SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities Exchange
Act of 1934
(Amendment No. )
Filed by the Registrant [ ]
Filed by a Party other than the Registrant [X ]
Check the appropriate box:
[ X] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by
Rule 14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Sections 240.14a-11(c) or
Section 240.14a-12
PACIFIC INTERNATIONAL SERVICES CORP.
(Name of Registrant as Specified In Its Charter)
Nancy A. Mitchell, McDermott, Will & Emery
(Name of Person(s) Filing Proxy Statement, if other than the
Registrant)
Payment of Filing Fee (Check the appropriate box):
[ ] $125 per Exchange Act Rules 0-11(c)(1)(ii), 14a-6(i)(1), 14a-
6(i)(2) or Item 22(a)(2) of Schedule 14A
[ ] $500 per each party to the controversy pursuant to Exchange Act
Rule 14a-6(i)(3)
[ X] Fee computed on table below per Exchange Act Rules 14a-6(i)(4)
and 0-11
1) Title of each class of securities to which transaction applies:
2) Aggregate number of securities to which transaction applies:
3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on
which the filing fee is calculated and state how it was
determined):
4) Proposed maximum aggregate value of transaction:
$1,500,000 x .0002
5) Total fee paid:
$300
[ ] Fee paid previously with preliminary materials
[ ] Check box if any part of the fee is offset as provided by
Exchange Act Rule 0-11(a)(2) and identify the filing for which
the offsetting fee was paid previously. Identify the previous
filing by registration statement number, or the Form or Schedule
and the date of its filing.
1) Amount Previously Paid:
2) Form, Schedule or Registration Statement No.:
3) Filing Party:
4) Date Filed:
PACIFIC INTERNATIONAL SERVICES CORP.
1600 KAPIOLANI BLVD., SUITE 825
HONOLULU, HAWAII 96814
To Our Shareholders:
On behalf of the Board of Directors of Pacific International Services
Corp., a California corporation (together with any successors thereto, the
"Company"), I cordially invite you to attend a Special Meeting of Shareholders
of the Company (including any adjournment or postponement thereof, the "Special
Meeting") to be held at ______ a.m., Hawaii time, on ______, ______ __, 1995, at
Pacific Club, 1451 Queen Emma Street, Honolulu, Hawaii.
At the Special Meeting, you will be asked to (i) consider and vote upon a
proposal to approve the sale (the "Proposed Sale") by the Company to Dollar
Systems, Inc. ("Dollar") of substantially all of the Company's assets relating
to or used in operation of the Company's vehicle rental and related operations
(collectively, the "Division"), pursuant to the terms and conditions of a
Settlement Agreement dated as of July 18, 1995 (the "Settlement Agreement") by
and between the Company and Dollar, and (ii) transact such other business as may
properly come before the Special Meeting. The purchase price for the assets of
Division is (a) $1,500,000 in cash (subject to adjustment as described in the
Settlement Agreement) and (b) the assumption by Dollar of certain liabilities
relating to the Division. The cash portion of the Purchase Price is subject to
an initial adjustment based on the Company's net worth as shown on a preliminary
closing balance sheet at the closing of the Proposed Sale and a second
adjustment based on the Company's net worth as shown on a final closing balance
sheet to be completed after such closing.
All of the net cash proceeds of the Proposed Sale together with the
issuance of shares of previously authorized Common Stock will be used as
consideration to the holders (the "Debentureholders") of the Company's
$5,250,000 outstanding principal amount of 10% Convertible Subordinated
Debentures Due 2007 (the "Debentures") in exchange for (a) the tendering by the
Debentureholders of their Debentures pursuant to an exchange offer being made by
the Company to the Debentureholders (the "Exchange Offer") and (b) the amendment
of the Indenture (as heretofore amended, the "Indenture") dated September 1,
1987 between the Company and Manufacturers Hanover Trust Co. of California, as
Trustee (as successor to Trust Services of America, Inc.), as amended, pursuant
to which the Debentures have been issued, to provide for no further covenant
obligations for the Company thereunder (other than payment when due). The
consummation of the Proposed Sale and the Exchange Offer and the other
transactions contemplated by the Settlement Agreement are collectively referred
to as the "Transactions." All of the cash proceeds received by the Company from
the Proposed Sale shall be paid to the exchanging Debentureholders on a pro rata
basis and each exchanging Debentureholder shall also receive its pro rata share
of certain previously authorized additional Common Stock to be issued in
connection therewith (collectively, the "Exchange Consideration".) As a
condition to the closing of the Proposed Sale, the Company must have received
the tender and/or consent of Debentureholders holding in the aggregate at least
80% of the face value of the Debentures to (i) the Proposed Sale and (ii) the
amendment of the Indenture to provide for no further covenant obligations for
the Company thereunder (other than payment when due).
Following consummation of the Proposed Sale and consummation of the
Exchange Offer you will retain your equity interest in the Company which will
have substantially reduced its long-term debt obligations. Your retained equity
interest in the Company will be diluted to the extent that the exchanging
holders of Debentures receive the Common Stock contemplated by the Exchange
Offer. The proposed sale does not include the stock South Seas Motors, Inc.,
the Company's wholly-owned subsidiary.
YOUR BOARD OF DIRECTORS HAS [UNANIMOUSLY] APPROVED THE PROPOSED SALE AND
EXCHANGE OFFER AND RECOMMENDS THAT YOU VOTE FOR THE PROPOSED SALE AND THE
EXCHANGE OFFER. In arriving at its recommendation, the Board of Directors gave
careful consideration to a number of factors as described in the enclosed Proxy
Statement, including an opinion of Houlihan, Lokey, Howard & Zukin, the
Company's financial advisor, that the consideration to be received by the
Company pursuant to the Settlement Agreement (as more fully described in the
enclosed Proxy Statement) is fair to the Company.
The Board of Directors has for some time considered the strategic direction
of the Company in light of, among other things, the long-term competitive forces
facing the Division and the current levels of long-term liabilities owing by the
Company, and the potential for future earnings and growth of the Division.
Based on these and other considerations more fully discussed in the enclosed
Proxy Statement, the Board of Directors believes that the proposed sale of the
Division to Dollar and the consummation of the Exchange Offer with the holders
of the Debentures is expedient and fair and in the best interests of the Company
and its shareholders.
Details of the proposed sale and the Exchange Offer and other important
information are included in the accompanying Proxy Statement. Please give this
material your careful attention.
Whether or not you plan to attend the Special Meeting, please complete,
sign and date the accompanying proxy card and return it in the enclosed prepaid
envelope. If you attend the Special Meeting, you may vote in person even if you
have previously returned your proxy card. Your prompt cooperation will be
greatly appreciated.
Yours sincerely,
Alan M. Robin
Chairman of the Board, President and
Chief Executive Officer
PACIFIC INTERNATIONAL SERVICES CORP.
1600 Kapiolani Blvd., Suite 825
Honolulu, Hawaii 96814
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
To be held on ___________________
To all Shareholders of
Pacific International Services Corp.
NOTICE IS HEREBY GIVEN that a Special Meeting (including any adjournment or
postponement thereof, the "Special Meeting") of Shareholders of Pacific
International Services Corp., a California corporation (together with any
successors thereto, the "Company"), will be held at the Pacific Club, 1451 Queen
Emma Street, Honolulu, Hawaii, on _____________________ at the hour of
______________ a.m., Hawaii time, for the following purpose:
1. To consider and vote upon a proposal to approve the sale (the
"Proposed Sale") by the Company to Dollar Systems, Inc. ("Dollar") of
substantially all of the Company's assets relating to or used in
operation of the Company's vehicle rental and related operations
(collectively, the "Division"), pursuant to the terms and conditions
of a Settlement Agreement dated as of July 18, 1995 (the "Settlement
Agreement") by and between the Company and Dollar
2. To transact such other business as may properly come before the
Special Meeting.
Only shareholders of record at the close of business on ___________________
are entitled to notice of, and to vote at, such meeting or any adjournment or
adjournments thereof.
By Order of the Board of Directors
Alan M. Robin
President
WHETHER OR NOT YOU PLAN TO ATTEND THE MEETING, PLEASE SIGN AND DATE THE
ENCLOSED PROXY, WHICH IS SOLICITED BY THE BOARD OF DIRECTORS OF THE COMPANY, AND
RETURN IT TO THE COMPANY IN THE PRE-ADDRESSED ENVELOPE PROVIDED FOR THAT
PURPOSE. ANY SHAREHOLDER MAY REVOKE HIS PROXY AT ANY TIME BEFORE THE MEETING BY
WRITTEN NOTICE TO SUCH EFFECT, BY SUBMITTING A SUBSEQUENTLY DATED PROXY OR BY
ATTENDING THE MEETING AND VOTING IN PERSON.
PACIFIC INTERNATIONAL SERVICES CORP.
1600 Kapiolani Blvd., Suite 825
Honolulu, Hawaii 96814
PROXY STATEMENT
SPECIAL MEETING OF SHAREHOLDERS
To be held on
This Proxy Statement is being furnished to the holders of the Common Stock,
no par value ("Common Stock") of Pacific International Services Corp., a
California corporation (together with any successors thereto, variously referred
to as "PISC" or the "Company") in connection with the solicitation of proxies by
the Board of Directors of the Company to be used at a Special Meeting of
Shareholders of the Company (including any adjournment or postponement thereof,
the "Special Meeting") to be held on ________, __, 1995 at ____ a.m., Hawaii
time, at the Pacific Club, 1451 Queen Emma Street, Honolulu, Hawaii.
At the Special Meeting, shareholders of the Company will be asked to (i)
consider and vote upon a proposal to approve the sale (the "Proposed Sale") by
the Company to Dollar Systems, Inc. ("Dollar") of substantially all of the
Company's assets relating to or used in operation of the Company's vehicle
rental and related operations (collectively, the "Division"), pursuant to the
terms and conditions of a Settlement Agreement dated as of July 18, 1995 (the
"Settlement Agreement") by and between the Company and Dollar, and (ii) transact
such other business as may properly come before the Special Meeting. A copy of
the Settlement Agreement is attached to this Proxy Statement as Annex A. The
purchase price for the assets of Division is (a) $1,500,000 in cash (subject to
adjustment as described below) and (b) the assumption by Dollar of certain
liabilities relating to the Division, including, without limitation,
approximately $3,500,000 owed by the Company to Dollar. The cash portion of the
Purchase Price is subject to an initial adjustment based on the Company's net
worth as shown on a preliminary closing balance sheet at the closing of the
Proposed Sale and a second adjustment based on the Company's net worth as shown
on a final closing balance sheet to be completed after such closing. See --
"Terms of the Proposed Sale".
All of the net cash proceeds of the Proposed Sale together with the issuance
of shares of previously authorized Common Stock will be used as consideration to
the holders (the "Debentureholders") of the Company's $5,250,000 outstanding
principal amount of 10% Convertible Subordinated Debentures Due 2007 (the
"Debentures") in exchange for (a) the tendering by the Debentureholders of their
Debentures pursuant to an exchange offer being made by the Company to the
Debentureholders (the "Exchange Offer") and (b) the amendment of the Indenture
(as heretofore amended, the "Indenture") dated September 1, 1987 between the
Company and Manufacturers Hanover Trust Co. of California, as Trustee (as
successor to Trust Services of America, Inc.), as amended, pursuant to which the
Debentures have been issued, to provide for no further covenant obligations for
the Company thereunder (other than payment when due). The consummation of the
Proposed Sale and the Exchange Offer and the other transactions contemplated by
the Settlement Agreement are collectively referred to as the "Transactions."
All of the cash proceeds received by the Company from the Proposed Sale shall be
paid to the exchanging Debentureholders on a pro rata basis and each exchanging
Debentureholder shall also receive its pro rata share of certain previously
authorized additional Common Stock to be issued in connection therewith
(collectively, the "Exchange Consideration".) As a condition to the closing of
the Proposed Sale, the Company must have received the tender and/or consent of
Debentureholders holding in the aggregate at least 80% of the face value of the
Debentures to (i) the Proposed Sale and (ii) the amendment of the Indenture to
provide for no further covenant obligations for the Company thereunder (other
than payment when due).
THE COMPANY IS SOLICITING YOUR PROXY SOLELY IN CONNECTION WITH APPROVAL OF
THE PROPOSED SALE AND SUCH OTHER BUSINESS AS MAY PROPERLY COME BEFORE THE
SPECIAL MEETING. THE APPROVAL OF THE SHAREHOLDERS IS NOT REQUIRED FOR THE
CONSUMMATION OF THE EXCHANGE OFFER OR THE ISSUANCE OF PREVIOUSLY AUTHORIZED
SHARES OF COMMON STOCK TO THE DEBENTUREHOLDERS IN CONNECTION THEREWITH.
The Proposed Sale is not being effected as part of a liquidation and
dissolution of the Company or in contemplation thereof. Rather, the Company
intends to use the proceeds of the Proposed Sale to consummate the Exchange
Offer and thereby substantially reduce the Company's long-term debt obligations.
Your retained equity interest in the Company will be diluted to the extent that
the Debentureholders receive previously authorized Common Stock pursuant to the
Exchange Offer. The Proposed Sale does not include the stock of South Seas
Motors, Inc., the Company's wholly-owned subsidiary ("South Seas"), through
which the Company operates the automobile dealership segment of its business.
The Company believes that the consummation of the Transactions will permit the
Company to focus on the automobile dealership business and will enhance the
Company's prospects because the rental car segment has been primarily
responsible for the Company's losses for the last three years.
The close of business on _____ __, 1995 (the "Record Date") has been fixed as
the record date for determining holders of shares of Common Stock entitled to
vote at the Special Meeting. Approval of the Proposed Sale will require the
affirmative vote of a majority of the shares of the outstanding Common Stock.
THEREFORE, FAILURE TO VOTE IS EQUIVALENT TO A VOTE AGAINST APPROVAL OF THE
PROPOSED SALE. ___________, ___________ and ___________, holders of
approximately ___%, ___% and ___%, respectively, of the outstanding shares of
Common Stock (excluding shares of Common Stock which are issuable upon
conversion of the Debentures and which were not outstanding and entitled to vote
as of the Record Date), intend to vote all of their shares of Common Stock for
approval of the Proposed Sale. Assuming such shares are voted IN FAVOR of the
Proposed Sale, the affirmative vote of only _______ additional shares of Common
Stock (representing approximately ____% of the shares of Common Stock currently
outstanding) would be required to approve the Proposed Sale. As of the Record
Date, 8,079,800 shares of Common Stock were outstanding and entitled to vote.
Each outstanding share of Common Stock will be entitled to one vote on each
matter considered at the Special Meeting. There are no other classes of voting
securities of the Company outstanding. See "Voting -- General."
If the enclosed form of proxy is properly executed and returned, it will be
voted at the Special Meeting in accordance with the specifications thereof. If
no instructions are specified in the proxy, the shares represented thereby will
be voted in favor of the Proposed Sale. A proxy may be revoked, at any time
before it has been voted, upon written notice to the Secretary of the Company,
by submitting a subsequently dated proxy or by attending the Special Meeting and
withdrawing the proxy.
This Proxy Statement and the enclosed form of proxy is being mailed on or
about October __, 1995, to shareholders of record on the Record Date entitled to
vote at the Special Meeting. The Company will bear the cost of solicitation of
proxies by the Board of Directors, including charges and expenses of brokerage
firms, banks and others for forwarding solicitation materials to beneficial
holders. In addition to the use of the mails, proxies may be solicited by
officers and employees of the Company, without remuneration, by personal
contact, telephone or telegraph. The Company has retained _______ to aid in the
solicitation of proxies. A fee of $____, plus out-of-pocket costs and expenses,
will be paid by the Company to _______ for their services.
The Company's principal executive offices are located at 1600 Kapiolani
Boulevard, Suite 825, Honolulu, Hawaii 96814 and its telephone number is (808)
926-4242. Dollar's principal executive offices are located at 5330 East 31st
Street, Tulsa, Oklahoma 74103 and its telephone number is (918) 669-3000.
THE PROPOSED SALE
PURPOSE AND BACKGROUND OF THE PROPOSED SALE.
The Company was incorporated in Hawaii on April 8, 1974, as Olson Car Rental
Corp. and changed its name to Pacific International Sales Corp. on August 2,
1983. The Company's name was subsequently changed to Pacific International
Services Corp. In November 1983, the Company changed its domicile to
California. The Company's common stock was then sold to the public pursuant to
the terms of a unit offering, and the Company became publicly held. On June 2,
1987, the Company's common stock began trading on NASDAQ under the symbol
"PISC".
The Company operates two business segments: passenger vehicle rental
operations and automobile dealership operations. The Company's vehicle rental
operations are carried out directly by the Company under the name Dollar Rent A
Car pursuant to an exclusive License Agreement, dated April 3, 1974, as amended
(the "License Agreement"), with Dollar. The Company's automobile dealership
operations are carried out through South Seas.
The Company acquired Cutter Jeep Renault, Inc., a Jeep Eagle dealership in
Hawaii on October 30, 1987. Cutter Jeep Renault, Inc. subsequently changed its
name to South Seas Motors, Inc. The Company combined certain of its existing
operations and the operations of South Seas Motors, Inc. into a full-service car
and truck dealership which is now operated as South Seas. South Seas has two
locations on the island of Oahu, South Seas Jeep Eagle ("SSJE") and Oahu
Chrysler Jeep ("OCJ"). South Seas also operated a used car dealership in
Kaneohe which was closed in December 1993.
SSJE is located at the corner of Nimitz Highway and Lagoon Drive near
Honolulu International Airport. SSJE sells new Jeep, Eagle and Hyundai
vehicles. The Hyundai line was added in 1993. SSJE is the only Hyundai
dealership in Oahu. OCJ began business in 1992 in the Walpahu area of leeward
Oahu. OCJ sells new Chrysler, Plymouth, Jeep and Eagle vehicles. Both
locations also sell used cars. The Company believes that SSJE is the number one
Jeep Eagle dealer in the state of Hawaii by sales volume, selling approximately
50% of all Jeep Eagle units in the state. The Company believes that SSJE is
also the state's leading Hyundai dealer by sales volume.
During 1994, South Seas' combined retail sales averaged approximately 81 new
vehicles and 130 used vehicles per month. In 1993, South Seas' combined retail
sales averaged approximately 97 new vehicles and 160 used vehicles per month.
The decrease in 1994 was mainly due to the limited availability of new inventory
from Chrysler Corporation ("Chrysler") during 1994 and the closure of the
separate used car dealership in Kaneohe. For the first six months of 1995,
South Seas' combined retail sales averaged approximately 90 new vehicles and 157
used vehicles per month.
The business and profits of the Company have suffered from several factors
which have primarily affected the rental car segment. Tourism and business in
Hawaii have been negatively impacted over the last several years by a number of
factors. Hurricane Iniki devastated the island of Kauai and caused casualty
losses and loss of business which reduced rental car demand in Kauai through the
first part of 1995. The Gulf War and general recession both disrupted tourism
to Hawaii from key markets and depressed visitor arrivals to Hawaii through
1994. The effects of the foregoing factors included a decline in the Company's
rental volume and a corresponding increase in fleet holding costs. In addition,
there has been increased competition for high volume wholesale accounts from
corporate car rental companies which has negatively impacted the Company's daily
rental volume. The Company's fleet holding costs have increased significantly
over the past three years.
The Company's business also suffered because in 1993 automobile
manufacturers, as part of a stated effort to cut manufacturing losses, reduced
sales of cars to rental car customers for 1994 model year vehicles. General
Motors ("GM"), which controlled National and Avis and was the major supplier for
Alamo (all major car-rental operators), established an 85,000-car minimum for
its rental fleet customers, effectively excluding Dollar and thus the Company.
Ford Motor Company ("Ford"), which controlled Hertz and Budget, devised a
formula that left Dollar and thus the Company with an insignificant allocation
of automobiles. In Hawaii, the Company lost its access to GM cars because GM
cut its total fleet sales from 850,000 cars/year to 400,000 cars/year. Ford
also cut its allocation of cars after acquiring 100% of Hertz, and no longer
supplies cars to the Company.
In response to the limited availability of cars, Chrysler offered a lease
program, at significantly higher cost compared to the programs previously made
available to the Company by Ford and GM, resulting in the Company's rental fleet
cost doubling between 1991 and 1995. The Company believes that the benefits of
Chrysler's lower borrowing costs, advertising allowances and best fleet deals
were not passed on to licensees. The Company also believes that certain shifts
in Dollar's marketing strategies have failed to provide adequate support for the
Hawaii market.
In response to the Company's financial difficulties, the Company obtained an
assistance agreement from Dollar in 1994 (the "1994 Assistance Agreement").
Pursuant to the terms of the 1994 Assistance Agreement: Dollar (i) reduced the
fees payable under the License Agreement during 1994, (ii) waived and
discharged certain fees owed by the Company under the License Agreement prior to
1994, (iii) increased certain incentive credits, rebates and allowances to the
Company, (iv) advanced the Company $1,400,000 to allow the Company to make
certain payments to Dollar and (v) provided a bond for the Company's self-
insurance program. (See - THE COMPANY; Dollar).
Due to the Company's continuing financial difficulties, in March of 1995
after lengthy negotiations, the Company obtained a commitment in principle from
Dollar for certain assistance for 1995 (the "1995 Assistance Commitment").
Under this commitment, the Company would have received substantial economic
benefits and certain disputes between the Company and Dollar would have been
resolved. However, the parties were unable to agree upon the final
documentation with respect to the 1995 Assistance Commitment. (See - THE
COMPANY; Dollar).
Pending further negotiations, the Company withheld certain payments due to
Dollar under the License Agreement. Dollar filed a legal action in U.S.
District Court to compel the Company to execute the documentation proposed by
Dollar to embody its understanding of the 1995 Assistance Commitment. The
Company responded by commencing its own legal action against Dollar for damages
and injunctive relief based on violations of the License Agreement and Hawaii
law. Dollar then sent the Company notices purporting to terminate the License
Agreement and the Master Lease Agreement dated October 22, 1993 between Dollar
and the Company (the "Master Lease Agreement"). Subsequent discussions led to
execution of a standstill agreement, later amended and extended, and, finally to
negotiation of the Settlement Agreement. The parties have agreed to suspend all
litigation without prejudice and may choose to recommence proceedings should the
Transactions fail to close. (See - TERMS OF THE PROPOSED SALE; Standstill
Agreement; Settlement of Claims).
The Company reported consolidated net losses of $1,427,461, $804,062 and
$2,104,502 in 1994, 1993 and 1992, respectively. For the three months ending
March 31, 1995, the Company experienced a net loss of $378,141 and for the six
months ending June 30, 1995, the Company experienced a net loss of $1,977,615.
The Company has entered into the Settlement Agreement and wishes to
consummate the Transactions because it believes that unless the Transactions are
successful and the Company is consequently relieved of the debt burden of the
exchanged Debentures and the assumed liabilities, the Company's operations will
be severely impaired.
The Company is incurring and will continue to incur substantial transaction
costs including legal and accounting and other professional fees related to the
Transactions. Although Dollar has agreed to permanently forgive up to $300,000
of obligations of the Company under the License Agreement during the period
while the Transactions are being negotiated, there is no assurance of continuing
support from Dollar if the Transactions do not close as planned. If the
Transactions do not close as planned, and further assistance from Dollar is not
made available, it is doubtful that the vehicle rental operations and PISC as a
whole could continue as going concerns, although South Seas would, in the
opinion of management, continue to be viable. The stock of South Seas has been
pledged as part of the Settlement Agreement to Dollar to secure certain of the
Company's obligations to Dollar. (See - TERMS OF THE PROPOSED SALE; Pledge of
Stock of South Seas).
RECOMMENDATION OF THE BOARD OF DIRECTORS.
THE BOARD OF DIRECTORS OF THE COMPANY HAS [UNANIMOUSLY] APPROVED THE PROPOSED
SALE, SUBJECT TO ADOPTION THEREOF BY THE SHAREHOLDERS OF THE COMPANY. THE
BOARD OR DIRECTORS OF THE COMPANY RECOMMENDS APPROVAL OF THE PROPOSED SALE BY
THE SHAREHOLDERS OF THE COMPANY.
The material factors considered by the Board of Directors in making such
recommendation include the following:
o The Board of Directors viewed the price offered as representing a fair price
for the Division on a current basis.
o The advice of the Company's financial advisors that the purchase price
represented a premium over various implied equity values under various types
of business analyses.
o The Proposed Sale will enable the Company to substantially reduce its long-
term debt obligations in respect of the Debentures.
o The Proposed Sale will result in no tax to the Company from the tax gain to
be recognized on the sale by virtue of the Company being able to apply its
tax loss carryforwards against the gain.
o Dollar has agreed to assume substantially all of the Company's liabilities
associated with the Division (excluding the Debentures), including
substantially all of the Company's bank debt and vehicle financing
arrangements in respect of the Division.
Although the purchase price, assumption of liabilities and reduction of long-
term debt obligations in respect of the Debentures were the principal factors
considered by the Board of Directors, the decision to approve and recommend the
Proposed Sale was a combination of all of the factors listed above. In this
regard, the structure of the Proposed Sale and the Company's ability to be in a
position to satisfy its remaining obligations were also important to the Board
of Directors in approving the Proposed Sale.
OPINION OF FINANCIAL ADVISOR.
General. The Company has retained Houlihan, Lokey, Howard & Zukin
("Houlihan"), an independent investment banking concern, to provide it with an
opinion as to the fairness of the Proposed Sale from a financial point of view.
Houlihan, as part of its investment banking activities, is continually engaged
in the valuation of businesses and their securities in connection with mergers
and acquisitions, leveraged buyouts, negotiated underwritings, secondary
distributions of listed and unlisted securities, private placements, financial
restructurings and other financial services. Houlihan had not performed any
investment banking or financial advisory services for the Company prior to its
retention in July 1995 as financial advisor to the Company for the purposes of
the Proposed Sale.
Houlihan delivered its written opinion dated October __, 1995, to the Board
of Directors of the Company to the effect that, as of such date, the Proposed
Sale was fair, from a financial point of view, to the Company and its existing
shareholders. In arriving at its opinions, Houlihan, among other things, (i)
reviewed the Company's Annual Reports to Shareholders and audited financial
statements on Form 10-K for the fiscal years ended December 31, 1993 and
December 31, 1994, and quarterly reports on Form 10-Q for the most recent
quarters ended March 31 and June 30, 1995, respectively, (ii) reviewed certain
internal information, including pro forma financial forecasts and projections
prepared by the Company's management with respect to the period ending September
30, 1995, (iii) conducted discussions with members of senior management of the
Company concerning its operations, financial condition, future prospects and
projected operations and performance, (iv) reviewed the historical market prices
and trading volume for the Company's publicly traded stock, (v) reviewed the
Settlement Agreement and the exhibits thereto, (vi) reviewed certain publicly
available filings of the Company for the years 1993 and 1994, (vii) reviewed
certain publicly available financial data for certain companies and from certain
transactions which were viewed as comparable by Houlihan, and (viii) conducted
such other studies and analyses and performed such other investigations and took
into account such other matters as Houlihan deemed necessary and appropriate for
the purposes of its opinion. Houlihan also took into account its general
experience in the industry and dealings with similar transactions. Copies of
the written analysis delivered by Houlihan in connection with its presentation
to the Board of Directors of the Company will be made available for inspection
and copying at the principal executive offices of the Company during regular
business hours by any interested shareholder of the Company, or his
representative who has been so designated in writing, and will be transmitted to
any such person by the Company upon written request and at the expense of such
shareholder. Such written analysis is also filed as Annex B to this Proxy
Statement and may be obtained in the manner described under "Available
Information". The summary of the analysis contained herein does not purport to
be complete and is qualified in its entirety by reference to such written
analysis.
In rendering its opinion, Houlihan relied without independent verification
upon the accuracy, completeness and fair presentation of all financial and other
information provided to it by the Company, or that it otherwise reviewed for
purposes of such opinion, and its opinion is conditioned on such information
being complete and accurate in all material respects. Houlihan did not
independently verify any such information or any underlying assumption and did
not make or obtain any independent appraisals or physical inspection of the
assets or liabilities of the Company, nor has it been furnished with any such
appraisals. With respect to the financial forecasts, Houlihan assumed that they
have been reasonably prepared and reflect the best currently available estimates
and judgment of the management of the Company as to the expected future
financial performance of the Company. Houlihan's opinion is necessarily based
on economic, monetary and market conditions as they exist and as such conditions
can be evaluated as of the date of its opinion. A COPY OF THE OPINION OF
HOULIHAN, DATED OCTOBER __, 1995, WHICH SETS FORTH THE ASSUMPTIONS MADE, MATTERS
CONSIDERED AND LIMITS ON REVIEW UNDERTAKEN, IS ATTACHED AS ANNEX B TO THIS PROXY
STATEMENT AND IS INCORPORATED HEREIN BY REFERENCE. THE SUMMARY OF THE OCTOBER
__, 1995 OPINION OF HOULIHAN SET FORTH IN THIS PROXY STATEMENT IS QUALIFIED IN
ITS ENTIRETY BY REFERENCE TO THE FULL TEXT OF SUCH OPINION. THE COMPANY'S
SHAREHOLDERS ARE URGED TO READ SUCH OPINION IN ITS ENTIRETY.
Houlihan's opinion is directed only to the fairness from a financial point of
view of the consideration to be received by the Company in the Proposed Sale and
does not constitute a recommendation to any shareholder as to how such
shareholder should vote at the Special Meeting. Furthermore, the opinion does
not address the underlying business decision to effect the Proposed Sale. The
consideration to be received by the Company in the Proposed Sale was determined
through negotiations between representatives of the Company and representatives
of Dollar and was approved by the Board of Directors of the Company. (See --
"Recommendations of the Board of Directors.") Houlihan was not authorized to
solicit, nor did Houlihan solicit, third-party indications of interest for the
acquisition of all or any portion of the Company's assets or capital stock.
Selection of Houlihan. The Company selected Houlihan as its financial
advisor because of Houlihan's national reputation in restructurings and
valuations, its knowledge of the car rental industry, its willingness to commit
senior people to the rendering of the fairness opinion and its reasonable fees.
Methodology. The preparation of a fairness opinion involves various
determinations as to the most appropriate and relevant methods of financial
analysis and the application of these methods to the particular circumstances.
The Company has been advised that the most common analyses used in reviewing the
fairness of consideration in the sale of a vehicle rental business are a
__________ analysis, a ____________ analysis, a _________________ and a
__________ analysis. All of these analyses were used by Houlihan for its
fairness opinions on the Proposed Sale.
[Description of analsyes to follow on completion.]
In requesting the fairness opinion, the Company did not impose any
limitations on the scope of the investigations that Houlihan conducted to enable
it to deliver its opinion. In arriving at its fairness opinion, Houlihan did
not attribute particular weight to any single analysis or factor and made
qualitative judgments based on the significance and relevance of each analysis
and factor.
The matters considered by Houlihan in arriving at its opinion are based upon
numerous macroeconomic, operating and financial assumptions and involve the
application of complex methodologies and educated judgment. Any estimates
incorporated in the analyses performed by Houlihan are not necessarily
indicative of actual past or future values or results, which may be
significantly more or less favorable than such estimates. Estimated values do
not purport to be appraisals and do not necessarily reflect the prices at which
businesses or companies may be sold in the future. Because such estimates are
inherently subject to uncertainty, none of the Company, Houlihan or any other
person assumes responsibility for their accuracy.
Fees and Reimbursement of Expenses. Pursuant to its engagement letter with
Houlihan, the Company paid Houlihan a fee of $37,500 upon execution of the
engagement letter and a fee of $37,500 upon execution of the Settlement
Agreement and will pay to Houlihan a fee of $50,000 for rendering or being ready
to render its fairness opinion (for aggregate fees after rending such opinions
of $125,000). In addition, the Company has agreed to reimburse Houlihan for its
reasonable out-of-pocket expenses incurred in connection with rendering its
opinion and providing services to the Company and to indemnify Houlihan against
certain liabilities in connection with its services as financial advisor to the
Company, including certain liabilities under the United States federal
securities laws.
CERTAIN EFFECTS OF THE PROPOSED SALE
The consummation of the Proposed Sale will have certain material effects on
the Company and its business and operations. Among the effects are the
following:
Change in Business and Operations of the Company. The Company has
historically been involved in the passenger vehicle rental and automobile
dealership businesses. The Company's automobile dealership operations are
currently carried out through South Seas. The vehicle rental business is
currently carried out directly by the Company. The Proposed Sale will result in
the disposition of substantially all of the Company's passenger vehicle rental
assets. Upon consummation of the Proposed Sale, the Company will continue to
own 100% of the outstanding stock of South Seas through which the Company
operates its automobile dealership businesses. The stock of South Seas has been
pledged to Dollar to secure certain of the Company's obligations to Dollar and
such pledge will continue after the Proposed Sale is consummated. (See - TERMS
OF THE PROPOSED SALE; Pledge of Stock of South Seas).
Convertible Subordinated Debentures. Pursuant to the Exchange Offer, the
Debentureholders are being offered (i) a pro rata share of the cash
consideration received by the Company in the Proposed Sale (to be determined
based on each Debentureholders' holdings in relation to the total face amount of
Debentures tendered) and (ii) certain shares of previously authorized Common
Stock. The number of previously authorized shares to be issued to the
Debentureholders is subject to continuing negotiation by the Company with the
Debentureholders and is subject to several factors including the cash
consideration to be received by the Debentureholders. As a condition to the
closing of the Proposed Sale, the Company must have received the tender and/or
consent of Debentureholders holding in the aggregate at least 80% of the face
value of the Debentures to (i) the Proposed Sale and (ii) the amendment of the
Indenture to provide for no further covenant obligations for the Company
thereunder (other than payment when due).
[_______, ________ and _______, holders of approximately $______, $_______
and $________, respectively, in aggregate face amount of the Debentures
(representing __% of the face amount of the outstanding Debentures) have
expressed their intention to exchange their Debentures pursuant to the Exchange
Offer.]
Bank Debt and Credit Arrangements. The Liabilities being assumed by Dollar
include the Company's liabilities under the Company's (i) $3,645,000 Credit and
Security Agreement, dated as of June 14, 1994, with Bank of Hawaii, (ii)
$15,000,000 Loan and Security Agreement, dated as of November 30, 1994, with
Finova Capital Corporation (formerly Greyhound Financial Corporation, "Finova"),
(iii) $300,000 Amended Loan and Authorization and Agreement, dated as of
November 19, 1992, with the U.S. Small Business Administration, (iv) $20,000,000
Loan Agreement, dated as of January 9, 1990, with General Motors Acceptance
Corporation, (v) $1,000,000 Term Loan Agreement, as amended, dated as of
September 30, 1988, with First Hawaiian Bank (formerly First Interstate Bank of
Hawaii), (vi) Restated Credit and Security Agreement, dated as of February 3,
1994, to the Credit and Security Agreement dated June 3, 1993, with Bank of
Hawaii, (vii) Mortgage Note executed in favor of Bank of Hawaii and dated as of
May 24, 1989. The following amounts were outstanding with respect to the
foregoing liabilities as of June 30, 1995: [(i) $735,000], (ii) $7,996,000,
(iii) $76,000, (iv) $550,000, (v) $416,000, (vi) [$753,073] and (vii)
$162,000. As of June 30, 1995, the Company was not in compliance with its
covenants with the above financial institutions. The Liabilities being assumed
by Dollar also include the Company's liabilities to Dollar under the License and
various other contractual arrangements with Dollar aggregating approximately
$3,500,000.
As a result of the foregoing, following consummation of the Proposed Sale,
the Company will have no outstanding bank debt or line of credit. South Seas
will have debt with respect to (1) $13,500,000 line of credit with Chrysler
Credit Corporation, (2) $1,000,000 Mortgage bank debt with Bank of Hawaii
related to its South Seas Jeep Eagle dealership and (3) $800,000 Mortgage bank
debt with Bank of Hawaii related to its Oahu Chrysler Jeep facility. As of June
30, 1995, outstanding balances for these facilities were $9,258,000, $578,000
and $528,000, respectively. Future credit arrangements will be reviewed by the
Company in light of the capital needs of the Company and South Seas.
Severance Arrangements. As part of the liabilities to be retained by the
Company following the Proposed Sale, the Company shall retain all employment-
related liabilities, accruals or similar obligations of any kind whatsoever as
to any employees of the Division not hired by Dollar as of the closing of the
Proposed Sale including, without limitation, claims for salary, fringes,
unemployment compensation, severance, accrued vacation, accrued leave or any
other statutory or other allowances to such employees arising after closing by
reason of the Proposed Sale, together with any unemployment insurance or Hawaii
dislocated workers allowance payable to Division employees even if they are
hired by Dollar upon closing of the Proposed Sale (collectively, the "Retained
Employee Liabilities"). All of the obligations of the Company to close the
Proposed Sale under the Settlement Agreement are subject to the certain
conditions (which may be waived by the Company), including that the Retained
Employee Liabilities shall not equal or exceed Twenty-Five Thousand Dollars
($25,000). That condition may be waived by the Company at the closing of the
Proposed Sale. Notwithstanding any provision of the Settlement Agreement to the
contrary, for purposes of determining whether the $25,000 limitation for
closing purposes has been met or exceeded, the Retained Employee Liabilities
relate only to accruals or statutory entitlements as of closing, and not future
salary or benefits pursuant to contracts or otherwise.
Employee Stock Options and ESOP. During 1994, the Company established an
incentive stock option plan under which options to purchase up to 200,000
shares of Common Stock may be granted. Under this plan, the option exercise
price is equal to 100% of the fair market value of the common stock on the date
of grant. Options for 50,000 shares of common stock remain outstanding and
unexercised under this plan as of December 31, 1994. The Company's original
incentive stock option plan expired on May 3, 1993. Options for 100,000 shares
of common stock remain outstanding and unexercised under the original plan as of
December 31, 1994 and expire in September 1995. The unexercised options are
subject to anti-dilution protection.
During 1994, the Company also established a new non-statutory stock option
plan under which options to purchase up to 200,000 shares of Common Stock may
be granted. Under this plan, the exercise price of any option granted shall not
be less than the lesser of 85% of the fair market value of the common stock on
the date of grant or 85% of the fair market value of the common stock on the
date of exercise. The original non-statutory stock option plan terminated on
June 20, 1994. No options were outstanding under either plan as December 31,
1994.
As of December 31, 1993, the Company had outstanding non-recourse promissory
notes totaling $1,139,000 from optionees in connection with the exercise of
their options to acquire 929,500 shares of Common Stock. Included in the non-
recourse notes, were notes in the aggregate principal amount of $554,000 from
current executive officers and/or directors of the Company. Exercise prices on
these shares ranged from $1.06 to $2.12 per share. The promissory notes matured
on July 11, 1994 on which date the market value of the Company's common stock
was $.81 per share. No payments were received on these notes, and accordingly,
the Company canceled these shares of Common Stock.
Proceeds from the exercise of options are credited to Common Stock to the
extent of $0.10 per share and the balance credited to additional paid-in
capital. Under its non-statutory plan, benefits relating to the excess of
quoted market value on the measurement date over the exercise price of options
are charged to compensation expense and credited to additional paid-in capital.
Rights of Shareholders and Trading in Securities. The Proposed Sale will
result in the issuance of previously authorized shares of Common Stock for the
Debentures tendered as part of the Exchange Offer. If previously authorized
stock is issued to the exchanging Debentureholders due to the consummation of
the Exchange Offer, the existing shareholders' effective voting power and equity
ownership of the Company will be diluted. The Common Stock will continue to be
listed on the National Association of Securities Dealers Automated Quotation
("NASDAQ") system. The existing shareholders' retained equity interest in the
Company will be diluted to the extent any Debentureholders receive previously
authorized Common Stock pursuant to the Exchange Offer. The Company is unable
to predict potential effects of the Proposed Sale on stock appreciation, trading
activity and the market price of the Common Stock. The number of previously
authorized shares to be issued to the Debentureholders is subject to continuing
negotiation by the Company with the Debentureholders and is subject to several
factors including the cash consideration to be received by the Debentureholders.
Federal Income Tax Consequences. The Proposed Sale and the exchange of the
Debentures pursuant to the Exchange Offer will be taxable events for the Company
for both federal and state income tax purposes. As of December 31, 1994, the
Company had approximately $11,239,000 in federal operating loss carryforwards
and approximately $10,013,000 in state net operating loss carryforwards
available to offset a gain, if any, on the Proposed Sale and the exchange of the
Debentures pursuant to the Exchange Offer. Because the Company will be able to
apply its tax loss carryforwards and other unused tax benefits to be recognized
by the Company on the Proposed Sale, there will be no resulting state or federal
income tax liability to the Company. The Proposed Sale will not result in any
tax consequences to the shareholders of the Company other than to those
shareholders who are Debentureholders who elect to exchange their Debentures
pursuant to the Exchange Offer. The Exchange Offer may result in cancellation
of indebtedness income ("COD Income") to the Company. At this time, the amount
of the COD Income which will be attributed to the Company, if any, as a result
of the Exchange Offer is not clear nor is it clear how much, if any, of the
Company's net operating loss carryforwards will be available to offset COD
Income, if any.
Accounting Treatment. The Proposed Sale will be accounted for as a sale of
certain assets and the transfer of certain liabilities. Upon the consummation
thereof, the excess of the sum of the consideration received by the Company and
the liabilities assumed by Dollar over the book value of the assets sold will be
recognized as a gain on the Company's books.
The Exchange Offer will be accounted for as a retirement of the Company's
outstanding debt and issuance of additional shares of common stock. Upon the
consummation thereof, the excess of the face value of Debentures exchanged over
the fair value of the consideration paid (common stock plus cash) by the Company
will be recognized as a gain on the Company's books.
Governmental and Regulatory Approvals. The Proposed Sale is subject to
applicable antitrust laws and review by the Antitrust Division of the Department
of Justice (the"Antitrust Division") and the Federal Trade Commission (the
"FTC"). Under the provisions of the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended (the "HSR Act"), the Proposed Sale may not be
consummated until the expiration of a 30 calendar day waiting period. The
Company filed notification reports, together with requests for early termination
of the waiting period, with the Antitrust Division and the FTC under the HSR Act
on _____ __, 1995. The FTC granted early termination of the waiting period on
_____ __, 1995.
In connection with the Proposed Sale, the Company is required to comply with
the provisions of the Hawaii Dislocated Workers Act (the "DWA"). The DWA
requires the Company to provide written notice of the Proposed Sale to each of
its employees and to the Director of the Hawaii Department of Labor and
Industrial Relations (the "DLIR") at least 45 days prior to its occurrence (the
"DWA Notice"). The Company provided the DWA Notice to its employees and the
DLIR on [August 31, 1995].
Under Hawaii law, the Company is also required to make a report of the
Proposed Sale (the "Bulk Sales Report") to the Hawaii Department of Taxation not
later than 10 days after the transfer of the Assets has occurred. The Company
intends to file the Bulk Sales Report with the Hawaii Department of Taxation
immediately prior to the transfer of the Assets to Dollar.
The Company is aware of no other governmental or regulatory approvals
required for the consummation of the Proposed Sale, other than compliance with
applicable securities laws.
TERMS OF THE PROPOSED SALE
The detailed terms and conditions of the Proposed Sale are contained in the
Settlement Agreement, which is attached hereto as Annex A and made a part of
this Proxy Statement. THE FOLLOWING DISCUSSION SETS FORTH A DESCRIPTION OF
CERTAIN MATERIAL TERMS AND CONDITIONS OF THE SETTLEMENT AGREEMENT AND IS
QUALIFIED BY THE MORE COMPLETE INFORMATION SET FORTH IN THE SETTLEMENT
AGREEMENT. THE COMPANY'S SHAREHOLDERS ARE URGED TO READ THE SETTLEMENT
AGREEMENT IN ITS ENTIRETY. Section references in the following discussion refer
to the corresponding section of the Settlement Agreement.
