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Proc-Type: 2001,MIC-CLEAR
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<SEC-DOCUMENT>0000950144-98-003334.txt : 19980330
<SEC-HEADER>0000950144-98-003334.hdr.sgml : 19980330
ACCESSION NUMBER: 0000950144-98-003334
CONFORMED SUBMISSION TYPE: 10-K405
PUBLIC DOCUMENT COUNT: 18
CONFORMED PERIOD OF REPORT: 19971231
FILED AS OF DATE: 19980327
SROS: NYSE
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: REPUBLIC INDUSTRIES INC
CENTRAL INDEX KEY: 0000350698
STANDARD INDUSTRIAL CLASSIFICATION: REFUSE SYSTEMS [4953]
IRS NUMBER: 731105145
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: 10-K405
SEC ACT:
SEC FILE NUMBER: 001-13107
FILM NUMBER: 98575007
BUSINESS ADDRESS:
STREET 1: 110 SE 6TH ST
CITY: FT LAUDERDALE
STATE: FL
ZIP: 33301
BUSINESS PHONE: 9547135200
MAIL ADDRESS:
STREET 1: 110 SE 6TH ST
CITY: FT LAUDERDALE
STATE: FL
ZIP: 33301
FORMER COMPANY:
FORMER CONFORMED NAME: REPUBLIC WASTE INDUSTRIES INC
DATE OF NAME CHANGE: 19920703
FORMER COMPANY:
FORMER CONFORMED NAME: REPUBLIC RESOURCES CORP
DATE OF NAME CHANGE: 19900226
</SEC-HEADER>
<DOCUMENT>
<TYPE>10-K405
<SEQUENCE>1
<DESCRIPTION>REPUBLIC INDUSTRIES FORM 10-K 12-31-97
<TEXT>
<PAGE> 1
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
<TABLE>
<C> <S>
(MARK ONE)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE FISCAL YEAR ENDED DECEMBER 31, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM
____________ TO ____________
Commission file number: 1-13107
</TABLE>
REPUBLIC INDUSTRIES, INC.
(Exact Name of Registrant as Specified in its Charter)
<TABLE>
<S> <C>
DELAWARE 73-1105145
(State of Incorporation) (I.R.S. Employer Identification No.)
110 S.E. 6TH STREET 33301
FORT LAUDERDALE, FLORIDA (Zip Code)
(Address of Principal Executive Offices)
</TABLE>
Registrant's telephone number, including area code: (954) 769-7200
Securities registered pursuant to Section 12(b) of the Act:
<TABLE>
<S> <C>
Title of Each Class Name of Each Exchange on which Registered
------------------- -----------------------------------------
COMMON STOCK, PAR VALUE $.01 PER SHARE THE NEW YORK STOCK EXCHANGE
</TABLE>
Securities registered pursuant to Section 12(g) of the Act: NONE
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
As of March 25, 1998, the registrant had 447,082,516 shares of Common Stock
outstanding and, at such date, the aggregate market value of the shares of
Common Stock held by non-affiliates of the registrant was approximately
$10,409,508,000.
DOCUMENTS INCORPORATED BY REFERENCE
<TABLE>
<S> <C>
Part III Portions of the Registrant's Proxy Statement relative to the
1998 Annual Meeting of Stockholders.
Part IV Portions of previously filed reports and registration
statements.
</TABLE>
================================================================================
<PAGE> 2
INDEX
TO FORM 10-K
<TABLE>
<CAPTION>
PAGE NUMBER
-----------
<S> <C> <C>
Part I
Item 1. Business.................................................... 1
Item 2. Properties.................................................. 21
Item 3. Legal and Administrative Proceedings........................ 29
Item 4. Submission of Matters to a Vote of Security Holders......... 29
Part II
Item 5. Market for the Registrant's Common Equity and Related
Stockholder Matters....................................... 30
Item 6. Selected Financial Data..................................... 31
Item 7. Management's Discussion and Analysis of Financial Condition
and Results of Operations (including Item 7A)............. 32
Item 8. Financial Statements and Supplementary Data................. 41
Item 9. Changes in and Disagreements with Accountants on Accounting
and Financial Disclosure.................................. 67
Part III
Item 10. Directors and Executive Officers of the Registrant.......... 68
Item 11. Executive Compensation...................................... 68
Item 12. Security Ownership of Certain Beneficial Owners and
Management................................................ 68
Item 13. Certain Relationships and Related Transactions.............. 68
Part IV
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form
8-K....................................................... 69
</TABLE>
<PAGE> 3
PART I
ITEM 1. BUSINESS
INTRODUCTION
Republic Industries, Inc. (the "Company") operates subsidiaries in the
automotive retail, automotive rental, and solid waste services industries. The
Company owns the nation's largest chain of franchised automotive dealerships and
is building a chain of used vehicle megastores that it operates under the
AutoNation USA(SM) brand name. The Company also owns National Car Rental System,
Inc. ("National"), Alamo Rent-A-Car, Inc. ("Alamo"), and several other vehicle
rental companies. The Company also owns one of the largest solid waste services
businesses in the United States.
The Company's automotive retail business consists of the sale, lease and
financing of new and used vehicles and related automotive services and products.
According to Automotive News, an industry trade publication, the Company is the
single largest automotive retailer in the United States as measured by total
annual revenue. The Company recently organized its retail operations into ten
regional districts which cover 24 major domestic markets. The Company has
acquired or contracted to acquire over 260 franchised automotive dealerships
which own and operate franchises granted by the manufacturers of approximately
36 different brands of cars and light trucks. The Company also operates 26
AutoNation USA used vehicle megastores.
The Company's automotive rental business primarily rents vehicles on a
daily or weekly basis to leisure and business travelers principally from
on-airport or near airport locations through Alamo and National. The Company's
automotive rental business operates in all 50 states in the United States, and
in Canada, the Caribbean, Latin America, the Pacific, Australia, Europe, Africa
and the Middle East. In 1997, the Company operated an average aggregate domestic
rental fleet of approximately 310,000 vehicles. According to Auto Rental News,
an industry trade publication, the Company has the largest combined automotive
rental fleet in the United States.
The Company's solid waste services business provides integrated solid waste
collection and disposal services. The Company provides solid waste collection
services for municipal, residential, commercial and industrial customers through
95 collection companies in 23 states. The Company also owns or operates 54
transfer stations, 24 materials recycling facilities, and 42 solid waste
landfills. These landfills have an aggregate of approximately 5,468 permitted
acres with a total available permitted disposal capacity of approximately 1.1
billion in-place cubic yards as of December 31, 1997.
The Company was incorporated in Oklahoma in 1980 and reincorporated in
Delaware in 1991. The Company's common stock, par value $.01 per share ("Common
Stock"), is listed on The New York Stock Exchange ("NYSE") under the symbol
"RII." For information concerning financial condition, results of operations,
related financial data and business segment information, and regarding business
combinations, see "ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS." For certain risk factors related to the
Company's business, operations and financial performance, see "-- Risk Factors."
BUSINESS STRATEGY
The Company's business strategy is to improve stockholder value by (i)
capitalizing on its market leading positions in its existing lines of business
to continue to generate high levels of internal growth, (ii) enhancing and
broadening its operations by making selective acquisitions of businesses and
(iii) continuing to integrate and consolidate operations in its existing lines
of business to become a low cost provider in each industry, and to increase
operating margins and profitability. For certain risks involved with the
Company's business strategy, see "-- Risk Factors."
In building its automotive operations, the Company's goal is to become the
premier national provider for consumers' automotive needs. According to the
National Automotive Dealers Association ("NADA") and other sources, the
automotive industry as a consumer market generates over one trillion dollars in
annual revenue. In 1997, this market included retail sales of new vehicles
(approximately $330 billion), retail sales of
1
<PAGE> 4
used vehicles (approximately $370 billion), retail sales of vehicle parts and
maintenance/repair services (approximately $189 billion) and rental of vehicles
(approximately $15 billion). In addition, consumers financed approximately $459
billion of vehicles retailed in 1997. Notwithstanding the tremendous size of
this market and of each of its individual components, the Company believes that
the automotive consumer market generally suffers from high degrees of
inefficiency, fragmentation and consumer dissatisfaction.
At the end of 1997, NADA and industry analysts estimated that there were
more than 22,000 franchised automotive dealerships and 56,000 independent used
vehicle retailers in operation in the United States. Vehicles, both new and
used, are being retailed through a decreasing number of outlets. Excluding the
relatively new brands of vehicles (Acura, Hyundai, Infiniti, Isuzu, Kia, Lexus
and Saturn) being distributed in the United States, since 1970 the number of
franchised automotive dealerships operating in the United States has decreased
by more than 40%. Although there has been rapid consolidation of the automotive
retailing industry, the Company believes there is still room for significant
additional consolidation. This is due to a number of factors including, but not
limited to, increased consumer information, aging dealership principals,
declining new vehicle gross margins, high-cost distribution systems, vehicle
manufacturer programs to reduce the number of franchises, the advent and growth
of specialty retailers for used vehicles, parts and service, the increasing
acceptance of public ownership of franchised automotive dealerships by
automobile manufacturers and the changing retailing environment.
The Company believes consumers are generally dissatisfied with the service
and retail experience offered by existing automotive retailers, particularly
with respect to used vehicles. For example, the Company believes that consumers
generally are unable to find used vehicles that have been extensively
reconditioned, to obtain comprehensive warranties on used vehicles, to see and
test drive a broad selection of used vehicles in one location, or to be offered
a convenient and pleasant, no pressure, "no haggle" shopping environment. As a
result, approximately 30% of the total number of used vehicle sales each year
are made through casual private transactions between individuals rather than
through an established retailer, according to industry estimates.
The Company believes the inefficiency, fragmentation and consumer
dissatisfaction in the retail of used vehicles exists throughout the automotive
industry. The Company believes that this lack of consumer confidence in the
existing automotive retail markets is due in part to the absence of a nationally
branded retailer. The Company's strategy is to capitalize on these opportunities
by becoming a nationally recognized branded retailer and provider of products
and services to automotive consumers.
Through the completed and pending acquisitions of dealership groups which
operate over 260 franchised automotive dealerships and the development and
operation of its AutoNation USA megastores, the Company is well-established as
the nation's largest automotive retailer. The Company's management believes that
tremendous growth opportunities remain in the fragmented automotive retail
markets, and expects that the Company's significant growth will continue for the
foreseeable future.
The Company's automotive retail businesses recently have been organized
under a business model in which all automotive retail businesses that serve
local customers within defined geographic areas function as one business unit
under one local management team (each called an "Automotive Retail District" or
"District"). The Company has determined that its automotive retail businesses
are best managed at the local level, with decision-making authority in close
proximity to the customers. In the automotive retail business, for example, the
popularity of different brands and models of vehicles varies by local markets.
The Districts are organized in a manner which will allow the Company to maximize
sales and improve profitability by (i) adjusting inventory and pricing to target
the local markets and (ii) reducing costs throughout its vast retail network.
The goal of the Automotive Retail Districts is to maximize retail sales and
profits, improve store margins, and improve market share and penetration of all
products. The Automotive Retail Districts will allow the Company to develop
AutoNation USA into a national, highly recognized brand. It is expected that
each District will advertise aggressively in its local markets to maximize
traffic in stores, establish effective inter-store communications and referral
sales among stores, and implement in all stores in the District the best
demonstrated practices of all the Company's franchised dealerships and used
vehicle megastores. While the former owners and managers of franchised
automotive dealerships acquired by the Company generally have
2
<PAGE> 5
been retained to capitalize on their local market knowledge and to instill their
entrepreneurial drive at all levels, all employees in a District will be
trained, motivated, compensated and focused under one clearly defined local
management team. The Company believes this approach will achieve high customer
satisfaction and will develop "Customers for Life" who return to the Company's
businesses for all of their automotive needs. As a result, the Company expects
to generate higher levels of earnings and improve stockholder value.
In implementing its growth strategy for its automotive retail business, the
Company generally has targeted major domestic markets in each District for the
clustering of dealerships offering the most popular brands of new vehicles
together with AutoNation USA megastores. The Company has sought out dealerships
with well established reputations for quality service, competitive pricing and
programs designed to improve customer convenience and satisfaction. By owning
and operating numerous retail locations in a given market which sell and lease
new and used vehicles, as well as provide financing, insurance, service and
parts for vehicles, the Company benefits from multiple transactions involving
the same vehicles. In addition, the Company benefits from its internally created
supply of used vehicles which are traded-in or returned off-lease at its
dealerships and AutoNation USA megastores. By offering a broad spectrum of
vehicle brands, the Company also is less dependent on the success of particular
vehicle manufacturers.
The Company anticipates that its unique and extensive network of franchised
automotive dealerships and AutoNation USA megastores will provide consumers with
access to benefits and discounts not available elsewhere. The ownership and
operation of numerous franchised dealerships within each District permits the
Company to sell to customers many brands and models of vehicles, however
equipped, from the vast inventory within the District. The large number of
stores within each District also permits the Company to capture the warranty,
service and parts needs of consumers who purchase many brands and models of
vehicles, and to offer vehicle rental service to customers through the Company's
local/replacement vehicle rental operations at all of the Company's larger
dealerships and AutoNation USA megastores when vehicles are being serviced or
repaired.
The vast size of the Company's automotive retail business also provides the
Company with immediate margin benefits and competitive advantages by leveraging
economies of scale. For example, the Company's cost of capital for floor plan
inventory financing is lower than most of its competitors. Additional savings
should result from consolidated purchasing of advertising and insurance, and
more efficient administrative, information and other business systems. As a
result, the Company expects to become the low cost provider of new and used
vehicles at its franchised dealerships and AutoNation USA megastores.
The Company also expects that vehicle manufacturers will benefit from the
Company's consolidation of the retail market. By eliminating inefficiencies in
the distribution system, the average price of a new vehicle can be lowered
substantially. The Company also believes that its programs and benefits will
result in higher customer satisfaction ratings. These programs and benefits will
continue to improve as the Company implements the best dealer practices in its
retail network. Finally, the Company will be able to accumulate a unique
customer data base to further identify and meet consumer needs. The Company
plans to eventually identify its franchised automotive dealerships as affiliated
with AutoNation USA, while continuing to ensure that each of the manufacturers'
brands remains predominant for the vehicles themselves. The Company's goal is to
establish AutoNation as a brand which consumers identify with trust,
reliability, convenience and wide-ranging services for any number of vehicle
brands.
In its automotive rental business, the Company intends to become a fully
integrated and leading provider of services to consumers in the business and
leisure travel markets and to expand its presence in the local/replacement
vehicle rental market. The Company is combining numerous duplicative operations
of National and Alamo to achieve economies of scale in fleet purchasing,
utilization and financing, as well as in revenue management. The Company's goal
is to have a common fleet in place for National and Alamo for the 1999 vehicle
model year, which will allow for greater capacity to reallocate vehicles between
facilities to meet National's greater demand by business travelers during
weekdays and to meet Alamo's greater demand by leisure travelers during
weekends. The Company expects that its automotive rental business will
experience continued internal growth, increased operating margins, and higher
levels of earnings, thereby improving stockholder value.
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<PAGE> 6
In its solid waste services business, the Company operates 95 solid waste
collection companies, 54 transfer stations, 42 solid waste landfills and 24
materials recycling facilities. The collection companies generally provide solid
waste collection and hauling services in high growth markets, and the Company
expects its solid waste business will experience continued internal growth. The
Company generally operates waste collection companies that are in markets served
by the Company's existing landfill facilities, and in markets with attractive
third party disposal fees. The Company's solid waste business is focused on
integrating its operations and consolidating duplicative facilities to maximize
cost efficiencies and economies of scale, and it expects to maintain attractive
operating margins. In making acquisitions, the Company principally targets waste
collection companies which have long term collection contracts with
municipalities, with particular focus on "tuck-in" companies that operate in
markets already serviced by the Company. The Company also may consider acquiring
companies which own or operate landfills with significant permitted disposal
capacity and appropriate levels of waste volume. The Company generally targets
acquisitions in markets where it will be, or will have favorable prospects of
becoming, a significant provider of integrated solid waste services in that
market. However, the Company is not limited to these target criteria for
acquisitions, and may acquire additional solid waste operations as opportunities
arise.
Although management believes that the Company currently has sufficient
resources, including cash on hand, cash flow from operating activities, credit
facilities and access to the financial markets, to fund current and planned
operations, service its outstanding debt and make certain acquisitions, there
can be no assurance that additional financing will be available on a timely
basis, if at all, or that it will be available on terms acceptable to the
Company for such purposes. See "-- Risk Factors" and "ITEM 7. MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS."
OPERATIONS
The Company's operations are organized primarily into three general
industry segments: (1) automotive retail, (2) automotive rental and (3) solid
waste services.
Automotive Retail
The Company owns and operates, or has contracted to acquire, over 260
franchised automotive dealerships and 26 AutoNation USA megastores in eighteen
states. These franchises include the Acura, Audi, BMW, Buick, Cadillac,
Chevrolet, Chrysler, Dodge, Ford, GMC, Geo, Honda, Hyundai, Infiniti, Isuzu,
Jaguar, Jeep-Eagle, Kia, Lamborghini, Land Rover, Lexus, Lincoln-Mercury, Mazda,
Mercedes-Benz, Mitsubishi, Nissan, Oldsmobile, Plymouth, Pontiac, Porsche, Rolls
Royce, Saab, Subaru, Suzuki, Toyota, Volkswagen and Volvo brands of cars and
light trucks.
At present, the Company has established ten Automotive Retail Districts to
operate its automotive retail businesses, including its franchised automotive
dealerships and its AutoNation USA megastores. Each Automotive Retail District
is designed to serve local retail consumers in a defined geographic area and
function as a distinct business unit under one local management team. As more
retail outlets are acquired and opened by the Company, additional, and in some
cases more concentrated, Districts will be established on the basis of geography
and local media ADI (areas of dominant influence). The number of stores in each
District will vary, while revenue within each District is expected to range from
$500 million to $3 billion per year when acquisitions of franchised automotive
dealerships and development of AutoNation USA megastores are completed.
A central element of the Company's strategy is to improve customer
perceptions of the vehicle buying experience. The Company's establishment of its
Automotive Retail Districts is based on management's belief that automotive
retail businesses are best managed at the local level with a focus on the needs
and demands of local consumers. In all of its Districts, the Company intends to
create a pleasant shopping environment by, among other things, providing
convenient hours of operation, courteous and knowledgeable personnel and
competitive pricing. The Company has acquired, and intends to continue to
acquire, automotive dealerships with well established reputations for quality
service, competitive pricing and programs designed to improve
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customer convenience and satisfaction. In that regard, whenever the Company
makes acquisitions, it generally intends to retain each automotive dealership's
principal management in order to benefit from their years of automotive
retailing experience.
Each of the Company's franchised automotive dealerships offers brand name
new and used vehicles. New vehicles are generally acquired directly from the
manufacturers and the mix of vehicles is generally determined by the
manufacturers based on several factors including the size and location of the
dealership and the dealer's sales record and customer satisfaction rating. Used
vehicles are generally acquired from customer trade-ins and off-lease vehicles.
Customers generally have a choice of purchasing or leasing any vehicle. In
recent years the number of leasing transactions has increased due to the rising
prices of new vehicles and the support of vehicle manufacturers. Through the use
of captive leasing companies, manufacturers have supported the residual values
of leased vehicles which has lowered the monthly payments on leased vehicles
relative to purchased vehicles that are financed. Each of the Company's
franchised automotive dealerships also offers aftermarket products such as
cellular phones, upgraded sound systems, alarms, and extended service contracts.
The Company's franchised automotive dealerships also generally have service
facilities which provide a wide range of vehicle maintenance and repair
services.
The Company's AutoNation USA megastores maintain a retail inventory of up
to 1,000 used vehicles. The used vehicles at AutoNation USA megastores feature a
low "no haggle" price, extensive reconditioning, warranties, roadside assistance
plans and other benefits not typically offered by independent used vehicle
retailers. Prominent among these benefits is a 7 day, 300 mile money-back
guaranty. The showrooms at the AutoNation USA megastores are large, and contain
vehicle display space, a supervised children's area, a retail store for
automotive accessories, a community room, an eating area and other amenities.
The AutoNation USA megastores have several sources of supply for used
vehicles. The inventory of used vehicles is purchased primarily from automotive
dealerships and, to a lesser extent, auctions and other sources. At the
auctions, the Company purchases used vehicles through competitive bidding. The
Company anticipates that it will obtain the substantial majority of its used
vehicles in the future from customer trade-ins and off-lease vehicles at the
Company's franchised automotive dealerships and AutoNation USA megastores.
All used vehicles acquired from any source for retail sale at AutoNation
USA megastores are extensively reconditioned by the Company. The mechanical,
safety and cosmetic condition of each vehicle is thoroughly inspected by
certified technicians, and the vehicles are repaired, serviced, painted, cleaned
and processed, as necessary, prior to being delivered to the AutoNation USA
megastores. The Company owns and operates its own vehicle reconditioning centers
and also uses the service facilities at its franchised automotive dealerships to
recondition used vehicles.
Each of the Company's automotive dealerships operates under a franchise
agreement with a vehicle manufacturer. The franchise agreements generally grant
the franchised automotive dealership a non-exclusive right to sell the
manufacturer's brand of vehicles and offer related parts and service within a
specified market area. Generally, a manufacturer will retain the discretion to
allocate the mix of vehicles distributed to its franchised dealerships within a
given market area. The franchise agreements also grant the dealerships the right
to use the manufacturer's trade names in connection with the sale of its
vehicles. The franchise agreements generally impose operational requirements and
restrictions on the automotive dealerships relating to inventory levels, working
capital requirements, showroom and service facilities, personnel and monthly
financial reporting, among other things. The franchise agreements generally
provide for termination of the agreement by the manufacturer or non-renewal for
a variety of causes including changes of ownership without prior approval,
certain bankruptcy related events, the death, disability or conviction of the
dealer principal, the failure to maintain certain customer satisfaction ratings,
or any material breach of the franchise agreement.
In furtherance of the Company's strategy to expand its automotive retail
operations, the Company has entered into agreements with certain major vehicle
manufacturers, including General Motors Corporation ("General Motors"), Ford
Motor Company and Toyota Motor Sales USA, Inc. These agreements generally
contain provisions relating to the Company's acquisition, ownership structure,
management and operation of automotive dealerships franchised by such
manufacturers. Such agreements also set certain limits on the
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number of dealerships which the Company may acquire of the particular
manufacturer, based upon either the manufacturer's total sales revenue or a
fixed number of dealerships. The Company will approach such limits as it
continues to expand and acquire franchised automotive dealership groups. In
addition, such agreements generally provide that the manufacturer will have the
right to acquire, for fair market value, any of manufacturer's franchised
automotive dealerships operated by the Company in the event of a change in
control of the Company or certain other extraordinary corporate transactions
such as a merger or sale of all of the Company's assets.
There are also various federal and state laws that govern the franchise
relationships for automotive dealerships. These include statutes that prohibit
manufacturers from terminating or failing to renew a franchise without good
cause and that prohibit manufacturers from unreasonably withholding approval of
a proposed change in ownership. Under such statutes, a vehicle manufacturer may
disapprove of a proposed change in ownership for certain enumerated reasons
involving such matters as the moral character, financial capability and/or
business experience of the proposed transferee.
Automotive Rental
The automotive rental industry is composed of three principal markets: the
market for business travelers, the market for leisure travelers and the market
for replacement vehicles to local consumers. In the business and leisure
markets, the Company rents vehicles principally from on-airport or near-airport
locations. In the local/replacement market, the Company rents vehicles primarily
to individuals who have temporarily lost the use of their vehicles through
accident, theft, breakdown or other occurrences. The local/replacement market
rents principally from locations in downtown or suburban areas. The Company's
automotive rental operations have a strong presence in each of these markets.
National principally targets the general use market for business travelers.
National's vehicle rental business operates in all 50 states in the United
States and in Canada, the Caribbean, Latin America, the Pacific, Australia,
Europe, Africa and the Middle East. National has approximately 800 rental
locations in the United States and Canada. National also has approximately 164
locations in the Caribbean, Latin America and the Pacific. National serves its
customers in Japan and other parts of the Pacific through a marketing
affiliation with Nippon Rent-A-Car. Prior to February 1, 1998, National served
its customers in Europe, Africa and the Middle East through a marketing
affiliation with Europcar/Interrent. Beginning February 1, 1998, as a result of
the Company's recent acquisition of EuroDollar Rent A Car, National began to
operate, and in some cases license, approximately 840 locations in Europe,
Africa and the Middle East. Certain EuroDollar Rent A Car operations in Europe
are being rebranded as National operations in 1998. In the United States,
National will operate an average fleet of approximately 150,000 vehicles in
1998.
Alamo principally targets the general use market for leisure travelers.
Alamo's vehicle rental business operates in 45 states in the United States and
in Canada, Mexico and Europe. Alamo has approximately 148 rental locations in
the United States and Canada. Alamo also has approximately 162 locations in
Europe. As a result of the Company's recent acquisition of EuroDollar Rent A
Car, Alamo is being co-branded with National at numerous locations through
Europe, Africa and the Middle East. In the United States and Canada, Alamo will
operate an average fleet of approximately 145,000 cars in 1998.
The Company has a strong presence in the local/replacement vehicle rental
market following its acquisitions of Spirit Rent-A-Car, Inc. and Snappy Car
Rental, Inc. in 1997. The Company's local/replacement vehicle rental business is
being rebranded under the CarTemps USA brand name. Expansion of the Company's
312 locations serving the local/replacement market by an additional 108
locations is planned throughout 1998, for a total of 420 CarTemps USA locations
by year end in the United States. The Company expects to provide its own
local/replacement vehicle rental service at all of the Company's larger
franchised automotive dealerships and AutoNation USA megastores. In the United
States, CarTemps USA will operate a fleet of approximately 32,000 vehicles in
1998.
By combining certain operations of these companies, the Company plans to
leverage its brands across distribution channels as well as achieve economies of
scale in fleet purchasing, fleet utilization, revenue management and financing.
The Company expects to further integrate Alamo and National operations
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through a common fleet, common fleet maintenance program and common information
technology platforms. In addition, the Company is in the process of integrating
back-office operations such as claims administration, accounting functions, and
reservation systems.
In the United States, all of Alamo's rental locations and most of
National's rental locations are corporate-owned. National licenses a number of
its locations to third party operators, generally in smaller domestic markets
and in many foreign markets. Alamo licenses a number of its locations to third
party operators in Europe. The licensing arrangements provide greater depth of
coverage for customers while maintaining operating efficiencies. All of the
Company's operations in the CarTemps USA local/replacement segment are
corporate-owned.
In general, concession fees for airport locations are based on a percentage
of total revenue (as determined by each airport), subject to a minimum
guaranteed amount. Concessions are typically awarded by airport authorities
every three to five years based upon competitive bids. As a result of minimum
guaranteed fees, most smaller rental companies are not located at airports. At
near-airport locations, airport authorities generally charge permit fees for the
privilege of customer pick-up and drop-off at terminals by courtesy vans or
buses. Generally, on-airport locations have more high-yielding walk-up rentals
(i.e., customers without reservations) and fewer no-shows (i.e., customers with
reservations who fail to rent). At almost all airports at which they operate,
Alamo and National are two of several vehicle rental concessionaires.
General Motors has been the principal supplier of rental vehicles to
National and Alamo for many years. In the 1997 model year, vehicles manufactured
by General Motors made up approximately 70% of rental fleet purchases. The
percentage of rental vehicles that are purchased from General Motors has
declined slightly over the last three years. In the last few years, several
other vehicle manufacturers have also supplied rental vehicles to the Company.
