<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________
FORM 10-K
(MARK ONE)
[X] Annual Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the fiscal year ended January 31, 1999
OR
[ ] Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 (No Fee Required)
For the Transition Period From _____ to _____
Commission file number 1-11601
NATIONAL AUTO CREDIT, INC.
(Exact name of registrant as specified in its charter)
Delaware 34-1816760
(State of incorporation) (I.R.S. Employer Identification No.)
30000 Aurora Road, Solon, Ohio 44139
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code: (440) 349-1000
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which registered
- ------------------- -----------------------------------------
Common Stock, par value
$.05 per share.....................................None
Securities registered pursuant to Section 12(g) of the Act:
NONE
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 and (2) has been subject to such filing
requirements for the past 90 days. Yes ___ No _X_
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy of this Form 10-K or any
amendment to this Form 10-K. ( )
As of June 30, 1999, 28,644,645 shares of Common Stock of National Auto Credit,
Inc. were outstanding.
Aggregate market value of the registrant's Common Stock held by nonaffiliates
at June 30, 1999, was approximately $13,004,846. (Based on the closing price of
the registrant's common stock on the OTC Bulletin Board).
DOCUMENTS INCORPORATED BY REFERENCE
None.
<PAGE> 2
TABLE OF CONTENTS
Part I Page
- ------ ----
Item 1. Business...................................................... 1
2. Properties.................................................... 9
3. Legal Proceedings............................................. 9
4. Submission of Matters to a Vote of Security Holders........... 9
Part II
- -------
Item 5. Market for Registrant's Common
Equity and Related Stockholder Matters..................... 10
6. Selected Financial Data...................................... 11
7. Management's Discussion and Analysis of Financial Condition
And Results of Operations.................................. 12
7a. Quantitative and Qualitative Disclosures About Market Risk... 20
8. Financial Statements and Supplementary Data.................. 21
9. Changes in and Disagreements with Accountants
On Accounting and Financial Disclosure..................... 45
Part III
- --------
Item 10. Directors and Executive Officers of the Registrant........... 46
11. Executive Compensation....................................... 48
12. Security Ownership of Certain Beneficial Owners and
Management................................................. 52
13. Certain Relationships and Related Transactions............... 53
Part IV
- -------
Item 14. Exhibits, Financial Statement Schedules
and Reports on Form 8-K.................................... 53
<PAGE> 3
PART I
------
Item 1. Business
- ------- --------
OVERVIEW
- --------
National Auto Credit, Inc. (the "Company"), began operations in 1969
and was incorporated in Delaware in 1971. The Company's name was changed to
National Auto Credit, Inc., effective August 15, 1994, and was formerly known as
Agency Rent-A-Car, Inc. The Company's principal business activity is to invest
in sub-prime used automobile consumer loans, which take the form of installment
loans collateralized by the related vehicle. The Company, through NAC, Inc.
("NAC"), a wholly-owned subsidiary of the Company, purchases such loans, or
interests in pools of such loans (collectively "loan investments"), from used
car dealerships ("member dealers") that participate in the Company's loan
purchase program. The Company performs the underwriting and collection functions
for all loans it purchases in whole, and also performs such functions where the
member dealer had sold to the Company, and retained for itself, interests in a
pool of loans. The Company's operations enable member dealers to provide used
car purchase financing to customers who have limited access to more traditional
consumer credit sources and, as a result, might otherwise be unable to obtain
financing. As of January 31, 1999 the Company had a network of approximately 900
dealers located throughout the United States.
The Company's principal executive offices are located at 30000 Aurora
Road, Solon, Ohio. Its telephone number is 440-349-1000.
The Company uses a January 31 year-end for financial reporting
purposes, and references herein to a year or fiscal year as used here are to the
fiscal year ended on January 31 of that year. The term the "Company" as used
herein refers to National Auto Credit, Inc. together with its subsidiaries
unless the context otherwise requires.
Prior to fiscal 1997 the Company also engaged in the automobile rental
business, including the subsequent sale of cars when retired from its rental
fleet. The automobile rental operations, conducted under the names Agency
Rent-A-Car, Altra Auto Rental and Automate Auto Rental, rented vehicles
principally on a short-term basis to the insurance replacement market. National
Motors was a company owned dealership that sold vehicles retired from the rental
fleet. The Company sold the automobile rental operations in fiscal 1996, and in
fiscal 1997 discontinued the operations of National Motors.
SIGNIFICANT DEVELOPMENTS
- ------------------------
On January 16, 1998, Deloitte & Touche LLP ("Deloitte & Touche")
resigned as the Company's independent auditors, advising the Company that
information had come to its attention that caused it to no longer be able to
rely on the representations of the then management of the Company. See Item 9 -
Changes in and Disagreements with Accountants on Accounting and Financial
Disclosure Matters.
Following the resignation of Deloitte & Touche, Sam J. Frankino,
Chairman of the Board, and Robert J. Bronchetti, President, temporarily vacated
their positions, and the Board of Directors formed a Special Committee ("Initial
Special Committee") to investigate, with the assistance of special independent
legal, accounting and auditing experts, the basis for Deloitte & Touche's
decision to resign as the Company's auditors and to review certain of the
Company's accounting records and financial reporting.
In February 1998, the Company engaged Grant Thornton LLP ("Grant
Thornton") as its new independent auditors to audit the Company's fiscal 1998
financial statements. The Initial Special Committee issued a report of the
preliminary findings of its investigation in March 1998. Following the issuance
of the report, the members of the Initial Special Committee resigned from their
positions as directors of the Company, and a new Special Committee was formed to
continue the investigation and review. As a result of those investigations, and
Grant Thornton's reaudit of the fiscal 1997 financial statements, the Company
determined that its previously issued fiscal 1995, 1996 and 1997 financial
statements required restatement to correct accounting that resulted from the
failure of the Company to properly consider information available at the time
those financial statements were prepared, including information that may not
have been considered due to certain errors or irregularities in certain
accounting or corporate records. The fiscal 1995, 1996 and 1997 financial
statements have been restated, as described in Note L of Notes to Consolidated
Financial Statements contained elsewhere
1
<PAGE> 4
herein, and the restated 1997 financial statements, together with the financial
statements for fiscal 1998 and 1999, have been audited by Grant Thornton as set
forth in its report appearing elsewhere herein.
Other significant developments during the period March 1998 to May 1999
were:
a) In March 1998, a new Special Committee was appointed by the Board of
Directors as a standing committee of the Board, together with new
independent legal and financial reporting experts, to (among other things)
continue the review and investigation of the Company's accounting records
and financial controls and financial reporting, as well as to cooperate
fully with all governmental authorities investigating the Company.
b) In March 1998, the Company's former President, Robert J. Bronchetti
resigned as an officer and director.
c) In March 1998, Sam J. Frankino, the Company's former Chairman of the Board
and majority shareholder, retired and vacated his positions with the
Company.
d) In March 1998, Edward T. Anderson, former Executive Vice President of the
Company, was appointed Acting President of the Company.
e) In March 1998, the New York Stock Exchange suspended trading of the
Company's common stock and commenced delisting procedures. The Company's
common stock was delisted in November 1998.
f) In April 1998, the Special Committee of the Company's Board of Directors
retained Jay Alix & Associates, a firm specializing in corporate
turnarounds, to provide management and financial consulting services to the
Company.
g) In April 1998, counsel to the Special Committee of the Company's Board of
Directors retained TenEyck Associates, Inc. to provide independent forensic
accounting services to counsel to the Special Committee and to the Company.
h) In May 1998, the Company announced that its Annual Report on Form 10-K for
the fiscal year ended January 31, 1998 would not be filed with the
Securities and Exchange Commission by the prescribed due date.
i) In June 1998, the Company's Board of Directors named Thomas W. Cross, a
principal of Jay Alix & Associates, as Interim Chief Executive Officer. Mr.
Cross thereafter engaged a financial/accounting advisor to the Company. Mr.
Cross' assignment ended January 15, 1999.
j) In July 1998, the Company approved the establishment of an internal audit
function. The first Director of Internal Audit was hired in October 1998.
k) In August 1998, the Board of Directors of the Company explored expanding
Grant Thornton's engagement as the Company's independent auditors to
include the reaudit of the financial statements of the Company for the year
ended January 31, 1997 and the audit for the year ended January 31, 1999.
The expansion of Grant Thornton's engagement to include the reaudit of the
Company's financial statements for the year ended January 31, 1997, which
had previously been audited by Deloitte & Touche, was explored due to the
concern that Deloitte & Touche would refuse to reissue its report on the
1997 financial statements.
l) In October 1998, the Company announced the expansion of Grant Thornton's
engagement to include the reaudit of the Company's financial statements for
the year ended January 31, 1997 and the audit for the year ended January
31, 1999 in addition to the year ended January 31, 1998.
m) In November 1998, the Company engaged A.T. Kearney, Inc., an executive
search firm, to undertake a national search for a permanent President of
the Company.
n) In November 1998, substantially all of the Company's outstanding
indebtedness ($34.9 million) was repaid with the proceeds of an income tax
refund.
o) In January 1999, upon the end of Mr. Cross' term, the Board of Directors of
the Company named Richard M. Cohen, as Interim President for a term ending
May 1999.
2
<PAGE> 5
p) In April 1999, Sam J. Frankino, majority shareholder of the Company,
granted Ernest C. Garcia II a revocable proxy to vote his shares in the
Company.
q) In May 1999, the Company acquired an option to purchase Mr. Garcia's shares
in the Company for a term of 45 days at an exercise price of $1.50 per
share. As part of the option, an independent director of the Company's
Board of Directors obtained a proxy to vote all shares subject to the
option. The term of the option, as well as the proxy to vote, have been
extended until August 8, 1999.
r) In May 1999, the Company announced the appointment of Allen D. Rice,
formerly of General Electric Capital Services, Inc., as President of the
Company.
s) The Company's Board of Directors has set September 15, 1999 as the date for
the next annual meeting of stockholders, with a record date of stockholders
to vote on August 2, 1999.
For the year ended January 31,1999, the Company incurred a loss from
continuing operations of $16,065,000, and a net loss of $15,615,000, primarily
as the result of a 55.3% decline in revenues to $16,279,000 and the incurrence
of costs of $9,585,000 associated with certain litigation, as described below,
and the changes in management described above. The decline in revenues was
principally due to the reduction in the size of the Company's loan portfolio.
The Company incurred a loss from continuing operations of $85,711,000, and a net
loss of $91,684,000 for the year ended January 31, 1998. The 1998 losses were
principally the result of a 43.0% decline in revenues, and a $75,194,000
increase in the provision for credit losses.
During fiscal 1998 and 1999, the Company was from time to time in
default of the covenants in its bank group and senior note debt agreements. In
the fourth quarter of fiscal 1998 and continuing through the third quarter of
fiscal 1999 the Company entered into a series of amendments to those agreements
to waive the defaults while the Company repaid the outstanding borrowings. The
Company completed the repayment of the borrowings under the bank group facility
and the redemption of the senior notes in November 1998 using the proceeds of
its income tax refund. See Note C of Notes to Consolidated Financial Statements.
The Company obtained no new debt financing during fiscal 1999 and
operated on internally generated cash flow, which resulted from an excess of
collections on installment loans over investments in new loans as the Company
reduced the size of its operations. As of January 31, 1999, the Company has no
external source of financing, and, therefore, unless or until it is able to
obtain new debt or equity financing, the Company's purchases of loans will be
limited to the cash available from the collections from its existing loan
portfolio after the use of those cash flows to pay operating expenses and
existing liabilities.
After the resignation of Deloitte & Touche, eleven purported class
action lawsuits were filed against the Company in the United States District
Court for the Northern District of Ohio which actions allege fraud and other
violation of the federal securities laws against the Company and certain former
and current officers and directors. The actions were consolidated on October 16,
1998, and discovery is presently stayed pending the court's rulings on various
outstanding motions. The ultimate outcome of these actions cannot presently be
predicted, and the Company has not recorded any provision for any damages that
may result from these actions. Additionally, the Securities and Exchange
Commission, the United States Attorney for the Northern District of Ohio, and
the Federal Bureau of Investigation are investigating the issues raised as the
result of the resignation of Deloitte & Touche. An unfavorable resolution of any
of these matters could have a material adverse effect on the Company's financial
position, results of operations and liquidity. See Item 3 - Legal Proceedings.
The Company's 1999 and 1998 net losses, its current lack of external
sources of financing which limits its purchase of loans, and the litigation and
investigations discussed above, raise substantial doubts about the Company's
ability to continue as a going concern. The factors which raise such doubts, and
management's plans to address them, are discussed further elsewhere herein. See
Item 7 - Management's Discussion and Analysis of Financial Condition and Results
of Operations, and Note M of Notes to Consolidated Financial Statements.
3
<PAGE> 6
FINANCIAL SERVICES
- ------------------
GENERAL
The Company began financing operations in October 1992, to capitalize
on management's knowledge of the used car market, accumulated over 25 years of
operating a rental car business. The Company invests in sub-prime used
automobile consumer loans, which take the form of installment loans
collateralized by the related vehicle, by purchasing such loans, or interests in
pools of such loans, from member dealers. The Company performs the underwriting
and collection functions for all loans it purchases in whole, and also performs
such functions where the member dealers have sold to the Company, and retained
for itself, interests in a pool of loans. The Company's operations enable member
dealers to provide used car purchase financing to customers who have limited
access to more traditional consumer credit sources and might otherwise be unable
to obtain financing. As a result, NAC member dealers are able to capture sales
that otherwise might have been lost due to the inability of the customer to
obtain, or the dealer to provide, financing. As of January 31, 1999 the Company
had a network of approximately 900 dealers located throughout the United States.
The loans in which the Company invests are high risk, in that the
borrowers are individuals with below average credit quality, and the collateral
is subject to loss, damage, significant declines in value and difficulties of
repossession. Accordingly, each individual loan has a significant risk of not
performing in accordance with its contractual terms. The business in which the
Company participates relies on mitigating this risk by acquiring large numbers
of loans, thus reducing the exposure to the risk of the default on any one
particular loan, and on reasonably estimating the credit losses to be incurred
and setting loan purchase prices accordingly. An inability to reasonably predict
the future performance of loans being purchased, or to set loan purchase prices
that properly reflect those estimates, can significantly increase the risk of
material losses from the business of investing in sub-prime used automobile
loans.
During fiscal 1999 the Company revised the manner in which it conducted
its loan investment operations in light of the level of credit losses the
Company experienced in fiscal 1997 through fiscal 1999. Those losses were caused
by both the manner in which the Company enrolled dealers and underwrote loans,
and overall trends that developed in the sub-prime used car loan industry during
those years. In particular, the Company developed a dealer scoring model to
allow it to evaluate the historical performance of its dealers and selectively
market its new programs to a smaller number of dealers viewed as more likely to
be the source of higher quality loans, and the Company ceased purchasing loans
from 70% of the dealers that had been enrolled in the Company's program through
January 31, 1998. Additionally, the allegations made and uncertainties about the
Company following the resignation of Deloitte & Touche caused some dealers to
cease to do business with the Company, and the Company's lack of external
financing during 1999 limited its ability to purchase new loans to the cash
available from the collections from its existing loan portfolio after the use of
those cash flows to pay operating expenses and existing liabilities. These
factors led to an overall decrease in the number of dealers enrolled in the
Company's program, from 3,000 at January 31, 1998 to 900 at January 31, 1999,
and to a decline in the number of loans purchased in each of the last three
years, as follows:
Year ended January 31, Loans Purchased
---------------------- ---------------
1997 38,000
1998 30,000
1999 6,000
No individual dealer is the source of more than 2% of the Company's
loan investments. From time to time certain states represent the source of
significant portions of the Company's loan investments. In fiscal 1999, 43% of
the loans purchased by the Company originated from Florida, North Carolina,
Georgia, Texas and Illinois, and as of January 31, 1999, 12.1% and 10.9% of the
Company's loan investments relate to consumers in North Carolina and Texas. The
Company's realization of its loan investments, and interest income therefrom, is
dependent on the ability of the customers to pay the installment notes. Economic
conditions in the geographic area in which a customer resides can affect
repayment. The Company attempts to mitigate its credit risk by retaining a
security interest in the vehicle financed by the loan; however, the used cars
that collateralize the loans are subject to loss, damage, significant declines
in value and difficulties of repossession and, accordingly, the Company's
security interest does not always effectively protect against credit losses.
4
<PAGE> 7
SALES AND MARKETING
The Company sources loans for purchase through its relationships with
member dealers, who refer loans to the Company for underwriting and purchase.
The Company employs sales and marketing personnel at the corporate
offices and in the field to enroll new dealers and provide services to existing
member dealers. Field personnel are responsible for identifying qualified dealer
leads and promoting the benefits of membership in the NAC program. Field Area
Managers provide training, consulting and product knowledge to the dealers to
increase dealers' knowledge of, and therefore their use of, the Company's
programs. During fiscal year 1999, there were approximately fifteen Field Area
Managers and District Managers located in eleven states.
The Company also utilizes national direct marketing campaigns, trade
show involvement and print advertising to build its image in an effort to
stimulate more dealer enrollments and generate increased contract volume.
Through December 1998 the Company had an advisory board made up of select member
dealers who met with management to review the Company's various programs and
provide guidance on how to attract and retain member dealers, enhance product
offering and improve controls and efficiency.
Management seeks to enroll quality dealers by following written
enrollment guidelines and a due diligence process. Initially, a Field Area
Manager visits the dealership, explains the Company's financing program and
becomes familiar with the dealer's operation. If both parties wish to pursue a
business relationship, an application is completed. Trade and bank references,
and valid current operating licenses are obtained and verified. In addition,
background checks are performed on both the dealership and its principals.
Dealers meeting Company standards sign a dealership agreement that the
Company has the right to terminate in the event of default or misrepresentation.
The Company ceased charging dealers an enrollment fee in fiscal 1998.
CENTRALIZED LOAN PROCESSING
The Company operates one centralized loan processing center. Loan files
are centrally located, providing control and ease of access. The Company uses a
document imaging and retrieval system that provides various departments access
to critical loan documents without having to remove the original file from the
document storage area.
During fiscal 1999 the Company has sought to improve compliance with
its loan processing procedures. Each credit application is reviewed for approval
prior to contract acceptance to ensure that the Company's minimum underwriting
criteria are met. Credit applicants are approved or rejected on individual merit
by analyzing the three major areas that the industry considers important:
stability (length of time at residence and employment), ability (payment and
debt to income ratios), and down payment (commitment to vehicle purchase). The
credit application is entered into an automated credit evaluation system
developed by Fair, Isaac and Company, Inc. for initial credit analysis.
Concurrently, residency and employment are verified by credit support personnel.
The application is then forwarded to the assigned Account Executive for final
review. Experienced Account Executives (credit analysts) review the
system-generated statistics along with the specifics of each credit application
and contact the member dealer to discuss the credit review decision. This
personal call to the dealer enables the Account Executive to make
recommendations as to how the terms and conditions of the loan can be improved.
In addition to the credit review process, Account Executives are responsible for
maintaining an ongoing relationship with assigned member dealers.
Contracts are entered into a tracking database, matched with the
initial credit application and reviewed for adherence to the terms and
conditions set forth in the approval process. Contracts are reviewed for
compliance with federal and state regulations as well as completeness of all the
Company's required documentation including written verification of residency and
employment and phone verification of the terms of the contract with the customer
in accordance with the Company's policy.
If the customer's application meets the Company's established credit
criteria, the Company will purchase the loan. The Company purchases its loans at
a discount from the face or contractual amount. That discount reflects both (i)
an element of interest income that the Company seeks to earn on its investment
in the loans, and (ii) the Company's assessment that, due to the sub-prime
nature of the loans, a portion of the loans it purchases are impaired in that
the loans will not be repaid in accordance with their contractual terms.
5
<PAGE> 8
Prior to mid-1999, the majority of the Company's loan investments took
the form of the Company's purchase of interests in pools of loans, rather than
whole loans, which were made under the Dealers Acceptance Program. That program
represented a sharing agreement between the Company and individual dealers. In
general the sharing agreements provided that the dealer would receive an initial
payment ("the dealer advance") from the Company of a percentage of the
contractual principal in return for which the Company would be entitled to
retain (i) 20% of all collections from that dealer's loans, and (ii) the
remaining 80% of the collections from that dealer's loans until the Company had
recovered from such 80% the dealer advance, computed on an aggregate basis for
all loans covered by the sharing agreement with that dealer.
In fiscal 1999 the Company discontinued the Dealers Acceptance Program,
and began to purchase whole loans under the Dealers Choice Program. Under this
program, the Company makes a single payment to the dealer, which generally
ranges from 60% to 75% of the face or contractual amount of the loan being
purchased, and acquired the whole loan. Under the Dealers Choice Program the
dealer may also receive a bonus payment if the customer pays six monthly
payments within seven months of the first payment due date.
COLLECTION
At the time of the loan origination, each customer is mailed a payment
book. Additionally, each new customer receives a call from a member of the
Company's collection staff ten days before the first payment due date to review
payment arrangements, payment options and the terms of the loan contract.
The coupon payment books, direct payments to retail lockboxes in Denver,
Colorado and Richmond, Virginia. The Company offers several payment options to
customers. Currently, the majority of the payments are mailed in the
traditional manner to one of the Company's two lockboxes. The Company also
offers the customer the opportunity to pay via Western Union Quick Collect
(wired funds) or pay by phone programs. During fiscal year 1999, the Company
installed the capability for the customer to pay either with a credit or bank
debit card. NAC receives over 30% of payments from these non-traditional
methods.
The Company employs collection staff who are compensated under plans
that include performance incentive elements. The collection function is
performed at the Company's corporate headquarters in Solon, Ohio. Collection
personnel work staggered schedules generally from 8:00 a.m. to 8:00 p.m.,
depending on the region of the country to which they are assigned. The
collection efforts of the staff are aided by a computerized on-line receivables
system and call management system with a predictive dialing feature. The
Company's system also includes a voice response unit that allows customers
calling the Company to access account information and communicate payment
arrangements on a 24-hour basis.
Accounts that become delinquent by one day are assigned to the
collection staff. Additionally, late notices are mailed at three and twenty days
after the missed payment date. The staff attempts collections, and if the loans
are not collected the Company assigns out the task of attempting the
repossession and sale of the collateral not later than 35 days after default on
the first payment, or not later than 65 days after other defaults. The
repossession and collateral sales are conducted by approximately 250 independent
repossession agents and 100 automobile auctions with which the Company maintains
working agreements. However, the used cars that collateralize the loans are
subject to loss, damage, significant declines in value and difficulties of
repossession. To the extent the sale of the collateral does not satisfy the loan
balance, the Company will use an in-house recovery collector to attempt to
collect the remaining balance. Balances that cannot be collected in this manner
are forwarded to outside collection agencies. Finally, the Company may attempt
to sell any remaining unpaid accounts in the secondary market. However, the
Company has generally not been able to obtain significant recoveries after the
sale of the repossessed car.
The payment history and status of all customer loans is reported
monthly to three major credit reporting agencies.
INTEREST INCOME AND ALLOWANCE FOR CREDIT LOSSES
The Company's loan investments result from purchases of installment
loans at discounts from the face or contractual amount. Those discounts reflect
both (i) an element of interest income that the Company seeks to earn on its
investment in the loans, and (ii) the Company's assessment, at the time of
purchase, that a portion of the loans it purchases are impaired in that the
loans will not be repaid in accordance with their contractual terms.
6
<PAGE> 9
At the time of purchase, the Company groups loans into loan pools that
it believes will have common future cash flow characteristics, on the basis of
possessing similar contractual and risk characteristics. Loans are initially
recorded at the cost to purchase the loans, adjusted for any net loan
origination fees and related direct incremental loan origination costs. At the
time of purchase, the Company's net initial investment in the loans is recorded
by establishing as the "gross finance receivable" the contractual cash flows
(including contractual interest) to which the Company is entitled, which is
offset by the difference between the gross finance receivable and the net
initial investment, which is segregated into two components; (i) unearned
income, which represents the difference between the net initial investment and
the Company's estimate of the future cash flows from the gross finance
receivable and (ii) a credit loss discount, which represents the difference
between the Company's estimate of the future cash flows from the gross finance
receivable and its contractual cash flows.
Prior to mid-1999, the majority of the Company's loan investments took
the form of the Company's purchase of interests in pools of loans, rather than
whole loans, which were made under the Dealers Acceptance Program. That program
represented a sharing agreement between the Company and individual dealers. In
general the sharing agreements provided that the dealer would receive an initial
payment ("the dealer advance") from the Company of a percentage of the
contractual principal in return for which the Company would be entitled to
retain, after collection costs, (i) 20% of all collections from that dealer's
loans, and (ii) the remaining 80% of the collections from that dealer's loans
until the Company had recovered from such 80% the dealer advance, computed on an
aggregate basis for all loans covered by the sharing agreement with that dealer.
The dealer advance represented the Company's net initial investment, which was
recorded in the manner described in the preceding paragraph based on the portion
of the pool of loans the Company was entitled to under such sharing agreements
(i.e. contractual cash flows from the gross loans in force net of the
contractual cash flows to which the dealer would be entitled).
Unearned income is recognized in income over the life of the loans on
the interest method, using for each pool of loans the interest rate that
reflects the difference between the Company's net investment in the loans and
its estimate of the future cash flows therefrom, determined at the time of the
loan purchase. The Company's net investment in each loan pool includes its net
initial investment, any interest income recognized but not yet collected,
reduced by collections and any previously recorded allowance for credit losses.
Effective February 1, 1997, the Company refined its methodology for
determining the allowance for credit losses to group loans into pools with
similar characteristics and to assess the recoverability of its loan investments
on the basis of the present value of the expected future cash flows, as
discussed in Statement of Financial Accounting Standards ("SFAS") 114 (as
amended by SFAS 118), "Accounting by Creditors for Impairment of a Loan." On a
continual basis the Company reviews its estimates of future cash flows for its
loan pools. Such estimates are revised to reflect changes in historical
collection rates, charge-off rates, loan delinquencies and other economic
indicators that serve as the basis for predicting future loan performance. The
Company's net investment in each loan pool is compared to the present value of
the revised estimate of future cash flows, discounted using the rate at which
the Company is recognizing interest income on that pool of loans. Where the
estimated cash flows have been revised downward and as a result such a
comparison reflects an excess of the investment over the present value of the
future cash flows, the Company records an allowance for credit losses by a
charge to expense. The Company also reduces unearned income by a
reclassification to the credit loss discount so that future interest income will
reflect the same original annual interest income rate on the net investment in
the loan pool. In those instances where a revised estimate of future cash flows
indicates an increase in estimated cash flows over the previous estimate, the
Company first reverses into income any previously recorded provision for credit
losses and then increases the rate at which future interest income is recognized
by a reclassification from the credit loss discount to unearned income.
Prior to the Company's February 1, 1997 refinement of its method of
determining the allowance for credit losses described above, the Company
evaluated the adequacy of its allowance for credit losses using a methodology
generally similar to that described above, except that the estimated future cash
flows were compared to the Company's net investment on an undiscounted basis.
The effect of utilizing discounting consistent with SFAS 114 was $41,667,000,
which is included in the provision for credit losses recorded in fiscal 1998.
The Company's policy is to charge-off loans as uncollectible at the
earlier of (i) the repossession of the collateral, or (ii) a loan becoming 180
days contractually past due (270 days past due on a recency basis prior to
November 1, 1998). Loan charge-offs are recorded by eliminating the remaining
gross finance receivable against the allowance for credit losses and the credit
loss discount on a pro-rata basis.
7
<PAGE> 10
COMPETITION
The business in which the Company operates is extremely competitive,
and although many participants have exited the sub-prime market in recent years,
the Company continues to face direct competition from a number of national,
regional and local finance companies that specialize in the used automobile
sub-prime market. The Company does not consider itself, at this time, to be in
direct competition with banks, credit unions and captive finance companies.
However, traditional lending institutions are entering the sub-prime market in
increasing numbers and will continue to increase the competition in the
Company's business. In addition, many dealers are financing their own programs.
REGULATION
The Company's business is subject to various state and federal laws and
regulations which require licensing and qualification, and the Company is
generally required to obtain a license, which is revocable for cause, in those
states in which it does business. The federal and state laws and regulations to
which the Company is subject, which include the consumer protection laws, limit
interest rates, fees and other charges associated with the installment loans
purchased by the Company, require specified disclosures by automobile dealers to
consumers, govern the sale and terms of the ancillary products and define a
lender's rights to repossess and sell collateral. The failure to comply with
these laws or regulations could have a material adverse effect on the Company
by, among other things, limiting the states in which the Company may operate,
restricting the Company's ability to realize the value of the collateral
securing its loan investments, or imposing on the Company potential liability
related to loans purchased from dealers.
Within the past year, certain federal and state officials have
expressed interest in the issue of the interest rates and other terms contained
in loans such as those purchased by the Company. The Company is unable to
predict whether, or if, such interest will result in new or revised laws or
regulations that could affect the Company's business. Significant new laws or
regulations affecting the interest rates or other terms contained in loans such
as those purchased by the Company could have a material adverse affect on the
Company's operations.
State and federal laws and regulations also can affect the supply of
used automobiles. For example, environmental protection regulations governing
emissions or fuel consumption could restrict the ability of dealers to market
certain makes or models of used automobiles. To the extent the supply of used
automobiles was restricted by such laws or regulations, the Company could be
adversely affected.
DISCONTINUED OPERATIONS
- -----------------------
Prior to fiscal 1997 the Company also engaged in the automobile rental
business, including the subsequent sale of cars when retired from its rental
fleet.
The automobile rental operations, conducted under the names Agency
Rent-A-Car, Altra Auto Rental, and Automate Auto Rental, rented vehicles
principally on a short-term basis to the insurance replacement market. The
Company disposed of its rental fleet and these operations in fiscal 1996 through
the sale of certain assets and through certain leases to a national car rental
company. All liabilities related to the discontinued rental business,
principally self-insurance claims, were retained by the Company.
National Motors was a Company owned dealership which sold vehicles
retired from the rental fleet. The Company discontinued the operations of
National Motors in fiscal 1997. See Note K of Notes to Consolidated Financial
Statements.
EMPLOYEES
- ---------
As of January 31, 1999, the Company employed approximately 250 people,
none of which were covered by a collective bargaining agreement. The Company
believes it maintains good relations with its employees.
8
<PAGE> 11
Item 2. Properties
- ------- ----------
The Company's corporate headquarters, executive offices and centralized
operating center are located in two four-story, 55,000 square feet office
buildings owned by the Company in Solon, Ohio, a southeast suburb of Cleveland.
The Company also owns facilities in Beach City, Ohio (9,000 square feet) and
Delran, New Jersey (12,000 square feet) which were previously used to house and
repair repossessed cars, and are now listed for sale.
The Company believes that its operational facilities and other
properties are well maintained. Due to excess office capacity, portions of one
of the buildings located in Solon, Ohio are leased to various tenants.
Item 3. Legal Proceedings
- ------- -----------------
The Company and certain of its former and current officers and
directors have been named as defendants in eleven purported class action
lawsuits which were filed in the United States District Court for the Northern
District of Ohio. The actions allege fraud and other violations of the federal
securities laws. The actions were consolidated on October 16, 1998, and
discovery is presently stayed pending the court's rulings on various outstanding
motions. The consolidated action seeks money damages as the result of various
alleged frauds and violations of the Securities Exchange Act of 1934, including
misrepresentations about the adequacy of the Company's allowance for credit
losses and its loan underwriting practices. The Company has accrued $3,000,000
to defend against this action. Although the Company intends to vigorously defend
itself, the ultimate outcome of these actions, including the range of loss, if
any, cannot presently be predicted, and the Company has not recorded any
provision for any damages that may result from these actions. An unfavorable
resolution of these actions could have a material adverse effect on the
Company's financial position, results of operations and liquidity.
The Securities and Exchange Commission, the United States Attorney for
the Northern District of Ohio and the Federal Bureau of Investigation are
investigating the issues raised as the result of the resignation of Deloitte &
Touche. The Company is cooperating fully with the investigations. The ultimate
outcome of these investigations on the Company cannot presently be predicted. An
unfavorable resolution of any of these investigations could have a material
adverse effect on the Company's financial position, results of operations and
liquidity.
On June 7, 1999, Sam J. Frankino, the former Chairman of the Company's
Board of Directors and its majority stockholder, instituted two separate civil
actions against the Company in the Delaware Court of Chancery. The first of
these actions sought to compel the Company to hold an annual meeting of
stockholders for the election of directors. The second of these actions sought
to inspect the Company's stocklist materials and other of its books and records
in connection with such annual meeting. On June 21, 1999, the Company resolved
both of these actions by stipulation, agreeing to hold an annual meeting of
stockholders on September 15, 1999, and agreeing to make available to Mr.
Frankino the stocklist and other materials he had requested.
The Company self-insures for claims relating to bodily injury or
property damage from accidents involving the vehicles rented to customers by its
discontinued automobile rental operations. In connection therewith the Company
establishes certain reserves in its financial statements for the estimated cost
of satisfying those claims. See Note K of Notes to Consolidated Financial
Statements.
In the normal course of its business, the Company is named as defendant
in legal proceedings. It is the Company's policy to vigorously defend litigation
and/or enter into settlements of claims where management deems appropriate.
Item 4. Submission of Matters to a Vote of Security Holders
- ------- ---------------------------------------------------
None
9
<PAGE> 12
PART II
-------
Item 5. Market for Registrant's Common Equity and Related Stockholder Matters
- ------- ---------------------------------------------------------------------
MARKET INFORMATION
The Company's common stock, $.05 par value, has been trading on the OTC
Bulletin Board operated by the National Association of Securities Dealers, Inc.
since March 23, 1998 under the ticker symbol NAKD. In the periods prior to that
date the Company's common stock was traded on the New York Stock Exchange under
the symbol NAK.
The following table reflects the high and low prices for the Company's
common stock during the periods indicated as reported by the National Quotation
Bureau, Inc. for the periods for which the Company's common stock has been
traded on the OTC Bulletin Board, and prior thereto as reported by the New York
Stock Exchange Composite Tape.
<TABLE>
<CAPTION>
High Low
---- ---
<S> <C> <C>
Year ended January 31, 1998
First Quarter (February 1 - April 30) ............................. $ 11.63 $ 7.38
Second Quarter (May 1 - July 31) .................................. 10.38 7.50
Third Quarter (August 1 - October 31) ............................. 9.50 7.00
Fourth Quarter (November 1 - January 31) .......................... 7.50 .75
Year ended January 31, 1999
First Quarter (February 1 - April 30) ............................. $ 3.38 $ .75
Second Quarter (May 1 - July 31) .................................. 2.06 .69
Third Quarter (August 1 - October 31) ............................. 1.70 .75
Fourth Quarter (November 1 - January 31) .......................... 1.66 .88
</TABLE>
With respect to prices reported by the National Quotations Bureau, Inc.
for the OTC Bulletin Board, such prices reflect inter-dealer bid prices, may not
represent actual transactions, and do not reflect dealer mark-ups and
mark-downs.
STOCKHOLDERS
At June 30, 1999 there were 1,310 stockholders of record of the
Company's common stock based upon a securities position listing furnished to the
Company, which is exclusive of shares in nominee ("street") names.
DIVIDENDS
It has been the Company's policy to retain earnings to finance the
growth of its business and reduce outstanding debt; accordingly the Company has
generally not issued a cash dividend. However, the Company does from time to
time reassess its cash dividend policy and may issue cash dividends in the
future if circumstances warrant. No cash dividends were declared for the fiscal
years ended January 31, 1999 and 1998.