PRINCIPAL TRANSACTIONS
Purchase and Sale. The assets to be sold by the Company pursuant to the
Settlement Agreement constitute substantially all of the Company's assets
relating to or used in operation of the Division. (See Section 3(a) and the
definition of Assets in Section 1.) For the year ended December 31, 1994 and
the six months ended June 30, 1995, the Division generated net operating losses
of $897,000 and $1,916,000, respectively, and the Company had net operating
losses of $1,427,461 and $1,977,615, respectively, in each case calculated
excluding taxes and interest expense. (See Selected Financial Information.)
The Division constituted approximately 90% and 71% of the total assets of the
Company on a book value basis as of December 31, 1994 and June 30, 1995,
respectively.
The Settlement Agreement provides for the sale by the Company to Dollar of
the assets of the Company which comprise the Division for an aggregate purchase
price equal to (i) $1,500,000 in cash subject to adjustment based on the
Division's net worth on a preliminary closing balance sheet delivered at closing
of the Proposed Sale (as so adjusted, the "Estimated Cash Amount") and subject
to a second adjustment based on the Division's net worth on a final closing
balance sheet, as more fully described in this Proxy Statement and (ii) the
assumption by Dollar of the Liabilities, as more fully described in this Proxy
Statement. The Estimated Cash Amount (less a holdback amount to be withheld
pending the second adjustment described in (i) above) will be paid by Dollar to
the trustee for the Debentures at the closing of the Proposed Sale. (See
Section 4 and TERMS OF THE PROPOSED SALE; Holdback Agreement.) The Company will
retain liability for all "Retained Liabilities". Retained Liabilities is
defined in the Settlement Agreement and includes, without limitation, (i) the
Debentures; (ii) any liabilities, claims or obligations of the Company, known or
unknown, fixed or contingent, liquidated or unliquidated, accrued or unaccrued,
arising or that may arise from any asserted or unasserted claims, except (a) the
Liabilities which are set forth on the Unaudited Closing Balance Sheet and as
finalized in the Final Closing Balance Sheet, (b) the specified liabilities of
the Company listed on Exhibit I to the Settlement Agreement, which will be
updated at the closing of the Proposed Sale and (c) the specified liabilities on
Exhibit J to the Settlement Agreement, describing Off-balance Sheet Liabilities,
which will likewise be updated at the closing of the Proposed Sale; (iii) all
claims, liabilities or obligations of South Seas; (iv) all claims, liabilities
or obligations of the Company relating to South Seas; (v) liabilities of the
Company to South Seas or any other officer, director, shareholder or affiliate
of the Company; (vi) liabilities relating to or arising from or that constitute
liens against assets not sold to Dollar; (vii) any and all potential claims
against the Company related to a dispute between the Company and Hyundai Motor
America regarding 700 1995 Hyundai Elantras ordered from Hyundai Motor America;
(viii) any and all claims against the Company related to the Maui base yard
construction dispute with Tinsmith, Inc. which the Company believes have been
settled; (ix) any and all claims against the Company related to a dispute with
General Motors Acceptance Corporation regarding approximately $263,614.20 in
audit charges; (x) any employment-related liabilities, accruals or obligations
of any kind whatsoever as to any employees of the Company (or South Seas) not
hired by Dollar including, without limitation, claims for salary, fringes,
unemployment compensation, severance, accrued vacation, accrued leave or any
other statutory or other allowances to such employees arising after closing by
reason of the contemplated transaction; (xi) any unemployment insurance or
Hawaii dislocated worker's allowance payable to the Company's employees even if
they are hired by Dollar upon closing; (xii) any and all claims against the
Company for employment practices including terminations before closing and
(xiii) any claims or obligations for punitive and/or exemplary damages or for
civil or criminal or regulatory fines or penalties for the period on or before
the date of closing. (See Section 1 of the Settlement Agreement for definitions
of "Unaudited Closing Balance Sheet", "Final Closing Balance Sheet" and "Off-
balance Sheet Liabilities.")
The Estimated Cash Amount will be determined at the closing of the Proposed
Sale by taking $1,500,000 and adjusting it by the amount that the Unaudited Net
Worth is more or less negative than negative Six Hundred Thousand Dollars (-
$600,000) immediately before and as of the date of the closing; provided that in
no event shall the Estimated Cash Amount be greater than $2,100,000 (e.g., even
if the Unaudited Net Worth is greater than $0) and provided further that if the
Unaudited Net Worth of the Division is more negative than negative Two Million
One Hundred Thousand (-$2,100,000) both the Company and Dollar shall be
entitled to terminate the Settlement Agreement. Determination of the Unaudited
Net Worth shall be made on the basis of the Unaudited Closing Balance Sheet of
the Division which shall have been prepared in accordance with generally
accepted accounting principles and certain agreed practices (the "Agreed
Practices"). Following delivery of the Final Closing Balance Sheet, the
Estimated Cash Amount shall be increased and additional amounts paid to the
trustee for the Debentureholders (subject to a $2,100,000 cap), on a dollar-
for-dollar basis, to the extent the Final Net Worth of the Division exceeds or
is more positive than the amount of the Unaudited Net Worth. The Estimated Cash
Amount shall be adjusted and additional amounts paid to Dollar, on a dollar-for-
dollar basis, to the extent the Final Net Worth is less than or is more negative
than the amount of the Unaudited Net Worth. (See Section 1 of the Settlement
Agreement for definitions of "Unaudited Net Worth" and "Final Net Worth.")
The following assets will be sold by the Company to Dollar as part of the
Proposed Sale (the "Assets"): all of the Company's assets relating to or used
in operation of the Division and all books and records in any form pertaining
thereto (excluding the Excluded Assets, which are to be retained by Company).
The following assets (the "Excluded Assets") will be retained by the Company and
not sold to Dollar: any assets, properties or rights of Company not set forth in
the Final Closing Balance Sheet, the stock of South Seas, and all other assets
of Company not relating to and not used in the business of the Division, and the
specified assets of Company listed on Exhibit H to the Settlement Agreement.
Noncompetition Agreements. At the closing of the Proposed Sale, (i) the
Company shall execute and deliver a noncompetition agreement, whereby the
Company shall obligate itself not to compete with or solicit against Dollar in
accordance therewith for a period of two (2) years from the date thereof; and
(ii) the Company shall cause Alan Robin, President, Chairman of the Board,
President and Chief Executive Officer of the Company, to execute and deliver a
noncompetition agreement, whereby Alan Robin shall obligate himself not to
compete with or solicit against Dollar in accordance therewith for a period of
one (1) year from the date of closing of the Proposed Sale.
Settlement of Claims. At closing of the Proposed Sale, (i) the Company shall
execute and deliver a general release; (ii) the Company shall cause Alan Robin,
President, Chairman of the Board and Chief Executive Officer of the Company, to
execute and deliver a general release; (iii) Dollar shall execute and deliver a
general release; (iv) South Seas shall execute and deliver a general release;
and (v) the Company, Dollar and if necessary, other affiliates thereof named in
litigation, shall execute a dismissal agreement. The Company and Dollar
respectively undertake to cause any such other necessary parties who are their
affiliates to execute and deliver a dismissal agreement with respect to the
pending cases (hereinafter defined). The various releases constitute general
releases of all claims which Dollar has against the Company, Alan Robin or South
Seas or which any of such parties have against Dollar or certain of its
affiliates. The dismissal agreements to be executed by the parties constitute
agreements by Dollar and the Company for the filing of stipulations for
dismissal with prejudice in the following litigation: Pacific International
Services Corp. v. Chrysler Corporation, Pentastar Transportation Group, Dollar
Systems, Inc., and Gary L. Paxton, in the United States District Court for the
District of Hawaii, Case No. 9500445-SPK and Dollar Systems Inc. v Pacific
International Services Corp., in the United States District Court for the
Northern District of Oklahoma, Case No. 95-C-488B (collectively, the "Pending
Cases").
In addition, under the Settlement Agreement the Company and Dollar agreed to
certain assistance for the Company during the period prior to the closing of the
Proposed Sale. Specifically, Dollar agreed to permanently waive and forgive
certain system fees due under the License Agreement accruing from June 1, 1995
to the earlier of (i) the termination of the Settlement Agreement, (ii) the
closing of the Proposed Sale and (iii) the accrual of an aggregate amount of
such waived fees in excess of $300,000. Dollar also agreed to permit the
Company to extend certain of its trade payables and other obligations for
periods up to 90 days beyond their respective due dates. At this time, it is
not clear which, if any, of the Company's trade payables or other obligations
will be extended.
STANDSTILL AGREEMENT
Concurrent with the execution of the Settlement Agreement, the Company and
Dollar executed a Standstill Agreement (the "Standstill Agreement"). Pursuant
to the Standstill Agreement, Dollar and the Company have agreed (i) to cease and
desist from any further litigation activities against one another, including but
not limited to the filing of additional cases, as well as motions or other
pleadings in the Pending Cases, until November 30, 1995 subject to early
termination by either party upon written notice to the other party (the
"Standstill Period"), (ii) make joint application to the courts in which the
Pending Cases are filed for orders extending all then effective deadlines for
the filing of pleadings for a period not less than the Standstill Period, (iii)
extend the termination dates for certain agreements to the date 24 hours after
the end of the Standstill Period. Failure to close the Proposed Sale may mean
reinstitution of the Pending Cases.
HOLDBACK AGREEMENT
The Company and Dollar have agreed that the greater of (i) ten percent (10%)
of the Estimated Cash Amount or (ii) the portion of the Estimated Cash Amount
which exceeds One Million Five Hundred Thousand Dollars ($1,500,000) (the
greater of such amounts being the "Holdback Amount"), which is otherwise to be
paid to the trustee for the Debentures at closing of the Proposed Sale, will
instead be delivered in escrow pursuant to the terms of a Holdback Agreement.
The terms of the Holdback Agreement shall provide, among other things, that if
the Estimated Cash Amount requires adjustment downward after determination of
the Final Net Worth, the escrow agent pursuant thereto shall pay to Dollar at
the time specified in the Settlement Agreement the lesser of the Holdback Amount
or the amount to which Dollar is entitled based on such adjustment. Any sums
still held under the Holdback Agreement after disbursement of the Holdback
Amount to Dollar will be paid over to the trustee for the Debentures.
PLEDGE OF STOCK OF SOUTH SEAS
Contemporaneously with the execution of the Settlement Agreement, the Company
executed and delivered a Stock Pledge Agreement (the "Stock Pledge Agreement"),
pledging as a first and preferred lien and without any junior liens, one hundred
percent (100%) of the issued and outstanding capital stock of South Seas to
secure the following:
(a) Payments under the Master Lease Agreement (subject to customary
offsets but none accruing on or before April 30, 1995 except as otherwise
specifically provided in the Settlement Agreement) accruing or becoming due
and payable from and after May 1, 1995 until the earlier of closing of the
Proposed Sale or termination of the Settlement Agreement;
(b) The payment of all other obligations of the Company to Dollar
accruing or becoming due and payable from and after May 1, 1995 until the
earlier of closing of the Proposed Sale or termination of the Settlement
Agreement;
(c) Dollar's money damages and incidental, out-of-pocket losses as
awarded by the final, non-appealable order of a court for failure or refusal
to close the Settlement Agreement after satisfaction (or waiver by the party
entitled to the satisfaction) of all conditions precedent to the obligation
of both parties to the closing of the Proposed Sale;
(d) The amount of the downward adjustment from the Estimated Cash
Amount necessitated upon receipt of the Final Closing Balance Sheet, to the
extent not satisfied by the Holdback Amount;
(e) In a circumstance where no Estimated Cash Amount was paid, the
amount by which the Final Net Worth is more negative than the Unaudited Net
Worth; and
(f) If the Proposed Sale occurs, any amounts or Assets required to be
returned by Dollar pursuant to the order of a court under any preference or
fraudulent transfer law; provided, however, that if as of that date which is
ninety-one (91) days after the Proposed Sale (i) the Company has not filed a
voluntary petition for relief under the Federal Bankruptcy Code, as amended,
(ii) an involuntary petition has not been filed against the Company under the
Federal Bankruptcy Code, as amended, or (iii) no such action or assertion in
such bankruptcy case has been filed or made, then the subject pledge and lien
shall lapse insofar as its secures the obligation described under this
section (f). If any such filing is made, or action or assertion in such
bankruptcy case is made on or before such ninety-first (91st) day, then this
lien shall continue through completion of any such case under the Federal
Bankruptcy Code, as amended, and until resolution by the final, non-
appealable order of a court.
Pursuant to the Agency Agreement executed on July 18, 1995 (the "Agency
Agreement"), the South Seas stock is held by Liberty Bank and Trust Company of
Tulsa, N.A., as agent, to perfect Dollar's lien. After consummation of the
Proposed Sale, the lien on the South Seas stock shall continue. The Company's
remaining operations following consummation of the Proposed Sale will be
conducted through South Seas.
DUE DILIGENCE PERIOD
The Company has agreed from and after the date of the Settlement Agreement
until the Proposed Sale to permit Dollar and its representatives full access to
the Company's operations, and business and financial records, contracts and
prospects files and any and all other documentation to permit Dollar to complete
its due diligence procedures and review. In addition, the Company and Dollar
have agreed that Dollar shall complete due diligence procedures and review
within forty-five (45) days after initial delivery of complete and conforming
schedules (as well as exhibits which are required to be updated) by the Company
pursuant to the Settlement Agreement (such 45-day period is referred to as the
"Due Diligence Period"). The Due Diligence Period commenced on July 26, 1995.
Upon entering into the Settlement Agreement, three Agreed Practices were
identified and placed on Exhibit B to the Settlement Agreement (a copy of which
is attached to the Settlement Agreement attached hereto as Annex A). These may
not constitute all of the Agreed Practices as the same are expressly permitted
to be developed by the parties during the Due Diligence Period. If the
transaction proceeds beyond the Due Diligence Period, the three Agreed Practices
as identified on the date of the Settlement Agreement and any other Agreed
Practices agreed to during the Due Diligence Period will be used in developing
the Unaudited Closing Balance Sheet and Final Closing Balance Sheet. Due to
Dollar not having yet tested or reviewed the application of such Agreed
Practices as of the date of the Settlement Agreement, however, it was expressly
understood that within the Due Diligence Period, Dollar may terminate the
Settlement Agreement without any liability to the Company for any reason, and
even if such reason is solely Dollar's dissatisfaction with the application of
any one or more of the Agreed Practices identified on Exhibit B as originally
attached to the Settlement Agreement. (See Section 8.)
Dollar has the right at any time during the Due Diligence Period to terminate
the Settlement Agreement for any reason or no reason at all, as well as other
rights of termination at other times. (See TERMS OF THE PROPOSED SALE -
Termination.)
DEBENTURES
The Company has agreed to seek the tender of the Debentures from, and/or the
consent to the Proposed Sale of, the Debentureholders owning Debentures
constituting at least 80% in face amount of the outstanding Debentures to the
Proposed Sale pursuant to the Exchange Offer. (See Section 9(l).) If the
Exchange Offer is consummated, each tendering Debentureholder will receive a pro
rata share of the Exchange Consideration.
EMPLOYEES
The Company has agreed, on and after the date of the Settlement Agreement to
the time of closing, to permit Dollar to interview certain employees of the
Company. The Company has further agreed to permit Dollar to hire any one or
more of such employees on terms that are mutually acceptable between Dollar and
each such employee. Dollar and the Company have agreed that it is not a
condition of closing that Dollar successfully negotiate the employment of any
such employee. In the event Dollar elects not to retain the services of any
employee of the Company, the Company shall specifically retain as a retained
liability, and Dollar does not assume, any liability for accrued salary,
vacation leave, sick leave, unpaid fringes, severance, Hawaii Dislocated Workers
Act allowance or any other liability whatsoever due in respect of any such
employee. (See Section 19(d)(1).)
The Company anticipates that Dollar will elect to retain the services of a
majority of the employees of the Company who work in the Division [and Dollar
has agreed to retain at least two-thirds of the employees subject to
satisfaction of conditions of employment generally applicable to employees of
Dollar].
In addition, Dollar has agreed to assume the remaining term of the Company's
employment commitment to Sirio Maggiacomo which ends December 31, 1997, which
term shall be honored by Dollar unless grounds exist for termination with cause
in which event Dollar will be excused from further obligation; provided,
however, Dollar's total obligation to accept such commitment shall not exceed
$140,000 per year as to base salary and Dollar's standard benefits package
offered to its employees. Upon the closing of the Proposed Sale, the Company
and Mr. Maggiacomo shall enter into an agreement terminating his existing
Employment Agreement with the Company entered into effective January 1, 1995,
and affirming he has no claim against Dollar pursuant thereto or otherwise
except to the extent specifically provided in the Settlement Agreement. (See
Section 19(d)(1)(i).)
REPRESENTATIONS AND WARRANTIES
The Company and Dollar have made various representations and warranties of
the kind customary in agreements for the sale of vehicle leasing assets,
including, among other things, due organization, valid existence and good
standing of their respective businesses and the satisfaction of legal
requirements for the Proposed Sale.
The Company has represented and warranted to Dollar concerning, among other
matters: (i) the due organization of the Company, its good standing under the
laws of its state of incorporation, its corporate power to own its properties
and carry on its businesses as currently conducted and its qualification as a
foreign corporation in certain jurisdictions, (ii) the title of the Company to
its properties and assets, (iii) the absence of any conflict between the
Settlement Agreement and the charter or by-laws of the Company, any material
agreement to which the Company is a party or is bound and any decree, order or
judgment, statute, rule or regulation applicable to the Company, (iv) the
completeness and accuracy of documents, exhibits and other disclosures made to
Dollar, (v) the accuracy and completeness of certain audited financial
statements, (vi) the absence of material undisclosed liabilities, (vii) the
compliance by the Company with all applicable laws and regulations, (viii) the
absence of undisclosed material litigation, (ix) the filing of all required
federal, state and local tax returns and payment of or provision for taxes, (x)
the absence of default in certain material contracts, (xi) the absence of
certain material events subsequent to December 31, 1994 and (xii) the status of
certain employee benefit plans. (See Section 15.)
Dollar has represented and warranted to the Company concerning, among other
matters, (i) its due organization and good standing in its state of
incorporation and its corporate power to own its properties and carry on its
businesses as currently conducted, (ii) the power and authorization of Dollar to
enter into the Settlement Agreement, and (iii) the absence of any conflict
between the Settlement Agreement and the charter or by-laws of Dollar, any
material agreement to which either it is a party or it is bound and any decree,
order, judgment, statute, rule or regulation applicable by the Settlement
Agreement. (See Section 16.)
CLOSING CONDITIONS. The obligations of the Company and Dollar to consummate
the Proposed Sale are subject to the satisfaction or waiver of certain
conditions, including all representations and warranties of the other party
being true as of the closing; all agreements and conditions of the other party
to be performed or complied with at or prior to the closing; and the occurrence
of certain events described in "Certain Effects of the Proposed Sale--
Governmental and Regulatory Approvals."
The Company's obligation to consummate the Proposed Sale is subject to
additional conditions, including, without limitation, the approval of the
Proposed Sale by the shareholders of the Company and certain other conditions.
(See Section 10.)
Dollar's obligation to consummate the Proposed Sale is subject to additional
conditions, including, without limitation, the Company having received the
tender pursuant to the Exchange Offer and/or consent of Debentureholders owning
in the aggregate a minimum of eighty percent (80%) of the face value of all
outstanding Debentures; there having been no action, proceeding, investigation,
regulation or litigation instituted, proposed or threatened before any court,
governmental agency or legislative body which would, in the reasonable judgment
of Dollar have a materially adverse effect on the Assets, the Liabilities or the
Division, taken as a whole; no previously undisclosed off-balance sheet
liability or liabilities relating to the Division equalling or in excess of
$250,000 in the aggregate shall occur, exist or accrue; and the Company's total
debt due and payable shall not exceed $3,225,000. (See Section 9.)
CLOSING
The closing of the Proposed Sale will occur at the offices of Torkildson,
Katz, Jossem, Fonseca, Jaffe, Moore & Hetherington, Honolulu, Hawaii, on October
31, 1995, or at such other place and time as soon thereafter as may be mutually
agreed between the Company and Dollar in writing, provided that in no event
shall the date of such closing be extended past November 30, 1995. (See Section
11.)
INDEMNIFICATION
The Company has agreed to indemnify, defend and hold Dollar harmless from,
against and in respect of any Loss incurred or suffered by Dollar:
(a) with respect to any of the Company's contracts, obligations,
agreements or liabilities not assumed by Dollar under the Settlement
Agreement including, without limitation, any Retained Liabilities;
(b) with respect to any Liability to the extent that such Loss arose
from or was the result of any situation or set of facts, the existence of
which would cause there to be a breach of a warranty, representation,
covenant or agreement by the Company under the Settlement Agreement or under
any Seller Delivered Agreement;
(c) with respect to any litigation, claim or proceeding arising out
of the Company's operations prior to closing not constituting a Liability,
Off-balance Sheet Liability or not listed on Schedule 15(j) to the Settlement
Agreement;
(d) with respect to all claims, controversies, legal actions and
proceedings arising out of the Company's operations prior to closing brought
by or on behalf of any creditor, agent, employee or former employee of the
Company or any other third party or governmental agency that do not
constitute Liabilities;
(e) with respect to any income, sales, payroll, excise, surcharge or
other tax liabilities of the Company whatsoever not constituting a Liability
or not disclosed in writing on Schedule 15(c) hereto (including, without
limitation, assessments, additions to taxes, deficiencies, penalties and
interest and the costs and expenses relating to examinations or audits of the
taxes of the Company);
(f) with respect to any bulk sales, fraudulent conveyance or similar
laws or any other laws creating a lien or other adverse interest in, upon or
with respect to the Assets by reason of the transactions contemplated by the
Settlement Agreement, provided that the foregoing indemnity shall not be
applicable to claims arising out of Liabilities which have been assumed;
(g) with respect to any dispute among the Company, its shareholders,
directors, officers, employees, agents, Affiliates and Debenture holders;
(h) for any claim asserted against Dollar with respect to any
disputes regarding goods or services which were provided or were to be
provided by the Company prior to closing not constituting a Liability, Off-
balance Sheet Liability or not listed on Schedule 15(j) to the Settlement
Agreement;
(i) with respect to any claim by any governmental agency arising from
actions or failures to act of the Company;
(j) with respect to any taxes, costs, fees or expenses that the
Settlement Agreement provides are to be paid or otherwise borne by the
Company;
(k) with respect to operations of the Company's business prior to the
closing of the Proposed Sale, except for the Liabilities;
(l) with respect to any claim for successor liability or similar
theory which would, pursuant to applicable law, impose liability on Dollar
for any aspects of the Company's operations before closing of the Proposed
Sale, except to the extent the same expressly constitutes a Liability under
the Settlement Agreement; and
(m) without limiting, or being in any manner limited by, the
foregoing, as a result of misrepresentation, breach of a representation,
warranty, covenant or agreement on the part of the Company under the
Settlement Agreement or any Seller Delivered Agreement. (See Section 20(b).)
Dollar has agreed to indemnify, defend and hold the Company harmless from,
against and in respect of any Loss incurred or suffered by the Company:
(a) with respect to any Liability except to the extent that such Loss
arose from or was the result of any situation or set of facts in existence on
the closing of the Proposed Sale, the existence of which would cause there to
be a breach of a warranty, representation, covenant or agreement by the
Company under the Settlement Agreement or the Seller Delivered Agreements;
(b) With respect to Dollar's operation of the Division after closing
of the Proposed Sale, except for the Retained Liabilities and except to the
extent that any such Loss arose from or was the result of any situation or
set of facts in existence on the closing of the Proposed Sale, the existence
of which would cause there to be a breach of a warranty, representation,
covenant or agreement by the Company of the Proposed Sale under the
Settlement Agreement or the Seller Delivered Agreements; and
(c) without limiting or being in any manner limited by the foregoing,
as a result of a misrepresentation, breach of a representation, warranty,
covenant or agreement on the part of Dollar under the Settlement Agreement or
the Buyer Delivered Documents.
For purposes of the Settlement Agreement, "Loss" means any liability, loss,
cost, claim, damage, injury, expense or payment, including without limitation
the related actual fees and expenses of attorneys, consultants and other experts
(see Section 20(a)); "Seller Delivered Agreements" means all agreements,
certificates, instruments and documents executed and delivered (or to be
executed and delivered) by the Company or its officers pursuant to the
Settlement Agreement (see Section 15(a)(2)); and "Buyer Delivered Documents"
means all agreements, certificates, instruments and documents executed and
delivered (or to be executed and delivered) by Dollar or its officers pursuant
to the Settlement Agreement (see Section 16(a)(2).)
The indemnification obligations of the Company and Dollar under the
Settlement Agreement shall be extinguished unless the party claiming the right
to be indemnified notifies the indemnitor of facts which it thinks are the basis
for indemnification hereunder on or before the third (3rd) anniversary of the
closing of the Proposed Sale; provided, however, that notwithstanding the
foregoing, no time deadline shall apply to any willful or intentional breach of
or failure to comply with any representation, warranty, covenant or agreement in
the Settlement Agreement. (See Section 20(e)(1).)
Neither the Company nor Dollar shall have any liability whatsoever under the
indemnification provisions of the Settlement Agreement unless and until, and
only to the extent that, the total Losses for which the Company on the one hand,
or Dollar, on the other hand, would otherwise be liable, exceed One Hundred
Thousand Dollars ($100,000) in the aggregate and then such liability shall be
fore the full amount of such Losses; provided, however, that the minimum Loss
specified herein shall not apply to any willful or intentional breach of or
failure to comply with any representation, warranty, covenant or agreement in
the Settlement Agreement or the Seller Delivered Agreements or Buyer Delivered
Documents, respectively, nor as to any Loss sustained by Dollar relating to any
Retained Liabilities. (See Section 20(e)(2).)
At the closing of the Proposed Sale, South Seas will execute and deliver a
South Seas Commitment Agreement (the "South Seas Commitment Agreement") pursuant
to which South Seas will agree to be jointly and severally liable to Dollar for
claims made against the Company pursuant to the indemnification provisions of
the Settlement Agreement. The $100,000 deductible under the indemnification
provisions of the Settlement Agreement shall be cumulative as between South Seas
and the Company and not with each such entity afforded a separate $100,000
deductible. South Seas' commitment under the South Seas Commitment Agreement
shall continue for eighteen (18) months from the closing.
TERMINATION
Dollar has the unqualified right to terminate the Settlement Agreement and
rescind the Proposed Sale, in the following circumstances or at the times
indicated below: (i) upon completion of or during Dollar's due diligence
procedures and review; (ii) upon non-acceptance of the content of the Company's
schedules (or exhibits required to be updated) to the Settlement Agreement
during or by conclusion of the Due Diligence Period, or upon updating of such
schedules (or exhibits required to be updated) as required by the Settlement
Agreement periodically (with Dollar to accept or reject the same within five (5)
days of receipt by Dollar's designated representative, with silence being deemed
acceptance) and at the closing; (iii) upon failure of a condition to the
obligation of Dollar to close under the Settlement Agreement, or breach of a
representation, warranty, covenant or agreement by the Company pursuant to the
Settlement Agreement; or (iv) upon exercise by the Company of a right to rescind
the amendment to its License Agreement as described on Exhibit X to the
Settlement Agreement (the foregoing, together with any other right that Dollar
has to terminate the Settlement Agreement, collectively referred to as the
"Permitted Termination Events".) (See Section 21(a).)
In addition, the Settlement Agreement can be terminated and the Proposed Sale
abandoned on the occurrence of the following events: (i) the Company and Dollar
mutually agree in writing to such termination and abandonment; (ii) Dollar gives
written notice of termination because one or more of the conditions to its
obligation to consummate the Proposed Sale have not been satisfied or waived by
Dollar; (iii) the Company gives written notice of termination because one or
more of the conditions to its obligation to consummate the Proposed Sale have
not been satisfied or waived by the Company; (iv) either Dollar or the Company
gives written notice of termination on or before the end of the Due Diligence
Period, for failure to accept or otherwise reach agreement upon an Agreed
Practice proposed by the other party; or (v) either Dollar or the Company gives
written notice of termination, if the Unaudited Net Worth of the Division is
more negative than negative Two Million One Hundred Thousand (-$2,100,000) at
the time of the closing. (See Sections 21(a)(1) and 21(d).)
Under the terms of the Settlement Agreement, if the closing has not occurred
for whatever reason by November 30, 1995 the Settlement Agreement shall (unless
extended by mutual agreement of Dollar and the Company) automatically terminate.
(See Section 21(a)(7).)
If Dollar elects to terminate the Settlement Agreement in accordance with the
terms thereof, Dollar shall be entitled to retain all payments made by the
Company pursuant to existing agreements, and (y) the pledge of the South Seas
stock shall remain in place to the extent at such time amounts that are secured
by such pledge are accrued or due and payable by the Company to Dollar (or are
subject to good faith disputes in accordance with the Settlement Agreement).
Pursuant to the Settlement Agreement, the Company irrevocably and unqualifiedly
waived any and all right to assert any challenge, claim or objection to Dollar's
exercise of its right to terminate the Settlement Agreement for any reason at,
during or upon the Permitted Termination Events, whether or not with
justification, and including, without limitation, any assertion by the Company
that Dollar's termination constitutes breach of any statutory or implied
covenant of good faith, fair dealing or other duty, or as constituting any type
of interference with prospective business advantage, contractual or business
relationship, discrimination, economic duress or any other similar or dissimilar
tort, breach of contract or any other theory of recovery whatsoever. (See
Section 21(d).)
REMEDIES
In addition to the indemnity rights of Dollar and the Company under the
Settlement Agreement and remedies available under applicable law, Dollar and the
Company shall each have the following rights and remedies under the Settlement
Agreement:
(a) Dollar may foreclose its security interest in the South Seas
stock to the extent permitted by the Settlement Agreement, the Stock Pledge
Agreement or the Agency Agreement.
(b) Either party may recover money damages for breach of
representations, warranties, covenants, agreements and indemnities after the
closing or for failure or refusal to close after satisfaction (or waiver by
the party entitled to the satisfaction) of all conditions precedent to the
obligation of both parties to the closing.
(c) For breach of representations, warranties, covenants, agreements
and indemnities before closing, the non-defaulting party will be entitled to
rescission, with the parties each being restored to their respective status
before the Settlement Agreement, subject to the termination provisions of the
Settlement Agreement, each with the ability to proceed with the Pending Cases
or any other remedy; provided, however, that the passage of time shall not
preclude Dollar in its discretion from asserting upon exercise of a
rescissionary remedy that the 1995 Assistance Commitment between the parties
has failed, with Dollar being entitled to claim the increased amounts due it
from the Company if such assistance is determined to have failed.
(d) For failure or refusal to close after fulfillment by both parties
of all their respective conditions, the enforcing party may seek specific
performance of the Settlement Agreement. A party may also seek specific
performance for breach of a covenant or agreement hereunder. The parties
irrevocably agree in the circumstances where specific performance is
authorized hereunder that there is no adequate remedy available at law.
(e) Upon breach of representation, warranty, covenant or agreement by
the Company under the Settlement Agreement, Dollar may terminate the
Settlement Agreement whereupon the respective rights and liabilities of the
parties with respect to the Master Lease Agreement and License Agreement
shall be subject to the terms of such agreements and the Standstill
Agreement.
(f) For violation of the noncompetition agreements by the Company or
Alan Robin, Dollar shall be entitled to injunctive relief. (See Section 22.)
VOTING
GENERAL
The affirmative vote of the holders of a majority of the total voting power
of the outstanding shares of Common Stock as of the Record Date is necessary for
approval of the Proposed Sale. The enclosed form of proxy provides a means for
shareholders to vote for the approval of the Proposed Sale, to vote against the
Proposed Sale or to abstain from voting with regard to the approval of the
Proposed Sale. Each properly executed proxy received in time for the meeting
will be voted as specified therein. IF A SHAREHOLDER EXECUTES AND RETURNS A
PROXY BUT DOES NOT SPECIFY OTHERWISE, THE SHARES REPRESENTED BY SUCH
SHAREHOLDER'S PROXY WILL BE VOTED "FOR" THE APPROVAL OF THE PROPOSED SALE.
Because the approval of the Proposed Sale requires a vote based on the total
outstanding number of shares, abstentions and broker non votes will be
equivalent to a vote against the Proposed Sale. Accordingly, the Company urges
each shareholder to vote and urges shareholders whose shares are held in the
name of their broker, bank or other nominee to instruct such person to vote
their shares.
THE BOARD OF DIRECTORS OF THE COMPANY RECOMMENDS THAT SHAREHOLDERS VOTE "FOR"
THE APPROVAL OF THE PROPOSED SALE.
Alan Robin, ___________ and ___________, holders of approximately 10.1%,
___% and ___%, respectively, of the outstanding shares of Common Stock
(excluding shares of Common Stock which were issuable upon conversion of the
Debentures and which are not outstanding and entitled to vote as of the Record
Date), intend to vote all of their shares of Common Stock for approval of the
Proposed Sale. Assuming such shares are voted in favor of the Proposed Sale,
the affirmative vote of only _______ additional shares of Common Stock
(representing approximately ____% of the shares of Common Stock currently
outstanding) would be required to approve the Proposed Sale. As of the Record
Date, 8,079,800 shares of Common Stock were outstanding and entitled to vote.
DISSENTERS' RIGHTS
Under the laws of the State of California, the Company's shareholders who
object to the Proposed Sale will not be entitled to dissenters' rights.
INTEREST OF CERTAIN PERSONS IN THE PROPOSED SALE
The directors and named executive officers of the Company own 877,332 shares
of Common Stock and Sirio Maggiacomo, Executive Vice President and Chief
Operating Officer of the Company, has options to acquire an additional 100,000
shares of Common Stock which option is presently exercisable for 80,000 shares.
This option is subject to anti-dilution protection as may be deemed appropriate
by the Board of Directors of the Company. None of the directors or named
executive officers of the Company own Debentures. (See "SECURITY OWNERSHIP OF
MANAGEMENT".)
In addition certain employees may be retained by Dollar under current or
renegotiated employment agreements. (See "TERMS OF THE PROPOSED SALE-
Employees".)
SELECTED FINANCIAL INFORMATION
The following selected financial data relating to the Company for the periods
set forth below has been derived from the consolidated financial statements of
the Company. Such data should be read in conjunction with "Management's
Discussion and Analysis of Financial Condition and Results of Operations" and
the consolidated financial statements and notes thereto of the Company appearing
elsewhere herein.
(In thousands and except per share amounts, ratios and other data)
<TABLE>
<CAPTION>
Year ending December 31, Six months ending
1994 1993 1992 1991 1990 June June
As 30, 30,
Restated 1994 1995
(4)
<S> <C> <C> <C> <C> <C> <C> <C>
OPERATING DATA
Operating Revenues
Vehicle
rental $54,126 $54,163 $51,790 $45,316 $47,293 $27,185 $24,536
Vehicle
sales(1) 39,699 43,988 31,521 23,172 27,835 20,934 22,697
Total Operating
Revenue 93,825 98,151 83,311 68,488 75,128 48,119 47,233
Operating costs and
expenses 94,140 97,492 84,124 69,394 78,890 47,163 48,919
Operating income
(loss) (315) 659 (813) (906) (3,762) 956 (1,686)
Interest income 57 79 101 224 277 25 20
Other interest (898) (914) (773) (1,098) (1,792) (431) (443)
expense
Gain from sale of
leasehold interest - - - 104 4,866 - -
Other net (271) (417) (620) (428) - (36) (132)
Loss before
taxes and
extraordinary
items (1,427) (593) (2,105) (2,104) (411) 514 (1,977)
Income taxes - (211) - - - - -
Loss before
extraordinary
items (1,427) (804) (2,105) (2,104) (411) 514 (1,977)
Extraordinary
items(2) - - - 5,614 - - -
Net income
(loss) ($1,427) ($804) ($2,105) $3,510 ($411) ($514) ($1,977)
Income
(loss) per
share:
Before extraordinary
items ($0.18) ($0.09) ($0.23) ($0.28) ($0.07) $0.06 ($0.24)
Extraordinary
items(2) - - - 0.74 - - -
Net Income
(loss ) ($0.18) ($0.09) ($0.23) $0.46 ($0.07) $0.06 ($0.24)
Weighted average
shares
outstanding 8,080 9,009 9,009 7,551 6,093 9,009 8,080
BALANCE SHEET
DATA
Total
Assets $69,272 $71,892 $110,802 $104,300 $95,434
Senior
Debt 48,034 49,563 90,127 86,547 68,664
Debentures 5,250 5,250 5,250 5,250 17,250
Shareholders
equity $2,091 $3,518 $4,323 $6,427 $1,823
OTHER DATA
Vehicles sold
at period
end(3) 5,228 6,623 7,002 7,165 6,445
Rental vehicles
sold during
period 5,275 7,529 6,648 6,116 8,519
(1) Exclusive of sales from the rental fleet. The
gains or losses on sales of vehicles from the
rental fleet are included in depreciation expense.
(2) Includes a gain of $4,221,000 or $0.56 per share, net of
income taxes, resulting from a Debenture exchange and a credit
of $1,393,000 or $0.18 per share resulting from the
utilization of net operating loss carryforwards.
(3) Excluding vehicles held for sale by automobile
dealerships.
(4) Certain amounts as of and for the year ended December 31, 1990
have been restated.
</TABLE>
UNAUDITED PRO FORMA STATEMENTS OF OPERATIONS AND BALANCE SHEET
The following Unaudited Pro Forma Statement of Operations and Unaudited
Balance Sheet of the Company is based on and should be read in conjunction with
the audited consolidated financial statements and other financial information of
the Company included elsewhere in this Proxy Statement. This information is
presented based upon the contemplated Proposed Sale which qualifies as a
disposal of a segment of a business in accordance with APB Opinion Number 30.
The following Unaudited Pro Forma Statement of Operations and Unaudited Balance
Sheet of the Company reflects the Company's results of operations and financial
position excluding the Division. The pro forma financial statements do not give
effect to the estimated gain on the sale of the assets and liabilities of the
Division or the redemption of Debentures pursuant to the Exchange Offer because
the impact of such transactions are not presently determinable.
(In thousands and except per share amounts, ratios and other data)
<TABLE>
<CAPTION>
Year Ended December 31,
1994 1993 1992
Histor- Rental Pro Forma Histor- Rental Pro Forma Histor- Rental Pro Forma
ical Car (a) ical Car (a) ical Car (a)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
OPERATING DATA
Operating Revenues
Vehicle
rental $54,126 $54,126 $0 $54,163 $54,163 0 $51,790 $51,790 $0
Vehicle
sales 39,699 - 39,699 43,988 - 43,988 31,521 - 31,521
Total
Operating
Revenue 93,825 54,126 39,699 98,151 54,163 43,988 83,311 51,790 31,521
Operating
costs and
expenses 94,140 54,508 39,632 97,492 53,974 43,518 84,124 53,126 30,998
Operating income
(loss) (315) (382) 67 659 189 470 (813) (1,336) 523
Interest
income 57 55 2 79 77 2 101 99 2
Other interest
expense (898) (299) (599) (914) (231) (683) (773) (211) (562)
Gain from
sale of
leasehold
interest - - - - - - - - -
Other net (271) (271) 0 (417) (271) (146) (620) (510) (110)
Income (loss)
before income
taxes (1,427) (897) (530) (593) (236) (357) (2,105) (1,958) (147)
Income
taxes - - - (211) (211) 0 - - -
Net income
(loss) ($1,427) ($897) ($530) ($804) ($447) ($357) ($2,105) ($1,958) ($147)
Net Income
(loss) per
share ($0.18) ($0.11) ($0.07) ($0.09) ($0.05) ($0.04) ($0.23) ($0.22) ($0.02)
Weighted average
shares out-
standing 8,080 8,080 8,080 9,009 9,009 9,009 9,009 9,009 9,009
(a) - Reflects the Company's results of operations excluding the vehicle
rental division.
Six Months Ended June 30,
1995 1994
Histor- Rental Pro Histor- Rental Pro
ical Car Forma ical Car Forma
(a) (a)
<S> <C> <C> <C> <C> <C> <C>
OPERATING DATA
Operating Revenues
Vehicle rental $24,536 $24,536 $0 $27,185 $27,185 $0
Vehicle sales 22,697 - 22,697 20,934 - 20,934
Total Operating
Revenue 47,233 24,536 22,697 48,119 27,185 20,934
Operating costs
and expense 48,919 26,462 22,457 47,163 26,364 20,799
Operating Income
(loss) (1,686) (1,926) 240 956 821 135
Interest
Income 20 20 0 25 23 2
Other interest
expense (443) (142) (301) (431) (130) (301)
Gain from sale of
leasehold interest - - - - - -
Other net 132 132 0 (36) (36) 0
Income (loss) before
income taxes (1,977) (1,916) (61) 514 678 (164)
Income taxes - - - - - -
Net income
(loss) ($1,977) ($1,916) ($61) $514 $678 ($164)
Net income (loss)
per share ($0.24) ($0.24) ($0.01) $0.06 $0.06 (0.02)
Weighted average
shares out-
standing 8,080 8,080 8,080 9,009 9,009 9,009
(a) - Reflects the Company's results of operations excluding the vehicle
rental division.
</TABLE>
<TABLE>
<CAPTION>
UNAUDITED PRO
FORMA BALANCE
SHEET
June 30, 1995
Historical Rental Car Pro Forma(B)
<S> <C> <C> <C>
$428 $232 $196
12,079 6,761 3,202
12,982 8,841 10,392
9,251 5,454 410
Furniture, equipment and
leasehold improvements 7,655 5,454 3,048
Total Assets $42,395 $30,199 $17,248
Accounts payable $7,775 $6,617 $1,158
Accrued expenses
and other 7,126 6,635 1,068
Senior Debt 22,131 12,233 10,476
Convertible subordinated
debentures 5,250 0 5,250
Shareholders' equity 113 4,714 (704)
Total Liabilities and
equity $42,395 $30,199 $17,248
Book value per share 0.01 0.58 (0.09)
(B) Reflects the Company's Balance Sheet excluding the assets and
liabilities of the rental vehicle division.
Pro forma information at June 30, 1995 to reflect the Proposed Sale and the
exchange Offer has not been presented as the amounts are presently
indeterminable.
</TABLE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS SIX MONTHS ENDED JUNE 30, 1995
The Company reported a consolidated net loss of $1,599,474 or $0.20 per
share for the second quarter of 1995, compared to net income of $2,365 or
$0.00 per share for the same quarter last year. For the six months ended June
30, 1995, the Company reported a net loss of $1,977,615 or $0.24 per share,
compared to net income of $513,984 or $0.06 per share for the same period last
year.
Operating revenues from the Company's vehicle rental division for the three
months ended June 30, 1995, totaled $11,921,078, a decrease of 10.25% from
revenues of $13,283,130 for the second quarter of 1994. The decrease in
revenue for the quarter resulted from lower rental day volume compared to the
same period in 1994, continuing a decline that also affected the first quarter.
Rental division operating revenues totaled $24,535,550 for the six month period
ended June 30, 1995, versus $27,184,699 for the corresponding period in 1994.
Although the reduction in unit volume affected most of the Company's markets,
the sharpest declines were in the Company's business generated through
reservations from Dollar on the U.S. mainland, and from the local impulse
market. The Company continued to make progress in increasing its average daily
rental yield, however, the increase of approximately 7.4% in second quarter
yield was not sufficient to offset lower utilization as unit volume suffered.
Total direct fleet holding costs, which include lease payments, depreciation,
interest, car sales and other fleet expenses (freight, dealer profit and
license) increased by 22% for the second quarter of 1995 compared to the same
period in 1994, based on an average fleet size 11% lower than in 1994,
reflecting the continuing significant increase in holding costs on a per unit
basis.
Other operating costs and expenses, including personnel, occupancy and other
direct operating costs were down by almost $500,000 for the three months ended
June 30, 1995 compared to the same period in 1994, and would have been down even
more, except for approximately $250,000 incurred in legal fees relating to
Company's efforts to settle various issues with Dollar.