A large percentage of the Company's fleet purchases are subject to
manufacturer repurchase programs ("Repurchase Programs"). Alamo and National
purchased approximately 97% of their combined U.S. rental fleet during model
year 1996 and 94% during 1997 under Repurchase Programs pursuant to which either
(i) in the case of a traditional repurchase program, the manufacturer is
obligated to repurchase vehicles within designated periods of time or (ii) in
the case of a guaranteed depreciation program, the manufacturer has guaranteed
that the vehicles will not depreciate more than a certain specified amount
compared to actual auction prices, in each case in accordance with the terms and
conditions of the specific program. Approximately 80% of the Company's combined
vehicle rental fleet in 1998 will be acquired under Repurchase Programs. The
Company may, at its option, require the manufacturers to repurchase vehicles
under the Repurchase Programs at any time during allowable periods. If vehicles
subject to Repurchase Programs are returned earlier than originally anticipated,
the depreciation expense is usually increased for the period such vehicles were
in service. Vehicles acquired under Repurchase Programs in the United States are
purchased by the Company through franchised automotive dealerships, including,
where feasible, the Company's dealerships.
Under the Repurchase Programs with General Motors, the rental fleets of
Alamo and National must consist of specified minimum percentages of General
Motors vehicles. Through model year 2000, Alamo and National must maintain at
least 51% and 85%, respectively, of General Motors vehicles in order to receive
certain discounts and incentives. In return, General Motors has agreed to make
available a specified minimum number of vehicles each model year. As part of its
European operations, the Company has committed to buy approximately 20,000
vehicles per year for 3 years from Vauxhall, a unit of General Motors.
Purchases made outside of Repurchase Programs are made from a number of
sources, including private and public auctions, wholesalers, automotive
dealerships and vehicle manufacturers. In the future, the number of vehicles
purchased outside Repurchase Programs may increase or decrease based on a number
of factors, including a determination of the acceptable level of residual risk
related to the disposition of vehicles in the used vehicle market. The Company's
local/replacement vehicle rental business generally purchases vehicles outside
Repurchase Programs, as Repurchase Programs are generally not available to these
companies. Alamo also acquires vehicles pursuant to short term leases, the terms
of which are generally less than one year. The
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number of vehicles which Alamo leases depends upon a number of factors,
including price, term and availability.
The age of vehicles in the rental fleets, whether or not acquired through
Repurchase Programs, generally has not exceeded two model years. Vehicles that
are not subject to Repurchase Programs are disposed of through private and
public auctions and resales to wholesalers and automotive dealerships, among
other methods. The Company anticipates that it also will dispose of a certain
number of rental vehicles that are not subject to Repurchase Programs through
its franchised automotive dealerships and AutoNation USA megastores.
Vehicle depreciation is the single largest cost component of the Company's
automotive rental operations, and it is materially affected by vehicle
manufacturers' Repurchase Programs. Other automotive rental operating expenses
consist of interest and lease expenses, personnel, insurance, fleet maintenance
and rental location occupancy costs.
Both Alamo and National use proprietary integrated fleet management systems
to efficiently utilize their rental fleets and revenue management systems to
optimize the pricing of their rental vehicles. These systems identify and
indicate the status of every vehicle in the fleet on a real-time basis. This
enables Alamo and National to evaluate fleet needs based on market demands and
reservation projections on a daily basis. The result is that the Company is able
to optimize its ability to rent each available vehicle in the fleet each day at
the highest possible rate. The fleet management systems perform many functions
including vehicle purchase ordering (including vehicle specifications),
in-fleeting, registration, invoicing, dealer payment, title control, fleet
movement tracking, physical inventory, inactive vehicle management, fleet cost
allocation (both purchased and leased), maintenance record keeping, grounding
and vehicle sales. The revenue management systems take into account the present
bookings, factor in traditional no-show percentages and compare historical data
for walk-ups and incoming reservations. This analysis helps the Company maximize
revenue from its rental fleet.
The Company performs routine maintenance on its rental fleet. The Company's
computerized maintenance systems identify the vehicles due for maintenance and
the type of maintenance required based on mileage and the in-service period. The
Company's vehicle rental facilities typically include maintenance areas, and
trained employees dedicated to fleet maintenance. Where feasible, the Company
expects to eliminate duplicative off-site maintenance facilities in markets
where Alamo and National both have facilities, as well as eliminate such
facilities in markets where the Company's franchised automotive dealerships or
reconditioning centers can service the rental fleets. Vehicles are cleaned
between rental transactions and are regularly inspected as part of the Company's
routine maintenance program.
The Company operates five state-of-the-art reservations centers used
primarily for bookings by business and leisure travelers. The reservation
systems collectively handle an average of approximately 113,000 calls per
weekday with a peak capacity of up to 161,000 calls per weekday. The systems
reroute calls to less utilized centers so that customers get the best and
quickest service. In addition, the Alamo and National systems are linked so that
if one is sold out the customer will be rerouted to the other for service. A
large percentage of Alamo's and National's bookings are also made through an
automated global distribution system as commercial renters typically book
reservations through travel agencies.
In addition to basic vehicle rental charges, the sale of rental related
products generates a significant, but declining, percentage of revenue. Such
rental related products include collision damage waivers, additional liability
protection, personal accident and personal effects protection, other travel
related insurance coverages and travel related products such as vehicle
upgrades, gasoline sales, inter-city drop-off charges, and miscellaneous items
such as baby seats, ski racks, cellular phones and additional driver fees. The
Company also earns a small percentage of its overall rental revenue from its
airport parking operations.
Solid Waste Services
The Company's solid waste services operations primarily consist of the
collection, hauling and disposal of non-hazardous solid wastes.
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Collection Services. As of December 31, 1997, the Company provided solid
waste collection services to municipal, residential, commercial and industrial
customers in 23 states through 95 collection companies.
The Company's commercial and residential collection operations involve the
curbside collection of refuse from small containers into collection vehicles for
transport to transfer stations or directly to landfills. Commercial collection
services are generally performed under one to three-year service agreements, and
fees are determined by such considerations as market factors, collection
frequency, type of equipment furnished, the type and volume or weight of the
waste collected, the distance to the disposal facility and cost of disposal.
Residential solid waste collection services are typically performed under
contracts with municipalities, generally secured by competitive bid, which give
the Company exclusive rights to service all or a portion of the homes in their
respective jurisdictions. Such contracts or franchises usually range in duration
from one to five years, although some are for as long as 20 years. Residential
solid waste collection services may also be performed on a subscription basis,
in which individual households contract directly with the Company. The fees
received for residential collection are based primarily on market factors,
frequency and type of service, the distance to the disposal facility and cost of
disposal. Residential collection fees are paid by the residential customers
receiving the service.
In addition, the Company currently provides recycling services through many
of its collection subsidiaries and has 24 materials recycling facilities or
other recycling operations. The recycling services provided by the Company's
collection subsidiaries include the curbside collection of recyclable waste and
the provision of a variety of recycling services. In certain areas, the Company
receives certain types of commercial and industrial solid waste which is sorted
at its facilities into recyclable materials and non-recyclable waste. The
recyclable materials are salvaged, repackaged and sold to third parties and the
non-recyclable waste is disposed of at landfills or incinerators.
The Company also owns or operates 54 transfer stations. Waste is collected
and deposited at these stations by the Company and other private haulers for
compaction and transfer to trailers for transport to landfills, incinerators,
recycling facilities or other disposal sites.
In its industrial collection operations, the Company supplies its customers
with waste containers known as "roll-off" containers. The Company collects the
roll-off containers and transports them to a landfill where the waste is
deposited. Waste collection services are provided to individual facilities on a
contractual basis with terms generally ranging from a single pickup to a
one-year term.
Disposal Services. The Company owns or operates 42 solid waste landfills
with approximately 5,468 permitted acres and total available permitted disposal
capacity of approximately 1.1 billion cubic in-place yards as of December 31,
1997. See "ITEM 2. PROPERTIES -- Solid Waste Services." The in-place capacity of
the Company's landfills is subject to change based on engineering factors and
requirements of regulatory authorities. Certain of the landfills accept
nonhazardous special waste, including utility ash, asbestos and contaminated
soils. The majority of the Company's landfill revenue is derived from long-term
integrated waste disposal and collection contracts with industrial customers and
municipalities, and disposal contracts with certain third party collection
companies.
Most of the Company's existing landfill sites have the potential for
expanded disposal capacity beyond the currently permitted acreage. The Company
monitors the availability of permitted disposal capacity at each of its
landfills and evaluates whether to pursue expansion at a given landfill based on
estimated future waste volumes, remaining capacity and likelihood of obtaining
expansion. Each of the Company's landfills currently has adequate permitted
capacity. The Company is currently seeking to expand permitted capacity at
certain of its landfills in connection with favorable design modifications.
SALES AND MARKETING
The Company believes in providing quality services which will enable it to
maintain high levels of satisfaction from its customers in all business
segments. The Company derives its business from a broad customer base which the
Company believes will enable it to experience stable growth. Marketing efforts
focus on continuing and increasing business with existing customers as well as
attracting new customers.
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Automotive Retail. With respect to the Company's automotive retail
operations, the Company expects to engage in mass marketing and advertising in
various media to attract a broad retail customer base in the markets in which it
operates, and to make AutoNation USA a nationally-recognized brand.
The Company's marketing and advertising activities may vary among its
Automotive Retail Districts and advertising purchases are determined at the
local level in each District. The Company advertises primarily through
newspapers, radio and television in each District's local ADI. Under
arrangements with certain vehicle manufacturers, the Company's franchised
automotive dealerships may receive a subsidy for advertising expenses incurred
in connection with such manufacturers' vehicles. The Company expects to continue
to realize cost savings and efficiencies with respect to advertising expenses,
due to volume discounts and other concessions as it clusters multiple franchised
automotive dealerships and AutoNation USA megastores within particular markets.
Sales guides at AutoNation USA megastores are paid a fee per vehicle sold
based primarily on customer satisfaction ratings. The sales guides are not paid
a commission based on a percentage of the price paid by the customer, unlike the
typical industry practice. Rather, the sales guides are trained to sell the
vehicle which the customer wants, not a higher priced or other vehicle, so that
customers can shop in an environment free from the high pressure sales tactics
that are prevalent in the industry. Using computer kiosks in the showroom,
shoppers can browse the complete inventory of used vehicles available at each
location. The kiosks also display pricing models which show the consumer the
total and monthly payments for any vehicle in inventory under different lease or
financing alternatives, and with different accessories, warranties and other
aftermarket products.
Automotive Rental. The Company's sales and marketing strategy for Alamo
and National is to maintain their brand identifications through a variety of
media, cooperative advertising relationships with airlines, hotels and others in
the travel industry, and building and maintaining close relationships with the
travel agent community, tour operators and major corporate customers. Alamo
principally targets leisure travelers and cost-conscious business travelers.
National principally targets business travelers who are typically covered under
corporate travel contracts which establish specific rates for various categories
of vehicle classes, locations and travel periods. Alamo's objective is to be the
low-cost provider of quality vehicle rental service and to increase customer
satisfaction and retention by developing innovative, time saving options for
customers and other quality services based on the customer's specific needs.
National's objective is to be the global vehicle rental service company of
choice, to enhance customer loyalty and satisfaction and to be the value leader
in selected market segments. CarTemps USA, the Company's local/replacement
vehicle rental business, generates the majority of its revenue from insurance
replacement customers with the remainder coming from dealership referrals, local
body shops, and local retail customer walk ins. The primary customer base for
this rental market is the insurance replacement, local neighborhood, and car
dealership and shop temporary rental market. The ability of CarTemps USA to
directly connect via E.D.I. (Electronic Data Interchange) with the major
insurance companies has proven to be a competitive benefit in this rental
market.
Solid Waste Services. The Company's solid waste services business has more
than 250 sales representatives. The Company's sales and marketing strategy is to
provide high quality comprehensive solid waste collection, hauling and disposal
services to its customers at competitive prices. The Company targets potential
customers of all sizes, from small quantity generators to large "Fortune 500"
companies and municipalities.
CUSTOMERS
As of December 31, 1997, no one customer individually comprised more than
10% of the total revenue of any business segment of the Company.
REGULATIONS
Automotive Regulations
The Company's automotive retail operations are subject to various federal,
state and local laws and regulations including those relating to taxing and
licensing of vehicles, consumer protection, insurance, advertising, currency
controls, used vehicle sales, zoning and land use, and labor matters.
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The Company's automotive rental operations generally are subject to similar
laws and regulations. In addition, approximately 40 states have considered
legislation affecting the sale of collision damage waiver products. To date, 18
of those states have enacted legislation requiring the disclosure to each
customer at the time of rental that damage to the rental vehicle may be covered
by the customer's personal automobile insurance and that purchase of a collision
damage waiver may not be necessary. In addition, adoption of national or state
legislation limiting the sale, or capping the rates, of collision damage waiver
products could further restrict sales of this product and additional limitations
of potential customer liability would increase the cost of the Company's vehicle
rental operations.
As a result of private and governmental regulatory legal proceedings in
certain states regarding the sale of optional service items at the rental
counter, including liability insurance, personal accident coverage, personal
effects coverage and other travel related coverages and refueling charges, the
vehicle rental industry has lobbied regulatory agencies and legislative bodies
to provide affirmative authorization for the sale of these services and
products. The outcome of the legal proceedings and the results of the industry
lobbying initiatives may result in a modification of current laws which could
negatively impact the revenue generated from the sale of these services and
products.
The Company's vehicle rental operations are also subject to various
federal, state and local consumer protection laws and regulations including
those relating to advertising and disclosure of charges to customers. The
National Association of Attorneys General has promulgated suggested guidelines
for vehicle rental advertisements. Alamo and two other industry participants are
subject to substantially similar consent decrees resulting from Federal Trade
Commission inquiries initiated in 1989, which consent decrees require certain
disclosures to customers at each stage of the rental transaction, including in
advertisements, of charges that are mandatory and not otherwise reasonably
avoidable.
The Company's automotive retail and rental operations are also subject to
the National Traffic and Motor Vehicle Safety Act, Federal Motor Vehicle Safety
Standards promulgated by the United States Department of Transportation and
various state motor vehicle regulatory agencies.
Environmental Regulations
The operation of the Company's businesses are subject to a variety of
federal, state and local requirements which regulate health, safety, the
environment, zoning and land-use. Operating and other permits are generally
required for landfills, certain waste collection vehicles, fuel storage tanks
and other facilities owned or operated by the Company, and these permits are
subject to revocation, modification and renewal. Federal, state and local
regulations vary, but generally govern disposal activities and the location and
use of facilities and also impose restrictions to prohibit or minimize air and
water pollution. In addition, governmental authorities have the power to enforce
compliance with these regulations and to obtain injunctions or impose fines in
the case of violations, including criminal penalties. These regulations are
administered by the Environmental Protection Agency ("EPA") and various other
federal, state and local environmental, health and safety agencies and
authorities, including the Occupational Safety and Health Administration of the
U.S. Department of Labor ("OSHA").
The Company strives to conduct its operations in compliance with applicable
laws and regulations, but believes that in the existing climate of heightened
environmental concerns, companies in the waste management and environmental
services industry, including the Company, may from time to time be faced with
citations or notices from governmental authorities and the need to expend funds
for remedial work and related activities at landfills and other facilities. The
Company has established a reserve which it believes will be adequate to cover
any potential regulatory costs.
Federal Regulation. The following summarizes the primary environmental and
safety-related federal statutes of the United States of America affecting the
business of the Company:
(l) The Solid Waste Disposal Act ("SWDA") as amended by the Resource
Conservation and Recovery Act of 1976, as amended ("RCRA"). SWDA and its
implementing regulations establish a frame-work for regulating the
handling, transportation, treatment and disposal of hazardous and
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nonhazardous solid wastes, and require states to develop programs to ensure
the safe disposal of solid wastes in sanitary landfills.
Subtitle D of RCRA establishes a framework for regulating the disposal
of municipal solid wastes. Regulations under Subtitle D now include minimum
federal comprehensive solid waste management criteria and guidelines,
including location restrictions, facility design and operating criteria,
closure and post-closure requirements, financial assurance standards,
groundwater monitoring requirements and corrective action standards, many
of which have not commonly been in effect or enforced in the past in
connection with municipal solid waste landfills. Each state was required to
submit a permit program designed to implement Subtitle D regulations to the
EPA by April 9, 1993. These state permit programs may include landfill
requirements which are more stringent than those of Subtitle D. Some states
have not yet fully implemented permit programs pursuant to RCRA and
Subtitle D. Once a state has an approved permit program it is required to
review all existing landfill permits to ensure compliance with the new
regulations.
All of the Company's planned landfill expansions or new landfill
development projects have been engineered to meet or exceed Subtitle D
requirements. Operating and design criteria for existing operations have
been modified to comply with these new regulations. Compliance with the
Subtitle D regulations has resulted in increased costs and may in the
future require expenditures in addition to other costs normally associated
with the Company's waste management activities.
(2) The Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended ("CERCLA"). CERCLA, among other things,
provides for the cleanup of sites from which there is a release or
threatened release of a hazardous substance into the environment. CERCLA
imposes strict, joint and several liability for the costs of cleanup and
for damages to natural resources upon current owners and operators of the
site, parties who were owners or operators of the site at the time the
hazardous substances were disposed of, as well as parties who arranged for
disposal at the site. Under the authority of CERCLA and its implementing
regulations, detailed requirements apply to the manner and degree of
remediation of facilities and sites where hazardous substances have been or
are threatened to be released into the environment. CERCLA liability is not
dependent upon the existence or disposal of "hazardous wastes" but can also
be based upon the existence of small quantities of more than 700
"substances" characterized by the EPA as "hazardous", many of which may be
found in common household waste.
Among other things, CERCLA authorizes the federal government either to
remediate sites at which hazardous substances were disposed of any have
been or are threatened to be released into the environment, or to order (or
offer an opportunity to) persons potentially liable for the cleanup of the
hazardous substances to do so. In addition, CERCLA requires the EPA to
establish a National Priorities List ("NPL") of sites at which hazardous
substances have been or are threatened to be released and which require
investigation or cleanup.
Liability under CERCLA is not dependent upon the intentional disposal
of hazardous wastes. It can be founded upon the release or threatened
release, even as a result of unintentional and non-negligent action, of
thousands of hazardous substances, including very small quantities of such
substances. More than 20% of the sites on the NPL are solid waste landfills
which ostensibly never received any hazardous wastes. Thus, even if the
Company's landfills have never received hazardous wastes as such, it is
possible that one or more hazardous substances may have come to be located
or "released" at its landfills or at other properties which the Company may
have owned or operated. The Company could thus be liable under CERCLA for
the cost of cleaning up such hazardous substances at the sites and for
damages to natural resources, even if those substances were deposited at
the Company's facilities before the Company acquired or operated them. As
is the case with automotive dealerships and vehicle rental operations
generally, and service, parts and body shop operations in particular, the
Company's automotive businesses involve the use, handling, storage,
manifesting and contracting for recycling or disposal of hazardous or toxic
substances or waste, including environmentally sensitive materials such as
motor oil, waste motor oil and filters, transmission fluid, antifreezes,
freon, waste paint and lacquer thinner, batteries, solvents, lubricants,
degreasing agents, gasoline and diesel fuels. The costs of a CERCLA
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cleanup can be very expensive. Given the difficulty of obtaining insurance
for environmental impairment liability, such liability could have a
material impact on the Company's business and financial condition. For a
further discussion, see "-- Liability Insurance and Bonding."
(3) The Federal Water Pollution Control Act of 1972 (the "Clean Water
Act"). The Clean Water Act regulates the discharge of pollutants from a
variety of sources, including solid waste disposal sites, into streams,
rivers and other waters. Point source runoff from the Company's landfills
and transfer stations that is discharged into surface waters must be
covered by discharge permits, that generally require the Company to conduct
sampling and monitoring and, under certain circumstances, reduce the
quantity of pollutants in those discharges. Storm water discharge
regulations under the Clean Water Act require a permit for certain
construction activities, which may affect the Company's operations. If a
landfill or transfer station discharges wastewater through a sewage system
to a publicly-owned treatment works ("POTW"), the facility must comply with
discharge limits imposed by the POTW. In addition, states may adopt
groundwater protection programs under the Clean Water Act or Safe Drinking
Water Act that could affect solid waste landfills. Furthermore, development
which alters or affects "wetlands" must generally be permitted prior to
such development commencing, and certain mitigation requirements may be
required by the permitting agencies.
(4) The Clean Air Act. The Clean Air Act imposes limitations on
emissions from various sources, including landfills. On March 12, 1996, the
EPA enacted rules which require large municipal solid waste landfills to
install landfill gas monitoring systems. These EPA regulations apply to
landfills which have been operating since November 8, 1987, and which can
accommodate 2.5 million cubic meters or more of municipal solid waste. The
regulations apply whether the landfill is active or closed. The date by
which each affected landfill must have the required gas collection and
control system is dependent upon the adoption of state regulations and the
date EPA approves the state program. Many state regulatory agencies
currently require monitoring systems for the collection and control of
landfill gas. Compliance with the new EPA regulations is not expected to
have a material effect on the Company.
(5) The Occupational Safety and Health Act of 1970 (the "OSH
Act"). The OSH Act authorizes OSHA to promulgate occupational safety and
health standards. Various of these standards, including standards for
notices of hazardous chemicals and the handling of asbestos, apply to the
Company's operations.
State Regulation. Each state in which the Company operates has its own
laws and regulations governing solid waste disposal, water and air pollution
and, in most cases, releases and cleanup of hazardous substances and liability
for such matters. The states also have adopted regulations governing the design,
operation, maintenance and closure of landfills and transfer stations. The
Company's facilities and operations are likely to be subject to these types of
requirements. In addition, the Company's solid waste collection and landfill
operations may be affected by the trend in many states toward requiring the
development of waste reduction and recycling programs. For example, several
states have enacted laws that require counties or municipalities to adopt
comprehensive plans to reduce, through waste planning, composting, recycling or
other programs, the volume of solid waste deposited in landfills. Additionally,
laws and regulations restricting the disposal of certain wastes, including yard
waste, newspapers, beverage containers, unshredded tires, lead-acid batteries
and household appliances, in solid waste landfills have been promulgated in
several states and are being considered in others. Legislative and regulatory
measures to mandate or encourage waste reduction at the source and waste
recycling also are under consideration by Congress and the EPA.
In order to construct, expand and operate a landfill, one or more
construction or operating permits, as well as zoning approvals, must be
obtained. These are difficult and time-consuming to obtain, are often opposed by
neighboring landowners and citizens' groups, may be subject to periodic renewal
and are subject to modification and revocation by the issuing agency. In
connection with the Company's acquisition of existing landfills, it may be
necessary to expend considerable time, effort and money to bring the acquired
facilities into compliance with applicable requirements and to obtain the
permits and approvals necessary to increase their capacity.
Many of the Company's facilities own and operate underground storage tanks
("USTs") which are generally used to store petroleum based products. USTs are
generally subject to federal, state and local laws
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and regulations which mandate periodic testing, upgrading, closure and removal
of UST's and which, in the event of leaks from USTs, require that polluted
groundwater and soils be remediated. The Company has a number of USTs which,
under federal regulations, will have to be upgraded, removed or closed in place
by December 31, 1998. The exact nature and extent of associated costs cannot be
assessed until the Company has conducted soil or groundwater testing in
connection with the upgrading, removal and/or closure of the USTs. If USTs owned
or operated by the Company leak, and such leakage migrates onto the property of
others, the Company could be subject to civil liability for response costs and
other damages to third parties. Compliance with regulations related to USTs is
not expected to have a material adverse affect on the Company.
Finally, with regard to its solid waste transportation operations, the
Company is subject to the jurisdiction of the Interstate Commerce Commission and
is regulated by the Federal Highway Administration, Office of Motor Carriers and
by regulatory agencies in each state. Various states have enacted, or are
considering enacting, laws and regulations that would restrict the interstate
transportation and processing of solid waste. In 1978, the United States Supreme
Court held similar laws and regulations unconstitutional, however, states have
attempted to distinguish proposed laws and regulations from the laws and
regulations involved in that ruling. In May 1994, the Supreme Court ruled that
state and local flow control laws and ordinances (which attempt to restrict
waste from leaving its place of generation) were an impermissible burden on
interstate commerce, and therefore, were unconstitutional. In response to these
Supreme Court rulings, Congress has considered passing legislation authorizing
states and local governments to restrict the free movement of solid waste in
interstate commerce. If federal legislation authorizing state and local
governments to restrict the free movement of solid waste in interstate commerce
is enacted, such legislation could adversely affect the Company's solid waste
collection, transportation and disposal operations.
COMPETITION
All of the Company's businesses operate in highly competitive industries.
In addition, all of such industries are changing as a result of rapid
consolidation. Entry into any of the Company's lines of business and the ability
to operate profitably in such industries requires substantial amounts of capital
and managerial experience.
Competition in the Automotive Retail Industry. According to NADA,
Automotive News and reports of various financial analysts, the automotive retail
industry is served by over 22,000 franchised automotive dealerships, most of
which also have significant used vehicle retail operations, by an additional
56,000 independent used vehicle dealers, and by individual consumers who sell
used vehicles in casual private transactions primarily through classified ads
and by word of mouth. In addition to the Company, several other companies
attempting to establish national automotive retail chains with significant used
vehicle operations have recently conducted initial public offerings of their
securities, with proceeds generally targeted to be used for acquisitions of
automotive dealerships. The Company believes that the principal competitive
factors in the automotive retail business are price, service, location,
availability of vehicles and warranties.
Competition in the Automotive Rental Industry. The automotive rental
industry is characterized by intense price and service competition. In any given
location, the Company's vehicle rental business may encounter competition from
national, regional and local vehicle rental companies. The Company's main
domestic competitors in the business and leisure travel markets are Avis, Inc.,
Budget Rent A Car Corporation, The Hertz Corporation, and, in certain locations,
Dollar Rent A Car and, in the local/replacement vehicle rental market, those
companies and Enterprise Rent-A-Car Company. In Europe and other foreign
markets, the Company's vehicle rental business competes with the companies
listed above, as well as with their international affiliates and licensees and
other national and local vehicle rental companies. At times, the major vehicle
rental companies have been adversely affected by industry-wide price pressures,
and the Company's vehicle rental business has, on such occasions, priced its
product in response to such pressures. Moreover, at times when the vehicle
rental industry has experienced vehicle oversupply, there has been intensified
competitive pressure. This oversupply has had a negative impact on the
industry's ability to raise rental rates. The Company's vehicle rental business
has taken steps to address its fixed cost structure to improve its overall
competitive position; however, future oversupply or other factors affecting
competition could still adversely affect the Company's business, financial
condition and future prospects.
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Competition in the Solid Waste Industry. Competition in the solid waste
industry comes from a number of large national companies including Waste
Management, Inc., Browning-Ferris Industries, Inc. and USA Waste Services, Inc.
as well as numerous regional solid waste companies, some of which are also
engaging in aggressive acquisition strategies. Some of the Company's competitors
have significantly larger operations than the Company. In each market in which
it owns or operates a landfill, the Company competes for landfill business on
the basis of disposal fees (commonly known as "tipping fees"), geographical
location and quality of operations. The Company's ability to obtain landfill
business may be limited by the fact that some major collection companies also
own or operate landfills to which they send their waste. Further, alternatives
to landfill disposal (such as recycling, composting and incinerating) are
increasingly competing with landfills. There also has been an increasing trend
at the state and local levels to mandate waste reduction at the source and to
prohibit the disposal of certain types of wastes, such as yard wastes, at
landfills. This may result in the volume of waste going to landfills being
reduced in certain areas, which may affect the Company's ability to operate its
landfills at their full capacity and/or affect the prices that can be charged
for landfill disposal services. In addition, most of the states in which the
Company operates landfills have adopted plans or requirements which set goals
for specified percentages of certain solid waste items to be recycled. In
addition to national and regional firms and numerous local companies, the
Company may compete with those municipalities that maintain waste collection or
disposal operations. These municipalities may have financial advantages due to
the availability of tax revenues and tax-exempt financing. The Company competes
for collection accounts primarily on the basis of price and the quality of its
services. From time to time, competitors may reduce the price of their services
in an effort to expand market share or to win a competitively bid municipal
contract.
