or
other material presently contemplated to be employed by the Borrower or
Subsidiary may infringe any patent, trademark, service-mark, trade name,
copyright, license or other right owned by any other Person, or (ii) there is
pending or overtly threatened any claim or litigation against or affecting the
Borrower or Subsidiary contesting its right to sell or use any such process,
method, part or other material.
(v) Disclosure. Neither this Agreement nor any other document,
certificate or statement which has been furnished to any Lender by or on behalf
of the Borrower or Subsidiary in connection herewith contained any untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statement contained herein and therein not misleading at the
time it was furnished. There is no fact known to the Borrower and not known to
the public generally that could reasonably be expected to materially adversely
affect the assets or business of the Borrower or Subsidiary, or in the future
could reasonably be expected (so far as the Borrower can now foresee) to have a
Material Adverse Effect, which has not been set forth in this Agreement or in
the documents, certificates and statements furnished to the Lenders by or on
behalf of the Borrower prior to the Agreement Date in connection with the
transaction contemplated hereby.
(w) Solvency. The Borrower is, and the Borrower and the Subsidiaries
on a combined basis are, Solvent.
(x) Consolidated Business Entity. The Borrower and each Subsidiary is
engaged in the business set forth in Section 4.1(d) hereof. These operations
require financing on a basis such that the credit supplied can be made available
from time to time to the Borrower and various of the Subsidiaries, as required
for the continued successful operation of the Borrower and the Subsidiaries as a
whole. The Borrower has requested Lenders to make credit available hereunder
primarily for the purposes of financing the operations and acquisitions of the
Borrower and the Subsidiaries. The Borrower and the Subsidiaries expect to
derive benefit (and the boards of directors of the Borrower and the Subsidiaries
have determined that its Subsidiaries may reasonably be expected to derive
benefit), directly or indirectly, from the credit extended by Lenders hereunder,
both in their separate capacities and as members of the group of companies,
since the successful operation and condition of the Borrower and the
Subsidiaries is dependent on the continued successful performance of the
functions of the group as a whole.
Section 4.2 Survival of Representations and Warranties, etc. All
representations and warranties made under this Agreement and the other Loan
Documents shall be deemed to be made at and as of the Agreement Date and at and
as of the date of each Advance and each Letter of Credit, and each shall be true
and correct when made, except to the extent (a) previously fulfilled in
accordance with the terms hereof, (b) applicable to a specific date or otherwise
subsequently inapplicable, or (c) previously waived in writing by the
Determining Lenders with respect to any particular factual circumstance. All
such representations and warranties shall survive, and not be
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waived by, the execution hereof by any Lender, any investigation or inquiry by
any Lender, or by the making of any Advance under this Agreement.
ARTICLE 5
General Covenants
From the Agreement Date and so long as any of the Obligations are
outstanding and unpaid or any Commitment is outstanding (whether or not the
conditions to borrowing have been or can be fulfilled):
Section 5.1 Preservation of Existence and Similar Matters. The
Borrower shall, and shall cause each Subsidiary to:
(a) except in connection with any merger or consolidation permitted by
Section 7.5(b) hereof, preserve and maintain, or timely obtain and thereafter
preserve and maintain, its existence, rights, franchises, licenses,
authorizations, consents, privileges and all other Necessary Authorizations from
federal, state and local governmental bodies and any tribunal (regulatory or
otherwise), the loss of which could have a Material Adverse Effect; and
(b) qualify and remain qualified and authorized to do business in each
jurisdiction in which the character of its properties or the nature of its
business requires such qualification or authorization, unless the failure to do
so could not have a Material Adverse Effect.
Section 5.2 Business; Compliance with Applicable Law. The Borrower
and each Subsidiary shall (a) engage substantially in the Borrower's Business,
and (b) comply in all material respects with the requirements of all Applicable
Law, the failure of which could reasonably be expected to have a Material
Adverse Effect.
Section 5.3 Maintenance of Properties. The Borrower shall, and shall
cause each Subsidiary to, maintain or cause to be maintained all its properties
(whether owned or held under lease) in reasonably good repair, working order and
condition, taken as a whole, and from time to time make or cause to be made all
appropriate repairs, renewals, replacements, additions, betterments and
improvements thereto.
Section 5.4 Accounting Methods and Financial Records. The Borrower
shall, and shall cause each Subsidiary to, (a) maintain a system of accounting
established and administered in accordance with GAAP, keep adequate records and
books of account in which complete entries will be made and all transactions
reflected in accordance with GAAP, and keep accurate and complete records of its
respective assets and (b) keep materially accurate and complete records
detailing separately items representing tangible cash exchanges and intangible
and barter exchanges. The Borrower and each Subsidiary shall maintain a fiscal
year ending on December 31.
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Section 5.5 Insurance. The Borrower shall, and shall cause each
Subsidiary to, maintain insurance from responsible companies in such amounts and
against such risks as shall be customary and usual in the industry for companies
of similar size and capability, but in no event less than the amount and types
insured as of the Agreement Date. Each insurance policy shall provide for at
least 30 days' prior notice to the Administrative Lender of any proposed
termination or cancellation of such policy, whether on account of default or
otherwise.
Section 5.6 Payment of Taxes and Claims. The Borrower shall, and
shall cause each Subsidiary to, pay and discharge all taxes, assessments and
governmental charges or levies imposed upon it or its income or properties prior
to the date on which penalties attach thereto, and all lawful material claims
for labor, materials and supplies which, if unpaid, might become a Lien upon any
of its properties; except that no such tax, assessment, charge, levy or claim
need be paid which is being diligently contested in good faith by appropriate
proceedings and for which adequate reserves shall have been set aside on the
appropriate books, but only so long as no Lien (other than a Permitted Lien)
shall attach with respect thereto and no foreclosure, distraint, sale or similar
proceedings shall have been commenced. The Borrower shall, and shall cause each
Subsidiary to, timely file all information returns required by federal, state or
local tax authorities.
Section 5.7 Visits and Inspections. The Borrower shall, and shall
cause each Subsidiary to, promptly permit representatives of the Administrative
Lender or any Lender from time to time to (a) visit and inspect the properties
of the Borrower and Subsidiary as often as the Administrative Lender or any
Lender shall deem advisable, (b) inspect and make extracts from and copies of
the Borrower's and Subsidiary's books and records, and (c) discuss with the
Borrower's and Subsidiary's directors, officers, employees and auditors its
business, assets, liabilities, financial positions, results of operations and
business prospects.
Section 5.8 Payment of Indebtedness. Subject to Section 5.6 hereof,
the Borrower shall, and shall cause each Subsidiary to, pay its Indebtedness
when and as the same becomes due, other than amounts (other than the
Obligations) duly and diligently disputed in good faith.
Section 5.9 Use of Proceeds. The Borrower shall use the proceeds of
Advances and Letters of Credit to make Acquisitions permitted under Section 7.6
hereof, to make Capital Expenditures, to make Investments (including advances to
Subsidiaries) permitted pursuant to Section 7.3 hereof, to refinance the
Indebtedness under the Prior Credit Agreement, for working capital and for other
general corporate purposes.
Section 5.10 Indemnity.
(a) The Borrower agrees to defend, protect, indemnify and hold
harmless the Administrative Lender, each Lender, the Issuing Bank, each of their
respective Affiliates, and each of their respective (including such Affiliates')
officers, directors, employees, agents, attorneys, shareholders and consultants
(including, without limitation, those retained in connection with the
satisfaction or attempted satisfaction of any of the conditions set forth
herein) of each of the foregoing (collectively, "Indemnitees") from and against
any and all liabilities, obligations, losses,
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damages, penalties, actions, judgments, suits, claims, costs, expenses and
disbursements of any kind or nature whatsoever (including, without limitation,
the reasonable fees and disbursements of counsel for such Indemnitees in
connection with any investigative, administrative or judicial proceeding,
whether or not such Indemnitees shall be designated a party thereto), imposed
on, incurred by, or asserted against such Indemnitees (whether direct, indirect
or consequential and whether based on any federal, state, or local laws and
regulations, under common law or at equitable cause, or on contract, tort or
otherwise, arising from or connected with the past, present or future operations
of the Borrower or its predecessors in interest, or the past, present or future
environmental condition of property of the Borrower), in any manner relating to
or arising out of this Agreement, the Loan Documents, or any act, event or
transaction or alleged act, event or transaction relating or attendant thereto,
the making of or any participations in the Advances or the Letters of Credit and
the management of the Advances and the Letters of Credit, including in
connection with, or as a result, in whole or in part, of any negligence of
Administrative Lender, the Issuing Bank or any Lender (other than those matters
raised exclusively by a participant against the Administrative Lender, the
Issuing Bank or any Lender and not the Borrower), or the use or intended use of
the proceeds of the Advances and the Letters of Credit hereunder, or in
connection with any investigation of any potential matter covered hereby, but
excluding any claim or liability that arises as the result of the gross
negligence or willful misconduct of any Indemnitee, as finally judicially
determined by a court of competent jurisdiction, but excluding matters raised by
one Lender against another Lender or by any shareholders of a Lender against a
Lender or its management (collectively, "Indemnified Matters"); provided
however, that so long as no Event of Default shall have occurred and be
continuing, there shall be no settlement by the Indemnitees or any of them with
respect to any Indemnified Matter without prior consultation with the Borrower.
(b) In addition, the Borrower shall periodically, upon request,
reimburse each Indemnitee for its reasonable legal and other actual out-of-
pocket expenses (including the cost of any investigation and preparation)
incurred in connection with any Indemnified Matter; provided, however, that the
Indemnitees agree that they shall endeavor to use legal counsel common to all
Indemnitees in connection with any Indemnification Matter unless any such
Indemnitee shall reasonably determine, in its sole discretion, that the use of
such common legal counsel would conflict with its interests in such
Indemnification Matter. If for any reason the foregoing indemnification is
unavailable to any Indemnitee or insufficient to hold any Indemnitee harmless
with respect to Indemnified Matters, then the Borrower shall contribute to the
amount paid or payable by such Indemnitee as a result of such loss, claim,
damage or liability in such proportion as is appropriate to reflect not only the
relative benefits received by the Borrower and the Borrower's stockholders,
shareholders or partners, as applicable, on the one hand and such Indemnitee on
the other hand but also the relative fault of the Borrower and such Indemnitee,
as well as any other relevant equitable considerations. The reimbursement,
indemnity and contribution obligations under this Section shall be in addition
to any liability which the Borrower may otherwise have, shall extend upon the
same terms and conditions to each Indemnitee, and shall be binding upon and
inure to the benefit of any successors, assigns, heirs and personal
representatives of the Borrower, the Administrative Lender, the Issuing Bank,
the Lenders and all other Indemnitees. This Section shall survive any
termination of this Agreement and payment of the Obligations.
