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FORM 10-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
[X] ANNUAL REPORT UNDER SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended June 1, 1999
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Commission file number 1-11276
DISCOUNT AUTO PARTS, INC.
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(Exact name of registrant as specified in its charter)
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FLORIDA 59-1447420
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(State or other jurisdiction of incorporation) (IRS Employer Identification No.)
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4900 Frontage Road South, Lakeland, Florida 33815
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(Address of principal executive offices) (Zip code)
(941) 687-9226
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(Registrant's telephone number)
Securities registered pursuant to Section 12(b) of the Act:
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Name of Each Exchange
Title of Each Class on Which Registered
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Common Stock, Par Value $.01 Per Share New York Stock Exchange
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Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the past 12 months (or for such shorter period that the registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ ]
State the aggregate market value of the voting stock held by
non-affiliates of the registrant. Approximately $203,000,000
as of August 13, 1999 (based upon the closing sales price
reported by the New York Stock Exchange and published in the
Wall Street Journal on August 13, 1999)
Indicate the number of shares outstanding of each of the registrant's
classes of common equity, as of the latest practicable date:
Common Stock, par value $.01 per share -- 16,690,555 shares as of
August 13, 1999
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Documents incorporated by reference:
Part II Annual Report to Stockholders for the Fiscal Year Ended June 1,
1999.
Part III Definitive Proxy Statement for the Company's Annual Meeting of
Stockholders presently scheduled for October 5, 1999.
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DISCOUNT AUTO PARTS, INC.
ANNUAL REPORT ON FORM 10-K
for the
YEAR ENDED JUNE 1, 1999
TABLE OF CONTENTS
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PART I...................................................................................................................4
ITEM 1. BUSINESS...........................................................................................4
ITEM 2. PROPERTIES........................................................................................14
ITEM 3. LEGAL PROCEEDINGS.................................................................................15
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY-HOLDERS...............................................15
PART II.................................................................................................................15
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS.............................15
ITEM 6. SELECTED FINANCIAL DATA...........................................................................16
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS.............16
ITEM 7(A). QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK........................................16
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.......................................................16
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS
ON ACCOUNTING AND FINANCIAL DISCLOSURE............................................................16
PART III................................................................................................................16
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT................................................16
ITEM 11. EXECUTIVE COMPENSATION............................................................................17
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
AND MANAGEMENT..........................................................................................................17
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS....................................................17
PART IV.................................................................................................................17
ITEM 14. EXHIBITS, FINANCIAL STATEMENTS, FINANCIAL STATEMENT
SCHEDULES AND REPORTS ON FORM 8-K.................................................................17
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PART I
ITEM 1. BUSINESS
GENERAL
Discount Auto Parts, Inc. ("Discount Auto Parts" or the "Company") is
one of the Southeast's leading specialty retailers and suppliers of automotive
replacement parts, maintenance items and accessories to both "Do-It-Yourself"
("DIY") consumers and professional mechanics and service technicians. As of June
1, 1999, the Company operated a chain of 558 Discount Auto Parts stores, with
409 stores located throughout Florida, 83 stores in Georgia, 32 stores in
Mississippi, 18 stores in Alabama, 12 stores in Louisiana, and four stores in
South Carolina. As of June 1, 1999, 122 of the 558 stores provided commercial
delivery service. Each Discount Auto Parts store carries an extensive line of
brand name replacement "hard" parts, such as starters, alternators, brake pads,
brake shoes and water pumps, for domestic and imported cars, vans and light
trucks, as well as brand name maintenance items and accessories. The Company is
not in the business of selling tires or performing automotive repairs or
installations.
Discount Auto Parts has achieved significant growth in each of its five
latest fiscal years. Net sales have increased to $511.5 million in fiscal 1999
from $253.7 million in fiscal 1995 and income from operations has increased to
$55.9 million in fiscal 1999 from $30.9 million in fiscal 1995. The number of
stores has increased to 558 as of the end of fiscal 1999 from 208 at the
beginning of fiscal 1995.
The Company's success has resulted primarily from implementing clear and
effective operating and growth strategies. The Company's operating strategies
include building a highly knowledgeable and motivated work force, developing
customers for a lifetime, attaining leading market share in every one of its
existing markets and utilizing advanced information systems. With respect to
growth strategies, the Company believes in continuing its emphasis on new store
openings, standardizing new store formats and constantly seeking to improve
merchandising concepts. Effectively executing these strategies has helped the
Company provide customers with superior service, value and parts selection at
conveniently located, well-designed stores. The continued implementation and
expansion of a commercial delivery program is also part of the Company's future
growth strategy.
In 1971, Discount Auto Parts was founded with a single 800 square foot
store in Winter Haven, Florida by Herman Fontaine, his son, Denis L. Fontaine,
and other members of the Fontaine family. Since the Company's inception, members
of the Fontaine family, including Herman Fontaine, Denis L. Fontaine and Peter
J. Fontaine, managed the Company and played key roles in formulating and
carrying out its business strategies. Herman Fontaine served as President from
1972 until 1978 and as the Chairman of the Board from 1972 until 1986, at which
time he became Chairman Emeritus. Although he no longer serves as an executive
officer or director, the Company continues to have the benefit of Herman
Fontaine's advice and counsel. Denis L. Fontaine assumed the roles of Chief
Executive Officer and President in 1978 and held such positions until his death
in June 1994. Peter J. Fontaine, who has been with the Company for over 22 years
and previously served as Chief Operating Officer, was elected as President and
Chief Executive Officer in 1994. Effective February 1, 1997, William (Bill) C.
Perkins, who has been with the Company for over 16 years and served as Chief
Financial Officer from 1992 to 1996, assumed the positions of President and
Chief Operating Officer while Peter J. Fontaine remained Chief Executive
Officer.
The Company completed an initial public offering in August 1992 raising
approximately $64.1 million in net proceeds and a secondary offering in October
1995, which generated net proceeds to the Company of $75.4 million. The Fontaine
family continues to control approximately 46% of the Company's outstanding
stock.
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INDUSTRY OVERVIEW
The automotive aftermarket consists of products and services purchased
for motor vehicles after the original sale of the vehicles such as accessories,
maintenance and repairs, replacement parts, fuel, etc. According to the
Automotive Parts and Accessories Association (APAA), an industry group that
compiles statistics on aftermarket activity, in 1995 the market for domestic
automotive aftermarket products and services represented approximately $188
billion in annual sales. The Automotive Service Association (ASA) reports that
total aftermarket hard parts sales for all vehicles were $97.8 billion in 1996.
Analysts estimate the overall automotive aftermarket earnings growth rate
between 2-4%, and retail auto chain growth rate to be between 5-8%. Industry
margins have shown resiliency, with gross margins trending upward and operating
margins holding steady. The Company believes there are several main items
driving performance in the automotive aftermarket industry. These include (i)
increases in the average number of miles driven per vehicle each year, (ii)
increases in the average age of cars on the road, and (iii) an increase in the
average ticket price of repair services.
The automotive aftermarket is consolidating as national and regional
specialty retail chains gain market share at the expense of smaller independent
operators and less specialized mass merchandisers. Automotive specialty retail
chains with multiple locations enjoy competitive advantages in purchasing,
distribution, advertising and marketing compared to most small independent
retailers. The significant increase in the variety of domestic and imported
vehicle makes and models has made it difficult for smaller independent retailers
and less specialized mass merchandise chains to maintain inventory selection
broad enough to meet customer demands. This has created a competitive advantage
for automotive specialty retailing chains that have the financial resources and
distribution capability to stock and deliver a broad inventory selection to meet
customer needs.
The retail industry is divided into two segments: the DIY segment and
the professional installer segment. The professional installer market's relative
size and its perceived higher growth rate has caused the top DIY retailers to
enter the repair sector by opening service bays or supplying parts to the
professional installer market. The repair sector of the market is expected to
provide substantial growth opportunities for the top DIY retailers. The Company
believes this has created a competitive advantage for those automotive specialty
retailing chains, such as Discount Auto Parts, that have the financial resources
and distribution capability to stock and deliver an inventory selection broad
enough to meet customer needs.
OPERATING STRATEGIES
BUILDING THE TEAM
Guided by the principle "First build the team, then the team will build
the business," Discount Auto Parts has made a commitment to building and
retaining employees who are highly motivated and knowledgeable team players. The
Company provides extensive formal and on-the-job team-building training programs
that focus on providing superior customer service, automotive parts knowledge,
selling skills, store operational procedures and personal development. Financial
incentives and stock ownership are also an important element of the Company's
team building focus. As a result of this employee-focused strategy, the Company
has one of the highest sales per employee in its industry. In addition,
management believes that the Company has one of the lowest employee turnover
rates in the industry. The low turnover rate tends to lead to superior customer
service and product knowledge, which are considered to be key factors in
attracting customers in the DIY automotive industry.
The CEO, Peter Fontaine, has built a strong and knowledgeable management
team. The management team has significant experience in all aspects of the
Company's operations. There are 47 members in the senior management team,
including 29 Division Managers. The team members have an average of 12 years of
experience with the Company. The team is profit-oriented and growth-minded and
has a solid understanding of the automotive aftermarket industry based on their
many years of experience.
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DEVELOPING CUSTOMERS FOR A LIFETIME
The Company believes that the attributes most valued by DIY consumers
are superior customer service, convenient and accessible neighborhood locations,
broad product selection and competitive everyday low prices. In an effort to
develop DIY customers for a lifetime, the Company is committed to developing,
maintaining and improving these key value drivers.
SUPERIOR CUSTOMER SERVICE
Customer service has enabled the Company to develop a loyal customer
base and become a market leader. Customer service is enhanced by in-store
computerized catalogs to assist in the selection of parts, liberal return
policies, and lifetime warranties on certain parts. The stores also offer free
testing of starters, alternators, and batteries; battery charging; installation
assistance for batteries and windshield wipers; and use of specialty tools for
do-it-yourself installation.
The Company's special order program (the "S.O. Program") is designed
with the goal of assuring the broadest availability of its merchandise at each
of the Company's stores. The S.O. Program provides the Company on-line access to
numerous third party warehouse distributors with which the Company has a
relationship. If merchandise is unavailable at a particular store or one of the
Company's express warehouses, Company team members can order an item on-line and
generally have it available for the customer within 24 hours.
The Company's stores are open seven days per week, 364 days per year,
typically from 8 a.m. to 9 p.m. with some higher volume stores having extended
hours in order to better serve the DIY customer.
CONVENIENT AND ACCESSIBLE NEIGHBORHOOD LOCATIONS
Locating stores at sites that are convenient and accessible to its
customers is an essential part of the Company's customer service philosophy. The
Company believes that over 50% of its customers view convenience and
accessibility as the number one driver in choosing an automotive parts store.
Given this customer priority, one of the Company's strategies is to cluster
stores in neighborhood locations in order to offer its customers increased
convenience and accessibility. The Company's strategy is generally to draw
customers from a 1.5 to 2 mile radius while many of its competitors attempt to
draw customers from a larger radius. Management believes the Company's
relatively low cost structure gives it the ability to profitably operate stores
in close proximity, thereby offering customers more convenience than most of its
competitors. In addition, the Company attempts to build new stores in locations
that are easily accessible from a number of major roadways and arteries.
BROAD PRODUCT SELECTION
The Company offers a wide selection of automotive replacement parts,
maintenance items and accessories designed to cover a broad range of specific
vehicle applications. Depending on the store format, a typical Discount Auto
Parts store generally carries between 15,000 and 22,000 SKU's. The Company's
operating strategy emphasizes automotive replacement hard parts. To support this
strategy, the Company has generally in the past, and specifically in fiscal
1999, substantially increased the number of replacement hard parts carried in
its stores.
Replacement hard parts sold at the Company's stores include brake shoes,
brake pads, belts, hoses, starters, alternators, batteries, shock absorbers,
struts, CV half shafts, carburetors, transmission parts, clutches, electronic
components, and suspension, chassis and engine parts. The Company also offers
complete engines that are stocked at its distribution center. Other products
include maintenance items, such as oil, antifreeze, brake and power steering
fluids, engine additives, car paints, protectants and waxes; and accessories,
such as floor mats, seat covers and car stereos and speakers.
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One of the Company's strategies is to carry a wide selection of
different automotive replacement parts as opposed to having multiple brand names
and SKUs for any one part. As a result, the Company believes that its product
selection satisfies a broader range of DIY demands with fewer SKUs than the
product selection of its competitors. The Company emphasizes brand names and
other high quality products among broad product lines.
PRICE LEADERSHIP
The Company utilizes an everyday low price strategy with prices that are
generally at or below those of its competitors in the market area served by each
store. The Company's depot stores generally offer even lower pricing than its
mini depot stores. Along with everyday low prices, the Company often runs
special promotional pricing on selected products. The Company's name "Discount
Auto Parts" reinforces the Company's pricing strategy. The Company promotes both
its name and its pricing strategy through newspaper, direct mail, radio and
television advertisements, and through in-store promotional signage and
displays. Most of the Company's stores have a freestanding highly visible pole
or marquee sign promoting special prices and customer service programs.
In an effort to offer the lowest price to its customers, the Company
continually seeks to reduce the purchasing and distribution costs of its
merchandise. The Company achieves such cost reductions by working with its
vendors to secure product cost savings and other benefits, making volume
purchases, achieving efficiencies in its distribution system, and achieving
higher productivity at the store level. The Company believes its ability to
control costs, and thereby maintain price leadership, is a key advantage over
its competitors.
LEADING THE DIY MARKET
The Company's goal is to be the leading DIY specialty retailer of
automotive parts and accessories in each of its existing markets and prospective
markets. The Company believes its ability to achieve market leadership is
dependent upon successful implementation of its operating strategies and careful
selection of new markets and store sites. The Company believes that market
leadership provides higher consumer name recognition and economies of scale in
purchasing, distribution, advertising, marketing and management.
The Company is the largest DIY specialty retailer of automotive parts
and accessories in Florida. As of June 1, 1999, 409 (73%) of the Company's 558
stores were located in Florida. The Company believes it has the leading market
share in the state of Florida. The demographics within Florida are favorable for
continued growth. In particular, Florida ranks third in the nation in the total
number of registered cars and light trucks, is the fourth most populous state
and continues to be one of the fastest growing states in the nation.
The Company believes the strength of its market position in Florida has
provided a competitive advantage and a solid foundation for further expansion
into nearby southeastern states including Georgia, Alabama, South Carolina,
Mississippi and Louisiana. These states provide many of the same favorable
conditions and opportunities that exist in Florida, which should help the
Company further expand into these states and adjust more quickly to these new
markets.
UTILIZING ADVANCED INFORMATION SYSTEMS
In order to maintain its competitive position, the Company emphasizes
and continually invests in advanced distribution and information systems. As a
result of continually updating these systems with state-of-the-art equipment,
management believes the Company has some of the most advanced integrated
distribution and point-of-sale capabilities in its industry. These systems
provide many benefits, including lower distribution and operating costs,
improved in-stock positions at its stores and enhanced customer service. In
addition, during fiscal 1998, the Company completed the implementation of its
frame relay system at its stores. Frame relay is essentially a technology that
provides for enhanced transmission of data between single and multiple
locations. As a result, communications between the Company's stores and other
stores, the
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distribution center and corporate headquarters have been improved significantly.
The implementation of frame relay technology was critical to the Company's
implementation of a new perpetual inventory system at the store level that was
completed during fiscal 1999. In addition, the Company plans to continue to
upgrade its systems through the integration of additional related specialized
software over the next several years. All of these changes are designed to serve
all functional areas of the Company and enhance the inventory management and
selection processes.
DISTRIBUTION
The Company's distribution system is one of the most advanced inventory
management information systems in the industry. The system utilizes
computer-aided, laser scanning and wireless technology, which interfaces with
the Company's management information and point-of-sale systems. The system
features computer aided ordering and inventory management, having the capability
to monitor inventory levels and determine store by store product needs. The
Company has a warehouse management system referred to as the Wizard system
("Wizard"). Wizard provides support for the improvement of the Company's
efficiency regarding shipment of merchandise. The system utilizes wireless hand
held bar code scanning terminals which operate in a real time environment and
which are integrated with a racking and flow system featuring conveyers and
computerized sorting devices. These integrated systems enable the Company's team
members to efficiently pick, assemble and palletize merchandise for shipment to
individual stores. All product movement, including receiving, put-away, restock,
cycle counting, picking and shipping, is monitored and tracked by Wizard.
Stores typically place orders electronically each week with the
Company's distribution center. These orders are generally delivered within 48
hours of receipt by way of the Company's fleet of trucks and trailers.
The Company's distribution center, which also houses its headquarters
and administrative offices, is located in Lakeland, Florida, on property owned
by the Company. The total facilities (including parking areas) currently occupy
the majority of a 31.5 acre tract. The facilities front Interstate 4, the
east-west expressway that cuts across central Florida. Over 80% of the Company's
stores are currently within six hours of the Company's distribution center. The
Company's distribution center was expanded to double its size during fiscal
1999. The expanded distribution center is comprised of approximately 600,000
square feet and is capable of serving approximately 700 stores. Additional
office space, support facilities, and expansion of the merchandising design
center were also completed during fiscal 1999. The expanded distribution center
will also provide service to the Company's Parts Express warehouses, and will be
utilized to support the commercial delivery program.
As the Company continues its expansion outside Florida, management will
evaluate the need for additional distribution centers. The Company anticipates
adding a second distribution center during the fall of calendar year 2000.
Capital expenditures associated with the second distribution center are still
being finalized, but are expected to be in the $20 million to $25 million range.
STORE OPERATIONS
The Company has point-of-sale computer terminals at all of its stores,
which communicate interactively with the Company's distribution and management
systems. These terminals decrease transaction times, reduce register lines and
eliminate labor time previously spent in price labeling of merchandise. In
addition, point-of-sale terminals perform valuable functions for management.
Since these terminals capture sales information at the time of the transaction,
management can generate real time sales reports that assist in-store and
Company-wide planning. The point-of-sale system also has an automated suggested
reordering function that is designed to help increase store level in-stock
positions. The automation of the re-order process is believed to have decreased
the time and labor required for store inventory management.
During fiscal 1999, the Company completed the implementation of a new
perpetual inventory system for its stores. The new system is expected to allow
the Company to better manage specific store level inventories based on the
customers buying patterns for a particular store location.
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GROWTH STRATEGIES
CONTINUING NEW STORE OPENINGS
The Company expects to add approximately 80 to 90 stores during fiscal
2000. The Company plans to continue opening new stores in the standardized store
formats and constantly seeks to improve merchandising concepts. In the last five
fiscal years, the Company has opened an average of 70 stores per year including
106 stores in fiscal 1999.
As of August 9, 1999, the Company had opened 15 new stores in fiscal
2000. Also, as of August 9, 1999, 11 new stores were under construction and an
additional 62 sites for new stores had been purchased, leased or were under
contract for acquisition.
In certain Florida markets, the Company has and continues to open stores
in close geographic proximity to other Discount Auto Parts stores. This
operating strategy is designed to help the company establish a competitive
position in each of the Company's markets as well as to support its strategy of
providing the customer with shopping convenience. Although the new stores tend
to attract sales that would otherwise have been made in other Discount Auto
Parts stores, management believes that the negative impact on comparable store
sales is substantially offset by the Company's ability to leverage costs such as
advertising and store management expenses. The Company believes that in the long
term, the increased growth in the Florida population, as well as the Company's
implementation of its commercial delivery program, will provide even greater
support for stores that are in close proximity.
The following table sets forth information concerning increases in the
number of Discount Auto Parts stores during the past five fiscal years and the
anticipated increase for fiscal 2000:
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PLANNED
1995 1996 1997 1998 1999 2000
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Beginning Stores 208 248 314 400 452 558
New Stores (1) 40 66 86 53 106(2) 80-90
Stores Closed -- -- -- 1 -- --
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Ending Stores 248 314 400 452 558 638-648
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(1) Does not include stores that opened as relocations of previously
existing stores within the same general market area or substantial
renovations of stores.
(2) Includes the 26 stores acquired as part of the September 1998
acquisition of Rose Auto Parts.
When opening a new store, the Company generally seeks high visibility
sites in high traffic locations (often on corners). Prior to entering new
markets, the Company performs extensive research with key factors including
population, demographics, vehicle profile and number and strength of competitive
stores. The Company generally seeks to open new stores within or contiguous to
existing market areas and attempts to cluster development in new urban and
suburban markets in a relatively short period of time in order to achieve
economies of scale in management, advertising and distribution costs. The
Company also evaluates the potential first year sales return on investment when
determining specific store site locations.
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STORE FORMATS AND EXPRESS WAREHOUSES
The Company has developed two types of retail store formats: the
"mini-depot" and the depot store format. These standardized formats have tended
to lower new store operating costs through increased efficiency and consistency
in the selection, acquisition, design and opening of new stores. As a result,
the Company is modeling new stores according to the standardized formats and
using appropriate elements of these new store formats to remodel existing
stores. Since the initiation of the standardized formats, the Company has
converted the product selection at all of the existing stores to either the mini
depot or depot formats.
Under the standardized store formats, a mini-depot store has
approximately 4,200 selling square feet and carries an average of approximately
15,000 SKU's. The average depot store has approximately 8,000 selling square
feet, offers greater product selection and carries an average of approximately
22,000 SKU's.
The following table indicates certain information about the 558
Discount Auto Parts stores in operation as of June 1, 1999:
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AVERAGE STOCK NUMBER OF TOTAL SELLING
STORE FORMAT KEEPING UNITS STORES SQUARE FOOTAGE(1)
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Mini-depot 15,000 530 2,225,000
Depot 22,000 28 225,000
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Total selling square footage 2,450,000
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(1) Total selling square footage includes normal selling space, but excludes
office, stockroom, shelving space behind the parts counter, receiving
and any excess space not utilized in a store's operations space. Such
square footage also excludes square footage associated with the express
warehouses.
In 1998, in an effort to provide support for product availability at its
stores and to help facilitate the rollout of its commercial delivery program,
the Company developed an "express" warehouse concept and opened its first Parts
Express warehouse in Orlando, Florida in excess space of an existing depot. As
of June 1, 1999, the Company had eight Parts Express locations in operation. The
Parts Express warehouses are located in Orlando, Tampa, Miami, Fort Myers,
Jacksonville, West Pam Beach, Tallahassee, Atlanta, and Mobile. The Company
expects to open two to four additional Parts Express locations in fiscal year
2000.
Each Parts Express warehouse currently stocks approximately 45,000 SKU's
and occupies approximately 8,600 square feet. The objective of establishing
express warehouses is to provide inventory support to mini-depot and depot
stores within the same geographic market of the respective express warehouse, as
well as to support the Company's commercial delivery program. In most locations,
Parts Express warehouses have been utilizing excess space in identified depot
stores. In the future, the Company plans to continue using excess depot store
space; however, if deemed appropriate, an express warehouse may be designed as a
stand-alone facility.
Depot stores are targeted for major metropolitan markets where such
stores can serve densely populated market areas. Depot stores are also utilized
as support locations for nearby mini-depot stores in a hub-and-spoke fashion
and, along with the Parts Express warehouse, offer van delivery for inventory
transfers to other Discount Auto Parts stores. The Company's merchandising staff
also utilizes depot stores to test new products in an effort to help maximize
the success of new SKU additions at mini-depot stores.
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CONTINUING TO IMPROVE MERCHANDISING
One of the Company's growth strategies is to improve its merchandising
concepts, primarily by broadening product selection and emphasizing the sale of
replacement hard parts which generally provide higher gross profit margins. The
Company is also using its plan-o-grams program (which improves merchandise
presentation and in-stock positions) and the in-store point-of-sale system to
improve merchandising. The point-of-sale system helps the Company maintain
proper inventory levels and provide real-time sales information. The interface
of new plan-o-grams with the Company's point-of-sale systems provide a more
sophisticated means of inventory control and management. These systems are
designed to enhance overall sales and gross margins in each individual store.
During fiscal 1999, the Company implemented a new perpetual inventory system at
its stores. The Company expects to secure even more enhanced information from
this new system in order to determine proper individual store merchandise and
inventory levels. These enhancements, coupled with the implementation of the
express store format in selected metropolitan markets, should enable the Company
to improve its overall inventory turnover.
Although each Discount Auto Parts store carries the same basic product
lines, each Division Manager, with input from individual store managers, has
certain abilities to adapt product mix based on the specific needs of the market
area served by the stores.
COMMERCIAL MARKET BUSINESS
The Company began the rollout of a commercial delivery service in the
third quarter of fiscal 1998. Under the Company's commercial delivery service
program, which operates under the name "Pro2Call", commercial customers (such as
auto service centers, commercial mechanics, garages and the like) are able to
establish commercial accounts and purchase and receive automotive parts. The
automotive parts are either delivered or are available for pick up at nearby
Discount Auto Parts stores. As of June 1, 1999, 122 of the Company's store
locations provided commercial delivery service. By the end of fiscal 2000, the
Company expects commercial delivery services to be provided by approximately 250
to 300 stores. Upon completion of the rollout, the Company expects to provide
commercial delivery service from approximately 60% to 65% of its stores.
During fiscal 1998 and fiscal 1999, the Company's entry into the
commercial delivery market required total capital expenditures of approximately
$4.3 million. In addition, the commercial delivery program can be expected to
require the Company to extend trade credit to certain of the commercial account
customers in the ordinary course of business. The extension of such trade credit
will increase the capital requirements associated with the rollout of the
program and will expose the Company to credit risk from uncollectible accounts.
The Company has established systems designed to manage and control such credit
risk. The amount of capital that is needed for extension of trade credit will be
dependent in large part upon the success of the commercial delivery service
roll-out and how quickly the commercial business develops. In addition, the
Company is also utilizing small trucks to achieve its delivery of parts to
commercial customers. These vehicles are currently being leased as part of a
master fleet leasing arrangement. Additional vehicles will need to be added in
the future as commercial designated stores are opened and as sales volume
increases warrant.
The Company believes the commercial delivery business is important to
its long-term success, as it will further allow for the leveraging of fixed and
certain variable store expenses. Although the commercial delivery program has
thus far incurred operating losses, the Company expects the program to provide
positive operating contributions by fiscal 2001. Because this is a relatively
new aspect of the auto parts supply business for the Company, there are risks
associated with the Company's entry into this new aspect of the business and
there can be no assurance if and/or when the commercial delivery service
business will be profitable or whether the Company will experience any financial
or other challenges in managing and controlling the credit risk.
11
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STORE OPERATIONS
STORE DESIGN AND VISUAL MERCHANDISING
The Company seeks to design and build stores with a high visual impact.
The Company's stores are generally freestanding buildings situated in highly
visible locations and are designed to provide easy access and ample parking. The
Company utilizes colorful exterior signage which displays the "Discount Auto
Parts" name and advertise current product specials. Stores are attractive and
brightly-lit. They have signage and special displays to aid customers in
locating merchandise and promoting products. The majority of the selling space
contains shelves for automotive replacement parts, maintenance items, and
accessories, with selected merchandise featured at the ends of the aisles, at
the cash register areas, and in other high traffic and visible areas. All stores
have a hard parts counter staffed by knowledgeable, customer-service oriented
team members. All of the stores have computerized parts catalogs located at the
hard parts counter that provide parts information based on the make, model, and
year of an automobile.
The Company believes that continually improving and upgrading the
appearance of its stores increases sales per store. As market conditions
warrant, Discount Auto Parts relocates or substantially renovates existing
stores. Stores are relocated primarily to secure improved site locations and to
expand store size. In addition, some stores are increased in size in connection
with renovations. The Company considers a store to have been substantially
renovated when it has spent more than $70,000 on store improvements other than
for ordinary course of business maintenance and upkeep expenses.
STORE TEAM MEMBERS
A typical mini-depot format store employs 8 to 10 team members and a
typical depot format store employs 15 to 20 team members. Each store employs a
manager, one or two assistant managers, a team leader and additional full and
part-time team members. A store manager's incentive compensation is based upon
the performance of his or her store vis-a-vis the average Company store. Store
managers are reviewed quarterly on sales levels, gross margins and operating
margin. This review and compensation program attempts to align the goals of the
Company's store managers with those of senior management (i.e., primarily
increased same store sales, stable gross margins and selling, general and
administrative expense control). The Company supervises store operations
primarily through its Vice President of Operations and 29 Division Managers,
each of whom supervises between 10 and 25 stores. The Vice President of
Operations in turn reports to William C. Perkins, the Company's President and
Chief Operating Officer.
Purchasing, merchandising, advertising, accounting, cash management and
other store support functions are provided by the Company's corporate
headquarters. The Company believes that relieving store managers of primary
responsibility for these functions allows them more time to focus on customer
service and the execution of the Company's in-store merchandising and marketing
strategies.
DIMENSIONS OF EXCELLENCE REVIEWS
The Company prides itself on continuous store improvement and an overall
high level of customer service. In an effort to achieve these standards, the
Company conducts "dimensions of excellence" reviews of each of its stores twice
each year in order to evaluate the stores' operations. Each dimensions of
excellence review encompasses a comprehensive itinerary of store characteristics
and performance criteria. The dimensions of excellence teams are made up of
store managers from other districts selected based on their success as managers
and their depth of experience, and members of senior management from the
Company's headquarters.
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The Company also has a program whereby each week members of the senior
management team visit several of the Company's stores to monitor operations. In
addition, every store is generally visited weekly by a division manager. All of
these review programs help insure the Company's stores are being maintained in
accordance with the Company's standards of excellence.
PURCHASING AND DISTRIBUTION
Merchandise is selected and purchased for all stores at the Company's
headquarters. Approximately 98% of the Company's merchandise is shipped by
vendors to the Company's distribution center located in Lakeland, Florida.
Deliveries are usually made to individual stores on a weekly basis by the
Company's fleet of trucks and trailers. In fiscal 1999, the Company purchased
products from over 400 suppliers. During fiscal 1999, the Company's ten largest
suppliers accounted for approximately 34% of the Company's purchases but no
single supplier accounted for more than 6% of total purchases. During fiscal
1997 and 1998 the Company's ten largest suppliers accounted for approximately
28% and 31%, respectively, of the Company's total inventory purchases. The
Company believes its relationships with its suppliers are excellent. The Company
also believes alternative sources of supply exist (and in some cases such
relationships are maintained on a smaller scale), at similar cost and on similar
terms, for substantially all types of products sold.
In order to offer the lowest prices to its customers, the Company
continually seeks to reduce purchase and distribution costs of its merchandise.
The Company achieves cost reductions working with vendors to secure product
savings and other benefits, making volume purchases, and achieving efficiencies
in its distribution system and higher productivity at the store level. Over the
last two years, the Company has created cost efficiencies through the roll out
of its point-of-sale system and the implementation of its Wizard software system
in the distribution center.
ADVERTISING AND PROMOTION
The Company uses various methods to promote its products, including
newspaper, direct mail, radio, television, in-store banners, displays and
promotions. The Company also uses sales incentives and price based promotions to
advertise its products. In addition, the Company believes that DIY customers are
also strongly influenced by "word-of-mouth" recommendations from satisfied
customers. The Company also works closely with its suppliers in order to promote
its products. The Company views its suppliers as an important element of the
advertising and operating process. The suppliers, in turn, provide certain
benefits to the Company, such as volume discounts, rebates, credits, return
allowances, cooperative advertising and signage assistance programs. The
suppliers also provide product knowledge and training and education that assist
the Company's team members in providing excellent customer service.
COMPETITION
Both the retail and commercial delivery automotive parts aftermarket are
highly competitive. Automotive products similar or identical to those available
at the Company's stores are generally available from a variety of different
competitors in the communities served by Discount Auto Parts stores. The number
of competitors and the level of competition faced by Discount Auto Parts stores
vary by market area. The principal competitive factors which affect the
Company's business are store location, customer service, product selection,
product quality, timeliness of commercial deliveries and price. In the state of
Florida, the Company operates the largest specialty retail chain offering
automotive replacement parts, maintenance items and accessories to the DIY
consumer. The Company competes in its various markets with a number of local,
regional and national automotive retail chains including Auto Zone, Pep Boys,
One Stop, and Advance Auto. To a lesser extent, the Company's stores also
compete with automotive wholesalers or jobbers such as NAPA,
13
<PAGE> 14
Big A and Steego and, in certain product categories such as batteries, oil,
filters and accessories, mass merchandisers such as Wal-Mart, Target and Kmart.
In the commercial delivery program, the Company competes with many of those same
companies.
Although the Company believes that it competes effectively in its
various markets, certain of its competitors, or their parent organizations, are
larger in terms of sales volume, have access to greater capital and management
resources, or have been operating longer in particular market areas.
TEAM MEMBERS
As of June 1, 1999, the Company employed 5,586 team members (4,420 were
full-time team members). Approximately 86% of the Company's team members are
employed in stores or in direct field supervision, while 14% work in the
distribution center and/or in corporate and support functions. The Company has
no collective bargaining agreements covering any of its team members, and has
never experienced any material labor disruption.
TRADEMARKS
The Company believes that its name, distinctive lettering and
eye-catching stores are important to its operating strategy. In addition, as the
Company continues to expand its commercial delivery business, the Company is
establishing value in its Pro2Call service mark, which is the name under which
the commercial delivery business operates. Although the Company develops and
owns other trademarks, service marks and copyrights, the Company does not
believe that its business is otherwise substantially dependent on any particular
trademark, service mark, copyright or patent. Furthermore, the Company is not
aware of any infringing uses or any assertion of infringing uses in any of its
current market areas with respect to these intellectual property rights, that,
in the opinion of the Company, could materially affect the Company's uses of its
marks and trade dress described above.
ITEM 2. PROPERTIES
DISTRIBUTION CENTER AND HEADQUARTERS
The Company's distribution center, which also houses its headquarters
and administrative offices, is located in Lakeland, Florida on property owned by
the Company. The total facilities (including parking areas) currently occupy the
majority of a 31.5 acre tract. The facilities front Interstate 4, the east-west
expressway that cuts across central Florida. Over 80% of the Company's stores
are currently within six hours of the Company's distribution center.
The Company's distribution center was recently expanded to double its
size. As a result of such recent expansion, there is essentially no additional
useable area on its headquarters site for further expansion of the facility.
However, the expanded distribution center comprises approximately 600,000 square
feet and is capable of serving approximately 700 stores. Additional office
space, support facilites, and expansion of the merchandising design center were
also completed during fiscal 1999. The expanded distribution center will also
provide service to the Company's Parts Express warehouses, and will be utilized
to support the commercial delivery program.
DISCOUNT AUTO PARTS STORES
The Company owns the majority of its store locations in order to
maximize real estate flexibility and control operating costs. As of June 1,
1999, the Company owned 481 or 86% of its locations. The average cost of a new
mini-depot format store is approximately $700,000, including $600,000 for the
land, building, and soft costs and $100,000 for furniture, fixtures and
equipment.
14
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Certain of the stores in which the Company has an ownership interest are
affected by credit facilities or mortgages on which the total unpaid principal
balance as of June 1, 1999 was approximately $7.2 million. These borrowings,
which are to be repaid in aggregate annual installments of $2.4 million, accrue
interest at rates ranging between 9.8% and 10.11% per annum.
Most of the Company's store leases provide for the payment of a fixed
rent, plus increases to cover ad valorem taxes, insurance and maintenance
costs. The leases are generally for a term of five years, with the Company
having the right to renew for one or more additional five-year terms.
ITEM 3. LEGAL PROCEEDINGS
The Company is currently involved in litigation with its insurance
carrier pursuant to which the Company is seeking recovery under its insurance
policy of certain amounts incurred in connection with the Airgas, Inc.
litigation and the settlement thereof. The ultimate outcome of such litigation
or an estimate of the amount of potential insurance recoveries, if any, cannot
be determined at this time. No benefit for any recovery which may result has
been reflected in the Company's fiscal 1999 financial statements.
In addition to the Airgas litigation, certain federal investigations
into the subject matter of that litigation may be ongoing. In particular, grand
jury proceedings in Savannah, Georgia in which the Company has been called upon
to respond to subpoenas may be continuing and the Company is aware that the SEC
commenced its own informal investigation. In connection with these proceedings,
to the extent they may be continuing, the Company intends to continue its
cooperation.
Discount Auto Parts is not a party to any other legal proceedings, other
than various claims and lawsuits arising in the normal course of the Company's
business. The Company does not believe that such claims and lawsuits,
individually or in the aggregate, will have a material adverse effect on its
financial condition or results of operations.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY-HOLDERS
None.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
The Company's Common Stock is listed on the New York Stock Exchange.
Information included under the caption "Common Stock Price Range" and "Number of
Stockholders" on page 32 of the Company's 1999 Annual Report to Stockholders is
incorporated herein by reference.
Since the initial public offering, the Company has not paid any cash
dividends. The Company does not intend to pay any cash dividends for the
foreseeable future and intends to retain earnings, if any, for the future
operation and expansion of the Company's business. Any determination to pay
dividends in the future will be at the discretion of the Company's Board of
Directors and will be dependent upon the Company's results of operations,
financial condition, contractual restrictions and other factors deemed relevant
by the Board of Directors. The Company's existing credit facilities contain
restrictions on the payment of cash dividends on the Common Stock. At June 1,
1999, approximately $47.4 million of the Company's retained earnings were
available for dividend distribution.
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<PAGE> 16
ITEM 6. SELECTED FINANCIAL DATA
Information under the caption "Selected Financial Data" on page 7 of
the Company's 1999 Annual Report to Stockholders is incorporated herein by
reference.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
Information under the caption "Management's Discussion and Analysis of
Financial Condition and Results of Operations" on pages 8 through pages 15 of
the Company's 1999 Annual Report to Stockholders is incorporated herein by
reference.
ITEM 7(A). QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company is exposed to changes in interest rates, primarily from its
long-term revolving credit agreement. The Company also has long term debt that
bears a fixed rate. There is a risk that market rates will decline and the
required payments will exceed those based on current market rates on the long
term debt.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The Financial Statements of Discount Auto Parts, Inc. together with the
report thereon of Ernst & Young LLP, appearing on pages 16 through 29 and page
31 of the Company's 1999 Annual Report to Stockholders are incorporated herein
by reference.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
Not applicable.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Information contained under the captions "Election of Directors" and
"Executive Officers" on pages 2 through pages 3 and pages 12 through pages 13 of
the Company's Proxy Statement for the 1999 Annual Meeting of Stockholders is
incorporated herein by reference.