LIABILITY INSURANCE AND BONDING
General
The nature of the Company's solid waste services business, automotive
rental business and automotive retail business exposes it to the risk of
liabilities arising out of its operations. Such potential liabilities could
involve, for example, claims for remediation costs, personal injury, property
damage, and damage to the environment in cases where the Company may be held
responsible for the escape of harmful materials; claims of employees, customers
or third parties for personal injury or property damage occurring in the course
of the Company's operations; or claims alleging negligence or professional
errors and omissions in the planning or performance of work. The Company could
also be subject to fines and civil and criminal penalties in connection with
alleged violations of regulatory requirements.
The Company either purchases commercial insurance or is a qualified self
insurer for automobile liability, general liability, workers compensation and
employer's liability claims. The Company retains up to $1 million of risk per
claim, plus claims handling expense under its various liability insurance
programs for third party property damage and bodily injury claims, primarily
relating to claims arising from the Company's automotive rental operations.
Umbrella liability insurance is purchased to provide insurance in excess of the
primary insurance policy and/or retained losses. Additionally, the Company
purchases property insurance subject to a $100,000 loss retention. The level of
risk retained by the Company may change in the future as insurance market
conditions or other factors affecting the economics of the Company's insurance
purchasing change. Although the Company strives to operate safely and prudently
and has, subject to certain limitations and exclusions, substantial liability
insurance, no assurance can be given that the Company will not be exposed to
uninsured liabilities which could have a material adverse effect on its
financial condition.
Provisions for retained or self insured claims are made by charges to
expense based upon periodic evaluations of the estimated ultimate liabilities on
reported and unreported claims. At December 31, 1997, the Company's consolidated
liability was estimated at $297.2 million against which the Company provides
approximately $115.5 million of collateral to insurance companies in the form of
letters of credit and surety bonds. The Company's collateral requirements are
set by insurance companies which underwrite the Company's insurance programs.
The Company's collateral requirements may change from time to time, based on,
among other things, the Company's claims experience.
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In the normal course of business, the Company may be required to post a
performance bond or a bank letter of credit in connection with municipal
residential collection contracts, the operation, closure or post-closure of
landfills, certain remediation contracts, certain environmental permits, and
certain business licenses and permits. Bonds issued by surety companies operate
as a financial guarantee of the Company's performance. To date, the Company has
satisfied financial responsibility requirements by making cash deposits,
obtaining bank letters of credit or by obtaining surety bonds.
Solid Waste Services
The nature of the Company's solid waste services business exposes it to the
risk of liability for damages arising out of its operations, including possible
damages to the environment. Because of the nature and scope of the possible
environmental damages, liabilities imposed in environmental litigation can be
significant. The majority of the Company's solid waste operations have third
party environmental liability insurance, subject to certain limitations and
exclusions, with limits in excess of those required by permit regulations;
however, there is no assurance that such limits would be adequate in the event
of a major loss, nor is there assurance that the Company would continue to carry
environmental liability insurance should market conditions in the insurance
industry make such coverage costs prohibitive.
Automotive Rental
The nature of the Company's automobile rental business exposes it to
significant risk of liability for damages arising primarily out of accidents
involving automobiles rented from the Company's vehicle rental fleet. Some
states impose vicarious liability on the Company which increases the Company's
risk. The Company manages its exposure through a combination of qualified self
insurance and risk transfer to insurance companies, subject to the risk
retention levels discussed in the preceding "General" section, which are rated
as financially sound by insurance rating agencies. The Company carries
substantial limits of liability coverage, but there is no assurance that
catastrophic losses might not exceed such limits.
Automotive Retail
The nature of the Company's automotive retail business exposes it to the
risk of liability for damages arising out of its operations. Additionally, this
industry segment has substantial risk of property loss due to the significant
concentration of property values at the Company's automotive retail locations.
Accordingly, the Company has purchased liability and property insurance as
discussed in the preceding "General" section.
EMPLOYEES
As of January 29, 1998, the Company employed approximately 56,000 full time
employees, approximately 4,000 of whom were covered by collective bargaining
agreements. The management of the Company believes that it has good relations
with its employees.
SEASONALITY
The Company's automotive retail operations generally experience higher
volumes of vehicle sales in the second and third quarters of each year due in
part to manufacturer incentives and consumer buying trends.
The Company's automotive rental operations and particularly the leisure
travel segment is highly seasonal. In these operations, the third quarter, which
includes the peak summer travel months, has historically been the strongest
quarter of the year. During the peak season, the Company increases its vehicle
rental fleet and workforce to accommodate increased rental activity. As a
result, any occurrence that disrupts travel patterns during the summer period
could have a material adverse effect on the annual performance of this segment.
The first and fourth quarters for the Company's automotive rental operations are
generally the weakest, when there is limited leisure travel and a greater
potential for adverse weather conditions. Many of the operating expenses such as
rent, general insurance and administrative personnel are fixed and cannot be
reduced during periods of decreased vehicle rental demand.
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TRADEMARKS
The Company, through its automotive retail operations, owns a number of
registered service marks and trademarks and also has a number of applications
pending to register, among other marks, "AUTONATION USA(SM)," "THE BETTER WAY TO
BUY A CAR(SM)" and "AMERICA'S BEST AUTOMOTIVE VALUE(SM)."
Pursuant to its franchise agreements, the Company has the non-exclusive
right to use and display vehicle manufacturers' trademarks, service marks and
designs in the form and manner approved by the applicable manufacturers at its
franchised automotive dealerships.
The Company, through its automotive rental operations, owns a number of
registered trademarks and service marks, including "ALAMO(R)", "ALAMO
EXPRESS(R)", "NATIONAL CAR RENTAL(R)" and "EMERALD CLUB"(R) and also has a
number of applications pending to register, among other marks, "JUST ASK
ALAMO(SM)", "QUICKSILVER(SM)", "TRAVEL SMART(SM)" and "CARTEMPS USA(SM)".
The current registrations of the Company's service marks and trademarks in
the United States and foreign countries are effective for varying periods of
time, and may be renewed periodically provided that the registered owner
complies with all applicable laws. For a description of certain challenges to
the Company's marks, See "ITEM 3. LEGAL AND ADMINISTRATIVE PROCEEDINGS."
RISK FACTORS
The businesses, financial condition, results of operations and future
prospects of the Company, and the prevailing market price and performance of the
Company's Common Stock, may be adversely affected by a number of factors,
including the matters discussed below. Certain statements and information
contained throughout this report on Form 10-K constitute "forward-looking
statements" within the meaning of the Federal Private Securities Litigation
Reform Act of 1995. Such forward-looking statements generally can be identified
by the use of terms such as "may," "will," "should," "expect," "anticipate,"
"estimate" or "continue" or variations thereof, or the use of such terms in the
negative, or words of similar import in the context presented. Such
forward-looking statements involve known and unknown risks, uncertainties and
other factors which may cause the actual results, performance, or achievements
of the Company to be materially different from any future results, performance,
or achievements, expressed or implied, by such forward-looking statements. Such
risks, uncertainties and other factors include, among other things:
Risks of Rapid Expansion in Automotive Retail Business. The Company has
rapidly expanded and anticipates that it will continue to rapidly expand its
operations in automotive retail and related businesses through acquisitions of
franchised automotive dealerships and the development of AutoNation USA
megastores. The success of the Company's aggressive expansion plans in the
automotive retail industry is dependent on a number of factors including, but
not limited to, economic conditions, competitive environment, adequate capital,
proper site selection, construction schedules, supply of new and used vehicles,
consumer acceptance of the megastore concept in automotive retailing, vehicle
manufacturers' approval and control over dealership franchises, and the building
of brand recognition. Additionally, as the Company opens new AutoNation USA
megastores and reconditioning centers, such operations will incur fixed
operating and administrative costs immediately while revenue volume will tend to
grow more gradually. There can be no assurance that the Company will be
successful in the automotive retail industry or in any related automotive
industries it enters.
Need for Substantial Additional Capital. Additional capital will be
necessary to continue the Company's rapid expansion in its capital intensive
lines of business and to fully capitalize on acquisition and expansion
opportunities that may become available to the Company. There can be no
assurance that sufficient financing will be available on a timely basis, if at
all, or on terms acceptable to the Company. In the event that financing is not
available or is not available in the amounts or on terms acceptable to the
Company, the implementation of the Company's business strategy could be impeded
and the Company's ability to react to changes in the industries in which it does
business could be limited. This could have a material adverse effect on the
Company's business, financial condition and future prospects.
Risks of Acquisition Strategy and Uncertainties in Integrating Operations
and Achieving Cost Savings. The Company has an aggressive acquisition strategy
that has involved, and is expected to continue to involve,
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the acquisition of a significant number of companies. There can be no assurance,
however, that significant acquisitions will continue to occur at the same pace
or be available to the Company on favorable terms, if at all. Many of the
companies that the Company recently has acquired and companies that the Company
may acquire, are large enterprises with operations in different markets. The
success of any business combination is in part dependent on management's ability
following the transaction to consolidate operations, integrate departments,
systems and procedures and thereby obtain business efficiencies, economies of
scale and related cost savings. The challenges posed to the Company's management
may be particularly significant because integrating the recently acquired
companies must be addressed contemporaneously. There can be no assurance that
future consolidated results will improve as a result of cost savings and
efficiencies from any such acquisitions or proposed acquisitions, or as to the
timing or extent to which cost savings and efficiencies will be achieved.
Dependence on and Restrictions Imposed by Vehicle Manufacturers.
Automotive dealerships operate pursuant to franchise agreements with vehicle
manufacturers. In connection with the Company's acquisition of franchised
automotive dealerships, prior approval of the applicable vehicle manufacturer
may be required under the franchise agreement of each franchised automotive
dealership to be acquired, subject to state laws protecting a franchisee's right
to transfer such franchise. Although the Company has established framework
agreements with certain manufacturers to facilitate the acquisition of
dealerships operating their franchises, no assurance can be given that such
manufacturers or any other manufacturers will approve any particular franchised
automotive dealership acquisition by the Company or will not otherwise seek to
impose restrictions on the Company's future acquisitions, operations or capital
structure as a condition to granting such approval. Moreover, with respect to
certain brands of vehicles, the Company has negotiated certain limits on the
number of dealerships which the Company may acquire based upon either the
manufacturer's total sales revenue or a fixed number of dealerships. The Company
will approach such limits as it continues to expand. No assurance can be given
that the Company's growth strategy will be unaffected by such limits. In
addition, once the Company has acquired a franchised automotive dealership, the
Company must operate the dealership in accordance with the applicable franchise
agreement and in some cases, a framework agreement. Such agreements generally
provide the manufacturers with considerable influence over the operations of the
dealership and generally provide for termination of the franchise agreement for
a variety of causes. Finally, the success of any franchised automotive
dealership is dependent, to a large extent, on the success of the vehicle
manufacturer. Therefore, the success of the Company's automotive dealerships is
dependent on the financial condition, management, marketing, production and
distribution capabilities of the vehicle manufacturers of which the Company
holds franchises. Any event that may have a material adverse effect on a vehicle
manufacturer, such as labor strikes or adverse publicity, may have a material
adverse effect on the Company's business, financial condition and future
prospects.
Cost of Vehicle Rental Fleet. Fleet cost is the single largest expense of
the Company's automotive rental business, and it is materially affected by
vehicle manufacturers' Repurchase Programs. Repurchase prices under Repurchase
Programs are based on either (i) a predetermined percentage of a vehicle's
original capitalized cost and the month in which the vehicle is returned or (ii)
the original capitalized cost less a set monthly depreciation amount. Repurchase
Programs limit the risk of market value decline at the time of vehicle
disposition and enable vehicle rental companies to accurately project their
vehicle depreciation expense. The Company currently has Repurchase Programs with
General Motors and, to a lesser extent, with several other vehicle
manufacturers. During model year 1997, the Company purchased substantially all
of its U.S. vehicle rental fleet for Alamo and National and a majority of its
European vehicle rental fleet under Repurchase Programs. If vehicle
manufacturers reduce the number of vehicles available to vehicle rental
companies through Repurchase Programs, eliminate Repurchase Programs or increase
vehicle costs, there can be no assurance that the Company will be able to
control its rental fleet costs or selection, or to pass on any increases in
vehicle cost to rental customers. This could have a material adverse effect on
the Company's business, financial condition and future prospects.
Dependence on Vehicle Manufacturer's Credit. The Company's automotive
rental business depends upon debt financing for the purchase of revenue earning
vehicles for the Company's vehicle rental fleet. Since a substantial portion of
such financing is incurred in connection with major vehicle manufacturers'
Repurchase
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Programs, a significant change in the financial conditions of the vehicle
manufacturers, particularly General Motors, impairing their ability to
repurchase vehicles or their investment grade rating could significantly affect
the Company's ability to obtain such financing on as favorable terms. This could
have a material adverse effect on the Company's business, financial condition
and future prospects.
Dependence on Principal Vehicle Rental Fleet Supplier. General Motors has
been the principal supplier of rental vehicles to the Company. Under the terms
of the Company's Repurchase Programs with General Motors, the Company's vehicle
rental fleets must consist of specified minimum percentages of General Motors
vehicles (at least 51% for Alamo and at least 85% for National) during model
years 1996 through 2000 in order to receive certain discounts and other
incentives. Given the volume of vehicles purchased from General Motors, shifting
significant portions of the fleet purchases to other manufacturers would require
significant lead time. As a result, if General Motors were unable to supply the
Company with the planned number and type of rental vehicles, it could have a
material adverse effect on the Company's business, financial condition and
future prospects.
Regulation of Collision Damage Waivers and Other Vehicle Rental Related
Products. Adoption of national or additional state legislation limiting or
eliminating the sale or capping the rates of collision damage waivers, which
constitute a significant percentage of the Company's revenue from automotive
rental operations, could further restrict sales of this product. Also,
legislation imposing additional limitations on potential customer liability or
on the sale of other rental related products could increase the Company's costs
or decrease the Company's revenue in its vehicle rental business.
Loss of Airport Concessions. Certain vehicle rental competitors have on
occasion made objections to various airport authorities that, because Alamo and
National are commonly owned and share a number of back office functions, they
should not both be allowed to bid for or maintain airport concession agreements
in the same airport. No United States airport has accepted this position. Should
an airport take this position, it could prevent either Alamo or National from
doing business at that airport. This would most likely result in a decrease in
the Company's revenue from its automotive rental operations.
Seasonality; Dependence on Travel Industry and Fuel Supply. The Company's
automotive rental operations and particularly the leisure travel segment is
highly seasonal. In these operations, the third quarter, which includes the peak
summer travel months, has historically been the strongest quarter of the year.
During the peak season, the Company increases its rental fleet and workforce to
accommodate increased rental activity. As a result, any occurrence that disrupts
travel patterns during the summer period could have a material adverse effect on
the annual performance of this segment. The first and fourth quarters for the
Company's automotive rental operations are generally the weakest, when there is
limited leisure travel and a greater potential for adverse weather conditions.
Many of the operating expenses such as rent, general insurance and
administrative personnel are fixed and cannot be reduced during periods of
decreased rental demand. There can be no assurance that protracted periods of
inclement weather, decrease in air travel or any other occurrences that disrupt
travel patterns, disruption of fuel supplies or increases in fuel prices will
not have a material adverse effect on the Company's businesses and financial
condition.
Interest Rates and Restrictive Covenants. A substantial portion of the
Company's outstanding indebtedness is at floating interest rates. At times, the
Company uses interest rate swaps to manage the risk of interest rate
fluctuations. However, a substantial increase in interest rates could adversely
affect the Company's cost of indebtedness for borrowed money. In addition, most
of the Company's debt instruments contain covenants establishing certain
financial and operating restrictions. A failure to comply with any covenant or
any obligation contained in any credit agreement could result in an event of
default which could accelerate debt under certain other credit agreements.
Environmental Regulation. It may be necessary to expend considerable time,
effort and money to keep the Company's existing or acquired facilities in
compliance with applicable federal, state and local requirements which regulate
health, safety, environment, zoning and land use, and as to which there may not
be adequate insurance coverages or reserves. In addition, certain of the
Company's waste disposal operations that traverse state boundaries could be
adversely affected if the federal government or the state in which a landfill is
located limits or prohibits, imposes discriminatory fees on or otherwise seeks
to discourage the disposal,
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within state boundaries, of waste collected outside of the state. If
environmental laws become more stringent, the Company's environmental capital
expenditures and costs for environmental compliance may increase in the future.
In addition, due to the possibility of unanticipated factual or regulatory
developments, the amounts and timing of future environmental expenditures could
vary substantially from those currently anticipated.
Risks of Legal Proceedings. The Company generally will continue to be
involved in legal proceedings in the ordinary course of business. Citizen's
groups have become increasingly active in challenging the grant or renewal of
permits and licenses for landfills and other waste facilities, as well as for
automotive retail megastores and related facilities, and responding to such
challenges has further increased the costs associated with establishing new
facilities or expanding current facilities. A significant judgment against the
Company, the loss of a significant permit or license or the imposition of a
significant fine could have a material adverse effect on the Company's business,
financial condition and future prospects. The Company has been engaged in legal
and administrative proceedings in several states arising out of certain vehicle
manufacturers' attempts to limit the number and timing of the Company's
acquisitions of franchised automotive dealerships. The Company is also currently
a party to various other administrative and legal proceedings, particularly in
its automotive rental business, which have arisen in the ordinary course of its
business. See also "ITEM 3. LEGAL AND ADMINISTRATIVE PROCEEDINGS." No assurance
can be given with respect to the outcome of these administrative and legal
proceedings and the effect such outcomes may have on the Company.
Competitive Environment. All of the Company's businesses operate in highly
competitive environments. In addition, the solid waste industry and the
automotive retail industry are each changing as a result of rapid consolidation.
The future success of the Company will be affected by such changes, the nature
of which cannot be forecast with certainty. There can be no assurance that such
developments will not create additional competitive pressures on some or all of
the Company's businesses.
Possible Depressing Effect of Future Sales of Common Stock. As of the date
hereof, the Company has registered for sale, from time to time on a continuous
basis under several shelf registration statements, by certain selling
stockholders, an aggregate of approximately 345.2 million shares of Common
Stock. Although many of these shares have been sold, future sales of such shares
not yet sold, or the perception that such sales could occur, could adversely
affect the market price of Common Stock. There can be no assurance as to when,
and how many of, such shares will be sold and the effect such sales may have on
the market price of Common Stock. In addition, the Company intends to continue
to issue Common Stock in connection with certain of its acquisitions and in
other transactions. Such securities may be subject to resale restrictions in
accordance with the Securities Act and the regulations promulgated thereunder.
As such restrictions lapse or if such shares are registered for sale to the
public, such securities may be sold to the public. To facilitate the issuance of
shares of Common Stock in connection with acquisitions, since December 1996 the
Company registered an additional 91 million shares of Common Stock pursuant to
two acquisition shelf registration statements, under which an aggregate of
approximately 34.2 million shares have been issued as of February 1998. In the
event of the issuance and subsequent resale of a substantial number of shares of
Common Stock, or a perception that such sales could occur, there could be a
material adverse effect on the prevailing market price of Common Stock.
Dependence on Key Personnel. The Company's future success depends to a
significant extent on certain key executive officers, the loss of whom (whether
such loss is through resignation or other causes) could have a material adverse
effect on the Company's business and future prospects and the prevailing market
price of the Company's Common Stock.
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ITEM 2. PROPERTIES
INTRODUCTION
The Company's corporate headquarters are located in two office buildings in
downtown Fort Lauderdale, Florida, the Republic Tower and the Republic Plaza.
The Company owns, and occupies a substantial portion of, the Republic Tower
which consists of approximately 382,000 square feet of space; the remainder is
leased to third parties. The Republic Plaza consists of 165,110 square feet of
space, which is fully occupied by the Company. The Republic Plaza is one of the
properties leased by the Company under its operating lease credit facility.
Certain of the property and equipment of the Company and its subsidiaries are
subject to liens securing payment of portions of the Company's and its
subsidiaries' indebtedness. The Company and its subsidiaries also lease certain
of their offices and equipment. The Company believes that all of its facilities
are sufficient for its needs.
AUTOMOTIVE RETAIL
The Company's automotive retail operations own or lease approximately 164
sites in eighteen states, including franchised automotive dealerships,
AutoNation USA megastores and vehicle reconditioning centers. The Company
currently has 26 additional properties under construction or in the permitting
phase for AutoNation USA megastores and is in various stages of evaluating,
contracting and closing on 22 additional sites for such purpose.
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The following table lists by Automotive Retail District the automotive
retail properties owned or operated by the Company as of February 5, 1997:
SOUTH FLORIDA DISTRICT
FRANCHISED DEALERSHIPS
Steve Moore Chevrolet/
Cadillac/Buick/Oldsmobile 1700 E. Palm Beach Road, Belle Glade,
FL
Fronrath Chrysler-Plymouth
Jeep 4250 N. State Road 7, Coconut Creek,
FL
Steve Moore Chevrolet Delray 310 S.E. 6th Avenue, Delray Beach, FL
Wallace Dodge I-95 and Linton Blvd., Delray Beach,
FL
Wallace Ford I-95 and Linton Blvd., Delray Beach,
FL
Wallace Nissan I-95 and Linton Blvd., Delray Beach,
FL
Maroone Chevrolet 1300 N. Federal Highway, Ft.
Lauderdale, FL
Maroone Ford 1333 N. Federal Highway, Ft.
Lauderdale, FL
Steve Moore Chevrolet 5757 Lake Worth Road, Greenacres, FL
Hollywood Honda 1450 N. State Road 7, Hollywood, FL
Hollywood Kia 1350 N. State Road 7, Hollywood, FL
Hollywood Nissan Chevrolet 1640 S. State Road 7, Hollywood, FL
Wallace Lincoln-Mercury 3626 Northlake Boulevard, Lake Park,
FL
Mullinax Ford South 5401 W. Copans Road, Margate, FL
Anthony Abraham Chevrolet 4181 SW 8th Street, Miami, FL
Central Hyundai/Kia 3199 N.W. 36th Street, Miami, FL
Kendall Kia 17120 S. Dixie Highway, Miami, FL
Kendall Toyota 10943 S. Dixie Highway, Miami, FL
Lexus of Kendall 10943 S. Dixie Highway, Miami, FL
Maroone Dodge 21151 N.W. 2nd Avenue, Miami, FL
Miami Honda 3100 N.W. 36th Street, Miami, FL
Sunshine Ford 16800 N.W. 57th Ave., Miami, FL
Maroone Chevrolet 8600 Pines Boulevard, Pembroke Pines,
FL
Maroone Oldsmobile/Isuzu 8600 Pines Boulevard, Pembroke Pines,
FL
Maroone Dodge Pompano 2300 N. Federal Highway, Pompano, FL
Wallace Stuart
Lincoln-Mercury 3801 S.E. Federal Highway, Stuart, FL
Wallace Stuart Mitsubishi 3801 S.E. Federal Highway, Stuart, FL
AUTONATION USA MEGASTORES
AutoNation USA 4401 West Sample Road, Coconut Creek,
FL
AutoNation USA 13601 Pines Boulevard, Pembroke
Pines, FL
AutoNation USA 17305 S. Dixie Hwy., Perrine, FL
NORTH FLORIDA DISTRICT
FRANCHISED DEALERSHIPS
Jim Quinlan
Ford/Lincoln-Mercury 7200 Broad Street, Brooksville, FL
Courtesy Buick 2725 S. Highway 17-92, Casselbury, FL
Carlisle Lincoln-Mercury 2085 Gulf-to-Bay Blvd., Clearwater,
FL
Jim Quinlan Chevrolet 15005 U.S. Highway 19 North,
Clearwater, FL
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Jim Quinlan Nissan 15005 U.S. Highway 19 North,
Clearwater, FL
Kenyon Dodge 19400 U.S. Highway 19 North,
Clearwater, FL
Lexus of Clearwater 27547 U.S. Highway 19 North,
Clearwater, FL
Lokey Honda/Isuzu 17275 U.S. Highway 19 North,
Clearwater, FL
Mike Shad
Chrysler-Plymouth/Jeep-Eagle 1736 Cassat Avenue, Jacksonville, FL
Mike Shad Ford 7700 Blanding Boulevard,
Jacksonville, FL
Orange Park Toyota 7897 Blanding Blvd., Jacksonville, FL
Sunrise Nissan of
Jacksonville 1810 Cassat Avenue, Jacksonville, FL
Courtesy Suzuki 2180 E. Irlo Bronson Mem. Hwy. 192,
Kissimmee, FL
Courtesy Kia 690 N. Highway 17-92, Longwood, FL
Courtesy's Magic Isuzu 690 N. Highway 17-92, Longwood, FL
Courtesy Pontiac/GMC 650 N. Highway 17-92, Longwood, FL
Courtesy Suzuki 690 N. Highway 17-92, Longwood, FL
Sunrise Nissan of Orange
Park 1565 Welly Road, Orange Park, FL
Courtesy Acura 8620 S. Orange Blossom Trail,
Orlando, FL
Courtesy Suzuki/South 8600 S. Orange Blossom Trail,
Orlando, FL
Sutherlin Toyota 8501 U.S. Highway 19 North, Pinellas
Park, FL
Coastal Cadillac 9929 U.S. Highway 19, Port Richey, FL
Carlisle Ford 2525 34th Street North, St.
Petersburg, FL
Anthony Abraham
Chevrolet/Geo 1700 East Hillsborough Ave., Tampa,
FL
Lexus of Tampa Bay 5852 Dale Mabry, Tampa, FL
AUTONATION USA MEGASTORES
AutoNation USA 13600 Icot Boulevard, Clearwater, FL
AutoNation USA 7155 Bonneval Road, Jacksonville, FL
AutoNation USA 4911 Wayside Drive, Sanford, FL
AutoNation USA 3738 Autoway Drive, Tampa, FL
SOUTHEAST DISTRICT
FRANCHISED DEALERSHIPS
Hoover Toyota 1595 Montgomery Highway, Birmingham,
AL
Lexus of Mobile 3040 South Government Blvd., Mobile,
AL
Springhill Toyota 3062 South Government Blvd., Mobile,
AL
Treadwell Ford 901 S. Beltine Highway, Mobile, AL
Treadwell Honda 3024 South Government Blvd., Mobile,
AL
Miller - Sutherlin
Automotive 902 North Martin Street, Pell City,
AL
Sutherlin Imports, Inc. 9295 Highway 5, Douglasville, GA
Sutherlin
Chrysler-Plymouth/Jeep-Eagle 1968 Thornton Road, Lithia Springs,
GA
Sutherlin Nissan of Lithia
Springs 811 Thornton Road, Lithia Springs, GA
Sutherlin Nissan of Marietta 925 Cobb Parkway, Marietta, GA
Hub Ford 6275 Lawrenceville Highway, Tucker,
GA
Gene Evans Ford 4355 Jonesboro Road, Union City, GA
Superior Nissan 9215 South Blvd., Charlotte, NC
Northside Nissan 7131 Rivers Avenue, Charleston, SC
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West Ashley Toyota 2100 Savannah Highway, Charleston, SC
West Side Honda 8809 Kingston Pike, Knoxville, TN
Courtesy Honda 2785 Mendenhall Road South, Memphis,
TN
Covington Pike Honda 1990 Covington Pike, Memphis, TN
Dobbs Bros. Lexus 2711 Mendenhall Road South, Memphis,
TN
Dobbs Bros.