The Company's vehicle sales operations generated revenues of $22,697,361 and
$11,950,869 for the six months and three months ended June 30, 1995, as
compared with $20,933,924 and $10,883,066 for the same periods in 1994. The
increase in revenues from vehicle sales reflects price increases on new vehicles
sales and higher sales of used vehicles. Operating expenses related to the
Company's vehicle sales division increased from prior year levels in proportion
to the revenue increases.
RESULTS OF OPERATIONS - THREE YEARS ENDED DECEMBER 31, 1994
Consolidated Results
The Company reported a consolidated net loss of $1,427,000 or $.18 per
share for the year ended December 31, 1994, as compared with a consolidated net
loss of $804,000 or $.09 per share in 1993 and $2,105,000 or $.23 per share
in 1992. The 1992 results reflect the Company increasing its insurance reserve
as a result of an increase in claims experience under its self-insurance program
and losses related to Hurricane Iniki.
Vehicle Rental Division Operating Results
The Company reported an operating loss for its vehicle division of
$382,000 for the year ended December 31, 1994. The Company realized operating
income of $189,000 and incurred an operating loss of $1,336,000 for the years
ended December 31, 1993 and 1992, respectively.
Increased fleet holding costs and uncharacteristically low rental volume
primarily during November and December were the significant factors contributing
to the Company's loss for 1994. Rental day volume during the fourth quarter
decreased 8.4% when compared to the same period in 1993; total rental volume per
day during 1994 decreased 4.3% from 1993 volume.
Reduced volume can be attributed to two factors; first, increased
competition for high volume wholesale accounts from corporate owned car rental
companies and, second, reduced advertising nationwide by Dollar limited the
potential of the Company to increase the cumulative impact of its retail rental
volume from consumers and travel agents. Although the Company was able to
maintain annual revenue levels when compared to 1993 by marginally increasing
its average daily yield, yield increases were not substantial enough to offset
increased fleet holding costs.
Fleet holding costs for 1994 increased $1,382,000. This increase was
solely due to increased vehicle fleet cost and not increased fleet size as the
Company reduced the annual average size of its rental fleet from 5,774 for 1993
to 5,505 during 1994. Increases in the prime interest rate from 6% to 8.5%
during 1994 negatively impacted fleet holding costs as interest charges on all
of the Company's leased fleet and a majority of its financed fleet float with
the prime rate. In addition, during the fourth quarter of 1994, the Company
revised two estimates related to fleet holding cost. First, the Company reduced
its estimated holding period related to a leased vehicle's period of service as
a result of decreased rental volume, as vehicles were returned at an average of
one month earlier than originally planned. This change reduced the total in-
service retention credits estimated to be earned ratably over a leased vehicle's
period of service. Secondly, the Company incurred higher reconditioning costs
during the fourth quarter and therefore, increased its estimate related to
future vehicle reconditioning costs. These changes resulted in additional fleet
holding costs of $856,000 during the fourth quarter. At December 31, 1994,
the Company's rental vehicle fleet, not all of which were on rent at that date,
aggregated 5,228. At December 31, 1993 and 1992 the fleet totaled 6,623 and
7,002, respectively.
In 1994, Dollar provided the Company with certain financial assistance
pursuant to the terms of the 1994 Assistance Agreement. Under the 1994
Assistance Agreement, Dollar, among other concessions, reduced the license fees
payable by the Company to Dollar in 1994 which resulted in a savings of
approximately $488,000. The Company also received approximately $868,000 in
additional fleet allowances and $518,000 in freight credits, which were
subsequently awarded to offset added shipping costs associated with returning
vehicles to mainland auctions.
Operating income in 1993 resulted mainly from the Company increasing its
average daily rental yield to offset increased fleet holding costs primarily
resulting from increases in the various domestic automobile manufacturers'
repurchase and leasing programs. In addition, fleet insurance expense decreased
significantly from 1992 as claims experience in 1993 improved. The 1992
operating loss reflects increased fleet holding costs in 1992 model year
vehicles and increases to the Company's reserve for potential bodily injury
claims and the settlement estimates for known claims.
Operating results for all three years exclude income taxes and interest
expense related to the Debentures, both of which are absorbed wholly by the
vehicle rental division, and interest expense related to mortgage financing.
Operating results in 1993 and 1992 exclude the losses incurred from the
uninsured damage to the Company's Kauai rental fleet caused by Hurricane Iniki.
Vehicle Sales Division Operating Results
The Company's vehicle sales division reported operating income of $67,000
in 1994, $470,000 in 1993, and $523,000 in 1992. Overall new car unit sales
for 1994 decreased by 15.8% from 1993. Chrysler's lack of production and
restrictive distribution guidelines during 1994 limited the availability of
Chrysler vehicle inventory at both of the Company's dealerships. This reduced
sales inventory significantly impaired South Seas' ability to maximize revenue
and profitability as Chrysler new car sales for 1994 decreased by approximately
one-third from 1993. Although Hyundai unit sales increased in 1994, this
increase did not offset the significant decrease in Chrysler unit sales because
the revenue and gross profits generated from Hyundai unit sales are less than
those generated from Chrysler unit sales.
During 1993, the Company absorbed a $574,000 loss from its Kaneohe
vehicle dealership. This loss includes $137,000 which was incurred upon
closure of the dealership and is classified as a non-operating expense. The
Company closed this satellite dealership in December 1993 when it was unable to
acquire a new car franchise for that location and determined that profitable
operations solely as a used car dealership were not possible. Unit sales volume
during 1993 increased by 52.6% at the remaining two dealerships when compared to
1992. Through September 1992, the Company operated only one vehicle dealership
and one satellite location.
Vehicle Rental Division Revenues
The Company's vehicle rental division reported revenues of $54,126,000
for the year ended December 31, 1994 compared to $54,163,000 in revenues
recorded in 1993. Total vehicle rental days in 1994 were lower than 1993 by
4.3%. Vehicle rental days during the fourth quarter of 1994 were down 8.4% from
the same period in 1993, which is significant considering fleet levels were
raised in anticipation of increased holiday business. Furthermore, the Company
was unable to offset its loss of certain high volume wholesale accounts with a
future increase in its retail rental volume mainly due to the temporary
reductions and realignment in Dollar's advertising strategy during 1994.
Although volume decreased, the Company was able to marginally increase its
average yield per day for the year and generate comparable revenues to 1993 on
lower rental day volume.
The Company achieved higher revenues in 1993 when compared to 1992
resulting mainly from overall increased daily rental pries because vehicle
rental days decreased by 5.4% from 1992 levels as the tourist economy in Hawaii
continued to suffer in 1993.
Vehicle Sales Division Revenues
The Company's car sales division reported revenues of $39,699,000 for the
year ended December 31, 1994, a 9.8% decrease from the $43,988,000 in revenues
recorded during 1993. Total new car sales decreased by 15.8% from 1993 levels.
Chrysler new car sales alone decreased 33.7% mainly due to the lack of inventory
resulting from product allocation restrictions instituted by Chrysler. Although
SSJE sold approximately 160 more new Hyundai vehicles during 1994 as compared to
1993, the price of new Hyundai cars are significantly less than Chrysler cars.
Consequently, the revenue from the increased Hyundai sales did not make up for
the decreased Chrysler sales. Based on discussions with Chrysler and inventory
shipments received during the first six months of 1995, management does not
anticipate experiencing similar Chrysler inventory shortages during 1995.
The Company's increased revenues in 1993 over 1992 are a direct result of
higher sales volume. During most of 1993, the Company operated two full
service vehicle dealerships and one satellite dealership, as compared to the one
dealership and one satellite location through September 1992. Excluding the
revenue generated by the Kaneohe dealership which closed during 1993, this
division's revenues would have still increased $7,703,000 or 24.4%.
Operating Expenses
During 1993, eligibility requirements to obtain rental fleet under
certain domestic automobile manufacturer repurchase programs for 1994 model year
vehicles were significantly revised. The Company could no longer rely on Ford
and GM as its primary source of rental fleet vehicles. As a result, it was
necessary for the Company to lease approximately 4,000 vehicles for its 1994
rental fleet through Dollar. Holding costs under the lease program offered by
Dollar were higher than holding costs under the Ford and GM repurchase programs.
To remain competitive with other car rental companies in the Hawaii market, the
Company obtained certain concessions from Dollar in the 1994 Assistance
Agreement which reduced some of the fleet holding costs. Despite such
concessions, lease rates and vehicle reconditioning expenses (which are included
in depreciation expense), still increased the Company's direct fleet holding
cost from 1993. Direct fleet holding costs include lease payments,
depreciation, fleet interest, and other fleet expenses (freight, dealer profit,
and license) and totaled $21,997,000 in 1994 as compared to $20,615,000 in
1993. (Depreciation expense includes the rental vehicles' depreciation,
realized and unrealized gains or losses on "risk" sales or manufacturer
turnbacks, and amortized fleet rebates and allowances). Over the past three
years, the Company's annual fleet size averaged 5,505, 5,774 and 5,688 units
for 1994, 1993 and 1992, respectively,
The Company incurred a charge of $350,000 in 1994 related to a four year
old claim settled in 1995. The Company opted to settle this case and mitigate
further damages due to unfavorable rulings in similar cases which were decided
during the latter portion of 1994. The Company originally set a reserve for
this claim at statutory limits of $50,000.
The Company's borrowing rate during 1994 increased in conjunction with the
national prime rate. Interest expense related to leased vehicles is not
reported separately as monthly lease rates charged are inclusive of interest,
however for every 1% increase in the prime rate, lease rates increased by an
average of $15 per vehicle. Any interest charges related to the leased vehicles
are included in a rental fleet lease expense and offset the $2,000,000 decrease
in interest on fleet debt which is a direct result of replacing repurchase
program cars with leased vehicles. The decrease in interest expense on the
Company's rental fleet during 1993 reflected the initial transition of replacing
repurchase program cars with leased vehicles.
Liquidity and Capital Resources
The absence of an increase in the Company's rental vehicle revenue and
substantially higher lease payments on Chrysler vehicles, versus principal and
interest payments on repurchase program vehicles, adversely impacted the
Company's operating cash flow during 1994. Furthermore, the Company's cash flow
was negatively affected by cash downpayments required to purchase rental fleet
vehicles and increased loan amortization percentages required by financing
entities to satisfy collateral requirements related to vehicle financing.
As a result of its cash flow situation, the Company evaluated and
initiated several cost-cutting measures during March 1995, the most significant
being labor reductions which are estimated to result in savings of approximately
$600,000.
Significant Transactions
During 1994, the Company obtained the 1994 Assistance Agreement. Pursuant
to the terms of the agreement: Dollar (i) reduced the fees payable under the
License Agreement for the period from January 1, 1994 to December 31, 1994;
(ii) waived and discharged any obligation for certain fees owed under the
License Agreement prior to January 1, 1994; (iii) increased certain incentive
credits, rebates and fleet allowances under the lease program; (iv) procured a
bond to satisfy the Company's self insurance requirements; and (v) advanced the
Company $1,400,000 to be used by the Company exclusively to pay amounts owed to
Dollar under its 1994 lease program.
The Company paid interest on the advance at a floating rate equal to the
prime rate plus 1.5%. Principal reductions of this debt were made by way of an
assignment of incentive credits and fleet allowances owed by Dollar to the
Company. As of December 31, 1994, approximately $513,000 remained outstanding
to Dollar.
In consideration for the bond, the Company was required to: (i) indemnify
Dollar and certain of its affiliates in connection with the issuance of the
bond; (ii) assign to Dollar its receivable from the sale of the asian rights
under the License Agreement; (iii) assign to Dollar its interest in the License
Agreement; and (iv) grant to Dollar a junior mortgage of its leasehold interest
in its SSJE and OCJ locations.
The Company received substantial economic benefits under certain
assistance agreements and commitments from Dollar which attempted to (i) provide
parity with other Dollar licenses located in the U.S. mainland and (ii) make the
Company competitive with the "corporate store" rental companies doing business
in Hawaii. Unfortunately due to many factors, including but not limited to the
Company's geographic location and financial condition, that such assistance has
not made the Company profitable and the Company will need future financial
assistance, notwithstanding management's implementation of various cost-cutting
programs and shifts in customer base and mix. Although Dollar assisted the
Company in remedying some of its cash flow problems during 1994, no such
assistance is available in 1995.
Vehicle Rental Division
As a part of the 1994 Assistance Agreement, Dollar advanced $1,400,000 to
the Company. This advance was partially repaid through competitive credits
earned by the Company during the year and approximately $513,000 remained
outstanding at December 31, 1994.
Furthermore, pursuant to the 1994 Assistance Agreement, Chrysler Insurance
Co. (an affiliate of Dollar) posted a $3,400,000 surety bond with the Insurance
Department of the State of Hawaii on behalf of the Company to satisfy the
Company's self insurance requirements. The Company indemnified Dollar and
certain of its affiliates in connection with the issuance of the bond. To
secure the Company's indemnification of those parties, the Company: (i)
assigned to Dollar its receivable from the sale of the Asian franchise rights;
(ii) assigned to Dollar its interest in its License Agreement; and (iii) granted
to Dollar a junior mortgage covering the Company's leasehold interest in its
SSJE and OCJ locations.
As of February 1995, the Company enrolled with a commercial insurance
carrier to handle all future property and casualty claims. Since the Company is
no longer self insured, a surety bond is no longer required for the State of
Hawaii.
Over the past two years, the Company completely replaced its computer
systems for car rental reservations and accounting with an advance rental
counter computer software system developed jointly with a software development
company. The system is fully operational at all rental locations. Lease
financing covered most of the related expenditures and as of December 31, 1994,
the Company had outstanding $656,000 of capital lease financing.
As of December 31, 1994, South Seas had $661,000 of outstanding mortgage
debt related to its baseyard facilities on Oahu and Kauai. Under the most
restrictive covenant of the Kauai loan agreement, the Company is required to
maintain a defined debt to net worth ratio. As of December 31, 1994, the
Company was not in compliance with this covenant, but has obtained a written
waiver from the bank regarding such non-compliance. In addition, $176,000
remains outstanding as of December 31, 1994 from a U.S. Small Business
Administration loan received during 1993 which was used to finance capital
improvements necessary to repair damages suffered from Hurricane Iniki.
The losses sustained by Hurricane Iniki in 1992 continued to be mitigated
by recoveries from renters who had not purchased loss damage waivers. Claims in
excess of $610,000 were filed by the Company against those renters who had
declined the loss damage waiver. The estimate of collectible receivables for
such claims recorded in late 1992 was $519,000. At December 31, 1994, $20,000
remains outstanding which the Company expects to collect.
Vehicle Sales Division
During 1993, the Company completed expansion of two service facilities at
its dealerships located in Nimitz Highway and at the Waipahu Industrial Park.
The Company expects these facilities to be profitable based on the capacity to
service large numbers of vehicles. These projects were financed solely through
working capital generated by the vehicle sales operations. As of December 31,
1994, the South Seas had $574,000 of outstanding mortgage debt related to SSJE.
In March 1992, the Company's South Seas subsidiary entered into a lease
of approximately 55,000 square feet of property in the Waipahu Industrial park.
The lease, for which the Company paid a lease premium of $450,000, expires in
2021. The Company invested a total of $958,000, of which $800,000 was financed
by the Bank of Hawaii, to acquire this leasehold and upgrade the facility to a
full service operation. The Company renovated the building located at this site
and moved its Waipahu Jeep Eagle operations during August 1992. During 1992,
Chrysler granted South Seas a Chrysler Plymouth franchise which complemented its
existing Jeep Eagle operations at this location. As of December 31, 1994,
South Seas has $609,000 outstanding of mortgage debt related to this location.
South Seas leased approximately 28,300 and 8,500 square feet of property
in Kaneohe on the island of Oahu. The Company closed the dealership in December
1993. The leases expire in 2003 and 1998, respectively. The Company has
assigned the leases for both properties without losses on these assignments.
South Seas' various loan agreements prohibit the payment of dividends or
other distributions to the Company.
Financing
The Company's primary source of capital to finance the purchase of this
rental fleet has traditionally been through borrowings from manufacturer
financing affiliates, banks and other lenders.
During 1994, the Company obtained a $15,000,000 line of credit with
Finova to finance the purchase of 700 Hyundai vehicles under a guaranteed
depreciation program ("GDP"). Under the GDP the manufacturer guarantees the
maximum depreciation amount that any of its vehicles will incur over a stated
period, resulting in a fixed residual value when sold. The Company also
financed approximately 600 leased vehicles purchased from the 1994 Dollar
Systems Leasing Program under this line of credit. The Company received various
credit incentives and allowances to purchase these vehicles and reclassify these
vehicles to "risk". The Company intends to dispose of these vehicles by mid-
1996. As of December 31, 1994, the Company had $14,700,000 outstanding under
this line. Under the most restrictive covenants contained in the Finova loan
agreement in effect as of December 31, 1994, the Company was required to
maintain a defined minimum consolidated net worth and minimum debt service
coverage ratio. The Company was not in compliance with certain of these
covenants at December 31, 1994, but has obtained a written waiver from Finova
regarding such non-compliance.
During 1994, the Company obtained various lines of credit with the Bank
of Hawaii totalling $19,984,000. The Company principally used these amounts to
extend financing on portions of its fleet to coincide with manufacturer
repurchase program deadlines and to obtain both repurchase program and "risk"
vehicles from domestic (Ford) and foreign (Hyundai) manufacturers. As of
December 31, 1994, the Company had $7,792,000 outstanding under these lines.
Under the most restrictive covenants contained in one of the Bank of
Hawaii agreements in effect as of December 31, 1994, the Company was required
to maintain a defined (i) minimum consolidated net worth; (ii) minimum working
capital; (iii) minimum interest coverage ratio; and (iv) minimum cash flow
coverage. The Company was not in compliance with certain of these covenants at
December 31, 1994. However, as of March 23, 1995, the Company had decreased its
outstanding balance under these lines to approximately $1,700,000. In addition,
as part of its fleet plan for 1995, certain of the vehicles securing these were
disposed of prior to July 1995, resulting in a balance under these lines as of
June 30, 1995 of approximately $735,000. The Company anticipates that the
proceeds from the disposal of these vehicles will cover the amount outstanding
under the lines of credit. Consequently, the Company does not expect the Bank
of Hawaii to declare it in default for noncompliance with these covenants, nor
does it expect its operations or financial condition to be materially affected
by such noncompliance.
Prior to 1994, the Company purchased substantially all of its rental
vehicles from either GM or Ford and financed these vehicles with General Motors
Acceptance Corp. ("GMAC"), Ford Motor Credit Company ("FMCC"), and the Bank of
Hawaii. The Company is maintaining its credit lines with GMAC and FMCC in the
amounts of $20,000,000 and $7,500,000, respectively, of which $8,863,000 and
$8,622,000 were outstanding under each respective line of credit at December
31, 1994. FMCC allowed the Company to exceed its credit line limit during 1994.
Vehicles are financed for terms ranging from six months to two years and
require monthly debt service ranging from 1% to 3% of the original principal
amount or refinanced balance. The vehicles subject to repurchase programs are
held an average of eight to ten months. The Company holds the vehicles not
subject to repurchase anywhere from six to twenty-four months. Of the Company's
$48,034,000 of senior debt as of December 31, 1994, approximately $39,977,000
represented debt relating to rental vehicle financing compared with $37,803,000
at December 31, 1993. Although the overall size of the Company's rental fleet
has decreased, a larger number of vehicles in the fleet as of December 31, 1994
are being financed. The Company's payments with respect to the repurchase
program vehicles are limited to the payments falling due during the intended
holding period, except with respect to those vehicles that are purchased as
"risk" vehicles or vehicles that become "risk" as a result of rejection under
the repurchase programs.
As eligibility for fleet allocations under Ford and GM repurchase programs
become more restrictive, it became necessary for the Company to lease the
majority of this 1994 model year rental fleet from Dollar. The Company obtained
approval from Dollar to lease approximately 4,000 1994 Chrysler vehicles for
its rental fleet under the 1994 Dollar System Fleet Leasing Program. The
Company's average service life for these vehicles was approximately twelve and a
half months. As of December 31, 1994, approximately 1,900 vehicles in the
Company's rental fleet were being leased under the 1994 lease program. The
Company received approval to place orders with Dollar under the 1995 Dollar
Fleet Leasing Program ("1995 Lease Program") for approximately 4,300 vehicles to
satisfy its 1995 rental fleet requirements. As of December 31, 1994, the
Company received approximately 600 of these ordered vehicles.
As of December 31, 1994, approximately 59% of the Company's vehicles were
subject to repurchase programs or were leased, compared with 79% and 82% as of
December 31, 1993 and 1992, respectively.
Pursuant to the terms of the 1994 Assistance Agreement between the Company
and Dollar, Dollar agreed to advance the Company $1,400,000 by permitting the
Company to reduce certain monthly lease payments which would otherwise be due to
Dollar under the 1994 lease program. The Company paid interest on the advance
at a floating rate equal to the prime rate plus 1.5%. The terms of the
agreement required monthly payments of interest only, with principal payments
made by way of an assignment by the Company to Dollar of the incentive credits
and fleet allowances owed by Dollar to the Company under the 1994 lease program.
The Company's competitors are also subject to increased fleet expenses
which have caused an increase in vehicle rental rates in Hawaii. However, there
is no assurance that the Company will be successful in obtaining increased rates
from its customers to cover its entire fleet price increase. An inability to
recover all of the increasing costs would have an adverse effect on the
Company's operations.
During 1993, GM offered the Company various credit incentives and allowances
to reclassify certain repurchase program vehicles to "risk" vehicles. The
Company is required to hold these vehicles for either a minimum of 20,000 miles
or 12 months from the original purchase date. The Company sold the majority of
these vehicles as of December 31, 1994 and intends to dispose of the remaining
vehicles during the first half of 1995.
In 1992, the Company purchased 1992 model year subcompact vehicles outside
the repurchase programs because these vehicles were unavailable in sufficient
quantities under the programs. These vehicles were sold to the Company and
included rebates consistent with the GM Long Term Risk Program. In addition,
the Company also received certain freight concessions related to these vehicles.
In 1993, the Company was successful in disposing of these vehicles and recorded
a gain of approximately $300,000. None of these vehicles remain in the rental
fleet as of December 31, 1994.
New vehicle inventory purchased for sale by South Seas is purchased under a
$13,500,000 line of credit with Chrysler Credit Corporation. These vehicles
are typically financed until the conclusion of the following model year. As of
June 30, 1995, December 31, 1994 and December 31, 1993, outstanding balances
under these lines totaled $9,258,000, $4,402,000 and $7,851,000,
respectively.
ENVIRONMENTAL MATTERS
The Company has seven underground and one above ground petroleum product
storage tanks and one underground waste oil storage tank on its properties. The
Company is subject to the federal and state laws governing the ownership and
operation of these storage tanks. These laws require the Company to test
periodically the integrity of these tanks and to mitigate and remediate the
environmental effects of any releases of products from the storage tanks.
In 1993, the Company was advised of a petroleum leak at the baseyard location
for vehicle rental operations on the island of Oahu. A Phase I environmental
assessment indicated that the soil and groundwater in certain portions of the
baseyard had been materially impacted by the leakage of waste oil and petroleum
products. The Company then initiated a Phase II environmental assessment to
determine the extent of the petroleum and waste oil contamination. The Phase II
assessment, together with the closure and removal of the waste oil storage tank
was completed in 1994. During 1993, the Company recorded a reserve of $150,000
for the estimated future cost of the remedial efforts at the baseyard location.
As of December 31, 1994, $49,000 remains in the reserve which the Company feels
is adequate based on projections provided by the Company's environmental
consultants.
During November 1994, the Company received several citations from the United
States Environmental Protection Agency (EPA) relating to one of its baseyard
locations on the island of Hawaii. The most significant comment cited the
Company for not performing certain acceptable leak and precision tightness
procedures as part of its annual testing. The Company's environmental
consultants who performed the tank test clarified the necessary procedures with
the EPA and are working with the Company to ensure that proper testing
procedures are performed for all of the Company's tanks. No leaks or
contamination were discovered during the testing by the environmental
consultants.
On June 15, 1995, the Company received a notice of violation from the U.S.
Environmental Protection Agency ("USEPA") for several non-conformance issues
relating to its Kauai facility. These violations have been corrected and the
Company has received written confirmation of the corrective steps it has taken
from the USEPA.
APPLICATION OF FINANCIAL ACCOUNTING STANDARDS NO. 109
Statement of Financial Accounting Standards No. 109 ("FAS 109"), Accounting
for Income Taxes, was issued by the Financial Accounting Standards Board
("FASB") in February 1992. FAS 109 changes the Company's method of accounting
for income taxes from the deferred method (APB 11) to an asset and liability
approach. The asset and liability approach requires the recognition of deferred
tax liabilities and assets for the expected future tax consequences of temporary
differences between the carrying amounts and tax bases of assets and
liabilities.
The Company adopted FAS 109 in January 1993. The adoption of FAS 109 did not
result in an adjustment to the consolidated financial statements for the
cumulative effect of a change in accounting for income taxes. Temporary
differences resulting in deferred tax liabilities principally include rental
fleet and related incentives. Temporary differences resulting in deferred tax
assets include loss carryforwards, self insurance and fleet reserves, and bad
debt reserves. A valuation allowance for the net deferred tax asset was
established because of the uncertainty as to the Company's ability to generate
future taxable income of an amount to ensure its recoverability.
INFLATION
The Company has experienced the impact of inflation on operating and
occupancy costs. Most of the Company's leases require the Company to pay taxes,
maintenance, insurance, repairs and utility costs, all of which are subject to
inflationary pressures. The Company has negotiated rate increases indexed to
the consumer price index with certain of its major wholesale customers, and
generally seeks to increase rental rates during periods of rising costs.
THE COMPANY
HAWAII ECONOMY AND TOURISM INDUSTRY
Hawaii's year-round tropical climate and scenic resources support a tourism
industry that attracted over 6.4 million tourists in 1994, an increase of 5% in
the number of visitors from 1993, reversing a decline over the three years prior
to 1994. The Hawaii Visitors Bureau ("HVB") reports that Hawaii had
approximately 71,000 hotel rooms and condominium rental units as of December
31, 1994. In 1994, the average daily census of visitors in the State of Hawaii
was approximately 158,000, aggregate annual visitor expenditures were estimated
at $10.4 billion and the average length of stay of visitors was 8.9 days.
Hawaii is served by many domestic and international air carriers, as well as
a growing number of charter flights which added approximately 500,000 available
seats during 1994. Hawaii also has three established interisland airlines.
According to the Honolulu International Airport statistician, Hawaii's air
carriers handled over 23 million enplaned and deplaned passengers during 1994,
with an estimated 13.2 million interisland and 9.8 million overseas and transit
passengers. Although availability of airlift to Hawaii is cited by some
observers as a limiting factor, in the long run air seat capacity is mainly a
function of market demand. Hawaii remains the most popular destination for
airline frequent flyer program awards.
The Company's passenger vehicle rental operation follows the general trend of
the tourism industry with demand peaking during holiday periods and the summer
months. Revenues from passenger vehicle rentals are affected by variables
including general economic conditions, availability and pricing of scheduled and
chartered airlift, competition from other destinations and vacation experiences
such as cruise lines and gaming, the amount and effectiveness of industry-wide
advertising and promotional efforts vis-a-vis consumers and the travel agency
distribution system, and the overall pricing and value of the Hawaii vacation
product.
The City and County of Honolulu, Motor Vehicle Division, reports that during
1994 approximately 799,000 passenger motor vehicles were registered in the
State of Hawaii of which approximately 69% were registered on the island of
Oahu. According to the Hawaii Automobile Dealers' Association, new car and
truck sales were approximately 83,000 units in 1994.
PASSENGER VEHICLE RENTAL OPERATIONS
The Company conducts its passenger vehicle rental operations at 14 customer
service locations on the islands of Oahu, Maui, Kauai, Hawaii and Molokai in the
State of Hawaii, which include terminal concession locations in the major
airports on each island. The Company is also represented by an independent
agent on the island of Lanai. See "Properties".
The Company maintains a fleet of passenger vehicles consisting of compact,
mid-size and full-size passenger vehicles, convertibles and minivans. The
Company has vehicles in its rental fleet manufactured by all of the major
domestic manufacturers and has no exclusive automobile purchasing relationships.
Additionally during 1994, the Company purchased vehicles from Hyundai Motor
America ("Hyundai").
For several years prior to 1994, GM and Ford were the Company's primary
suppliers of rental fleet vehicles. The Company purchased nearly all of its
rental fleet under these companies' respective repurchase programs, whereby
vehicles purchased under these programs were subject to repurchase by the
manufacturer at pre-determined prices, depending on the vehicles' length of
service and condition at the time of return ("Repurchase Programs"). During
1993, Ford and GM reduced the overall number of 1994 model year fleet vehicles
allocated to the car rental industry and significantly revised the eligibility
requirements to obtain rental fleet under Repurchase Programs. The Company
could no longer rely on Ford and GM for rental fleet vehicles which made it
necessary for the Company to obtain an alternate primary source for its 1994
rental fleet vehicles. As a result, during the last half of 1993 and throughout
1994, the Company leased the majority of its 1994 model year vehicles from
Dollar, which is a second-tier subsidiary of Chrysler. Dollar continues to be
the Company's primary supplier of rental vehicles in 1995. Under Dollar's Fleet
Leasing Program ("Lease Program"), lessees are responsible for returning
vehicles to specified auctions on the U.S. mainland and are charged for
applicable vehicle reconditioning costs, transportation charges, and mileage
penalties. Fleet holding costs, under the Lease Program are higher compared to
the Ford and GM Repurchase Programs. However, the Company secured certain
concessions from Dollar which offset some of the increased fleet holding costs.
See "Management's Discussion and Analysis of Financial Condition and Results of
Operations - Significant Transactions.
During the year, the Company entered into a fleet relationship with Hyundai.
The Company purchased vehicles on both a "risk" basis, whereby the Company
assumes responsibility for vehicle disposal, and a GDP, whereby the manufacturer
guarantees a maximum depreciation amount that any of its vehicles will incur
over a stated period which fixes a vehicle's residual value when sold.
Although there is no assurance that such fleet programs will continue,
certain manufacturers have indicated that they expect similar programs to
continue for the 1996 model year, despite cutbacks in the number of vehicles
allocated to rental car companies under the 1995 model year programs.
In addition to purchasing risk vehicles, the Company reclassifies portions of
its non-risk rental fleet to risk resulting from either vehicles being rejected
upon return to the manufacturer or credits and incentives offered by
manufacturers to reclassify certain vehicle models. During 1994, the Company
reclassified approximately 600 of its 1994 leased fleet to risk and received
various credit incentives and allowances which minimized the carrying costs of
the vehicles. In the prior year, the Company reclassified certain 1992 and
1993 model year GM Repurchase Program vehicles. The Company received certain
incentive credits and fleet allowances in return for reclassifying these
vehicles under the GM Long Term Risk Program. The Company operated these GM
vehicles as part of its 1994 rental fleet and sold a majority of these vehicles
throughout the year. In 1992, the Company also purchased subcompact vehicles
under the Risk Program because these vehicles were not made available in
sufficient quantities under manufacturers' repurchase programs. These vehicles
were sold to the Company and included rebates consistent with the Risk Program
and included certain freight concessions. The Company has been able to
profitably dispose of its "risk" vehicle fleet. See "Rental Vehicle
Disposition".
On February 26, 1988, the Company acquired Compact. Compact was principally
engaged in the rental of automobiles and trucks to military personnel at
military bases on the island of Oahu under contracts with the U.S. Navy's and
the U.S. Army/Air Force's exchange services. The Company decided to discontinue
these operations upon the expiration of the various contracts, the last of which
expired on March 31, 1993. Compact accounted for less than 3% of the Company's
car rental revenue during 1992.
The Company's rental vehicles, not all of which were on rent at the
respective dates, totaled 5,228, 6,623, and 7,002 at December 31, 1994, 1993,
and 1992, respectively. The size of the Company's total fleet, however, varies
during the course of each year, depending primarily upon demand factors and
fleet considerations.
RENTAL VEHICLE DISPOSITION
Both the Lease and Repurchase Programs charge the Company for a portion of
the transportation of the rental vehicles back to the U.S. mainland for sale.
In addition, vehicle reconditioning charges are assessed in order to get the
vehicles into saleable condition, and to a lesser extent mileage penalties are
also assessed. GM and Ford repurchase all eligible model vehicles at an amount
equal to the dealer cost, less the depreciation, freight, reconditioning, and
mileage charges per vehicle. Dollar receives the leased vehicles at designated
auctions and subsequently charges the Company for a portion of freight expenses,
reconditioning costs, and mileage penalties, if applicable.
Certain manufacturers have informed the Company that they expect Repurchase
and Lease Programs to continue, although the holding cost of rental vehicles
purchased under the program may increase and the number of vehicles offered
under the programs may continue to decrease. Although the Repurchase Programs
currently in effect provide the Company with an insufficient quantity of rental
fleet vehicles, the Company believes Dollar's Lease Programs will be available
to satisfy the Company's future rental fleet needs.
Disposal of risk rental vehicles is the responsibility of the Company.
During the year the Company profitably disposed of the remaining subcompact
vehicles purchased in 1992 and the majority of the GM vehicles purchased in
1993. The Company's fleet plan has scheduled all risk vehicles to be sold by
the end of 1995.
AUTOMOBILE DEALERSHIPS
On October 30, 1987, the Company acquired Cutter Jeep Renault, Inc., a Jeep
Eagle dealership in Hawaii. The Company combined certain existing operations of
Cutter Jeep Renault into a full-service car and truck dealership. The
subsidiary's name was subsequently changed from Cutter Jeep Renault, Inc. to
South Seas Motors, Inc. South Seas operates two locations on the island of
Oahu, SSJE and OCJ.
The Company leases a 62,000 square foot property at the corner of Nimitz
Highway and Lagoon Drive near Honolulu International Airport for its SSJE
automobile dealership. The lease expires in December 2002. During 1993, the
Company subleased an 8,400 square foot property across the street from its SSJE
dealership location and completed expansion of its service facility for this
dealership. The sublease expires in December 2002. Management anticipates
negotiating for renewal on a timely basis.
During 1993, South Seas completed expansion of two service facilities at its
dealerships located on Nimitz Highway and in Walpahu Industrial Park. The
Company expects these facilities to be increasingly profitable over time based
on the capacity to service large numbers of vehicles as business at both
locations matures. South Seas financed these projects solely through working
capital generated by its vehicle sales operations. As of December 31, 1994,
South Seas had $574,000 of outstanding mortgage debt related to SSJE.
In March 1992, South Seas entered into a lease of approximately 55,000
square feet of property in the Walpahu Industrial Park for OCJ. The lease, for
which South Seas paid a lease premium of $450,000, expires in 2021. South Seas
invested a total of $958,000, of which $800,000 was financed by the Bank of
Hawaii, to acquire this leasehold and upgrade the facility to a full service
operation. South Seas renovated the building located at the Walpahu Industrial
Park and moved its Walpahu Jeep Eagle operations during August 1992. During
1992, Chrysler granted South Seas a Chrysler Plymouth franchise which
complemented its existing Jeep Eagle operations at this location. As of
December 31, 1994, South Seas had $609,000 outstanding of mortgage debt
related to this location.
South Seas leased approximately 28,300 and 8,500 square feet of property in
Kaneohe on the island of Oahu. South Seas closed the dealership in Kaneohe in
December 1993. The leases expire in 2003 and 1998, respectively. South Seas
assigned the leases for both properties without losses on these assignments.
During 1994, combined sales at SSJE and OCJ averaged approximately 81 new
vehicles and 130 used vehicles per month. In 1993, combined retail sales at
SSJE and OCJ averaged approximately 97 new vehicles and 160 used vehicles per
month. The decrease in 1994 was mainly due to the limited availability of new
Chrysler inventory during 1994 and the closure of a separate used car dealership
in Kaneohe. For the first six months of 1995, combined retail sales at SSJE and
OCJ averaged approximately 90 new vehicles and 157 used vehicles per month.
The Company's car sales divisions reported revenues of $39,698,728 for the
year ended December 31, 1994, a 9.8% decrease from the $43,987,934 in revenues
recorded during 1993. Total new car sales decreased by 14.4% from 1993 levels.
Chrysler new car sales alone decreased 33.7% mainly due to the lack of inventory
resulting from product allocation restrictions instituted by Chrysler and
shortages on most high-demand models. Although SSJE's location sold
approximately 160 more new hyundai vehicles during 1994 as compared to 1993,
the prices of new Hyundai cars are significantly less than Chrysler cars.
Consequently the revenue from the increased Hyundai sales did not make up for
the decreased Chrysler sales.
Inventory shipments on certain models began to increase during the first six
months of 1995, and management does not anticipate experiencing similar
Chrysler inventory shortages during the rest of 1995.
South Seas' increased revenues in 1993 over 1992 were a direct result of
higher sales volume. During most of 1993, South Seas operated two full service
vehicle dealership plus the Kaneohe temporary used-car facility, as compared to
the prior year with one full service dealership and the satellite location in
Waipahu, which was being developed through September 1992. Excluding the
revenue generated by the Kaneohe dealership which closed in 1993, the
division's revenue would have still increased $7,703,000 or 24.4%.
The Company's vehicle sales divisions generated revenues of $22,697,361 for
the six months ended June 30, 1995, as compared with $20,933,924 for the same
period in 1994. Unit sales for the first half of 1995 were 1479, compared to
1333 in the prior year. New car sales for the six month period were about the
same reaching 538 in 1995 versus 552 in 1994, while used car sales increased to
941 from 781 in 1994.
For the first six months of 1995, operating income was $151,920. The
Company's vehicle sales locations generated operating income of $67,000 in
1994, $470,000 in 1993, and $523,000 in 1992.
Chrysler's lack of production and its restrictive distribution guidelines
negatively impacted the Company's dealerships during 1994 by reducing sales
inventories. This reduced sales inventory significantly impaired the
dealerships' ability to maximize revenue and profitability as Chrysler new car
sales for 1994, this increase did not offset the significant decrease in
Chrysler unit sales because the revenue and gross profits generated from Hyundai
unit sales are less then those generated from Chrysler unit sales.
During 1993 the Company absorbed a $574,000 loss from its Kaneohe vehicle
dealership. This loss included $137,000 which was incurred upon closure of the
dealership and was classified as a non-operating expense. The Company closed
this satellite dealership in December 1993 when it was unable to acquire a new
car franchise for Kaneohe and determined that operating that location solely as
a used car dealership would result in continuing losses. Unit sales volume
during 1993 increased by 52.6% at the remaining two dealerships when compared to
1992.
SSJE and OCJ are maturing dealerships and will exhibit gradual but
significant changes in their business mix and profitability over the next two to
five years. Management anticipates improvement in the dealerships' Customer
Satisfaction Index ("CSI"), resulting from increased management attention,
intensified training and expanded service facilities resulting in increased
customer referrals and repeat business, as well as lowering advertising costs
relative to sales volume. Management also anticipates continued growth of
service, parts and warranty business at both dealerships. This is a function of
past sales, the construction and expansion of parts and service facilities, and
increases in sales volume. The contribution from service, parts and warranty
departments will help to stabilize revenue and profitability over time. Gross
profit in these departments increased from $1,128,103 in 1993 to $1,661,241 in
1994.
Planned introduction of leasing would add another revenue segment without any
material increase in overhead. Leasing has grown significantly and has become a
major factor in the new car business and management anticipates that leasing
could represent up to 10% of dealership revenues by the end of 1995.
Although the overall economic outlook for the State of Hawaii is basically
flat for the near-term (2-4 years), there are several factors that support a
forecast for continued moderate growth at PISC's existing dealerships. At SSJE,
sales to military personnel comprise a significant portion of sales volume, and
the outlook for continued and even expanded military presence on leeward Oahu
(including Pearl Harbor, Hickam Air Field, Schofield Barracks, etc.) is
favorable.
The outlook for interest rates, as they may affect car sales and related
economic activity in Hawaii, appears reasonable. Chryslers' product line is
vastly improved, and the new minivan line, Chrysler's flagship, has been very
well received and all indications are that Chrysler products will continue to
control the dominant share of the lucrative minivan market.
The Hyundai product line has also been completely re-engineered since 1994,
with the new Accent line replacing the entry-level Excel subcompact, the new
Elantra providing a deluxe compact contender, and the new Sonata, fully
competitive in the Accord/Camry class. As the only Hyundai dealer on Oahu and
the leading dealer statewide, SSJE is in the best position to take advantage of
these new products and the extensive national advertising undertaken by Hyundai
Motor America. Hawaii is traditionally a very strong import market, and with
the Yen likely to remain in a strong position vis a vis the U.S. dollar, the
outlook for Hyundai sales is good.
To capitalize on these opportunities, PISC's management will devote attention
to maximizing sustained profitability at PISC's dealerships. Even though the
dealerships represented about 50% of PISC's total revenues in the first half of
1995, they have not been the primary focus of PISC's attention.
The first element of growth will be the focus on increased revenues and
profit at the two existing Oahu locations, as described above. Management
believes that the conditions for success are already in place including expanded
facilities, upgraded customer service, improved sales management, and stronger
financial planning and controls.
From this base, management intends to seek opportunities to profit from the
well-documented consolidation that is occurring in the automobile dealership
industry. Over the past decade, many dealerships have either closed or been
acquired by stronger management groups. Historically, the auto manufacturers
have granted new-car franchises to individual dealers, many of which have passed
from generation to generation, but not all of which have been able to adapt
successfully to the up to date management approaches required today.
PISC's operations and its capital base are most likely to arise in
"secondary" markets on the U.S. mainland. PISC's management has been successful
in identifying and securing three prime dealership locations in Hawaii and has
established dealerships at two of these locations; however the Company was not
able to secure a new car franchise for the third site, at Kaneohe on windward
Oahu. Therefore PISC will systematically review other dealership acquisition
opportunities as they arise, through factory and personal contacts.
Management's philosophy will be to continue to groom dealership managers so that
they will be qualified and motivated to become equity partners in acquired
dealerships. Acquisitions may be made with a combination of cash, earn-out
financing and stock.
FLEET FINANCING
The Company finances its rental vehicles through Dollar's leases, commercial
financing sources, and the financing affiliates of GM and Ford. During 1994, a
significant portion of the Company's rental fleet was leased through Dollar.
South Seas and OCJ finance their new car inventory under $13,500,000 in lines
of credit with Chrysler Credit Corporation. These loans bear interest at a
floating rate equal to the prime rate plus 1%. Interest only is payable, with
final maturity with respect to loans relating to vehicles of a particular model
year occurring in August of the following year. The Company had outstanding as
of June 30, 1995, December 31, 1994 and 1993, $4,402,000 and $7,851,000,
respectively, of financing under these lines of credit. South Seas and OCJ
presently sell most retail paper to Chrysler Credit and Bank of Hawaii.
The Company's interest rate on its fleet debt, for the most part, fluctuates
with the "prime lending rate". Prime rate fluctuations affect monthly lease
rates under the Lease Program. As such, the Company's fleet holding cost is
very sensitive to major changes in interest rates.
RENTAL VEHICLE LEASING
Pursuant to terms of the Master Lease Agreement, Dollar agreed to lease to
the Company vehicles for its rental fleet in accordance with the fleet mix
requirements of its Lease Program. The Company leased approximately 4000 1994
model year Chrysler vehicles under the Lease Program and plans to lease
approximately 4,300 1995 model year Chryslers for its 1995 fleet. The elements
of the Lease Program offer delivery of the vehicles in Hawaii, incentive
credits, rebates, fleet allowances and return of the vehicle contingent upon the
condition of the vehicles when returned and whether the Company has held the
vehicles for a specified minimum holding period.
The Company's fleet holding cost per vehicle under the Lease Program is
higher than that under the Repurchase Programs. During 1994 and in 1995, the
Company secured certain assistance from Dollar to reduce the Company's fleet
holding costs; however, the Company believes it is still incurring higher fleet
holding costs relative to its competitors net fleet holding costs. There is no
assurance that the Company will be able to obtain assistance from Dollar in
future years. See "Management's Discussion and Analysis of Financial Condition
and Results of Operations - Significant Transactions."
