MASTEC, INC.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 2007
Commission File Number 001-08106
MASTEC, INC.
(Exact name of registrant as specified in Its charter)
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Florida
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65-0829355 |
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.) |
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800 S. Douglas Road,
12th
Floor, Coral Gables, FL
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33134 |
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(Address of principal executive offices)
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(Zip Code) |
Registrants telephone number, including area code: (305) 599-1800
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 o
Indicate by check mark whether the registrant is a large accelerated filer, or a
non-accelerated filer. See definition of accelerated filer and large accelerated filer in Rule
12b-2 of the Exchange Act. (Check one):
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o Large accelerated filer
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x Accelerated filer
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o Non-accelerated filer |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of
the Exchange Act). Yes o No x
As of July 30, 2007, MasTec, Inc. had 66,263,727 shares of common stock, $0.10 par value,
outstanding.
MASTEC, INC.
FORM 10-Q
QUARTER ENDED JUNE 30, 2007
TABLE OF CONTENTS
2
PART I. FINANCIAL INFORMATION
ITEM 1.
FINANCIAL STATEMENTS
MASTEC, INC.
CONDENSED UNAUDITED CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except per share amounts)
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For the Three Months Ended |
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For the Six Months Ended |
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June 30, |
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June 30, |
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2007 |
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2006 |
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2007 |
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2006 |
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Revenue |
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$ |
256,284 |
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$ |
230,516 |
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$ |
497,280 |
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$ |
448,124 |
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Costs of revenue, excluding depreciation |
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213,327 |
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196,718 |
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424,348 |
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387,455 |
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Depreciation |
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4,082 |
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3,456 |
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7,862 |
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6,970 |
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General and administrative expenses,
including non-cash stock
compensation expense of $1,500 and $3,467,
respectively, in 2007 and $2,043 and
$3,224, respectively, in 2006 |
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20,234 |
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16,994 |
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39,482 |
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33,125 |
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Interest expense, net of interest income |
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2,120 |
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2,362 |
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4,915 |
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5,857 |
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Other income (expense), net |
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573 |
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1,634 |
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4,057 |
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1,894 |
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Income from continuing operations before
minority interest |
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17,094 |
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12,620 |
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24,730 |
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16,611 |
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Minority interest |
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(1,035 |
) |
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(323 |
) |
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(1,652 |
) |
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(194 |
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Income from continuing operations |
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16,059 |
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12,297 |
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23,078 |
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16,417 |
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Loss from discontinued operations |
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(158 |
) |
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(35,954 |
) |
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(5,507 |
) |
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(44,298 |
) |
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Net income (loss) |
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$ |
15,901 |
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$ |
(23,657 |
) |
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$ |
17,571 |
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$ |
(27,881 |
) |
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Basic net income (loss) per share: |
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Continuing operations |
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$ |
0.24 |
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$ |
0.19 |
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$ |
0.35 |
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$ |
0.26 |
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Discontinued operations |
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(0.00 |
) |
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(0.56 |
) |
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(0.08 |
) |
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(0.71 |
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Total basic net income (loss) per share |
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$ |
0.24 |
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$ |
(0.37 |
) |
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$ |
0.27 |
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$ |
(0.45 |
) |
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Basic weighted average common shares
outstanding |
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65,854 |
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64,752 |
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65,634 |
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62,021 |
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Diluted net income (loss) per share: |
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Continuing operations |
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$ |
0.24 |
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$ |
0.19 |
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$ |
0.34 |
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$ |
0.26 |
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Discontinued operations |
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(0.00 |
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(0.54 |
) |
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(0.08 |
) |
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(0.70 |
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Total diluted net income (loss) per share |
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$ |
0.24 |
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$ |
(0.36 |
) |
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$ |
0.26 |
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$ |
(0.44 |
) |
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Diluted weighted average common shares
outstanding |
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67,431 |
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66,463 |
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67,075 |
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63,715 |
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The accompanying notes are an integral part of these condensed unaudited consolidated financial statements.
3
MASTEC, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(In thousands, except share amounts)
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June 30, |
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December 31, |
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2007 |
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2006 |
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(Unaudited) |
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(Audited) |
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Assets |
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Current assets: |
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Cash and cash equivalents, including restricted cash of
$18,050 in 2007 and $18,000 in 2006 |
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$ |
119,463 |
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$ |
87,993 |
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Accounts receivable, unbilled revenue and retainage, net |
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166,547 |
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163,608 |
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Inventories |
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22,960 |
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28,832 |
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Income tax refund receivable |
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131 |
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135 |
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Prepaid expenses and other current assets |
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33,363 |
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38,752 |
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Current assets held for sale |
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20,600 |
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Total current assets |
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342,464 |
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339,920 |
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Property and equipment, net |
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71,749 |
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61,212 |
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Goodwill and other intangibles |
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181,013 |
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151,600 |
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Deferred taxes, net |
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52,652 |
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49,317 |
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Other assets |
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27,448 |
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43,405 |
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Long-term assets held for sale |
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659 |
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Total assets |
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$ |
675,326 |
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$ |
646,113 |
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Liabilities and Shareholders Equity |
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Current liabilities: |
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Current maturities of debt |
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$ |
2,900 |
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$ |
1,769 |
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Accounts payable and accrued expenses |
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85,441 |
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101,210 |
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Other current liabilities |
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59,821 |
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47,266 |
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Current liabilities related to assets held for sale |
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25,633 |
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Total current liabilities |
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148,162 |
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175,878 |
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Other liabilities |
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34,364 |
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36,521 |
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Long-term debt |
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160,780 |
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128,407 |
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Long-term liabilities related to assets held for sale |
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596 |
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Total liabilities |
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343,306 |
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341,402 |
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Commitments and contingencies |
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Shareholders equity: |
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Preferred stock, $1.00 par value; authorized shares
5,000,000; issued and outstanding shares
none |
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Common stock, $0.10 par value; authorized shares
100,000,000; issued and outstanding shares
66,213,912 and 65,182,437 shares in 2007 and 2006, respectively |
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6,621 |
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6,518 |
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Capital surplus |
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540,353 |
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530,179 |
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Accumulated deficit |
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(214,677 |
) |
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(232,248 |
) |
Accumulated other comprehensive (loss) income |
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(277 |
) |
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262 |
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Total shareholders equity |
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332,020 |
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304,711 |
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Total liabilities and shareholders equity |
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$ |
675,326 |
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$ |
646,113 |
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The accompanying notes are an integral part of these condensed unaudited consolidated financial statements.
4
MASTEC, INC.
CONDENSED UNAUDITED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
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For the Six Months Ended |
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June 30, |
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2007 |
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2006 |
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Cash flows from operating activities: |
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Net income (loss) |
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$ |
17,571 |
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$ |
(27,881 |
) |
Adjustments to reconcile net income (loss) to net cash provided by operating
activities: |
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Depreciation and amortization |
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8,134 |
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7,796 |
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Impairment of goodwill and assets |
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572 |
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20,845 |
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Non-cash stock and restricted stock compensation expense |
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3,467 |
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3,465 |
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Gain on sale of fixed assets |
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(3,670 |
) |
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(361 |
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Write down of fixed assets |
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144 |
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Provision for doubtful accounts |
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1,705 |
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3,446 |
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Provision for inventory obsolescence |
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|
240 |
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Income from equity investment |
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(119 |
) |
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(1,563 |
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Accrued losses on construction projects |
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2,626 |
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Minority interest |
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1,652 |
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|
194 |
|
Changes in assets and liabilities, net of assets acquired: |
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Accounts receivable, unbilled revenue and retainage, net |
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8,898 |
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|
1,480 |
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Inventories |
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8,364 |
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|
1,431 |
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Income tax refund receivable |
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4 |
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|
546 |
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Other assets, current and non-current portion |
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10,503 |
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14,463 |
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Accounts payable and accrued expenses |
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(21,944 |
) |
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(14,790 |
) |
Other liabilities, current and non-current portion |
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(7,882 |
) |
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(1,689 |
) |
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Net cash provided by operating activities |
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27,255 |
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|
10,392 |
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Cash flows (used in) investing activities: |
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Cash paid for acquisitions, net of cash acquired and cash sold |
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(11,213 |
) |
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(19,284 |
) |
Capital expenditures |
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(14,813 |
) |
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(10,273 |
) |
Investments in unconsolidated companies |
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(1,025 |
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(2,830 |
) |
Investments in life insurance policies |
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(539 |
) |
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(610 |
) |
Payments received from sub-leases |
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|
286 |
|
Net proceeds from sale of assets |
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3,544 |
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|
1,940 |
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Net cash used in investing activities |
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(24,046 |
) |
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(30,771 |
) |
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Cash flows provided by financing activities: |
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Proceeds from issuance of common stock, net |
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156,465 |
|
Payments of other borrowings, net |
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149,187 |
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(3,801 |
) |
Payments of capital lease obligations |
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(942 |
) |
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(182 |
) |
Payments of senior subordinated notes |
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(121,000 |
) |
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|
(75,000 |
) |
Proceeds from issuance of common stock pursuant to stock option exercises |
|
|
3,748 |
|
|
|
3,404 |
|
Payments of financing costs |
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(3,794 |
) |
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|
(28 |
) |
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|
Net cash provided by financing activities |
|
|
27,199 |
|
|
|
80,858 |
|
|
|
|
|
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|
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Net increase in cash and cash equivalents |
|
|
30,408 |
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|
|
60,479 |
|
Net effect of currency translation on cash |
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|
9 |
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|
52 |
|
Cash and cash equivalents beginning of period |
|
|
89,046 |
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|
|
2,024 |
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|
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Cash and cash equivalents end of period |
|
$ |
119,463 |
|
|
$ |
62,555 |
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Cash paid during the period for: |
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|
|
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|
|
Interest |
|
$ |
6,416 |
|
|
$ |
8,945 |
|
|
|
|
|
|
|
|
Income taxes |
|
$ |
74 |
|
|
$ |
215 |
|
|
|
|
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|
Supplemental disclosure of non-cash information: |
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|
Equipment acquired under capital lease |
|
$ |
5,317 |
|
|
$ |
6,450 |
|
Auction receivable |
|
$ |
175 |
|
|
$ |
231 |
|
Investment in unconsolidated companies |
|
$ |
|
|
|
$ |
925 |
|
Accruals for inventory at quarter-end |
|
$ |
11,132 |
|
|
$ |
6,288 |
|
The accompanying notes are an integral part of these condensed unaudited consolidated financial statements.
5
MasTec, Inc.
Notes to the Condensed Unaudited Consolidated Financial Statements
Note 1 Nature of the Business
MasTec, Inc. (collectively, with its subsidiaries, MasTec, we, us, our or the
Company) is a leading specialty contractor operating mainly throughout the United States and
across a range of industries. Our core activities are the building, installation, maintenance and
upgrade of communications and utility infrastructure. Our primary customers are in the following
industries: communications (including satellite television and cable television), utilities and
government. MasTec provides similar infrastructure services across the industries it serves.
Customers rely on us to build and maintain infrastructure and networks that are critical to their
delivery of voice, video and data communications, electricity and other energy resources.
Note 2 Basis for Presentation
The accompanying condensed unaudited consolidated financial statements have been prepared in
accordance with accounting principles generally accepted in the United States for interim financial
information and with the instructions for Form 10-Q and Rule 10-01 of Regulation S-X. Accordingly,
these financial statements do not include all information and notes required by accounting
principles generally accepted in the United States for complete financial statements and should be
read in conjunction with the audited consolidated financial statements and notes thereto included
in our Form 10-K for the year ended December 31, 2006. In our opinion, all adjustments necessary
for a fair presentation of the financial position, results of operations and cash flows for the
periods presented have been included.
The preparation of financial statements in conformity with accounting principles generally
accepted in the United States requires management to make estimates and assumptions that affect the
amounts reported in the financial statements and accompanying notes. Key estimates for us include
the recognition of revenue for costs and estimated earnings in excess of billings, allowance for
doubtful accounts, accrued self-insured claims, the fair value of goodwill and intangible assets,
asset lives used in computing depreciation and amortization, including amortization of intangibles,
and accounting for income taxes, contingencies and litigation. While we believe that such estimates
are fair when considered in conjunction with the consolidated financial position and results of
operations taken as a whole, actual results could differ from those estimates and such differences
may be material to the financial statements.
Note 3 Significant Accounting Policies
(a) Principles of Consolidation
The accompanying financial statements include MasTec, Inc. and its subsidiaries. All
intercompany accounts and transactions have been eliminated in consolidation. As discussed in Note
4, in the first quarter of 2007, we began consolidating the financial statements of an entity in
which we acquired majority ownership effective February 1, 2007.
(b) Comprehensive Income (Loss)
Comprehensive income (loss) is a measure of net income (loss) and all other changes in equity
that result from transactions other than with shareholders. Comprehensive income (loss) consists of
net income (loss) and foreign currency translation adjustments.
Comprehensive income (loss) consisted of the following (in thousands):
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For the Three |
|
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For the Six |
|
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|
Months Ended |
|
|
Months Ended |
|
|
|
June 30, |
|
|
June 30, |
|
|
|
2007 |
|
|
2006 |
|
|
2007 |
|
|
2006 |
|
Net income (loss) |
|
$ |
15,901 |
|
|
$ |
(23,657 |
) |
|
$ |
17,571 |
|
|
$ |
(27,881 |
) |
Foreign currency translation gain |
|
|
|
|
|
|
61 |
|
|
|
9 |
|
|
|
58 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive income (loss) |
|
$ |
15,901 |
|
|
$ |
(23,596 |
) |
|
$ |
17,580 |
|
|
$ |
(27,823 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
6
MasTec, Inc.
Notes to the Condensed Unaudited Consolidated Financial Statements
(c) Basic and Diluted Net Income (Loss) Per Share
The computation of basic net income (loss) per share is based on the weighted average number
of common shares outstanding during the period. The computation of diluted net income (loss) per
common share is based on the weighted average of common shares outstanding during the period plus,
when their effect is dilutive, incremental shares consisting of shares subject to stock options and
unvested restricted stock (common stock equivalents). For the three and six months ended June 30,
2007, diluted net income (loss) per common share includes the effect of common stock equivalents in
the amount of approximately 1,577,000 shares and 1,441,000 shares, respectively. For the three and
six months ended June 30, 2006, diluted net income (loss) per common share includes the effect of
approximately 1,711,000 shares and 1,694,000 shares, respectively, of common stock equivalents.
(d) Valuation of Goodwill and Intangible Assets
In accordance with Statement of Financial Accounting Standards No. 142, Goodwill and Other
Intangible Assets (SFAS 142), we conduct, on at least an annual basis, a review of our reporting
entities to determine whether the carrying values of goodwill exceed the fair market value using a
discounted cash flow methodology for each entity. Should this be the case, the value of its
goodwill may be impaired and written down. Goodwill acquired in a purchase business combination and
determined to have an infinite useful life is not amortized, but instead tested for impairment at
least annually in accordance with provisions of SFAS No. 142.
As discussed in Note 7, we wrote-off approximately $0.4 million in goodwill in connection with
our decision to sell our Canadian operations during the six month period ended June 30, 2007.
During the six months ended June 30, 2007, we recorded approximately $29.4 million of goodwill
and other intangible assets in connection with the acquisition described in Note 4.
(e) Accrued Insurance
MasTec maintains insurance policies subject to per claim deductibles of $1 million for its
workers compensation policy, $2 million for its general liability policy and $3 million for its
automobile liability policy. We have excess umbrella coverage for losses in excess of the primary
coverages of up to $100 million per claim and in the aggregate. These insurance liabilities are
actuarially determined on a quarterly basis for unpaid claims and associated expenses, including
the ultimate liability for claims incurred and an estimate of claims incurred but not reported.
During the three month period ended June 30, 2007, we changed the discount factor used in
estimating the actuarial insurance reserve for our workers compensation, general liability and
auto liability policies from a spot rate of 5.2% applied to all future expected cash outflows, to
the Citigroup Pension Discount Curve, which was developed to improve the matching of discount rates
across multiple periods with projected future cash outflows in those periods. The curve is derived
from U.S. Treasury rates, plus an option-adjusted spread varying by maturity to better reflect the
settlement rate used to discount estimated future cash payments. We also maintain an insurance
policy with respect to employee group health claims subject to per claim deductibles of $300,000
after satisfying an aggregate annual deductible of $100,000. The accruals are based upon known
facts, historical trends and a reasonable estimate of future expenses. However, a change in
experience or actuarial assumptions could nonetheless materially affect results of operations in a
particular period. Known amounts for claims that are in the process of being settled, but have been
paid in periods subsequent to those being reported, are also recorded in such reporting period.
(f) Stock Based Compensation
We have granted to employees and others restricted stock and options to purchase our common
stock. Total non-cash stock compensation expense for the three months ended June 30, 2007 and 2006
was $1.5 million and $2.0 million, respectively, which is included in general and administrative
expense in the condensed unaudited consolidated statements of operations. Total non-cash stock
compensation expense for the six months ended June 30, 2007 and
2006 was $3.5 million and $3.4
million, respectively, of which $0 million and $0.2 million, respectively, was included in loss
7
MasTec, Inc.
Notes to the Condensed Unaudited Consolidated Financial Statements
from
discontinued operations, and $3.5 million and $3.2 million, respectively, is included in
general and administrative expense in the condensed unaudited consolidated statements of
operations.
Non-cash compensation expense related to stock options amounted to approximately $1.0 million
and $1.7 million, respectively, during the three months ended June 30, 2007 and 2006, which is
included in general and administrative expense in the condensed unaudited consolidated statements
of operations. Included in general and administrative expense for the three month period ended
June 30, 2006 is approximately $0.1 million of compensation expense related to the acceleration of
stock option grants that occurred in the three months ended June 30, 2006. These accelerations
were a result of certain benefits given to employees whose employment ceased during the three month
period. There were no options granted during the three months ended June 30, 2007. During the three
months ended June 30, 2006, we granted to certain employees, directors and executives the right to
purchase 799,500 shares of MasTecs common stock at the current market price per share at the time
of the option grant. The options granted during the three months ended June 30, 2006 had a weighted
average exercise price of $13.92 per share. The weighted average fair value of options granted
during the three month period ended June 30, 2006 was $8.52 per share.
Non-cash compensation expense related to stock options amounted to approximately $2.5 million,
and $2.9 million, respectively, during the six months ended June 30, 2007 and 2006, of which $0.2
million for 2006 is included in loss from discontinued operations, and $2.5 million and $2.7
million, respectively, is included in general and administrative expense in the condensed unaudited
consolidated statements of operations. Included in general and administrative expense for the six
month period ended June 30, 2006 is approximately $0.4 million of compensation expense related to
the acceleration of stock option grants that occurred in the six months ended June 30, 2006. These
accelerations were a result of certain benefits given to employees whose employment ceased during
the six month period. There were no options granted during the six months ended June 30, 2007.
During the six months ended June 30, 2006, we granted to certain employees, directors and
executives the right to purchase 799,500 shares of MasTecs common stock at the current market
price per share at the time of the option grant. The options granted during the six months ended
June 30, 2006 had a weighted average exercise price of $13.92 per share. The weighted average fair
value of options granted during the six month period ended June 30, 2006 was $8.52 per share.
We use the Black-Scholes valuation model to estimate the fair value of options to purchase our
common stock and use the ratable method (an accelerated method of expense recognition under SFAS
123R) to amortize compensation expense over the vesting period of the option grant.