ITEM 11. EXECUTIVE COMPENSATION
Information contained under the caption "Executive Compensation" on
pages 13 through 14 of the Company's Proxy Statement for its 1999 Annual Meeting
of Stockholders is incorporated herein by reference.
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ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information contained under the caption "Security Ownership" on
pages 16 through 18 of the Company's Proxy Statement for its 1999 Annual Meeting
of Stockholders is incorporated herein by reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information contained under the captions "Compensation Committee
Interlocks and Insider Participation" and "Certain Relationships and Related
Transactions" on pages 14 through 15 of the Company's Proxy Statement for its
1999 Annual Meeting of Stockholders is incorporated herein by reference.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K.
(a) (1) The following financial statements of Discount Auto Parts,
Inc. and the report thereon of Ernst & Young LLP dated July 2,
1999, except as to Note 4 as to which the date is July 29,
1999, which are included in the Company's 1999 Annual Report
to Stockholders for the year ended June 1, 1999, pages 16
through 29, and page 31, are incorporated herein by reference.
Consolidated Statements of Income for the years ended June 1,
1999, June 2, 1998, and June 3, 1997.
Consolidated Balance Sheets as of June 1, 1999 and June 2,
1998.
Consolidated Statements of Stockholders' Equity for the years
ended June 1, 1999, June 2, 1998, and June 3, 1997.
Consolidated Statements of Cash Flows for the years ended June
1, 1999, June 2, 1998, and June 3, 1997
Notes to Consolidated Financial Statements.
Report of Independent Certified Public Accountants.
(2) The following Financial Statements Schedules are included
herein:
None.
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No schedules are submitted because none are applicable or
required or because the required information is included in
the financial statements or the notes thereto.
(3) The following exhibits are filed as part of this report
(exhibits marked with an asterisk have been previously
filed with the Commission as indicated and are
incorporated herein by this reference):
2.1 * Agreement and Plan of Recapitalization dated August 20, 1992
(Filed as Exhibit 10.21 to the Company's Form 10-Q for the
quarter ended September 1, 1992, as filed with the SEC on
October 15, 1992).
3.1 * Amended and Restated Articles of Incorporation (Filed as
Exhibit 3.2 to the Company's Form 10-Q for the quarter ended
September 1, 1992, as filed with the SEC on October 15, 1992).
3.2 * Amended and Restated Bylaws (Filed as Exhibit 3.4 to the
Company's Form 10-Q for the quarter ended September 1, 1992,
as filed with the SEC on October 15, 1992).
4.1 * Amended and Restated Articles of Incorporation (Filed as
Exhibit 3.2 to the Company's Form 10-Q for the quarter ended
September 1, 1992, as filed with the SEC on October 15, 1992).
4.2 * Amended and Restated Bylaws (Filed as Exhibit 3.4 to the
Company's Form 10-Q for the quarter ended September 1, 1992,
as filed with the SEC on October 15, 1992).
4.3 * Note Agreement dated as of December 15, 1987 between Discount
Auto Parts, Inc. and Massachusetts Mutual Life Insurance
Company together with amendment dated as of October 30, 1989
(Filed as Exhibit 10.1 to the Company's Registration Statement
on Form S-1 (No. 33-49400) as filed with the SEC on July 8,
1992).
4.4 * Second Amendment Agreement to Note Agreement effective as of
August 26, 1992 between Discount Auto Parts, Inc. and
Massachusetts Mutual Life Insurance Company. (Filed as Exhibit
4.4 to the Company's Form 10-K for the year ended May 30,
1995, as filed with the SEC on August 16, 1996).
4.5 * Note Agreement dated as of October 30, 1989 between Discount
Auto Parts, Inc. and Massachusetts Mutual Life Insurance
Company (Filed as Exhibit 10.2 to the Company's Registration
Statement on Form S-1 (No. 33-49400) as filed with the SEC on
July 8, 1992).
4.6 * Amendment Agreement to Note Agreement effective as of August
26, 1992 between Discount Auto Parts, Inc. and Massachusetts
Mutual Life Insurance Company. (Filed as Exhibit 4.4 to the
Company's Form 10-K for the year ended May 30, 1995, as filed
with the SEC on August 16, 1996).
4.7 * Note Purchase Agreement dated as of July 15, 1997 between
Discount Auto Parts, Inc. and the Identified Purchasers (Filed
as Exhibit 4.7 to the Company's Form 10-K for the year ended
June 3, 1997, as filed with the SEC on September 2, 1997).
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<PAGE> 19
10.1 * Revolving Credit Agreement dated as of July 16, 1997 by and
among Discount Auto Parts, Inc. and SunTrust Bank, Central
Florida, National Association, individually and as Agent,
Amsouth Bank, Barnett Bank, N.A., First Union National Bank
and The Fuji Bank and Trust Company (Filed as Exhibit 10.4 to
the Company's Form 10-K for the year ended June 3, 1997, as
filed with the SEC on September 2, 1997).
10.2 * Revolving Loan Agreement of Discount Auto Parts, Inc. and
SunTrust Bank, Central Florida, National Association dated as
of January 29, 1999. (Filed as Exhibit 10.15 to the Company's
Form 10-Q for the quarter ended March 2, 1999, as filed with
the SEC on April 15, 1999).
10.3 Revolving Credit Agreement dated as of July 29, 1999 by and
among Discount Auto Parts, Inc. and SunTrust Bank, Central
Florida, National Association, individually and as
Administrative Agent, SunTrust Equitable Securities
Corporation, as Arranger and Book Manager, Bank of America,
N.A., individually and as Syndication Agent, the First
National Bank of Chicago, individually and as Documentation
Agent, SouthTrust Bank, National Association, Amsouth Bank,
First Union National Bank, Banque Nationale de Paris, Regions
Bank, and Hibernia National Bank.
10.4 * Amendment and Restatement of the Discount Auto Parts Team
Members' Profit Sharing Plan and Trust dated May 31, 1994
(Filed as Exhibit 10.12 to the Company's Form 10-K for the
fiscal year ended May 31, 1994, as filed with the SEC on
August 29, 1994).
10.5 * Discount Auto Parts, Inc. Supplemental Executive Profit
Sharing Plan (Filed as Exhibit 10.5 to the Company's Form 10-K
for the year ended May 30, 1995, as filed with the SEC on
August 26, 1995).
10.6 * Incentive compensation plan's for Peter J. Fontaine and
William C. Perkins. (Filed as Exhibit 10.7 to the Company's
Form 10-K for the year ended June 3, 1997, as filed with the
SEC on September 2, 1997).
10.7 * Discount Auto Parts, Inc. 1992 Stock Option Plan (Filed as
Exhibit 10.16 to the Company's Form 10-Q for the quarter ended
September 1, 1992, as filed with the SEC on October 15, 1992).
10.8 * Discount Auto Parts, Inc. Amended and Restated 1992 Team
Member Stock Purchase Plan. (Filed as Exhibit 10.9 to the
Company's Form 10-K for the year ended June 3, 1997, as filed
with the SEC on September 2, 1997).
10.9 * Discount Auto Parts, Inc. Non-Employee Directors' Stock Option
Plan (Filed as Exhibit 4.1 to the Company's Registration
Statement on Form S-8 (No. 33-84058) as filed with the SEC on
September 16, 1994).
10.10 * Discount Auto Parts, Inc. Amended and Restated 1995 Stock
Option Plan. (Filed as Exhibit 10.12 to the Company's Form
10-K for the year ended June 3, 1997, as filed with the SEC on
September 2, 1997).
10.11 1999 Amendment to the Discount Auto Parts, Inc. Amended and
Restated 1995 Stock Option Plan.
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10.12 * Indemnification Agreements for Peter J. Fontaine, Warren
Shatzer, William C. Perkins, E.E. Wardlow and A Gordon
Tunstall (Filed as Exhibit 10.18 to the Company's Form 10-Q
for the quarter ended September 1, 1992, as filed with the SEC
on October 15, 1992).
10.13 * Indemnification Agreement for C. Michael Moore. (Filed as
Exhibit 10.14 to the Company's Form 10-K for the year ended
June 3, 1997, as filed with the SEC on September 2, 1997).
10.14 * Indemnification Agreement for David P. Walling. (Filed as
Exhibit 10.15 to the Company's Form 10-K for the year ended
June 3, 1997, as filed with the SEC on September 2, 1997).
10.15 * Master Joint Business Agreement of Q Lube, Inc. and Discount
Auto Parts, Inc. dated as of January 1, 1997 (Filed as Exhibit
10.16 to the Company's Form 10-Q for the quarter ended March
4, 1997, as filed with the SEC on April 17, 1997).
10.16 * General Partnership Agreement of DAP/LUBECO Partnership.
(Filed as Exhibit 10.17 to the Company's Form 10-K for the
year ended June 3, 1997, as filed with the SEC on September 2,
1997).
10.17 * Joint Business Termination Agreement between Q Lube, Inc. and
Discount Auto Parts, Inc. dated as of February 1, 1999. (Filed
as Exhibit 10.16 to the company's Form 10-Q for the quarter
ended March 2, 1999, as filed with the SEC on April 15, 1999).
10.18 * First Amendment and Restatement of the Discount Auto Parts,
Inc. Supplemental Executive Profit Sharing Plan. (Filed as
Exhibit 10.14 to the Company's Form 10-K for the year ended
June 2, 1998, as filed with the SEC on August 28, 1998).
13 Annual Report to Stockholders for the year ended June 1, 1999.
18 Preferability letter from Ernst & Young LLP regarding change
in accounting principle.
23 Consent of Ernst & Young LLP.
27 Financial Data Schedule.
(b) Reports on Form 8-K
No reports on Form 8-K were filed during the fourth quarter of
fiscal 1999.
20
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
DISCOUNT AUTO PARTS, INC.
<TABLE>
<S> <C>
/s/ Peter J. Fontaine August 27, 1999
- ---------------------------------------------------------------------- --------------------------------
PETER J. FONTAINE, Chief Executive Officer, Date
Director, (principal executive officer)
</TABLE>
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
<TABLE>
<S> <C>
/s/ Peter J. Fontaine August 27, 1999
- ---------------------------------------------------------------------- --------------------------------
PETER J. FONTAINE, Chief Executive Officer, Date
Director, (principal executive officer)
/s/ C. Michael Moore August 27, 1999
- ---------------------------------------------------------------------- --------------------------------
C. MICHAEL MOORE, Chief Financial Officer, Secretary Date
(principal financial and accounting officer)
/s/ William C. Perkins August 27, 1999
- ---------------------------------------------------------------------- --------------------------------
WILLIAM C. PERKINS, President, Chief Operating Date
Officer, Director
/s/ Warren Shatzer August 27, 1999
- ---------------------------------------------------------------------- --------------------------------
WARREN SHATZER, Director Date
/s/ E.E. Wardlow August 27, 1999
- ---------------------------------------------------------------------- --------------------------------
E.E. WARDLOW, Director Date
/s/ A Gordon Tunstall August 27, 1999
- ---------------------------------------------------------------------- --------------------------------
A GORDON TUNSTALL, Director Date
/s/ David P. Walling August 27, 1999
- ---------------------------------------------------------------------- --------------------------------
DAVID P. WALLING, Director Date
</TABLE>
21
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EXHIBIT 10.3
================================================================================
REVOLVING CREDIT AGREEMENT
Dated as of July 29, 1999
By and Among
DISCOUNT AUTO PARTS, INC.
and
SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION,
individually and as Administrative Agent,
SUNTRUST EQUITABLE SECURITIES CORPORATION,
as Arranger and Book Manager,
BANK OF AMERICA, N.A., individually and as Syndication Agent,
THE FIRST NATIONAL BANK OF CHICAGO, individually and as Documentation Agent
SOUTHTRUST BANK, NATIONAL ASSOCIATION,
AMSOUTH BANK,
FIRST UNION NATIONAL BANK,
BANQUE NATIONALE DE PARIS,
REGIONS BANK,
AND
HIBERNIA NATIONAL BANK,
===============================================================================
<PAGE> 2
TABLE OF CONTENTS
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ARTICLE 1 DEFINITIONS; CONSTRUCTION................................................................1
Section 1.1. Definitions................................................................1
Section 1.2. Accounting Terms and Determinations.......................................13
Section 1.3. Other Definitional Provisions.............................................13
Section 1.4. Exhibits and Schedules....................................................13
ARTICLE 2 REVOLVING LOANS.........................................................................13
Section 2.1. Commitment; Use of Proceeds...............................................13
Section 2.2. Notes; Repayment of Principal.............................................14
Section 2.3. Voluntary Reduction of Revolving Loan Commitments.........................14
Section 2.4. Swingline Loans...........................................................15
Section 2.5. Additional Lenders........................................................15
ARTICLE 3 [RESERVED]..............................................................................15
ARTICLE 4 GENERAL LOAN TERMS......................................................................15
Section 4.1. Funding Notices...........................................................15
Section 4.2. Disbursement of Funds.....................................................16
Section 4.3. Interest..................................................................17
Section 4.4. Interest Periods..........................................................18
Section 4.5. Certain Fees..............................................................18
Section 4.6. Voluntary Prepayments of Borrowings.......................................19
Section 4.7. Payments, Etc.............................................................20
Section 4.8. Interest Rate Not Ascertainable, Etc......................................21
Section 4.9. Illegality................................................................22
Section 4.10. Increased Costs...........................................................22
Section 4.11. Lending Offices...........................................................24
Section 4.12. Funding Losses............................................................24
Section 4.13. Assumptions Concerning Funding of LIBOR Advances..........................24
Section 4.14. Apportionment of Payments.................................................25
Section 4.15. Sharing of Payments, Etc..................................................25
Section 4.16. Capital Adequacy..........................................................25
Section 4.17. Return of Payments........................................................26
ARTICLE 5 CONDITIONS TO BORROWINGS................................................................26
Section 5.1. Conditions Precedent to Initial Loans.....................................26
Section 5.2. Conditions to All Loans...................................................28
</TABLE>
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<TABLE>
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ARTICLE 6 REPRESENTATIONS AND WARRANTIES..........................................................29
Section 6.1. Organization and Qualification............................................29
Section 6.2. Corporate Authority.......................................................29
Section 6.3. Financial Statements......................................................29
Section 6.4. Tax Returns...............................................................30
Section 6.5. Actions Pending; Compliance With Laws.....................................30
Section 6.6. Representations; No Defaults..............................................30
Section 6.7. Title to Properties; Capitalized Leases...................................30
Section 6.8. Enforceability of Agreement...............................................31
Section 6.9. Consent...................................................................31
Section 6.10. Use of Proceeds; Federal Reserve Regulations..............................31
Section 6.11. ERISA.....................................................................31
Section 6.12. Subsidiaries..............................................................32
Section 6.13. Outstanding Consolidated Funded Debt......................................32
Section 6.14. Conflicting Agreements; Dividend or Redemption Limitations................32
Section 6.15. Environmental Matters.....................................................33
Section 6.16. Possession of Franchises, Licenses, Etc...................................33
Section 6.17. Patents, Trademarks, Etc..................................................33
Section 6.18. Governmental Consent......................................................34
Section 6.19. Disclosure................................................................34
Section 6.20. Year 2000 Compliance......................................................34
Section 6.21. Labor Matters.............................................................35
Section 6.22. Intercompany Loans; Dividends.............................................35
Section 6.23. Securities Act............................................................35
Section 6.24. Investment Company Act; Holding Company...................................35
Section 6.25. Regulation T, Etc.........................................................35
Section 6.26. Changes in Financial Condition; Adverse Developments......................35
ARTICLE 7 AFFIRMATIVE COVENANTS...................................................................36
Section 7.1. Corporate Existence, Etc..................................................36
Section 7.2. Compliance with Laws, Etc.................................................36
Section 7.3. Payment of Taxes and Claims, Etc..........................................36
Section 7.4. Keeping of Books..........................................................36
Section 7.5. Visitation, Inspection, Etc...............................................36
Section 7.6. Insurance; Maintenance of Properties......................................37
Section 7.7. Reporting Covenants. Furnish to each Lender:.............................37
Section 7.8. Financial Covenants.......................................................41
Section 7.9. Notices Under Certain Other Consolidated Funded Debt......................41
Section 7.10. Fiscal Year...............................................................41
Section 7.11. Subordination of Intercompany Loans.......................................41
Section 7.12. Subsidiaries/Guarantors...................................................42
ARTICLE 8 NEGATIVE COVENANTS......................................................................42
Section 8.1. [Reserved]................................................................42
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
<S> <C>
Section 8.2. Liens.....................................................................42
Section 8.3. Mergers, Acquisitions, Sales, Etc.........................................43
Section 8.4. Investments, Loans, Etc...................................................43
Section 8.5. [Reserved]................................................................44
Section 8.6. Transactions with Affiliates..............................................45
Section 8.7. [Reserved]................................................................45
Section 8.8. Changes in Business.......................................................45
Section 8.9. ERISA.....................................................................45
Section 8.10. [Reserved]................................................................45
Section 8.11. Limitation on Payment Restrictions Affecting
Consolidated Companies....................................................45
Section 8.12. [Reserved]................................................................45
Section 8.13. Use of Proceeds...........................................................45
Section 8.14. Subsidiary Indebtedness...................................................45
ARTICLE 9 EVENTS OF DEFAULT.......................................................................46
Section 9.1. Payments..................................................................46
Section 9.2. Covenants Without Notice..................................................46
Section 9.3. Other Covenants...........................................................46
Section 9.4. Representations...........................................................46
Section 9.5. Non-Payments of Other Indebtedness........................................46
Section 9.6. Defaults Under Other Agreements...........................................47
Section 9.7. Bankruptcy................................................................47
Section 9.8. ERISA.....................................................................47
Section 9.9. Money Judgment............................................................48
Section 9.10. Change in Control of Borrower.............................................48
Section 9.11. Default Under Other Credit Documents......................................48
Section 9.12. Attachments...............................................................48
ARTICLE 10 THE ADMINISTRATIVE AGENT................................................................49
Section 10.1. Appointment of Administrative Agent.......................................49
Section 10.2. Nature of Duties of Administrative Agent..................................49
Section 10.3. Lack of Reliance on the Administrative Agent..............................50
Section 10.4. Certain Rights of the Administrative Agent................................50
Section 10.5. Reliance by Administrative Agent..........................................50
Section 10.6. Indemnification of Administrative Agent...................................50
Section 10.7. The Administrative Agent in its Individual Capacity.......................51
Section 10.8. Holders of Notes..........................................................51
Section 10.9. Successor Administrative Agent............................................51
Section 10.10. Syndication Agent and Documentation Agent.................................51
ARTICLE 11 MISCELLANEOUS...........................................................................52
Section 11.1. Notices...................................................................52
Section 11.2. Amendments, Etc...........................................................52
</TABLE>
iii
<PAGE> 5
<TABLE>
<CAPTION>
<S> <C>
Section 11.3. No Waiver; Remedies Cumulative............................................53
Section 11.4. Payment of Expenses, Etc. Borrower shall:................................53
Section 11.5. Right of Setoff...........................................................55
Section 11.6. Benefit of Agreement......................................................55
Section 11.7. Governing Law; Submission to Jurisdiction.................................57
Section 11.8. Independent Nature of Lenders' Rights.....................................58
Section 11.9. Counterparts..............................................................58
Section 11.10. Effectiveness; Survival...................................................58
Section 11.11. Severability..............................................................59
Section 11.12. Independence of Covenants.................................................59
Section 11.13. Change in Accounting Principles, Fiscal Year or Tax Laws..................59
Section 11.14. Headings Descriptive; Entire Agreement....................................59
Section 11.15. Time is of the Essence....................................................60
Section 11.16. Usury.....................................................................60
Section 11.17. Construction..............................................................60
</TABLE>
<TABLE>
<CAPTION>
SCHEDULES
<S> <C>
Schedule 5.1(t) Accounting Change
Schedule 6.3 Change in Borrower's Business, Etc.
Schedule 6.4 Tax Filings and Payments
Schedule 6.5 Certain Pending and Threatened Litigation
Schedule 6.7 Capitalized Lease Obligations
Schedule 6.11 Employee Benefit Matters
Schedule 6.12 Subsidiaries
Schedule 6.13 Outstanding Debt, Defaults
Schedule 6.14 Dividend or Redemption Limitations
Schedule 6.15(a) Environmental Compliance
Schedule 6.15(b) Environmental Notices
Schedule 6.15(c) Environmental Permits
Schedule 6.15(d) Equal Employment and Employee Safety
Schedule 6.17 Patent, Trademark, License, and Other Intellectual Property Matters
Schedule 6.21 Labor and Employment Matters
Schedule 6.22 Intercompany Loans
Schedule 8.2 Existing Liens
EXHIBITS
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Revolving Credit Note
Exhibit C Form of Additional Lender's Certificate
Exhibit D Form of Closing Certificate
Exhibit E Form of Opinion of Borrower's Counsel
</TABLE>
iv
<PAGE> 6
<TABLE>
<CAPTION>
<S> <C>
Exhibit F Form of Contribution Agreement
Exhibit G Form of Guaranty
</TABLE>
v
<PAGE> 7
REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT, dated as of July 29, 1999 (the
"Agreement") by and among DISCOUNT AUTO PARTS, INC. ("Borrower"), a Florida
corporation, SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION, ("SunTrust")
a national banking association, BANK OF AMERICA, N.A., individually and as
Syndication Agent, THE FIRST NATIONAL BANK OF CHICAGO, individually and as
Documentation Agent, and SOUTHTRUST BANK, NATIONAL ASSOCIATION, AMSOUTH BANK,
FIRST UNION NATIONAL BANK, BANQUE NATIONALE DE PARIS, REGIONS BANK and HIBERNIA
NATIONAL BANK (collectively, the "Lenders" and, individually, a "Lender"),
SunTrust as Administrative Agent for the Lenders and SUNTRUST EQUITABLE
SECURITIES CORPORATION, a Tennessee corporation, as Arranger and Book Manager.
W I T N E S S E T H:
THAT, for and in consideration of the mutual covenants made herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
ARTICLE 1
DEFINITIONS; CONSTRUCTION
SECTION 1.1. DEFINITIONS. As used in this Agreement, and in any instrument,
certificate, document or report delivered pursuant thereto, the following terms
shall have the following meanings (to be equally applicable to both the
singular and plural forms of the term defined):
"ADVANCE" shall mean any principal amount advanced and remaining
outstanding at any time under the Revolving Loans, which Advance shall be made
or outstanding as a Base Rate Advance, a LIBOR Advance or a Swingline Advance.
"AFFILIATE" of any Person means any other Person directly or
indirectly controlling, controlled by, or under common control with, such
Person, whether through the ownership of voting securities, by contract or
otherwise. For purposes of this definition, "control" (including with
correlative meanings, the terms "controlling", "controlled by", and "under
common control with") as applied to any Person, means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of that Person.
"ADMINISTRATIVE AGENT" shall mean SunTrust Bank, Central Florida,
National Association, as administrative agent for the Lenders hereunder and
under the other Credit Documents, and each successor Administrative Agent.
"AGREEMENT" shall mean this Revolving Credit Agreement, either as
originally executed or as it may be from time to time supplemented, amended,
restated, renewed or extended and in effect.
"AIRGAS LITIGATION" shall mean the previously settled litigation known
as Airgas, Inc. et al. vs. Discount Auto Parts, Inc., et al., originally filed
in the United States District Court of Georgia, Savannah Division under Case
No. LV497-32.
<PAGE> 8
"APPLICABLE MARGIN" shall mean, with respect to Revolving Loans which
are LIBOR Advances:
The Applicable Margin shall be the number of basis points designated
below based on the Borrower's Consolidated Funded Debt to Total
Capitalization Ratio, measured quarterly:
<TABLE>
<CAPTION>
CONSOLIDATED FUNDED DEBT TO TOTAL CAPITALIZATION RATIO
<S> <C> <C> <C> <C>
<25.0% >25.0% and <35.0% >35.0 % and <45.0% >45.0% and <50.0% >50%
- - - -
62.50 bp 75.00 bp 87.50 bp 100 bp 125 bp
</TABLE>
provided, however, that adjustments, if any, to the Applicable Margin
based on changes in the Borrower's Consolidated Funded Debt to Total
Capitalization Ratio as set forth above shall be calculated by the
Administrative Agent quarterly, based upon the Borrower's quarterly
financial statements, beginning with the Borrower's statements for the
period ended March 2, 1999, and shall become effective on the first
day of the next succeeding fiscal quarter following the date of such
calculation; provided, further, however, if the Borrower shall fail to
deliver any such quarterly financial statements within the time period
required by Section 7.7 hereof, then the Applicable Margin for LIBOR
Advances shall be that shown above for a Consolidated Funded Debt to
Total Capitalization Ratio equal to or greater than 50%; and provided,
further, however, if the Borrower shall fail to deliver any such
quarterly financial statements within the time period required by
Section 7.7 hereof, then the Applicable Margin for LIBOR Advances
which will be effective on the first day of the next succeeding fiscal
quarter following such failure shall be that shown above for a
Consolidated Funded Debt to Total Capitalization Ratio equal to or
greater than 50%, it being understood that if and when such quarterly
financial statements are subsequently delivered, then the Applicable
Margin shall be readjusted, effective upon and as of the date of such
delivery, to that number of basis points designated above based on the
Borrower's Consolidated Funded Debt to Total Capitalization Ratio as
reflected in such delivered quarterly financial statements.
"ASSET VALUE" shall mean, with respect to any property or asset as of
any particular date, an amount equal to the greater of (i) the then book value
of such property or asset as established in accordance with GAAP, or (ii) the
then fair market value of such property or asset as determined in good faith by
the board of directors of the Borrower.
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and acceptance
entered into by a Lender and an Eligible Assignee in accordance with the terms
of this Agreement and substantially in the form of Exhibit A.
2
<PAGE> 9
"BANKRUPTCY CODE" shall mean The Bankruptcy Code of 1978, as amended
and in effect from time to time (11 U.S.C.ss.101 et seq.).
"BASE RATE" shall mean (with any change in the Base Rate to be
effective as of the date of change of either of the following rates):
with respect to Revolving Loans the higher of (a) the rate which
SunTrust Banks of Florida, Inc., ("SunTrust Banks") announces from
time to time as its prime lending rate, as in effect from time to time
(the "Prime Rate") or (b) the Federal Funds Rate, as in effect from
time to time, plus one-half of one percent (0.50%) per annum. The
Prime Rate is a reference rate and does not necessarily represent the
lowest or best rate charged borrowing customers of any subsidiary bank
of SunTrust Banks; any subsidiary of SunTrust Banks, including the
Administrative Agent, may make commercial loans or other loans at
rates of interest at, above or below the Prime Rate.
"BASE RATE ADVANCE" or "BASE RATE LOAN" shall mean an Advance made or
outstanding as a Revolving Loan and bearing interest based on the Base Rate.
"BORROWING" shall mean the incurrence by Borrower of Advances of one
Type concurrently having the same Interest Period or the continuation or
conversion of an existing Borrowing or Borrowings in whole or in part.
"BUSINESS DAY" shall mean any day other than Saturday, Sunday or a day
on which commercial banks are required to be closed for business in Orlando,
Florida.
"CAPITALIZED LEASE OBLIGATIONS" shall mean all lease obligations which
have been or are required to be, in accordance with generally accepted
accounting principles, capitalized on the books of the lessee.
"CERCLA" has the meaning set forth in Section 6.15 of this Agreement.
"CLOSING DATE" shall mean July 29, 1999, the date on which the initial
Loans are made and the conditions set forth in Section 5.1 are satisfied or
waived in accordance with Section 11.2.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"COMMITMENT" shall mean, for any Lender at any time, its Revolving
Loan Commitment.
"COMMITMENT FEE" shall mean the quarterly fee payable by the Borrower,
as set forth in Section 4.5(a) hereof.
"COMMITMENT LETTER" shall mean the letter dated May 27, 1999 issued by
the Administrative Agent and SunTrust Equitable Securities Corporation in favor
of the Borrower and the Summary of Terms and Conditions attached as Annex I
thereto.
3
<PAGE> 10
"CONSOLIDATED COMPANIES" shall mean, collectively, Borrower and all of
its Wholly-Owned Subsidiaries.
"CONSOLIDATED EBIT" shall mean, for any fiscal period of the Borrower,
an amount equal to the sum of its Consolidated Net Income (Loss), plus, (i)
Consolidated Interest Expense and (ii) Consolidated Income Tax Expense, (iii)
extraordinary losses, (iv) loss from discontinued operations and (v) the
cumulative effect of changes in accounting principles, minus (y) extraordinary
gains and (z) income from discontinued operations.
"CONSOLIDATED EBITDAR" shall mean, for any fiscal period of the
Borrower, an amount equal to the sum of its Consolidated Net Income (Loss),
plus (i) Consolidated Income Tax Expense, (ii) Consolidated Interest Expense,
(iii) depreciation and amortization, (iv) Consolidated Rental Expense, (v)
income or loss from discontinued operations, (vi) extraordinary losses or gains
and (vii) the cumulative effect of changes in accounting principles.
"CONSOLIDATED EBITR" shall mean, for any fiscal period of the
Borrower, an amount equal to the sum of its Consolidated EBIT, plus
Consolidated Rental Expense, for such period.
"CONSOLIDATED FIXED CHARGES" shall mean, for any fiscal period of the
Borrower, an amount equal to the sum of (i) Consolidated Interest Expense and
(ii) Consolidated Rental Expense.
"CONSOLIDATED FUNDED DEBT" shall mean, without duplication, all
Indebtedness for money borrowed, purchase money mortgages, Capitalized Lease
Obligations, amounts outstanding in respect of asset securitization vehicles,
conditional sales contracts and similar title retention debt instruments,
including any current maturities of such indebtedness, plus the net present
value of future operating lease payments (excluding payments relating to
synthetic leases) calculated using standard S&P methodology, plus the
redemption amount with respect to any redeemable preferred stock of the
Borrower or any Consolidated Subsidiaries required to be redeemed within the
next twelve (12) months. Consolidated Funded Debt shall also include any
Consolidated Funded Debt which has been guaranteed by the Borrower or any
Consolidated Subsidiary or which is supported by a letter of credit issued for
the account of the Borrower or any Consolidated Subsidiary.
"CONSOLIDATED FUNDED DEBT TO TOTAL CAPITALIZATION RATIO" shall mean
the ratio of Consolidated Funded Debt to Total Capitalization.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for any fiscal period of
Borrower, total interest expense (including without limitation, interest
expense attributable to Capitalized Lease Obligations) of Borrower and its
Consolidated Subsidiaries on a consolidated basis.
"CONSOLIDATED INCOME TAX EXPENSE" shall mean, for any fiscal period of
the Borrower, the aggregate of (i) all taxes based upon or measured by the
income of the Borrower and its Consolidated Subsidiaries on a consolidated
basis and (ii) franchise taxes payable by the Borrower and its Consolidated
Subsidiaries on a consolidated basis.
"CONSOLIDATED NET INCOME (LOSS)" shall mean, for any fiscal period of
Borrower, the consolidated net income (or loss) of Borrower and its
Consolidated Subsidiaries for such period
4
<PAGE> 11
(taken as a single accounting period); provided that there shall be excluded
therefrom (i) any items of gain or loss, together with any related provision
for Taxes which were included in determining such consolidated net income,
resulting from the sale of assets other than in the ordinary course of
business; and (ii) the income (or loss) of any party accrued prior to the date
such party becomes a Consolidated Subsidiary of Borrower or is merged into or
consolidated with Borrower or any of its Consolidated Subsidiaries, or such
party's assets are acquired by the Borrower or any of its Consolidated
Subsidiaries.
"CONSOLIDATED NET WORTH" shall mean, for any period of determination,
the net worth of the Borrower and its Consolidated Subsidiaries on a
consolidated basis.
"CONSOLIDATED RENTAL EXPENSE" shall mean for any fiscal period of
Borrower, total rental expense and operating lease expense of Borrower and its
Consolidated Subsidiaries on a consolidated basis.
"CONSOLIDATED SUBSIDIARY" shall mean, as at any particular time, any
corporation included as a Consolidated Subsidiary of Borrower in Borrower's
most recent financial statements furnished to its stockholders and certified by
Borrower's independent public accountants.
"CONTRACTUAL OBLIGATION" of any Person shall mean any provision of any
agreement, instrument or undertaking under which such Person is obligated or by
which it or any of the property owned by it is bound.
"CONTRIBUTION AGREEMENT" shall mean the Contribution Agreement
substantially in the form of Exhibit F.
"CREDIT DOCUMENTS" shall mean, collectively, this Agreement, as
amended from time to time, the Notes, the Guaranty Agreements and the
Contribution Agreements.
"CREDIT PARTIES" shall mean, collectively, each of the Borrower and
every other Person who from time to time executes a Credit Document who is
liable for all or any portion of the Obligations.
"DEFAULT" shall mean any condition or event which, with notice or
lapse of time or both, would constitute an Event of Default.
"DEFAULT RATE" shall mean the higher of (i) Base Rate plus two percent
(2%), or (ii) the interest rate otherwise applicable to said amount outstanding
plus two percent (2%), but in no event shall such interest rate exceed the
highest lawful rate.
"DOLLAR" and the sign "$" shall mean lawful money of the United States
of America.
"ELIGIBLE ASSIGNEE" shall mean (i) a commercial bank organized under
the laws of the United States, or any state thereof, having total assets in
excess of $1,000,000,000.00 or any commercial finance or asset based lending
Affiliate of any such commercial bank and (ii) any Lender or any Affiliate of
any Lender.
5
<PAGE> 12
"ENVIRONMENTAL LAWS" shall mean all federal, state, local and foreign
statutes and codes or regulations, rules or ordinances issued, promulgated, or
approved thereunder, and having the force of laws, now or hereafter in effect
(including, without limitation, those with respect to asbestos or asbestos
containing material or exposure to asbestos or asbestos containing material),
relating to pollution or protection of the environment and relating to public
health and safety, including, without limitation, those imposing liability or
standards of conduct concerning (i) emissions, discharges, releases or
threatened releases of pollutants, contaminants, chemicals or industrial toxic
or hazardous materials, substances or wastes, including without limitation, any
Hazardous Substance, petroleum including crude oil or any fraction thereof, any
petroleum product or other waste, chemicals or substances regulated by any
Environmental Law into the environment, (including without limitation, ambient
air, surface water, ground water, land surface or subsurface strata), or (ii)
the manufacture, processing, distribution, use, generation, treatment, storage,
disposal, transport or handling of any Hazardous Substance, petroleum including
crude oil or any fraction thereof, any petroleum product or other waste,
chemicals or substances regulated by any Environmental Law, and (iii)
underground storage tanks and related piping, and emissions, discharges and
releases or threatened releases therefrom, such Environmental Laws to include,
without limitation (v) the Clean Air Act (42 U.S.C. ss.7401 et seq.), (w) the
Clean Water Act (33 U.S.C. ss.1251 et seq.), (x) the Resource Conservation and
Recovery Act (42 U.S.C. ss.6901 et seq.), (y) the Toxic Substances Control Act
(15 U.S.C. ss.2601 et seq.) and (z) the Comprehensive Environmental Response
Compensation and Liability Act, as amended by the Superfund Amendments and
Reauthorization Act (42 U.S.C. ss.9601 et seq.).
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended and in effect from time to time.
"ERISA AFFILIATE" shall mean, as applied to the Borrower, any Person
or trade or business which is a member of a group which is under common control
with the Borrower, who together with such Borrower, is treated as a single
employer within the meaning of Section 414 (b),(c),(m) or (o) of the Code.
"EVENT OF DEFAULT" shall have the meaning set forth in Article 9.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute thereto.
"EXISTING CREDIT FACILITY" shall mean the credit facility extended by
SunTrust and certain other lenders to and in favor of the Borrower pursuant to
(i) that certain Revolving Credit Agreement dated as of July 16, 1997 and (ii)
that certain Revolving Loan Agreement dated as of January 29, 1999, as amended.
"EXTENSION OF CREDIT" shall mean the making of a Loan or the
conversion of a Loan of one Type into a Loan of another Type.
"FEDERAL FUNDS RATE" shall mean for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with member banks of the
Federal Reserve System arranged by Federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding
6
<PAGE> 13
Business Day) by the Federal Reserve Bank of Atlanta, or, if such rate is not
so published for any day which is a Business Day, the average of the quotations
for such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by the
Administrative Agent.
"FEE LETTER" shall mean that certain fee letter, dated May 27, 1999,
entered into by and among the Administrative Agent, the Borrower and SunTrust
Equitable Securities Corporation.
"FINAL MATURITY DATE" shall mean the date on which all commitments
have been terminated and all amounts outstanding under this Agreement have been
declared or have automatically become due and payable pursuant to the
provisions of Article 9.
"FUNDING LOSSES" shall have the meaning assigned to such term pursuant
to Section 4.12.
"GAAP" shall mean generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination.
"GUARANTY AGREEMENT" shall mean the Guaranty substantially in the form
of Exhibit G.
"GUARANTEED INDEBTEDNESS" shall mean, as to any Person, any obligation
of such Person guaranteeing any indebtedness, lease, dividend, or other
obligation ("primary obligation") of any other Person (the "primary obligor")
in any manner including, without limitation, any obligation or arrangement of
such Person (a) to purchase or repurchase any such primary obligation, (b) to
advance or supply funds (i) for the purchase or payment of any such primary
obligation or (ii) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency or any balance sheet
condition of the primary obligor, (c) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation, or (d) to indemnify the owner of such primary obligation
against loss in respect thereof; provided, however, that the guaranty of the
Loans by any Subsidiary shall not be included within the meaning of the term
"Guaranteed Indebtedness" for purposes of this Agreement.
"HAZARDOUS SUBSTANCES" has the meaning assigned to that term in
CERCLA.
"INCIDENTAL CONTRACTS" shall mean those contracts to which a
Consolidated Company is a party or by which its assets are bound, and as to
which either (i) the assets or services provided to the Consolidated Company
under said contract are not material or (ii) the assets or services so provided
under said contract are generic in nature and can readily be replaced on
substantially comparable terms and the loss of said assets or services in
either event would not have a Materially Adverse Effect.