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Section 5.11 Environmental Law Compliance. The use which the
Borrower or Subsidiary intends to make of any real property owned by it will not
result in the disposal or other release of any hazardous substance or solid
waste on or to such real property in any manner or quantities which would be
deemed a violation of the Applicable Environmental Laws. As used herein, the
terms "hazardous substance" and "release" as used in this Section shall have the
meanings specified in CERCLA (as defined in the definition of Applicable
Environmental Laws), and the terms "solid waste" and "disposal" shall have the
meanings specified in RCRA (as defined in the definition of Applicable
Environmental Laws); provided, however, that if CERCLA or RCRA is amended so as
to broaden the meaning of any term defined thereby, such broader meaning shall
apply subsequent to the effective date of such amendment; and provided further,
to the extent that any other law applicable to the Borrower, any Subsidiary or
any of their properties establishes a meaning for "hazardous substance,"
"release," "solid waste," or "disposal" which is broader than that specified in
either CERCLA or RCRA, such broader meaning shall apply. The Borrower agrees to
indemnify and hold the Administrative Lender, the Issuing Bank and each Lender
harmless from and against, and to reimburse them with respect to, any and all
claims, demands, causes of action, loss, damage, liabilities, costs and expenses
(including attorneys' fees and courts costs) of any kind or character, known or
unknown, fixed or contingent, asserted against or incurred by any of them at any
time and from time to time by reason of or arising out of (a) the failure of the
Borrower or Subsidiary to perform any obligation hereunder regarding asbestos or
Applicable Environmental Laws, (b) any violation on or before the Release Date
of any Applicable Environmental Law in effect on or before the Release Date, and
(c) any act, omission, event or circumstance existing or occurring on or prior
to the Release Date (including without limitation the presence on such real
property or release from such real property of hazardous substances or solid
wastes disposed of or otherwise released on or prior to the Release Date),
resulting from or in connection with the ownership of the real property,
regardless of whether the act, omission, event or circumstance constituted a
violation of any Applicable Environmental Law at the time of its existence or
occurrence, or whether the act, omission, event or circumstance is caused by or
relates to the negligence of any indemnified Person; provided that, the Borrower
shall not be under any obligation to indemnify the Administrative Lender, the
Issuing Bank or any Lender to the extent that any such liability arises as the
result of the gross negligence or willful misconduct of such Person, as finally
judicially determined by a court of competent jurisdiction. The provisions of
this paragraph shall survive the Release Date and shall continue thereafter in
full force and effect.
Section 5.12 Interest Rate Hedging. Within 90 days after the
Agreement Date, the Borrower will hedge its interest rate exposure pursuant to
and in accordance with Interest Hedge Agreements, in an amount not less than 50%
of the difference between outstanding Advances on any day after the Agreement
Date minus $5,000,000; provided, however, that any such Interest Hedge Agreement
shall be on terms and conditions mutually acceptable to the Borrower and the
Lenders.
Section 5.13 Subsidiaries. The Borrower shall, with respect to any
Subsidiary acquired or formed after the Agreement Date, execute a Borrower
Pledge Agreement covering the Pledged Stock of such Subsidiary, and shall cause
such Subsidiary to become party to a Subsidiary Guaranty, Subsidiary Security
Agreement and a Subsidiary Pledge Agreement.
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Section 5.14 Prior Credit Agreement. Simultaneously with the making
of the initial Advance or the issuance of the initial Letter of Credit, the
Borrower shall cause (i) all outstanding Indebtedness, interest, fees and
expenses under the Prior Credit Agreement to be paid in full and (ii) the
commitment of the lenders thereunder to make advances, and the issuing bank
thereunder to issue letters of credit, to terminate.
Section 5.15 Lease Agreements. With respect to each of the lease
agreements entered into by the Borrower or any Subsidiary after the date hereof,
the Borrower will use its best efforts to include landlord lien waiver,
estoppel, and attornment language in form and substance satisfactory to the
Administrative Lender.
ARTICLE 6
Information Covenants
From the Agreement Date and so long as any of the Obligations are
outstanding and unpaid or any Commitment is outstanding (whether or not the
conditions to borrowing have been or can be fulfilled), the Borrower shall
furnish or cause to be furnished to the Administrative Lender:
Section 6.1 Quarterly Financial Statements and Information.
(a) Within 50 days after the end of each fiscal quarter, combined cash
balance sheets of the Borrower and the Subsidiaries detailing tangible cash
exchanges as at the end of such quarter and the related combined cash statements
of income and combined statements of changes in cash of the Borrower and the
Subsidiaries for such quarter and for the elapsed portion of the year ended with
the last day of such quarter, all of which shall (i) be certified by the
president, vice president, treasurer or chief financial officer of the Borrower,
to be, in his or her opinion, complete and correct in all material respects and
to present fairly, the financial position and results of operations of the
Borrower and the Subsidiaries as at the end of and for such period, and for the
elapsed portion of the year ended with the last day of such period, subject only
to normal year-end adjustments and (ii) set forth in comparative form figures
for the corresponding fiscal quarter of the prior fiscal year.
(b) Within 45 days after the end of each fiscal quarter, combined
balance sheets of the Borrower and the Subsidiaries as at the end of such
quarter and the related combined statements of income and combined statements of
changes in cash for such quarter and for the elapsed portion of the year ended
with the last day of such quarter, all of which shall (i) be certified by the
president, vice president, treasurer or chief financial officer of the Borrower,
to be, in his or her opinion, complete and correct in all material respects and
to present fairly, in accordance with GAAP, the financial position and results
of operations of the Borrower and the Subsidiaries as at the end of and for such
period, and for the elapsed portion of the year ended with the last day of such
period, subject only to normal year-end adjustments, (ii) detail separately
tangible cash exchange items and intangible and barter exchange items, and (iii)
set forth in comparative form figures for the corresponding fiscal quarter of
the prior fiscal year.
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Section 6.2 Annual Financial Statements and Information; Certificate
of No Default.
(a) Within 95 days after the end of each fiscal year, a copy of (i)
the combined cash balance sheet of the Borrower and the Subsidiaries, as of the
end of the current and prior fiscal years and (ii) combined cash statements of
earnings, statements of changes in shareholders' equity, and statements of
changes in cash of the Borrower and the Subsidiaries as of and through the end
of such fiscal year, all of which (A) are certified by independent certified
public accountants acceptable to the Lenders, whose opinion shall be in scope
and substance in accordance with generally accepted auditing standards and shall
contain only such qualifications as may be acceptable to the Administrative
Lender and (B) set forth in comparative form figures for the corresponding
periods in the previous fiscal year.
(b) Within 90 days after the end of each fiscal year, a copy of (i)
the combined balance sheet of the Borrower and the Subsidiaries, as of the end
of the current and prior fiscal years and (ii) combined statements of earnings,
statements of changes in shareholders' equity, and statements of changes in cash
as of and through the end of such fiscal year, all of which (A) are prepared in
accordance with GAAP, and certified by independent certified public accountants
acceptable to the Lenders, whose opinion shall be in scope and substance in
accordance with generally accepted auditing standards and shall contain only
such qualifications as may be acceptable to the Administrative Lender, (B) shall
detail separately tangible cash exchange items and intangible and barter
exchange items and (C) set forth in comparative form figures for the
corresponding periods in the previous fiscal year.
(c) Simultaneously with the delivery of the statements required by
this Section 6.2, a letter from the Borrower's public accountants certifying
that no Default was detected during the examination of the Borrower and the
Subsidiaries, and authorizing the Borrower to deliver such financial statements
and opinion thereon to the Administrative Lender and Lenders pursuant to this
Agreement.
(d) As soon as available, but in any event within 60 days following
the end of each fiscal year, a copy of the annual combined operating budget of
the Borrower and the Subsidiaries for the succeeding fiscal year.
Section 6.3 Compliance Certificates. At the time financial
statements are furnished pursuant to Sections 6.1(a) and 6.2(a) hereof, a
certificate of an Authorized Signatory:
(a) setting forth at the end of such period, a calculation of the
Leverage Ratio, as well as certifications and arithmetical calculations required
to establish whether the Borrower and the Subsidiaries were in compliance with
the requirements of Sections 7.1(e) and (f), 7.3(h), 7.6, 7.10, 7.11, 7.12 and
7.18 hereof, which shall be substantially in the form of Exhibit G hereto;
(b) setting forth the aggregate amount of outstanding Advances and
Reimbursement Obligations and certifying as to compliance herewith; and
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(c) stating that, to the best of his or her knowledge after due
inquiry, no Default has occurred as at the end of such period, or if a Default
has occurred, disclosing each such Default and its nature, when it occurred,
whether it is continuing and the steps being taken with respect to such Default.
Section 6.4 Copies of Other Reports and Notices.
(a) Promptly upon their becoming available, a copy of (i) all material
reports or letters submitted to the Borrower or any Subsidiary by accountants in
connection with any annual, interim or special audit, including without
limitation any report prepared in connection with the annual audit referred to
in Section 6.2 hereof, and any other comment letter submitted to management in
connection with any such audit, (ii) each financial statement, report, notice or
proxy statement sent by the Borrower or any Subsidiary to stockholders
generally, (iii) each regular or periodic report and any registration statement
(other than statements on Form S-8) or prospectus (or material written
communication in respect of any thereof) filed by the Borrower or any Subsidiary
with any securities exchange, with the Securities and Exchange Commission or any
successor agency, and (iv) all press releases concerning material financial
aspects of the Borrower or any Subsidiary;
(b) Promptly upon becoming aware that (i) the holder(s) of any note(s)
or other evidence of indebtedness or other security of the Borrower or any
Subsidiary in excess of $250,000 in the aggregate has given notice or taken any
action with respect to a breach, failure to perform, claimed default or event of
default thereunder, (ii) any party to any Capitalized Lease Obligations or any
local marketing agreement has given notice or taken any action with respect to a
breach, failure to perform, claimed default or event of default thereunder,
(iii) any occurrence or non-occurrence of any event which constitutes or which
with the passage of time or giving of notice or both could constitute a material
breach by the Borrower or any Subsidiary under any material agreement or
instrument which could reasonably be expected to result in a liability in excess
of $250,000, other than this Agreement to which the Borrower or any Subsidiary
is a party or by which any of their properties may be bound, or (iv) any event,
circumstance or condition which could reasonably be expected to have a Material
Adverse Effect, a written notice specifying the details thereof (or the nature
of any claimed default or event of default) and what action is being taken or is
proposed to be taken with respect thereto; provided, however, no notice shall be
required to be delivered hereunder with respect to any event, circumstance or
condition set forth in clause (i), (ii) or (iii) immediately preceding if, in
the opinion of counsel to the Borrower or any Subsidiary, there is no reasonable
possibility of an adverse determination with respect to event, circumstance or
condition;
(c) Promptly upon receipt thereof, information with respect to and
copies of any notices received from any federal, state or local regulatory
agencies or any tribunal relating to any order, ruling, law, information or
policy that could reasonably be expected to result in the payment of money by
the Borrower or any Subsidiary in an amount of $250,000 or more in the
aggregate, or otherwise have a Material Adverse Effect, or result in the loss or
suspension of any Necessary Authorization; provided, however, no information
shall be required to be delivered hereunder if, in the opinion of counsel to the
Borrower or any Subsidiary, there is no reasonable possibility of an adverse
determination with respect to such notice;
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(d) Promptly upon receipt from any governmental agency, or any
government, political subdivision or other entity, any material notice,
correspondence, hearing, proceeding or order regarding or affecting the
Borrower, any Subsidiary, or any of their properties or businesses; and
(e) From time to time and promptly upon each request, such data,
certificates, reports, statements, opinions of counsel, documents or further
information regarding the assets, business, liabilities, financial position,
projections, results of operations or business prospects of the Borrower or
Subsidiary, as the Administrative Lender or any Lender may reasonably request.