Mazda/Buick/Mitsubishi 6400 Winchester Road, Memphis, TN
Dobbs Bros. Pontiac-GMC 2621 Mendenhall Road South, Memphis,
TN
Dobbs Ford 2515 Mt. Moriah Road, Memphis, TN
AUTONATION USA MEGASTORES
AutoNation USA 1555 Mansell Road, Alpharetta, GA
AutoNation USA 6850 Mount Zion Blvd., Morrow, GA
AutoNation USA 4550 Greer Circle, Stone Mountain, GA
SOUTH TEXAS DISTRICT
FRANCHISED DEALERSHIPS
Champion Ford, Inc. 14515 Auto Park Way, Houston, TX
Mike Hall Chevrolet 8100 South Highway 6, Houston, TX
Texan Lincoln-Mercury, Inc. 11411 FM 1960 West, Houston, TX
Texan Ford 20777 Katy Freeway, Katy, TX
AUTONATION USA MEGASTORES
AutoNation USA 12800 Gulf Freeway, Almeda, TX
AutoNation USA 17510 N. Expressway, Houston, TX
AutoNation USA 5611 UTSA Blvd., San Antonio, TX
AutoNation USA 12053 S.W. Freeway, Stafford, TX
NORTH TEXAS DISTRICT
FRANCHISED DEALERSHIPS
Bledsoe Dodge 1911 E. Division, Arlington, TX
Bankston Lincoln Mercury
Saab 4747 LBJ Freeway, Dallas, TX
Bankston Nissan of Dallas 13130 Preston Rd., Dallas TX
Bledsoe Dodge 12000 E. Northwest Hwy., Dallas, TX
Bledsoe Dodge - North 7100 Marvin D. Love Freeway, Dallas,
TX
Charlie Hillard Buick 5000 Bryant Irvin Road, Ft. Worth, TX
Charlie Hillard Ford 5000 Bryant Irvin Road, Ft. Worth, TX
Charlie Hillard Mazda 5000 Bryant Irvin Road, Ft. Worth, TX
Hillard Kia of Ft. Worth 5000 Bryant Irvin Road, Ft. Worth, TX
Lexus of Ft. Worth 5000 Bryant Irvin Road, Ft. Worth, TX
Bankston Ford of Frisco 2391 Preston Rd. at Hwy. 121, Frisco,
TX
Bankston Nissan of Irving 1500 E. Airport Freeway, Irving, TX
24
<PAGE> 27
Bankston Nissan of
Lewisville 1601 S. Stemmons, Lewisville, TX
Jack Sherman Buick 4100 West Wall Street, Midland, TX
Jack Sherman Chevrolet 4100 West Wall Street, Midland, TX
Jack Sherman Mazda 4100 West Wall Street, Midland, TX
AUTONATION USA MEGASTORES
AutoNation USA 11990 N. Central Expressway, Dallas
TX
AutoNation USA 2615 Interstate 20, Grand Prairie, TX
AutoNation USA 1251 E. Airport Freeway, Irving, TX
AutoNation USA 601 Waters Ridge, Lewisville, TX
SOUTHWEST DISTRICT
FRANCHISED DEALERSHIPS
Bell Dodge 1645 West Bell Road, Phoenix, AZ
Lou Grubb Chevrolet 2646 W Camelback Road, Phoenix, AZ
Lou Grubb Ford 8555 E. Frank Lloyd Wright Blvd.,
Scottsdale, AZ
Tempe Toyota 7970 South Autoplex Loop, Tempe, AZ
Desert Valley GMC 330 N. Gibson Road, Henderson, NV
Desert Buick GMC 6400 W. Sahara Avenue, Las Vegas, NV
Desert GMC East 3222 E. Sahara Avenue, Las Vegas, NV
Desert Lincoln-Mercury 5750 West Sahara Avenue, Las Vegas,
NV
AUTONATION USA MEGASTORES
AutoNation USA 7450 W. Orchid Lane, Chandler, AZ
AutoNation USA 1000 W. Warm Springs Road, Henderson,
NV
SOUTHERN CALIFORNIA DISTRICT
FRANCHISED DEALERSHIPS
Champion Chevrolet 707 N. Sepulveda Blvd., Manhattan
Beach, CA
Magic Ford 23920 Creekside Road, Valencia, CA
Valencia Lincoln-Mercury 24135 Creekside Road, Valencia, CA
AUTONATION USA MEGASTORES
AutoNation USA 9101 Research Drive, Irvine, CA
NORTHWEST DISTRICT
FRANCHISED DEALERSHIPS
Anderson Chevrolet -
Cupertino 20955-A Stevens Creek Blvd.,
Cupertino, CA
Anderson Chrysler-Plymouth 20955-B Stevens Creek Blvd.,
Cupertino, CA
Anderson Lexus 43690 Auto Mall Circle, Fremont, CA
Anderson Chevrolet - Los
Gatos 15600 Los Gatos Blvd., Los Gatos, CA
Anderson Cadillac-Oldsmobile 1300 El Camino Real, Menlo Park, CA
Anderson Chevrolet - Menlo
Park 300 El Camino Real, Menlo Park, CA
25
<PAGE> 28
Anderson Honda-Isuzu 1766 Embarcadero Road, Palo Alto, CA
BMW of Bellevue 13617 Northrop Way Northwest,
Bellevue, WA
Appleway Chevrolet-GEO 8500 E. Sprague Avenue, Spokane, WA
Appleway Mazda-Subaru-VW-Audi 10000 E. Sprague Avenue, Spokane, WA
Appleway Mitsubishi 8400 E. Sprague Avenue, Spokane, WA
Appleway Toyota 8600 E. Sprague Avenue, Spokane, WA
Lexus of Spokane 8520 E. Sprague Avenue, Spokane, WA
DENVER DISTRICT
FRANCHISED DEALERSHIPS
Emich Lincoln-Mercury, Inc. 100 Havana, Aurora, CO
Marshall Ford/Kia 3200 28th St., Boulder, CO
Marshall
Lincoln-Mercury/Mazda 2470 49th St., Boulder, CO
Chesrown Chevrolet 7300 N. Broadway, Denver, CO
Chesrown Collision Center 7420 N. Washington, Denver, CO
Chesrown's SW Dodge 7890 W. Tufts Ave., Denver, CO
Emich Chrysler-Plymouth 5001 S. Broadway, Englewood, CO
Emich Pontiac-Buick-GMC
Truck-Subaru 9899 East Arapahoe Road, Englewood,
CO
Emich Chrysler-Plymouth/
Jeep-Eagle 16300 West Colfax Avenue, Golden, CO
Emich Oldsmobile, Inc. 16400 West Colfax Avenue, Golden, CO
Emich Subaru West, Inc. 16401 West Colfax Avenue, Golden, CO
Emich Mitsubishi, Inc. 5700 West Colfax Avenue, Lakewood, CO
Emich Dodge, Inc. 5445 S. Broadway, Littleton, CO
Chesrown's Friendly Ford 3765 Wadsworth Blvd., Wheatridge, CO
NORTH/NORTHEAST DISTRICT
FRANCHISED DEALERSHIPS
Libertyville Toyota 1180 S. Milwaukee Avenue,
Libertyville, IL
Taylor Jeep Eagle 12000 Telegraph Road, Taylor, MI
Flemington
Chrysler/Plymouth/Dodge/
Jeep Eagle/Mazda Route 202 & Route 31, Flemington, NJ
Flemington Circle
Buick/GMC/Chevy/Isuzu Route 202 & Route 31, Flemington, NJ
Flemington Ford,
Lincoln-Mercury, Nissan Route 202 & Route 31, Flemington, NJ
Flemington Infiniti 204 US Highway 202 North, Flemington,
NJ
Flemington Mitsubishi Route 202 & Route 31, Flemington, NJ
Flemington Pontiac/Subaru 167 Route 31, Flemington, NJ
Flemington Porsche-Audi-VW-BMW Route 202 & Route 31, Flemington, NJ
Hunterdon BMW 1080 Route 22W, Lebanon, NJ
Land Rover Princeton 1125 U.S. Highway Route 206,
Princeton, NJ
Princeton Nassau
Ford/Lincoln-Mercury-Audi 902 Route 206, Princeton, NJ
Al Maroone Ford 4045 Transit Road, Williamsville, NY
26
<PAGE> 29
Ed Mullinax Ford 8000 Leavitt Road, Amherst, OH
Mullinax Lincoln-Mercury 1700 Pearl Road, Brunswick, OH
Mullinax Jeep-Eagle of
Mayfield 5930 Mayfield Road, Mayfield, OH
Mullinax Lincoln-Mercury of
Mayfield 5930 Mayfield Road, Mayfield, OH
Mullinax Ford North Canton 5600 Whipple Avenue, North Canton, OH
John Lance Ford 23775 Center Ridge Rd, Westlake, OH
Mullinax Ford East 28825 Euclid Avenue, Wickliffe, OH
AUTONATION USA MEGASTORES
AutoNation USA 9820 Kincaid Drive, Fishers, IN
AutoNation USA 39600 Ford Road, Canton, MI
AutoNation USA 36250 Van Dyke, Sterling Hts., MI
AutoNation USA 3725 Colonel Glenn Hwy., Beaver
Creek, OH
AutoNation USA 12105 Omniplex Court, Forest Park, OH
AUTOMOTIVE RENTAL
The Company owns or leases its vehicle rental facilities. The facilities
serving airport locations are located on airport property or near the airport in
locations convenient for bus transport of customers to the airport. Almost all
of the airport locations are leased from governmental authorities charged with
the operation of such airports under arrangements generally providing for either
the payment of a fixed rent or the payment of rent based on a percentage of
revenues at a location with a guaranteed annual minimum, while most of the
Company's other facility leases provide for fixed rental payments. The Company's
airport facility in each metropolitan area includes, in addition to concession
space, vehicle storage and maintenance areas, as well as rental and return
facilities. The typical airport facility leases are not necessarily coterminous
with the Company's local airport concession agreement. Most of the Company's
airport facility leases expire at varying times over the next ten years. Certain
of such leases also have purchase options at the end of their terms.
Alamo's corporate headquarters is located in and occupies a substantial
portion of the Company's headquarters in Fort Lauderdale, Florida. Alamo also
currently owns its car rental reservation and data center in Fort Lauderdale,
Florida and leases its reservation centers in Charlotte, North Carolina, Boca
Raton, Florida and Salt Lake City, Utah. The Fort Lauderdale reservation center
shares a 60,000 square foot facility which houses Alamo's fleet control and data
processing departments.
National owns its corporate headquarters facility in Minneapolis,
Minnesota, which consists of 327,353 square feet of space. National occupies a
substantial portion of such facility, with the remainder leased to non-Company
tenants. National occupies an 83,000 square foot service center in Charleston,
S.C., which houses a new state-of-the-art reservations center.
The Company's local/replacement vehicle rental division had approximately
312 locations in the United States at December 31, 1997. The real estate is
leased by either Spirit Rent-A-Car, Inc., Snappy Car Rental, Inc. or Alamo.
Spirit leases its headquarters facility in Solon, Ohio, which consists of
approximately 26,059 square feet.
27
<PAGE> 30
SOLID WASTE SERVICES
The following table provides certain information regarding the landfills
owned or operated by the Company as of December 31, 1997:
<TABLE>
<CAPTION>
UNUSED
TOTAL PERMITTED PERMITTED
LANDFILL NAME MARKETS SERVED ACREAGE ACREAGE ACREAGE
- ------------- -------------- ------- --------- ---------
<S> <C> <C> <C> <C>
Anderson................. Northern California 1,200 150 100
Apex..................... Las Vegas, Clark County, Nevada 2,340 1,233 1,153
Broadhurst Landfill...... Wayne County, Georgia 900 80 64
C&T Regional............. Rio Grande Valley, Texas 194 94 45
Charter Waste............ West Texas 396 300 270
City of Rotterdam........ Albany, New York 33 5 --
Cleveland Container...... Southwest North Carolina 183 34 --
CWI Florida (f/k/a
Schofield)............. Winter Haven, Florida 80 60 53
Dozit Landfill........... Union County, Kentucky 232 47 33
East Carolina Landfill... Bertie County, North Carolina 729 113 74
Epperson Landfill........ Grant County, Kentucky 704 100 58
Forest Lawn.............. Three Oaks, Michigan 387 126 48
Green Valley Landfill.... Greenup County, Kentucky 263 37 12
Holland Excavating....... DeLand, Florida 60 24 10
Laughlin................. Las Vegas, Clark County, Nevada 80 40 16
Los Mangos............... Alajuela, Costa Rica 41 16 --
Mid-State Landfill....... Bibb County, Georgia 792 73 73
National ServAll......... Fort Wayne, Indiana 519 204 158
Nine Mile Road........... Northeast Florida 154 19 5
Northeast Sanitary....... Eastover, South Carolina 73 42 15
Northwest Tennessee...... Union City, Tennessee 600 120 106
Oak Grove................ North Georgia 202 60 39
Ohio County Landfill..... Ohio County, Kentucky 908 179 143
Pepperhill............... Southeast South Carolina 37 22 17
Pine Ridge............... South Atlanta, Georgia 850 101 96
Pinellas................. Central Florida 733 478 200
Presidio................. West Texas 10 10 6
Republic/CSC............. North Central Texas 289 254 183
Republic/Alpine.......... Southwest Texas 96 85 63
Republic/Imperial........ Southern California 160 79 48
Republic/Maloy........... East Central Texas 389 270 204
Safety Lights............ Memphis, Tennessee 49 21 11
San Angelo............... West Texas 283 283 133
Southern Illinois
Regional............... DeSoto, Illinois 219 113 35
Springfield
Environmental.......... Mt. Vernon, Indiana 54 25 14
Taymouth................. Central Michigan 138 25 10
Tri-K Landfill........... Lincoln County, Kentucky 572 64 49
United Refuse............ Fort Wayne, Indiana 305 84 --
Upper Piedmont
Environmental.......... Central North Carolina 614 70 62
Uwharrie Landfill........ Montgomery County, North Carolina 905 58 49
Victory Environmental.... Terre Haute, Indiana 461 204 84
Wabash Valley............ Northeast Indiana 262 66 12
------ ----- -----
Total............................................. 17,496 5,468 3,751
====== ===== =====
</TABLE>
28
<PAGE> 31
ITEM 3. LEGAL AND ADMINISTRATIVE PROCEEDINGS
By letter dated January 11, 1996, Acme Commercial Corp. d/b/a CarMax, The
Auto Superstore, ("CarMax") accused AutoNation USA of infringing CarMax's
trademark rights by using the marks AutoNation USA and "The Better Way to Buy a
Car." AutoNation denied such allegations and on February 5, 1996, filed suit in
the U.S. District Court for the Southern District of Florida seeking a
declaratory judgment that its use and registration of such marks do not violate
any of the rights of CarMax. On or about October 11, 1996, CarMax filed a
counterclaim against AutoNation seeking damages and an order enjoining
AutoNation from using certain marks, including the marks AutoNation USA and "The
Better Way to Buy a Car." The case is expected to go to trial in the near
future. Although it is impossible to predict the outcome of this litigation, the
Company believes that AutoNation USA has a valid basis for its complaint and
that CarMax's allegations and counterclaims are without merit.
The Company is also a party to various other general corporate legal
proceedings which have arisen in the ordinary course of its business. While the
results of these matters, as well as matter described above, cannot be predicted
with certainty, the Company believes that losses, if any, resulting from the
ultimate resolution of these matters will not have a material adverse effect on
the Company's consolidated results of operations, cash flows or financial
position. However, unfavorable resolution of each matter individually or in the
aggregate could affect the consolidated results of operations or cash flows for
the quarterly periods in which they are resolved.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of the stockholders of the Company
during the fourth quarter of the fiscal year ended December 31, 1997.
29
<PAGE> 32
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER
MATTERS
MARKET INFORMATION, HOLDERS AND DIVIDENDS
Since June 20, 1997, the Company's Common Stock has been traded on the NYSE
under the symbol "RII." Prior to that date, the Common Stock was listed on the
Nasdaq Stock Market -- National Market ("NASDAQ") and traded under the symbol
"RWIN." The following table sets forth, for the periods indicated, the high and
low prices per share of the Common Stock as reported by the NYSE or by NASDAQ,
whichever is applicable. All prices presented herein have been adjusted to
reflect the two for one stock split in the form of a 100% stock dividend
distributed in June 1996.
<TABLE>
<CAPTION>
HIGH LOW
---- ----
<S> <C> <C> <C>
1996
First Quarter............................................... $ 17 15/16 $ 13 3/16
Second Quarter.............................................. 34 1/8 15
Third Quarter............................................... 31 19 1/4
Fourth Quarter.............................................. 34 5/8 27 3/8
1997
First Quarter............................................... 44 3/8 25 5/8
Second Quarter.............................................. 34 19 7/8
Third Quarter............................................... 33 1/8 21 7/8
Fourth Quarter.............................................. 36 19
</TABLE>
On March 25, 1998, the closing price of the Common Stock was $27.50 per
share as reported by the NYSE. On March 25, 1998, there were approximately 5,650
holders of record of the Common Stock.
Since December 1989, the Company has not declared or paid any cash
dividends on the Common Stock. The Company currently intends to retain its
earnings for future growth and, therefore, does not anticipate paying cash
dividends in the foreseeable future.
SALES OF UNREGISTERED SECURITIES DURING THE FOURTH QUARTER OF 1997
From time to time throughout the fourth quarter of 1997, the Company
issued, in reliance upon Section 4(2) of the Securities Act of 1933, as amended,
an aggregate of 102,666 shares of Common Stock to certain warrant holders in
connection with the exercise of warrants to purchase shares of Common Stock at
exercise prices ranging from $2.95 to $7.13 per share.
30
<PAGE> 33
ITEM 6. SELECTED FINANCIAL DATA
The following Selected Financial Data should be read in conjunction with
"ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS," the Company's Consolidated Financial Statements and Notes
thereto and other financial information included elsewhere in this Form 10-K.
<TABLE>
<CAPTION>
AS OF AND FOR THE YEARS ENDED DECEMBER 31,
--------------------------------------------------------------
1997 1996 1995 1994 1993
---------- ---------- ---------- ---------- ----------
(IN MILLIONS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
Revenue.............................. $ 10,305.6 $ 6,094.6 $ 4,526.9 $ 3,376.8 $ 2,695.3
Income from continuing
operations before extraordinary
charge............................. 200.2 7.4 38.3 48.5 37.8
Net income (loss).................... 439.7 (15.8) 18.1 47.1 12.2
Basic earnings (loss) per share:
Continuing operations.............. .50 .02 .16 .26 .21
Discontinued operations............ .59 .03 (.08) (.01) (.14)
Extraordinary charge............... -- (.10) -- -- --
Net income (loss).................. 1.09 (.05) .08 .25 .07
Diluted earnings (loss) per share:
Continuing operations.............. .46 .02 .15 .26 .21
Discontinued operations............ .56 .02 (.08) (.01) (.14)
Extraordinary charge............... -- (.09) -- -- --
Net income (loss).................. 1.02 (.05) .07 .25 .07
Total assets......................... 10,527.3 6,735.0 5,336.8 3,405.5 2,921.9
Revenue earning vehicle debt......... 4,172.1 3,380.4 2,961.2 1,829.2 1,509.1
Long-term debt, net of current
maturities......................... 370.9 393.6 329.7 298.9 265.2
Shareholders' equity................. 3,484.3 1,413.0 772.8 425.8 368.2
</TABLE>
See Notes 2, 4, 6, 10 and 11 of Notes to Consolidated Financial Statements
for discussion of business combinations, notes payable and long-term debt,
shareholders' equity, restructuring and other charges and discontinued
operations and their effect on comparability of year-to-year data. See "ITEM 5.
MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS" for a
discussion of the Company's dividend policy.
31
<PAGE> 34
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following discussion should be read in conjunction with the
Consolidated Financial Statements and Notes thereto of Republic Industries, Inc.
(the "Company") which are included elsewhere herein. The historical financial
statements of the Company have been restated to include the financial position
and results of operations of significant businesses acquired in 1997 and
accounted for under the pooling of interests method of accounting as if the
companies had operated as one entity since inception. All references to
historical share and per share data of the Company's common stock, par value
$.01 per share ("Common Stock"), have been retroactively adjusted to reflect the
two-for-one stock split that occurred in June 1996, which is more fully
described in Note 6, Shareholders' Equity, of Notes to Consolidated Financial
Statements.
In October 1997, the Company sold its electronic security services
division. Accordingly, the operating results and gain on disposition of the
electronic security services segment have been classified as discontinued
operations for all periods presented in the accompanying Consolidated Financial
Statements.
BUSINESS COMBINATIONS
The Company makes its decisions to acquire or invest in businesses based on
financial and strategic considerations.
Significant businesses acquired through December 31, 1997 and accounted for
under the pooling of interests method of accounting have been included
retroactively in the Consolidated Financial Statements as if the companies had
operated as one entity since inception. Businesses acquired through December 31,
1997 and accounted for under the purchase method of accounting are included in
the Consolidated Financial Statements from the date of acquisition.
During the year ended December 31, 1997, the Company acquired various
businesses in the automotive retail, automotive rental and solid waste services
industries. The Company issued an aggregate of approximately 53.7 million shares
of Common Stock and paid approximately $346.6 million of cash or notes in such
transactions which have been accounted for under the purchase method of
accounting, and issued an aggregate of approximately 83.5 million shares of
Common Stock in such transactions which have been accounted for under the
pooling of interests method of accounting. Included in the shares of Common
Stock issued for acquisitions accounted for under the pooling of interests
method of accounting are approximately 15.2 million shares issued for
acquisitions which were not material individually or in the aggregate and,
consequently, prior period financial statements were not restated for such
acquisitions.
During the year ended December 31, 1996, the Company acquired various
businesses in the automotive retail, automotive rental, solid waste services and
electronic security services industries. The Company issued an aggregate of
approximately 9.1 million shares of Common Stock and paid approximately $52.1
million of cash in such transactions which have been accounted for under the
purchase method of accounting, and issued an aggregate of approximately 71.4
million shares of Common Stock in such transactions which have been accounted
for under the pooling of interests method of accounting. Included in the shares
of Common Stock issued for acquisitions accounted for under the pooling of
interests method of accounting are approximately 13.0 million shares issued for
acquisitions which were not material individually or in the aggregate and,
consequently, prior period financial statements were not restated for such
acquisitions.
During the year ended December 31, 1995, the Company acquired various
businesses in the automotive rental, solid waste services and electronic
security services industries. The Company issued an aggregate of approximately
17.3 million shares of Common Stock and paid approximately $1.3 billion of cash
in such transactions which have been accounted for under the purchase method of
accounting, and issued an aggregate of approximately 36.3 million shares of
Common Stock for such transactions which have been accounted for under the
pooling of interests method of accounting. The cash paid for acquisitions in
1995 relates primarily to National Car Rental System, Inc.'s ("National")
acquisition of its predecessor company from General Motors Corporation. National
was acquired by the Company during 1997 and accounted for under the pooling of
interests method of accounting.
As discussed in Note 11, Discontinued Operations, of Notes to Consolidated
Financial Statements, the Company sold its electronic security services division
in October 1997. Accordingly, the financial position and
32
<PAGE> 35
results of operations of businesses acquired in the electronic security services
segment have been accounted for as discontinued operations in the accompanying
Consolidated Financial Statements.
In January 1998, the Company acquired various businesses in the automotive
retail and solid waste services industries for an aggregate purchase price of
approximately $434.0 million consisting of cash and/or shares of Common Stock.
In addition, through January 1998, the Company has signed definitive agreements
to acquire various businesses which own and operate franchised automotive
dealerships for an aggregate purchase price of approximately $478.0 million to
be paid in cash and/or shares of Common Stock. These completed and pending
acquisitions will be accounted for under the purchase method of accounting. The
closing of each pending transaction is subject to customary conditions,
including manufacturer and regulatory approval.
See Note 2, Business Combinations, of Notes to Consolidated Financial
Statements, for further discussion of business combinations.
CONSOLIDATED RESULTS OF OPERATIONS
Overview
The Company reported net income of $439.7 million or $1.02 per share on a
diluted basis for the year ended December 31, 1997 as compared to a net loss of
$(15.8) million or $(.05) per share in 1996 and net income of $18.1 million or
$.07 per share in 1995. Operating results for the year ended December 31, 1997
include gains on the sale of the electronic security services division and the
ADT Limited common stock which were partially offset by restructuring and other
pre-tax charges as further described below. Operating results for the year ended
December 31, 1996 also include restructuring and other pre-tax charges as well
as an extraordinary charge, both of which are further described below.
The diluted earnings per share effect of restructuring and other pre-tax
charges and certain non-recurring gains (losses) on the Company's net income was
to increase diluted earnings per share by $.32 from $.70 to $1.02 in 1997, and
to decrease diluted earnings per share by $.34 in 1996 and $.13 in 1995.
Restructuring and Other Charges
During the year ended December 31, 1997, the Company recorded pre-tax
charges of approximately $244.1 million. These charges consisted of $150.0
million associated with combining the Company's franchised automotive
dealerships and used vehicle megastore operations into one automotive retail
division and $94.1 million associated with integrating the Company's automotive
rental operations. Approximately $85.0 million of the automotive retail charge
appears as restructuring and other charges in the Company's Consolidated
Statement of Operations for the year ended December 31, 1997 and consists of:
$42.0 million for consolidation of information systems; $25.0 million related
primarily to relocating the Company's Valu Stop(SM) operations; and $18.0
million of severance and other costs. The remaining $65.0 million of the
automotive retail charge relates to inventory consolidation and is included in
cost of automotive retail sales in the Company's Consolidated Statement of
Operations for the year ended December 31, 1997. The primary components of the
$94.1 million automotive rental charge are as follows: $32.0 million related to
elimination of redundant information systems; $18.0 million related to fleet
consolidation; and $44.1 million related to closure or sale of duplicate rental
facilities and merger and other non-recurring expenses. Through December 31,
1997, the Company has spent approximately $58.1 million related to integration
and other activities and has recorded $92.3 million of these charges against
certain assets. As of December 31, 1997, approximately $93.7 million remained in
accrued liabilities related to these charges. The Company believes the
integration activities associated with these charges will be substantially
completed within one year.
During the year ended December 31, 1996, the Company recorded pre-tax
charges of approximately $95.5 million related primarily to the integration of
the operations of Alamo Rent-A-Car, Inc. ("Alamo")into those of the Company.
Also included in these charges are merger expenses associated with certain
acquisitions accounted for under the pooling of interests method of accounting.
Approximately $38.3 million of such expenses appear as restructuring and other
charges in the Company's Consolidated Statement of Operations for the year ended
December 31, 1996 with the remainder of approximately $57.2 million included in
cost of automotive rental operations and selling, general and administrative
expenses. These costs primarily include asset write-offs, severance benefits,
accounting and legal merger costs and changes in various estimated
33
<PAGE> 36
reserve requirements. Through December 31, 1997, the Company has spent
substantially all of the $38.3 million included in restructuring and other
charges in the 1996 Consolidated Statement of Operations.
Extraordinary Charge
During the year ended December 31, 1996, in connection with refinancing
Alamo's debt at substantially lower interest rates, the Company recorded an
extraordinary charge of approximately $31.6 million, net of income taxes.