As of December 31, 1994, 1,900 vehicles in the Company's rental vehicle
fleet were leased from Dollar.
COMMERCIAL FLEET FINANCING
As of December 31, 1994, the Company maintained various lines of credit with
the Bank of Hawaii (the "Bank") which provided up to $19,984,000 in financing
for its rental fleet vehicles. These credit lines were used for vehicles
subject to manufacturer repurchase, vehicles purchased outside the repurchase
programs ("risk vehicles"), and vehicles rejected upon turn back by the Company
to the manufacturer. These loans bear interest at a floating rate equal to the
prime rate plus 1% to 2.75%. Loans relating to vehicles subject to manufacturer
repurchase are amortized at monthly rates ranging from 2% to 3% of the wholesale
invoice cost of the financed vehicles. Loans relating to risk vehicles or
relating to vehicles rejected upon turn back by the Company to the manufacturer
are amortized in monthly installments equal to 3% of the wholesale invoice cost
or refinanced balance. As of December 31, 1994 and 1993, $7,792,000 and
$10,934,000, respectively, were outstanding with the Bank.
Under the most restrictive covenants contained in one of the agreements in
effect as of December 31, 1994, the Company was required to maintain a defined
(i) minimum consolidated net worth; (ii) minimum working capital; (iii) minimum
interest coverage ratio; and (iv) minimum cash flow coverage. The Company was
not in compliance with certain of these covenants at December 31, 1994.
However, as of June 30, 1995, the Company had decreased its outstanding balance
under these credit lines to approximately $735,000 and the Company anticipates
this balance to be paid off in the next several months. In addition, as part of
its fleet plan for 1995, certain of the vehicles securing two of these credit
lines were disposed of prior to July 1995 and the balance of such vehicles are
scheduled for disposal over the next several months. The Company anticipates
that the proceeds from the disposal of these vehicles will cover the amount
outstanding under the related lines of credit. Consequently, the Company does
not expect the Bank to declare it in default for noncompliance with these
covenants, nor does it expect its operations or financial condition to be
materially affected by such noncompliance.
During 1994, the Company obtained a $15,000,000 line of credit with Finova
to finance the Lease Program. These loans bear interest at a floating rate
equal to the prime rate plus 1.75%. Loans relating to vehicles subject to the
GDP are amortized at the monthly rate of 3% of the invoice cost of the financed
vehicles. Loans relating to risk vehicles are amortized in monthly installments
equal to 2.5% to 3% of the invoiced cost. As of December 31, 1994, the Company
had $14,700,000 outstanding under this line.
Under the most restrictive covenants contained in the Finova loan agreement
in effect as of December 31, 1994, the Company was required to maintain a
defined minimum consolidated net worth and a minimum debt service coverage
ratio. The Company was not in compliance with certain of these covenants at
December 31, 1994, but had obtained a written waiver from Finova regarding such
non-compliance. As of June 30, 1995, the Company had $7,996,000 outstanding
under the Finova loan agreement and still was not in compliance with certain of
these covenants. At present no waiver is continuing in existence for these
defaults.
See "Management's Discussion and Analysis of Financial Condition and Results
of Operations - Financing."
MANUFACTURER AFFILIATE FLEET FINANCING
The Company receives its manufacturer affiliate financing for its rental
vehicle fleet through General Motors Acceptance Corporation ("GMAC'), an
affiliate of GM and Ford Motor Credit Company ("FMCC"), an affiliate of Ford.
Pursuant to the terms of the loan agreement dated January 9, 1990, as
amended for 1994, between the Company and GMAC, GMAC has agreed to make loans
under revolving credit notes based upon the value of the vehicles purchased, to
a maximum of $20,000,000. These loans bear interest at a floating rate equal to
the prime rate plus 0.75% to 2%, and are due and payable in 15 to 24 months
after the vehicles are placed in service. Loans relating to vehicles subject to
manufacturer repurchase are amortized at monthly rates ranging from 1% to 1.6%
of the wholesale invoice cost of the financed vehicles. Loans relating to
vehicles not subject to manufacturer repurchase or relating to vehicles not
accepted for repurchase are amortized in monthly installments equal to 2.5% of
the wholesale invoice cost or refinanced balance. As of December 31, 1994 and
1993, $8,863,000 and $17,741,000 were outstanding under the agreement with
GMAC. As of June 30, 1995, $550,000 was outstanding under the agreement with
GMAC.
The agreement with GMAC contains negative covenants restricting the Company's
ability to, among other things, (i) incur liens, security interests or
encumbrances with respect to any vehicles; (ii) declare any dividend or make any
distribution to shareholders; (iii) merge or consolidate with any other company
or dispose of all or substantially all of its assets; or (iv) acquire all or
substantially all of the assets of another company.
Pursuant to the terms of the Promissory Note dated December 23, 1983, as
amended, from the Company to FMCC, FMCC agreed to make loans under security
agreements based upon the value of the vehicles purchased, to a maximum of
$7,500,000. These loans bear interest at a fixed rate equal to the prune rate
in effect when the borrowing occurs plus 1% to 1.5%, and are due and payable 13
months after the vehicles are placed in service. Loans are amortized at rates
ranging from 1.3% to 2.3% of the wholesale invoice cost of the financed
vehicles. As of December 31, 1994 and 1993, $8,622,000 and $9,127,000 were
outstanding under the agreement with FMCC. As of June 30, 1995, $281,000 was
outstanding under the agreement with FMCC.
The agreement with FMCC contains negative covenants restricting the Company's
ability to, among other things, (i) guaranty the debt of others and (ii) merge
or consolidate with any other company or dispose of all or a substantial portion
of its assets. In addition, the agreement with FMCC requires the Company to
maintain a specific debt to tangible net worth. As of June 30, 1995, the
Company was not in compliance with certain of the covenants under the agreement
with FMCC.
Based upon the restrictive eligibility requirements imposed by GM and Ford
which resulted in decreased rental fleet allocations for the Company, present
financing needs required of both GMAC and FMCC are expected to be minimal. The
Company has maintained favorable relationships with these entities in the past
and expects to continue any financing agreements as necessary; however no
assurance can be given that such agreements will be available. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations - Financing".
AUTOMOBILE DEALERSHIP FINANCING
South Seas and OCJ finance their new car inventory under lines of credit
having aggregate availability of $13,500,000 with Chrysler Credit Corporation.
These loans bear interest at a floating rate equal to the prime rate plus 1%.
Interest only is payable, with final maturity with respect to loans relating to
vehicles of a particular model year occurring in August of the following year.
SSJE and OCJ collectively had outstanding as of December 31, 1994 and 1993,
$4,402,000 and $7,851,000, respectively, of financing under these lines of
credit. As of June 30, 1995, SSJE and OCJ collectively $9,258,000
outstanding under these lines of credit. See "Management's Discussion and
Analysis of Financial Condition and Results of Operations - Financing".
OTHER FINANCING
Over the past two years, the Company completely replaced its computer systems
for car rental reservations and accounting with an advanced rental customer
computer software system developed jointly with a software development company.
The system is fully operational at all rental locations. Lease financing
covered most of the related expenditures and as of December 31, 1994, the
Company had outstanding $656,000 of capital lease financing. Payments of
$18,000 are made monthly, with the leases maturing in 1998.
The Company, South Seas and OCJ collectively had outstanding as of December
31, 1994, $1,370,000 of mortgage loans owed to the Bank for the Company's
baseyard facility on Oahu, and the dealership for SSJE and the facility for OCJ.
Aggregate principal and interest payments for this mortgage loans of $29,500
are made monthly, with the mortgage loans maturing from June 1995 through
February 1998. As of June 30, 1995, the Company had an outstanding balance of
approximately $261,000 under the mortgage loan for its baseyard facility on
Oahu, SSJE had an outstanding balance of approximately $578,000 under the
mortgage loan for its dealership and OCJ had an outstanding balance of
approximately $528,000 under the mortgage loan for its facility. The Company,
SSJE and OCJ were not in compliance with certain of the covenants under these
loans. The Company has received an extension until November 30, 1995 on the
matured loans for the baseyard facility. OCJ has received an extension until
November 30, 1995 on the matured loans for its facility.
The Company had outstanding as of June 30, 1995, $416,000 of mortgage debt
owed to First Hawaiian Bank ("First Hawaiian") for its baseyard facility in
Kauai. Principal is amortized on a monthly basis with payments of $13,500 per
month through October 1998. Under the most restrictive covenant of the related
loan agreement, the Company is required to maintain a defined debt to net worth
ratio. As of December 31, 1994, the Company was not in compliance with this
covenant, but had obtained a written waiver from First Hawaiian regarding such
non-compliance and as of June 30, 1995, the Company continued not to be in
compliance with certain of the covenants thereunder.
During 1993, the Company received a $500,000 loan from the United States
Small Business Administration to cover losses resulting from Hurricane Iniki
during September, 1992. The loan, which bears interest at the rate of 6%, is
being amortized through October 1995 with total interest and principal payments
of $17,000 per month. As of June 30, 1995, $76,000 of principal for this
loan remained outstanding and the Company was not in compliance with certain of
the covenants thereunder.
See "Management's Discussion and Analysis of Financial Condition and Results
of Operations - Financing."
LICENSE
The Company became the exclusive licensee of Dollar for the State of Hawaii
pursuant to a license agreement dated April 3, 1974. In 1990, Dollar became a
wholly-owned subsidiary of Pentastar Corporation, which is a wholly-owned
subsidiary of Chrysler Corporation.
In 1988, Dollar granted the Company license rights in Japan, The Peoples'
Republic of China, South Korea, Hong Kong, Taiwan, Guam and other South and
Western Pacific territories and countries ("Asian rights"). However the
majority of these Asian rights were repurchased by Dollar in 1991. The balance
of these rights were assigned to Dollar as part of the 1994 Assistance
Agreement.
The License was most recently modified pursuant to the terms of the 1994
Assistance Agreement, whereby Dollar Systems reduced the license fees payable by
the Company to Dollar System during 1994 and also procured a Bond on behalf of
the Company to satisfy the Company's self-insurance requirements. In connection
with the issuance of the Bond, the Company assigned Dollar its receivable from
the sale of the Asian rights as part of the collateral for the self-insurance
surety Bond with the State of Hawaii. See "Dollar", "Insurance" and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations - Liquidity and Capital Resources".
The License grants to the Company the right to conduct its "vehicle renting
business" under the name Dollar Rent A Car and similar names. The License
relates to the short-term rental of motor trucks, trailers and passenger
vehicles. Pursuant to the License, Dollar provides the Company with necessary
support and certain marketing and reservation assistance. Specifically, the
Company benefits from Dollar's available resources and facilities, and Dollar's
worldwide reservation system, advertising, publicity, public relations, sales
promotion, and certain promotional materials.
The License does not have a fixed term. The Company, however, does have the
right to terminate the License at any time by giving 60 days prior written
notice to Dollar. Dollar may terminate the License if the Company defaults in
the performance of its obligations under the License and fails to cure its
defaults within the period of time provided under the License. The License
provides that it will terminate automatically if the Company attempts to assign
its interest under the License without consent. In the event of termination,
the License requires the Company to assign to Dollar, upon their request, all of
its airport contracts, concessions, leases and other arrangements pertaining to
the use of real estate, and provides that Dollar shall thereafter have the right
to conduct vehicle rental operations at all such locations for its own benefit,
or to designate another licensee. Such termination would also prohibit the
Company from using all trade names, trademarks, signs, advertising, promotional
materials and similar items of identification associated with Dollar. Any such
termination would, of course, have a material adverse effect upon the Company
and its operations.
The License also affords Dollar certain rights of approval concerning members
of management of the Company. In the event of the termination of employment of
Alan M. Robin, Chairman, President and Chief Executive Officer of the Company,
the License provides that the Company shall within 90 days give Dollar written
notice of the identity and qualifications of the person to be designated as
Chief Executive Officer of the Company, subject to the consent of Dollar, which
consent shall not unreasonably be withheld. In the event Dollar reasonably
determines that the person identified in such notice is not qualified, Dollar
shall within 30 days notify the Company that it has elected to withhold its
consent, and must specify m reasonable detail all deficiencies in the
qualifications of such person upon which it has relied in making such
determination. The License further provides that the procedure set forth above
shall be repeated until the Company and Dollar have reached an agreement
concerning the identity of the person to be designated as Chief Executive
Officer of the Company.
The Company pays Dollar a license fee which consists of a percentage of
revenues adjusted for certain allowances and offsets. In addition, the Company
pays for reservations made through Dollar's worldwide reservation system.
INSURANCE
During 1994, the Company was self-insured in the State of Hawaii with
respect to statutory no-fault and auto liability claims up to $500,000 per
occurrence resulting from accidents involving its rental vehicles. Claims were
adjusted using Company employee adjusters, supervised by a Company employed
licensed adjuster who also serves as the Company's risk manager. During
February 1995, the Company elected to enroll with a commercial insurance
carrier to cover all future statutory no-fault and auto liability claims. Under
this policy, the Company maintains coverage for claims up to $500,000 per
occurrence with a $25,000 deductible. The Company is self-insured for the
amount of claims in excess of $500,000 per occurrence.
In addition to the liability the Company may have for its own negligence, the
Company also has liability to a renter of vehicles in Hawaii based upon the "no-
fault" doctrine and to others based upon the "third party liability" doctrine.
Under the no-fault doctrine, the Company's liability to renters, their
passengers and pedestrians (including those on cycles or mopeds) is limited to
$20,000 per person for medical expenses and wage losses. With respect to third
party liability, the Company's liability is limited to $25,000 per injured
claimant for bodily injury, and $10,000 property damage per accident.
As of June 30, 1995, the Company's estimated reserve for self-insurance
liability was 1,873,422. The Company believes that this reserve is adequate
based upon historical information available. However, an increase in the cost
of self-insured claims could adversely affect the Company's financial condition
and results of operations. [See note 7 of the Notes to Consolidated Financial
Statements of the Company.]
As a self insured entity, the Company was required to post a surety bond or
cash collateral with the Insurance Department of the State of Hawaii to maintain
its self insurance certificate. As part of the 1994 Assistance Agreement Dollar
procured a $3,400,000 bond (the "Bond") on behalf of the Company to meet these
requirements. The Company is required to indemnify Dollar and certain of its
affiliates in connection with the Bond. To secure the Company's indemnification
of those parties, the Company: (i) assigned to Dollar its receivable from the
sale of the Asian rights, (ii) assigned to Dollar its interest in the License,
and (iii) granted to Dollar a junior mortgage covering the Company's leasehold
interest in its SSJE and OCJ locations. See "Dollar" and "Management's
Discussion and Analysis of Financial Condition and Results of Operations -
Liquidity and Capital Resources".
MARKETING AND CUSTOMERS
The Company's passenger vehicle rental customers consist principally of
tourists, convention visitors and other group travelers, business people, and
local residents. Vehicle rental bookings are made through travel industry
distribution channels including retail agents and wholesale travel marketers
such as tour operators, hotel chains, condominium management companies, airlines
and ground operators as well as by walk-up customers at airport and in-town
locations.
The Company has focused much of its marketing efforts on developing marketing
partnerships and contractual relationships with wholesale tour operators, hotels
and airlines that provide pre-packaged travel arrangements to consumers through
independent travel agents. Pre-packaged travel arrangements comprised
approximately 50% of the Company's vehicle rentals in 1994, 1993 and 1992.
Typically, such contracts are for a term of one to five years at net wholesale
rates that reflect the Company's savings in marketing, advertising, and retail
commission expense. These contracts provide tour operators the flexibility to
include car rentals with air, hotel and other travel arrangements.
The Company has an agreement with Pleasant Travel Service, a California
corporation doing business as Pleasant Hawaiian Holidays ("Pleasant"), pursuant
to which the Company has agreed to provide passenger rental vehicles to
Pleasant's customers at special rates. Pleasant has agreed to use the Company
for up to 475,000 vehicle rental days annually in connection with its published
and advertised Hawaii tour packages that include the rental of a vehicle.
Pleasant has been, and continues to be, a major tour operator in Hawaii.
Pleasant currently makes travel arrangements for approximately 20,000 tourists
to Hawaii per month. The agreement with Pleasant extends through December 15,
1997, is renewable and may be terminated by either party without cause upon one
year's notice and by Pleasant upon 90 days notice if the Company defaults in the
performance of its obligations and fails to cure the default within a 30-day
period following receipt of a notice of such default. Pleasant is not required
to use the Company as its exclusive rental car supplier; however the Company has
fulfilled nearly all of Pleasant's requirements since the inception of this
agreement in 1982.
During 1994, 1993 and 1992 revenues generated under the agreement with
Pleasant were approximately $8,390,000, $5,183,000, and $5,815,000,
respectively, exclusive of charges to individual renters for loss damage
waivers, gasoline and upgrades. These amounts represented approximately 15.5%,
9.6%, and 11.5% of the Company's vehicle rental revenued in those years,
respectively. The increase in 1994 is attributable to Pleasant's startup of
scheduled air service from the west coast operated by American Trans Air
("ATA"). ATA provided Pleasant with approximately 200,000 available air seats
to Hawaii pursuant to a multi-year agreement. There can be no assurance,
however, that the Company will continue to realize sales volume at this level
from the Pleasant arrangement, or that if such revenues are realized, that they
will generate profits.
In order to obtain maximum benefits from these sources, the Company has begun
to devote additional manpower and data processing resources to monitor these
sources and adjust rates more frequently to compete in these markets. By
implementing yield management systems and exercising greater control over
inventory allocation and price movements, management expects continued
improvement in fleet utilization and prices. Due to higher fleet related costs
and reduced availability of inventory, the Company's marketing efforts during
1994 emphasized increasing rates and yield and greater selectivity in acquiring
and assigning inventory to travel industry accounts.
The Company pays commissions to travel agencies on this retail business at
competitive commission levels, generally based on volume. The Company also pays
the Licensor a fee for each reservation received.
The Company receives certain marketing support from the Licensor. The
Company also conducts limited consumer and travel trade advertising throughout
the State of Hawaii, on the U. S. mainland and in Japan. The Company also
participates in model year advertising programs funded by Chrysler. Such
programs support both the Company's direct promotional efforts, as well as
cooperative advertising programs with certain wholesale customers both within
and outside the State of Hawaii. The Company contracts with a general sales
agency for sales support in Japan.
COMPETITION
The vehicle rental industry in the State of Hawaii is highly competitive.
The vehicle rental companies as a group compete with bus tours, mini-bus tours
and public transportation. All of the major national companies, including
Hertz, Avis, National, Budget and Alamo, operate in Hawaii, as well as various
independently owned vehicle rental businesses. The major competitors of the
Company each have substantially greater resources than the Company and, unlike
the Company, are neither licensees nor franchisees. These competitors have the
ability to provide additional resources to their Hawaii operations and to
subsidize their Hawaii operations with funds generated from other locations.
The Company's vehicle sales operations compete with other new and used car
dealerships on the island of Oahu. The Company competes with two other Jeep
Eagle dealerships, one other Chrysler Plymouth dealership and many other new car
dealerships that sell vehicles manufactured by other domestic and foreign
manufacturers. Certain dealers have greater resources, hold multiple
dealerships and are therefore able to devote more advertising dollars to their
dealership operations.
EMPLOYEES
As of December 31, 1994, the Company had approximately 453 full and part time
employees, of which 104 were employed at South Seas. The Company has no
collective bargaining obligations or agreements and management considers
relations with its employees to be generally good.
GOVERNMENT REGULATION
The vehicle rental and sales industries in Hawaii are subject to federal,
state, and local government regulations generally applicable to bus and vehicle
owners, including those relating to licensing and safety of vehicles, the sale
of loss damage waivers, new and used vehicle sales, and environmental
protection.
The Company's counter spaces and operational facilities at the Honolulu
International Airport are leased from the Department of Airport Properties, a
division of the State Department of Transportation. The Company's counter
spaces and operational facilities at other airports are leased from the
respective airport authorities in the counties of Kauai, Maui and Hawaii. (See
THE COMPANY; Properties.)
The Company has seven underground and one above ground petroleum product
storage tanks and one underground waste oil storage tank on its properties. The
Company is subject to the federal and state laws governing the ownership and
operation of these storage tanks. These laws require the Company to test
periodically the integrity of these tanks and to mitigate or remedy the
environmental effects of any releases of products from the storage tanks. In
1993, the Company was advised of a petroleum leak at the baseyard location for
vehicle rental operations on the island of Oahu. The closure and removal of the
waste oil storage tank was completed in 1994. The Company has recorded adequate
reserves in anticipation of any further remedial efforts at the baseyard
location.
During November 1994, the Company received several citations from the United
States Environmental Protection Agency (EPA) relating to one of its baseyard
locations on the island of Hawaii. The most significant comment cited the
Company for not performing certain acceptable leak and precision tightness
procedures as part of its annual testing. The Company's environmental
consultants who performed the tank test clarified the necessary procedures with
the EPA and are working with the Company to ensure that proper testing
procedures are performed for all of the Company's tanks. No leaks or
contamination were discovered during the testing by the environmental
consultants.
The Company does not expect to be materially affected by the Americans With
Disabilities Act because it has the ability to service disabled persons from its
"on airport" locations and these airports will be required to be in compliance
with that Act.
In 1992, certain legislation was enacted in the State of Hawaii which has an
impact on the Company's self insurance program. Under this legislation, the
Company's maximum insurance obligation with respect to No Fault medical and wage
loss payments was increased from $15,000 to $20,000 per claimant. Bodily
injury liability insurance provided to drivers of the Company's vehicles was
reduced from $35,000 per claimant to $25,000 per claimant. In addition, the
payment of medical expenses related to No Fault coverage incurred after January
1, 1993 is subject to a fee schedule, which has reduced the No Fault payments
required by the Company by about 15% for 1993 as compared to 1992. Under these
laws, medical treatment is also subject to frequency guidelines which should
further reduce the Company's costs.
During 1993 and 1994 no legislation was passed in the Hawaii legislature
which would result in significant additional costs for the Company and its major
competitors and eventually result in increases in the price that vehicle rental
companies charge their customers.
PROPERTIES
As of December 31, 1994, the Company operated from 14 customer service
locations on the islands of Oahu, Maui, Kauai, Hawaii and Molokai in the State
of Hawaii. The Company believes that its concessions, baseyards and other
facilities are adequate for its business operations for the next two to three
years. During 1994, the Company's fixed and minimum rent expense amounted to
$3,934,000. In addition, the Company paid percentage rent of $2,201,000.
[See note 15 of the Notes to Consolidated Financial Statements of the Company.]
OAHU PROPERTIES
The Company operates its airport counter spaces, baseyard, and other
facilities at the Honolulu International Airport under a concession with the
State of Hawaii which expires in February 1998. The concession provides the
Company with 15,000 square feet for its washing, fueling and maintenance area,
and 131 rental car parking spaces.
The Company also operates a baseyard facility on Oahu which it leases from
the State of Hawaii. The baseyard facility's permanent improvements consist of
office space, repair and maintenance facilities, fueling facilities, and vehicle
washing and parking space. The Company, along with the other car rental
companies which occupy similar baseyard facilities in the immediate area,
renewed its lease term through February 1998.
The Company's Waikiki rental operations are based at two facilities. Its
vehicle rental and storage facility is located in the Island Colony Hotel, at
which the Company has a lease expiring in October 1997. The Company's other
Waikiki facility, which the Company began leasing in March 1993, includes
vehicle return space. washing facilities, a minor repair facility, and vehicle
parking space. The facility is operated on 26,400 square feet of property
located on Kalakaua Avenue. The lease expires in October 1995.
The Company also operates vehicle rental counter space and vehicle storage
facilities at seven major Waikiki hotels.
The Company leases approximately 13,600 square feet of office space which it
uses for its corporate and reservation Operations. The lease was renewed during
1994 and expires in July 2000.
The Company leases a 62,000 square foot property at the comer of Nimitz
Highway and Lagoon Drive near the Honolulu International Airport for its SSJE
automobile dealership. The lease was amended to expire in December 2002.
During 1993 the Company subleased a 8,400 square foot property across the of
its dealership location and completed expansion of its service facility for this
dealership. The sublease expires in December 2002. See "THE COMPANY -
Automobile Dealerships".
The Company leases approximately 55,000 square feet of property in the
Waipahu Industrial Park for its OCJ dealership. The lease expires in March
2021. During 1992, the Company renovated the building located at this location
and moved its Waipahu operations to the renovated building. See "THE COMPANY -
Automobile Dealerships".
The Company leased approximately 28,300 and 8,500 square feet of property
in Kaneohe which was previously used for its South Seas Motors dealership, which
was closed at the end of 1993. The leases expire in October 2003 and August
1998, respectively. During 1994 the Company assigned the leases for each
facility. See "THE COMPANY - Automobile Dealerships".
The Company also leases smaller facilities which are used for service
facilities for its OCJ and South Seas Motors dealerships. See "THE COMPANY -
Automobile Dealerships".
MAUI PROPERTIES
The Company has concessions from the State of Hawaii at the Kahului, Maui
airport for counter space and ready spaces, and a lease for a fully equipped
baseyard facility in Kahului. The concessions and baseyard leases in Kahului
expire in December 1998.
The Company leases a fully equipped baseyard at the Kaanapali Transportation
Center which expires in May 1997. The Company also operates vehicle rental
counter space and vehicle storage facilities at a major hotel near the Kaanapali
Resort.
During March 1994, the Company terminated its lease expiring in July 2004
for a 31,000 square foot parcel in Kahului, at which the Company previously
operated a car sales lot. The Company did not incur a significant expense
associated with this termination.
ISLAND OF HAWAII PROPERTIES
The Company has concessions from the State of Hawaii at the airports located
in Hilo and Kona for counter space and ready space. These concessions expire in
December 1998. The Company also leases baseyard facilities in Hilo and Kona.
The Hilo lease was renewed during the year and expires in September 1999; the
Kona lease expires in December 1998. At these baseyards, the Company has office
space, maintenance facilities, fueling facilities, vehicle washing and parking.
KAUAI PROPERTIES
The Company has concessions from the State of Hawaii at the airport located
in Lihue for counter space and ready spaces and licenses a three-acre parcel
which the Company uses for its offices, baseyard and repair, wash and fuel
facilities. The concession and base yard leases expire in December 1998.
LEGAL PROCEEDINGS
Except for the Pending Cases, the Company is not a party to any litigation
which it believes will have a material adverse impact on its operations. At
June 30, 1995, the Company's reserve for the future payment of claims and
expenses incurred in connection with the Company's self-insurance program was
$1,873,446.
PRINCIPAL SHAREHOLDERS
The following table sets forth, as of the Record Date, the beneficial
ownership of each person (including any "group" as that term is used in Section
13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) who is known by the Company to be the beneficial owner of more than 5% of
the Company's outstanding common Stock. Unless otherwise indicated, each person
listed has sole voting and investment power with respect to the shares
beneficially owned.
Percentage
Shares of Common of
Name and Address Stock outstanding
beneficially common Stock
owned (1)
Alan A. Robin 816,932 10.1%
1600 Kapiolani Blvd., #825,
Honolulu, Hawaii 96814
Principal Mutual Life 1,605,253 (3) 19.9%
Insurance Company
711 High Street
Des Moines, Iowa 50392-0001
Invista Capital Management, 1,605,253 (3) 19.9%
Inc.
699 Walnut, 1500 Hub Tower
Des Moines, Iowa 50309
Franklin Resources, Inc. 597,272 (4) 7.4%
777 Mariners Island Boulevard
San Mateo, California 94403
Nick S. Cutter 1,086,350 (5) 13.4%
2865 Pukoloa Street
Honolulu, Hawaii 96819
All directors and executive 993,504 (1)(2) 12.3%
officers
as a group (five (5) persons)
(1) Includes 303 shares issuable upon conversion of the Debentures.
(2) Includes options to purchase 80,000 shares which are presently
exercisable.
(3) Principal Mutual Life Insurance company and Invista Capital Management,
Inc. have shared voting power and shared dispositive power with respect to
these shares. Includes 130,000 shares issuable upon conversion of the
Debentures.
(4) Represents shares issuable upon conversion of $1,950,000 principal amount
of the Debentures.
(5) includes 950,000 shares owned by Cutter Management Co., a company of
which Nick S. Cutter serves as President and director, 52,350 shares held
by a pension plan controlled by Nick S. Cutter, and 84,000 shares held by
Gerald Cutter, the father of Nick S. Cutter.
SECURITY OWNERSHIP OF MANAGEMENT
The following table sets forth, as of the Record Date, the beneficial
ownership of the equity securities of the Company and of the Debentures of each
of the directors of the Company, each "named executive officer" (as defined in
Item 402(a)(3) of Regulation S-K promulgated by the Securities Exchange
Commission and the instructions thereto) of the Company and all executive
officers and directors of the Company as a group. Unless otherwise indicated,
the named person directly owns the securities listed and exercises sole voting
and investment power with respect thereto. Such table has been prepared from
information obtained from the respective officers and directors.
Name and Address Shares of Common Percentage of Face Amount
Stock outstanding of Debentures
beneficially owned Common Stock beneficially
(1) owned
Alan A. Robin (a) 816,932 10.1% None
Sirio Maggiacomo (a) 132,000 (1) 1.6% None
Scott H. Lang (a) 8,000 * None
Raymond I. Miyashiro (a) 400 * None
Paul J. Finazzo (a) None N.A. None
Rodney E. Gardiner (a) None N.A. None
J. George Hetherington (a) None N.A. None
Robert L. Solomon (a) None N.A. None
Richard Bauman (a) None N.A. None
Barbara Lau (a) None N.A. None
Stephen Robin (a) None N.A. None
Ronald Jones (a) None N.A. None
Robert Fishman (a) None N.A. None
All directors and executive 957,332 (1) 11.85% None
officers as a group (thirteen
(13) persons)
*Less than 1%
(a) 1600 Kapiolani Blvd., #825, Honolulu, Hawaii 96814
(1) Includes options to purchase 80,000 shares which are presently
exercisable.
DESCRIPTION OF COMMON STOCK
The Company's Common Stock consists of 20,000,000 authorized shares, no par
value, of which 8,079,800 shares are currently outstanding. The Company's
preferred stock consists of 5,000,000 authorized shares, no par value, of which
no such shares are currently outstanding.
PRICE RANGE OF SECURITIES
The Company's Common Stock is currently traded on the NASDAQ Small-Cap Market
under the symbol PISC. Prior to January 18, 1994 the common stock was traded
under the same symbol on the NASDAQ National Market System.
The following sets forth, for the fiscal quarter indicated, the high and low
closing bid prices per share. The prices per share reflects the inter-dealer
prices, without retail mark-up, mark-down or commission and may not necessarily
represent actual transactions:
1995 High Low
1st Quarter 7/8 13/32
2nd Quarter 9/16 5/16
1994 High Low
1st Quarter 13/16 7/16
2nd Quarter 15/16 1/2
3rd Quarter 3/4 7/16
4th Quarter 3/4 3/8
1993 High Low
1st Quarter 15/32 5/32
2nd Quarter 5/16 1/4
3rd Quarter 7/16 9/32
4th Quarter 7/8 9/32
As of the Record Date, the Company had approximately [1,094] holders of
record of its Common Stock.
DIVIDENDS
The Company has never declared or paid a cash dividend on its Common Stock
and is currently prohibited from paying any dividends under the terms of various
loan agreements. [See Note 4 of the Notes to Consolidated Financial Statements
of the Company.] The Board of Directors does not anticipate paying any cash
dividends in the foreseeable future. Subject to restrictions under various
credit arrangements, future dividend policy will depend on a number of factors,
including future earnings, capital requirements, the financial condition and
prospects of the Company and such other factors as the Board of Directors deems
relevant.
AVAILABLE INFORMATION
The Company is subject to the information requirements of the Exchange Act
and, in accordance therewith, files reports, proxy statements and other
information with the Commission. The reports, proxy statements and other
information filed by the Company with the Commission can be inspected and copied
at the public reference facilities maintained by the Commission at Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and the
Regional Offices of the Commission at 7 World Trade Center, New York, New York
10048 and Northwestern Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511. Copies of such material also can be obtained from
the Public Reference Section of the Commission at Room 1024, Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates.
OTHER INFORMATION
Representatives of Price Waterhouse LLP, independent accountants for the
Company, are expected to attend the Special Meeting, will be afforded an
opportunity to make a statement if they desire to do so and will be available to
respond to appropriate questions by shareholders.
The Board of Directors is not aware that any matters other than those set
forth herein and in the Notice of Special Meeting of Shareholders will come
before the meeting. Should any other matters requiring the vote of the
shareholders arise, it is intended that the proxies will be voted in respect
thereof in accordance with the best judgment of the person or persons voting the
proxy in the interest of the Company.
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
OF PACIFIC INTERNATIONAL SERVICES CORP.
Page
----
FINANCIAL STATEMENTS FOR THE YEARS ENDED DECEMBER 31, 1994,
1993 AND 1992:
Report of Independent Public Accountants F-2
Consolidated Balance Sheets as of December 31, 1994
and 1993 F-3
Consolidated Statements of Operations for the years
ended December 31, 1994, 1993 and 1992 F-5
Consolidated Statements of Changes in Shareholders'
Equity F-7
Consolidated Statements of Cash Flows for the years
ended December 31, 1994, 1993 and 1992 F-8
Notes to Consolidated Financial Statements F-11
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
[Report of Price Waterhouse to be furnished in revised proxy statement; the
following attachments are provided to show the scope of the information to be
included in the Proxy Statement]
PACIFIC INTERNATIONAL SERVICES CORP.
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
Year ended December 31,
------------------------------
1994 1993
<S> <C> <C>
---- ----
ASSETS
Cash and cash equivalents $831,952 $1,719,123
Receivables, net 10,023,512 11,079,476
Automobile dealership vehicle
inventories 4,961,600 6,847,532
Inventories and prepaid
expenses 899,453 1,214,633
Rental vehicles:
Cost 47,264,408 49,211,223
Accumulated depreciation
and reserves (4,896,998) (7,862,333)
------------ ------------
42,367,410 41,348,890
Furniture, equipment and
leasehold improvements:
Furniture and equipment 5,125,758 4,202,178
Leasehold improvements 7,747,054 6,937,956
------------ ------------
12,872,812 11,140,134
Accumulated depreciation
and amortization (4,722,966) (3,621,547)
------------ ------------
8,149,846 7,518,587
------------ ------------
Other assets 2,038,462 2,164,248
------------ ------------
Total Assets $69,272,235 $71,892,489
============ ===========
LIABILITIES AND SHAREHOLDERS
EQUITY
Accounts payable $5,744,507 $4,438,091
Accrued expenses and
other liabilities 8,152,270 9,123,241
Senior debt 48,034,463 49,562,701
Convertible subordinated
debentures 5,250,000 5,250,000
------------ ------------
Total liabilities 67,181,240 68,374,033
------------ ------------
Shareholders' equity:
Preferred stock with no
par value, authorized
15,000,000 shares,
none issued
Common stock, stated
value $0.10 per share,
authorized 50,000,000
shares, issued and
outstanding 8,079,800 and
9,009,300 shares,
respectively 807,980 900,930
Additional paid-in capital 9,102,181 10,147,994
Accumulated deficit (7,819,166) (6,391,705)
------------ ------------
2,090,995 4,657,219
Subscriptions receivable - (1,138,763)
------------ ------------
Total shareholders equity 2,090,995 3,518,456
Commitments and
contingencies (Note 15) - -
Total liabilities and
shareholders equity $69,272,235 $71,892,489
</TABLE>
PACIFIC INTERNATIONAL SERVICES CORP.
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
Year ended December 31,
-----------------------
1994 1993 1992
---- ---- ----
<S> <C> <C> <C>
Operating revenues:
Vehicle rental $54,126,236 $54,163,237 $51,789,993
Vehicle sales 39,698,728 43,987,934 31,520,987
------------ ------------ ------------
Total operating
revenues 93,824,964 98,151,171 83,310,980
------------ ------------ ------------
Operating costs and
expenses:
Cost of vehicles sold 29,744,940 32,704,204 23,930,595
Personnel 14,276,815 14,275,370 12,295,739
Rental vehicle lease 11,131,821 2,262,915 112,666
Occupancy 8,750,824 8,468,984 7,460,174
Rental vehicle
depreciation 6,727,800 10,109,042 10,066,361
Interest on fleet debt 2,571,399 5,081,405 5,403,833
Other direct operating 13,403,338 16,817,951 17,338,963
Other selling,
general and
administrative 7,532,962 7,772,792 7,515,547
------------ ------------ ------------
Total operating
costs and
expenses 94,139,899 97,492,663 84,123,878
------------ ------------ ------------
Income (loss) from
operations (314,935) 658,508 (812,898)
Other income (expense):
Interest income 57,438 79,289 101,326
Other interest expense (898,246) (913,785) (772,496)
Other, net (271,718) (416,631) (620,434)
------------ ------------ ------------
Loss before income
taxes (1,427,461) (592,619) (2,104,502)
Provision for income
taxes - 211,443 -
------------ ------------ ------------
Net loss ($1,427,461) ($804,062) ($2,104,502)
------------ ------------ ------------
Loss per common and
common equivalent
share:
Net loss ($0.18) ($0.09) ($0.23)
============ ============ ============
Weighted average number
of common shares
outstanding 8,079,800 9,009,300 9,009,300
============ ============ ============
</TABLE>
PACIFIC INTERNATIONAL SERVICES CORP.
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS' EQUITY
<TABLE>
<CAPTION>
Common Stock Additional
--------------------- Paid-in Accumulated Subscription
Shares Amount Capital Deficit Receivable Total
--------- -------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C>
December
31, 1991 9,009,300 $900,930 $10,147,994 ($3,483,141) ($1,138,763) $6,427,020
Net loss - - - (2,104,502) - (2,104,502)
--------- -------- ----------- ----------- ----------- -----------
December
31, 1992 9,009,300 $900,930 $10,147,994 (5,587,643) (1,138,763) 4,322,518
Net loss - - - (804,062) - (804,062)
--------- -------- ----------- ----------- ----------- -----------
December
31, 1993 9,009,300 $900,930 $10,147,994 (6,391,705) (1,138,763) 3,518,456
Subscrip
-tions
canceled (929,500) (92,950) (1,045,813) - 1,138,763 -
Net loss - - - (1,427,461) - (1,427,461)
--------- -------- ----------- ----------- ----------- -----------
December
31, 1994 8,079,800 $807,980 $9,102,181 ($7,819,166) - $2,090,995
========= ======== =========== =========== =========== ===========
</TABLE>
PACIFIC INTERNATIONAL SERVICES CORP.
Consolidated Statements of Cash Flows
<TABLE>
<CAPTION>
Year ended December 31,
---------------------------------------
1994 1993 1992
------------ ----------- -----------
<S> <C> <C> <C>
Cash flows from operating
activities:
Net loss ($1,427,461) ($804,062) ($2,104,502)
Adjustments to reconcile
net income (loss) to net
cash provided by
operating activities:
Gain from involuntary
conversion - - (169,000)
Loss on closure of
automobile dealership - 136,720 -
(Gain) loss on sale of
rental vehicles (265,179) 309,717 1,301,396
Loss on disposal of
property and equipment - 62,298 -
Depreciation of rental
vehicles and
amortization of
related costs 8,053,482 16,506,025 11,829,121
Depreciation and
amortization, other 1,101,418 799,198 814,213
Provision for losses
on rental vehicles 1,137,913 234,365 605,900
Provision for losses
on receivables 489,477 362,026 463,793
Provision for collision
damage 314,548 377,217 744,237
Provision for equipment
losses - 200,000 126,000
Provision for
self-insurance 2,267,465 3,158,685 4,791,307
Change in assets
and liabilities:
Receivables (320,643) (3,053,249) (1,816,892)
Automobile dealership
vehicle inventories 14,940,308 17,076,857 10,599,534
Inventories, prepaid
expenses and other
assets 440,966 - 410,827
Accounts payable 1,306,416 (411,317) 2,743,431
Accrued expenses and
other liabilities (1,838,436) (288,283) (2,508,488)
Notes payable for
automobile
dealership vehicle
inventories (16,100,896) (14,898,184) (10,937,711)
------------ ----------- -----------
Net cash provided
by operating
activities 10,099,378 19,768,013 16,857,166
------------ ----------- -----------
Cash flows from investing
activities:
Maturity of short-term
investments - - 503,654
Proceeds from involuntary
conversion - - 414,902
Purchases of rental vehicles (1,521,079) (2,781,561) (509,459)
Additions to furniture,
equipment and leasehold
improvements (1,648,865) (2,171,668) (1,731,306)
Proceeds from the sale of
rental vehicles 9,734,768 5,383,438 2,634,254
------------ ----------- -----------
Net cash provided by
investing activities 6,564,824 430,209 1,312,045
------------ ----------- -----------
Cash flows from financing
activities:
Proceeds from borrowings - 622,096 1,002,154
Principal payments of
senior debt (17,551,373) (23,215,374) (17,609,585)
------------ ----------- -----------
Net cash used in
financing activities (17,551,373) (22,593,278) 16,607,431)
------------ ----------- -----------
Net increase (decrease)
in cash and cash
equivalents (887,171) (2,395,056) 1,561,780
Cash and cash equivalents
at beginning of year 1,719,123 4,114,179 2,552,399
------------ ----------- -----------
Cash and cash equivalents
at end of year $831,952 $1,719,123 $4,114,179
============ =========== ===========
Supplemental schedule of noncash investing and financing activities:
1994 1993 1992
------------ ----------- -----------
Senior debt incurred for
additions to rental vehicles $42,781,629 $58,750,713 $84,966,109
Senior debt incurred for
additions to automobile
dealership vehicle
inventories $13,938,869 $14,158,772 $13,473,629
Senior debt incurred for
conversion of lease
obligations $1,400,000 - -
Automobile dealership
vehicle inventories not
yet financed - $281,000 $1,311,000
Reductions of senior debt
resulting from turnback
of rental vehicles ($26,080,268) ($81,456,558) ($68,589,289)
Capital lease obligation
incurred from purchase
of equipment $83,813 $536,981 -
Year ended December 31,
---------------------------------------
1994 1993 1992
------------ ----------- -----------
Cash paid for:
Interest $3,472,336 $6,209,934 $6,078,540
Income taxes - $150,000 -
</TABLE>
PACIFIC INTERNATIONAL SERVICES CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. THE COMPANY AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The Company does business as Dollar Rent A Car under an exclusive license
for the State of Hawaii with Dollar Systems, Inc. ("Dollar Systems") and
also operates two automobile dealership which sell Chrysler, Jeep, Eagle
and Hyundai vehicles. The Company incurred consolidated losses of
$1,427,000, $804,000 and $2,105,000 in 1994, 1993 and 1992, respectively.
The Company's vehicle rental and vehicle sales segments have been adversely
impacted by the overall sluggish Hawaiian economy for the past few years.
Additionally, during 1994 increased fleet costs and new car inventory
shortages along with increases in other operating costs combined to
adversely impact the Company's operations and cash flows. Management has
taken action to improve the financial condition of the Company by adding
products at car rental counters to increase average daily rental yields,
minimizing increases in fleet holding costs by increasing utilization and
purchasing lower cost vehicles, and reducing labor and other operating
expenses. Additionally, the Company is attempting to increase its retail
rental volume with additional advertising and marketing support from Dollar
Systems. Furthermore, the Company has been able to secure financial
assistance from Dollar Systems during 1994 and in 1995 to alleviate some of
the increased rental fleet costs and remedy some of the Company's cash flow
problems (see note 15). Management believes that these actions will help
to alleviate the cash flow and operating difficulties currently facing the
Company.
Principles of Consolidation
The consolidated financial statements include the accounts of the Company
and it's wholly-owned subsidiaries. Significant intercompany accounts and
transactions have been eliminated in consolidation.