Section 6.5 Notice of Litigation, Default and Other Matters. Prompt
notice of the following events after the Borrower has knowledge or notice
thereof:
(a) The commencement of all proceedings and investigations by or
before any Governmental Authority, and all actions and proceedings in any court
or before any arbitrator involving claims for damages, fines or penalties
(including punitive damages) in excess of $250,000 in the aggregate (after
deducting the amount for which the Borrower or Subsidiary is insured), against
or in any other way relating directly to the Borrower, any Subsidiary, or any of
their properties or businesses; provided, however, no notice shall be required
to be delivered hereunder if, in the opinion of counsel to the Borrower or such
Subsidiary, there is no reasonable possibility of an adverse determination in
such action or proceeding;
(b) Promptly upon the happening of any condition or event which
constitutes a Default, a written notice specifying the nature and period of
existence thereof and what action is being taken or is proposed to be taken with
respect thereto; and
(c) Any material adverse change with respect to the business, assets,
liabilities, financial position, results of operations or prospective business
of the Borrower or any Subsidiary, other than changes in the ordinary course of
business which have not had and are not likely to have a Material Adverse
Effect.
Section 6.6 ERISA Reporting Requirements.
(a) Promptly and in any event (i) within 30 days after the Borrower or
any member of its Controlled Group knows or has reason to know that any ERISA
Event described in clause (a) of the definition of ERISA Event or any event
described in Section 4063(a) of ERISA with respect to any Plan of the Borrower
or any member of its Controlled Group has occurred, and (ii) within 10 days
after the Borrower or any member of its Controlled Group knows or has reason to
know that any other ERISA Event with respect to any Plan of the Borrower or any
member of its Controlled Group has occurred or a request for a minimum funding
waiver under Section 412 of the Code with respect to any Plan of the Borrower or
any member of its Controlled Group, a written notice describing such event and
describing what action is being taken or is proposed to be taken with respect
thereto, together with a copy of any notice of event that is given to the PBGC;
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(b) Promptly and in any event within two Business Days after receipt
thereof by the Borrower or any member of its Controlled Group from the PBGC,
copies of each notice received by the Borrower or any member of its Controlled
Group of the PBGC's intention to terminate any Plan or to have a trustee
appointed to administer any Plan;
(c) Promptly and in any event within 30 days after the filing thereof
by the Borrower or any member of its Controlled Group with the United States
Department of Labor, the Internal Revenue Service or the PBGC, copies of each
annual and other report (including Schedule B thereto) with respect to each
Plan;
(d) Promptly and in any event within 30 days after receipt thereof, a
copy of any notice, determination letter, ruling or opinion the Borrower or any
member of its Controlled Group receives from the PBGC, the United States
Department of Labor or the Internal Revenue Service with respect to any Plan;
(e) Promptly, and in any event within 10 Business Days after receipt
thereof, a copy of any correspondence the Borrower or any member of its
Controlled Group receives from the Plan Sponsor (as defined by Section
4001(a)(10) of ERISA) of any Plan concerning potential withdrawal liability
pursuant to Section 4219 or 4202 of ERISA, and a statement from the chief
financial officer of the Borrower or such member of its Controlled Group setting
forth details as to the events giving rise to such potential withdrawal
liability and the action which the Borrower or such member of its Controlled
Group is taking or proposes to take with respect thereto;
(f) Notification within 30 days of any material increases in the
benefits of any existing Plan which is not a Multiemployer Plan, or the
establishment of any new Plans, or the commencement of contributions to any Plan
to which the Borrower or any member of its Controlled Group was not previously
contributing;
(g) Notification within three Business Days after the Borrower or any
member of its Controlled Group knows or has reason to know that the Borrower or
any such member of its Controlled Group has or intends to file a notice of
intent to terminate any Plan under a distress termination within the meaning of
Section 4041(c) of ERISA and a copy of such notice; and
(h) Promptly after receipt of written notice of commencement thereof,
notice of all actions, suits and proceedings before any court or governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, affecting the Borrower or any member of its Controlled Group with
respect to any Plan, except those which, in the aggregate, if adversely
determined could not have a Material Adverse Effect.
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ARTICLE 7
Negative Covenants
From the Agreement Date and so long as any of the Obligations are
outstanding and unpaid or any Commitment is outstanding (whether or not the
conditions to borrowing have been or can be fulfilled):
Section 7.1 Indebtedness. The Borrower shall not, and shall not
permit any Subsidiary to, create, assume, incur or otherwise become or remain
obligated in respect of, or permit to be outstanding, or suffer to exist any
Indebtedness, except:
(a) Indebtedness of the Borrower and the Subsidiaries under the Loan
Documents;
(b) Accounts payable of the Borrower and the Subsidiaries incurred in
the ordinary course of business;
(c) Indebtedness of the Borrower and the Subsidiaries evidenced by the
Intercompany Notes;
(d) Indebtedness of the Borrower and the Subsidiaries set forth on
Schedule 8 hereto, and all renewals and extensions (but not increases) thereof;
(e) Subordinated Debt of the Borrower and the Subsidiaries not to
exceed $5,000,000 in aggregate amount, provided that the Lenders shall have
received at least 10 Business Days prior to the incurrence of any Subordinated
Debt a Compliance Certificate setting forth on a pro-forma basis, taking into
account the proposed incurrence of the Subordinated Debt for the four fiscal
quarters immediately preceding the date of determination, the covenant
calculations described in Section 6.3(a) hereof; and
(f) Other Indebtedness of the Borrower and the Subsidiaries not to
exceed $2,000,000 in aggregate amount;
provided, however, the incurrence of Indebtedness otherwise permitted pursuant
to clauses (c), (e) and (f) immediately preceding shall be permitted only if
there shall exist no Default prior to or after giving effect to any such
proposed Indebtedness.
Section 7.2 Liens. The Borrower shall not, and shall not permit any
Subsidiary to, create, assume, incur, permit or suffer to exist, directly or
indirectly, any Lien on any of their assets, whether now owned or hereafter
acquired, except Permitted Liens. The Borrower shall not, and shall not permit
any Subsidiary to, agree with any other Person that it shall not create, assume,
incur, permit or suffer to exist or to be created, assumed, incurred or
permitted to exist, directly or indirectly, any Lien on any of its assets.
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Section 7.3 Investments. The Borrower shall not, and shall not
permit any Subsidiary to, make, own or maintain any Investment, except that the
Borrower may purchase or otherwise acquire and own and maintain:
(a) Marketable, direct obligations of, or guaranteed by, the United
States of America and maturing within 365 days of the date of purchase;
(b) Commercial paper maturing not more than 1 year from the date of
creation having a rating of A-1/P-1 or better by Moody's Investors Service, Inc.
or Standard & Poor's Ratings Group, a division of McGraw-Hill, Inc., a New York
corporation;
(c) Certificates of deposit of domestic banks maturing within 365 days
of the date of purchase, which banks' debt obligations have one of the two
highest ratings obtainable from Moody's Investors Service, Inc. or Standard &
Poor's Ratings Group, a division of McGraw-Hill, Inc., a New York corporation;
(d) Securities issued by U.S. corporations that have one of the two
highest ratings obtainable from Moody's Investors Service, Inc. or Standard &
Poor's Ratings Group, a division of McGraw-Hill, Inc., a New York corporation;
(e) Accounts receivable that arise in the ordinary course of business
and are payable on standard terms;
(f) Investments in existence on the Agreement Date which are described
on Schedule 7 hereto;
(g) Investments in Subsidiaries permitted pursuant to Section 7.8
hereof; and
(h) Other Investments primarily related to the Borrower's Business not
to exceed $500,000 in aggregate amount provided that no Default exists prior to
or after giving effect to such an Investment.
Section 7.4 Amendment and Waiver. Except in connection with any
merger or consolidation permitted pursuant to Section 7.5(b) hereof, the
Borrower shall not, and shall not permit any Subsidiary to, enter into any
amendment of any material term or provision of its articles of incorporation,
by-laws, or partnership agreement, as applicable. In addition, the Borrower
shall not, and shall not permit any Subsidiary to, enter into any amendment of,
or agree to or accept any waiver of any of the provisions of, any Necessary
Authorization, unless (a) the Determining Lenders consent to such amendment and
(b) the Lenders are provided with 10 days' written notice prior to the execution
or effectiveness of the proposed amendment or waiver.
Section 7.5 Liquidation, Disposition or Acquisition of Assets,
Merger, New Subsidiaries. The Borrower shall not, and shall not permit any
Subsidiary to, at any time:
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(a) liquidate or dissolve itself (or suffer any liquidation or
dissolution) or otherwise wind up; or sell, lease, abandon, transfer or
otherwise dispose of all or any part of its assets, properties or business,
other than immaterial assets sold in the ordinary course of business;
(b) enter into any merger or consolidation except that (i) any of the
Subsidiaries may merge with the Borrower (provided that the Borrower shall be
the continuing or surviving corporation), (ii) any of the Subsidiaries may merge
with one or more of the other Subsidiaries, and (iii) any of the Subsidiaries
may merge or consolidate with any other corporation, provided that, immediately
after giving effect to such merger or consolidation (x) the continuing or
surviving corporation shall constitute a Subsidiary and (y) no Default or Event
of Default shall exist hereunder and, provided, further that the Administrative
Lender shall have received at least 10 Business Days' notice prior to the date
of any merger or consolidation permitted under this Section 7.5(b); or
(c) create or acquire any Subsidiary, except as permitted by
Section 7.6.
Section 7.6 Acquisitions. The Borrower shall not, and shall not
permit any Subsidiary to make (a) any single Acquisition during the period
commencing on the Agreement Date and ending on December 31, 1996, or during any
fiscal year ending after December 31, 1996, the Acquisition Consideration for
which exceeds $2,500,000; (b) any single Acquisition during the period
commencing on the Agreement Date and ending on December 31, 1996, or during any
fiscal year ending after December 31, 1996, if, during any such period,
aggregate Acquisition Consideration given by the Borrower and the Subsidiaries
for Acquisitions prior to such Acquisition shall have equalled or exceeded
$5,000,000; (c) any Acquisition, unless (i) the Lenders shall have received
prior written notice at least 30 Business Days prior to the date of such
transaction, (ii) the Administrative Lender shall have received at least 10
Business Days prior to the date of such transaction a Compliance Certificate in
the form required by Section 6.3 hereof, but setting forth the covenant
calculations described in Section 6.3(a) hereof both prior to and after giving
effect to the proposed transaction, (iii) no Default or Event of Default shall
exist prior to or after such Acquisition, (iv) the Person who is, or whose
assets are being, acquired is engaged in the Borrower's Business, (v) the
capital stock, partnership interests and Intercompany Notes, as applicable, of
the Subsidiary being acquired are pledged pursuant to the appropriate Pledge
Agreement, (vi) the assets of the Subsidiary being acquired, or the assets being
acquired, are pledged pursuant to the appropriate Security Agreement, (vii) the
Subsidiary being acquired becomes party to a Subsidiary Guaranty, and (d) any
Acquisition the aggregate Acquisition Consideration for which equals or exceeds
$2,500,000 unless (in addition to the foregoing requirements and limitations)
each Lender receives financial projections in form and substance acceptable to
the Lenders and demonstrating compliance with (i) the covenants described in
Section 6.3(a) hereof and (ii) the required repayments as a result of the
reductions in the Commitment set forth in Section 2.6(c) hereof, each after
giving effect to such acquisition and for the period beginning on such date of
acquisition and ending on the Maturity Date.