The fair value of each option granted was estimated using the following assumptions:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months Ended |
|
|
For the Six Months Ended |
|
|
|
June 30, |
|
|
June 30, |
|
|
|
2007 |
|
|
2006 |
|
|
2007 |
|
|
2006 |
|
Expected life employees |
|
4.26 7.00 years |
|
4.26 6.26 years |
|
4.26 7.00 years |
|
4.26 6.29 years |
Expected life executives |
|
5.74 9.74 years |
|
5.74 9.74 years |
|
5.74 9.74 years |
|
5.74 9.74 years |
Volatility percentage |
|
|
40% 55 |
% |
|
|
40% 65 |
% |
|
|
40% 60 |
% |
|
|
40% 65 |
% |
Interest rate |
|
|
4.54% 4.84 |
% |
|
|
5.08% 5.16 |
% |
|
|
4.96% 5.10 |
% |
|
|
4.97% 5.14 |
% |
Dividends |
|
None |
|
None |
|
None |
|
None |
Forfeiture rate |
|
|
7.26 |
% |
|
|
7.27 |
% |
|
|
7.48 |
% |
|
|
7.19 |
% |
We also sometimes grant restricted stock, which is valued based on the market price of our
common stock on the date of grant. Compensation expense arising from restricted stock grants is
recognized using the ratable method over the vesting period. Unearned compensation for
performance-based options and restricted stock is shown as a reduction of shareholders equity in
the condensed unaudited consolidated balance sheets. Through June 30, 2007, we have issued 507,357
shares of restricted stock valued at approximately $5.5 million which is being expensed over
various vesting periods (12 months to 4 years). Total unearned compensation related to restricted
stock grants as of June 30, 2007 is approximately $2.7 million. Restricted stock expense for the
three and six months ended June 30, 2007 is approximately $0.4 million and $1.0 million,
respectively, and is included in general and administrative expenses in the condensed unaudited
statements of operations. Restricted stock expense for the three and six months ended June 30,
2006 was
8
MasTec, Inc.
Notes to the Condensed Unaudited Consolidated Financial Statements
approximately $0.4 million and $0.6 million, respectively, and is included in general and
administrative expenses in the condensed unaudited statements of operations.
(g) Reclassifications
Certain reclassifications were made to the prior period financial statements in order to
conform to the current period presentation. In addition, as discussed in Note 7, in March 2007 we
reached the decision to sell substantially all of our Canadian operations. Accordingly, the net
loss for these operations for the three and six months ended June 30, 2006 have been reclassified
from the prior period presentation as a loss from discontinued operations in our condensed
unaudited consolidated statements of operations. In addition, current and long-term assets, as
well as current and non-current liabilities, have been reclassified on the consolidated balance
sheet as of December 31, 2006 to conform to the current presentation.
(h) Equity investments
Through January 2007 we owned 49% in DirectStar TV LLC (DirectStar). We accounted for our
49% interest under the equity method as we had the ability to exercise significant influence, but
not control, over the operational policies of the company. Our share of earnings or losses in this
investment through January 2007 is included as other income, net in the condensed unaudited
consolidated statements of operations. As discussed in Note 4, effective February 1, 2007, we
acquired the remaining 51% equity interest in this entity, and accordingly, we have consolidated
their operations with our results commencing in February 2007. As of December 31, 2006, our
investment in DirectStar exceeded the net equity of such investment and the excess is considered to
be equity goodwill.
(i) Fair value of financial instruments
We estimate the fair market value of financial instruments through the use of public market
prices, quotes from financial institutions and other available information. Judgment is required in
interpreting data to develop estimates of market value and, accordingly, amounts are not
necessarily indicative of the amounts that we could realize in a current market exchange.
Short-term financial instruments, including cash and cash equivalents, accounts and notes
receivable, accounts payable and other liabilities, consist primarily of instruments without
extended maturities, the fair value of which, based on managements estimates, equaled their
carrying values. At June 30, 2007, the fair value of our outstanding senior notes was approximately
$150.4 million. At December 31, 2006, the fair value of our outstanding senior subordinated notes
was approximately $121.0 million.
(j) Income taxes
In the past, we conducted business in the United States, as well as various territories
outside of the United States. As a result, through one or more of our subsidiaries, we file income
tax returns in the U.S. federal jurisdiction and various state and foreign jurisdictions. In the
normal course of business we are subject to examination by taxing authorities in certain foreign
locations, including such major jurisdictions as Canada, Brazil and the United States. With few
exceptions, we are no longer subject to U.S. federal, state and local, or non-U.S. income tax
examinations for years before 2003.
We are currently under audit by the Internal Revenue Service for the 2004 tax year. The
examination phase of the audit concluded in the three months ended June 30, 2007, and we have
received preliminary indication that the IRS will recommend no change to the tax return we filed
for that year. Until such time as we receive a formal notice of conclusion to this audit, or as a
result of the expiration of the statute of limitations for specific jurisdictions, it is possible
that the related unrecognized tax benefits for tax positions taken regarding previously filed tax
returns could change from those recorded for uncertain income tax positions in our financial
statements. In addition, the outcome of the examination may impact the valuation of certain
deferred tax assets (such as net operating losses) in future periods. Given the procedures for
finalizing audits by the Internal Revenue Service, it is not possible to estimate the impact of
changes, if any, to previously recorded uncertain tax positions.
9
MasTec, Inc.
Notes to the Condensed Unaudited Consolidated Financial Statements
We adopted Financial Accounting Standards Board (FASB) Interpretation No. 48, Accounting
for Uncertainty in Income Taxes an interpretation of FASB Statement 109, (FIN 48) in the
first quarter of 2007. FIN 48 is an interpretation of FASB Statement No. 109, Accounting for
Income Taxes, and seeks to reduce the diversity in practice associated with certain aspects of
measurement and recognition in accounting for income taxes. FIN 48 prescribes a recognition
threshold and measurement attribute for financial statement recognition and measurement of a tax
position that an entity takes or expects to take in a tax return. Under FIN 48, an entity may only
recognize or continue to recognize tax positions that meet a more likely than not threshold. In
the ordinary course of business there is inherent uncertainty in quantifying our income tax
positions. We assess our income tax positions and record tax benefits for all years subject to
examination based on managements evaluation of the facts, circumstances and information available
at the reporting date. For those tax positions where it is more likely than not that a tax benefit
will be sustained, we have recognized the largest amount of tax benefit with a greater than 50%
likelihood of being realized upon ultimate settlement with a taxing authority that has full
knowledge of all relevant information. For those income tax positions where it is not more likely
than not that a tax benefit will be sustained, no tax benefit has been recognized in our financial
statements.
On January 1, 2007, we recorded the cumulative effect of applying FIN 48 of $1.9 million as an
adjustment to the balance of deferred tax assets, and an offset to the valuation allowance on that
deferred tax asset. As of the adoption date, we had no accrued interest expense or penalties
related to the unrecognized tax benefits. Interest and penalties, if incurred, would be recognized
as a component of income tax expense.
Note 4 Acquisition of Remaining 51% Interest in an Equity Method Investment
As discussed in Note 3, we had a 49% interest in DirectStar. The purchase price for this
investment was an initial amount of $3.7 million which was paid in four quarterly installments of
$925,000 through December 31, 2005. Beginning in the first quarter of 2006, eight additional
contingent quarterly payments were expected to be made to the third party from which the interest
was purchased. The contingent payments were to be up to a maximum of $1.3 million per quarter based
on the level of unit sales and profitability of the limited liability company in specified
preceding quarters. The first five quarterly payments, each of $925,000, were made on January 10,
2006, April 10, 2006, July 11, 2006, October 10, 2006 and January 10, 2007. The January 10, 2007
amount is included in accrued expenses and other assets at December 31, 2006. In March 2006,
DirectStar requested an additional capital contribution in the amount of $2.0 million of which
$980,000, or 49%, was paid by MasTec.
Effective February 1, 2007, we acquired the remaining 51% equity interest in this investment.
As a result of our acquisition of the remaining 51% equity interest, we have consolidated the
operations of DirectStar with our results commencing in February 2007. In February 2007, we paid
the seller $8.65 million in cash, in addition to approximately $6.35 million which we also paid at
that time to discharge our remaining obligations to the seller under the purchase agreement for the
original 49% equity interest, and issued to the seller 300,000 shares of our common stock. This
purchase price is subject to adjustments pending finalization of a review of the acquisition date
balance sheet. Based on the finalization of this review, we may have to pay the seller additional
amounts. We have also agreed to pay the seller an earn-out through the eighth anniversary of the
closing date based on the future performance of the acquired business. In connection with the
purchase, we entered into a service agreement with the sellers for them to manage the business.
Under certain circumstances, including a change of control of MasTec or DirectStar or in certain
cases a termination of the service agreement, the remaining earn-out payments will be accelerated
and become payable. Under certain circumstances, we may be required to invest up to an additional
$3.0 million in DirectStar. In connection with the acquisition, on April 13, 2007, we filed a
registration statement to register for resale 200,000 shares of the total shares issued to the
seller. On May 15, 2007, this registration statement was declared effective by the SEC.
10
MasTec, Inc.
Notes to the Condensed Unaudited Consolidated Financial Statements
Amounts allocated to tangible and intangible assets are estimated pending the completion of
independent appraisals and additional analysis currently in process. The estimated preliminary
purchase price allocation for the 51% acquisition of this entity is based on the fair-value of each
of the components as of February 1, 2007 (in thousands):
|
|
|
|
|
Net assets |
|
$ |
3,281 |
|
Tradename |
|
|
476 |
|
Non-compete agreement |
|
|
311 |
|
Other intangibles |
|
|
6,055 |
|
Goodwill |
|
|
1,588 |
|
|
|
|
|
Purchase price |
|
$ |
11,711 |
|
|
|
|
|
The purchase price for the original 49% equity interest exceeded the carrying value of the net
assets as of original acquisition date and accordingly the excess was considered goodwill.
The non-compete agreements are in force with the former shareholders of the acquired entity
and are being amortized over their contractual life.
Prior to the acquisition of the remaining 51% equity interest, we accounted for this
investment using the equity method as we had the ability to exercise significant influence over the
financial and operational policies of this limited liability company. We recognized approximately
$0 and $1.2 million in equity income during the three months ended June 30, 2007 and 2006,
respectively, and approximately $0.1 million and $1.6 million during the six months ended June 30,
2007 and 2006, respectively. As of December 31, 2006, we had an investment balance of approximately
$15.7 million in relation to this investment included in other assets in the condensed unaudited
consolidated financial statements.
Note 5 Other Assets and Liabilities
Prepaid expenses and other current assets as of June 30, 2007 and December 31, 2006 consist of
the following (in thousands):
|
|
|
|
|
|
|
|
|
|
|
June 30, |
|
|
December 31, |
|
|
|
2007 |
|
|
2006 |
|
Deferred tax assets |
|
$ |
4,304 |
|
|
$ |
7,639 |
|
Notes receivable |
|
|
3,727 |
|
|
|
213 |
|
Non-trade receivables |
|
|
7,608 |
|
|
|
14,664 |
|
Other investments |
|
|
4,890 |
|
|
|
5,548 |
|
Prepaid expenses and deposits |
|
|
8,635 |
|
|
|
7,249 |
|
Other |
|
|
4,199 |
|
|
|
3,439 |
|
|
|
|
|
|
|
|
Total prepaid expenses and other current assets |
|
$ |
33,363 |
|
|
$ |
38,752 |
|
|
|
|
|
|
|
|
Other non-current assets consist of the following as of June 30, 2007 and December 31, 2006
(in thousands):
|
|
|
|
|
|
|
|
|
|
|
June 30, |
|
|
December 31, |
|
|
|
2007 |
|
|
2006 |
|
Investment in real estate |
|
$ |
1,683 |
|
|
$ |
1,683 |
|
Equity investment |
|
|
100 |
|
|
|
15,719 |
|
Long-term portion of deferred financing costs, net |
|
|
5,250 |
|
|
|
2,486 |
|
Cash surrender value of insurance policies |
|
|
8,194 |
|
|
|
7,654 |
|
Insurance escrow |
|
|
3,323 |
|
|
|
6,564 |
|
Long-term portion of notes receivable |
|
|
200 |
|
|
|
3,150 |
|
Other receivables |
|
|
2,910 |
|
|
|
2,910 |
|
Other |
|
|
5,788 |
|
|
|
3,239 |
|
|
|
|
|
|
|
|
Total other assets |
|
$ |
27,448 |
|
|
$ |
43,405 |
|
|
|
|
|
|
|
|
11
MasTec, Inc.
Notes to the Condensed Unaudited Consolidated Financial Statements
Other current and non-current liabilities consist of the following as of June 30, 2007 and
December 31, 2006 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
June 30, |
|
|
December 31, |
|
|
|
2007 |
|
|
2006 |
|
Current liabilities: |
|
|
|
|
|
|
|
|
Accrued compensation |
|
$ |
11,310 |
|
|
$ |
10,980 |
|
Accrued insurance |
|
|
15,834 |
|
|
|
16,784 |
|
Billings in excess of costs |
|
|
7,550 |
|
|
|
3,122 |
|
Accrued professional fees |
|
|
3,823 |
|
|
|
4,810 |
|
Accrued interest |
|
|
4,766 |
|
|
|
3,907 |
|
Obligations related to acquisitions |
|
|
3,039 |
|
|
|
|
|
Accrued losses on contracts |
|
|
166 |
|
|
|
410 |
|
Accrued payments related to equity investment |
|
|
|
|
|
|
925 |
|
Other |
|
|
13,333 |
|
|
|
6,328 |
|
|
|
|
|
|
|
|
Total other current liabilities |
|
$ |
59,821 |
|
|
$ |
47,266 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
June 30, |
|
|
December 31, |
|
|
|
2007 |
|
|
2006 |
|
Non-current liabilities: |
|
|
|
|
|
|
|
|
Accrued insurance |
|
$ |
31,277 |
|
|
$ |
34,158 |
|
Minority interest |
|
|
2,969 |
|
|
|
2,305 |
|
Other |
|
|
118 |
|
|
|
58 |
|
|
|
|
|
|
|
|
Total other liabilities |
|
$ |
34,364 |
|
|
$ |
36,521 |
|
|
|
|
|
|
|
|
Note 6 Debt
Debt is comprised of the following at June 30, 2007 and December 31, 2006 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
June 30, |
|
|
December 31, |
|
|
|
2007 |
|
|
2006 |
|
Revolving credit facility at LIBOR (5.36% as of
June 30, 2007 and 5.36% as of December 31,
2006) plus 1.125% as of June 30,
2007 and 1.25% as of December 31, 2006 or, at
MasTecs option, the banks base rate
(8.25% as of June 30, 2007 and as of December
31, 2006) |
|
$ |
|
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
7.625% senior notes due February 2017 |
|
|
150,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7.75% senior subordinated notes due February 2008 |
|
|
|
|
|
|
120,970 |
|
|
|
|
|
|
|
|
|
|
Capital lease obligations |
|
|
12,508 |
|
|
|
8,045 |
|
|
|
|
|
|
|
|
|
|
Notes payable for equipment, at interest rates
from 2.9% to 7.0% due in installments through
the year 2010 |
|
|
913 |
|
|
|
1,161 |
|
|
|
|
|
|
|
|
|
|
Other notes payable |
|
|
259 |
|
|
|
|
|
|
|
|
|
|
|
|
Total debt |
|
|
163,680 |
|
|
|
130,176 |
|
Less current maturities |
|
|
(2,900 |
) |
|
|
(1,769 |
) |
|
|
|
|
|
|
|
Long-term debt |
|
$ |
160,780 |
|
|
$ |
128,407 |
|
|
|
|
|
|
|
|
Revolving Credit Facility
We have a secured revolving credit facility under which we may borrow up to $150 million,
subject to certain adjustments and restrictions (the Credit Facility). Pursuant to an amendment
of the Credit Facility that became effective June 30, 2007, the expiration date of the Credit
Facility was extended from May 10, 2010 to May 10, 2012. As discussed in Note 12, Subsequent
Events, this amendment also reduced the interest rate margin applied to borrowings
12
MasTec, Inc.
Notes to the Condensed Unaudited Consolidated Financial Statements
and increased the maximum available amount we can borrow at any given time, among other things.
Deferred financing costs related to the Credit Facility are included in prepaid expenses and other
current assets, and in other assets in the condensed unaudited consolidated balance sheets.
The amount that we can borrow at any given time is based upon a formula that takes into
account, among other things, eligible billed and unbilled accounts receivable, equipment, real
estate and eligible cash collateral, which can result in borrowing availability of less than the
full amount of the Credit Facility. As of June 30, 2007 and December 31, 2006, net availability
under the Credit Facility totaled $38.0 million and $35.1 million, respectively, which includes
outstanding standby letters of credit aggregating $90.7 million and $83.3 million as of such dates,
respectively. At June 30, 2007, $69.1 million of the outstanding letters of credit were issued to
support MasTecs casualty and medical insurance requirements. These letters of credit mature at
various dates and most have automatic renewal provisions subject to prior notice of cancellation.
The Credit Facility is collateralized by a first priority security interest in substantially all of
our assets and a pledge of the stock of certain of our operating subsidiaries. Substantially all of
our wholly-owned subsidiaries collateralize the Credit Facility. At June 30, 2007 and December 31,
2006, we had no outstanding cash draws under the Credit Facility. Interest under the Credit
Facility accrues at variable rates based, at our option, on the agent banks base rate plus a
margin of between 0.0% and 0.50%, or at the LIBOR rate (as defined in the Credit Facility) plus a
margin of between 1.00% and 2.00%, depending on certain financial thresholds. Through December 31,
2007, the Credit Facility provides that the margin over LIBOR will be no higher than 1.125%. The
Credit Facility includes an unused facility fee of 0.25%.
The Credit Facility contains customary events of default (including cross-default) provisions
and covenants related to our operations that prohibit, among other things, making investments and
acquisitions in excess of specified amounts, incurring additional indebtedness in excess of
specified amounts, paying cash dividends, making other distributions, creating liens against our
assets, prepaying other indebtedness including our 7.625% senior notes, and engaging in certain
mergers or combinations without the prior written consent of the lenders. In addition, any
deterioration in the quality of billed and unbilled receivables, reduction in the value of our
equipment or an increase in our lease expense related to real estate, would reduce availability
under the Credit Facility.
MasTec is required to be in compliance with a minimum fixed charge coverage ratio of 1.1 to
1.0 measured on a monthly basis and certain events are triggered if the net availability under the
Credit Facility does not exceed $15.0 million. The $15.0 million availability trigger is subject
to adjustment if the maximum amount we may borrow under the Credit Facility is adjusted. The fixed
charge coverage ratio is generally defined to mean the ratio of our net income before interest
expense, income tax expense, depreciation expense, and amortization expense minus net capital
expenditures and cash taxes to the sum of all interest expense plus current maturities of debt for
the period. The financial covenant was not applicable as of June 30, 2007 because at that time the
net availability under the Credit Facility did not decline below the required threshold specified
above.
Senior Notes
On January 31, 2007, we issued $150.0 million aggregate principal amount of 7.625% senior
notes due February 2017 in a private placement. The notes are guaranteed by substantially all of
our domestic restricted subsidiaries. On May 29, 2007, a registration statement registering the
unregistered notes was declared effective by the SEC. On May 29, 2007, we commenced an exchange
offer whereby holders of our unregistered notes were able to exchange those notes for registered
notes. On June 29, 2007, all of the holders of our unregistered notes tendered their unregistered
notes for exchange and received a like amount of registered notes in the exchange. We used
approximately $121.8 million of the net proceeds from this offering to redeem all of our
outstanding 7.75% senior subordinated notes due February 2008 plus interest on March 2, 2007. We
expect to use the remaining net proceeds for working capital, possible acquisition of assets and
businesses and other general corporate purposes. As of June 30, 2007, we had outstanding $150.0
million in principal amount of these 7.625% senior notes. Interest is due semi-annually. The notes
are redeemable, in whole or in part, at our option at anytime on or after February 1, 2012. The
initial redemption price is 103.813% of the principal amount, plus accrued interest. The redemption
price will decline each year after 2012 and will be 100% of the principal amount, plus accrued
interest, beginning on February 1, 2015. The notes also contain default (including cross-default)
provisions and covenants restricting many of the same transactions restricted under the Credit
Facility.
13
MasTec, Inc.