10
<PAGE> 13
Item 6. Selected Financial Data
- ------- -----------------------
The following sets forth certain selected financial data appearing in
or derived from the Company's historical financial statements. The selected
financial data should be read in conjunction with the consolidated financial
statements appearing elsewhere herein, and with Item 7 - Management's Discussion
and Analysis of Financial Condition and Results of Operations (thousands of
dollars, except per share amounts):
<TABLE>
<CAPTION>
INCOME STATEMENT DATA Years Ended January 31,
- --------------------- -------------------------------------------------------------
1999 1998 1997(1) 1996(1) 1995(1)
--------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
REVENUE $ 16,279 $ 36,396 $ 63,872 $ 43,511 $ 23,505
COSTS AND EXPENSES $ 32,288 $ 149,265 $ 54,236 $ 14,797 $ 9,661
(LOSS) INCOME FROM CONTINUING OPERATIONS $ (16,065) $ (85,711) $ 7,568 $ 18,196 $ 9,006
DISCONTINUED OPERATIONS, NET OF TAX(2) 450 (5,973) (397) (13,590) 8,295
--------- --------- --------- --------- ---------
NET (LOSS) INCOME $ (15,615) $ (91,684) $ 7,171 $ 4,606 $ 17,301
========= ========= ========= ========= =========
BASIC (LOSS) EARNINGS PER SHARE
Continuing operations $ (.56) $ (3.00) $ .26 $ .64 $ .32
Discontinued operations .01 (.21) (.01) (.48) .29
--------- --------- --------- --------- ---------
Total $ (.55) $ (3.21) $ .25 $ .16 $ .61
========= ========= ========= ========= =========
DILUTED (LOSS) EARNINGS PER SHARE
Continuing operations $ (.56) $ (3.00) $ .26 $ .64 $ .31
Discontinued operations .01 (.21) (.01) (.48) .29
--------- --------- --------- --------- ---------
Total $ (.55) $ (3.21) $ .25 $ .16 $ .60
========= ========= ========= ========= =========
WEIGHTED AVERAGE NUMBER OF
SHARES OUTSTANDING(3)
Basic 28,609 28,542 28,501 28,361 28,395
========= ========= ========= ========= =========
Diluted 28,609 28,542 28,621 28,539 28,711
========= ========= ========= ========= =========
</TABLE>
<TABLE>
<CAPTION>
As of January 31,
-------------------------------------------------------------
1999 1998 1997(1) 1996(1) 1995(1)
--------- --------- --------- --------- ---------
BALANCE SHEET DATA
- ------------------
<S> <C> <C> <C> <C> <C>
GROSS FINANCE RECEIVABLE $ 115,473 $ 269,690 $ 419,280 $ 299,215 $ 162,016
TOTAL ASSETS 127,292 234,114 332,475 270,083 277,694
NOTES PAYABLE - 83,838 80,200 16,900 22,661
TOTAL STOCKHOLDERS' EQUITY 99,776 115,290 206,985 199,105 192,936
OTHER DATA
- ----------
GROSS LOANS IN FORCE(4) $ 124,314 $ 347,776 $ 494,247 $ 351,312 $ 193,456
PERCENT OF NOTES PAYABLE
TO STOCKHOLDERS' EQUITY - 72.7% 38.7% 8.5% 11.7%
</TABLE>
(1) Data for the years ended and as of January 31, 1997, 1996 and 1995 has been
restated to correct certain accounting reflected in the Company's previously
issued financial statements for those periods. See Note L of Notes to
Consolidated Financial Statements.
(2) See Note K of Notes to Consolidated Financial Statements for further
discussion of discontinued operations.
(3) The weighted average number of shares outstanding has been adjusted to
reflect a 10% stock dividend issued in April 1996.
(4) Gross loans in force represents the total contractual payments (including
payments representing future interest) receivable from the installment loans
which the Company owns, or in which the Company owns an interest through the
purchase of an interest under sharing arrangements with dealers. The amount
includes payments that, if collected, will be remitted to the dealers under
these sharing arrangements (see Note B of Notes to Consolidated Financial
Statements). While not a measure of the Company's loan assets under
generally accepted accounting principles, the Company views gross loans in
force as a measure of the level of its activities and the activities of its
competitors.
11
<PAGE> 14
Item 7. Management's Discussion and Analysis of Financial
- ------- -------------------------------------------------
Condition and Results of Operations
-----------------------------------
GENERAL
- -------
National Auto Credit, Inc., through NAC, Inc., a wholly-owned
subsidiary, invests in sub-prime used automobile consumer loans, which take the
form of installment loans collateralized by the related vehicle. The Company
purchases such loans, or interests in pools of such loans (collectively "loan
investments"), from member dealers. The Company performs the underwriting and
collection functions for all loans it purchases in whole, and also performs such
functions where the member dealer had sold to the Company, and retained for
itself, interests in a pool of loans. The Company's operations enable member
dealers to provide used car purchase financing to customers who have limited
access to more traditional consumer credit sources that might otherwise be
unable to obtain financing. As of January 31, 1999 the Company had a network of
approximately 900 dealers located throughout the United States.
The loans in which the Company invests are high risk, in that the
borrowers are individuals with below average credit quality, and the collateral
is subject to loss, damage, significant declines in value and difficulties of
repossession. Accordingly, each individual loan has a significant risk of not
performing in accordance with its contractual terms. The business in which the
Company participates relies on mitigating this risk by acquiring large numbers
of loans, thus reducing the exposure to the risk of the default on any one
particular loan, and on reasonably estimating the credit losses to be incurred
and setting loan purchase prices accordingly. An inability to reasonably predict
the future performance of loans being purchased, or to set loan purchase prices
that properly reflect those estimates, can significantly increase the risk of
material losses from the business of investing in sub-prime used automobile
loans.
As discussed elsewhere herein, on January 16, 1998, Deloitte & Touche,
the Company's former independent auditors, resigned, advising the Company that
information had come to its attention that led it to no longer be able to rely
on the representations of the then management of the Company. As of July 28,
1999, Deloitte & Touche had not withdrawn its opinion on the Company's 1996 or
1997 financial statements. Following the resignation of Deloitte & Touche, the
Board of Directors formed a Special Committee to investigate, with the
assistance of special independent legal, accounting and auditing experts, the
basis for Deloitte & Touche's decision to resign as the Company's auditors and
to review certain of the Company's accounting records and financial reporting.
As a result of that investigation, a second investigation conducted by a
successor Special Committee, and Grant Thornton's reaudit of the fiscal 1997
financial statements, the Company determined that its previously issued fiscal
1995, 1996 and 1997 financial statements required restatement to correct
accounting that resulted from the failure of the Company to properly consider
information available at the time those financial statements were prepared,
including information that may not have been considered due to certain errors or
irregularities in certain accounting or corporate records. The fiscal 1995, 1996
and 1997 financial statements have been restated, as described in Note L of
Notes to Consolidated Financial Statements. All amounts and percentages in the
following discussions reflect the effects of such restatements.
For the year ended January 31, 1999, the Company incurred a loss from
continuing operations of $16,065,000, and a net loss of $15,615,000 primarily as
the result of a 55.3% decline in revenues to $16,279,000 and the incurrence of
costs of $9,585,000 associated with certain litigation and non-recurring
charges, as discussed below. The decline in revenues was principally due to the
reduction of the size of the Company's loan portfolio. During fiscal 1999 the
Company revised the manner in which it conducted its loan investment operations
in light of the level of credit losses the Company experienced in fiscal 1997
through fiscal 1999. These losses were caused by both the manner in which the
Company enrolled dealers and underwrote loans, and overall trends that developed
in the sub-prime used car loan industry during those years. In particular, the
Company developed a dealer scoring model to allow it to evaluate its dealers and
selectively market its new programs to a smaller number of dealers viewed as
more likely to be the source of higher quality loans, and the Company ceased
purchasing loans from 70% of the dealers that had been enrolled in the Company's
program through January 31, 1998. Additionally, the allegations made and
uncertainties about the Company following the resignation of Deloitte & Touche
caused some dealers to cease to do business with the Company. The Company's lack
of external financing sources during 1999 limited its ability to purchase new
loans to the cash available from the collections from its existing loan
portfolio after the use of those cash flows to pay operating expenses and
existing liabilities. These factors led to a decline in the number of dealers
enrolled in the Company's program and to a decline in the number of loans added.
12
<PAGE> 15
The Company incurred a loss from continuing operations of $85,711,000,
and a net loss of $91,684,000 for the year ended January 31, 1998. The 1998
losses were principally the result of a 43.0% decline in revenues, and a
$75,194,000 increase in the provision for credit losses. The provision for
credit losses increased both as the result of a refinement in the methodology
used to evaluate the adequacy of the allowance for credit losses, and as the
result of significant downward revisions to the Company's estimates of the
future cash flows from its loans made to reflect collection deterioration
experienced in fiscal 1998.
During fiscal 1998 and 1999, the Company was from time to time in
default of the covenants in its bank group and senior note debt agreements. In
the fourth quarter of fiscal 1998 and continuing through the third quarter of
fiscal 1999 the Company entered into a series of amendments to those agreements
to waive the defaults while the Company repaid the outstanding borrowings. The
Company completed the repayment of the borrowings under the bank group facility
and the redemption of the senior notes in November 1998 using the proceeds of
its income tax refund.
The Company obtained no new debt financing during fiscal 1999, and
operated on internally generated cash flows, which resulted from an excess of
collections on installment loans over the investment in new loans as the Company
reduced the size of its operations. As of January 31, 1999 the Company has no
external source of financing, and, therefore, unless or until it is able to
obtain new debt or equity financing, the Company's purchases of loans will be
limited to the cash available from the collections from its existing loan
portfolio after the use of those cash flows to pay operating expenses and
existing liabilities.
The Company and certain of its former and current officers and
directors have been named as defendants in eleven purported class action
lawsuits, which have been consolidated, filed in the United States District
Court for the Northern District of Ohio. The consolidated action seeks money
damages as the result of various alleged frauds and violations of the Securities
Exchange Act of 1934, including misrepresentations about the adequacy of the
Company's allowance for credit losses and its loan underwriting practices.
Additionally, the Securities and Exchange Commission, the United States Attorney
for the Northern District of Ohio and the Federal Bureau of Investigation are
investigating the issues raised as the result of the resignation of Deloitte &
Touche. The Company intends to vigorously defend itself in the consolidated
lawsuit and is fully cooperating with the investigations. Although the Company
has accrued certain costs it expects to incur in defending the civil action and
in responding to the investigations, the ultimate outcome of these matters can
not presently be predicted and the Company has not recorded any provision for
any damages that may result from these actions. The Company's liquidity will be
adversely affected as it incurs costs to defend the consolidated lawsuit and
respond to the investigations. An unfavorable resolution of any of these actions
could have a material adverse effect on the Company's financial position,
results of operations and liquidity.
The Company's financial statements have been prepared on a going
concern basis, which contemplates the realization of assets and the settlement
of liabilities, including commitments and contingent liabilities, in the normal
course of business. The Company incurred losses from continuing operations in
fiscal 1998 and 1999, and continues to incur losses in the current year (fiscal
year 2000). During fiscal 1998 and 1999 the Company did not comply with certain
covenants of its loan agreements. The Company was able to obtain waivers and
extensions and in fiscal 1999 the Company completed the repayment of all of its
operating debt. However, to date the Company has been unable to obtain new debt
financing (see Note C of Notes to Consolidated Financial Statements).
Additionally, the Company is a defendant in significant stockholder litigation
and is the subject of certain regulatory investigations (See Note J of Notes to
Consolidated Financial Statements). These factors raise substantial doubts about
the Company's ability to continue as a going concern and the audit report of
Grant Thornton contains an explanatory paragraph with respect to this matter.
The Company plans to continue to pursue new debt, or equity financing
, for use in funding its operations and the settlement of its liabilities,
including commitments. However, the Company's pending litigation and other
factors may make obtaining such financing difficult. Additionally, the Company
will examine the sale of non-operating assets as a source of capital. There can
be no assurance that capital will be obtained from these sources. In the
interim, or absent obtaining such capital, the Company will restrict its
purchase of new loans to the cash flows available from the collections of its
existing loans after the use of those cash flows to pay operating expenses and
existing liabilities. The Company has a cash balance of approximately
$39,000,000 as of June 30, 1999, and it believes that such cash and the cash
flows from the collection of existing loans will be sufficient for it to pay
operating expenses, existing liabilities, and make some level of new loan
purchases, over the next twelve months.
13
<PAGE> 16
However, there can be no assurance that this plan will be successful.
Additionally, the restrictions on the purchase of new loans inherent in such a
plan would cause the size of the Company's investments in loans, and its
interest income therefrom, to decline over time.
The Company's existing liabilities include the accrual of estimates of
the costs to defend the pending stockholder litigation, and to respond to the
pending regulatory investigations. Such matters represent contingent
liabilities. The ultimate outcome of these matters, including the timing of
their resolution, cannot presently be predicted, and accordingly no provision
has been recorded for any damages that may result from these matters. The
Company intends to vigorously defend the stockholder litigation, and to
cooperate fully with the investigations. However, the need to devote significant
cash flows to satisfy any damages resulting from these matters would have a
significant adverse effect on the Company's continued operation.
As a result of these factors the Company's continuation as a going
concern will ultimately depend on its ability to (i) obtain new debt or equity
financing or other sources of capital which can be invested to achieve
profitable operations through growth in interest income (resulting from growth
in the investments in loans) and the control of expenses, and (ii) resolve the
pending litigation and regulatory investigations. The financial statements do
not include any adjustments relating to the recoverability of assets or the
amount or settlement of liabilities that might be necessary should the Company
be unable to continue as a going concern.
RESULTS OF OPERATIONS
- ---------------------
INTEREST INCOME: The Company's loan investments result from purchases
of installment loans at discounts from the face or contractual amount. Those
discounts reflect both (i) an element of interest income that the Company seeks
to earn on its investment in the loans, and (ii) the Company's assessment, at
the time of purchase, that a portion of the loans it purchases are impaired in
that the loans will not be repaid in accordance with their contractual terms.
At the time of purchase, the Company groups loans into loan pools that
it believes will have common future cash flow characteristics, on the basis of
possessing similar contractual and risk characteristics. Loans are initially
recorded at the cost to purchase the loans, adjusted for any net loan
origination fees and related direct incremental loan origination costs. At the
time of purchase, the Company's net initial investment in the loans is recorded
by establishing as the "gross finance receivable" the contractual cash flows
(including contractual interest) to which the Company is entitled, which is
offset by the difference between the gross finance receivable and the net
initial investment, which is segregated into two components: (i) unearned
income, which represents the difference between the net initial investment and
the Company's estimate of the future cash flows from the gross finance
receivable and (ii) a credit loss discount, which represents the difference
between the Company's estimate of the future cash flows from the gross finance
receivable and its contractual cash flows.
Unearned income is recognized as income over the life of the loans on
the interest method, using for each pool of loans the interest rate that
reflects the difference between the Company's net investment in the loans and
its estimate of the future cash flows therefrom as determined at the time of the
loan purchase. The Company's net investment in each loan pool includes its net
initial investment, any interest income recognized but not yet collected,
reduced by collections and any previously recorded allowance for credit losses.
The following sets forth certain information concerning the Company's
investments in and purchases of loans for fiscal 1995 through fiscal 1999:
<TABLE>
<CAPTION>
Number of
Installment Gross Loans In Number of Enrolled Average Contracts
Balance as of Loans, Net Force(1) Contracts Number of Contract Purchased
January 31, (In Millions) (In Millions) Outstanding Dealers Purchased During Year
----------- ------------- ------------- ----------- ------- --------- -----------
<S> <C> <C> <C> <C> <C> <C>
1995 $120.6 $193.5 28,400 1,400 $8,900 20,500
1996 $222.1 $351.3 53,000 2,300 $8,500 35,900
1997 $283.5 $494.2 70,000 3,100 $9,900 38,000
1998 $152.4 $347.8 52,000 3,000 $8,600 30,000
1999 $ 70.4 $124.3 24,000 900 $8,900 6,000
</TABLE>
14
<PAGE> 17
(1) Gross loans in force represents the total contractual payments (including
payments representing future interest) receivable from the installment loans
which the Company owns, or in which the Company owns an interest through the
purchase of an interest under sharing arrangements with dealers. The amount
includes payments that, if collected, will be remitted to the dealers under
these sharing arrangements (see Note B of Notes to Consolidated Financial
Statements). While not a measure of the Company's loan assets under
generally accepted accounting principles, the Company views gross loans in
force as a measure of the level of its activities and the activities of its
competitors.
Interest income declined to $15,322,000 in fiscal 1999 from $35,304,000
in fiscal 1998, representing a decline of 56.6%. The decline is principally
attributable to the 53.8% decrease in the size of the Company's total net loan
investments, (i.e., the gross finance receivables less the unearned income,
credit loss discount and allowance for credit losses) from $152,447,000 at
January 31, 1998 to $70,401,000 at January 31, 1999. Interest income declined at
a rate slightly greater than the decline in the size of the Company's total loan
investment as a result in a decline in the Company's effective yield on its
loans, calculated as interest income as a percentage of the total net
investments in loans, from 16.2% for fiscal 1998 to 13.8% for fiscal 1999. The
effective yield declined in 1999 because of the Company's more selective
approach to loan underwriting, which meant paying generally higher percentages
of the loans' face or contractual amount for higher quality loans, and the use
of more conservative estimates of future loan cash flows, reflecting the
deterioration in the collection history experienced in 1998. Each of these
factors reduced the amount of the initial loan discount attributed to unearned
income, and thus the interest yield. At January 31, 1999, the Company's total
net loan investment of $70,401,000 has a weighted-average yield of 12.7%.
Interest income declined 37.6% to $35,304,000 in fiscal 1998 from
$56,573,000 in fiscal 1997. The Company's total net loan investments declined
46.2% from $283,498,000 at January 31, 1997 to $152,447,000 at January 31, 1998.
The Company's effective yield on its loans declined from 22.4% for fiscal 1997
to 16.2% for fiscal 1998. The Company's February 1, 1997 refinement of its
methodology for determining its allowance for credit losses, as described below,
caused a portion of the decline in the size of the Company's net loan
investment. This also affected the manner in which the discount at which a loan
is purchased is subsequently included in interest income and was the principal
cause for the decline in the effective yield between fiscal 1997 and 1998.
Currently, the unearned income recorded when the loan is purchased, and
recognized in income over the life of the loan, is based on estimated future
cash flows and not on contractual future cash flows. Additionally, interest
income can only be recognized up to the amount collectable based on the present
value of the future cash flows.
FEES AND OTHER INCOME: Fees and other income includes fees from the
sale of warranty contracts, fees earned for collection services, floorplanning
and enrollment and maintenance fees charged to dealers. The Company discontinued
selling warranty contracts and recording fee income from collection services in
fiscal 1998, as a result of which fees and other income declined from $7,299,000
in fiscal 1997 to $1,092,000 in fiscal 1998 and $957,000 in fiscal 1999. In
fiscal 1999 the Company discontinued floorplanning and, as a result, the level
of fees and other income may decrease in the future.
PROVISION FOR CREDIT LOSSES: Effective February 1, 1997, the Company
refined its methodology for determining the allowance for credit losses to group
loans into pools with similar characteristics and to assess the recoverability
of its loan investments on the basis of the present value of the expected future
cash flows, as discussed in Statement of Financial Accounting Standards ("SFAS")
114 (as amended by SFAS 118), "Accounting by Creditors for Impairment of a
Loan." On a continual basis the Company reviews its estimates of future cash
flows for its loan pools. Such estimates are revised to reflect changes in
historical collection rates, charge-off rates, loan delinquencies and other
economic indicators that serve as the basis for predicting future loan
performance. The Company's net investment in each loan pool is compared to the
present value of the revised estimate of future cash flows, discounted using the
rate at which the Company is recognizing interest income on that pool of loans.
Where the estimated cash flows have been revised downward and, as a result, such
a comparison reflects an excess of the investment over the present value of the
future cash flows, the Company records an allowance for credit losses by a
charge to expense, and also reduces unearned income by a reclassification to the
credit loss discount so that future interest income will reflect the same
original annual interest rate on the net investment in the loan pool. In those
instances where a revised estimate of future cash flows indicates an increase in
estimated cash flows over the previous estimate, the Company first reverses into
income any previously recorded provision for credit losses, and then increases
the rate at which future interest income is recognized by a reclassification
from the credit loss discount to unearned income.
Prior to the Company's February 1, 1997 refinement of its method of
determining the allowance for credit losses described above, the Company
evaluated the adequacy of its allowance for credit losses using a method
generally similar to that described previously, except that the estimated cash
flows were compared to the Company's
15
<PAGE> 18
net investment on an undiscounted basis. Information concerning the changes in
the allowance for credit losses, and the provision for credit losses charged to
expense, is set forth in Note B of Notes to the Consolidated Financial
Statements.
The provision for credit losses was $2,961,000 for fiscal 1999 as
compared to $116,049,000 for fiscal 1998. The fiscal 1998 provision was
influenced by certain factors and events, as discussed below, and is therefore
not comparable to the 1999 provision, or indicative of the level of future
credit loss provisions. At January 31, 1999, the allowance for credit losses was
19.3% of the Company's net investment in loans, before the allowance, as
compared to 28.8% at January 31, 1998. In determining the allowance for credit
losses, the Company used weighted average estimates of the future cash flows
from its loans, expressed as a percentage of the contractual amounts receivable,
of 57.3% at January 31, 1999 and 57.4% at January 31, 1998. The allowance for
credit losses as a percentage of the net investment in the loans before the
allowance declined from January 31, 1998 to January 31, 1999 as the result of
the change in the Company's charge-off policy. Effective November 1, 1998, the
Company revised its charge-off policy to charge-off loans as uncollectible at
the earlier of (i) the repossession of the collateral, or (ii) a loan becoming
180 days contractually past due. Previously the Company's policy was to
charge-off loans when they became 270 days past due on a recency basis. The
change in the charge-off policy, while affecting the amount of gross finance
receivables, the allowance for credit losses, and the credit loss discount did
not have any material affect on net (loss) income.
The fiscal 1998 provision for credit losses included $41,667,000
resulting from the Company's February 1, 1997 refinement of its method of
determining the allowance for credit losses, as described above. The remaining
provision of $74,382,000 reflected downward revisions in the Company's estimates
of the future cash flows from its loans, to a weighted average of 57.4% of the
contractual amount at January 31, 1998 from a weighted average of 67.2% at
January 31, 1997. The downward 1998 revision reflects both (i) deterioration in
collections experienced by the Company in 1998, in particular with respect to
loans purchased in fiscal 1997, and (ii) the Company's use of more detailed
historical collections information, which became available in 1998 as the result
of enhancements in the Company's information systems. The Company believes that
it, and other companies in the sub-prime used car finance business, experienced
collection deterioration in the 1997-1998 period as the result of the rapid
expansion of loan portfolios. To capitalize on economies of scale, the Company
in 1997 increased its loan portfolio 41.3%, from $245,382,000 at January 31,
1996 to $346,805,000, at January 31, 1997. Efforts to expand the loan portfolio
led to the purchase of loans that possessed greater credit risks. These greater
credit risks were underestimated when the Company initially underwrote and
recorded the loans, and did not become fully evident until later in the loan
maturation cycle.
The fiscal 1997 provision for credit losses of $40,855,000 results from
the use of a weighted average estimate of future cash flows of 67.2%. The
allowance for credit losses was 18.3% of the Company's net investment in loans
at January 31, 1997. As discussed above, the 1997 allowance for credit losses
does not reflect the discounting of estimated future cash flows.
OPERATING EXPENSES: Operating expenses include sales and marketing
costs, collection costs and other operating costs. Operating expenses declined
to $11,078,000 for fiscal 1999 from $13,527,000 for fiscal 1998, but increased
as a percentage of revenues, due to the decline in revenues, from 37.2% of
revenues in fiscal 1998 to 68.1% in fiscal 1999. Operating expenses were
$5,501,000 or 8.6% of revenues in 1997.
The majority of the costs that comprise operating expenses are variable
in nature and will increase and decrease with the level of the Company's loan
purchase and collection activities. However, changes in the size of the
Company's loan portfolio will not immediately allow personnel reductions in
certain functions. Accordingly, operating expenses fell at a rate less than the
decline in revenues in 1999, and the magnitude and timing of reductions in
operating expenses will generally be less, and later, than declines in revenues.
GENERAL AND ADMINISTRATIVE: General and administrative expenses include
costs of executive, accounting, and legal personnel, occupancy, legal,
professional, insurance, and other general corporate overhead costs. General and
administrative expenses declined to $4,938,000 for fiscal 1999 from $5,746,000
for fiscal 1998, but increased as a percentage of revenues, due to the decline
in revenues, from 15.8% in fiscal 1998 to 30.3% in fiscal 1999. General and
administrative expenses were $5,167,000 or 8.1% of revenues in 1997.
16
<PAGE> 19
General and administrative expenses are more fixed in nature than
operating expenses and are not expected to vary as directly with revenues. The
decrease in general and administrative costs in 1999, as compared to 1998, was
due to lower personnel and occupancy costs offset by an increase in professional
services. The increase in general and administrative expenses in 1998, as
compared to the fiscal 1997, was due to higher professional fees.
LITIGATION AND NON-RECURRING CHARGES: As previously discussed,
following the resignation of Deloitte & Touche, the Company instituted
investigations of its previous financial reporting, and underwent changes in
management. In fiscal 1998 the Company accrued initial estimates of litigation
and non-recurring costs. The Company has $3,000,000 accrued for such future
costs as of January 31, 1999. Included in the results of operations for fiscal
1999 and 1998, respectively, are the following costs related to the
investigations and management changes (in thousands):
<TABLE>
<CAPTION>
Years ended January 31,
-----------------------
1999 1998
------ ------
<S> <C> <C>
Legal fees relating to defending litigation $2,545 $3,152
Loan waiver and prepayment fees 1,483 3,815
Crisis management consulting 3,898 58
Fees for special independent audits 845 305
Costs of special investigations 654 250
Other 160 65
------ ------
$9,585 $7,645
====== ======
</TABLE>
INTEREST EXPENSE: Interest expense decreased by $2,572,000 in fiscal
1999, to $3,726,000 from $ 6,298,000 in fiscal 1998, principally as a result of
the decline in the Company's level of outstanding debt, which declined from an
average of $86,338,000 in fiscal 1998 to an average of $45,370,000 in fiscal
1999. The Company's debt was reduced with the cash flow from the net reduction
in the size of its loan portfolio and the receipt of an income tax refund. The
effect of the lower level of outstanding debt was partially offset by an
increase in the Company's average interest rate, which increased to 9.5% for
fiscal 1999 from 6.8% in fiscal 1998. Fiscal 1999 interest expense was also
reduced by $855,000 in interest income generated by short-term marketable
securities.
In fiscal 1998, interest expense increased by $3,585,000 to $6,298,000
from $2,713,000 in 1997 principally as the result of the increase in the
Company's level of borrowings, from an average of $42,436,000 in fiscal 1997 to
an average of $86,338,000 in fiscal 1998. The Company's effective borrowing rate
also increased from 6.0% in fiscal year 1997 to 6.8% in 1998.
INCOME TAXES: The Company recorded a tax provision of $56,000 for
fiscal 1999 and a tax benefit of $27,158,000 in fiscal 1998. The 1998 benefit
resulted from the carryback of the Company's 1998 loss against prior years'
taxable income. As a result of the carryback, the Company was entitled to a
$54,877,000 refund of previously paid income taxes, which was recorded at
January 31, 1998 and received substantially all in fiscal 1999. The Company's
1998 and 1999 losses also produced net operating loss carryforwards, which can
be used to reduce taxes payable on future taxable income. The Company has
provided a full valuation allowance against its net operating loss carryforward
and other net deferred tax asset items due to the uncertainty of their future
realization (see Note E of Notes to Consolidated Financial Statements).
The Company recorded a provision for income taxes of $2,068,000 in
1997. The effective tax rate in 1997 was 21.5%.
DISCONTINUED OPERATIONS: Prior to fiscal 1997 the Company also engaged
in the automobile rental business, including the subsequent sale of cars when
retired from its rental fleet. The automobile rental operations, conducted under
the names Agency Rent-A-Car, Altra Auto Rental and Automate Auto Rental, rented
vehicles principally on a short-term basis to the insurance replacement market.
The Company disposed of its rental fleet and this operation in fiscal 1996
through the sale of certain assets and through certain leases to a national car
rental company. All liabilities related to the discontinued rental business,
principally self-insurance claims, were retained by the Company. National Motors
was a Company owned dealership which sold vehicles retired from the rental
fleet. The Company discontinued the operations of National Motors in fiscal
1997.
17
<PAGE> 20
The fiscal 1997 loss from discontinued operations of $397,000 includes
the operating results of National Motors. Also, included in the 1997 results are
a charge of $2,800,000 relating to class action overtime litigation (see Note K
of Notes to Consolidated Financial Statements), and a provision of $3,029,000
for self-insurance liabilities (see Note K of Notes to Consolidated Financial
Statements). The tax benefit of $10,065,000 allocated to discontinued
operations, and a tax benefit of $979,000 offset against the loss on the
disposal of the operations, includes adjustments to previously recorded deferred
taxes of $6,715,000 for differences between the financial reporting and tax
basis of assets and liabilities that reversed upon the disposal of the
operations.
The fiscal 1998 loss from discontinued operations of $5,973,000
primarily reflects the effect of the Company's recording in that year of
additional self-insurance losses and the accrual of $2,720,000 payable under the
Company's settlement with the U.S. Department of Labor (see Note J of Notes to
Consolidated Financial Statements). The fiscal 1998 loss included income tax
expense of $2,690,000.
The fiscal 1999 income of $450,000 represents the effects of refunds
from a funded workers' compensation partnership related to the discontinued
operations.
On an ongoing basis the Company's results of operations and liquidity
are unlikely to be affected by the discontinued operations except for the
effects of the payment of self-insurance claims on the Company's liquidity, and
the effects on the results of operations of any additional revisions to the
Company's estimates for its self-insurance liabilities. The Company's aggregate
self-insurance claims liability of $ 4,880,000 as of January 31, 1999 is subject
to further revision as new information is available, and such revisions may be
material due to the uncertainties inherent in the estimation process.
LIQUIDITY AND CAPITAL RESOURCES
- -------------------------------
During fiscal year 1999, the Company generated $33,402,000 in cash
flows from operations, and additionally generated $79,734,000 of cash flows from
the net reduction in the size of its loan portfolio. The $33,402,000 of cash
flows from operations included the benefit of a net refund of $52,079,000 of
previously paid income taxes generated by the carryback of the Company's 1998
losses. The cash flows generated by these sources were used in 1999 to repay
$83,838,000 of debt outstanding under the Company's bank group facility and
senior notes, and to retain a cash balance of $32,109,000 at January 31, 1999.
During fiscal 1998 and 1999, the Company was from time to time in default of the
covenants in its bank group and senior note debt agreements. In the fourth
quarter of fiscal 1998 continuing through the third quarter of fiscal 1999 the
Company entered into a series of amendments to those agreements to waive the
defaults while the Company repaid the outstanding borrowings. The Company
completed the repayment of the borrowings under the bank group facility and the
redemption of the senior notes in November 1998.
In fiscal 1998, the Company generated $1,759,000 in cash flow from
operations, which was offset by $1,973,000 in investing cash outflows, primarily
due to the payments on affordable housing investments. The Company increased its
cash position from January 31, 1997 to January 31, 1998 by $2,926,000,
principally as the result of net financing cash flows from borrowings of
$3,140,000.
In 1997 the Company utilized $70,088,000 of cash for investing
activities, principally to increase its loan portfolio. The cash was obtained
from increased borrowings, which generated financing cash flows of $64,009,000,
and operating cash flows of $6,170,000.
The Company believes that the cash on hand of $32,109,000 at January
31, 1999, plus cash flows from loan collections, will be sufficient to fund its
activities through January 31, 2000. However, as previously discussed, the
Company's lack of external financing sources will limit its ability to purchase
new loans to the net cash available from the collections from its existing loan
portfolio after paying operating expenses and existing liabilities, including
costs associated with pending civil litigation and investigations. Such
limitations may have an adverse impact on the Company's liquidity and results of
operations.
18
<PAGE> 21
YEAR 2000
- ---------
The "Year 2000" issue involves the ability of computer systems to
properly recognize date sensitive information when the year changes to 2000.
Systems that do not properly recognize such information could generate erroneous
data or cause a system to fail.
The Company has conducted a review of its computer systems, and has
identified the remedial actions necessary to make its systems Year 2000
compliant. The remedial actions that have been identified as necessary are
currently underway. In the Company's view, such remedial actions are not
complex, and accordingly the Company believes that it will not encounter
significant difficulties in completing the steps and achieving Year 2000
compliance in time to train employees and test systems before the end of
calendar 1999. The costs of Year 2000 compliance, which are being expensed as
incurred, are not expected to be material. However, there can be no guarantee
that the Company will not encounter unexpected Year 2000 compliance problems
that will adversely affect its operations.
The Company has also reviewed its exposure to the risk that significant
providers of goods and services might not achieve Year 2000 compliance. In
particular, the Company would be at risk to adverse effects on its operations if
the financial institutions which process the Company's disbursements and loan
cash collections were unable to achieve Year 2000 compliance. The Company has
initiated formal communications with those institutions, and on the basis of
those communications believes that it is unlikely that its operations will be
adversely affected by the lack of Year 2000 compliance by these entities.
However, there can be no guarantee that one of the Company's significant
providers of goods and services will not encounter Year 2000 compliance problems
which will adversely affect the Company.
NEW ACCOUNTING PRONOUNCEMENTS
- -----------------------------
In June 1998, the Financial Accounting Standards Board issued SFAS 133,
"Accounting for Derivative Instruments and Hedging Activities"(as amended by
SFAS 137). SFAS 133 must first be applied in the first quarter of fiscal years
that begin after June 15, 2000 (the first quarter of fiscal 2002 for the
Company) and in general requires that entities recognize all derivative
financial instruments as assets or liabilities, measured at fair value, and
include in earnings the changes in the fair value of such assets and
liabilities. SFAS 133 also provides that changes in the fair value of assets or
liabilities being hedged with recognized derivative instruments be recognized
and included in earnings. The Company does not presently utilize derivative
instruments, either for hedging or other purposes, and therefore anticipates
that the adoption of the requirements of SFAS 133 will not have a material
affect on its financial statements.
OTHER
- -----
The Company's exposure to the risks of inflation is generally limited
to the potential impact of inflation on the operating and general and
administrative expenses. To date inflation has not had a material adverse impact
on the Company.
The Company does not utilize futures, options or other derivative
financial instruments.
FORWARD-LOOKING STATEMENTS
- --------------------------
The preceding paragraphs contain forward-looking comments that are
forward-looking statements within the meaning of the Private Securities
Litigation Reform Act of 1995. These comments are subject to, and the actual
future results may be impacted by, the cautionary limitations and factors
outlined in the following narrative comments.
19
<PAGE> 22
Forward-looking statements are inherently subject to various risks and
uncertainties with respect to expectations for future periods. The risks and
uncertainties include future developments concerning the Company's relationships
with the dealers from which it purchases loans, the availability of capital and
other factors which may affect the volume of loan purchases by the Company, the
Company's collection experience, the impact of competition, adverse changes in
applicable laws and regulations, adverse changes in economic conditions and
adverse developments or effects of the litigation or investigations now pending.
Significant changes concerning any of these factors could cause future results
to be materially different that any future results discussed in any
forward-looking comments contained herein.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk
- -------- ----------------------------------------------------------
Like virtually all commercial enterprises, the Company can be exposed
to the risk ("market risk") that the cash flows to be received or paid relating
to certain financial instruments could change as a result of changes in interest
rate, exchange rates, commodity prices, equity prices and other market changes.
The Company does not engage in trading activities and does not utilize
interest rate swaps or other derivative financial instruments or buy or sell
foreign currency, commodity or stock indexed futures or options. Accordingly,
the Company is not exposed to market risk from these sources.
The Company's loan portfolio is comprised of fixed rate financing
agreements with high credit risk consumers. The rates on these loan agreements
cannot be increased for changes in market conditions, and accordingly these
loans are not subject to market risk.
As of January 31, 1999 the Company has no interest bearing debt, and
accordingly no market risk associated with increases in interest costs resulting
from changes in market rates.