Section 7.7 Dividends. The Borrower shall not, and shall not permit
any Subsidiary to, directly or indirectly declare or pay any Dividend; provided,
however, (a) any Subsidiary may declare and pay Dividends to the Borrower or to
any other Subsidiary, and (b) the Borrower shall
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be permitted to pay Dividends on its capital stock provided that (i) Section
2.5(c) hereof is complied with prior to the declaration and paying of such
Dividend, (ii) such Dividend shall not exceed 10% of Excess Cash Flow, if any,
for the fiscal year ending on December 31 immediately preceding such fiscal year
in which such Dividend is to be paid, and (iii) no Default or Event of Default
shall exist prior to or after declaring or paying any such Dividend.
Section 7.8 Affiliate Transactions. The Borrower shall not, and
shall not permit any Subsidiary to, at any time engage in any transaction with
an Affiliate, nor make an assignment or other transfer of any of its assets or
properties to any Affiliate, on terms materially less advantageous to the
Borrower or such Subsidiary than would be the case if such transaction had been
effected with a non-Affiliate (other than advances to employees in the ordinary
course of business). Notwithstanding the foregoing, the Borrower may loan the
proceeds of Advances to Subsidiaries, so long as (a) there shall exist no
Default prior to or after giving effect to such proposed loan, (b) such advances
are evidenced by Intercompany Notes that have been pledged pursuant to the
Pledge Agreements and for which entries in the financial records of the Borrower
and the Subsidiaries are made evidencing such loans and repayments thereof, (c)
the Subsidiary to which such advance is being made has (i) pledged its assets
pursuant to the Subsidiary Security Agreement, (ii) become a party to the
Subsidiary Guaranty, and (d) the capital and stock of the Subsidiary to which
such an advance is being made has been pledged pursuant to the appropriate
Pledge Agreement.
Section 7.9 Compliance with ERISA. The Borrower shall not, and shall
not permit any Subsidiary to, directly or indirectly, or permit any member of
its Controlled Group to directly or indirectly, (a) terminate any Plan so as to
result in any material (in the opinion of the Determining Lenders) liability to
the Borrower or any member of its Controlled Group, (b) permit to exist any
ERISA Event, or any other event or condition which presents the risk of a
material (in the opinion of the Determining Lenders) liability of the Borrower
or any member of its Controlled Group, (c) make a complete or partial withdrawal
(within the meaning of Section 4201 of ERISA) from any Multiemployer Plan so as
to result in any material (in the opinion of the Determining Lenders) liability
to the Borrower or any member of its Controlled Group, (d) enter into any new
Plan or modify any existing Plan so as to increase its obligations thereunder
except in the ordinary course of business consistent with past practice which
could result in any material (in the opinion of the Determining Lenders)
liability to the Borrower or any member of its Controlled Group, or (e) permit
the present value of all benefit liabilities, as defined in Title IV of ERISA,
under each Plan of the Borrower or any member of its Controlled Group (using the
actuarial assumptions utilized by the PBGC upon termination of a plan) to
materially (in the opinion of the Determining Lenders) exceed the fair market
value of Plan assets allocable to such benefits all determined as of the most
recent valuation date for each such Plan.
Section 7.10 Leverage Ratio. At the end of each fiscal quarter
occurring during the periods indicated below, the Borrower, on a combined
basis, shall not permit the Leverage Ratio to be greater than:
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Period Ratio
------ -----
From Agreement Date through March 31, 1998 2.00 to 1
April 1, 1998 through March 31, 1999 1.50 to 1
April 1, 1999 and thereafter 1.00 to 1
Section 7.11 Fixed Charges Coverage Ratio. At the end of each fiscal
quarter occurring during the periods indicated below, the Borrower, on a
combined basis, shall not permit the ratio of (a) Operating Cash Flow for the
four fiscal quarters then ending to (b) Fixed Charges for such fiscal quarters
to be less than:
Period Ratio
------ -----
From Agreement Date through June 30, 1997 1.25 to 1
From July 1, 1997 and thereafter 1.35 to 1
Section 7.12 Debt Service Coverage Ratio. The Borrower, on a
combined basis, shall not permit the ratio of (a) Operating Cash Flow for the
four fiscal quarters then ending, to (b) Pro-Forma Debt Service for the four
succeeding fiscal quarters, to be less than 1.75 to 1 at the end of each fiscal
quarter during the term of this Agreement.
Section 7.13 Capital Stock of the Borrower. The Borrower shall not,
and shall not permit any Subsidiary to, make or permit any issuance, transfer,
assignment, distribution, mortgage, pledge or gift of any shares of Pledged
Stock, except in connection with issuances permitted by Schedule 5 hereto and
then only if such shares are pledged and delivered to the Administrative Lender
pursuant to the Pledge Agreements.
Section 7.14 Sale and Leaseback. The Borrower shall not, and shall
not permit any Subsidiary to, enter into any arrangement whereby it sells or
transfers any of its assets, and thereafter rents or leases such assets.
Section 7.15 Sale or Discount of Receivables. The Borrower shall
not, and shall not permit any Subsidiary to, directly or indirectly sell, with
or without recourse, for discount or otherwise, any notes or accounts
receivable.
Section 7.16 Conduct of Business. The Borrower shall not (a) permit
any Subsidiary to, engage in any type of business except the Subsidiaries'
Business and (b) engage in any type of business except for the owning of the
capital stock of its Subsidiaries and activities incidental thereto.
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Section 7.17 Subordinated Debt. The Borrower shall not, and shall
not permit any Subsidiary to, (a) after the occurrence and during the
continuance of a Default or Event of Default, make any payment of principal,
interest, premium, fee or otherwise with respect to Subordinated Debt, (b)
prepay, redeem, repurchase or defease, or set aside funds for the prepayment,
redemption, repurchase or defeasance of all or any portion of the Subordinated
Debt or (c) amend or change (or take any action or fail to take any action the
result of which is an effective amendment or change) or accept any waiver or
consent with respect to, any document or instrument in connection with any
Subordinated Debt that would result in (i) an increase in the outstanding
principal amount of the Subordinated Debt, (ii) a change in any principal,
interest, fees, or other amounts payable under the Subordinated Debt (including
without limitation a waiver or action that results in the waiver of any payment
default under the Subordinated Debt), (iii) a change in any date fixed for any
payment of principal, interest, fees, or other amounts payable under the
Subordinated Debt (including, without limitation, as a result of any redemption,
defeasance or otherwise), (iv) a change in any percentage of holders of the
Subordinated Debt required to take (or refrain from taking) any action, (v) a
change in any financial covenant, (vi) a change in any remedy or right of the
holders of the Subordinated Debt, (vii) a change in any covenant, term or
provision which would result in such term or provision being more restrictive
than the terms of this Agreement and the other Loan Documents, (viii) a change
that grants or permits the granting of any security interest or Lien on any
asset or property of the Borrower or any Subsidiary to secure any Subordinated
Debt, or (ix) a change in any term or provision of any document or instrument in
connection with any Subordinated Debt that could have, in any material respect,
an adverse effect on the interests of Lenders.
Section 7.18 Affiliate Contracts. The aggregate number of Affiliate
Contracts of the Borrower and the Subsidiaries, collectively, existing as of the
last day of any fiscal quarter of the Borrower shall not be less than the
aggregate number of Affiliate Contracts of the Borrower and the Subsidiaries,
collectively, existing as of the last day of the immediately preceding fiscal
quarter; provided, however, that no Event of Default shall occur as a result of
a violation of this Section 7.18 unless such violation exists for two
consecutive fiscal quarters.