Recognition of Vehicle Rental Revenue
The Company recognizes income based on completed rental agreements and on
management's estimate of the earned portion of rental agreements for
vehicles on rent at the end of each accounting period.
Interest on Fleet Debt
Interest on fleet debt includes interest on debt incurred to maintain both
the rental vehicles and the automobile dealership vehicle inventories.
Inventories
Automobile dealership vehicle inventories are stated at the lower of cost
or market, cost being determined on the specific identification basis.
Parts and other inventories are stated at the lower of cost or market, cost
being determined on the first-in first-out basis.
Rental Vehicles
Rental vehicles are recorded at their wholesale invoice cost and are
depreciated on a straight-line basis consistent with the vehicle
manufacturers' repurchase program specifications. Depreciation rates vary
from 1% to 3% of the capitalized cost per month. Related fleet rebates and
allowances are amortized over the average holding period of the rental
fleet and are credited against depreciation expense on the Consolidated
Statements of Operations.
Gains or losses on sales or turnbacks of rental vehicles to the
manufacturers, including unrealized loss reserves are included in the line
item depreciation of rental vehicles on the Consolidated Statements of
Operations. Vehicles sold by the Company's automobile dealerships are
reported as vehicle sales and cost of vehicles sold.
Furniture, Equipment and Leasehold Improvements
Furniture and equipment are recorded at cost and depreciated on a straight-
line basis over their estimated useful lives of 5 to 7 years. Leasehold
improvements are recorded at cost and amortized on a straight-line basis
generally over the shorter of their estimated useful lives or the related
lease term of 10 to 18 years.
Intangible Assets
Intangible assets including goodwill, franchise rights and debt issue costs
aggregating $1,366,000, net of accumulated amortization of $521,000, is
included in other assets and is amortized on a straight-line basis over
periods ranging from 10 to 40 years.
Balance Sheet Classification
Consistent with industry practice, and the nature of its most significant
assets and liabilities, the Company does not classify its balance sheet
into current or long-term categories.
Cash Equivalents
For purposes of the consolidated statements of cash flows, the Company
considers all highly liquid investments with an original maturity of three
months or less to be cash equivalents. Cash equivalents as of December 31,
1994, 1993 and 1992 represent certificates of deposit and money market
accounts aggregating $150,000, $466,000 and $3,434,000, respectively.
Cash and certificates of deposit of $288,000 at December 31, 1994 are
pledged against certain airport leases with the State of Hawaii and are
included in other assets.
Reclassifications
Certain reclassifications were made to the 1993 and 1992 financial
statements to conform to the 1994 presentation.
Additionally, cash flows related to the assumption and reduction of senior
debt, and the acquisition and turnback or sale of rental vehicles and
automobile dealership vehicle inventories for 1992 have been reclassified
to better reflect the effect of non-cash transactions as it relates to the
Consolidated Statements of Cash Flows. These items are included in the
supplemental disclosures of cash flow information.
2. RECEIVABLES
December 31,
1994 1993
---------- ----------
Receivable from manufacturers $1,877,232 $2,908,926
Trade 2,440,243 2,684,956
Subrogation 2,707,303 2,539,347
Vehicle sales and leases 2,726,581 2,045,176
Unbilled rentals 635,584 829,656
Warranty 445,896 623,318
Credit card and collections 188,219 241,605
Other 280,544 477,095
---------- ----------
11,301,602 12,350,079
Less allowance for doubtful
accounts (1,278,090) (1,270,603)
---------- ----------
$10,023,512 $11,079,476
========== ==========
3. ACCRUED EXPENSES AND OTHER LIABILITIES
December 31,
1994 1993
---------- ----------
Reserve for self-insurance $3,011,200 $2,807,300
Accrued taxes other than
income taxes 1,503,342 1,232,344
Accrued rents 952,881 777,671
Customer deposits and refunds 912,572 357,985
Accrued interest 501,318 528,877
Accrued commission 279,700 307,260
Accrued salaries and wages 244,522 257,063
Accrued franchise fees 131,458 236,726
Deferred lease program credits 86,764 2,143,966
Other 528,513 474,049
---------- ----------
$8,152,270 $9,123,241
========== ==========
4. SENIOR DEBT
December 31,
1994 1993
---------- ----------
RENTAL FLEET DEBT:
Debt obligations secured
by substantially all
of the Company's rental fleet:
Notes payable to credit
granting affiliates of
major manufacturers,
principal and interest
payable monthly in two years
or less $17,484,682 $26,868,287
Notes payable under lines of
credit, principal and
interest payable monthly,
maturity in two years or
less 22,492,333 10,934,412
----------- -----------
Total rental fleet debt 39,977,015 37,802,699
=========== ===========
VEHICLE SALES DEBT:
Notes payable under $8,250,00
line of credit with credit
granting affiliate of major
automobile manufacturer,
interest only payable monthly,
secured by automobile
dealership vehicle inventories 4,402,326 7,851,459
Vehicle purchases not
yet financed - 281,000
----------- -----------
Total vehicle sales debt 4,402,326 8,132,459
----------- -----------
Total vehicle debt obligations 44,379,341 45,935,158
=========== ===========
OTHER DEBT:
Mortgage loans at prime rate
plus 1.5% or 1.75%, principal
and interest payable monthly,
maturing in June 1995
through October 1998, secured
by certain leasehold interests 1,844,061 2,187,058
Notes payable to the credit
granting affiliate of a major
automobile manufacturer,
interest from 8.69% to 9.19%,
principal and interest payable
monthly, maturing in 1996,
secured by certain vehicles 107,622 188,487
Other 1,703,439 1,251,998
----------- -----------
Total other debt 3,655,122 3,627,543
----------- -----------
$48,034,463 $49,562,701
=========== ===========
Rental Fleet Debt
As of December 31, 1994 the Company has a financing agreement with the
credit affiliate of a major automobile manufacturer providing up to
$20,000,000 in rental fleet financing. Interest on notes executed under
this agreement, payable monthly, is based on the lender's prime rate plus
.75% to 2%. Interest rates on notes executed in 1994 and 1993 ranged from
6.75% to 10.50% and 6.75% to 7.75% respectively. Borrowings under the
financing agreements totaled $8,863,000 and $17,741,000 as of December 31,
1994 and 1993, respectively.
As of December 31, 1994, the Company has a loan agreement with the credit
affiliate of another automobile manufacturer providing up to $7,500,000 in
rental fleet financing. Under this agreement, loans are made under lease
plan security agreements based upon the value of the vehicles purchased.
Loans under this agreement bear interest at prime rate plus 1% to 1.5%. As
of December 31, 1994 and 1993, $8,622,000 and $9,127,000 were outstanding,
with interest rates on notes executed during those years ranging from 7% to
9.5% and 7.5%, respectively. This credit affiliate allowed the Company to
exceed its credit line limit during 1994.
As of December 31, 1994, the Company has loan agreements with a bank
providing up to $19,984,000 in financing for its rental fleet vehicles. Of
this amount $16,000,000 was used for vehicles subject to manufacturer
repurchase and the remainder used to finance vehicles rejected upon turn
back to the manufacturer and vehicles purchased outside the repurchase
programs. Loans under these agreements bear interest at prime rate plus 1%
to 2.75%. As of December 31, 1994 and 1993, $7,792,000 and $10,934,000
were outstanding, with interest rates on notes executed during those years
ranging from 7% to 11.25% and 7% to 8.5% respectively.
As of December 31, 1994, the Company has a loan agreement with a financing
company providing up to $15,000,000 in financing for its rental vehicles.
Of this amount $8,350,000 was used to purchase vehicles under a guaranteed
depreciation program and the remainder used to finance "risk" vehicle
purchases. Loans under this agreement bear interest at prime rate plus
1.75%. As of December 31, 1994, $14,700,000 was outstanding at an interest
rate of 10.25%. This was the first year the Company financed rental
vehicles through this financing company.
Rental fleet debt agreements and certain other debt agreements contain
negative covenants restricting the Company's ability to, among other
things, declare any dividend or make any distribution to shareholders.
Under the most restrictive covenants contained in the bank's and financing
company's loan agreements, the Company is required to maintain a defined
cash flow, debt service coverage ratio, and tangible net worth. As of
December 31, 1994, the Company was not in compliance with certain of these
covenants, but has obtained a written waiver from the financing company
regarding such non-compliance. The Company is working to correct the
default under its loan agreements with the bank. The Company does not
expect its operations or financial position to be adversely affected by
such non-compliance based upon its scheduled disposal/sale of rental fleet
vehicles which fully secure the debt.
Vehicle Sales Debt
The Company has a $8,250,000 credit agreement with the credit affiliate of
a major automobile manufacturer to cover the financing of new car and truck
inventories. Interest only is payable at the credit affiliate's prime
lending rate plus 1% with final maturity with respect to loans relating to
vehicles of a particular model year occurring in August of the following
year. The interest rate in 1994 and 1993 under this agreement ranged from
7.25% to 9.5% and 7%, respectively. Borrowings under this agreement
totaled $4,402,000 and $7,851,000 at December 31, 1994 and 1993,
respectively.
The credit agreement prohibits the payment of dividends or other
distributions by South Seas Motors, Inc., a wholly-owned subsidiary, to the
Company. At December 31, 1994 restricted net assets of South Seas
aggregated $3,547,000.
Other Debt
The Company has outstanding as of December 31, 1994 and 1993, $1,370,000
and $1,597,000, respectively, of mortgage bank debt related to its baseyard
facility on Oahu, its South Seas Jeep Eagle dealership and its Oahu
Chrysler Jeep facility. Principal and interest payments of $29,500 are
made monthly and the mortgage debt matures from June 1995 through February
1998.
The Company has outstanding as of December 31, 1994 and 1993, $474,000 and
$590,000, respectively, of mortgage bank debt relating to its baseyard
facility in Kauai. Principal and interest are paid on a monthly basis with
payments of $13,500 per month through October 1998. Under the most
restrictive covenant of the related loan agreement, the Company is required
to maintain a defined debt to net worth ratio.
As of December 31, 1994, the Company was not in compliance with certain
covenants contained in these agreements, but the Company has obtained
written waivers through December 31 1995 from each bank regarding such non-
compliance.
The Company has outstanding as of December 31, 1994, $513,000 of debt owned
to Dollar Systems related to an advance of $1,400,000 of lease obligations
during 1994. Principal reductions were made by way of an assignment of
incentive credits and fleet allowances owed by Dollar Systems to the
Company. The balance outstanding will be consolidated as part of the
Dollar Systems' assistance package (see note 15).
The Company has outstanding as of December 31, 1994 and 1993, $176,000 and
$367,000, respectively, from the United States Small Business
Administration to cover losses suffered during Hurricane Iniki in September
1992. The loan bears interest at 6% per year, principal and interest
payments of $17,000 per month and matures in October 1995.
Pursuant to the terms of a credit agreement dated June 26, 1991 (the
"Credit Agreement") between the Company and Bank of Hawaii (the "Bank"),
the Bank advanced funds in the amount of $1,285,000 at the Bank's base rate
plus 2.5%. The proceeds of the loan were used to complete an exchange
offer. See "Subordinated Debentures; 1991 Exchange." The loan was secured
by certain real property leasehold interests of the Company. The loan was
paid off in January 1993.
Convertible Subordinated Debentures
In October 1987, the Company sold $17,250,000 of 10% convertible
subordinated debentures (the "Debentures"). The Debentures were issued
under an Indenture dated as of September 1, 1987 ("Indenture") between the
Company and Trust Services of America, Inc. ("Trust Services"), as Trustee.
Chemical Trust Company currently serves as Trustee under the Indenture.
The Debentures represent unsecured general obligations of the Company. The
Company pays interest only on the Debentures semi-annually on March 1 and
September 1 of each year. The Debentures mature on September 1, 2007.
The holders of Debentures are entitled at any time on or before September
1, 2007 to convert the Debentures into Common Stock of the Company at $3.30
per share, subject to certain conditions.
The Indenture requires the Company to redeem, through a mandatory sinking
fund commencing on September 1, 1994, and on each succeeding September 1,
Debentures with an aggregate principal amount equal to five percent of the
original principal amount of the Debentures issued under the Indenture, at
100% of the principal amount thereof, plus interest accrued to the
redemption date. Debentures acquired and delivered, converted or redeemed
by the Company, other than through the mandatory sinking fund, may be used,
at the principal amount thereof, to reduce the amount of any mandatory
sinking fund payment. In July 1991, the Company exchanged (the "Exchange")
2,916,000 shares of its Common Stock and $3,840,000 for $12,000,000
principal amount of Debentures pursuant to the terms of an exchange offer.
As a result of the Exchange, sinking fund requirements have been satisfied.
The payment of principal and interest on the Debentures are subordinated in
right to the payment of all senior debt of the Company.
Other Financing Information
The aggregate maturities of senior debt for each of the five years
subsequent to December 31, 1994 are as follows: 1995, $36,201,000; 1996,
$10,727,000; 1997, $464,000; 1998, $565,000; and 1999, $77,000. Vehicle
loans may be retired early, which in each instance, will accelerate
maturity.
5. OPERATING REVENUES
Operating revenues include Hawaii General Excise Tax ("GET") and, in 1994
and 1993, Hawaii Motor Vehicle Rental Surcharge ("Surcharge") collected
from customers. The amounts remitted to the State of Hawaii are included
in other direct operating expense on the Consolidated Statements of
Operations. A breakdown of these tax and surcharge revenues is as follows:
Year Ended December 31,
1994 1993 1992
----------- ----------- -----------
GET and Surcharge relating
to vehicle rental revenue $ 5,173,037 $ 5,283,390 $ 5,297,890
GET related to vehicle
sales revenue 1,275,370 1,276,707 933,282
----------- ----------- -----------
Total GET and Surcharge
included in revenues $ 6,448,407 $ 6,560,097 $ 6,231,172
=========== =========== ===========
Revenue from the sale of loss damage waivers totaled $3,644,000, $3,378,000,
and $3,624,000 in 1994, 1993, and 1992, respectively, and are included in
vehicle rental revenue.
6. OTHER INCOME AND EXPENSES
Year Ended December 31,
1994 1993 1992
----------- ----------- ----------
Hurricane damages to
rental vehicles $ (25,000) $ (106,495) $ (427,000)
Gain from involuntary
conversion of equipment
and leasehold
improvements resulting
from hurricane - - 169,000
Loss related to termination
of Compact Rent A Car - (87,198) (118,000)
Loss related to the sale/
closure of automobile
dealership - (136,720) (109,444)
Termination of lease (135,000) - -
Real estate investment
expense (70,918) (65,464) (65,464)
Other (40,800) (20,754) (69,526)
------------ ----------- ------------
Total $ (271,718) $ (416,631) $ (620,434)
============ =========== ============
7. SELF-INSURANCE
As of December 31, 1994, the Company was self-insured with respect to no-fault
and auto liability claims on its rental vehicles in the State of Hawaii for up
to $500,000 per occurrence. In accordance with its self-insurance certificate
from the State of Hawaii, the Company furnished a $3,400,000 bond as security
with the Hawaii Insurance Commissioner. The bond was arranged by Dollar
Systems, which was granted a security interest in the Company's license
agreement ("License") to secure the Company's performance. In addition to an
assignment of the Company's security interest in the License as collateral,
the Company also assigned to Dollar Systems its receivable from the sale of
the Asian Franchise Rights ("Asian Rights") and granted Dollar Systems a
junior mortgage of its leasehold interest in its South Seas Jeep Eagle and
Oahu Chrysler Jeep locations (see note 15). During February 1995, the Company
elected to enroll with a commercial insurance carrier to handle all future no
fault and auto liability claims. Under its policy, the Company maintains
coverage up to $500,000 with a $25,000 deductible. The Company maintains
insurance for claims in excess of $500,000 with liability limits of $500,000
per occurrence, which is underwritten by a third party insurance company. The
Company is self-insured for any loss in excess of $1,000,000 per occurrence.
The Company does not intend to renew its excess policy when it expires on
March 31, 1995.
As of December 31, 1994 and 1993, the Company's reserve for self-insurance
(including the reserve for future legal expense) was $3,011,000 and
$2,807,000, respectively. Self insurance expense for the years ended December
31, 1994, 1993 and 1992 was $2,267,000, $3,159,000, and $4,791,000
respectively.
The Company is also self-insured for collision and comprehensive losses on its
rental vehicles. In most cases, the renter's personal automobile policy
protects the Company against physical damage to Company vehicles by the
renter. The Company provides a limited physical damage waiver to renters who
purchase Loss Damage Waivers ("LDW"). The effect of LDW is to waive a portion
of the renters' responsibility for physical damage to Company vehicles. As of
December 31, 1994 and 1993, the Company's reserve for collision damage was
$421,000 and $515,000, respectively.
8. INCOME TAXES
In January 1993, the Company adopted Statement of Financial Accounting
Standards No. 109 (FAS 109), Accounting for Income Taxes. The adoption of FAS
109 changes the Company's method of accounting for income taxes from the
deferred method (APB 11) to an asset and liability approach. Previously the
Company deferred the past tax effects of timing differences between financial
reporting and taxable income. The asset and liability approach requires the
recognition of deferred tax liabilities and assets for the expected future tax
consequences of temporary differences between the carrying amounts and the tax
bases of those assets and liabilities.
The adoption of FAS 109 did not result in an adjustment for the cumulative
effect of a change in income taxes.
No income taxes were provided during the years ended December 31, 1994 and
1992 based on losses sustained for financial reporting and income tax
purposes. The 1993 provision for income taxes principally represents current
federal alternative minimum tax.
Deferred tax assets (liabilities) are comprised of the following:
December 31,
1994 1993
---------- ----------
Rental fleet $(3,154,000) $(1,040,700)
Rental fleet incentives (723,000) (322,300)
----------- ------------
Gross deferred tax
liabilities (3,877,000) (1,363,000)
----------- ------------
Loss carryforward 4,616,000 1,020,900
Self insurance reserve 1,217,000 934,500
Bad debt reserve 245,000 175,700
Rental fleet reserves 170,000 335,500
Inventory 124,000 132,600
---------- ---------
Gross deferred tax assets 6,372,000 2,599,200
========== =========
Net deferred tax assets 2,495,000 1,236,200
Deferred tax assets
valuation allowance (2,495,000) (1,236,200)
========== ==========
$ - $ -
========== ==========
The net increase of $1,259,000 in the valuation allowance for deferred
taxes relates primarily to net operating losses generated in 1994. The
principal component of the valuation allowance relates to the uncertainty
of realizing certain deferred tax assets related to loss carryforwards.
The differences between the expected provision for income tax at the
Federal statutory rate and income tax expense reported are summarized as
follows:
Year Ended December 31,
1994 1993 1992
---------- ----------- ----------
Expected tax benefit
at 34% $(485,000) $(201,500) $(715,500)
State taxes net of Federal
income tax benefit (57,000) (25,000) (77,200)
Net operating loss for
which no benefit has
been recognized 542,000 226,500 738,800
Alternative minimum tax - 130,000 -
Other - 81,443 53,900
--------- ---------- ---------
$ - $211,443 $ -
========= ========== =========
As of December 31, 1994, the Company has net operating loss carryforwards for
Federal and State income tax purposes of approximately $11,239,000 and
$10,013,000, respectively, which expire from 2005 through 2009. The Tax
Reform Act of 1986 imposes certain conditions and possible limitations on the
future availability of net operating loss carryforwards, including annual
limitations on the amount of the carryforwards which could be utilized arising
from substantial changes in the Company's ownership.
At the request of the State of Hawaii Department of Taxation, the Company
agreed to extend the statutory limitation period prescribed under the Hawaii
Revised Statutes related to certain general excise (GET), use and corporate
income tax returns. Accordingly, its 1986 - 1989 GET and use tax returns and
its 1990 corporate tax return remain open for adjustments through June 30,
1996.
9. STOCK OPTION PLANS
During 1994, the Company established a new incentive stock option plan under
which options to purchase up to 200,000 shares of common stock may be granted.
Under this plan, the option exercise price is equal to 100% of the fair market
value of the common stock on the date of grant. Options for 50,000 shares of
common stock remain outstanding under this plan as of December 31, 1994. The
Company's original incentive stock option plan expired on May 3, 1993.
Options for 100,000 shares of common stock remain outstanding under this plan
as of December 31, 1994 and expire in September 1995.
During 1994, the Company also established a new non-statutory stock option
plan under which options to purchase up to 200,000 shares may be granted.
Under this plan, the exercise price of any option granted shall not be less
than the lesser of 85% of the fair market value of the common stock on the
date of grant or 85% of the fair market value of the common stock on the date
of exercise. The original non-statutory stock option plan terminated on June
20, 1994. No options are outstanding under either plan as of December 31,
1994.
As of December 31, 1993, the Company had outstanding non-recourse promissory
notes totaling $1,139,000 from optionees in connection with the exercise of
their options to acquire 929,500 shares of common stock. Included in the
non-recourse notes, were notes in the aggregate principal amount of $554,000
from current executive officers and/or directors of the Company. Exercise
prices on these shares ranged from $1.06 to $2.12 per share. The promissory
notes matured on July 11, 1994 on which date the market value of the Company's
common stock was $.81 per share. No payments were received on these notes,
and accordingly, the Company canceled these shares of outstanding common
stock.
Proceeds from the exercise of options are credited to common stock to the
extent of $0.10 per share and the balance credited to additional paid-in
capital. Under its non-statutory plan, benefits relating to the excess of
quoted market value on the measurement date over the selling price are charged
to compensation expense and credited to additional paid-in capital.
Activity under both stock option plans is summarized as follows:
Options Outstanding
------------------------------------------------
Shares Price Per Share Amount
------------- ---------------- -------------
December 31, 1991 153,000 $0.56 to $2.38 $ 182,140
Expired (53,000) 2.38 (126,140)
------------- ---------------- -------------
December 31, 1992 100,000 0.56 56,000
Granted 50,000 0.25 12,500
------------- ---------------- -------------
December 31, 1993 150,000 0.25 to 0.56 68,500
Expired (50,000) 0.25 (12,500)
Granted 50,000 0.43 21,500
------------- ---------------- -------------
December 31, 1994 150,000 $0.43 to $0.56 $77,500
============= ================ =============
As of December 31, 1994 and 1993, options for 350,000 and 935,000 shares,
respectively, were available for grant. As of December 31, 1994, options for
100,000 shares were exercisable at prices ranging from $.43 to $.56 per share.
10. RELATED PARTY TRANSACTIONS
The Company had a consulting agreement with Paul J. Finazzo, a member of the
Company's Board of Directors and its former Chairman, which expired on
December 31, 1994 and provided for consulting fees of $180,000 per year.
A company purchased in August 1992 by Stanley Heller, a member of the
Company's Board of Directors and a former officer of the Company, is a
wholesale customer of the Company's vehicle rental operations. This company
paid the Company a net $1,577,000, $2,504,000 and $2,151,000 in 1994, 1993 and
1992, respectively, for vehicle rentals at prevailing wholesale rates.
The Company paid Mr. Heller consulting fees of $24,000 during each of the
years 1994, 1993 and 1992.
Certain companies owned by Raymond I. Miyashiro, a member of the Company's
Board of Directors, are wholesale customers of the Company's vehicle rental
operations. These companies paid the Company $1,239,000 in 1994, $979,000 in
1993, and $480,000 in 1992 for vehicle rentals at prevailing wholesale rates.
During 1993, the Company also sold transportation vehicles for a total of
$343,000 to a transportation company owned by Mr. Miyashiro.
During 1994, 1993 and 1992, the Company purchased $15,000, $27,000, and
$33,000 respectively, of airline tickets at prevailing market rates from a
travel agency owned by Mr. Miyashiro.
During 1994, 1993 and 1992, the Company paid $123,000, $125,000 and $86,000,
respectively, for legal services to a law firm of which J. George
Hetherington, a member of the Company's Board of Directors, is a shareholder.
At December 31, 1993, Alan M. Robin, Stanley S. Heller and Robert L. Solomon
owed the Company $212,000, $212,000 and $130,000, respectively, pursuant to
non-recourse promissory notes due in 1994 issued in exchange for shares of
common stock under the Company's 1983 ESOP (note 9). These notes were allowed
to lapse and, as a result, the shares of common stock issued in relation to
these notes were canceled in 1994.
The Company sold used vehicles for an aggregate consideration approximating
$56,000 in 1992, to a company controlled by the son of the Company's
President.
11. MAJOR CUSTOMER
The Company has an agreement, to provide rental vehicles, with a major tour
operator which expires in December 1997. Vehicle rental revenues, exclusive
of optional charges arranged between the Company and the renter, for loss
damage waivers, gasoline, vehicle upgrades and other optional charges and
exclusive of excise taxes and surcharges, approximated $8,390,000, $5,183,000,
and $5,815,000, for the years ended December 31, 1994, 1993 and 1992,
respectively.
12. SAVINGS AND RETIREMENT PLAN
The Company has a defined contribution savings and retirement plan (the Plan)
available to substantially all employees with more than one year of service.
The Company contributes 10% of employee contributions with a maximum of $300
per employee per year. During the years ended December 31, 1994 and 1993, the
Company contributed $26,000 and $28,000, respectively, to the Plan.
13. SIGNIFICANT CONCENTRATION OF BUSINESS
Financial instruments which potentially subject the Company to concentrations
of credit risk consist principally of cash equivalents and trade receivables.
The Company places its temporary cash investments with high credit qualified
financial institutions.
Substantially all of the Company's business activity is within the State of
Hawaii.
14. BUSINESS SEGMENTS
The Company's activities comprise two segments: (1) the short-term rental of
vehicles and (2) the purchase and sale of new and used vehicles. Summary data
for 1994, 1993 and 1992 follows:
Year Ended December 31, 1994
---------------------------------------
Vehicle Rental Vehicle Sales Total
---------------- --------------- -------------
Revenues $54,126,236 $39,698,728 $93,824,964
Depreciation and
amortization 6,032,804 1,334,586 7,367,390
Operating income (loss) (382,040) 67,105 (314,935)
Total assets (as of
year end) 58,700,484 10,571,751 69,272,235
Capital expenditures:
Vehicle fleet 45,123,906 126,834 45,250,740
Fixed assets 1,142,911 505,954 1,648,865
Year Ended December 31, 1993
---------------------------------------
Vehicle Rental Vehicle Sales Total
---------------- --------------- -------------
Revenues $54,163,237 $43,987,934 $98,151,171
Depreciation and
amortization 12,264,003 257,845 12,521,848
Operating income 188,916 469,592 658,508
Total assets (as of
year end) 58,305,590 13,586,899 71,892,489
Capital expenditures:
Vehicle fleet 60,776,585 1,036,690 61,813,275
Fixed assets 1,806,010 902,638 2,708,648
Year Ended December 31, 1992
---------------------------------------
Vehicle Rental Vehicle Sales Total
---------------- --------------- -------------
Revenues $51,789,993 $31,520,987 $83,310,980
Depreciation and
amortization 11,820,063 9,058 11,829,121
Operating income (loss) (1,335,719) 522,821 (812,898)
Total assets (as of
year end) 96,130,423 14,671,803 110,802,226
Capital expenditures:
Vehicle fleet 84,545,449 641,662 85,187,111
Fixed assets 324,846 1,406,460 1,731,306
15. COMMITMENTS AND CONTINGENT LIABILITIES
License Agreement
The Company is the exclusive licensee of Dollar Systems for the State of
Hawaii pursuant to the License dated April 3, 1974, which grants the Company
the right to conduct its vehicle rental business under the name Dollar Rent A
Car.
Pursuant to the term of the License, which does not have a fixed term, Dollar
Systems may terminate the License if the Company defaults in the performance
of its obligations under the License and fails to cure its defaults, within a
specified period. The License provides that it will terminate automatically
if the Company attempts to assign its interest under the License without
consent. In the event of termination, the License requires the Company to
assign to Dollar Systems, upon their request, all of its airport contracts,
concessions, leases and other arrangements pertaining to the use of real
estate, and provides that Dollar Systems shall thereafter have the right to
conduct vehicle rental operations at all such locations for its own benefit,
or to designate another licensee. Such termination would also prohibit the
Company from using all trade names, trademarks, signs, advertising,
promotional materials and similar items of identification associated with
Dollar Systems.
Assistance Agreements
In March 1994, the Company reached an agreement with Dollar Systems and
certain of its affiliates. Pursuant to the terms of the agreement, Dollar
Systems reduced the fees payable under the License for the period from January
1, 1994 to December 31, 1994, and thereafter the fees paid under the License
will increase to the amount provided for in the License. In addition, Dollar
Systems waived and discharged any obligation for certain fees owed under the
License prior to January 1, 1994, and also increased certain incentive
credits, rebates and fleet allowances under the Dollar Systems' 1994 Fleet
Leasing Program ("Lease Program"). Furthermore, Dollar Systems procured a
bond in an amount sufficient to satisfy the Company's self insurance
requirements (see note 7), and also agreed to advance the Company a maximum of
$1,400,000 (see note 4).
In return for issuing the bond, the Company indemnified Dollar Systems and
certain of its affiliates in connection with the issuance of the bond,
assigned to Dollar Systems its receivable from the sale of the Asian Rights
under the License, assigned to Dollar Systems its interest in the License, and
granted to Dollar Systems a junior mortgage of its leasehold interest in its
South Seas Jeep Eagle and Oahu Chrysler Jeep locations. In return for making
the advance, the Company assigned to Dollar Systems all amounts owed to the
Company under the Lease Program.
The Company entered into a commitment, in principle, with Dollar Systems and
certain of its affiliates on March 21, 1995. Pursuant to the terms of this
commitment, Dollar Systems will reduce the fees payable under the License for
the period from January 1, 1995 to December 31, 1995 and provide certain
credits related to return freight on 1994 and 1995 model year vehicles. In
addition, Dollar Systems will accept a convertible $3,000,000 note from the
Company representing balances due to Dollar Systems at December 31, 1994 for
fleet charges and franchise and miscellaneous system fees. In the event of a
default by the Company of its obligations to Dollar Systems, the Company will
issue a sufficient number of additional shares enabling Dollar Systems to
exercise an option to convert the outstanding indebtedness due from the
Company for up to 55% of the outstanding common stock and voting power of the
Company. The note will be collateralized by mortgage liens on and security
interests in all of the Company's assets.
The terms of the note include: (i) interest at 2% over prime, with interest
only payments monthly for the first two years; (ii) monthly principal and
interest payments of $50,000 commencing May 1, 1997 for three years with the
balance of the note due April 1, 2000; (iii) payments to Dollar Systems for
net increases, if any, in the Company's cash account balances at December 31,
1995 and 1996 over December 31, 1994.
Lease Commitments
The Company operates its airport locations, corporate office, rental stations
and base yards under operating leases expiring at various dates through 2021.
In addition, the Company leases approximately 4,300 vehicles for its 1995
rental fleet under a leasing program with Dollar Systems specifying a maximum
holding period of thirteen months. The Company also leases certain computer
equipment used in both its vehicle rental and vehicle sales operations under
capital leases expiring through 1998.
Assets recorded under capital lease obligations and included in furniture and
equipment at December 31, 1994 and 1993 are summarized as follows:
1994 1993
----------- -----------
Computer equipment $1,028,000 $996,000
Less accumulated
amortization (464,000) (253,000)
----------- -----------
Property under capital
leases - net $ 564,000 $713,000
=========== ===========
Future minimum payments under non cancelable operating leases and capital
leases as of December 31, 1994 are as follows:
Operating Leases Capital Leases
---------------- ----------------
1995 $3,239,000 $271,000
1996 2,979,000 265,000
1997 2,882,000 173,000
1998 1,580,000 101,000
1999 973,000 -
Thereafter 13,901,000 -
---------------- ----------------
Total minimum rental
payments $25,554,000 810,000
================ ================
Less amount
representing interest (154,000)
----------------
Present value of future
minimum payments
($196,000) represents
current portion) $656,000
================
Occupancy related rental expense, including property taxes, was as follows:
Year Ended December 31,
---------------------------------------
1994 1993 1992
---- ---- ----
Fixed and minimum rents $4,130,480 $4,310,067 $3,886,297
Excess percentage rents 2,200,849 1,958,459 1,939,436
---------- ---------- ----------
Total $6,331,329 $6,268,526 $5,825,733
========== ========== ==========
The leases contain clauses which provide for future rental increases at
varying intervals based on consumer price index increases. The table above
reflects future obligations based on current rent levels. In addition to
rent, the Company is obligated to pay Hawaii general excise tax, property
taxes, insurance, and maintenance costs, as well as excess percentage rents
based on airport revenues, at major facilities.
Environmental Matters
The Company has seven underground and one above-ground petroleum product
storage tanks and one underground waste oil storage tank on its properties.
The Company is subject to the federal and state laws governing the ownership
and operation of these storage tanks. These laws require the Company to test
periodically the integrity of these tanks and to mitigate and remediate the
environmental effects of any releases of products from the storage tanks.
In 1993, the Company was advised of a petroleum leak at the baseyard location
for vehicle rental operations on the island of Oahu. A Phase I environmental
assessment indicated that the soil and groundwater in certain portions of the
baseyard had been impacted by the leakage of waste oil and petroleum products.
The Company then initiated a Phase II environmental assessment to determine
the extent of the petroleum and waste oil contamination. The Phase II
assessment, together with the closure and removal of the waste oil storage
tank was completed in 1994. During 1993, the Company recorded a reserve of
$150,000 for the estimated future cost of the remedial efforts at the baseyard
location. As of December 31, 1994, $49,000 remains in the reserve which the
Company feels is adequate based on projections provided by the Company's
environmental consultants.
During November 1994, the Company received several citations from the United
States Environmental Protection Agency (EPA) relating to one of its baseyard
locations on the island of Hawaii. The most significant comment cited the
Company for not performing certain acceptable leak and precision tightness
procedures as a part of its annual testing. The Company's environmental
consultants who performed the tank test clarified the necessary procedures
with the EPA and are working with the Company to ensure that proper testing
procedures are performed for all of the Company's tanks. No leaks or
contamination were discovered during the testing by the environmental
consultants.
Other
The Company from time to time enters into agreements pursuant to which it
remains contingently liable for loans made to certain retail purchasers of
vehicles. As of December 31, 1994, the balance of these loans for which the
Company and its subsidiaries are contingently liable totaled $107,000. In
general, the Company may not be called upon to make a payment under these
agreements unless it obtains possession of the vehicle. The Company may then
pursue its rights against the retail customer, who is the primary obligor
under each vehicle loan.
The Company is a party to various claims and legal actions which are
incidental to the conduct of its business. In the opinion of management,
after consultation with legal counsel, the ultimate disposition of these
matters will not have a material adverse effect on the Company's operations or
financial condition.
16. SUBSEQUENT EVENTS
In May 1995, after lengthy negotiations, the Company and Dollar Systems were
unable to agree upon the final documentation with respect to the 1995
Assistance Agreement (see Note 15). Pending further negotiations, the Company
withheld certain payments due to Dollar Systems under its License Agreement
and Master Lease Agreement. Dollar Systems filed a legal action to compel the
Company to execute the documentation proposed by Dollar Systems to embody its
understanding of the 1995 Assistance Agreement. The Company responded b y
commencing its own legal action against Dollar Systems for damages and
injunctive relief based on violations of the franchise agreement and Hawaii
law. Dollar Systems then sent notices to the Company purporting to terminate
the License Agreement and Master Lease Agreement. Subsequent discussions led
to a Settlement Agreement encompassing among other things, the sale of the
Company's vehicle rental operations. The parties have terminated all
litigation without prejudice and may recommence proceedings should the
transactions fail to close.
Under the terms of the Settlement Agreement dated July 17, 1995, the parties
agreed to stay the litigation and signed documents under which Dollar Systems
will acquire substantially all of the assets and certain liabilities of the
Company's vehicle rental division. This transaction is subject to due
diligence review and other conditions and to consents and approvals of certain
persons, including the Company's shareholders and bondholders. The assets and
liabilities of the Company's vehicle sales division, as well as certain other
liabilities and obligations, will remain with the Company. The parties will
also release various claims against each other. The transaction is scheduled
to close by October 31, 1995. In the meantime, the Company continues to
operate the vehicle rental division, including efforts to increase revenue,
utilization and yield per rental day, and to control its operating costs.
In connection with sale of substantially all of the assets and liabilities of
the Company's vehicle rental division (the Proposed Sale), the Company plans
to seek to exchange a pro rata share of cash consideration received in the
Proposed Sale and certain shares of previously authorized common stock for
certain of its outstanding convertible subordinated debentures. The number of
previously authorized share to be issued to the bondholders is subject to
continuing negotiations between the Company and the bondholders. As a
condition to closing of the Proposed Sale. the Company must have received the
tender and/or consent of bondholders holding in the aggregate at least 80% of
the face value of the debentures to (i) the Proposed Sale and (ii) the
amendment of the bond indenture to provide for no further covenant obligations
for the Company thereunder.
While the transaction in pending, the Company is incurring and will continue
to incur substantial transaction costs including legal, accounting and other
professional fees. Although Dollar Systems has agree to certain interim
financial assistance, there is no assurance of continuing support from Dollar
Systems if the transaction does not close as planned. If the transaction does
not close, and further assistance from Dollar Systems is not made available,
there is substantial doubt about the Company's ability to continue as a going
concern.
The Company has incurred significant losses for the last several years and at
December 31, 1994 has an accumulated deficit of $7.8 million. Additionally,
the Company reported a net loss of $1.98 million ( unaudited) for the six
months ended June 30, 1995 and is in default on its principal bank debt
covenants. The accompanying financial statements have been prepared assuming
the Company will continue as a going concern.
INDEX TO UNAUDITED CONDENSED
CONSOLIDATED FINANCIAL STATEMENTS
OF PACIFIC INTERNATIONAL SERVICES CORP.
Page
----
FINANCIAL STATEMENTS FOR THE PERIODS ENDED JUNE 30, 1994
AND JUNE 30, 1995:
Condensed Consolidated Balance Sheets as of December
31, 1994 and June 30, 1995 (unaudited) F-33
Condensed Consolidated Statements of Operations
for the three months ended June 30, 1994 and
June 30, 1995 and for the six months ended
June 30, 1994 and June 30, 1995 (unaudited) F-35
Condensed Consolidated Statements of Cash Flows
for the six months ended June 30, 1994
and June 30, 1995 (unaudited) F-37
Note to Condensed Consolidated Financial Statements F-40
PACIFIC INTERNATIONAL SERVICES CORP.
CONDENSED CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
December 31, 1994 June 30, 1995
------------------ ---------------
(Unaudited)
<S> <C> <C>
ASSETS
Cash and cash equivalents $831,952 $427,922
Receivables, net 10,023,512 12,078,821
Automobile dealership
vehicle inventories 4,961,600 9,238,175
Inventories and prepaid
expenses 899,453 1,709,205
Rental vehicles, at cost,
less accumulated
depreciation 42,367,410 9,250,585
Furniture, equipment and
leasehold improvements,
net of accumulated
depreciation and
amortization 8,149,846 7,655,056
Other assets 2,038,462 2,084,942
----------- -----------
Total Assets $69,272,235 $42,394,705
=========== ===========
LIABILITIES AND SHAREHOLDERS EQUITY
Accounts payable $5,744,507 $7,774,627
Accrued expenses and
other liabilities 8,152,270 7,125,689
Senior debt 48,034,463 22,131,009
Convertible subordinated
debentures 5,250,000 5,250,000
----------- -----------
Total liabilities 67,181,240 42,281,325
=========== ===========
Preferred stock with no par
value, authorized 15,000,000
shares, none issued
Common stock, stated value
$0.10 per share,
authorized 50,000,000
shares, issued and
outstanding 8,079,800
shares 807,980 807,980
Additional paid-in capital 9,102,181 9,102,181
Accumulated deficit (7,819,166) (9,796,781)
----------- -----------
Total shareholders equity 2,090,995 113,380
----------- -----------
Total liabilities and
shareholders' equity $69,272,235 $42,894,705
=========== ===========
</TABLE>
PACIFIC INTERNATIONAL SERVICES CORP.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
<TABLE>
<CAPTION>
Three months ended June 30, Six months ended June 30,
---------------------------------------------------------
1995 1994 1994 1994
------------ ----------- ----------- -----------
<S> <C> <C> <C> <C>
Operating revenues:
Vehicle rental $13,283,130 $11,921,078 $24,535,550 $27,184,699
Vehicle sales 10,883,066 11,950,869 22,697,361 20,933,924
------------ ----------- ----------- -----------
Total operating
revenues 24,166,196 23,871,947 47,232,911 48,118,623
------------ ----------- ----------- -----------
Operating costs
and expenses:
Cost of vehicles sold 8,364,102 9,124,519 17,194,272 15,847,197
Depreciation of
rental vehicles 969,558 1,693,586 3,508,142 2,901,337
Interest on fleet
debt 517,488 491,977 1,392,995 1,142,441
Other direct fleet 4,077,710 3,138,941 6,620,770 5,450,425
Personnel 3,750,420 3,340,155 6,736,082 7,316,757
Occupancy 2,156,534 2,147,973 4,311,281 4,308,128
Other direct
operating 3,095,202 2,562,232 5,443,502 6,596,890
Other selling,
general and
administrative 1,939,547 1,930,327 3,712,335 3,605,229
------------ ----------- ----------- -----------
Total operating
costs and
expenses 23,931,792 25,368,479 48,919,379 47,163,404
------------ ----------- ----------- -----------
Income (loss)
from operations 234,404 (1,496,532) (1,686,468) 955,219
Interest income 15,720 11,003 20,068 25,265
Other interest expense (229,906) (245,985) (443,255) (430,490)
Other, net (17,853) 132,040 132,040 (36,010)
------------ ----------- ----------- -----------
Net income (loss) $2,365($1,599,474) ($1,977,615) $531,984
============ =========== ============ ===========
Earnings (loss)
per common share $0.00 ($0.20) ($0.24) $0.06
============ =========== ============ ===========
</TABLE>
PACIFIC INTERNATIONAL SERVICES CORP.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
Six months ended June 30,
-------------------------
1995 1994
---- ----
<S> <C> <C>
Cash flows from operating
activities:
Net income (loss) ($1,977,615) $513,984
Adjustments to reconcile
net income (loss) to net cash
provided by operating activities:
(Gain) or Loss on sale of
rental vehicles 710,042 (572,064)
Depreciation of rental
vehicles and amortization
of related costs 4,062,886 3,701,469
Depreciation and amortization,
other 594,536 506,824
Provision for losses on
rental vehicles 899,897 389,289
Provision for losses
on receivables 869,237 108,490
Provision for self-insurance 103,994 881,742
Change in assets
and liabilities:
Receivables (2,424,546) (2,749,231)
Automobile dealership
vehicle inventories (4,276,575) 2,239,130
Inventories, prepaid
expenses and other assets (806,231) (694,582)
Accounts payable 2,030,120 1,501,796
Accrued expenses and
other liabilities (1,130,575) (87,452)
Notes payable for
automobile dealership
vehicle inventories 13,609,831 6,588,005
------------ -----------
Net cash provided by
operating activities 11,265,001 12,372,400
------------ -----------
---- ----
Cash flows from investing
activities:
Proceeds from the sale
of rental vehicles 10,977,35 26,587,676
Purchases of rental vehicles (230,510) (1,278,992)
Proceeds from the sale of furniture,
equipment and leasehold
improvements 160,476 -
Additions to furniture, equipment
and leasehold improvements (274,884) (913,953)
------------ -----------
Net cash provided by
investing activities 10,632,151 4,394,781
------------ -----------
Cash flows from
financing activities:
Principal payments of
senior debt (22,301,485) (16,530,790)
------------ -----------
Net cash used in
financing activities (22,301,485) (16,530,790)
------------ -----------
Net increase (decrease) in cash (404,030) 286,341
Cash and cash equivalents at
beginning of period 831,952 1,719,123
------------ -----------
Cash and cash equivalents
at end of period $427,922 $1,955,464
------------ -----------
Supplemental schedule on noncash investing and financing
activities:
Six months ended June 30,
-------------------------
1995 1994
---- ----
Senior debt incurred for
additions to rental vehicles $827,660 $20,484,068
Senior debt incurred from
conversion of lease obligations - $1,400,000
Rental vehicle purchases not
yet financed $39,668 $1,350,619
Reductions of senior debt
resulting from turnback
of rental vehicles ($18,063,993) ($25,739,992)
Capital lease obligation
incurred from purchase of
equipment - $72,911
</TABLE>
PACIFIC INTERNATIONAL SERVICES CORP.