20
<PAGE> 23
Item 8. Financial Statements and Supplementary Data
- ------- -------------------------------------------
REPORT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
To the Board of Directors and Stockholders of
National Auto Credit, Inc. and Subsidiaries
Solon, Ohio
We have audited the accompanying consolidated balance sheets of
National Auto Credit, Inc. and Subsidiaries as of January 31, 1999 and 1998 and
the related consolidated statements of operations, stockholders' equity and cash
flows for each of the three years in the period ended January 31, 1999. Our
audits also included the financial statement schedule listed in the Index at
Item 14(a)(2). These financial statements and financial statement schedule are
the responsibility of the Company's management. Our responsibility is to express
an opinion on these financial statements and financial statement schedule based
on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of National
Auto Credit, Inc. and Subsidiaries as of January 31, 1999 and 1998, and the
results of their operations and their cash flows for each of the three years in
the period ended January 31, 1999 in conformity with generally accepted
accounting principles. Also, in our opinion, the financial statement schedule,
when considered in relation to the basic consolidated financial statements taken
as a whole, presents fairly in all material respects, the information set forth
therein.
The accompanying consolidated financial statements have been prepared
assuming that the Company will continue as a going concern. As discussed in Note
M to the financial statements, the Company incurred losses from continuing
operations for the years ended January 31, 1999 and 1998, and as the result of
loan covenant violations was required in 1999 to repay its operating debt and
has been unable to obtain new debt financing. Additionally, the Company is a
defendant in significant stockholder litigation, and is subject to certain
regulatory investigations. All of these matters raise substantial doubt about
the Company's ability to continue as a going concern. Management's plans in
regard to these matters are also described in Note M. The consolidated financial
statements do not include any adjustments that might result from the outcome of
these uncertainties.
/s/Grant Thornton LLP
Cleveland, Ohio
June 30, 1999
21
<PAGE> 24
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE AMOUNTS)
<TABLE>
<CAPTION>
January 31,
----------------------
1999 1998
--------- ---------
<S> <C> <C>
ASSETS
Cash and cash equivalents $ 32,109 $ 4,682
Installment loans, net (Note B) 70,401 152,447
Property and equipment, net of accumulated
depreciation of $5,262 and $7,188, respectively 8,558 8,615
Affordable housing investments (Note D) 10,270 10,034
Income taxes refundable 3,295 54,877
Other assets 2,659 3,459
--------- ---------
TOTAL ASSETS $ 127,292 $ 234,114
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
LIABILITIES
Self-insurance claims (Note K) $ 4,880 $ 9,144
Notes payable (Note C) -- 83,838
Accrued income taxes (Note E) 6,510 5,955
Other liabilities (Note D) 16,126 19,887
--------- ---------
27,516 118,824
COMMITMENTS AND CONTINGENCIES (Note J) -- --
STOCKHOLDERS' EQUITY (Notes F and G)
Preferred stock - $.05 par value,
authorized 2,000,000 shares,
none issued -- --
Common stock - $.05 par value,
authorized 40,000,000 shares, issued
29,982,512 and 29,906,112 shares, respectively 1,500 1,495
Additional paid-in capital 166,168 166,072
Retained deficit (55,789) (40,174)
Treasury stock, at cost, 1,345,968 shares (12,103) (12,103)
--------- ---------
99,776 115,290
--------- ---------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 127,292 $ 234,114
========= =========
</TABLE>
See notes to consolidated financial statements.
22
<PAGE> 25
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
Years Ended January 31,
-----------------------------------
1999 1998 1997
--------- --------- ---------
(Restated)
(Note L)
<S> <C> <C> <C>
REVENUE
Interest income $ 15,322 $ 35,304 $ 56,573
Fees and other income 957 1,092 7,299
--------- --------- ---------
Total 16,279 36,396 63,872
COSTS AND EXPENSES
Provision for credit losses 2,961 116,049 40,855
Operating 11,078 13,527 5,501
General and administrative 4,938 5,746 5,167
Litigation and non-recurring charges 9,585 7,645 --
Interest 3,726 6,298 2,713
--------- --------- ---------
Total 32,288 149,265 54,236
--------- --------- ---------
(LOSS) INCOME FROM CONTINUING OPERATIONS
BEFORE INCOME TAXES (16,009) (112,869) 9,636
Provision (benefit) for income taxes (Note E) 56 (27,158) 2,068
--------- --------- ---------
(LOSS) INCOME FROM CONTINUING OPERATIONS (16,065) (85,711) 7,568
DISCONTINUED OPERATIONS, NET OF TAX (Note K) 450 (5,973) (397)
--------- --------- ---------
NET (LOSS) INCOME $ (15,615) $ (91,684) $ 7,171
========= ========= =========
BASIC AND DILUTED (LOSS) EARNINGS PER SHARE
Continuing operations $ (.56) $ (3.00) $ .26
Discontinued operations .01 (.21) (.01)
--------- --------- ---------
Net (loss) earnings per share $ (.55) $ (3.21) $ .25
========= ========= =========
WEIGHTED AVERAGE NUMBER OF SHARES
OUTSTANDING (000's)
Basic 28,609 28,542 28,501
========= ========= =========
Diluted 28,609 28,542 28,621
========= ========= =========
</TABLE>
See notes to consolidated financial statements.
23
<PAGE> 26
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
YEARS ENDED JANUARY 31, 1999, 1998 AND 1997
(IN THOUSANDS)
<TABLE>
<CAPTION>
Common Stock Foreign
----------------------- Additional Retained Currency
Par Paid-In Earnings Translation Treasury
Shares Value Capital (Deficit) Adjustment Stock Total
--------- --------- ---------- --------- ----------- -------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE,
FEBRUARY 1, 1996,
as previously
reported 27,183 $ 1,359 $ 128,133 $ 92,738 $ (1,349) $ (11,622) $ 209,259
Prior period
adjustment (Note L) (11,503) 1,349 (10,154)
--------- --------- --------- --------- --------- --------- ---------
BALANCE,
FEBRUARY 1, 1996,
as restated 27,183 1,359 128,133 81,235 -- (11,622) 199,105
Net income, as restated 7,171 7,171
Stock issued under
benefit plans 74 4 710 714
Stock dividend issued 2,589 129 36,762 (36,896) (5)
--------- --------- --------- --------- --------- --------- ---------
BALANCE,
JANUARY 31, 1997,
as restated 29,846 1,492 165,605 51,510 -- (11,622) 206,985
Net loss (91,684) (91,684)
Stock issued under
benefit plans 60 3 467 470
Treasury stock
purchases (481) (481)
--------- --------- --------- --------- --------- --------- ---------
BALANCE,
JANUARY 31, 1998 29,906 1,495 166,072 (40,174) -- (12,103) 115,290
Net loss (15,615) (15,615)
Stock issued under
benefit plans 77 5 96 101
BALANCE, --------- --------- --------- --------- --------- --------- ---------
JANUARY 31, 1999 29,983 $ 1,500 $ 166,168 $ (55,789) $ -- $ (12,103) $ 99,776
========= ========= ========= ========= ========= ========= =========
</TABLE>
See notes to consolidated financial statements.
24
<PAGE> 27
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
Years Ended January 31,
-----------------------------------
1999 1998 1997
--------- --------- ---------
(Restated)
(Note L)
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net (Loss) Income $ (15,615) $ (91,684) $ 7,171
Adjustments to reconcile net (loss) income to net cash
provided by operating activities:
Depreciation and amortization 1,296 1,897 3,333
Accrued interest income -- -- (13,598)
Provision for credit losses 2,961 116,049 40,855
Loss on disposal of rental operations 88 1,126 35
Deferred income taxes -- 23,675 (23,123)
Changes in operating assets and liabilities:
Accounts receivable -- -- 1,180
Accrued income tax/refundable 52,137 (54,979) (838)
Other liabilities (4,722) 7,395 (1,213)
Self-insurance claims (4,352) (10,427) (7,819)
Other operating assets and liabilities, net 1,609 8,707 187
--------- --------- ---------
Net cash provided by operating activities 33,402 1,759 6,170
--------- --------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES
Principal collected on gross finance receivable 105,950 131,283 102,763
Purchase of loans (26,216) (130,753) (180,607)
Proceeds from sale of rental automobiles -- -- 11,155
Purchase of dealership inventory -- -- (471)
Purchase of other property and equipment (833) (940) (1,258)
Purchase of affordable housing investments (1,219) (1,622) (1,994)
Purchase of other rental automobiles -- -- (115)
Other investing activities, net 80 59 439
--------- --------- ---------
Net cash provided by (used in) investing activities 77,762 (1,973) (70,088)
--------- --------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES
Net borrowings (payments) on operating debt and notes payable (83,838) 3,638 63,300
Payments to acquire treasury stock -- (481) --
Stock issued under benefit plans 101 470 714
Other financing activities, net -- (487) (5)
--------- --------- ---------
Net cash (used in) provided by financing activities (83,737) 3,140 64,009
--------- --------- ---------
Increase in cash and cash equivalents 27,427 2,926 91
Cash and cash equivalents at beginning of year 4,682 1,756 1,665
--------- --------- ---------
Cash and cash equivalents at end of year $ 32,109 $ 4,682 $ 1,756
========= ========= =========
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION
Interest paid $ 5,646 $ 5,506 $ 2,308
========= ========= =========
Income taxes paid (refunded) $ (52,079) $ 6,508 $ 15,901
========= ========= =========
</TABLE>
See notes to consolidated financial statements.
25
<PAGE> 28
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED JANUARY 31, 1999, 1998 AND 1997
NOTE A - Summary of Significant Accounting Policies
------------------------------------------
NATURE OF OPERATIONS AND CONCENTRATIONS:
National Auto Credit, Inc. (the "Company"), a financial services
company, began operations in 1969. Since October 1992, the Company has operated
as an alternative-financing source for independent automobile dealerships
throughout the United States. The primary business of the Company is to invest
in sub-prime used automobile consumer loans, which take the form of installment
loans collateralized by the related vehicle. The Company purchases such loans,
or interests in pools of such loans (collectively "loan investments") from
member dealerships. The Company performs the underwriting and collections
functions for all loans it purchases in whole, and also performs such functions
where the member dealer had sold to the Company, and retained for itself,
interests in a pool of loans. The Company's operations enable member dealers to
provide used car purchase financing to customers who have limited access to more
traditional consumer credit sources and as a result might otherwise be unable to
obtain financing.
The Company's realization of its investments in loan investments, and
interest income therefrom, is dependent on the ability of the customers to repay
the installment notes. Economic conditions in the geographic area in which a
customer resides can affect repayment. Loans and interest in pools of loans are
purchased from dealers throughout the United States. No individual dealer is the
source of more than 2% of the Company's loan investments. From time to time
certain states represent the source of significant portions of the Company's
loan investments, and thus geographical concentrations of credit risk. As of
January 31, 1999, 12.1% and 10.9% of the Company's loan investments relate to
consumers in North Carolina and Texas. The Company attempts to mitigate its
credit risk by retaining a security interest in the vehicle financed by the
loan.
PRINCIPLES OF CONSOLIDATION:
The consolidated financial statements include the amounts of the
Company and its wholly-owned subsidiaries. All material intercompany accounts
and transactions have been eliminated in consolidation.
ESTIMATES:
The preparation of financial statements and the accompanying notes
thereto, in conformity with generally accepted accounting principles, requires
management to make estimates and assumptions that affect reported amounts of
assets and liabilities and disclosure of contingent assets and liabilities at
the date of the financial statements and reported amounts of revenues and
expenses during the respective reporting periods. Actual results could differ
from those estimates.
CASH EQUIVALENTS:
All highly liquid investments, such as commercial paper, U.S. treasury
bills and certificates of deposits with initial maturities of three months or
less are considered to be cash equivalents. Cash equivalents are stated at cost,
which approximates the market value.
INSTALLMENT LOANS, INTEREST INCOME AND ALLOWANCE FOR CREDIT LOSSES:
The Company's loan investments result from purchases of installment
loans at discounts from the face or contractual amount. Those discounts reflect
both (i) an element of interest income that the Company seeks to earn on its
investment in the loans, and (ii) the Company's assessment, at the time of
purchase, that a portion of the loans it purchases are impaired in that the
loans will not be repaid in accordance with their contractual terms.
At the time of purchase, the Company groups loans into loan pools that
it believes will have common future cash flow characteristics, on the basis of
possessing similar contractual and risk characteristics. Loans are initially
recorded at the cost to purchase the loans, adjusted for any net loan
origination fees and related direct incremental loan origination
26
<PAGE> 29
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED JANUARY 31, 1999, 1998 AND 1997
NOTE A - Summary of Significant Accounting Policies (cont.)
--------------------------------------------------
costs. At the time of purchase, the components of the Company's net initial
investment in the loans is recorded by establishing as the "gross finance
receivable" the contractual cash flows (including contractual interest) to which
the Company is entitled, which is offset by the difference between the gross
finance receivable and the net initial investment, which is segregated into two
components; (i) unearned income, which represents the difference between the net
initial investment and the Company's estimate of the future cash flows from the
gross finance receivable, and (ii) a credit loss discount, which represents the
difference between the Company's estimate of the future cash flows from the
gross finance receivable and its contractual cash flows.
Prior to mid-1999, the majority of the Company's loan investments took
the form of the Company's purchase of interests in pools of loans, which were
made under sharing agreements between the Company and individual dealers, rather
than the current program whereby the Company is purchasing whole loans. In
general, the sharing agreements provided that the dealer would receive an
initial payment ("the dealer advance") from the Company of a percentage of the
contractual principal in return for which the Company would be entitled to
retain, after collection costs, (i) 20% of all collections from that dealer's
loans, and (ii) the remaining 80% of the collections from that dealer's loans
until the Company recovered all of that dealer's advances, computed on an
aggregate basis for all loans covered by the sharing agreement with that dealer.
The dealer advance represented the Company's net initial investment, which was
recorded in the manner described in the preceding paragraph based on the portion
of the pools of loans the Company was entitled to under such sharing agreements
(i.e., contractual cash flows from the loans net of the contractual cash flows
to which the dealer would be entitled).
Unearned income is recognized in income over the life of the loans on
the interest method, using for each pool of loans the interest rate that
reflects the difference between the Company's net investment in the loans and
its estimate of the future cash flows therefrom, as determined at the time of
the loan purchase. The Company's net investment in each loan pool includes its
net initial investment, any interest income recognized but not yet collected,
reduced by collections and any previously recorded allowance for credit losses.
Effective February 1, 1997, the Company refined its methodology for
estimating allowance for credit losses to group loans into pools with similar
characteristics and to assess the recoverability of its loan investments on the
basis of the present value of the expected future cash flows, as discussed in
Statement of Financial Accounting Standards ("SFAS") 114 (as amended by SFAS
118), "Accounting by Creditors for Impairment of a Loan." On a continual basis,
the Company reviews its estimates of future cash flows for its loan pools. Such
estimates are revised to reflect changes in historical collection rates,
charge-off rates, loan delinquencies and other economic indicators that serve as
the basis for predicting future loan performance. The Company's net investment
in each loan pool is compared to the present value of the revised estimate of
future cash flows, discounted using the rate at which the Company is recognizing
interest income on that pool of loans. Where the estimated cash flows have been
revised downward and as a result such a comparison reflects an excess of the
investment over the present value of the future cash flows, the Company records
an allowance for credit losses by a charge to expense. The Company also reduces
unearned income by a reclassification to the credit loss discount so that future
interest income will reflect the original annual interest income rate on the net
investment in the loan pool. In those instances where a revised estimate of
future cash flows indicates an increase in estimated cash flows over the
previous estimate, the Company first reverses into income any previously
recorded allowance for credit losses, and then increases the rate at which
future interest income is recognized by a reclassification from the credit loss
discount to unearned income.
Prior to the Company's February 1, 1997 refinement of its method of
determining the allowance for credit losses method described above, the Company
evaluated the adequacy of its allowance for credit losses using a method
generally similar to that described above, except that the estimated cash flows
were compared to the Company's net investment on an undiscounted basis. The
effect of utilizing discounting consistent with SFAS 114 was $41,667,000, which
is included in the provision for credit losses recorded in fiscal 1998.
27
<PAGE> 30
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED JANUARY 31, 1999, 1998 AND 1997
NOTE A - Summary of Significant Accounting Policies (cont.)
--------------------------------------------------
The Company's policy, effective November 1, 1998, is to charge-off
loans as uncollectible at the earlier of (i) the repossession of the collateral,
or (ii) a loan becoming 180 days contractually past due. From November 1, 1997
until October 31, 1998, loans were charged-off once they became 270 days past
due on a recency basis. Prior to November 1, 1997, loans were charged-off once
they became one year contractually past due. Loan charge-offs are recorded by
eliminating the remaining gross finance receivable against the allowance for
credit losses and the credit loss discount on a pro-rata basis. The changes in
the Company's charge-off policy did not have any material affect on net (loss)
income.
Also see Note B.
FEES AND OTHER INCOME:
Fees and other income includes non-refundable enrollment fees which,
prior to fiscal 1999, the Company charged each dealer upon its acceptance into
the Company's program, and annual maintenance fees charged to the member
dealers. Such fees were deferred, as were any incremental direct costs
associated with the initial enrollment of the dealer, and recognized in income
on a straight-line basis over twelve months.
Fees and other income also include fees earned on collections, sale of
warranty contracts and floorplanning. The Company had discontinued floorplanning
by the end of fiscal 1999 and discontinued fees earned on collections, and the
sale of warranty contracts, in fiscal 1998.
PROPERTY AND EQUIPMENT:
Property and equipment is stated at cost, and is depreciated using the
straight-line method over its estimated useful life. The most significant
components of property and equipment are buildings and computer equipment, which
are generally depreciated over 30 and 5 years, respectively.
INCOME TAXES:
Deferred income taxes are provided for all temporary differences
between the book and tax basis of assets and liabilities. Deferred income taxes
are adjusted to reflect new tax rates when they are enacted into law. The effect
on deferred tax assets and liabilities of a change in tax rates is recognized in
income in the period that includes the enactment date. A valuation allowance is
recognized if it is anticipated that some or all of a net deferred tax asset may
not be realized. See Note E.
ACCOUNTING FOR STOCK-BASED COMPENSATION:
The Company accounts for stock options and awards in accordance with
Statement of Financial Accounting Standards No. 123, "Accounting for Stock-Based
Compensation," ("SFAS 123"), which allows companies to continue to recognize
compensation expense for grants to employees pursuant to Accounting Principles
Board Opinion No. 25, ("APB 25"), "Accounting for Stock Issued to Employees" but
requires companies to disclose the effect on net income (loss) and earnings
(loss) per share had the Company adopted the provisions of SFAS 123 requiring
the recognition of compensation expense based on the fair value of the options
or awards. See Note G.
EARNINGS PER SHARE:
The Company adopted the requirements of SFAS 128, "Earnings Per Share,"
effective with the fourth quarter of fiscal 1998. As required by SFAS 128,
previously reported earnings per share amounts have been restated.
Basic earnings per share is computed by dividing net income (loss) by
the weighted-average number of common shares outstanding for the year. Dilutive
earnings per share for all years presented is the same as basic earnings per
share because the inclusion of common stock equivalents (stock options) would
have an antidilutive effect on loss per share for fiscal 1999 and 1998 and is
immaterial to the earnings per share for fiscal 1997.
28
<PAGE> 31
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED JANUARY 31, 1999, 1998 AND 1997
NOTE A - Summary of Significant Accounting Policies (cont.)
--------------------------------------------------
COMPREHENSIVE INCOME:
During fiscal 1999, the Company adopted SFAS 130, "Reporting
Comprehensive Income." SFAS 130 established standards for reporting and
displaying comprehensive income and its components in a full set of financial
statements. During the years presented, the Company had no components of Other
Comprehensive Income. Accordingly, the Company has not presented a separate
statement of comprehensive income.
NEW ACCOUNTING PRONOUNCEMENTS:
In June 1998, the Financial Accounting Standards Board issued SFAS 133,
"Accounting for Derivative Instruments and Hedging Activities"(as amended by
SFAS 137). SFAS 133 must first be applied in the first quarter of fiscal years
that begin after June 15, 2000 (the first quarter of fiscal 2002 for the
Company) and in general requires that entities recognize all derivative
financial instruments as assets or liabilities, measured at fair value, and
include in earnings the changes in the fair value of such assets and
liabilities. SFAS 133 also provides that changes in the fair value of assets or
liabilities being hedged with recognized derivative instruments be recognized
and included in earnings. The Company does not presently utilize derivative
instruments, either for hedging or other purposes, and therefore anticipates
that the adoption of the requirements of SFAS 133 will not have a material
affect on its financial statements.
RECLASSIFICATIONS:
Certain prior year amounts have been reclassified to conform to the
current year presentation.
29
<PAGE> 32
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED JANUARY 31, 1999, 1998 AND 1997
NOTE B - Installment Loans, Net
----------------------
The following table sets forth the components of and changes in the
gross finance receivable, unearned income, credit loss discount and allowance
for credit losses of the Company's net installment loans as of and for the years
ended January 31, 1997, 1998 and 1999 (amounts for the year ended January 31,
1997 restated as described in Note L) (in thousands):
<TABLE>
<CAPTION>
Gross Credit Allowance Installment
Finance Unearned Loss for Credit Loans,
Receivable Income Discount Losses Net
---------- --------- --------- --------- -----------
<S> <C> <C> <C> <C> <C>
Balance, January 31, 1996 $ 299,215 $ (53,833) $ -- $ (23,284) $ 222,098
Purchases 264,548 (71,582) -- -- 192,966
Cash collected (148,971) -- -- -- (148,971)
Charge-offs (14,847) 9,965 -- 4,882 --
Provision for credit losses -- -- -- (40,855) (40,855)
Interest income 13,598 42,975 -- -- 56,573
Reclassification -- 28,810 (28,810) -- --
Dealer fees charged 5,737 -- -- (4,050) 1,687
--------- --------- --------- --------- ---------
Balance, January 31, 1997 419,280 (43,665) (28,810) (63,307) 283,498
Purchases 177,449 (31,838) (20,383) -- 125,228
Cash collected (166,216) -- -- -- (166,216)
Charge-offs (160,823) -- 33,938 126,885 --
Provision for credit losses(a) -- -- -- (116,049) (116,049)
Interest income -- 35,304 -- -- 35,304
Reclassification -- 19,665 (19,665) -- --
Dealer fees charged -- -- -- (9,318) (9,318)
--------- --------- --------- --------- ---------
Balance, January 31, 1998 269,690 (20,534) (34,920) (61,789) 152,447
Purchases 44,349 (1,840) (15,316) -- 27,193
Cash collected (120,934) -- -- -- (120,934)
Charge-offs (77,632) -- 29,046 48,586 --
Provision for credit losses -- -- -- (2,961) (2,961)
Interest income -- 15,322 -- -- 15,322
Reclassification -- -- -- -- --
Dealer fees charged -- -- -- (666) (666)
--------- --------- --------- --------- ---------
Balance, January 31, 1999 $ 115,473 $ (7,052) $ (21,190) $ (16,830) $ 70,401
========= ========= ========= ========= =========
</TABLE>
(a) Includes $ 41,667,000 attributable to the effects of utilizing discounting
as of February 1, 1997 in the determination of the allowance for credit
losses. See Note A.
30
<PAGE> 33
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED JANUARY 31, 1999, 1998 AND 1997
NOTE B - Installment Loans, Net (cont.)
------------------------------
The balances at January 31, 1998 and 1999 include amounts related to
whole loans purchased by the Company, and to loan interests purchased under
sharing agreements with dealers, as follows (in thousands):
<TABLE>
<CAPTION>
Gross Credit Allowance Installment
Finance Unearned Loss for Credit Loans,
Receivable Income Discount Losses Net
---------- -------- -------- ---------- -----------
<S> <C> <C> <C> <C> <C>
January 31, 1998
Whole loans $ -- $ -- $ -- $ -- $ --
Loan interests 269,690 (20,534) (34,920) (61,789) 152,447
-------- -------- -------- -------- --------
Total $269,690 $(20,534) $(34,920) $(61,789) $152,447
======== ======== ======== ======== ========
January 31, 1999
Whole loans $ 22,142 $ (1,132) $(11,248) $ -- $ 9,762
Loan interests 93,331 (5,920) (9,942) (16,830) 60,639
-------- -------- -------- -------- --------
Total $115,473 $ (7,052) $(21,190) $(16,830) $ 70,401
======== ======== ======== ======== ========
</TABLE>
The whole loans and the loans underlying the loan interests,
outstanding at January 31, 1999, generally have initial terms ranging from 12 to
48 months, with average initial terms and amounts of 39 months and $10,000,
respectively. At January 31, 1999 and 1998 the average remaining term was 20 and
25 months, respectively, and the percentage of loans which were greater than 120
days past due were 6.5% and 15.0%, respectively.
The gross finance receivable represents the cash flows to which the
Company is contractually entitled under the terms of the loans and, where
applicable, the terms of its sharing agreements with dealers. At January 31,
1999, the contractual maturities of the gross finance receivable is as follows
(in thousands):
<TABLE>
<CAPTION>
Gross
Whole Loan Finance
Loans Interests Receivable
-------- --------- ----------
Year ended January 31,
- --------------------------
<S> <C> <C> <C>
2000 $ 8,674 $ 56,977 $ 65,651
2001 7,979 30,009 37,988
2002 5,208 6,341 11,549
2003 281 4 285
-------- -------- ---------
Total $ 22,142 $ 93,331 $ 115,473
======== ======== =========
</TABLE>
31
<PAGE> 34
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED JANUARY 31, 1999, 1998 AND 1997
NOTE B - Installment Loans, Net (cont.)
------------------------------
The gross finance receivable excludes the contractual maturities to
which the dealers would be entitled if the loans were paid in accordance with
their terms. At January 31, 1999 the contractual maturities of the gross loans
in force is as follows (in thousands):
<TABLE>
<CAPTION>
Year ended January 31,
- -----------------------------
<S> <C>
2000 $ 70,678
2001 40,897
2002 12,433
2003 306
----------
Total $ 124,314
==========
</TABLE>
The above information should not be used to project future cash flow as
it is the Company's experience that a portion of the installment loans may be
paid subsequent to due date, paid in full or charged-off prior to contractual
maturities dates.
NOTE C - Notes Payable
-------------
Notes payable are as follows (in thousands):
<TABLE>
<CAPTION>
January 31,
-----------------------
1999 1998
-------- ---------
<S> <C> <C>
Senior Debt, Term Notes
Due 2000 - stated interest rate 7.66% $ - $ 9,000
Due 2001 - stated interest rate 7.66% - 9,000
Due 2002 - stated interest rate 7.66% - 9,000
Due 2003 - stated interest rate 7.66% - 9,000
Due 2004 - stated interest rate 7.66% - 9,000
Bank Group Facility - 38,000
Unsecured Line of Credit - 838
-------- ---------
$ - $ 83,838
======== =========
</TABLE>
During fiscal 1999 and 1998 the Company was from time to time in
default of the covenants in its bank group and senior note debt agreements. In
the fourth quarter of fiscal 1998 through the third quarter of fiscal 1999 the
Company entered into a series of amendments to those agreements to waive the
defaults while the Company repaid the outstanding borrowings. The Company
completed the repayment of the borrowings under the bank group facility and the
redemption of the senior notes in November, 1998 using the proceeds of its
income tax refund (see Note E). In connection with the redemption of the senior
notes the Company paid an amendment fee of $500,000, and a prepayment penalty of
$2,939,000, of which $1,039,000 and $2,400,000 were charged to expense in fiscal
years 1999 and 1998, respectively.
32
<PAGE> 35
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED JANUARY 31, 1999, 1998 AND 1997
NOTE D - Other Liabilities
-----------------
Other liabilities are as follows (in thousands):
<TABLE>
<CAPTION>
January 31,
---------------------------
1999 1998
------- -------
<S> <C> <C>
Accounts payable $ 3,139 $ 2,154
Accrued state and local taxes 2,700 1,961
Accrued litigation expenses (Note J) 3,000 3,000
Accrued expenses 5,082 10,034
Deferred capital contributions 2,205 2,738
------- -------
$16,126 $19,887
======= =======
</TABLE>
The Company is a limited partner in certain affordable housing
investments that generate benefits in the form of tax credits. In connection
with these investments, the Company is required as of January 31, 1999 to make
future contributions of $2,205,000, plus interest at an average rate of 8.9% per
annum, in varying amounts over the next four years as follows:
<TABLE>
<CAPTION>
Year ended January 31,
----------------------
<S> <C>
2000 $ 566,000
2001 593,000
2002 614,000
2003 432,000
------------
$ 2,205,000
============
</TABLE>
NOTE E - Income Taxes
------------
The components of the provision (benefit) for income taxes in the
consolidated statement of operations are as follows (in thousands):
<TABLE>
<CAPTION>
Years Ended January 31,
--------------------------------
1999 1998 1997
-------- -------- --------
<S> <C> <C> <C>
Current
Federal $ -- $(49,885) $ 13,319
State 56 1,236 1,807
-------- -------- --------
56 (48,649) 15,126
Deferred
Federal -- 22,562 (21,443)
State -- 1,619 (2,659)
-------- -------- --------
-- 24,181 (24,102)
-------- -------- --------
Total 56 (24,468) (8,976)
Allocated to discontinued operations -- 2,690 (11,044)
-------- -------- --------
Continuing operations $ 56 $(27,158) $ 2,068
======== ======== ========
</TABLE>
33
<PAGE> 36
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED JANUARY 31, 1999, 1998 AND 1997
NOTE E - Income Taxes (cont.)
--------------------
The Company has available net operating loss carryforwards totaling
approximately $27,235,000, which will expire in fiscal 2019. Additionally, the
Company has available $2,218,000 in foreign tax credits of which $1,775,000 will
expire in fiscal 2000 and $443,000 will expire in fiscal 2001 if not utilized,
and $3,004,000 of minimum tax credits that can be carried forward indefinitely.
The Company also has $1,395,000 of low income housing credits that will expire
in fiscal 2013 and $1,514,000 of low income housing credits that will expire in
fiscal 2019, if not utilized.
The components of the net deferred tax asset (liability) are as follows
(in thousands):
<TABLE>
<CAPTION>
January 31,
--------------------
1999 1998
-------- --------
<S> <C> <C>
Deferred tax assets:
Self-insurance claims $ 1,654 $ 2,953
Allowance for credit losses 5,890 21,626
State income taxes -- 1,190
Accrued liabilities 3,312 3,650
Tax credits carryforwards 8,131 6,618
Net operating loss carryforward 9,532 --
Other 955 1,668
-------- --------
Total deferred tax assets 29,474 37,705
-------- --------
Deferred tax liabilities:
Depreciation (718) (613)
State income taxes (322) --
Limited partnership investments (3,068) (2,808)
Mark-to-market valuation and related income adjustments (1,434) (15,361)
Other (2,721) (2,330)
-------- --------
Total deferred tax liabilities (8,263) (21,112)
-------- --------
Net deferred tax asset before valuation allowance 21,211 16,593
Less: valuation allowance (21,211) (16,593)
-------- --------
Net deferred tax asset $ -- $ --
======== ========
</TABLE>
A valuation allowance for all of the Company's net deferred tax assets
has been provided as the Company is unable to determine, at this time, that the
generation of future taxable income against which the net operating loss and tax
credit carryforwards could be used can be predicted to be more likely than not.
The net change in the valuation allowance for the years ended January 31, 1999,
1998 and 1997 were $4,618,000, $16,593,000, and $0, respectively.
The Company was able to carryback its fiscal 1998, net operating loss
and received a refund of approximately $47,000,000 in 1999 of previously paid
taxes (reflected as a refund receivable at January 31, 1998). In addition, the
Company recovered estimated tax payments of $4,586,000 made during fiscal 1998
and has claims for additional tax refunds in the amount of $3,295,000.
34
<PAGE> 37
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED JANUARY 31, 1999, 1998 AND 1997
NOTE E - Income Taxes (cont.)
--------------------
Reconciliations of the federal statutory tax rate to the effective tax
rate for continuing operations are as follows:
<TABLE>
<CAPTION>
Years Ended January 31,
-----------------------
1999 1998 1997
----- ---- -----
<S> <C> <C> <C>
Statutory rate (35.0)% (35.0)% 35.0%
State income taxes, net of federal tax benefit 0.3 1.3 (3.1)
Deferred tax valuation allowance 38.3 9.6 --
Tax credits (9.5) (3.3) (13.2)
Other 6.2 3.3 2.8
----- ---- -----
Effective tax rate .3% (24.1)% 21.5%
===== ===== =====
</TABLE>
The Company has elected to be treated as a dealer in securities under
section 475 of the Internal Revenue Code effective for fiscal year 1998.
Pursuant to this election, the Company must recognize as taxable income or loss
the difference between the fair market value of its receivables, and the income
tax basis of its receivables (mark-to-market valuation). This election has no
impact on the recognition of pre-tax income for financial reporting purposes.
NOTE F - Stockholders' Equity
--------------------
On May 10, 1999, the Company entered into an Option Agreement with an
unaffiliated stockholder to purchase 2,849,630 shares of the Company's common
stock at a price of $1.50 per share. The Company acquired the option by paying
the stockholder $1,000,000, which was paid on May 12, 1999, and on June 24, 1999
paid the stockholder an additional $500,000 to extend the option until August 8,
1999. The entire $1,000,000 initial payment, and $250,000 of the subsequent
payment, will be credited towards the payment of the exercise price payable by
the Company upon any exercise of its option.
The Company's Board of Directors has authorized the repurchase of up to
four million shares of the Company's outstanding stock, of which 1,345,968
shares have been purchased by the Company as of January 31, 1999 and 1998.
Shares repurchased amounted to 47,400 in fiscal 1998. No shares were repurchased
in fiscal years 1999 and 1997.
On April 30, 1996, the Company's Board of Directors issued a 10% stock
dividend. All per share amounts have been restated to reflect the 10% stock
dividend.
NOTE G - Benefit Plans
-------------
The Company's 1993 Equity Incentive Plan provides for the granting of
incentive and non-qualified stock options, stock appreciation rights, and common
stock and restricted common stock awards to key employees. The total number of
shares available for options or awards granted under this Plan is 2,200,000
shares. There were 76,400, 33,200 and 39,500 shares of restricted stock awarded
under this Plan during the years ended January 31, 1999, 1998 and 1997,
respectively. There were 1,428,350 shares available for future stock awards or
option grants at January 31, 1999.
The Company's 1983 Stock Option Plan provided for the granting of both
incentive and non-qualified stock options to key employees. This Plan terminated
on April 17, 1993 and no further options may be granted, although options still
remain outstanding. Options previously granted under the Plan extend for ten
years and become exercisable in installments over the first five years.
35
<PAGE> 38
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED JANUARY 31, 1999, 1998 AND 1997
NOTE G - Benefit Plans (cont.)
---------------------
The Company's 1995 Dealer Stock Option Plan for Member Dealers provided
for the granting of up to 550,000 common stock options to member dealers based
upon certain volume criteria. The options become exercisable over a three-year
period. This program was discontinued during fiscal 1998. During the years ended
January 31, 1998 and 1997 there were 24,500 and 65,150 options granted,
respectively, at prices ranging from $10.75 to $14.25.
A summary of changes in stock options granted under these three plans
is as follows:
<TABLE>
<CAPTION>
Weighted Average
Number of Exercise Price
Options Per Share
------- ---------------
<S> <C> <C>
Balance January 31, 1996 437,067 $ 8.49
Granted 135,150 10.79
Exercised (34,834) 6.76
Cancelled (67,195) 10.57
-------
Balance January 31, 1997 470,188 8.98
Granted 35,000 10.53
Exercised (27,239) 6.76
Cancelled (112,783) 10.15
-------
Balance January 31, 1998 365,166 8.94
Granted 513,000 1.34
Exercised --
Cancelled (242,556) 8.10
-------
Balance January 31, 1999 635,610 3.12
=======
</TABLE>
The weighted-average grant date fair value of options granted during
fiscal 1999 was $1.18 per share.
The outstanding options expire at various dates through the year 2008.
A summary of stock options outstanding and exercisable as of January 31, 1999 is
as follows:
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
-------------------------------------------------------------- ----------------------------------
Range of Weighted Average Weighted Average Weighted Average
Per Share Number Remaining Contractual Per Share Number Per Share
Exercise Prices Outstanding Life (years) Exercise Price Exercisable Exercise Price
- ---------------- --------------------- ------------------ ------------------ ------------- ------------------
<S> <C> <C> <C> <C> <C>
$0.92 to $1.66 513,000 9.51 $ 1.34 406,500 $ 1.39
$5.96 to $6.76 29,260 1.73 6.76 29,260 6.76
$9.12 to $10.91 40,900 5.70 10.62 1,644 10.00
$11.12 to $14.77 52,450 4.15 12.69 - -
--------------------- ------------
Totals 635,610 437,404
===================== ============
</TABLE>
36
<PAGE> 39
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED JANUARY 31, 1999, 1998 AND 1997
NOTE G - Benefit Plans (cont.)