ARTICLE 8
Default
Section 8.1 Events of Default. Each of the following shall
constitute an Event of Default, whatever the reason for such event, and whether
voluntary, involuntary, or effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
governmental or non-governmental body:
(a) Any representation or warranty made under any Loan Document shall
prove to have been incorrect or misleading in any material respect when made;
(b) The Borrower shall default in the payment of (i) any interest
under any Note or any fees payable hereunder or any other costs, fees, expenses
or other amounts payable hereunder or
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under the Loan Documents, when due, which Default is not cured by the earlier of
two Business Days after notice (which may be oral) from the Administrative Agent
to the Borrower and three days from the date such payment became due by payment
of such late amount, or (ii) any principal under any of the Notes;
(c) If any Letter of Credit shall be then outstanding, the
Administrative Lender may (or, upon the direction of the Determining Lenders,
shall) demand upon the Borrower to, and forthwith upon such demand, the Borrower
shall, pay to the Administrative Lender in same day funds at the office of the
Administrative Lender on such demand for deposit in the L/C Cash Collateral
Account, an amount equal to the maximum amount available to be drawn under the
Letters of Credit then outstanding;
(d) The Borrower or any Subsidiary shall default in the performance or
observance of any agreement or covenant contained in Sections 5.1, 5.9, 5.14 or
Article 7 hereof;
(e) The Borrower or any Subsidiary shall default in the performance or
observance of any other agreement or covenant contained in this Agreement not
specifically referred to elsewhere in this Section 8.1, and such default shall
not be cured within a period of 30 days after the earlier of written notice from
the Administrative Lender thereof or actual notice thereof;
(f) There shall occur any default or breach in the performance or
observance of any agreement or covenant (after the expiration of any applicable
grace period) or breach of any representation or warranty contained in any of
the Loan Documents (other than this Agreement);
(g) There shall be entered a decree or order by a court having
jurisdiction in the premises constituting an order for relief in respect of the
Borrower or any Subsidiary under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other applicable Federal or state
bankruptcy law or other similar law, or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or similar official of the Borrower
or any Subsidiary, or of any substantial part of their respective properties, or
ordering the winding-up or liquidation of the affairs of the Borrower or any
Subsidiary, and any such decree or order shall continue unstayed and in effect
for a period of 60 consecutive days;
(h) The Borrower or any Subsidiary shall file a petition, answer or
consent seeking relief under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other applicable Federal or state
bankruptcy law or other similar law, or the Borrower or any Subsidiary shall
consent to the institution of proceedings thereunder or to the filing of any
such petition or to the appointment or taking of possession of a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Borrower or any Subsidiary or of any substantial part of their respective
properties, or the Borrower or any Subsidiary shall fail generally to pay its
debts as they become due, or the Borrower or any Subsidiary shall take any
action in furtherance of any such action;
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(i) A final judgment or judgments shall be entered by any court
against the Borrower or any Subsidiary for the payment of money which exceeds
$250,000 in the aggregate, or a warrant of attachment or execution or similar
process shall be issued or levied against property of the Borrower or any
Subsidiary which, together with all other such property of the Borrower and the
Subsidiaries subject to other such process, exceeds in value $250,000 in the
aggregate, and if such judgment or award is not insured or, within 30 days after
the entry, issue or levy thereof, such judgment, warrant or process shall not
have been paid or discharged or stayed pending appeal, or if, after the
expiration of any such stay, such judgment, warrant or process shall not have
been paid or discharged;
(j) With respect to any Plan of the Borrower or any member of its
Controlled Group: (i) the Borrower, any such member, or any other party-in-
interest or disqualified person shall engage in transactions which in the
aggregate would reasonably result in a direct or indirect liability to the
Borrower or any member of its Controlled Group in excess of $250,000 under
Section 409 or 502 of ERISA or Section 4975 of the Code; (ii) the Borrower, or
any member of its Controlled Group shall incur any accumulated funding
deficiency, as defined in Section 412 of the Code, in the aggregate in excess of
$250,000, or request a funding waiver from the Internal Revenue Service for
contributions in the aggregate in excess of $250,000; (iii) the Borrower or any
member of its Controlled Group shall incur any withdrawal liability in the
aggregate in excess of $250,000 as a result of a complete or partial withdrawal
within the meaning of Section 4203 or 4205 of ERISA; (iv) the Borrower or any
member of its Controlled Group shall fail to make a required contribution by the
due date under Section 412 of the Code or Section 302 of ERISA which would
result in the imposition of a lien under Section 412 of the Code or Section 302
of ERISA; (v) the Borrower, any member of its Controlled Group or any Plan
sponsor shall notify the PBGC of an intent to terminate, or the PBGC shall
institute proceedings to terminate, or the PBGC shall institute proceedings to
terminate, any Plan; (vi) a Reportable Event shall occur with respect to a Plan,
and within 15 days after the reporting of such Reportable Event to the
Administrative Lender, the Administrative Lender shall have notified the
Borrower in writing that the Determining Lenders have made a determination that,
on the basis of such Reportable Event, there are reasonable grounds for the
termination of such Plan by the PBGC or for the appointment by the appropriate
United States District Court of a trustee to administer such Plan and as a
result thereof an Event of Default shall have occurred hereunder; (vii) a
trustee shall be appointed by a court of competent jurisdiction to administer
any Plan or the assets thereof; (viii) the benefits of any Plan shall be
increased, or the Borrower or any member of its Controlled Group shall begin to
maintain, or begin to contribute to, any Plan, without the prior written consent
of the Determining Lenders; or (ix) any ERISA Event with respect to a Plan shall
have occurred, and 30 days thereafter (A) such ERISA Event, other than such
event described in clause (vi) of the definition of ERISA Event herein, (if
correctable) shall not have been corrected and (B) the then present value of
such Plan's benefit liabilities, as defined in Title IV of ERISA, shall exceed
the then current value of assets accumulated in such Plan; provided, however,
that the events listed in subsections (v) through (ix) shall constitute
Events of Default only if, as of the date thereof or any subsequent date, the
maximum amount of liability that the Borrower or any member of its Controlled
Group could incur in the aggregate under Section 4062, 4063, 4064, 4219 or 4023
of ERISA or any other provision of law with respect to all such Plans, computed
by the actuary of the Plan taking into account any applicable rules and
regulations of the PBGC at such time, and based
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on the actuarial assumptions used by the Plan, resulting from or otherwise
associated with such event exceeds $250,000;
(k) All or any material portion of the Collateral or the Loan
Documents shall be the subject of any proceeding instituted by any Person other
than a Lender (except in connection with any Lender's exercise of any remedies
under the Loan Documents), or there shall exist any litigation or threatened
litigation with respect to all or any material portion of the Collateral or the
Loan Documents, or the Borrower or any Subsidiary shall challenge in any manner
whatsoever the validity or enforceability of all or any portion of the Loan
Documents or the Collateral; provided, however, that during any such time any
such circumstance shall be bonded or stayed in accordance with Applicable Law
and to the satisfaction of the Determining Lenders, such circumstance shall not
be an Event of Default;
(l) The Borrower or any Subsidiary shall default in the payment of any
Indebtedness in an aggregate amount of $500,000 or more beyond any grace period
provided with respect thereto, or shall default in the performance of any
agreement or instrument under which such Indebtedness is created or evidenced
beyond any applicable grace period or any event shall occur under such agreement
or instrument, if the effect of such default or event is to permit or cause the
holder of such Indebtedness (or a trustee on behalf of any such holder) to cause
such Indebtedness to become due prior to its date of maturity;
(m) Any material Necessary Authorization shall be revoked; or there
shall occur a material default under any material Necessary Authorization by the
Borrower or any Subsidiary beyond any applicable grace period; or any
proceedings shall in any way be brought by any Person to challenge the validity
or enforceability of any material Necessary Authorization; or proceedings for
the renewal of any material Necessary Authorization shall not be commenced at
least 90 days prior to the expiration thereof; or any material Necessary
Authorization shall expire due to termination, nonrenewal or for any other
reason, or shall be designated for a revocation hearing;
(n) Any material provision of any Loan Document shall for any reason
cease to be valid and binding on or enforceable against any party to it (other
than the Administrative Lender or any Lender) in all material respects, or any
such party shall so state in writing; or
(o) There shall occur any Change of Control.
Section 8.2 Remedies. If an Event of Default shall have occurred and
shall be continuing:
(a) With the exception of an Event of Default specified in Section
8.1(g) or (h) hereof, the Administrative Lender shall, upon the direction of the
Determining Lenders, terminate the Commitments and/or declare the principal of
and interest on the Advances and all Obligations and other amounts owed under
the Loan Documents to be forthwith due and payable without presentment, demand,
protest or notice of any kind, all of which are hereby expressly waived,
anything in the Loan Documents to the contrary notwithstanding.
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(b) Upon the occurrence of an Event of Default specified in Section
8.1(g) or (h) hereof, such principal, interest and other amounts shall thereupon
and concurrently therewith become due and payable and the Commitments shall
forthwith terminate, all without any action by the Administrative Lender, any
Lender or any holders of the Notes and without presentment, demand, protest or
other notice of any kind, all of which are expressly waived, anything in the
Loan Documents to the contrary notwithstanding.
(c) If any Letter of Credit shall be then outstanding, the
Administrative Lender may (or, upon the direction of the Determining Lenders,
shall) demand upon the Borrower to, and forthwith upon such demand, the Borrower
shall pay to the Administrative Lender in same day funds at the office of the
Administrative Lender on such demand for deposit in the L/C Cash Collateral
Account, an amount equal to the maximum amount available to be drawn under the
Letters of Credit then outstanding.
(d) The Administrative Lender, and the Lenders may exercise all of the
post-default rights granted to them under the Loan Documents or under Applicable
Law.
(e) The rights and remedies of the Administrative Lender and the
Lenders hereunder shall be cumulative, and not exclusive.
ARTICLE 9
Changes in Circumstances
Section 9.1 LIBOR Basis Determination Inadequate. If with respect to
any proposed LIBOR Advance for any Interest Period, any Lender determines that
(i) deposits in dollars (in the applicable amount) are not being offered to that
Lender in the relevant market for such Interest Period or (ii) the LIBOR Basis
for such proposed LIBOR Advance does not adequately cover the cost to such
Lender of making and maintaining such proposed LIBOR Advance for such Interest
Period, such Lender shall forthwith give notice thereof to the Borrower,
whereupon until such Lender notifies the Borrower that the circumstances giving
rise to such situation no longer exist, the obligation of such Lender to make
LIBOR Advances shall be suspended.
Section 9.2 Illegality. If any applicable law, rule or regulation,
or any change therein or adoption thereof, or interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Lender
(or its LIBOR Lending Office) with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency, shall make it unlawful or impossible for such Lender (or its LIBOR
Lending Office) to make, maintain or fund its LIBOR Advances, such Lender shall
so notify the Administrative Lender and the Administrative Lender shall so
notify the Borrower. Before giving any notice to the Administrative Lender
pursuant to this Section, the notifying Lender shall designate a different LIBOR
Lending Office or other lending office if such designation will avoid the need
for giving such notice and will not, in the sole
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judgment of the Lender, be materially disadvantageous to the Lender. Upon
receipt of such notice by the Borrower, notwithstanding anything contained in
Article 2 hereof, the Borrower shall repay in full the then outstanding
principal amount of each LIBOR Advance owing to the notifying Lender, together
with accrued interest thereon, on either (a) the last day of the Interest Period
applicable to such Advance, if the Lender may lawfully continue to maintain and
fund such Advance to such day, or (b) immediately, if the Lender may not
lawfully continue to fund and maintain such Advance to such day. Concurrently
with repaying each affected LIBOR Advance owing to such Lender, notwithstanding
anything contained in Article 2 hereof, the Borrower shall borrow a Prime Rate
Advance from such Lender, and such Lender shall make such Prime Rate Advance, in
an amount such that the outstanding principal amount of the Advances owing to
such Lender shall equal the outstanding principal amount of the Advances owing
immediately prior to such repayment.
Section 9.3 Increased Costs.
(a) If any applicable law, rule or regulation, or any change in or
adoption of any law, rule or regulation, or any interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof or compliance by any Lender
(or its LIBOR Lending Office) with any request or directive (whether or not
having the force of law) of any such authority, central bank or compatible
agency:
(i) shall subject a Lender (or its LIBOR Lending Office) to any
tax, duty or other charge (net of any tax benefit engendered thereby) with
respect to its LIBOR Advances or its obligation to make such Advances, or
shall change the basis of taxation of payments to a Lender (or to its LIBOR
Lending Office) of the principal of or interest on its LIBOR Advances or in
respect of any other amounts due under this Agreement, as the case may be,
or its obligation to make such Advances (except for changes in the rate of
tax on the overall net income of the Lender or its LIBOR Lending Office and
franchise taxes imposed upon such Lender); or
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors of
the Federal Reserve System), special deposit or similar requirement against
assets of, deposits with or for the account of, or credit extended by, a
Lender's LIBOR Lending Office or shall impose on the Lender (or its LIBOR
Lending Office) or on the United States market for certificates of deposit
or the London interbank market any other condition affecting its LIBOR
Advances or its obligation to make such Advances;
and the result of any of the foregoing is to increase the cost to a Lender (or
its LIBOR Lending Office) of making or maintaining any LIBOR Advances, or to
reduce the amount of any sum received or receivable by a Lender (or its LIBOR
Lending Office) with respect thereto, by an amount deemed by a Lender to be
material, then, within 15 days after demand by a Lender to the Borrower, the
Borrower agrees to pay to such Lender such additional amount as will compensate
such Lender for such increased costs or reduced amounts. The affected Lender
will as soon as practicable notify the Borrower of any event of which it has
knowledge, occurring after the Agreement Date, which
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will entitle such Lender to compensation pursuant to this Section and will
designate a different LIBOR Lending Office or other lending office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the sole judgment of the affected Lender made in good faith, be
disadvantageous to such Lender.