"INDEBTEDNESS" of any Person shall mean, without duplication (i) all
obligations of such Person which in accordance with GAAP would be shown on the
balance sheet of such Person as a liability (including, without limitation,
obligations for borrowed money and for the deferred
7
<PAGE> 14
purchase price of property or services, and obligations evidenced by bonds,
debentures, notes or other similar instruments); (ii) all rental obligations
under leases required to be capitalized under GAAP; (iii) all Guaranteed
Indebtedness of such Person (including contingent reimbursement obligations
under undrawn letters of credit); (iv) Indebtedness of others secured by any
Lien upon property owned by such Person, whether or not assumed; and (v)
obligations or other liabilities under currency contracts, interest rate
hedging contracts, or similar agreements or combinations thereof.
"INTERCOMPANY LOANS" shall mean, collectively, (i) the loans more
particularly described on Schedule 6.22 and (ii) those loans or other
extensions of credit made by any Consolidated Company to another Consolidated
Company.
"INTEREST PERIOD" shall mean (i) 1, 2, 3 or 6 months as selected by
the Borrower with respect to LIBOR Advances; (ii) thirty (30) days with respect
to Base Rate Advances; and (iii) any period of not more than 7 days as selected
by the Borrower with respect to Swingline Advances; provided, that (a) the
first day of an Interest Period must be a Business Day, (b) any Interest Period
that would otherwise end on a day that is not a Business Day for LIBOR Loans
shall be extended to the next succeeding Business Day for LIBOR Loans, unless
such Business Day falls in the next calendar month, in which case the Interest
Period shall end on the next preceding Business Day for LIBOR Loans, and (c)
Borrower may not elect an Interest Period which would extend beyond the
Termination Date.
"INVESTMENT" shall mean, when used with respect to any Person, any
direct or indirect advance, loan or other extension of credit (other than the
creation of receivables in the ordinary course of business) or capital
contribution by such Person (by means of transfers of property to others or
payments for property or services for the account or use of others, or
otherwise) to any Person, or any direct or indirect purchase or other
acquisition by such Person of, or of a beneficial interest in, capital stock,
partnership interests, bonds, notes, debentures or other securities issued by
any other Person.
"LENDER" or "LENDERS" shall mean SunTrust, in its individual capacity,
the other banks and lending institutions listed on the signature pages hereof
and any lending institution added as a Lender after the Closing Date, and each
assignee thereof, if any, pursuant to Section 11.6.
"LENDING OFFICE" shall mean for each Lender the office such Lender may
designate in writing from time to time to Borrower and the Administrative Agent
with respect to each Type of Loan.
"LIBOR" shall mean, for any Interest Period, the offered rates for
deposits in U.S. dollars for a period comparable to the Interest Period
appearing on the Reuters Screen LIBOR Page as of 11:00 a.m., London time, on
the day that is two London banking days prior to the first day of the Interest
Period. If at least two such rates appear on the Reuters Screen LIBOR Page, the
rate for that Interest Period will be the arithmetic mean of such rates,
rounded, if necessary, to the next higher 1/16 of 1.0%; and in either case as
such rates may be adjusted for any applicable reserve requirements. If the
foregoing rate is unavailable from the Reuters Screen for any reason, then such
rate shall be determined by the Administrative Agent from Telerate or, if such
rate is also
8
<PAGE> 15
unavailable on such service, then on any other interest rate reporting service
of recognized standing designated in writing by the Administrative Agent to
Borrower and the Lenders; in any such case rounded, if necessary, to the next
higher 1/16 of 1.0%, if the rate is not such a multiple.
"LIBOR ADVANCE" or "LIBOR LOAN" shall mean an Advance made or
outstanding as a Revolving Loan and bearing interest based on LIBOR plus the
Applicable Margin.
"LIEN" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind or description and shall include,
without limitation, any agreement to give any of the foregoing, any conditional
sale or other title retention agreement, any capitalized lease in the nature
thereof including any lease or similar arrangement with a public authority
executed in connection with the issuance of industrial development revenue
bonds or pollution control revenue bonds, and the filing of or agreement to
give any financing statement under the Uniform Commercial Code of any
jurisdiction.
"LOANS" shall mean, collectively, the Base Rate Loans, the LIBOR Loans
and the Swingline Loans.
"MATERIALLY ADVERSE EFFECT" OR "MATERIAL ADVERSE CHANGE" shall mean a
material adverse effect upon, or a material adverse change in, the (i)
business, results of operations, properties, or financial condition of the
Consolidated Companies taken as a whole, (ii) legality, validity, binding
effect or enforceability of any Credit Document, or (iii) ability of the Credit
Parties (taken as a whole) to perform their obligations under the Credit
Documents.
"MAXIMUM SWINGLINE AMOUNT" shall mean the maximum aggregate principal
amount of Swingline Loans which may be outstanding at any one time, which shall
be $15,000,000.00.
"MOODY'S" shall mean Moody's Investors Service, Inc. and its
successors and assigns.
"MULTIEMPLOYER PLAN" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"NOTE" or "NOTES" shall mean, individually, or collectively, as the
context may require, any of the Revolving Credit Notes, either as originally
executed or as the same may be from time to time supplemented, modified,
amended, renewed, extended or replaced.
"NOTICE OF BORROWING" shall have the meaning provided in Section 4.1.
"NOTICE OF CONVERSION/CONTINUATION" shall have the meaning provided in
Section 4.1.
"OBLIGATIONS" shall mean all amounts owing to the Administrative Agent
or any Lender pursuant to the terms of this Agreement, any other Credit
Document or any document entered into in connection with any Rate Management
Transaction, including without limitation, all Loans (including all principal
and interest payments due thereunder), fees, expenses, indemnification and
reimbursement payments, indebtedness, liabilities, and obligations of the
Credit Parties, direct or indirect, absolute or contingent, liquidated or
unliquidated, now existing or hereafter arising, together with all renewals,
extensions, modifications or refinancings thereof.
9
<PAGE> 16
"PAYMENT OFFICE" shall mean the office of the Administrative Agent
located at 200 South Orange Avenue, Orlando, Florida; or such other location as
may be designated by the Administrative Agent from time to time in writing.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, and any
successor thereto.
"PERSON" shall mean and shall include an individual, a partnership, a
joint venture, a corporation, a limited liability company, a trust, an
unincorporated association, a government or any department or agency thereof
and any other entity whatsoever.
"PLAN" shall mean any employee benefit plan, program, arrangement,
practice or contract, maintained by or on behalf of the Borrower or an ERISA
Affiliate, which provides benefits or deferred compensation to or on behalf of
employees or former employees, whether formal or informal, whether or not
written, including but not limited to the following types of plans:
(i) Executive Arrangements - any bonus, incentive
compensation, stock option, deferred compensation, commission, severance,
"golden parachute", "rabbi trust," or other executive compensation plan,
program, contract, arrangement or practice;
(ii) ERISA Plans - any "employee benefit plan" as defined
in Section 3(3) of ERISA), including, but not limited to, any defined benefit
pension plan, profit sharing plan, money purchase pension plan, savings or
thrift plan, stock bonus plan, employee stock ownership plan, Multiemployer
Plan, or any plan, fund, program, arrangement or practice providing for welfare
benefits, medical (including post-retirement medical), hospitalization,
accident, sickness, disability, or life insurance benefits; and
(iii) Other Employee Fringe Benefits - any stock purchase,
vacation, scholarship, day care, prepaid legal services, severance pay or other
fringe benefit plan, program, arrangement, contract or practice.
"PRO RATA SHARE" shall mean, with respect to the Commitment of each
Lender, each Loan to be made by and each payment (including, without
limitation, any payment of principal, interest or fees) to be made to each
Lender, the approximate percentage designated as such Lender's Pro Rata Share
of the Total Commitment, such Loans or such payments, as applicable, set forth
under the name of such Lender on the respective signature page for such Lender,
in each case as such Pro Rata Share may change from time to time as a result of
assignments or amendments made pursuant to this Agreement, rounded to the
nearest one tenth of one percent.
"RATE MANAGEMENT TRANSACTION" shall mean any transaction (including
any agreement with respect thereto) now existing or hereafter entered into
between Borrower and any Lender which is a rate swap, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
forward transaction, currency swap transaction, cross-currency rate swap
transaction, currency option or any other similar transaction (including any
option with respect to any of these transactions) or any combination thereof,
whether linked to one or more interest rates, foreign currencies, commodity
prices, equity prices or other financial measures.
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<PAGE> 17
"REPORTABLE EVENT" has the meaning set forth in Act Section 4043(b) of
ERISA, but shall not include a Reportable Event as to which the provision for
thirty days' notice to the PBGC is waived under applicable regulations.
"REQUIRED LENDERS" shall mean, at any time, any three (3) or more
Lenders holding at least sixty-six and two-thirds percent (66-2/3%) of the then
aggregate amount of the Total Commitment.
"REQUIREMENT OF LAW" for any Person shall mean the articles or
certificate of incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or a court or other governmental authority, in
each case applicable to or binding upon such Person or any of its property or
to which such Person or any of its property is subject.
"REUTERS SCREEN" shall mean, when used in connection with any
designated page and LIBOR, the display page so designated on the Reuter Monitor
Money Rates Service (or such other page as may replace that page on that
service for the purpose of displaying rates comparable to LIBOR).
"REVOLVING CREDIT NOTES" shall mean, collectively, the promissory
notes evidencing the Revolving Loans in substantially the form attached hereto
as Exhibit B, either as originally executed or as the same may from time to
time be supplemented, modified, amended, renewed, extended or replaced.
"REVOLVING LOANS" shall mean, collectively, the revolving credit loans
made to Borrower by the Lenders pursuant to Article 2.
"REVOLVING LOAN COMMITMENT" shall mean, at any time for any Lender,
the amount of such commitment set forth opposite such Lender's name on the
signature pages hereof, as the same may be increased or decreased from time to
time as a result of any reduction thereof pursuant to Section 2.3, any
assignment thereof pursuant to Section 11.6, or any amendment thereof pursuant
to Section 11.2, which amount shall include such Lender's Revolving Loans.
"S & P" shall mean the Standard & Poor's Corporation and its
successors and assigns.
"SENIOR MANAGEMENT" shall mean with respect to any Person the Chief
Executive Officer, the President, the Executive Vice Presidents and the Chief
Financial Officer and any Person holding comparable offices or duties.
"STOCKHOLDERS' EQUITY" shall mean, with respect to any Person as at
any date of determination, the stockholders' equity of such Person, determined
on a consolidated basis.
"SUBORDINATED DEBT" shall mean Indebtedness of Borrower and its
Subsidiaries subordinated to all obligations of Borrower and its Subsidiaries
or any other Credit Party arising under this Agreement and the Notes on terms
and conditions satisfactory in all respects to the Administrative Agent and the
Required Lenders, including without limitation, with respect to interest rates,
payment terms, maturities, amortization schedules, covenants, defaults,
remedies, and
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<PAGE> 18
subordination provisions, as evidenced by the written approval of the
Administrative Agent and Required Lenders.
"SUBSIDIARY" shall mean, with respect to any Person, any corporation
or other entity (including, without limitation, partnerships, joint ventures,
and associations) regardless of its jurisdiction of organization or formation,
at least a majority of the total combined voting power of all classes of voting
stock or other ownership interests of which shall, at the time as of which any
determination is being made, be owned by such Person, either directly or
indirectly through one or more other Subsidiaries.
"SWINGLINE ADVANCE" or "SWINGLINE LOAN" shall mean an Advance made or
outstanding as a Revolving Loan and made to Borrower by SunTrust pursuant to
Section 2.4.
"SYNDICATE REVOLVING LOAN" shall mean, collectively, the Revolving
Loans made to Borrower hereunder.
"TAXES" shall mean any present or future taxes, levies, imposts,
duties, fees, assessments, deductions, withholdings or other charges of
whatever nature, including without limitation, income, receipts, excise,
property, sales, transfer, license, payroll, withholding, social security and
franchise taxes now or hereafter imposed or levied by the United States, or any
state, local or foreign government or by any department, agency or other
political subdivision or taxing authority thereof or therein and all interest,
penalties, additions to tax and similar liabilities with respect thereto.
"TELERATE" shall mean, when used in connection with any designated
page and "LIBOR," the display page so designated on the Dow Jones Telerate
Service (or such other page as may replace that page on that service for the
purpose of displaying rates comparable to "LIBOR").
"TERMINATION DATE" shall mean the earlier of (a) July 29, 2004 or (b)
the occurrence of an Event of Default; or such later date as the Administrative
Agent and the Lenders, in their sole discretion, may agree to in writing.
"TERMINATION EVENT" shall mean (a) a Reportable Event; (b) the filing
of a notice of intent to terminate a Plan or the treatment of a Plan amendment
as a termination under Act Section 4041 of ERISA or (c) the institution of
proceedings to terminate a Plan by the PBGC under Act Section 4042 of ERISA or
the appointment of a trustee to administer any Plan.
"TOTAL CAPITALIZATION" shall mean the sum of Consolidated Funded Debt
and Stockholders' Equity.
"TOTAL COMMITMENT" shall mean the sum of the Lenders' Commitments as
such Total Commitment may be increased or reduced by voluntary reduction,
prepayment or nonrenewal of a Lender's Commitment as provided herein.
"TYPE" of Borrowing shall mean a Borrowing consisting of Base Rate
Advances or LIBOR Advances.
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<PAGE> 19
"WHOLLY-OWNED SUBSIDIARY" shall mean any Subsidiary, all of the stock
of every class of which, except directors' qualifying shares, shall, at the
time as of which any determination is being made, be owned by the Borrower
either directly or through Wholly-Owned Subsidiaries.
SECTION 1.2. ACCOUNTING TERMS AND DETERMINATIONS. Unless otherwise
defined or specified herein, all accounting terms shall be construed herein,
all accounting determinations hereunder shall be made, all financial statements
required to be delivered hereunder shall be prepared, and all financial records
shall be maintained in accordance with GAAP.
SECTION 1.3. OTHER DEFINITIONAL PROVISIONS.
(a) Except as otherwise specified herein, references herein
to any agreement or contract defined or referred to herein shall be deemed a
reference to any such agreement or contract (and in the case of any instrument,
any other instrument issued in substitution therefor) as the terms thereof may
have been or may be amended, supplemented, waived or otherwise modified from
time to time.
(b) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Article,
Section, Schedule, Exhibit and like references are to this Agreement unless
otherwise specified.
(c) The singular pronoun, when used in this Agreement, shall
include the plural and neuter shall include the masculine and the feminine.
(d) All terms defined in this Agreement shall have the
defined meanings when used in any Note or, except as otherwise expressly stated
herein, any certificate, opinion, or other document delivered pursuant hereto.
SECTION 1.4. EXHIBITS AND SCHEDULES. All Exhibits and Schedules
attached hereto are by reference made a part hereof.
ARTICLE 2
REVOLVING LOANS
SECTION 2.1. COMMITMENT; USE OF PROCEEDS.
(a) Subject to and upon the terms and conditions herein set
forth, each Lender severally agrees from time to time on and after the Closing
Date, but prior to the Termination Date, to make the Revolving Loans as
provided in this Section 2.1. Borrower shall be entitled to repay and reborrow
Revolving Loans in accordance with the provisions hereof.
(b) The sum of the aggregate unpaid principal amount of any
Lender's Revolving Loans outstanding shall not exceed at any time such Lender's
Revolving Loan Commitment.
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<PAGE> 20
(c) The sum of the aggregate unpaid principal amount of all
Revolving Loans shall not exceed at any time the Total Commitment for all
Lenders.
(d) Except as set forth below in Section 2.4, with respect to
Swingline Loans, each Revolving Loan shall, at the option of Borrower, be made
or continued as, or converted into, part of one or more Borrowings that shall
consist entirely of Syndicate Revolving Loans (as Base Rate Advances or LIBOR
Advances). The aggregate principal amount of each Borrowing of Syndicate
Revolving Loans comprised of Base Rate Advances shall be not less than
$1,000,000.00 or a greater integral multiple of $100,000.00 and LIBOR Advances
shall be not less than $5,000,000.00 or a greater integral multiple of
$1,000,000.00. At no time shall the number of Borrowings of Syndicate Revolving
Loans comprised of LIBOR Advances outstanding under this Article 2 exceed
fifteen (15); provided that, for the purpose of determining the minimum amount
for Borrowings resulting from conversions or continuations, all Borrowings of
Base Rate Advances under this Facility shall be considered as one Borrowing. In
the case of SunTrust, its obligation to make Syndicate Revolving Loans
consisting of Base Rate Advances and LIBOR Advances shall be reduced by the
aggregate outstanding principal amount of Swingline Advances from time to time.
(e) Except as set forth below in Section 2.4 with respect to
Swingline Loans, the proceeds of Revolving Loans shall be used for working
capital and for other general corporate purposes of the Borrower, including
acquisitions, capital expenditures and to buy back stock of the Borrower.
SECTION 2.2. NOTES; REPAYMENT OF PRINCIPAL.
(a) Borrower's obligations to pay the principal of, and
interest on, the Syndicate Revolving Loans to each Lender shall be evidenced by
the records of the Administrative Agent and such Lender and by the Revolving
Credit Note payable to such Lender (or the assignor of such Lender) completed
in conformity with this Agreement.
(b) All outstanding principal amounts under the Revolving
Loans shall be due and payable in full on the Termination Date.
SECTION 2.3. VOLUNTARY REDUCTION OF REVOLVING LOAN COMMITMENTS. Upon
at least three (3) Business Days' prior telephonic notice (which notice shall
be irrevocable and promptly confirmed in writing) to the Administrative Agent,
Borrower shall have the right, without premium or penalty, to terminate the
Revolving Loan Commitments, in part or in whole, provided that (i) any such
termination shall apply to proportionately and permanently reduce the Revolving
Loan Commitments of each of the Lenders, provided however that after any such
reduction, the Revolving Loan Commitments may not be increased without the
prior written consent of all Lenders, (ii) any partial termination pursuant to
this Section 2.3 shall be in an amount of at least $10,000,000.00 and integral
multiples of $1,000,000.00, and (iii) no such reduction shall be permitted
without payment of all costs required to be paid hereunder with respect to a
prepayment. If the aggregate outstanding amount of the Revolving Loans exceeds
the amount of the Revolving Loan Commitments as so reduced, Borrower shall
immediately repay the Revolving Loans for the ratable account of the Lenders by
an amount equal to such excess, together with all accrued but unpaid interest
on such excess amount and any amounts due under Section 4.12 hereof.
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<PAGE> 21
SECTION 2.4. SWINGLINE LOANS.
(a) Subject to and upon the terms and conditions herein set
forth, SunTrust agrees from time to time on and after the Closing Date, but
prior to the Termination Date, to make Swingline Loans to Borrower in an
aggregate principal amount outstanding at any time not to exceed the Maximum
Swingline Amount.
(b) Each such Swingline Loan shall be made in the amounts and
at the times as may be mutually agreed upon from time to time by and between
the Borrower and SunTrust and shall bear interest at such rate or rates as may
be mutually agreed upon by and between the Borrower and SunTrust from time to
time for each Swingline Loan.
(c) The proceeds of Swingline Loans shall be used for working
capital and for other general corporate purposes of the Borrower.
SECTION 2.5. ADDITIONAL LENDERS. In the event that financial
institutions other than those serving as Lenders on the Closing Date are added
as Lenders subsequent to the Closing Date, the Borrower and each such
additional Lender shall execute and deliver to the Administrative Agent an
additional lender certificate substantially in the form of Exhibit C. No such
financial institution shall be added as a Lender without Borrower's prior
written consent, which consent shall not be unreasonably withheld or delayed.
ARTICLE 3
[RESERVED]
ARTICLE 4
GENERAL LOAN TERMS
SECTION 4.1. FUNDING NOTICES.
(a) Whenever Borrower desires to make a Borrowing with
respect to the Revolving Loan Commitments (other than one resulting from a
Swingline Advance pursuant to Section 2.4 or a conversion or continuation
pursuant to Section 4.1(b)), it shall give the Administrative Agent prior
notice (if by telephone, promptly confirmed in writing) of such Borrowing (a
"Notice of Borrowing"), such Notice of Borrowing to be given prior to 11:00
A.M. (local time for the Administrative Agent) at its Payment Office (i) one
Business Day prior to the requested date of such Borrowing in the case of
Revolving Loans comprised of Base Rate Advances, and (ii) three Business Days
prior to the requested date of such Borrowing in the case of LIBOR Advances.
Notices received after 11:00 A.M. shall be deemed received on the next Business
Day. Each Notice of Borrowing shall be irrevocable and shall specify the
aggregate principal amount of the Borrowing, the date of Borrowing (which shall
be a Business Day), whether the Borrowing is to consist of Base Rate Advances
or LIBOR Advances and (in the case of LIBOR Advances) the Interest Period to be
applicable thereto. Swingline Advances shall be made by SunTrust from time to
time upon such terms and conditions as may be mutually agreed upon by and
between the Borrower and SunTrust from time to time for each such Swingline
Loan.
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<PAGE> 22
(b) Whenever Borrower desires to convert all or a portion of
an outstanding Borrowing under the Syndicate Revolving Loans, which Borrowing
consists of Base Rate Advances or LIBOR Advances, into one or more Borrowings
consisting of Advances of another Type, or to continue outstanding a Borrowing
consisting of LIBOR Advances for a new Interest Period, it shall give the
Administrative Agent at least three Business Days' prior notice (if by
telephone, promptly confirmed in writing) of each such Borrowing to be
converted into or continued as LIBOR Advances. Such notice (a "Notice of
Conversion/Continuation") shall be given prior to 11:00 A.M. (local time for
the Administrative Agent) on the date specified at the Payment Office of the
Administrative Agent. Each such Notice of Conversion/Continuation shall be
irrevocable and shall specify the aggregate principal amount of the Advances to
be converted or continued, the date of such conversion or continuation, whether
the Advances are being converted into or continued as Base Rate Advances or
LIBOR Advances and (in the case of LIBOR Advances) the Interest Period
applicable thereto. If, upon the expiration of any Interest Period in respect
of any Borrowing, Borrower shall have failed to give a Notice of
Conversion/Continuation, Borrower shall be deemed to have elected to convert or
continue such Borrowing to a Borrowing consisting of Base Rate Advances. So
long as any Default or Event of Default shall have occurred and be continuing,
no Borrowing may be converted into or continued (upon expiration of the current
Interest Period) as LIBOR Advances. No conversion or continuation of any
Borrowing of LIBOR Advances shall be permitted except on the last day of the
Interest Period in respect thereof.
(c) The Administrative Agent and the Lenders may act without
liability upon the basis of any such notice given pursuant to this Section 4.1
reasonably believed by the Administrative Agent or any Lender in good faith to
be from Borrower in making Loans hereunder or in continuing or converting Loans
or Advances outstanding hereunder.
(d) The Administrative Agent shall promptly give each Lender
notice by telephone (confirmed in writing) or by telex, telecopy or facsimile
transmission of the matters covered by the notices given to the Administrative
Agent pursuant to this Section 4.1 with respect to the Revolving Credit
Commitments.
(e) Notwithstanding anything to the contrary contained
elsewhere in this Agreement, any notice given under this Section 4.1 shall be
given by the Borrower in accordance with reasonable written policies of the
Administrative Agent in effect from time to time and provided to the Borrower
by the Administrative Agent, which policies shall be binding on the Borrower.
SECTION 4.2. DISBURSEMENT OF FUNDS.
(a) No later than 1:00 p.m. (local time for the
Administrative Agent) on the date of each Borrowing pursuant to the Revolving
Loan Commitments (other than one resulting from a Swingline Advance pursuant to
Section 2.4 or a conversion or continuation pursuant to Section 4.1(b)), each
Lender will make available its Pro Rata Share of the amount of such Borrowing
in immediately available funds at the Payment Office of the Administrative
Agent. The Administrative Agent will make available to Borrower the aggregate
of the amounts (if any) so made available by the Lenders to the Administrative
Agent in a timely manner by crediting such amounts to Borrower's demand deposit
account maintained with the Administrative Agent or at
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<PAGE> 23
Borrower's option, to effect a wire transfer of such amounts to Borrower's
account specified by the Borrower, by the close of business on such Business
Day. In the event that the Lenders do not make such amounts available to the
Administrative Agent by the time prescribed above, but such amount is received
later that day, such amount may be credited to Borrower in the manner described
in the preceding sentence on the next Business Day (with interest on such
amount to begin accruing hereunder on such next Business Day).
(b) Unless the Administrative Agent shall have been notified
by any Lender prior to the date of a Borrowing that such Lender does not intend
to make available to the Administrative Agent such Lender's portion of the
Borrowing to be made on such date, the Administrative Agent may assume that
such Lender has made such amount available to the Administrative Agent on such
date and the Administrative Agent may make available to Borrower a
corresponding amount. If such corresponding amount is not in fact made
available to the Administrative Agent by such Lender on the date of such
Borrowing, the Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest at the
Federal Funds Rate. If such Lender does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the Administrative
Agent shall promptly notify Borrower, and Borrower shall immediately pay such
corresponding amount to the Administrative Agent together with interest at the
rate specified for the Borrowing. Nothing in this subsection shall be deemed to
relieve any Lender from its obligation to fund its Commitments hereunder or to
prejudice any rights which Borrower may have against any Lender as a result of
any default by such Lender hereunder.
(c) All Borrowings under the Syndicate Revolving Loan shall
be loaned by the Lenders on the basis of their Pro Rata Share of the Total
Commitment. No Lender shall be responsible for any default by any other Lender
in its obligations hereunder, and each Lender shall be obligated to make the
Loans provided to be made by it hereunder, regardless of the failure of any
other Lender to fund its Commitment hereunder.
SECTION 4.3. INTEREST.
(a) Borrower agrees to pay interest in respect of all unpaid
principal amounts of the Revolving Loans from the respective dates such
principal amounts were advanced to maturity (whether by acceleration, notice of
prepayment or otherwise) at rates per annum (on the basis of a 360 day year)
equal to the applicable rates indicated below:
(i) For Base Rate Advances--The Base Rate in effect
from time to time;
(ii) For LIBOR Advances--The applicable LIBOR plus
the Applicable Margin.
(iii) For Swingline Advances--The rate or rates
which shall be mutually agreed upon from time to time by the Borrower and
SunTrust for each such Swingline Loan or Advance.
(b) Overdue principal (whether by non-payment at scheduled
due date, acceleration, notice of prepayment or otherwise) and, to the extent
not prohibited by applicable law,
17
<PAGE> 24
overdue interest, in respect of the Revolving Loans and all other overdue
amounts owing hereunder, shall bear interest from each date that such amounts
are overdue at the Default Rate.
(c) Interest on each Loan shall accrue from and including the
date of such Loan to but excluding the date of any repayment thereof; provided
that, if a Loan is repaid on the same day made, one day's interest shall be
paid on such Loan. Interest on all outstanding Base Rate Advances shall be
payable quarterly in arrears on the last calendar day of each quarter. Interest
on all outstanding LIBOR Advances shall be payable on the last day of each
Interest Period applicable thereto and, with respect to Advances made for an
Interest Period longer that three (3) months, also on the last day of each
three (3) month period prior to the end of the Interest Period. Interest on all
outstanding Swingline Advances shall be payable on the last day of each
Interest Period applicable thereto. Interest on all Loans shall be payable on
any conversion of any Advances comprising such Loans into Advances of another
Type, prepayment (on the amount prepaid), at maturity (whether by acceleration,
notice of prepayment or otherwise) and, after maturity, on demand.
SECTION 4.4. INTEREST PERIODS. In connection with the making or
continuation of, or conversion into, each Loan comprised of LIBOR Advances,
Borrower shall select an Interest Period to be applicable to such LIBOR
Advances, which Interest Period shall be either a 1, 2, 3 or 6 month period;
provided that:
(a) The initial Interest Period for any Borrowing of LIBOR
Advances shall commence on the date of such Borrowing (including the date of
any conversion from a Borrowing consisting of Advances of another Type) and
each Interest Period occurring thereafter in respect of such Borrowing shall
commence on the day on which the next preceding Interest Period expires;
(b) If any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, provided that if any Interest Period in respect of
LIBOR Advances would otherwise expire on a day that is not a Business Day but
is a day of the month after which no further Business Day occurs in such month,
such Interest Period shall expire on the next preceding Business Day;
(c) Any Interest Period in respect of LIBOR Advances which
begins on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period shall, subject to Section
4.4(d), below, expire on the last Business Day of such calendar month;
(d) No Interest Period shall extend beyond any date upon
which any principal payment is due with respect to the Revolving Loans.
SECTION 4.5. CERTAIN FEES.
(a) Commitment Fee. Borrower shall pay to the Administrative
Agent, for the account of and ratable distribution to each Lender, a Commitment
Fee for the period commencing on the Closing Date to and including the
Termination Date, on the average daily unused portions of the Revolving Loan
Commitment of each Lender, such fee being payable quarterly in arrears on the
last calendar day of each fiscal quarter of Borrower and on the Termination
Date, computed at a
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<PAGE> 25
rate equal to the number of basis points designated below based on the
Borrower's Consolidated Funded Debt to Total Capitalization Ratio, measured
quarterly:
<TABLE>
<CAPTION>
CONSOLIDATED FUNDED DEBT TO TOTAL CAPITALIZATION RATIO
<S> <C> <C> <C> <C>
<25.0% >25.0% and <35.0% >35.0% and <45.0% >45.0% and <50.0% >50%
- - - -
15.00 bp 17.50 bp 22.50 bp 25.00 bp 30.00 bp
</TABLE>
provided, however, that adjustments, if any, to such commitment fee based on
changes in the Borrower's Consolidated Funded Debt to Total Capitalization
Ratio as set forth above shall be calculated by the Administrative Agent
quarterly, based upon the Borrower's quarterly financial statements, beginning
with the Borrower's statements for the period ended March 2, 1999, and shall
become effective on the first day of the next succeeding fiscal quarter
following the date of such calculation; provided, however, if the Borrower
shall fail to deliver any such quarterly financial statements within the time
period required by Section 7.7 hereof, then the Commitment Fee shall be that
shown above for a Consolidated Funded Debt to Total Capitalization Ratio equal
to or greater than 50%; and provided, further, however, if the Borrower shall
fail to deliver any such quarterly financial statements within the time period
required by Section 7.7 hereof, then the Commitment Fee which will be effective
on the first day of the next succeeding fiscal quarter following such failure
shall be that shown above for a Consolidated Funded Debt to Total Capitlization
Ratio equal to or greater than 50%, it being understood that if and when such
quarterly financial statements are subsequently delivered, then the Commitment
Fee shall be readjusted, effective upon and as of the date of such delivery, to
that number of basis points designated above based on the Borrower's
Consolidated Funded Debt to Total Capitalization Ratio as reflected in such
delivered quarterly financial statements.
(b) Annual Administrative Fee. Borrower shall pay to the
Administrative Agent an annual administrative fee, in advance, as set forth in
the Commitment Letter.
(c) Other Fees. Borrower shall pay, as and when due and
payable, such other fees as are required pursuant to the Fee Letter and the
Commitment Letter.
SECTION 4.6. VOLUNTARY PREPAYMENTS OF BORROWINGS.
(a) Borrower may, at its option, prepay Borrowings consisting
of Base Rate Advances at any time in whole, or from time to time in part, in
amounts aggregating $1,000,000.00 or any greater integral multiple of
$100,000.00, by paying the principal amount to be prepaid together with
interest accrued and unpaid thereon to the date of prepayment. Those Borrowings
consisting of LIBOR Advances may be prepaid, at Borrower's option, in whole, or
from time to time in part, in the respective minimum amounts set forth in this
Section 4.6(a) by paying the principal amount to be prepaid, together with
interest accrued and unpaid thereon to the date of prepayment, and all
compensation payments pursuant to Section 4.12 if such prepayment is made
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on a date other than the last day of an Interest Period applicable thereto.
Each such optional prepayment shall be applied in accordance with Section
4.6(c) below.
(b) Borrower shall give written notice (or telephonic notice
confirmed in writing) to the Administrative Agent of any intended prepayment of
the Revolving Loans not less than two Business Days prior to any prepayment.
Such notice, once given, shall be irrevocable. Upon receipt of such notice of
prepayment pursuant to the first sentence of this paragraph (b), the
Administrative Agent shall promptly notify each Lender of the contents of such
notice and of such Lender's Pro Rata Share of such prepayment.
(c) Borrower, when providing notice of prepayment pursuant to
Section 4.6(b) may designate the Types of Advances and the specific Borrowing
or Borrowings which are to be prepaid, provided that (i) if any prepayment of
LIBOR Advances made pursuant to a single Borrowing of the Revolving Loans shall
reduce the outstanding Advances made pursuant to such Borrowing to an amount
less than $1,000,000.00, such Borrowing shall immediately be converted into
Base Rate Advances; and (ii) each prepayment made pursuant to a single
Borrowing shall be applied pro rata among the Loans comprising such Borrowing.
SECTION 4.7. PAYMENTS, ETC.
(a) Except as otherwise specifically provided herein, all
payments under this Agreement and the other Credit Documents shall be made
without defense, set-off or counterclaim to the Administrative Agent, not later
than 1:00 p.m. (local time for the Administrative Agent) on the date when due
and shall be made in Dollars in immediately available funds at the Payment
Office.
(b) (i) All such payments shall be made free and clear of and
without deduction or withholding for any Taxes in respect of this Agreement,
the Notes or other Credit Documents, or any payments of principal, interest,
fees or other amounts payable hereunder or thereunder (but excluding any Taxes
imposed on the overall net income of the Lenders). If any Taxes are so levied
or imposed, Borrower agrees (A) to pay the full amount of such Taxes, and such
additional amounts as may be necessary so that every net payment of all amounts
due hereunder and under the Notes and other Credit Documents, after withholding
or deduction for or on account of any such Taxes (including additional sums
payable under this Section 4.7), will not be less than the full amount provided
for herein had no such deduction or withholding been required, (B) to make such
withholding or deduction and (C) to pay the full amount deducted to the
relevant authority in accordance with applicable law. Borrower will furnish to
the Administrative Agent and each Lender, within 30 days after the date the
payment of any Taxes is due pursuant to applicable law, certified copies of tax
receipts evidencing such payment by Borrower. Borrower will indemnify and hold
harmless the Administrative Agent and each Lender and reimburse the
Administrative Agent and each Lender upon written request for the amount of any
Taxes so levied or imposed and paid by the Administrative Agent or any Lender
and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes were correctly or
illegally asserted. A certificate as to the amount of such payment by such
Lender or the Administrative Agent, absent manifest error, shall be final,
conclusive and binding for all purposes.
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(ii) Each Lender that is organized under the laws of any
jurisdiction other than the United States of America or any State thereof
(including the District of Columbia) agrees to furnish to Borrower and the
Administrative Agent, prior to the time it becomes a Lender hereunder, two
copies of either U.S. Internal Revenue Service Form 4224 or U.S. Internal
Revenue Service Form 1001 or any successor forms thereto (wherein such Lender
claims entitlement to complete exemption from or reduced rate of U.S. Federal
withholding tax on interest paid by Borrower hereunder) and to provide to
Borrower and the Administrative Agent a new Form 4224 or Form 1001 or any
successor forms thereto if any previously delivered form is found to be
incomplete or incorrect in any material respect or upon the obsolescence of any
previously delivered form; provided, however, that no Lender shall be required
to furnish a form under this paragraph (ii) if it is not entitled to claim an
exemption from or a reduced rate of withholding under applicable law. A Lender
that is not entitled to claim an exemption from or a reduced rate of
withholding under applicable law, promptly upon written request of Borrower,
shall so inform Borrower in writing.
(c) Whenever any payment to be made hereunder or under any
Note shall be stated to be due on a day which is not a Business Day, the due
date thereof shall be extended to the next succeeding Business Day and, with
respect to payments of principal, interest thereon shall be payable at the
applicable rate during such extension.
(d) All computations of interest and fees shall be made on
the basis of a year of 360 days for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest or fees are payable (to the extent computed on the basis of days
elapsed). Interest on Base Rate Advances shall be calculated based on the Base
Rate from and including the date of such Loan to but excluding the date of the
repayment or conversion thereof. Interest on LIBOR Advances shall be calculated
as to each Interest Period from and including the first day thereof to but
excluding the last day thereof.
(e) Payment by Borrower to the Administrative Agent in
accordance with the terms of this Agreement shall, as to Borrower, constitute
payment to the Lenders under this Agreement.
(f) Application of Payments. Except as hereinafter set forth
with respect to Swingline Loans, all payments made on the Notes shall be
applied (i) first to any accrued but unpaid fees as set forth in Section 4.5,
(ii) next, to interest accrued to the date of payment, (iii) next, to any
compensation payments pursuant to Section 4.12, if applicable, and (iv) then to
the unpaid principal balance; provided, however, in the event an Event of
Default occurs and is continuing, payments shall be applied first to any costs
or expenses, including reasonable attorneys' fees that the Administrative Agent
or any of the Lenders may incur in exercising their rights under this Agreement
or the other Credit Documents. All payments made on Swingline Loans shall be
applied as determined by SunTrust in its sole and absolute discretion.
SECTION 4.8. INTEREST RATE NOT ASCERTAINABLE, ETC. In the event that
the Administrative Agent shall have determined (which determination shall be
made in good faith and, absent manifest error, shall be final, conclusive and
binding upon all parties) that on any date for determining LIBOR for any
Interest Period, by reason of any changes arising after the date of this
Agreement,
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adequate and fair means do not exist for ascertaining LIBOR then, and in any
such event, the Administrative Agent shall forthwith give notice (by telephone
confirmed in writing) to Borrower and to the Lenders of such determination and
a summary of the basis for such determination. Until the Administrative Agent
notifies Borrower that the circumstances giving rise to the suspension
described herein no longer exist, the obligations of the Lenders to make or
permit portions of the Revolving Loans to remain outstanding past the last day
of the then current Interest Periods as LIBOR Advances shall be suspended, and
such affected Advances shall bear the same interest as Base Rate Advances.
SECTION 4.9. ILLEGALITY.
(a) In the event that any Lender shall have determined (which
determination shall be made in good faith and, absent manifest error, shall be
final, conclusive and binding upon all parties) at any time that the making or
continuance of any LIBOR Advance has become unlawful or impractical by
compliance by such Lender in good faith with any applicable law, governmental
rule, regulation, guideline or order (whether or not having the force of law
and whether or not failure to comply therewith would be unlawful), then, in any
such event, the Lender shall give prompt notice (by telephone confirmed in
writing) to Borrower and to the Administrative Agent of such determination and
a summary of the basis for such determination (which notice the Administrative
Agent shall promptly transmit to the other Lenders).