Included in this charge are bond redemption premiums, the write-off of debt
issue costs, prepayment penalties and other related fees. See Note 4, Notes
Payable and Long-Term Debt, of Notes to Consolidated Financial Statements for
further discussion of this charge.
Discontinued Operations
In October 1997, the Company sold its electronic security services division
for approximately $610.0 million resulting in an after tax gain of approximately
$230.0 million. Accordingly, the operating results and the gain on disposition
of the electronic security services segment have been classified as discontinued
operations for all periods presented in the accompanying Consolidated Financial
Statements.
During the year ended December 31, 1995, the Company disposed of its mining
and citrus operations and spun-off its hazardous waste services segment
resulting in a loss from discontinued operations of approximately $25.1 million,
net of income taxes. Operating results for the periods prior to disposition have
been classified as discontinued operations in the accompanying Consolidated
Financial Statements.
See Note 11, Discontinued Operations, of Notes to Consolidated Financial
Statements, for further discussion of these transactions.
BUSINESS SEGMENT INFORMATION
The following table sets forth revenue with percentages of total revenue,
and sets forth cost of operations, selling, general and administrative expenses,
restructuring and other charges and operating income (loss) with percentages of
the applicable segment revenue, for each of the Company's business segments for
the years ended December 31 (in millions):
<TABLE>
<CAPTION>
1997 % 1996 % 1995 %
-------- --- -------- --- -------- ---
<S> <C> <C> <C> <C> <C> <C>
Revenue:
Automotive retail......................................... $6,122.8 59 $2,569.7 42 $1,962.4 43
Automotive rental......................................... 3,055.1 30 2,699.4 44 1,992.8 44
Solid waste services...................................... 1,127.7 11 825.5 14 571.7 13
-------- --- -------- --- -------- ---
10,305.6 100 6,094.6 100 4,526.9 100
-------- -------- --------
Cost of Operations:
Automotive retail......................................... 5,459.0 89 2,290.2 89 1,718.4 87
Automotive rental......................................... 2,377.0 78 2,167.2 80 1,613.9 81
Solid waste services...................................... 809.1 72 608.6 74 401.4 70
-------- -------- --------
8,645.1 5,066.0 3,733.7
-------- -------- --------
Selling, General and Administrative:
Automotive retail......................................... 647.2 11 254.9 10 211.3 11
Automotive rental......................................... 497.4 16 537.1 20 393.5 20
Solid waste services...................................... 107.1 9 102.1 12 89.8 16
Corporate................................................. 30.1 -- 21.7 -- 4.3 --
-------- -------- --------
1,281.8 915.8 698.9
-------- -------- --------
Restructuring and Other Charges:
Automotive retail......................................... 85.0 1 -- -- -- --
Automotive rental......................................... 94.1 3 23.5 1 -- --
Solid waste services...................................... -- -- 8.8 1 3.3 1
Corporate................................................. -- -- 6.0 -- -- --
-------- -------- --------
179.1 38.3 3.3
-------- -------- --------
Operating Income (Loss):
Automotive retail......................................... (68.4) (1) 24.6 1 32.7 2
Automotive rental......................................... 86.6 3 (28.4) (1) (14.6) (1)
Solid waste services...................................... 211.5 19 106.0 13 77.2 13
Corporate................................................. (30.1) -- (27.7) -- (4.3) --
-------- -------- --------
$ 199.6 $ 74.5 $ 91.0
======== ======== ========
</TABLE>
34
<PAGE> 37
AUTOMOTIVE RETAIL
The Company's automotive retail business consists of the sale, lease and
financing of new and used vehicles and related automotive services and products.
The Company owns and operates or has contracted to acquire a total of
approximately 260 franchised automotive dealerships. The Company also currently
operates 26 used vehicle megastores under the name AutoNation USA(SM). The
Company has aggressively expanded its automotive retail operations through the
acquisition of franchised automotive dealerships and currently plans to continue
this expansion. The Company has established framework agreements with various
manufacturers which allow the Company to acquire franchised automotive
dealerships nationwide.
Automotive retail revenue was $6.1 billion, $2.6 billion and $2.0 billion
for the years ended December 31, 1997, 1996 and 1995, respectively. The increase
in 1997 over 1996 of $3.5 billion or 138% is a result of acquisitions (114%),
volume (18%) and pricing (6%). The increase in 1996 over 1995 of $607.3 million
or 31% is primarily a result of volume and acquisitions.
Cost of automotive retail operations was $5.5 billion, $2.3 billion and
$1.7 billion or, as percentages of automotive retail revenue, 89%, 89% and 87%
for the years ended December 31, 1997, 1996 and 1995, respectively. The
increases in aggregate dollars are attributed to acquisitions and higher volume
of vehicle sales during the periods. The 1996 increase in cost of operations as
a percentage of revenue over 1995 is primarily due to changes in product mix and
1996 start-up costs associated with the initial development of the Company's
used vehicle megastore operations.
Selling, general and administrative expenses related to the Company's
automotive retail operations were $647.2 million, $254.9 million and $211.3
million or, as percentages of automotive retail revenue, 11%, 10% and 11% for
the years ended December 31, 1997, 1996 and 1995, respectively. The increases in
aggregate dollars primarily reflect the expansion of the Company's automotive
retail operations.
Operating income (loss) from the Company's automotive retail operations was
$(68.4) million, $24.6 million and $32.7 million for the years ended December
31, 1997, 1996 and 1995, respectively. Excluding restructuring and other pre-tax
charges in 1997 as previously discussed, operating income from the Company's
automotive retail operations would have been $81.6 million or 1% of automotive
retail revenue.
The Company is in the process of acquiring and/or developing additional
AutoNation USA megastore sites. As the Company opens new AutoNation USA
megastores and reconditioning centers such operations will incur fixed operating
and administrative costs immediately while revenue volume will tend to grow more
gradually.
AUTOMOTIVE RENTAL
The Company's automotive rental business primarily rents vehicles on a
daily or weekly basis to leisure and business travelers principally from
on-airport or near airport locations through Alamo and National.
Automotive rental revenue was $3.1 billion, $2.7 billion and $2.0 billion
for the years ended December 31, 1997, 1996 and 1995, respectively. The increase
in 1997 over 1996 of $355.7 million or 13% is a result of volume (5%), pricing
(4%) and acquisitions (4%). The increase in 1996 over 1995 of $706.6 million or
35% is primarily a result of acquisitions.
Cost of automotive rental operations was $2.4 billion, $2.2 billion and
$1.6 billion or, as a percentage of automotive rental revenue, 78%, 80% and 81%
for the years ended December 31, 1997, 1996 and 1995, respectively. The
increases in aggregate dollars are primarily attributed to rental volume,
acquisitions and maintaining a larger fleet. The 1997 decrease in such expenses
as a percentage of revenue versus 1996 is primarily a result of revenue
improvement from rental rate increases. The 1996 decrease in such expenses as a
percentage of revenue versus 1995 is primarily due to lower fleet costs.
Selling, general and administrative expenses related to the Company's
automotive rental operations were $497.4 million, $537.1 million and $393.5
million or, as percentages of automotive rental revenue, 16%, 20% and 20% for
the years ended December 31, 1997, 1996 and 1995, respectively. The 1997
decrease in aggregate dollars and as a percentage of automotive rental revenue
is primarily due to the reduction of selling and
35
<PAGE> 38
administrative expenses of acquired businesses. The 1996 increase in aggregate
dollars over 1995 is primarily due to acquisitions.
Operating income (loss) from the Company's automotive rental operations was
$86.6 million, $(28.4) million and $(14.6) million for the years ended December
31, 1997, 1996 and 1995, respectively. Excluding restructuring and other pre-tax
charges as previously discussed, operating income from the Company's automotive
rental operations would have been $180.7 million and $47.3 million in 1997 and
1996, respectively.
SOLID WASTE SERVICES
The Company's solid waste services business provides integrated solid waste
disposal services. The Company owns and operates 42 solid waste landfills in 13
states. The Company also owns or operates 54 transfer stations, and provides
collection and recycling services to municipal, residential, commercial and
industrial customers in 23 states.
Revenue from the Company's solid waste services operations was $1.1
billion, $825.5 million and $571.7 million for the years ended December 31,
1997, 1996 and 1995, respectively. The increase in 1997 over 1996 of $302.2
million or 37% is a result of acquisitions (24%) and volume (13%). The increase
in 1996 over 1995 of $253.8 million or 44% is primarily a result of
acquisitions.
Cost of solid waste services operations was $809.1 million, $608.6 million
and $401.4 million or, as a percentage of solid waste revenue, 72%, 74% and 70%
for the years ended December 31, 1997, 1996 and 1995, respectively. The
increases in aggregate dollars are a result of the expansion of the Company's
solid waste services operations through acquisitions and internal growth. The
1997 decrease in cost of solid waste services operations as a percentage of
revenue is primarily a result of improvements in overall operating efficiency
achieved through reductions in operating costs of acquired businesses. The 1996
increase in cost of solid waste services operations as a percentage of solid
waste revenue is primarily a result of certain of the Company's acquired
collection companies which had higher levels of operating costs than the
Company's historical operations.
Selling, general and administrative expenses related to the Company's solid
waste services operations were $107.1 million, $102.1 million and $89.8 million
or, as percentages of solid waste revenue, 9%, 12% and 16% for the years ended
December 31, 1997, 1996 and 1995, respectively. The increases in aggregate
dollars from year to year primarily reflect the growth of the Company's business
through acquisitions. The decreases in selling, general and administrative
expenses as percentages of revenue in each of the years are primarily due to the
reduction of administrative expenses for acquired businesses and, in 1997, cost
savings from centralizing administrative functions in certain regions.
Operating income from the Company's solid waste services operations was
$211.5 million, $106.0 million and $77.2 million for the years ended December
31, 1997, 1996 and 1995, respectively. Excluding restructuring and other
charges, operating income from the Company's solid waste services operations
would have been $114.8 million and $80.5 million in 1996 and 1995, respectively.
CORPORATE
Excluding restructuring and other charges, corporate expenses were $30.1
million, $21.7 million and $4.3 million for the years ended December 31, 1997,
1996 and 1995, respectively. Such increases are a result of the overall growth
experienced by the Company.
INTEREST INCOME
Interest income was $18.2 million, $31.4 million and $22.1 million for the
years ended December 31, 1997, 1996 and 1995, respectively. The decrease in 1997
versus 1996 is primarily a result of lower cash balances on hand during 1997.
The increase in 1996 over 1995 is due to the increase in interest income from
proceeds from sales of Common Stock. For further discussion of the sales of
Common Stock, see Note 6, Shareholders' Equity, of Notes to Consolidated
Financial Statements.
36
<PAGE> 39
INTEREST EXPENSE
Interest expense was incurred on general corporate debt and the debt
assumed in acquisitions. Interest expense was $16.8 million, $45.4 million and
$35.5 million for the years ended December 31, 1997, 1996 and 1995,
respectively. The decrease in 1997 versus 1996 is primarily due to the repayment
of debt. The increase in 1996 over 1995 is primarily due to higher average
outstanding borrowings and debt assumed in acquisitions. Interest expense
related to revenue earning vehicle financing and vehicle inventory financing is
included in cost of automotive rental operations and cost of automotive retail
sales, respectively, in the accompanying Consolidated Statements of Operations.
OTHER INCOME, NET
Other income, net for the year ended December 31, 1997 consists primarily
of a $102.3 million pre-tax gain from the May 1997 sale of the Company's 15.0
million shares of ADT Limited common stock, net of fees and expenses. Such
shares of ADT Limited common stock were received in March 1997 upon the
Company's exercise of a warrant which became exercisable upon termination of the
Company's agreement to acquire ADT Limited by mutual agreement of the parties in
September 1996.
INCOME TAXES
The provision for income taxes was $115.2 million, $57.0 million and $47.7
million for the years ended December 31, 1997, 1996 and 1995, respectively. The
effective income tax rate was 36.5%, 88.5% and 55.5% for the years ended
December 31, 1997, 1996 and 1995, respectively. The higher 1996 and 1995
effective income tax rates are primarily due to the Company providing valuation
allowances on certain deferred tax assets and varying higher historical
effective income tax rates of acquired businesses.
ENVIRONMENTAL AND LANDFILL MATTERS
The Company provides for accrued environmental and landfill costs which
include landfill site closure and post-closure costs. Landfill site closure and
post-closure costs include estimated costs to be incurred for final closure of
the landfills and estimated costs for providing required post-closure monitoring
and maintenance of landfills. These costs are accrued based on consumed
airspace. The Company estimates its future cost requirements for closure and
post-closure monitoring and maintenance for its solid waste facilities based on
its interpretation of the technical standards of the Environmental Protection
Agency's Subtitle D regulations. These estimates do not take into account
discounts for the present value of such total estimated costs. The Company
periodically reassesses its methods and assumptions used to estimate such
accruals for environmental and landfill costs and adjusts such accruals
accordingly. At December 31, 1997, approximately $280.0 million of such costs
are to be expensed over the remaining lives of these facilities.
Environmental costs are accrued by the Company through a charge to income
in the period such liabilities become probable and can be reasonably estimated.
FINANCIAL CONDITION
At December 31, 1997, the Company had $148.0 million in cash and
approximately $681.0 million of availability under its $1.0 billion unsecured
revolving credit facility which may be used for general corporate purposes.
In October 1997, the Company completed a refinancing program to finance
vehicle purchases for its automotive rental operations. The aggregate program of
$3.35 billion is comprised of a $2.3 billion commercial paper program and three
commercial paper conduit facilities totaling $1.05 billion. Bank lines of credit
of $2.1 billion (terminating October 1998) and $945.0 million (terminating
October 2000) provide liquidity backup for the facilities. Letters of credit
totaling $335.0 million provide collateral and additional liquidity backup for
the facilities. Borrowings under these programs are secured by eligible vehicle
collateral and bear interest based on market-dictated commercial paper rates.
The Company refinanced borrowings under its pre-existing commercial paper
programs with borrowings under this program. As of December 31, 1997, the
Company had
37
<PAGE> 40
approximately $400.0 million of availability under this program. The Company
expects to continue to fund its purchases of revenue earning vehicles with
secured vehicle financings. Revenue earning vehicles with a net book value of
$3.8 billion at December 31, 1997 were acquired under programs that allow the
Company to require counterparties to repurchase vehicles held for periods of up
to 24 months. The Company has various other credit facilities to finance its
automotive retail and rental operations.
In connection with the development of the AutoNation USA megastores, the
Company is the lessee under a $500.0 million operating lease facility
established to acquire and develop properties used in its business. The Company
has guaranteed the residual value of the properties under this facility which
guarantee totaled approximately $326.5 million at December 31, 1997.
The Company uses interest rate swap agreements to manage the impact of
interest rate changes on the Company's variable rate revenue earning vehicle
obligations. The amounts exchanged by the counterparties to interest rate swap
agreements normally are based upon the notional amounts and other terms,
generally related to interest rates, of the derivatives. While notional amounts
of interest rate swaps form part of the basis for the amounts exchanged by the
counterparties, the notional amounts are not themselves exchanged, therefore, do
not represent a measure of the Company's exposure as an end user of derivative
financial instruments. At December 31, 1997, notional principal amounts related
to interest rate swaps (variable to fixed rate) were $2.25 billion. As of
December 31, 1997, the weighted average fixed rate payment on variable to fixed
rate swaps was 5.93%. Variable rates received are indexed to the Commercial
Paper Nonfinancial rate ($2.2 billion notional principal amount) and LIBOR
($50.0 million notional principal amount). Including the Company's variable to
fixed interest rate swaps, the Company's ratio of fixed interest rate debt to
total debt outstanding was 60% and 40% as of December 31, 1997 and 1996,
respectively.
The Company believes that it has sufficient operating cash flow and other
financial resources necessary to meet its anticipated capital requirements and
obligations as they come due.
CASH FLOWS
Cash and cash equivalents decreased by $193.1 million and $36.8 million
during the years ended December 31, 1997 and 1996, respectively, and increased
$308.1 million during the year ended December 31, 1995. The major components of
these changes are discussed below.
Cash Flows from Operating Activities
Cash (used in) provided by operating activities was $(548.7) million,
$(314.6) million and $373.2 million for the years ended December 31, 1997, 1996
and 1995, respectively. The increases in cash used in operating activities in
1997 and 1996 versus cash provided in 1995 is due to increased revenue earning
vehicle purchases.
Cash Flows from Investing Activities
Cash flows from investing activities consist primarily of cash used for
capital additions and business acquisitions and other transactions as further
described below.
Capital additions were $459.8 million, $240.6 million and $229.1 million
during the years ended December 31, 1997, 1996 and 1995, respectively. The
increases are primarily a result of expansion of the Company's businesses.
Cash used in business acquisitions was $193.3 million, $42.6 million and
$1.3 billion for the years ended December 31, 1997, 1996 and 1995. See "Business
Combinations" of Management's Discussion and Analysis of Financial Condition and
Results of Operations and Note 2, "Business Combinations" of Notes to
Consolidated Financial Statements for a further discussion of businesses
acquired.
In October 1997, the Company sold its electronic security services division
for approximately $610.0 million.
38
<PAGE> 41
In March 1997, the Company exercised its warrant to acquire 15.0 million
common shares of ADT Limited for $20 per share. In May 1997, the Company sold
the 15.0 million ADT Limited common shares for $27.50 per share to certain
institutional investors.
The Company expects capital expenditures and cash used in business
acquisitions to increase during 1998 and in the foreseeable future due to
continued internal growth of existing businesses and future acquisitions. The
Company intends to finance capital expenditures and cash used in business
acquisitions through cash on hand, revolving credit facilities and other
financings.
Cash Flows from Financing Activities
Cash flows from financing activities during the years ended December 31,
1997, 1996 and 1995 included revenue earning vehicle financing, commercial bank
borrowings, repayments of debt and issuances of Common Stock.
During the year ended December 31, 1997, the Company sold 15.8 million
shares of Common Stock in a private placement transaction resulting in net
proceeds of approximately $552.7 million.
During the year ended December 31, 1996, the Company sold an aggregate of
22.0 million shares of Common Stock in private placement transactions resulting
in net proceeds of approximately $550.9 million.
During the year ended December 31, 1995, the Company sold an aggregate of
44.1 million shares of Common Stock and warrants to purchase an additional 33.4
million shares of Common Stock in various private placement and other equity
transactions resulting in net proceeds of approximately $262.4 million. The
warrants are exercisable at prices ranging from $2.25 to $3.50 per share.
These financing activities were used to fund revenue earning vehicle
purchases, capital additions and acquisitions as well as to repay debt assumed
in acquisitions and expand the Company's business during these years.
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK (ITEM 7A)
The table below provides information about the Company's market sensitive
financial instruments and constitutes a "forward-looking statement." The
Company's major market risk exposure is changing interest rates, primarily in
the United States. The Company's policy is to manage interest rates through use
of a combination of fixed and floating rate debt. Interest rate swaps may be
used to adjust interest rate exposures when appropriate, based upon market
conditions. These swaps are entered into with a group of financial institutions
with investment grade credit ratings, thereby minimizing the risk of credit
loss. All items described are non-trading.
<TABLE>
<CAPTION>
EXPECTED MATURITY DATE
---------------------------------------------------------------------- FAIR VALUE
1998 1999 2000 2001 2002 THEREAFTER TOTAL DECEMBER 31, 1997
-------- ------ -------- ------ ------ ---------- -------- -----------------
(IN MILLIONS)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
VARIABLE RATE DEBT
Current................... $2,715.0 $ -- $ -- $ -- $ -- $ -- $2,715.0 $2,715.0
Average interest
rates................. 6.17%
Non-current............... -- 155.2 1,074.4 1.8 286.9 35.1 1,553.4 1,553.4
Average interest
rates................. -- 6.19% 5.86% 4.75% 5.96% 4.75%
Interest rate swaps....... 300.0 650.0 1,000.0 150.0 150.0 -- 8.0
Average pay rate........ 5.85% 5.81% 5.95% 6.50% 5.88%
Average receive rate.... 5.50% 5.50% 5.50% 5.50% 5.50%
</TABLE>
SEASONALITY
The Company's automotive retail operations generally experience higher
volumes of vehicle sales in the second and third quarters of each year in part
due to manufacturer incentives and consumer buying trends.
39
<PAGE> 42
The Company's automotive rental operations and particularly the leisure
travel segment is highly seasonal. In these operations, the third quarter, which
includes the peak summer travel months, has historically been the strongest
quarter of the year. During the peak season, the Company increases its rental
fleet and workforce to accommodate increased rental activity. As a result, any
occurrence that disrupts travel patterns during the summer period could have a
material adverse effect on the annual performance of this segment. The first and
fourth quarters for the Company's automotive rental operations are generally the
weakest, when there is limited leisure travel and a greater potential for
adverse weather conditions. Many of the operating expenses such as rent, general
insurance and administrative personnel are fixed and cannot be reduced during
periods of decreased rental demand.
YEAR 2000 SYSTEMS COSTS
The Company utilizes software and related technologies throughout its
businesses that will be affected by the date change in the year 2000. The
Company is in the process of evaluating the full scope and related costs to
insure that the Company's systems continue to meet its internal needs and those
of its customers. Anticipated costs for system modifications will be expensed as
incurred and are not expected to have a material impact on the Company's
consolidated results of operations. However, the Company cannot measure the
impact that the Year 2000 issue will have on its vendors, suppliers, customers
and other parties with which it conducts business.
NEW ACCOUNTING PRONOUNCEMENTS
Statement of Financial Accounting Standards No. 130 ("SFAS 130"),
"Reporting Comprehensive Income", was issued by the Financial Accounting
Standards Board in June 1997. This Statement requires that all items that are
required to be recognized under accounting standards as components of
comprehensive income be reported in a financial statement that is displayed with
the same prominence as other financial statements. The Company will adopt SFAS
130 beginning January 1, 1998.
Statement of Financial Accounting Standards No. 131 ("SFAS 131"),
"Disclosures about Segments of an Enterprise and Related Information", was
issued by the Financial Accounting Standards Board in June 1997. This Statement
establishes standards for reporting information about operating segments in
annual financial statements and requires reporting of selected information about
operating segments in interim financial reports issued to shareholders. It also
establishes standards for related disclosures about products and services,
geographic areas and major customers. The Company will adopt SFAS 131 beginning
January 1, 1998. Adoption of this standard will not have a material impact on
the Company's existing segment reporting disclosures.
FORWARD-LOOKING STATEMENTS
Certain statements and information included herein constitute
"forward-looking statements" within the meaning of the Federal Private
Securities Litigation Reform Act of 1995. Such forward-looking statements
involve known and unknown risks, uncertainties and other factors which may cause
the actual results, performance, or achievements of the Company to be materially
different from any future results, performance, or achievements expressed or
implied by such forward-looking statements. Such factors include, among other
things, the ability to develop and implement operational and financial systems
to manage rapidly growing operations; competition in the Company's lines of
business; the ability to integrate and successfully operate acquired businesses
and the risks associated with such businesses; the ability to obtain financing
on acceptable terms to finance the Company's operations and growth strategy and
for the Company to operate within the limitations imposed by financing
arrangements; the dependence on vehicle manufacturers to approve dealership
acquisitions and the restrictions imposed by vehicle manufacturers on dealership
acquisitions and operations; the possibility of unfavorable changes to the cost
or financing of the Company's vehicle rental fleet; the Company's dependence on
key personnel; and other factors contained in the Company's filings with the
Securities and Exchange Commission.
40
<PAGE> 43
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
Report of Independent Certified Public Accountants.......... 42
Consolidated Balance Sheets as of December 31, 1997 and
1996...................................................... 43
Consolidated Statements of Operations for Each of the Three
Years Ended December 31, 1997............................. 44
Consolidated Statements of Shareholders' Equity for Each of
the
Three Years Ended December 31, 1997....................... 45
Consolidated Statements of Cash Flows for Each of the Three
Years Ended December 31, 1997............................. 46
Notes to Consolidated Financial Statements.................. 47
Financial Statement Schedule II, Valuation and Qualifying
Accounts and Reserves, for Each of
the Three Years Ended December 31, 1997................... 71
</TABLE>
41
<PAGE> 44
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
To the Shareholders and Board of Directors of Republic Industries, Inc.:
We have audited the accompanying consolidated balance sheets of Republic
Industries, Inc. (a Delaware corporation) and subsidiaries as of December 31,
1997 and 1996, and the related consolidated statements of operations,
shareholders' equity and cash flows for each of the years in the three-year
period ended December 31, 1997. These financial statements and the schedule
referred to below are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements and the
schedule based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of Republic
Industries, Inc. and subsidiaries as of December 31, 1997 and 1996, and the
results of their operations and their cash flows for each of the years in the
three-year period ended December 31, 1997, in conformity with generally accepted
accounting principles.
Our audits were made for the purpose of forming an opinion on the basic
financial statements taken as a whole. The schedule listed in the index to
consolidated financial statements is presented for the purpose of complying with
the Securities and Exchange Commission's rules and is not part of the basic
financial statements. This schedule has been subjected to the auditing
procedures applied in the audits of the basic financial statements and, in our
opinion, fairly states in all material respects the financial data required to
be set forth therein in relation to the basic financial statements taken as a
whole.
ARTHUR ANDERSEN LLP
Fort Lauderdale, Florida,
January 29, 1998.
42
<PAGE> 45
REPUBLIC INDUSTRIES, INC.
CONSOLIDATED BALANCE SHEETS
AS OF DECEMBER 31,
(IN MILLIONS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
1997 1996
--------- --------
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents................................. $ 148.0 $ 341.1
Receivables, net.......................................... 977.3 576.0
Revenue earning vehicles, net............................. 4,466.5 3,583.0
Inventory................................................. 1,094.8 338.5
Other current assets...................................... 139.2 445.7
--------- --------
Total Current Assets.............................. 6,825.8 5,284.3
PROPERTY AND EQUIPMENT, NET................................. 2,096.9 1,146.4
INTANGIBLE AND OTHER ASSETS, NET............................ 1,604.6 304.3
--------- --------
$10,527.3 $6,735.0
========= ========
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable.......................................... $ 260.8 $ 216.4
Accrued liabilities....................................... 557.9 280.7
Liability insurance reserves.............................. 297.2 222.4
Revenue earning vehicle debt.............................. 2,209.4 2,535.6
Notes payable and current maturities of long-term debt.... 532.0 334.0
Other current liabilities................................. 405.3 255.9
--------- --------
Total Current Liabilities......................... 4,262.6 3,845.0
LONG-TERM DEBT, NET OF CURRENT MATURITIES................... 370.9 393.6
LONG-TERM REVENUE EARNING VEHICLE DEBT...................... 1,962.7 844.8
OTHER LIABILITIES........................................... 446.8 238.6
COMMITMENTS AND CONTINGENCIES...............................
SHAREHOLDERS' EQUITY:
Preferred stock, par value $.01 per share; 5,000,000
shares authorized; none issued......................... -- --
Common stock, par value $.01 per share; 1,500,000,000 and
500,000,000 shares authorized, respectively;
432,705,796 and 327,042,548 shares issued and
outstanding, respectively.............................. 4.3 3.3
Additional paid-in capital................................ 3,048.1 1,377.4
Retained earnings......................................... 431.9 32.3
--------- --------
Total Shareholders' Equity........................ 3,484.3 1,413.0
--------- --------
$10,527.3 $6,735.0
========= ========
</TABLE>
The accompanying notes are an integral part of these statements.