Notes to the Condensed Unaudited Consolidated Financial Statements
For the three months ended June 30, 2007, our non-guarantor subsidiaries had revenues of $12.1
million or 4.7% of our consolidated revenues and income from continuing operations of $1.1 million,
or 6.7% of our consolidated income from continuing operations. For the six months ended June 30,
2007, our non-guarantor subsidiaries had revenues of $20.5 million, or 4.1% of our consolidated
revenues and income from continuing operations of $1.7 million, or 7.5% of our consolidated income
from continuing operations. For the three months ended June 30,
2006, our non-guarantor subsidiaries had revenues of
$5.4 million or 2.3% of our consolidated revenues and income
from continuing operations of $0.2 million or 1.8% of our
consolidated income from continuing operations. For the six months
ended June 30, 2006, our non-guarantor subsidiaries had revenues
of $9.7 million or 2.2% of our consolidated revenues and income
from continuing operations of $31,000 or 0.2% of our consolidated
income from continuing operations. At June 30, 2007 and
December 31, 2006, our non-guarantor subsidiaries had total assets of
$18.7 million and $11.5 million, respectively.
Capital Lease Obligations
During 2007, we entered into agreements which provided financing for various machinery and
equipment totaling $5.3 million. These capital leases are non-cash transactions and, accordingly,
have been excluded from the condensed unaudited consolidated statements of cash flows. These leases
range between 60 and 96 months and have effective interest rates ranging from 4.45% to 7.26%. In
accordance with Statement of Financial Accounting Standard No. 13, Accounting for Leases (SFAS
13), as amended, these leases were capitalized. SFAS 13 requires the capitalization of leases
meeting certain criteria, with the related asset being recorded in property and equipment and an
offsetting amount recorded as a liability. As of June 30, 2007, we had $12.5 million in total
indebtedness relating to the capital leases, of which $10.4 million was considered long-term.
Note 7 Discontinued Operations
On March 30, 2007, our board of directors voted to sell substantially all of our Canadian
operations. The decision to sell was made after our evaluation of short and long-term prospects
for these operations. Due to this decision, the operations in Canada have been accounted for as
discontinued operations for all periods presented. In addition, we reviewed the carrying value of
the net assets related to our Canadian operations. During the six month period ended June 30, 2007
we wrote-off $0.4 million in goodwill in connection with our decision to sell substantially all of
our Canadian net assets. In addition, based on managements estimate and the expected selling
price, we recorded a non-cash impairment charge of approximately $0.2 million.
On April 10, 2007, we sold substantially all of our Canadian operations for a sales price of
approximately $1.0 million. The purchase price is subject to adjustments based on the value of net
assets sold as of March 31, 2007.
The following table summarizes the assets and liabilities related to our Canadian operations
as of December 31, 2006 (in thousands):
|
|
|
|
|
|
|
|
|
December 31, |
|
|
|
|
2006 |
|
Cash |
|
|
$ |
1,053 |
|
Accounts receivable, net |
|
|
|
352 |
|
Prepaid expenses and other current assets |
|
|
|
383 |
|
Current assets |
|
|
$ |
1,788 |
|
|
|
|
|
|
Property and equipment, net |
|
|
$ |
188 |
|
Other assets |
|
|
|
401 |
|
|
|
|
|
|
Long-term assets |
|
|
$ |
589 |
|
|
|
|
|
|
Current liabilities |
|
|
$ |
687 |
|
|
|
|
|
|
Long-term liabilities |
|
|
$ |
|
|
|
|
|
|
|
As
of June 30, 2007, assets and liabilities retained from our
Canadian operations included cash and other current assets of
approximately $1.0 million, and current liabilities of
approximately $0.9 million.
14
MasTec, Inc.
Notes to the Condensed Unaudited Consolidated Financial Statements
The following table summarizes the results of our Canadian operations (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months Ended |
|
|
For the Six Months Ended |
|
|
|
June 30, |
|
|
June 30, |
|
|
|
2007 |
|
|
2006 |
|
|
2007 |
|
|
2006 |
|
Revenue |
|
$ |
7 |
|
|
$ |
1,584 |
|
|
$ |
675 |
|
|
$ |
2,728 |
|
Cost of revenue |
|
|
(1 |
) |
|
|
(1,407 |
) |
|
|
(823 |
) |
|
|
(2,626 |
) |
Operating and other expenses |
|
|
(164 |
) |
|
|
(396 |
) |
|
|
(939 |
) |
|
|
(836 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from operations
before benefit
for income taxes |
|
|
(158 |
) |
|
|
(219 |
) |
|
|
(1,087 |
) |
|
|
(734 |
) |
Benefit for income taxes |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss |
|
$ |
(158 |
) |
|
$ |
(219 |
) |
|
$ |
(1,087 |
) |
|
$ |
(734 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
On December 31, 2005, the executive committee of our board of directors voted to sell
substantially all of our state Department of Transportation related projects and assets. The
decision to sell was made after evaluation of, among other things, short and long-term prospects.
Due to this decision, the projects and assets that were for sale had been accounted for as
discontinued operations for all periods presented. In addition, we reviewed all projects in process
to determine if the estimated to complete amounts were materially accurate and all projects with an
estimated loss were accrued for. A review of the carrying value of property and equipment related
to the state Department of Transportation projects and assets was conducted in connection with the
decision to sell these projects and assets. Management assumed a one year cash flow and estimated
a selling price using a weighted probability cash flow approach based on managements estimates.
On February 14, 2007, we sold the state of Department of Transportation related projects and
underlying net assets. We agreed to keep certain assets and liabilities related to the state
Department of Transportation related projects. The sales price of $1.0 million was paid in cash at
closing. In addition, the buyer is required to pay us an earn out of up to $12.0 million contingent
on future operations of the projects sold to the buyer. However, as the earn out is contingent upon
the future performance of the state Department of Transportation related projects, we may not
receive any of these earn out payments. While the buyer of the state Department of Transportation
related projects has indemnified us for all contracts and liabilities sold, and has agreed to issue
a standby letter of credit in our favor in February 2008 to cover any remaining exposure, if the
buyer were unable to meet its contractual obligations to a customer and the surety paid the amounts
due under the bond, the surety would seek reimbursement of such amounts from us. The closing was
effective February 1, 2007 to the extent set forth in the purchase agreement. As a result of this
sale, we recorded an impairment charge of $44.5 million during the year ended December 31, 2006
calculated using the estimated sales price and managements estimate of closing costs and other
liabilities. In connection with the execution of the sales agreement in the first quarter of 2007,
we recorded an additional $2.9 million charge in connection with this transaction.
The following table summarizes the assets held for sale and liabilities related to the assets
held for sale for the state Department of Transportation operations as of December 31, 2006 (in
thousands):
|
|
|
|
|
|
|
December 31, |
|
|
|
2006 |
|
Accounts receivable, net |
|
$ |
10,315 |
|
Inventory |
|
|
8,461 |
|
Other current assets |
|
|
37 |
|
|
|
|
|
Current assets held for sale |
|
$ |
18,813 |
|
|
|
|
|
Property and equipment, net |
|
$ |
|
|
Long-term assets |
|
|
70 |
|
|
|
|
|
Long-term assets held for sale |
|
$ |
70 |
|
|
|
|
|
Current liabilities related to assets held for sale |
|
$ |
24,946 |
|
|
|
|
|
Long-term liabilities related to assets held for sale |
|
$ |
596 |
|
|
|
|
|
15
MasTec, Inc.
Notes to the Condensed Unaudited Consolidated Financial Statements
The following table summarizes the results of operations for the state Department of
Transportation related projects and assets that are considered to be discontinued (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months Ended |
|
|
For the Six Months Ended |
|
|
|
June 30, |
|
|
June 30, |
|
|
|
2007 |
|
|
2006 |
|
|
2007 |
|
|
2006 |
|
Revenue |
|
$ |
|
|
|
$ |
22,402 |
|
|
$ |
5,663 |
|
|
$ |
47,066 |
|
Cost of revenue |
|
|
|
|
|
|
(33,545 |
) |
|
|
(6,311 |
) |
|
|
(62,815 |
) |
Operating and other expenses. |
|
|
|
|
|
|
(24,546 |
) |
|
|
(3,780 |
) |
|
|
(27,620 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from operations
before benefit
for income taxes |
|
|
|
|
|
|
(35,689 |
) |
|
|
(4,428 |
) |
|
|
(43,369 |
) |
Benefit for income taxes |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss |
|
$ |
|
|
|
$ |
(35,689 |
) |
|
$ |
(4,428 |
) |
|
$ |
(43,369 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
During the fourth quarter of 2004, we ceased performing new services in the network services
operations. On May 24, 2006, we sold certain of these network services operations assets to a third
party for $0.2 million consisting of $0.1 million in cash and a promissory note in the principal
amount of $0.1 million. The promissory note is included in other current assets in the accompanying
condensed unaudited consolidated balance sheet. These operations have been classified as a
discontinued operation in all periods presented. The net income for the network services operations
was immaterial for both the three and six months ended June 30, 2007 and 2006, respectively.
Note 8 Commitments and Contingencies
We contracted to construct a natural gas pipeline for Coos County, Oregon in 2003.
Construction work on the pipeline ceased in December 2003 after the County refused payment due on
regular contract invoices of $6.3 million and refused to process change orders submitted to the
County on or after November 29, 2003 for additional work. In February 2004, we declared a breach of
contract and brought an action for breach of contract against Coos County in Federal District Court
in Oregon, seeking payment for work done, interest and anticipated profits. In April 2004, Coos
County announced it was terminating the contract and seeking another company to complete the
project. Coos County subsequently counterclaimed against us in the
Federal District Court action seeking significant damages
for breach of contract for alleged failures to properly construct the pipeline and for alleged
environmental and labor law violations, and other causes. The amount of revenue recognized on the
Coos County project that remained uncollected in accounts receivable
on the June 30, 2007 balance sheet amounted to $6.3 million
representing amounts due to us on normal progress payment invoices submitted under the contract. In
addition to these uncollected receivables, we also have additional claims for payment and interest
in excess of $6.0 million, including all of our change order billings and retainage, which we have
not recognized as revenue but which we believe are due to us under the terms of the contract. The
matter is currently being prepared for trial, expected during 2008. We have incurred substantial
costs in connection with this claim and will continue to do so until the resolution of the matter.
The outcome of the matter is uncertain and an unfavorable outcome could have a material adverse
effect on our results of operations, however, we believe we will
recover the uncollected receivable.
In connection with the Coos County pipeline project, the United States Army Corps of
Engineers, or Corps of Engineers, and the Oregon Department of Environmental Quality issued cease
and desist orders and notices of non-compliance to Coos County and to us with respect to the
Countys project. While we do not agree that the notices were appropriate or justified, we have
cooperated with the Corps of Engineers and the Oregon Division of State Land, Department of
Environmental Quality to mitigate any adverse impact as a result of construction. Through December
31, 2005 mitigation efforts have cost MasTec approximately $1.4 million. These costs were included
in the costs on the project at December 31, 2005 and December 31, 2004. No further mitigation
expenses were incurred in 2006 or are anticipated. On March 30, 2006,
the Corps of Engineers brought a complaint in a federal district
court against us and the County and are seeking significant damages. The
matter is expected to go to trial in the fall of 2007. We are contesting this action vigorously,
but can provide no assurance that a favorable outcome will be
16
MasTec, Inc.
Notes to the Condensed Unaudited Consolidated Financial Statements
reached. The outcome of the matter is uncertain and an unfavorable outcome could have a
material adverse effect on our results of operations.
We have a $0.1 million accrued liability in our unaudited consolidated balance sheet as of
June 30, 2007 relating to all unresolved Coos County matters and unpaid settlements reached
described above.
Note 9 Concentrations of Risk
We provide services to our customers in the following industries: communications, utilities
and government.
Revenue for customers in these industries is as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months Ended |
|
|
For the Six Months Ended |
|
|
|
June 30, |
|
|
June 30, |
|
|
|
2007 |
|
|
2006 |
|
|
2007 |
|
|
2006 |
|
Communications |
|
$ |
189,530 |
|
|
$ |
163,243 |
|
|
$ |
367,700 |
|
|
$ |
318,887 |
|
Utilities |
|
|
51,702 |
|
|
|
59,462 |
|
|
|
103,395 |
|
|
|
114,226 |
|
Government |
|
|
15,052 |
|
|
|
7,811 |
|
|
|
26,185 |
|
|
|
15,011 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
256,284 |
|
|
$ |
230,516 |
|
|
$ |
497,280 |
|
|
$ |
448,124 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
We grant credit, generally without collateral, to our customers. Consequently, we are subject
to potential credit risk related to changes in business and economic factors. However, we generally
have certain lien rights on that work and concentrations of credit risk are limited due to the
diversity of the customer base. We believe our billing and collection policies are adequate to
minimize potential credit risk. During the three months ended June 30, 2007, 53.4% of our total
revenue was attributed to two customers. Revenue from these two customers accounted for 42.7% and
10.7%, respectively, of the total revenue for the three months ended June 30, 2007. During the
three months ended June 30, 2006, two customers accounted for 46.2% of our total revenue. Revenue
from these two customers accounted for 34.2% and 12.0%, respectively, of the total revenue for the
three months ended June 30, 2006. During the six months ended June 30, 2007, 54.5% of our total
revenue was attributed to two customers. Revenue from these two customers accounted for 44.1% and
10.4%, respectively, of the total revenue for the six months ended June 30, 2007. During the six
months ended June 30, 2006, two customers accounted for 49.2% of our total revenue. Revenue from
these two customers accounted for 36.1% and 13.1%, respectively, of the total revenue for the six
months ended June 30, 2006.
We maintain an allowance for doubtful accounts for estimated losses resulting from the
inability of customers to make required payments. We maintain an allowance for doubtful accounts of
$8.9 million and $11.6 million as of June 30, 2007 and December 31, 2006, respectively, for both
specific customers and as a reserve against other uncollectible accounts receivable. The decrease
in reserves is due to certain specific reserves being written off against the receivable in the six
months ended June 30, 2007. Management analyzes historical bad debt experience, customer
concentrations, customer credit-worthiness, the availability of liens, the existence of payment
bonds and other sources of payment, and current economic trends when evaluating the adequacy of the
allowance for doubtful accounts. If judgments regarding the collectibility of accounts receivables
are incorrect, adjustments to the allowance may be required, which would reduce profitability. In
addition, our reserve covers the accounts receivable related to customers that filed for bankruptcy
protection. As of June 30, 2007 and December 31, 2006, we had remaining receivables from customers
undergoing bankruptcy reorganization totaling $9.9 million, of which $4.4 million is specifically
reserved. Based on the analytical process described above, management believes that we will recover
the net amounts recorded. Should additional customers file for bankruptcy or experience financial
difficulties, or should anticipated recoveries in existing bankruptcies and other workout
situations fail to materialize, we could experience reduced cash flows and losses in excess of the
current allowance.
17
MasTec, Inc.
Notes to the Condensed Unaudited Consolidated Financial Statements
Note 10 Related Party Transactions
MasTec purchases, rents and leases equipment used in its business from a number of different
vendors, on a non-exclusive basis, including Neff Corp. (Neff), in which Jorge Mas, Chairman of our Board of
Directors, and Jose Mas, our President and Chief Executive Officer, were directors and owners of a
controlling interest through June 4, 2005. Juan Carlos Mas, the
brother of Jorge and Jose Mas, was the
Chairman, Chief Executive Officer, a director and a shareholder of
Neff until May 31, 2007 when he sold his Neff shares and
resigned as its chief executive officer. Juan Carlos Mas remains as
chairman of the Neff board of directors. During the three months
ending June 30, 2007 and 2006, we paid Neff approximately $0.5 million and $0.2 million,
respectively, and $0.9 million and $0.4 million during the six months ended June 30, 2007 and
2006, respectively. We believe the amounts paid to Neff was equivalent to the payments that would
have been made between unrelated parties for similar transactions acting on an at arms length
basis.
We provide the services of certain marketing and sales personnel to an entity which was
previously 49% owned by us. These services are reimbursed to us at cost. During the six months
ended June 30, 2007, total payments received from this entity amounted to approximately $1.1
million.
We charter aircrafts from a third party who leases two of its aircraft from entities in which
Jorge Mas, Chairman of our Board of Directors, and Jose Mas, our President and Chief Executive
Officer, have an ownership interest. We paid this unrelated chartering company approximately $0.2
million and $0.6 million during the three and six month period ended June 30, 2007, respectively,
and $0.1 million and $0.2 million during the three and six month period ended June 30, 2006,
respectively.
During the three month period ended June 30, 2007 and 2006, we had an arrangement with a
customer whereby we leased employees to the customer and charged approximately $0.1 million and
$0.1 million, respectively, to the customer. We leased employees to this customer and charged
approximately $0.2 million and $0.2 million during the six month period ended June 30, 2007 and
2006, respectively. Jorge Mas, Chairman of our Board of Directors, and Jose Mas, our President and
Chief Executive Officer, are minority owners of this customer.
MasTec has entered into split dollar agreements with key executives and former executives, and
with the Chairman of our Board of Directors. During the three months ended June 30, 2007 and 2006,
we paid approximately $0.3 million and $0.3 million, respectively, in premiums in connection with
these split dollar agreements and approximately $0.5 million and $0.6 million during the six month
period ended June 30, 2007 and 2006, respectively.
In December 2006, we sold a property used in our operations for $3.5 million to an entity
whose principal is also a principal of our 51% owned subsidiary. We have received a note in the
amount of $2.8 million due December 2007, and guaranteed by the principal noted above. Concurrent
with the sale of this property, we entered into a month-to-month lease agreement at $25,000 per
month. In the second quarter of 2007 we terminated this lease. In accordance with Statement of
Financial Accounting Standards No. 66, Accounting for Sales of Real Estate and Statement of
Financial Accounting Standards No. 98, Accounting for Leases; Sale-Leaseback Transactions
Involving Real Estate; Sales-Type Leases of Real Estate; Definition of the Lease Term; Initial
Direct Costs of Direct Financing Lease-An Amendment of FASB Statements No. 13, 66 and 91 and a
Rescission of FASB Statement No. 26 and Technical Bulletin No. 79-11, we recognized a gain on this
sale of approximately $2.5 million in the first quarter of 2007.
Note 11 New Accounting Pronouncements
On February 15, 2007, the FASB issued Statement of Financial Accounting Standards No. 159,
The Fair Value Option for Financial Assets and Financial Liabilities Including an Amendment of
FASB Statement No. 115 (SFAS 159). This standard permits an entity to measure financial
instruments and certain other items at estimated fair value. Most of the provisions of SFAS No. 159
are elective; however, the amendment to SFAS No. 115, Accounting for Certain Investments in Debt
and Equity Securities, applies to all entities that own trading and available-for-sale securities.
The fair value option created by SFAS 159 permits an entity to measure eligible items at fair value
as of specified election dates. The fair value option (a) may generally be applied instrument by
instrument, (b) is irrevocable unless a new election date occurs, and (c) must be applied to the
entire instrument and not to only a portion of the instrument. SFAS 159 is effective as of the
beginning of the first fiscal year that begins after November 15, 2007. Early adoption is permitted
as of the beginning of the previous fiscal year provided that the entity (i) makes that choice in
the first 120 days of that year, (ii) has not yet issued financial statements for any interim
period of such year, and (iii) elects
to apply the provisions of SFAS 157. We are currently evaluating the impact of SFAS 159, if any, on
our consolidated financial statements.
18
MasTec, Inc.
Notes to the Condensed Unaudited Consolidated Financial Statements
In November 2006, the Emerging Issues Task Force reached a consensus on Issue No. 06-04,
Accounting for Deferred Compensation and Postretirement Benefit Aspects of Endorsement Split of
Endorsement Split-Dollar Life Insurance Arrangements, (EITF 06-04). EITF 06-04 reached a
consensus that for a split-dollar life insurance arrangement that provides a benefit to an employee
that extends to postretirement periods, an employer should recognize a liability for future
benefits in accordance with FAS No. 106 or Opinion 12 (depending upon whether a substantive plan is
deemed to exist) based on the substantive agreement with the employee. This consensus is effective
for fiscal years beginning after December 15, 2007. We are currently evaluating the impact of EITF
06-04, if any, on our consolidated financial statements.