(b) A certificate of any Lender claiming compensation under this Section
and setting forth the additional amounts to be paid to it hereunder and
calculations therefor shall be conclusive in the absence of manifest error. In
determining such amount, a Lender may use any reasonable averaging and
attribution methods. If a Lender demands compensation under this Section, the
Borrower may at any time, upon at least five Business Days' prior notice to the
Lender, after reimbursement to the Lender by the Borrower in accordance with
this Section of all costs incurred, prepay in full the then outstanding LIBOR
Advances of the Lender, together with accrued interest thereon to the date of
prepayment, along with any reimbursement required under Section 2.9 hereof.
Concurrently with prepaying such LIBOR Advances, the Borrower shall borrow a
Prime Rate Advance from the Lender, and the Lender shall make such Prime Rate
Advance, in an amount such that the outstanding principal amount of the Advances
owing to such Lender shall equal the outstanding principal amount of the
Advances owing immediately prior to such prepayment.
Section 9.4 Effect On Prime Rate Advances. If notice has been given
pursuant to Section 9.1, 9.2 or 9.3 hereof suspending the obligation of a Lender
to make LIBOR Advances, or requiring LIBOR Advances of a Lender to be repaid or
prepaid, then, unless and until the Lender notifies the Borrower that the
circumstances giving rise to such repayment no longer apply, all Advances which
would otherwise be made by such Lender as LIBOR Advances shall be made instead
as Prime Rate Advances.
Section 9.5 Capital Adequacy. If either (a) the introduction of or any
change in or in the interpretation of any law, rule or regulation or (b)
compliance by a Lender with any law, rule or regulation or any guideline or
request from any central bank or other governmental authority (whether or not
having the force of law) affects or would affect the amount of capital required
or expected to be maintained by a Lender or any corporation controlling such
Lender, and such Lender determines that the amount of such capital is increased
by or based upon the existence of such Lender's Commitment or Advances hereunder
and other commitments or advances of such Lender of this type, then, upon demand
by such Lender to the Borrower, subject to Section 11.9, the Borrower shall
immediately pay to such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender with respect to such
circumstances, to the extent that such Lender reasonably determines in good
faith such increase in capital to be allocable to the existence of such Lender's
Commitment hereunder. A certificate as to such amounts submitted to the Borrower
by a Lender hereunder, shall, in the absence of demonstrable error, be
conclusive and binding for all purposes.
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ARTICLE 10
AGREEMENT AMONG LENDERS
Section 10.1 Agreement Among Lenders. The Lenders agree among themselves
that:
(a) Administrative Lender. Each Lender hereby appoints the Administrative
Lender as its nominee in its name and on its behalf, to receive all documents
and items to be furnished hereunder; to act as nominee for and on behalf of all
Lenders under the Loan Documents; to take such action as may be requested by
Determining Lenders, provided that, unless and until the Administrative Lender
shall have received such requests, the Administrative Lender may take such
administrative action, or refrain from taking such administrative action, as it
may deem advisable and in the best interests of the Lenders; to arrange the
means whereby the proceeds of the Advances of the Lenders are to be made
available to the Borrower; to distribute promptly to each Lender information,
requests and documents received from the Borrower, and each payment (in like
funds received) with respect to any of such Lender's Advances, fee or other
amount; and to deliver to the Borrower requests, demands, approvals and consents
received from the Lenders. Administrative Lender agrees to promptly distribute
to each Lender, at such Lender's address set forth below information, requests,
documents and payments received from the Borrower.
(b) Replacement of Administrative Lender. Should the Administrative Lender
or any successor Administrative Lender ever cease to be a Lender hereunder, or
should the Administrative Lender or any successor Administrative Lender ever
resign as Administrative Lender, or should the Administrative Lender or any
successor Administrative Lender ever be removed with cause by the Determining
Lenders, then the Lender appointed by the other Lenders shall forthwith become
the Administrative Lender, and the Borrower and the Lenders shall execute such
documents as any Lender may reasonably request to reflect such change. Any
resignation or removal of the Administrative Lender or any successor
Administrative Lender shall become effective upon the appointment by the Lenders
of a successor Administrative Lender; provided, however, that if the Lenders
fail for any reason to appoint a successor within 60 days after such removal or
resignation, the Administrative Lender or any successor Administrative Lender
(as the case may be) shall thereafter have no obligation to act as
Administrative Lender hereunder.
(c) Expenses. Each Lender shall pay its pro rata share, based on its
Specified Percentage, of any expenses paid by the Administrative Lender directly
and solely in connection with any of the Loan Documents if Administrative Lender
does not receive reimbursement therefor from other sources within 60 days after
the date incurred, unless payment of such fees is being diligently disputed by
such Lender or the Borrower in good faith. Any amount so paid by the Lenders to
the Administrative Lender shall be returned by the Administrative Lender pro
rata to each paying Lender to the extent later paid by the Borrower or any other
Person on the Borrower's behalf to the Administrative Lender.
(d) Delegation of Duties. The Administrative Lender may execute any of its
duties hereunder by or through officers, directors, employees, attorneys or
agents, and shall be entitled to
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(and shall be protected in relying upon) advice of counsel concerning all
matters pertaining to its duties hereunder.
(e) Reliance by Administrative Lender. The Administrative Lender and its
officers, directors, employees, attorneys and agents shall be entitled to rely
and shall be fully protected in relying on any writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telex or teletype
message, statement, order, or other document or conversation reasonably believed
by it or them in good faith to be genuine and correct and to have been signed or
made by the proper Person and, with respect to legal matters, upon opinions of
counsel selected the Administrative Lender. The Administrative Lender may, in
its reasonable judgment, deem and treat the payee of any Note as the owner
thereof for all purposes hereof.
(f) Limitation of Administrative Lender's Liability. Neither the
Administrative Lender nor any of its officers, directors, employees, attorneys
or agents shall be liable for any action taken or omitted to be taken by it or
them hereunder in good faith and believed by it or them to be within the
discretion or power conferred to it or them by the Loan Documents or be
responsible for the consequences of any error of judgment, except for its or
their own gross negligence or wilful misconduct. Except as aforesaid, the
Administrative Lender shall be under no duty to enforce any rights with respect
to any of the Advances, or any security therefor. The Administrative Lender
shall not be compelled to do any act hereunder or to take any action towards the
execution or enforcement of the powers hereby created or to prosecute or defend
any suit in respect hereof, unless indemnified to its satisfaction against loss,
cost, liability and expense. The Administrative Lender shall not be responsible
in any manner to any Lender for the effectiveness, enforceability, genuineness,
validity or due execution of any of the Loan Documents, or for any
representation, warranty, document, certificate, report or statement made herein
or furnished in connection with any Loan Documents, or be under any obligation
to any Lender to ascertain or to inquire as to the performance or observation of
any of the terms, covenants or conditions of any Loan Documents on the part of
the Borrower. To the extent not reimbursed by the Borrower, each Lender hereby
severally, but not jointly, indemnifies and holds harmless the Administrative
Lender, pro rata according to its Specified Percentage, from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses and/or disbursements of any kind or nature whatsoever
which may be imposed on, asserted against, or incurred by the Administrative
Lender in any way with respect to any Loan Documents or any action taken or
omitted by the Administrative Lender under the Loan Documents (including any
negligent action of the Administrative Lender), except to the extent the same
result from gross negligence or wilful misconduct by the Administrative Lender.
(g) Liability Among Lenders. No Lender shall incur any liability (other
than the sharing of expenses and other matters specifically set forth herein and
in the other Loan Documents) to any other Lender, except for acts or omissions
in bad faith.
(h) Rights as Lender. With respect to its commitment hereunder, the
Advances made by it and Note issued to it, the Administrative Lender shall have
the same rights as a Lender and may exercise the same as though it were not the
Administrative Lender, and the term "Lender" or
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"Lenders" shall, unless the context otherwise indicates, include the
Administrative Lender in its individual capacity. The Administrative Lender or
any Lender may accept deposits from, act as trustee under indentures of, and
generally engage in any kind of business with, the Borrower and any of its
Affiliates, and any Person who may do business with or own securities of the
Borrower or any of its Affiliates, all as if the Administrative Lender were not
the Administrative Lender hereunder and without any duty to account therefor to
the Lenders.
Section 10.2 Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon the Administrative Lender or any
other Lender and based upon the financial statements referred to in Sections
4.1(j), 6.1 and 6.2 hereof, and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon the Administrative Lender or any other Lender and based
upon such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement and the other Loan Documents.
Section 10.3 Benefits of Article. None of the provisions of this Article
shall inure to the benefit of any Person other than Lenders or the Borrower, as
applicable; consequently, no Person other than Lenders or the Borrower shall be
entitled to rely upon, or to raise as a defense, in any manner whatsoever, the
failure of the Administrative Lender or any Lender to comply with such
provisions.
ARTICLE 11
Miscellaneous
Section 11.1 Notices.
(a) All notices and other communications under this Agreement shall be in
writing and shall be deemed to have been given on the date personally delivered
or sent by telecopy (answerback received), or three days after deposit in the
mail, designated as certified mail, return receipt requested, postage-prepaid,
or one day after being entrusted to a reputable commercial overnight delivery
service, or one day after being delivered to the telegraph office or sent out by
telex addressed to the party to which such notice is directed at its address
determined as provided in this Section. All notices and other communications
under this Agreement shall be given to the parties hereto at the following
addresses:
(i) If to the Borrower, at:
Metro Networks, Inc.
2800 Post Oak Boulevard, Suite 4000
Houston, Texas 77056-6199
Attn: Curtis H. Coleman, Senior Vice President
and Chief Financial Officer
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with a copy to:
Metro Networks, Inc.
681 Fifth Avenue, 10th Floor
New York, New York 10022
Attn: Gary Worobow
(ii) If to the Administrative Lender, at:
NationsBank of Texas, N.A.
901 Main Street, 64th Floor
Dallas, Texas 75202
Attn: Whitney L. Busse, Vice President
with a copy to:
Donohoe, Jameson & Carroll, P.C.
3400 Renaissance Tower
Dallas, Texas 75270-2120
Attn: A. Lamar Youngblood
(iii) If to a Lender, at its address shown below its name on the signature
pages hereof, or if applicable, set forth in its Assignment
Agreement.
(b) Any party hereto may change the address to which notices shall be
directed by giving 10 days' written notice of such change to the other parties.