(b) Upon the giving of the notice to Borrower referred to in
subsection (a) above, (i) Borrower's right to request and such Lender's
obligation to make LIBOR Advances shall be immediately suspended, and such
Lender shall make an Advance as part of the requested Borrowing of LIBOR
Advances as a Base Rate Advance, which Base Rate Advance shall, for all other
purposes, be considered part of such Borrowing, and (ii) if the affected LIBOR
Advance or Advances are then outstanding, Borrower shall immediately, or if
permitted by applicable law, no later than the date permitted thereby, upon at
least one Business Day's written notice to the Administrative Agent and the
affected Lender, convert each such Advance into an Advance or Advances of a
different Type with an Interest Period ending on the date on which the Interest
Period applicable to the affected LIBOR Advances expires, provided that if more
than one Lender is affected at any time, then all affected Lenders must be
treated the same pursuant to this Section 4.9(b).
SECTION 4.10. INCREASED COSTS.
(a) If, by reason of (i) after the date hereof, the
introduction of or any change (including, without limitation, any change by way
of imposition or increase of reserve requirements) in or in the interpretation
of any law or regulation, or (ii) the compliance with any guideline or request
from any central bank or other governmental authority or quasi-governmental
authority exercising control over banks or financial institutions generally
(whether or not having the force of law):
(1) any Lender (or its applicable Lending Office) shall
be subject to any tax, duty or other charge with respect to
its LIBOR Advances or its obligation to make LIBOR Advances,
or the basis of taxation of payments to any Lender of the
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principal of or interest on its LIBOR Advances or its
obligation to make LIBOR Advances shall have changed (except
for changes in the tax on the overall net income of such
Lender or its applicable Lending Office); or
(2) any reserve (including, without limitation, any
imposed by the Board of Governors of the Federal Reserve
System), special deposit or similar requirement against
assets of, deposits with or for the account of, or credit
extended by, any Lender's applicable Lending Office shall be
imposed or deemed applicable or any other condition affecting
its LIBOR Advances or its obligation to make LIBOR Advances
shall be imposed on any Lender or its applicable Lending
Office or the London interbank market or the United States
secondary certificate of deposit market;
and as a result thereof there shall be any increase in the cost to such Lender
of agreeing to make or making, funding or maintaining LIBOR Advances, or there
shall be a reduction in the amount received or receivable by such Lender or its
applicable Lending Office, then Borrower shall from time to time (subject, in
the case of certain Taxes, to the applicable provisions of Section 4.7(b)),
upon written notice from and demand by such Lender on Borrower (with a copy of
such notice and demand to the Administrative Agent), pay to the Administrative
Agent for the account of such Lender within five Business Days after the date
of such notice and demand, additional amounts sufficient to indemnify such
Lender against such increased cost. A certificate as to the amount of such
increased cost, submitted to Borrower and the Administrative Agent by such
Lender in good faith and accompanied by a statement prepared by such Lender
describing in reasonable detail the basis for and calculation of such increased
cost, shall, except for manifest error, be final, conclusive and binding for
all purposes.
(b) If any Lender shall advise the Administrative Agent that
at any time, because of the circumstances described in clauses (i) or (ii) in
paragraph 4.10(a) above or any other circumstances beyond such Lender's control
arising after the date of this Agreement affecting such Lender or the London
interbank market or such Lender's position in such market, LIBOR as determined
by the Administrative Agent will not adequately and fairly reflect the cost to
such Lender of funding its LIBOR Advances, then, and in any such event:
(i) the Administrative Agent shall forthwith give notice
(by telephone confirmed in writing) to Borrower and to the other Lenders of
such advice;
(ii) Borrower's right to request and such Lender's
obligation to make or permit portions of the Loans to remain outstanding as
LIBOR Advances past the last day of the then current Interest Periods shall be
immediately suspended; and
(iii) such Lender shall make a Loan as part of the
requested Borrowing of LIBOR Advances as a Base Rate Advance, which such Base
Rate Advance shall, for all other purposes, be considered part of such
Borrowing.
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SECTION 4.11. LENDING OFFICES.
(a) Each Lender agrees that, if requested by Borrower, it
will use reasonable efforts (subject to overall policy considerations of such
Lender) to designate an alternate Lending Office with respect to any of its
LIBOR Advances affected by the matters or circumstances described in Sections
4.7(b), 4.8, 4.9 or 4.10 to reduce the liability of Borrower or avoid the
results provided thereunder, so long as such designation is not disadvantageous
to such Lender as determined by such Lender, which determination if made in
good faith, shall be conclusive and binding on all parties hereto. Nothing in
this Section 4.11 shall affect or postpone any of the obligations of Borrower
or any right of any Lender provided hereunder.
(b) If any Lender that is organized under the laws of any
jurisdiction other than the United States of America or any State thereof
(including the District of Columbia) issues a public announcement with respect
to the closing of its lending offices in the United States such that any
withholdings or deductions and additional payments with respect to Taxes may be
required to be made by Borrower thereafter pursuant to Section 4.7(b), such
Lender shall use reasonable efforts to furnish Borrower notice thereof as soon
as practicable thereafter; provided, however, that no delay or failure to
furnish such notice shall in any event release or discharge Borrower from its
obligations to such Lender pursuant to Section 4.7(b) or otherwise result in
any liability of such Lender.
SECTION 4.12. FUNDING LOSSES. Borrower shall compensate each Lender,
upon its written request to Borrower (which request shall set forth the basis
for requesting such amounts in reasonable detail and which request shall be
made in good faith), for all losses, expenses and liabilities (including,
without limitation, any interest paid by such Lender to lenders of funds
borrowed by it to make or carry its LIBOR Advances, in either case to the
extent not recovered by such Lender in connection with the reemployment of such
funds and including loss of anticipated profits), which the Lender may sustain
(collectively, "Funding Losses"): (i) if for any reason (other than a default
by such Lender) a borrowing of, or conversion to or continuation of, LIBOR
Advances to Borrower does not occur on the date specified therefor in a Notice
of Borrowing or Notice of Conversion/Continuation (whether or not withdrawn),
(ii) if any repayment (including mandatory prepayments and any conversions
pursuant to Section 4.9(b)) of any LIBOR Advances to Borrower occurs on a date
which is not the last day of an Interest Period applicable thereto, or (iii)
if, for any reason, Borrower defaults in its obligation to repay its LIBOR
Advances when required by the terms of this Agreement.
SECTION 4.13. ASSUMPTIONS CONCERNING FUNDING OF LIBOR ADVANCES.
Calculation of all amounts payable to a Lender under this Article 4 shall be
made as though that Lender had actually funded its relevant LIBOR Advances
through the purchase of deposits in the relevant market bearing interest at the
rate applicable to such LIBOR Advances in an amount equal to the amount of the
LIBOR Advances and having a maturity comparable to the relevant Interest Period
and through the transfer of such LIBOR Advances from an offshore office of that
Lender to a domestic office of that Lender in the United States of America;
provided, however, that each Lender may fund each of its LIBOR Advances in any
manner it sees fit and the foregoing assumption shall be used only for
calculation of amounts payable under this Article 4.
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SECTION 4.14. APPORTIONMENT OF PAYMENTS. Aggregate principal and
interest payments in respect of Loans and payments in respect of facility fees
and commitment fees shall be apportioned among all outstanding Commitments and
Loans to which such payments relate, proportionately to the Lenders' respective
Pro Rata Share of such Commitments and outstanding Loans. The Administrative
Agent shall promptly distribute to each Lender at its payment office set forth
beside its name on the appropriate signature page hereof or such other address
as any Lender may request its Pro Rata Share of all such payments received by
the Administrative Agent.
SECTION 4.15. SHARING OF PAYMENTS, ETC. If any Lender shall obtain any
payment or reduction (including, without limitation, any amounts received as
adequate protection of a deposit treated as cash collateral under the
Bankruptcy Code) of the Obligations (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) in excess of its Pro Rata
Share of payments or reductions on account of such obligations obtained by all
the Lenders, such Lender shall forthwith (i) notify each of the other Lenders
and Administrative Agent of such receipt, and (ii) purchase from the other
Lenders such participations in the affected obligations as shall be necessary
to cause such purchasing Lender to share the excess payment or reduction, net
of costs incurred in connection therewith, ratably with each of them, provided
that if all or any portion of such excess payment or reduction is thereafter
recovered from such purchasing Lender or additional costs are incurred, the
purchase shall be rescinded and the purchase price restored to the extent of
such recovery or such additional costs, but without interest unless the Lender
obligated to return such funds is required to pay interest on such funds.
Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 4.15 may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct
creditor of Borrower in the amount of such participation.
SECTION 4.16. CAPITAL ADEQUACY. Without limiting any other provision
of this Agreement, in the event that any Lender shall have determined that any
law, treaty, governmental (or quasi-governmental) rule, regulation, guideline
or order regarding capital adequacy not currently in effect or fully applicable
as of the Closing Date, or any change therein or in the interpretation or
application thereof after the Closing Date, or compliance by such Lender with
any request or directive regarding capital adequacy not currently in effect or
fully applicable as of the Closing Date (whether or not having the force of law
and whether or not failure to comply therewith would be unlawful) from a
central bank or governmental authority or body having jurisdiction, does or
shall have the effect of reducing the rate of return on such Lender's capital
as a consequence of its obligations hereunder to a level below that which such
Lender could have achieved but for such law, treaty, rule, regulation,
guideline or order, or such change or compliance (taking into consideration
such Lender's policies with respect to capital adequacy) by an amount deemed by
such Lender to be material, then within ten (10) Business Days after written
notice and demand by such Lender (with copies thereof to the Administrative
Agent), Borrower shall from time to time pay to such Lender additional amounts
sufficient to compensate such Lender for such reduction to the extent imposed
generally on other borrowers from Lender who have similar extensions of credit
(but, in the case of outstanding Base Rate Advances, without duplication of any
amounts already recovered by such Lender by reason of an adjustment in the
applicable Base Rate).
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SECTION 4.17. RETURN OF PAYMENTS. If the Administrative Agent shall be
required by any court, trustee or debtor-in-possession or other person to
return any amount previously received by it in respect of the obligations under
this Agreement, upon receipt of notice from it, each Lender shall immediately
pay over to it, such Lender's Pro Rata Share of the amount to be returned.
ARTICLE 5
CONDITIONS TO BORROWINGS
The obligations of each Lender to make Advances to Borrower hereunder
is subject to the satisfaction of the following conditions:
SECTION 5.1. CONDITIONS PRECEDENT TO INITIAL LOANS. At the time of the
making of the initial Loans hereunder on the Closing Date, all obligations of
Borrower hereunder incurred prior to the initial Loans (including, without
limitation, Borrower's obligations to reimburse the reasonable fees and
expenses of counsel to the Administrative Agent and any fees and expenses
payable to the Administrative Agent and the Lenders as previously agreed with
Borrower), shall have been paid in full, and the Administrative Agent shall
have received the following, in form and substance reasonably satisfactory in
all respects to the Administrative Agent:
(a) the duly executed counterparts of this Agreement;
(b) the duly completed Revolving Notes evidencing the
Revolving Loan Commitments;
(c) certificate of Borrower in substantially the form of
Exhibit D attached hereto and appropriately completed;
(d) certificate of the Secretary or an Assistant Secretary of
the Borrower, attaching and certifying copies of the resolutions of the boards
of directors of the Borrower, authorizing as applicable the execution, delivery
and performance of the Credit Documents;
(e) certificate of the Secretary or an Assistant Secretary of
the Borrower certifying (i) the name, title and true signature of each officer
of the Borrower executing the Credit Documents, and (ii) the articles of
incorporation and the bylaws or comparable governing documents of the Borrower;
(f) copies of all documents and instruments, including all
consents, authorizations and filings, required or advisable under any
Requirement of Law or by any material Contractual Obligation of the Borrower,
in connection with the execution, delivery, performance, validity and
enforceability of the Credit Documents and the other documents to be executed
and delivered hereunder, and such consents, authorizations, filings and orders
shall be in full force and effect and all applicable waiting periods shall have
expired;
(g) certified copies of indentures, credit agreements,
leases, capital leases, instruments, and other documents evidencing or securing
Consolidated Funded Debt of the Borrower described on Schedule 6.13, in any
single case in an amount not less than $1,000,000.00;
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(h) certificates, reports and other information as the
Administrative Agent may reasonably request from the Borrower in order to
satisfy the Lenders as to the absence of any material liabilities or
obligations not disclosed in writing to the Administrative Agent arising from
matters relating to employees of the Borrower, including employee relations,
collective bargaining agreements, Plans, and other compensation and employee
benefit plans;
(i) certificates, reports, environmental audits and
investigations, and other information as the Administrative Agent may
reasonably request from the Borrower in order to satisfy the Lenders as to the
absence of any material liabilities or obligations under Environmental Laws
which could reasonably be expected to have a Materially Adverse Effect;
(j) certificates, reports and other information as the
Administrative Agent may reasonably request from the Borrower in order to
satisfy the Lenders as to the absence of any material liabilities or
obligations arising from litigation (including without limitation, products
liability, patent infringement and malpractice claims) pending or threatened
against the Borrower other than as disclosed in writing to the Administrative
Agent;
(k) a summary, set forth in format and detail reasonably
acceptable to the Administrative Agent, of the types and amounts of insurance
(property and liability) maintained by the Borrower;
(l) the favorable opinion of Trenam, Kemker, Scharf, Barkin,
Frye, O'Neill & Mullis, P.A., counsel to the Borrower, substantially in the
form of Exhibit E addressed to the Administrative Agent and each of the
Lenders;
(m) financial statements of Borrower and its Subsidiaries, on
a consolidated basis, for the fiscal year ended June 2, 1998; and
(n) financial statements (or Form 10-Q's with exhibits) of
Borrower and its Subsidiaries for each of the first three fiscal quarters in
the fiscal year beginning June 3, 1998.
In addition to the foregoing, the following conditions shall have been
satisfied or shall exist, all to the satisfaction of the Administrative Agent,
as of the time the initial Loans are made hereunder:
(o) payment in full and termination of all outstanding senior
indebtedness of the Borrower and the release of any liens securing the same,
including, without limitation, the Existing Credit Facility provided, however,
the following indebtedness may remain outstanding: (i) the Capitalized Lease
Obligations described on Schedule 6.7; and (ii) the notes described on Schedule
6.13;
(p) the Loans to be made on the Closing Date and the use of
proceeds thereof shall not contravene, violate or conflict with, or involve the
Administrative Agent or any Lender in a violation of, any law, rule,
injunction, or regulation, or determination of any court of law or other
governmental authority;
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(q) all corporate proceedings and all other legal matters in
connection with the authorization, legality, validity and enforceability of the
Credit Documents shall be reasonably satisfactory in form and substance to the
Lenders;
(r) the status of all pending and threatened material
litigation (including, without limitation, products liability and patent
claims) described on Schedule 6.5, including a description of any damages
sought and the claims constituting the basis therefor, shall have been reported
in writing to the Administrative Agent, the Administrative Agent shall have
reported such matters to the Lenders, and the Lenders shall be satisfied with
such status;
(s) the Administrative Agent and each Lender shall have
received payment of all initial fees as required by the Fee Letter and the
Commitment Letter; and
(t) except as described in Schedule 5.1(t), there shall not
have occurred a Material Adverse Change in the business, assets, revenues,
operations, conditions (financial or otherwise) or prospects of the Borrower
and its Subsidiaries taken as a whole since June 2, 1998 or in the assumptions,
facts or information contained in the financial statements, budgets,
projections or proforma balance sheets most recently delivered to the
Administrative Agent by the Borrower.
SECTION 5.2. CONDITIONS TO ALL LOANS. At the time of the making of all
Loans (before as well as after giving effect to such Loans and to the proposed
use of the proceeds thereof), the following conditions shall have been
satisfied or shall exist:
(a) there shall exist no Default or Event of Default;
(b) all representations and warranties by Borrower contained
herein shall be true and correct in all material respects with the same effect
as though such representations and warranties had been made on and as of the
date of such Loans (except to the extent that such representations and
warranties expressly relate to an earlier date);
(c) since the date of the most recent financial statements of
the Consolidated Companies described in Section 6.3, there shall have been no
change which has had or could reasonably be expected to have a Materially
Adverse Effect other than those disclosed in the Schedules to this Agreement or
in such financial statements;
(d) there shall be no action or proceeding instituted or
pending before any court or other governmental authority or, to the knowledge
of Borrower, threatened (i) which is reasonably likely to have a Materially
Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit
Party's ownership or operation of any portion of its business or assets, or to
compel one or more Credit Party to dispose of or hold separate all or any
portion of its businesses or assets, where such portion or portions of such
business(es) or assets, as the case may be, constitute a material portion of
the total businesses or assets of the Consolidated Companies (notwithstanding
anything to the contrary contained in this subsection (d), the Lenders are
aware of the investigations related to the Airgas Litigation and, unless and
until the Required Lenders reasonably determine that the existence of such
investigations is likely to have a Material Adverse Effect, the existence of
such related investigations shall not constitute a Default or Event of Default
under this Agreement);
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(e) the Loans to be made and the use of proceeds thereof
shall not contravene, violate or conflict with, or involve the Administrative
Agent or any Lender in a violation of, any law, rule, injunction, or
regulation, or determination of any court of law or other governmental
authority applicable to Borrower;
(f) the Administrative Agent shall have received such other
documents, certificates, notices, opinions or other information, including, but
not limited to a Notice of Borrowing, or legal opinions as the Administrative
Agent or any Lender may reasonably request, all in form and substance
reasonably satisfactory to the Administrative Agent; and
(g) the Administrative Agent and each Lender shall have
received all fees payable in accordance with and pursuant to the Fee Letter,
the Commitment Letter and this Agreement and all such fees shall have been paid
as and when due.
Each request for a Borrowing and the acceptance by Borrower of the proceeds
thereof shall constitute a representation and warranty by Borrower, as of the
date of the Loans comprising such Borrowing, that the applicable conditions
specified in Sections 5.1 and 5.2 have been satisfied.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
Borrower represents, warrants and covenants to Lenders that:
SECTION 6.1. ORGANIZATION AND QUALIFICATION. Borrower is a corporation
duly organized and existing in active status under the laws of the State of
Florida. Each Subsidiary of Borrower is a corporation duly organized and
existing under the laws of the jurisdiction of its incorporation. Borrower and
each of its Subsidiaries are duly qualified to do business as a foreign
corporation and in good standing or active status in each jurisdiction in which
the character of its properties or the nature of its business makes such
qualification necessary, except for such jurisdictions in which a failure to
qualify to do business would not have a Materially Adverse Effect. Borrower and
each of its Subsidiaries have the corporate power to own its properties and to
carry on its business as now being conducted.
SECTION 6.2. CORPORATE AUTHORITY. The execution and delivery by
Borrower of and the performance by Borrower of its obligations under the Credit
Documents have been duly authorized by all requisite corporate action and all
requisite shareholder action, if any, on the part of Borrower and do not and
will not (i) violate any provision of any law, rule or regulation, any
judgment, order or ruling of any court or governmental agency, the
organizational papers or bylaws of Borrower, or, except for any Incidental
Contracts, any indenture, agreement or other instrument to which Borrower is a
party or by which Borrower or any of its properties is bound, or (ii) except
for any Incidental Contracts, be in conflict with, result in a breach of, or
constitute with notice or lapse of time or both a default under any such
indenture, agreement or other instrument where the effect would be likely to
have a Materially Adverse Effect.
SECTION 6.3. FINANCIAL STATEMENTS. Borrower has furnished Lenders with
the following financial statements, identified by the Chief Financial Officer
of Borrower: audited balance sheet
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of the Borrower as at June 2, 1998, and audited statement of income and
consolidated statement of stockholders' equity of Borrower for the fiscal year
ended on such date certified by Ernst & Young, LLP, Certified Public
Accountants and internally prepared financial statements for the fiscal
quarters ended September 1, 1998, December 1, 1998 and March 2, 1999. Such
financial statements (including any related schedules and notes) are true and
correct in all material respects, have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
period or periods in question (subject as to interim statements, to omissions
or condensations as stated in the notes thereto, to the change in accounting
practices disclosed in the notes thereto and to changes resulting from audits
and year end adjustments) and show, in the case of audited statements, all
liabilities, direct or contingent, of Borrower required to be shown in
accordance with generally accepted accounting principles consistently applied
throughout the period or periods in question and fairly present in all material
respects the consolidated financial position and the consolidated results of
operations of Borrower for the periods indicated therein. Except as described
in Schedule 6.3, there has been no change in the business, condition or
operations, financial or otherwise, of Borrower since June 2, 1998 which is
reasonably likely to have a Materially Adverse Effect.
SECTION 6.4. TAX RETURNS. Except as set forth on Schedule 6.4, the
Borrower has filed all federal, state and other tax returns and reports which,
to the best knowledge of the Senior Management of Borrower, are required to be
filed, and has paid all taxes as shown on said returns and all other taxes,
assessments, fees and other governmental charges upon Borrower or upon any of
the properties, assets, incomes or franchises of Borrower, to the extent that
such taxes, assessments, fees and other governmental charges have become due or
except such as are being contested in good faith by appropriate proceedings for
which adequate reserves have been established in accordance with GAAP and/or
except where the unfiled returns and unpaid Taxes relate to aggregate unpaid
state or local Taxes no greater than $500,000.00 in the aggregate.
SECTION 6.5. ACTIONS PENDING; COMPLIANCE WITH LAWS. Except as disclosed
on Schedule 6.5 hereto, there is no action, suit, investigation or proceeding
pending or, to the knowledge of Borrower, threatened against or affecting
Borrower or any of its properties or rights, by or before any court, arbitrator
or administrative or governmental body, which could reasonably be expected to
result in any Materially Adverse Effect. Except as disclosed on Schedule 6.5
hereto, the Borrower has not received notice of and is not otherwise aware that
it is in or alleged to be in violation of any Requirement of Law, except where
failure to comply would not have a Material Adverse Effect.
SECTION 6.6. REPRESENTATIONS; NO DEFAULTS. At the time of each
Extension of Credit there shall exist no Default or Event of Default.
SECTION 6.7. TITLE TO PROPERTIES; CAPITALIZED LEASES. Except for Liens
described in Section 8.2(h) and that portion of Borrower's assets to which it
does not have marketable title (calculated at cost or market value, whichever
is higher), all of which may have an aggregate value up to $3,000,000.00, the
Borrower has (i) good and marketable fee simple title to its respective real
properties (other than real properties which it leases from others), including
such real properties reflected in the balance sheet of Borrower described in
Section 6.3 above (other than real properties disposed of in the ordinary
course of business), subject to no Lien of any kind except Liens set
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forth on Schedule 8.2 or permitted by Section 8.2 and (ii) good title to all of
its other respective properties and assets (other than properties and assets
which it leases from others), including the other properties and assets
reflected in the balance sheet of Borrower described in Section 6.3 above
(other than properties and assets disposed of in the ordinary course of
business), subject to no Lien of any kind except Liens set forth on Schedule
8.2 or permitted by Section 8.2. The Borrower enjoys peaceful and undisturbed
possession under all leases necessary in any material respect for the operation
of its respective properties and assets, none of which contains any unusual or
burdensome provisions which might materially affect or impair the operation of
such properties and assets, and all such leases are valid and subsisting and in
full force and effect. As of the Closing Date, there are no Capitalized Lease
Obligations except as disclosed on Schedule 6.7 hereto.
SECTION 6.8. ENFORCEABILITY OF AGREEMENT. This Agreement is the legal,
valid and binding agreement of Borrower enforceable against Borrower in
accordance with its terms, and the Notes, and all other Credit Documents, when
executed and delivered, will be similarly legal, valid, binding and
enforceable, except as the enforceability of the Notes and other Credit
Documents may be limited by bankruptcy, insolvency, reorganization, moratorium
and other laws affecting creditor's rights and remedies in general and by
general principles of equity, whether considered in a proceeding at law or in
equity.
SECTION 6.9. CONSENT. Except for consents of parties to any Incidental
Contracts, no consent, permission, authorization, order or license of or filing
with any governmental authority or Person which has not been obtained or made
is necessary in connection with the execution, delivery, performance or
enforcement of the Credit Documents by the Credit Parties, or in order to
constitute the indebtedness to be incurred hereunder and under the Notes and
the other Credit Documents as "Senior Debt" or any similar term defined within
any documents executed in connection with any Subordinated Debt.
SECTION 6.10. USE OF PROCEEDS; FEDERAL RESERVE REGULATIONS. The
proceeds of the Notes will be used solely for the purposes specified in
Sections 2.1(e) and 2.4(c) and none of such proceeds will be used, directly or
indirectly, for the purpose of purchasing or carrying any "margin security" or
"margin stock" or for the purpose of reducing or retiring any indebtedness that
originally was incurred to purchase or carry a "margin security" or "margin
stock" or for any other purpose that might constitute this transaction a
"purpose credit" within the meaning of the regulations of the Board of
Governors of the Federal Reserve System.
SECTION 6.11. ERISA.
(a) Identification of Certain Plans. Schedule 6.11 hereto
sets forth all Plans of Borrower and its Subsidiaries in effect on the Closing
Date (true and accurate copies of which, together with the most recent IRS
determination letter, the most recent annual reports on form 5500, and summary
plan descriptions with respect thereto, if applicable, will be furnished to
Administrative Agent promptly upon its request therefor).
(b) Compliance, Etc. (i)The Borrower and each of its ERISA
Affiliates are in compliance with ERISA and the Code in all material respects
and no Reportable Event has
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occurred and is continuing with respect to any Plan; (ii) to the knowledge of
the Borrower or any ERISA Affiliate, no notice of intent to terminate a Plan
has been filed nor has any Plan been terminated, the termination of which would
result in liability to the Borrower or any ERISA Affiliate that would have a
Materially Adverse Effect; (iii) no circumstance exists which constitutes
grounds under Act Section 4042 of ERISA entitling the PBGC to institute
proceedings to terminate, or appoint a trustee to administer a Plan, nor has
the PBGC instituted any such proceedings; (iv) neither the Borrower nor any
ERISA Affiliate has completely or partially withdrawn under Act Sections 4201
or 4204 of ERISA from a Multiemployer Plan which withdrawal would result in
material liability to Borrower or any ERISA Affiliate; (v) the Borrower and
each ERISA Affiliate has met its minimum funding requirements under ERISA with
respect to all of its Plans and there are no unfunded vested liabilities except
as set forth on Schedule 6.11; and (vi) neither the Borrower nor any ERISA
Affiliate has incurred any liability to the PBGC under ERISA which liability
has not been satisfied.
SECTION 6.12. SUBSIDIARIES. As of the date hereof, the Borrower has no
Subsidiaries, except as set forth on Schedule 6.12. All representations and
warranties made in this Article 6 shall also be true and correct as to any and
all Wholly-Owned Subsidiaries of the Borrower hereafter formed or acquired
throughout the term of this Agreement.
SECTION 6.13. OUTSTANDING CONSOLIDATED FUNDED DEBT. Except as set
forth on Schedule 6.13, as of the Closing Date and after giving effect to the
transactions contemplated by this Agreement, the Borrower has no outstanding
Consolidated Funded Debt and there exists no default; and, after giving effect
to the transactions contemplated in this Agreement, there will exist no default
under the provisions of any instrument evidencing such Consolidated Funded Debt
or of any agreement relating thereto except as noted on Schedule 6.13.
SECTION 6.14. CONFLICTING AGREEMENTS; DIVIDEND OR REDEMPTION
LIMITATIONS. Borrower is not a party to any contract or agreement or subject to
any charter, bylaw or other corporate restriction which could reasonably be
expected to have a Materially Adverse Effect. Assuming the consummation of the
transactions contemplated by this Agreement, neither the execution or delivery
of this Agreement or the Credit Documents, nor fulfillment of or compliance
with the terms and provisions hereof and thereof, will conflict with, or result
in a breach of the terms, conditions or provisions of, or constitute a default
under, or result in any violation of, or result in the creation of any Lien
upon any of the properties or assets of Borrower pursuant to, the charter or
By-Laws of Borrower, any award of any arbitrator or any agreement (including
any agreement with stockholders), instrument, order, judgment, decree, statute,
law, rule or regulation to which Borrower is subject. As of the Closing Date,
Borrower is not a party to, or otherwise subject to any provision contained in,
any instrument evidencing Consolidated Funded Debt of Borrower, any agreement
relating thereto or any other contract or agreement (including its charter but
excluding Incidental Contracts) which limits the amount of, or otherwise
imposes restrictions on the incurring of, Consolidated Funded Debt of the type
to be evidenced by the Notes or contains dividend or redemption limitations on
Common Stock of Borrower, except for this Agreement, Borrower's Certificate of
Incorporation and those matters listed on Schedule 6.14 attached hereto.
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SECTION 6.15. ENVIRONMENTAL MATTERS.
(a) Except as set forth on Schedule 6.15(a), Borrower has to
its knowledge complied in all material respects (except for instances of
noncompliance that have been resolved prior to the Closing Date to the
satisfaction of the applicable environmental regulatory agency) with all
applicable Environmental Laws, including without limitation, compliance with
permits, licenses, standards, schedules and timetables issued pursuant to
Environmental Laws, and is not in violation of, and does not presently have
outstanding any liability under, has not been notified that it is or may be
liable under and does not have knowledge of any liability or potential
liability under any applicable Environmental Law, including without limitation,
the Resource Conservation and Recovery Act of 1976, as amended ("RCRA"), the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended by the Superfund Amendments and Reauthorization Act of 1986
("CERCLA"), the Federal Water Pollution Control Act, as amended ("FWPCA"), the
Federal Clean Air Act, as amended ("FCAA"), and the Toxic Substance Control Act
("TSCA"), which violation, liability or potential liability could reasonably be
expected to have a Materially Adverse Effect.
(b) Except as set forth on Schedule 6.15(b), as of the
Closing Date Borrower has not received a written request for information under
CERCLA or any analogous state law, or written notice that any such entity has
been identified as a potential responsible party under CERCLA, or any analogous
state law, nor has any such entity received any written notification that any
Hazardous Substance that it or any of its respective predecessors in interest
has generated, stored, treated, handled, transported, or disposed of, has been
released or is threatened to be released at any site at which any Person
intends to conduct or is conducting a remedial investigation or other action
pursuant to any applicable Environmental Law, or any other Environmental Laws.
(c) Except as set forth on Schedule 6.15(c), Borrower has
obtained all permits, licenses or other authorizations which are material for
the conduct of its operations under all applicable Environmental Laws and with
respect to which each such authorization is in full force and effect except
where the failure to do so would not have a Materially Adverse Effect.
(d) Except as set forth in Schedule 6.15(d), Borrower
complies in all material respects with all laws and regulations relating to
equal employment opportunity and employee safety in all jurisdictions in which
it is presently doing business.
SECTION 6.16. POSSESSION OF FRANCHISES, LICENSES, ETC. Borrower
possesses all franchises, certificates, licenses, permits and other
authorizations from governmental political subdivisions or regulatory
authorities, free from burdensome restrictions, that are necessary in any
material respect for the ownership, maintenance and operation of its properties
and assets, the failure of which to possess would have a Materially Adverse
Effect and Borrower is not in violation of any thereof in any material respect.
SECTION 6.17. PATENTS, TRADEMARKS, ETC. Except as set forth on
Schedule 6.17, Borrower owns or has the right to use all patents, trademarks,
service marks, trade names, copyrights, licenses, franchises and other rights,
which are necessary in any material respect for the operation
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of its business as presently conducted or proposed to be conducted without any
known conflict with the rights of others, and, in each case, subject to no
mortgage, pledge, lien, lease, encumbrance, charge, security interest, title
retention agreement or option. To the knowledge of any member of Senior
Management and except as set forth in Schedule 6.17 (i) no product, process,
method, substance, part, piece of equipment or other material presently
contemplated to be sold by or employed by Borrower in connection with its
business may infringe any patent, trademark, service mark, trade name,
copyright, license or other right owned by any other Person, (ii) there is no
pending or threatened claim or litigation against or affecting Borrower
contesting its right to sell or use any such product, process, method,
substance, part, piece of equipment or other material or (iii) there is no, or
there is no pending or proposed, patent, invention, device, application or
principle or any statute, law, rule, regulation, standard or code which would
prevent, materially inhibit or render obsolete the production or sale of any
products of, or substantially reduce the projected revenues of, or otherwise
have a Materially Adversely Effect.
SECTION 6.18. GOVERNMENTAL CONSENT. Neither the nature of Borrower nor
its business or properties, nor any relationship between Borrower and any other
Person, nor any circumstance in connection with the execution and delivery of
the Credit Documents and the consummation of the transactions contemplated
thereby is such as to require on behalf of Borrower any consent, approval or
other action by or any notice to or filing with any court or administrative or
governmental body in connection with the execution and delivery of this
Agreement and the Credit Documents except for such filings with the Securities
and Exchange Commission as may be required by applicable law (which filings the
Borrower agrees to make promptly and diligently pursue to completion).
SECTION 6.19. DISCLOSURE. Neither this Agreement nor the Credit
Documents nor any other document, certificate or written statement furnished to
Lenders by or on behalf of Borrower in connection herewith contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained herein or therein, in light of the
circumstances under which they were made, not misleading. There is no fact
peculiar to Borrower which materially adversely affects or in the future may
(so far as Borrower can now foresee) materially adversely affect the business,
property or assets, or the financial condition of Borrower which has not been
set forth in this Agreement or in the Credit Documents, certificates and
written statements furnished to Lenders or otherwise furnished to the Lenders
by or on behalf of Borrower prior to the date hereof in connection with the
transactions contemplated hereby.
SECTION 6.20. YEAR 2000 COMPLIANCE. The Borrower has developed a
comprehensive working plan (the "Y2K Plan") to insure that the Borrower's and
each Subsidiary's software and hardware systems which impact or affect in any
material way the business operations of the Borrower and its Subsidiaries will
be Year 2000 Compliant and Ready (defined below) by no later than December 31,
1999. Upon the request of the Administrative Agent, the Borrower will promptly
communicate to the Administrative Agent the details of its Y2K Plan and a copy
of any third party assessment of the Y2K Plan (if available). The Borrower and
its Subsidiaries have met all previous Y2K Plan milestones and will hereafter
meet all future Y2K Plan milestones so that all hardware and software systems
will be Year 2000 Compliant and Ready in accordance with the Y2K Plan, except
where the failure to meet such milestones has not had, or would not have, a
Materially Adverse Effect. As used herein, "Year 2000 Compliant and Ready"
means that the
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Borrower's and each Subsidiary's hardware and software systems with respect to
the operation of their business and their general business plan will: (i)
handle date information involving any and all dates before, during and/or after
January 1, 2000, including accepting input, providing output and performing
date calculations in whole or in part; (ii) operate accurately without
interruption on and in respect of any and all dates before, during and/or after
January 1, 2000 and without any change in performance; (iii) respond to and
process two digit year input without creating any ambiguity as to the century;
and (iv) store and provide date input information without creating any
ambiguity as to the century.
SECTION 6.21. LABOR MATTERS. Except as set forth on Schedule 6.21, the
Borrower has experienced no strikes, labor disputes, slow downs or work
stoppages due to labor disagreements which have had, or would reasonably be
expected to have, a Materially Adverse Effect, and, to the best knowledge of
Borrower's Senior Management, there are no such strikes, disputes, slow downs
or work stoppages threatened against any Borrower. The hours worked and payment
made to employees of the Borrower have not been in violation in any material
respect of the Fair Labor Standards Act or any other applicable law dealing
with such matters. All payments due from the Borrower, or for which any claim
may be made against the Consolidated Companies, on account of wages and
employee health and welfare insurance and other benefits have been paid or
accrued as liabilities on the books of the Borrower where the failure to pay or
accrue such liabilities would reasonably be expected to have a Materially
Adverse Effect.
SECTION 6.22. INTERCOMPANY LOANS; DIVIDENDS. There are no Intercompany
Loans as of the Closing Date except those set forth on Schedule 6.22. Except as
set forth in the Credit Documents and as specifically disclosed in Schedule
6.22 with respect to agreements evidencing other Consolidated Funded Debt,
there are no restrictions as of the Closing Date on the power of any
Consolidated Company to repay any Intercompany Loan or to pay dividends on
capital stock.
SECTION 6.23. SECURITIES ACTS. Neither Borrower nor any agent acting
on its behalf has, directly or indirectly, taken or will take any action which
would subject the issuance of the Notes to the provisions of Section 5 of the
Securities Act of 1933, as amended, or, to the best knowledge of the Borrower,
to the provisions of any securities or Blue Sky Law of any applicable
jurisdiction.
SECTION 6.24. INVESTMENT COMPANY ACT; HOLDING COMPANY. Borrower is not
an "investment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940 and is not a "holding
company," or a subsidiary or affiliate of a "holding company," or a "public
utility," within the meaning of the Public Utility Holding Company Act of 1935,
as amended or a "public utility" within the meaning of the Federal Power Act,
as amended.
SECTION 6.25. REGULATION T, ETC. Neither Borrower nor any agent acting
on its behalf has taken or will take any action which might cause this
Agreement or the Notes to violate Regulation T, U or X or any other regulation
of the Board of Governors of the Federal Reserve System or to violate the
Exchange Act, and each case in effect now or as the same may hereafter be in
effect.
SECTION 6.26. CHANGES IN FINANCIAL CONDITION; ADVERSE DEVELOPMENTS.
Except as set forth on Schedule 5.1(t), from the date of the annual and most
recent quarterly financial statements
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described in Section 6.3 hereinabove, to the date of this Agreement, there has
been, and to the date of each Advance there will be, no change in the
properties, assets, liabilities, financial condition, business operations,
affairs or properties of the Borrower and its Subsidiaries on a consolidated
basis from that set forth or reflected in the year-end and quarterly financial
statements described in Section 6.3, other than changes in the ordinary course
of business, including acquisitions, none of which either in any case or in the
aggregate will have a Materially Adverse Effect.
ARTICLE 7
AFFIRMATIVE COVENANTS
Borrower covenants and agrees that so long as it may borrow under this
Agreement or so long as any indebtedness remains outstanding under the Notes
that it will:
SECTION 7.1. CORPORATE EXISTENCE, ETC. Preserve and maintain, and
cause each of its Subsidiaries to preserve and maintain, its corporate
existence, its material rights, franchises, and licenses, and its material
patents and copyrights (for the scheduled duration thereof), trademarks, trade
names, and service marks, necessary or desirable in the normal conduct of its
business, and its qualification to do business as a foreign corporation in all
jurisdictions where it conducts business or other activities making such
qualification necessary, where the failure to do so would reasonably be
expected to have a Materially Adverse Effect.