In November 2006, the Emerging Issues Task Force reached a consensus on Issue No. 06-05,
Accounting for Purchase of Life Insurance-Determining the Amount That Could Be Realized in
Accordance with FASB Technical Bulletin No. 85-04, (EITF 06-05). EITF 06-05 reached a consensus
that a policyholder should consider any additional amounts included in the contractual terms of the
policy in determining the amount that could be realized under the insurance contract. The Task
Force agreed that contractual limitations should be considered when determining the realizable
amounts. Those amounts that are recoverable by the policyholder at the discretion of the insurance
company should be excluded from the amount that could be realized. The Task Force also agreed that
fixed amounts that are recoverable by the policyholder in future periods in excess of one year from
the surrender of the policy should be recognized at their present value. The Task Force also
reached a consensus that a policy holder should determine the amount that could be realizable under
the life insurance contract assuming the surrender of an individual-life by individual policy (or
certificate by certificate in a group policy). The Task Force noted that any amount that is
ultimately realized by the policyholder upon the assumed surrender of the final policy (or final
certificate in a group policy) shall be included in the amount that could be realized under the
insurance contract. This consensus is effective for fiscal years beginning after December 15, 2006.
The implementation of this pronouncement did not have a material effect on our consolidated
financial statements.
In September 2006, the FASB issued Statement of Financial Accounting Standards No. 158,
Employers Accounting for Defined Benefit Pension and Other Postretirement Plans an amendment
of FASB Statements No. 87, 88 and 132(R) (SFAS 158). This statement requires an employer to
recognize the funded status of a benefit plan as an asset or liability in its financial statements.
The funded status is measured as the difference between plan assets at fair value and the plans
specific benefit obligation, which would be the projected benefit obligation. Under SFAS 158, the
gains or losses and prior service cost or credits that arise in a period but are not immediately
recognized as components of net periodic benefit expense will now be recognized, net of tax, as a
component of other comprehensive income. SFAS 158 is effective for fiscal years ending after
December 15, 2008. We do not expect this pronouncement to have a material effect on our
consolidated financial statements.
In September 2006, the FASB issued Statement of Financial Accounting Standards No. 157 (SFAS
157), Fair Value Measurements. This statement establishes a single authoritative definition of
fair value, sets out a framework for measuring fair value, and requires additional disclosures
about fair-value measurements. SFAS 157 defines fair value as the price that would be received to
sell an asset or paid to transfer a liability in an orderly transaction between market participants
at the measurement date. For MasTec, SFAS 157 is effective for the fiscal year beginning January
1, 2008. We are currently evaluating this standard to determine its impact, if any, on our
consolidated financial statements.
In February 2006, the FASB issued Statement of Financial Accounting Standard No. 155,
Accounting for Certain Hybrid Financial Instruments an amendment of FASB Statements No. 133 and
140. In March 2006, the FASB issued Statement of Financial Accounting Standard No. 156,
Accounting for Servicing of Financial Assets an amendment of FASB Statement No. 140. These
statements became effective January 1, 2007 and did not have a material effect on our consolidated
financial statements.
19
Revenue by type of contract is as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months Ended |
|
|
For the Six Months Ended |
|
|
|
June 30, |
|
|
June 30, |
|
|
|
2007 |
|
|
2006 |
|
|
2007 |
|
|
2006 |
|
Master service and other service agreements |
|
$ |
183,934 |
|
|
$ |
171,411 |
|
|
$ |
365,738 |
|
|
$ |
341,275 |
|
Installation/construction projects agreements |
|
|
72,350 |
|
|
|
59,105 |
|
|
|
131,542 |
|
|
|
106,849 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
256,284 |
|
|
$ |
230,516 |
|
|
$ |
497,280 |
|
|
$ |
448,124 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Costs of Revenue
Our costs of revenue include the costs of providing services or completing the projects under
our contracts including operations payroll and benefits, fuel, subcontractor costs, equipment
leases and rental, materials not provided by our customers, and insurance. Profitability will be
reduced if the actual costs to complete each unit exceed original estimates on fixed price service
agreements. We also immediately recognize the full amount of any estimated loss on fixed fee
projects if the estimated costs to complete the remaining units for the project exceed the revenue
to be received from such units.
Our customers generally supply materials such as cable, conduit and telephone equipment.
Customer furnished materials are not included in revenue and cost of sales because such materials
are purchased by the customer. The customer determines the specifications of the materials that are
to be utilized to perform installation/construction services. We are only responsible for the
performance of the installation/construction services and not the materials for any contract that
includes customer furnished materials nor do we have any risk associated with customer furnished
materials. Our customers retain the financial and performance risk of all customer furnished
materials.
General and Administrative Expenses
General and administrative expenses include all costs of our management and administrative
personnel, provisions for bad debts, rent, utilities, travel, business development efforts and back
office administration such as financial services, insurance, administration, professional costs and
clerical and administrative overhead.
Discontinued Operations
In March 2007, we declared our Canadian operations a discontinued operation due to our
decision to sell this operation. Accordingly, results of operations for all periods presented of
our Canadian operations have been classified as discontinued operations and all financial
information for all periods presented reflects these operations as discontinued operations. On
April 10, 2007, we sold substantially all of our Canadian assets and liabilities. See Note 7 in
Part I. Item 1. Financial Statements.
In December 2005, we declared our state Department of Transportation related projects and
assets a discontinued operation due to our decision to sell substantially all these projects and
assets. Accordingly, results of operations for all periods presented of substantially all of our
state Department of Transportation related projects and assets have been classified as discontinued
operations and all financial information for all periods presented reflects these operations as
discontinued operations. On February 14, 2007, we sold our state Department of Transportation
related projects and net assets. See Note 7 in Part I. Item 1. Financial Statements.
Critical Accounting Policies and Estimates
Our discussion and analysis of our financial condition and results of operations is based upon
our consolidated financial statements, which have been prepared in accordance with accounting
principles generally accepted in the United States. The preparation of these financial statements
requires us to make estimates and judgments that affect the amounts reported in our financial
statements and the accompanying notes. On an on-going basis, we evaluate our estimates, including
those related to revenue recognition, allowance for doubtful accounts, intangible assets, reserves
and accruals, impairment of assets, income taxes, insurance reserves and litigation and
contingencies. We base our estimates on historical experience and on various other assumptions that
we believe to be reasonable under the circumstances. As management estimates, by their nature,
involve judgment regarding future uncertainties, actual results may differ materially from these
estimates. Refer to Note 3 to our condensed consolidated financial statements of this Quarterly
Report on Form 10-Q and to our most recent Annual Report on Form 10-K for further information
regarding our critical accounting policies and estimates.
23
Litigation and Contingencies
Litigation and contingencies are reflected in our condensed unaudited consolidated financial
statements based on our assessments of the expected outcome. If the final outcome of any litigation
or contingencies differs significantly from our current expectations, a charge to earnings could
result. See Note 8 to our condensed unaudited consolidated financial statements in Part I. Item 1.
and Part II. Item 1. to this Form 10-Q for updates to our description of legal proceedings and
commitments and contingencies.
Results of Operations
Comparison of Quarterly Results
The following table reflects our consolidated results of operations in dollar and percentage
of revenue terms for the periods indicated. This table includes the reclassification for the three
months and six months ended June 30, 2006 of the net loss for our Canadian operations to
discontinued operations from the prior period presentation (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months Ended June 30, |
|
|
For the Six Months Ended June 30, |
|
|
|
2007 |
|
|
2006 |
|
|
2007 |
|
|
2006 |
|
Revenue |
|
$ |
256,284 |
|
|
|
100.0 |
% |
|
$ |
230,516 |
|
|
|
100.0 |
% |
|
$ |
497,280 |
|
|
|
100.0 |
% |
|
$ |
448,124 |
|
|
|
100.0 |
% |
Costs of revenue, excluding depreciation |
|
|
213,327 |
|
|
|
83.2 |
% |
|
|
196,718 |
|
|
|
85.3 |
% |
|
|
424,348 |
|
|
|
85.3 |
% |
|
|
387,455 |
|
|
|
86.5 |
% |
Depreciation |
|
|
4,082 |
|
|
|
1.6 |
% |
|
|
3,456 |
|
|
|
1.5 |
% |
|
|
7,862 |
|
|
|
1.6 |
% |
|
|
6,970 |
|
|
|
1.6 |
% |
General and administrative expenses |
|
|
20,234 |
|
|
|
7.9 |
% |
|
|
16,994 |
|
|
|
7.4 |
% |
|
|
39,482 |
|
|
|
7.9 |
% |
|
|
33,125 |
|
|
|
7.4 |
% |
Interest expense, net of interest income |
|
|
2,120 |
|
|
|
0.8 |
% |
|
|
2,362 |
|
|
|
1.0 |
% |
|
|
4,915 |
|
|
|
1.0 |
% |
|
|
5,857 |
|
|
|
1.3 |
% |
Other income (expense), net |
|
|
573 |
|
|
|
0.2 |
% |
|
|
1,634 |
|
|
|
0.7 |
% |
|
|
4,057 |
|
|
|
0.8 |
% |
|
|
1,894 |
|
|
|
0.4 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from continuing
operations before minority
interest |
|
|
17,094 |
|
|
|
6.7 |
% |
|
|
12,620 |
|
|
|
5.5 |
% |
|
|
24,730 |
|
|
|
5.0 |
% |
|
|
16,611 |
|
|
|
3.7 |
% |
Minority interest |
|
|
(1,035 |
) |
|
|
(0.4 |
)% |
|
|
(323 |
) |
|
|
(0.1 |
)% |
|
|
(1,652 |
) |
|
|
(0.3 |
)% |
|
|
(194 |
) |
|
|
(0.0 |
)% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations |
|
|
16,059 |
|
|
|
6.3 |
% |
|
|
12,297 |
|
|
|
5.3 |
% |
|
|
23,078 |
|
|
|
4.6 |
% |
|
|
16,417 |
|
|
|
3.7 |
% |
Loss from discontinued operations |
|
|
(158 |
) |
|
|
(0.1 |
)% |
|
|
(35,954 |
) |
|
|
(15.6 |
)% |
|
|
(5,507 |
) |
|
|
(1.1 |
)% |
|
|
(44,298 |
) |
|
|
(9.9 |
)% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) |
|
$ |
15,901 |
|
|
|
6.2 |
% |
|
$ |
(23,657 |
) |
|
|
(10.3 |
)% |
|
$ |
17,571 |
|
|
|
3.5 |
% |
|
$ |
(27,881 |
) |
|
|
(6.2 |
)% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended June 30, 2007 Compared to Three Months Ended June 30, 2006
Revenue. Our revenue was $256.3 million for the three months ended June 30, 2007, compared to
$230.5 million for the same period in 2006, representing an increase of $25.8 million or 11.2%.
This increase was due primarily to increased revenue of approximately $30.5 million from
DIRECTV®.
The
DIRECTV®
increase was primarily due to subscriber activations from the
February 2007 DirectStar acquisition and, also, a significant
increase in the number of
DIRECTV®
installation and service work orders. Revenue also increased due to higher
revenue of $8.9 million from Verizon due to additional work orders. In addition, revenue related to
projects for the South Florida Water Management District increased by $3.6 million in the three
months ended June 30, 2007 to $6.3 million as we received increased work volume from this customer.
These increases in revenue were partially offset by a decrease in revenue of $11.2 million from
AT&T (formerly BellSouth) and $3.4 million from Florida Power & Light.
Costs of Revenue. Our costs of revenue were $213.3 million or 83.2% of revenue for the three
months ended June 30, 2007, compared to $196.7 million or 85.3% of revenue for the same period in
2006. The $16.6 million increase in costs of revenue is primarily attributed to the increase in
revenue discussed above. The improvement in operating margin is mainly attributed to a reduction
in payroll costs and contract labor costs from 54.8% of revenue to
50.9% of revenue. The improvement in operating margin was helped by
an improvement in the mix of projects including the acquisition of
DirectStar. Offsetting
this improvement in margin is an increase in fuel costs as a percent of revenue, from 3.8% of
revenue in the three months ended June 30, 2006 to 4.1% of revenue in the comparable period in 2007
(associated with higher average fuel costs), as well as other individually small margin changes on
other cost of revenue line items.
Depreciation. Depreciation was $4.1 million for the three months ended June 30, 2007, compared
to $3.5 million for the same period in 2006, representing an increase of $0.6 million. The increase
in depreciation expense in the three
24
months ended June 30, 2007 was due primarily to our increase in capital expenditures resulting
from our entering into capital leases for our fleet requirements. As a percentage of revenue,
depreciation expense was relatively consistent over both periods, representing 1.6% of revenue in
the three months ended June 30, 2007 and 1.5% of revenue in the three months ended June 30, 2006.
General and administrative expenses. General and administrative expenses were $20.2 million or
7.9% of revenue for the three months ended June 30, 2007, compared to $17.0 million or 7.4% of
revenue for the same period in 2006, representing an increase of $3.2 million. We recorded $1.2
million of additional bad debt expense in the three months ended June 30, 2007 as compared to the
three months ended June 30, 2006. This increase is largely associated with higher levels of revenue
and our evaluation of the collectibility of our accounts receivable. $1.3 million of the increase
is due to an increase in compensation in the quarter ended
June 30, 2007 as compared to the three
months ended June 30, 2006. In addition, insurance costs increased by $0.9 million in the three
months ended June 30, 2007 as compared to the same period in 2006, due to a number of factors
including larger business volume.
Interest expense, net. Interest expense, net of interest income was $2.1 million or 0.8% of
revenue for the three months ended June 30, 2007, compared to $2.4 million or 1.0% of revenue for
the same period in 2006 representing a decrease of approximately $0.25 million. The decrease was
due in part to higher interest income, which increased from $1.4 million in second quarter of 2006
to $1.5 million in second quarter of 2007, largely due to higher outstanding cash balances. We also
experienced an increase in interest expense on notes of $0.5 million resulting from an increase in
average long term debt outstanding in the three months ended June 30, 2007 as compared to the same
period in 2006. This was largely offset by a $0.5 million reduction in expense associated with the
amortization of deferred financing costs in the three months ended June 30, 2007 as compared to the
same period in 2006.
Other income (expense), net. Other income, net was $0.6 million for the three months ended
June 30, 2007, compared to $1.6 million in the three months ended June 30, 2006, representing a
decrease of $1.1 million. The decrease is mainly attributed to approximately $1.2 million
recognized during the three months ended June 30, 2006 on our equity income related to our
previously owned 49% interest in an equity-method investment. As discussed in Note 3 and Note 4 to
our condensed unaudited consolidated financial statements in Part I. Item 1 of this Form 10-Q,
effective February 1, 2007, we acquired the remaining 51% interest and consolidated the results of
this entity. As such, beginning February 1, 2007, there is no equity income recorded for this
investment as their results of operations are consolidated within our own.
Minority interest. Minority interest for GlobeTec Construction, LLC (GlobeTec) resulted in a
charge of $1.0 million for the three months ended June 30, 2007, compared to a charge of $0.3
million for the same period in 2006, representing an increase in minority interest charge of $0.7
million as a result of higher net income in the three months ended June 30, 2007 compared to the
same period in 2006.
Discontinued operations. The loss on discontinued operations, which includes our Brazilian
operations, our network services operations, our state Department of Transportation related
projects and assets, as well as our Canadian operations was $0.2 million for the three months ended
June 30, 2007 compared to a loss of $36.0 million for the three months ended June 30, 2006. The
net loss for our state Department of Transportation related projects and assets amounted to $0
million for the three months ended June 30, 2007 compared to a net loss of $35.7 million for the
three months ended June 30, 2006. Effective February 1, 2007, we sold our state Department of
Transportation related projects and underlying assets. Therefore, the results of operations for our
state Department of Transportation related projects and assets during the three month period ended
June 30, 2006 are included as a component of discontinued operations while there was no effect
during the three months during the comparable period in 2007. In addition, the net loss attributed
to our Canadian operations was $0.2 million during the three month period ended June 30, 2007
compared to $0.2 million during the three month period ended June 30, 2006. In our other
discontinued operations, during the three months ended June 30, 2007 we had no net loss compared to
a net loss of $47,000 during the comparable period in 2006.
25
Six Months Ended June 30, 2007 Compared to Six Months Ended June 30, 2006
Revenue. Our revenue was $497.3 million for the six months ended June 30, 2007, compared to
$448.1 million for the same period in 2006, representing an increase of $49.2 million or 11.0%.
This increase was due primarily to increased revenue of approximately $57.8 million from
DIRECTV®.
The
DIRECTV®
increase was primarily due to subscriber activations from the
February 2007 DirectStar acquisition and, also, a significant
increase in the number of
DIRECTV®
installation and service work orders. Revenue also increased due to higher
revenue of $16.8 million from Verizon due to a higher volume of work orders. In addition, revenue
related to projects for the South Florida Water Management District increased by $5.8 million to
$10.0 million as we received increased work volume from this customer. These increases in revenue
were partially offset by a decrease in revenue of $24.9 million from AT&T (formerly BellSouth) and
$6.9 million from Florida Power & Light.
Costs of Revenue. Our costs of revenue were $424.3 million or 85.3% of revenue for the six
months ended June 30, 2007, compared to $387.5 million or 86.5% of revenue for the same period in
2006. The $36.9 million increase in costs of revenue is primarily attributed to the increase in
revenue discussed above. The improvement in operating margin is mainly attributed to a reduction in
payroll and contract labor costs from 54.9% of revenue to 52.0% of
revenue. The improvement in operating margin was helped by an
improvement in the mix of projects including the acquisition of
DirectStar. Offsetting this
improvement in margins is an increase in the cost of fuel as a percent of revenue, from 3.5% of
revenue in the six months ended June 30, 2006 to 3.8% of revenue in the comparable period in 2007;
this increase is associated with higher average fuel costs. We also experienced an increase in the
cost of materials we use, from 13.0% of revenue in the first half of 2006 to 13.3% of revenue in
the six months ended June 30, 2007, as well as several individually smaller increases in costs of
revenue.
Depreciation. Depreciation was $7.9 million for the six months ended June 30, 2007, compared
to $7.0 million for the same period in 2006, representing an increase of $0.9 million. The increase
in depreciation expense in the six months ended June 30, 2007 was due primarily to our increase in
capital expenditures resulting from our entering into capital leases for our fleet requirements.
As a percentage of revenue, depreciation expense was relatively consistent over both periods,
representing 1.6% of revenue in the six months ended June 30, 2007 and 2006.
General and administrative expenses. General and administrative expenses were $39.5 million or
7.9% of revenue for the six months ended June 30, 2007, compared to $33.1 million or 7.4% of
revenue for the same period in 2006, representing an increase of $6.4 million. We recorded $2.0
million of additional bad debt expense in the six months ended June 30, 2007 as compared to the
same period in 2006. This is largely associated with higher levels of revenue and our evaluation of
the collectibility of our accounts receivable. $2.3 million of the increase is due to an increase
in compensation costs in the six months ended June 30, 2007 as compared to the six months ended
June 30, 2006. The increase in general and administrative expenses was also due to additional legal
and professional fees, which increased by approximately $0.8 million to $6.9 million during the six
month period ended June 30, 2007 compared to the same period in 2006.
Interest expense, net. Interest expense, net of interest income was $4.9 million or 1.0% of
revenue for the six months ended June 30, 2007, compared to $5.9 million for the same period in
2006, representing a decrease of approximately $1.0 million. The decrease was due in part to higher
interest income, which increased from $2.5 million in the six months ended June 30, 2006 to $4.2
million in comparable period of 2007, largely due to higher outstanding cash balances. Offsetting
this increase in interest income was an increase in interest expense on notes of $0.7 million
resulting from an increase in average long term debt outstanding in the six months ended June 30,
2007 as compared to the same period in 2006.