NOTE TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
1. Basis of Presentation
In the opinion of management, the unaudited financial information included
in this report contains all adjustments, consisting of normal recurring
adjustments only, necessary for a fair presentation of the results of
operations for the interim periods covered and the financial condition of
the Company at the dates of the balance sheets. The operating results for
the interim periods are not necessarily indicative of the results to be
expected for the full fiscal year. The accounting policies followed by the
Company are set forth in Note 1 to the consolidated financial statements
included in this Proxy Statement for the years ended December 31, 1994,
1993 and 1992.
Certain prior year amounts have been reclassified to conform to 1995
presentation.
PACIFIC INTERNATIONAL SERVICES CORP.
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
OF PACIFIC INTERNATIONAL SERVICES CORP.
The undersigned hereby appoints Alan Robin, Richard Bauman, and Sirio
Maggiacomo, or any of them, proxies, each with full power of substitution, to
vote the shares of the undersigned at the Special Meeting of Shareholders of
Pacific International Services Corp. on ______ __, 1995, and any adjournments
thereof, upon all matters as may properly come before the meeting. Without
otherwise limiting the foregoing general authorization, the proxies are
instructed to vote as indicated herein.
To approve the sale of substantially all of the vehicle rental assets of
Pacific International Services Corp. to Dollar Systems, Inc.
YOU ARE ENCOURAGED TO SPECIFY YOUR CHOICE BY MARKING THE APPROPRIATE BOX. SEE
REVERSE SIDE, BUT YOU NEED NOT MARK ANY OF THE BOXES IF YOU WISH TO VOTE IN
ACCORDANCE WITH THE BOARD OF DIRECTORS' RECOMMENDATION. THE PROXIES CANNOT VOTE
YOUR SHARES UNLESS YOU SIGN AND RETURN THIS CARD.
______________________________________________________________
/ / Please mark your
vote as in this
example
THIS PROXY WHEN PROPERLY EXECUTED WILL BE VOTED IN THE MANNER DIRECTED
HEREIN AND IN THE DISCRETION OF THE PROXY HOLDERS ON ALL OTHER MATTERS COMING
BEFORE THE MEETING. IF NO DIRECTION IS MADE, THIS PROXY WILL BE VOTED FOR
PROPOSAL 1.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR PROPOSAL 1.
FOR AGAINST ABSTAIN
1. Approval of the sale of substantially
all of the vehicle rental assets of
Pacific International Services Corp.
to Dollar Systems, Inc. / / / / / /
YES NO
Do you plan to attend the Special Meeting? / / / /
SIGNATURE(S) ________________________________________________________________
DATE ________________
NOTE: Please sign exactly as name appears hereon. Joint owners should each
sign. When signing as the attorney, executor, administrator, trustee or
guardian, please give full title as such.
ANNEX A
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT is executed and entered into effective July
_____, 1995, by and between PACIFIC INTERNATIONAL SERVICES CORP., a California
corporation ("Seller"), and DOLLAR SYSTEMS, INC., a Delaware corporation, or its
permitted assigns ("Buyer").
RECITALS:
A. Seller owns a vehicle rental and related business operated under a
license with Buyer as a separate and distinct division in the State of Hawaii;
and
B. Seller desires to sell to Buyer, and Buyer desires to purchase from
Seller, the business consisting of substantially all such vehicle rental
division's assets and assume substantially all such vehicle rental division's
liabilities; and
C. Seller and Buyer have initiated certain litigation against one
another, and Seller has also sued other parties, as hereafter described; and
D. Seller and Buyer desire to settle the claims which are the subject
matter of such litigation, as well as any and all other controversies between
them except for any rights and responsibilities under this Agreement.
NOW, THEREFORE, in consideration of the premises, covenants and agreements
of the parties set forth herein and for other good and valuable consideration,
the receipt, adequacy and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the meanings set
forth below:
(a) "AA" shall mean Arthur Andersen & Company, who may serve as the
Deciding Accountant in accordance with Section 5(e) hereof.
(b) "ADR" means alternative dispute resolution through submission for
binding determination to a private adjudicator, as more particularly described
in Section 19(b) hereof.
(c) "Affiliate" means any person or entity controlling, controlled by, or
under common control with another person or entity.
(d) "Agency Agreement" means the Agency Agreement executed as of the date
hereof and attached hereto as Exhibit A to perfect Buyer's lien on all issued
and outstanding South Seas stock as provided in the Stock Pledge Agreement.
(e) "Agreed Practices" means accounting practices, procedures and/or
methodologies specifically identified on Exhibit B hereto and agreed to by
Seller and Buyer. The Agreed Practices shall be meant to clarify options
selected under GAAP or other procedures followed by Seller in its December 31,
1994 audited financial statements which may not specifically follow GAAP. The
Agreed Practices shall not permit departures from GAAP unless specifically
identified on Exhibit B.
(f) "Agreement" means this Settlement Agreement together with all exhibits
and schedules thereto incorporated herein by reference, whether attached as of
the date of execution hereof or later, and as modified to reflect permitted
changes in the exhibits and schedules from time to time and made as of the
Closing, which such changes are subject to the approval of the other party as
provided elsewhere herein.
(g) "Assets" means all of the assets of Seller relating to or used in
operation of the Division and including all books and records in any form
pertaining thereto (excluding the Excluded Assets, which are to be retained by
Seller), and which are set forth as assets on the balance sheet constituting a
part of the Preliminary Financial Information, and a detailed description of
which is also attached hereto as Exhibit C (which shall include Assets and
rights of Seller relating to the Division which are not set forth in the
Financial Statements including, without limitation, permits, contract rights,
customer lists, etc.), and which Exhibit C will be updated to reflect permitted
changes in the Assets on hand at the time of Closing. The Assets will also be
described in the Bill of Sale and reflected as assets in the Unaudited Closing
Balance Sheet and finalized in the Final Closing Balance Sheet. The Assets
shall expressly include all of the existing contract rights in favor of Seller
created pursuant to paragraph 10 of that certain Agreement dated September 30,
1991, by and among Seller, Buyer and Dollar Rent A Car Systems, Inc.
(h) "Assumption Agreement" means the agreement in substantially the form
attached hereto as Exhibit D pursuant to which Buyer assumes the Liabilities at
the time of Closing.
(i) "Basic Documents" means this Agreement, and the Assumption Agreement,
Bill of Sale, PISC Noncompetition Agreement, Robin Noncompetition Agreement,
Agency Agreement, Stock Pledge Agreement, the PISC General Release, the Dollar
General Release, the Robin General Release, the Holdback Agreement, Standstill
Agreement and Dismissal Agreement.
(j) "Bill of Sale" means the Bill of Sale and General Conveyance in
substantially the form of Exhibit E attached hereto, with its attachments
listing and itemizing the Assets as of the Closing, which will evidence the sale
and conveyance of the Assets from Seller to Buyer.
(k) "Buyer Delivered Agreements" shall have the meaning set forth in
Section 16(a)(2) of this Agreement.
(l) "Cash Amount" shall have the meaning set forth in Section 4(a) hereof,
and shall finally be determined upon imposition of the procedures set forth in
Section 5 of this Agreement.
(m) "Closing" means the consummation of the sale, transfer and conveyance
of the Assets by Seller and the purchase of the Assets by Buyer paying the
Estimated Cash Amount, if any, the assumption of the Liabilities by Buyer, and
the settlement of claims by Buyer and Seller to the extent provided herein, and
the making of other agreements, all as contemplated by this Agreement.
(n) "D&T" means Deloitte & Touche L.L.P., auditors for Buyer.
(o) "Debentures" means Seller's outstanding $5,250,000 10% Convertible
Subordinated Debentures due 2007.
(p) "Debt Ceiling Covenant" shall have the meaning set forth in Section
17(a)(18).
(q) "Deciding Accountant" shall have the meaning set forth in Section 5(e)
hereof.
(r) "Disagreement Notice" shall have the meaning set forth in Section 5(d)
hereof.
(s) "Dismissal Agreement" means the agreement in substantially the form of
Exhibit F attached hereto.
(t) "Division" means the business of Seller as it relates to all vehicle
rental and related operations heretofore operated by Seller under Buyer's system
and its License Agreement with Buyer.
(u) "Dollar General Release" means the agreement in substantially the form
of Exhibit G attached hereto.
(v) "Elective Net Worth Amount" means in the event the Minimum Net Worth
Requirement has not been met but Buyer elects to close pursuant to Section
4(c)(2) hereof, the amount by which the Net Worth is more negative than negative
Two Million One Hundred Thousand Dollars (-$2,100,000) as reflected on the
Unaudited Closing Balance Sheet.
(w) "Estimated Cash Amount" shall mean a dollar amount determined in the
same manner as the Cash Amount except that such determination shall be made with
reference to the Unaudited Closing Balance Sheet rather than with reference to
the Final Closing Balance Sheet.
(x) "Excluded Assets" means the assets of Seller at Closing which are
specifically retained by Seller (including all books and records in any form
pertaining thereto) including, without limitation, (i) the South Seas stock (but
which is subject to the Stock Pledge Agreement) and all other assets of Seller
not relating to and not used in the business of the Division; (ii) all items of
Assets which are disposed of by Seller in the ordinary course of its business
prior to Closing and as permitted hereby; (iii) the specified assets of Seller
listed on Exhibit H hereto which will be updated at Closing, and which shall
include, without limitation, any receivables from Seller's officers, directors,
shareholders or Affiliates including, without limitation, South Seas, as well as
any investments in Seller's shareholders or Affiliates including, without
limitation, South Seas. The Excluded Assets shall specifically include, i.e.,
there shall be expressly excluded from the Assets being acquired by Buyer, any
corporate minute books and records, shareholder transfer records or ledgers, or
other organizational or corporate governance information of Seller or South
Seas.
(y) "Final Closing Balance Sheet" means the audited balance sheet of the
Division, prepared in accordance with GAAP Consistently Applied as modified and
clarified by the Agreed Practices, as of the date of Closing, which shall
reflect resolution of all claims described in Sections 19(a) and (b), if any,
pending at Closing, as finally accepted in accordance with the provisions
specified herein.
(z) "Final Net Worth" means the Net Worth of the Division as set forth on
the Final Closing Balance Sheet. The Final Net Worth will be determined in
accordance with GAAP Consistently Applied as modified and clarified by the
Agreed Practices.
(aa) "Financial Statements" shall have the meaning set forth in Section
15(b)(1) hereof.
(bb) "GAAP" means generally accepted accounting principles.
(cc) "GAAP Consistently Applied" means GAAP applied on a basis consistent
with that of the audited financial statements of the Seller as of and for the
year ended December 31, 1994, reported on by PW. Where there are alternative
principles under GAAP, the principles to be used shall be those consistently
used by the Seller in preparing its said audited financial statements as of and
for the year ended December 31, 1994, assuming such principles are acceptable
under GAAP.
(dd) "HSR Act" means the Hart Scott Rodino Antitrust Improvements Act of
1976, as amended.
(ee) "Holdback Agreement" means the Holdback Agreement in substantially the
form of Exhibit K attached hereto pursuant to which the Holdback Amount, if any,
will be held pending final determination of the Cash Amount.
(ff) "Holdback Amount" means the amount held by the escrow agent under the
Holdback Agreement pursuant to Section 6 hereof, if any.
(gg) "ISRB" shall have the meaning set forth in Section 19(c) hereof.
(hh) "Liabilities" means and includes only those specific contracts,
leases, agreements, litigation claims and detailed liabilities of Seller
relating to operation of the Division listed on Exhibit I attached hereto, and
which will be updated to reflect permitted changes in the Liabilities at the
Closing, and as the same are reflected as a liability in the Unaudited Closing
Balance Sheet and as finalized in the Final Closing Balance Sheet, and including
also the information identified on Exhibit J hereto pertaining to Off-balance
Sheet Liabilities which will likewise be updated as of the time of Closing,
together with all books and records in any form pertaining, identifying or
memorializing the Liabilities (but not adding thereto other liabilities not
expressly set forth above). Notwithstanding the foregoing: (i) no liabilities
and obligations of any kind whatsoever (whether accrued, absolute, liquidated or
unliquidated, contingent, known, unknown or otherwise) that are not expressly
included as a Liability on Exhibit I hereto as of the time of Closing, and as
reflected in the Unaudited Closing Balance Sheet and as finalized in the Final
Closing Balance Sheet, or Exhibit J hereto as updated to the time of Closing
pertaining to Off-balance Sheet Liabilities, shall be assumed by the Buyer; and
(ii) any income, general, excise or conveyance taxes or other taxes incurred by
Seller in connection with the Closing shall not be assumed as a part of the
Liabilities.
(ii) "License Agreement" means the License Agreement dated April 3, 1974,
as amended, by and between Buyer and Seller, and pursuant to which Seller has
been authorized to conduct the business of the Division in the State of Hawaii.
(jj) "Master Lease" means the Master Lease Agreement between Buyer and
Seller dated October 22, 1993.
(kk) "Minimum Net Worth Requirement" shall mean a Net Worth as reflected on
the Unaudited Closing Balance Sheet of not more negative than negative Two
Million One Hundred Thousand Dollars (-$2,100,000).
(ll) "Net Worth" means the net worth of the Division, i.e., Assets
(including all intangibles other than goodwill) minus Liabilities (other than
Off-balance Sheet Liabilities), as evidenced by the Unaudited Closing Balance
Sheet and as finalized in the Final Closing Balance Sheet.
(mm) "Notice of Third Party Claim" shall have the meaning set forth in
Section 20(f)(1) hereof.
(nn) "Off-balance Sheet Adverse Event" means the occurrence, existence or
accrual of one or more previously undisclosed Off-balance Sheet Liability or
Liabilities not originally listed on Exhibit J hereto equalling or exceeding Two
Hundred Fifty Thousand Dollars ($250,000) in the aggregate.
(oo) "Off-balance Sheet Liability" means any obligation which is not shown
as a liability on the Division's balance sheet constituting a part of the
Preliminary Financial Information, and is listed on Exhibit J hereto with
respect to such obligations initially, including certain litigation claims, and
as the same will be updated to the date of Closing in the same manner as
Seller's schedules. Off-balance Sheet Liabilities shall expressly include but
shall not be limited to expenses and liabilities that are unknown to Seller upon
preparation of its schedules and exhibits that may be incurred by Buyer after
Closing that are in excess of the amounts Seller has reserved for such expenses
and liabilities on the Unaudited Closing Balance Sheet as finalized in the Final
Closing Balance Sheet; subject, however, to Seller's obligation to fully provide
the information required in preparation of the exhibits and schedules hereto.
(pp) "PISC General Release" means the agreement in substantially the form
of Exhibit M attached hereto.
(qq) "PISC Noncompetition Agreement" means the agreement in substantially
the form of Exhibit N attached hereto.
(rr) "Preliminary Financial Information" means the unaudited balance sheet,
income statement and statement of cash flows of the Division as of June 30,
1995, together with account level detail, detailed supporting receivables and
reserves, and a forecast of cash flow and estimated Net Worth and balance sheet
for the Division as of October 31, 1995 and November 30, 1995.
(ss) "PW" means Price Waterhouse L.L.P, auditors for Seller.
(tt) "Retained Employee Liabilities" shall mean employment- related
liabilities, accruals or similar obligations of any kind whatsoever as to any
employees of the Division not hired by Buyer as of the Closing including,
without limitation, claims for salary, fringes, unemployment compensation,
severance, accrued vacation, accrued leave or any other statutory or other
allowances to such employees arising after Closing by reason of the contemplated
transaction, together with any unemployment insurance or Hawaii dislocated
workers allowance payable to Division employees even if they are hired by Buyer
upon Closing. Notwithstanding any provision hereof to the contrary, Retained
Employee Liabilities relate only to accruals or statutory entitlements as of
Closing, and not future salary or benefits pursuant to contracts or otherwise
including, without limitation, Seller's commitment described in Section
19(d)(1)(ii) if not assumed by Buyer in its sole discretion.
(uu) "Retained Liabilities" means the liabilities of Seller at Closing
which are specifically retained by Seller (including all books and records in
any form pertaining thereto) and which Seller shall pay, perform and discharge,
and for which Buyer is not responsible nor is it assuming, which liabilities
include, without limitation, (i) the Debentures; (ii) any liabilities, claims or
obligations of Seller, known or unknown, fixed or contingent, liquidated or
unliquidated, accrued or unaccrued, arising or that may arise from any asserted
or unasserted claims, or as specified on Exhibit L hereto, in each case other
than the Liabilities which are set forth on the Unaudited Closing Balance Sheet
and as finalized in the Final Closing Balance Sheet, and the specified
liabilities of Seller listed on Exhibit I hereto which will be updated at
Closing, or on Exhibit J hereto describing Off-balance Sheet Liabilities which
will likewise be updated at Closing; (iii) all claims, liabilities or
obligations of South Seas; (iv) all claims, liabilities or obligations of Seller
relating to South Seas; (v) liabilities of Seller to South Seas or any other
officer, director, shareholder or Affiliate of Seller; or (vi) liabilities
relating to or arising from or that constitute liens against the Excluded
Assets. Items to be listed on Exhibit L hereto, as described in (ii) above,
shall include, without limitation, any and all claims against Seller related to
cancellation of 700 1995 Hyundai Elantras ordered from Hyundai Motor America;
Maui base yard construction dispute with Tinsmith, Inc. in the estimated amount
of $55,735.84; dispute with General Motors Acceptance Corporation on audit of
returned vehicle charges for 1992 and 1993 in the estimated amount of
$263,614.20; any employment-related liabilities, accruals or obligations of any
kind whatsoever as to any employees of Seller (or South Seas) not hired by Buyer
as of the Closing including, without limitation, claims for salary, fringes,
unemployment compensation, severance, accrued vacation, accrued leave or any
other statutory or other allowances to such employees arising after Closing by
reason of the contemplated transaction; any unemployment insurance or Hawaii
dislocated worker's allowance payable to Seller's employees even if they are
hired by Buyer upon Closing; any and all claims against Seller for employment
practices including terminations before Closing; and any claims or obligations
for punitive and/or exemplary damages or for civil or criminal or regulatory
fines or penalties for the period on or before the date of Closing.
(vv) "Review Period" shall have the meaning set forth in Section 5(d)
hereof.
(ww) "Robin General Release" means the agreement in substantially the form
of Exhibit O attached hereto.
(xx) "Robin Noncompetition Agreement" means the agreement in substantially
the form of Exhibit P attached hereto.
(yy) "Seller Delivered Agreements" shall have the meaning set forth in
Section 15(a)(2) of this Agreement.
(zz) "South Seas" means South Seas Motors, Inc., a Hawaii corporation,
which is a wholly-owned subsidiary of Seller.
(aaa) "Standstill Agreement" means the agreement in the form of Exhibit Y
hereto executed as of the date of this Agreement.
(bbb) "Stock Pledge Agreement" means the agreement executed as of the date
hereof in the form of Exhibit Q attached hereto.
(ccc) "Unaudited Closing Balance Sheet" means the unaudited balance sheet
of the Division as of the Closing (or as near as practicable), prepared by
Seller, which will not reflect payment by Buyer, if required, of the Estimated
Cash Amount. The Unaudited Closing Balance Sheet shall be prepared in
accordance with GAAP Consistently Applied as modified or clarified by the Agreed
Practices.
(ddd) "Unaudited Net Worth" means the Net Worth of the Division as
disclosed on the Unaudited Closing Balance Sheet.
(eee) "Vehicle Return Procedures" means the procedures attached hereto as
Exhibit R.
2. PREPARATION OF EXHIBITS AND SCHEDULES.
(a) Seller and Buyer understand and agree that, in order to expedite the
execution of this Agreement by both parties hereto, and in order to avoid the
delay necessary to finalize all exhibits to this Agreement, on or before 5:00
p.m. C.D.T. on July 26, 1995, Seller and Buyer shall have agreed upon, and upon
such agreement shall be deemed to have incorporated herein by reference, all
exhibits hereto not attached at the time of execution of this Agreement. The
parties will exchange appropriate written evidence of agreement on such
remaining exhibits. In the event the exhibits have not been agreed upon by 5:00
p.m. C.D.T. on July 26, 1995, then Buyer or Seller shall be permitted to
terminate and rescind this Agreement, each in their sole discretion, or mutually
extend and/or re-extend the period of time for the exhibits to be finalized.
Notwithstanding anything to the contrary provided in this Agreement, (i) the
parties shall have until conclusion of Buyer's due diligence period as described
in Section 8 hereof to propose to each other, and to either accept or reject,
the terms and scope of the Agreed Practices, and (ii) exhibits to be updated at
Closing shall be supplemented and presented at the times and in the manner
required for schedules under Section 2(b) hereof.
(b) Schedules. Seller and Buyer also understand and agree that, in order
to expedite the execution of this Agreement, and in order to avoid the delay
necessary to compile schedules of exceptions to the representations and
warranties set forth below, on or before 5:00 p.m. C.D.T. on July 26, 1995,
Seller will deliver to Buyer its schedules identified herein, and any item
listed on such schedules shall be deemed to supplement or state an exception to
the identified representations and warranties made by Seller as they are made on
the date hereof, even if there is not an appropriate cross reference to a
schedule appearing in Section 15 hereof. Upon receipt of such schedules, and
through the due diligence period, during which time Buyer shall be afforded the
opportunity to review and examine the materials and information referenced on
such schedules, Buyer may terminate this Agreement, without any liability to
Seller, if anything set forth on such schedules is unacceptable to Buyer in its
sole discretion. Such schedules shall be updated by Seller during the period
from their delivery to the Closing not later than the tenth (10th) day of each
month with respect to matters which should properly have been added to such
schedules as to events, conditions, circumstances or transactions occurring or
discovered during the most recently completed calendar month. Seller shall
furnish its final schedules hereto (as well as exhibits which are required to be
updated) not less than five (5) business days before the Closing (provided such
advance delivery does not release Seller from the obligation to update through
and including the date of Closing as to new or previously unknown matters),
during which time Buyer may review such changes and may terminate this
Agreement, without any liability of Buyer to Seller, if anything set forth on
such schedules is unacceptable to Buyer in its sole discretion. Notwithstanding
any provision in this Agreement to the contrary, all references to the
representations and warranties of Seller made herein shall be deemed to relate
only to such representations and warranties as modified or supplemented, from
time to time, by the schedules hereto, and irrespective of whether or not the
text of Section 15 currently cross references a schedule. In addition,
representations and warranties appearing in this Agreement upon execution
hereof, and until initial delivery of the schedules as required hereby, shall
not be deemed completed or made until the time of initial delivery of the
applicable schedules.
3. PRINCIPAL TRANSACTIONS.
(a) Purchase and Sale. At the Closing provided for in Section 11 of this
Agreement: (i) the Seller shall sell, convey, assign and transfer the Assets
and assign the Liabilities to the Buyer; (ii) the Buyer shall purchase the
Assets, make payment of the Estimated Cash Amount, if any, and assume the
Liabilities; and (iii) each of the Seller and the Buyer shall take the other
actions that Sections 12 and 13 of this Agreement, respectively, contemplates
that each such party will take.
(b) Noncompetition Agreements. At Closing, (i) Seller shall execute and
deliver the PISC Noncompetition Agreement, whereby Seller shall obligate itself
not to compete with or solicit against Buyer in accordance therewith for a
period of two (2) years from the date of Closing; and (ii) Seller shall cause
Alan Robin to execute and deliver the Robin Noncompetition Agreement, whereby he
shall obligate himself not to compete with or solicit against Buyer in
accordance therewith for a period of one (1) year from the date of Closing.
Seller acknowledges and agrees and shall cause Robin to acknowledge and agree
that payment of the purchase price and the other consideration received by
Seller and Robin pursuant hereto is full, fair and adequate consideration for
all of their respective covenants and agreements in this Agreement including,
without limitation, the PISC Noncompetition Agreement, the PISC General Release,
the Robin General Release and the Robin Noncompetition Agreement.
(c) Settlement of Claims. At Closing, (i) Seller shall execute and
deliver the PISC General Release; (ii) Seller shall cause Alan Robin to execute
and deliver the Robin General Release; (iii) Buyer shall execute and deliver the
Dollar General Release; and (iv) Seller, Buyer and if necessary, other
Affiliates named in litigation, shall execute the Dismissal Agreement. Seller
and Buyer respectively undertake to cause any such other necessary parties who
are their Affiliates to execute and deliver the Dismissal Agreement.
4. PURCHASE CONSIDERATION.
(a) Determination. In addition to Buyer's execution and delivery of the
Assumption Agreement at Closing and acceptance of the Liabilities indicated
thereby, the cash purchase price to be paid by Buyer for the Assets ("Cash
Amount"), which will be disbursed to the trustee for the Debentures, shall be
One Million Five Hundred Thousand Dollars ($1,500,000), less that amount of the
Net Worth that is more negative than negative Six Hundred Thousand Dollars (-
$600,000) immediately before and as of the date of Closing, or alternatively,
plus that amount of the Net Worth that is more positive than negative Six
Hundred Thousand Dollars (-$600,000) immediately before and as of the date of
Closing.
(b) Net Worth. In determining the Net Worth at the time of Closing:
(1) The valuation of Assets and Liabilities of the Division in both
the Unaudited Closing Balance Sheet and the Final Closing Balance Sheet
shall be presented in accordance with GAAP Consistently Applied as modified
or clarified by the Agreed Practices. There shall be no changes from the
Agreed Practices unless specifically agreed otherwise in writing by Seller
and Buyer.
(2) All determinations of Net Worth will be based on GAAP
Consistently Applied as modified or clarified by the Agreed Practices,
i.e., historical cost, and shall exclude goodwill.
(3) The Liabilities for purposes of determining Net Worth shall be
inclusive of indebtedness of Seller to Buyer; subject, however, to
exclusion from such debt any amounts which are then the subject of a good
faith dispute being resolved in accordance with the procedures outlined in
Section 19(a) and (b) hereof.
(4) Neither Excluded Assets nor Retained Liabilities shall for any
purpose under this Agreement be considered in the computation of Net Worth.
(c) Limits. The Cash Amount payable pursuant hereto is subject to the
following limits:
(1) The operation of Section 4(a) hereof shall not require under any
circumstance that Buyer pay a Cash Amount (or Estimated Cash Amount at
Closing) exceeding the sum of Two Million One Hundred Thousand Dollars
($2,100,000).
(2) The operation of Section 4(a) hereof shall not require that Buyer
or Seller complete the purchase and sale contemplated hereby in the event
the Unaudited Net Worth of the Division is more negative than negative Two
Million One Hundred Thousand Dollars (-$2,100,000) at the time of Closing.
In such event, either Seller or Buyer may terminate this Agreement without
liability to the other. If Buyer elects to close, however, under
circumstances where the Unaudited Net Worth is more negative than negative
Two Million One Hundred Thousand Dollars (-$2,100,000), Seller shall not be
required to pay Buyer the Elective Net Worth Amount.
5. ADJUSTMENTS TO ESTIMATED CASH AMOUNT. The Cash Amount shall be determined
and adjusted from the Estimated Cash Amount as follows:
(a) Upward Adjustment. The Cash Amount shall be adjusted upward, on a
dollar-for-dollar basis, to the extent that the Final Net Worth exceeds or is
more positive than the amount of Unaudited Net Worth.
(b) Downward Adjustment. The Cash Amount shall be adjusted downward, on a
dollar-for-dollar basis, to the extent the Final Net Worth is less than or more
negative than the Unaudited Net Worth.
(c) Final Closing Balance Sheet. Buyer shall, at Buyer's sole cost and
expense, prepare and deliver to Seller within sixty (60) days of the date of
Closing the Final Closing Balance Sheet which shall include, in addition to the
other information set forth therein, the Final Net Worth, and reflect resolution
of any disputes subject to Sections 19(a) and (b) hereof (but not Section
20(f)(3), if applicable). The Final Closing Balance Sheet, and the Assets and
Liabilities reflected thereon, shall be prepared and determined in accordance
with GAAP Consistently Applied as modified or clarified by the Agreed Practices,
and shall be accompanied by an independent auditor's report thereon of Buyer's
independent auditors, D&T, to the effect that the Final Closing Balance Sheet,
and the Assets and Liabilities reflected thereon, were prepared and determined
in accordance with GAAP Consistently Applied as modified or clarified by the
Agreed Practices. The Final Closing Balance Sheet shall be accompanied by a
supplementary schedule setting forth the calculation of the adjustment to the
Cash Amount from the Estimated Cash Amount contemplated by Section 5(a) or (b),
as the case may be. Buyer and D&T shall make available to Seller upon Seller's
request and its independent auditor, PW, all work papers, books and records used
in the preparation and audit of the Final Closing Balance Sheet, and shall
provide copies of the same to Seller upon Seller's request.
(d) Review Period. Seller shall have fifteen (15) business days after its
receipt of (i) the Final Closing Balance Sheet and related supplementary
schedules, and (ii) if requested by Seller, all work papers, books and records
used in the preparation and audit of the Final Closing Balance Sheet, to review
them ("Review Period"). On or prior to the expiration of the Review Period,
Seller shall notify Buyer in writing whether it agrees or disagrees with Buyer's
calculation of any adjustment to the Cash Amount or where no Estimated Cash
Amount was paid the determination of Final Net Worth more negative than the
Unaudited Net Worth and, if it disagrees (the "Disagreement Notice"), the basis
of its disagreement, including its calculation of any adjustment to the Cash
Amount or Final Net Worth, respectively. If Buyer does not receive the
Disagreement Notice on or prior to the expiration of the Review Period, Seller
shall be deemed to have approved the Final Closing Balance Sheet and Buyer's
calculation of any adjustment to the Cash Amount applicable thereto and the
Final Net Worth.
(e) Disagreement Procedure. If Buyer receives the Disagreement Notice,
Seller and Buyer shall, in good faith, attempt to resolve the disagreement
within fifteen (15) business days after Buyer's receipt of the Disagreement
Notice. If they cannot resolve the disagreement within such time period, they
promptly shall refer such disagreement for resolution to AA, or if AA is unable
to serve or declines to act, or if at the time of such referral AA is not
independent of each of Buyer and Seller, such other firm of independent
accountants of recognized national standing as mutually selected by Buyer and
Seller (AA or such other firm being referred to herein as the "Deciding
Accountant"). The determination of the Deciding Accountant as to the
calculation and amount of any adjustment to the Cash Amount and the Final Net
Worth shall be rendered within thirty (30) days after such disagreement is
referred to the Deciding Accountant, and shall be binding upon the parties
hereto.
(f) Cooperation with Deciding Accountant. Each of Buyer and the Seller
shall furnish to the Deciding Accountant, at its own cost and expense, such
documents and information as the Deciding Accountant may request, and each party
may also furnish to the Deciding Accountant such other information and documents
as it deems relevant, in all cases with copies (where it would not be
unreasonably costly or burdensome to provide copies) or notification (with
reasonable rights of access) being given by the other party. The fees and
expenses payable to the Deciding Accountant shall be borne one-half by Seller
and one-half by Buyer.
(g) Resolution. The Final Closing Balance Sheet as agreed to by the
parties or as determined by the Deciding Accountant, and the Final Net Worth
reflected thereon, shall be considered the "Final Closing Balance Sheet" and the
"Final Net Worth," respectively, for all purposes of this Agreement. The latter
of the date (i) on which the parties agreed upon the Final Closing Balance Sheet
and the calculation of any adjustment to the Cash Amount and the Final Net
Worth, or (ii) the date on which the Deciding Accountant renders its decision
with respect thereto, or (iii) resolution of all good faith disputes in
accordance with Sections 19(a) and (b) hereof (but not Section 20(f)(3) hereof),
shall be called the "Final Settlement Date."
(h) Final Payment. Within five (5) business days after the Final
Settlement Date, (i) if the Cash Amount exceeds the Estimated Cash Amount paid
at Closing, Buyer shall pay to the trustee for the Debentures the amount of such
excess by wire transfer to an account identified in writing by Seller, and (ii)
if the Estimated Cash Amount paid at Closing exceeds the Cash Amount, or if, in
a circumstance where no Estimated Cash Amount was paid, the Final Net Worth is
more negative than the Unaudited Net Worth, Seller shall pay to Buyer the amount
of the excess of the Estimated Cash Amount over the Cash Amount, or the amount
of Final Net Worth which is more negative than the amount of Unaudited Net
Worth, respectively, by wire transfer to an account of Buyer identified in
writing by Buyer to the extent not satisfied by disbursement of the Holdback
Amount, if an Estimated Cash Amount was paid, pursuant to the Holdback
Agreement.
(i) Final Allocations. Any adjustments to the Cash Amount or as a result
of determination of the Final Net Worth required by application of this Section
5 shall be allocated among the Assets (or to the residual) in the same manner or
proportion as the allocation required by Section 13(e) hereof.
6. HOLDBACK REQUIREMENTS. In order to better assure that Buyer will pay no
more than the Cash Amount if it is determined to be less than the Estimated Cash
Amount paid at Closing, Seller and Buyer agree that the greater of (i) ten
percent (10%) of the Estimated Cash Amount or (ii) the portion of the Estimated
Cash Amount which exceeds One Million Five Hundred Thousand Dollars ($1,500,000)
(the greater of such amounts being the "Holdback Amount"), which is otherwise to
be paid to the trustee for the Debentures at Closing, will instead be delivered
in escrow pursuant to the terms of the Holdback Agreement. The terms of the
Holdback Agreement shall provide, among other things, that if the Estimated Cash
Amount paid at Closing exceeds the Cash Amount, the escrow agent pursuant
thereto shall pay to Buyer at the time required by Section 5 the lesser of the
amount of such excess or the Holdback Amount. Any sums still held under the
Holdback Agreement after disbursement of the Holdback Amount to Buyer will be
paid over to the trustee for the Debentures.
7. SOUTH SEAS STOCK PLEDGE.
(a) Pledge. Contemporaneously with the execution of this Agreement,
Seller shall execute and deliver the Stock Pledge Agreement, pledging as a first
and preferred lien and without any junior liens, one hundred percent (100%) of
the issued and outstanding capital stock of South Seas to secure the following:
(1) The Master Lease payments (subject to customary offsets but none
accruing on or before April 30, 1995 except as otherwise specifically
provided in Section 19(a) hereof) accruing or becoming due and payable from
and after May 1, 1995 until the earlier of Closing or termination of this
Agreement;
(2) The payment of all other obligations of Seller to Buyer accruing
or becoming due and payable from and after May 1, 1995 until the earlier of
Closing or termination of this Agreement and expressly including amounts
that are hereafter disputed and are subject to the procedure outlined in
Sections 19(a) and (b) hereof, during the pendency of the dispute and until
resolution (but not claims submitted for ADR as described in Section
20(f)(3) hereof);
(3) Buyer's money damages and incidental, out of pocket losses as
awarded by the final, non-appealable order of a court for failure or
refusal to close after satisfaction (or waiver by the party entitled to the
satisfaction) of all conditions precedent to the obligation of both parties
to the Closing;
(4) The amount of the downward adjustment from the Estimated Cash
Amount to the Cash Amount necessitated upon receipt of the Final Closing
Balance Sheet, to the extent not satisfied by the Holdback Amount;
(5) In a circumstance where no Estimated Cash Amount was paid, the
amount by which the Final Net Worth is more negative than the Unaudited Net
Worth amount ;
(6) If Closing occurs, any amounts or Assets required to be returned
by Buyer pursuant to the order of a court under any preference or
fraudulent transfer law; provided, however, that if as of that date which
is ninety-one (91) days after Closing (i) Seller has not filed a voluntary
petition for relief under the Federal Bankruptcy Code, as amended, (ii) an
involuntary petition has not been filed against Seller under the Federal
Bankruptcy Code, as amended, or (iii) no such action or assertion in such
bankruptcy case has been filed or made, then the subject pledge and lien
shall lapse insofar as its secures the obligation described in this Section
7(a)(6). If any such filing is made, or action or assertion in such
bankruptcy case is made on or before such ninety-first (91st) day, then
this lien shall continue through completion of any such case under the
Federal Bankruptcy Code, as amended, and until resolution by the final,
non-appealable order of a court.
(b) Secondary Collateral. Insofar and only insofar as the South Seas
stock secures adjustments necessitated upon receipt of the Final Closing Balance
Sheet, and in the event the Estimated Cash Amount paid at Closing exceeds the
Cash Amount, Buyer shall first receive the Holdback Amount from the escrow agent
under the Holdback Agreement, and then any amount remaining unsatisfied
thereafter shall be secured by the South Seas stock.
(c) Agent. Pursuant to the Agency Agreement executed on the date hereof,
the South Seas stock is held by Liberty Bank and Trust Company of Tulsa, N.A.,
to perfect Buyer's lien.
8. DUE DILIGENCE. From and after the date hereof and prior to the Closing,
Seller agrees to permit Buyer and its representatives full access to the Assets,
Liabilities and the Division's operations, and its business and financial
records, contracts and prospects files and any and all other documentation to
permit it to complete its due diligence procedures and review. In addition, the
parties agree that Buyer shall complete due diligence procedures and review of
Preliminary Financial Information and Division operations within forty-five (45)
days after initial delivery of complete and conforming schedules (as well as
exhibits which are required to be updated) by Seller pursuant to Section 2(b) of
this Agreement. At Seller's request, Buyer shall confirm in writing within two
(2) days after Seller's initial submission of its schedules (as well as initial
exhibits which are required to be updated), whether or not the Buyer believes
that Seller's submissions as of such time have been sufficiently "complete and
conforming" to commence the 45-day period. In the event in response to initial
deliveries, Buyer within two (2) days requests supplementation or clarification,
then upon Seller's response Seller may again request such confirmation. Buyer
has the right at any time during such 45-day period to terminate this Agreement
for any reason or no reason at all, as well as other rights of termination at
other times, as more particularly provided in Section 21(d) hereof. The Agreed
Practices will be finalized by the parties before completion of the 45-day
period described herein. Upon entering into this Agreement, three Agreed
Practices have been identified and placed on Exhibit B. These do not constitute
all of the Agreed Practices as the same are expressly permitted to be developed
by the parties during the 45-day period described herein. Seller has
specifically requested Buyer accept such exhibit without Buyer doing field work
or other verifications necessary to substantively review the content of Exhibit
B as of the date of this Agreement. However, if the transaction proceeds beyond
the 45-day due diligence period, the three Agreed Practices as identified on
today's date will be used in developing the Unaudited Closing Balance Sheet and
Final Closing Balance Sheet. Due to Buyer not having yet tested or reviewed the
application of such Agreed Practices as of the date of execution hereof,
however, it is expressly understood that within the 45-day period Buyer may
terminate this Agreement without any liability to Seller for any reason, and
even if such reason is solely Buyer's dissatisfaction with the application of
any one or more of the Agreed Practices identified on Exhibit B on the date
hereof.
9. CONDITIONS TO THE OBLIGATION OF BUYER TO CLOSE.
All of the obligations of Buyer under this Agreement are subject to the
fulfillment of each of the following conditions, any one or more of which may be
waived by the Buyer as a condition to Closing:
(a) The representations and warranties of the Seller contained in this
Agreement or in any certificate, exhibit, schedule or other document executed
and delivered by Seller pursuant to, or in connection with, this Agreement shall
be true as of the date when made, shall be deemed to be made again at and as of
the date of Closing and shall be true at and as of the Closing.
(b) The Seller shall have performed and complied with all agreements and
conditions required by this Agreement to be performed or complied with by it
prior to or at the Closing.
(c) Between December 31, 1994 and the Closing: (i) no damage to or
destruction of the Assets which would constitute a materially adverse change in
the condition of the Assets shall have occurred; (ii) no event shall have
occurred or failed to occur as a result of which performance by the Buyer of any
of the Liabilities would be materially more burdensome; and (iii) no materially
adverse change in the Division shall have occurred. Seller's experiencing
operating losses since December 31, 1994 as reflected in the Preliminary
Financial Information shall not be deemed a failure of this condition.
(d) The Seller shall have provided the Buyer with all necessary consents
by third parties that all contracts, agreements, leases, concessions,
borrowings, commitments, arrangements, undertakings and understandings included
in the Assets or the Liabilities which would otherwise be in default (assuming
that any required notice of default has been given and any periods for cure have
expired) or subject to cancellation or nonrecurring payments as a result of the
transactions contemplated by this Agreement, shall continue unaltered after the
Closing and for their term (assuming no subsequent amendment or termination or
any other action by Buyer causing such alteration), affirmative consents to
assignment, transfer or assumption are given, and none of such consents shall
affect the rights of the Buyer thereunder with respect to the Assets, the
Liabilities or the Division.
(e) No action, proceeding, investigation, regulation or litigation shall
have been instituted or threatened or proposed before any court, governmental
agency or legislative body to enjoin, restrain, prohibit or obtain damages in
respect of, or which is related to, or arises out of, this Agreement or the
consummation of the transactions contemplated hereby, or which, in the
reasonable judgment of the Buyer, would have a materially adverse effect on the
Assets, the Liabilities or the Division, taken as a whole.
(f) All authorizations, consents, permits and approvals of any domestic or
foreign governmental or public unit, agency, body, authority or other person or
entity necessary for the valid consummation of the transactions contemplated by
(and other compliance with or performance under) this Agreement of Buyer shall
have been obtained by Buyer including, without limitation, the waiting period
applicable to the consummation of the transactions contemplated hereby under the
HSR Act shall have expired or early termination thereof shall have been granted.
(g) The Buyer shall have received all necessary consents to the
transactions contemplated by this Agreement required under all loan agreements,
financing arrangements, commitments, contracts, and other agreements to which
the Buyer or its Affiliates is subject or bound including, without limitation,
the consent of the board of directors of its parent, Pentastar Transportation
Group, Inc.
(h) The shareholders of the Seller shall have approved, in accordance with
the charter documents and bylaws of the Seller and applicable law (including,
without limitation, the Securities Exchange Act of 1934, as amended), the
transactions contemplated by this Agreement.
(i) There shall not exist or have occurred any Off Balance Sheet Adverse
Event.
(j) All of the Assets shall be free and clear of any liens, mortgages,
security interests or other encumbrances, save and except for those securing the
Liabilities.
(k) Seller shall have satisfied the Minimum Net Worth Requirement as of
the date of and immediately before Closing, as reflected on the Unaudited
Closing Balance Sheet.
(l) Seller shall have obtained the tender and/or consent of holders owning
in the aggregate a minimum of eighty percent (80%) of the face value of all
outstanding Debentures to the conveyance and transfer of Assets at the Closing.
(m) Seller shall deliver consents from its existing lenders to the extent
Buyer considers necessary or appropriate (including, without limitation,
releases of liens and waivers of cross-defaults and cross-collateral
requirements, if any, as to the Retained Liabilities).
(n) Seller shall have received a fairness opinion on the transactions
contemplated hereby to its board of directors from Houlihan, Lokey, Howard &
Zukin or another investment banking firm reasonably satisfactory to Buyer, a
copy of which such opinion will be delivered to Buyer promptly after received by
Seller.
(o) Compliance by Seller with all notice and related payment and
withholding requirements under bulk transfer laws, to the extent applicable.
(p) Compliance by Seller with the Debt Ceiling Covenant.
(q) Completion of environmental due diligence by Buyer and Buyer's
satisfaction with the results thereof in its sole determination.
(r) Completion of vehicle inspections and vehicle reviews satisfactory to
Buyer.
(s) Seller shall deliver consents of lessors and concession grantors and
estoppel certificates with respect to the leases and concessions constituting
Liabilities in a form satisfactory to Buyer.