SECTION 7.2. COMPLIANCE WITH LAWS, ETC. Comply, and cause each of its
Subsidiaries to comply with all Requirements of Law (including, without
limitation, the Environmental Laws, subject to the exception set forth in
Section 7.7(f) where the penalties, claims, fines, and other liabilities
resulting from noncompliance with such Environmental Laws do not involve
amounts in excess of $3,000,000.00 in the aggregate), except where failure to
comply would not have a Materially Adverse Effect
SECTION 7.3. PAYMENT OF TAXES AND CLAIMS, ETC. Pay, and cause each of
its Subsidiaries to pay, (i) all taxes, assessments and governmental charges
imposed upon it or upon its property, and (ii) all claims (including, without
limitation, claims for labor, materials, supplies or services) which might, if
unpaid, become a Lien upon its property, unless, in each case, the validity or
amount thereof is being contested in good faith by appropriate proceedings and
adequate reserves are maintained with respect thereto; provided, however, that
the Borrower may have outstanding and unpaid at any time not more than
$500,000.00 in the aggregate in state and local taxes.
SECTION 7.4. KEEPING OF BOOKS. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, containing in all
material respects complete and accurate entries of all their respective
financial and business transactions.
SECTION 7.5. VISITATION, INSPECTION, ETC. Permit, and cause each of
its Subsidiaries to permit, any representative of the Administrative Agent and
any other Lender to visit and inspect any of its properties, to examine its
books and records and to make copies and take extracts therefrom, and to
discuss its affairs, finances and accounts with its officers, all at such
reasonable times and as often as the Administrative Agent may reasonably
request after reasonable prior notice to Borrower; provided, however, that at
any time following the occurrence and during the
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continuance of a Default or an Event of Default, no prior notice to Borrower
shall be required and further, provided, that in the event any documents and
records are subject to any contractual confidentiality requirements with any
Person, the right to make copies or extracts therefrom shall be subject to the
prior written consent of the Borrower, which consent will not be unreasonably
withheld or delayed.
SECTION 7.6. INSURANCE; MAINTENANCE OF PROPERTIES.
(a) Maintain or cause to be maintained with financially sound
and reputable insurers, insurance with respect to its properties and business,
and the properties and business of its Subsidiaries, against loss or damage of
the kinds customarily insured against by reputable companies in the same or
similar businesses, such insurance to be of such types and in such amounts, as
is customary for such companies under similar circumstances; provided, however,
that in any event Borrower shall use its reasonable best efforts to maintain,
or cause to be maintained, insurance in amounts and with coverages not
materially less favorable to any Consolidated Company as in effect on the date
of this Agreement, except where the costs of maintaining such insurance would,
in the judgment of both Borrower and the Administrative Agent, be excessive.
(b) Cause, and cause each of the Consolidated Companies to
cause, all properties used or useful in the conduct of its business to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, settlements and improvements thereof, all as in the
judgment of Borrower may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent Borrower from
discontinuing the operation or maintenance of any such properties if such
discontinuance is, in the judgment of Borrower, desirable in the conduct of its
business or the business of any Consolidated Company.
SECTION 7.7. REPORTING COVENANTS. FURNISH TO EACH LENDER:
(a) Annual Financial Statements. As soon as available and in
any event within 120 days after the end of each fiscal year of Borrower,
audited financial statements, consisting of balance sheets of the Consolidated
Companies as at the end of such year, presented on a consolidated basis, and
the related statements of income, stockholders' equity, and cash flows of the
Consolidated Companies for such fiscal year, presented on a consolidated basis,
setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail and accompanied by a report thereon of
Ernst & Young, LLP, or other independent public accountants of comparable
recognized national or regional standing, which such report shall be
unqualified as to going concern and scope of audit and shall state that such
financial statements present fairly in all material respects the financial
condition as at the end of such fiscal year on a consolidated basis, and the
results of operations and statements of cash flows of the Consolidated
Companies for such fiscal year in accordance with GAAP and that the examination
by such accountants in connection with such consolidated financial statements
has been made in accordance with GAAP;
(b) Quarterly Financial Statements. As soon as available and
in any event within 60 days after the end of each fiscal quarter of Borrower
(other than the fourth fiscal quarter),
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balance sheets of the Consolidated Companies as at the end of such quarter
presented on a consolidated basis and the related statements of income, and
cash flows of the Consolidated Companies for such fiscal quarter and for the
portion of Borrower's fiscal year ended at the end of such quarter, presented
on a consolidated basis setting forth in each case in comparative form the
figures for the corresponding quarter and the corresponding portion of
Borrower's previous fiscal year, all in reasonable detail and certified by the
Treasurer or Chief Financial Officer or other authorized financial officer of
Borrower acceptable to the Administrative Agent and all other Lenders that such
financial statements fairly present in all material respects the financial
condition of the Consolidated Companies as at the end of such fiscal quarter on
a consolidated basis, and the results of operations and statements of cash
flows of the Consolidated Companies for such fiscal quarter and such portion of
Borrower's fiscal year, in accordance with GAAP consistently applied (subject
to normal year end audit adjustments and the absence of certain footnotes) and
as reflected in the notes thereto;
(c) No Default/Compliance Certificate. Together with the
financial statements required pursuant to subsections (a) and (b) above, a
certificate of the Treasurer, Chief Financial Officer or other authorized
financial officer of Borrower acceptable to the Administrative Agent and the
Required Lenders (i) to the effect that, based upon a review of the activities
of the Consolidated Companies and such financial statements during the period
covered thereby, there exists no Event of Default and no Default under this
Agreement, or if there exists an Event of Default or a Default hereunder,
specifying the nature thereof and the proposed response thereto, and (ii)
demonstrating in reasonable detail compliance as at the end of such fiscal year
or such fiscal quarter with the covenants contained in Section 7.8 and Sections
8.2 through 8.4;
(d) Notice of Default. Promptly after any member of Senior
Management of Borrower has notice or knowledge of the occurrence of an Event of
Default or a Default, a certificate of the chief financial officer or principal
accounting officer of Borrower specifying the nature thereof and the proposed
response thereto;
(e) Litigation. Promptly after (i) the occurrence thereof,
notice of the institution of or any adverse development in any action, suit or
proceeding or any governmental investigation or any arbitration, before any
court or arbitrator or any governmental or administrative body, agency or
official, against any Consolidated Company, or any material property thereof
which could reasonably be expected to have a Materially Adverse Effect, or (ii)
actual knowledge thereof, notice of the threat of any such action, suit,
proceeding, investigation or arbitration, together with any information and
documentation relating thereto, as may be reasonably requested;
(f) Environmental Notices. Promptly after receipt thereof,
notice of any actual or alleged violation, or notice of any action, claim or
request for information, either judicial or administrative, from any
governmental authority relating to any actual or alleged claim, notice of
potential responsibility under or violation of any Environmental Law, or any
actual or alleged spill, leak, disposal or other release of any waste,
petroleum product, or hazardous waste or Hazardous Substance by any
Consolidated Company which violation, action, claim, request, spill, leak,
disposal, or release could reasonably be expected to result in penalties,
fines, claims or other liabilities to any Consolidated Company in amounts in
excess of $500,000.00 individually or $3,000,000.00 when aggregated with other
then pending such matters;
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(g) ERISA.
With reasonable promptness, give notice to the Administrative Agent of
(i) the establishment of any new Plan (which notice shall include a copy of
such Plan) or the acquisition or merger of any Plan, (ii) the commencement of
contributions to any Plan to which the Borrower or any of its ERISA Affiliates
was not previously contributing, (iii) any material increase in the benefits of
any existing Plan, (iv) each funding waiver request filed with respect to any
Plan and all material communications received or sent by the Borrower or any
ERISA Affiliate with respect to such request and (v) the failure of the
Borrower or any ERISA Affiliate to make a required installment or payment under
Act Section 302 of ERISA or Section 412 of the Code by the due date.
Promptly after becoming aware of the occurrence or forthcoming
occurrence of any (i) Termination Event or (ii) nonexempt "prohibited
transaction," as such term is defined in Act Section 406 of ERISA or Section
4975 of the Code, in connection with any Plan or any trust created thereunder,
deliver to the Administrative Agent a notice specifying the nature thereof,
what action the Borrower or any ERISA Affiliate has taken, is taking or
proposes to take with respect thereto and, when known, any action taken or
threatened by the Internal Revenue Service (the "IRS"), the Department of Labor
or the PBGC with respect thereto; or (iii) any material operational or
compliance defect for which corrective action may be undertaken to correct such
defect pursuant to any IRS compliance resolution programs, including copies of
all documentation being submitted to and all correspondence to or from the IRS
pertaining to such matters or developed to comply with such program.
With reasonable promptness, deliver to the Administrative Agent copies
of (i) any unfavorable determination letter from the IRS regarding the
qualification of a Plan under Section 401 (a) of the IRS Code, or the rejection
of any offer under an IRS compliance resolution program or imposition of any
liability upon the Borrower or any ERISA Affiliate resulting from an IRS or
Department of Labor examination, (ii) all notices received by the Borrower or
any ERISA Affiliate of the PBGC's intent to terminate any Plan or to have a
trustee appointed to and administer any Plan, (iii) each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series) filed by the Borrower or
any ERISA Affiliate with the IRS with respect to each Plan and (iv) all notices
received by the Borrower or any ERISA Affiliate from a Multiemployer Plan
sponsor concerning the imposition of withdrawal liability pursuant to Section
4202 of ERISA. The Borrower will notify the Administrative Agent in writing
promptly after the Borrower or any ERISA Affiliate obtains knowledge of or has
reason to know that the Borrower or any ERISA Affiliate has filed or intends to
file a notice of intent to terminate any Plan under a distress termination
within the meaning of Section 4041(c) of ERISA.
With reasonable promptness, deliver to the Administrative Agent copies of any
demand for material payment or assertion of material liability by the IRS,
Department of Labor or PBGC or any of such agency's successors upon Borrower or
any ERISA Affiliate.
(h) Liens. Promptly upon any Consolidated Company becoming
aware thereof, notice of the filing of any federal statutory Lien, tax or other
state or local government Lien or any
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other Lien affecting their respective properties, other than those Liens
expressly permitted by Section 8.2;
(i) Public Filings, Etc. Promptly upon the filing thereof or
otherwise becoming available, copies of all financial statements, annual,
quarterly and special reports, proxy statements and notices sent or made
available generally by Borrower to its public security holders, of all regular
and periodic reports filed by any of them with any securities exchange, and of
all press releases and other statements made available generally to the public
containing material developments in the business or financial condition of
Borrower and the other Consolidated Companies;
(j) Accountants' Reports. Promptly upon receipt thereof,
copies of all financial statements of, and all reports submitted by,
independent public accountants to Borrower in connection with each annual,
interim, or special audit of Borrower's consolidated financial statements;
(k) Trademarks; Labor Disputes, Etc. Promptly upon the
existence or occurrence thereof, notice of the existence or occurrence of (i)
failure of any Consolidated Company to hold in full force and effect those
material trademarks, service marks, patents, trade names, copyrights, licenses,
franchises and similar rights necessary in the normal conduct of its business,
and (ii) any strike, labor dispute, slow down or work stoppage as described in
Section 6.21;
(l) New Subsidiaries. Within 30 days after the formation or
acquisition of any Subsidiary, or any other event resulting in the creation of
a new Subsidiary, notice of the formation or acquisition of such Subsidiary or
such occurrence, including a description of the assets of such entity, the
activities in which it will be engaged, and such other information as the
Administrative Agent may request;
(m) Intercompany Asset Transfers. Promptly upon the
occurrence thereof, notice of the transfer of any assets from Borrower to any
other Consolidated Company that is not Borrower or a Wholly-Owned Subsidiary of
Borrower (in any transaction or series of related transactions), excluding
sales or other transfers of assets in the ordinary course of business, where
the aggregate Asset Value of such assets is less than $3,000,000.00 during any
fiscal year;
(n) Other Information. With reasonable promptness, such other
information about the Consolidated Companies as the Administrative Agent (on
its behalf or on behalf of any Lender) may reasonably request from time to
time;
(o) Y2K Statement. Simultaneously with the delivery of each
set of annual and quarterly financial statements prior to December 31, 1999, a
statement of the Borrower's chief executive officer, chief financial accounting
officer or chief technology officer to the effect that nothing has come to
his/her attention to cause him/her to believe that the Y2K Plan milestones have
not been met in a manner such that the Company's and Subsidiaries' hardware and
software systems will not be Year 2000 Compliant and Ready on or before
December 31, 1999.
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SECTION 7.8. FINANCIAL COVENANTS.
(a) Interest Coverage Ratio. Maintain as at the last day of
each fiscal quarter, a ratio of (i) Consolidated EBITR to (ii)(y) Consolidated
Interest Expense plus (z) Consolidated Rental Expense of at least 3.0:1.0,
computed on a rolling four-quarter basis, based on information contained in the
Borrower's current financial statement and its financial statements for the
preceding three quarters.
(b) Consolidated Funded Debt to Total Capitalization Ratio.
Maintain a maximum ratio of Consolidated Funded Debt to Total Capitalization,
of less than or equal to 0.60:1.0, tested quarterly at the end of each fiscal
quarter.
(c) Maximum Consolidated Funded Debt to Consolidated EBITDAR.
Maintain a maximum ratio of Consolidated Funded Debt to Consolidated EBITDAR of
less than or equal to 3.50:1.0, tested quarterly at the end of each fiscal
quarter, computed on a rolling four quarter basis, based on information
contained in the Borrower's current financial statements and its financial
statements for the preceding three fiscal quarters.
SECTION 7.9. NOTICES UNDER CERTAIN OTHER CONSOLIDATED FUNDED DEBT.
Immediately upon its receipt thereof, Borrower shall furnish the Administrative
Agent a copy of any notice received by it or any other Consolidated Company
from the holder(s) of Consolidated Funded Debt (or from any trustee, agent,
attorney, or other party acting on behalf of such holder(s)) in an amount
which, in the aggregate, exceeds $500,000.00, where such notice states or
claims (i) the existence or occurrence of any default or event of default with
respect to such Consolidated Funded Debt under the terms of any indenture, loan
or credit agreement, debenture, note, or other document evidencing or governing
such Consolidated Funded Debt, or (ii) the existence or occurrence of any event
or condition which requires or permits holder(s) of any Consolidated Funded
Debt to exercise rights under any Change in Control Provision. Borrower agrees
to request the holder(s) of any Consolidated Funded Debt (or any trustee or
agent acting on their behalf) incurred pursuant to documents executed or
amended and restated after the Closing Date, to furnish copies of all such
notices directly to the Administrative Agent simultaneously with the furnishing
thereof to Borrower, and that such requirement may not be altered or rescinded
without the prior written consent of the Administrative Agent.
SECTION 7.10. FISCAL YEAR. Borrower shall not change its fiscal year
now employed for accounting and reporting purposes without the prior written
consent of the Administrative Agent and the Required Lenders, which consent
shall not be unreasonably withheld.
SECTION 7.11. SUBORDINATION OF INTERCOMPANY LOANS. All loans owed to
any Consolidated Company, or any Affiliate of any thereof, shall, at all times,
be subordinate to the Loans and the Borrower shall cause its Subsidiaries
and/or Affiliates from time to time to execute and deliver to the
Administrative Agent and the Required Lenders subordination agreements in form
and content reasonably satisfactory to the Administrative Agent and the
Required Lenders. Notwithstanding the foregoing, however, so long as no Default
or Event of Default has occurred and is continuing, payments of principal and
interest may be paid in respect of any such Intercompany Loans.
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SECTION 7.12. SUBSIDIARIES/GUARANTORS. The Borrower shall give the
Administrative Agent and the Lenders prompt written notification of (a) the
formation or acquisition (provided that nothing in this Section 7.12 shall be
deemed to authorize or prohibit the acquisition of any entity and provided
further that this requirement shall not be deemed to constitute a waiver of the
Borrower's obligation at all times to comply with the requirements of Section
8.3 of this Agreement) of any Subsidiary and the purchase price therefor, (b)
the transfer of assets to any Consolidated Company if notice thereof is
required to be given pursuant to Section 7.7(m) and as a result thereof the
recipient of such assets becomes a Subsidiary, and (c) the occurrence of any
other event creating a new Subsidiary. Within thirty (30) days of the
acquisition or formation of each such new Subsidiary or the occurrence of such
other event which creates each such new Subsidiary, the Borrower shall (i)
deliver to the Administrative Agent copies of the Articles of Incorporation and
Bylaws of each such new Subsidiary and (ii) cause any such new Subsidiary that
is a Wholly-Owned Subsidiary to execute and deliver to the Administrative Agent
a Guaranty Agreement and a Contribution Agreement each in form and content
substantially similar to Exhibits F and G hereto, and such other documentation
as the Administrative Agent and the Required Lenders may reasonably request,
including, without limitation, a joinder to this Agreement and an opinion of
counsel to each such Wholly-Owned Subsidiary, addressed to the Administrative
Agent and each Lender, and containing opinions as to each such Subsidiary,
assumptions and qualifications substantially similar to those contained in
Exhibit E hereto.
ARTICLE 8
NEGATIVE COVENANTS
So long as any Commitment remains in effect hereunder or any Note
shall remain unpaid, Borrower will not and will not permit any Subsidiary to:
SECTION 8.1. [RESERVED].
SECTION 8.2. LIENS. Create, incur, assume or suffer to exist any Lien
on any of its property now owned or hereafter acquired to secure any
Indebtedness other than:
(a) Liens existing on the date hereof disclosed on Schedule
8.2;
(b) any Lien on any property securing Indebtedness incurred
or assumed for the purpose of financing all or any part of the acquisition cost
of such property and any refinancing thereof, provided that such Lien does not
extend to any other property, and provided further that the aggregate principal
amount of Indebtedness secured by all such Liens at any time does not exceed
ten percent (10%) of the Borrower's net worth;
(c) Liens for taxes not yet due, and Liens for taxes or Liens
imposed by ERISA which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being maintained;
(d) Statutory Liens of landlords, existing contractual Liens
of landlords, future contractual Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law created in
the ordinary course of business or which are being contested
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in good faith by appropriate proceedings and with respect to which adequate
reserves are being maintained;
(e) Liens incurred or deposits made in the ordinary course of
business in connection with workers compensation, unemployment insurance and
other types of social security, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases, government
contracts, performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money);
(f) Liens resulting from zoning, easements, and restrictions
on the use of such real estate, or rights reserved or vested in governmental
authority, which do not materially impair the use of such real estate; and
(g) Liens arising under ERISA;
(h) Liens which secure any Indebtedness owing by one
Consolidated Company to another Consolidated Company; and
(i) Other Liens included in the $3,000,000.00 exception
provided for in Section 6.7.
SECTION 8.3. MERGERS, ACQUISITIONS, SALES, ETC. Merge or consolidate
with or, except as permitted pursuant to Section 8.4, acquire all or any
portion of the equity of any other Person, other than Borrower or another
Subsidiary, or sell, lease, or otherwise dispose of its accounts, property or
other assets (including capital stock of Subsidiaries); provided, however, that
the foregoing restrictions on asset sales shall not be applicable to (i) sales
of equipment or other personal property being replaced by other equipment or
other personal property purchased as a capital expenditure item having
comparable values, (ii) sale, lease or transfer of assets of the Borrower or
any Subsidiary to the Borrower or to any other Subsidiary, (iii) sales of
inventory or real property in the ordinary course of business, (iv)
dispositions of obsolete, damaged or unusable assets and (v) other asset sales
(including the stock of Subsidiaries) where, on the date of execution of a
binding obligation to make such asset sale (provided that if the asset sale is
not consummated within six (6) months of such execution, then on the date of
consummation of such asset sale rather than on the date of execution of such
binding obligation), the Asset Value of such other asset sales occurring after
the Closing Date, taking into account the Asset Value of the proposed asset
sale, would not, during any twelve (12) month period, exceed fifteen percent
(15%) of Borrower's assets; and, provided further, that the foregoing
restrictions on mergers shall not apply to mergers involving Borrower and
another entity, provided Borrower is the surviving entity, and mergers between
a Subsidiary of Borrower and Borrower or between Subsidiaries of Borrower and
mergers of a Subsidiary of Borrower and another entity so long as the resulting
entity is a Wholly-Owned Subsidiary of Borrower; provided, however, that no
transaction pursuant to clauses (i), (ii), (iv), (v) or the second proviso
above shall be permitted if any Default or Event of Default otherwise exists at
the time of such transaction or would otherwise exist as a result of such
transaction.
SECTION 8.4. INVESTMENTS, LOANS, ETC. Make or permit to remain
outstanding any loan or advance to, or guarantee, endorse, or otherwise be or
become contingently liable, directly or
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indirectly in connection with obligations, stock or dividends of any other
Person, or hold any Investments in any Person, or otherwise acquire or hold any
Subsidiaries, other than:
(a) investments received in settlement of debts created in
the ordinary course of business;
(b) the endorsement of negotiable instruments in the ordinary
course of business;
(c) investments in stock or assets, or any combination
thereof, of Subsidiaries existing on the date hereof or of any new Subsidiaries
provided that (i) such investments in Subsidiaries that are not Wholly-Owned
Subsidiaries and (ii) such investments which are used or to be used for the
acquisition of all or any portion of the equity in or assets of any other
Person do not exceed $50,000,000.00 in the aggregate during any twelve (12)
month period;
(d) investments in minority interests in any other Person
provided such minority interests do not exceed $500,000.00 in the aggregate;
(e) direct obligations of the United States or any agency
thereof, or obligations guaranteed by the United States or any agency thereof,
in each case supported by the full faith and credit of the United States and
maturing within one year from the date of creation thereof;
(f) commercial paper, bankers acceptances or corporate
obligations maturing within one year from the date of creation thereof having a
rating at the time as of which any determination is made of P-1 (or higher)
according to Moody's or as A-1 (or higher) according to Standard & Poor's
corporation or the equivalent thereof if by another nationally recognized
credit rating agency;
(g) time deposits or repurchase agreements maturing within
one year from the date of creation thereof, including certificates of deposit
or repurchase agreements issued by any Lender and any office located in the
United States of any bank or trust company which is organized under the laws of
the United States or any state thereof and has total assets aggregating at
least $500,000,000.00, including without limitation, any such deposits in
Eurodollars issued by a foreign branch of any such bank or trust company;
(h) Investments made by Plans;
(i) Intercompany Loans; and
(j) advances to employees not to exceed $1,000,000.00 in the
aggregate at any one time.
SECTION 8.5. [RESERVED].
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SECTION 8.6. TRANSACTIONS WITH AFFILIATES.
(a) Enter into any material transaction or series of related
transactions which in the aggregate would be material, whether or not in the
ordinary course of business, with any Affiliate of any Consolidated Company
(but excluding any Affiliate which is also a Consolidated Company), other than
on terms and conditions substantially as favorable to such Consolidated Company
as would be obtained by such Consolidated Company at the time in a comparable
arm's length transaction with a Person other than an Affiliate.
(b) Convey or transfer to any other Consolidated Company any
assets (excluding conveyances or transfers in the ordinary course of business)
if at the time of such conveyance or transfer any Default or Event of Default
exists or would exist as a result of such conveyance or transfer.
SECTION 8.7. [RESERVED].
SECTION 8.8. CHANGES IN BUSINESS. Enter into any business which is
substantially different from that presently conducted or presently contemplated
by the Consolidated Companies taken as a whole.
SECTION 8.9. ERISA. Take any action which would fail to satisfy any
minimum funding standard for any Plan maintained by the Borrower or any ERISA
Affiliate or fail to make any payments to a Multiemployer Plan required by
reason of Borrower's or any ERISA Affiliate's complete or partial withdrawal
(as described in Act Section 4203 or 4205 of ERISA) from such Plan.
SECTION 8.10. [RESERVED].
SECTION 8.11. LIMITATION ON PAYMENT RESTRICTIONS AFFECTING
CONSOLIDATED COMPANIES. Create or otherwise cause or suffer to exist or become
effective, any consensual encumbrance or restriction on the ability of any
Consolidated Company to (i) pay dividends or make any other distributions on
such Consolidated Company's stock, or (ii) pay any indebtedness owed to
Borrower or any other Consolidated Company, or (iii) transfer any of its
property or assets to Borrower or any other Consolidated Company, except any
consensual encumbrance or restriction existing under the Credit Documents or
any equivalent consensual encumbrance or restriction under any indenture, loan
or credit agreement, debenture, note or other document evidencing or governing
any other Consolidated Funded Debt.
SECTION 8.12. [RESERVED].
SECTION 8.13. USE OF PROCEEDS. Use of the proceeds of the Loans in any
material respect for any purpose except those set forth herein.
SECTION 8.14. SUBSIDIARY INDEBTEDNESS. Without the prior written
consent of the Administrative Agent and the Required Lenders, the Subsidiaries
of the Borrower shall not create, incur, assume or suffer to exist any
Indebtedness in excess of $3,000,000.00 in the aggregate; provided, however,
the foregoing restriction shall not apply to Subsidiaries that have guaranteed
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the Loans by executing and delivering to the Administrative Agent, in favor of
the Lenders, Guaranty Agreements.
ARTICLE 9
EVENTS OF DEFAULT
Upon the occurrence and during the continuance of any of the following
specified events (each an "Event of Default"):
SECTION 9.1. PAYMENTS. Borrower shall fail to make promptly when due
(including, without limitation, by mandatory prepayment) any principal payment
with respect to the Loans, or, within five (5) days after receipt of notice
that such amount is due, any payment of interest, fees or other amounts payable
hereunder;
SECTION 9.2. COVENANTS WITHOUT NOTICE. Borrower shall fail to observe
or perform any covenant or agreement contained in Section 7.8;
SECTION 9.3. OTHER COVENANTS. (a) Borrower shall fail to observe or
perform any covenant or agreement contained in Section 7.7 or Article 8 of
this Agreement, and such failure shall remain unremedied for 30 days after the
earlier of (i) a member of Borrower's Senior Management obtains actual
knowledge of such failure or (ii) written notice thereof shall have been given
to Borrower by Administrative Agent or any Lender; or (b) Borrower shall fail
to observe or perform any covenant or agreement contained in this Agreement,
other than those referred to in Sections 9.1, 9.2 and 9.3(a), and, if, in the
reasonable judgment of Administrative Agent, is capable of being remedied, such
failure shall remain unremedied for 30 days after the earlier of (i) a member
of Borrower's Senior Management obtaining actual knowledge thereof, or
(ii) written notice thereof shall have been given to Borrower by Administrative
Agent or any Lender, provided, however, that in the case of the violation of
any such covenant or agreement (other than those referred to in Sections 9.1,
9.2 or 9.3(a)), if such violation could not reasonably be expected to be cured
within 30 days, the Borrower shall have a period of 90 days to cure such
violation, so long as Borrower is diligently pursuing such cure;
SECTION 9.4. REPRESENTATIONS. Any representation or warranty made or
deemed to be made by Borrower or any other Credit Party or by any of its
officers under this Agreement or any other Credit Document (including the
Schedules attached thereto), or any certificate or other document submitted to
the Administrative Agent or the Lenders by any such Person pursuant to the
terms of this Agreement or any other Credit Document, shall be incorrect in any
material respect when made or deemed to be made or submitted;
SECTION 9.5. NON-PAYMENTS OF OTHER INDEBTEDNESS. Any Consolidated
Company shall fail to make when due (whether at stated maturity, by
acceleration, on demand or otherwise, and after giving effect to any applicable
grace period) any payment of principal of or interest on any Indebtedness
(other than the Obligations) which individually or in the aggregate exceeds
$5,000,000.00;
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SECTION 9.6. DEFAULTS UNDER OTHER AGREEMENTS. Any Consolidated Company
shall fail to observe or perform any covenants or agreements (other than those
referenced in Section 9.5) contained in any agreements or instruments relating
to any of its Indebtedness which individually or in the aggregate exceeds
$5,000,000 or any other event shall occur if the effect of such failure or
other event is to accelerate, or to permit the holder of such Indebtedness or
any other Person to accelerate, the maturity of such Indebtedness; or any such
Indebtedness shall be required to be prepaid (other than by a regularly
scheduled required prepayment) in whole or in part prior to its stated
maturity;
SECTION 9.7. BANKRUPTCY. Borrower or any other Consolidated Company
shall commence a voluntary case concerning itself under the Bankruptcy Code or
an involuntary case for bankruptcy is commenced against any Consolidated
Company and the petition is not controverted within 30 days after issuance by
the Bankruptcy Court of the summons directed to and properly served upon the
Borrower or any Consolidated Company, or is not dismissed within 90 days, after
commencement of the case; or a custodian (as defined in the Bankruptcy Code) is
appointed for, or takes charge of, all or any substantial part of the property
of any Consolidated Company; or any Consolidated Company commences proceedings
of its own bankruptcy or to be granted a suspension of payments or any other
proceeding under any reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction, whether now or hereafter in effect, relating to any Consolidated
Company or there is commenced against any Consolidated Company any such
proceeding which remains undismissed for a period of 90 days; or any
Consolidated Company is adjudicated insolvent or bankrupt; or any order of
relief or other order approving any such case or proceeding is entered; or any
Consolidated Company suffers any appointment of any custodian or the like for
it or any substantial part of its property which continues undischarged or
unstayed for a period of 90 days; or any Consolidated Company makes a general
assignment for the benefit of creditors; or any Consolidated Company shall fail
to pay, or shall state that it is unable to pay, or shall be unable to pay, its
debts generally as they become due; or any Consolidated Company shall call a
meeting of its creditors with a view to arranging a composition or adjustment
of its debts; or any Consolidated Company shall by any act or failure to act
indicate its consent to, approval of or acquiescence in any of the foregoing;
or any corporate action is taken by any Consolidated Company for the purpose of
effecting any of the foregoing;
SECTION 9.8. ERISA.
(a) The occurrence of any Termination Event with respect to a
Plan;
(b) any Plan incurs an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Act Section 302 of ERISA) for which a
waiver has not been obtained in accordance with the applicable provisions of
the Code and ERISA;
(c) the Borrower or any ERISA Affiliate is in "default" (as
defined in Act Section 4219 (c)(5) of ERISA) with respect to payments to a
Multiemployer Plan resulting from the complete or partial withdrawal (as
described in Act Section 4203 or 4205 of ERISA) from such Multiemployer Plan or
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(d) any assertion of liability by the IRS, Department of
Labor or PBGC or any of such agency's successors with respect to any Plan which
results in a liability to Borrower or any of its ERISA Affiliates;
and there shall result from any such Termination Event, deficiency, default in
payment, liability or other event a liability to the PBGC or a Plan that would
have a Materially Adverse Effect.
SECTION 9.9. MONEY JUDGMENT. A judgment, tax lien or order for the
payment of money in excess of $5,000,000.00, or otherwise reasonably
anticipated to have a Materially Adverse Effect, shall be rendered against
Borrower or any other Consolidated Company and such judgment or order shall
continue unsatisfied (in the case of a money judgment) and in effect for a
period of 60 days during which execution shall not be effectively stayed or
deferred (whether by action of a court, by agreement or otherwise);
SECTION 9.10. CHANGE IN CONTROL OF BORROWER.
(a) Any "person" or "group" (within the meaning of Sections
13(d) and 14(d)(2) of the Exchange Act), except any current stockholder of
Borrower who owns, as of the date of this Agreement, at least twenty percent
(20%) of the issued and outstanding capital stock of the Borrower, shall become
the "beneficial owner(s)" (as defined in said Rule 13d-3) of more than thirty
percent (30%) of the shares of the outstanding common stock of Borrower
entitled to vote for members of Borrower's board of directors; or
(b) any event or condition shall occur or exist which,
pursuant to the terms of any change in control provision, requires or permits
the holder(s) of Indebtedness of any Consolidated Company to require that such
Indebtedness be redeemed, repurchased, defeased, prepaid or repaid, in whole or
in part, or the maturity of such Indebtedness to be accelerated in any respect;
SECTION 9.11. DEFAULT UNDER OTHER CREDIT DOCUMENTS. There shall
exist or occur any "Event of Default" as provided under the terms of any other
Credit Document, or any Credit Document ceases to be in full force and effect
or the validity or enforceability thereof is disaffirmed by or on behalf of
Borrower or any other Credit Party, or any Credit Party seeks to cancel or
terminate any Credit Documents or to limit its liability thereunder, or at any
time it is or becomes unlawful for Borrower or any other Credit Party to
perform or comply with its obligations under any Credit Document, or the
obligations of Borrower or any other Credit Party under any Credit Document are
not or cease to be legal, valid and binding on Borrower or any such Credit
Party; or
SECTION 9.12. ATTACHMENTS. An attachment or similar action shall be
made on or taken against any of the assets of any Consolidated Company and is
not removed, suspended or enjoined within 60 days of the same being made or any
suspension or injunction being lifted;
then, and in any such event, and at any time thereafter if any Event of Default
shall then be continuing, the Administrative Agent may, and upon the written,
telecopied or telex request of the Required Lenders, shall, by written notice
to Borrower, take any or all of the following actions, without prejudice to the
rights of the Administrative Agent, any Lender or the holder of any Note to
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enforce its claims against Borrower or any other Credit Party: (i) declare all
Commitments terminated, whereupon the pro rata Commitments of each Lender shall
terminate immediately and any unpaid commitment fee shall forthwith become due
and payable without any other notice of any kind; and (ii) declare the
principal of and any accrued interest on the Loans, and all other obligations
owing hereunder, to be, whereupon the same shall become, forthwith due and
payable without presentment, demand, protest or other notice of any kind, all
of which are hereby waived by Borrower; provided, that, if an Event of Default
specified in Section 9.7 shall occur, the result which would occur upon the
giving of written notice by the Administrative Agent to any Credit Party, as
specified in clauses (i) and (ii) above, shall occur automatically without the
giving of any such notice.
ARTICLE 10
THE ADMINISTRATIVE AGENT
SECTION 10.1. APPOINTMENT OF ADMINISTRATIVE AGENT. Each Lender hereby
designates SunTrust Bank, Central Florida, National Association as
Administrative Agent ("Administrative Agent") to administer all matters
concerning the Loans and to act as herein specified. Each Lender hereby
irrevocably authorizes, and each holder of any Note by the acceptance of a Note
shall be deemed irrevocably to authorize, the Administrative Agent to take such
actions on its behalf under the provisions of this Agreement, the other Credit
Documents, and all other instruments and agreements referred to herein or
therein, and to exercise such powers and to perform such duties hereunder and
thereunder as are specifically delegated to or required of the Administrative
Agent by the terms hereof and thereof and such other powers as are reasonably
incidental thereto. The Administrative Agent may perform any of its duties
hereunder by or through its agents or employees. The provisions of this Section
10.1 are solely for the benefit of the Agent, and neither Borrower nor any of
the other Consolidated Companies shall have any rights as third party
beneficiaries of any of the provisions hereof. In performing its functions and
duties under this Agreement, the Administrative Agent shall act solely as agent
of the Lenders and does not assume and shall not be deemed to have assumed any
obligations towards or relationship of agency or trust with or for the Borrower
and the other Consolidated Companies.
SECTION 10.2. NATURE OF DUTIES OF ADMINISTRATIVE AGENT. The
Administrative Agent shall have no duties or responsibilities except those
expressly set forth in this Agreement and the other Credit Documents. Neither
the Administrative Agent nor any of its respective officers, directors,
employees or agents shall be liable for any action taken or omitted by it as
such hereunder or in connection herewith, unless caused by its gross negligence
or willful misconduct. The duties of the Administrative Agent shall be
ministerial and administrative in nature; the Administrative Agent shall not
have by reason of this Agreement a fiduciary relationship in respect of any
Lender; and nothing in this Agreement, express or implied, is intended to or
shall be so construed as to impose upon the Administrative Agent any
obligations, in respect of this Agreement or the other Credit Documents except
as expressly set forth herein.
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SECTION 10.3. LACK OF RELIANCE ON THE ADMINISTRATIVE AGENT.
(a) Independently and without reliance upon the
Administrative Agent, each Lender, to the extent it deems appropriate, has made
and shall continue to make (i) its own independent investigation of the
financial condition and affairs of the Credit Parties in connection with the
taking or not taking of any action in connection herewith, and (ii) its own
appraisal of the creditworthiness of the Credit Parties, and, except as
expressly provided in this Agreement, the Administrative Agent shall have no
duty or responsibility, either initially or on a continuing basis, to provide
any Lender with any credit or other information with respect thereto, whether
coming into its possession before the making of the Loans or at any time or
times thereafter.
(b) The Administrative Agent shall not be responsible to any
Lender for any recitals, statements, information, representations or warranties
herein or in any document, certificate or other writing delivered in connection
herewith or for the execution, effectiveness, genuineness, validity,
enforceability, collectability, priority or sufficiency of this Agreement, the
Notes, or any other documents contemplated hereby or thereby, or the financial
condition of the Credit Parties, or be required to make any inquiry concerning
either the performance or observance of any of the terms, provisions or
conditions of this Agreement, the Notes, or the other documents contemplated
hereby or thereby, or the financial condition of the Credit Parties, or the
existence or possible existence of any Default or Event of Default; provided,
however, to the extent that the Administrative Agent has been advised that a
Lender has not received any information formally delivered to the
Administrative Agent pursuant to Section 7.7, the Administrative Agent shall
deliver or cause to be delivered such information to such Lender.
SECTION 10.4. CERTAIN RIGHTS OF THE ADMINISTRATIVE AGENT. If the
Administrative Agent shall request instructions from the Required Lenders with
respect to any action or actions (including the failure to act) in connection
with this Agreement, the Administrative Agent shall be entitled to refrain from
such act or taking such act, unless and until the Administrative Agent shall
have received instructions from the Required Lenders; and the Administrative
Agent shall not incur liability to any Person by reason of so refraining.
Without limiting the foregoing, no Lender shall have any right of action
whatsoever against the Administrative Agent as a result of the Administrative
Agent acting or refraining from acting hereunder in accordance with the
instructions of the Required Lenders.
SECTION 10.5. RELIANCE BY ADMINISTRATIVE AGENT. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any note, writing, resolution, notice, statement, certificate, telex, teletype
or telecopier message, cable gram, radiogram, order or other documentary,
teletransmission or telephone message believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person. The Administrative
Agent may consult with legal counsel (including counsel for any Credit Party),
independent public accountants and other experts selected by it and shall not
be liable for any action taken or omitted to be taken by it in good faith in
accordance with the advice of such counsel, accountants or experts.