Other income (expense), net. Other income, net was $4.1 million for the six months ended June
30, 2007, compared to $1.9 million in the six months ended June 30, 2006, representing an increase
of $2.2 million. The increase is largely attributed to an increase of $3.3 million on the sale of
property and equipment, which increased to $3.7 million in the six months ended June 30, 2007. $2.5
million of this increase is due to the sale of property discussed in Note 10 to our condensed
unaudited consolidated financial statements in Part I. Item 1. Financial Statements to this Form
10-Q. Offsetting this is a decrease of $1.5 million in the amount of equity income recognized
during the six months ended June 30, 2007 from our interest in an equity-method investment. As
discussed in Note 3 and Note 4 to our condensed unaudited consolidated financial statements in Part
I. Item 1. Financial Statements to this Form 10-Q, effective February 1, 2007, we acquired the
remaining 51% interest and consolidated the results of this company. As such, beginning February 1,
2007, there is no equity income recorded for this entity as their results of operations are
consolidated whereas in the six months ended June 30, 2006 we recorded $1.6 million in equity
income.
26
Minority interest. Minority interest for GlobeTec resulted in a charge of $1.7 million for the
six months ended June 30, 2007, compared to $0.2 million for the same period in 2006, representing
an increase in minority interest charge of $1.5 million as a result of higher net income in the six
months ended June 30, 2007 compared to the same period in 2006.
Discontinued operations. The loss on discontinued operations, which includes our Brazilian
operations, our network services operations, our state Department of Transportation related
projects and assets, as well as our Canadian operations was $5.5 million for the six months ended
June 30, 2007 compared to a loss of $44.3 million for the six months ended June 30, 2006. The net
loss for our state Department of Transportation related projects and assets amounted to $4.4
million for the six months ended June 30, 2007 compared to a net loss of $43.4 million for the six
months ended June 30, 2006. Effective February 1, 2007, we sold our state Department of
Transportation related projects and underlying assets. Therefore, the results of operations for our
state Department of Transportation related projects and assets are only included for one month
during the six month period ended June 30, 2007 compared to six months during the comparable period
in 2006. Furthermore, the loss from our state Department of Transportation related projects and
assets, includes a loss of $2.9 million in connection with the execution of the sales agreement
during the first quarter of 2007. In addition, the net loss attributed to our Canadian operations
was $1.1 million during the six month period ended June 30, 2007 compared to $0.7 million during
the six month period ended June 30, 2006. In our other discontinued operations, during the six
months ended June 30, 2007 we had a net income of $8,000 compared to a net loss of $0.2 million
during the comparable period in 2006.
Financial Condition, Liquidity and Capital Resources
Our primary sources of liquidity are cash flows from continuing operations, availability under
our credit facility, capital lease arrangements, and proceeds from sales of assets and investments. On January
31, 2007, we also issued $150.0 million of 7.625% senior notes due February 2017. On March 2, 2007,
we used $121.8 million of the proceeds from the senior note offering to redeem all of our remaining
7.75% senior subordinated notes plus interest. In February 2007, we used $15.0 million in
connection with the acquisition of the remaining 51% equity interest in an investment in which we
previously owned a 49% interest. The remaining net proceeds from the senior note offering will be
used for working capital, possible acquisitions of assets and businesses and other general
corporate purposes. On January 24, 2006, we completed a public offering of 14,375,000 shares of our
common stock at $11.50 per share. The net proceeds from the sale were approximately $156.5 million
after deducting underwriting discounts and offering expenses. We used $18.5 million of the net
proceeds for the cash portion of the purchase price of substantially all of the assets and
contracts of Digital Satellite Services, Inc., which we refer to as the DSSI acquisition. On March
2, 2006, we used $75.5 million of the net proceeds of the public offering to redeem a portion of
our 7.75% senior subordinated notes due February 2008, including the payment of related interest.
Our primary liquidity needs are for working capital, capital expenditures, insurance
collateral in the form of cash and letters of credit, equity investment and earn out obligations
and debt service. In January 2006, our lenders issued a $6.5 million letter of credit to our
insurance carrier related to our 2006 insurance plans. In November 2006, our lenders issued an
$18.0 million letter of credit to our insurance carrier related to our current insurance plans
simultaneously with the insurance carrier returning cash collateral of $18.0 million plus all
accrued interest to us. Following the January 2007 issuance of the $150.0 million senior notes due
2017, our semi-annual interest payments have been increased to approximately $5.7 million for the
senior notes from approximately $4.7 million. In addition to ordinary course working capital
requirements, we estimate that we will spend between $20.0 million to $40.0 million per year on
capital expenditures. We will, however, because of our improved financial condition, continue to
evaluate lease versus buy decisions to meet our equipment needs and based on this evaluation, our
capital expenditures may increase in 2007 from this estimate. We expect to continue to sell older
vehicles and equipment as we upgrade with new equipment and we expect to obtain proceeds from these
sales. In addition, in connection with certain acquisitions including the DSSI acquisition and our
acquisition of the remaining 51% equity interest in our equity investment described below, we have
agreed to pay the sellers certain equity investment and earn out obligations which are generally
based on the future performance of the investment or acquired business.
As discussed above, effective February 1, 2007, we acquired the remaining 51% equity interest
in an investment in which we had previously owned 49%. We paid the seller $8.65 million in cash, in
addition to approximately $6.35 million which we also paid at that time to discharge our remaining
obligations to the seller under the purchase agreement for the original 49% equity interest. We
also issued to the seller 300,000 shares of our common stock. We agreed to pay
27
the seller an earn out through the eighth anniversary of the closing date based on the future
performance of the acquired entity. In connection with the purchase, we entered into a service
agreement with the sellers to manage the business. Under certain circumstances, including a change
of control of MasTec or the acquired entity or in certain cases a termination of the service
agreement, the remaining earn out payments will be accelerated and become payable. Under the
purchase agreement, we may be required to invest up to an additional $3.0 million in this entity.
We need working capital to support seasonal variations in our business, primarily due to the
impact of weather conditions on external construction and maintenance work, including storm
restoration work, and the corresponding spending by our customers on their annual capital
expenditure budgets. Our business is typically slower in the first and fourth quarters of each
calendar year and stronger in the second and third quarters. Accordingly, we generally experience
seasonal working capital needs from approximately April through September to support growth in
unbilled revenue and accounts receivable, and to a lesser extent, inventory. Our billing terms are
generally net 30 to 60 days, although some contracts allow our customers to retain a portion (from
2% to 15%) of the contract amount until the contract is completed to their satisfaction. We
maintain inventory to meet the material requirements of some of our contracts. Some of our
customers pay us in advance for a portion of the materials we purchase for their projects, or allow
us to pre-bill them for materials purchases up to a specified amount.
Our vendors generally offer us terms ranging from 30 to 90 days. Our agreements with
subcontractors usually contain a pay-when-paid provision, whereby our payments to subcontractors
are made only after we are paid by our customers.
We anticipate that funds generated from continuing operations, the net proceeds from our
senior note offering completed in the first quarter of 2007, borrowings under our credit facility,
and proceeds from sales of assets and investments will be sufficient to meet our working capital
requirements, anticipated capital expenditures, insurance collateral requirements, equity
investment obligations, letters of credit and debt service obligations for at least the next twelve
months.
As of June 30, 2007, we had $194.3 million in working capital compared to $164.0 million as of
December 31, 2006. We define working capital as current assets less current liabilities. Cash and
cash equivalents increased from $88.0 million at December 31, 2006 to $119.5 million at June 30,
2007 mainly due to net proceeds from our senior note offering.
Net cash provided by operating activities was $27.3 million for the six months ended June 30,
2007 compared to $10.4 million for the six months ended June 30, 2006. The net cash provided by
operating activities in the six months ended June 30, 2007 was primarily related to improved
earnings and business mix (including the disposition of our state Department of Transportation
business), as well as to the timing of cash payments to vendors and sources of cash from other
assets and inventory management. The net cash provided in operating activities during the six
months ended June 30, 2006 was primarily related to the timing of cash payments to vendors and
sources of cash collections from customers, as well as the management of inventory and other
assets.
Net cash used in investing activities was $24.0 million for the six months ended June 30, 2007
compared to net cash used in investing activities of $30.8 million for the six months ended June
30, 2006. Net cash used in investing activities during the six months ended June 30, 2007 primarily
related to $11.2 million used in connection with acquisitions made net of cash acquired and $14.8
million used for capital expenditures offset by $3.5 million in net proceeds from the sale of
assets. Net cash used in investing activities during the six months ended June 30, 2006 primarily
related to cash payments made in connection with the DSSI acquisition of $19.3 million, capital
expenditures in the amount of $10.3 million and payments related to our equity investment in the
amount of $2.8 million offset by $1.9 million in net proceeds from sales of assets.
Net cash provided by financing activities was $27.2 million for the six months ended June 30,
2007 compared to $80.9 million for the six months ended June 30, 2006. Net cash provided by
financing activities in the six months ended June 30, 2007 was mainly due to proceeds from the
issuance of $150.0 million 7.625% senior notes in January 2007 partially offset by the redemption
of $121.0 million 7.75% senior subordinated notes in February 2007 and $3.8 million in payments of
financing costs. Net cash provided by financing activities in the six months ended June 30, 2006
was primarily related to net proceeds from the issuance of common stock of $156.5 million and
proceeds from the issuance
28
of common stock pursuant to stock option exercises in the amount of $3.4 million partially
offset by the redemption of $75.0 million principal on our senior subordinated notes and payments
for borrowings of $3.8 million.
Cash used in discontinued operations in the six months ended June 30, 2007 was $6.0 million.
This mainly consisted of $6.2 million in cash used in operating activities, mostly attributed to
our net loss from these operations.
As discussed in Note 6 and Note 12 to our condensed unaudited consolidated financial
statements in Part I. Item 1. Financial Statements to this Form 10-Q, we have a secured revolving
credit facility for our operations which was amended and restated on July 31, 2007 with an
effective date of June 30, 2007. The credit facility has a maximum amount of available borrowing
of $150.0 million, subject to certain restrictions. If certain conditions under the Credit Facility
are met, we may request that the maximum amount of available borrowing under the Credit Facility be
increased from $150 million to $200 million. The costs related to this amendment were $0.2 million
which are being amortized over the life of the credit facility. The credit facility expires on May
10, 2012. These deferred financing costs are included in prepaid expenses and other current assets
and other assets in our consolidated balance sheet. On November 7, 2006, we amended our credit
facility and provided our insurer with an $18 million letter of credit under the facility
simultaneously with the insurer returning cash collateral of $18 million plus all accrued interest
to us. As collateral for this letter of credit, we pledged $18 million to our lenders under the
Credit Facility. This increase in the outstanding balance in letter of credit will not result in a
reduction to our net availability under the credit facility as long as sufficient cash or
collateral is granted to our lenders.
The amount that we can borrow at any given time is based upon a formula that takes into
account, among other things, eligible billed and unbilled accounts receivable, equipment, real
estate and eligible cash collateral, which can result in borrowing availability of less than the
full amount of the credit facility. As of June 30, 2007 and December 31, 2006, net availability
under the credit facility, as amended, totaled $38.0 million and $35.1 million, respectively, which
included outstanding standby letters of credit aggregating $90.7 million and $83.3 million in each
period, respectively. At June 30, 2007, $69.1 million of the outstanding letters of credit were
issued to support our casualty and medical insurance requirements. These letters of credit mature
at various dates and most have automatic renewal provisions subject to prior notice of
cancellation. The credit facility is collateralized by a first priority security interest in
substantially all of our assets and a pledge of the stock of certain of our operating subsidiaries.
Substantially all wholly-owned subsidiaries collateralize the facility. At June 30, 2007 and
December 31, 2006, we had no outstanding cash draws under the credit facility. Interest under the
credit facility accrues at rates based, at our option, on the agent banks base rate plus a margin
of between 0.0% and 0.50%, or at the LIBOR rate (as defined in the credit facility) plus a margin
of between 1.00% and 2.00%, depending on certain financial thresholds. The credit facility includes
an unused facility fee of 0.25%.
If the net availability under the credit facility is under $15.0 million on any given day, we
are required to be in compliance with a minimum fixed charge coverage ratio measured on a monthly
basis and certain events are triggered. The $15.0 million availability trigger is subject to
adjustment if the maximum amount we may borrow under the credit facility is adjusted. The fixed
charge coverage ratio is generally defined to mean the ratio of our net income before interest
expense, income tax expense, depreciation expense, and amortization expense minus net capital
expenditures and cash taxes paid to the sum of all interest expense plus current maturities of debt
for the period. The financial covenant was not applicable as of June 30, 2007, because at that time
net availability under the credit facility, as amended, exceeded the required threshold specified
above.
Based upon the amendments to the credit facility, our current availability, net proceeds from
the sale of common stock, liquidity and projections for 2007, we believe we will be in compliance
with the credit facilitys terms and conditions and the minimum availability requirements for the
remainder of 2007. We are dependent upon borrowings and letters of credit under this credit
facility to fund operations. Should we be unable to comply with the terms and conditions of the
credit facility, we would be required to obtain modifications to the credit facility or another
source of financing to continue to operate. We may not be able to achieve our 2007 projections and
this may adversely affect our ability to remain in compliance with the credit facilitys minimum
net availability requirements and minimum fixed charge ratio in the future.
Our variable rate credit facility exposes us to interest rate risk. However, we had no cash
borrowings outstanding under the credit facility at June 30, 2007.
29
As of June 30, 2007, $150.0 million of our 7.625% senior notes due in February 2017, with
interest due semi-annually were outstanding. The notes contain default (including cross-default)
provisions and covenants restricting many of the same transactions as under our credit facility.
The indenture which governs our senior notes allows us to incur the following additional
indebtedness among others: the credit facility (up to $200 million), renewals to existing debt
permitted under the indenture plus an additional $50 million of indebtedness, further indebtedness
if our fixed charge coverage ratio is at least 2:1 for the four most recently ended fiscal quarters
determined on a pro forma basis as if that additional debt has been incurred at the beginning of
the period. In addition, the indenture prohibits incurring additional capital lease obligations in
excess of 5% of our consolidated net assets at any time the senior notes remain outstanding. The
definition of our fixed charge coverage ratio under the indenture is essentially equivalent to that
under our credit facility.
Some of our contracts require us to provide performance and payment bonds, which we obtain
from a surety company. If we were unable to meet our contractual obligations to a customer and the
surety paid our customer the amount due under the bond, the surety would seek reimbursement of such
payment from us. At June 30, 2007, the cost to complete on our
$271.8 million performance and
payment bonds was $53.2 million.
New Accounting Pronouncements
See Note 11 to our condensed unaudited consolidated financial statements in Part I. Item 1.
Financial Statements to this Form 10-Q for certain new accounting pronouncements.
Seasonality
Our operations are historically seasonally slower in the first and fourth quarters of the
year. This seasonality is primarily the result of client budgetary constraints and preferences and
the effect of winter weather on network activities. Some of our clients, particularly the incumbent
local exchange carriers, tend to complete budgeted capital expenditures before the end of the year
and defer additional expenditures until the following budget year.
Impact of Inflation
The primary inflationary factor affecting our operations is increased labor costs. We are also
affected by changes in fuel costs which increased significantly in 2007 and 2006.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
We are exposed to market risk related to changes in interest rates and fluctuations in foreign
currency exchange rates. Our variable rate credit facility exposes us to interest rate risk.
However, we had no cash borrowings under the credit facility at June 30, 2007.
Interest Rate Risk
Less than 1% of our outstanding debt at June 30, 2007 was subject to variable interest rates.
The remainder of our debt has fixed interest rates. Our fixed interest rate debt includes $150.0
million (face value) in senior notes. The carrying value and market value of our debt at June 30,
2007 was $150.4 million. Based upon debt balances outstanding at June 30, 2007, a 100 basis point
(i.e., 1%) addition to our weighted average effective interest rate for variable rate debt would
not have a material impact on our interest expense.
Foreign Currency Risk
We had an investment in a subsidiary in Canada and sold our services into this foreign market.
Our foreign net asset/exposure (defined as assets denominated in foreign currency less
liabilities denominated in foreign currency) for Canada at June 30, 2007 of U.S. dollar equivalents
was a net asset of $0.1 million as of June 30, 2007 compared to $1.7 million at December 31, 2006.
30
ITEM 4. CONTROLS AND PROCEDURES
As of the end of the period covered by this report, we carried out an evaluation, under the
supervision and with the participation of our management, including our Chief Executive Officer and
our Chief Financial Officer, of the effectiveness of the design and operation of our disclosure
controls and procedures (as defined in Rule 13a-15(e) under the Securities Exchange Act of 1934, as
amended). Based upon that evaluation, we concluded that as of June 30, 2007, our disclosure
controls and procedures are effective to ensure that information required to be disclosed in
reports that we file or submit under the Exchange Act are recorded, processed, summarized and
reported within the time periods specified in the rules and forms of the Securities and Exchange
Commission and that such information is accumulated and communicated to our management, including
our Chief Executive Officer and Chief Financial Officer, to allow for timely decisions regarding
required disclosures.
Changes in Internal Control over Financial Reporting
There were no changes in our internal control over financial reporting identified in
connection with the evaluation required by paragraph (d) of Exchange Act Rules 13a-15 or 15d-15
that occurred during the period covered by this report that have materially affected, or are
reasonably likely to materially affect, our internal control over financial reporting.
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
Refer to Note 8 to our consolidated financial statements of this Quarterly Report on Form 10-Q
for a discussion of any recent material developments related to our legal proceedings since the
filing of our most recent Annual Report on Form 10-K.
ITEM 1A. RISK FACTORS
Except as set forth below, there have been no material changes to any of the risk factors
disclosed in our most recently filed Annual Report on Form 10-K.
We derive a significant portion of our revenue from a few customers, and the loss of one of these
customers or a reduction in their demand, the amount they pay or their ability to pay, for our
services could impair our financial performance.
In the three months ended June 30, 2007, we derived approximately 42.7% and 10.7% of our
revenue from DIRECTV® and Verizon, respectively. During the six month period ended June
30, 2007, we derived approximately 44.1% and 10.4% of our revenue from DIRECTV® and
Verizon, respectively. Because our business is concentrated among relatively few major customers,
our revenue could significantly decline if we lose one or more of these customers or if the amount
of business from any of these customer reduces significantly, which could result in reduced
profitability and liquidity.
31
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
We held our 2007 Annual Meeting of Shareholders on May 24, 2007 at which time the holders of a
majority of our issued and outstanding common stock (48,212,282 out of the total issued and
outstanding of 65,549,481) were present and voted to approve the election of our Class III
directors noted in the chart below, the sole proposal presented to the shareholders at the 2007
Annual Meeting. The following Class I and Class II directors terms of office continued after the
meeting: Carlos M. de Cespedes, Ernst N. Csiszar, Julia L. Johnson, Jorge Mas, Jose Ramon Mas,
Austin Shanfelter and John Van Heuvelen.
Set forth below are the results of the election of directors voted on the meeting and the
results of the votes taken at the meeting:
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Votes for |
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Votes Against/Withheld |
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Class III Directors (term to expire in 2010) |
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Robert J. Dwyer |
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48,108,925 |
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103,357 |
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Frank E. Jaumot |
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47,502,255 |
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710,028 |
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Jose S. Sorzano |
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47,621,522 |
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590,761 |
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ITEM 5. OTHER INFORMATION
On July 31, 2007, Mastec and certain of its subsidiaries entered into a Third Amendment to the
Amended and Restated Loan and Security Agreement with Bank of America, N.A., as collateral and
administrative agent. The effective date of the amendment is June 30, 2007. Pursuant to this
amendment, the expiration of the credit facility was extended from May 10, 2010 to May 10, 2012.