---------------------
If the Company had recorded compensation expense using the fair value
method of SFAS 123, the Company's net after tax (loss) income and (loss)
earnings per share would have been as follows (in thousands, except per share
amounts):
<TABLE>
<CAPTION>
Years Ended January 31,
------------------------------------------------------------
1999 1998 1997
--------- --------- -------
<S> <C> <C> <C>
Net (loss) income, as reported $ (15,615) $ (91,684) $ 7,171
Pro forma net (loss) income (16,054) (91,858) 6,996
(Loss) earnings per share, as reported (.55) (3.21) .25
Pro forma (loss) earnings per share (.56) (3.22) .25
</TABLE>
The fair value of each award or option grant included in the above
calculations is estimated on the date of grant using the Black-Scholes
option-pricing model with the following weighted-average assumptions used for
the years ended January 31, 1999, 1998 and 1997:
<TABLE>
<CAPTION>
Years Ended January 31,
--------------------------------------------------------------
1999 1998 1997
------------- ------------ -------------
<S> <C> <C> <C>
Risk-free interest rate 5.175% 6.332% 6.361%
Expected life 7.00 years 5.60 years 6.04 years
Expected volatility 111.733% 40.939% 42.668%
Dividend yield 0% 0% 0%
</TABLE>
The effects of applying SFAS 123 for the pro forma disclosures are not
representative of the effects expected on reported net earnings (loss) per share
in future years, since the valuations are based on highly subjective assumptions
about the future, including stock price volatility and exercise patterns.
The Company has a 401(k) Savings and Profit-Sharing Plan ("401k")
covering substantially all employees who have completed one year of service with
the Company. This savings plan allows eligible employees to contribute up to 15
percent of their compensation on a pre-tax basis. The Company matches 50% of the
first 4% of the employees' contribution. Company contributions are vested
incrementally over 6 years. The charge to operations for the Company's
contribution was $69,500 and $62,200 for years ended January 31, 1999 and 1998,
respectively. The Company ceased allowing purchases of Company stock into the
401(k) plan effective July 1, 1997.
The Company does not provide post-retirement or post-employment
benefits to its employees.
NOTE H - Related Party Transactions
--------------------------
During fiscal 1998, the Company had a short-term unsecured uncommitted
line of credit with Brown Brothers Harriman ("BBH") for $13,700,000 of which
$838,000 was outstanding at January 31, 1998. The line of credit was terminated
on January 26, 1998, and the remaining principal was paid off in November 1998.
A former director of the Company was a partner of BBH.
37
<PAGE> 40
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED JANUARY 31, 1999, 1998 AND 1997
NOTE I - Financial Instruments
---------------------
The Company has various financial instruments including cash and cash
equivalents, installment loans, investments in affordable housing limited
partnerships, notes payable, and miscellaneous other assets. Many of these
instruments are short-term in nature and the fair value of these financial
instruments has been estimated based on available market information and
appropriate valuation methodologies. The Company has determined that their
carrying values approximate estimated fair values.
The carrying amount of notes payable approximates fair value because
the interest rates and related penalties and fees pursuant to the underlying
lender agreements approximate the market rates for such borrowings.
The Company determines the fair value of installment loans using the
mark-to-market accounting method for dealers in securities under section 475 of
the Internal Revenue Code. The carrying values and fair values, were $70,401,000
and $64,000,000, respectively, at January 31, 1999 and $152,447,000 and
$133,507,000, respectively, at January 31, 1998.
NOTE J - Commitments and Contingencies
-----------------------------
In the normal course of its business, the Company is named as defendant
in legal proceedings. It is the policy of the Company to vigorously defend
litigation and/or enter into settlements of claims where management deems
appropriate.
The Company has been named as a defendant in eleven purported class
action lawsuits which were filed in the United States District Court for the
Northern District of Ohio after the resignation in January 1998 of the Company's
former independent auditors, Deloitte & Touche, which firm resigned based on the
assertion that it could no longer rely on the representations of the then
management. The actions allege fraud and other violations of the federal
securities laws against the Company and certain former and current officers and
directors. The actions were consolidated on October 16, 1998, and discovery is
presently stayed pending the courts rulings on various outstanding motions.
Although the Company intends to vigorously defend itself, the ultimate outcome
of these actions, including the range of loss, if any, cannot presently be
predicted, and the Company has not recorded any provision for any damages that
may result from these actions. An unfavorable resolution of these actions could
have a material adverse effect on the Company's financial position, results of
operations and liquidity.
The Securities and Exchange Commission, the United States Attorney for
the Northern District of Ohio, and the Federal Bureau of Investigation, are
investigating the issues raised as the result of the resignation of Deloitte &
Touche. The Company is cooperating fully with the investigations. The ultimate
outcome of these investigations on the Company cannot presently be predicted. An
unfavorable resolution of any of these investigations could have a material
adverse effect on the Company's financial position, results of operations and
liquidity.
Following the resignation of Deloitte & Touche, the Company instituted
investigations of its previous financial reporting and underwent changes in
management. In fiscal 1998 the Company accrued initial estimates of certain
resulting costs, and additional costs in excess of those initial estimates will
be expensed as incurred. Included in the results of operations for fiscal 1999
and 1998, respectively, are the following costs (in thousands):
38
<PAGE> 41
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED JANUARY 31, 1999, 1998 AND 1997
NOTE J - Commitments and Contingencies (cont.)
-------------------------------------
<TABLE>
<CAPTION>
Years ended Janaury 31,
-----------------------
1999 1998
------- -------
<S> <C> <C>
Legal fees relating to defending litigation $ 2,545 $ 3,152
Loan waiver and prepayment fees 1,483 3,815
Crisis management consulting 3,898 58
Fees for special independent audits 845 305
Costs of special investigations 654 250
Other 160 65
------- -------
$ 9,585 $ 7,645
======= =======
</TABLE>
On June 15, 1992, certain former employees of the Company's automobile
rental operations, which were sold during fiscal 1996 (see Note K) filed a class
action lawsuit against the Company in the United States District Court for the
Northern District of California. Their complaint alleged that the Company
violated certain sections of the California Labor Law relating to the payment of
overtime. On June 16, 1995, the court issued a finding of partial liability
against the Company. On September 16, 1996, the Company entered into an
Enforceable Settlement Agreement that was approved by the court on November 21,
1996. Pursuant to its terms, damages, penalties and interest were paid to the
plaintiffs in the amount of $5,600,000 and $2,200,000 was paid for plaintiff's
attorneys fees. The Company's 1996 financial statements, (as restated; see Note
L) include the accrual of a provision of $5,000,000, representing the low end of
the range of damages estimated based on the facts available at that time. The
remaining $2,800,000 is included in the results of operations for fiscal 1997
(as restated; see Note L). The charges are classified as a component of the
results of the discontinued operations.
In December 1995, the U.S. Department of Labor notified the Company of
its investigation of the Company's pay practices concerning its former employees
in all states during the period from February 1, 1993 through September 30,
1995. On January 15, 1998, the Company reached an agreement in principle with
the Department of Labor to settle the matter in all states for approximately
$2,700,000 including civil penalties, interest and related payroll taxes. The
formal agreement was completed on September 11, 1998. The Company accrued
$2,720,000 in January 1998 for this settlement. The Company has made two
payments directed by the Department of Labor regarding the settlement of this
issue. The first of these payments was made in October 1998 in the amount of
$1,072,000 and another payment was made in January 1999 in the amount of
$790,000. Final payment of $858,000 is expected to be made in July 1999 for the
balance of the settlement.
The "Year 2000" issue involves the ability of a computer system to
properly recognize date sensitive information when the year changes to 2000.
Systems that do not properly recognize such information could generate erroneous
data or cause a system to fail. The Company has been and continues to take steps
to prepare its computer systems for Year 2000. However, the potential effect of
the Year 2000 issue on the Company's computer systems, and on those of
significant providers of goods and services to the Company, will not be fully
determinable until the beginning of the Year 2000, and thereafter. The failure
of the Company, or of significant providers of goods and services to the
Company, to achieve Year 2000 compliance could have a material adverse effect on
the Company's financial condition and results of operation.
NOTE K - Discontinued Operations
-----------------------
The Company previously engaged in the rental of automobiles on a
short-term basis, principally to the insurance replacement market. In fiscal
1996, the Company disposed of its rental fleet business through the sale of
certain assets and through certain leases to a national car rental company. All
liabilities related to the discontinued rental business, principally
self-insurance claims, were retained by the Company.
The Company also had a dealership operation that sold cars that were
retired from the rental fleet, primarily to member dealers of the Company's
financial services business. That operation was discontinued in fiscal 1997 as
the result of the Company's disposal of its automobile rental operations, and
39
<PAGE> 42
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED JANUARY 31, 1999, 1998 AND 1997
NOTE K - Discontinued Operations (cont.)
-------------------------------
the results of the operation of the dealership are included in the results of
discontinued operations.
Through October 1, 1995, the Company was, when required by either
governing state law or the terms of its rental agreement, self-insured for the
first $1,000,000 per occurrence, and for losses in excess of $5,000,000 per
occurrence, for bodily injury and property damage resulting from accidents
involving its rental vehicles. The Company also self-insured, up to certain
retained limits, for bodily injury and property damage resulting from accidents
involving Company vehicles operated by employees within the scope of their
employment.
The Company estimates its future payments for self-insurance
liabilities based upon an actuarial analysis of reported and incurred but not
reported claims. Changes in estimates of liabilities resulting from this
analysis are recognized in income in the period in which the estimates are
changed. Self-insurance claims expense, which related principally to the rental
vehicles and is included in discontinued operations was $50,000 for fiscal 1999,
$713,000 for fiscal 1998, and $3,029,000, as restated (see Note L) for fiscal
1997. Included in claims expense are allocated loss adjustment expenses relating
to costs incurred for legal and processing the claims. This expense included in
discontinued operations as an adjustment to the loss on disposal of operations
was $88,000 for fiscal 1999, $619,000 for fiscal 1998 and $1,014,000, as
restated, for fiscal 1997. The Company's aggregate self-insurance claims
liability of $ 4,880,000 as of January 31, 1999 is subject to further revision
as new information becomes available, and such revisions may be material due to
the uncertainties inherent in the estimation process. In connection with its
self-insurance, at January 31, 1999, the Company had $202,000 of outstanding
irrevocable standby letters of credit, as required by various insurance
regulatory authorities.
Summarized results of discontinued operations are as follows (in
thousands):
<TABLE>
<CAPTION>
Years Ended January 31,
--------------------------------
1999 1998 1997
-------- -------- --------
(Restated)
(Note L)
<S> <C> <C> <C>
Revenue $ -- $ -- $ 23,443
Cost of goods sold and
operating expense (538) (56) 26,969
General and administrative expenses -- 2,720 6,901
-------- -------- --------
(538) 2,664 33,870
-------- -------- --------
Income (loss) before income taxes 538 (2,664) (10,427)
Provision (benefit) for income taxes -- 2,183 (10,065)
-------- -------- --------
Income (loss) from operations 538 (4,847) (362)
Loss on disposal of operations, net of tax (88) (1,126) (35)
-------- -------- --------
Income (loss) from discontinued operations $ 450 $ (5,973) $ (397)
======== ======== ========
</TABLE>
The revenues and operating expenses for fiscal 1997 relate primarily to
the operations of the dealership, which sold the Company's used rental cars. The
operating expenses for the discontinued operations in fiscal 1997 (as restated;
see Note L) also include a charge of $2,800,000 relating to the class action
overtime litigation discussed in Note J, and a provision of $3,029,000 for
self-insurance liabilities. The tax benefit of $10,065,000 allocated to the
operation of the discontinued operation, and a tax benefit of $979,000 offset
against the loss on the disposal of the operations, includes adjustments to
previously recorded deferred taxes of $6,715,000 for differences between the
financial reporting and tax basis of assets and liabilities that reversed upon
the disposal of the operations.
40
<PAGE> 43
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED JANUARY 31, 1999, 1998 AND 1997
NOTE K - Discontinued Operations (cont.)
-------------------------------
The fiscal 1998 loss represents the effect of additional self-insurance
losses and the accrual of $2,720,000 payable under the Company's settlement with
the U.S. Department of Labor (see Note J). The fiscal 1998 loss included income
tax expense of $2,690,000.
The fiscal 1999 income of $450,000 represents the effects of refunds
from a funded workers' compensation partnership related to the discontinued
operations.
NOTE L - Restatement
-----------
As discussed in Note J, following the resignation of the Company's
former independent auditors, the Board of Directors, through two successive
Special Committees, conducted an investigation of the Company's past financial
reporting. As a result of these investigations, the Company has determined that
its previously issued fiscal 1995, 1996, and 1997 financial statements required
restatement to correct accounting that resulted from the failure of the Company
to properly consider information available at the time those financial
statements were prepared, including information that may not have been
considered due to certain errors or irregularities in certain accounting or
corporate records.
The Company's fiscal 1997 financial statements have been restated to
(i) increase the previously provided allowance for credit losses to reflect the
use of corrected information and methodologies which were available at January
31, 1997, (ii) decrease the 1997 provision for self-insurance claims (see Note
K), reflecting the use of corrected information available at January 31, 1996
which required liabilities previously paid and expensed in 1997 to be accrued in
1996, (iii) report in 1997, instead of as reported in the 1998 interim financial
statements, the loss on the modification of a mortgage note receivable related
to certain Florida real estate, (iv) decrease the amount of the settlement of
the class action overtime litigation (see Note J) charged to expense in 1997 as
the result of a correction, as described below, to increase the amount of the
probable loss accrued in fiscal 1996, and (v) adjust the 1997 income tax
provision for the tax effects of the adjustments described in (i) through (iv).
The total and per share effects of each of these adjustments on the previously
reported results of operations for 1997 are as follows (in thousands, except per
share amounts):
<TABLE>
<CAPTION>
Effect on
------------------------------------------------------
Income from Loss from Earnings
Continuing Discontinued Net Per
Operations Operations Income Share
----------- ------------ ------ --------
<S> <C> <C> <C> <C>
Increase in loan loss provision $ (29,850) $ -- $ (29,850) $ (1.05)
Decrease in self-insurance claims expense -- 7,880 7,880 .27
Decrease in overtime class action loss -- 3,000 3,000 .11
Mortgage note and other (731) 350 (381) (.01)
Related income tax adjustments 11,940 (4,719) 7,221 .25
--------- -------- --------- -------
Total $ (18,641) $ 6,511 $ (12,130) $ (0.43)
========= ======== ========= =======
</TABLE>
41
<PAGE> 44
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED JANUARY 31, 1999, 1998 AND 1997
NOTE L - Restatement (cont.)
-------------------
The accompanying financial statements also reflect adjustments to the
beginning (February 1, 1996) balances of the retained earnings and the
cumulative foreign currency translation, components of stockholders' equity, for
the effects as of that date of changes to the Company's previously reported 1995
and 1996 financial statements. The effects of the 1995 and 1996 restatements on
the February 1, 1996 balance of retained earnings are as follows (in thousands):
<TABLE>
<CAPTION>
<S> <C>
1995 restatement of foreign
currency accounting $ (1,253)
1996 restatement of foreign
currency accounting (96)
1996 restatement of self-insurance
claims expense, net of tax (8,180)
1996 restatement of overtime class
action loss, net of tax (1,881)
1996 restatement of other assets,
net of tax (93)
---------
$ (11,503)
=========
</TABLE>
The 1995 restatement to the foreign currency accounting was to
eliminate, through a charge to expense in that period, the accumulated foreign
currency translation balance of $1,253,000, which related to assets and
liabilities, denominated in Canadian dollars. The Company had disposed of the
assets and liabilities in fiscal 1995 due to its departure from the rental
operations in Canada. The adjustment decreased 1995 income from discontinued
operations by $.04 per share.
The 1996 restatement to the self-insurance claims expense was to accrue
in that year $13,045,000 for claims paid and previously charged to expense in
1997 and 1998 which should have been accrued in 1996 on the basis of information
available at January 31, 1996. The 1996 financial statements were also restated
to increase by $3,000,000 the amount accrued at January 31, 1996 as a probable
loss resulting from the class action overtime litigation (see Note J). This
adjustment was necessary for the loss accrued at January 31, 1996 to represent a
proper estimate of the probable loss on the basis of the information about the
litigation available at that time. These adjustments, net of income tax benefit
of $6,040,000, decreased 1996 net income by $10,250,000 or $.36 per share.
NOTE M- Going Concern
-------------
The accompanying financial statements have been prepared on a going
concern basis, which contemplates the realization of assets and the settlement
of liabilities, including commitments and contingent liabilities, in the normal
course of business. The Company incurred losses from continuing operations in
fiscal 1998 and 1999, and continues to incur losses in the current year (fiscal
year 2000). During fiscal 1998 and 1999 the Company did not comply with certain
covenants of its loan agreements. The Company was able to obtain waivers and
extensions and in fiscal 1999 completed the repayment of all of its operating
debt. However, to date the Company has been unable to obtain new debt financing
(see Note C). Additionally, the Company is a defendant in significant
stockholder litigation and is the subject of certain regulatory investigations
(See Note J). These factors raise substantial doubts about the Company's ability
to continue as a going concern.
The Company plans to continue to pursue new debt, or equity financing,
for use in funding its operations and the settlement of its liabilities,
including commitments. However, the Company's pending litigation and other
factors may make obtaining such financing difficult. Additionally, the Company
will examine the sale of non-operating assets as a source of capital. There can
be no assurance that capital will be obtained from these sources. In the
interim, or absent obtaining such capital, the Company will restrict its
purchase of new loans to the cash flows
42
<PAGE> 45
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED JANUARY 31, 1999, 1998 AND 1997
NOTE M - Going Concern (cont.)
--------------
available from the collections of its existing loans after the use of those cash
flows to pay operating expenses and existing liabilities. The Company has a cash
balance of approximately $39,000,000 as of June 30, 1999, and it believes that
such cash and the cash flows from the collection of existing loans will be
sufficient for it to pay operating expenses, existing liabilities, and make some
level of new loan purchases, over the next twelve months. However, there can be
no assurance that this plan will be successful. Additionally, the restrictions
on the purchase of new loans inherent in such a plan would cause the size of the
Company's investments in loans, and its interest income therefrom, to decline
over time.
The Company's existing liabilities include the accrual of estimates of
the costs to defend the pending stockholder litigation, and to respond to the
pending regulatory investigations. Such matters represent contingent
liabilities. The ultimate outcome of these matters, including the timing of
their resolution, cannot presently be predicted, and accordingly no provision
has been recorded for any damages that may result from these matters. The
Company intends to vigorously defend the stockholder litigation, and to
cooperate fully with the investigations. However, the need to devote significant
cash flows to satisfy any damages resulting from these matters would have a
significant adverse effect on the Company's continued operation.
As a result of these factors the Company's continuation as a going
concern will ultimately depend on its ability to (i) obtain new debt or equity
financing or other sources of capital which can be invested to achieve
profitable operations through growth in interest income (resulting from growth
in the investments in loans) and the control of expenses, and (ii) resolve the
pending litigation and regulatory investigations. The financial statements do
not include any adjustments relating to the recoverability of assets or the
amount or settlement of liabilities that might be necessary should the Company
be unable to continue as a going concern.
NOTE N - Quarterly Financial Data (Unaudited)
-------------------------
The following tables present quarterly financial information for fiscal
1999 and 1998 (in thousands, except per share amounts):
<TABLE>
<CAPTION>
Quarter
----------------------------------------
First Second Third Fourth
------- ------- ------- -------
<S> <C> <C> <C> <C>
1999
- ----
Total revenue $ 5,337 $ 4,555 $ 3,569 $ 2,818
======= ======= ======= =======
Loss from continuing operations $(3,175) $(2,565) $(5,629) $(4,696)
Discontinued operations, net of tax -- -- -- 450
------- ------- ------- -------
Net loss $(3,175) $(2,565) $(5,629) $(4,246)
======= ======= ======= =======
Basic and Diluted (Loss) Earnings Per Share:
Continuing operations $ (.11) $ (.09) $ (.20) $ (.16)
Discontinued operations -- -- -- .01
------- ------- ------- -------
Net loss per share $ (.11) $ (.09) $ (.20) $ (.15)
======= ======= ======= =======
</TABLE>
43
<PAGE> 46
NATIONAL AUTO CREDIT, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED JANUARY 31, 1999, 1998 AND 1997
NOTE N - Quarterly Financial Data (Unaudited)(cont.)
------------------------
<TABLE>
<CAPTION>
Quarter
--------------------------------------------
First Second Third Fourth
-------- -------- -------- --------
<S> <C> <C> <C> <C>
1998
- ----
Total revenue, as previously reported $ 18,810 $ 18,803 $ 17,590 $ 7,527
Restatement (a) (9,052) (8,741) (8,541) --
-------- -------- -------- --------
Total revenue, as restated $ 9,758 $ 10,062 $ 9,049 $ 7,527
======== ======== ======== ========
Income (loss) from continuing operations,
as previously reported $ 4,772 $ 3,716 $(18,417) $(25,664)
Restatement (a) (33,312) (16,073) (733) --
-------- -------- -------- --------
Loss from continuing operations, as restated $(28,540) $(12,357) $(19,150) $(25,664)
Discontinued operations, net of tax -- -- -- (5,973)
-------- -------- -------- --------
Net loss $(28,540) $(12,357) $(19,150) $(31,637)
======== ======== ======== ========
Basic and Diluted Earnings (Loss) Per Share:
Continuing operations, as previously reported $ .17 $ .13 $ (.65) $ (.90)
Restatement (a) (1.17) (.56) (.02) --
-------- -------- -------- --------
Continuing operations, as restated $ (1.00) $ (.43) $ (.67) $ (.90)
Discontinued operations -- -- -- (.21)
-------- -------- -------- --------
Net loss per share $ (1.00) $ (.43) $ (.67) $ (1.11)
======== ======== ======== ========
</TABLE>
(a) Represents the effect on amounts previously reported for the first three
quarters of fiscal 1998 (see Notes A and L).
44
<PAGE> 47
Item 9. Changes in and Disagreements with Accountants on Accounting and
- ------- ---------------------------------------------------------------
Financial Disclosure
--------------------
On January 16, 1998, Deloitte & Touche informed the Board of Directors
of the Company that it had resigned as the Company's independent auditors. The
Company reported the resignation of Deloitte & Touche in a Current Report on
Form 8-K filed January 21, 1998.
The reports of Deloitte & Touche on the Company's financial statements
for each of the two fiscal years preceding Deloitte & Touche's resignation
contained no adverse opinion or disclaimer of opinion and were not qualified or
modified as to uncertainty, audit scope or accounting principle. In connection
with its audits for those two fiscal years and through January 16, 1998, there
were no disagreements between the Company and Deloitte & Touche on any matter of
accounting principles or practices, financial statement disclosure, or auditing
scope or procedure, which disagreements if not resolved to the satisfaction of
Deloitte & Touche would have caused it to make reference thereto in its report
on the financial statements for such fiscal years.
During the fiscal year ended January 31, 1997 and through January 16,
1998, there were no reportable events as defined in Item304(a)(1)(v) of
Regulation S-K, except as follows:
(i) On January 12, 1998, representatives of Deloitte & Touche advised
the President and the Chairman of the Board of the Company that
Deloitte & Touche had been advised by current and former employees of
the Company of potentially improper activities that may affect the
Company's financial accounting records. Deloitte & Touche recommended
that the Board of Directors conduct an investigation of these
allegations and informed the Company that it had made no investigation
of the information.
(ii) On January 16, 1998, Deloitte & Touche advised the Board of
Directors and management of the Company that information had come to
the attention of Deloitte & Touche that led Deloitte & Touche to
conclude that Deloitte & Touche could no longer rely on management's
representations and informed the Board of Directors and management of
the Company that it had made no investigation of the information.
(iii) Prior to its resignation Deloitte & Touche had communicated to
the Company, in a letter dated March 6, 1997, certain matters involving
the internal control structure of the Company related to its
self-insurance claims liability and loan loss reserves which Deloitte &
Touche considered to be "reportable conditions" under standards
established by the American Institute of Certified Public Accountants.
The Company provided Deloitte & Touche with a copy of the above
disclosures, as contained in the January 21, 1998 Form 8-K, and requested that
Deloitte & Touche furnish it with a letter addressed to the Securities and
Exchange Commission stating whether or not it agreed with such disclosures.
Deloitte & Touche provided the Company with a letter dated January 20, 1998
stating that it did not disagree with the disclosures, as set forth above,
contained in the January 21, 1998 Form 8-K. A copy of that letter was filed as
an exhibit to the January 21, 1998 Form 8-K.
On February 19, 1998 the Company engaged Grant Thornton LLP as its new
independent accountants. The Company reported the engagement of Grant Thornton
LLP in a Current Report of Form 8-K dated February 20, 1998. During the two
fiscal years immediately preceding the engagement of Grant Thornton LLP, and
through February 19, 1998, the Company did not consult with Grant Thornton LLP
regarding the application of accounting principles to a specified transaction,
either completed or proposed, or the type of audit opinion that might be
rendered on the Company's financial statements, and the Company was not provided
with any written report or oral advice by Grant Thornton LLP that Grant Thornton
LLP concluded was an important factor considered by the Company in reaching a
decision as to an accounting, auditing or financial reporting issue.
Additionally, during the two fiscal years immediately preceding the engagement
of Grant Thornton LLP, and through February 19, 1998, the Company did not
consult with Grant Thornton LLP regarding any matter that was either the subject
of a disagreement (as that term is defined in Item 304(a)(1)(iv) of Regulation
S-K and the related instructions to Item 304 of Regulation S-K) or a reportable
event (as that term is described in Item 304(a)(1)(v) of Regulation S-K).
At the time the Company engaged Grant Thornton LLP, it authorized Grant
Thornton LLP to communicate with Deloitte & Touche, and authorized Deloitte &
Touche to respond fully, without limitation, to the inquiries of Grant Thornton
LLP.
45
<PAGE> 48
PART III
-------
Item 10. Directors and Executive Officers of the Registrant
- ------------------------------------------------------------
Directors of the Registrant
- ---------------------------
<TABLE>
<CAPTION>
Name of Director Age Principal Occupation and Other Director Since Term To Expire
- ---------------- --- ------------------------------- -------------- --------------
Information
-----------
<S> <C> <C> <C> <C>
Richard M. Cohen 48 Interim President from January 1999 to May 1999. 1999 2001
President of Richard M. Cohen Consultants, Inc.
since 1996. Mr. Cohen is director of the
following companies, Symposium Telecom, Inc.,
Directrix Inc., Carnegie International Inc., and
Deyco Acquisition Corporation. From 1992 to 1996
he served as President of General Media, Inc. a
public diversified media and entertainment
conglomerate. Mr. Cohen accepted the position of
Director of National Auto Credit, Inc. effective
January 15, 1999.
John A. Gleason 50 President and Owner of Automax, Inc., an 1998 1999
independent used car dealership since 1987. From
1995 to 1998, Mr. Gleason served on National Auto
Credit's Dealer Advisory Board and served as
its Chairman from 1996 to 1998. Mr. Gleason
accepted the position of Director of National
Auto Credit, Inc. effective February 20,
1998.
James J. McNamara 50 Chairman of the Board, National Auto Credit, 1998 2000
Inc., since April 1998. Chairman of the Board and
Chief Executive Officer of Princeton Media Group,
Inc. from 1994 to 1998. President and Chief
Executive Officer of Celebrity Entertainment,
Inc. since 1992. (A subsidiary of Princeton
Media Group, Inc. and Celebrity Entertainment,
Inc. effected an assignment of their respective
assets for the benefit of creditors in 1998.) Mr.
McNamara accepted the position of Director of
National Auto Credit, Inc. effective February
20, 1998.
William S. Marshall 82 Attorney engaged in private practice since April 1998 Next Annual
1985. For more than four years prior thereto, Mr. Meeting of
Marshall was a partner/stockholder of the Miami, Stockholders
Florida office of the law firm Baskin & Steingut,
P.A. Mr. Marshall accepted the position of
Director of National Auto Credit, Inc. effective
March 9, 1998 and formerly served as Director
from 1983 to 1993.
Henry Y.L. Toh 42 Officer and Director of I-Link Incorporated since 1998 2001
1992, Four M. International, Inc. since 1992 and
Four Vines International since 1996. Mr. Toh
accepted the position of Director of National
Auto Credit, Inc. effective December 22, 1998.
</TABLE>
46
<PAGE> 49
Executive Officers of the Registrant
- ------------------------------------
The executive officers of the Company at January 31, 1999 were as follows:
<TABLE>
<CAPTION>
Name of Officer Age Position with the Company; Principal Occupation for Last Five Years
- ---------------- --- -------------------------------------------------------------------
<S> <C> <C>
Richard M. Cohen 48 Interim President and Director since January 1999. President of
Richard M. Cohen Consultants, Inc. since 1996. Previously was
President of General Media, Inc., from 1992 to 1996.
John Borys 48 Vice President, Credit and Collections since August 1996. Previously was
Vice-President, KeyCorp 1994 to 1996. Previously was Assistant Vice
President of KeyCorp from 1993 to 1994.
Lynn Cesar 39 Vice President, Loan Originations since November 1998. Previously was Vice
President, Huntington State Bank 1997 to 1998. Previously was Vice President,
Automotive Financial Services 1995 to 1997. Previously was Director of
Collections, Sterling, Inc., 1992 to 1995.
Davida S. Howard 52 Vice President, Finance and Controller since March 1994. Previously
was Controller since 1990. Prior to 1990, Ms. Howard was Vice President
of Finance and Administration/Controller with SNS Properties, Inc.
and an Audit Manager with Price Waterhouse and Co.
Steven Jaeger 56 Vice President, Information Services since June 1998. Previously was Director
of Information Services since 1995. Prior to 1995, Mr. Jaeger was a senior
level executive for divisions of NationsBank and Englehard Corporation.
Thomas G. Osco 38 Vice President, Sales and Marketing since October 1997. Previously was Director
of Dealer Development, Area Manager and Program Car Manager with the Company.
Mr. Osco has been employed by the Company since 1987.
Raymond A. Varcho 43 Vice President, General Counsel and Secretary since October 1997. Previously
was Assistant General Counsel of Rockwell International Corporation from 1993
to 1997.
</TABLE>
Section 16(A) Beneficial Ownership Reporting Compliance.
- --------------------------------------------------------
Based solely upon a review of Forms 3, 4 and 5, amendments thereto and related
information furnished to the Registrant, during the fiscal year 1999, the
following directors and officers were delinquent in their Section 16(a)
reporting obligations:
Messrs. Cohen and Toh failed to timely file a Form 3 and Form 4;
Mr. Cross failed to timely file a Form 3.
47
<PAGE> 50
Item 11. Executive Compensation
- -------- ----------------------
SUMMARY COMPENSATION TABLE
The following table sets forth a summary of the compensation earned for services
rendered by the Company's Chief Executive Officers, four other most highly
compensated Executive Officers and any other individual that would have been
among the four most highly compensated Executives but for the fact that the
individual was not serving as an Executive Officer at the end of the last
completed fiscal year for the fiscal years ended January 31, 1999, 1998 and
1997.
<TABLE>
<CAPTION>
Long-Term
Compensation Awards
-------------------------
Name and Principal Position Annual Compensation Securities
At Janaury 31, 1999 ------------------------------------- Restricted Underlying
- ------------------- Other Annual Stock Options All Other
Fiscal Salary Bonus Compensation(1,10) Awards(2) SARs Compensation(3)
Year ($) ($) ($) ($) (#) ($)
----- --------- -------- ------------------ ----------- ----------- ---------------
<S> <C> <C> <C> <C> <C> <C> <C>
Richard M. Cohen(4) 1999 33,333 - - - 100,000 -
Interim President 1998 - - - - - -
(Commencing January 15, 1999) 1997 - - - - - -
Davida S. Howard 1999 165,677 46,138 15,334 5,497 20,000 4,115
Vice President, 1998 129,231 12,400 12,564 14,850 - 3,054
Finance and Controller 1997 113,047 1,000 10,930 42,563 - 2,697
Raymond A. Varcho(5) 1999 142,408 5,641 11,455 5,963 5,000 1,092
Vice President, 1998 26,154 1,000 2,912 - - 123
General Counsel and Secretary 1997 - - - - - -
John Borys(6) 1999 128,946 8,214 13,723 5,963 20,000 3,319
Vice President, 1998 100,885 11,100 12,283 12,900 - 462
Credit and Collections 1997 31,154 1,000 4,433 7,375 - 154
Steven Jaeger 1999 115,439 6,303 7,447 5,300 20,000 3,318
Vice President, 1998 104,644 8,400 5,236 11,100 - 2,585
Information Services 1997 100,000 1,000 4,580 - - 626
Thomas W. Cross(7) 1999 730,835 - - - - -
Interim Chief Executive Officer 1998 - - - - - -
(June 1, 1998 to January 14, 1999) 1997 - - - - - -
Sam J. Frankino(8) 1999 110,000 - 53,174 - - 769
Former Chairman of the Board 1998 465,385 1,000 79,143 88,000 - 246
1997 397,116 116,000 71,886 51,250 - 462
Edward T. Anderson(9) 1999 141,061 5,797 15,990 15,531 - 35,665
Former Acting President 1998 114,615 13,600 14,158 15,400 - 2,761
1997 103,269 1,000 12,960 42,563 - 2,518
</TABLE>
(1) The amounts included in this column are the imputed value for use of Company
automobiles and related tax reimbursements. Executive Officers who were
Directors do not receive any additional compensation for serving on the
Board of Directors.
(2) These awards are fully vested but may not be sold or transferred until such
time as the recipient directly owns and maintains Company stock equal to
three times the individual's annual salary, including bonus, or the
individual terminates employment with the Company. Restricted stock
holdings in excess of the required ownership amounts may be disposed of
provided that minimum ownership requirements are maintained during the term
of the individual's employment. The restricted shares awarded are eligible
for any dividends the Company may declare on its Common Stock. The total
restricted stock holdings for the officers at January 31, 1999 were as
follows:
Number Fair Market
of Shares Value ($)
------------ ---------------
Mr. Cohen - -
Ms. Howard 16,050 23,915
Mr. Varcho 9,700 14,453
Mr. Borys 12,000 17,880
Mr. Jaeger 12,400 18,476
48
<PAGE> 51
Item 11. Executive Compensation (cont.)
- -------- ------------------------------
(3) In fiscal year 1999 the Company contributed to Ms. Howard's, Messrs.
Varcho's, Borys', Jaeger's, and Anderson's 401(k) Savings and Retirement
Plan and Trust Accounts in the following amounts: Ms. Howard $3,062; Mr.
Varcho - $231; Mr. Borys - $2,621; Mr. Jaeger - $2,307; and Mr. Anderson
$3,123. In addition, the Company paid insurance premiums for term
life/accidental death and disability coverage for the respective
individuals in the following amounts: Ms. Howard - $688; Messrs. Varcho,
Borys and Jaeger - $688; Mr. Frankino $256 and Mr. Anderson - $512. The
Company also paid certain individuals health insurance premiums and vision
care for the following amounts: Ms. Howard - $365; Mr. Varcho - $173; Mr.
Borys - $10; Mr. Jaeger - $323; Mr. Frankino - $513 and Mr. Anderson -
$530. In addition, Mr. Anderson was paid $31,500 during fiscal year 1999 as
part of his severance agreement (See Note 9).
(4) Mr. Cohen, President of Richard M. Cohen Consultants, Inc., entered into a
six-month agreement with the Company as a consultant effective November 30,
1998. The Company appointed him Interim President and Director, effective
January 1999. The Company paid him $200,000 for his services.
(5) Mr. Varcho's amounts reflect compensation commencing with his date of
employment, October 15, 1997.
(6) Mr. Borys' amounts reflect compensation commencing with his date of
employment, August 19, 1996.