SECTION 10.6. INDEMNIFICATION OF ADMINISTRATIVE AGENT. To the extent
the Administrative Agent is not reimbursed and indemnified by the Credit
Parties, each Lender will reimburse and indemnify the Administrative Agent,
ratably according to the respective amounts of
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the Loans outstanding under all Facilities (or if no amounts are outstanding,
ratably in accordance with the Total Commitments), in either case, for and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses (including counsel fees and
disbursements) or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against the Administrative Agent in
performing its duties hereunder, in any way relating to or arising out of this
Agreement or the other Credit Documents; provided that no Lender shall be
liable to the Administrative Agent for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct and provided further that if the
Administrative Agent receives payment from a Credit Party in respect of any
amount previously paid to Administrative Agent by a Lender pursuant to this
Section 10.6, the Administrative Agent shall pay to any such Lender its ratable
portion of such payment.
SECTION 10.7. THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
With respect to its obligation to lend under this Agreement, the Loans made by
it and the Notes issued to it, the Administrative Agent shall have the same
rights and powers hereunder as any other Lender or holder of a Note and may
exercise the same as though it were not performing the duties specified herein;
and the terms "Lenders", "Required Lenders", "holders of Notes", or any similar
terms shall, unless the context clearly otherwise indicates, include the
Administrative Agent in its individual capacity. The Administrative Agent may
accept deposits from, lend money to, and generally engage in any kind of
banking, trust, financial advisory or other business with the Consolidated
Companies or any Affiliate of the Consolidated Companies as if it were not
performing the duties specified herein, and may accept fees and other
consideration from the Consolidated Companies for services in connection with
this Agreement and otherwise without having to account for the same to the
Lenders.
SECTION 10.8. HOLDERS OF NOTES. The Administrative Agent may deem and
treat the payee of any Note as the owner thereof for all purposes hereof unless
and until a written notice of the assignment or transfer thereof shall have
been filed with the Administrative Agent. Any request, authority or consent of
any Person who, at the time of making such request or giving such authority or
consent, is the holder of any Note shall be conclusive and binding on any
subsequent holder, transferee or assignee of such Note or of any Note or Notes
issued in exchange therefor.
SECTION 10.9. SUCCESSOR ADMINISTRATIVE AGENT.
(a) The Administrative Agent may resign at any time by giving
written notice thereof to the Lenders and Borrower and may be removed at any
time with or without cause by the Required Lenders; provided, however, the
Administrative Agent may not resign or be removed until a successor
Administrative Agent has been appointed and shall have accepted such
appointment. Upon any such resignation or removal, the Required Lenders shall
have the right to appoint a successor Administrative Agent subject to
Borrower's prior written approval, which approval will not be unreasonably
withheld or delayed. If no successor Administrative Agent shall have been so
appointed by the Required Lenders, and shall have accepted such appointment,
within 30 days after the retiring Administrative Agent's giving of notice of
resignation or the Required Lenders' removal of the retiring Administrative
Agent, then the retiring Administrative Agent may, on behalf of the Lenders,
appoint a successor Administrative Agent subject to Borrower's prior
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written approval, which approval will not be unreasonably withheld or delayed,
which successor Administrative Agent shall be a bank which maintains an office
in the United States, or a commercial bank organized under the laws of the
United States of America or any State thereof, or any Affiliate of such bank,
having a combined capital and surplus of at least $100,000,000.00. If at any
time SunTrust Bank, Central Florida, National Association is removed as a
Lender, SunTrust Bank, Central Florida, National Association, shall
simultaneously resign as Administrative Agent.
(b) Upon the acceptance of any appointment as the
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations under this Agreement. After any retiring
Administrative Agent's resignation or removal hereunder as Administrative
Agent, the provisions of this Article 10 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was an Administrative Agent
under this Agreement.
SECTION 10.10. SYNDICATION AGENT AND DOCUMENTATION AGENT.
Notwithstanding the present or future designation of any Lender as Syndication
Agent or Documentation Agent for purposes of this Agreement, no such Lender or
any successor thereto shall, solely as a result of such designation, have any
duties, obligations or responsibilities to the Administrative Agent, any other
Lender or the Borrower other than such duties, obligations and responsibilities
arising out of its status as a Lender.
ARTICLE 11
MISCELLANEOUS
SECTION 11.1. NOTICES. All notices, requests and other communications
to any party hereunder shall be in writing (including bank wire, telecopy or
similar teletransmission or writing) and shall be given to such party at its
address or applicable teletransmission number set forth on the signature pages
hereof, or such other address or applicable teletransmission number as such
party may hereafter specify by notice to the Administrative Agent and Borrower.
Each such notice, request or other communication shall be effective (i) if
given by mail, 72 hours after such communication is deposited in the mails with
first class postage prepaid, addressed as aforesaid, (ii) if given by telecopy,
when such telecopy is transmitted to the telecopy number specified in this
Section and the appropriate confirmation is received, or (iii) if given by any
other means (including, without limitation, by air courier), when delivered or
received at the address specified in this Section; provided that notices to the
Administrative Agent shall not be effective until received.
SECTION 11.2. AMENDMENTS, ETC. No amendment or waiver of any provision
of this Agreement or the other Credit Documents, nor consent to any departure
by any Credit Party therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the following: (i)
waive any of the
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conditions specified in Section 5.1 or Section 5.2, (ii) increase the
Commitments or other contractual obligations to Borrower under this Agreement,
(iii) reduce the principal of, or interest on, the Notes or any fees hereunder,
(iv) extend the Termination Date or postpone any date fixed for the payment in
respect of principal of, or interest on, the Notes or any fees hereunder, (v)
change the percentage of the Commitments or of the aggregate unpaid principal
amount of the Notes, or the number or identity of Lenders which shall be
required for the Lenders or any of them to take any action hereunder, (vi)
release any guarantor from its obligations under any guaranty agreements, (vii)
modify the definition of "Required Lenders," or (viii) modify this Section
11.2. Notwithstanding the foregoing, no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the
Lenders required hereinabove to take such action, affect the rights or duties
of the Administrative Agent under this Agreement or under any other Credit
Document.
SECTION 11.3. NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on
the part of the Administrative Agent, any Lender or any holder of a Note in
exercising any right or remedy hereunder or under any other Credit Document,
and no course of dealing between any Credit Party and the Administrative Agent,
any Lender or the holder of any Note shall operate as a waiver thereof, nor
shall any single or partial exercise of any right or remedy hereunder or under
any other Credit Document preclude any other or further exercise thereof or the
exercise of any other right or remedy hereunder or thereunder. The rights and
remedies herein expressly provided are cumulative and not exclusive of any
rights or remedies which the Administrative Agent, any Lender or the holder of
any Note would otherwise have. No notice to or demand on any Credit Party not
required hereunder or under any other Credit Document in any case shall entitle
any Credit Party to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Administrative Agent,
the Lenders or the holder of any Note to any other or further action in any
circumstances without notice or demand.
SECTION 11.4. PAYMENT OF EXPENSES, ETC. Borrower shall:
(a) whether or not the transactions hereby contemplated are
consummated, pay all reasonable, out-of-pocket costs and expenses of the
Administrative Agent as required by the Fee Letter in the administration (both
before and after the execution hereof and including reasonable expenses
actually incurred relating to advice of counsel as to the rights and duties of
the Administrative Agent and the Lenders with respect thereto) of, and in
connection with the preparation, execution and delivery of, preservation of
rights under, enforcement of, and, after a Default or Event of Default,
refinancing, renegotiation or restructuring of, this Agreement and the other
Credit Documents and the documents and instruments referred to therein, and any
amendment, waiver or consent relating thereto (including, without limitation,
the reasonable fees actually incurred and disbursements of counsel for the
Administrative Agent as required by the Fee Letter), and in the case of
enforcement of this Agreement or any Credit Document after the occurrence and
during the continuance of an Event of Default, all such reasonable,
out-of-pocket costs and expenses (including, without limitation, the reasonable
fees actually incurred and disbursements of counsel, for any of the Lenders);
(b) subject, in the case of certain Taxes, to the applicable
provisions of Section 4.7(b), pay and hold each of the Lenders harmless from
and against any and all present and future
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stamp, documentary, and other similar Taxes with respect to this Agreement, the
Notes and any other Credit Documents, any collateral described therein, or any
payments due thereunder, and save each Lender harmless from and against any and
all liabilities with respect to or resulting from any delay or omission to pay
such Taxes; and
(c) indemnify the Administrative Agent and each Lender, and
their respective officers, directors, employees, representatives and agents
from, and hold each of them harmless against, any and all costs, losses,
liabilities, claims, damages or expenses incurred by any of them (whether or
not any of them is designated a party thereto) (an "Indemnitee") arising out of
or by reason of any investigation, litigation or other proceeding related to
any actual or proposed use of the proceeds of any of the Loans or any Credit
Party's entering into and performing of the Agreement, the Notes, or the other
Credit Documents, including, without limitation, the reasonable fees actually
incurred and disbursements of counsel (including foreign counsel) incurred in
connection with any such investigation, litigation or other proceeding;
provided, however, Borrower shall not be obligated to indemnify any Indemnitee
for any of the foregoing arising out of such Indemnitee's gross negligence or
willful misconduct or the material breach by the Indemnitee of its obligations
under this Agreement;
(d) without limiting the indemnities set forth in subsection
(c) above, indemnify each Indemnitee for any and all expenses and costs
(including without limitation, remedial, removal, response, abatement, cleanup,
investigative, closure and monitoring costs), losses, claims (including claims
for contribution or indemnity and including the cost of investigating or
defending any claim and whether or not such claim is ultimately defeated, and
whether such claim arose before, during or after any Credit Party's ownership,
operation, possession or control of its business, property or facilities or
before, on or after the date hereof, and including also any amounts paid
incidental to any compromise or settlement by the Indemnitee or Indemnitees to
the holders of any such claim), lawsuits, liabilities, obligations, actions,
judgments, suits, disbursements, encumbrances, liens, damages (including
without limitation damages for contamination or destruction of natural
resources), penalties and fines of any kind or nature whatsoever (including
without limitation in all cases the reasonable fees actually incurred, other
charges and disbursements of counsel in connection therewith) incurred,
suffered or sustained by that Indemnitee based upon, arising under or relating
to Environmental Laws based on, arising out of or relating to in whole or in
part, the existence or exercise of any rights or remedies by any Indemnitee
under this Agreement, any other Credit Document or any related documents (but
excluding those incurred, suffered or sustained by any Indemnitee as a result
of any action taken by or on behalf of the Lenders with respect to any
Subsidiary of Borrower (or the assets thereof) owned or controlled by the
Lenders); provided, however, Borrower shall not be obligated to indemnify any
Indemnitee for any of the foregoing arising out of such Indemnitee's gross
negligence or willful misconduct.
If any claim for which an Indemnitee is entitled to indemnification is
asserted against such Indemnitee by a third party, such Indemnitee shall
promptly give Borrower notice thereof and give Borrower an opportunity to
defend the same with counsel of Borrower's choice, subject to the
Administrative Agent's approval, which will not be unreasonably withheld, at
Borrower's expense. All Indemnitees shall provide reasonable cooperation in
connection with such defense. In the event that Borrower desires to compromise
or settle any such claim, all Indemnitees shall have the rights
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to consent to such settlement or compromise; provided, however, that if such
compromise or settlement is for money damages only (paid by Borrower in full)
and will include a full release and discharge of such Indemnitee, and such
Indemnitee withholds its consent to such compromise or settlement, such
Indemnitee and Borrower agree that (i) Borrower's liability shall be limited to
the amount of the proposed settlement and Borrower shall thereupon be relieved
of any further liability with respect to such claim, and (ii) from and after
such date, such Indemnitee will undertake all legal costs and expenses incurred
in connection with any such claim.
If and to the extent that the obligations of Borrower under this
Section 11.4 are unenforceable for any reason, Borrower hereby agrees to make
the maximum contribution to the payment and satisfaction of such obligations
which is permissible under applicable law.
SECTION 11.5. RIGHT OF SETOFF. In addition to and not in limitation of
all rights of offset that any Lender or other holder of a Note may have under
applicable law, each Lender or other holder of a Note shall, upon the
occurrence of any Event of Default and whether or not such Lender or such
holder has made any demand or any Credit Party's obligations are matured, have
the right to appropriate and apply to the payment of any Credit Party's
obligations hereunder and under the other Credit Documents, all deposits of any
Credit Party (general or special, time or demand, provisional or final) then or
thereafter held by and other indebtedness or property then or thereafter owing
by such Lender or other holder to any Credit Party, whether or not related to
this Agreement or any transaction hereunder. Each Lender shall promptly notify
Borrower of any offset hereunder.
SECTION 11.6. BENEFIT OF AGREEMENT.
(a) This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective successors and assigns of the
parties hereto, provided that Borrower may not assign or transfer any of its
interest hereunder without the prior written consent of all the Lenders.
(b) Any Lender may make, carry or transfer Loans at, to or
for the account of, any of its branch offices or the office of an Affiliate of
such Lender.
(c) Each Lender may assign all or a portion of its interests,
rights and obligations under this Agreement (including all or a portion of any
of its Commitments and the Loans at the time owing to it and the Notes held by
it) to any Eligible Assignee; provided, however, that (i) the Administrative
Agent and Borrower must give their prior written consent to such assignment
(which consent shall not be unreasonably withheld or delayed), provided,
however that (A) consent of the Administrative Agent and the Borrower shall not
be required if such assignment is to a domestic Affiliate of the assigning
Lender and (B) consent of the Borrower shall not be required after the
occurrence and during the continuance of an Event of Default, (ii) if less than
all of a Lender's Commitments or Loans is to be assigned, the amount of the
Commitments, in the case of the Revolving Loan Commitments, or Loans, in the
case of assignment of Loans, of the assigning Lender subject to each assignment
(determined as of the date the assignment and acceptance with respect to such
assignment is delivered to the Administrative Agent) shall be in the minimum
amount of $5,000,000.00 and integral multiples of $5,000,000.00, (iii) the
parties to each such assignment shall execute and deliver to the Administrative
Agent an Assignment and
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Acceptance, together with a Note or Notes subject to such assignment and, if
the assignee is not a domestic Affiliate of the assigning Lender, a processing
and recordation fee of $3,000.00. Assignor shall, to the extent of its interest
so assigned, relinquish its rights and be released from its obligations under
this Agreement and the other Credit Documents except for any such obligations
that are due and payable on, or that became due and payable before, the
effective date of such assignment. Borrower shall not be responsible for such
processing and recordation fee or any costs or expenses incurred by any Lender
or the Administrative Agent in connection with such assignment. From and after
the effective date specified in each Assignment and Acceptance, which
effective date shall be at least five (5) Business Days after the execution
thereof, the assignee thereunder shall be a party hereto and to the extent of
the interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement. Within five (5) Business Days
after receipt of the notice and the Assignment and Acceptance, Borrower, at
its own expense, shall execute and deliver to the Administrative Agent, in
exchange for the surrendered Note or Notes, a new Note or Notes to the order
of such assignee in a principal amount equal to the applicable Commitments or
Loans assumed by it pursuant to such Assignment and Acceptance and new Note or
Notes to the assigning Lender in the amount of its retained Commitment or
Commitments or amount of its retained Loans. Such new Note or Notes shall be
in an aggregate principal amount equal to the aggregate principal amount of
such surrendered Note or Notes, shall be dated the date of the surrendered
Note or Notes which they replace, and shall otherwise be in substantially the
form attached hereto.
(d) Each Lender may, without the consent of Borrower and the
Administrative Agent, sell participations to one or more banks or other
entities in all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitments in the Loans owing to it and the
Notes held by it), provided, however, that (i) such Lender's obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) the participating bank or other entity shall not be entitled
to the benefit (except through its selling Lender) of the cost protection
provisions contained in Article 4 of this Agreement, and (iv) Borrower and the
Administrative Agent and other Lenders shall continue to deal solely and
directly with each Lender in connection with such Lender's rights and
obligations under this Agreement and the other Credit Documents, and such
Lender shall retain the sole right to enforce the obligations of Borrower
relating to the Loans and to approve any amendment, modification or waiver of
any provisions of this Agreement. Any Lender selling a participation hereunder
shall provide prompt written notice to Borrower and Administrative Agent of the
name of such participant.
(e) Any Lender or participant may, in connection with the
assignment or participation or proposed assignment or participation, pursuant
to this Section, disclose to the assignee or participant or proposed assignee
or participant any information relating to Borrower or the other Consolidated
Companies furnished to such Lender by or on behalf of Borrower or any other
Consolidated Company. With respect to any disclosure of confidential,
non-public, proprietary information, such proposed assignee or participant
shall agree to use the information only for the purpose of making any necessary
credit judgments with respect to this credit facility and not to use the
information in any manner prohibited by any law, including without limitation,
the securities laws of the United States. The proposed participant or assignee
shall agree in writing, a copy of which shall be furnished to Borrower, not to
disclose any of such information except (i)
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to directors, employees, auditors or counsel to whom it is necessary to show
such information, each of whom shall be informed of the confidential nature of
the information, (ii) in any statement or testimony pursuant to a subpoena or
order by any court, governmental body or other agency asserting jurisdiction
over such entity, or as otherwise required by law (provided prior notice is
given to Borrower and the Administrative Agent unless otherwise prohibited by
the subpoena, order or law), and (iii) upon the request or demand of any
regulatory agency or authority with proper jurisdiction. The proposed
participant or assignee shall further agree to return all documents or other
written material and copies thereof received from any Lender, the
Administrative Agent or Borrower relating to such confidential information
unless otherwise properly disposed of by such entity.
(f) Any Lender may at any time assign all or any portion of
its rights in this Agreement and the Notes issued to it to a Federal Reserve
Bank; provided that no such assignment shall release the Lender from any of its
obligations hereunder.
(g) If (i) any Taxes referred to in Section 4.7(b) have been
levied or imposed so as to require withholdings or deductions by Borrower and
payment by Borrower of additional amounts to any Lender as a result thereof,
(ii) any Lender shall make demand for payment of any material additional
amounts as compensation for increased costs pursuant to Section 4.10 or for its
reduced rate of return pursuant to Section 4.16, or (iii) any Lender shall
decline to consent to a modification or waiver of the terms of this Agreement
or the other Credit Documents requested by Borrower, then and in such event,
upon request from Borrower delivered to such Lender and the Administrative
Agent, such Lender shall assign, in accordance with the provisions of Section
11.6(c), all of its rights and obligations under this Agreement and the other
Credit Documents to another Lender or an Eligible Assignee selected by
Borrower, in consideration for the payment by such assignee to the Lender of
the principal of, and interest on, the outstanding Loans accrued to the date of
such assignment, and the assumption of such Lender's Total Commitment
hereunder, together with any and all other amounts owing to such Lender under
any provisions of this Agreement or the other Credit Documents accrued to the
date of such assignment and all Funding Losses incurred by the assigning Lender
as a result of receiving payment in respect of a LIBOR Advance on a date which
is not the last day of an Interest Period applicable thereto.
SECTION 11.7. GOVERNING LAW; SUBMISSION TO JURISDICTION.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND UNDER THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH AND
BE GOVERNED BY THE LAW (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF) OF THE STATE OF FLORIDA.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT, THE NOTES OR ANY OTHER CREDIT DOCUMENT OR WITH RESPECT TO ANY OTHER
CLAIM OR CAUSE OF ACTION ARISING OUT OF OR IN ANY WAY RELATED TO THE FUNDING,
ADMINISTRATION OR COLLECTION OF THE LOANS MAY BE BROUGHT IN THE CIRCUIT COURT
OF ORANGE COUNTY, FLORIDA, OR ANY OTHER COURT OF THE STATE OF FLORIDA OR OF THE
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UNITED STATES OF AMERICA FOR THE MIDDLE DISTRICT OF FLORIDA, AND, BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, BORROWER HEREBY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE TRIAL BY JURY IN
RESPECT OF ANY DISPUTE ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR
ANY OTHER CREDIT DOCUMENT OR ANY DOCUMENT RELATED THERETO OR WITH RESPECT TO
ANY OTHER CLAIM OR CAUSE OF ACTION ARISING OUT OF OR IN ANY WAY RELATED TO THE
FUNDING, ADMINISTRATION OR COLLECTION OF THE LOANS.
(c) BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY
THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID,
TO BORROWER AT ITS SAID ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER
SUCH MAILING. THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING,
WITHOUT LIMITATION, ANY OBJECTION IT MAY HAVE TO THE LAYING OF VENUE OR BASED
ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS IN
RESPECT OF THIS AGREEMENT, ANY OTHER CREDIT DOCUMENT OR ANY DOCUMENT RELATED
THERETO.
(d) NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE
ADMINISTRATIVE AGENT, ANY LENDER, ANY HOLDER OF A NOTE OR ANY CREDIT PARTY TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST BORROWER IN ANY OTHER JURISDICTION.
SECTION 11.8. INDEPENDENT NATURE OF LENDERS' RIGHTS. The amounts
payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its
rights pursuant to this Agreement and its Notes, and it shall not be necessary
for any other Lender to be joined as an additional party in any proceeding for
such purpose.
SECTION 11.9. COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument.
SECTION 11.10. EFFECTIVENESS; SURVIVAL.
(a) This Agreement shall not become effective until the date
(the "Effective Date") on which all of the parties hereto shall have signed a
counterpart hereof (whether the same or different counterparts) and the
signature of the Borrower shall not be effective until after
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execution hereof by all the Lenders and acceptance of delivery of this
Agreement by the Administrative Agent (or an agent of the Administrative Agent)
pursuant to Section 5.1.
(b) The obligations of Borrower under Sections 4.7(b), 4.10,
4.12, 4.16, and 11.4 hereof shall survive for one hundred twenty (120) days
after the payment in full of the Notes after the Final Maturity Date. All
representations and warranties made herein, in the certificates, reports,
notices, and other documents delivered pursuant to this Agreement shall survive
the execution and delivery of this Agreement, the other Credit Documents, and
such other agreements and documents, the making of the Loans hereunder, and the
execution and delivery of the Notes.
SECTION 11.11. SEVERABILITY. In case any provision in or obligation
under this Agreement or the other Credit Documents shall be invalid, illegal or
unenforceable, in whole or in part, in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
SECTION 11.12. INDEPENDENCE OF COVENANTS. All covenants hereunder
shall be given independent effect so that if a particular action or condition
is not permitted by any of such covenants, the fact that it would be permitted
by an exception to, or be otherwise within the limitation of, another covenant,
shall not avoid the occurrence of a Default or an Event of Default if such
action is taken or condition exists.
SECTION 11.13. CHANGE IN ACCOUNTING PRINCIPLES, FISCAL YEAR OR TAX
LAWS. If (i) any preparation of the financial statements referred to in Section
7.7 hereafter occasioned by the promulgation of rules, regulations,
pronouncements and opinions by or required by the Financial Accounting
Standards Board or the American Institute of Certified Public Accounts (or
successors thereto or agencies with similar functions) (other than changes
mandated by FASB 106) result in a material change in the method of calculation
of financial covenants, standards or terms found in this Agreement, (ii) there
is any change in Borrower's fiscal quarter or fiscal year as provided herein,
or (iii) there is a material change in federal tax laws which materially
affects any of the Consolidated Companies' ability to comply with the financial
covenants, standards or terms found in this Agreement, Borrower and the
Required Lenders agree to enter into negotiations in order to amend such
provisions so as to equitably reflect such changes with the desired result that
the criteria for evaluating any of the Consolidated Companies, financial
condition shall be the same after such changes as if such changes had not been
made. Unless and until such provisions have been so amended, the provisions of
this Agreement shall govern.
SECTION 11.14. HEADINGS DESCRIPTIVE; ENTIRE AGREEMENT. The headings of
the several sections and subsections of this Agreement are inserted for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Agreement. This Agreement, the other Credit Documents,
and the agreements and documents required to be delivered pursuant to the terms
of this Agreement constitute the entire agreement among the parties hereto and
thereto regarding the subject matters hereof and thereof and supersede all
prior agreements, representations and understandings related to such subject
matters.
59
<PAGE> 66
SECTION 11.15. TIME IS OF THE ESSENCE. Time is of the essence in
interpreting and performing this Agreement and all other Credit Documents.
SECTION 11.16. USURY. It is the intent of the parties hereto not to
violate any federal or state law, rule or regulation pertaining either to usury
or to the contracting for or charging or collecting of interest, and Borrower
and Lenders agree that, should any provision of this Agreement or of the Notes,
or any act performed hereunder or thereunder, violate any such law, rule or
regulation, then the excess of interest contracted for or charged or collected
over the maximum lawful rate of interest shall be applied to the outstanding
principal indebtedness due to Lenders by Borrower under this Agreement.
SECTION 11.17. CONSTRUCTION. Should any provision of this Agreement
require judicial interpretation, the parties hereto agree that the court
interpreting or construing the same shall not apply a presumption that the
terms hereof shall be more strictly construed against one party by reason of
the rule of construction that a document is to be more strictly construed
against the party who itself or through its agents prepared the same, it being
agreed that Borrower, Administrative Agent, Lenders and their respective agents
have participated in the preparation hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered in Atlanta, Georgia, by their duly authorized
officers as of the day and year first above written.
[BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK]
60
<PAGE> 67
[SIGNATURE PAGE TO
REVOLVING CREDIT AGREEMENT
BETWEEN SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
AND DISCOUNT AUTO PARTS, INC.]
BORROWER:
Signed, sealed and delivered
in the presence of:
DISCOUNT AUTO PARTS, INC.
- --------------------------------- By:
-----------------------------------
Print Name: C. Michael Moore,
---------------------- Chief Financial Officer/Secretary
- ---------------------------------
Print Name:
----------------------
ADDRESS FOR NOTICES:
Post Office Box 8080
Lakeland, Florida 33802
Telecopy No. (941) 284-2063
Telephone No. (941) 284-2140
<PAGE> 68
[SIGNATURE PAGE TO
REVOLVING CREDIT AGREEMENT
BETWEEN SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
AND DISCOUNT AUTO PARTS, INC.]
SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION
individually and as Administrative Agent
Signed, sealed and delivered
in the presence of:
By:
- -------------------------------- ------------------------------------
Print Name: William C. Barr, III, Vice President
---------------------
- --------------------------------
Print Name:
---------------------
ADDRESS FOR NOTICES:
200 S. Orange Avenue
6th Floor - SOAB
Orlando, Florida 32801
Telecopy No. (407) 237-4076
Telephone No. (407) 237-4636
PAYMENT OFFICE:
200 S. Orange Avenue
6th Floor - SOAB
Orlando, Florida 32801
Telecopy No. (407) 237-4076
Telephone No. (407) 237-4636
Revolving Loan Commitment: $75,000,000
Pro Rata Share of Total Commitment: 28.30%
(rounded to the nearest .1%)
<PAGE> 69
[SIGNATURE PAGE TO
REVOLVING CREDIT AGREEMENT
BETWEEN SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
AND DISCOUNT AUTO PARTS, INC.]
BANK OF AMERICA, N.A.,
Signed, sealed and delivered individually and as Syndication Agent
in the presence of:
By:
- ------------------------------------ -----------------------------------
Print Name: Timothy H. Spanos, Managing Director
-------------------------
- ------------------------------------
Print Name:
-------------------------
ADDRESS FOR NOTICES:
NC1007-16-11
200 North Tryon Street, 16th Floor
Charlotte, NC 28255
Attn: Timothy H. Spanos,
Managing Director
Telecopy No. 704-388-8268
Telephone No. 704-388-4507
PAYMENT OFFICE:
NC1007-16-11
200 North Tryon Street, 16th Floor
Charlotte, NC 28255
Attn: Timothy H. Spanos,
Managing Director
Telecopy No. 704-388-8268
Telephone No. 704-388-4507
Revolving Loan Commitment: $35,000,000
Pro Rata Share of Total Commitment: 13.21%
(rounded to the nearest .1%)
<PAGE> 70
[SIGNATURE PAGE TO
REVOLVING CREDIT AGREEMENT
BETWEEN SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
AND DISCOUNT AUTO PARTS, INC.]
THE FIRST NATIONAL BANK OF CHICAGO,
Signed, sealed and delivered individually and as Documentation Agent
in the presence of:
By:
- ------------------------------------- -----------------------------------
Print Name: Vincent Henchek, Vice President
--------------------------
- -------------------------------------
Print Name:
--------------------------
ADDRESS FOR NOTICES:
Mail Suite 0086
One First National Plaza
Chicago, IL 60670
Attn: Diane Stark
Telecopy No. 312-336-4380
Telephone No. 312-732-8251
PAYMENT OFFICE:
Mail Suite 0086
One First National Plaza
Chicago, IL 60670
Attn: Diane Stark
Telecopy No. 312-336-4380
Telephone No. 312-732-8251
Revolving Loan Commitment: $35,000,000
Pro Rata Share of Total Commitment: 13.21%
(rounded to the nearest .1%)
<PAGE> 71
[SIGNATURE PAGE TO
REVOLVING CREDIT AGREEMENT
BETWEEN SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
AND DISCOUNT AUTO PARTS, INC.]
SOUTHTRUST BANK,
NATIONAL ASSOCIATION
Signed, sealed and delivered
in the presence of:
By:
- ----------------------------------- -----------------------------------
Print Name: Name:
------------------------ ----------------------------------
Title:
- ----------------------------------- ---------------------------------
Print Name:
------------------------
ADDRESS FOR NOTICES AND PAYMENT OFFICE:
420 North 20th Street
Attn: Florida Corporate Banking (Orlando)
Birmingham, AL 35203
COPIES TO:
150 Second Avenue North
Suite 470
St. Petersburg, FL 33701
135 West Central Blvd., Suite 1225
Orlando, FL 32801
Attn: Michael J. Miller, Vice President
WIRE INSTRUCTIONS:
SouthTrust Bank, National Association
ABA #062-0000-80
Account # 131009
Ref: Discount Auto Parts
Attn: Joanne Gundling 727-825-2733
Revolving Loan Commitment: $30,000,000
Pro Rata Share of Total Commitment: 11.32%
(rounded to the nearest .1%)
<PAGE> 72
[SIGNATURE PAGE TO
REVOLVING CREDIT AGREEMENT
BETWEEN SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
AND DISCOUNT AUTO PARTS, INC.]
AMSOUTH BANK
Signed, sealed and delivered
in the presence of:
By:
- ------------------------------------ -----------------------------------
Print Name: Anthony Stiffler, Vice President
-------------------------
- ------------------------------------
Print Name:
-------------------------
ADDRESS FOR NOTICES:
Post Office Box 588001
Orlando, FL 32858
Attn: Anthony Stiffler,
Vice President
Telecopy No. 407-835-3045
Telephone No. 407-246-8946 x 248
PAYMENT OFFICE:
111 North Orange Ave, 6th Floor
Orlando, FL 32819
Attn: Anthony Stiffler,
Vice President
Telecopy No. 407-835-3045
Telephone No. 407-246-8946 x 248
Revolving Loan Commitment: $25,000,000
Pro Rata Share of Total Commitment: 9.43%
(rounded to the nearest .1%)
<PAGE> 73
[SIGNATURE PAGE TO
REVOLVING CREDIT AGREEMENT
BETWEEN SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
AND DISCOUNT AUTO PARTS, INC.]
FIRST UNION NATIONAL BANK
Signed, sealed and delivered
in the presence of:
By:
- ------------------------------------ -----------------------------------
Print Name: Mark S. Supple, Vice President
-------------------------
- ------------------------------------
Print Name:
-------------------------
ADDRESS FOR NOTICES:
77 East Camino Real, 2nd Floor 1345 Chestnut Street, MC PA4843
Boca Raton, FL 33432 Philadelphia, PA 19107
Attn: Linda Cliborne, Richard Brown
Vice President Director
Telecopy No. 561-338-6005 215-786-2877
Telephone No. 561-338-3903 215-973-1259
PAYMENT OFFICE:
77 East Camino Real, 2nd Floor
Boca Raton, FL 33432
Attn: Linda Cliborne,
Vice President
Telecopy No. 561-338-6005
Telephone No. 561-338-3903
Revolving Loan Commitment: $25,000,000
Pro Rata Share of Total Commitment: 9.43%
(rounded to the nearest .1%)
<PAGE> 74
[SIGNATURE PAGE TO
REVOLVING CREDIT AGREEMENT
BETWEEN SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
AND DISCOUNT AUTO PARTS, INC.]
BANQUE NATIONALE DE PARIS
Signed, sealed and delivered
in the presence of:
By:
- -------------------------------- -----------------------------------
Print Name: John Stacy, Vice President
---------------------
- --------------------------------
Print Name:
---------------------
ADDRESS FOR NOTICES:
333 Clay Street, Suite 3400
Houston, TX 77002
Attn: John Stacy,
Vice President
Telecopy No. 713-659-1414
Telephone No. 713-951-1222
PAYMENT OFFICE:
333 Clay Street, Suite 3400
Houston, TX 77002
Attn: John Stacy,
Vice President
Telecopy No. 713-659-1414
Telephone No. 713-951-1222
Revolving Loan Commitment: $15,000,000
Pro Rata Share of Total Commitment: 5.66%
(rounded to the nearest .1%)
<PAGE> 75
[SIGNATURE PAGE TO
REVOLVING CREDIT AGREEMENT
BETWEEN SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
AND DISCOUNT AUTO PARTS, INC.]
REGIONS BANK
Signed, sealed and delivered
in the presence of:
<TABLE>
<CAPTION>
<S> <C>
By:
- ----------------------------- -----------------------------------
Print Name: William V. Stanton, Executive Vice President
------------------
- -----------------------------
Print Name:
------------------
</TABLE>
ADDRESS FOR NOTICES:
3601 West Waters Avenue
Tampa, FL 33614
Attn: Anthony D. Nigro,
Vice President
Telecopy No. 813-935-4185
Telephone No. 813-933-7851
PAYMENT OFFICE:
3601 West Waters Avenue
Tampa, FL 33614
Attn: Anthony D. Nigro,
Vice President
Telecopy No. 813-935-4185
Telephone No. 813-933-7851
Revolving Loan Commitment: $15,000,000
Pro Rata Share of Total Commitment: 5.66%
(rounded to the nearest .1%)
<PAGE> 76
[SIGNATURE PAGE TO
REVOLVING CREDIT AGREEMENT
BETWEEN SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
AND DISCOUNT AUTO PARTS, INC.]
HIBERNIA NATIONAL BANK
Signed, sealed and delivered
in the presence of
<TABLE>
<CAPTION>
<S> <C>
By:
- -------------------------------- -----------------------------------
Print Name: Angela Bentley, Assistant Vice President
---------------------
- --------------------------------
Print Name:
---------------------
</TABLE>
ADDRESS FOR NOTICES:
313 Carondelet Street
New Orleans, LA 70130
Attn: Angela Bentley,
Assistant Vice President
Telecopy No. 504-533-5344
Telephone No. 504-533-2319
PAYMENT OFFICE:
313 Carondelet Street
New Orleans, LA 70130
Attn: Angela Bentley,
Assistant Vice President
Telecopy No. 504-533-5344
Telephone No. 504-533-2319
Revolving Loan Commitment: $10,000,000
Pro Rata Share of Total Commitment: 3.77%
(rounded to the nearest .1%)
<PAGE> 1
EXHIBIT 10.11
1999 AMENDMENT
TO THE
DISCOUNT AUTO PARTS, INC.
AMENDED AND RESTATED 1995 STOCK OPTION PLAN
This 1999 Amendment to the Discount Auto Parts, Inc. Amended and
Restated 1995 Stock Option Plan, which increases the number of shares covered
by the Plan by 800,000 shares, is hereby adopted, effective the 6th day of
July, 1999, as follows:
1. Section 1.5(a) of the Plan is hereby amended in its entirety to
read as follows:
a. The stock subject to the Options under the Plan
shall be authorized and unissued shares of Common Stock. The
aggregate number of shares that may be issued upon the
exercise of Options granted under the Plan shall not exceed
1,700,000 shares of Common Stock, which limitation shall be
subject to adjustment as provided in Section 4.1.
<PAGE> 1
<TABLE>
<S> <C>
PHOTO (EXTERIOR OF STORE) ANNUAL REPORT
PHOTO (MARK MARTIN)
DISCOUNT AUTO PARTS LOGO
PHOTO (SINGLE TEAM MEMBER STOCKING SHELF)
Fiscal YEAR 1999
PHOTO (TEAM MEMBER DELIVERING PART TO
COMMERCIAL ACCOUNT)
</TABLE>
<PAGE> 2
TABLE OF CONTENTS
PHOTOS ON FRONT COVER, FROM TOP TO BOTTOM:
Mini-Depot Store #685 in Meridian, Mississippi
Corporate spokesperson, NASCAR Winston Cup driver, Mark Martin
Discount Auto Parts Team Member's Insure High In-stock Positions
Timely Deliveries Are One of the Cornerstones of the Pro2Call Commercial Program
Discount Auto Parts, Inc. is one of the
Southeast's leading specialty retailers and
suppliers of automotive replacement parts,
maintenance items and accessories for both
Do-It-Yourself ("DIY") consumers and professional
mechanics and service technicians. As of August
9, 1999 Discount Auto Parts operated 573 stores
located throughout Florida, Georgia, Mississippi,
Alabama, Louisiana and South Carolina.
<TABLE>
<S> <C>
LETTER TO SHAREHOLDERS AND TEAM 2
SELECTED FINANCIAL DATA 7
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS 8
CONSOLIDATED STATEMENTS OF INCOME 16
CONSOLIDATED BALANCE SHEETS 17
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY 18
CONSOLIDATED STATEMENTS OF CASH FLOWS 19
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 20
REPORT OF MANAGEMENT 30
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS 31
CORPORATE INFORMATION 32
</TABLE>
<PAGE> 3
NET SALES INCOME FROM OPERATIONS
(IN THOUSANDS) (IN THOUSANDS)
(NET SALES GRAPH) (INCOME FROM OPERATIONS GRAPH)
(NUMBER OF STORES GRAPH) (TEAM MEMBERS GRAPH)
NUMBER OF STORES TEAM MEMBERS
DISCOUNT AUTO PARTS LOGO 1
<PAGE> 4
LETTER TO SHAREHOLDERS AND TEAM
TO OUR SHAREHOLDERS AND TEAM:
Parts availability. Convenience. Competitive
pricing. That's the name of the game in the
automotive replacement parts business. It's what
today's demanding do-it-yourself (DIY) and
commercial installer customers want from their
automotive parts and accessories provider. Auto
parts suppliers that deliver these three core
elements with superior service consistently lead
the industry.