See Notes 6 and 12 in Part I. Item 1. Financial Statements for a description of other significant
changes to our credit facility resulting from this amendment. The amendment is attached as Exhibit
10.54 hereto and is hereby incorporated by reference in its entirety.
ITEM 6. EXHIBITS
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Exhibit No. |
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Description |
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10.52+*
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Second Amendment dated June 22, 2007 to MasTec, Inc. Deferred Bonus Agreement for Austin
Shanfelter dated November 1, 2002. |
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10.53+*
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Third Amendment dated June 22, 2007 to Split-Dollar Agreement between MasTec, Inc. and
Austin Shanfelter dated November 1, 2002. |
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10.54*
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Third Amendment to Amended and Restated Loan and Security Agreement dated July 31, 2007 by
and between MasTec, Inc., the subsidiaries of MasTec, Inc. identified therein, the financial
institutions party from time to time to the Loan Agreement and Bank of America, N.A., as
administrative agent. |
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31.1*
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Certification of Chief Executive Officer, pursuant to Section 302 of the Sarbanes-Oxley Act
of 2002. |
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31.2*
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Certification of Chief Financial Officer, pursuant to Section 302 of the Sarbanes-Oxley Act
of 2002. |
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32.1*
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Certification of Chief Executive Officer, pursuant to 18 U.S.C. Section 1350, as Adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. |
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32.2*
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Certification of Chief Financial Officer, pursuant to 18 U.S.C. Section 1350, as Adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. |
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* |
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Exhibits filed with this Form 10-Q.
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+ |
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Management contract or compensation plan arrangement. |
32
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
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Date: August 1, 2007 |
MASTEC, INC.
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/s/ Jose R. Mas
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Jose R. Mas |
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President and Chief Executive Officer
(Principal Executive Officer) |
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/s/ C. Robert Campbell
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C. Robert Campbell |
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Chief Financial Officer
(Principal Financial and Accounting Officer) |
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33
Second Amendment to Deferred Bonus Agreement
Exhibit 10.52
SECOND AMENDMENT TO
MASTEC, INC. DEFERRED BONUS AGREEMENT FOR AUSTIN SHANFELTER
DATED NOVEMBER 1, 2002
This Amendment made and entered into this 22nd day of June, 2007, effective as of such date,
by and between MasTec, Inc., a Florida corporation, with principal offices and place of business in
the State of Florida (the Corporation) and Austin Shanfelter, an individual residing in the State
of Florida (the Employee).
WHEREAS, the Corporation and Employee entered into a Deferred Bonus Agreement on November 1,
2002 (the Agreement) to provide the terms and conditions upon which the Corporation shall pay a
certain deferred bonus to the Employee; and
WHEREAS, in accordance with paragraph 3b of the Agreement, the parties desire to amend the
Agreement to modify certain provisions thereof in accordance with the transition relief under
Section 409A of the Internal Revenue Code of 1986, as amended;
NOW, THEREFORE, in consideration of the premises and of the mutual promises contained herein,
the parties hereto hereby amend the Agreement, as follows, effective as of the date first above
written.
1. Paragraph 1a is amended by deleting the paragraph in its entirety, and substituting the
following in lieu thereof:
a. Eligibility for Benefit. As of November 1, 2002, the Corporation and the
Employee entered into a Split-Dollar Agreement (the Split Dollar Agreement). The Employee
shall be entitled to receive the Deferred Bonus provided hereunder from the Corporation in
the event that the Split-Dollar Agreement is terminated as a result of a Change of Control
in the Corporation. For purposes hereof, a Change in Control shall occur on the date of a
change in control, within the meaning of Section 409A of the Internal Revenue Code of 1986,
as amended, due to (i) one person or more than one person acting as a group, acquiring
ownership of stock of the Corporation constituting more than 50% of the total fair market
value or total voting power of such stock, or (ii) a majority of the Corporations board of
directors being replaced by a majority of the Corporations board of directors prior to the
date of such appointment or election.
2. Paragraph 1c is amended by deleting the paragraph in its entirety, and substituting the
following in lieu thereof:
c. Payment of Deferred Bonus. On or as soon as administratively practicable
after the date upon which the Employee becomes entitled to the Deferred Bonus as provided
above, but in no event later than 60 days after such date (except as otherwise provided
below), the Corporation shall pay to the Employee an amount equal to the Deferred Bonus,
subject to usual withholding taxes. Notwithstanding the foregoing, the Deferred Bonus shall
not be paid prior to January 1, 2008.
3. Except as herein amended, the parties hereby ratify and confirm the Agreement in all
respects, effective as of the date first above written.
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MASTEC, INC.
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By: |
/s/ Jose Mas
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Jose Mas, President & CEO |
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/s/ Austin Shanfelter
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Austin Shanfelter |
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Employee |
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Third Amendment to Split-Dollar Agreement
Exhibit 10.53
THIRD AMENDMENT TO SPLIT-DOLLAR AGREEMENT BETWEEN
MASTEC, INC. AND AUSTIN SHANFELTER
DATED NOVEMBER 1, 2002
This Amendment made and entered into this 22nd day of June, 2007, effective as of such date,
by and between MasTec, Inc., a Florida corporation, with principal offices and place of business in
the State of Florida (the Corporation) and the Austin Shanfelter Irrevocable Trust (the
Assignee).
WHEREAS, the Corporation and Austin Shanfelter, an individual residing in the state of Florida
(the Employee), entered into a Split-Dollar Agreement on November 1, 2002 (the Agreement) to
govern the rights and obligations of the parties with respect to that certain life insurance policy
issued by John Hancock Variable Life Insurance Company (the Policy), insuring the life of the
Employee and his wife, Pam Shanfelter (collectively the Insureds), which Policy is described in
Exhibit A of the Agreement;
WHEREAS, on December 1, 2002, in accordance with paragraph 11 of the Agreement, the Employee
absolutely and irrevocably assigned all of his right, title and interest in and to the Agreement to
the Assignee; and
WHEREAS, in accordance with paragraph 13 of the Agreement, the parties desire to amend the
Agreement to modify certain of their respective rights and obligations with respect to such Policy;
NOW, THEREFORE, in consideration of the premises and of the mutual promises contained herein,
the parties hereto hereby amend the Agreement, as follows, effective as of the date first above
written.
1. Paragraph 8 is amended by deleting the paragraph in its entirety, and substituting the
following in lieu thereof:
8. Termination of the Agreement During the Employees Lifetime. This Agreement
shall terminate, during the Employees lifetime, without notice, upon the occurrence of any
of the following events: (i) the Corporations (A) bankruptcy (with the approval of a
bankruptcy court pursuant to 11 U.S.C. Section 503(b)(1)(A)), or (B) dissolution taxed under
Section 331 of the Internal Revenue Code of 1986, as amended (Code); or (ii) the date of a
change in control, within the meaning of Code Section 409A, due to (A) one person, or more
than one person acting as a group, acquiring ownership of stock of the Corporation
constituting more than 50% of the total fair market value or total voting power of such
stock, or (ii) a majority of the Corporations board of directors being replaced during any
12-month period by directors whose appointment or election is not endorsed by a majority of
the Corporations board of directors prior to the date of such appointment or election.
2. The first sentence of Paragraph 9a is amended by deleting the sentence in its entirety, and
substituting the following in lieu thereof:
For sixty (60) days after the date of the termination of this Agreement during the
Employees lifetime (or, if later, through January 1, 2008 following such termination), the
Employee shall have the assignable option to purchase the Policy from the Corporation.
3. The first sentence of Paragraph 9b is amended by deleting the sentence in its entirety, and
substituting the following in lieu thereof:
If the Employee or his assignee fails to exercise such option within such sixty (60) day
period (or, if applicable, through January 1, 2008), then the Corporation shall be vested
with all ownership rights under the Policy; without limitation, the Corporation may
maintain, cancel or surrender the Policy at any time.
4. Except as herein amended, the parties hereby ratify and confirm the Agreement
in all respects, effective as of the date first above written.
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MASTEC, INC.
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By: |
/s/ Jose Mas
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Jose Mas, President & CEO |
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/s/ Austin Shanfelter
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Austin Shanfelter |
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Employee |
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Third Amendment to Amended & Restated Loan Securit
EXHIBIT
10.54
THIRD
AMENDMENT TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (this Amendment) is
made and entered into this 31st day of July, 2007, and effective as of June 30, 2007 by and among
MASTEC, INC., a Florida corporation (MasTec), the Subsidiaries of MasTec identified on the
signature pages hereto (together with MasTec, collectively the Borrowers and each individually a
Borrower), the financial institutions party from time to time to the Loan Agreement (as
hereinafter defined) (collectively, the Lenders), and BANK OF AMERICA, N.A., a national banking
association, in its capacity as collateral and administrative agent for the Lenders (together with
its successors in such capacity, Agent).
Recitals:
Agent, Lenders and Borrowers are parties to a certain Amended and Restated Loan and Security
Agreement dated May 10, 2005 (as at any time amended, restated, supplemented or otherwise modified,
the Loan Agreement), pursuant to which Agent and Lenders have made certain revolving credit loans
and letter of credit accommodations to or for the benefit of Borrowers.
Borrowers have requested that Agent and Lenders agree to further amend the Loan Agreement, and
Agent and Lenders are willing to do so, on the terms and subject to the conditions set forth in
this Amendment.
NOW, THEREFORE, for TEN DOLLARS ($10.00) in hand paid and other good and valuable
consideration, the receipt and sufficiency of which are hereby severally acknowledged, the parties
hereto, intending to be legally bound hereby, agree as follows:
1. Definitions. Each capitalized term used in this Amendment, unless otherwise
defined herein, shall have the meaning ascribed to such term in the Loan Agreement.
2. Amendments to Loan Agreement. Subject to the satisfaction of each of the
conditions precedent set forth in this Amendment, the Loan Agreement is hereby amended as follows:
(a) By adding to Section 1.1 of the Loan Agreement, in proper alphabetical sequence,
the following new definitions:
Eligible Real Estate each parcel of Real Estate which Agent,
in its reasonable credit judgment, determines to be Eligible Real Estate.
Without limiting the discretion of Agent to establish other criteria of
eligibility, Eligible Real Estate (i) shall be owned by an Obligor, (ii)
shall be subject to the Lien in favor of Agent and to no other Lien (other
than those Liens or encumbrances, if any, which are expressly permitted in
the Mortgages applicable to such Real Estate), (iii) shall be located
within the continental United States, (iv) shall be in compliance with all
of the representations, warranties, covenants and agreements set forth in
the Mortgage(s) applicable thereto and in Sections 7.3.1, 9.1.30 and
10.1.17 hereof, and (v) shall have been included in a fair market value
appraisal of the Real Estate, and shall be covered by an environmental
report, in each case which have been accepted by and are satisfactory to
Agent.
Funded Debt - with respect to Borrowers and their
Subsidiaries, the sum, without duplication, of (i) the aggregate amount of
Debt of Borrowers and their Subsidiaries relating to (a) the borrowing of
money or the obtaining of credit (other than trade payables incurred in the
Ordinary Course of Business), including the Obligations and any other notes
or bonds, (b) the deferred purchase price of assets (other than trade
payables incurred in the Ordinary Course of Business), and (c) any
Capitalized Lease Obligations, plus (ii) Debt of the type referred
to in clause (i) of another Person guaranteed by a Borrower or Subsidiary,
in each case as determined on a Consolidated basis.
Increase Effective Date as defined in Section 2.1.6(ii) of
this Agreement.
Real Estate Formula Amount on any date of determination
thereof, the lesser of (i) $15,000,000 or (ii) an amount equal to the
product of sixty percent (60%) multiplied by the fair market value
of Eligible Real Estate set forth in the most recent fair market value
appraisal of the Real Estate which has been accepted by and is satisfactory
to Agent; provided, that the amount calculated under this
clause shall be reduced by an amount, as determined by Agent, equal to the
aggregate amount of the fair market value of all Eligible Real Estate that
has been disposed of by Obligors (other than in accordance with Section
8.4.2(ii)) since the date of the most recent fair market value appraisal of
the Real Estate which has been accepted by and is satisfactory to Agent.
(b) By deleting from Section 1.1 of the Loan Agreement the definition of Availability
Block in its entirety.
(c) By deleting from Section 1.1 of the Loan Agreement the definitions of Adjusted
EBITDA, Applicable Margin, Availability Reserve, Borrowing Base, Eligible Unbilled
Accounts Formula Amount, Fixed Assets Formula Amount, Leverage Ratio, Restricted
Investment and Senior Funded Debt in their entireties and by substituting the following
new definitions, respectively, in lieu thereof:
Adjusted EBITDA for any fiscal period of Borrowers and their
Subsidiaries (other than DirectStar), an amount equal to the sum for such
period of (i) Adjusted Net Earnings, plus (ii) provision for taxes
based on income and for state or provincial franchise taxes, to the extent
deducted in the calculation of Adjusted Net Earnings, plus (iii)
interest expense, to the extent deducted in the calculation of Adjusted Net
Earnings, plus (iv) depreciation and amortization to the extent
deducted in the calculation of Adjusted Net Earnings, plus (v)
charges included in Adjusted Net Earnings related to purchase accounting
adjustments that are as required by FASB 141 and 142, plus (vi)
non-cash charges (including inventory adjustments, loss on job contract
accruals, expenses relating to equity award compensation and write down of
assets and the cumulative effect of changes in accounting principles under
GAAP) either (A) as approved by Agent or (B) from discontinued operations
to the extent deducted in the calculation of Adjusted Net Earnings for such
period, all calculated on a Consolidated basis,
-2-
plus (vii) without duplication, any cash Distributions made by
DirectStar to any Borrower, all calculated on a Consolidated basis;
provided that, solely for the purpose of determining the
Leverage Ratio in connection with the calculation of the Applicable Margin,
(x) Adjusted EBITDA shall be calculated on a Consolidated basis for
Borrowers and their Subsidiaries (excluding those discontinued operations
of Borrowers and Guarantors reported to Agent in writing by Borrowers on
July 31, 2007), and (y) Adjusted EBITDA shall include, with respect to any
Permitted Acquisition, the Adjusted EBITDA of the acquired Person for the
twelve month period immediately preceding the Permitted Acquisition.
Applicable Margin a percentage equal to 0.25% with
respect to Revolver Loans that are Base Rate Loans and 1.75% with respect
to Revolver Loans that are LIBOR Loans; provided, that upon
Agents receipt of the applicable financial statements and corresponding
Compliance Certificate for Fiscal Quarter ending June 30, 2007, the
Applicable Margin shall be reduced to a percentage equal to 0.00% with
respect to Revolver Loans that are Base Rate Loans and 1.125% with respect
to Revolver Loans that are LIBOR Loans; provided, further
that commencing on the first day of the calendar month immediately
succeeding the third Business Day (each an Adjustment Date) after Agents
receipt of the applicable financial statements and corresponding Compliance
Certificate for each Fiscal Quarter ending on or after December 31, 2007,
the Applicable Margin shall be increased or (if no Default or Event of
Default exists) decreased, on a quarterly basis according to the
performance of Borrowers as measured by the Leverage Ratio for the
immediately preceding Fiscal Quarter of Borrowers, as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Applicable LIBOR |
|
Applicable Base |
Level |
|
Leverage Ratio |
|
Margin |
|
Rate Margin |
I
|
|
≥ 4.00 to 1.00
|
|
|
2.00 |
% |
|
|
0.50 |
% |
II
|
|
≥ 3.00 to l.00 but
< 4.00 to 1.00
|
|
|
1.75 |
% |
|
|
0.25 |
% |
III
|
|
≥ 2.00 to l.00 but
< 3.00 to 1.00
|
|
|
1.50 |
% |
|
|
0.00 |
% |
IV
|
|
≥ 1.50 to l.00 but
< 2.00 to 1.00
|
|
|
1.25 |
% |
|
|
0.00 |
% |
V
|
|
≥ 1.00 to l.00 but < 1.50 to 1.00
|
|
|
1.125 |
% |
|
|
0.00 |
% |
VI
|
|
< 1.00 to 1.00
|
|
|
1.00 |
% |
|
|
0.00 |
% |
-3-
Except as otherwise set forth herein, any such increase or reduction in the
Applicable Margin shall be subject to receipt by Agent of the applicable
financial statements and corresponding Compliance Certificate. If the
financial statements and the Compliance Certificate of Borrowers setting
forth the Leverage Ratio are not received by Agent by the date required
pursuant to Section 10.1.3 of this Agreement, the Applicable Margin shall
be determined as if the Leverage Ratio exceeds 4.00 to 1.00 until such time
as such financial statements and Compliance Certificate are received and
any Event of Default resulting from a failure to timely deliver such
financial statements or Compliance Certificate is waived in writing by
Agent and Lenders; provided, however, that Agent and
Lenders shall be entitled to accrue and receive interest at the Default
Rate to the extent authorized by Section 3.1.5 of this Agreement and, on
each date that the Default Rate accrues on any Loan, the Applicable Margin
on such date for such Loan shall be the Applicable Margin that would apply
if the Leverage Ratio exceeded 4.00 to 1.00 (without regard to the actual
Leverage Ratio). For the final Fiscal Quarter of any Fiscal Year of
Borrowers, Borrowers may provide the unaudited financial statements of
Borrowers, subject only to year-end adjustments, for the purpose of
determining the Applicable Margin; provided, however, that
if, upon delivery of the annual audited financial statements required to be
submitted by Borrowers to Agent pursuant to Section 10.1.3(i) of this
Agreement, Borrowers have not met the criteria for reduction of the
Applicable Margin pursuant to the terms hereinabove for the final Fiscal
Quarter of the Fiscal Year of Borrowers then ended, then (a) such
Applicable Margin reduction shall be terminated and, effective on the first
day of the month following receipt by Agent of such audited financial
statements, the Applicable Margin shall be the Applicable Margin that would
have been in effect if such reduction had been implemented based upon the
audited financial statements of Borrowers for the final Fiscal Quarter of
the Fiscal Year of Borrowers then ended, and (b) Borrowers shall pay to
Agent, for the Pro Rata benefit of the Lenders, on the first day of the
month following receipt by Agent of such audited financial statements, an
amount equal to the difference between the amount of interest that would
have been paid using the Applicable Margin determined based upon such
audited financial statements and the amount of interest actually paid
during the period in which the reduction of the Applicable Margin was in
effect based upon the unaudited financial statements for the final Fiscal
Quarter of the Fiscal Year of Borrowers then ended.
-4-
Availability Reserve on any date of determination thereof,
an amount equal to the sum of the following (without duplication): (i) the
Rent Reserve; (ii)
any amounts which any Obligor is obligated to pay to Agent, Lenders or
other Persons pursuant to the provisions of any of the Loan Documents that
Agent or any Lender elects to pay for the account of such Obligor in
accordance with authority contained in any of the Loan Documents; (iii) the
LC Reserve; (iv) the aggregate amount of reserves established by Agent from
time to time in its discretion in respect of Banking Relationship Debt; (v)
the aggregate amount of Royalties that have accrued and are unpaid, whether
or not then due and payable by an Obligor; (vi) the aggregate amount of all
liabilities and obligations that are secured by Liens upon any of the
Collateral that are senior in priority to Agents Liens if such Liens are
not Permitted Liens (provided that the imposition of a reserve hereunder on
account of such Liens shall not be deemed a waiver of the Event of Default
that arises from the existence of such Liens) or are Permitted Liens under
Section 10.2.5(iii) of this Agreement; (vii) the DirecTV Account Reserve;
(viii) the Canadian Reserve; (ix) the Dilution Reserve; and (x) such
additional reserves, in such amounts and with respect to such matters, as
Agent in its reasonable credit judgment may elect to impose from time to
time.