(7) Mr. Cross is a Principal with Jay Alix & Associates, a corporate turnaround
specialist firm. Mr. Cross provided consulting to the Company and was named
Interim Chief Executive Officer on June 1, 1998 and left this position
January 14, 1999. Jay Alix & Associates were paid $730,835 for services
rendered by him.
(8) Mr. Frankino temporarily vacated his position as Chairman of the Board
January 19, 1998 to March 8, 1998. Mr. Frankino resumed his position on
March 9, 1998 until March 31, 1998 when he retired. Mr. Frankino's fiscal
year 1999 salary reflects actual payments; on an annualized basis his base
salary would have been $550,000.
(9) Mr. Anderson, was Executive Vice President until March 9, 1998 when he was
named Acting President until his resignation from the Company on November
23, 1998. He entered into a twelve-month severance agreement with the
Company effective November 23, 1998 to provide consulting services and
agreeing with certain non-competition and non-solicitation terms in
exchange for $189,000 compensation and continued participation/coverage in
all Company provided benefit plans (See Note 3).
(10) Mr. Frankino's amount included in this column also include payments related
to personal expenses and the imputed value for the use of Company
automobiles by members of his family.
OPTIONS
Option/SAR Grants in Last Fiscal Year
<TABLE>
<CAPTION>
Potential Realizable Value at
Assumed Annual Rates of Stock
Price Appreciation
Individual Grants for Option Term(2)
---------------------------------------------------------------------------------------------------------------
Number of Securities Percent of Total Exercise or
Underlying Options/ Options/SARs Granted to Base Price Expiration
Name SARs Granted (#) Employees in Fiscal Year ($/sh)(1) Date(1) 5% ($) 10% ($)
- ------------------- -------------------- ------------------------ ------------ ----------- ------ -------
<S> <C> <C> <C> <C> <C> <C>
Richard M. Cohen 100,000 46.95% 1.1484 11/30/08 72,222 183,025
Davida S. Howard 20,000 9.39% 1.1484 12/1/08 14,444 36,605
Raymond A. Varcho 5,000 2.35% 1.1484 12/1/08 3,611 9,151
John Borys 20,000 9.39% 1.1484 12/1/08 14,444 36,605
Steven Jaeger 20,000 9.39% 1.1484 12/1/08 14,444 36,605
Thomas W. Cross - - - - - -
Sam J. Frankino - - - - - -
Edward T. Anderson - - - - - -
</TABLE>
(1) Options were granted at the market price of the stock at the date of grant.
Mr. Cohen's options vested 50% on the grant date of November 30, 1998 and
50% on May 31, 1999. The remaining options were granted on December 1, 1998
and vested 50% on that date and the remaining 50% vested on June 30, 1999.
(2) The dollar amounts under these columns are the result of calculations at
the 5% and 10% rates required by the SEC and, therefore are not intended to
forecast future appreciation of the stock price.
49
<PAGE> 52
Item 11. Executive Compensation (cont.)
- -------- ------------------------------
Aggregated Options/SAR Exercises in Last Fiscal Year and Fiscal Year End Option
Values
<TABLE>
<CAPTION>
Number of Securities Underlying Value of Unexercised
Unexercised Options/SARs In-the-Money Options/SARs
Shares at Fiscal Year End (#)(1) at Fiscal Year End($)(2)
Acquired on Value
Name Exercise (#) Realized ($) Exercisable Unexercisable Exercisable Unexercisable
- --------------------- -------------- ------------- --------------- ---------------- ---------------- -----------------
<S> <C> <C> <C> <C> <C> <C>
Richard M. Cohen 0 0 50,000 50,000 17,080 17,080
Davida S. Howard 0 0 27,600 18,250 3,416 3,416
Raymond A. Varcho 0 0 2,500 2,500 854 854
John Borys 0 0 10,000 10,000 3,416 3,416
Steven Jaeger 0 0 10,000 15,500 3,416 3,416
Thomas W. Cross 0 0 - - - -
Sam J. Frankino 0 0 - - - -
Edward T. Anderson 0 0 3,190 - - -
- ----------------------------------------------
</TABLE>
(1) Includes options with exercise prices ranging from $1.1484 to $10.909.
(2) Values are calculated using the January 31, 1999, Common Stock closing
price of $1.49 per share as reported on the OTC Bulletin Board.
DIRECTORS FEES AND COMPENSATION
Each member of the Board who is not an employee of the Company thereof
has been paid $3,000 and expenses for attendance at each meeting of the Board
or Committee and $250 per hour for time committed outside of formal meetings
and special assignments. After the date of issuance of the Company fiscal 1999
financial statements, which are a part of this report, each member of the Board
who is not an employee of the Company will thereafter be paid $75,000 per year
and will receive options to purchase 100,000 shares of common stock at the
exercise price of the fair market value of the stock as of May 6, 1999. Each
member of the Board shall also be paid $25,000 per year for participation on
each of the Board's Audit or Special Committees, and $15,000 per year for
participation on any other Board committee. However, no individual monetary
compensation shall exceed $115,000 per year regardless of the number of
committees on which such individual participates. Messrs. Gleason, McNamara and
Marshall were granted 75,000 options exercisable and fully vested with a per
share exercise price equal to $1.66, which was the fair market value of the
Common Stock at the close of business on May 7, 1998. Mr. Toh was also granted
75,000 options exercisable and fully vested at $.92, the fair market value at
the close of business on December 22, 1998. Amounts paid to the Directors were
the following: Mr. Gleason $339,600; Mr. McNamara $437,650; Mr. Marshall
$330,749 and Mr. Toh $36,375. In addition, the Board awarded to Mr. McNamara,
Chairman of the Board, an additional cash compensation in the amount of $300,000
for services provided above and beyond the duties typically performed by a
Chairman.
EMPLOYMENT AGREEMENTS
Mr. Robert J. Bronchetti, the former President and Director vacated his
position on January 19, 1998. Mr. Bronchetti formally resigned from these
positions effective March 9, 1998. In an agreement, as set forth in Exhibit
10(m) hereto and incorporated herein by reference, he will receive the sum of
$500,000 in twenty-four equal monthly installments commencing with the first
installment in April 1998.
Mr. Edward T. Anderson, was Executive Vice President until March 9, 1998
when he was named Acting President. He resigned from the Company on November 23,
1998 and entered into a twelve-month severance agreement with the Company
effective November 23, 1998 to provide consulting services in exchange for
$189,000 compensation as set forth in Exhibit 10 (o) hereto and incorporated
herein by reference.
50
<PAGE> 53
Item 11. Executive Compensation (cont.)
- -------- ------------------------------
EMPLOYMENT AGREEMENTS (cont.)
Effective November 30, 1998, the Company entered into a six-month
agreement with Mr. Richard M. Cohen, President of Richard M. Cohen Consultants,
Inc., appointing him Interim President and Director of the Company. The Company
paid him $200,000 for his services and he was granted 100,000 Common Stock
options at the price, at grant date, of $1.1484. Half the options vested at the
grant date of November 30, 1998 and the other 50,000 shares vested on May 31,
1999.
Effective May 12, 1999, the Company entered into an employment agreement
with Mr. Allen D. Rice (the "Rice Employment Agreement"). The Rice Employment
Agreement provides that Mr. Rice will become the President of the Company. The
Rice Employment Agreement provides for an employment term of three years, after
which the agreement can be renewed by the Company for an additional two years.
During the term, Mr. Rice will receive a base salary of $300,000 per year
subject to price index. The Rice Employment Agreement provides for a maximum
annual bonus opportunity equal to 66.6% of Mr. Rice's base salary with a
guaranteed bonus during the first year equal to $100,000. The Rice Employment
Agreement also provides for an award of 30,000 shares of restricted stock,
vesting proportionately on a monthly basis over the two years following the date
of grant, and an initial award of options with respect to 300,000 shares of
Common Stock with an exercise price equal to the fair market value of the Common
Stock on the date of grant vesting proportionately on a monthly basis over the
two years following the date of grant. Additionally, the Rice Employment
Agreement provides for annual awards of options during the term with respect to
300,000 shares of Common Stock each year having similar terms and conditions as
the initial option award. On the last day of each fiscal year during the term of
the Rice Employment Agreement, provided Mr. Rice has met or exceeded the
performance objectives set by the Board, Mr. Rice may purchase an additional
option with respect to 100,000 shares of Common Stock. The purchase price for
this additional option shall equal the option's value based on a Black-Scholes
valuation methodology. In the event that Mr. Rice is terminated by the Company
without Cause (as defined in the Rice Employment Agreement) or Mr. Rice resigns
for Good Reason (as defined in the Rice Employment Agreement), the Company is
obligated to pay Mr. Rice a lump sum equal to his base salary for remainder of
employment term and a bonus for the then current bonus year prorated for the
period of time for which Mr. Rice was employed during the year. In addition, all
other benefits under the Rice Employment Agreement are to be continued for the
remainder of the term of the agreement.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
The Compensation Committee consists of Messrs. Gleason, McNamara and
Marshall since March 1998. Prior to that Messrs. Noah T. Herndon and Per E. Hoel
were members of the Compensation Committees and Board members for six and
fifteen years, respectively.
51
<PAGE> 54
Item 12. Security Ownership of Certain Beneficial Owners and
- -------- ---------------------------------------------------
Management
----------
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
The following table sets forth information with respect to each person or group
known to the Company to be beneficial owners, as of June 30, 1999 of more than
5% of the Company's outstanding Common Stock:
Shares of Percent of
Name and Address Common Stock Class
of Beneficial Owner Beneficially Owned Outstanding
- ------------------- ------------------ -----------
Sam J. Frankino 15,743,012(1) 54.96%
7108 Eagle Terrace
West Palm Beach, FL 33412
Ernest C. Garcia II 2,849,630(2) 9.95%
2525 East Camelback Road
Suite 1150
Phoenix, Arizona 85016
SECURITY OWNERSHIP OF MANAGEMENT
The following information is set forth with respect to shares of the Company's
Common Stock beneficially owned, as of June 30, 1999 by all Directors, the
nominees for election as Directors of the Company, the Chief Executive Officers
of the Company and the four other most highly compensated Executive Officers at
January 31, 1999 ("Named Executive Officers") and by all officers and Directors
of the Company as a group:
Shares of
Common Stock Percent of
Benefically Class
Directors Owned(4) Outstanding
- --------- ----------- -----------
Richard M. Cohen 100,000 *
John A. Gleason 75,000 *
James J. McNamara 75,000 *
William S. Marshall 85,000(3) *
Henry Y. L. Toh 75,000 *
Executive Officers
- ------------------
Davida S. Howard 52,996 *
Raymond A. Varcho 11,523 *
John Borys 29,128 *
Steven Jaeger 29,528 *
The Eleven Officers and Directors as
a Group 584,124 2.04%
* Less than 1.0%
(1) Mr. Frankino has both voting and investment power with respect to the
shares listed. Of the shares shown above, 726,452 shares are held by the
Samuel J. and Connie M. Frankino Charitable Foundation, and 1,000,000
shares are held by Corrine L. Dodero Trust for the Arts and Sciences, both
of which are qualified charitable foundations, as to which Mr. and Mrs.
Frankino have voting and investment power. Mr. Frankino disclaims any
beneficial interest in those shares.
(2) Mr. Garcia has both voting and investment power with respect to the shares
listed. Of the shares shown above 134,000 shares are owned by Verde
Investments, Inc. Mr. Garcia as the sole owner of all the common stock of
Verde, has beneficial ownership of these shares. On May 10, 1999,
Mr. Garcia entered into an option agreement with the Company for all of
these shares of stock and issued a proxy to vote all his controlled shares
to Mr. Henry Y. L. Toh, an independent Director of the Company. This option
agreement was filed as Exhibit 10(j) to the Form 8-K dated May 25, 1999,
and is incorporated herein by reference.
(3) Includes 7,000 shares held by Mr. Marshall's wife.
(4) Includes shares which may be acquired within 60 days pursuant to the
Company's 1983 Stock Option Plan and 1993 Equity Incentive Plan as follows:
Mr. Cohen 100,000
Mr. Gleason 75,000
Mr. McNamara 75,000
Mr. Marshall 75,000
Mr. Toh 75,000
Ms. Howard 37,600
Mr. Varcho 5,000
Mr. Borys 20,000
Mr. Jaeger 20,000
The Eleven Executive Officers and
Directors as a group 525,350
52
<PAGE> 55
Item 12. Security Ownership of Certain Beneficial Owners and
- -------- ---------------------------------------------------
Management (cont.)
------------------
(5) Does not reflect 100,000 shares which may be acquired by exercise of
options that will be issued to each member of the Board. See "DIRECTORS
FEES AND COMPENSATION."
Item 13. Certain Relationships and Related Transactions
- -------- ----------------------------------------------
The Company has acquired an option to purchase shares in the Company from Mr.
Ernest C. Garcia II. See "SIGNIFICANT DEVELOPMENTS" item q and Note F of Notes
to Consolidated Financial Statements for more information.
PART IV
-------
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K
- -------- ----------------------------------------------------------------
Documents filed as part of this report:
---------------------------------------
(a)(1) The following financial statements are included in Part II, Item 8:
Report of Independent Certified Public Accountants
Financial Statements:
Consolidated Balance Sheets - as of
January 31, 1999 and 1998
Consolidated Statements of Operations -
Years Ended January 31, 1999, 1998 and 1997
Consolidated Statements of Stockholders' Equity-Years Ended
January 31, 1999, 1998 and 1997
Consolidated Statements of Cash Flows-Years Ended January 31,
1999, 1998 and 1997
Notes to Consolidated Financial Statements-Years Ended January
31, 1999, 1998 and 1997
(a)(2) The following financial statement schedule for the years ended January
31, 1999, 1998 and 1997 is submitted herewith:
Schedule II - Valuation and Qualifying Accounts
All other schedules are omitted because the required information either
is not applicable or is shown in the consolidated financial statements or
notes.
(a)(3) Exhibits
Description
-----------
(2)(a) Agreement of Merger (incorporated by reference to Exhibit 2
to the Company's Form 8B dated December 27, 1995, SEC File
No. 1-11601).
(3)(a) Restated Certificate of Incorporation of National Auto
Credit, Inc. (incorporated by reference to Exhibit 3(1) to
the Company's Form 8B dated December 27, 1995, SEC File No.
1-11601).
(3)(b) By-Laws of National Auto Credit, Inc. (incorporated by
reference to Exhibit 3(2) to the Company's Form 8B dated
December 27, 1995, SEC File No. 1-11601).
(3)(c) Amended and Restated By-Laws of National Auto Credit, Inc.
dated January 14, 1999. (incorporated by reference to the
Current Report on Form 8-K filed May 25, 1999, SEC File No.
1-11601).
53
<PAGE> 56
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K
- -------- ----------------------------------------------------------------
(cont.)
(4)(c) Specimen Stock Certificate - National Auto Credit, Inc.
(incorporated by reference to the Company's Annual Report on
Form 10-K for the fiscal year ended January 31, 1996, SEC
File No. 1-11601).
(4)(d) Short and Long-term Credit Agreements dated April 21, 1997
between various financial institutions, and the First
National Bank of Chicago as Agent and the Company
(incorporated by reference to the Company's Quarterly Report
on Form 10-Q for the quarter ended April 30, 1997).
(4)(e) 7.66% Senior Notes Agreement due April 21, 2004 between
various insurance companies and the Company dated April 21,
1997 (incorporated by reference to the Company's Quarterly
Report on Form 10-Q for the quarter ended April 30, 1997).
(4)(f) Limited Term Extension dated as of February 13, 1998 between
the Company and certain lenders, filed herewith.
(4)(g) First Amendment to Limited Term Extension dated as of March
6, 1998 between the Company and certain lenders, filed
herewith.
(4)(h) Second Amendment to Limited Term Extension dated as of March
16, 1998 between the Company and certain lenders, filed
herewith.
(4)(i) Third Amendment to Limited Term Extension dated as of May
29, 1998 between the Company and certain lenders, filed
herewith.
(4)(j) Security Agreement dated as of May 29, 1998 between the
Company and certain lenders, filed herewith.
(4)(k) Final Payment and Termination of Credit Agreement and Notes
Purchase Agreement dated as of December 23,1998 between the
Company and certain lenders, filed herewith.
(10)(a) National Auto Credit, Inc. 1983 Stock Option Plan
(incorporated by reference to the Company's Post Effective
Amendment No. 2 to Form S-8 as filed on October 1, 1987,
File No. 2-93984).
(10)(b) National Auto Credit, Inc. 1986 Employees Stock Purchase
Plan (incorporated by reference to the Company's Post
Effective Amendment No. 2 to Form S-8 filed on October 1,
1987, File No. 33-2117).
(10)(c) Form of Directors' Indemnification Agreement dated July 2,
1986 (incorporated by reference to Exhibit 10(f) of the
Company's Annual Report of Form 10-K for fiscal year ended
January 31, 1988, File No. 0-12201).
(10)(d) National Auto Credit, Inc. 1993 Equity Incentive Plan
(incorporated by reference to the Company's Form S-8
Registration Statement as filed on December 28, 1993, File
No. 33-51727).
(10)(g) National Auto Credit, Inc. 401(k) Savings and Retirement
Plan and Trust (incorporated by reference to the Company's
Form S-8 Registration Statement as filed on December 28,
1993, File No. 33-51729).
(10)(h) National Auto Credit, Inc. 1995 Stock Option Plan for Member
Dealers (incorporated by reference to the Company's Form S-3
Registration Statement as filed on May 3, 1995, File No.
33-58579).
(10)(i) Employment Agreement dated as of May 12, 1999, between the
Company and Allen D. Rice (incorporated by reference to
Current Report on Form 8-K filed May 25, 1999).
54
<PAGE> 57
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K
- -------- ----------------------------------------------------------------
(cont.)
(10)(j) Option Agreement, dated May 10, 1999, by and among the
Company, Ernest C. Garcia II (on his own behalf and, for the
purposes of certain provisions of the agreement, on behalf
of Verde Investments, Inc., in his capacity as President)
and Steven Johnson (for purposes of certain portions of the
agreement only, incorporated by reference to Current Report
on Form 8-K filed May 25, 1999).
(10)(k) Irrevocable Proxy of Ernest C. Garcia II and Verde
Investments, Inc. in favor of Henry Toh, dated May 10, 1999
(incorporated by reference to Current Report on Form 8-K
filed May 25, 1999).
(10)(l) Escrow Agreement, dated as of May 10, 1999, by and among the
Company, Ernest C. Garcia II and Gordon, Fournaris &
Mammarella, P.A., as Escrow Agent (incorporated by reference
to Current Report on Form 8-K filed May 25, 1999).
(10)(m) Severance Agreement between Robert J. Bronchetti and the
Company dated March 9, 1998, filed herewith and incorporated
herein by reference.
(10)(n) Consulting Agreement between Richard M. Cohen and the
Company dated November 30, 1998, filed herewith and
incorporated herein by reference.
(10)(o) Separation Agreement between Edward T. Anderson and the
Company dated November 23, 1998, filed herewith and
incorporated herein by reference.
(16) Letter from Deloitte & Touche LLP dated January 20, 1998
(incorporated by reference to Current Report on Form 8-K
filed January 21, 1998).
(17.1) Letter of Resignation, dated March 10, 1998, of Noah T.
Herndon as a director of the Company (incorporated by
reference to Current Report on Form 8-K filed March 16,
1998).
(17.2) Letter of Resignation, dated March 10, 1998, of Per E. Hoel
as a director of the Company (incorporated by reference to
Current Report on Form 8-K filed March 16, 1998).
(17.3) Letter of Resignation, dated March 10, 1998, of J. Hunter
Brown as a director of the Company (incorporated by
reference to Current Report on Form 8-K filed March 16,
1998).
(21) Subsidiaries of National Auto Credit, Inc. at January 31,
1999.
(23) Consent of Independent Certified Public Accountants
(27) Financial Data Schedule
(b) Reports on Form 8-K - The Company filed Form 8-K on each of the following
------------------- dates. None of the reports listed contained financial
statements.
(b) On January 21, 1998 a Form 8-K was filed announcing that the
Company's independent auditors, Deloitte & Touche LLP, had
resigned.
On January 28, 1998 a Form 8-K was filed announcing that the
Company had reached an agreement with its banks to defer
scheduled debt payment.
On February 6, 1998 a Form 8-K was filed announcing that the
Company had reached an agreement with its banks to defer
scheduled debt payment.
55
<PAGE> 58
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K
-------- ----------------------------------------------------------------
(cont.)
(b) On February 19, 1998 a Form 8-K was filed announcing that the Company had
engaged Grant Thornton LLP as their independent auditors in connection with
the audit on its financial statements as of January 31, 1998.
On February 23, 1998 a Form 8-K was filed announcing that the Company's
Board of Directors declined to reinstate Sam Frankino as Chairman.
On March 9, 1998 a Form 8-K was filed announcing that the Company had
reached an agreement with its banks to defer scheduled debt payment.
On March 16, 1998 a Form 8-K was filed announcing the resignation of the
first Special Committee, appointment of New Special Committee, NYSE
delisting, and Robert J. Bronchetti's resignation.
On March 20, 1998 a Form 8-K was filed announcing that the Company had
reached an agreement with its banks to defer scheduled debt payment.
On March 30, 1998 a Form 8-K was filed announcing that Sam J. Frankino
would retire from the Company as Board Chairman, Chief Executive Officer
and a Director.
On May 1, 1998 a Form 8-K was filed announcing that the Company's Annual
Report for year ended January 31, 1998 would not be available within the
prescribed time period.
On June 10, 1998 a Form 8-K was filed announcing that the Company had
engaged the services of the corporate turnaround specialist firm Jay Alix &
Associates and had reached an agreement with its banks to defer scheduled
debt payment.
On August 17, 1998 a Form 8-K was filed announcing that the Company had
reached an agreement with its banks to defer scheduled debt payment.
On November 4, 1998 a Form 8-K was filed announcing that the Company had
engaged Grant Thornton LLP, their independent auditors, to conduct audits
of its financial statements for the years ended January 31, 1997 and 1999.
On November 12, 1998 a Form 8-K was filed announcing that the Company had
paid off substantially all of its outstanding lender debt totaling
approximately $34.9 million. The Company utilized a portion of a $46.7
million federal income tax refund received November 9, 1998.
On December 28, 1998 a Form 8-K was filed announcing that the class action
lawsuits against the Company had been consolidated.
On January 22, 1999 a Form 8-K was filed announcing that the Company had
named Richard M. Cohen as President.
56
<PAGE> 59
SIGNATURES
----------
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, National Auto Credit, Inc. has duly caused this report to
be signed on its behalf by the undersigned, thereunto duly authorized.
National Auto Credit, Inc.
Registrant
Date July 28, 1999 By: /s/ Allen D. Rice
-------------------------- ------------------------
Allen D. Rice
President
Pursuant to the requirements of the Securities Exchange Act of
1934, this report has been signed below by the following persons on
behalf of the Registrant and in the capacities as indicated on July 28,
1999.
Principal Executive Officer: Principal Financial
- ---------------------------- -------------------
and Accounting Officer:
-----------------------
By: /s/ Allen D. Rice By: /s/Richard M. Cohen
--------------------------- -------------------------
Allen D. Rice Richard M. Cohen
President Interim Chief Financial Officer
Directors:
----------
/s/James J. McNamara /s/William S. Marshall
- ------------------------------ ------------------------------
James J. McNamara, Chairman William S. Marshall, Director
of the Board and Director
/s/John A. Gleason /s/ Henry Y. L. Toh
- ------------------------------ ------------------------------
John A. Gleason, Director Henry Y. L. Toh, Director
/s/ Richard M. Cohen
- ------------------------------
Richard M. Cohen, Director
57
<PAGE> 60
SCHEDULE II
VALUATION AND QUALIFYING ACCOUNTS
(In Thousands)
<TABLE>
<CAPTION>
Column A Column B Column C Column D Column E
- --------- -------- ---------------------------------- -------- --------
Additions
Balance at Charged to: Balance
beginning --------------------------------- at end
Description of period Expenses Other Deductions of period
- ----------- ------------ --------------- -------------- -------------- ---------------
<S> <C> <C> <C> <C> <C>
Year ended January 31, 1999
- ----------------------------
Self-insurance claims $ 9,144 $ 50 $ - $ 4,314 (a) $ 4,880
Year ended January 31, 1998
- ----------------------------
Self-insurance claims $ 18,952 $ 713 $ - $ 10,521 (a) $ 9,144
Year ended January 31, 1997
- ----------------------------
Self-insurance claims $ 25,757 $ 3,029 $ - $ 9,834 (a) $ 18,952
</TABLE>
Prior year amounts have been restated as discussed in Note L of the Consolidated
Financial Statements.
(a) Cash disbursements related to self-insured claims.
58
<PAGE> 1
Exhibit (4)(f)
LIMITED TERM EXTENSION
----------------------
This Limited Term Extension ("Extension") is entered into this 13th day
of February, 1998 between National Auto Credit, Inc. ("National"), as borrower,
NAC, Inc. and NAC Investment Company, as guarantors, The First National Bank of
Chicago ("First Chicago"), Morgan Guaranty Trust Company of New York ("Morgan"),
The Bank of New York ("BNY"), First Union National Bank ("First Union"), The
Huntington National Bank ("Huntington"), Allstate Life Insurance Company
("Allstate"), Connecticut General Life Insurance Company (on behalf of itself
and one or more separate accounts, collectively "Connecticut General"),
Principal Mutual Life Insurance Company ("Principal Mutual"), New York Life
Insurance Company ("New York Life"), New York Life Insurance and Annuity
Corporation ("New York Annuity"), Lincoln National Life Insurance Company
("Lincoln National") and Lincoln Life & Annuity Company of New York ("Lincoln
Life"), as lenders, and NBD Bank, ("NBD") as issuer of letters of credit.
DEFINITIONS
-----------
When used herein, the following terms shall have the following
meanings:
"AGENT" means First Chicago in its capacity as Administrative Agent
under the Credit Agreement.
"BANKS" means First Chicago, Morgan, BNY, First Union and Huntington.
"COMMITMENTS" shall have the meaning ascribed to such term in the
Credit Agreement.
"CREDIT AGREEMENT" means that certain Long-Term Credit Agreement dated
as of April 21, 1997 among National and the Banks.
"CREDIT AGREEMENT OBLIGATIONS" means the "Lender Obligations" as
defined in the Credit Agreement.
"DELOITTE" means the public accounting firm of Deloitte and Touche,
L.L.P.
"EXTENSION DEFAULT" means (i) all "Defaults" as defined in the Credit
Agreement, (ii) all "Defaults" as defined in the Note Purchase Agreement, (iii)
any reconstitution, suspension or disbandment of the Special Committee which
precedes issuance of the Special Committee Report, (iv) any abandonment,
interruption or disruption in the conduct of the Special Committee Investigation
or in the preparation of the Special Committee Report, (v) National's failure to
comply with any term or provision of this Limited Term Extension, or (vi) any
demand upon National for payment or attempt to collect outstanding indebtedness
by Brown Brothers Harriman & Co.
<PAGE> 2
"EXTENSION TERMINATION DATE" means the earliest to occur of (i) March
6, 1998, (ii) the occurrence of an Extension Default, and (iii) the fifth
business day after the Special Committee Report is delivered to the Banks and
Insurance Companies.
"FLOATING RATE" shall have the meaning ascribed to such term in the
Credit Agreement.
"INSURANCE COMPANIES" means Allstate, Connecticut General, Principal
Mutual, New York Life, New York Annuity, Lincoln National and Lincoln Life.
"LENDERS" means the Banks and the Insurance Companies.
"LENDER OBLIGATIONS" means the Credit Agreement Obligations and the
Note Obligations.
"LETTER AGREEMENT" means that certain letter agreement dated as of
February 5, 1998 between National and the Banks.
"LETTERS OF CREDIT" means three irrevocable letters of credit in the
face amounts of $300,000, $250,000 and $1,000,000 issued by NBD for the account
of National with designated beneficiaries of Great America Lender Services,
Dealer Assurance Co., and Virginia Surety Co., Inc., respectively.
"LOAN" shall have the meaning ascribed to such term in the Credit
Agreement.
"MAKE-WHOLE OBLIGATION" means the "Make-Whole Amount" as defined in
Section 8.6 of the Note Purchase Agreement, together with all interest accrued
thereon.
"NBD" means NBD Bank, N.A.
"NOTE OBLIGATIONS" means all obligations, including the "Make Whole
Amount", owed to the Insurance Companies by National pursuant to the terms of
the Note Purchase Agreement and the Notes.
"NOTE PURCHASE AGREEMENT" means that certain Note Purchase Agreement
dated as of April 21, 1997 between National and the Insurance Companies (or
their predecessors in interest).
"NOTES" shall have the meaning ascribed to such term in the Note
Purchase Agreement.
"PRINCIPAL OBLIGATIONS" means the sum of (i) the outstanding principal
obligations owed to the Banks under the Credit Agreement, (ii) the outstanding
principal obligations (excluding all Make-Whole Obligations) owed to the
Insurance Companies under the Notes, and (iii) the Reimbursement Obligation;
provided, however, that if the Letters of Credit expire without having been
drawn or are returned to NBD undrawn, Principal Obligations shall not include
the Reimbursement Obligation.
<PAGE> 3
"PRO RATA" means (i) with respect to each Lender, a fraction, the
numerator of which equals the Principal Obligations owed to such Lender and the
denominator of which equals all Principal Obligations, and (ii) with respect to
NBD, a fraction, the numerator of which equals the Reimbursement Obligation and
the denominator of which equals all Principal Obligations.
"REIMBURSEMENT OBLIGATION" means the sum of (i) National's obligation
to reimburse NBD for draws on the Letters of Credit, and (ii) the aggregate
undrawn face amount of the Letters of Credit.
"ROLLOVER LOANS" means Loans totalling $10 million which, pursuant to
the Letter Agreement, mature on February 13, 1998.
"SENIOR OBLIGATIONS" means the Reimbursement Obligation and all Lender
Obligations, except for Make-Whole Obligations.
"SPECIAL COMMITTEE" means the special committee of outside directors
formed by National's board of directors for the purpose of, inter alia,
investigating the information provided by Deloitte with respect to National's
financial statements.
"SPECIAL COMMITTEE INVESTIGATION" means the investigation of the
reportable conditions identified by Deloitte which is currently being conducted
by the Special Committee.
"SPECIAL COMMITTEE REPORT" means the final written report that the
Special Committee will issue after concluding the Special Committee
Investigation.
"TAX NOTES" means the promissory note in the original principal amount
of $141,000 with a payment due date of February 27, 1998, which was executed by
National in connection with its investments in certain low income housing
limited partnerships.
RECITALS
--------
WHEREAS, National presently owes (i) $38 million in Principal
Obligations on Loans extended by the Banks pursuant to the Credit Agreement, and
(ii) $45 million in Principal Obligations on loans extended by the Insurance
Companies pursuant to the terms of the Note Purchase Agreement and Notes.
WHEREAS, on January 12, 1998, National's auditors, Deloitte,
notified National of the existence of 5 reportable conditions relating to
National's internal controls and accounting. Thereafter, on January 16, 1998,
Deloitte resigned its audit engagement.
WHEREAS, on January 16, 1998, the Special Committee was formed
for the purpose of, inter alia, investigating the information provided by
Deloitte with respect to National's financial statements.
<PAGE> 4
WHEREAS, pursuant to the terms of the Letter Agreement, (i)
all Commitments have been terminated, and (ii) the Rollover Loans become due and
payable on February 13, 1998.
WHEREAS, National is unable to satisfy these maturities and,
accordingly, has requested the Banks to extend the maturities.
WHEREAS, if the Banks do not extend the maturities, the
default under the Credit Agreement occasioned by National's failure timely to
pay the maturities will, pursuant to Section 11(f) of the Note Purchase
Agreement, constitute a default under the Note Purchase Agreement.
WHEREAS, at the request of National, by letter agreement dated
December 9, 1997, the Insurance Companies waived compliance with the provisions
of Section 10.5(d) of the Note Purchase Agreements for the fiscal quarter ending
on October 31, 1997 (the "Section 10.5(d) Waiver"), it being expressly
understood and agreed in the December 9th letter agreement that any breach of
such Section 10.5(d) for any fiscal quarter ending after October 31, 1997 shall
be an Event of Default and is not waived.
WHEREAS, by letters dated January 26, 1998 and February 6,
1998, the Insurance Companies extended the Section 10.5(d) Waiver through
February 5, 1998 and February 13, 1998, respectively, conditioned upon
compliance by National with certain terms and conditions set forth in said
letters (the "Waiver Extension").
WHEREAS, the Insurance Companies are willing to provide a
further limited extension of the Waiver Extension on the terms and conditions
contained herein.
WHEREAS, the Banks are willing to provide a limited extension
of maturities on the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. Subject to the remaining provisions hereof and except as
provided in Section 4 below, the Banks agree to extend the maturities of all
Rollover Loans, and the Insurance Companies agree to extend the Waiver
Extension, until the Extension Termination Date.
2. Upon the execution hereof, National shall pay (i) to the
Agent, for distribution to the Banks, all interest accrued through January 31,
1998 on the Credit Agreement Obligations at the contractual, non-default rates
in accordance with the terms of the Credit Agreement, and (ii) to the Insurance
Companies, all interest accrued through January 31, 1998 on the Note Obligations
at the contractual non-default rates, in accordance with the terms of the Note
Purchase Agreement..
<PAGE> 5
3. From and after January 31, 1998, interest will accrue on
the unpaid balance of all Lender Obligations at a per annum rate (computed on
the basis of a 360-day year of twelve 30-day months) equal to the higher of (i)
the Floating Rate, and (ii) 7.66%. Interest will be payable to all Lenders
monthly, in arrears, on the first business day of each month. From and after
January 31, 1998 interest will accrue on the unpaid balance of any overdue
Credit Agreement Obligation or Note Obligation at the rate applicable to such
overdue Obligation under the terms of the Credit Agreement or Note Purchase
Agreement, as the case may be.
4. National shall make principal payments to the Lenders and
NBD on the following dates and in the following amounts:
February 13, 1998 $500,000
February 20, 1998 $500,000
March 6, 1998 $500,000
Each principal payment will be distributed to the Lenders and NBD on a Pro Rata
basis and will be applied by the Lenders against the Principal Obligations.
Principal payments distributed to NBD in respect of the Reimbursement Obligation
will be held by NBD as cash collateral to secure payment of the Reimbursement
obligation until the Letters of Credit are drawn. If one or more Letters of
Credit expires or is returned to NBD undrawn, NBD will distribute the cash
collateral then held by NBD in respect of such Letter(s) of Credit to all
Lenders (and, to the extent that other letters of Credit remain outstanding, to
NBD) for reduction of Principal Obligations on a Pro Rata basis. The remaining
balance of all Lender Obligations shall be due and payable in full on the
Extension Termination Date; provided, however, that to the extent payment of the
Note Obligations is voluntarily waived or extended by the Insurance Companies
beyond the Extension Termination Date, the Extension Termination Date shall not
constitute a "Settlement Date" for purposes of Section 8.6 of the Note Purchase
Agreement.
5. Principal payments distributed to the Insurance Companies
in accordance with paragraph 4 above shall constitute optional prepayments under
and pursuant to Section 8.2 of the Note Purchase Agreement to which the
Make-Whole Obligation applies in accordance with the terms and provisions of the
Note Purchase Agreement; provided, however, that the make-Whole Obligation shall
accrue interest as set forth in Paragraph 3 above and shall be payable subject
to the provisions of paragraph 6 herein), with such interest, at the time of
final maturity (whether by payment, prepayment, acceleration or otherwise) of
the Notes; and provided further that with respect to the principal payments set
forth above, and no other, the Insurance Companies hereby waive the notice,
certificate and minimum amount provisions of Section 8.2 of the Note Purchase
Agreement.