That's why Discount Auto Parts experienced
another record year of growth and profitability
for fiscal year 1999. Sales for fiscal 1999
totaled a record $511 million, a 14.3% increase
over previous years sales. Our operating income
for fiscal 1999 totaled a record $55.9 million,
representing a 10.9% operating margin. Our
operating margins continue to be among the
highest in our industry.
ACHIEVING GROWTH MILESTONES
We reached
an
impressive
milestone in
November
1998, when
we opened
our 500th
store in
Titusville,
Florida. By
the end of
fiscal 1999,
our store (PHOTO)
count had DISCOUNT AUTO PARTS
increased to 500 STORES & GROWING
558 stores,
representing
a 23.5%
increase
from 452
stores at
the end of
fiscal 1998.
We continue
to expand in
our existing
markets and open stores in exciting new markets.
We entered our sixth state, Louisiana, in July
1998. During fiscal year 2000, additional stores
will open in Louisiana, including our first New
Orleans stores. We anticipate opening 80 to 90
new stores during fiscal year 2000.
In September 1998, we acquired the Rose Auto
Parts chain. The purchase included 39 stores
primarily in south Florida, further strengthening
our already dominant position in south Florida.
We refurbished and reopened 26 stores under the
Discount Auto Parts banner, and we permanently
closed 13 of the acquired locations.
2 DISCOUNT AUTO PARTS LOGO
<PAGE> 5
We have developed a formula for successful expansion into new and existing
markets, whether we grow through acquisition or new store construction. Simply
put, we open stores that are efficiently run by Team Members who are empowered
to give our customers excellent service with a broad assortment of available,
quality parts at low prices. Our sheer number of stores ensures convenience to
our customers. This formula has enabled us to expand rapidly, while positioning
us in new markets to be a dominant auto parts supplier.
ENHANCING PARTS AVAILABILITY
In our marketing efforts, we promise customers that when they need parts we
will be the place to start. We deliver on this promise by seeking to have the
right parts available at the right place, at the right time and at the right
price. We can only do so with superior parts availability, which we believe we
achieve through effective utilization of our Parts Express program. We
successfully tested the concept during fiscal year 1997 with one location. Based
on those results, we added 3 Parts Express locations during fiscal 1998, and 4
additional locations in fiscal 1999. We expect to add 2 to 4 additional Parts
Express locations in fiscal 2000.
Our Parts Express program allows us to offer a significantly expanded
inventory of parts to our customers by rapidly delivering additional inventory
to our stores as needed. The Parts Express facilities (which operate like mini-
satellite warehouses) support our standard mini-depot stores, which typically
carries approximately 15,000 SKUs. It also supports our depot, hub and
commercial stores, which stock between 17,500 and 22,000 SKUs. Parts Express
shuttles needed parts to our stores to meet customer demand. This means that
customers can and do get the right part where and when they need it and at a
competitive price.
In addition to Parts Express, we have
pushed our inventory closer to our
customers by rolling out our new perpetual
inventory system in all stores. This new
inventory management system helps each
store stock items that reflect that store's
individual market conditions. Stores are
better able to carry the parts that suit
their customers' needs, while at the same
time reducing or eliminating slow or
non-moving items from their shelves. In
addition, the new automated inventory
management system helps free up the store INTEGRATED PARTS LOOK-UP
manager's time, allowing him or her to SYSTEMS ENHANCE THE
better coach and develop their Team. STORES ABILITY TO SOURCE
INVENTORY
To further enhance our inventory
management, we have launched an integrated
parts look-up system in the stores. The
system capitalizes on our greater inventory
availability and accelerates our Team
Members' response to customers' needs. The
system permits Team Members to more quickly
locate parts in surrounding stores, if
needed. It basically augments each store's
on-hand inventory by calling upon inventory
in Parts Express facilities or other
stores.
DISCOUNT AUTO PARTS LOGO 3
<PAGE> 6
All of our inventory needs currently are supported by the expansion of our
Lakeland, Florida, distribution center to 600,000 square feet in fiscal 1999.
The newly expanded center can support approximately 700 stores and will
accommodate 50,000 to 60,000 SKUs. A second strategically located distribution
center is anticipated in the fall of calendar year 2000 to support our
continuing store expansion efforts.
DEVELOPING COMMERCIAL BUSINESS
Parts availability helps us capitalize not only on the DIY market but also on
commercial business. According to our research, one critical need of
professional mechanics and service technicians is parts availability. Discount
Auto Parts is uniquely positioned to satisfy this need in most markets in which
we operate. That's because we tend to have expanded inventory availability and
more stores in more locations than our competitors.
During fiscal year 1999, we continued our commitment to building our
commercial business, which we launched in the second half of fiscal 1998 under
the Pro2Call name. With this initiative, we are leveraging our bricks and mortar
infrastructure of stores and our Team Members' hard work to capitalize on what
we believe to be a tremendous opportunity in commercial sales. The market is
estimated to be approximately $50 billion nationwide and $3 billion in Florida
alone.
We believe our system is unique.
Commercial customers call a central
toll-free number, which rings to our Call
Center. Qualified parts people staff the
Call Center, most of whom are ASE
certified. They source the desired part
from the store closest to the customer and
arrange for its delivery to the mechanic
generally within 30 minutes.
As we enter new markets, we will continue STATE-OF-THE-ART TECHNOLOGY
to work to maximize the return on our ENABLES THE CALL CENTER TO
capital investment and increase shareholder PROVIDE SUPERIOR CUSTOMER
value, by serving both DIY and commercial SERVICE
accounts with our strategy of store
saturation and with support from our Parts
Express program. We currently serve
commercial accounts through approximately
150 stores in Florida. Our goal is to
service commercial delivery from
approximately two-thirds of our total
stores by fiscal year 2001.
Because the commercial market is highly fragmented, we believe it offers
tremendous potential. We also believe we will be successful in our commercial
endeavor because of the efficiency of our product distribution, the market
saturation of our stores and our commitment to parts availability. Considering
that our Parts Express locations stock approximately 95 percent of the parts
most widely needed by commercial accounts, we believe this is a realistic goal.
We particularly see opportunity to become the dominant parts supplier to
automotive mechanics in Florida, where we have the highest concentration of
stores.
4 DISCOUNT AUTO PARTS LOGO
<PAGE> 7
ATTRACTING CUSTOMERS FOR A LIFETIME
Just as we are making in-roads in our commercial development efforts, we are
also making strides in our marketing efforts to the DIYer. Our most recent
initiative on this front is the formation of a Discount Auto Parts Racing Team
developed to tap into the passionate auto racing fans who comprise a significant
portion of our core DIY customer.
Discount Auto Parts has long been a sponsor and supporter of various auto
racing drivers, teams and events; but in fiscal 1999, we began marketing all of
our racing involvement under the Discount Auto Parts Racing Team banner. The
kingpin of this umbrella initiative is a multi-year affiliation with popular
NASCAR driver Mark Martin. As one of the most respected, competitive and
successful drivers on the NASCAR circuit, Martin has helped elevate the Discount
Auto Parts brand in the eyes of our core customers, on both the DIY and
commercial sides of our business.
Further building the Racing Team aura is our continued title sponsorship of
the Discount Auto Parts 200 held each year in February at the Daytona
International Speedway and our sponsorship of the Hooters ProCup Series, a
southeast regional auto racing circuit. We also support a variety of additional
auto racing events, including Monster Truck Shows that are wildly popular with
our customers.
Research shows that auto-racing fans are some of the most loyal supporters of
sponsors of any sport today. So we are dedicated to getting closer to our core
customers by increasing our Racing Team's market presence and by expanding its
activities and affiliations in fiscal 2000.
BUILDING THE TEAM
None of our growth, systems or inventory
expansion, commercial program development
or marketing successes would be possible
without the continued hard work and
dedication of our more than 5,500 Discount
Auto Parts Team Members. We are proud of
their accomplishments and their ability to
serve our ever-expanding network of DIY and
commercial customers.
Throughout our 28-year success story, we
have remained true to the core operating
philosophy of our founders Herman Fontaine
and Denis Fontaine: "There is only one way
to build a business. First you build the THOUSANDS OF HIGH QUALITY
Team, and then the Team builds the PARTS AND ACCESSORIES ARE
business. There is no other way." AVAILABLE IN EVERY STORE
We accomplish this through ongoing
training and development, giving our
diverse group of Team Members the highest
level of training and support of any
automotive aftermarket supplier today. New
leadership positions are created on a
regular basis by both new store expansion
and commercial delivery opportunities. The
result is a seasoned and well-trained Team.
DISCOUNT AUTO PARTS LOGO 5
<PAGE> 8
Team, Customers, Ideas, or TCI as our Team Members know it. It's the
three-part philosophy upon which our Team Members build their careers with
Discount Auto Parts. It's a belief system that inspires our Team to attack new
markets and new business lines with the goal of serving customers for a
lifetime. It empowers our Team Members to continually renew themselves with new
ideas for enhanced customer service and new ways of doing business more
productively.
PREPARING THE WAY
As you can see, many milestones marked fiscal year 1999. We once again
achieved impressive growth, made tremendous strides in delivering parts
availability to both our DIY and commercial customers, further developed our
commercial business, stepped up our auto racing marketing and continued our
emphasis on the Team.
We believe that all of these efforts have prepared the way for an even more
successful and profitable fiscal year 2000. We have laid the foundation for a
bright future for Discount Auto Parts, and we very much look forward to
realizing the tremendous potential we envision as one of the southeast's leading
specialty retailers and suppliers of automotive parts and accessories.
<TABLE>
<S> <C>
/s/ Peter J. Fontaine /s/ William C. Perkins
- ----------------------- -----------------------
Peter J. Fontaine William C. Perkins
Chairman and President and
Chief Executive Officer Chief Operating Officer
</TABLE>
CHAIRMAN AND CHIEF EXECUTIVE
OFFICER, PETER J. FONTAINE;
PRESIDENT AND CHIEF OPERATING
OFFICER, WILLIAM C. PERKINS
6 DISCOUNT AUTO PARTS LOGO
<PAGE> 9
SELECTED FINANCIAL DATA
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
----------------------------------------------------
JUNE 1 JUNE 2 JUNE 3 MAY 28 MAY 30
1999 1998 1997(1) 1996 1995
-------- -------- -------- -------- --------
(IN THOUSANDS, EXCEPT PER SHARE DATA AND
SELECTED OPERATING DATA)
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA
Net sales................................................... $511,483 $447,491 $405,186 $307,476 $253,700
Cost of sales, including distribution costs................. 302,843 271,404 256,646 186,917 158,710
-------- -------- -------- -------- --------
Gross profit................................................ 208,640 176,087 148,540 120,559 94,990
Selling, general and administrative expenses................ 152,777 124,125 101,336 80,090 64,081
-------- -------- -------- -------- --------
Income from operations...................................... 55,863 51,962 47,204 40,469 30,909
Other income, net........................................... 817 2,434 187 1,164 1,133
Litigation settlement....................................... -- -- (20,545) -- --
Gain on life insurance proceeds............................. -- -- -- -- 4,836
Interest expense............................................ (12,856) (10,203) (6,125) (5,078) (6,295)
-------- -------- -------- -------- --------
Income before income taxes and cumulative effect of change
in accounting principle................................... 43,824 44,193 20,721 36,555 30,583
Income taxes................................................ 16,766 17,013 7,980 14,092 10,020
-------- -------- -------- -------- --------
Income before cumulative effect of change in accounting
principle................................................. 27,058 27,180 12,741 22,463 20,563
Cumulative effect of change in accounting principle, net of
income tax benefit........................................ (8,245) -- -- -- --
-------- -------- -------- -------- --------
Net income.................................................. $ 18,813 $ 27,180 $ 12,741 $ 22,463 $ 20,563
======== ======== ======== ======== ========
Net income (loss) per basic share from:
Income before cumulative effect of change in accounting
principle............................................... $ 1.63 $ 1.64 $ 0.77 $ 1.44 $ 1.48
Cumulative effect of change in accounting principle....... (0.50) -- -- -- --
-------- -------- -------- -------- --------
Net income................................................ $ 1.13 $ 1.64 $ 0.77 $ 1.44 $ 1.48
======== ======== ======== ======== ========
Net income (loss) per diluted share from:
Income before cumulative effect of change in accounting
principle............................................... $ 1.61 $ 1.63 $ 0.77 $ 1.41 $ 1.47
Cumulative effect of change in accounting principle....... (0.49) -- -- -- --
-------- -------- -------- -------- --------
Net income................................................ $ 1.12 $ 1.63 $ 0.77 $ 1.41 $ 1.47
======== ======== ======== ======== ========
Average common shares outstanding........................... 16,650 16,604 16,581 15,647 13,907
Dilutive effect of stock options............................ 153 111 73 257 50
-------- -------- -------- -------- --------
Average common shares outstanding -- assuming dilution...... 16,803 16,715 16,654 15,904 13,957
======== ======== ======== ======== ========
SELECTED OPERATING DATA
Number of stores at year end................................ 558 452 400 314 248
Total store square footage at year end (in thousands)(2).... 2,450 2,007 1,836 1,610 1,405
Average net sales per store (in thousands)(3)(4)............ $ 1,013 $ 1,050 $ 1,023 $ 1,094 $ 1,113
Average net sales per square foot(3)(4)..................... $ 230 $ 233 $ 212 $ 204 $ 195
Percentage increase (decrease) in comparable store net
sales(4)(5)............................................... .6% 7.7% (.6%) 4.9% 5.8%
Team members................................................ 5,586 4,350 3,677 3,148 2,826
BALANCE SHEET DATA
Inventories................................................. $209,028 $172,027 $151,644 $111,408 $ 91,187
Working capital............................................. 128,939 105,662 80,573 59,801 46,420
Property and equipment, net................................. 374,577 314,519 265,589 208,094 166,169
Total assets................................................ 620,314 511,735 443,066 338,263 270,832
Long-term debt, excluding current maturities................ 224,800 160,695 114,117 50,400 94,550
Stockholders' equity........................................ 276,766 256,885 229,061 216,046 117,895
</TABLE>
- ---------------
(1) Fiscal year 1997 consisted of 53 weeks; all other years reported consisted
of 52 weeks.
(2) Store square footage includes only selling and merchandising space.
(3) Average net sales per store and average net sales per square foot are based
on the average of beginning and ending number of stores and store square
footage for the respective period. For fiscal 1997, average net sales per
store and average net sales per square foot have been adjusted to exclude
the effect of the fifty-third week.
(4) The amounts shown for fiscal 1997 exclude commercial sales of air
conditioning products, such as freon. If these commercial sales of freon
were to have been included, the average net sales per store, average net
sales per square foot and the increase in comparable store sales for fiscal
1997 would have been $1,115,000, $231 and 9.7%, respectively.
(5) Comparable store net sales data are calculated based on the change in net
sales of all stores open at the beginning of the preceding fiscal year. The
fiscal 1997 amount has been adjusted to exclude the effect of the
fifty-third week.
DISCOUNT AUTO PARTS LOGO 7
<PAGE> 10
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
The following table sets forth, for the periods indicated, the income
statement data and the percentage of the Company's net sales represented by each
line presented:
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
------------------------------------------------------
JUNE 1 JUNE 2 JUNE 3
1999 % 1998 % 1997 %
-------- ----- -------- ----- -------- -----
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
Net sales...................................... $511,483 100.0% $447,491 100.0% $405,186 100.0%
Cost of sales, including distribution costs.... 302,843 59.2 271,404 60.7 256,646 63.3
-------- ----- -------- ----- -------- -----
Gross profit................................. 208,640 40.8 176,087 39.3 148,540 36.7
Selling, general and administrative expenses... 152,777 29.9 124,125 27.7 101,336 25.0
-------- ----- -------- ----- -------- -----
Income from operations....................... 55,863 10.9 51,962 11.6 47,204 11.7
Litigation settlement.......................... -- -- -- -- (20,545) (5.1)
Other income, net.............................. 817 .2 2,434 .6 187 --
Interest expense............................... (12,856) (2.5) (10,203) (2.3) (6,125) (1.5)
-------- ----- -------- ----- -------- -----
Income before income taxes and cumulative
effect of change in accounting principle..... 43,824 8.6 44,193 9.9 20,721 5.1
Income taxes................................... 16,766 3.3 17,013 3.8 7,980 2.0
-------- ----- -------- ----- -------- -----
Income before cumulative effect of change in
accounting principle...................... 27,058 5.3 27,180 6.1 12,741 3.1
Cumulative effect of change in accounting
principle, net of income tax benefit...... (8,245) (1.6) -- -- -- --
-------- ----- -------- ----- -------- -----
Net income................................... $ 18,813 3.7% $ 27,180 6.1% $ 12,741 3.1%
======== ===== ======== ===== ======== =====
</TABLE>
FISCAL 1999 COMPARED TO FISCAL 1998
Net sales for the fifty-two week period ended June 1, 1999 increased 14.3% to
$511.5 million, from $447.5 million a year earlier. Comparable store sales
increased 1% for fiscal 1999. Comparable store sales results include sales from
the Company's commercial delivery program. The balance of the increase in total
sales was attributable to sales from new stores opened since the beginning of
fiscal 1998, as well as sales associated with the Rose Auto Parts stores which
were acquired effective September 28, 1998. As of June 1, 1999, the Company had
558 stores in operation compared to 452 at the end of fiscal 1998.
8 DISCOUNT AUTO PARTS LOGO
<PAGE> 11
Gross profit for the fifty-two week period ended June 1, 1999 was $208.6
million, or 40.8% of net sales, compared with $176.1 million, or 39.3% for
fiscal 1998. Gross profit for fiscal 1999 was reduced by $1.3 million for the
estimated current year impact of the Company's change in inventory accounting
method, as discussed below. The improvement in gross margins for fiscal 1999 was
due in part to overall lower product cost, a shift in merchandising strategies
to promote higher gross margin product offerings, and a shift in vendor
cooperative advertising allowances to direct product purchase price reductions.
Selling, general and administrative ("SG&A") expenses for fiscal 1999
increased by $28.7 million over such expenses for fiscal 1998, and increased as
a percentage of net sales from 27.7% in fiscal 1998 to 29.9% in fiscal 1999. The
increase, as a percentage of sales, was primarily due to the expenses incurred
related to the implementation and expansion of the Company's commercial delivery
program and the shift in cooperative advertising credits to direct product
purchase price reductions.
Income from operations for fiscal 1999 increased 7.5% to $55.9 million as
compared to $52.0 million for fiscal 1998. Operating margins for fiscal 1999
were 10.9% as compared to 11.6% for fiscal 1998. Operating income and the
resulting operating margin for fiscal 1999 were negatively impacted by the
implementation and expansion of the Company's commercial delivery program.
Excluding the estimated $4.8 million operating loss impact of the commercial
delivery program, the operating margin for fiscal 1999 would have been
approximately 11.9%.
Interest expense for fiscal 1999 was $12.9 million as compared to $10.2
million for fiscal 1998. The increase was primarily the result of increased
borrowings associated with new store growth and the costs associated with the
expansion of the Company's existing distribution center and corporate office
space which was completed in the first half of fiscal 1999.
Other income for fiscal 1998 included a $4.0 million fee received from the
termination of the proposed acquisition of Hi-Lo Automotive, Inc., less related
expenses.
The Company's effective tax rate for fiscal 1999 was 38.3% as compared to
38.5% in fiscal 1998.
Including the negative earnings impact of the implementation and expansion of
the commercial delivery program, income before cumulative effect of change in
accounting principle for fiscal 1999 was $27.1 million or $1.61 per diluted
share as compared to $27.2 million or $1.63 per diluted share for fiscal 1998.
During the fourth quarter of fiscal 1999, the Company implemented a change in
its method of accounting for store inventories from the first-in, first-out
retail inventory method to the weighted average cost method. The Company
believes the new method for computing inventory is preferable because it more
accurately measures the cost of the Company's merchandise and produces a better
matching of revenues and expenses. The Company made this change in connection
with new computerized store-level perpetual inventory systems installed
throughout fiscal 1999. Accordingly, it is believed that the new inventory
valuation method will better correspond with the Company's current operating
practices for store inventory management. As a result of this change in
accounting method, the Company reported a
DISCOUNT AUTO PARTS LOGO 9
<PAGE> 12
non-cash, fiscal 1999 after tax charge of $8.2 million, or $.49 per diluted
share, representing the beginning of the year impact of the change in
accounting method.
As a result of the above factors, net income for fiscal 1999 was $18.8
million, or $1.12 per diluted share as compared to $27.2 million, or $1.63 per
diluted share, for fiscal 1998.
FISCAL 1998 COMPARED TO FISCAL 1997
Net sales for the fifty-two week period ended June 2, 1998 increased 10.4%, to
$447.5 million, from $405.2 million a year earlier. Commercial sales of R-12
freon represented approximately $32.7 million or 8.1% of the total sales for
fiscal 1997. Such commercial sales were negligible for fiscal 1998. Excluding
the impact of such commercial sales and the extra week in fiscal 1997,
traditional DIY retail sales for fiscal 1998 increased 22.5% over the comparable
fiscal 1997 period. Traditional DIY comparable store sales increased 7.7% for
fiscal 1998 as compared to fiscal 1997, after excluding the effect of the extra
week. When including commercial sales of freon in comparable store sales for
fiscal 1997, comparable store sales would have reflected a decrease of 1.9% for
fiscal 1998. The remaining increase in net sales from the Company's core
operations was attributable to sales from new stores opened since the beginning
of fiscal 1997. As of June 2, 1998, the Company had 452 stores in operation
compared to 400 at the end of fiscal 1997.
Gross profit for the fifty-two week period ended June 2, 1998 was $176.1
million, or 39.3% of net sales, compared with $148.5 million, or 36.7% for
fiscal 1997. The improvement in gross margins for fiscal 1998 was due in part to
the higher level of commercial sales of R-12 freon in the fiscal 1997 comparable
period, which generally had lower gross margins due to the product's commodity
nature. Excluding the impact of commercial freon sales in fiscal 1997, the gross
margin would have been 38.0% for fiscal 1997. The remaining improvement in gross
margin for fiscal 1998 was primarily attributable to lower product costs and
modifications to the Company's merchandising strategy.
SG&A expenses for fiscal 1998 increased by $22.8 million over such expenses
for fiscal 1997, and increased as a percentage of net sales from 25.0% in fiscal
1997 to 27.7% in fiscal 1998. The increase was primarily the result of higher
levels of commercial sales of R-12 freon in fiscal 1997. Such commercial sales
generally had very limited associated SG&A expenses. Excluding the commercial
sales of R-12 freon, SG&A expenses as a percentage of sales for fiscal 1997
would have been 27.2%. After the exclusion of such sales, the increase in SG&A
expense as a percentage of sales for fiscal 1998 was primarily attributable to
expenses incurred in the development and roll-out of the Company's commercial
delivery program.
Income from operations for fiscal 1998 increased 10.1% to $52.0 million as
compared to $47.2 million for fiscal 1997. Income from operations for fiscal
1997 include earnings associated with commercial sales of freon while similar
sales generally were not made in fiscal 1998. The fiscal 1997 income from
operations also reflects an extra week of results. When excluding the impact of
such commercial sales and the effects of the extra week of
10 DISCOUNT AUTO PARTS LOGO
<PAGE> 13
operations in the fiscal 1997 period, traditional DIY operating income (which
reflects operating income exclusive of commercial freon sales and associated
cost of sales) increased 31.6% for fiscal 1998 over the fiscal 1997 results.
As further discussed in Note 11 of the Notes to Consolidated Financial
Statements, the Company reached an agreement in July 1997 to settle a lawsuit
brought by Airgas, Inc. and certain Airgas affiliates against several
defendants, including the Company and one of its employees. As a result of the
settlement, the Company recorded a pre-tax charge of $20.5 million in the fourth
quarter of fiscal 1997. The charge reflects the payments made pursuant to the
terms of the actual settlement plus associated legal and professional fees.
Other income for fiscal 1998 primarily includes a $4.0 million fee received
from the termination of the proposed acquisition of Hi-Lo Automotive, Inc., less
related expenses.
Interest expense for fiscal 1998 was $10.2 million as compared to $6.1 million
for fiscal 1997. The increase for fiscal 1998 was primarily the result of
increased borrowings associated with new store growth, the expansion of the
Company's existing distribution center, and the September 1997 funding of the
amounts due pursuant to the terms of the settlement agreement with Airgas.
The Company's effective tax rate for both fiscal 1998 and fiscal 1997 was
38.5%.
Primarily as a result of the foregoing, net income for fiscal 1998 was $27.2
million or $1.63 per diluted share as compared to $12.7 million or $.77 per
diluted share reported for fiscal 1997.
LIQUIDITY AND CAPITAL RESOURCES
Net cash provided by operating activities was $23.8 in fiscal 1999, $14.5
million in fiscal 1998, and $8.7 million in fiscal 1997. The primary reason for
the increase in fiscal 1999 over fiscal 1998 was the funding of the Airgas
litigation and related income tax impact, which occurred in fiscal 1998. The
increase in fiscal 1998 over fiscal 1997 was primarily due to an increase in
fiscal 1998 net income and the lower inventory growth in fiscal 1998.
Capital expenditures for fiscal 1999 were $81.0 million as compared to $64.6
million in fiscal 1998 and $70.2 million in fiscal 1997. Capital expenditures
have fluctuated over the periods primarily based on new store openings in the
respective periods. Capital expenditures for fiscal 1999 primarily related to
the 80 new stores opened (excluding the 26 leased Rose Auto Stores) and costs
associated with the completion of the expansion of the Company's distribution
center and additional office space.
In July 1998, the Company completed the expansion of its distribution center
to double its size. The expanded distribution center, which is comprised of
approximately 600,000 square feet, should be capable of serving approximately
700 stores. Additional office space and support facilities were also completed
during fiscal 1999. The expanded distribution center also provides service to
the Company's Parts Express warehouses, and is being utilized to support the
commercial delivery program. During fiscal 1999, the Company spent approximately
$11.5 million on the distribution center and office expansion projects.
DISCOUNT AUTO PARTS LOGO 11
<PAGE> 14
The Company is currently in the process of planning and developing a second
distribution center. Such distribution center is expected to be opened and
operational in the fall of calendar year 2000. Capital expenditures associated
with the second distribution center are still being finalized, but are expected
to be approximately $20 million to $25 million.
The Company also continued the roll-out of a commercial delivery service,
which began in the third quarter of fiscal 1998. The Company's commercial
delivery service consists of a program whereby commercial customers (such as
auto service centers, commercial mechanics, garages and the like) establish
commercial accounts with the Company and order automotive parts from the Company
and such parts are delivered from, or can be picked up from, nearby Discount
Auto Parts stores. The commercial delivery program is expected to require the
Company to extend trade credit to certain of the commercial account customers as
part of the ordinary course of business. The extension of such trade credit will
increase the capital requirements associated with the roll-out of the program
and will expose the Company to credit risk from uncollectible accounts. The
Company has established systems to manage and control such credit risk. The
amount of capital that is needed to cover extension of trade credit will be
dependent in large part upon the success of the commercial delivery service
roll-out and how quickly the commercial business develops. Because this is a
relatively new aspect of the auto parts supply business for the Company, there
are risks associated with the Company's entry into this new aspect of the
business and there can be no assurance as to if or when the commercial delivery
service business will be profitable or as to whether the Company will experience
any financial or other challenges in managing and controlling the credit risk.
As further discussed in Note 5 of the Notes to Consolidated Financial
Statements, effective September 28, 1998, the Company acquired substantially all
of the assets of Rose Auto Parts stores for approximately $8.2 million. Funding
for the acquisition was provided from available borrowings under the Company's
revolving line of credit.
The Company anticipates that total capital expenditures for fiscal 2000,
including the costs associated with the addition of approximately 80 to 90 new
stores, initial construction of the second distribution center and the working
capital costs associated with the continued expansion of the commercial delivery
service, will be in the range of $70 million to $75 million.
The Company has historically been able to finance most of its new store growth
through unsecured lines of credit and medium and longer term mortgage financing
provided by banks and other institutional lenders, and through cash flow from
operations. As further discussed in Note 4 of the Notes to Consolidated
Financial Statements, effective July 29, 1999, the Company entered into a new
five year $265 million unsecured revolving credit facility with a syndicate of
banks. The new agreement replaces the previous $175 million revolving credit
facility. As of July 29, 1999, the Company had approximately $72.4 million of
additional borrowing availability under its new $265 million revolving credit
facility.
Consistent with its historical practice, the Company expects to finance both
its short and long-term liquidity needs for new store growth, as to land and
buildings, primarily through these lines of credit and mortgage financing
(renewals and replacements thereof), and as to equipment and fixtures, primarily
through cash flow from
12 DISCOUNT AUTO PARTS LOGO
<PAGE> 15
operations. The Company's new store development program also requires
significant working capital, principally for inventories. The Company has
historically used trade credit to partially finance new store inventories and
has been successful in negotiating extended payment terms and incentives from
many suppliers through volume purchases. The Company believes that it will be
able to continue financing some of its inventory growth through the extension of
favorable payment terms and incentives from its vendors, but there can be no
assurance that the Company will be successful in doing so. The additional
funding for inventory expansion has been provided in large part from cash flow
from operations.
As of June 1, 1999, 77 or 13.8% of the Company's stores were leased. Although
the Company generally anticipates a similar own/lease percentage relationship
for new stores in the future, the Company may explore opportunities, which could
lead to increases in this percentage.
The Company believes that the expected cash flows from operations, available
bank borrowings and trade credit will be sufficient to fund the capital and
liquidity needs of the Company through fiscal 2001. The Company expects that by
the end of fiscal 2001 additional funding sources will be necessary to
supplement the new revolving credit facility.
INFLATION AND SEASONALITY
The Company does not believe its operations have been materially affected by
inflation. The Company has been successful, in many cases, in reducing the
effects of merchandise cost increases principally by taking advantage of vendor
incentive programs, economies of scale resulting from increased volumes of
purchases, and selective forward buying.
Although sales have historically been somewhat higher in the Company's fourth
quarter (March through May), the Company does not consider its business to be
seasonal.
YEAR 2000
The Year 2000 issue results from computer programs and electronic circuitry
that do not differentiate between the year 1900 and the year 2000 because they
are written using two rather than four digit dates to define the applicable
year. If not corrected, many computer applications and date-sensitive devices
could fail or produce erroneous results when processing dates after December 31,
1999. The Year 2000 issue affects virtually all companies and organizations,
including the Company.
The Company employs a number of information technology systems in its
operations, including, without limitation, computer networking systems,
financial systems and other similar systems, some of which are internally
developed and others are licensed from outside vendors. A number of these
systems have been recently implemented by the Company and thus most of these
recently implemented systems are believed to be Year 2000 compliant.
DISCOUNT AUTO PARTS LOGO 13
<PAGE> 16
Management developed and has been pursuing a plan to modify the Company's other
information technology systems. As of July 1999, this plan was substantially
complete.
Throughout its operations, the Company also employs electronic equipment such
as building security, product handling and other devices containing embedded
electronic circuits. The Company has identified and prioritized the embedded
technology devices which may be deemed to be mission critical or that tend to
have a more significant impact on normal operations. A team of internal staff
and management that has been identified to manage the Company's Year 2000
initiative has developed and is in the process of completing the implementation
of a separate plan to upgrade these higher priority embedded technology devices.
Management currently expects these activities to be substantially complete by
September 1999.
The Company anticipates spending less than $250,000 to address the Year 2000
issue. This includes the estimated costs of all equipment upgrades, software
modifications, the salaries of employees, and the fees of consultants addressing
the issue. The majority of these funds were spent January through June 1999. The
funds to pay for addressing the Year 2000 issue have come from available funds.
The Company believes that the cost of addressing the Year 2000 issue will not
have a material effect on the Company's consolidated financial position or
results of operations.
The Company is also in the process of evaluating and managing the potential
risk posed by the impact of the Year 2000 issue on its major suppliers and
vendors. Formal and informal communications with these major suppliers and
vendors have been initiated, with an expectation and plan to substantially
complete an assessment in this regard by September 1999. However, it may be
difficult to determine with any certainty whether such suppliers and vendors
will be able to successfully address the Year 2000 issue with respect to their
own systems and thus be able to process purchase orders immediately following
January 1, 2000.
Should the Company or any third party with whom the Company has a significant
business relationship have a systems failure due to the century change, the
Company believes that the most significant impact would likely be the inability,
with respect to a store or group of stores, to conduct operations due to a power
failure, to timely deliver inventory, to receive certain products from vendors,
or to electronically process sales to the customer at the store level. The
Company does not expect any such event to have a significant effect on its
overall operations. However, the Company's initiatives with respect to the Year
2000 issue are subject to a variety of risks and uncertainties, some of which
are beyond the Company's control. The failure of the Company or any of its major
suppliers or vendors to achieve Year 2000 readiness could have adverse impacts
on the Company's business operations not currently anticipated, which in turn
could have an adverse effect on the Company's future financial results.
Accordingly, the Company is in the process of developing contingency plans for
such events and estimates such plans will be finalized by approximately
September 1999.
14 DISCOUNT AUTO PARTS LOGO
<PAGE> 17
FORWARD LOOKING STATEMENTS
The Management's Discussion and Analysis of Financial Condition and Results of
Operations and other sections of this Annual Report contain forward looking
statements that are based on the current expectations, estimates and projections
about the industry in which the Company operates, management's beliefs and the
assumptions made by management. These statements include the words
"anticipates", "expects", "expected", "should", and "believes", variations of
such words, and similar expressions which are intended to identify such forward
looking statements. These forward looking statements are subject to potential
risks and uncertainties that could cause actual results to differ materially
from historical results or those currently anticipated.
These potential risks and uncertainties include, but are not limited to,
increased competition, extent of the market demand for auto parts, availability
of inventory supply, propriety of inventory mix, adequacy and perception of
customer service, product quality and defect experience, availability of and
ability to take advantage of vendor pricing programs and incentives, sourcing
availability, rate of new store openings, cannibalization of store sites, mix
and types of merchandise sold, governmental regulation of products, new store
development and the like, performance of information systems, effectiveness of
deliveries from the distribution center, ability to hire, train and retain
qualified team members, availability of quality store sites, ability to
successfully implement the commercial delivery service, credit risk associated
with the commercial delivery service, environmental risks, availability of
expanded and extended credit facilities, Year 2000 compliance issues, expenses
associated with investigations concerning freon matters, and potential for
liability with respect to these matters and other risks.
DISCOUNT AUTO PARTS LOGO 15
<PAGE> 18
CONSOLIDATED STATEMENTS OF INCOME
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
---------------------------------
JUNE 1 JUNE 2 JUNE 3
1999 1998 1997
--------- --------- ---------
(IN THOUSANDS, EXCEPT PER SHARE
AMOUNTS)
<S> <C> <C> <C>
Net sales................................................... $511,483 $447,491 $405,186
Cost of sales, including distribution costs................. 302,843 271,404 256,646
-------- -------- --------
Gross profit.............................................. 208,640 176,087 148,540
Selling, general and administrative expenses................ 152,777 124,125 101,336
-------- -------- --------
Income from operations.................................... 55,863 51,962 47,204
Litigation settlement....................................... -- -- (20,545)
Other income, net........................................... 817 2,434 187
Interest expense............................................ (12,856) (10,203) (6,125)
-------- -------- --------
Income before income taxes and cumulative effect of change
in accounting principle................................... 43,824 44,193 20,721
Income taxes................................................ 16,766 17,013 7,980
-------- -------- --------
Income before cumulative effect of change in accounting
principle.............................................. 27,058 27,180 12,741
Cumulative effect of change in accounting principle, net of
income tax benefit........................................ (8,245) -- --
-------- -------- --------
Net income................................................ $ 18,813 $ 27,180 $ 12,741
======== ======== ========
Net income (loss) per basic share from:
Income before cumulative effect of change in accounting
principle............................................. $ 1.63 $ 1.64 $ 0.77
Cumulative effect of change in accounting principle.... (0.50) -- --
-------- -------- --------
Net income................................................ $ 1.13 $ 1.64 $ 0.77
======== ======== ========
Net income (loss) per diluted share from:
Income before cumulative effect of change in accounting
principle............................................. $ 1.61 $ 1.63 $ 0.77
Cumulative effect of change in accounting principle.... (0.49) -- --
-------- -------- --------
Net income................................................ $ 1.12 $ 1.63 $ 0.77
======== ======== ========
Average common shares outstanding........................... 16,650 16,604 16,581
Dilutive effect of stock options............................ 153 111 73
-------- -------- --------
Average common shares outstanding -- assuming dilution...... 16,803 16,715 16,654
======== ======== ========
</TABLE>
See accompanying notes.
16 DISCOUNT AUTO PARTS LOGO
<PAGE> 19
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
JUNE 1 JUNE 2
1999 1998
-------- --------
(IN THOUSANDS)
<S> <C> <C>
ASSETS
Current assets:
Cash................................................... $ 8,795 $ 5,064
Inventories............................................ 209,028 172,027
Prepaid expenses and other current assets.............. 20,363 17,657
Deferred income taxes.................................. 2,410 --
-------- --------
Total current assets.............................. 240,596 194,748
Property and equipment...................................... 457,994 379,991
Less allowances for depreciation and amortization...... (83,417) (65,472)
-------- --------
374,577 314,519
Other assets................................................ 5,141 2,468
-------- --------
Total assets................................................ $620,314 $511,735
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Trade accounts payable................................. $ 87,867 $ 67,083
Accrued salaries, wages and benefits................... 8,008 7,317
Deferred income taxes.................................. -- 1,101
Other current liabilities.............................. 13,382 11,185
Current maturities of long-term debt................... 2,400 2,400
-------- --------
Total current liabilities......................... 111,657 89,086
Deferred income taxes....................................... 7,091 5,069
Long-term debt.............................................. 224,800 160,695
Stockholders' equity:
Preferred stock, $.01 par value, 5,000 shares
authorized, none issued or outstanding................ -- --
Common Stock, $.01 par value, 50,000 shares authorized,
16,690 and 16,630 shares issued and outstanding at
June 1, 1999 and June 2, 1998, respectively........... 167 166
Additional paid-in capital............................. 142,230 141,163
Retained earnings...................................... 134,369 115,556
-------- --------
Total stockholders' equity........................ 276,766 256,885
-------- --------
Total liabilities and stockholders' equity.................. $620,314 $511,735
======== ========
</TABLE>
See accompanying notes.