Borrowing Base on any date of determination thereof, an
amount equal to the lesser of: (a) the aggregate amount of the Revolver
Commitments on such date minus the Availability Reserve on such
date, or (b) an amount equal to (i) the sum of (A) the Accounts Formula
Amount on such date plus (B) the Eligible Unbilled Accounts Formula
Amount on such date plus (C) the Fixed Assets Formula Amount on
such date plus (D) the Real Estate Formula Amount on such date
plus (E) the Eligible Cash Collateral Amount on such date
minus (ii) the Availability Reserve on such date. Notwithstanding
the foregoing, in no event shall the aggregate amount of Revolver Loans
outstanding at any date as measured by Eligible Accounts and Eligible
Unbilled Accounts of the Canadian Obligors exceed, in the aggregate,
$5,000,000.
Eligible Unbilled Accounts Formula Amount on any date of
determination thereof, an amount equal to the lesser of (i) 70% (or such
lesser percentage as Agent may in its reasonable credit judgment determine
from time to time) of the aggregate amount of Eligible Unbilled Accounts on
such date, or (ii) an amount equal to the product of (x) the sum of the
Accounts Formula Amount on such date, the amount derived pursuant to
subsection (i) of this definition, the Fixed Assets Formula Amount, and
the Real Estate Formula Amount multiplied by (y) 15%.
Fixed Assets Formula Amount on any date of determination
thereof, the lesser of (i) $50,000,000, or (ii) an amount equal to eighty
percent (80%) of the Net Orderly Liquidation Value of Eligible Fixed
Assets; provided, however, that the amount calculated under
this clause (ii) shall be adjusted (either upward or downward, as
applicable) by an amount equal to the lesser of (A) $5,000,000 (in the case
of an upward adjustment) and (B) the result of (I) eighty percent (80%) of
the aggregate cost of all Equipment that has been acquired by Obligors
since the date of the most recent Net Orderly Liquidation Value Appraisal,
minus (II) an amount, as determined by Agent, equal to the
aggregate amount of the fair market value or book value, whichever is more,
of all Equipment that has been
-5-
disposed of by Obligors (other than in accordance with Section
8.4.2(ii)) since the date of the most recent Net Orderly Liquidation Value
Appraisal of the Equipment.
Leverage Ratio with respect to any fiscal period, the ratio
of (i) the amount of total Funded Debt (including Senior Funded Debt,
Capitalized Lease Obligations, LC Obligations (other than those LC
Obligations that are Cash Collateralized) and Subordinated Debt, if any) as
of the last day of such fiscal period minus the amount of domestic
unrestricted balance sheet cash as of the last day of such fiscal period,
to (ii) Adjusted EBITDA for such fiscal period, all calculated for
Borrowers and their Subsidiaries on a Consolidated basis.
Permitted Purchase Money Debt Purchase Money Debt of
Borrowers and their Subsidiaries that is secured by no Lien or only by a
Purchase Money Lien, provided that the aggregate amount of Purchase Money
Debt outstanding at any time does not exceed $50,000,000. For the purposes
of this definition, the principal amount of any Purchase Money Debt
consisting of capitalized leases shall be computed as a Capitalized Lease
Obligation.
Restricted Investment any acquisition of Property by an
Obligor or any of its Subsidiaries in exchange for cash or other Property,
whether in the form of an acquisition of Equity Interests or Debt, or the
purchase or acquisition by such Obligor or any of its Subsidiaries of any
other Property, or a loan, advance, capital contribution or subscription
(each of the foregoing, an Investment), except acquisitions of the
following: (i) fixed assets to be used in the Ordinary Course of Business
of such Obligor or any of its Subsidiaries so long as the acquisition costs
thereof are Capital Expenditures permitted hereunder; (ii) goods held for
sale or lease or to be used in the manufacture of goods or the provision of
services by such Obligor or any of its Subsidiaries in the Ordinary Course
of Business; (iii) Current Assets arising from the sale or lease of goods
or the rendition of services in the Ordinary Course of Business of such
Obligor or any of its Subsidiaries; (iv) Investments in Subsidiaries to the
extent existing on the Closing Date; (v) Cash Equivalents to the extent
they are not subject to rights of offset in favor of any Person other than
Agent or a Lender; (vi) loans and other advances of money to the extent not
prohibited by Section 10.2.2; (vii) Permitted Acquisitions; (viii) those
Investments of Borrowers described in Schedule 1.1A, to the extent
existing or committed to (as described in Schedule 1.1A) on the
Closing Date; (ix) Permitted DirectStar Investments, and (x) any other
Investment (other than a Permitted DirectStar Investment) that does not
result in an Acquisition, so long as Borrowers have demonstrated to Agents
satisfaction that both before or after giving effect to such Investment (A)
no Default or Event of Default exists and (B) Availability is greater than
$25,000,000.
Senior Funded Debt all Funded Debt other than Subordinated
Debt.
(d) By deleting clause (d) of the definition of Permitted Acquisition contained in
Section 1.1 of the Loan Agreement and by substituting in lieu thereof the following:
-6-
(d) Availability after giving pro forma effect to such Acquisition
would exceed $25,000,000;
(e) By inserting the phrase or increased from time to time pursuant to Section
2.1.6. at the end of the definition of Revolver Commitment contained in Section 1.1 of
the Loan Agreement.
(f) By deleting from Section 2.1.2 of the Loan Agreement the reference to
$150,000,000 and by substituting in lieu thereof the phrase the aggregate principal
amount of the Revolver Commitments of all Lenders at such time.
(g) By adding the following new Section 2.1.6 to the Loan Agreement, immediately after
the end of Section 2.1.5 and immediately prior to Section 2.2:
2.1.6. Increase in Revolver Commitments.
(i) To the extent that any requested increase in the Revolver
Commitments is permitted under and will not violate the Indenture, and
provided that Agent has received evidence satisfactory to it from Borrowers
that such requested increase is permitted under and will not violate the
Indenture, then upon the terms and subject to the conditions set forth
herein, on any Business Day during the period from July 31, 2007 through
the Business Day immediately prior to the last calendar day of the Term,
and so long as no Default or Event of Default exists, Borrowers may request
that the Revolver Commitments be increased and, upon such request, Agent
shall use reasonable efforts in light of then-current market conditions to
solicit additional Eligible Assignees to become Lenders for the purposes of
this Agreement, or to encourage any Lender to increase its Revolver
Commitment; provided, that (a) each Lender that is a party
to this Agreement immediately prior to such increase shall have the first
option, and may elect, to fund its Pro Rata share of the amount of the
increase in the Revolver Commitment (or any such greater amount in the
event that one or more Lenders does not elect to fund its respective Pro
Rata share of the amount of the increase in the Revolver Commitment),
thereby increasing its Revolver Commitment hereunder, but no Lender shall
have any obligation to do so, (b) in the event that it becomes necessary to
include a new Eligible Assignee to fund the amount of the requested
increase in the Revolver Commitment, each such Eligible Assignee shall
become a Lender hereunder and agree to become party to, and shall assume
and agree to be bound by, this Agreement, subject to all terms and
conditions hereof; (c) no Lender shall have an obligation to Borrowers,
Agent or any other Lender to increase its Revolver Commitment or its Pro
Rata share of the Revolver Commitments, which decision shall be made in the
sole discretion of each Lender; and (d) in no event shall the addition of
any Lender or Lenders or the increase in the Revolver Commitment of any
Lender under this Section 2.1.6 increase the aggregate Revolver Commitments
to an aggregate amount greater than $200,000,000 less the amount of any
voluntary reductions under Section 2.2 hereof. Upon the addition of any
Lender, or the increase in the Revolver Commitment of any Lender, the
dollar amount of the Revolver Commitment set forth opposite each Lenders
name on the signature
-7-
pages to this Agreement shall be amended by Agent and Borrowers to reflect
such addition or such increase, and Agent shall deliver to Lenders and
Borrowers a copy of such amendment. Lenders shall be entitled to receive
and Borrowers shall be obligated to pay a mutually agreeable amendment fee
to Agent for the Pro Rata benefit of those Lenders who increase their
Revolver Commitment and any new Lenders, such fee to be based upon the
increase in their Revolver Commitments only and not on their aggregate
Revolver Commitments after giving effect to such increase.
(ii) If any requested increase in the Revolver Commitments is agreed
to in accordance with subsection (i) above, Agent and Borrowers shall
determine the effective date of such increase (the Increase Effective
Date). Agent, with the consent and approval of Borrowers, shall promptly
confirm in writing to Lenders the final allocation of such increase as of
the Increase Effective Date, and each new Lender and each existing Lender
that has increased its Revolver Commitment shall purchase Revolver Loans
and LC Obligations from each other Lender in an amount such that, after
such purchase or purchases, the amount of outstanding Revolver Loans and LC
Obligations from each Lender shall equal such Lenders respective Pro Rata
share of the Revolver Commitments, as modified to give effect to such
increase, multiplied by the aggregate amount of Revolver Loans outstanding
and LC Obligations from all Lenders. As condition precedents to the
effectiveness of such increase, Borrowers shall deliver to Agent (i) a
certificate dated as of the Increase Effective Date (in sufficient copies
for each Lender) signed by the Chief Financial Officer of Borrower Agent on
behalf of Borrowers, including a Compliance Certificate demonstrating
compliance with the terms of this Agreement and certification that, both
before and after giving effect to such increase, each representation and
warranty contained in Section 9 and each certification in Section 15.18 of
this Agreement is true and correct in all material respects on and as of
the Increase Effective Date (except to the extent that any such
representation or warranty is stated to relate solely to an earlier date),
that the requested increase is permitted under and will not violate the
Indenture, and that no Default or Event of Default exists, and (ii) legal
opinions from counsel to the Borrowers in form and substance acceptable to
Agent that the Loan Agreement and the requested increase in the Revolver
Commitments provided for herein is permitted under and does not violate the
Indenture or any other Material Contract. Upon the request of any Lender,
Borrowers shall deliver a new or amended Revolver Note reflecting the new
or increased Revolver Commitment of each such Lender as of the Increase
Effective Date.
(h) By deleting Sections 3.2.1 and 3.2.2 of the Loan Agreement in their entireties
and by substituting in lieu thereof the following:
3.2.1. Unused Line Fee. Borrowers shall pay to Agent for the Pro Rata benefit of Lenders a
fee equal to 0.25% per annum of the amount by which the Average Revolver
Loan Balance for any month (or portion thereof that the Commitments are in
effect) is less than the aggregate amount of the Revolver Commitments, such
fee to be paid on the first day of the following month;
-8-
provided that, if the Commitments are terminated on a
day other than the first day of a month, then any such fee payable for the
month in which termination occurs shall be paid on the effective date of
such termination.
3.2.2. LC Facility Fees. Borrowers shall pay: (a)(i) to
Agent, for the Pro Rata account of each Lender for all Letters of Credit,
the Applicable Margin in effect for Revolver Loans that are LIBOR Loans on
a per annum basis based on the average amount available to be drawn under
Letters of Credit outstanding and all Letters of Credit that are paid or
expire during the period of measurement (or, with respect to each Letter of
Credit that is secured by cash deposited by Borrowers into the Cash
Collateral Account on terms satisfactory to Agent, 0.50% on a per annum
basis based on the average amount available to be drawn under all such
cash-collateralized Letters of Credit outstanding and all such
cash-collateralized Letters of Credit that are paid or expire during the
period of measurement), in each case payable monthly, in arrears, on the
first Business Day of the following month; (ii) to Agent, for its own
account a Letter of Credit fronting fee of 0.125% per annum based on the
average amount available to be drawn under all Letters of Credit
outstanding and all Letters of Credit that are paid or expire during the
period of measurement, payable monthly, in arrears, on the first Business
Day of the following month; and (iii) to Issuing Bank for its own account
all customary charges associated with the issuance, amending, negotiating,
payment, processing and administration of all Letters of Credit.
(i) By deleting clause (ii) of the first sentence contained in Section 3.2.3 of the
Loan Agreement and by substituting in lieu thereof the following:
(ii) appraisals of Equipment no more frequently than three (3) times
per Loan Year (one of which may be a full physical appraisal and the other
two of which shall be desktop appraisals performed by employees or agents
of Agent), and (iii) appraisals of Eligible Real Estate no more frequently
than one (1) time per Loan Year; provided, that, in the
case of each of clauses (ii) and (iii), if a Default or Event of Default
exists, there shall be no limit on the number or type of appraisals for
which Borrowers shall be obligated to reimburse Agent.
(j) By deleting from the reference to May 10, 2010 contained in Section 6.1 of the
Loan Agreement and by substituting in lieu thereof a reference to May 10, 2012.
(k) By deleting Section 8.2.5 of the Loan Agreement in its entirety and by
substituting in lieu thereof the following:
8.2.5 Maintenance of Dominion Account; Trigger Events.
(i) At all times after the occurrence of a Trigger Event (as defined
below), Borrowers shall maintain with a Clearing Bank a Dominion Account
pursuant to a Lockbox Agreement or other arrangement acceptable to Agent.
Borrowers shall issue to each such Clearing Bank an irrevocable letter of
instruction directing such bank to deposit all payments or other
remittances received in the Lockbox to the Dominion Account after the
occurrence of a
-9-
Trigger Event. Borrowers shall enter into agreements, in form
satisfactory to Agent, with each bank at which a Dominion Account is
maintained by which such bank shall, after the occurrence of a Trigger
Event immediately transfer to the Payment Account all monies deposited to
the Dominion Account. All funds deposited in each Dominion Account shall
be subject to Agents Lien. Borrowers shall obtain the agreement (in favor
of and in form and content satisfactory to Agent and Lenders) by each bank
at which a Dominion Account is maintained to waive any offset rights
against the funds deposited into such Dominion Account, except offset
rights in respect of charges incurred in the administration of such
Dominion Account. Neither Agent nor Lenders assume any responsibility to
Borrowers for such lockbox arrangement or Dominion Account, including any
claim of accord and satisfaction or release with respect to deposits
accepted by any bank thereunder.
(ii) If at any time Availability is less than an amount equal to the
greater of (A) $15,000,000 or (B) ten percent (10%) of the aggregate
principal amount of the Commitments, or if an Event of Default exists
(each, a Trigger Event), without limiting the right of Agent and the
Lenders to exercise other rights and remedies as a result thereof, Agent
may require (and at the direction of the Required Lenders, shall require)
that all collected balances in each Controlled Account (other than each
Canadian Controlled Account) be transferred to Agent not less often than
each Business Day and that any or all of the Borrowers establish Lockboxes
to which monies, checks, notes, drafts and other payments relating to or
constituting proceeds of Collateral shall be sent.
(iii) For so long as no Event of Default exists and Availability is
not less than an amount equal to the greater of (A) $15,000,000 or (B) ten
percent (10%) of the aggregate principal amount of the Commitments, the
Canadian Obligors may retain all cash balances contained in each Canadian
Controlled Account. After the occurrence of an Event of Default, the
Canadian Obligors shall not be entitled to retain any such balances, and
Agent shall have the sole and exclusive right to withdraw funds from time
to time in such Canadian Controlled Account to hold as security for, and to
transfer to the Payment Account in payment of, their Obligations arising
under any Canadian Obligor Guarantee. At any time on or after the date on
which Availability is less than an amount equal to the greater of (A)
$15,000,000 or (B) ten percent (10%) of the aggregate principal amount of
the Commitments, the Canadian Obligors shall not be entitled to retain any
such balances, and Borrowers shall cause all collected funds in each
Canadian Controlled Account to be transmitted on each Business Day by ACH
or wire transfer of immediately available Dollars to a Controlled Account
of Borrowers in the United States, and Canadian Obligors shall take such
action as Agent may request to effect such transmission. Promptly, and in
any event within 5 Business Days after receipt thereof (or sooner if
requested by Agent when an Event of Default exists), each Canadian Obligor
shall deliver to Agent copies of its monthly bank statements from each bank
at which a Canadian Controlled Account is maintained.
-10-
(l) By deleting Section 8.4.4 of the Loan Agreement in its entirety and by
substituting in lieu thereof the following:
8.4.4 Certificated Equipment. With respect to any Equipment that is covered by a certificate of
title under a law requiring indication of a security interest on such
certificate as a condition to the perfection of such security interest,
each Obligor shall, at the time of acquisition of each such item of
Equipment after the date hereof and on Agents request with respect to all
other such items of Equipment, execute and file with the Registrar of Motor
Vehicles or other appropriate Governmental Authority an application or
other document requesting the notation or other indication of the security
interest created hereunder on such certificate of title with respect to
such Equipment. All certificates of title with respect to such Equipment
shall be (i) held at MasTecs chief executive office in the custody and
control of an appropriate officer or senior employee of MasTec, acceptable
to Agent, pursuant to a limited agency agreement with Agent in respect of
such certificates of title in form and substance satisfactory to Agent (the
Agency Appointment as to Vehicle Titles) and shall be deemed held by
Obligors as trustees of an express trust for the benefit of Agent and
Secured Parties, and (ii) if at any time Availability (A) either is less
than the greater of (I) $15,000,000 or (II) ten percent (10%) of the
aggregate principal amount of the Commitments on such date, or (B) averages
less than $10,000,000 for any period of five (5) consecutive days then
ending, in each case, regardless of whether or not a Default or Event of
Default then exists, then Agent shall take and Obligors shall immediately
deliver or surrender to Agent, or its designee, possession of all such
certificates of title. Upon the request of Agent at any time, each Obligor
shall execute and deliver to Agent an irrevocable power of attorney naming
Agent as such Obligors agent and attorney-in-fact to take any action in
such Obligors name, and to sign such Obligors name to any documents, to
facilitate Agents perfection of a Lien in the Equipment evidenced by such
certificates of title and Agents enforcement of such Lien, including any
repossession of or foreclosure upon such Equipment.
(m) By deleting from Section 10.2.3(x) of the Loan Agreement the reference to
$30,000,000 and by substituting in lieu thereof a reference to $50,000,000.
(n) By redesignating clause (xi) of Section 10.2.3 as clause (xii) thereof and by
adding the following new clause (xi) to Section 10.2.3 immediately following clause (x)
thereto:
(xi) Debt of GlobeTec Construction LLC under a revolving credit
facility in a principal amount not to exceed $1,500,000; and
(o) By deleting Section 10.2.9 of the Loan Agreement in its entirety and by
substituting in lieu thereof the following:
10.2.9. [Reserved].
(p) By deleting Section 10.2.25 of the Loan Agreement in its entirety and by
substituting in lieu thereof the following:
-11-
10.2.25. Surety Bonds. Incur or permit to exist obligations (including Contingent Obligations) to issuers of
surety or performance bonds for the account of Obligors in excess of $200,000,000 in the
aggregate outstanding at any time. For the avoidance of doubt, the obligations described in
the preceding sentence shall be calculated based on the Borrowers estimated cost to complete
the applicable projects, not the face value of the bonds themselves.
(q) By deleting Section 10.3 of the Loan Agreement in its entirety and by substituting
in lieu thereof the following:
10.3 Financial Covenant. For so long as there are any Commitments outstanding and thereafter
until Full Payment of the Obligations, Borrowers covenant that, if
Availability falls below the greater of (i) $15,000,000 or (ii) ten percent
(10%) of the aggregate principal amount of the Commitments on any date,
then Borrowers (a) shall immediately demonstrate a Fixed Charge Coverage
Ratio of at least 1.10 to 1.0, calculated for the immediately preceding 12
calendar months for which financial statements and the corresponding
Compliance Certificate have been received by Agent in accordance with
Section 10.1.3 prior to such date, and (b) thereafter, until such time as
Availability is greater than or equal to the greater of (i) $15,000,000 or
(ii) ten percent (10%) of the aggregate principal amount of the Commitments
for 90 consecutive days, maintain a Fixed Charge Coverage Ratio of at least
1.10 to 1.0, calculated as of the last day of each month for the
immediately preceding 12 calendar months for which financial statements and
the corresponding Compliance Certificate have been received by Agent in
accordance with Section 10.1.3 prior to each date of determination thereof.