43
<PAGE> 46
REPUBLIC INDUSTRIES, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE YEARS ENDED DECEMBER 31,
(IN MILLIONS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
1997 1996 1995
-------- -------- --------
<S> <C> <C> <C>
REVENUE:
Automotive retail sales................................... $6,122.8 $2,569.7 $1,962.4
Automotive rental revenue................................. 3,055.1 2,699.4 1,992.8
Solid waste services revenue.............................. 1,127.7 825.5 571.7
-------- -------- --------
10,305.6 6,094.6 4,526.9
EXPENSES:
Cost of automotive retail sales........................... 5,459.0 2,290.2 1,718.4
Cost of automotive rental operations...................... 2,377.0 2,167.2 1,613.9
Cost of solid waste services operations................... 809.1 608.6 401.4
Selling, general and administrative....................... 1,281.8 915.8 698.9
Restructuring and other charges........................... 179.1 38.3 3.3
-------- -------- --------
OPERATING INCOME............................................ 199.6 74.5 91.0
INTEREST INCOME............................................. 18.2 31.4 22.1
INTEREST EXPENSE............................................ (16.8) (45.4) (35.5)
OTHER INCOME, NET........................................... 114.4 3.9 8.4
-------- -------- --------
INCOME FROM CONTINUING OPERATIONS BEFORE INCOME TAXES....... 315.4 64.4 86.0
PROVISION FOR INCOME TAXES.................................. 115.2 57.0 47.7
-------- -------- --------
INCOME FROM CONTINUING OPERATIONS BEFORE EXTRAORDINARY
CHARGE.................................................... 200.2 7.4 38.3
-------- -------- --------
DISCONTINUED OPERATIONS:
Income from discontinued operations, net of income
taxes.................................................. 9.5 8.4 10.3
Gain (loss) on disposal of segment, net of income tax
provision of $233.7 in 1997 and benefit of $10.0 in
1995................................................... 230.0 -- (30.5)
-------- -------- --------
Income (loss) from discontinued operations................ 239.5 8.4 (20.2)
-------- -------- --------
INCOME BEFORE EXTRAORDINARY CHARGE.......................... 439.7 15.8 18.1
EXTRAORDINARY CHARGE RELATED TO EARLY EXTINGUISHMENT OF
DEBT, NET OF BENEFIT FOR INCOME TAXES OF $15.0............ -- (31.6) --
-------- -------- --------
NET INCOME (LOSS)........................................... $ 439.7 $ (15.8) $ 18.1
======== ======== ========
BASIC EARNINGS (LOSS) PER SHARE:
Continuing operations..................................... $ .50 $ .02 $ .16
Discontinued operations................................... .59 .03 (.08)
Extraordinary charge...................................... -- (.10) --
-------- -------- --------
Net income (loss)......................................... $ 1.09 $ (.05) $ .08
======== ======== ========
DILUTED EARNINGS (LOSS) PER SHARE:
Continuing operations..................................... $ .46 $ .02 $ .15
Discontinued operations................................... .56 .02 (.08)
Extraordinary charge...................................... -- (.09) --
-------- -------- --------
Net income (loss)......................................... $ 1.02 $ (.05) $ .07
======== ======== ========
</TABLE>
The accompanying notes are an integral part of these statements.
44
<PAGE> 47
REPUBLIC INDUSTRIES, INC.
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
FOR THE YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995
(IN MILLIONS)
<TABLE>
<CAPTION>
COMMON ADDITIONAL RETAINED
STOCK PAID-IN CAPITAL EARNINGS
------ --------------- --------
<S> <C> <C> <C>
BALANCE AT DECEMBER 31, 1994................................ $1.9 $ 283.1 $140.8
Sales of common stock and warrants........................ .4 262.0 --
Stock issued in acquisitions.............................. .2 83.9 --
Exercise of stock options and warrants, including income
tax benefit of $4.1 million............................ -- 15.7 --
Distributions to former owners of pooled companies........ -- -- (56.3)
Other..................................................... .3 10.3 12.4
Net income................................................ -- -- 18.1
---- -------- ------
BALANCE AT DECEMBER 31, 1995................................ 2.8 655.0 115.0
Sales of common stock..................................... .2 550.7 --
Stock issued in acquisitions.............................. .2 101.2 --
Exercise of stock options and warrants, including income
tax benefit of $20.3 million........................... -- 43.7 --
Distributions to former owners of pooled companies........ -- -- (68.1)
Other..................................................... .1 26.8 1.2
Net loss.................................................. -- -- (15.8)
---- -------- ------
BALANCE AT DECEMBER 31, 1996................................ 3.3 1,377.4 32.3
Sales of common stock..................................... .2 552.5 --
Stock issued in acquisitions.............................. .7 969.6 --
Exercise of stock options and warrants, including income
tax benefit of $32.7 million........................... .1 92.0 --
Distributions to former owners of pooled companies........ -- -- (30.6)
Other..................................................... -- 56.6 (9.5)
Net income................................................ -- -- 439.7
---- -------- ------
BALANCE AT DECEMBER 31, 1997................................ $4.3 $3,048.1 $431.9
==== ======== ======
</TABLE>
The accompanying notes are an integral part of these statements.
45
<PAGE> 48
REPUBLIC INDUSTRIES, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED DECEMBER 31,
(IN MILLIONS)
<TABLE>
<CAPTION>
1997 1996 1995
--------- --------- ---------
<S> <C> <C> <C>
CASH (USED IN) PROVIDED BY OPERATING ACTIVITIES OF
CONTINUING OPERATIONS:
Net income (loss)......................................... $ 439.7 $ (15.8) $ 18.1
Adjustments to reconcile net income (loss) to net cash
(used in) provided by operating activities:
Depreciation on revenue earning vehicles............... 831.9 747.9 555.1
Depreciation, amortization and depletion on property
and equipment........................................ 138.8 104.4 84.5
Amortization of intangible assets...................... 32.9 13.0 8.3
Non-cash restructuring and other charges............... 186.0 95.5 3.3
Loss on extinguishment of debt, net of income taxes.... -- 31.6 --
Gain on sale of marketable securities.................. (102.3) -- --
(Income) loss from discontinued operations, net of
income taxes......................................... (239.5) (8.4) 20.2
Purchases of revenue earning vehicles.................. (5,227.3) (4,695.3) (3,195.5)
Sales of revenue earning vehicles...................... 3,892.3 3,356.4 2,841.6
Changes in assets and liabilities, net of effects from
business acquisitions
Receivables.......................................... (209.3) (111.4) (39.0)
Inventory............................................ (205.9) (15.3) (42.5)
Other assets......................................... 93.5 (50.1) 1.0
Accounts payable and accrued liabilities............. (291.0) 74.2 91.5
Other liabilities.................................... 111.5 158.7 26.6
--------- --------- ---------
(548.7) (314.6) 373.2
--------- --------- ---------
CASH (USED IN) PROVIDED BY DISCONTINUED OPERATIONS.......... (48.0) (50.1) 2.5
--------- --------- ---------
CASH PROVIDED BY (USED IN) INVESTING ACTIVITIES:
Cash received on disposal of segment...................... 610.0 -- 34.3
Purchases of property and equipment....................... (459.8) (240.6) (229.1)
Purchases of marketable securities........................ (300.0) -- --
Sale of marketable securities............................. 402.3 -- --
Cash used in business acquisitions, net of cash
acquired............................................... (193.3) (42.6) (1,333.7)
Other..................................................... (55.5) (208.0) 46.5
--------- --------- ---------
3.7 (491.2) (1,482.0)
--------- --------- ---------
CASH PROVIDED BY FINANCING ACTIVITIES:
Proceeds from revenue earning vehicle financing........... 29,103.7 17,802.7 11,134.4
Payments on revenue earning vehicle financing............. (28,688.7) (17,452.0) (9,990.9)
Proceeds from long-term debt and notes payable............ 378.4 257.7 185.9
Payments of long-term debt and notes payable.............. (832.3) (437.0) (223.1)
Net (payments) proceeds from revolving credit and vehicle
inventory financing facilities......................... (139.7) 154.7 16.3
Sales of common stock..................................... 552.7 550.9 262.4
Other..................................................... 25.8 (57.9) 29.4
--------- --------- ---------
399.9 819.1 1,414.4
--------- --------- ---------
(DECREASE) INCREASE IN CASH AND CASH EQUIVALENTS............ (193.1) (36.8) 308.1
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD............ 341.1 377.9 69.8
--------- --------- ---------
CASH AND CASH EQUIVALENTS AT END OF PERIOD.................. $ 148.0 $ 341.1 $ 377.9
========= ========= =========
</TABLE>
The accompanying notes are an integral part of these statements.
46
<PAGE> 49
REPUBLIC INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(ALL TABLES IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The accompanying Consolidated Financial Statements include the accounts of
Republic Industries, Inc. and its subsidiaries ("Republic" or the "Company").
All intercompany accounts and transactions have been eliminated. In October
1997, the Company sold its electronic security services division. In 1995, the
Company disposed of all of its mining and citrus operations and spun-off its
hazardous waste services segment to the Company's shareholders. Accordingly, as
discussed in Note 11, Discontinued Operations, these operations have been
accounted for as discontinued operations and the accompanying Consolidated
Financial Statements presented herein have been restated to report separately
the operating results of these discontinued operations.
In order to maintain consistency and comparability between periods
presented, certain amounts have been reclassified from the previously reported
financial statements to conform with the financial statement presentation of the
current period.
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenue and expenses during the reporting
period. Actual results could differ from those estimates.
The accompanying Consolidated Financial Statements have been restated to
include the financial position and results of operations of significant
businesses acquired in 1997 and accounted for under the pooling of interests
method of accounting (the "Pooled Entities") as if the companies had operated as
one entity since inception. See Note 2, Business Combinations, for further
discussion of these transactions.
All per share data and numbers of shares of the Company's common stock, par
value $.01 per share ("Common Stock") for all periods included in the
consolidated financial statements and notes thereto have been adjusted to
reflect a two-for-one stock split in the form of a 100% stock dividend that
became effective in June 1996, as more fully described in Note 6, Shareholders'
Equity.
RECEIVABLES
The components of receivables, net of allowance for doubtful accounts at
December 31 are as follows:
<TABLE>
<CAPTION>
1997 1996
-------- ------
<S> <C> <C>
Trade....................................................... $ 445.2 $301.2
Vehicle..................................................... 357.6 228.1
Other....................................................... 225.4 64.2
-------- ------
1,028.2 593.5
Less: allowance for doubtful accounts....................... (50.9) (17.5)
-------- ------
$ 977.3 $576.0
======== ======
</TABLE>
REVENUE EARNING VEHICLES
Revenue earning vehicles are stated at cost less accumulated depreciation.
The straight-line method is used to depreciate revenue earning vehicles to their
estimated residual values over periods typically ranging from three to twelve
months. Depreciation expense includes costs relating to damaged vehicles and
gains and losses on revenue earning vehicle sales in the ordinary course of
business and is included as a component of cost of automotive rental operations
in the accompanying Consolidated Statements of Operations.
47
<PAGE> 50
REPUBLIC INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
A summary of revenue earning vehicles at December 31 is as follows:
<TABLE>
<CAPTION>
1997 1996
-------- --------
<S> <C> <C>
Revenue earning vehicles.................................... $4,980.1 $4,011.2
Less: accumulated depreciation.............................. (513.6) (428.2)
-------- --------
$4,466.5 $3,583.0
======== ========
</TABLE>
Revenue earning vehicles with a net book value of $3.8 billion at December
31, 1997 were acquired under programs that allow the Company to require
counterparties to repurchase vehicles held for periods of up to twenty-four
months. The agreements contain varying mileage and damage limitations.
The Company also leases vehicles under operating lease agreements which
require the Company to provide normal maintenance and liability coverage. The
agreements generally have terms of four to thirteen months. Many agreements
provide for an option to terminate the leases early and allow for the purchase
of leased vehicles subject to certain restrictions.
INVENTORY
Inventory consists primarily of retail vehicles held for sale valued using
the specific identification method, net of reserves. Cost includes acquisition
expenses, including reconditioning and transportation costs. Parts and
accessories are valued at the factory list price which approximates lower of
cost (first-in, first-out) or market.
A summary of inventory at December 31 is as follows:
<TABLE>
<CAPTION>
1997 1996
-------- ------
<S> <C> <C>
New vehicles................................................ $ 642.7 $256.4
Used vehicles............................................... 377.4 52.0
Parts, accessories and other................................ 74.7 30.1
-------- ------
$1,094.8 $338.5
======== ======
</TABLE>
PROPERTY AND EQUIPMENT
Property and equipment are recorded at cost. Expenditures for major
additions and improvements are capitalized, while minor replacements,
maintenance and repairs are charged to expense as incurred. When property is
retired or otherwise disposed of, the cost and accumulated depreciation are
removed from the accounts and any resulting gain or loss is reflected in the
Consolidated Statements of Operations.
The Company revises the estimated useful lives of property and equipment
acquired through its business acquisitions to conform with its policies
regarding property and equipment. Depreciation is provided over the estimated
useful lives of the assets involved using the straight-line method. The
estimated useful lives are: twenty to forty years for buildings and
improvements, three to fifteen years for trucks and equipment and five to ten
years for furniture and fixtures.
Landfills are stated at cost and are depleted based on consumed airspace.
Landfill improvements include direct costs incurred to obtain a landfill permit
and direct costs incurred to construct and develop the site. These costs are
depleted based on consumed airspace. All indirect landfill development costs are
expensed as incurred.
48
<PAGE> 51
REPUBLIC INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
A summary of property and equipment at December 31 is as follows:
<TABLE>
<CAPTION>
1997 1996
-------- --------
<S> <C> <C>
Land, landfills and improvements............................ $ 895.0 $ 525.5
Furniture, fixtures, trucks and equipment................... 968.7 659.5
Buildings and improvements.................................. 878.6 439.4
-------- --------
2,742.3 1,624.4
Less: accumulated depreciation, amortization and
depletion................................................. (645.4) (478.0)
-------- --------
$2,096.9 $1,146.4
======== ========
</TABLE>
INTANGIBLE AND OTHER ASSETS
Intangible and other assets consist primarily of the cost of acquired
businesses in excess of the fair value of net tangible assets acquired. The cost
in excess of the fair value of net tangible assets is amortized over forty years
on a straight-line basis. Accumulated amortization of intangible assets was
$89.6 million and $52.4 million at December 31, 1997 and 1996, respectively.
The Company continually evaluates whether events and circumstances have
occurred that may warrant revision of the estimated useful life of intangible
assets or whether the remaining balance of intangible assets should be evaluated
for possible impairment. The Company uses an estimate of the related
undiscounted cash flows over the remaining life of the intangible assets in
measuring their recoverability.
ACCRUED ENVIRONMENTAL AND LANDFILL COSTS
Accrued environmental and landfill costs are included in other liabilities
and include landfill site closure and post-closure costs. Landfill site closure
and post-closure costs include estimated costs to be incurred for final closure
of the landfills and estimated costs for providing required post-closure
monitoring and maintenance of landfills. These costs are accrued based on
consumed airspace. Estimated aggregate closure and post-closure costs will be
fully accrued for these landfills at the time that such facilities cease to
accept waste and are closed. At December 31, 1997, approximately $280.0 million
of such costs are to be expensed over the remaining lives of these facilities.
The Company estimates its future cost requirements for closure and post-closure
monitoring and maintenance for its solid waste facilities based on its
interpretation of the technical standards of the United States Environmental
Protection Agency's Subtitle D regulations. These estimates do not take into
account discounts for the present value of such total estimated costs. The
Company periodically reassesses its methods and assumptions used to estimate
such accruals for environmental and landfill costs and adjusts such accruals
accordingly.
In the normal course of business, the Company is subject to ongoing
environmental investigations by certain regulatory agencies, as well as other
claims and disputes that could result in litigation. Environmental costs are
accrued by the Company through a charge to income in the period such liabilities
become probable and can be reasonably estimated.
LIABILITY INSURANCE
The Company retains up to $1.0 million of risk per claim plus claims
handling expense under its various liability insurance programs for third party
property damage and bodily injury claims, primarily relating to claims arising
from the Company's automotive rental operations. Costs in excess of this
retained risk per claim are insured under various contracts with insurance
carriers. The ultimate costs of these retained insurance risks are estimated by
management and by actuarial evaluation based on historical claims experience,
adjusted for current trends and changes in claims-handling procedures. In 1996,
the Company changed its method of
49
<PAGE> 52
REPUBLIC INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
accounting for estimated auto rental liability insurance claims by no longer
discounting such liability. The effect of this change was not material to the
Company's consolidated financial position or results of operations.
REVENUE RECOGNITION
Revenue from the Company's automotive retail operations consists of sales
of new and used vehicles, parts and service and finance and insurance products.
An estimated allowance for chargebacks against revenue recognized from sales of
finance and insurance products is established during the period in which related
revenue is recognized. Revenue from the Company's automotive rental operations
consists primarily of fees from rentals and the sale of related rental products
from the leisure, business travel and insurance replacement segments. Revenue
from the Company's solid waste services operations consists of collection fees
from residential, commercial and industrial customers and landfill disposal fees
charged to third parties. The Company recognizes revenue over the period in
which products are sold, vehicles are rented or services are provided.
DERIVATIVE FINANCIAL INSTRUMENTS
The Company utilizes interest rate protection agreements with several
counterparties to manage the impact of interest rate changes on the Company's
debt obligations. The Company does not use derivative financial instruments for
trading purposes. Under interest rate swaps, the Company agrees with other
parties to exchange, at specified intervals, the difference between fixed-rate
and floating-rate interest amounts calculated by reference to an agreed notional
principal amount. Income or expense on derivative financial instruments used to
manage interest rate exposure is recorded on an accrual basis, as an adjustment
to the yield of the underlying exposures over the periods covered by the
contracts. If an interest rate swap is terminated early, any resulting gain or
loss is deferred and amortized as an adjustment of the cost of the underlying
exposure position over the remaining periods originally covered by the
terminated swap. If all or part of an underlying position is terminated, the
related pro-rata portion of any unrecognized gain or loss on the swap is
recognized in income at that time as part of the gain or loss on the
termination. Amounts receivable or payable under the agreements are included in
receivables or accrued liabilities in the accompanying Consolidated Balance
Sheets and were not material at December 31, 1997 or 1996.
ADVERTISING
The Company expenses the cost of advertising as incurred or when such
advertising initially takes place. No advertising costs were capitalized at
December 31, 1997 or 1996. Advertising expense was $318.2 million, $148.8
million and $119.9 million for the years ended December 31, 1997, 1996 and 1995,
respectively.
STATEMENTS OF CASH FLOWS
The Company considers all highly liquid investments with purchased
maturities of three months or less to be cash equivalents unless the investments
are legally or contractually restricted for more than three months. The effect
of non-cash transactions related to business combinations, as discussed in Note
2, Business Combinations, and other non-cash transactions are excluded from the
accompanying Consolidated Statements of Cash Flows.
The Company made interest payments on revenue earning vehicle debt and
notes payable and long-term debt of approximately $248.2 million, $293.0 million
and $217.0 million for the years ended December 31, 1997, 1996 and 1995,
respectively. The Company made income tax payments of approximately $72.1
million, $19.7 million and $17.9 million for the years ended December 31, 1997,
1996 and 1995, respectively.
50
<PAGE> 53
REPUBLIC INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
NEW ACCOUNTING PRONOUNCEMENTS
Statement of Financial Accounting Standards No. 130 ("SFAS 130"),
"Reporting Comprehensive Income", was issued by the Financial Accounting
Standards Board in June 1997. This Statement requires that all items that are
required to be recognized under accounting standards as components of
comprehensive income be reported in a financial statement that is displayed with
the same prominence as other financial statements. The Company will adopt SFAS
130 beginning January 1, 1998.
Statement of Financial Accounting Standards No. 131 ("SFAS 131"),
"Disclosures about Segments of an Enterprise and Related Information", was
issued by the Financial Accounting Standards Board in June 1997. This Statement
establishes standards for reporting of selected information about operating
segments in annual financial statements and requires reporting of selected
information about operating segments in interim financial reports issued to
shareholders. It also establishes standards for related disclosures about
products and services, geographic areas and major customers. The Company will
adopt SFAS 131 beginning January 1, 1998. Adoption of this standard will not
have a material impact on the Company's existing segment reporting disclosures.
2. BUSINESS COMBINATIONS
Significant businesses acquired through December 31, 1997 and accounted for
under the pooling of interests method of accounting have been included
retroactively in the Consolidated Financial Statements as if the companies had
operated as one entity since inception. Businesses acquired through December 31,
1997 and accounted for under the purchase method of accounting are included in
the Consolidated Financial Statements from the date of acquisition.
During the year ended December 31, 1997, the Company acquired various
businesses in the automotive retail, automotive rental and solid waste services
industries. The Company issued an aggregate of approximately 53.7 million shares
of Common Stock and paid approximately $346.6 million of cash or notes in such
transactions which have been accounted for under the purchase method of
accounting, and issued an aggregate of approximately 83.5 million shares of
Common Stock in such transactions which have been accounted for under the
pooling of interests method of accounting. Included in the shares of Common
Stock issued for acquisitions accounted for under the pooling of interests
method of accounting are approximately 15.2 million shares issued for
acquisitions which were not material individually or in the aggregate and,
consequently, prior period financial statements were not restated for such
acquisitions.
Details of the results of operations of the Company and the Pooled Entities
for the periods before the pooling of interests combinations were consummated
for the years ended December 31 are as follows:
<TABLE>
<CAPTION>
1997 1996 1995
--------- -------- --------
<S> <C> <C> <C>
Revenue:
The Company........................................... $ 8,927.0 $2,280.2 $1,741.6
Pooled Entities....................................... 1,378.6 3,814.4 2,785.3
--------- -------- --------
$10,305.6 $6,094.6 $4,526.9
========= ======== ========
Income (loss) from continuing operations before
extraordinary charge:
The Company........................................... $ 152.3 $ (36.3) $ (6.4)
Pooled Entities....................................... 47.9 43.7 44.7
--------- -------- --------
$ 200.2 $ 7.4 $ 38.3
========= ======== ========
</TABLE>
51
<PAGE> 54
REPUBLIC INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The Company's unaudited pro forma consolidated results of operations
assuming all significant 1997 acquisitions accounted for under the purchase
method of accounting had occurred on January 1, 1996 are as follows for the
years ended December 31:
<TABLE>
<CAPTION>
1997 1996
--------- --------
<S> <C> <C>
Revenue..................................................... $11,786.9 $9,676.6
Income (loss) from continuing operations before
extraordinary charge...................................... 200.0 (16.5)
Diluted earnings (loss) per share from continuing
operations................................................ .45 (.05)
</TABLE>
The unaudited pro forma results of operations are presented for
informational purposes only and may not necessarily reflect the future results
of operations of the Company or what the results of operations would have been
had the Company owned and operated these businesses as of January 1, 1996.
During the year ended December 31, 1996, the Company acquired various
businesses in the automotive retail, automotive rental, solid waste services and
electronic security services industries. The Company issued an aggregate of
approximately 9.1 million shares of Common Stock and paid approximately $52.1
million of cash in such transactions which have been accounted for under the
purchase method of accounting, and issued an aggregate of approximately 71.4
million shares of Common Stock in such transactions which have been accounted
for under the pooling of interests method of accounting. Included in the shares
of Common Stock issued for acquisitions accounted for under the pooling of
interests method of accounting are approximately 13.0 million shares issued for
acquisitions which were not material individually or in the aggregate and,
consequently, prior period financial statements were not restated for such
acquisitions.
In July 1996, the Company entered into an agreement to acquire ADT Limited
(the "ADT Agreement"), which was terminated by mutual agreement of the parties
in September 1996. In connection with the execution of the ADT Agreement, ADT
Limited granted to the Company a warrant ("the ADT Warrant") to purchase 15.0
million common shares of ADT Limited at a purchase price of $20 per share (which
approximated fair market value). In March 1997, the Company exercised the ADT
Warrant resulting in the purchase of 15.0 million common shares of ADT Limited
at $20 per share. In May 1997, the Company sold the ADT Limited common shares
for $27.50 per share resulting in a gain of approximately $102.3 million, net of
fees and expenses.
During the year ended December 31, 1995, the Company acquired various
businesses in the automotive rental, solid waste services and electronic
security services industries. The Company issued an aggregate of approximately
17.3 million shares of Common Stock and paid approximately $1.3 billion of cash
in such transactions which have been accounted for under the purchase method of
accounting, and issued an aggregate of approximately 36.3 million shares of
Common Stock for such transactions which have been accounted for under the
pooling of interests method of accounting. The cash paid for acquisitions in
1995 relates primarily to National Car Rental System, Inc.'s ("National")
acquisition of its predecessor company from General Motors Corporation. National
was acquired by the Company during 1997 and accounted for under the pooling of
interests method of accounting.
52
<PAGE> 55
REPUBLIC INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The preliminary purchase price allocations for business combinations
accounted for under the purchase method of accounting (including historical
accounts of immaterial acquisitions accounted for under the pooling of interests
method of accounting) for the years ended December 31 were as follows:
<TABLE>
<CAPTION>
1997 1996 1995
--------- ------- --------
<S> <C> <C> <C>
Revenue earning vehicles................................ $ 415.3 $ 79.4 $1,455.2
Property and equipment.................................. 616.2 110.9 99.3
Intangible and other assets............................. 1,305.0 109.8 101.3
Working capital (deficiency), net of cash acquired...... 82.1 (16.1) 16.8
Long-term debt assumed.................................. (1,218.4) (121.1) (123.5)
Other liabilities....................................... (36.6) (18.9) (131.3)
Common stock issued..................................... (970.3) (101.4) (84.1)
--------- ------- --------
Cash used in acquisitions, net of cash acquired......... $ 193.3 $ 42.6 $1,333.7
========= ======= ========
</TABLE>
As discussed in Note 11, Discontinued Operations, the Company sold its
electronic security services division in October 1997. Accordingly, the
financial position and results of operations of businesses acquired in the
electronic security services segment have been accounted for as discontinued
operations in the accompanying Consolidated Financial Statements.
In January 1998, the Company acquired various businesses in the automotive
retail and solid waste services industries for an aggregate purchase price of
approximately $434.0 million, consisting of cash and/or shares of Common Stock.
In addition, through January 1998, the Company has signed definitive agreements
to acquire various businesses which own and operate franchised automotive
dealerships for an aggregate purchase price of approximately $478.0 million to
be paid in cash and/or shares of Common Stock. These completed and pending
acquisitions will be accounted for under the purchase method of accounting. The
closing of each pending transaction is subject to customary conditions,
including manufacturer and regulatory approval.
53
<PAGE> 56
REPUBLIC INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
3. REVENUE EARNING VEHICLE DEBT
Revenue earning vehicle debt at December 31 is as follows:
<TABLE>
<CAPTION>
1997 1996
--------- --------
<S> <C> <C>
Amounts under various commercial paper programs secured by
eligible vehicle collateral; interest based on
market-dictated commercial paper rates; weighted average
interest rates of 5.85% and 5.93% at December 31, 1997 and
1996, respectively........................................ $ 2,919.4 $2,253.1
Amounts under various medium-term note programs secured by
eligible vehicle collateral:
Fixed rate component; weighted average interest rates of
7.09% and 7.13% at December 31, 1997 and 1996,
respectively; maturities through 2003.................. 736.3 656.3
Floating rate component based on a spread over 3 month
LIBOR; maturities through 2001......................... 166.5 143.3
Other uncommitted secured financings primarily with
financing institutions in the United Kingdom; secured by
eligible vehicle collateral for periods that approximate
the expected hold period for the vehicle at LIBOR based
interest rates; weighted average interest rates of 6.99%
and 6.29% at December 31, 1997 and 1996, respectively..... 349.9 327.7
--------- --------
4,172.1 3,380.4
Less: long-term portion..................................... (1,962.7) (844.8)
--------- --------
$ 2,209.4 $2,535.6
========= ========
</TABLE>
In October 1997, the Company refinanced borrowings under its pre-existing
commercial paper programs with borrowings under a $3.35 billion financing
program comprised of a $2.3 billion commercial paper program and three
commercial paper conduit facilities totaling $1.05 billion. Bank lines of credit
of $2.1 billion (terminating October 1998) and $945.0 million (terminating
October 2000) provide liquidity backup for the facilities. Letters of credit
totaling $335.0 million provide collateral and additional liquidity backup for
the facilities. The weighted average interest rate on total revenue earning
vehicle debt was 6.17% and 6.20% at December 31, 1997 and 1996, respectively.