<PAGE> 6
6. National's Make-Whole Obligation shall be subordinate in
priority to the full cash payment of all Senior Obligations (including all
interest accrued and expenses incurred subsequent to the filing by National of a
petition for relief under 11 U.S.C. ss.101 et. seq., regardless of whether such
interest or expenses are allowed or allowable in such proceeding). National will
not make, and the Insurance Companies will not accept, any cash payments in
respect of the Make-Whole Obligation until the Senior Obligations have been paid
in cash in full, provided that any non-cash payment received by the Insurance
Companies shall be held as collateral for the repayment of all Senior
Obligations until all Senior Obligations have been paid in cash in full,
provided that, in the event the Senior Obligations are not paid in cash in full,
such non cash payment (or the proceeds thereof, if the Lenders so elect) shall
be distributed pro rata to the Lenders for application to the Senior
Obligations. With respect to Reimbursement Obligations, "paid in full" shall
mean either that the Letters of Credit have been terminated and any
Reimbursement Obligations have been paid in full in cash, or with respect to any
outstanding Letters of Credit, that such Letters of Credit have been fully cash
collateralized. The foregoing contractual subordination of the Make-Whole
Obligation is solely for the benefit of the holders of the Senior Obligations
and may not be asserted by any other creditor of National whether under the
theory of third-party beneficiary or otherwise.
7. National shall update the Lenders, no less frequently than
weekly, concerning the Special Committee's progress with its investigation which
updates shall take the form of oral reports to counsel and, at the request of
the Lenders, to the Lenders. National shall deliver to the Lenders the Special
Committee Report immediately upon its completion.
8. National may, in its discretion and during the term of this
Extension, pay up to $141,000 in principal obligations due on one or more of the
Tax Notes. Except for these payments on the Tax Notes (and principal payments to
the Lenders and NBD), National will not, during the term of this Extension, make
principal payments on any other Indebtedness.
9. Notwithstanding any prior or future waiver of defaults by
the Lenders, (i) National will promptly pay the monthly statements for the
reasonable fees and expenses incurred on behalf of the Lenders by, and will also
fund retainers (in amounts satisfactory to the Lenders) for, the firms of
Policano & Manzo, L.L.C., O'Melveny & Myers LLP, and Sidley & Austin, and (ii)
during the period between January 20 and March 6, 1998 (but without waiving or
limiting the Lenders' rights to reimbursement of fees and expenses as provided
in the Note Purchase Agreement and Credit Agreement). National will reimburse
each Lender for its reasonable fees and expenses (including reasonable fees and
expenses for outside and in-house counsel) incurred by such Lender in connection
with such Lender's loans to National in accordance with the terms of the Credit
Agreement and the Note Purchase Agreement, as the case may be.
10. Except for the provisions of paragraphs 3,4, and 6 above,
(i) the provisions of this Extension apply solely to the specific payments,
waivers and extensions expressly provided for herein, and each of the parties
hereto preserves all other rights and remedies, and (ii) the terms and
provisions of the Credit Agreement, the Letter of Credit applications and
reimbursement agreements executed in connection with the Letters of Credit, the
Note Purchase Agreement and the Notes, together with all instruments and
documents executed in connection with those agreements, shall remain in full
force and effect, and all of the parties' rights and remedies under such
instruments and documents are expressly preserved.
<PAGE> 7
11. This Extension shall be binding upon any successors and
assigns of the parties hereto.
12. This Extension is a contract made under, and shall be
governed by and construed in accordance with, the law of the State of Illinois
applicable to contracts made and to be performed entirely within such State and
without giving effect to choice of law principles of such State.
NATIONAL AUTO CREDIT, INC.
By:
-----------------------------------
Its
-----------------------------------
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent and as a
Lender
By:
---------------------------------
Its
---------------------------------
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as Documentation Agent
and as a Lender
By:
---------------------------------
Its
---------------------------------
THE BANK OF NEW YORK
By:
---------------------------------
Its
---------------------------------
FIRST UNION NATIONAL BANK
(formerly known as First Union
National Bank of North Carolina)
By:
---------------------------------
Its
---------------------------------
THE HUNTINGTON NATIONAL BANK
By:
---------------------------------
Its
---------------------------------
<PAGE> 8
ALLSTATE LIFE INSURANCE COMPANY
By:
---------------------------------
Its
---------------------------------
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY BY CIGNA INVESTMENTS, INC.
By:
---------------------------------
Its
---------------------------------
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY ON BEHALF OF ONE OR MORE
SEPARATE ACCOUNTS BY CIGNA
INVESTMENTS, INC.
By:
---------------------------------
Its
---------------------------------
PRINCIPAL MUTUAL LIFE INSURANCE
COMPANY
By:
---------------------------------
Its
---------------------------------
By:
---------------------------------
Its
---------------------------------
NEW YORK LIFE INSURANCE COMPANY
By:
---------------------------------
Its
---------------------------------
NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION
BY NEW YORK LIFE INSURANCE COMPANY
By:
---------------------------------
Its
---------------------------------
<PAGE> 9
LINCOLN NATIONAL LIFE INSURANCE
COMPANY
By:
---------------------------------
Its
---------------------------------
LINCOLN LIFE & ANNUITY COMPANY OF
NEW YORK
By:
---------------------------------
Its
---------------------------------
NBD BANK
By:
---------------------------------
Its
---------------------------------
NAC, INC.
By:
---------------------------------
Its
---------------------------------
NAC INVESTMENT COMPANY
By:
---------------------------------
Its
---------------------------------
<PAGE> 1
Exhibit 4(g)
FIRST AMENDMENT TO LIMITED TERM EXTENSION
This First Amendment to Limited Term Extension (the "First
Amendment") is entered into this 6th day of March, 1998 between National Auto
Credit, Inc. ("National"), as borrower, NAC, Inc. and NAC Investment Company, as
guarantors, The First National Bank of Chicago ("First Chicago"), Morgan
Guaranty Trust Company of New York ("Morgan"), The Bank of New York ("BNY"),
First Union National Bank ("First Union"), The Huntington National Bank
("Huntington"), Allstate Life Insurance Company ("Allstate"), Connecticut
General Life Insurance Company (on behalf of itself and one or more separate
accounts, collectively "Connecticut General"), Principal Mutual Life Insurance
Company ("Principal Mutual"), New York Life Insurance Company ("New York Life"),
New York Life Insurance and Annuity Corporation ("New York Annuity"), Lincoln
National Life Insurance Company ("Lincoln National") and Lincoln Life & Annuity
Company of New York ("Lincoln Life"), as lenders, and NBD Bank, ("NBD") as
issuer of letters of credit. Capitalized terms not otherwise defined herein
shall have the meanings ascribed to such terms in that certain Limited Term
Extension (the "Extension") dated as of February 13, 1998.
RECITALS
--------
WHEREAS, National presently owes (i) approximately $37.5
million in Principal Obligations on Loans extended by the Banks pursuant to the
Credit Agreement, and (ii) approximately $44.5 million in Principal Obligations
on loans extended by the Insurance Companies pursuant to the terms of the Note
Purchase Agreement and Notes.
WHEREAS, on February 13, 1998, National, the Lenders and NBD
entered into the Extension pursuant to which the Banks granted National a
limited extension of maturities and the Insurance Companies granted National a
limited extension of the Waiver Extension, all on the terms and conditions
specifically set forth therein.
WHEREAS, pursuant to the terms of the Extension, all Lender
Obligations become due and payable in full on March 6, 1998.
WHEREAS, National has requested the Lenders and NBD for an
extension of the Extension Termination Date so as to afford the Special
Committee an opportunity to conclude its investigation and issue the Special
Committee Report.
WHEREAS, National has also informed the Lenders that National
has collected more than $5 million of cash (the "Excess Cash") which is excess
to National's operating needs and that National intends to remit such Excess
Cash to the Lenders for application to the Lender Obligations.
<PAGE> 2
WHEREAS, the Lenders and NBD are prepared to extend the
Extension Termination Date for a period not to exceed ten days and on the terms
and conditions contained herein.
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree to amend the Extension as follows:
1. The definition of "Extension Termination Date" is amended
in its entirety so that, as amended, it provides as follows:
"EXTENSION TERMINATION DATE" means the earliest to occur of (i) March
16, 1998, and (ii) the occurrence of an Extension Default.
2. Paragraph 4 of the Extension is amended in its entirety so
that, as amended, it provides as follows:
National shall make principal payments to the Lenders and NBD on the
following dates and in the following amounts:
February 13, 1998 $500,000
February 20, 1998 $500,000
March 6, 1998 $5,500,000
Each principal payment will be distributed to the Lenders and NBD on a
Pro Rata basis and will be applied by the Lenders against the Principal
Obligations. Principal payments distributed to NBD in respect of the
Reimbursement Obligation will be held by NBD as cash collateral to
secure payment of the Reimbursement Obligation until the Letters of
Credit are drawn. If one or more Letters of Credit expires or is
returned to NBD undrawn, NBD will distribute the cash collateral then
held by NBD in respect of such Letter(s) of Credit to all Lenders (and,
to the extent that other Letters of Credit remain outstanding, to NBD)
for reduction of Principal Obligations on a Pro Rata basis. The
remaining balance of all Lender Obligations shall be due and payable in
full on the Extension Termination Date; provided, however, that to the
extent payment of the Note Obligations is voluntarily waived or
extended by the Insurance Companies beyond the Extension Termination
Date, the Extension Termination Date shall not constitute a "Settlement
Date" for purposes of Section 8.6 of the Note Purchase Agreement.
3. Except to the extent that it is amended by the terms of
this First Amendment, the terms and provisions of the Extension shall remain in
full force and effect.
<PAGE> 3
4. This First Amendment is a contract made under, and shall be
governed by and construed in accordance with, the law of the State of Illinois
applicable to contracts made and to be performed entirely within such State and
without giving effect to choice of law principles of such State.
NATIONAL AUTO CREDIT, INC.
By:
------------------------------------
Its
------------------------------------
NAC, INC.
By:
------------------------------------
Its
------------------------------------
NAC INVESTMENT COMPANY
By:
------------------------------------
Its
------------------------------------
THE FIRST NATIONAL BANK OF CHICAGO, as
Administrative Agent and as a Lender
By:
------------------------------------
Its
------------------------------------
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as Documentation Agent and as a Lender
By:
------------------------------------
Its
------------------------------------
THE BANK OF NEW YORK
By:
------------------------------------
Its
------------------------------------
FIRST UNION NATIONAL BANK (formerly known
as First Union National Bank of North
Carolina)
By:
------------------------------------
Its
------------------------------------
<PAGE> 4
THE HUNTINGTON NATIONAL BANK
By:
------------------------------------
Its
------------------------------------
ALLSTATE LIFE INSURANCE COMPANY
By:
------------------------------------
Its
------------------------------------
By:
------------------------------------
Its
------------------------------------
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
BY CIGNA INVESTMENTS, INC.
By:
------------------------------------
Its
------------------------------------
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
ON BEHALF OF ONE OR MORE SEPARATE ACCOUNTS
BY CIGNA INVESTMENTS, INC.
By:
------------------------------------
Its
------------------------------------
PRINCIPAL MUTUAL LIFE INSURANCE COMPANY
By:
------------------------------------
Its
------------------------------------
NEW YORK LIFE INSURANCE COMPANY
By:
------------------------------------
Its
------------------------------------
<PAGE> 5
NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION
BY NEW YORK LIFE INSURANCE COMPANY
By:
------------------------------------
Its
------------------------------------
LINCOLN NATIONAL LIFE INSURANCE COMPANY
By:
------------------------------------
Its
------------------------------------
LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
By:
------------------------------------
Its
------------------------------------
NBD BANK
By:
------------------------------------
Its
------------------------------------
<PAGE> 1
Exhibit (4)(h)
SECOND AMENDMENT TO LIMITED TERM EXTENSION
This Second Amendment to Limited Term Extension (the "Second
Amendment") is entered into this 16th day of March, 1998 between National Auto
Credit, Inc. ("National"), as borrower, NAC, Inc. and NAC Investment Company, as
guarantors, The First National Bank of Chicago ("First Chicago"), Morgan
Guaranty Trust Company of New York ("Morgan"), The Bank of New York ("BNY"),
First Union National Bank ("First Union"), The Huntington National Bank
("Huntington"), Allstate Life Insurance Company ("Allstate"), Connecticut
General Life Insurance Company (on behalf of itself and one or more separate
accounts, collectively "Connecticut General"), Principal Mutual Life Insurance
Company ("Principal Mutual"), New York Life Insurance Company ("New York Life"),
New York Life Insurance and Annuity Corporation ("New York Annuity"), Lincoln
National Life Insurance Company ("Lincoln National") and Lincoln Life & Annuity
Company of New York ("Lincoln Life"), as lenders, and NBD Bank, ("NBD") as
issuer of letters of credit. Capitalized terms not otherwise defined herein
shall have the meanings ascribed to such terms in that certain Limited Term
Extension dated as of February 13, 1998 (as amended to the date hereof, the
"Extension").
RECITALS
--------
WHEREAS, National presently owes (i) approximately $35 million
in Principal Obligations on Loans extended by the Banks pursuant to the Credit
Agreement, and (ii) approximately $41.5 million in Principal Obligations on
loans extended by the Insurance Companies pursuant to the terms of the Note
Purchase Agreement and Notes.
WHEREAS, on February 13, 1998, National, the Lenders and NBD
entered into the Extension pursuant to which the Banks granted National a
limited extension of maturities and the Insurance Companies granted National a
limited extension of the Waiver Extension, all on the terms and conditions
specifically set forth therein.
WHEREAS, pursuant to the terms of the Extension, all Lender
Obligations became due and payable in full on March 6, 1998.
WHEREAS, on March 6, 1998, National, the Lenders and NBD
entered into the First Amendment to Limited Term Extension (the "First
Amendment") pursuant to which the Lenders granted National an additional limited
extension of maturities and the Insurance Companies granted National an
additional limited extension of the Waiver Extension, all on the terms and
conditions specifically set forth therein.
WHEREAS, National has requested the Lenders and NBD for an
additional extension of the Extension Termination Date.
WHEREAS, the Lenders and NBD are prepared to extend the
Extension Termination Date until May 29, 1998 on the terms and conditions
contained herein.
<PAGE> 2
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree to amend the Extension as follows:
1. The definition of "Extension Default" is amended in its
entirety so that, as amended, it provides as follows:
"EXTENSION DEFAULT" means (i) all "Defaults" as defined in the Credit
Agreement, (ii) all "Defaults" as defined in the Note Purchase
Agreement, (iii) National's failure to comply with any term or
provision of this Limited Term Extension, or (iv) the payment by
National of any portion of the principal obligations owed to Brown
Brothers Harriman & Co.
2. The definition of "Extension Termination Date" is amended
in its entirety so that, as amended, it provides as follows:
"EXTENSION TERMINATION DATE" means the earlier to occur of (i) May 29,
1998, and (ii) the occurrence of an Extension Default.
3. The following definition is added to the Extension:
"RECONSTITUTED SPECIAL COMMITTEE" means the special committee appointed
by National's Board of Directors on March 11, 1998.
4. Paragraph 2 of the Extension is amended in its entirety so
that, as amended, it provides as follows:
"2. Upon the execution hereof, National shall pay to the
Agent, for distribution to the Banks, and to the Insurance Companies,
all interest accrued through March 19, 1998 on the Credit Agreement
Obligations and the Note Obligations, respectively, at the rates set
forth in paragraph 3 of the Extension."
5. Paragraph 3 of the Extension is amended in its entirety so
that, as amended, it provides as follows:
"3. From and after January 31, 1998, interest will accrue on
the unpaid balance of all Lender Obligations at a per annum rate
(computed on the basis of a 360-day year of twelve 30-day months) equal
to the higher of (i) the Floating Rate, and (ii) 7.66%. Commencing on
March 20, 1998 interest will be payable to all Lenders weekly, in
arrears, on Friday of each week. From and after January 31,1998
interest will accrue on the unpaid balance of any overdue Credit
Agreement Obligation or Note Obligation at the rate applicable to such
overdue Obligation under the terms of the Credit Agreement or Note
Purchase Agreement, as the case may be."
6. Paragraph 4 of the Extension is amended in its entirety so
that, as amended, it provides as follows:
<PAGE> 3
"4. National shall make principal payments to the Lenders and
NBD on the following dates and in the following amounts:
February 19, 1998 $1,000,000
March 6, 1998 $5,500,000
March 19, 1998 $6,000,000
National shall make payments to the Lenders and NBD on the following
dates and in the following amounts, to be applied first to accrued and
unpaid interest, and the balance to principal:
March 20, 1998 $625,000
March 27, 1998 $625,000
April 3, 1998 $625,000
April 10, 1998 $625,000
April 17, 1998 $625,000
April 24, 1999 $625,000
May 1, 1998 $625,000
May 8, 1998 $625,000
May 15, 1998 $625,000
May 22, 1998 $625,000
May 29, 1998 $625,000
National shall also remit to the Lenders, for application to the
Principal Obligations, all federal tax refunds (if any) received by
National through May 29, 1998, when and as such refunds are received.
Each principal payment will be distributed to the Lenders and NBD on a
Pro Rata basis and will be applied by the Lenders against the Principal
Obligations. Principal payments distributed to NBD in respect of the
Reimbursement Obligation will be held by NBD as cash collateral to
secure payment of the Reimbursement Obligation until the Letters of
Credit are drawn. If one or more Letters of Credit expires or is
returned to NBD undrawn, NBD will distribute the cash collateral then
held by NBD in respect of such Letter(s) of Credit to all Lenders (and,
to the extent that other Letters of Credit remain outstanding, to NBD)
for reduction of Principal Obligations on a Pro Rata basis. The
remaining balance of all Lender Obligations shall be due and payable in
full on the Extension Termination Date; provided, however, that to the
extent payment of the Note Obligations is voluntarily waived or
extended by the Insurance Companies beyond the Extension Termination
Date, the Extension Termination Date shall not constitute a "Settlement
Date" for purposes of Section 8.6 of the Note Purchase Agreement."
<PAGE> 4
7. Paragraph 7 of the Extension is amended in its entirety so
that, as amended, it provides as follows:
"7. National shall update the Lenders, no less frequently than
bi-weekly, which updates shall take the form of oral reports to counsel
and, at the request of the Lenders, to the Lenders concerning (i) the
business and operations of National, (ii) National's progress in its
efforts to obtain financing, (iii) the Reconstituted Special
Committee's internal review of National, (iv) National's negotiation of
the terms and provisions of the settlement agreement that National
intends to enter into with the United States Department of Labor, and
(v) such other matters as the Lenders may reasonably request."
8. Paragraph 9 of the Extension is amended in its entirety so
that, as amended, it provides as follows:
"9. Notwithstanding any prior or future waiver of defaults by
the Lenders (and without waiving or modifying rights available to the
Lenders under the Credit Agreement and the Note Purchase Agreement),
(i) National will, on a monthly basis or such shorter time as the
Lenders may request, promptly pay statements (which statements may or
may not be accompanied by the billing information described in the last
sentence of this paragraph) for the reasonable fees and expenses
incurred on behalf of the Lenders by the firms of Policano & Manzo,
LLC, O'Melveny & Myers LLP, and Sidley & Austin, and (ii) National
will, on a monthly basis, reimburse each Lender for its reasonable fees
and expenses (including reasonable fees and expenses for outside and
in-house counsel as well as travel and other expenses for each Lender's
personnel) incurred by such Lender in connection with such Lender's
loans to National in accordance with the terms of the Credit Agreement
and the Note Purchase Agreement, as the case may be. Additionally, it
is an express condition to the effectiveness of this Amendment that all
outstanding statements for fees and expenses incurred by Policano &
Manzo, LLC, O'Melveny & Myers LLP, and Sidley & Austin shall have been
paid in full in connection with the matters set forth herein. The
Lenders will, when or as soon as is reasonably practicable after
statements have been submitted to National for payment, provide
National with copies of the billing information submitted to the
Lenders by Policano & Manzo, LLC, O'Melveny & Myers LLP, and Sidley &
Austin; provided, however, that the Lenders shall be entitled to redact
information which the Lenders believe to be subject to privilege or to
be otherwise confidential."
9. The following paragraphs shall be added to the Extension as
paragraphs 13, 14, 15 and 16, respectively:
"13. National shall deliver to the Lenders, no later than May
15, 1998, a comprehensive business plan reflecting National's projected
operations, including all cash receipts and disbursements in a format
and in detail reasonably acceptable to National and Policano & Manzo,
LLC.
14. National shall promptly inform the former National
directors who served on the Special Committee until March 9, 1998, as
well as the professionals who had been retained by the Special
Committee prior to March 9,1998, that National consents to such former
directors and such professionals communicating directly with the
Lenders concerning all facets of the Special Committee Report.
<PAGE> 5
15. National shall, and National shall cause Grant Thornton
to, cooperate with Policano & Manzo, LLC in all respects. Without
limiting the foregoing in any respect, National and Grant Thornton
shall promptly provide Policano & Manzo, LLC with all information and
reports (reasonably available to National and/or Grant Thornton) that
may be reasonably requested by Policano & Manzo, LLC, including,
without limitation, balance sheets, income statements and statements of
changes in cash position and any financial information provided by
National to prospective lenders.
16. The Lenders hereby agree:
(a) to extend the time limit, imposed by Section 5.1(d)(iii)
of the Credit Agreement and Section 7.1(b) of the Note Purchase
Agreement, within which National must deliver audited financial
statements (meeting the requirements set forth in Section 5.1(d)(iii)
of the Credit Agreement and Section 7.1(b) of the Note Purchase
Agreement) to the Lenders until two business days after National's
independent auditors issue their audit opinion to National; provided,
however, that in no event will the time limit extend beyond the
Extension Termination Date;
(b) to extend the time limit, imposed by Section 5.1(d)(vii)
of the Credit Agreement and Section 7.1(j) of the Note Purchase
Agreement, within which National must deliver the prescribed claims
analysis to the Lenders until two business days after National's
independent auditors issue their audit opinion to National; provided,
however, that in no event will the time limit extend beyond the
Extension Termination Date;
(c) to suspend National's obligation to comply with the fixed
charge coverage ratio covenants contained in Section 5.2(b) of the
Credit Agreement and Section 10.5(d) of the Note Purchase Agreement
until the Extension Termination Date; and
(d) that, in light of the foregoing extensions and suspension,
neither (i) National's failure to deliver audited financials meeting
the requirements set forth in Section 5.1(d)(iii) of the Credit
Agreement and Section 7.1(b) of the Note Purchase Agreement within 100
days after the end of its 1998 fiscal year, (ii) National's failure to
deliver the specified claims analysis within 30 days of the end of its
1998 fiscal year, nor (iii) National's failure to comply with the fixed
charge coverage ratios during the term of this Extension shall
constitute an Extension Default."
10. Except to the extent that they are amended by the terms of
this Second Amendment, the terms and provisions of the Extension shall remain in
full force and effect.
11. This Second Amendment is a contract made under, and shall
be governed by and construed in accordance with, the law of the State of
Illinois applicable to contracts made and to be performed entirely within such
State and without giving effect to choice of law principles of such State.
<PAGE> 6
NATIONAL AUTO CREDIT, INC.
By:
--------------------------------------
Its
--------------------------------------
NAC, INC.
By:
--------------------------------------
Its
--------------------------------------
NAC INVESTMENT COMPANY
By:
--------------------------------------
Its
--------------------------------------
THE FIRST NATIONAL BANK OF CHICAGO, as
Administrative Agent and as a Lender
By:
--------------------------------------
Its
--------------------------------------
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as Documentation Agent and as
a Lender
By:
--------------------------------------
Its
--------------------------------------
THE BANK OF NEW YORK
By:
--------------------------------------
Its
--------------------------------------
FIRST UNION NATIONAL BANK (formerly known
as First Union National Bank of North
Carolina)
By:
--------------------------------------
Its
--------------------------------------
<PAGE> 7
THE HUNTINGTON NATIONAL BANK
By:
--------------------------------------
Its
--------------------------------------
ALLSTATE LIFE INSURANCE COMPANY
By:
--------------------------------------
Its
--------------------------------------
By:
--------------------------------------
Its
--------------------------------------
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY BY CIGNA INVESTMENTS, INC.
By:
--------------------------------------
Its
--------------------------------------
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY ON BEHALF OF ONE OR MORE SEPARATE
ACCOUNTS BY CIGNA INVESTMENTS, INC.
By:
--------------------------------------
Its
--------------------------------------
PRINCIPAL MUTUAL LIFE INSURANCE COMPANY
By:
--------------------------------------
Its
--------------------------------------
By:
--------------------------------------
Its
--------------------------------------
NEW YORK LIFE INSURANCE COMPANY
By:
--------------------------------------
Its
--------------------------------------
<PAGE> 8
NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION BY NEW YORK LIFE INSURANCE
COMPANY
By:
--------------------------------------
Its
--------------------------------------
LINCOLN NATIONAL LIFE INSURANCE COMPANY
By:
--------------------------------------
Its
--------------------------------------
LINCOLN LIFE & ANNUITY COMPANY OF
NEW YORK
By:
--------------------------------------
Its
--------------------------------------
NBD BANK
By:
--------------------------------------
Its
--------------------------------------
<PAGE> 1
Exhibit (4)(i)
THIRD AMENDMENT TO LIMITED TERM EXTENSION
This Third Amendment to Limited Term Extension (the "Third
Amendment") is entered into as of this 29th day of May, 1998 between National
Auto Credit, Inc. ("National"), as borrower, NAC, Inc. and NAC Investment
Company, as guarantors, The First National Bank of Chicago ("First Chicago"),
Morgan Guaranty Trust Company of New York ("Morgan"), The Bank of New York
("BNY"), First Union National Bank ("First Union"), The Huntington National Bank
("Huntington"), Allstate Life Insurance Company ("Allstate"), Connecticut
General Life Insurance Company (on behalf of itself and one or more separate
accounts, collectively "Connecticut General"), Principal Mutual Life Insurance
Company ("Principal Mutual"), New York Life Insurance Company ("New York Life"),
New York Life Insurance and Annuity Corporation ("New York Annuity"), Lincoln
National Life Insurance Company ("Lincoln National") and Lincoln Life & Annuity
Company of New York ("Lincoln Life"), as lenders, and NBD Bank, ("NBD") as
issuer of letters of credit. Capitalized terms not otherwise defined herein
shall have the meanings ascribed to such terms in that certain Limited Term
Extension dated as of February 13, 1998 (as amended to the date hereof, the
"Extension").
RECITALS
--------
WHEREAS, National presently owes (i) approximately $29.7
million in Principal Obligations on Loans extended by the Banks pursuant to the
Credit Agreement, and (ii) approximately $35.1 million in Principal Obligations
on loans extended by the Insurance Companies pursuant to the terms of the Note
Purchase Agreement and Notes.
WHEREAS, on February 13, 1998, National, the Lenders and NBD
entered into the Extension pursuant to which the Banks granted National a
limited extension of maturities and the Insurance Companies granted National a
limited extension of the Waiver Extension, all on the terms and conditions
specifically set forth therein.
WHEREAS, pursuant to the terms of the Extension, all Lender
Obligations became due and payable in full on March 6, 1998.
WHEREAS, on March 6, 1998 and March 16, 1998, National, the
Lenders and NBD entered into the First Amendment to Limited Term Extension (the
"First Amendment") and the Second Amendment to Limited Term Extension (the
"Second Amendment"), respectively, pursuant to which the Lenders granted
National additional limited extensions of maturities and the Insurance Companies
granted National additional limited extensions of the Waiver Extension, all on
the terms and conditions specifically set forth therein.
<PAGE> 2
WHEREAS, National has requested the Lenders and NBD for an
additional extension of the Extension Termination Date.
WHEREAS, the Lenders and NBD are prepared to extend the
Extension Termination Date until September 30, 1998 on the terms and conditions
contained herein.
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree to amend the Extension as follows:
1. The definition of "Extension Termination Date" is amended
in its entirety so that, as amended, it provides as follows:
"EXTENSION TERMINATION DATE" means the earlier to occur of (i)
September 30, 1998, and (ii) the occurrence of an Extension Default.
2. The following definition is added:
"PRIME RATE" means the rate of interest announced from time to time by
the Agent as its prime rate.
3. Paragraph 3 of the Extension is amended in its entirety so
that, as amended, it provides as follows:
"3. From January 31, 1998 through May 29, 1998, interest will
accrue on the unpaid balance of all Lender Obligations at a per annum
rate (computed on the basis of a 360-day year of twelve 30-day months)
equal to the higher of (i) the Floating Rate, and (ii) 7.66%. After May
29, 1998, interest will accrue on the unpaid balance of all Lender
Obligations at a per annum rate (computed on the basis of a 360-day
year of twelve 30-day months) equal to the higher of (i) the Prime Rate
plus 2%, and (ii) 9.66%. Commencing on March 20, 1998 interest will be
payable to all Lenders weekly, in arrears, on Friday of each week. From
and after May 29, 1998 interest will accrue on the unpaid balance of
any overdue Credit Agreement Obligation or Note Obligation at a per
annum rate (computed on the basis of a 360-day year of twelve 30-day
months) equal to the Prime Rate plus 4%."
4. Paragraph 4 of the Extension is amended in its entirety so
that, as amended, it provides as follows:
"4. Subject to the provisions of paragraph 17 below, National
shall make principal payments to the Lenders and NBD on the following
dates and in the following amounts:
<PAGE> 3
February 19, 1998 $1,000,000
March 6, 1998 $5,500,000
March 16, 1998 $6,000,000
May 29, 1998 $9,000,000
Additionally, National shall make payments to the Lenders and NBD on
the dates and in the amounts set forth on Exhibit A, to be applied
first to accrued and unpaid interest, and the balance to principal.
Until all Lender Obligations and the Reimbursement Obligation have been
paid in full, National shall also remit to the Lenders all tax refunds
received by National (except as otherwise provided in the security
agreement to be executed by the parties), when and as such refunds are
received. Each principal payment (and such tax refunds) will be
distributed to the Lenders and NBD on a Pro Rata basis and will be
applied by the Lenders, except as provided in paragraph 17 below,
against the Principal Obligations. Principal payments distributed to
NBD in respect of the Reimbursement Obligation will be held by NBD as
cash collateral to secure payment of the Reimbursement Obligation until
the Letters of Credit are drawn. If one or more Letters of Credit
expires or is returned to NBD undrawn, NBD will distribute the cash
collateral then held by NBD in respect of such Letter(s) of Credit to
all Lenders (and, to the extent that other Letters of Credit remain
outstanding, to NBD) for reduction of Principal Obligations on a Pro
Rata basis. The remaining balance of all Lender Obligations shall be
due and payable in full on the Extension Termination Date; provided,
however, that to the extent payment of the Note Obligations is
voluntarily waived or extended by the Insurance Companies beyond the
Extension Termination Date, the Extension Termination Date shall not
constitute a "Settlement Date" for purposes of Section 8.6 of the Note
Purchase Agreement."
5. Paragraph 9 of the Extension is amended in its entirety so
that, as amended, it provides as follows:
"9. Notwithstanding any prior or future waiver of defaults by
the Lenders (and without waiving or modifying rights available to the
Lenders under the Credit Agreement and the Note Purchase Agreement),
(i) National will, on a monthly basis or such shorter time as the
Lenders may request, promptly pay statements for the reasonable fees
and expenses incurred on behalf of the Lenders by the firms of Policano
& Manzo, LLC, O'Melveny & Myers LLP, and Sidley & Austin, and (ii)
National will, on a monthly basis, reimburse each Lender for its
reasonable fees and expenses (including reasonable fees and expenses
for outside and in-house counsel as well as travel and other expenses
for each Lender's personnel) incurred by such Lender in connection with
such Lender's loans to National in accordance with the terms of the
Credit Agreement and the Note Purchase Agreement, as the case may be.
Additionally, it is an express condition to the effectiveness of this
Amendment that all outstanding statements for fees and expenses
incurred by Policano & Manzo, LLC, O'Melveny & Myers LLP, and Sidley &
Austin shall have been paid in full in connection with the matters set
forth herein. The Lenders will provide National with
<PAGE> 4
copies of the billing information submitted to the Lenders by Policano
& Manzo, LLC, O'Melveny & Myers LLP, and Sidley & Austin; provided,
however, that the Lenders shall be entitled to redact information which
the Lenders believe to be subject to privilege or to be otherwise
confidential."
6. The following paragraphs shall be added to the Extension as
paragraphs 16 and 17, respectively:
"16. National, NAC, Inc and NAC Investment Company shall each
execute (and shall cause their affiliate, ARAC, Inc. ("ARAC") to
execute) security agreements substantially in the form of attached
Exhibit A and shall thereby each grant to the Lenders and NBD a
security interest in and lien upon all of their respective right, title
and interest in and to federal and state income tax refunds to secure
payment of the Reimbursement Obligation and all Lender Obligations, as
well as NAC, Inc.'s and NAC Investment Company's guaranties of the
Lender Obligations."
"17. If NAC fails to pay the Lender Obligations in full on or
before September 30, 1998, the Lenders shall be entitled to receive
from NAC, on September 30, 1998, an amendment fee in the amount of
$500,000. In such event, (i) the amendment fee shall be deemed to have
been paid with $500,000 of the monies paid to the Lenders on May 29,
1998, (ii) $500,000 of Principal Obligations previously paid with such
sum shall automatically reinstate, effective as of May 29, 1998, and
(iii) NAC shall immediately pay to the Lenders interest accrued on the
reinstated principal from May 29, 1998 through the date of payment at
the rate specified in paragraph 3 above."
7. Except to the extent that they are amended by the terms of
this Third Amendment, the terms and provisions of the Extension shall remain in
full force and effect.
8. This Third Amendment is a contract made under, and shall be
governed by and construed in accordance with, the law of the State of Illinois
applicable to contracts made and to be performed entirely within such State and
without giving effect to choice of law principles of such State.
NATIONAL AUTO CREDIT, INC.
By:
----------------------------------
Its
-----------------------------------
NAC, INC.
By:
----------------------------------
Its
-----------------------------------
<PAGE> 5
NAC INVESTMENT COMPANY
By:
----------------------------------
Its
-----------------------------------
THE FIRST NATIONAL BANK OF CHICAGO, as
administrative Agent and as a Lender
By:
----------------------------------
Its
-----------------------------------
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as Documentation Agent and as
a Lender
By:
----------------------------------
Its
-----------------------------------
THE BANK OF NEW YORK
By:
----------------------------------
Its
-----------------------------------
FIRST UNION NATIONAL BANK (formerly known
as First Union National Bank of North
Carolina)
By:
----------------------------------
Its
-----------------------------------
THE HUNTINGTON NATIONAL BANK
By:
----------------------------------
Its
-----------------------------------
<PAGE> 6
ALLSTATE LIFE INSURANCE COMPANY
By:
----------------------------------
Its
-----------------------------------
By:
----------------------------------
Its
-----------------------------------
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY
BY CIGNA INVESTMENTS, INC.
By:
----------------------------------
Its
-----------------------------------
By:
----------------------------------
Its
-----------------------------------
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY ON BEHALF OF ONE OR MORE SEPARATE
ACCOUNTS BY CIGNA INVESTMENTS, INC.
By:
----------------------------------
Its
-----------------------------------
PRINCIPAL MUTUAL LIFE INSURANCE COMPANY
By:
----------------------------------
Its
-----------------------------------
By:
----------------------------------
Its
-----------------------------------
NEW YORK LIFE INSURANCE COMPANY
By:
----------------------------------
Its
-----------------------------------
<PAGE> 7
NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION BY NEW YORK LIFE INSURANCE
COMPANY
By:
----------------------------------
Its
-----------------------------------
LINCOLN NATIONAL LIFE INSURANCE COMPANY
By:
----------------------------------
Its
-----------------------------------
LINCOLN LIFE & ANNUITY COMPANY OF
NEW YORK
By:
----------------------------------
Its
-----------------------------------
NBD BANK
By:
----------------------------------
Its
-----------------------------------
<PAGE> 8
EXHIBIT A
SCHEDULE OF REQUIRED WEEKLY PAYMENTS
<TABLE>
<S> <C>
March 20, 1998 $625,000
March 27, 1998 $625,000
April 3, 1998 $625,000
April 10, 1998 $625,000
April 17, 1998 $625,000
April 24, 1998 $625,000
May 1, 1998 $625,000
May 8, 1998 $625,000
May 15, 1998 $625,000
May 22, 1998 $625,000
May 29, 1998 $625,000
June 5, 1998 $1,000,000
June 12, 1998 $1,000,000
June 19, 1998 $1,000,000
June 26, 1998 $1,000,000
July 3, 1998 $1,000,000
July 10, 1998 $1,000,000
July 17, 1998 $1,000,000
July 24, 1998 $1,000,000
July 31, 1998 $1,000,000
August 7, 1998 $1,000,000
August 14, 1998 $1,000,000
August 21, 1998 $1,000,000
August 28, 1998 $1,000,000
September 4, 1998 $1,000,000
September 11, 1998 $1,000,000
September 18, 1998 $1,000,000
September 25, 1998 $1,000,000
</TABLE>
<PAGE> 1
Exhibit (4)(j)
SECURITY AGREEMENT
This SECURITY AGREEMENT ("AGREEMENT"), dated as of May 29, 1998 is made
by National Auto Credit, Inc. ("National"), NAC, Inc. ("NAC"), NAC Investment
Company ("Investment") and ARAC, Inc. ("ARAC") (National, NAC, Investment and
ARAC shall hereinafter be referred to, individually and collectively, as the
"GRANTORS"), in favor of The First National Bank of Chicago (the "COLLATERAL
AGENT"), and the "Holders of Secured Obligations" (as defined below).