(t) Seller shall deliver releases and consents as may be required by Buyer
from Seller's lenders or contract parties with respect to the transfer of the
Assets or assumption of the Liabilities.
(u) Seller shall deliver the solvency certificate described in Section
12(z) hereof.
10. CONDITIONS TO THE OBLIGATION OF SELLER TO CLOSE.
All of the obligations of Seller under this Agreement are subject to the
fulfillment of each of the following conditions, any one or more of which may be
waived by the Seller as a condition to Closing:
(a) The representations and warranties of the Buyer contained in this
Agreement or in any certificate, exhibit, schedule or other document executed
and delivered by Buyer pursuant to, or in connection with, this Agreement shall
be true as of the date when made, shall be deemed to be made again at and as of
the date of Closing and shall be true at and as of the Closing.
(b) The Buyer shall have performed and complied with all agreements and
conditions required by this Agreement to be performed or complied with by it
prior to or at the Closing.
(c) No action, proceeding, investigation, regulation or litigation shall
have been instituted or threatened or proposed before any court, governmental
agency or legislative body to enjoin, restrain, prohibit or obtain damages in
respect of, or which is related to, or arises out of, this Agreement or the
consummation of the transactions contemplated hereby, or which, in the
reasonable judgment of the Seller, would have a materially adverse effect on the
Buyer's ability to execute and deliver this Agreement.
(d) All authorizations, consents and approvals of any domestic or foreign
governmental or public unit, agency, body, authority or other person or entity
necessary for the valid consummation of the transactions contemplated by (and
other compliance with or performance under) this Agreement shall have been
obtained including, without limitation, the waiting period applicable to the
consummation of the transactions contemplated hereby under the HSR Act shall
have expired or early termination thereof shall have been granted.
(e) The shareholders of the Seller shall have approved, in accordance with
the charter documents and bylaws of the Seller and applicable law (including,
without limitation, the Securities Exchange Act of 1934, as amended), the
transactions contemplated by this Agreement.
(f) Seller shall have obtained the tender and/or consent of holders owning
in the aggregate a minimum of eighty percent (80%) of the face value of all
outstanding Debentures to the conveyance and transfer of Assets at the Closing.
(g) Seller shall have received a fairness opinion on the transactions
contemplated hereby to its board of directors from Houlihan, Lokey, Howard &
Zukin or another investment banking firm reasonably satisfactory to Buyer.
(h) Seller shall have satisfied the Minimum Net Worth Requirement as of
the date of and immediately before Closing, as reflected on the Unaudited
Closing Balance Sheet.
(i) Seller shall have received consents from its existing lenders to the
extent Buyer considers necessary or appropriate (including, without limitation,
releases of liens and waivers of cross-defaults and cross-collateral
requirements, if any, as to the Retained Liabilities).
(j) Seller shall have received consents of lessors and concession grantors
and estoppel certificates with respect to the leases and concessions
constituting Liabilities in a form satisfactory to Buyer.
(k) The Retained Employee Liabilities shall not equal or exceed Twenty-
Five Thousand Dollars ($25,000).
(l) Seller shall have received releases and consents as may be required by
Buyer from Seller's lenders or contract parties with respect to the transfer of
the Assets or assumption of the Liabilities.
11. CLOSING.
Subject to the terms and conditions of this Agreement, the Closing shall
take place at the offices of Torkildson, Katz, Jossem, Fonseca, Moore &
Hetherington, Honolulu, Hawaii, on October 31, 1995, or at such other place and
time as soon thereafter as possible as may be mutually agreed between the
parties hereto in writing, provided that in no event shall the date of Closing
be extended past November 30, 1995. At the request of Buyer, the parties shall
conduct a pre-Closing conference to review the status of satisfaction and
completion of the items required hereby, which would not be convened earlier
than two (2) business days before the Closing.
12. DELIVERIES BY SELLER AT CLOSING.
At the Closing, Seller shall deliver to Buyer the following properly
executed documents:
(a) The Bill of Sale together with such other bills of sale, deeds,
endorsements, assignments and other good and sufficient instruments of
conveyance as appropriate to convey to the Buyer all title to and interest in
the Assets duly executed by the Seller.
(b) Appropriate assurances as to Liabilities relating to substitution of
parties, no defaults, estoppel certificates, consents to assignment and
transfer, and also generally showing the total amounts required to be paid as of
the Closing (including principal, interest, penalties, fees and premiums) to pay
or prepay in full all indebtedness for borrowed money constituting Liabilities,
together with (i) releases or termination statements of all mortgages, deeds to
secure debt, deeds of trust, security interests, pledges, liens and other
charges, encumbrances or adverse claims on the Assets from such creditors,
lessors and any other creditor of the Seller which constitute Retained
Liabilities, sufficient in the sole determination of the Buyer to release all
such liens and encumbrances on the Assets, and (ii) evidence satisfactory to the
Buyer of the Seller's arrangements to satisfy out of funds that would not
constitute Assets, all liabilities which are not Liabilities and which must be
satisfied in order to obtain the releases and termination statements referred to
above including, without limitation, any penalties, fees and premiums payable in
respect of the foregoing.
(c) Certificates dated as of the Closing and executed by the president of
the Seller (i) stating that the representations of the Seller in the Agreement
are true and correct on and as of the Closing with the same effect as though
such representations and warranties had been made on and as of such date and
that the covenants and agreements to be performed or complied with by the Seller
prior to or at the Closing have been conformed and complied with; (ii)
certifying the corporate action of the Seller represented and warranted pursuant
to Section 15(a)(2) of this Agreement and certifying that all such action is
still in full force and effect and that it is all the action adopted in
connection with the transactions contemplated by this Agreement, including a
certification as to the text of such corporate action; and (iii) setting forth
the names and titles of the officers of the Seller executing this Agreement and
the other agreements, instruments and documents executed and delivered by the
Seller pursuant to this Agreement, the signatures of such officers and the seal
of the Seller; and with the signature and title of the president certified by
another officer of the Seller.
(d) The Assumption Agreement with respect to the Liabilities.
(e) Title certificates, registrations and other documentation necessary to
transfer motor vehicles and any other certificated assets included in the
Assets, duly completed in favor of the Buyer and duly executed by the Seller.
(f) Certificates of corporate and tax good standing for the Seller from
the Secretary of State or other appropriate official of the states of California
and Hawaii, dated no earlier than ten (10) days before the Closing.
(g) Legal opinion of counsel for Seller in a form reasonably satisfactory
to Buyer.
(h) Assignment of all Dollar System trademarks and rights to telephone
numbers and directory advertising, and compliance with licensee cessation of
business requirements as reflected in of the License Agreement.
(i) Unaudited Closing Balance Sheet as of Closing, to ascertain Estimated
Cash Amount and verify compliance with the Minimum Net Worth Requirement.
(j) The PISC Noncompetition Agreement.
(k) The Robin Noncompetition Agreement.
(l) The PISC General Release.
(m) The Robin General Release.
(n) The Dismissal Agreement.
(o) Evidence of tender and/or consent of holders of 80% of the face value
of the Debentures to the purchase and sale of the Assets in a form reasonably
satisfactory to Buyer.
(p) Commitment of South Seas to be jointly and severally liable with
Seller for Seller's indemnity obligations in Section 20 in the form of Exhibit S
hereto.
(q) An affidavit from the Seller and any other party or parties required
pursuant to Section 1445 of the Internal Revenue Code, as amended, and any
regulations relating thereto, stating under penalty of perjury (i) that neither
the Seller nor any other party so swearing is a "Foreign Person," (ii) the U.S.
taxpayer identification number of Seller and any other party, and (iii) such
other information as may be required by any regulations promulgated in
connection with said Section 1445.
(r) Termination by Seller of all agreements to which it is a party with
Buyer (other than this Agreement, including exhibits which constitute contracts)
including, without limitation, the License Agreement and the Master Lease.
(s) Hawaii state tax clearance certificate issued within ten (10) days
preceding the Closing.
(t) Evidence of timely filing by Seller of the Hawaii bulk sales report
with the Hawaii State Tax Department.
(u) Waiver of experience rating for Hawaii unemployment insurance
purposes, if requested by Buyer.
(v) Consents of lessors and concession grantors and estoppel certificates
with respect to the leases and concessions constituting Liabilities in a form
satisfactory to Buyer.
(w) Such releases and consents as may be required by Buyer from Seller's
lenders or contract parties with respect to the transfer of the Assets or
assumption of the Liabilities.
(x) Evidence of termination of Mr. Maggiacomo's employment commitment and
acceptance of terms offered by Buyer as required by Section 19(d)(i) and, if
applicable, the same evidence as to Mr. Fabella, as stated in Section 19(d)(ii).
(y) A copy of the fairness opinion Seller has obtained, as described in
Section 9(n), if not previously delivered.
(z) A solvency certificate in the form of Exhibit T hereto from the chief
financial officer of Seller, certifying as to the net worth of Seller on a pro
forma basis after giving effect to the Closing.
(aa) Such other documents as shall be reasonably required or necessary to
consummate the transactions contemplated by this Agreement and the exhibits as
may be reasonably requested by Buyer.
13. DELIVERIES BY BUYER AT CLOSING.
At the Closing, Buyer shall deliver to Seller the following properly
executed documents:
(a) The Assumption Agreement with respect to the Liabilities.
(b) Certificates dated as of the Closing and executed by the president of
the Buyer (i) stating that the representations of the Buyer in the Agreement are
true and correct on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of such date and that the
covenants and agreements to be performed or complied with by the Buyer prior to
or at the Closing have been conformed and complied with; (ii) certifying the
corporate action of the Buyer represented and warranted pursuant to Section
16(a)(2) of this Agreement and certifying that all such action is still in full
force and effect and that it is all the action adopted in connection with the
transactions contemplated by this Agreement, including a certification as to the
text of such corporate action; and (iii) setting forth the names and titles of
the officers of the Buyer executing this Agreement and the other agreements,
instruments and documents executed and delivered by the Buyer pursuant to this
Agreement, the signatures of such officers and the seal of the Buyer; and with
the signature and title of the president certified by another officer of the
Buyer.
(c) Legal opinion of counsel for Buyer in a form reasonably satisfactory
to Seller.
(d) Payment of the Estimated Cash Amount by wire transfer or other
immediately available funds to the trustee for the Debentures, subject to
disbursement of the Holdback Amount to the escrow agent under the Holdback
Agreement, if applicable.
(e) Preliminary allocation of purchase price for financial and tax
reporting purposes based upon Unaudited Closing Balance Sheet, which will be
subject to adjustment upon receipt of the Final Closing Balance Sheet; provided
however, Buyer in its discretion may defer delivery of the allocation as
provided in Section 5(i) hereof.
(f) Closing statement showing Estimated Cash Amount with all adjustments.
(g) The Dollar General Release.
(h) The Dismissal Agreement.
(i) Termination by Buyer of all agreements to which it is a party with
Seller (other than this Agreement, including exhibits which constitute
contracts) including, without limitation, the License Agreement and the Master
Lease.
(j) Such other documents as shall be reasonably required or necessary to
consummate the transactions contemplated by this Agreement and the exhibits as
may be reasonably requested by Seller.
14. POST-CLOSING EVENTS.
Following Closing, the parties will continue to comply with the terms of
this Agreement and all exhibits hereto and will cause the following events,
among others, to occur:
(a) Seller will deliver physical possession of all facilities of the
Division.
(b) In the event Buyer waives the requirement for any consent, estoppel or
other assurances to be provided by Seller hereunder and permits the Closing to
occur, Seller shall use diligent good faith efforts to obtain same after the
Closing and will deliver any such consents obtained to Buyer.
(c) For a period of two (2) years after the Closing, each party shall make
available to the other for examination and copying, upon the reasonable request
and during regular business hours and without interfering with the business of
the other, all books and records of or relating to the Division.
(d) Buyer may open mail addressed to Seller strictly for the purpose of
determining if any such mail includes payment on any account receivable included
in the Assets or relates to the business of the Division. Any other such mail
will be promptly delivered to Seller. For purposes of opening mail and
depositing payments of accounts receivable included in the Assets, Seller will
at Closing appoint Buyer its attorney-in-fact with authority to open mail
addressed to Seller to collect for its own account all accounts receivable and
other items transferred to Buyer hereunder and to endorse any check or other
item payable to Seller on account of any account receivable or other item
included in the Assets. Seller shall promptly transfer and deliver to Buyer any
cash or other property which Seller may receive in respect of such accounts
receivable or items after the Closing.
(e) A solvency certificate will be delivered immediately after the Closing
in the same form as Exhibit T hereto, but with certifications as to net worth no
longer made on a pro forma basis.
15. REPRESENTATIONS AND WARRANTIES OF SELLER.
Subject to Section 2(b) hereof, Seller hereby represents and warrants to
Buyer on the date of this Agreement and again on and as of the Closing:
(a) The Seller.
(1) Status. The Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of California,
and is qualified and in good standing in every jurisdiction where the
failure to qualify would have a materially adverse effect on its business
or where applicable law requires that it be so qualified or subjects it to
any cost, restriction or penalty for failing to qualify (including, without
limitation, assessment of taxes, fees or penalties for prior periods). The
Seller has the corporate power to own its properties and carry on its
business as now being conducted, to execute and deliver this Agreement and
to consummate the transactions contemplated by it and otherwise to comply
with or perform its obligations under this Agreement. Set forth on
Schedule 15(a)(1) is a true and correct copy of the Seller's articles or
certificate of incorporation, as amended, certified by the California
Secretary of State, and of the Seller's bylaws, as amended, certified by
the secretary of the Seller.
(2) Powers; Authorization; Binding Nature. With respect to this
Agreement and any other agreements, certificates, instruments and documents
executed and delivered (or to be executed and delivered) by Seller or its
officers pursuant to this Agreement (such agreements, certificates,
instruments and documents, being the "Seller Delivered Agreements"): (i)
the Seller has the power and authority to execute and deliver this
Agreement and the Seller Delivered Agreements and to consummate the
transactions contemplated by them and otherwise to comply with or perform
its obligations under this Agreement and the Seller Delivered Agreements;
(ii) the execution and delivery by the Seller of this Agreement and the
Seller Delivered Agreements and the consummation by the Seller of the
transactions contemplated by them have been duly authorized by all
necessary action on the part of the Seller (including, without limitation,
before Closing by appropriate shareholder approval under applicable
corporation law and consent of holders of the requisite amount of
Debentures) in compliance with the Seller's articles or certificate of
incorporation, as amended, its bylaws, as amended, and applicable law
(except that Buyer acknowledges that shareholder consent and Debenture
holder consent and/or tender may not be effective until Closing); (iii)
this Agreement and the Seller Delivered Agreements constitute valid and
binding agreements of the Seller that are enforceable against the Seller in
accordance with their terms, except as enforceability may be limited by
applicable bankruptcy, insolvency and other laws affecting creditors'
rights generally and the discretion of the courts in granting equitable
remedies; and (iv) the other transfer and assumption instruments included
in the Seller Delivered Agreements effectively convey to, and vest in, the
Buyer all of the Seller's right, title and interest to and in the Assets
and the Liabilities.
(3) Absence of Violations or Conflicts. Except as set forth on
Schedule 15(a)(3) hereto, the execution and delivery by the Seller of this
Agreement and the Seller Delivered Agreements and the consummation by the
Seller of the transactions contemplated herein and therein (i) will not
constitute a violation of, be in conflict with, constitute a default under
or result in the creation or imposition of any security interest, lien or
other encumbrance or adverse claim in, upon or with respect to the Assets,
the Liabilities or the Division under (A) any term or provision of the
articles or certificate of incorporation, as amended, or bylaws, as
amended, of the Seller, (B) any agreement, commitment or understanding to
which the Seller is a party or to which the Seller, the Assets, the
Liabilities or the Division are subject or bound, (C) any judgment, decree
or order of any court or governmental agency or (D) any statute, law, rule,
regulation, release or other official pronouncement and (ii) will not
create or cause the acceleration of the maturity of any Liability.
(4) No Governmental Consents Required. Except as set forth on
Schedule 15(a)(4) to this Agreement, no consent, approval, order or
authorization of, or registration, declaration or filing with, any domestic
or foreign governmental or public unit, agency, body or authority on the
part of the Seller is required in connection with the execution and
delivery of, consummation of any transaction contemplated by, or
performance of or compliance with its obligations under this Agreement or
the Seller Delivered Agreements.
(5) Qualification; Places of Business; Names. Set forth on Schedule
15(a)(5) is a complete list of (i) each jurisdiction in which the Seller is
qualified to do business, (ii) the street address, city and county of the
principal place of business of the Seller in each such jurisdiction, and
(iii) a complete list of all other locations (with a designation of the
Seller's principal place of business) at which the Seller conducts business
or at which the Assets are located. The Seller conducts business only
under its corporate name, South Seas or Buyer's tradenames.
(6) Subsidiaries and Ownership Interests. Set forth on Schedule
15(a)(6) hereto is a complete list of (i) all equity investments of the
Seller in any corporation, partnership, joint venture or other business
enterprise or entity, or any agreements or commitments for such
investments; and (ii) all debt instruments owned by the Seller.
(7) Bank Accounts. Schedule 15(a)(7) contains a complete list of
each account with the account number, name, telephone number and address of
the bank or other financial institution in which the Seller maintains any
account or safe deposit box relating to the Division.
(b) Financial Matters.
(1) Financial Statements. Attached as Schedule 15(b)(1) to this
Agreement are true and complete copies of the audited balance sheet of the
Seller as of December 31, 1994, and the related audited statements of
income, retained earnings and cash flows for the period then ended and the
unaudited financial statements constituting a part of the Preliminary
Financial Information (collectively with the Unaudited Closing Balance
Sheet and Final Closing Balance Sheet, the "Financial Statements"). The
Financial Statements are prepared in accordance with GAAP Consistently
Applied, as modified or clarified by the Agreed Practices, and fairly
present the financial position and results of operations of the Seller or
Division, respectively, as of the periods indicated. Seller shall
expressly be deemed to make the foregoing representations and warranties as
to the Unaudited Closing Balance Sheet and the Final Closing Balance Sheet
when required to be delivered in accordance with the terms hereof. It is
understood the unaudited portions of the Financial Statements do not
include complete footnotes.
(2) No Undisclosed Liabilities. The Seller has no liabilities or
obligations, absolute, accrued, contingent or otherwise, except for (i)
such liabilities as are fully reflected or reserved against in the
Financial Statements as of the date thereof and as described on Exhibit I
hereto; (ii) Off-balance Sheet Liabilities, as set forth on Exhibit J
hereto; and (iii) Retained Liabilities.
(3) Absence of Material Change. Except as set forth in Schedule
15(b)(3) to this Agreement or as otherwise contemplated in this Agreement
or the other exhibits or schedules hereto, since December 31, 1994 the
Seller has operated in the ordinary course of business and without limiting
the foregoing, since December 31, 1994 there has not been: (i) any change
in the assets or liabilities of the Seller with respect to the Division
other than changes in the ordinary course of business, none of which has
been materially adverse; (ii) any damage, destruction or loss, whether or
not covered by insurance, materially and adversely affecting the Assets;
(iii) any sale, transfer, lease, removal or other disposition of any of the
Assets, except for transactions in the ordinary course of business; (iv)
any mortgage, deed to secure debt, deed of trust, pledge, lien,
restriction, encumbrance, charge or adverse claim whatsoever imposed upon
any of the Assets or the Liabilities; (v) capital expenditures or
commitments by the Seller for additions to property, plant or equipment
that are included in the Assets exceeding Fifty Thousand Dollars ($50,000)
in aggregate amount; (vi) any sale or granting to any party or parties of
any license, franchise, option or other right of any nature whatsoever to
sell, distribute, or otherwise deal in or with products, merchandise or
services of the Seller; (vii) any waiver, compromise or other settlement by
the Seller of any its rights under any contract or other agreement that
constitutes a Liability; (viii) any strike or other work stoppage or slow
down or threat thereof, or any loss of employees or any event or condition
of any character relating to the employees of the Seller that materially
and adversely affects the Assets, Liabilities or Division; or (ix) any
other material contract or commitment entered into by the Seller other than
contracts or commitments entered into in the ordinary course of business.
Buyer's experiencing operating losses since December 31, 1994 as reflected
in the Balance Sheet constituting a part of the Preliminary Financial
Information shall not be deemed a breach of this Section 15(b)(3).
(4) Books and Records. The books and records of the Seller are
complete and correct in all material respects, have been maintained in
accordance with customary business practices and accurately reflect the
basis for the financial condition and results of operations of the Seller
or Division, respectively, as set forth in the Financial Statements.
(5) Reserves. As indicated in Section 15(b)(1) above, Seller's
reserves in the Financial Statements including, without limitation, with
respect to accounts receivable, liability insurance and damaged vehicle
turnbacks and reconditioning, will be determined in accordance with GAAP
Consistently Applied as clarified or modified by the Agreed Practices. The
presentation of reserves in all Financial Statements will be updated to and
current as of the date of such respective Financial Statement and the
reserves will be computed in accordance with GAAP Consistently Applied as
clarified or modified by the Agreed Practices.
(c) Taxes.
(1) General. The Seller has properly completed and filed all tax
returns required to be filed by it, and no filing extensions for any
returns are in effect. Except as set forth on Schedule 15(c), the Seller
has paid and satisfied all taxes, estimated tax payments, deficiency
assessments, additions to tax, penalties and interest (whether or not
requiring the filing of returns). All taxes, assessments and levies which
the Seller was required by law to withhold or collect including, without
limitation, sales, unemployment and payroll taxes, have been duly withheld
and collected, and have been paid over to the proper governmental
authorities or are held by the Seller in separate bank accounts for such
payment (whether or not the time for paying over or setting aside such
amounts has elapsed or occurred) and are duly set forth on the books of the
Seller.
(2) Examinations. Except as set forth on Schedule 15(c) to this
Agreement, neither the tax returns nor the books and records of the Seller
have been examined or audited by any government representatives, nor has
the Seller received any notice from any governmental authority that it
intends to conduct such an audit or examination. There are no outstanding
agreements or waivers extending the statutory period of limitation
applicable to any tax return for any period with respect to the Seller.
(d) Properties.
(1) Owned Properties. Schedule 15(d)(1) to this Agreement sets
forth: (i) a complete and accurate list of all real properties in which
the Seller holds legal or equitable title; (ii) a complete and accurate
list of all material items of plant and equipment located on any such real
properties and all material items of plant or equipment located anywhere;
(iii) a complete and accurate list of all motor vehicles owned by the
Seller and used in the Division (including vehicle ID numbers and
certificate of title numbers); and (iv) a summarized description of all
other property that constitutes part of the Assets.
(2) Leased Properties. Schedule 15(d)(2) to this Agreement includes
a complete and accurate list of all agreements, written or oral leases,
subleases or rental agreements (and any related contract, agreement,
commitment, undertaking or understanding and all amendments, modifications
and supplements thereof) pursuant to which the Seller leases, subleases or
rents any real or personal property that is used in the operation of the
Division. Schedule 15(d)(2) hereto also contains a complete and accurate
list of all material items of plant and equipment subject to any lease, as
well as a complete and accurate list of all motor vehicles leased by the
Seller and used in the Division (including vehicle I.D. numbers and
certificate of title numbers) other than motor vehicles leased by Buyer to
Seller.
(3) Title. Except as set forth in Schedule 15(d)(3) to this
Agreement, the Seller has good and marketable (and in the case of real
property, fee simple) title to all the Assets, with no imperfections of
title thereto. Seller has not received any Assets without giving an
adequate and fair consideration for the same.
(4) Liens. Except as set forth in Schedule 15(d)(4) to this
Agreement, none of the Assets is subject to any mortgage, deed to secure
debt, deed of trust, pledge, lien, security interest, restriction,
encumbrance, easement, covenant, lease, rental, or charge or claim
whatsoever except (i) in the case of real property, liens for ad valorem
taxes not yet due and payable; and (ii) liens imposed by law and incurred
in the ordinary course of business for obligations not yet due and payable
to landlords, carriers, warehousemen, laborers, materialmen and the like.
All such obligations described in (ii) shall be paid in full by the Seller
on or before the Closing.
(5) Condition of Properties. (i) THE REPRESENTATIONS AND WARRANTIES
OF SELLER IN THIS AGREEMENT RELATING TO THE ASSETS ARE IN LIEU OF ALL OTHER
REPRESENTATIONS AND WARRANTIES, EXPRESSED OR IMPLIED, OF SELLER PERTAINING
THERETO. EXCEPT AS PROVIDED IN THIS AGREEMENT, THE TANGIBLE PERSONAL
PROPERTY COMPRISING THE ASSETS WILL BE CONVEYED BY SELLER TO BUYER "AS IS,
WHERE IS" WITHOUT RECOURSE AND WITHOUT REPRESENTATION OR WARRANTY EXCEPT AS
TO TITLE, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, SELLER MAKES
NO REPRESENTATION OR WARRANTY AS TO MERCHANTABILITY OR FITNESS OF SAME.
Except as set forth in Schedule 15(d)(5) to this Agreement: (ii) all
operating locations of the Division include the right of ingress and egress
over public rights-of-way; (iii) all necessary surface water drainage,
sewer and other utility services are available to all such locations
through facilities located in public rights-of-way or valid and existing
private easements, and the Seller has not experienced during the last five
(5) years any material curtailment or interruption of its operations as a
result of the unavailability of any utility or energy source including,
without limitation, water, sewer, natural gas, propane, heating fuel or
electricity, and the Seller has received no notice to the effect that, nor
is the Seller aware of any reason why, such utility services shall not be
available in quantities sufficient for the operation of the Division; (iv)
the Seller has not received notice of and has no knowledge of, and to the
knowledge of Seller there is no basis for any dispute with any real or
personal property lessor of any of the Assets or property subject to lease
constituting a Liability, nor are there pending lease rental
renegotiations; (v) the Seller has not received notice of and has no
knowledge of, and to the knowledge of Seller there is no basis for any
dispute with any other party to any of the airport or other concession
agreements to which Seller is subject, nor are there pending any concession
renegotiations; (vi) the Seller is not (A) in violation of any applicable
building, zoning, antipollution, environmental, health, safety or other
law, ordinance or regulation in respect of any of the Assets (I) in any
respect that involves a hazardous substance (as such term is defined in 42
U.S.C. Section 9601 (14)), or a "recognized hazard" (as such term is used
under the Occupational Safety and Health Act of 1970), or (II) in any other
material respect, or (B) in receipt of any current notice alleging such a
violation; (v) there has been no "release" (as such term is defined in 42
U.S.C. Section 9601 (22)) by the Seller or, to the knowledge of the Seller,
by any predecessor in title to the Seller, of any "hazardous substance",
or any petroleum or petroleum derived product from or upon any Assets or
locations owned, operated or leased by Seller; (vi) there are no
nonconforming uses, zoning or building code variances, or any other use
restrictions or special permits not set forth in the local zoning laws
and building codes with respect to any of the real property and
improvements included in the Assets or Division locations; and (vii) the
Seller has not received notice of and has no knowledge of, and to the
knowledge of the Seller, there is no basis for (A) any pending or
contemplated condemnation, eminent domain or re-zoning proceeding affecting
any of the Assets or Division locations, (B)
any proposal or other consideration for increasing the assessed value for
state, county, local or other ad valorem or similar taxes by an amount that
would materially affect the profitability of any operations conducted from
such property, (C) any pending or contemplated proceedings or public
improvements which could or might result in the levy of any special tax or
assessment against any of the Assets or Division locations, or (D) any
outstanding requirements or recommendations by fire underwriters or rating
boards or any insurance companies or holders of any mortgages or other
security interests requiring or recommending any repairs or work be done
with reference to any of the Assets or Division locations. Set forth on
Schedule 15(d)(5) are the locations of all "underground storage tanks" (as
such term is defined in 42 U.S.C. Section 6991) located on the real
property included in the Assets or locations owned, operated or leased by
Seller for the Division, the substances currently stored therein and, to
the best of the Seller's knowledge, all substances previously stored
therein, and copies of all filings required by law in respect of
such underground storage tanks.
(6) All Necessary Properties. Except for the Excluded Assets, the
Assets constitute all of the properties which the Seller uses in connection
with the operation of the Division as presently conducted and, except as
disclosed in Schedule 15(d)(6) to this Agreement, none of the Assets is in
the possession of, owned by or are entitled to be used by any person other
than the Seller.
(e) Liabilities.
(1) General. The Seller has listed on Schedule 15(e)(1) and
delivered to the Buyer true and accurate copies of all ongoing customer and
other contracts (except outstanding vehicle rental agreements which will be
delivered at Closing), leases and agreements, (together with all
amendments, modifications and supplements thereof and waivers or consents
thereunder) that constitute a Liability.
(2) Status of Liabilities. Except as set forth in Schedule 15(e)(2)
to this Agreement: (i) neither the Seller nor, to the knowledge of the
Seller, any other party is in default in connection with any Liability;
(ii) no act or event has occurred which, with notice or lapse of time or
both, constitutes a default under any Liability with respect to the Seller
or, to the knowledge of the Seller, any other parties; (iii) there is no
basis for any claim or default under any Liability with respect to the
Seller or, to the knowledge of the Seller, any other party; (iv) to the
knowledge of the Seller, there is no outstanding notice of cancellation or
termination in connection with any Liability; (v) each Liability is the
valid, binding and enforceable agreement of the Seller and, to the
knowledge of the Seller, of each other party thereto (except as
enforceability may be limited by applicable bankruptcy and other laws
affecting creditors' rights and principles of equity), which is in full
force and effect in accordance with its terms and will not be affected by,
or require the consent of any other party to, the transactions contemplated
by this Agreement; (vi) the Seller has received no prepayments for services
to be rendered after the Closing; (vii) there is no existing dispute
involving any Liability (except with Buyer as disclosed in writing herein);
(viii) no party has any existing right of offset with respect to any
Liability, nor is there any condition or state of facts in existence which
with the passing of time or giving of notice or both would result in any
such right of offset; (ix) there are no security deposits posted in
connection with any Liability; and (x) Seller is not in default of the
Master Lease (exclusive of any Master Lease arrearages represented in the
Debt Ceiling Covenant).
(f) Inventories. The inventories of the Seller included in the Assets
consist of items which are presently usable or salable in the ordinary course of
business, are of a quantity sufficient for the conduct of business in the
ordinary course, and are not excessive or deficient, but are reasonable,
adequate and appropriate.
(g) Intangible Properties. Set forth on Schedule 15(g) is a complete and
accurate list of all patents, patent applications, trademarks, servicemarks,
corporate names, trade names, and copyrights currently in use or used in the
past five (5) years by the Seller, and other proprietary rights owned, licensed
or used by the Seller (collectively the "Intangible Properties"). Except as
provided in Schedule 15(g) to this Agreement, the Seller owns all Intangible
Properties and the Seller has and has had the sole unrestricted right to
produce, market, license and sell, lease and rent all of its Intangible
Properties. The consummation of the transactions contemplated by this Agreement
will validly transfer to the Buyer all right, title and interest to all of the
Intangible Properties and will not alter or impair any such rights. The
Intangible Properties do not infringe on any rights of any third parties, and no
claims have been asserted since December 31, 1984 by any person against the use
by Seller, or challenging or questioning the validity or effectiveness, of any
of the Intangible Properties, or any agreement relating thereto, to which Seller
is a party, and there is no valid basis for any such claim.
(h) Labor Relations. Except as set forth on Schedule 15(h) to this
Agreement, the Seller is in compliance in all material respects with all
federal, state and other governmental laws respecting employment and employment
practices, terms and conditions of employment and wages and hours, and has not
engaged in any unfair labor practice. There is no collective bargaining
agreement which is binding on the Seller.
(i) Employee Plans and Matters. Except as set forth and described in
Schedule 15(i) to this Agreement, the Seller does not maintain, nor is it
required to contribute to nor does it or its employees otherwise participate in
(and has not during the preceding five (5) years maintained, contributed to or
otherwise participated in) an "employee benefit plan" or a "multi-employer plan"
(as such terms are defined in the Employee Retirement Income Security Act of
1974, as amended ["ERISA"]), including without limitation any pension, profit-
sharing, retirement, stock purchase or stock option plan, or any other
retirement, compensation or fringe benefit plan, program or arrangement of any
kind whatsoever, whether formal or informal, providing for benefits for, or for
the welfare of, any or all of the employees or former employees of the Seller or
their dependents or beneficiaries (an "Employee Plan"). Schedule 15(i) sets
forth the name and address of each trustee or other fiduciary of each Employee
Plan, and accurately reflects the total assets, accrued benefits or liabilities,
and other obligations of any kind whatsoever of any such Employee Plan
maintained by the Seller. The Seller has fully complied with all provisions of
ERISA and any and all other laws, rules, regulations, releases and other
official pronouncements applicable to any Employee Plan. The Seller does not
have any liability for unpaid contributions to an Employee Plan, for unpaid
compensation, fringe benefits (including, without limitation, accrued sick leave
or vacation pay), severance or workers compensation as of the close of business
on the Closing not disclosed as to nature, amount and by employee on said
Schedule 15(i); provided, however, as the same constitutes a Retained Liability,
Seller need not provide such information for any employees other than employees
Buyer has indicated it will elect to retain as of the Closing. Except for
Seller's employment agreements with Sirio Maggiacomo and Teddy Fabella, the
disposition of which are addressed in Sections 19(d)(1)(i) and (ii),
respectively, Seller has no employment agreements, employment commitments, or
employment-related agreements, e.g., consulting, non-competition, or non-
solicitation agreements or, if it has same, Seller's obligations shall expressly
be deemed to constitute a Retained Liability hereunder, but Seller shall enforce
for the benefit of Buyer any non-competition or non-solicitation agreements in
its favor pertaining to the business of the Division.
(j) Litigation; Compliance with Law. In addition to and without limiting
the representations and warranties in Section 15(b) and (d) of this Agreement
with respect to the Assets and the Liabilities, except as set forth in Schedule
15(j) of this Agreement, (i) the Seller is not and since December 31, 1989 has
not been a party to, engaged in or, to the knowledge of the Seller, threatened
with, any claim, controversy, legal action, or other proceeding whether or not
before any court, quasi-judicial authority or administrative agency, any adverse
determination of which might affect the Seller by damages or losses equalling or
exceeding Ten Thousand Dollars ($10,000), its ownership or possession of any of
the Assets or its rights under any of the Liabilities, or the operation of the
Division; (ii) the Seller has not been charged since December 31, 1989 with any
violation of, or received notice or warning from any governmental authority with
respect to any failure or alleged failure to comply with, any provision of
federal, state or other applicable law or administrative regulations, any
adverse determination of which might affect Seller or the Division by damages or
losses equalling or exceeding Ten Thousand Dollars ($10,000), nor, to the
knowledge of the Seller, been under investigation with respect to any such
matter in which any adverse determination might have such adverse effect; (iii)
the Seller is not and since December 31, 1989 has not been in violation of any
law, judgment, order, decree, lien, regulation or rule of any court, quasi-
judicial authority or governmental authority applicable to it; and (iv) the
products, services, Division locations, operations and processes and business
operations produced, occupied, owned, operated or used by the Seller are and
since December 31, 1989 have been in compliance with all applicable laws
including, without limitation, the provisions of all antipollution, occupational
safety and health and environmental protection laws and all rules and
regulations promulgated under such laws.
(k) Compliance with Laws. Except as set forth on Schedule 15(k), Seller
is in compliance with all applicable laws, ordinances, statutes, rules,
regulations and orders promulgated by any federal, state or local governmental
body or agency relating to the Division and the operation of the Assets.
(l) Permits. Schedule 15(l) to this Agreement sets forth a complete and
accurate list of all occupancy certificates, licenses and permits held by the
Seller in connection with the ownership, possession, use or occupancy of any of
the Assets, leased property, or operation of the Division. Except as set forth
on Schedule 15(l), such certificates, licenses and permits are the only ones
required for such ownership, possession, use or occupancy of the Assets or such
operation of the Division. All such certificates, licenses and permits are in
full force and effect, and the Seller is in full compliance with the terms
thereof. Except as otherwise provided in Schedule 15(l), the consummation of
the transactions contemplated by this Agreement will validly transfer to the
Buyer all right, title and interest to all of said certificates, licenses and
permits and will not alter or impair any such rights.
(m) Major Suppliers and Customers. Schedule 15(m) to this Agreement sets
forth (i) the name of, and a brief description of the goods or services supplied
by, each supplier of goods or services to the Division to whom Seller paid in
the aggregate Fifty Thousand Dollars ($50,000) or more during the twelve-month
period ending December 31, 1994, and (ii) the name of, and a brief description
of the goods or services supplied to, each customer of the Division whose
purchase of goods or services from Seller during such period equalled or
exceeded five percent (5%) of the gross sales of the Division during such
period. Except to the extent set forth in said Schedule 15(m), (i) since
December 31, 1994 no change has occurred to the best of the Seller's knowledge
in the business relationship of the Seller with any customer or supplier listed
on said Schedule 15(m), the results of which would have a materially adverse
effect on the Seller or operations of the Division, and (ii) the Seller knows of
no reason why any such customer or supplier is expected to cease, or make any
material reduction in, its purchases of goods or services from, or supply of
goods or services to, the Seller (including South Seas).
(n) Transactions with Affiliates. Except as set forth on Schedule 15(n),
no Affiliate, officer, director or shareholder of the Seller, no entity that is
an Affiliate of any officer, director or shareholder of the Seller and no
relative or spouse (or relative of such spouse) who resides with such officer,
director or shareholder:
(1) owns, directly or indirectly, in whole or in part, any tangible
or intangible property that the Seller has rights in respect of such
property; or
(2) has any cause of action or other claim whatsoever against, or
owes any amount to, the Seller, except for claims in the ordinary course of
business, such as travel and other incidental advances or services, accrued
vacation pay, accrued benefits under employee benefit plans, and similar
matters and agreements existing on the date hereof; or
(3) has not borrowed from, or entered into any business transaction,
agreement, arrangement or understanding of any other nature with the
Seller.
(o) Insurance. Set forth on Schedule 15(o) is a complete list of all self
insurance programs and all property, casualty and liability insurance policies
of Seller currently in force (including, without limitation, policy numbers,
insurers and amounts), together with copies of all inspection reports concerning
the Assets or Division locations issued by any industrial risk inspector and
received by the Seller. With respect to liability insurance policies, set forth
on Schedule 15(o) is a list of all policies (whether or not currently in force)
maintained by the Seller since December 31, 1989, and except as disclosed by the
Seller on Schedule 15(o) the Seller's current policies cover claims made on an
"occurrences" basis. All insurance policies pursuant to which any such
insurance is provided are in full force and effect as of the date of Closing.
No notice of cancellation or termination of any such insurance policies has been
given to the Seller by the carrier of any such policy. All premiums due on
Seller's insurance have been paid in full.
(p) Powers of Attorney. The Seller has no powers of attorney or similar
authorizations outstanding, other than limited powers of attorney contained in
or relating to financing agreements, security agreements, deeds of trust or
other similar instruments relating to the Seller's financing, copies of all
which will be delivered pursuant to Section 15(e)(1) hereof.
(q) Brokers and Finders Fees. Neither the Seller nor anyone acting on its
behalf will claim or be owed any broker's or finder's fee in respect of the
Closing.
(r) Wholesale Tour Operators. Seller has not granted any of its wholesale
tour operators any discounts from its current prices which are indicated on
Schedule 15(r) hereof. Set forth on Schedule 15(r) is an itemized listing of
Seller's tour business revenue during the years 1993, 1994 and through June 30,
1995, together with the average daily rate generated per motor vehicle leased in
conjunction with the tour business revenue.
(s) Full Disclosure. No representation or warranty by Seller in the Basic
Documents or other statement in writing or exhibit, schedule or certificate
furnished or to be furnished to Buyer by or on behalf of Seller in connection
with the transactions thereby contemplated contains or will contain any untrue
statement of a material fact, or omits or will omit to state a material fact
necessary to make the statements contained therein not misleading in light of
the circumstances in which they are made. There is no fact known to Seller that
materially adversely affects the Assets, Liabilities or Division which has not
been disclosed in the Agreement or in the schedules or exhibits hereto or other
documents, certificates or statements furnished to Buyer pursuant hereto or
thereto.
16. REPRESENTATIONS AND WARRANTIES OF BUYER.
Buyer hereby represents and warrants to Seller on the date of this
Agreement and again on and as of the Closing:
(a) The Buyer.
(1) Status. The Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and
is qualified and in good standing in every jurisdiction where the failure
to qualify would have a materially adverse effect on its business or where
applicable law requires that it be so qualified or subjects it to any cost,
restriction or penalty for failing to qualify (including, without
limitation, assessment of taxes, fees or penalties for prior periods). The
Buyer has the corporate power to own its properties and carry on its
business as now being conducted, to execute and deliver this Agreement and
to consummate the transactions contemplated by it and otherwise to comply
with or perform its obligations under this Agreement.
(2) Powers; Authorization; Binding Nature. With respect to this
Agreement and any other agreements, certificates, instruments and documents
executed and delivered (or to be executed and delivered) by Buyer or its
officers pursuant to this Agreement (such agreements, certificates,
instruments and documents, being the "Buyer Delivered Agreements"): (i)
the Buyer has the power and authority to execute and deliver this Agreement
and the Buyer Delivered Agreements and to consummate the transactions
contemplated by them and otherwise to comply with or perform its
obligations under this Agreement and the Buyer Delivered Agreements; (ii)
the execution and delivery by the Buyer of this Agreement and the Buyer
Delivered Agreements and the consummation by the Buyer of the transactions
contemplated by them have been duly authorized by all necessary action on
the part of the Buyer in compliance with the Buyer's articles or
certificate of incorporation, as amended, its bylaws, as amended, and
applicable law; (iii) this Agreement and the Buyer Delivered Agreements
constitute valid and binding agreements of the Buyer that are enforceable
against the Buyer in accordance with their terms, except as enforceability
may be limited by applicable bankruptcy, insolvency and other laws
affecting creditors' rights generally and the discretion of the courts in
granting equitable remedies; and (iv) the other transfer and assumption
instruments included in the Buyer Delivered Agreements effectively convey
to, and vest in, the Buyer all of the Seller's right, title and interest to
and in the Assets and the Liabilities.
(3) Absence of Violations or Conflicts. The execution and delivery
by the Buyer of this Agreement and the Buyer Delivered Agreements and the
consummation by the Buyer of the transactions contemplated herein and
therein will not constitute a violation of or be in conflict with any
agreement to which the Buyer is a party or to which the Buyer is subject or
bound, under (i) any judgment, decree or order of any court or governmental
agency or (ii) any statute, law, rule, regulation, release or other
official pronouncement.
(4) No Governmental Consents Required. Except for compliance with
the HSR Act, and customary qualification and obtaining permits and licenses
necessary to conduct the business of the Division in the State of Hawaii,
no consent, approval, order or authorization of, or registration,
declaration or filing with, any domestic or foreign governmental or public
unit, agency, body or authority on the part of the Buyer is required in
connection with the execution and delivery of, consummation of any
transaction contemplated by, or performance of or compliance with its
obligations under this Agreement or the Buyer Delivered Agreements.