DISCOUNT AUTO PARTS LOGO 17
<PAGE> 20
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
<TABLE>
<CAPTION>
COMMON STOCK ADDITIONAL
PREFERRED --------------- PAID-IN RETAINED
STOCK SHARES AMOUNT CAPITAL EARNINGS TOTAL
--------- ------ ------ ---------- -------- --------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
Balance at May 28, 1996..................... $ -- 16,575 $166 $140,245 $ 75,635 $216,046
Stock issued under stock purchase and stock
option plans.............................. 19 -- 274 -- 274
Net income.................................. 12,741 12,741
------- ------ ---- -------- -------- --------
Balance at June 3, 1997..................... -- 16,594 166 140,519 88,376 229,061
Stock issued under stock purchase and stock
option plans.............................. 36 -- 644 -- 644
Net income.................................. 27,180 27,180
------- ------ ---- -------- -------- --------
Balance at June 2, 1998..................... -- 16,630 166 141,163 115,556 256,885
Stock issued under stock purchase and stock
option plans.............................. 60 1 1,067 -- 1,068
Net income.................................. 18,813 18,813
------- ------ ---- -------- -------- --------
Balance at June 1, 1999..................... $ -- 16,690 $167 $142,230 $134,369 $276,766
======= ====== ==== ======== ======== ========
</TABLE>
See accompanying notes.
18 DISCOUNT AUTO PARTS LOGO
<PAGE> 21
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
----------------------------
JUNE 1 JUNE 2 JUNE 3
1999 1998 1997
------- -------- -------
(IN THOUSANDS)
<S> <C> <C> <C>
OPERATING ACTIVITIES
Net income.................................................. $18,813 $ 27,180 $12,741
Adjustments to reconcile net income to net cash provided by
operating activities:
Depreciation and amortization.......................... 18,555 15,011 12,490
Cumulative effect of change in accounting principle.... 8,245 -- --
Deferred income tax (benefit) expense.................. (1,489) 8,718 (6,344)
Gain on disposals of property and equipment............ (594) (783) (92)
Changes in operating assets and liabilities:
(Increase) in inventories............................ (37,840) (20,383) (40,236)
(Increase) in prepaid expenses and other current
assets.............................................. (2,706) (5,325) (3,135)
(Increase) decrease in other assets.................. (112) (1,819) 130
Increase in trade accounts payable................... 20,784 3,330 10,698
Increase in accrued salaries, wages and benefits..... 691 1,282 1,773
(Decrease) increase in accrued litigation
settlement.......................................... -- (20,400) 20,400
(Decrease) increase in other current liabilities..... (504) 7,649 232
------- -------- -------
Net cash provided by operating activities................... 23,843 14,460 8,657
INVESTING ACTIVITIES
Proceeds from sales of property and equipment............... 3,904 1,614 397
Purchases of property and equipment......................... (80,964) (64,641) (70,187)
Business acquisition........................................ (8,225) -- --
------- -------- -------
Net cash used in investing activities....................... (85,285) (63,027) (69,790)
FINANCING ACTIVITIES
Proceeds from short-term borrowings and long-term debt...... 105,359 148,971 89,023
Payments of short-term borrowings and long-term debt........ (41,254) (102,393) (30,306)
Proceeds from other issuances of common stock............... 1,068 644 274
------- -------- -------
Net cash provided by financing activities................... 65,173 47,222 58,991
Net increase (decrease) in cash............................. 3,731 (1,345) (2,142)
Cash at beginning of year................................... 5,064 6,409 8,551
------- -------- -------
Cash at end of year......................................... $ 8,795 $ 5,064 $ 6,409
======= ======== =======
</TABLE>
See accompanying notes.
DISCOUNT AUTO PARTS LOGO 19
<PAGE> 22
DISCOUNT AUTO PARTS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
JUNE 1, 1999
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
BUSINESS
Discount Auto Parts, Inc. is a specialty retailer and supplier of automotive
replacement parts, maintenance items and accessories to both Do-It-Yourself
("DIY") consumers and professional mechanics and service technicians. As of June
1, 1999, June 2, 1998, and June 3, 1997, the Company operated a chain of 558,
452, and 400 stores, respectively. As of June 1, 1999, 409 of the stores were
located in Florida, 83 were located in Georgia, 32 in Mississippi, 18 in
Alabama, 12 in Louisiana and four in South Carolina.
FISCAL YEAR END
The Company's fiscal year consists of 52 or 53 weeks ending on the Tuesday
closest to May 31. The years ended June 1, 1999 and June 2, 1998 consisted of 52
weeks. The year ended June 3, 1997 consisted of 53 weeks.
PRINCIPLES OF CONSOLIDATION
The consolidated financial statements include the accounts of Discount Auto
Parts, Inc. and its subsidiaries (the "Company"). All significant intercompany
accounts and transactions have been eliminated in consolidation.
PROPERTY AND EQUIPMENT
Property and equipment is stated at cost. Depreciation is provided using
accelerated and straight-line methods over periods that approximate the assets'
estimated useful lives. Maintenance and repairs are charged against operations
as incurred.
PREPAID EXPENSES AND OTHER CURRENT ASSETS
Prepaid expenses and other current assets principally include amounts due from
vendors related to cooperative advertising and various incentive programs and
trade accounts receivable resulting from the Company's commercial delivery
program.
PRE-OPENING COSTS
Costs associated with the opening of new stores, which primarily consist of
payroll and occupancy costs, are charged against operations as incurred.
20 DISCOUNT AUTO PARTS LOGO
<PAGE> 23
ADVERTISING COSTS
The Company expenses its share of all advertising costs as such costs are
incurred. The portion of advertising expenditures, which is to be recovered
through vendor cooperative advertising and other similar programs, is recorded
as a receivable. Advertising expense, net of vendor rebates, was approximately
$4.0 million for fiscal 1999, $2.3 million for fiscal 1998, and $2.1 million for
fiscal 1997.
INCOME TAXES
The Company accounts for income taxes under the liability method. Under this
method, deferred tax assets and liabilities are determined based on differences
between financial reporting and tax bases of assets and liabilities.
STOCK OPTION PLANS
The Company has elected to follow Accounting Principles Board Opinion No. 25,
Accounting for Stock Issued to Employees (APB 25) and related interpretations in
accounting for its employee stock options and presents disclosures required
under Statement of Financial Accounting Standards Statement No. 123, Accounting
for Stock-Based Compensation. Under APB 25, because the exercise price of the
Company's stock options equals the market price of the underlying stock on the
date of grant, no compensation expense is recognized.
FAIR VALUES OF FINANCIAL INSTRUMENTS
The Company's financial instruments consist of cash, accounts payable and
long-term debt. The carrying value of cash and accounts payable approximates
their fair market values. The carrying amount of long-term debt approximates
fair market value based on current interest rates.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the amounts reported in the financial statements and accompanying notes.
Actual results could differ from those estimates.
NEW ACCOUNTING STANDARDS
In June 1998, the Financial Accounting Standards Board issued Statement No.
133 (Statement 133), Accounting for Derivative Instruments and Hedging
Activities. The Company expects to adopt Statement 133 effective at the
beginning of fiscal year 2002. The Statement will require the Company to
recognize all derivatives on the balance sheet at fair value. The Company does
not anticipate that the adoption of this Statement will have a significant
effect on its results of operations or financial position.
Effective June 3, 1998, the Company adopted Statement No. 130, Reporting
Comprehensive Income, which established new rules for the reporting and display
of comprehensive income and its components. Statement No. 130 had no impact on
the Company's financial statements.
DISCOUNT AUTO PARTS LOGO 21
<PAGE> 24
Effective June 3, 1998, the Company adopted Statement No. 131, Disclosures
about Segments of an Enterprise and Related Information, which established new
standards for the way public companies report information about operating
segments in annual and interim financial statements. The Company operates in a
single segment and accordingly, no segment disclosures are warranted for the
fiscal years ended 1999, 1998 and 1997.
2. ACCOUNTING CHANGE
During the fourth quarter of fiscal year 1999, the Company changed its method
of accounting for store inventories from the first-in, first-out retail
inventory method to the weighted average cost method. The new method for
computing inventories is preferable because it more accurately measures the cost
of the Company's merchandise and produces a better matching of revenues and
expenses.
The effect of the change as of June 3, 1998 has been presented as a cumulative
effect of a change in accounting method, net of a $5,190,000 income tax benefit,
of $8,245,000, and has been recorded as of the beginning of fiscal year 1999.
The effect of this change in fiscal year 1999 was to decrease income before
cumulative effect of change in accounting principle by $805,000 ($.05 per
diluted share).
The pro forma amounts for fiscal year 1998 and 1997, as reflected below, have
been adjusted for the effect of the retroactive application of the weighted
average cost method, net of related taxes, had the new method been in effect
during the respective fiscal years.
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
-----------------
JUNE 2 JUNE 3
1998 1997
------- -------
<S> <C> <C>
As Reported:................................................ $27,180 $12,741
Net income per basic share.................................. $ 1.64 $ .77
Net income per diluted share................................ $ 1.63 $ .77
Pro Forma:.................................................. $26,073 $11,457
Net income per basic share.................................. $ 1.57 $ .69
Net income per diluted share................................ $ 1.56 $ .69
</TABLE>
3. PROPERTY AND EQUIPMENT
Property and equipment consists of the following (dollars in thousands):
<TABLE>
<CAPTION>
JUNE 1, 1999 JUNE 2, 1998 LIFE (YEARS)
------------ ------------ ------------
<S> <C> <C> <C>
Land....................................................... $166,715 $134,582
Buildings.................................................. 165,258 138,338 5 - 31.5
Furniture, fixtures and equipment.......................... 102,119 73,762 5 - 7
Building and leasehold improvements........................ 3,346 3,102 5 - 31.5
Automotive equipment....................................... 4,505 3,741 3 - 7
Construction in progress................................... 16,051 26,466
-------- --------
$457,994 $379,991
======== ========
</TABLE>
Depreciation expense totaled approximately $18,415,000, $14,880,000, and
$12,387,000 for fiscal years 1999, 1998 and 1997, respectively.
22 DISCOUNT AUTO PARTS LOGO
<PAGE> 25
4. LONG-TERM DEBT
Long-term debt consists of the following (in thousands):
<TABLE>
<CAPTION>
JUNE 1, 1999 JUNE 2, 1998
------------ ------------
<S> <C> <C>
Revolving credit agreements................................. $170,000 $103,495
Senior term notes........................................... 50,000 50,000
Senior secured notes........................................ 7,200 9,600
-------- --------
227,200 163,095
Less current maturities..................................... (2,400) (2,400)
-------- --------
$224,800 $160,695
======== ========
</TABLE>
Effective July 16, 1997, the Company entered into a three year $175 million
unsecured revolving credit agreement (the "Revolver") due in fiscal year 2001.
The rate of interest payable under the Revolver was a function of LIBOR or the
prime rate of the lead agent bank, at the option of the Company. During the term
of the Revolver, the Company was obligated to pay a fee of .125% per annum for
the unused portion of the Revolver.
Effective January 29, 1999, the Company entered into a separate $20 million
unsecured revolving credit agreement with a financial institution. The facility
was scheduled to mature September 1, 1999. The rate of interest payable under
the facility is a function of LIBOR.
Effective July 29, 1999, the Company entered into a new five year $265 million
unsecured revolving credit agreement (the "New Revolver"). The New Revolver
replaces both of the aforementioned revolving credit facilities. The rate of
interest payable under the New Revolver is a function of LIBOR or the prime rate
of the lead agent bank, at the option of the Company. During the term of the New
Revolver, the Company is also obligated to pay a fee, which fluctuates based on
the Company's debt-to-capitalization ratio, for the unused portion of the New
Revolver.
Effective August 8, 1997, the Company issued $50 million of senior term notes
(the "Notes"). The Notes provide for interest at a fixed rate of 7.46%, payable
semi-annually, with semi-annual principal payments of $7.1 million, beginning
July 15, 2004.
At June 1, 1999, and June 2, 1998, the Company's weighted average interest
rate on its borrowings under the revolving credit agreements were 5.3% and 6.0%,
respectively.
As of June 1, 1999, the Company had approximately $95.0 million of available
borrowings, after giving retroactive effect to the New Revolver.
The Company has issued two senior secured notes, each for an original
principal of $12 million, to an insurance company. The notes are collateralized
by a first mortgage on certain store properties, equipment and fixtures. The
agreements provide for interest at fixed rates of 10.11% and 9.8%, payable
quarterly, with annual principal payments of $1.2 million each due on December
15 and May 31.
The carrying value of all assets mortgaged or otherwise subject to lien
totaled approximately $15.6 million at June 1, 1999.
DISCOUNT AUTO PARTS LOGO 23
<PAGE> 26
The Company's debt agreements contain various restrictions, including the
maintenance of certain financial ratios and restrictions on dividends, with
which the Company is in compliance. Based on the terms of the Revolver and the
Notes, as of June 1, 1999, approximately $47.4 million of retained earnings were
available for dividend distribution.
Annual maturities, as of June 1, 1999, of all long-term debt for the next five
years are as follows (in thousands):
<TABLE>
<CAPTION>
FISCAL YEAR AMOUNT
- ----------- ------
<S> <C>
2000........................................................ $2,400
2001........................................................ 2,400
2002........................................................ 1,200
2003........................................................ 1,200
2004........................................................ 0
</TABLE>
The table excludes amounts due under the Revolver as a result of its
subsequent replacement with the New Revolver which is due in July 2004.
Total interest paid during fiscal years 1999, 1998 and 1997 was approximately
$13,175,000, $8,402,000, and $6,287,000, respectively, net of capitalized
interest. Capitalized interest for fiscal years 1999, 1998 and 1997 totaled
approximately $668,000, $384,000, and $281,000, respectively.
5. BUSINESS ACQUISITION
Effective September 28, 1998, the Company acquired, pursuant to a definitive
purchase agreement dated September 21, 1998, all the Rose Auto Parts stores
through an asset purchase from Eastern Automotive Warehouse, Inc., a
wholly-owned subsidiary of National Auto Parts Warehouse, Inc. The total
purchase price was approximately $8.2 million. The acquisition included 39
leased retail store locations, primarily located in south Florida, and a leased
warehouse facility in Miami, Florida. The acquisition involved the purchase of
inventory and furniture and equipment at these various locations and the
assumption of the respective leases. At June 1, 1999, 26 of the 39 Rose retail
locations were in operation. Consistent with its plan, Discount Auto Parts has
not continued operations in any of the remaining 13 stores.
The acquisition has been accounted for using the purchase method of accounting
and, accordingly, the purchase price has been allocated to the assets purchased
and the liabilities assumed based upon the fair values at the date of
acquisition. Operating results of the acquired business have been included in
operations since the date of the acquisition. Goodwill of $2.7 million,
resulting from the acquisition, is being amortized over twenty years.
The pro forma impact of the acquired business on results of operation is not
material.
6. STOCKHOLDERS' EQUITY
The Board of Directors is authorized, without further stockholder action, to
divide any or all shares of the authorized preferred stock into series and to
fix and determine the designation, preferences and relative participating,
option or other special rights, and qualifications, limitations, or restrictions
thereon, of any series so established, including voting powers, dividend rights,
liquidation preferences, redemption rights and conversion privileges. As of June
1, 1999, the Board had not authorized any series of preferred stock and there
are no plans, agreements or understandings for the authorization or issuance of
any shares of preferred stock.
24 DISCOUNT AUTO PARTS LOGO
<PAGE> 27
7. LEASES
Certain of the Company's retail stores and equipment are leased under
noncancelable operating leases. The majority of the retail store leases include
options to purchase and provisions for rental increases based on the consumer
price index.
Future minimum annual rental commitments under noncancelable operating leases
with initial or remaining terms of one year or more are as follows (in
thousands):
<TABLE>
<CAPTION>
FISCAL YEAR AMOUNT
- ----------- -------
<S> <C>
2000........................................................ $ 4,696
2001........................................................ 4,049
2002........................................................ 2,606
2003........................................................ 646
2004 and thereafter......................................... 638
-------
$12,635
=======
</TABLE>
Rental expense for fiscal years 1999, 1998 and 1997 totaled approximately
$5,094,000, $1,987,000, and $1,815,000, respectively. Rental expense in each of
the fiscal years includes approximately $127,000 of rent paid to a partnership,
which included the Company's two majority stockholders.
The Company also leases certain portions of its owned facilities to outside
parties. Rental income for fiscal years 1999, 1998 and 1997 totaled
approximately $719,000, $492,000, and $328,000, respectively.
8. BENEFIT PLANS
The Company has a 401(k) profit-sharing plan covering substantially all of its
team members (employees) who have at least one year of service and work more
than 1,000 hours per year. Team members may contribute up to 15% of their annual
compensation subject to Internal Revenue Code maximum limitations. The Company
has agreed to make matching contributions, based upon the team member's first
six percent of compensation, ranging from 25% to 100% of the team member's
contribution depending on the team member's years of service. After three years
of service, Company contributions and earnings thereon vest at the rate of 20%
per year of service with the Company. Costs under this plan for fiscal years
1999, 1998 and 1997 were approximately $964,000, $864,000, and $547,000,
respectively.
The Company has a Supplemental Executive Profit Sharing Plan (the "SEPS
Plan"). The SEPS Plan is an unfunded deferred compensation plan covering certain
key members of management. The amount of benefit each participant is entitled to
is established annually by the Board of Directors or, in certain cases, by a
committee of the Board of Directors. Each participant's account accrues interest
on unpaid awards at a rate determined annually as defined in the plan agreement.
As of June 1, 1999 and June 2, 1998, the Company has accrued approximately
$890,000 and $880,000, respectively, for benefits due under the SEPS Plan.
The Board of Directors has adopted a stock purchase plan (the "Purchase
Plan"), which initially reserved an aggregate of 550,000 shares of common stock.
Under the Purchase Plan, all team members have the right to purchase shares of
common stock of the Company at a price equal to 85% of the value of the stock
immediately prior to the beginning of each exercise period. All team members are
eligible to participate except for those who
DISCOUNT AUTO PARTS LOGO 25
<PAGE> 28
have been employed by the Company for less than one year, team members who
customarily work twenty hours or less per week, team members who customarily
work five months or less in any calendar year, and team members owning at least
5% of the Company's stock. During fiscal years 1999, 1998 and 1997, 8,805,
9,740, and 15,082 shares, respectively, were purchased under the terms of the
Purchase Plan. As of June 1, 1999, 477,955 shares of common stock remain
reserved for issuance under the Purchase Plan.
9. STOCK OPTION PLANS
The Company has stock option plans which provide for the granting to key team
members options to purchase shares of its common stock. A total of 1,700,000
shares of common stock were initially reserved for issuance under the plans and,
as of June 1, 1999, a total of 1,612,556 shares of common stock remain so
reserved. The per share exercise price of each stock option is generally not
less than the fair market value of the stock on the date of the grant or, in the
case of a team member owning more than 10% of the outstanding stock of the
Company, the price for incentive stock options is not less than 110% of such
fair market value.
A summary of the Company's stock option activity and related information is as
follows (shares in thousands):
<TABLE>
<CAPTION>
JUNE 1, 1999 JUNE 2, 1998 JUNE 3, 1997
----------------- ----------------- -----------------
WEIGHTED WEIGHTED WEIGHTED
AVERAGE AVERAGE AVERAGE
EXERCISE EXERCISE EXERCISE
SHARES PRICE SHARES PRICE SHARES PRICE
------ -------- ------ -------- ------ --------
<S> <C> <C> <C> <C> <C> <C>
Outstanding at beginning of year........ 1,127 $21 1,017 $21 955 $21
Granted................................. 333 27 218 19 117 22
Exercised............................... (51) 18 (27) 24 (4) 18
Canceled................................ (72) 24 (81) 22 (51) 21
------ ------ ------
Outstanding at end of year.............. 1,337 $23 1,127 $21 1,017 $21
====== ====== ======
Exercisable at end of year.............. 445 $21 289 $22 138 $21
====== ====== ======
Weighted-average fair value of options
granted during the year............... $14.22 $ 9.98 $11.66
====== ====== ======
</TABLE>
Exercise prices for options exercised during 1999 ranged from approximately
$16 to $24. Exercise prices for options outstanding as of June 1, 1999 ranged
from approximately $16 to $31. The weighted-average remaining contractual life
of those options is 6.4 years.
All options outstanding generally vest beginning after three years and then in
equal installments over a four year period and have a ten year duration.
The Company also has a Non-Employee Directors' Stock Option Plan. A total of
40,000 shares are reserved for future issuance under this plan. As of June 1,
1999, 15,000 options had been granted under this plan at an average price of
$23.96. As of June 1, 1999, 7,750 of such options were exercisable.
Pro forma information regarding net income and earnings per share is required
by Statement of Financial Accounting Standards No. 123 ("SFAS 123"), and has
been determined as if the Company had accounted for its employee and
non-employee director stock options under the fair value method of SFAS 123.
The fair values for these options were estimated at the date of grant using a
Black-Scholes option pricing model with the following weighted-average
assumptions: risk-free interest rate of return of 6.50% for 1999, 5.75% for
26 DISCOUNT AUTO PARTS LOGO
<PAGE> 29
1998 and 6.00% for 1997; volatility factor of .405 for 1999 and 1998 and .376
for 1997; and weighted average expected option life of seven years for all
options. The Company assumed that no dividends would be paid over the expected
life of the options.
The Black-Scholes option valuation model was developed for use in estimating
the fair value of traded options which have no vesting restrictions and are
fully transferable. In addition, option valuation models require the input of
highly subjective assumptions, including the expected stock price volatility.
Because the Company's stock options have characteristics significantly different
from those of traded options and because changes in the subjective input
assumptions can materially affect the fair value estimate, in management's
opinion, the existing model does not necessarily provide a reliable single
measure of the fair value of its employee stock options. For purposes of pro
forma disclosures, the estimated fair value of the options is amortized to
expense over the options' vesting period. The effects of applying SFAS 123 for
pro forma disclosures are not likely to be representative of the effects on
reported net income or losses for future years.
The Company's pro forma information follows (in thousands, except per share
amounts):
<TABLE>
<CAPTION>
1999 1998 1997
------- ------- -------
<S> <C> <C> <C>
Pro forma net income........................................ $18,579 $26,680 $12,443
Pro forma net income per basic share........................ $ 1.12 $ 1.61 $ .75
Pro forma net income per diluted share...................... $ 1.11 $ 1.60 $ .75
</TABLE>
10. INCOME TAXES
The provision for income taxes is comprised of the following (in thousands):
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
---------------------------------------------
JUNE 1, 1999 JUNE 2, 1998 JUNE 3, 1997
------------- ------------- -------------
<S> <C> <C> <C>
Current:
Federal............................................... $12,233 $ 7,442 $12,185
State................................................. 2,129 853 2,139
------- ------- -------
14,362 8,295 14,324
Deferred:
Federal............................................... 2,062 7,468 (5,438)
State................................................. 342 1,250 (906)
------- ------- -------
2,404 8,718 (6,344)
------- ------- -------
$16,766 $17,013 $ 7,980
======= ======= =======
</TABLE>
A reconciliation of the provision for income taxes to the amounts computed at
the federal statutory tax rate is as follows (in thousands):
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
---------------------------------------------
JUNE 1, 1999 JUNE 2, 1998 JUNE 3, 1997
------------- ------------- -------------
<S> <C> <C> <C>
Federal income taxes at statutory rate.................. $15,339 $15,468 $ 7,252
State income taxes, net of federal tax benefit.......... 1,606 1,367 801
Other items, net........................................ (179) 178 (73)
------- ------- -------
$16,766 $17,013 $ 7,980
======= ======= =======
</TABLE>
DISCOUNT AUTO PARTS LOGO 27
<PAGE> 30
Significant components of the Company's deferred tax assets and liabilities
are as follows (in thousands):
<TABLE>
<CAPTION>
JUNE 1, 1999 JUNE 2, 1998
------------ ------------
<S> <C> <C>
Deferred tax assets:
Change in inventory accounting method..................... $ 3,894 $ --
Various accrued expenses.................................. 828 1,204
Other, net................................................ 665 274
------- ------
Total deferred tax assets......................... 5,387 1,478
Deferred tax liabilities:
Depreciation.............................................. 7,482 5,435
Accrued liabilities....................................... 1,103 866
Inventory related items................................... 980 844
Other, net................................................ 503 503
------- ------
Total deferred tax liabilities.................... 10,068 7,648
------- ------
Net deferred tax liability.................................. $ 4,681 $6,170
======= ======
</TABLE>
For fiscal years 1999, 1998 and 1997, the Company paid income taxes of
approximately $15,526,000, $6,723,000, and $15,110,000, respectively.
11. LITIGATION SETTLEMENT
In February 1997, a complaint was filed by Airgas, Inc. and certain Airgas
affiliates against several defendants, including the Company and one of its
employees. The complaint alleged, among other things, that the Company took part
in a conspiracy with other companies and individuals unrelated to Discount Auto
Parts, Inc. to defraud Airgas in connection with commercial sales of refrigerant
R-12 (freon) and sought compensatory damages in excess of $20 million, treble
damages and other relief totaling in excess of $80 million. The trial was
scheduled to begin on August 4, 1997.
Effective July 26, 1997, the Company entered into a Compromise and Settlement
Agreement (the "Settlement Agreement") with Airgas and its affiliates, the other
defendants, and certain other parties. Under the terms of the Settlement
Agreement, the Company purchased from Airgas Specialty Gases, on an "as is,
where is" basis, approximately 6,500 cylinders believed to contain an
alternative to R-12 refrigerant for an aggregate price of $4.0 million, which
represented a price that was believed by the Company to be approximately $3.6
million in excess of the current market value of such product. In addition, the
Company agreed to pay an additional $13.0 million to Airgas Specialty Gases.
As a separate but related part of the Settlement Agreement, the Company paid
$500,000 to the bankruptcy estate of Refrigeration Station, Inc. ("RSI") to
settle any claims, including claims of preference, that the RSI bankruptcy
estate might have asserted against the Company and purchased from the bankruptcy
estate approximately 7,200 cylinders of merchantable Freeze 12 refrigerant (an
R-12 alternative), for an additional $1.0 million (believed to have a bulk sale
value of approximately $600,000). Discount Auto Parts, Inc., Airgas, the RSI
bankruptcy estate, the other defendants and certain other parties have exchanged
mutual releases of all claims and issues between them. In the Settlement
Agreement, there is no finding or admission of wrongdoing on the part of
Discount Auto Parts, Inc. Based on the terms of the Settlement Agreement, the
Company recorded a charge to earnings in the fourth quarter of fiscal 1997 of
$20,545,000. The charge included related legal expenses.
28 DISCOUNT AUTO PARTS LOGO
<PAGE> 31
The Company is presently involved in litigation with its insurance carrier
pursuant to which the Company is seeking recovery under its insurance policy of
certain amounts incurred in connection with the Airgas litigation and the
settlement thereof. The ultimate outcome of such litigation or an estimate of
the amount of potential insurance recoveries, if any, cannot be determined at
this time. No benefit for any recovery which may result has been reflected in
the accompanying financial statements.
12. COMMITMENTS AND CONTINGENCIES
Except as disclosed in Note 11, the Company is not a party to any other legal
proceedings other than various claims and lawsuits arising in the normal course
of business. Management of the Company does not believe that any such claims or
lawsuits will have a material adverse effect on the Company's financial
condition or results of operation.
As of June 1, 1999, the Company's cost to complete construction contracts in
progress was approximately $19.3 million.
13. QUARTERLY RESULTS OF OPERATIONS (UNAUDITED)
The following quarterly financial data is unaudited, but in the opinion of
management, all adjustments necessary for a fair presentation of the selected
data for these interim periods presented have been included.
The first, second, and third quarters of fiscal year 1999 have been restated
to give effect to the change in the Company's method of accounting for
inventories.
<TABLE>
<CAPTION>
FIRST SECOND THIRD FOURTH
QUARTER QUARTER QUARTER QUARTER
-------- -------- -------- --------
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C>
Fiscal Year Ended June 1, 1999:
Net sales................................................. $123,039 $120,290 $127,380 $140,774
Gross profit.............................................. 49,344 48,856 52,873 57,567
Income before cumulative effect of change in accounting
principle.............................................. 7,145 5,601 6,498 7,814
Cumulative effect of change in accounting principle....... (8,245) -- -- --
Net income (loss)......................................... (1,100) 5,601 6,498 7,814
Basic net income (loss) per common share from:
Income before cumulative effect of change in accounting
principle............................................ .43 .34 .39 .47
Cumulative effect of change in accounting principle.... (.50) -- -- --
Net income (loss)...................................... (.07) .34 .39 .47
Diluted net income (loss) per common share from:
Income before cumulative effect of change in accounting
principle............................................ .42 .33 .39 .47
Cumulative effect of change in accounting principle.... (.49) -- -- --
Net income (loss)...................................... (.07) .33 .39 .47
Fiscal Year Ended June 2, 1998:
Net sales................................................. $109,737 $105,240 $110,329 $122,185
Gross profit.............................................. 42,402 41,350 43,387 48,948
Net income................................................ 6,450 6,087 6,972 7,671
Basic net income per common share......................... .39 .37 .42 .46
Diluted net income per common share....................... .39 .37 .42 .46
</TABLE>
DISCOUNT AUTO PARTS LOGO 29
<PAGE> 32
REPORT OF MANAGEMENT
Discount Auto Parts, Inc.
We have prepared the accompanying consolidated financial statements and
related information included herein for the years ended June 1, 1999, June 2,
1998, and June 3, 1997. The opinion of Ernst & Young LLP, the Company's
independent auditors, on those financial statements is included herein. The
primary responsibility for the integrity of the financial information included
in this annual report rests with management. Such information was prepared in
accordance with generally accepted accounting principles appropriate in the
circumstances based on our best estimates and judgments and giving due
consideration to materiality.
Discount Auto Parts maintains internal accounting control systems which are
adequate to provide reasonable assurance that assets are safeguarded from loss
or unauthorized use and which produce records adequate for preparation of
financial information. The system and controls and compliance therewith are
monitored, revised and improved to meet changing business conditions, Company
growth, and recommendations made by the independent auditors. There are limits
inherent in all systems of internal accounting control based on the recognition
that the cost of such a system should not exceed the benefits to be derived. We
believe the Company's system provides this appropriate balance.
The Audit Committee of Discount Auto Parts' Board of Directors is responsible
for reviewing and monitoring the Company's financial reports and accounting
practices to ascertain that they are within acceptable limits of sound practice
in such matters. The membership of the Committee consists of non-employee
Directors. At periodic meetings, the Audit Committee discusses audit and
financial reporting matters and the internal audit function with representatives
of financial management and with representatives from Ernst & Young LLP.
<TABLE>
<S> <C>
/s/ Peter J. Fontaine /s/ C. Michael Moore
Peter J. Fontaine C. Michael Moore
Chairman and Chief Executive Officer Chief Financial Officer
</TABLE>
30 DISCOUNT AUTO PARTS LOGO
<PAGE> 33
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Board of Directors
Discount Auto Parts, Inc.
We have audited the accompanying consolidated balance sheets of Discount Auto
Parts, Inc. as of June 1, 1999 and June 2, 1998, and the related consolidated
statements of income, stockholders' equity and cash flows for each of the three
years in the period ended June 1, 1999. These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the consolidated financial position of
Discount Auto Parts, Inc. at June 1, 1999 and June 2, 1998 and the consolidated
results of its operations and its cash flows for each of the three years in the
period ended June 1, 1999, in conformity with generally accepted accounting
principles.
As discussed in Note 2 to the financial statements, during fiscal 1999 the
Company changed its method of accounting for inventories.
/s/ Ernst & Young LLP
Tampa, Florida
July 2, 1999, except as to
Note 4, as to which the date
is July 29, 1999
DISCOUNT AUTO PARTS LOGO 31
<PAGE> 34
CORPORATE INFORMATION
CORPORATE HEADQUARTERS
Discount Auto Parts, Inc.
4900 Frontage Road, South
Lakeland, Florida 33815
Telephone: (941) 687-9226
www.discountautoparts.net
TRANSFER AGENT AND REGISTRAR
ChaseMellon Shareholder Services, L.L.C.
85 Challenger Road
Overpeck Centre
Ridgefield Park, New Jersey 07660
www.chasemellon.com
INDEPENDENT AUDITORS
Ernst & Young LLP
Tampa, Florida
STOCK EXCHANGE LISTING
New York Stock Exchange
Trading Symbol -- DAP
ANNUAL MEETING
The Annual Meeting of the Stockholders will be held at 10:30 am Tuesday, October
5, 1999 at:
The Lakeland Center
700 West Lemon Street
Lakeland, Florida 33801
NUMBER OF STOCKHOLDERS
As of August 9, 1999, there were approximately 625 stockholders of record.
FORM 10-K
A copy of the Company's Annual Report on Form 10-K for the fiscal year ended
June 1, 1999, as filed with the Securities and Exchange Commission, will be sent
to any stockholder upon request in writing to:
Investor Relations
Discount Auto Parts, Inc.
4900 Frontage Road, South
Lakeland, Florida 33815
MARKET INFORMATION
The Company has not paid or declared cash distributions or dividends since the
consummation of its initial public offering in August 1992, and does not intend
to pay cash dividends on its Common Stock in the foreseeable future.
COMMON STOCK PRICE RANGE
<TABLE>
<CAPTION>
FISCAL 1999 FISCAL 1998
------------------ -------------------
HIGH LOW HIGH LOW
-------- ------ -------- -------
<S> <C> <C> <C> <C>
Qtr 1................ 27 1/2 21 20 15/16 17 5/8
Qtr 2................ 26 21 1/8 24 15/16 18 3/16
Qtr 3................ 26 3/8 19 1/2 22 5/8 18 1/2
Qtr 4................ 26 7/16 20 1/16 25 5/8 21 1/8
</TABLE>
OFFICERS AND DIRECTORS
Peter J. Fontaine
Chairman, Chief Executive Officer and Director
William C. Perkins
President, Chief Operating Officer and Director
C. Michael Moore
Chief Financial Officer and Secretary
Warren Shatzer
Director
Former Executive Vice President -- Merchandising,
Discount Auto Parts, Inc.
E.E. Wardlow
Director
Former President and Chief Operating Officer,
Kmart Corporation
A Gordon Tunstall
Director
President, Tunstall Consulting
David P. Walling
Director
Former Vice President, General Controller,
Kmart Corporation
32 DISCOUNT AUTO PARTS LOGO
<PAGE> 35
LOGO
CORPORATE HEADQUARTERS
DISCOUNT AUTO PARTS, INC.
4900 FRONTAGE ROAD, SOUTH
LAKELAND, FLORIDA 33815
TELEPHONE: (941) 687-9226
WWW.DISCOUNTAUTOPARTS.NET
DISCOUNT AUTO PARTS LOGO 33
<PAGE> 1
EXHIBIT 18
July 2, 1999
Mr. C. Michael Moore, Chief Financial Officer
Discount Auto Parts, Inc.
4900 Frontage Road, South
Lakeland, Florida
Dear Sir:
Note 2 of Notes to Financial Statements of Discount Auto Parts, Inc., included
in its Annual Report on Form 10-K for the year ended June 1, 1999, describes a
change in the method of accounting for store inventories from the FIFO retail
inventory method to the weighted average cost method. You have advised us that
you believe that the change is to a preferable method in your circumstances
because the weighted average cost method for computing inventories more
accurately measures the cost of the Company's merchandise and produces a better
matching of revenues and expenses.
There are no authoritative criteria for determining a `preferable' method of
costing inventories based on the particular circumstances; however, we conclude
that the change in the method of accounting for store inventories from the FIFO
retail inventory method to the weighted average cost method is to an acceptable
alternative method which, based on your business judgment to make this change
for the reasons cited above, is preferable in your circumstances.
Very truly yours,
/s/ Ernst & Young LLP
-------------------------------------
<PAGE> 1
EXHIBIT 23
Consent of Independent Certified Public Accountants
We consent to the incorporation by reference in this Annual Report (Form 10-K)
of Discount Auto Parts, Inc. of our report dated July 2, 1999, except as to
Note 4, as to which the date is July 29, 1999, included in the 1999 Annual
Report to Stockholders of Discount Auto Parts, Inc.
We also consent to the incorporation by reference in the Registration Statement
(Form S-8 No. 33-51244) pertaining to the Discount Auto Parts, Inc. 1992 Team
Members Stock Purchase Plan, in the Registration Statement (Form S-8 No
33-55512) pertaining to the Discount Auto Parts, Inc. 1992 Stock Option Plan,
in the Registration Statement (Form S-8 No. 33-84058) pertaining to the
Discount Auto Parts, Inc. Non Employee Director Plan, and in the Registration
Statement (Form S-8 No. 33-96326) pertaining to the Discount Auto Parts, Inc.
1995 Stock Option Plan of our report dated July 2, 1999, except as to Note 4,
as to which the date is July 29, 1999, with respect to the consolidated
financial statements of Discount Auto Parts, Inc. incorporated by reference in
the Annual Report (Form 10-K) for the year ended June 1, 1999.
Ernst & Young LLP
Tampa, Florida
August 23, 1999
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> JUN-01-1999
<PERIOD-START> JUN-03-1998
<PERIOD-END> JUN-01-1999
<CASH> 8,795
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 209,028
<CURRENT-ASSETS> 240,596
<PP&E> 457,994
<DEPRECIATION> 83,417
<TOTAL-ASSETS> 620,314
<CURRENT-LIABILITIES> 111,657
<BONDS> 224,800
0
0
<COMMON> 167
<OTHER-SE> 276,599
<TOTAL-LIABILITY-AND-EQUITY> 620,314
<SALES> 511,483
<TOTAL-REVENUES> 511,483
<CGS> 302,843
<TOTAL-COSTS> 302,843
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 12,856
<INCOME-PRETAX> 43,824
<INCOME-TAX> 16,766
<INCOME-CONTINUING> 27,058
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 8,245
<NET-INCOME> 18,813
<EPS-BASIC> 1.13
<EPS-DILUTED> 1.12
</TABLE>