Section 11.2 Expenses. The Borrower shall promptly pay:
(a) all reasonable out-of-pocket expenses of the Administrative Lender
in connection with the preparation, negotiation, execution and delivery of this
Agreement and the other Loan Documents, the transactions contemplated hereunder
and thereunder, and the making of Advances and the issuance of Letters of Credit
hereunder, including without limitation the reasonable fees and disbursements of
Special Counsel;
(b) all reasonable out-of-pocket expenses of the Administrative Lender
in connection with the administration of the transactions contemplated in this
Agreement and the other Loan Documents, the preparation, negotiation, execution
and delivery of any waiver, amendment or consent by the Lenders relating to this
Agreement or the other Loan Documents; and
(c) all reasonable costs, out-of-pocket expenses and attorneys' fees
of the Administrative Lender and each Lender incurred for enforcement,
collection, restructuring, refinancing and "work-out", or otherwise incurred in
obtaining performance under the Loan Documents, and all reasonable costs and
out-of-pocket expenses of collection if default is made in the payment of the
Notes, which
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in each case shall include without limitation reasonable fees and expenses
of consultants, counsel for the Administrative Lender and any Lender, and
administrative fees for the Administrative Lender.
Section 11.3 Waivers. The rights and remedies of the Lenders under this
Agreement and the other Loan Documents shall be cumulative and not exclusive of
any rights or remedies which they would otherwise have. No failure or delay by
the Administrative Lender or any Lender in exercising any right shall operate as
a waiver of such right. The Lenders expressly reserve the right to require
strict compliance with the terms of this Agreement in connection with any
funding of a request for an Advance and the Issuing Bank expressly reserves the
right to require strict compliance with the terms of this Agreement in
connection with any issuance of a Letter of Credit. In the event that any
Lender decides to fund an Advance or the Issuing Bank decides to issue a Letter
of Credit at a time when the Borrower is not in strict compliance with the terms
of this Agreement, such decision by such Lender shall not be deemed to
constitute an undertaking by the Lender to fund any further requests for
Advances or by the Issuing Bank to issue any additional Letter of Credit or
preclude the Lenders from exercising any rights available under the Loan
Documents or at law or equity. Any waiver or indulgence granted by the Lenders
shall not constitute a modification of this Agreement, except to the extent
expressly provided in such waiver or indulgence, or constitute a course of
dealing by the Lenders at variance with the terms of the Agreement such as to
require further notice by the Lenders of the Lenders' intent to require strict
adherence to the terms of the Agreement in the future. Any such actions shall
not in any way affect the ability of the Administrative Lender or the Lenders,
in their discretion, to exercise any rights available to them under this
Agreement or under any other agreement, whether or not the Administrative Lender
or any of the Lenders are a party thereto, relating to the Borrower.
Section 11.4 Determination by the Lenders Conclusive and Binding. Any
material determination required or expressly permitted to be made by the
Administrative Lender or any Lender under this Agreement shall be made in its
reasonable judgment and in good faith, and shall when made, prima facie evidence
of the matters asserted.
Section 11.5 Set-Off. In addition to any rights now or hereafter granted
under Applicable Law and not by way of limitation of any such rights, upon the
occurrence of an Event of Default, each Lender and any subsequent holder of any
Note, and any assignee or participant in any Note is hereby authorized by the
Borrower at any time or from time to time, without notice to the Borrower or any
other Person, any such notice being hereby expressly waived, to set-off,
appropriate and apply any deposits (general or special (except trust and escrow
accounts), time or demand, including without limitation Indebtedness evidenced
by certificates of deposit) and any other Indebtedness at any time held or owing
by such Lender which is then due and payable or holder to or for the credit or
the account of the Borrower, against and on account of the Obligations which are
then due and payable and other liabilities of the Borrower to such Lender or
holder, irrespective of whether or not the Lender or holder shall have made any
demand hereunder. Any sums obtained by any Lender or by any assignee,
participant or subsequent holder of any Note shall be subject to pro rata
treatment of all Obligations and other liabilities hereunder.
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Section 11.6 Assignment.
(a) Except in connection with any merger or consolidation permitted
pursuant to Section 7.5(b) hereof, the Borrower may not assign or transfer any
of its rights or obligations hereunder or under the other Loan Documents without
the prior written consent of the Lenders.
(b) No Lender shall be entitled to assign its interest in this Agreement,
its Notes or its Advances, except as hereinafter set forth.
(c) A Lender may at any time sell participations in all or any part of its
Advances (collectively, "Participations") to any banks or other financial
institutions ("Participants") provided that such Participation shall not confer
on any Person (other than the parties hereto) any right to vote on, approve or
sign amendments or waivers, or any other independent benefit or any legal or
equitable right, remedy or other claim under this Agreement or any other Loan
Documents, other than the right to vote on, approve, or sign amendments or
waivers or consents with respect to items that would result in (i) any increase
in the commitment of any Participant; or (ii) (A) the extension of the date of
maturity of, or (B) the extension of the due date for any payment of principal,
interest or fees respecting, or (C) the reduction of the amount of any
installment of principal or interest on or the change or reduction of any
mandatory reduction required hereunder, or (D) a reduction of the rate of
interest on the Advances, the Letters of Credit, or the Reimbursement
Obligations, or change in Applicable Margin; or (iii) the release of security
for the Obligations, including without limitation any guarantee or Pledged
Stock; or (iv) the reduction of any fees payable hereunder. Notwithstanding the
foregoing, the Borrower agrees that the Participants shall be entitled to the
benefits of Article 9 and Section 11.5 hereof as though they were Lenders and
the Lenders may provide copies of all financial information received from the
Borrower to such Participants. To the fullest extent it may effectively do so
under Applicable Law, the Borrower agrees that any Participant may exercise any
and all rights of banker's lien, set-off and counterclaim with respect to this
Participation as fully as if such Participant were the holder of the Advances in
the amount of its Participation.
(d) Each Lender may assign to one or more financial institutions or funds
organized under the laws of the United States, or any state thereof, or under
the laws of any other country that is a member of the Organization for Economic
Cooperation and Development, or a political subdivision of any such country,
which is engaged in making, purchasing or otherwise investing in commercial
loans in the ordinary course of its business (each, an "Assignee") its rights
and obligations under this Agreement and the other Loan Documents; provided,
--------
however, that (i) each such assignment shall be subject to the prior written
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consent of the Administrative Lender and Borrower, which approval shall not be
unreasonably withheld (provided that without the consent of the Borrower or the
Administrative Lender, any Lender may make assignments to its Affiliates or
another Lender), (ii) each such assignment shall be of a constant, and not a
varying, percentage of the Lender's rights and obligations under this Agreement,
(iii) the amount of the Commitment, Advances and Reimbursement Obligations being
assigned pursuant to each such assignment (determined as of the date of the
assignment with respect to such assignment) shall in no event be less than
$5,000,000 and which is an integral multiple of $1,000,000, (iv) the applicable
Lender,
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Administrative Lender and applicable Assignee shall execute and deliver to the
Administrative Lender an Assignment and Acceptance Agreement (an "Assignment
Agreement") in substantially the form of Exhibit H hereto, together with the
Notes subject to such assignment, (v) the Assignee or the Lender executing the
Assignment as the case may be, shall deliver to the Administrative Lender a
processing fee of $2,500, and (vi) in no event shall NationsBank of Texas, N.A.,
hold less than 51% of the aggregate Specified Percentages outstanding at any
time. Upon such execution, delivery and acceptance from and after the effective
date specified in each Assignment, which effective date shall be at least three
Business Days after the execution thereof, (A) the Assignee thereunder shall be
party hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment, have the rights and obligations of a
Lender hereunder and (B) the Administrative Lender shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment, relinquish such rights and be released from such obligations under
this Agreement. The Borrower shall not be liable for any fees or expenses of the
Administrative Lender, any Lender, or any Assignee, incurred in connection with
such an Assignment.
(e) Notwithstanding anything in clause (d) above to the contrary, any
Lender may assign and pledge all or any portion of its Advances and Note to any
Federal Reserve Bank as collateral security pursuant to Regulation A of F.R.S.
Board and any Operating Circular issued by such Federal Reserve Bank; provided,
however, that no such assignment under this clause (e) shall release the
assignor Lender from its obligations hereunder.
(f) Upon the Borrower's receipt of an Assignment Agreement executed by a
Lender and an Assignee, and any Note or Notes subject to such assignment, the
Borrower shall, within three Business Days after the Borrower's receipt of such
Assignment Agreement, at its own expense, execute and deliver to the
Administrative Lender in exchange for the surrendered Notes new Notes to the
order of such Assignee in an amount equal to the portion of the Advances,
Reimbursement Obligations and Commitment assigned to it pursuant to such
Assignment Agreement and new Notes to the order of the Administrative Lender in
an amount equal to the portion of the Advances and Commitment retained by it
hereunder. Such new Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Notes, shall be dated the
effective date of such Assignment Agreement and shall otherwise be in
substantially the form of Exhibit H hereto.
(g) No Lender may, without the prior consent of the Borrower, which shall
not be unreasonably withheld, in connection with any assignment or Participation
or proposed assignment or Participation pursuant to this Section 11.6, disclose
to the Assignee or Participant or proposed Assignee or Participant, any
information (which is not otherwise publicly available) relating to the Borrower
furnished to such Lender by or on behalf of the Borrower. The Borrower may not
prohibit any Participation by withholding its consent pursuant to this
Section 11.6(g).
(h) Except as specifically set forth in this Section 11.6, nothing in this
Agreement or any other Loan Documents, expressed or implied, is intended to or
shall confer on any Person other than the respective parties hereto and thereto
and their successors and assignees permitted hereunder and
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thereunder any benefit or any legal or equitable right, remedy or other claim
under this Agreement or any other Loan Documents.
Section 11.7 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
Section 11.8 Severability. Any provision of this Agreement which is for
any reason prohibited or found or held invalid or unenforceable by any court or
governmental agency shall be ineffective to the extent of such prohibition or
invalidity or unenforceability without invalidating the remaining provisions
hereof in such jurisdiction or affecting the validity or enforceability of such
provision in any other jurisdiction.
Section 11.9 Interest and Charges. It is not the intention of any parties
to this Agreement to make an agreement in violation of the laws of any
applicable jurisdiction relating to usury. Regardless of any provision in any
Loan Documents, no Lender shall ever be entitled to receive, collect or apply,
as interest on the Obligations, any amount in excess of the Maximum Amount. If
any Lender or participant ever receives, collects or applies, as interest, any
such excess, such amount which would be excessive interest shall be deemed a
partial repayment of principal and treated hereunder as such; and if principal
is paid in full, any remaining excess shall be paid to the Borrower. In
determining whether or not the interest paid or payable, under any specific
contingency, exceeds the Maximum Amount, the Borrower and the Lenders shall, to
the maximum extent permitted under Applicable Law, (a) characterize any
nonprincipal payment as an expense, fee or premium rather than as interest, (b)
exclude voluntary prepayments and the effect thereof, and (c) amortize, prorate,
allocate and spread in equal parts, the total amount of interest throughout the
entire contemplated term of the Obligations so that the interest rate is uniform
throughout the entire term of the Obligations; provided, however, that if the
Obligations are paid and performed in full prior to the end of the full
contemplated term thereof, and if the interest received for the actual period of
existence thereof exceeds the Maximum Amount, the Lenders shall refund to the
Borrower the amount of such excess or credit the amount of such excess against
the total principal amount of the Obligations owing, and, in such event, the
Lenders shall not be subject to any penalties provided by any laws for
contracting for, charging or receiving interest in excess of the Maximum Amount.