PRELIMINARY STATEMENT
WHEREAS, National has entered into that certain Long-Term Credit
Agreement dated as of April 21, 1997 among National, as the "Borrower" therein,
and the "Banks" (as defined below) (as amended, restated, supplemented or
otherwise modified from time to time, the "CREDIT AGREEMENT"), and that certain
Note Purchase Agreement dated as of April 21, 1997 among National and the
"Insurance Companies" as defined below) (as amended, restated, supplemented or
otherwise modified from time to time, the "NOTE PURCHASE AGREEMENT");
WHEREAS, NAC and Investment have each executed (i) those certain
Guaranty Agreements (the "CREDIT AGREEMENT GUARANTIES") dated as of April 21,
1997 pursuant to which NAC and Investment have guaranteed the full and prompt
payment of all obligations due to the Banks under the Credit Agreement, and (ii)
those certain Guaranties (the "NOTE PURCHASE AGREEMENT GUARANTIES") dated as of
April 21, 1997 pursuant to which NAC and Investment have guaranteed the full and
prompt payment of all obligations due the Insurance Companies under the Note
Purchase Agreement. The Credit Agreement Guaranties and the Note Purchase
Agreement Guaranties shall hereinafter be referred to collectively as the
"PAYMENT GUARANTIES";
WHEREAS, on February 13, 1998, the Grantors, the Lenders and NBD
entered into the Limited Term Extension pursuant to which the Banks granted
National a limited extension of maturities and the Insurance Companies granted
National a limited extension of the Waiver Extension, all on the terms and
conditions specifically set forth therein;
WHEREAS, on March 6, 1998 and March 16, 1998, the Grantors, the Lenders
and NBD entered into the First Amendment to Limited Term Extension (the "FIRST
AMENDMENT") and the Second Amendment to Limited Term Extension (the "SECOND
AMENDMENT"), respectively, pursuant to which the Lenders granted National
additional limited extensions of maturities and the Insurance Companies granted
National additional limited extensions of the Waiver Extension, all on the terms
and conditions specifically set forth therein;
WHEREAS, as of May 29, 1998, the Grantors, the Lenders and NBD entered
into the Third Amendment to Limited Term Extension (the "THIRD AMENDMENT"),
<PAGE> 2
pursuant to which the Lenders have agreed to grant National an additional
limited extension of maturities and the Insurance Companies have agreed to grant
National an additional limited extension of the Waiver Extension, upon
satisfaction of the terms and conditions specifically set forth therein; and
WHEREAS, pursuant to the Third Amendment, it is a condition precedent
to granting additional limited extensions of maturities under the Credit
Agreement and of the Waiver Extension under the Note Purchase Agreement that the
Grantors shall grant the security interests contemplated by this Agreement.
NOW, THEREFORE, in consideration of the premises set forth herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINED TERMS. Unless otherwise defined herein, terms defined in the
Extension are used herein as therein defined, and the following terms shall
have the following meanings (such meanings being equally applicable to both the
singular and the plural forms of the terms defined):
"AFFILIATE" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person is the
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934) of greater than ten percent (10%) of any class of voting securities (or
other voting interests) of the controlled Person or possesses, directly or
indirectly, the power to direct or cause the direction of the management or
policies of the controlled Person, whether through ownership of capital stock,
by contract or otherwise.
"AGREEMENT" shall mean this Security Agreement, as the same may from
time to time be amended, restated, modified or supplemented, and shall refer to
this Agreement as the same may be in effect at the time such reference becomes
operative.
"COLLATERAL" shall mean all of Grantors' right, title and interest in
and to all general intangibles consisting of federal, state and local tax
refunds and tax refund claims, whether now owned or hereafter arising or
acquired, together with all proceeds thereof.
"EXTENSION" shall mean the Limited Term Extension, as amended,
restated, supplemented or otherwise modified from time to time.
"GROSS NEGLIGENCE" shall mean recklessness, or actions taken or omitted
with conscious indifference to or the complete disregard of consequences. Gross
Negligence does not mean the absence of ordinary care or diligence, or an
inadvertent act or inadvertent failure to act.
"HOLDERS OF SECURED OBLIGATIONS" shall mean the holders of the Secured
Obligations from time to time and shall include (i) the Lenders in respect of
the Lender
<PAGE> 3
Obligations and (ii) NBD in respect of Reimbursement Obligation, and shall
include their respective successors, transferees and assigns.
"LIEN" shall mean any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, the interest of a vendor or lessor
under any conditional sale, capitalized lease or other title retention
agreement).
"PERSONS" shall mean any individual, corporation, firm, enterprise,
partnership, trust, incorporated or unincorporated association, joint venture,
joint stock company, limited liability company or other entity of any kind, or
any government or political subdivision or any agency, department or
instrumentality thereof.
"REQUIRED LENDERS" shall mean those Lenders holding, in aggregate, 67%
in principal amount of the outstanding Lender Obligations.
"RESTRICTED ACCOUNT" shall mean a deposit account established by
Grantors at The First National Bank of Chicago and into which the Grantors are
obligated, pursuant to Section 7 below, to deposit all items of payment relating
to the Collateral, except for proceeds of any state or local (but not federal)
tax refund which refund is in an amount less than $50,000.
"SECURED OBLIGATIONS" shall mean collectively, (i) the Lender
Obligations, including NAC's and Investment's obligations under the Payment
Guaranties, and (ii) the Reimbursement Obligation.
"SECURED OBLIGATION DOCUMENT" shall mean any of (i) the Credit
Agreement, (ii) the Note Purchase Agreement, (iii) each Letter of Credit, (iv)
the Payment Guaranties, and (v) the Extension.
"UCC" shall mean the Uniform Commercial Code as the same may, from time
to time, be in effect in the State of Illinois; PROVIDED, HOWEVER, in the event
that, by reason of mandatory provisions of law, any or all of the attachment,
perfection or priority of the Collateral Agent's and the Holders of Secured
Obligations' security interest in any Collateral is governed by the Uniform
Commercial Code as in effect in a jurisdiction other than the State of Illinois,
the term "UCC" shall mean the Uniform Commercial Code as in effect in such other
jurisdiction for purposes of the provisions hereof relating to such attachment,
perfection or priority and for purposes of definitions related to such
provisions.
SECTION 2. GRANT OF SECURITY. To secure the prompt and complete
payment, observance and performance of the Secured Obligations, Grantors hereby
assign and pledge to the Collateral Agent, for the benefit of itself and the
Holders of Secured Obligations, and hereby grant to the Collateral Agent, for
the benefit of itself and the Holders of Secured Obligations, a security
interest in all of Grantors' right, title and
<PAGE> 4
interest in and to all general intangibles consisting of federal, state and
local tax refunds and tax refund claims, whether now owned or existing or
hereafter arising or acquired, together with all proceeds thereof; provided,
however, that the Collateral Agent, on behalf of itself and the Holders of
Secured Obligations, consents to Grantors' retention and use of proceeds from
any state or local (but not federal) tax refund which refund is in an amount
less than $50,000.
SECTION 3. REPRESENTATIONS AND WARRANTIES. Grantors represent and
warrant, as of the date of this Agreement and as of each date hereafter (except
for changes permitted or contemplated by this Agreement) until termination of
this Agreement pursuant to SECTION 20:
(a) The correct corporate names of Grantors are set forth in the first
paragraph of this Agreement. The chief place of business and chief executive
office of Grantors are located at the addresses of Grantors set forth below each
of the Grantors' signatures hereto.
(b) Grantors are, to the best of their knowledge, the legal and
beneficial owner of the Collateral free and clear of all Liens. The Grantors
currently conduct business under the name "National Auto Credit, Inc." and, in
certain areas and for certain operations, the trade names listed on SCHEDULE 1.
To the best of their knowledge, the Grantors use no trade names or fictitious
names, except as set forth on SCHEDULE 1.
(c) This Agreement creates in favor of the Collateral Agent a legal,
valid and enforceable security interest in the Collateral. When financing
statements have been filed in the appropriate offices against the Grantors in
the locations listed on SCHEDULE 2, the Collateral Agent will have a fully
perfected first priority lien on, and security interest in, the Collateral in
which a security interest may be perfected by such filing.
(d) No authorization, approval or other action by, and no notice to or
filing with, any Governmental Authority that has not already been taken or made
and which is in full force and effect, is required (i) for the grant by Grantors
of the security interest in the Collateral granted hereby; (ii) for the
execution, delivery or performance of this Agreement by Grantors; or (iii) for
the exercise by the Collateral Agent of any of its rights or remedies hereunder.
SECTION 4. PERFECTION AND MAINTENANCE OF SECURITY INTEREST AND LIEN.
Grantors agree that until all of the Secured Obligations have been fully
satisfied and each Secured Obligations Document has been terminated, the
Collateral Agent's security interests in and Liens on and against the Collateral
and all proceeds and products thereof, shall continue in full force and effect.
Grantors shall perform any and all steps reasonably requested by the Collateral
Agent to perfect, maintain and protect the Collateral Agent's security interests
in and Liens on and against the Collateral granted hereby or to enable the
Collateral Agent to exercise its rights and remedies hereunder with respect to
any Collateral, including, without limitation, (i) executing and filing
financing or continuation statements, or amendments thereof, in form and
substance
<PAGE> 5
reasonably satisfactory to the Collateral Agent, (ii) delivering to the
Collateral Agent all certificates, notes and other instruments representing or
evidencing Collateral, which certificates, notes and other instruments have been
duly endorsed and are accompanied by duly executed instruments of transfer or
assignment, including, but not limited to, note powers, all in form and
substance satisfactory to the Collateral Agent, and (iii) executing and
delivering all further instruments and documents, and taking all further action,
as the Collateral Agent may reasonably request.
SECTION 5. FINANCING STATEMENTS. To the extent permitted by applicable
law, Grantors hereby authorize the Collateral Agent to file one or more
financing or continuation statements and amendments thereto, disclosing the
security interest granted to the Collateral Agent under this Agreement without
Grantors' signatures appearing thereon and the Collateral Agent agrees to notify
the Grantors when such a filing has been made. Grantors agree that a carbon,
photographic, photostatic, or other reproduction of this Agreement or of a
financing statement is sufficient as a financing statement.
SECTION 6. FILING COSTS. Grantors shall pay the reasonable costs of, or
incidental to, all recordings or filings of all financing statements, including,
without limitation, any filing expenses incurred by the Collateral Agent
pursuant to SECTION 5.
SECTION 7. DEPOSIT INTO RESTRICTED ACCOUNT. At such time as the
Grantors or any of their Affiliates (or Grantors' or their Affiliates'
shareholders, directors, officers, employees, agents or those Persons acting for
or in concert with Grantors or their Affiliates) shall receive or come into the
possession or control of any monies, checks, notes, drafts or any other payment
relating to, or proceeds of, any property constituting Collateral hereunder
(individually, a "PAYMENT ITEM", and, collectively, "PAYMENT ITEMS"), then,
except (i) as otherwise permitted in a writing signed by the Collateral Agent
(with the consent of all Holders of Secured Obligations), (ii) for proceeds of
any state or local (but not federal) tax refund which is in an amount less than
$50,000, Grantors shall, or shall cause such Affiliate or such other Person to,
deposit the same, in kind in precisely the form in which such Payment Item was
received (with all Payment Items endorsed if necessary for collection) into the
Restricted Account. The Collateral Agent shall have the authority to, and shall,
debit amounts deposited in the Restricted Account as soon as funds are available
and shall further have the authority to, and shall, distribute the debited funds
to the Lenders and NBD for application to the Secured Obligations as provided in
Section 4 of the Extension.
SECTION 8. GENERAL COVENANTS. Grantors covenant and agree with the
Collateral Agent that from and after the date of this Agreement and until
termination of this Agreement, including pursuant to SECTION 20, Grantors shall:
(a) Keep and maintain at Grantors' own cost and expense reasonably
satisfactory and reasonably complete tax and financial records in a manner
consistent with Grantors' current business practice, including, without
limitation, a record of all payments received and all credits granted with
respect to the Collateral;
<PAGE> 6
(b) Grantors will not create, permit or suffer to exist, and will
defend the Collateral against, and take such other action as is necessary to
remove, any Lien on such Collateral and will defend the right, title and
interest of the Collateral Agent in and to Grantors' rights to such Collateral,
including, without limitation, the proceeds and products thereof, against the
claims and demands of all Persons whatsoever; and
(c) Upon the Collateral Agent's request, Grantors shall execute any and
all documents and take such other actions as may reasonably be deemed necessary
or appropriate by the Collateral Agent in order for the Collateral Agent to
comply with the Federal Assignment of Claims Act of 1940, 31 U.S.C. Section
3727.
SECTION 9. COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT. Upon the
occurrence and during the continuance of an Extension Default, Grantors hereby
irrevocably appoint the Collateral Agent as Grantors' attorney-in-fact, with
full authority in the place and stead of Grantors and in the name of Grantors or
otherwise, from time to time in the Collateral Agent's discretion, to take any
action and to execute any instrument which the Collateral Agent may reasonably
deem necessary or advisable to accomplish the purposes of this Agreement,
including, without limitation, following the occurrence and during the
continuance of an Extension Default, to: (i) ask, demand, collect, sue for,
recover, compromise, receive and give acquittance and receipts for moneys due
and to become due under or in respect of any of the Collateral; (ii) receive,
endorse, and collect any drafts or other instruments, documents and chattel
paper, in connection with the preceding CLAUSE (I); and (iii) file any claims or
take any action or institute any proceedings which the Collateral Agent may deem
necessary or desirable for the collection of any of the Collateral, or otherwise
to enforce the rights of the Collateral Agent with respect to any of the
Collateral.
SECTION 10. COLLATERAL AGENT MAY PERFORM. If Grantors fail to perform
any agreement contained herein or in any Secured Obligation Document, the
Collateral Agent may, upon three days prior written notice to the Grantors,
perform, or cause performance of, such agreement, and the reasonable and
documented expenses of the Collateral Agent incurred in connection therewith
shall be payable by Grantors under SECTION 17.
SECTION 11. COLLATERAL AGENT'S DUTIES. The powers conferred on the
Collateral Agent hereunder are solely to protect its interest in the Collateral
and shall not impose any duty upon it to exercise any such powers. Except for
the safe custody of any Collateral in its possession and the accounting for
moneys actually received by it hereunder, the Collateral Agent shall not have
any duty as to any Collateral. The Collateral Agent shall be deemed to have
exercised reasonable care in the custody and preservation of the Collateral in
its possession if the Collateral is accorded treatment substantially equal to
that which the Collateral Agent accords its own property, it being understood
that the Collateral Agent shall be under no obligation to take any necessary
steps to preserve rights against prior parties or any other rights pertaining to
any Collateral, but may do so at its option, and shall do so at the reasonable
direction of the
<PAGE> 7
Required Lenders, and all reasonable expenses incurred in connection therewith
shall be for the sole account of Grantors and shall be added to the Secured
Obligations.
SECTION 12. REMEDIES. (a) If any Extension Default shall have occurred
and be continuing:
(i) The Collateral Agent shall have, in addition to other rights and
remedies provided for herein or otherwise available to it, all the rights and
remedies of a secured party upon default under the UCC (whether or not the UCC
applies to the affected Collateral), the Federal Assignment of Claims Act of
1940 and other applicable law. Grantors agree that, to the extent notice of sale
shall be required by law, at least ten (10) days' notice to Grantors of the time
and place of any public sale or the time after which any private sale is to be
made shall constitute reasonable notification. The Collateral Agent shall not be
obligated to make any sale of Collateral regardless of notice of sale having
been given. The Collateral Agent may adjourn any public or private sale from
time to time by announcement at the time and place fixed therefor, and such sale
may, without further notice, be made at the time and place to which it was so
adjourned;
(ii) The Collateral Agent shall apply all cash proceeds received by the
Collateral Agent in respect of any sale of, collection from, or other
realization upon all or any part of the Collateral (after payment of any amounts
payable to the Collateral Agent pursuant to SECTION 17), for the benefit of the
Holders of Secured Obligations, against all or any part of the Secured
Obligations in the following order:
(A) First, proceeds shall be distributed to the Lenders, on a
pro rata basis, in respect of accrued and unpaid interest and
fees due under the Secured Obligations Documents except for
fees and interest due in respect of the Make-Whole Obligation;
(B) Second, proceeds shall be distributed to the Lenders and
NBD on a Pro Rata basis and shall be applied by the Lenders,
except as provided in paragraph 17 of the Extension, against
the Principal Obligations. Proceeds distributed to NBD in
respect of the Reimbursement Obligation shall be held by NBD
as cash collateral to secure payment of the Reimbursement
Obligation until the Letters of Credit are drawn. If one or
more Letters of Credit expires or is returned to NBD undrawn,
NBD will distribute the cash collateral then held by NBD in
respect of such Letter(s) of Credit to all Lenders (and, to
the extent that other Letters of Credit remain outstanding, to
NBD) for reduction of Principal Obligations on a Pro Rata
basis;
(C) Third, after all Senior Obligations (including all
interest accrued and expenses incurred subsequent to the
filing by the Grantor of a petition for relief under 11 U.S.C.
ss.101 et seq., regardless of whether such interest or
expenses are allowed or allowable in such proceeding) have
peen paid in cash in full, proceeds shall be distributed to
the Insurance Companies in
<PAGE> 8
respect of the Make-Whole Obligation under the Note Purchase
Agreement. With respect to the Reimbursement Obligation, "paid
in full" shall mean either that the Letters of Credit have
been terminated and any Reimbursement Obligation has been paid
in full in cash, or with respect to any outstanding Letter of
Credit, that such Letters of Credit have been fully cash
collateralized; and
(D) Finally, any surplus of such cash or cash proceeds held by
the Collateral Agent and remaining after payment in full of
all the Secured Obligations shall be paid over to Grantors or
to whomsoever may be lawfully entitled to receive such
surplus.
(b) Grantors waive all claims, damages and demands against the
Collateral Agent arising out of the seizure, retention or sale of any of the
Collateral or any part or parts thereof, except any such claims, damages and
awards arising out of the Gross Negligence or willful misconduct of the
Collateral Agent or any of the Holders of Secured Obligations, as the case may
be, as determined in a final non-appealable judgment of a court of competent
jurisdiction; and
(c) The rights and remedies provided under this Agreement are
cumulative and may be exercised singly or concurrently and are not exclusive of
any rights and remedies provided by law or equity.
SECTION 13. EXERCISE OF REMEDIES. In connection with the exercise of
its remedies pursuant to SECTION 12, the Collateral Agent may, with the consent
of all Holders of Secured Obligations, (i) exchange, enforce waive or release
any portion of the Collateral and any other security for the Secured
Obligations; (ii) direct the order or manner of sale of the Collateral as the
Collateral Agent may, from time to time, determine; and (iii) settle,
compromise, collect or otherwise liquidate any such Collateral or security in
any manner following the occurrence of an Extension Default, without affecting
or impairing the Collateral Agent's right to take any other further action with
respect to any Collateral or security or any part thereof.
SECTION 14. INJUNCTIVE RELIEF. Grantors recognize that in the event
Grantors fail to perform, observe or discharge any of their obligations or
liabilities under this Agreement, any remedy of law may prove to be inadequate
relief to the Holders of Secured Obligations; therefore, Grantors agree that the
Holders of Secured Obligations, if the Collateral Agent so determines and
requests, shall be entitled to temporary and permanent injunctive relief in any
such case without the necessity of proving actual damages.
SECTION 15. THE COLLATERAL AGENT.
(a) APPOINTMENT; NATURE OF RELATIONSHIP. The First National Bank of
Chicago is appointed by the Holders of Secured Obligations as the Collateral
Agent hereunder, and each of the Holders of Secured Obligations irrevocably
authorizes the Collateral Agent to
<PAGE> 9
act as the contractual representative of such Holder of Secured Obligations with
the rights and duties expressly set forth herein. The Collateral Agent agrees to
act as such contractual representative upon the express conditions contained in
this SECTION 15. Notwithstanding the use of the defined term "Collateral Agent,"
it is expressly understood and agreed that the Collateral Agent shall not have
any fiduciary responsibilities to any Holder of Secured Obligations by reason of
this Agreement and that the Collateral Agent is merely acting as the
representative of the Holders of Secured Obligations with only those duties as
are expressly set forth in this Agreement. In its capacity as the Holders of
Secured Obligations' contractual representative, the Collateral Agent (i) does
not assume any fiduciary duties to any of the Holders of Secured Obligations,
(ii) is a "representative" of the Holders of Secured Obligations within the
meaning of Section 9-105 of the Uniform Commercial Code and (iii) is acting as
an independent contractor, the rights and duties of which are limited to those
expressly set forth in this Agreement. Each of the Holders of Secured
Obligations agrees to assert no claim against the Collateral Agent on any agency
theory or any other theory of liability for breach of fiduciary duty, all of
which claims each Holder of Secured Obligations waives.
(b) POWERS. The Collateral Agent shall have and may exercise, subject
to the direction of the Required Lenders, such powers under this Agreement as
are specifically delegated to the Collateral Agent by the terms hereof, together
with such powers as are reasonably incidental thereto.
(c) GENERAL IMMUNITY. Neither the Collateral Agent nor any of its
directors, officers, agents or employees shall be liable to the Holders of
Secured Obligations or any Holder of Secured Obligations for any action taken or
omitted to be taken by it or them hereunder or in connection herewith except to
the extent such action or inaction is found in a final judgment by a court of
competent jurisdiction to have arisen from the Gross Negligence or willful
misconduct of such Person.
(d) NO RESPONSIBILITY COLLATERAL, RECITALS, ETC. Neither the Collateral
Agent nor any of its directors, officers, agents or employees shall be
responsible for or have any duty to ascertain, inquire into, or verify (i) any
statement, warranty or representation made in connection with this Agreement;
(ii) the performance or observance of any of the covenants or agreements of the
Grantors hereunder; (iii) the validity, effectiveness or genuineness of any
instrument or writing furnished in connection herewith; or (iv) the perfection
or priority of the security interest in or Lien on the Collateral. The
Collateral Agent shall not be responsible to any Holder of Secured Obligations
for any recitals, statements, representations or warranties herein or for the
perfection or priority of any of the Liens on any of the Collateral, or for the
execution, effectiveness, genuineness, validity, legality, enforceability,
collectibility, or sufficiency of this Agreement. The Collateral Agent will
provide the Holders of Secured Obligations with copies of UCC Financing
Statements and other documents relating to the granting and perfecting of the
Security Interests as may be requested by the Holders of Secured Obligations.
(e) ACTION ON INSTRUCTIONS OF HOLDERS OF SECURED OBLIGATIONS. The
Collateral Agent shall in all cases be fully protected in acting, or in
refraining from acting,
<PAGE> 10
hereunder in accordance with written instructions signed by the Required
Lenders, and such instructions and any action taken or failure to act pursuant
thereto shall be binding on all of the Holders of Secured Obligations. The
Collateral Agent shall be fully justified in failing or refusing to take any
action hereunder unless it shall first be indemnified to its satisfaction by the
Holders of Secured Obligations pro rata against any and all liability, cost and
expense that it may incur by reason of taking or continuing to take any such
action.
(f) RELIANCE ON DOCUMENTS; COUNSEL. The Collateral Agent shall be
entitled to rely upon any note, acceptance, notice, consent, certificate,
affidavit, letter, telegram, statement, paper or document believed by it to be
genuine and correct and to have been signed or sent by the proper person or
persons, and, in respect to legal matters, upon the opinion of counsel selected
by the Collateral Agent, which counsel may be employees of the Collateral Agent.
(g) SUCCESSOR AGENT. The Collateral Agent may resign at any time by
giving written notice thereof to the Holders of Secured Obligations and the
Grantors, and the Collateral Agent may be removed at any time with or without
cause by written notice received by the Collateral Agent from the Required
Lenders. Upon any such resignation or removal, the Required Lenders shall have
the right to appoint, on behalf of the Holders of Secured Obligations, a
successor Collateral Agent.
(h) COLLATERAL DOCUMENTS. Each Holder of Secured Obligations authorizes
the Collateral Agent to enter into each of the Collateral Documents to which it
is a party and to take all action contemplated by such documents. Each Holder of
Secured Obligations agrees that no Holder of Secured Obligations shall have the
right individually to seek to realize upon the security granted by any
Collateral Document, it being understood and agreed that such rights and
remedies may be exercised solely by the Collateral Agent for the benefit of the
Holders of Secured Obligations.
SECTION 16. INTERPRETATION AND INCONSISTENCIES; MERGER; NO STRICT
CONSTRUCTION.
(a) The rights and duties created by this Agreement shall, in all
cases, be interpreted consistently with, and shall be in addition to (and not in
lieu of), the rights and duties created by the Secured Obligation Documents. In
the event that any provision of this Agreement shall be inconsistent with any
provision of any other Secured Obligation Document, such provision of the other
Secured Obligation Document shall govern.
(b) Except as provided in subsection (a) above, this Agreement
represents the final agreement of the Grantors, the Collateral Agent and the
Holders of Secured Obligations with respect to the matters contained herein and
may not be contradicted by evidence of prior or contemporaneous agreements, or
subsequent oral agreements, between the Grantors and the Collateral Agent or any
other Holder of Secured Obligations.
<PAGE> 11
(c) The parties hereto have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties hereto and no presumption or burden of proof shall arise favoring
or disfavoring any party by virtue of the authorship of any provisions of this
Agreement.
SECTION 17. EXPENSES. Grantors will upon demand pay to the Collateral
Agent and/or the Holders of Secured Obligations the amount of any and all
reasonable expenses, including the reasonable fees and disbursements of their
counsel and of any experts and agents, as provided in any of the Secured
Obligation Documents.
SECTION 18. AMENDMENTS, ETC. No amendment or waiver of any provision of
this Agreement nor consent to any departure by Grantors herefrom shall in any
event be effective unless the same shall be in writing and signed by the
Collateral Agent and Grantors, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
SECTION 19. NOTICES. All notices and other communications provided for
hereunder shall be in writing or by telex or by facsimile and addressed or
delivered to such party at its address set forth below its signature hereto or
at such other address as may be designated by such party in a notice to the
other parties. Any notice, if mailed and properly addressed with postage
prepaid, shall be deemed given when received; any notice, if transmitted by
telex or facsimile, shall be deemed given when transmitted (answerback confirmed
in the case of telexes).
SECTION 20. CONTINUING SECURITY INTEREST; TERMINATION. (a) Except as
provided in SECTION 20(B), this Agreement shall create a continuing security
interest in the Collateral and shall (i) remain in full force and effect until
the later of the payment or satisfaction in full of the Secured Obligations and
the termination of each Secured Obligation Document, (ii) be binding upon
Grantors, their successors and assigns and (iii) except to the extent that the
rights of any transferor, or assignor are limited by the terms of any Secured
Obligation Document, inure, together with the rights and remedies of the
Collateral Agent hereunder, to the benefit of the Collateral Agent and any of
the Holders of Secured Obligations. Nothing set forth herein or in any other
Secured Obligation Document is intended or shall be construed to give any other
Person any right, remedy or claim under, to or in respect of this Agreement or
any other Secured Obligation Document or any Collateral. Grantors' successors
and assigns shall include, without limitation, a receiver, trustee or
debtor-in-possession thereof or therefor.
(b) Upon the payment in full in cash of the Secured Obligations and the
termination of all Secured Obligation Documents, this Agreement and the security
interest granted hereby shall automatically terminate and all rights to the
Collateral shall revert to Grantors. Upon any such termination of security
interest, Grantors shall be entitled to the return, upon their request and at
their expense, of such of the Collateral held by the Collateral Agent as shall
not have been sold or otherwise applied pursuant to the terms hereof and the
Collateral Agent will, at Grantors' expense, promptly execute,
<PAGE> 12
file and deliver to Grantors termination statements and such other documents as
Grantors shall reasonably request to evidence such termination.
SECTION 21. SEVERABILITY. It is the parties' intention that this
Agreement be interpreted in such a way that it is valid and effective under
applicable law. However, if one or more of the provisions of this Agreement
shall for any reason be found to be invalid or unenforceable, the remaining
provisions of this Agreement shall be unimpaired.
SECTION 22. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS (WITHOUT REGARD TO
CONFLICTS OF LAW PROVISIONS) OF THE STATE OF ILLINOIS. WITHOUT LIMITING THE
FOREGOING, ANY DISPUTE BETWEEN THE GRANTORS AND THE COLLATERAL AGENT OR ANY
OTHER HOLDER OF SECURED OBLIGATIONS ARISING OUT OF, CONNECTED WITH, RELATED TO,
OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH,
THIS AGREEMENT, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE,
SHALL BE RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS (WITHOUT REGARD TO THE
CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS.
SECTION 23. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (B), EACH
OF THE PARTIES HERETO AGREES THAT ALL DISPUTES BETWEEN THEM ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT, WHETHER ARISING IN CONTRACT,
TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED EXCLUSIVELY BY STATE OR FEDERAL
COURTS LOCATED IN CHICAGO, ILLINOIS, BUT THE PARTIES HERETO ACKNOWLEDGE THAT ANY
APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF
CHICAGO, ILLINOIS.
(B) OTHER JURISDICTIONS. GRANTORS AGREE THAT THE COLLATERAL AGENT, ANY
LENDER OR ANY HOLDER OF SECURED OBLIGATIONS SHALL HAVE THE RIGHT TO PROCEED
AGAINST GRANTORS OR THEIR PROPERTY IN A COURT IN ANY LOCATION TO ENABLE SUCH
PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER THE GRANTORS OR (2) REALIZE ON
THE COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS OR TO ENFORCE A
JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH PERSON. GRANTORS AGREE
THAT THEY WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHT
BY SUCH PERSON TO REALIZE ON THE
<PAGE> 13
COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS OR TO ENFORCE A JUDGMENT OR
OTHER COURT ORDER IN FAVOR OF SUCH PERSON.
(C) SERVICE OF PROCESS. GRANTORS WAIVE PERSONAL SERVICE OF ANY PROCESS
UPON THEM AND, AS ADDITIONAL SECURITY FOR THE OBLIGATIONS, IRREVOCABLY APPOINT
CT CORPORATION SYSTEMS, THE GRANTORS' REGISTERED AGENT, WHOSE ADDRESS IS 1633
BROADWAY, NEW YORK, NEW YORK, 10019 AS GRANTORS' AGENT FOR THE PURPOSE OF
ACCEPTING SERVICE OF PROCESS ISSUED BY ANY COURT. GRANTORS IRREVOCABLY WAIVE ANY
OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH IN ANY JURISDICTION SET FORTH ABOVE AND EACH OF THE OTHER
PARTIES HERETO WAIVES IN ALL DISPUTES BROUGHT PURSUANT TO SUBSECTION (A) ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(D) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(E) WAIVER OF BOND. GRANTORS WAIVE THE POSTING OF ANY BOND OTHERWISE
REQUIRED OF ANY PARTY HERETO IN CONNECTION WITH ANY JUDICIAL PROCESS OR
PROCEEDING TO REALIZE ON THE COLLATERAL (INCLUDING, WITHOUT LIMITATION, THE REAL
PROPERTY COLLATERAL) OR ANY OTHER SECURITY FOR THE SECURED OBLIGATIONS OR TO
ENFORCE ANY JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH PARTY, OR TO
ENFORCE BY SPECIFIC PERFORMANCE, TEMPORARY RESTRAINING ORDER, PRELIMINARY OR
PERMANENT INJUNCTION, THIS AGREEMENT OR ANY OTHER SECURED OBLIGATION DOCUMENT.
<PAGE> 14
(F) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER
PARTY HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE
PROVISIONS OF THIS SECTION 23, WITH ITS COUNSEL.
<PAGE> 15
IN WITNESS WHEREOF, Grantors have caused this Agreement to be duly
executed and delivered by their officers thereunto duly authorized as of the
date first above written.
NATIONAL AUTO CREDIT, INC.
as a Grantor
By:
-------------------------------
Name:
Title:
30000 Aurora Road
Solon, Ohio 44139
Attn.: Ms. Davida Howard
Telecopy No.: (440) 349-3141
NAC, INC.
as a Grantor
By:
-------------------------------
Name:
Title:
30000 Aurora Road
Solon, Ohio 44139
Attn.: Ms. Davida Howard
Telecopy No.: (440) 349-3141
Signature Page to Security Agreement
National Auto Credit, Inc.
<PAGE> 16
NAC INVESTMENT COMPANY
as a Grantor
By:
-------------------------------
Name:
Title:
P.O. Box 50401
Henderson, Nevada 89016
Attn.: Ms. Davida Howard
Telecopy No.: (440) 349-3141
ARAC, INC.,
as a Grantor
By:
-------------------------------
Name:
Title:
30000 Aurora Road
Solon, Ohio 44139
Attn.: Ms. Davida Howard
Telecopy No.: (440) 349-3141
THE FIRST NATIONAL BANK OF CHICAGO, in
its individual capacity and as Collateral
Agent
Signature Page to Security Agreement
National Auto Credit, Inc.
<PAGE> 17
By:
------------------------------------
Name: Phillip D. Martin
Title: Vice President
One First National Plaza
Chicago, Illinois 60670
Attn.: Phillip D. Martin
Telecopy No.: 312-732-1775
Confirmation No.: 312-732-4728
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By:
-------------------------------------
Its
-------------------------------------
THE BANK OF NEW YORK
By:
-------------------------------------
Its
-------------------------------------
FIRST UNION NATIONAL BANK
(formerly known as First Union National
Bank of North Carolina)
By:
-------------------------------------
Signature Page to Security Agreement
National Auto Credit, Inc.
<PAGE> 18
Its
-------------------------------------
THE HUNTINGTON NATIONAL BANK
By:
-------------------------------------
Its
-------------------------------------
ALLSTATE LIFE INSURANCE COMPANY
By:
-------------------------------------
Its
-------------------------------------
By:
-------------------------------------
Its
-------------------------------------
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY BY CIGNA INVESTMENTS, INC.
By:
-------------------------------------
Its
-------------------------------------
Signature Page to Security Agreement
National Auto Credit, Inc.
<PAGE> 19
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY ON BEHALF OF ONE OR MORE SEPARATE
ACCOUNTS BY CIGNA INVESTMENTS, INC.
By:
-------------------------------------
Its
-------------------------------------
PRINCIPAL MUTUAL LIFE INSURANCE COMPANY
By:
-------------------------------------
Its
-------------------------------------
By:
-------------------------------------
Its
-------------------------------------
NEW YORK LIFE INSURANCE COMPANY
By:
-------------------------------------
Its
-------------------------------------
Signature Page to Security Agreement
National Auto Credit, Inc.
<PAGE> 20
NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION BY NEW YORK LIFE INSURANCE
COMPANY
By:
-------------------------------------
Its
-------------------------------------
LINCOLN NATIONAL LIFE INSURANCE COMPANY
By:
-------------------------------------
Its
-------------------------------------
LINCOLN LIFE & ANNUITY COMPANY OF NEW
YORK
By:
-------------------------------------
Its
-------------------------------------
NBD BANK
By:
-------------------------------------
Its
-------------------------------------
Signature Page to Security Agreement
National Auto Credit, Inc.
<PAGE> 21
SCHEDULE 1
TO
SECURITY AGREEMENT
Trade Names:
------------
NAC Capital, Inc.
NAC, Inc.
ARAC, Inc. (formerly, Agency Rent-A-Car)
NACCT, Inc.