Interest expense on revenue earning vehicle debt is included as a component of
cost of automotive rental operations in the accompanying Consolidated Statements
of Operations.
At December 31, 1997, aggregate maturities of revenue earning vehicle debt
were as follows:
<TABLE>
<S> <C>
1998........................................................ $2,209.4
1999........................................................ 310.0
2000........................................................ 1,144.0
2001........................................................ 333.7
2002........................................................ --
Thereafter.................................................. 175.0
--------
$4,172.1
========
</TABLE>
54
<PAGE> 57
REPUBLIC INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
4. NOTES PAYABLE AND LONG-TERM DEBT
Notes payable and long-term debt at December 31 is as follows:
<TABLE>
<CAPTION>
1997 1996
------- -------
<S> <C> <C>
Revolving credit facility; interest payable using LIBOR
based rates; unsecured; matures 2002...................... $ 250.0 $ 150.0
Vehicle inventory credit facilities; secured by the
Company's vehicle inventory; weighted average interest
rates of 6.36% and 9.25% at
December 31, 1997 and 1996, respectively.................. 472.5 225.7
Other notes; secured by real property, equipment and other
assets; interest ranging from 4% to 13%; maturing through
2009...................................................... 180.4 351.9
------- -------
902.9 727.6
Less: current portion....................................... (532.0) (334.0)
------- -------
$ 370.9 $ 393.6
======= =======
</TABLE>
In April 1997, the Company replaced its existing $250.0 million credit
facility with a $1.0 billion unsecured revolving credit facility (the "Credit
Facility") with certain banks for a term of five years. Outstanding advances, if
any, are payable at the expiration of the five-year term. The Credit Facility
requires, among other items, that the Company maintain certain financial ratios
and comply with certain financial covenants.
In December 1996, the Company completed a tender offer and consent
solicitation resulting in the repurchase of approximately $100.0 million
aggregate principal amount 11.75% senior notes due 2006 ("Senior Notes"), which
were issued in February 1996. The Company recorded an extraordinary charge of
$31.6 million, net of income taxes, during 1996 related to the early
extinguishment of the Senior Notes and certain other debt. Included in this
charge are bond redemption premiums, the write-off of debt issue costs,
prepayment penalties and other fees related to the tender offer and the
repayment of other debt.
Interest expense on vehicle inventory credit facilities is included as a
component of cost of automotive retail sales in the accompanying Consolidated
Statements of Operations.
At December 31, 1997, aggregate maturities of long-term debt were as
follows:
<TABLE>
<S> <C>
1998........................................................ $532.0
1999........................................................ 26.6
2000........................................................ 9.4
2001........................................................ 5.4
2002........................................................ 288.8
Thereafter.................................................. 40.7
------
$902.9
======
</TABLE>
5. INCOME TAXES
The Company accounts for income taxes in accordance with SFAS No. 109,
"Accounting for Income Taxes". Accordingly, deferred income taxes have been
provided to show the effect of temporary differences between the recognition of
revenue and expenses for financial and income tax reporting purposes and between
the tax basis of assets and liabilities and their reported amounts in the
financial statements.
The Company files a consolidated federal income tax return which includes
the operations of businesses acquired for periods subsequent to the dates of the
acquisitions. Certain businesses acquired and accounted for under the pooling of
interests method of accounting were subchapter S corporations for income tax
purposes. The subchapter S corporation status of these companies was terminated
effective with the closing date of the
55
<PAGE> 58
REPUBLIC INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
acquisitions. For purposes of these Consolidated Financial Statements, federal
and state income taxes have been recorded as if these companies had filed
subchapter C corporation tax returns for the pre-acquisition periods, and the
current income tax expense is reflected as an increase to additional paid-in
capital.
The components of the provision for income taxes related to continuing
operations for the years ended December 31 are as follows:
<TABLE>
<CAPTION>
1997 1996 1995
------ ----- -----
<S> <C> <C> <C>
Current:
Federal................................................... $ 23.1 $50.0 $25.7
State..................................................... 7.0 4.7 4.9
Federal and state deferred.................................. 89.6 (9.4) 15.1
Foreign deferred............................................ (4.5) (8.8) (1.4)
Change in valuation allowance............................... -- 20.5 3.4
------ ----- -----
Provision for income taxes.................................. $115.2 $57.0 $47.7
====== ===== =====
</TABLE>
A reconciliation of the statutory federal income tax rate to the Company's
effective tax rate for continuing operations for the years ended December 31 is
shown below:
<TABLE>
<CAPTION>
1997 1996 1995
---- ---- ----
<S> <C> <C> <C>
Statutory federal income tax rate........................... 35.0% 35.0% 35.0%
Non-deductible expenses..................................... .5 9.5 6.2
State income taxes, net of federal benefit.................. 2.0 6.4 4.7
Change in valuation allowance............................... -- 31.6 4.0
Other, net.................................................. (1.0) 6.0 5.6
---- ---- ----
Effective tax rate.......................................... 36.5% 88.5% 55.5%
==== ==== ====
</TABLE>
Components of the net deferred income tax liability included in other
liabilities in the accompanying Consolidated Balance Sheets at December 31 are
as follows:
<TABLE>
<CAPTION>
1997 1996
------- -------
<S> <C> <C>
Deferred income tax liabilities:
Book basis in property over tax basis..................... $ 450.3 $ 287.5
Deferred income tax assets:
Net operating losses...................................... (59.0) (103.3)
Accruals not currently deductible......................... (293.0) (97.1)
Valuation allowance......................................... 146.1 66.9
------- -------
Net deferred income tax liability........................... $ 244.4 $ 154.0
======= =======
</TABLE>
At December 31, 1997, the Company had available domestic net operating loss
carryforwards of approximately $61.8 million which begin to expire in the year
2011 and foreign net operating loss carryforwards of approximately $60.1
million, the majority of which have an indefinite carryforward. In assessing the
realizability of deferred tax assets, management considers whether it is more
likely than not that some portion or all of the deferred tax assets will not be
realized. The Company has provided a valuation allowance to offset a portion of
the deferred tax assets due to uncertainty surrounding the future realization of
such deferred tax assets. The Company adjusts the valuation allowance in the
period management determines it is more likely than not that deferred tax assets
will or will not be realized.
The foreign losses included in income from continuing operations before
income taxes and extraordinary charge for the years ended December 31, 1997,
1996 and 1995 were $(11.5) million, $(22.0) million and $(20.8) million,
respectively.
56
<PAGE> 59
REPUBLIC INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
6. SHAREHOLDERS' EQUITY
During the year ended December 31, 1997, the Company sold 15.8 million
shares of Common Stock in a private placement transaction resulting in net
proceeds of approximately $552.7 million. In addition, in May 1997, the
Company's Certificate of Incorporation was amended to increase the number of
authorized shares of Common Stock from 500.0 million to 1.5 billion shares.
During the year ended December 31, 1996, the Company sold an aggregate of
22.0 million shares of Common Stock in private placement transactions resulting
in net proceeds of approximately $550.9 million. In May 1996, the Board of
Directors declared a two-for-one split of the Company's Common Stock in the form
of a 100% stock dividend, payable June 8, 1996, to holders of record on May 28,
1996. In addition, in May 1996 the Company's Certificate of Incorporation was
amended to increase the number of authorized shares of Common Stock from 350.0
million shares to 500.0 million shares.
During the year ended December 31, 1995, the Company sold an aggregate of
44.1 million shares of Common Stock and warrants to purchase an additional 33.4
million shares of Common Stock in various private placement and other equity
transactions resulting in net proceeds of approximately $262.4 million. The
warrants are exercisable at prices ranging from $2.25 to $3.50 per share.
The Company has 5.0 million authorized shares of preferred stock, par value
$.01 per share, none of which are issued or outstanding. The Board of Directors
has the authority to issue the preferred stock in one or more series and to
establish the rights, preferences and dividends.
7. STOCK OPTIONS AND WARRANTS
The Company has various stock option plans under which shares of Common
Stock may be granted to key employees and directors of the Company. Options
granted under the plans are non-qualified and are granted at a price equal to
the fair market value of the Common Stock at the date of grant. Generally,
options granted will have a term of ten years from the date of grant, and will
vest in increments of 25% per year over a four year period on the yearly
anniversary of the grant date. On January 3, 1997, the Compensation Committee of
the Company's Board of Directors approved management's recommended 1997 annual
employee stock option grant of 6.7 million shares of Common Stock (2.0 million
shares of which were granted under the Company's 1997 Employee Stock Option Plan
subject to shareholder approval obtained in May 1997). These stock options were
granted using the quoted market price at the date of management's recommendation
($28.625 at December 31, 1996) as opposed to the quoted market price at the
grant date ($29.9375 at January 3, 1997). No compensation expense associated
with these grants has been recognized in the accompanying Consolidated Financial
Statements as it would not be material to the consolidated financial position or
results of operations.
57
<PAGE> 60
REPUBLIC INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
A summary of stock option and warrant transactions is as follows for the
years ended December 31:
<TABLE>
<CAPTION>
1997 1996 1995
------------------ ------------------ ------------------
WEIGHTED- WEIGHTED- WEIGHTED-
AVERAGE AVERAGE AVERAGE
EXERCISE EXERCISE EXERCISE
SHARES PRICE SHARES PRICE SHARES PRICE
------ --------- ------ --------- ------ ---------
<S> <C> <C> <C> <C> <C> <C>
Options and warrants outstanding at
beginning of period................ 52.5 $ 7.63 49.6 $ 4.87 8.1 $4.54
Granted.............................. 15.2 28.52 8.7 21.86 45.1 4.92
Exercised............................ (18.7) 3.24 (5.6) 4.03 (2.9) 4.14
Canceled............................. (.9) 24.59 (.2) 9.44 (.7) 7.49
----- ---- ----
Options and warrants outstanding at
end of period...................... 48.1 15.67 52.5 7.63 49.6 4.87
===== ==== ====
Options and warrants exercisable at
end of period...................... 26.8 8.71 38.5 4.12 39.9 3.50
Options available for future
grants............................. 14.0 7.9 4.3
</TABLE>
The following table summarizes information about outstanding and
exercisable stock options and warrants at December 31, 1997:
<TABLE>
<CAPTION>
OUTSTANDING EXERCISABLE
---------------------------------- -------------------
WEIGHTED-
AVERAGE WEIGHTED- WEIGHTED-
REMAINING AVERAGE AVERAGE
CONTRACTUAL EXERCISE EXERCISE
RANGE OF EXERCISE PRICE SHARES LIFE(YRS.) PRICE SHARES PRICE
----------------------- ------ ----------- --------- ------ ---------
<S> <C> <C> <C> <C> <C>
$ 1.13 -- $ 3.50 16.4 1.28 $ 3.03 16.1 $ 3.05
3.78 -- 27.00 16.8 7.18 15.16 7.8 12.80
27.25 -- 41.88 14.9 8.78 30.18 2.9 29.06
---- ----
1.13 -- 41.88 48.1 5.67 15.67 26.8 8.71
==== ====
</TABLE>
The Company applies Accounting Principles Board Opinion No. 25, "Accounting
for Stock Issued to Employees" in accounting for stock-based employee
compensation arrangements whereby no compensation cost related to stock options
is deducted in determining net income (loss). Had compensation cost for the
Company's stock option plans been determined pursuant to SFAS No. 123,
"Accounting for Stock-Based Compensation", the Company's net income (loss) and
earnings (loss) per share would have decreased (increased) accordingly. Using
the Black-Scholes option pricing model for all options granted after December
31, 1994, the Company's pro forma net income (loss), pro forma earnings (loss)
per share and pro forma weighted average fair value of options granted, with
related assumptions, are as follows for the years ended December 31:
<TABLE>
<CAPTION>
1997 1996 1995
--------------- ---------------- ---------------
<S> <C> <C> <C>
Pro forma net income (loss)....... $375.3 $(33.6) $10.2
Pro forma diluted earnings (loss)
per share....................... .88 (.11) .04
Pro forma weighted average fair
value of options granted........ 10.03 9.80 5.28
Risk free interest rates.......... 5.74% - 5.78% 5.98% - 6.17% 5.98% - 6.17%
Expected lives.................... 5-7 years 5-7 years 5-7 years
Expected volatility............... 40% 40% 40%
</TABLE>
58
<PAGE> 61
REPUBLIC INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
8. COMMITMENTS AND CONTINGENCIES
LEGAL PROCEEDINGS
By letter dated January 11, 1996, Acme Commercial Corp. d/b/a CarMax, The
Auto Superstore, ("CarMax") accused the Company's wholly-owned subsidiary,
AutoNation USA of infringing CarMax's trademark rights by using the marks
AutoNation USA(SM) and "The Better Way to Buy a Car(SM)." AutoNation USA denied
such allegations and on February 5, 1996, filed suit in the U.S. District Court
for the Southern District of Florida seeking a declaratory judgment that its use
and registration of such marks do not violate any of the rights of CarMax. On or
about October 11, 1996, CarMax filed a counterclaim against AutoNation USA
seeking damages and an order enjoining AutoNation USA from using certain marks,
including the marks AutoNation USA and "The Better Way to Buy a Car." The case
is in the court's March 1998 trial calendar. Although it is impossible to
predict the outcome of this litigation, the Company believes that AutoNation USA
has a valid basis for its complaint and that CarMax's allegations and
counterclaims are without merit.
The Company is also a party to various other general corporate legal
proceedings which have arisen in the ordinary course of business. While the
results of these matters, as well as the matter described above cannot be
predicted with certainty, the Company believes that losses, if any, resulting
from the ultimate resolution of these matters will not have a material adverse
effect on the Company's consolidated results of operations, cash flows or
financial position. However, unfavorable resolution could affect the
consolidated results of operations or cash flows for the quarterly periods in
which they are resolved.
LEASE COMMITMENTS
The Company and its subsidiaries lease real property, equipment and
software under various operating leases with terms from 1 to 25 years. The
Company has also entered into various airport concession and permit agreements
which generally provide for payment of a percentage of revenue from vehicle
rentals with a guaranteed minimum lease obligation.
Expenses under real property, equipment and software leases and airport
concession agreements (excluding amounts charged through to customers) for the
years ended December 31 are as follows:
<TABLE>
<CAPTION>
1997 1996 1995
------ ------ ------
<S> <C> <C> <C>
Real property............................................... $ 61.8 $ 53.2 $ 44.4
Equipment and software...................................... 43.7 23.8 25.0
Airport concession and permit fees:
Minimum fixed obligations................................. 93.3 89.6 68.0
Additional amounts, based on revenue from vehicle
rentals................................................ 103.0 94.5 60.1
------ ------ ------
Total............................................. $301.8 $261.1 $197.5
====== ====== ======
</TABLE>
Future minimum lease obligations under noncancelable real property,
equipment and software leases and airport agreements with initial terms in
excess of one year at December 31, 1997 are as follows:
<TABLE>
<S> <C>
Year Ending December 31:
1998........................................................ $154.4
1999........................................................ 117.8
2000........................................................ 101.1
2001........................................................ 73.3
2002........................................................ 53.6
Thereafter.................................................. 119.8
------
$620.0
======
</TABLE>
59
<PAGE> 62
REPUBLIC INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
In connection with the development of the AutoNation USA megastores, the
Company is the lessee under a $500.0 million operating lease facility
established to acquire and develop properties used in its business. The Company
has guaranteed the residual value of the properties under this facility which
guarantee totaled approximately $326.5 million at December 31, 1997.
OTHER MATTERS
In the normal course of business, the Company is required to post
performance bonds, letters of credit, and/or cash deposits as a financial
guarantee of the Company's performance. To date, the Company has satisfied
financial responsibility requirements for regulatory agencies by making cash
deposits, obtaining bank letters of credit or by obtaining surety bonds. At
December 31, 1997, letters of credit and surety bonds totaling $368.6 million
expire through October 1999.
The Company's solid waste and environmental services activities are
conducted in the context of a developing and changing statutory and regulatory
framework. Governmental regulation of the waste management industry requires the
Company to obtain and retain numerous governmental permits to conduct various
aspects of its operations. These permits are subject to revocation, modification
or denial. The costs and other capital expenditures which may be required to
obtain or retain the applicable permits or comply with applicable regulations
could be significant.
9. EARNINGS (LOSS) PER SHARE
The Company adopted Statement of Financial Accounting Standards No. 128
("SFAS 128"), "Earnings Per Share" during 1997. SFAS 128 establishes standards
for computing and presenting basic and diluted earnings (loss) per share. Basic
earnings (loss) per share is computed by dividing net income (loss) by the
weighted average number of common shares outstanding during the year. Diluted
earnings (loss) per share is based on the combined weighted average number of
common shares and common share equivalents outstanding which include, where
appropriate, the assumed exercise or conversion of warrants and options. In
computing diluted earnings (loss) per share, the Company has utilized the
treasury stock method. All prior period earnings (loss) per share data have been
restated to conform with SFAS 128.
The computation of weighted average common and common equivalent shares
used in the calculation of basic and diluted earnings (loss) per share is as
follows for the years ended December 31:
<TABLE>
<CAPTION>
1997 1996 1995
----- ----- -----
<S> <C> <C> <C>
Weighted average shares outstanding used in calculating
basic earnings per share.................................. 403.1 307.0 234.6
Gross common equivalent shares.............................. 63.6 58.1 53.8
Weighted average treasury shares purchased.................. (24.3) (15.2) (7.6)
Effect of using weighted average common equivalent shares
outstanding............................................... (11.5) (8.3) (35.6)
----- ----- -----
Weighted average common and common equivalent shares used in
calculating diluted earnings per share.................... 430.9 341.6 245.2
===== ===== =====
</TABLE>
10. RESTRUCTURING AND OTHER CHARGES
During the year ended December 31, 1997, the Company recorded pre-tax
charges of approximately $244.1 million. These charges consisted of $150.0
million associated with combining the Company's franchised automotive
dealerships and used vehicle megastore operations into one automotive retail
division and $94.1 million associated with integrating the Company's automotive
rental operations. Approximately $85.0 million of the automotive retail charge
appears as restructuring and other charges in the Company's Consolidated
Statement of Operations for the year ended December 31, 1997 and consists of:
$42.0 million for
60
<PAGE> 63
REPUBLIC INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
consolidation of information systems; $25.0 million related primarily to
relocating the Company's Valu Stop(SM) operations; and $18.0 million of
severance and other costs. The remaining $65.0 million of the automotive retail
charge relates to inventory consolidation and is included in cost of automotive
retail sales in the Company's Consolidated Statement of Operations for the year
ended December 31, 1997. The primary components of the $94.1 million automotive
rental charge are as follows: $32.0 million related to elimination of redundant
information systems; $18.0 million related to fleet consolidation; and $44.1
million related to closure or sale of duplicate rental facilities and merger and
other non-recurring expenses. Through December 31, 1997, the Company has spent
approximately $58.1 million related to integration and other activities and has
recorded $92.3 million of these charges against certain assets. As of December
31, 1997, approximately $93.7 million remained in accrued liabilities related to
these charges. The Company believes the integration activities associated with
these charges will be substantially completed within one year.
During the year ended December 31, 1996, the Company recorded pre-tax
charges of approximately $95.5 million related primarily to the integration of
the operations of Alamo Rent-A-Car, Inc. into those of the Company. Also
included in these charges are merger expenses associated with certain
acquisitions accounted for under the pooling of interests method of accounting.
Approximately $38.3 million of such expenses appear as restructuring and other
charges in the Company's Consolidated Statement of Operations for the year ended
December 31, 1996 with the remainder of approximately $57.2 million included in
cost of automotive rental operations and selling, general and administrative
expenses. These costs primarily include asset write-offs, severance benefits,
accounting and legal merger costs and changes in various estimated reserve
requirements. Through December 31, 1997, the Company has spent substantially all
of the $38.3 million included in restructuring and other charges in the 1996
Consolidated Statement of Operations.
11. DISCONTINUED OPERATIONS
In October 1997, the Company sold its electronic security services division
for approximately $610.0 million resulting in an after tax gain of approximately
$230.0 million. Accordingly, the operating results and gain on disposition of
the electronic security services segment have been classified as discontinued
operations for all periods presented in the accompanying Consolidated Financial
Statements. Revenue from the electronic security services segment was $83.8
million in 1997 for the period prior to disposition and $85.3 million and $49.8
million for the years ended December 31, 1996 and 1995, respectively.
During the year ended December 31, 1995, the Company disposed of its mining
and citrus operations and spun-off its hazardous waste services segment
resulting in a loss from discontinued operations of approximately $25.1 million,
net of income taxes. Included in the 1995 loss from discontinued operations is a
$30.5 million loss on disposal of the Company's mining and citrus operations,
net of income tax benefits of $10.0 million. Revenue from the mining and citrus
and hazardous waste services operations was $118.4 million in 1995 for the
period prior to disposition. Operating results for the period prior to
disposition have been classified as discontinued operations in the accompanying
Consolidated Financial Statements.
12. DERIVATIVE FINANCIAL INSTRUMENTS
The Company is exposed to market risks arising from changes in interest
rates. Due to its limited foreign operations, the Company does not have material
market risk exposures relative to changes in foreign exchange rates.
CREDIT EXPOSURE
The Company is exposed to credit related losses in the event of
non-performance by counterparties to certain derivative financial instruments.
The Company monitors the credit worthiness of the counterparties and presently
does not expect default by any of the counterparties. The Company does not
obtain collateral in connection with its derivative financial instruments.
61
<PAGE> 64
REPUBLIC INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The credit exposure that results from interest rate contracts is
represented by the fair value of contracts with a positive fair value as of the
reporting date. See Note 13, Fair Value of Financial Instruments, for the fair
value of derivatives. The Company's credit exposure on its interest rate
derivatives was not material at December 31, 1997 or 1996.
INTEREST RATE RISK MANAGEMENT
The Company uses interest rate swap agreements to manage the impact of
interest rate changes on the Company's variable rate revenue earning vehicle
obligations. The amounts exchanged by the counterparties to interest rate swap
agreements normally are based upon the notional amounts and other terms,
generally related to interest rates, of the derivatives. While notional amounts
of interest rate swaps form part of the basis for the amounts exchanged by the
counterparties, the notional amounts are not themselves exchanged, therefore, do
not represent a measure of the Company's exposure as an end user of derivative
financial instruments. At December 31, 1997 and 1996, notional principal amounts
related to interest rate swaps (variable to fixed rate) were $2.25 billion and
$801.9 million, respectively. The swap portfolio maturities are as follows as of
December 31, 1997: $300.0 million in 1998; $650.0 million in 1999; $1.0 billion
in 2000; $150.0 million in 2001; and $150.0 million in 2002. As of December 31,
1997, the weighted average fixed rate payment on variable to fixed rate swaps
was 5.93%. Variable rates received are indexed to the Commercial Paper
Nonfinancial rate ($2.2 billion notional principal amount) and LIBOR ($50.0
million notional principal amount).
13. FAIR VALUE OF FINANCIAL INSTRUMENTS
The fair value of a financial instrument represents the amount at which the
instrument could be exchanged in a current transaction between willing parties,
other than in a forced sale or liquidation.
Fair value estimates are made at a specific point in time, based on
relevant market information about the financial instrument. These estimates are
subjective in nature and involve uncertainties and matters of significant
judgment, and therefore cannot be determined with precision. The assumptions
used have a significant effect on the estimated amounts reported.
The following methods and assumptions were used by the Company in
estimating fair value disclosures for financial instruments:
- Cash and cash equivalents, receivables, other current assets, accounts
payable, accrued liabilities and variable rate debt: The amounts reported
in the accompanying Consolidated Balance Sheets approximate fair value.
- Medium-term notes payable: The estimated fair value of medium-term notes
payable is estimated based on the quoted market prices for the same or
similar issues.
- Other fixed-rate debt: Fixed rate mortgages are valued based upon
discounted expected cash flows at rates then offered to the Company for
debt of similar terms. The carrying amount of remaining fixed-rate debt
approximates fair value.
- Interest rate swaps: The fair value of interest rate swaps was determined
from dealer quotations and represents the discounted future cash flows
through maturity or expiration using current rates, and is effectively
the amount the Company would pay or receive to terminate the agreements.
62
<PAGE> 65
REPUBLIC INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The following table sets forth the carrying amounts and fair values of the
Company's financial instruments, except for those noted above for which carrying
amounts approximate fair values, as of December 31:
<TABLE>
<CAPTION>
1997 1996
----------------- -----------------
CARRYING FAIR CARRYING FAIR
(ASSETS) LIABILITIES AMOUNT VALUE AMOUNT VALUE
- -------------------- -------- ------ -------- ------
<S> <C> <C> <C> <C>
Medium-term notes payable............................ $902.8 $917.7 $799.6 $792.8
Other fixed-rate debt................................ 70.3 70.3 184.6 186.5
Interest rate swaps.................................. -- 8.0 -- .7
</TABLE>
14. BUSINESS AND CREDIT CONCENTRATIONS
AUTOMOTIVE RETAIL INDUSTRY
The Company owns and operates or has contracted to acquire a total of
approximately 260 franchised automotive dealerships located in 18 states.
Automotive dealerships operate pursuant to franchise agreements with
vehicle manufacturers. Franchise agreements generally provide the manufacturers
with considerable influence over the operations of the dealership and generally
provide for termination of the franchise agreement for a variety of causes. The
success of any franchised automotive dealership is dependent, to a large extent,
on the financial condition, management, marketing, production and distribution
capabilities of the vehicle manufacturers of which the Company holds franchises.
The Company purchases substantially all of its new vehicles from various
manufacturers at the prevailing prices charged by the manufacturers to all
franchised dealers. The Company's sales volume could be adversely impacted by
the manufacturers' inability to supply the dealerships with an adequate supply
of vehicles.
Concentrations of credit risk with respect to trade receivables related to
the Company's automotive retail operations are limited due to the wide variety
of customers and markets in which the Company's products are sold as well as
their dispersion across many different geographic areas in the United States.
Consequently, at December 31, 1997, the Company does not consider itself to have
any significant concentrations of credit risk in the automotive retail segment.
AUTOMOTIVE RENTAL INDUSTRY
The Company owns and operates vehicle rental facilities primarily in the
United States. The automotive rental industry in which the Company operates is
highly seasonal.
The Company enters into vehicle repurchase programs with one principal
vehicle manufacturer, as well as other vehicle manufacturers. At December 31,
1997 and 1996, the Company had vehicle receivables from manufacturers of $214.9
million and $125.4 million, respectively. During model year 1997, the Company
purchased approximately 70% of its vehicle fleet under repurchase programs with
one vehicle manufacturer.
Concentrations of credit risk with respect to non-vehicle receivables
related to the Company's automotive rental operations are limited due to the
wide variety of customers and markets in which services are provided as well as
their dispersion across many different geographic areas primarily in the United
States. Consequently, at December 31, 1997, the Company does not consider itself
to have any significant non-vehicle receivable concentrations of credit risk in
the automotive rental segment.