Borrowers shall include in each Compliance Certificate a calculation of
the Fixed Charge Coverage Ratio, whether or not Borrowers are required
under this Section to maintain a minimum Fixed Charge Coverage Ratio at the
date of, or with respect to the period covered by, the Compliance
Certificate.
(r) By deleting the last sentence of Section 13.1.1 of the Loan Agreement and by
substituting in lieu thereof the following:
Unless and until its authority to do so is revoked in writing by Required
Lenders, Agent alone shall be authorized to determine whether any Accounts,
Fixed Assets or Real Estate constitute Eligible Accounts, Eligible Fixed
Assets or Eligible Real Estate (basing such determination in each case
upon the meanings given to such terms in Section 1), or whether to impose
or release any reserve, and to exercise its own credit judgment in
connection therewith, which determinations and judgments, if exercised in
good faith, shall exonerate Agent from any liability to Lenders or any
other Person for any errors in judgment.
(s) By deleting clause (1) of Section 13.9.1(iii) of the Loan Agreement and by
substituting in lieu thereof the following:
-12-
(1) increase or otherwise modify any Commitment of such Lender (other
than (x) to reduce such Lenders Commitment on a proportionate basis with
the same Commitments of other Lenders, or (y) pursuant to Section 2.1.6
hereof);
(t) By deleting Schedules 1.1A, 1.1B, 1.1C, 7.7, 8.1.1, 8.1.2, 8.5, 9.1.1, 9.1.4,
9.1.5, 9.1.12, 9.1.13, 9.1.15, 9.1.18, 9.1.19, 9.1.21, 9.1.22, 9.1.24, 10.2.3, and 10.2.8
to the Loan Agreement and by substituting in lieu thereof Schedules 1.1A, 1.1B, 1.1C, 7.7,
8.1.1, 8.1.2, 8.5, 9.1.1, 9.1.4, 9.1.5, 9.1.12, 9.1.13, 9.1.15, 9.1.18, 9.1.19, 9.1.21,
9.1.22, 9.1.24, 10.2.3, and 10.2.8 attached to this Amendment.
3. Ratification and Reaffirmation. To induce Agent and Lenders to enter into this
Amendment and grant the accommodations set forth herein, each Borrower hereby ratifies and
reaffirms the Obligations, each of the Loan Documents and all of such Borrowers covenants, duties,
indebtedness and liabilities under the Loan Documents, as herein modified.
4. Acknowledgments and Stipulations. To induce Agent and Lenders to enter into this
Amendment and grant the accommodations set forth herein, each Borrower hereby acknowledges and
stipulates that (a) the Loan Agreement and the other Loan Documents executed by such Borrower, as
herein modified, are legal, valid and binding obligations of such Borrower that are enforceable
against such Borrower in accordance with the terms thereof; (b) all of the Obligations are owing
and payable without defense, offset or counterclaim (and, to the extent there exists any such
defense, offset or counterclaim on the date hereof, the same is hereby waived by such Borrower);
(c) the security interests and Liens granted by such Borrower in favor of Agent are duly perfected,
first priority security interests and Liens, subject only to Permitted Liens; and (d) as of the
close on business on July 27, 2007, the unpaid principal amount of the Revolver Loans totaled $
0, and the face amount of outstanding Letters of Credit totaled $90,689,777.54.
5. Representations and Warranties. To induce Agent and Lenders to enter into this
Amendment and grant the accommodations set forth herein, each Borrower hereby represents and
warrants to Agent and Lenders that (a) no Default or Event of Default exists on the date hereof;
(b) the execution, delivery and performance of this Amendment have been duly authorized by all
requisite entity action on the part of such Borrower and this Amendment has been duly executed and
delivered by such Borrower; and (c) each representation and warranty made by such Borrower in the
Loan Agreement, and each of Borrowers certifications pursuant to Section 15.18 of the Loan
Agreement, is true and correct in all material respects on and as of the date hereof after giving
effect to this Amendment.
6. Reference to Loan Agreement. Upon the effectiveness of the amendments set forth in
Section 2 of this Amendment, each reference in the Loan Agreement to this Agreement, hereunder,
or words of like import shall mean and be a reference to the Loan Agreement, as amended by this
Amendment.
7. Breach of Amendment. This Amendment shall be part of the Loan Agreement and any
breach of any representation, warranty or covenant contained herein shall constitute an Event of
Default.
8. Conditions Precedent. The amendments set forth in Section 2 of this Amendment
shall become effective, retroactively as of June 30, 2007, upon the satisfaction of each of the
following conditions precedent, in form and substance satisfactory to Agent:
-13-
(a) Agent shall have received, in sufficient copies for each Lender, duly executed and
delivered counterparts of this Amendment from each Borrower and Lender;
(b) Agent shall have received, in sufficient copies for each Lender, duly executed and
delivered counterparts of the Consent and Reaffirmation from each Guarantor;
(c) Agent shall have received full payment of the fees described in Section 10 of this
Amendment below;
(d) Agent shall have received, in sufficient copies for each Lender, a duly executed
and delivered certificate of the secretary or assistant secretary of each Obligor, which
certificate shall (i) have attached thereto the articles or certificate of incorporation and
bylaws of such Obligor (or contain the certification of such secretary or assistant
secretary that no amendment or modification of such articles or certificate of incorporation
or bylaws has become effective since February 6, 2007); (ii) certify that all necessary
entity action (including, without limitation, shareholders or members approval, if
necessary) to authorize the execution, delivery and performance of this Amendment has been
taken by such Obligor and/or its shareholders or members; and (iii) certify as to the
incumbency of the officers of such Obligor executing this Amendment and any other documents
in connection herewith;
(e) No Default or Event of Default occurs or exists on the date hereof; and
(f) Agent shall have received duly executed originals of each additional document or
instrument reasonably requested by Agent or the Required Lenders, including any Joinder
Agreement and other documentation required under Section 10.1.11 of the Loan Agreement to
add any existing Subsidiaries of the Borrowers as Obligors under the Loan Documents and to
obtain a Lien in such Subsidiaries assets.
9. Additional Covenants. To induce Agent and Lenders to enter into this Amendment,
Borrower covenants and agrees that, within 60 days after Agents request therefor, Borrowers shall
execute and deliver to Agent (i) duly executed amendments to the existing Mortgages in favor of
Agent, and in form and substance satisfactory to Agent, with respect to the Real Estate located at
2801 SW 46th Avenue, Davie, Florida, SR540 Lakeland, Florida, 7221 Dr. Martin Luther King Boulevard
East, Tampa, Florida, 209 Art Bryant Drive, Asheboro, North Carolina, Highway #2 East, Shevlin,
Minnesota, and 2700, 2701 and 2716 E. 5th Street and 2808 Industrial Terrace, Austin, Texas, in
each case providing for the extension of the maturity date of the Notes referenced in the Mortgages
and such other amendments as Agent may require, and (ii) fully paid endorsements to Agents
existing title insurance policies (or binding commitments to issue such endorsements), in standard
ALTA form, issued by the applicable title insurance companies, and insuring the Mortgages as
amended by the foregoing amendments, as of the dates of the recording of such amendments, with no
exceptions which Agent shall not have approved in writing; Borrowers shall take such action as may
be required to cause Agent and Lenders to be in compliance with Regulation H of the Board of
Governors and the National Flood Insurance Act of 1968 in connection with any such mortgage
amendments described in clause (i); and Borrowers shall reimburse Agent for the payment of all
applicable documentary stamp, intangibles, recording, note or other similar taxes payable with
respect to the mortgage amendments described in clause (i).
-14-
10. Amendment Fee; Expenses of Agent. In consideration of Agents and Lenders
willingness to enter into this Amendment, the Borrowers hereby jointly and severally agree to pay
to Agent, for the Pro Rata benefit of Lenders, a nonrefundable amendment fee in the amount of
$112,500 in immediately available funds on the date hereof which shall be fully earned on such
date. Additionally, to induce Agent and Lenders to enter into this Amendment and grant the
accommodations set forth herein, Borrowers hereby jointly and severally agree to pay, on demand,
all costs and expenses incurred by Agent in connection with the preparation, negotiation and
execution of this Amendment and any other Loan Documents executed pursuant hereto and any and all
amendments, modifications, and supplements thereto, including, without limitation, the costs and
fees of Agents legal counsel and any taxes or expenses associated with or incurred in connection
with any instrument or agreement referred to herein or contemplated hereby.
11. Effectiveness; Governing Law. This Amendment shall be effective upon acceptance
thereof by Agent in Atlanta, Georgia (notice of which acceptance is hereby waived by each
Borrower), whereupon the same shall be governed by and construed in accordance with the internal
laws of the State of Georgia. This Amendment is intended to take effect as a document executed
under seal.
12. Successors and Assigns. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
13. No Novation, etc. Except as otherwise expressly provided in this Amendment,
nothing contained herein shall be deemed to amend or modify any provision of the Loan Agreement or
any of the other Loan Documents, each of which shall remain in full force and effect. This
Amendment is not intended to be, nor shall it be construed to create, a novation or accord and
satisfaction, and the Loan Agreement as herein modified shall continue in full force and effect.
14. Counterparts; Electronic Delivery. This Amendment may be executed in any number
of counterparts and by different parties to this Amendment on separate counterparts, each of which,
when so executed and delivered, shall be deemed an original, but all of which shall together
constitute one and the same agreement. Delivery of a manually executed counterpart of this
Amendment by telefacsimile or electronic mail transmission shall be equally effective as delivery
of an original executed counterpart of this Amendment. Any party delivering a manually executed
counterpart of this Amendment by telefacsimile or electronic mail transmission shall also deliver
an original executed counterpart of this Amendment, but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability and binding effect of this Amendment.
15. Further Assurances. To induce Agent and Lenders to enter into this Amendment and
grant the accommodations set forth herein, each Borrower hereby agrees to take such further actions
as Agent reasonably requests from time to time in connection herewith to evidence or give effect to
the amendments set forth herein or any of the transactions contemplated hereby.
16. Section Titles. Section titles and references used in this Amendment shall be
without substantive meaning or content of any kind whatsoever and are not a part of the agreements
among the parties hereto.
17. Waiver of Jury Trial. To the fullest extent permitted by Applicable Law, each
party hereto hereby waives the right to trial by jury in any action, suit, counterclaim or
proceeding arising out of or related to this Amendment.
-15-
[This space intentionally left blank;
signatures on following page]
-16-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed under
seal and delivered by their respective duly authorized officers on the date first written above.
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BORROWERS: |
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ATTEST: |
MASTEC, INC.
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/s/ Alberto de Cardenas, Secretary |
By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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[CORPORATE SEAL] |
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Title: |
EVP & CFO |
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MASTEC TC, INC.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
EVP & CFO |
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MASTEC FC, INC.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
EVP & CFO |
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MASTEC CONTRACTING COMPANY, INC.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
EVP & CFO |
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MASTEC NORTH AMERICA, INC.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
EVP & CFO |
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[Signatures continue on following page]
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MASTEC SERVICES COMPANY, INC.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
EVP & CFO |
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MASTEC ASSET MANAGEMENT COMPANY, INC.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
EVP & CFO |
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CHURCH & TOWER, INC.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
EVP & CFO |
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MASTEC OF TEXAS, INC.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
EVP & CFO |
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[Signatures continue on following page]
-18-
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AGENT AND LENDERS:
BANK OF AMERICA, N.A.,
as Agent and a Lender
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By: |
/s/ Dennis S. Losin
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Name: |
Dennis S. Losin |
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Title: |
Senior Vice President |
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LASALLE BANK, NATIONAL ASSOCIATION,
as a Lender
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By: |
/s/ Jose Mazariegos
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Name: |
Jose Mazariegos |
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Title: |
Senior Vice President |
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PNC BANK, NATIONAL ASSOCIATION,
as a Lender
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By: |
/s/ Alex M. Council
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Name: |
Alex M. Council |
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Title: |
Vice President |
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GENERAL ELECTRIC
CAPITAL CORPORATION,
as a Lender
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By: |
/s/ Mark A. Kassis
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Name: |
Mark A. Kassis |
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Title: |
Duly Authorized Secretary |
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-19-
CONSENT AND REAFFIRMATION
Each of the undersigned, being a guarantor of the Obligations at any time owing to Agent or
Lenders, hereby (i) acknowledges receipt of a copy of the foregoing Third Amendment to Amended and
Restated Loan and Security Agreement (the Amendment); (ii) consents to Borrowers execution and
delivery of the Amendment and of the other documents, instruments or agreements any Borrower agrees
to execute and deliver pursuant to the Amendment; (iii) agrees to be bound thereby; and (iv)
affirms that nothing contained therein shall modify in any respect whatsoever its respective
guaranty of the Obligations and reaffirms that such guaranty is and shall remain in full force and
effect.
IN WITNESS WHEREOF, the undersigned have executed this Consent and Reaffirmation, as of the
date of the Amendment.
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GUARANTORS:
PHASECOM SYSTEMS INC.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
EVP & CFO |
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INTEGRAL POWER & TELECOMMUNICATIONS
CORPORATION, LTD.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
EVP & CFO |
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MASTEC NORTH AMERICA AC, LLC
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
EVP & CFO |
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-20-
EX-31.1 Section 302 Certification of CEO
Exhibit 31.1
CERTIFICATIONS REQUIRED BY SECTION 302(A)
OF SARBANES-OXLEY ACT OF 2002
I, Jose R. Mas, certify that:
I have reviewed this quarterly report on Form 10-Q of MasTec, Inc.;
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements made, in light of the circumstances under
which such statements were made, not misleading with respect to the period covered by this
quarterly report;
Based on my knowledge, the financial statements, and other financial information included in this
quarterly report, fairly present in all material respects the financial condition, results of
operations and cash flows of the registrant as of, and for, the periods presented in this quarterly
report;
The registrants other certifying officer and I are responsible for establishing and maintaining
disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and
internal control over financial reporting (as defined in Exchange Act Rules 13a-15(e) and
15d-15(e)) for the registrant and have:
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a) |
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Designed such disclosure controls and procedures, or caused such disclosure controls
and procedures to be designed under my supervision, to ensure that material information
relating to the registrant, including its consolidated subsidiaries, is made known to us by
others within those entities, particularly during the period in which this quarterly report
is being prepared; |
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b) |
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Designed such internal control over financial reporting, or caused such internal
control over financial reporting to be designed under our supervision, to provide
reasonable assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with generally accepted
accounting principles; |
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c) |
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Evaluated the effectiveness of the registrants disclosure controls and procedures and
presented in this quarterly report our conclusions about the effectiveness of the
disclosure controls and procedures, as of the end of the period covered by this report
based on such evaluation; and |
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d) |
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Disclosed in this quarterly report any change in the registrants internal control over
financial reporting that occurred during the registrants most recent fiscal quarter that
has materially affected, or is reasonably likely to materially affect, the registrants
internal control over financial reporting. |
The registrants other certifying officer and I have disclosed, based on our most recent evaluation
of internal control over financial reporting, to the registrants auditors and the audit committee
of the registrants board of directors (or persons performing the equivalent functions):
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a) |
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All significant deficiencies and material weaknesses in the design or operation of
internal control over financial reporting which are reasonably likely to adversely affect
the registrants ability to record, process, summarize and report financial information;
and |
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b) |
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Any fraud, whether or not material, that involves management or other employees who
have a significant role in the registrants internal control over financial reporting. |
Date:
August 1, 2007
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MASTEC, INC.
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By: |
/s/ Jose Mas
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Jose Mas President and Chief Executive Officer
(Principal Executive Officer) |
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EX-31.2 Section 302 Certification of CFO
Exhibit 31.2
CERTIFICATIONS REQUIRED BY SECTION 302(A)
OF SARBANES-OXLEY ACT OF 2002
I, C. Robert Campbell, certify that:
I have reviewed this quarterly report on Form 10-Q of MasTec, Inc.;
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements made, in light of the circumstances under
which such statements were made, not misleading with respect to the period covered by this
quarterly report;
Based on my knowledge, the financial statements, and other financial information included in this
quarterly report, fairly present in all material respects the financial condition, results of
operations and cash flows of the registrant as of, and for, the periods presented in this quarterly
report;
The registrants other certifying officer and I are responsible for establishing and maintaining
disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and
internal control over financial reporting (as defined in Exchange Act Rules 13a-15(e) and
15d-15(e)) for the registrant and have:
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a) |
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Designed such disclosure controls and procedures, or caused such disclosure
controls and procedures to be designed under my supervision, to ensure that material
information relating to the registrant, including its consolidated subsidiaries, is made
known to us by others within those entities, particularly during the period in which
this quarterly report is being prepared; |
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b) |
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Designed such internal control over financial reporting, or caused such internal
control over financial reporting to be designed under our supervision, to provide
reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with generally
accepted accounting principles; |
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c) |
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Evaluated the effectiveness of the registrants disclosure controls and
procedures and presented in this quarterly report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the period
covered by this report based on such evaluation; and |
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d) |
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Disclosed in this quarterly report any change in the registrants internal
control over financial reporting that occurred during the registrants most recent
fiscal quarter that has materially affected, or is reasonably likely to materially
affect, the registrants internal control over financial reporting. |
The registrants other certifying officer and I have disclosed, based on our most recent evaluation
of internal control over financial reporting, to the registrants auditors and the audit committee
of the registrants board of directors (or persons performing the equivalent functions):
|
a) |
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All significant deficiencies and material weaknesses in the design or operation
of internal control over financial reporting which are reasonably likely to adversely
affect the registrants ability to record, process, summarize and report financial
information; and |
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b) |
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Any fraud, whether or not material, that involves management or other employees
who have a significant role in the registrants internal control over financial
reporting. |
Date: August 1, 2007
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By: |
/s/ C. Robert Campbell
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C. Robert Campbell
Chief Financial Officer
(Principal Financial and Accounting
Officer) |
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EX-32.1 Section 906 Certification of CEO
Exhibit 32.1
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report of MasTec, Inc. (the Company) on Form 10-Q for the period
ended June 30, 2007 as filed with the Securities and Exchange Commission on the date hereof (the
Report), I, Jose R. Mas, President and Chief Executive Officer of MasTec, Inc., certify, pursuant
to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002,
that, to the best of my knowledge:
(1) |
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The Report fully complies with the requirements of section 13(a) or 15(d) of the
Securities Exchange Act of 1934; and |
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(2) |
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The information contained in the Report fairly presents, in all material respects, the
financial condition and results of operations of the Company. |
Date: August 1, 2007
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/s/ Jose R. Mas |
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Jose R. Mas
President and Chief Executive Officer
(Principal Executive Officer) |
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The certification set forth above is being furnished as an exhibit solely pursuant to Section 906
of the Sarbanes-Oxley Act of 2002 and is not being filed as part of the Quarterly Report on Form
10-Q for the period ended June 30, 2007, or as a separate disclosure documents of we or the
certifying officers.
EX-32.2 Section 906 Certification of CFO
Exhibit 32.2
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report of MasTec, Inc. (the Company) on Form 10-Q for the period
ended June 30, 2007 as filed with the Securities and Exchange Commission on the date hereof (the
Report), I, C. Robert Campbell, Chief Financial Officer of MasTec, Inc., certify, pursuant to 18
U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to
the best of my knowledge:
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(1) |
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The Report fully complies with the requirements of section 13(a) or 15(d) of the
Securities Exchange Act of 1934; and |
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(2) |
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The information contained in the Report fairly presents, in all material respects, the
financial condition and results of operations of the Company. |
Date: August 1, 2007
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By: |
/s/ C. Robert Campbell
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C. Robert Campbell
Chief Financial Officer
(Principal Financial and Accounting
Officer) |
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The certification set forth above is being furnished as an exhibit solely pursuant to Section 906
of the Sarbanes-Oxley Act of 2002 and is not being filed as part of the Quarterly Report on Form
10-Q for the period ended June 30, 2007, or as a separate disclosure documents of we or the
certifying officers.