NAC Investment Company
<PAGE> 22
SCHEDULE 2
TO
SECURITY AGREEMENT
Financing Statement Filing Locations:
- -------------------------------------
County Clerk
City of Solon
County of Cuyahoga
State of Ohio
Secretary of State of the State of Ohio
Columbus, Ohio
(NAC Investment Company)
Secretary of State
UCC Division
101 North Carson Street #3
Carson City, NV 89701-4786
<PAGE> 1
Exhibit (4)(k)
MANAGED ASSETS DEPARTMENT
One First National Plaza
Chicago, IL 60670-0631
Telephone: 312/732-4728
Fax: 312/732-1775
PHILLIP D. MARTIN
Vice President
December 23, 1998
National Auto Credit
30000 Aurora Road
Solon, Ohio 44139
Attention: Davida Howard
RE: FINAL PAYMENT AND TERMINATION OF CREDIT AGREEMENT AND
NOTE PURCHASE AGREEMENT
Dear Ms. Howard:
Upon receipt by the undersigned, as Collateral Agent under the hereinafter
described Security Agreement, of irrevocable payment of $500,189.90 plus
interest at the currently effective default rate equal to the Prime Rate plus 4%
from November 10, 1998 through the date of receipt of payment in a total amount
verified by Allstate Life Insurance Company ("Final Payment"), all obligations
of National Auto Credit, Inc. ("National"), as borrower, and NAC, Inc. ("NAC")
and NAC Investment Company ("Investment"), as guarantors, under (i) that certain
Long Term Credit Agreement dated as of April 21, 1997 among National and the
Banks named therein (the "Credit Agreement"), (ii) that certain Note Purchase
Agreement dated as of April 21, 1997 among National and the Insurance Companies
named therein (the "Note Purchase Agreement"), (iii) those certain Guaranty
Agreements dated as of April 21, 1997 pursuant to which NAC and Investment
guaranteed the full and prompt payment of all obligations due to the Banks under
the Credit Agreement, (iv) those certain Guarantees dated as of April 21, 1997
pursuant to which NAC and Investment guaranteed the full and prompt payment of
all obligations due to the Insurance Companies under the Note Purchase
Agreement, (v) that certain Limited Term Extension dated as of February 13,
1998, as amended by the First, Second and Third Amendment to Limited Term
Extension, pursuant to which the Banks and Insurance Companies granted National
limited extensions of maturities (the "Extensions"), and (vi) that certain
Security Agreement dated as of May 29, 1998 pursuant to which National, NAC,
Investment and ARAC, Inc. granted in favor of the Collateral Agent a security
interest in the Collateral (as defined therein) (the "Security Agreement"),
shall be deemed satisfied and paid in full, and the Credit Agreement, the Note
Purchase Agreement, the Guaranty Agreements, the Guarantees, the Extensions and
the Security Agreement shall each be terminated, except that National shall
remain liable for only: (A) such reasonable fees and expenses of Sidley &
Austin, O'Melveny & Myers LLP and Policano & Manzo, as counsel and financial
advisors to the
<PAGE> 2
Banks and Insurance Companies, as such firms promptly shall present to National
for payment and may set off against advances held by them; and (B) the
reimbursement obligation related to that certain letter of credit issued by NBD
Bank, which obligation shall remain outstanding until such time as the letter of
credit is drawn or expires by its terms. Said reimbursement obligation shall be
satisfied solely from the cash collateral held by NBD Bank. Upon expiration of
or final draw upon the letter of credit, any cash collateral held by NBD Bank in
excess of the reimbursement obligation promptly shall be returned to National.
National shall make the Final Payment by wire transfer of immediately available
funds to account No. 1916564 at the First National Bank of Chicago, ABA
#071-000013.
Promptly following receipt of Final Payment, the undersigned, as Collateral
Agent under the Security Agreement, shall execute and deliver the National UCC
termination statements evidencing the termination and release of the security
interest granted under the Security Agreement.
Promptly following receipt by them by their pro-rata share of the Final Payment,
each Bank and each Insurance Company shall surrender to National for
cancellation any note it may have in its possession under the Credit Agreement
or the Note Purchase Agreement.
The undersigned, as Collateral Agent, represents and warrants that it is duly
authorized to execute and deliver this letter by, and in so doing is acting with
the consent on behalf of, each Holder of Secured Obligations (as defined in the
Security Agreement).
Sincerely,
THE FIRST NATIONAL BANK OF CHICAGO
By:
---------------------------------
Title:
---------------------------------
<PAGE> 1
Exhibit (10)(m)
AGREEMENT
This Agreement is entered into this 9th day of March, 1998 between
Robert J. Bronchetti ("Bronchetti") and National Auto Credit, Inc., a Delaware
corporation ("NAC"). Bronchetti has been employed by NAC, most recently as its
President and Chief Executive Officer, and has been a member of the Board of
Directors of NAC. Bronchetti and NAC have both determined that it is in their
respective best interests to discontinue both the employment relationship
between them and Bronchetti's membership on the Board of Directors of NAC upon
the terms and subject to the conditions set forth in this Agreement.
Now therefore, for and in consideration of the premises and intending
to be legally bound, Bronchetti and NAC agree as follows:
1. Termination of Employment and Board Membership. Effective
immediately upon the execution of this Agreement by both parties, Bronchetti
hereby resigns (a) as an employee of and as President and Chief Executive
Officer of NAC and as an employee and officer of any and all subsidiaries of
NAC, and (b) as a member of the Board of Directors of NAC and of any and all
subsidiaries of NAC. From and after the effectiveness of these resignations,
Bronchetti shall not be an employee, officer, or director of NAC or any
subsidiary and shall not be required to perform any further services for or on
behalf of NAC or any subsidiary.
2. Consideration. As consideration for the execution of this Agreement
by Bronchetti and his resignation as set forth in Section 1, NAC shall pay and
provide to Bronchetti the following amounts and benefits:
2.1 Severance Payment. NAC shall pay to Bronchetti his salary through
March 14, 1998 by making the payment previously scheduled to be made on
that date. In addition, NAC shall pay to Bronchetti the sum of $500,000
in equal monthly installments of $20,833.33 commencing with a first
installment on April 1, 1998 and continuing through the 24th
installment on March 1, 2000.
2.2 Health and Life Insurance Coverage Continuation. NAC shall provide
to Bronchetti, at NAC's sole cost and expense, health and life
insurance coverage through March 9, 2000 with coverage and benefits
(including family health coverage and benefits) at least as favorable
as the coverage and benefits being provided to Bronchetti immediately
before his resignation.
2.3 Automobile. NAC shall provide Bronchetti with the use of an
automobile through March 9, 2000 with all costs associated with the
operation and use of the automobile borne by NAC, including, without
limitation, all costs of registration, insurance, repairs, maintenance,
fuel, and oil. The automobile so provided shall be the same automobile
provided by NAC to Bronchetti immediately before his resignation except
that, if that automobile must be replaced (due, for example, to
mechanical failure or accident), the replacement automobile shall be a
new automobile of the same make and model.
Page 1 of 3
<PAGE> 2
2.4 Club Dues. NAC shall pay all dues and assessments related to
Bronchetti's membership in Lake Forest Country Club through March 9,
2000.
If Bronchetti dies before March 9, 2000, (a) any installments of the $500,000
provided for In Section 2.1 that had not been made before the date of his death
shall be made to his estate, (b) the health insurance coverage referred to in
Section 2.2 shall be continued to his survivors through March 9, 2000, (c) the
use of the automobile referred to in Section 2.3 shall be made available to his
survivors through March 9, 2000, and (d) the dues and assessments referred to in
Section 2.4 shall continue to be paid through March 9, 2000.
3. Indemnification. NAC shall indemnify Bronchetti, to the fullest
extent permitted or authorized by the Delaware General Corporation Law as it may
from time to time be amended, if Bronchetti is made or threatened to be made a
party to any action, suit, or proceeding, whether civil, criminal,
administrative, or investigative (including, without limitation, the pending
Securities and Exchange Commission investigation and any subsequent enforcement
actions and the pending shareholder litigation), by reason of the fact that
Bronchetti is or was a director, officer, or employee of NAC or any subsidiary
of NAC. The indemnification provided by this Section 3 shall not be deemed
exclusive of any other rights to which Bronchetti may be entitled under the
articles of incorporation or the by-laws of NAC or of any subsidiary (which
rights to indemnification under any such articles and/or by-laws NAC shall
provide to Bronchetti to the fullest extent possible) or any agreement, vote of
shareho1ders or disinterested directors, or otherwise, both as to action in
Bronchetti's official capacity and as to action in another capacity while
holding such office, and shall continue as to Bronchetti after Bronchetti has
ceased to be a director, officer, or employee and shall inure to the benefit of
the heirs, executors, and administrators of Bronchetti.
4. Cooperation in Defense. NAC shall cooperate fully with Bronchetti,
at NAC's sole cost and expense, in Bronchetti's defense of any threatened,
pending, or completed action, suit, or proceeding of the type described in
Section 3. Bronchetti shall cooperate fully with NAC in NAC's defense of any
threatened, pending, or completed action, suit, or proceeding of the type
described in Section 3.
5. Certain Expenses. Expenses (including attorney's fees) incurred by
Bronchetti in defending any action, suit, or proceeding commenced or threatened
against Bronchetti for any action or failure to act as an employee, officer, or
director of NAC or a subsidiary (including any of the type described in Section
3) shall be paid by NAC, as they are incurred, in advance of final disposition
of the action, suit, or proceeding, subject only to the undertaking regarding
potential repayment of such expenses that Bronchetti has heretofore provided to
NAC. The obligation of NAC to advance expenses provided for in this Section 5
shall not be deemed exclusive of any other rights to which Bronchetti may be
entitled under the articles of incorporation or the by-laws of NAC (which
obligation under any such articles and/or by-laws NAC shall fully honor) or any
agreement, vote of shareholders or disinterested directors, or otherwise.
6. No Set-Off; No Obligation to Seek Other Employment or to Otherwise
Mitigate. Except as provided in Section 7 with respect to noncompetition, NAC's
obligation to make the
Page 2 of 3
<PAGE> 3
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense, or other claim whatsoever that NAC or anyone claiming by or through
NAC may have against Bronchetti. Bronchetti shall not be required to mitigate
the amount of any payment provided for under this Agreement by seeking other
employment or otherwise. The amount of any payment provided for under this
Agreement shall not be reduced by any compensation or benefits earned by
Bronchetti as the result of employment by another employer or otherwise after
Bronchetti's resignation.
7. Noncompetition. If Bronchetti commences employment with a third
party in the subprime auto finance business in competition with NAC before March
1, 2000, NAC's obligation to continue to pay installments to Bronchetti pursuant
to Section 2.1 shall terminate as of the date Bronchetti so commences
employment. Bronchetti shall not in any event be obligated to repay to NAC any
installments paid by NAC to Bronchetti at any time before he so commences
employment with such a third party.
8. Validity. The Invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement which shall remain in full force and effect.
9. Miscellaneous. No provision of this Agreement may be modified,
waived, or discharged unless such waiver, modification, or discharge is agreed
to in a writing signed by Bronchetti and NAC. No agreement or representation,
oral or otherwise, express or implied, with respect to the subject matter hereof
has been made by either party which is not set forth expressly in this
Agreement.
IN WITNESS WHEREOF, NAC and Bronchetti have executed this Agreement,
NAC by its duly authorized Chairman of the Board, on the date first written
above.
NATIONAL AUTO CREDIT, INC.
BY /s/ Sam J. Frankino
-----------------------------------------
Sam J. Frankino, Chairman of the Board
/s/ Robert J. Bronchetti
--------------------------------------------
ROBERT J. BRONCHETTI
Page 3 of 3
<PAGE> 1
Exhibit (10)(n)
CONSULTING AGREEMENT
--------------------
This CONSULTING AGREEMENT is made effective as of November 30,
1998 (the "Effective Date") by and between Richard M. Cohen ("Consultant") and
National Auto Credit, Inc., a Delaware corporation (the "Company").
WHEREAS, the Company wishes to retain Consultant as its
consultant to perform consulting services and to advise the Company with respect
to the Company's business under the terms and conditions set forth in this
Agreement.
NOW THEREFORE, in consideration of the premises and mutual
covenants in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. CONSULTING PERIOD. The "Consulting Period" shall mean the
period beginning on the Effective Date and ending on May 31, 1999 (the
"Consulting Period"). The Company shall have the option to renew the Agreement
for an additional six-month period upon notice to Consultant no later than 30
days prior to the expiration of the Consulting Period.
2. CONSULTING SERVICES.
(a) Services. During the Consulting Period,
Consultant shall furnish the Company with Consultant's unique expertise, advice,
consulting and personal services in connection with the Company's business at
such times and locations as the Company may reasonably request (the "Consulting
Services"). The Company, in its sole discretion, may require Consultant to serve
as acting president and/or interim Chief Executive Officer of the Company. The
Company, in its sole discretion, may also require Consultant to serve on the
Company's Board of Directors (the "Board"). Consultant shall devote such time
and attention as is necessary for him to perform the Consulting Services.
Consultant shall report directly to and take direction from the Chief Executive
Officer of the Company unless Consultant is appointed as the acting or interim
Chief Executive Officer of the Company, in which case Consultant shall report
directly to the Board. Consultant shall perform all Consulting Services on
behalf of the Company in a timely, diligent and professional manner in
accordance with the highest commercial industry standards.
(b) RELATIONSHIP. Consultant shall be an independent
contractor, and not an employee of the Company, within the meaning of all
federal, state and local laws and regulations governing employment insurance,
workers' compensation, industrial accidents, labor and taxes. Except as
specifically set forth in this Agreement, Consultant shall not acquire any
benefits, privileges or rights under any benefit plan operated by the Company or
its subsidiaries or affiliates for the
<PAGE> 2
benefit of their employees, including, without limitation, (i) any pension or
profit-sharing plans or (ii) any plans providing medical, dental, disability or
life insurance protection.
3. COMPENSATION. During the Consulting Period, the Company
shall pay to Consultant $33,333 per month for the Consulting Services (the
"Consulting Fee"). The Consulting Fee shall be payable twice per month in
accordance with the Company's normal payroll practices. In addition, during the
Consulting Period, the Company shall, within ten business days after written
request by Consultant, reimburse Consultant for his reasonable direct business
expenses incurred in performing the Consulting Services. During the Consulting
Period, the Company shall also reimburse Consultant for expenses associated with
the use of a vehicle comparable to those afforded to senior executive officers
and directors of the Company.
4. STOCK OPTIONS. As of the effective date of this Agreement,
Consultant will be granted an option to purchase 100,000 shares of the common
stock (the "Stock") of the Company (the "Option") pursuant to the Company's 1993
Equity Incentive Plan (the "Plan"). The per share exercise price for the Option
shall be the Fair Market Value (as defined in the Plan) of one share of Stock as
of the date of grant. The Option with respect to 50,000 shares of Stock shall be
fully vested and exercisable as of the date of grant. The Option with respect to
the remaining 50,000 shares of Stock shall vest and become exercisable on and
after the six month anniversary of the date hereof, provided that Consultant is
still engaged as a consultant or employed by the Company on such date. The
Option shall have such other terms and conditions as determined by the Board and
set forth in the Option Agreement issued in connection with the grant.
5. DIRECTOR AND OFFICER INSURANCE. During the Consulting
Period, the Company shall provide for the coverage of Consultant under the
Company's Director and Officer Insurance policy to the same degree as other
senior officers of the Company.
6. CONFIDENTIAL INFORMATION. During and after the termination
of the Consulting Period, Consultant shall hold in a fiduciary capacity for the
benefit of the Company all secret or confidential information, knowledge or data
relating to the Company or any of its affiliates, and their respective
businesses, which shall have been obtained by Consultant during the Consulting
Period and which shall not be or become public knowledge (other than by acts of
Consultant in violation of this Agreement). Consultant shall not, without the
prior written consent of the Company or as may otherwise be required by law or
legal process, communicate or divulge any such secret or confidential
information, knowledge or data to anyone other than the Company and those
designated by it.
2
<PAGE> 3
7. NONSOLICITATION. During the Consulting Period and for a
period of one year following the termination of the Consulting Period,
Consultant shall not, other than in the normal course of the Company's business
and on behalf of the Company, directly or indirectly, (A) employ, contract with
or enter into a business relationship with, or seek to employ, contract with or
enter into a business relationship with any person who is, or was at any time
within the six-month preceding period, an employee of the Company or any of its
affiliates, or an agent representing any such employee, or otherwise cause or
induce any such employee or agent to terminate his, her or its employment,
contractual relationship or business relationship with the Company or such
subsidiary or affiliate for the employment of, or the creation of a contractual
or business relationship with, another person or company without, in either
case, the prior written consent of the Company. Moreover, During the Consulting
Period and for a period of one year following the termination of the Consulting
Period, Consultant shall not, other than in the normal course of the Company's
business and on behalf of the Company, directly or indirectly, solicit business
from or interfere, by any means whatsoever, with the business relationships
between the Company and its customers without the prior written consent of the
Company.
8. NONCOMPETITION. During the Consulting Period and for a
period of one year following the termination of the Consulting Period,
Consultant shall not directly or indirectly, own, manage, operate, join, control
or participate in or be connected with, as an officer, employee, partner,
stockholder, or otherwise, any business, individual, partnership, firm, or
corporation (collectively "Entity") which is at the time engaged principally or
significantly in a business which is, directly or indirectly, at the time in
competition with the business of the Company, or any affiliate of the Company
thereof in an area in which the Company or such affiliate then conducts
business. Nothing herein, however, shall prohibit Consultant from acquiring or
holding any issue of stock or securities of any Entity which has any securities
listed on a national securities exchange or quoted in the daily listing of
over-the-counter market securities, provided that at any one time he and members
of his immediate family do not own more than five percent (5%) of the voting
securities of any such Entity. If Section 6, 7 or 8 shall for any reason be held
to be excessively broad in any jurisdiction as to duration, scope, activity or
subject, it shall be construed, but only in such jurisdiction, by limiting and
reducing it, so as to be enforceable to the maximum extent compatible with the
applicable law of such jurisdiction.
9. TERMINATION OF THE CONSULTING SERVICES. The Company or
Consultant may at any time and for any reason terminate this Agreement and the
Consulting Services.
(a) This Agreement and the Consulting Services shall
automatically terminate upon the death of Consultant. Upon
3
<PAGE> 4
the death of Consultant during the Consulting Period, the Company shall pay to
Consultant's estate any earned but unpaid portion of the Consulting Fee through
the date of death and thereafter shall have no further obligation to Consultant
hereunder.
(b) In the event that Consultant suffers a physical
or mental disability that prevents him from fulfilling the Consulting Services
for a period of 60 consecutive days or for 90 nonconsecutive days during the
Consulting Period (a "Disability"), the Company may terminate this Agreement and
the Consulting Services. In the event that the Company terminates this Agreement
on account of a Disability, the Company shall pay to Consultant any earned but
unpaid portion of the Consulting Fee through the date of termination and
thereafter shall have no further obligation to Consultant hereunder.
(c) In the event that the Company terminates this
Agreement and the Consulting Services for Cause (as defined below) or if
Consultant voluntarily terminates this Agreement and the Consulting Services,
the Company shall pay to Consultant any earned but unpaid portion of the
Consulting Fee through the date of termination and thereafter shall have no
further obligation to Consultant hereunder. The Company shall have "Cause" to
terminate this Agreement and the Consulting Services for any of the following
reasons: (A) incompetence, fraud, personal dishonesty, defalcation or acts of
gross negligence or gross misconduct on the part of Executive in the course of
his employment; (B) a material breach of Executive's fiduciary duty of loyalty
to the Company; (C) an intentional breach of this Agreement by Executive that is
injurious to the Company; (D) Executive's conviction by a court of competent
jurisdiction of, or pleading "guilty" or "no contest" to, (x) a felony, or (y)
any other criminal charge (other than minor traffic violations) which could
reasonably be expected to have a material adverse impact on Company's reputation
and standing in the community or business; (E) consistent drunkenness by
Executive or his illegal use of narcotics which is, or could reasonably be
expected to become, materially injurious to the reputation or business of the
Company or which impairs, or could reasonably be expected to impair, the
performance of Executive's duties hereunder; or (F) willful failure by Executive
to follow the lawful directions of the Board or any officer of the Company
senior to Executive, representing disloyalty to the goals of the Company.
(d) In the event that the Company terminates this
Agreement and the Consulting Services without Cause, Company shall continue to
pay the Consulting Fee in the course of its normal payroll practices through the
remainder of the Consulting Period as though Consultant had continued to provide
the Consulting Services and thereafter shall have no further obligation to
Consultant hereunder.
(e) In the event that Consultant becomes an employee
of the Company, this Agreement shall automatically
4
<PAGE> 5
terminate and the Company shall pay to Consultant any earned but unpaid portion
of the Consulting Fee through the date of termination and thereafter shall have
no further obligation to Consultant hereunder. Following the expiration of the
Consulting Period, the Company shall have no further obligation to Consultant
hereunder. Following the termination of this Agreement, whether by the Company,
by Consultant or through expiration of the Consulting Period, the obligations of
Consultant pursuant to Sections 6, 7 and 8 shall remain intact.
10. SUCCESSORS.
(a) This Agreement is personal to Consultant and
shall not be assignable by Consultant without the prior written consent of the
Company.
(b) This Agreement shall inure to the benefit of and
be binding upon the Company and its successors or assigns.
11. MISCELLANEOUS.
(a) This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without reference to
principles of conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect. This Agreement may not
be amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors or legal representatives.
(b) The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
(c) The failure of the Company at any time to enforce
performance by Consultant of any provisions of this Agreement shall in no way
affect the Company's rights thereafter to enforce the same, nor shall the waiver
by the Company of any breach of any provision hereof be held to be a waiver of
any other breach of the same or any other provision.
(d) This Agreement contains the entire understanding
of the Company and Consultant with respect to the subject matter hereof, and
supersedes and renders null and void any previous agreements between them with
respect thereto.
(e) Consultant shall be solely responsible for, and
the Company shall not withhold from any amounts payable under this Agreement,
any federal, state or local taxes payable by Consultant with respect to the
payments hereunder.
5
<PAGE> 6
(f) This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have hereunto duly executed
this Agreement and the have caused these presents to be duly executed in their
name on their behalf.
Consultant
/s/ Richard M. Cohen
---------------------------------------
Richard M. Cohen
National Auto Credit, Inc.
By: /s/ James J. McNamara
------------------------------------
Title: Chairman of the Board
6
<PAGE> 1
Exhibit (10)(o)
EXECUTION COPY
SEPARATION AGREEMENT
--------------------
THIS SEPARATION AGREEMENT, dated as of November 23, 1998 (the
"Effective Date"), by and between National Auto Credit, Inc., a Delaware
corporation (the "Company") and Edward T. Anderson ("Executive").
W I T N E S S E T H :
---------------------
WHEREAS, Executive has expressed his intention to resign from
employment with the Company, and in connection therewith, the Company and
Executive have determined to enter into this Separation Agreement;
NOW, THEREFORE, in consideration of their mutual promises, the Company
and Executive agree as follows:
1. RESIGNATION. Effective as of the Effective Date, Executive hereby
resigns from active employment with, including all positions with and titles
with respect to, the Company and all of its direct and indirect subsidiaries.
The Company shall treat Executive's termination of employment for all purposes
as a voluntary resignation.
2. SEPARATION PAYMENT. In consideration for the promises, covenants and
releases provided by Executive pursuant to this Separation Agreement including,
but not limited to, (i) the consulting services as set forth in Section 3
herein, (ii) the covenants with respect to non-competition, non-solicitation,
and confidentiality pursuant to Sections 7 and 8 herein and (ii) the Full and
Final Release (attached as Exhibit A hereto), the Company shall pay to Executive
a separation payment in an amount equal to $189,000 (the "Separation Payment").
The Separation Payment shall be paid to Executive in 12 equal installments on
the last normal payroll date of each month during the period commencing on
December 24, 1998 and ending on November 26, 1999.
3. CONSULTING ARRANGEMENT. Executive agrees to provide consulting
services to the Company (the "Consulting Services") during the period commencing
on the Effective date and ending on November 30, 1999 (the "Consulting Period").
During the Consulting Period, Executive shall be available in person and by
telephone to provide consultation and advice with respect to the transition of
the individual chosen by the Company to replace Executive in Executive's former
position with the Company and any other area that the Company reasonably
requests consultation and advice; provided, however, that the Consulting
Services shall be limited to 20 hours per week.
4. EMPLOYEE BENEFIT PROGRAMS. (a) Except as expressly provided herein,
Executive's participation in, and coverage under any and all Company provided
benefit plans, policies and
<PAGE> 2
arrangements shall cease on the Effective Date. Notwithstanding the immediately
preceding sentence, the Company shall continue in effect the same medical and
life insurance benefits currently made available to Executive and his dependents
(the "Welfare Benefits"), subject to such changes applicable to the Welfare
Benefits with respect to all employees of the Company, until the earlier of
November 30, 1999 or the date on which Executive obtains employment providing
him and his dependents with comparable Welfare Benefits; provided, however, that
the continuation of the Welfare Benefits shall be subject to Executive's payment
to the Company, through deductions from monthly Separation Payments or
otherwise, of the employee portion of the cost of such Welfare Benefits at the
same level as all other employees of the Company. If Executive obtains
employment providing fewer than all such Welfare Benefits, the Company may
discontinue the Welfare Benefits as to which counterpart benefits are provided
by such other employer. In addition, Executive shall be allowed to continue to
use the Company provided automobile that Executive is currently using for three
additional months commencing on the Effective Date and ending on February 26,
1999, at which time Executive must return the car to the Company. Executive's
termination of employment on the Effective Date shall constitute a "qualifying
event" for the purposes of Part 6 of Title 1 of the Employee Retirement Income
Security Act of 1974, as amended ("COBRA"). Executive acknowledges on behalf of
himself and his dependents that any period with respect to which any of them
otherwise would be eligible to elect continued group health plan coverage under
COBRA shall be reduced by the period of post-termination Welfare Benefit
continuation provided by this Separation Agreement.
5. RELEASE. Executive hereby agrees and acknowledges that, upon payment
of the amounts expressly provided for in this Separation Agreement, he will have
received full payment for all services rendered on behalf of the Company. In
consideration for the valuable consideration provided to Executive under this
Separation Agreement, Executive shall execute the release in favor of the
Company attached hereto as Exhibit A. Such release shall pertain to any and all
claims that Executive may now have or may hereafter have against the Company or
any of its predecessors, subsidiaries or affiliates arising out of or in
connection with Executive's employment with, or service as an officer or a
director of, the Company or any of its subsidiaries or affiliates, other than
any claim for the payments or benefits to be provided to Executive under or in
accordance with the terms of this Separation Agreement.
6. WITHHOLDING. All payments to be made or benefits to be provided to
Executive in accordance with this Separation Agreement shall be made net of all
applicable income and employment taxes required to be withheld from such
payments.
7. CONFIDENTIAL INFORMATION. Except as may be required by an order of a
court or agency of competent jurisdiction,
<PAGE> 3
Executive agrees to keep secret and confidential all non-public information
concerning the Company and its subsidiaries and affiliates which was acquired by
or disclosed to the Executive during the course of his employment by the Company
or any of its subsidiaries or affiliates, including information relating to
customers (including, without limitation, credit history, repayment history,
financial data and plans, whether past, current or planned) ("Confidential
Information") and not to disclose the same, either directly or indirectly, to
any other person, firm or business entity, or to use it in any way; provided,
however, that the provisions of this Section 7 shall not apply to information
which is in the public domain or generally known in the industry or that was
disclosed to Executive by independent third parties who were not bound by an
obligation of confidentiality. The Executive further agrees that he will not
make any statement or disclosure which would be prohibited by applicable Federal
or state laws, and he will not make any statement or disclosure which is
intended or reasonably likely to be detrimental to or disparaging about the
Company or any of its subsidiaries or affiliates. Upon execution of this
Separation Agreement, Executive shall promptly deliver to the Company all
Company owned property in his possession or control, including, without
limitation, all Company products, all personal property of the Company, all
documents and all copies thereof, all software, notebooks, files, correspondence
and all materials containing Confidential Information in any form.
8. NON-COMPETITION/NON-SOLICITATION. Executive agrees that for the
period commencing on the Effective Date and ending on the date that is the first
anniversary of the Effective Date (the "Separation Period"), the Executive will
not serve as or be a consultant to or employee, officer, agent, director or
owner (of more than five percent (5%)) of another corporation, partnership or
other entity which competes with the Company in the Business of the Company. The
"Business" of the Company shall mean sub-prime auto financing at purchase
discounts exceeding 20%. The Executive further agrees that during the Separation
Period, he will not attempt to influence, persuade or induce, or assist any
other person in so influencing, persuading or inducing any employee, supplier,
dealer or customer of the Company or its subsidiaries or affiliates or any other
person or entity that is employed by or engaged in a business relationship with
the Company or its affiliates (or with which the Company or its subsidiaries or
affiliates has proposed to engage in an employment or business relationship) to
give up, or to not commence, employment or business relationship with the
Company or its subsidiaries or affiliates.
9. BLUE PENCIL PROVISION. If Section 7 and/or Section 8 shall for any
reason be held to be excessively broad as to duration, scope, activity or
subject in any jurisdiction, it shall (but only in such jurisdiction) be
construed by limiting and reducing it, so as to be enforceable to the maximum
extent compatible with applicable law.
<PAGE> 4
10. MISCELLANEOUS. This Separation Agreement shall supersede and
override the terms and conditions of any prior agreement with the Company and
shall govern the rights and obligations of the parties hereto from the Effective
Date. This Separation Agreement may be amended only by written instrument signed
by the Company and Executive. This Separation Agreement shall constitute the
entire agreement between the Company and Executive with respect to the subject
matter hereof. This Separation Agreement shall be governed by the laws of the
State of New York, without giving effect to the provisions thereof relating to
conflict of laws. This Separation Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors, heirs,
executors, administrators (in the case of Executive) and assigns. This
Separation Agreement may be executed in one or more counterparts, each of which
shall be deemed an original but all of which together shall constitute one and
the same instrument. Notwithstanding anything herein to the contrary, this
Separation Agreement shall not release Executive from his obligation to
reimburse the Company for any amounts owed by Executive to the Company in
connection with his employment with the Company.
IN WITNESS WHEREOF, the parties hereto have executed this Separation
Agreement effective as of the day first written above.
NATIONAL AUTO CREDIT, INC.
By: /s/ Thomas W. Cross
-------------------------------
CEO
EDWARD T. ANDERSON
/s/ EDWARD T. ANDERSON
------------------------------------
<PAGE> 5
EXHIBIT A
FULL AND FINAL RELEASE
----------------------
Except as otherwise expressly provided herein, EDWARD T.
ANDERSON (hereinafter "EXECUTIVE"), in exchange for sufficient consideration, on
behalf of himself, his family, his heirs and assigns, irrevocably and
unconditionally releases NATIONAL AUTO CREDIT, INC. (the "Company") any
subsidiary corporations, any affiliated entities, whether or not incorporated,
the employees, agents, officers, directors, and shareholders of all such
entities, in their capacities as such, and any person or entity which may
succeed to the rights and liabilities of such persons or entities by assignment
or otherwise (hereinafter "NAC"), from all claims, controversies, liabilities,
demands, causes of action, debts, obligations, promises, acts, agreements,
rights of contribution and/or indemnification, and damages of whatever kind or
nature, whether known or unknown, suspected or unsuspected, foreseen or
unforeseen, liquidated or contingent, actual or potential, joint or individual,
arising at any time on or before the Effective Date (the "Effective Date") of
the Separation Agreement (the "Separation Agreement") to which this Exhibit is
attached, that he has had or now has, based on any and all aspects of
EXECUTIVE'S employment with the Company or his separation from that employment,
including, but not limited to, all claims arising under Title VII of the Civil
Rights Act of 1964, as amended, the Civil Rights Act of 1991, the Equal Pay Act,
the Americans with Disabilities Act, the Employee Retirement Income Security Act
of 1974 or any federal, state or local laws or regulations relating to
employment or benefits associated with employment; any and all claims relating
to personal services performed for EXECUTIVE by NAC; all claims for breach of
promise, detrimental reliance or tort (E.G., intentional infliction of emotional
distress, defamation, assault, battery, false imprisonment, wrongful
termination, interference with contractual or advantageous relationship, etc.),
whether based on common law of otherwise, claims for emotional distress, mental
anguish, personal injury, loss of consortium, and any and all claims that may be
asserted on EXECUTIVE'S behalf by others. The foregoing list is meant to be
illustrative rather than inclusive. Notwithstanding the foregoing, this release
does not preclude EXECUTIVE from seeking to enforce or pursue any claim that may
hereafter arise or to obtain any benefits to which he may be entitled under the
Separation Agreement or under any employee welfare benefit plan, retirement or
profit sharing plan or other employee benefit plan or arrangement sponsored by
NAC, but his entitlement to such benefits, if any, will be determined in
accordance with the terms and conditions of the Separation Agreement and the
relevant plan documents (as the same have been
<PAGE> 6
modified in respect of EXECUTIVE and NAC as set forth in such Separation
Agreement).
EXECUTIVE ACKNOWLEDGES THAT HE HAS BEEN ADVISED THAT HE SHOULD
CONSULT WITH LEGAL COUNSEL IN CONNECTION WITH THIS RELEASE.
This release shall be construed in accordance with the laws of
the State of New York, applicable to contracts made and entirely to be performed
therein.
Dated: 12-22-98 Signed: /s/ Edward T. Anderson
----------------------------
EDWARD T. ANDERSON
<PAGE> 1
EXHIBIT 21
----------
SUBSIDIARIES OF NATIONAL AUTO CREDIT, INC.
------------------------------------------
Percent Owned
State of by National Auto
Corporate Name Organization Credit, Inc.
- ---------------- ------------ ----------------
ARAC, Inc. (1) Delaware 100%
NAC Capital, Inc. Delaware 100%
NAC, Inc. (2) Delaware 100%
All of the subsidiaries listed above are included in the consolidated
financial statements of the Company. The Company also has various subsidiaries
which, when considered in the aggregate, do not constitute a significant
subsidiary.
(1) Formerly operated under the name of Agency Rent-A-Car and its divisions,
Altra Auto Rental, Automate Auto Rental and National Motors.
(2) NAC, Inc. is a wholly-owned subsidiary of ARAC, Inc.
<PAGE> 1
EXHIBIT 23
----------
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
- ---------------------------------------------------
We have issued our report dated June 30, 1999, accompanying the consolidated
financial statements and schedule included in the Annual Report of National Auto
Credit, Inc. and subsidiaries on Form 10-K for the year ended January 31, 1999.
We hereby consent to the incorporation by reference of said reports in the
Registration Statements of National Auto Credit, Inc. on Forms S-8 (File No.
2-93984, effective October 1, 1987, File No. 33-51727, effective December 28,
1993, and File No. 33-58579, effective May 31, 1995).
/s/ Grant Thornton LLP
Cleveland, Ohio
July 27, 1999
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from Fiscal Year
Ended January 31, 1999 and is qualified in its entirety by reference to such
financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> JAN-31-1999
<PERIOD-START> JAN-31-1998
<PERIOD-END> JAN-31-1999
<CASH> 32,109
<SECURITIES> 0
<RECEIVABLES> 70,401
<ALLOWANCES> 16,830
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 13,820
<DEPRECIATION> 5,262
<TOTAL-ASSETS> 127,292
<CURRENT-LIABILITIES> 0
<BONDS> 0
0
0
<COMMON> 1,500
<OTHER-SE> 98,276
<TOTAL-LIABILITY-AND-EQUITY> 127,292
<SALES> 0
<TOTAL-REVENUES> 16,279
<CGS> 0
<TOTAL-COSTS> 11,078
<OTHER-EXPENSES> 14,523
<LOSS-PROVISION> 2,961
<INTEREST-EXPENSE> 3,726
<INCOME-PRETAX> (16,009)
<INCOME-TAX> 56
<INCOME-CONTINUING> (16,065)
<DISCONTINUED> (450)
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (15,615)
<EPS-BASIC> (.55)
<EPS-DILUTED> (.55)
</TABLE>