17. COVENANTS OF SELLER.
(a) Affirmative Covenants of Seller. Seller covenants and agrees that, so
long as this Agreement remains in full force and effect, from the date hereof to
the Closing, Seller will:
(1) Carry on the business of the Division in accordance with
applicable law and good and acceptable business practices and maintain
books, accounts and records in the usual, regular and ordinary manner;
(2) Maintain the Assets in good operating condition and repair;
(3) Maintain and preserve the business organization of the Division
and Seller's relationship with employees, customers, lessors, lenders,
vendors, concession grantors, suppliers and others having business
relationships with the Division;
(4) Perform and timely pay all of the obligations of Seller and the
Division under existing leases, contracts, commitments, agreements,
purchase orders and open accounts; provided, however, not more than forty
percent (40%) in the dollar amount of the Seller's accounts payable, as
they exist from time to time, may be extended beyond sixty (60) days from
their respective due date; provided there shall be expressly excluded from
such percentage limitation and the basis on which the same is calculated,
respectively: (i) any charges from Buyer to Seller, which must be paid at
the time they are due; and (ii) all past due indebtedness of Seller to
Buyer shall not be considered in the computation base. In all events, no
accounts payable of Seller shall be extended beyond ninety (90) days of its
respective due date;
(5) Operate business in ordinary course;
(6) Cause the conditions precedent required of Buyer set forth in
this Agreement identified in Sections 9(a), (b), (j) [except involuntary
liens, which do not constitute Liabilities and must be removed before
Closing], (o) and (p) to be satisfied including, without limitation,
remaining current on all invoices and payments due Buyer hereafter;
(7) Cooperate with Buyer as to arrangements for the transfer of the
Assets and Liabilities in an orderly fashion at Closing;
(8) Maintain in full force and effect all insurance now in effect
covering the Assets and not default with respect to any provision of, and
give all notices and make all claims under, all insurance policies in a due
and timely fashion;
(9) Upon actual knowledge, promptly give notice to Buyer of any claim
or litigation, threatened or instituted, or any other adverse event or
occurrence involving or affecting any of the Assets, Liabilities or the
Division;
(10) Make all filings that are necessary to transfer the Assets,
Liabilities and the Division to Buyer in connection with approvals or
consents of third parties and governmental agencies and obtain all
applicable waivers of preferential rights to purchase and consents to
assign and transfer the Assets;
(11) Comply with or cause to be complied with all applicable laws,
rules, regulations and orders of all federal, state and local governments
or governmental agencies materially affecting or relating to the Assets
including, without limitation, compliance with all applicable bulk sales
laws and giving of all required WARN or similar notices related to timely
giving notice of cessation of Seller's operation of the Division or closure
of such business to Division employees and Seller's own required HSR Act
filings;
(12) Through Closing permit a Buyer's oversight person to supervise
Buyer's due diligence and transition with continuous access to Seller's
operations with Seller's full cooperation;
(13) Segregate Division transactions and accounts from South Seas or
any other non-Division transactions and accounts, i.e., no commingling will
be permitted;
(14) Deliver to Buyer financial statements consisting of a balance
sheet, income statement and statement of cash flows on the fifteenth day of
each month with respect to operations conducted and concluded in the last
completed calendar month, together with an updated forecast of cash flow
and projected Net Worth through Closing. Seller shall also report to Buyer
in writing on non-monetary requirements to close, e.g. status of
shareholder and Debenture activities, as well as obtaining required
consents, on the first (1st) and fifteenth (15th) days of each month;
(15) Exercise diligent good faith efforts to obtain required
shareholder and Debenture holder consents;
(16) Exercise diligent good faith efforts to assist Buyer with third
party consents and other transition issues including, without limitation,
those required pursuant to the terms of Sections 9(d) and (m);
(17) File timely all federal, state and local tax returns and reports
including, but not limited to, income, franchise, documentary, surcharge,
excise, ad valorem, property, rental, transfer, use, Hawaii Motor Vehicle
and Tour Vehicle Surcharge Tax and other taxes with respect to its business
and properties and to pay all taxes or assessments, except for taxes being
contested in good faith by appropriate proceedings, as they become due,
including those that shall become due by reason of the Closing under this
Agreement. Seller shall pay and perform, on a timely basis, all duties and
obligations owed Buyer including, without limitation, those established
pursuant to the Master Lease and License Agreement except as modified by
Section 19(g) hereof;
(18) For purposes of this Agreement only, Seller covenants that its
total debt due and payable (not accrued, but with the recognition Master
Lease payments may be extended to and paid on the 15th day of each month
during the term hereof) to Buyer at any given point in time between now and
Closing (as hereafter described, the "Debt Ceiling Covenant") will not
exceed Three Million Two Hundred Twenty-Five Thousand Dollars ($3,225,000)
assuming assistance referenced in the March 21, 1995 letter agreement
between the parties applies, which neither party either admits or concedes
by this reference. The ceiling amount indicated of Three Million Two
Hundred Twenty-Five Thousand Dollars ($3,225,000) shall be inclusive of all
existing disputes compromised in full upon and as of April 30, 1995 as
provided in Section 19(e), but exclusive of good faith disputes hereafter
handled in accordance with the procedures described in Sections 19(a) and
(b) below; and
(19) Seller shall promptly advise Buyer in writing of any material
adverse change or the occurrence of any event which involves any
substantial possibility of a material adverse change, in the condition
(financial or other), results of operations, assets, liabilities,
businesses or prospects of Seller or the Division.
(b) Negative Covenants of Seller. Seller covenants and agrees that, so
long as this Agreement remains in full force and effect, from and after the date
hereof until the Closing, without Buyer's prior written consent, which may be
given or withheld in Buyer's sole determination, Seller will not:
(1) Take or permit any action that would materially and adversely
affect the business of the Division or the Assets or Liabilities as a
whole;
(2) Sell or transfer any of the Assets other than in the ordinary
course of business or permit or allow any of the Assets to become subject
to any lien (except by operation of law where the amount is not due),
mortgage, option, pledge, security interest or other claim or encumbrance
of any kind or character;
(3) Modify any existing lease, contract, commitment or other
agreement relating to the business of the Division or the Assets, or enter
into any new lease, contract, commitment or other agreement except with
respect to vehicle rentals in the ordinary course of business;
(4) Conduct negotiations with other parties for a sale of the
Division or South Seas nor a controlling equity interest in either, nor any
other merger, consolidation, liquidation, recapitalization, reorganization
or other extraordinary corporate transaction, involving Seller or South
Seas;
(5)(i) Grant any increase in compensation other than normal merit
increases consistent with Seller's general prevailing practices to any
officer or employee, (ii) enter into or amend or alter materially any
collective bargaining agreement or any bonus, incentive compensation,
deferred compensation, profit sharing, retirement, pension, group
insurance, death benefit or other fringe benefit plan, trust agreement, or
arrangement or any employment or consulting agreement, except as may be
required to comply with ERISA or except in the ordinary course of the
administration of its existing plans or agreements;
(6) Create, incur, assume, guarantee or otherwise become liable with
respect to any obligation for borrowed money, indebtedness, capitalized
lease or similar obligation, except in the ordinary course of business
consistent with past practices for working capital purposes, or to make any
loan or advance to or investment in any person or entity;
(7) Permit its own or South Seas' certificate or articles of
incorporation or bylaws or the indenture for the Debentures to be amended;
(8) Make changes in accounting methodologies, principles and
practices;
(9) Declare, set aside or pay any dividends, interest or other
distributions of any nature whatsoever on its securities and will not
permit there to be issued or redeemed, repurchased or otherwise acquired
any securities of Seller or South Seas (other than the anticipated
redemption of Debentures as contemplated hereby);
(10) Amend, terminate or waive any material right whether or not in
the ordinary course of business;
(11) Make or commit to make any capital expenditure, capital addition
or capital improvement;
(12) Make any loans to, or enter into any business transaction,
agreement, arrangement or understanding of any other nature with any
officer, director, shareholder, Affiliate (including, without limitation
South Seas) or any entity in which any of the foregoing has an interest,
except for transactions contemplated by this Agreement; and
(13) Make any intercompany transfers of cash or assets, except the
buying and selling of parts and used vehicles in the ordinary course of
business, consistent with the procedures outlined on Schedule 15(n) hereto.
(14) Do or omit to do any act, or permit any act or omission to act,
which would cause a material breach of any representation, warranty,
agreement or covenant made by Seller herein or materially adversely affect
the business of the Division, Assets or Liabilities.
18. COVENANTS OF BUYER.
Buyer covenants and agrees that, so long as this Agreement remains in full
force and effect, from the date hereof to the Closing, Buyer will:
(a) Conduct its due diligence review and procedures within the time
contemplated hereby and in a manner which does not unreasonably and unduly
interfere with the operation of the Division;
(b) Cooperate with Seller as to arrangements for the transfer of the
Assets and Liabilities in an orderly fashion at Closing;
(c) Comply with or cause to be complied with in all material respects all
applicable laws, rules, regulations and orders of all federal, state and local
governments or governmental agencies materially affecting or relating to the
Closing including, without limitation, timely making Buyer's HSR Act filings and
paying the required fee;
(d) Exercise diligent good faith efforts to assist Seller with third-party
consents and other transition issues including, without limitation, those
required pursuant to the terms of Sections 9(d) and (m);
(e) Do or omit to do any act, or permit any act or omission to act, which
would cause a material breach of any representation, warranty, agreement or
covenant made by Buyer herein;
(f) Inform Seller within five (5) days prior to Closing the identities of
the employees of Seller Buyer will employ upon occurrence of the Closing; and
(g) Not in connection with Buyer's preparation of the Final Closing
Balance Sheet, make changes in Seller's accounting methodologies, principles and
practices, as long as the application of such methodologies, principles and
practices would result in amounts determined in accordance with GAAP
Consistently Applied as modified or clarified by the Agreed Practices.
19. OTHER AGREEMENTS.
(a) Disputed Charges. In light of resolution of all disputes hereafter
described as to the amount of payments, charges and debt owing from Seller to
Buyer, or credits owing from Buyer to Seller, as of and as to charges, invoices
or credits relating to transactions occurring on or before April 30, 1995, in
accordance with the compromise set forth in Section 19(e) below, the parties
agree there are no outstanding disputes or disagreements which Seller and Buyer
have with respect to charges, invoices or credits which have been respectively
received by the parties and the net amount of which were unpaid as of April 30,
1995, but subject to the conditions expressed in Section 19(e) below. With
respect to any other charges, invoices or credits which Buyer and Seller
hereafter dispute in good faith (which may include disputes relating to charges,
invoices or credits on 1994 model year vehicles that have not gone through
auction), the following procedures will apply: Buyer will submit its invoices
to Seller with sufficient supporting documentation explaining the amount owed.
Seller will have ten (10) days from receipt to review and submit to Buyer the
amount, if any, that it disputes together with sufficient supporting
documentation for its position. Buyer will have ten (10) days to respond from
receipt of Seller's position, again with supporting documentation. If the
parties cannot reach agreement within five (5) days after Buyer's response, the
disputed amount will be immediately submitted for ADR and, if time permits,
resolved prior to Closing. Once an amount is determined due and owing through
ADR, it shall be immediately paid. If amounts submitted for ADR remain
unresolved as of Closing, the Closing shall not be delayed, but the amount
resolved after Closing shall be included in the post-closing adjustments to the
Final Closing Balance Sheet as specified in Section 5 hereof.
(b) ADR Procedures. Any dispute submitted for ADR will be subject to
binding resolution before a mutually agreeable private adjudicator, with a
determination to be made within fifteen (15) business days after the submission
for disputes under Section 19(a) hereof. The specific procedures applicable in
ADR for both Section 19(a) and Section 20(f)(3) claims are set forth on Exhibit
U hereto.
(c) Fleet Procedures. The following criteria shall apply concerning the
fleet issues identified below for the 1994 and 1995 model years:
(1) All eligible 1995 Model Year (MY) vehicles except the vehicles
listed below are eligible for an In Service Retention Bonus ("ISRB") of
$2.50 per day when the vehicle has been in service for 243 days (94MY:240
days, approximately eight months) retroactive to the 183rd day (94MY:180th
day) of service subject to the conditions listed below. The 1995 MY
vehicles not eligible for ISRB are: A-Bodies leased under the short term
program and Neons, A-Bodies and 1995 LWB Minivans leased under the Special
Long Term Program. This bonus will be earned if the date a vehicle is
returned to auction (the Auction Return Date) is a minimum of 243 days
(94MY:240 days) from the Lease Start Date and the vehicle is not rejected
from the Buyer Program. The $2.50 per day is payable for the number of
days in service less 183 days (94MY:180 days, representing approximately
six months) less 15 days for vehicles returned in Hawaii to a mainland
auction. For vehicles exceeding the Maximum Lease Term of 13.5 months up
to 14.5 months (15 months less 15 days), Buyer will be able to pass through
as a credit to Seller up to a maximum ISRB of $637.50 (450-180-15 days
times $2.50) per vehicle. For vehicles exceeding 14.5 months in service
Buyer agrees to pass through as a credit to Seller all ISRB received from
Chrysler, although there is no assurance that this ISRB will be received.
If a vehicle is rejected from the program for any reason or is not accepted
for return for any reason, the ISRB will not be earned. If a vehicle is
rejected after the ISRB has been paid, the ISRB Fleet Credit will be
charged back to Seller's account.
(2) Regarding transportation costs (water and surface) on 1994 model
year vehicles, Buyer pays $683.00 per vehicle, and on 1995 model vehicles,
Buyer pays as set forth in the Vehicle Return Procedures.
(3) The Lease Start Date is the date of arrival in Hawaii (as
indicated by date Seller signs bill of lading receipt), plus three (3) days
for 1995 models, and plus five (5) days for 1994 models;
(4) The Lease End Date is the Auction Return Date less 15 days for
1994 vehicles and less either 15 to 20 days for 1995 vehicles as set forth
in the Vehicle Return Procedures.
(5) With respect to cars not yet sold at auction, debits will not be
booked by Buyer until the accompanying credit, if any, has been issued.
Buyer will maintain separate records to document the status of these "off
A/R" (from Buyer's viewpoint) transactions which will not count toward the
Debt Ceiling Covenant until the respective credit has been applied and no
further credits are anticipated.
(6) Sections 19(c)(1) through (5) above are not intended to amend,
except as otherwise specifically provided above, any other applicable
provision in Buyer's 1994 or 1995 Fleet Lease Program.
(7) Except as otherwise defined herein, capitalized terms used in
this Section 19(c) shall have the meaning ascribed to them in the
respective 1994 or 1995 Fleet Lease Program sponsored by Buyer.
(8) Seller acknowledges that the Vehicle Return Procedures have not
previously been implemented by Buyer. As a consequence, and due to Buyer's
unfamiliarity with Hawaii shipping and transportation issues, Seller agrees
to consider in good faith reasonable modifications to the Vehicle Return
Procedures which do not result in Seller being responsible for shipping
costs to the mainland, nor materially diminish or change the respective
rights and obligations of the parties as reflected thereon, nor extend the
Lease End Date.
(d) Employees.
(1) Buyer's Negotiation with Seller's Emplopyees. On and after the
date hereof to the time of Closing, Seller agrees to permit Buyer to
interview the employees of Seller listed Exhibit V hereto and to agree to
permit Buyer to hire any one or more of such employees on terms that are
mutually acceptable between Buyer and each such employee. Buyer and Seller
agree that it is not a condition of Closing that Buyer successfully
negotiate the employment of any such employee. In the event Buyer elects
not to retain the services of any employee of Seller, Seller shall
specifically retain as a Retained Liability, and Buyer does not assume, any
liability for accrued salary, vacation leave, sick leave, unpaid fringes,
severance, Hawaii Dislocated Workers Act allowance or any other liability
whatsoever due in respect of any such employee.
(i) Buyer shall assume the remaining term of Seller's employment
commitment to Sirio Maggiacomo which ends December 31, 1997, which
term shall be honored by Buyer unless grounds exist for termination
with cause in which event Buyer will be excused from further
obligation; provided, however, Buyer's total obligation to accept such
commitment shall not exceed $140,000 per year as to base salary and
Buyer's standard benefits package offered to its employees. Upon the
Closing, Seller and Mr. Maggiacomo shall enter into an agreement
terminating his existing Employment Agreement with Seller entered into
effective January 1, 1995, and affirming he has no claim against Buyer
pursuant thereto or otherwise except to the extent specifically
provided herein.
(ii) With respect to Seller's employment commitment of $45,500
per year ending June 19, 1997 to Teddy Fabella (plus $200/month car
allowance in lieu of company car), Seller agrees that Buyer will not
be obligated to assume such commitment until it has had the
opportunity to interview Mr. Fabella and satisfy itself as to his
qualifications, in Buyer's sole discretion. Upon the Closing and if
Buyer has elected to retain his services, Seller and Mr. Fabella shall
enter into an agreement terminating his existing employment commitment
with Seller entered into effective May 29, 1995, and affirming he has
no claim against Buyer pursuant thereto or otherwise except for the
specific monetary amounts described above. If any offer of employment
by Buyer is extended to Teddy Fabella, it will be understood that the
same will be subject to termination for cause and without further
liability to Buyer in advance of June 19, 1997.
(e) Compromise of Existing Disputes. As of April 30, 1995, Buyer
understands that Seller had disputed approximately Eight Hundred Fifty-Eight
Thousand Dollars ($858,000) of miscellaneous charges and invoices from Buyer to
Seller. As consideration for Buyer's entering into, performing and closing this
Agreement, Seller and Buyer agree to resolve and compromise in favor of Seller a
portion of such claims as identified on Exhibit W hereto, and to resolve and
compromise in favor of Buyer a portion of such remaining claims by agreeing that
the final amount due and owing in respect of such controversies equals Two
Hundred Twenty-Five Thousand Dollars ($225,000), irrespective of whether or not
the Exhibit W sums plus Two Hundred Twenty-Five Thousand Dollars ($225,000)
equals Eight Hundred Fifty-Eight Thousand Dollars ($858,000). The compromise
amount of Two Hundred Twenty-Five Thousand Dollars ($225,000) will immediately
and through the Closing be reflected as a Liability on the Division balance
sheet. As additional consideration to Buyer for making such compromise, Seller
waives and relinquishes any right to claim any offset or other amount due and
owing, if any, in respect of reconciliation of actual transportation charges
compared to permitted allowances or other freight credits for return of all
vehicles, or Product Promotion Allowance, both with respect to Buyer's 1994
Model Year Fleet Lease Program. If, for any reason, this Agreement is
terminated before Closing, then all of the agreements made by the parties in
this Section 19(e) will likewise be deemed rescinded, with each of Seller and
Buyer permitted to pursue and prosecute claims in respect of amounts they
consider owing or to become owing as described in this Section 19(e) or
otherwise.
(f) Notice of Modification. To the extent required by applicable law,
upon execution hereof, Buyer hereby delivers to Seller a Notice of Modification
of Existing Franchise in the form of Exhibit X hereto, pertaining generally to
the agreements described in Section 19(g) below. In the event Seller elects to
rescind such amendments or modifications as set forth in accordance with the
terms of Exhibit X, then this Agreement shall be deemed immediately terminated
without further notice.
(g) Waiver of System Fees. Buyer shall permanently waive and forgive
Seller's obligation to pay system fees under the License Agreement (but not its
reporting requirements) to Buyer computed at a two percent (2%) level (but no
other fees), accruing from June 1, 1995 only until the earlier to occur of (i)
termination of this Agreement, (ii) Closing, or (iii) a cumulative waiver of
Three Hundred Thousand Dollars ($300,000) in amount of system fees has been
allowed in accordance herewith. From the point in time that the waiver
described herein is to expire until Closing or termination hereof, system fees
shall thereafter accrue and be payable as otherwise required in accordance with
the terms of the License Agreement at a two percent (2%) level. This waiver is
absolute until it ceases in accordance with the terms hereof.
(h) Reserves. All entries as to Seller's reserves in Financial Statements
including, without limitation, for accounts receivable, liability insurance and
damaged vehicle turnbacks and reconditioning, will be updated and determined in
accordance with GAAP Consistently Applied as modified and clarified by the
Agreed Practices as of the date of each respective Financial Statement. Part of
such updating is Seller's responsibility to provide information as current as
possible as of the date of the Financial Statements involved which, in the case
of each of the Unaudited Closing Balance Sheet and Final Closing Balance Sheet,
shall obligate Seller to perform all of the procedures and make all adjustments
it would customarily make with respect to the Unaudited Closing Balance Sheet
and the Final Closing Balance Sheet as if such were normal year-end audited
statements, except as otherwise set forth in Agreed Practices. Accordingly, and
subject to the Agreed Practices, irrespective of whether or not a given
procedure, evaluation, updating, review or other matter might be undertaken with
respect to reserves for preparation of a balance sheet by Seller in its ordinary
course as of October 31, 1995, or the date of Closing, such shall nevertheless
be performed, undertaken and prepared for purposes of developing the Unaudited
Closing Balance Sheet and Final Closing Balance Sheet. Notwithstanding anything
to the contrary expressed herein, in preparing the Unaudited Closing Balance
Sheet, Seller will not be required (i) to make a physical inventory of vehicles,
(ii) perform or cause to be performed an actuarial study with respect to self
insurance reserves, or (iii) make independent confirmation of assets or
liabilities.
(i) Standstill Agreement. Upon execution hereof, Seller and Buyer have
entered into the Standstill Agreement in the form of Exhibit Y hereto, and agree
to perform and observe the conditions stated therein.
20. INDEMNIFICATION.
(a) Loss. For purposes of this Agreement, "Loss" shall mean any
liability, loss, cost, claim, damage, injury, expense or payment, including
without limitation the related actual fees and expenses of attorneys,
consultants and other experts.
(b) By the Seller. The Seller agrees to indemnify, defend and hold the
Buyer harmless from, against and in respect of any Loss incurred or suffered by
the Buyer:
(1) with respect to any of Seller's contracts, obligations,
agreements or liabilities not assumed by the Buyer under this Agreement
including, without limitation, any Retained Liabilities;
(2) with respect to any Liability to the extent that such Loss arose
from or was the result of any situation or set of facts, the existence of
which would cause there to be a breach of a warranty, representation,
covenant or agreement by the Seller under this Agreement or under any
Seller Delivered Agreement;
(3) with respect to any litigation, claim or proceeding arising out
of Seller's operations prior to Closing not constituting a Liability, Off-
balance Sheet Liability or not listed on Schedule 15(j) to this Agreement;
(4) with respect to all claims, controversies, legal actions and
proceedings arising out of Seller's operations prior to Closing brought by
or on behalf of any creditor, agent, employee or former employee of the
Seller or any other third party or governmental agency that do not
constitute Liabilities;
(5) with respect to any income, sales, payroll, excise, surcharge or
other tax liabilities of the Seller whatsoever not constituting a Liability
or not disclosed in writing on Schedule 15(c) hereto (including, without
limitation, assessments, additions to taxes, deficiencies, penalties and
interest and the costs and expenses relating to examinations or audits of
the taxes of the Seller);
(6) with respect to any bulk sales, fraudulent conveyance or similar
laws or any other laws creating a lien or other adverse interest in, upon
or with respect to the Assets by reason of the transactions contemplated by
this Agreement, provided that the foregoing indemnity shall not be
applicable to claims arising out of Liabilities which have been assumed;
(7) with respect to any dispute among the Seller, its shareholders,
directors, officers, employees, agents, Affiliates and Debenture holders;
(8) for any claim asserted against Buyer with respect to any disputes
regarding goods or services which were provided or were to be provided by
Seller prior to Closing not constituting a Liability, Off-balance Sheet
Liability or not listed on Schedule 15(j) hereto;
(9) with respect to any claim by any governmental agency arising from
actions or failures to act of the Seller;
(10) with respect to any taxes, costs, fees or expenses that this
Agreement provides are to be paid or otherwise borne by the Seller;
(11) with respect to operations of Seller's business prior to the
Closing, except for the Liabilities;
(12) with respect to any claim for successor liability or similar
theory which would, pursuant to applicable law, impose liability on the
Buyer for any aspects of the Seller's operations before Closing, except to
the extent the same expressly constitutes a Liability hereunder; and
(13) without limiting, or being in any manner limited by, the
foregoing, as a result of misrepresentation, breach of a representation,
warranty, covenant or agreement on the part of the Seller under this
Agreement or the Seller Delivered Agreements.
(c) By the Buyer. The Buyer agrees to indemnify, defend and hold the
Seller harmless from, against and in respect of any Loss incurred or suffered by
the Seller:
(1) with respect to any Liability except to the extent that such Loss
arose from or was the result of any situation or set of facts in existence
on the Closing, the existence of which would cause there to be a breach of
a warranty, representation, covenant or agreement by the Seller under this
Agreement or the Seller Delivered Agreements;
(2) With respect to Buyer's operation of the Division after Closing,
except for the Retained Liabilities and except to the extent that any such
Loss arose from or was the result of any situation or set of facts in
existence on the Closing, the existence of which would cause there to be a
breach of a warranty, representation, covenant or agreement by the Seller
under this Agreement or the Seller Delivered Agreements; and
(3) without limiting or being in any manner limited by the foregoing,
as a result of a misrepresentation, breach of a representation, warranty,
covenant or agreement on the part of the Buyer under this Agreement or the
Buyer Delivered Documents.
(d) General. Any right of indemnity of any party pursuant to this
Agreement shall be in addition to and shall not operate as a limitation on any
other right to indemnity of such party pursuant to this Agreement, any document
or instrument executed in connection with the consummation of the transaction
contemplated hereby, or otherwise under applicable law.
(e) Limitations. The foregoing indemnification obligations are subject to
the following:
(1) Time Limitations. The obligation of indemnity shall be
extinguished unless the party claiming the right to be indemnified notifies
the indemnitor of facts which it thinks are the basis for indemnification
hereunder on or before the third (3rd) anniversary of the Closing;
provided, however, that notwithstanding the foregoing, no time deadline
shall apply to any willful or intentional breach of or failure to comply
with any representation, warranty, covenant or agreement in this Agreement.
(2) Deductible. Neither the Seller nor the Buyer shall have any
liability whatsoever under this Section 20 unless and until, and only to
the extent that, the total Losses for which the Seller on the one hand, or
the Buyer, on the other hand, would otherwise be liable, exceed One Hundred
Thousand Dollars ($100,000) in the aggregate; provided, however, that the
minimum Loss specified herein shall not apply to any willful or intentional
breach of or failure to comply with any representation, warranty, covenant
or agreement in this Agreement or the Seller Delivered Agreements or Buyer
Delivered Agreements, respectively, nor as to any Loss sustained by Buyer
relating to any Retained Liabilities.
(3) Application of Limitations. All limitations described in this
Section 20 shall apply not only to any right of contractual indemnity
established hereunder, but also for breach of representation, warranty,
covenant or agreement by either party hereto, or other remedy available
under applicable law.
(f) Claims by Parties Hereto. All claims for indemnification under this
Agreement shall be resolved in accordance with the following procedures:
(1) Notice of Facts Forming Basis for Claim. Notice must be given of
facts which are the basis of an indemnification claim under this Section 20
within the time periods required by Section 20(e)(1).
(2) Third Party Claims; Right to Contest. With respect to any Loss
based upon an asserted liability or obligation to a person or entity not a
party to this Agreement for which either the Seller or the Buyer claims the
right to be indemnified pursuant to this Section 20, the Buyer or the
Seller, as the case may be, shall give prompt (within the time required for
the filing of any responsive pleading in the case of litigation) written
notice to the other party (the "Notice of Third Party Claim") even though
Section 20(f)(1) above might permit a later notice. In no event shall the
provisions of this Section 20(f) reduce or lessen the obligations of the
Seller or the Buyer under this Section 20(f)(2), if the party furnishing
the Notice of Third Party Claim shall respond to a third party claim if
such action is reasonably required to minimize damages or avoid a
forfeiture or penalty or because of a requirement imposed by law. The
party furnishing the Notice of Third Party Claim may not settle such claims
or actions without the consent of the other party to this Agreement, which
consent shall not be unreasonably withheld.
(3) Notice of Fixed or Determined Loss. When a Loss is paid or is
otherwise fixed or determined, then the Buyer or the Seller claiming
indemnification under this Agreement shall give the other notice of such
Loss, in reasonable detail and specifying the amount of such Loss, and the
sections of this Agreement upon which the claim for indemnification for
such Loss is based. If the recipient of the notice desires to dispute such
claim, it shall, within thirty (30) days after notice of the claim of Loss
against pursuant to this Section 20(f)(3) is deemed received, give
counternotice, setting forth the basis for disputing such claim, to the
Buyer or the Seller, as the case may be. If no such counternotice is given
within such thirty (30) day period, then such Loss shall be promptly
satisfied. If a counternotice is given, the parties shall pursue ADR in
accordance with Section 19(b) hereof.
(g) Survival. The representations and warranties, as well as covenants
and agreements performable after Closing, made by the parties in this Agreement
or in any certificate, exhibit, schedule or other document executed and
delivered by a party pursuant to, or in connection with, this Agreement, shall
expressly survive the Closing. No investigation made by the Buyer or the Seller
nor any disclosure made after the date of this Agreement shall affect the
enforceability of, or the remedies available under this Agreement with respect
to the breaches of, such representations, warranties, covenants, agreements and
undertakings or their survival.
21. TERMINATION.
(a) Termination Rights. The obligations of Seller and Buyer under this
Agreement can be terminated and the transactions contemplated by it abandoned
upon the following conditions, or when authorized under applicable law, with
notice of termination to be furnished in writing:
(1) By Buyer as provided in Section 21(d) below;
(2) Pursuant to the mutual written agreement of Seller and Buyer;
(3) By Buyer, if any of the conditions to its obligation to
consummate the Closing are not satisfied or waived by Buyer as of the
Closing;
(4) By Seller, if any of the conditions to its obligation to
consummate the Closing are not satisfied or waived by Seller by the
Closing;
(5) By Seller or Buyer at any time on or before the end of Buyer's
45-day due diligence period described in Section 8, for failure to accept
or otherwise reach agreement upon an Agreed Practice proposed by the other
party including, without limitation, any Agreed Practice pertaining to the
manner in which Seller's reserves in the Financial Statements are to be
computed;
(6) By Seller or Buyer as provided in Section 4(c)(2) above; and
(7) The failure of the Closing to have occurred for whatever reason
by November 30, 1995 (unless extended by mutual written agreement of the
parties), in which event the Agreement shall automatically terminate.
(b) Assistance Claim. In the event of termination of this Agreement, the
passage of time shall not preclude Buyer in its discretion from asserting that
the assistance referenced in the March 21, 1995 agreement between the parties
has failed, with Buyer being entitled to claim the increased amounts due if such
assistance is determined to have failed.
(c) Contract Termination Claims. Upon termination of this Agreement, the
respective rights and liabilities of Buyer and Seller with respect to the Master
Lease and License Agreement shall be governed by the terms of such agreements
and the Standstill Agreement.
(d) Effect of Termination. It is agreed by Seller that Buyer has the
unqualified right to terminate this Agreement and rescind this transaction, in
addition to any other time expressly provided herein or by applicable law, in
the following circumstances or at the times indicated below: (i) upon
completion of or during its due diligence procedures and review; (ii) upon
failure to have agreed upon the exhibits by the time required herein; (iii) upon
non-acceptance of the content of Seller's schedules (or exhibits required to be
updated) hereto during or by conclusion of the due diligence period, or upon
updating of such schedules (or exhibits required to be updated) as required
hereby periodically (with Buyer to accept or reject same within five (5) days of
receipt by Buyer's hereafter designated representative, with silence being
deemed acceptance) and at the Closing; (iv) upon failure of a condition to the
obligation of Buyer to close hereunder, or breach of a representation, warranty,
covenant or agreement by Seller pursuant hereto; or (v) upon exercise by Seller
of a right to rescind the amendment to its License Agreement as described on
Exhibit X hereto (as to all the foregoing, whether expressly enumerated, or
described before the colon appearing in the fifth (5th) line of this Section
21(d), the "Permitted Termination Events"); this Agreement may be terminated and
rescinded upon Buyer's written notice with the parties restored to their
respective positions existing before entering into this Agreement; provided, (x)
Buyer shall be entitled to retain all payments made by Seller pursuant to
existing agreements, and (y) the pledge of the South Seas stock shall remain in
place to the extent at such time amounts that are secured by the pledge pursuant
to Section 7(a)(1), 7(a)(2), or 7(a)(3) are accrued or due and payable by Seller
to Buyer (or are subject to good faith disputes in accordance with Section 19(a)
and (b) hereof). As a material inducement to Buyer to enter into this
Agreement, and particularly considering the similar nature of such claims which
have heretofore been raised in the litigation which is the subject of the
Standstill Agreement and the fact that the exhibits and schedules are to be
developed and modified from time to time after the date hereof, Seller hereby
irrevocably and unqualifiedly waives any and all right to assert any challenge,
claim or objection to Buyer's exercise of its right to terminate this Agreement
for any reason at, during or upon the Permitted Termination Events, whether or
not with justification, and including, without limitation, any assertion by
Seller that Buyer's termination constitutes breach of any statutory or implied
covenant of good faith, fair dealing or other duty, or as constituting any type
of interference with prospective business advantage, contractual or business
relationship, discrimination, economic duress or any other similar or dissimilar
tort, breach of contract or any other theory of recovery whatsoever.
22. REMEDIES.
(a) In addition to the indemnity rights of Buyer and Seller under Section
20 of this Agreement and remedies available under applicable law, Buyer and
Seller shall each have the following rights and remedies:
(1) Buyer may foreclose its security interest in the South Seas stock
to the extent permitted by this Agreement, the Stock Pledge Agreement or
the Agency Agreement.
(2) Either party may recover money damages for breach of
representations, warranties, covenants, agreements and indemnities after
the Closing or for failure or refusal to close after satisfaction (or
waiver by the party entitled to the satisfaction) of all conditions
precedent to the obligation of both parties to the Closing.
(3) For breach of representations, warranties, covenants, agreements
and indemnities before Closing, the non-defaulting party will be entitled
to rescission with the parties each being restored to their respective
status before the Agreement, subject to Section 21, with the ability to
proceed with the litigation pending on the date of this Agreement or any
other remedy; provided, however, that the passage of time shall not
preclude Buyer in its discretion from asserting upon exercise of a
rescissionary remedy that the assistance referenced in the March 21, 1995
agreement between the parties has failed, with it being entitled to claim
the increased amounts due it from Seller if such assistance is determined
to have failed.
(4) For failure or refusal to close after fulfillment by both parties
of all their respective conditions to Closing, the enforcing party may seek
specific performance of this Agreement. A party may also seek specific
performance for breach of a covenant or agreement hereunder. The parties
irrevocably agree in the circumstances where specific performance is
authorized hereunder that there is no adequate remedy available at law.
(5) Upon breach of representation, warranty, covenant or agreement by
Seller under this Agreement, Buyer may terminate this Agreement whereupon
the respective rights and liabilities of the parties with respect to the
Master Lease and License Agreement shall be subject to the terms of such
agreements and the Standstill Agreement.
(6) For violation of the PISC Noncompetition Agreement or Robin
Noncompetition Agreement, Buyer shall be entitled to injunctive relief.
(b) None of the foregoing rights or remedies shall be exclusive or in
duplication of any other right or remedy under this Agreement, those available
under applicable law, or the indemnity rights and remedies of Buyer and Seller
under Section 20.
(c) Nothing in this Agreement shall be construed to, nor shall applicable
law be deemed for purposes of this Agreement to allow, a party to sue for money
damages for breach of a representation, warranty, covenant, agreement or
indemnity before the Closing; provided, however, this limitation will not
preclude Buyer from maintaining any action against Seller for a violation by
Seller hereafter of its obligations under the Master Lease, License Agreement or
any other contract between such parties except as limited by the Standstill
Agreement.
(d) If, for any reason, the Closing fails to occur, nothing in this
Agreement shall prevent the parties from asserting their respective positions in
litigation pending prior to the execution hereof, all in accordance with the
Standstill Agreement and all amendments thereto.
(e) In any action brought to enforce any provision hereof or any Basic
Document, the prevailing party shall be entitled to its reasonable attorney's
fees in addition to the relief it is seeking.
23. GENERAL PROVISIONS.
(a) Further Assurances. At any time and from time to time after the
Closing, at the request of Buyer and without payment of any further
consideration, Seller agrees to execute, acknowledge and deliver all such
further assignments, conveyances and transfer documents, in form and substance
reasonably acceptable to Seller, and other assurances as reasonably may be
requested by Buyer for the purpose of better assigning, conveying and
transferring to Buyer, or reducing to Buyer's possession, any or all of the
Assets or to enable Buyer to exercise and enjoy the rights and benefits with
respect thereto. At any time and from time to time after the Closing, at the
request of Seller and without payment of any further consideration, Buyer agrees
to execute, acknowledge and deliver all such further assumptions and documents,
in form and substance reasonably acceptable to Buyer, and other assurances as
reasonably may be requested by Seller for the purpose of better evidencing the
assumption by Buyer of the Liabilities.
(b) Notices. Any notice or other communication required or permitted to
be given hereunder shall be in writing and shall be deemed to have been duly
given on the date of receipt, if served personally on the party to whom notice
is to be given by actual in person delivery, or if sent by facsimile (confirmed
by transmission receipt), telegraph or similar means of communication, or on
receipt, refusal, or as of the first attempted date of delivery if unclaimed
after mailing, when mailed to the party to whom notice is to be given, by
certified U.S. mail, return receipt requested, postage prepaid and properly
addressed as follows:
To Seller: Pacific International Services Corp.
1600 Kapiolani Boulevard, Suite 825
Honolulu, Hawaii 96814
Attention: Alan M. Robin
Title: President
FAX: (808) 926-4255
With copies to: H. Wayne Cooper, Esq.
Doerner, Saunders, Daniel & Anderson
320 South Boston, Suite 500
Tulsa, Oklahoma 74103
FAX: (918) 591-5362
J. George Hetherington, Esq.
Torkildson, Katz, Jossem, Fonseca,
Moore & Hetherington
700 Bishop Street, 15th Floor
Honolulu, Hawaii 96813-4187
FAX: (808) 523-6001
To Buyer: Dollar Systems, Inc.
5330 East 31st Street
(or P.O. Box 33167, 74153-1167)
Tulsa, Oklahoma 74135
Attn: Gary L. Paxton
Title: President
FAX: (918) 669-3001
With copies to: Stephen W. Ray, Esq.
Hall, Estill, Hardwick, Gable,
Golden & Nelson, P.C.
320 South Boston, Suite 400
Tulsa, Oklahoma 74103
FAX: (918) 594-0505
John R. Myrdal, Esq.
Case Myrdal Bigelow & Lombardi
737 Bishop Street, Suite 2600
Honolulu, Hawaii 96813
FAX: (808) 523-1888
Each party shall be entitled to specify a different person or address by giving
notice as aforesaid to the other.
(c) Entire Agreement. This Agreement, together with other Basic Documents
and the exhibits and schedules attached hereto, and as the exhibits and
schedules may be amended or supplemented from time to time, constitute the
entire agreement between the parties with respect to the subject matters hereof
and supersede all prior and contemporaneous agreements, understandings,
negotiations and discussions, whether oral or written, and may not be altered or
amended except in writing signed by the parties hereto. No provision hereof is
intended to confer upon any person or entity other than the parties hereto any
right, benefit or privilege of the parties described hereunder.
(d) Time of Essence; Computation of Time. In all matters under this
Agreement, time is of the essence. Whenever the last day for the exercise of
any privilege or the discharge of any duty under this Agreement shall fall upon
Saturday, Sunday or any federal holiday, the party exercising or discharging
shall have until 5:00 p.m. its local time on the next succeeding regular
business day to exercise such privilege or to discharge such duty; provided,
however, that the foregoing shall not be deemed to extend the effect of the 24
hour period described in the Standstill Agreement to 5:00 p.m. local time on
such next succeeding regular business day where 24 hours would lapse earlier,
provided in all events the affected party shall have at least until 11:00 a.m.
local time on such day.
(e) Binding Effect; Assignment. All of the terms and provisions of this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective permitted transferees, successors and assigns;
provided, however, that neither party hereto may assign its rights or
obligations hereunder without the prior written consent of the other, except
Buyer may assign its rights and obligations to a subsidiary or lower tier
subsidiary.
(f) Applicable Law; Venue. This Agreement shall be governed, construed
and enforced in accordance with the laws of the State of Hawaii. Each party
hereto agrees that any legal action or proceeding against it and arising out of
or relating to this Agreement, or any of the other Basic Documents, except the
Stock Pledge Agreement, Agency Agreement, Holdback Agreement or Standstill
Agreement (collectively, the "Oklahoma Agreements"), shall be instituted in the
United States District Court for the District of Hawaii. By execution and
delivery of this Agreement, each party irrevocably submits to the jurisdiction
of such courts in any such action or proceeding as to the Basic Documents other
than the Oklahoma Agreements and waives any objections it may have with respect
to such jurisdiction and venue therein. The foregoing shall not limit the
rights of any party hereto to bring any legal action or proceeding or to obtain
execution of judgment against any party in any appropriate jurisdiction.
(g) Amendments. No supplement, modification or waiver of this Agreement
shall be binding unless executed in writing by the parties. No waiver of any of
the provisions of this Agreement shall be deemed or shall constitute a waiver of
any other provision hereof, nor shall such waiver constitute a continuing waiver
unless otherwise expressly provided.
(h) Waivers. No waiver by any party, whether express or implied, of any
right under the provisions of this Agreement shall constitute a waiver of such
party's rights at any other time.
(i) Severability. If a court of competent jurisdiction declares that any
provision of this Agreement or any exhibit hereto is illegal, invalid or
unenforceable, then such provision shall be modified automatically to the extent
necessary to make such provision fully enforceable. If such court does not
modify any such provision as contemplated herein, but instead declares it to be
wholly illegal, invalid or unenforceable, then such provision shall be severed
from this Agreement and such declaration shall in no way affect the legality,
validity and enforceability of the other provisions of this Agreement to which
such declaration does not relate. In this event, this Agreement shall be
construed as if it did not contain the particular provision held to be illegal,
invalid or unenforceable, the rights and obligations of the parties hereto shall
be construed and enforced accordingly, and this Agreement shall remain in full
force and effect.
(j) Press Release. Within two (2) business days of initial delivery by
Seller of complete and conforming schedules hereto, Buyer shall, upon
consultation with Seller, issue a press release in a form satisfactory to it,
generally to the effect that, subject to its due diligence, it intends to retain
the managers, supervisors and other key personnel necessary to continue a five
(5) island vehicle rental operation and to honor all customer commitments
constituting Liabilities. Nothing herein shall prevent Seller, upon prior
consultation with Buyer, from issuing such press release as it deems necessary
to comply with its obligations under federal and state securities laws.
(k) Expenses. Each party shall bear its own cost and expenses in
connection with the negotiation, preparation and execution of this Agreement.
(l) Confidentiality. The Seller and the Buyer agree that the terms and
conditions of this Agreement and of the transactions contemplated by it are to
remain confidential, except to the extent that either party determines it is
necessary under applicable law to disclose such terms and conditions including,
without limitation, disclosures that may be required in light of Seller's status
as a publicly held reporting company with the Securities and Exchange Commission
and also expressly including conveyancing and instruments relating to liens and
encumbrances recorded in the public records.
(m) Construction. Headings provided herein are for the reference of the
parties only, and shall not be used as an aid to construction of this Agreement.
For purposes of enforcement hereof, this Agreement shall be construed as if
having been prepared jointly by the parties hereto, and not by one party to the
exclusion of the other, to avoid any construction against the party drafting the
Agreement.
(n) Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be considered an original, and all of which
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered the day and year first above written.
PACIFIC INTERNATIONAL SERVICES CORP.,
a California corporation
By: /s/ Alan M. Robin
Alan M. Robin, President
DOLLAR SYSTEMS, INC.,
a Delaware corporation
By: /s/ Gary L. Paxton
Gary L. Paxton, President
/s/ Alan M. Robin
Alan M. Robin, joining herein
personally to affirm his obligations
pursuant to Sections 3(b) and (c)
hereof
EXHIBIT INDEX
Exhibit
Agency Agreement A
Agreed Practices B
Detailed Identification of Assets C
Assumption Agreement D
Bill of Sale E
Dismissal Agreement F
Dollar General Release G
Specified Excluded Assets of Seller H
Detailed Identification of Liabilities I
Off-balance Sheet Liabilities J
Holdback Agreement K
Specified Retained Liabilities of Seller L
PISC General Release M
PISC Noncompetition Agreement N
Robin General Release O
Robin Noncompetition Agreement P
Stock Pledge Agreement Q
Vehicle Return Procedure R
Commitment of South Seas S
Solvency Certificate T
ADR Procedures U
Employees of Seller V
Existing Disputes W
Notice of Modification of Existing Franchise X
Standstill Agreement Y