This Section shall control every other provision of all agreements pertaining to
the transactions contemplated by or contained in the Loan Documents.
Section 11.10 Headings. Headings used in this Agreement are for
convenience only and shall not be used in connection with the interpretation of
any provision hereof.
Section 11.11 Amendment and Waiver. The provisions of this Agreement may
not be amended, modified or waived except by the written agreement of the
Borrower and the Determining Lenders; provided, however, that no such amendment,
modification or waiver shall be made (a) without the consent of all Lenders, if
it would (i) increase the Specified Percentage or commitment of any Lender, or
(ii) extend the date of payment or maturity of, extend the due date for any
payment of principal or interest on, reduce the amount of any installment of
principal or
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interest on, or reduce the rate of interest on, any Advance, the Reimbursement
Obligations, fees or other amounts owing under any Loan Documents, or (iii)
release any security for or guaranty of the Obligations (except pursuant to this
Agreement), or (iv) reduce the fees payable hereunder, or (v) revise this
Section 11.11, or (vi) waive the date for payment of any of the Obligations, or
(vii) amend the definition of Determining Lenders, or (viii) revise Sections
2.5(b) or (c) hereof or (ix) revise Sections 2.6(b) or (c) hereof; or (b)
without the consent of the Administrative Lender, if it would alter the rights,
duties or obligations of the Administrative Lender. Neither this Agreement nor
any term hereof may be amended orally, nor may any provision hereof be waived
orally but only by an instrument in writing signed by the Administrative Lender
and, in the case of an amendment, by the Borrower.
Section 11.12 Exception to Covenants. The Borrower nor any Subsidiary
shall be deemed to be permitted to take any action or fail to take any action
which is permitted as an exception to any of the covenants contained herein or
which is within the permissible limits of any of the covenants contained herein
if such action or omission would result in the breach of any other covenant
contained herein.
Section 11.13 No Liability of Issuing Bank. The Borrower assumes all
risks of the acts or omissions of any beneficiary or transferee of any Letter of
Credit with respect to its use of such Letter of Credit. Neither the Issuing
Bank nor any Lender nor any of their respective officers or directors shall be
liable or responsible for: (a) the use that may be made of any Letter of Credit
or any acts or omissions of any beneficiary or transferee in connection
therewith; (b) the validity, sufficiency or genuineness of documents, or of any
endorsement thereon, even if such documents should prove to be in any or all
respects invalid, insufficient, fraudulent or forged; (c) payment by the Issuing
Bank against presentation of documents that do not comply with the terms of a
Letter of Credit, including failure of any documents to bear any reference or
adequate reference to the Letter of Credit, except for any payment made upon the
Issuing Bank's gross negligence or willful misconduct; or (d) any other
circumstances whatsoever in making or failing to make payment under any Letter
of Credit, except that the Borrower shall have a claim against the Issuing Bank,
and the Issuing Bank shall be liable to the Borrower, to the extent of any
direct, but not consequential, damages suffered by the Borrower that the
Borrower proves were caused by (i) the Issuing Bank's willful misconduct or
gross negligence in determining whether documents presented under any Letter of
Credit comply with the terms of the Letter of Credit or (ii) the Issuing Bank's
willful failure to make lawful payment under a Letter of Credit after the
presentation to it of a draft and certificates strictly complying with the terms
and conditions of the Letter of Credit. In furtherance and not in limitation of
the foregoing, the Issuing Bank may accept documents that appear on their face
to be in order, without responsibility for further investigation, regardless of
any notice or information to the contrary.
Section 11.14 Credit Agreement Governs. In the event of any conflict
between the terms of this Agreement and any terms of any other Loan Document,
the terms of this Agreement shall control.
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SECTION 11.15 GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
TEXAS; PROVIDED, HOWEVER, THAT PURSUANT TO ARTICLE 5069-15.10(b), TITLE 79,
REVISED CIVIL STATUTES OF TEXAS, 1925, AS AMENDED, IT IS AGREED THAT THE
PROVISIONS OF CHAPTER 15, TITLE 79, REVISED CIVIL STATUTES OF TEXAS, 1925, AS
AMENDED, SHALL NOT APPLY TO THE ADVANCES, THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS. WITHOUT EXCLUDING ANY OTHER JURISDICTION, THE BORROWER AGREES THAT
THE STATE AND FEDERAL COURTS OF TEXAS LOCATED IN DALLAS, TEXAS SHALL HAVE
JURISDICTION OVER PROCEEDINGS IN CONNECTION WITH THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS.
SECTION 11.16 WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE
ADMINISTRATIVE LENDER AND THE LENDERS HEREBY KNOWINGLY VOLUNTARILY, IRREVOCABLY
AND INTENTIONALLY WAIVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM ARISING OUT OF OR RELATED TO
ANY OF THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY. THIS
PROVISION IS A MATERIAL INDUCEMENT TO EACH LENDER ENTERING INTO THIS AGREEMENT
AND MAKING ANY ADVANCES HEREUNDER.
SECTION 11.17 ENTIRE AGREEMENT. THIS WRITTEN AGREEMENT, TOGETHER WITH THE
OTHER LOAN DOCUMENTS, REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS
BETWEEN THE PARTIES.
Section 11.18 Waiver of Subrogation. The Borrower shall not assert,
enforce, or otherwise exercise (a) any right of subrogation to any of the rights
or Liens of Administrative Lender or any Lender or any other Person against any
other obligor on all or any part of the Obligations or any collateral or other
security, or (b) any right of recourse, reimbursement, contribution,
indemnification, or similar right against any other obligor on all or any part
of the Obligations or any collateral or any security, and the Borrower hereby
waives any and all of the foregoing rights and the benefit of, and any right to
participate in, any collateral or other security given to Administrative Lender
or any Lender or any other Person to secure payment of the Obligations, however
any such rights arise, whether hereunder or any other Loan Document or by
operation of law. The provisions of this Section 11.19 shall survive the
termination of this Agreement, and any satisfaction and discharge of the
Borrower and each other Obligor by virtue of any payment, court order, or law.
==========================================
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
==========================================
-73-
<PAGE>
IN WITNESS WHEREOF, this Credit Agreement is executed as of the date first
set forth above.
BORROWER: METRO NETWORKS, INC.
\s\ Curtis H. Coleman
By: _______________________________
Curtis H. Coleman
Senior Vice President and
Chief Financial Officer
ADMINISTRATIVE LENDER: NATIONSBANK OF TEXAS, N.A.,
as Administrative Lender
\s\ Whitney L. Busse
By: _______________________________
Whitney L. Busse
Vice President
LENDERS: NATIONSBANK OF TEXAS, N.A.,
as a Lender
Specified Percentage:
100%
\s\ Whitney L. Busse
By: _______________________________
Whitney L. Busse
Vice President
901 Main Street, 64th Floor
Dallas, Texas 75202
Attn: Whitney L. Busse
Vice President
-74-
<PAGE>
EXHIBIT 11.1
METRO NETWORKS, INC. AND SUBSIDIARIES
COMPUTATION OF PRIMARY AND FULLY DILUTED INCOME PER SHARE
(Amounts in thousands, except per share amounts)
<TABLE>
<CAPTION>
Year Ended Year Ended
December 31, December 31,
1996 1995
------------- -------------
<S> <C> <C>
Weighted average shares of common stock outstanding (1) 12,851 11,900
Shares attributable to excess distributions - 352
Stock options (treasury stock method) 33 -
------- -------
Weighted average shares for primary income
per share calculation 12,884 12,252
======= =======
Weighted average shares for fully diluted income
per share calculation 12,884 12,252
======= =======
Income as reported before tax $19,431 $ 4,346
Pro forma federal and state income tax (7,384) (1,543)
------- -------
Pro forma net income applicable to common stock $12,047 $ 2,803
======= =======
Pro forma net income per share:
Primary $ 0.94 $ 0.23
======= =======
Fully diluted $ 0.94 $ 0.23
======= =======
</TABLE>
- --------------
(1) For purposes of computing earnings per share, the common shares outstanding
as a result of the Stock Loan and Pledge Agreement (the "Loaned Shares") are
considered outstanding, however the shares related to the convertible
preferred stock are not considered to be common stock equivalents. This is
due to the fact that under the terms and provisions of the Stock Loan and
Pledge Agreement the preferred shares outstanding cannot be converted into
common stock while the stock loan is outstanding. Weighted average shares
outstanding are calculated assuming the shares issued in conjunction with
the Reorganization were outstanding for the periods presented and the Loaned
Shares and shares issued after the Reorganization were outstanding from the
date of issue.
Note: Reference is made to Note 1 to Consolidated Financial Statements regarding
computation of per share amounts.
<PAGE>
EXHIBIT 21.1
METRO NETWORKS, INC.
SUBSIDIARIES OF THE REGISTRANT
Metro Traffic Control, Inc., a Maryland corporation.
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to incorporation by reference in the Registration Statement No. 333-
23561 on Form S-8 of Metro Networks, Inc. of our report dated February 28, 1997,
relating to the consolidated balance sheets of Metro Networks, Inc. and
Subsidiaries and its Predecessors as of December 31, 1996 and 1995, and the
related consolidated statements of operations, shareholders' equity/partners'
capital and cash flows for each of the years in the three-year period ended
December 31, 1996, which report appears in the December 31, 1996 Annual Report
on Form 10-K of Metro Networks, Inc.
KPMG PEAT MARWICK LLP
Houston, Texas
March 28, 1997
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> 12-MOS 12-MOS
<FISCAL-YEAR-END> DEC-31-1996 DEC-31-1995
<PERIOD-START> JAN-01-1996 JAN-01-1995
<PERIOD-END> DEC-31-1996 DEC-31-1995
<CASH> 43,441 3,050
<SECURITIES> 0 0
<RECEIVABLES> 35,379 23,129
<ALLOWANCES> (663) (310)
<INVENTORY> 567 400
<CURRENT-ASSETS> 80,007 27,304
<PP&E> 16,563 9,212
<DEPRECIATION> 5,993 4,235
<TOTAL-ASSETS> 105,812 48,030
<CURRENT-LIABILITIES> 30,713 19,404
<BONDS> 0 0
0 0
3 0
<COMMON> 17 3
<OTHER-SE> 71,911 4,475
<TOTAL-LIABILITY-AND-EQUITY> 105,812 48,030
<SALES> 109,237 72,433
<TOTAL-REVENUES> 109,237 72,433
<CGS> 72,063 55,790
<TOTAL-COSTS> 88,435 66,964
<OTHER-EXPENSES> (408) (137)
<LOSS-PROVISION> 802 443
<INTEREST-EXPENSE> 1,779 1,260
<INCOME-PRETAX> 19,431 4,346
<INCOME-TAX> 3,462 1,036
<INCOME-CONTINUING> 15,969 3,309
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> 15,969 3,309
<EPS-PRIMARY> 0.94 0.23
<EPS-DILUTED> 0.94 0.23
</TABLE>