SOLID WASTE SERVICES INDUSTRIES
Concentrations of credit risk with respect to trade receivables related to
the Company's solid waste services segment are limited due to the wide variety
of customers and markets in which services are provided
63
<PAGE> 66
REPUBLIC INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
as well as their dispersion across many different geographic areas in the United
States. As a result, at December 31, 1997, the Company does not consider itself
to have any significant concentrations of credit risk in the solid waste
services segment.
15. RELATED PARTY TRANSACTIONS
As of December 31, 1996, approximately $247.5 million was due from
AutoNation Incorporated ("AutoNation") pursuant to a loan agreement whereby the
Company agreed to provide advances at an interest rate of LIBOR plus 2% to fund
AutoNation's cash flow requirements prior to its acquisition by the Company in
January 1997.
The Company purchased approximately $631.3 million and $351.8 million of
revenue earning vehicles from a group of automotive dealerships owned primarily
by a former director of a pooled company during the years ended December 31,
1996 and 1995, respectively.
16. OPERATIONS BY INDUSTRY SEGMENT
The Company operates subsidiaries in the automotive retail, automotive
rental, and solid waste services industries. The following table presents
financial information regarding the Company's different industry segments as of
and for the years ended December 31:
<TABLE>
<CAPTION>
1997 1996 1995
--------- -------- --------
<S> <C> <C> <C>
Revenue:
Automotive retail..................................... $ 6,122.8 $2,569.7 $1,962.4
Automotive rental..................................... 3,055.1 2,699.4 1,992.8
Solid waste services.................................. 1,127.7 825.5 571.7
--------- -------- --------
$10,305.6 $6,094.6 $4,526.9
========= ======== ========
Cost of operations:
Automotive retail..................................... $ 5,459.0 $2,290.2 $1,718.4
Automotive rental..................................... 2,377.0 2,167.2 1,613.9
Solid waste services.................................. 809.1 608.6 401.4
--------- -------- --------
$ 8,645.1 $5,066.0 $3,733.7
========= ======== ========
Selling, general and administrative:
Automotive retail..................................... $ 647.2 $ 254.9 $ 211.3
Automotive rental..................................... 497.4 537.1 393.5
Solid waste services.................................. 107.1 102.1 89.8
Corporate............................................. 30.1 21.7 4.3
--------- -------- --------
$ 1,281.8 $ 915.8 $ 698.9
========= ======== ========
Restructuring and other charges:
Automotive retail..................................... $ 85.0 $ -- $ --
Automotive rental..................................... 94.1 23.5 --
Solid waste services.................................. -- 8.8 3.3
Corporate............................................. -- 6.0 --
--------- -------- --------
$ 179.1 $ 38.3 $ 3.3
========= ======== ========
</TABLE>
64
<PAGE> 67
REPUBLIC INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
<TABLE>
<CAPTION>
1997 1996 1995
--------- -------- --------
<S> <C> <C> <C>
Operating income (loss):
Automotive retail..................................... $ (68.4) $ 24.6 $ 32.7
Automotive rental..................................... 86.6 (28.4) (14.6)
Solid waste services.................................. 211.5 106.0 77.2
Corporate............................................. (30.1) (27.7) (4.3)
--------- -------- --------
$ 199.6 $ 74.5 $ 91.0
========= ======== ========
Depreciation and amortization:
Automotive retail..................................... $ 32.6 $ 8.2 $ 7.5
Automotive rental..................................... 878.6 789.3 586.0
Solid waste services.................................. 87.8 67.2 54.4
Corporate............................................. 4.6 .6 --
--------- -------- --------
$ 1,003.6 $ 865.3 $ 647.9
========= ======== ========
Capital expenditures:
Automotive retail..................................... $ 168.9 $ 57.2 $ 50.7
Automotive rental..................................... 84.5 45.1 22.3
Solid waste services.................................. 165.1 137.0 156.1
Corporate............................................. 41.3 1.3 --
--------- -------- --------
$ 459.8 $ 240.6 $ 229.1
========= ======== ========
Assets:
Automotive retail..................................... $ 3,064.4 $ 659.2 $ 539.6
Automotive rental..................................... 5,899.1 4,734.1 3,908.3
Solid waste services.................................. 1,362.4 1,146.4 714.9
Corporate............................................. 201.4 195.3 174.0
--------- -------- --------
$10,527.3 $6,735.0 $5,336.8
========= ======== ========
</TABLE>
17. QUARTERLY FINANCIAL INFORMATION (UNAUDITED)
The Company's automotive rental operations and particularly the leisure
travel segment is highly seasonal. In these operations, the third quarter which
includes the peak summer travel months has historically been the strongest
quarter of the year. During the peak season the Company increases its rental
fleet and workforce to accommodate increased rental activity. As a result, any
occurrence that disrupts travel patterns during the summer period could have a
material adverse effect on the annual performance of this segment. The first and
fourth quarters for the Company's automotive rental operations are generally the
weakest, when there is limited leisure travel and a greater potential for
adverse weather conditions. Many of the operating expenses such as rent, general
insurance and administrative personnel are fixed and cannot be reduced during
periods of decreased rental demand.
The second and fourth quarters of 1997 included restructuring and other
pre-tax charges of approximately $94.1 million and $150.0 million, respectively,
as described in Note 10, Restructuring and Other Charges. The second quarter of
1997 also contained a gain on the sale of ADT Limited common stock of
approximately $102.3 million as described in Note 2, Business Combinations.
The third and fourth quarters of 1996 included pre-tax charges of
approximately $7.6 million and $87.9 million, respectively, as described in Note
10, Restructuring and Other Charges. The fourth quarter of 1996 also included an
extraordinary charge of approximately $31.6 million, net of income tax benefit,
related to the early extinguishment of debt as described in Note 4, Long-Term
Debt and Notes Payable.
65
<PAGE> 68
REPUBLIC INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The following is an analysis of certain items in the Consolidated
Statements of Operations by quarter for 1997 and 1996. Quarterly amounts have
been restated from amounts previously reported in Form 10-Q for significant
business combinations accounted for under the pooling of interests method of
accounting, to account for the Company's electronic security services segment as
discontinued operations and for the effect of adopting SFAS 128.
<TABLE>
<CAPTION>
FIRST SECOND THIRD FOURTH
QUARTER QUARTER QUARTER QUARTER
-------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Revenue........................................ 1997 $1,825.4 $2,428.4 $3,123.6 $2,928.2
1996 1,331.0 1,558.8 1,603.6 1,601.2
Operating income (loss)........................ 1997 $ 47.5 $ 10.1 $ 194.7 $ (52.7)
1996 33.7 56.6 79.9 (95.7)
Income (loss) from continuing operations before
extraordinary charge......................... 1997 $ 34.9 $ 69.7 $ 124.4 $ (28.8)
1996 17.8 29.0 43.0 (82.4)
Basic earnings (loss) per share from continuing
operations before extraordinary charge....... 1997 $ .09 $ .18 $ .30 $ (.07)
1996 .06 .10 .14 (.26)
Diluted earnings (loss) per share from
continuing operations before extraordinary
charge....................................... 1997 $ .09 $ .17 $ .28 $ (.07)
1996 .06 .09 .12 (.26)
Net income (loss).............................. 1997 $ 37.6 $ 73.3 $ 127.6 $ 201.2
1996 18.8 31.8 45.1 (111.5)
</TABLE>
66
<PAGE> 69
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
67
<PAGE> 70
PART III
The information required by Items 10, 11, 12 and 13 of Part III of Form
10-K will be set forth in the Proxy Statement of the Company relating to the
1998 Annual Meeting of Stockholders and is incorporated herein by reference.
68
<PAGE> 71
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a) (1) Financial Statements of the Company are set forth in Part II, Item
8.
(2) Financial Statement Schedule II, Valuation and Qualifying Accounts
and Reserves, for each of the three years ended December 31, 1997
is submitted herewith.
(3) Exhibits -- (See Index to Exhibits included elsewhere herein.)
(b) Form 8-K dated October 3, 1997, Item 2 (as amended by Form 8-K/A),
relating to the sale of substantially all of the assets of the
Company's electronic security services business segment to Ameritech
Corporation.
Form 8-K dated November 20, 1997, Item 5, reporting certain financial
information for consummated acquisitions.
69
<PAGE> 72
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Company has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
REGISTRANT:
REPUBLIC INDUSTRIES, INC.
By: /s/ H. WAYNE HUIZENGA
------------------------------------
H. Wayne Huizenga
Chairman of the Board and
Co-Chief Executive Officer
March 26, 1998
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed by the following persons on behalf of the Registrant and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ H. WAYNE HUIZENGA Chairman of the Board and March 26, 1998
- ----------------------------------------------------- Co-Chief Executive
H. Wayne Huizenga Officer (Principal
Executive Officer)
/s/ STEVEN R. BERRARD Co-Chief Executive Officer, March 26, 1998
- ----------------------------------------------------- President and Director
Steven R. Berrard
/s/ MICHAEL S. KARSNER Senior Vice President and March 26, 1998
- ----------------------------------------------------- Chief Financial Officer
Michael S. Karsner (Principal Financial and
Accounting Officer)
/s/ HARRIS W. HUDSON Vice Chairman and Director March 26, 1998
- -----------------------------------------------------
Harris W. Hudson
/s/ MICHAEL G. DEGROOTE Director March 26, 1998
- -----------------------------------------------------
Michael G. DeGroote
/s/ J.P. BRYAN Director March 26, 1998
- -----------------------------------------------------
J.P. Bryan
/s/ RICK L. BURDICK Director March 26, 1998
- -----------------------------------------------------
Rick L. Burdick
/s/ GEORGE D. JOHNSON, JR. Director March 26, 1998
- -----------------------------------------------------
George D. Johnson, Jr.
/s/ JOHN J. MELK Director March 26, 1998
- -----------------------------------------------------
John J. Melk
/s/ ROBERT J. BROWN Director March 26, 1998
- -----------------------------------------------------
Robert J. Brown
</TABLE>
70
<PAGE> 73
REPUBLIC INDUSTRIES, INC. AND SUBSIDIARIES
VALUATION AND QUALIFYING ACCOUNT AND RESERVES
SCHEDULE II
(IN MILLIONS)
<TABLE>
<CAPTION>
BALANCE
AT ADDITIONS ACCOUNTS BALANCE
BEGINNING CHARGED TO WRITTEN AT END
OF YEAR INCOME OFF OTHER(1) OF YEAR
--------- ---------- -------- -------- -------
<S> <C> <C> <C> <C> <C>
CLASSIFICATIONS
Allowance for doubtful accounts:
1997............................................. $17.5 $12.5 $(9.0) $29.9 $50.9
1996............................................. 11.4 9.9 (6.3) 2.5 17.5
1995............................................. 6.3 4.4 (.9) 1.6 11.4
</TABLE>
- ---------------
(1) Allowance of acquired businesses.
71
<PAGE> 74
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBITS DESCRIPTION OF EXHIBIT
- -------- ----------------------
<C> <C> <S>
2.1 -- Agreement and Plan of Merger and Reorganization, dated May
30, 1991, by and between Republic Waste Industries, Inc., an
Oklahoma corporation, and Republic Waste Industries, Inc., a
Delaware corporation (incorporated by reference to Exhibit
3.1 to the Registrant's Annual Report on Form 10-K for the
year ended December 31, 1991)
3.1 -- Third Amended and Restated Certificate of Incorporation of
Republic Industries, Inc. (incorporated by reference to
Exhibit 99 to the Registrant's Current Report on Form 8-K
Dated May 14, 1997).
3.2 -- Bylaws of Republic Industries, Inc., as amended to date
(incorporated by reference to Exhibit 3.2 to the
Registrant's Annual Report on Form 10-K for the year ended
December 31, 1995).
4.1 -- Credit Facilities and Reimbursement Agreement dated as of
April 23, 1997, by and among Republic Industries, Inc., and
Republic Resources Company, as Borrowers, NationsBank,
National Association (South), as Arranger and Administrative
Agent, Various Co-Agents Listed Therein and Various Lenders
Listed Therein (incorporated by reference to Exhibit 4.22 to
the Registrant's Current Report on Form 8-K, dated June 13,
1997).
4.2* -- Base Indenture dated as of April 30, 1996, between National
Car Rental Financing L.P. as Issuer and The Bank of New York
as Trustee.
4.3* -- Master Motor Vehicle Lease and Servicing Agreement dated as
of October 29, 1997, among National Car Rental Financing
Limited Partnership; National Car Rental System, Inc.; Alamo
Rent-A-Car, Inc.; Spirit Rent-A-Car, Inc.; and those
subsidiaries and affiliates of Republic Industries from time
to time becoming Lessees and Servicers thereunder; and
Republic Industries, Inc.
4.4* -- Second Amended and Restated Master Collateral Agency
Agreement among Republic Industries, Inc.; National Car
Rental Financing Limited Partnership; Alamo Rent-A-Car,
Inc.; National Car Rental System, Inc.; Spirit Rent-A-Car,
Inc.; Value Rent-A-Car, Inc.; Citibank, N.A.; Various
Financing Sources Parties Thereto; and Various Beneficiaries
Parties Thereto.
4.5* -- Series 1997-1 Supplement to the Base Indenture between
National Car Rental Financing Limited Partnership and The
Bank of New York.
4.6* -- Series 1997-1 Support Reimbursement Agreement among Republic
Industries Funding Corp.; Alamo Rent-A-Car, Inc.; National
Car Rental System, Inc.; Spirit Rent-A-Car, Inc.; Value
Rent-A-Car, Inc.; those additional Subsidiaries and
Affiliates of Republic Industries, Inc. from time to time
becoming Additional Lessees thereunder; National Car Rental
Financing Limited Partnership; Republic Industries, Inc.;
and those financial institutions identified on the signature
pages thereto as the Series 1997-1 Support Letter of Credit
Providers.
4.7* -- Series 1997-1 Letter of Credit Agreement among Republic
Industries Funding Corp.; Alamo Rent-A-Car, Inc.; National
Car Rental System, Inc.; Spirit Rent-A-Car, Inc.; Value
Rent-A-Car, Inc.; those additional Subsidiaries and
Affiliates of Republic Industries, Inc. from time to time
becoming Additional lessees thereunder; Republic Industries,
Inc.; and Westdeutsche Landesbank Girozentrale, New York
Branch.
4.8* -- Series 1997-1 Note Purchase Agreement (Variable Funding
Rental Car Asset Backed Notes, Series 1997-1) among National
Car Rental Financing Limited Partnership; Republic
Industries Funding Corp.; and Credit Suisse First Boston.
4.9* -- Series 1997-1 Liquidity Agreement among Republic Industries
Funding Corp.; Certain Financial Institutions; and Credit
Suisse First Boston.
</TABLE>
72
<PAGE> 75
<TABLE>
<CAPTION>
EXHIBITS DESCRIPTION OF EXHIBIT
- -------- ----------------------
<C> <C> <S>
4.10* -- Series 1997-1 Collateral Agreement among Republic Industries
Funding Corp.; General Motors Corporation; Certain Financing
Institutions identified therein as the Series 1997-1 Support
Letter of Credit Providers; Westdeutsche Landesbank
Girozentrale, New York Branch; Credit Suisse First Boston;
Credit Suisse First Boston Corporation; Bancamerica
Robertson Stephens; Chase Securities, Inc.; Citicorp
Securities, Inc.; and Merrill Lynch Money Markets, Inc.; and
Citibank, N.A.
Note: Pursuant to the provisions of Item 601(b)(4)(iii) of
Regulation S-K, the registrant hereby undertakes to furnish
to the Commission upon request copies of any instruments
governing long-term debt of Republic and its consolidated
subsidiaries that does not exceed 10% of the total assets of
Republic and its subsidiaries on a consolidated basis.
10.1 -- Republic Waste Industries, Inc. 1990 Stock Option and Stock
Purchase Plan (incorporated by reference to Exhibit 10.1(a)
to the Registrant's Registration Statement on Form S-1
Commission File No. 33-37191).
10.2 -- Warrant to Purchase 1,150,000 Shares of Republic Waste
Industries, Inc. Common Stock issued to MGD Holdings Ltd.
(incorporated by reference to Exhibit 10.18 to the
Registrant's Registration Statement on Form S-1 Commission
File No. 33-42530).
10.3 -- Republic Waste Industries, Inc. 1991 Stock Option Plan
(incorporated by reference to Exhibit 10.42 to the
Registrant's Annual Report on Form 10-K for the year ended
December 31, 1992).
10.4 -- Form of Warrant to purchase 50,000 shares of Republic Waste
Industries, Inc. Common Stock issued to Rick L. Burdick
(incorporated by reference to Exhibit 10.35 to the
Registrant's Annual Report on Form 10-K for the year ended
December 31, 1994).
10.5 -- Stock Purchase Agreement, dated May 21, 1995, by and between
H. Wayne Huizenga and Republic Waste Industries, Inc.
(incorporated by reference to Exhibit (c)(1) to the
Registrant's Current Report on Form 8-K/A, dated July 17,
1995).
10.6 -- Stock Purchase Agreement, dated May 21, 1995, by and between
Harris W. Hudson and Republic Waste Industries, Inc.
(incorporated by reference to Exhibit (c)(4) to the
Registrant's Current Report on Form 8-K/A, dated July 17,
1995).
10.7 -- Stock Purchase Agreement, dated May 21, 1995, by and between
Westbury (Bermuda) Ltd. and Republic Waste Industries, Inc.
(incorporated by reference to Exhibit (c)(5) to the
Registrant's Current Report on Form 8-K/A, dated July 17,
1995).
10.8 -- First Amendment to Stock Purchase Agreement, dated July 17,
1995, by and between Republic Waste Industries, Inc. and H.
Wayne Huizenga (incorporated by reference to Exhibit (c)(8)
to the Registrant's Current Report on Form 8-K/A, dated July
17, 1995).
10.9 -- Republic Industries, Inc. 1995 Amended and Restated Employee
Stock Option Plan (incorporated by reference to Appendix B
to the Registrant's Proxy Statement for the 1996 Annual
Meeting of Stockholders).
10.10 -- Republic Industries, Inc. Amended and Restated 1995
Non-Employee Director Stock Option Plan (incorporated by
reference to Exhibit B to the Registrant's Information
Statement dated November 8, 1995).
10.11 -- Merger Agreement, dated as of May 8, 1996 ("AutoNation
Merger Agreement"), by and among Republic Industries, Inc.,
RI/ANI Merger Corp., AutoNation Incorporated, H. Wayne
Huizenga, Steven R. Berrard and JM Family Enterprises, Inc.
(incorporated by reference to Exhibit 99.1 to the
Registrant's Current Report on Form 8-K, dated May 8, 1996).
10.12 -- Loan Agreement, dated May 8, 1996 ("AutoNation Loan
Agreement"), by and between AutoNation Incorporated and
Republic Industries, Inc. (incorporated by reference to
Exhibit 99.2 to the Registrant's Current Report on Form 8-K,
dated May 8, 1996).
10.13 -- Employment Agreement, dated as of May 8, 1996, among
Republic Industries, Inc. and Steven R. Berrard
(incorporated by reference to Exhibit 10.34 to the
Registrant's Registration Statement on Form S-4 Commission
File No. 333-17867).
</TABLE>
73
<PAGE> 76
<TABLE>
<CAPTION>
EXHIBITS DESCRIPTION OF EXHIBIT
- -------- ----------------------
<C> <C> <S>
10.14 -- First Amendment to AutoNation Merger Agreement, dated as of
September 30, 1996 (incorporated by reference to Annex A to
the Registrant's Schedule 14A Proxy Statement, dated
December 13, 1996).
10.15 -- Second Amendment to AutoNation Merger Agreement and First
Amendment to AutoNation Loan Agreement and Related Loan
Documents, dated as of October 31, 1996 (incorporated by
reference to Annex A to the Registrant's Schedule 14A Proxy
Statement dated December 13, 1996).
10.16 -- Third Amendment to AutoNation Merger Agreement, dated as of
December 31, 1996 (incorporated by reference to Exhibit 2.2
to the Registrant's Current Report on Form 8-K/A dated
January 16, 1997).
10.17 -- Agreement and Plan of Merger, dated as of June 25, 1996,
among Addington Resources, Inc., Republic Industries, Inc.
and RI/AR Merger Corp. (incorporated by reference to Exhibit
99.1 to the Registrant's Current Report on Form 8-K dated
June 25, 1996).
10.18 -- Agreement and Plan of Merger, dated as of June 27, 1996,
among Continental Waste Industries, Inc., Republic
Industries, Inc., and RI/CW Merger Corp. (incorporated by
reference to Exhibit 99.1 to the Registrant's Current Report
on Form 8-K, dated June 27, 1996).
10.19** -- Letter Agreement between National Car Rental System, Inc.
and General Motors Corporation dated September 23, 1996.
10.20** -- Letter Agreement between Alamo Rent-A-Car, Inc. and General
Motors Corporation dated October 8, 1996.
10.21 -- Agreement and Plan of Reorganization, dated November 6,
1996, among Republic Industries, Inc., certain acquisition
subsidiaries of Republic Industries, Inc., Michael S. Egan,
Norman D. Tripp, William H. Kelly, Michael S. Egan as
trustee of certain trusts, Alamo Rent-A-Car, Inc., and
certain affiliated entities of Alamo Rent-A-Car, Inc.
(incorporated by reference to Exhibit 2 to the Registrant's
Current Report on Form 8-K dated November 25, 1996).
10.22 -- Letter Agreement between Alamo Rent-A-Car, Inc. and General
Motors Corporation (incorporated by reference to Exhibit
10.16 to the Registration Statement on Form S-1 of Alamo
Rent-A-Car, Inc. Commission File No. 33-80271).
10.23 -- Share Exchange Agreement, dated as of January 5, 1997, among
Republic Industries, Inc., National Car Rental Systems, Inc.
("National") and the stockholders of National (incorporated
by reference to Exhibit 2 to the Registrant's Current Report
on Form 8-K dated January 5, 1997).
10.24 -- Asset Purchase Agreement, dated as of September 26, 1997
among Republic Industries, Inc., Republic Security Companies
Holding Co. II, Inc., Ameritech Corporation and Ameritech
Monitoring Services, Inc. (incorporated by reference from
Exhibit 2.1 to the Registrant's Current Report on Form 8-K
dated October 3, 1997).
10.25** -- Letter Agreement between Alamo Rent-A-Car, Inc. and General
Motors Corporation dated November 18, 1997.
10.26** -- Letter Agreement between National Car Rental System, Inc.
and General Motors Corporation dated November 18, 1997.
10.27* -- Amended and Restated 1997 Employee Stock Option Plan.
21.1* -- Subsidiaries of Republic Industries, Inc.
23.1* -- Consent of Arthur Andersen LLP.
27.1* -- 1997 Financial Data Schedule (for SEC use only).
</TABLE>
- ---------------
* Filed herewith.
** Filed herewith; portions of this agreement have been omitted pursuant to a
request for confidential treatment filed with the Securities and Exchange
Commission.
74
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-4.2
<SEQUENCE>2
<DESCRIPTION>BASE INDENTURE NATIONAL CAR RENTAL
<TEXT>
<PAGE> 1
EXHIBIT 4.2
NATIONAL CAR RENTAL FINANCING
LIMITED PARTNERSHIP,
as Issuer,
and
THE BANK OF NEW YORK,
as Trustee
----------
BASE INDENTURE
Dated as of April 30, 1996
----------
Rental Car Asset Backed Notes
(Issuable in Series)
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Section Page
- ------- ----
<S> <C> <C>
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
1.1. Definitions................................................................................... 1
1.2. Cross-References.............................................................................. 1
1.3. Accounting and Financial Determinations; No Duplication....................................... 2
1.4. Rules of Construction......................................................................... 2
ARTICLE 2.
THE NOTES
2.1. Designation and Terms of Notes................................................................ 3
2.2. Notes Issuable in Series...................................................................... 3
2.3. Supplement For Each Series.................................................................... 7
2.4. Execution and Authentication.................................................................. 10
2.5. Form of Notes; Book Entry Provisions; Title................................................... 11
2.6. Registrar and Paying Agent.................................................................... 12
2.7. Paying Agent to Hold Money in Trust........................................................... 13
2.8. Noteholder Lists.............................................................................. 14
2.9. Transfer and Exchange......................................................................... 14
2.10. Legending of Notes............................................................................ 21
2.11. Replacement Notes............................................................................. 21
2.12. Treasury Notes................................................................................ 22
2.13. Temporary Notes............................................................................... 23
2.14. Cancellation.................................................................................. 23
2.15. Principal and Interest........................................................................ 24
2.16. Book-Entry Notes.............................................................................. 24
2.17. Notices to Clearing Agency.................................................................... 27
2.18. Definitive Notes.............................................................................. 27
2.19. Tax Treatment................................................................................. 29
2.20. Certain Purchaser Representations and Certifications.......................................... 30
</TABLE>
-i-
<PAGE> 3
<TABLE>
<CAPTION>
Section Page
- ------- ----
<S> <C> <C>
ARTICLE 3.
SECURITY
3.1. Grant of Security Interest.................................................................... 31
3.2. Certain Rights and Obligations of NFLP Unaffected............................................. 33
3.3. Performance of Agreement...................................................................... 35
3.4. Release of Lien on Vehicles................................................................... 35
3.5. Stamp, Other Similar Taxes and Filing Fees.................................................... 35
ARTICLE 4.
REPORTS
4.1. Agreement of Servicer to Provide Reports...................................................... 36
ARTICLE 5.
ALLOCATION AND APPLICATION OF COLLECTIONS
5.1. Collection Account............................................................................ 36
5.2. Collections and Allocations................................................................... 38
5.3. Determination of Monthly Interest............................................................. 41
5.4. Determination of Monthly Principal............................................................ 41
5.5. Paired Series................................................................................. 41
ARTICLE 6.
DISTRIBUTIONS AND REPORTS TO NOTEHOLDERS
6.1. Distributions in General...................................................................... 42
6.2. Distributions to Retained Distribution Account................................................ 43
6.3. Optional Repurchase of Notes.................................................................. 43
6.4. Monthly Noteholders' Statement................................................................ 44
ARTICLE 7.
REPRESENTATIONS AND WARRANTIES
7.1. Legal Existence and Power..................................................................... 45
7.2. Authorization................................................................................. 45
7.3. Binding Effect................................................................................ 46
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<CAPTION>
Section Page
- ------- ----
<S> <C> <C>
7.4. Financial Information; Financial Condition.................................................... 46
7.5. Litigation.................................................................................... 46
7.6. No ERISA Plan................................................................................. 47
7.7. Tax Filings and Expenses...................................................................... 47
7.8. Disclosure.................................................................................... 47
7.9. Investment Company Act; Securities Act........................................................ 47
7.10. Regulations G, T, U and X..................................................................... 48
7.11. No Consent.................................................................................... 48
7.12. Solvency...................................................................................... 48
7.13. Ownership; Subsidiary......................................................................... 48
7.14. Security Interests............................................................................ 49
7.15. Binding Effect of Lease....................................................................... 50
7.16. Non-Existence of Other Agreements............................................................. 50
7.17. Manufacturer Programs......................................................................... 50
7.18. Other Representations......................................................................... 50
ARTICLE 8.
COVENANTS
8.1. Payment of Notes.............................................................................. 50
8.2. Maintenance of Office or Agency............................................................... 51
8.3. Information................................................................................... 51
8.4. Payment of Obligations........................................................................ 53
8.5. Reserved...................................................................................... 53
8.6. Conduct of Business and Maintenance of Existence.............................................. 53
8.7. Compliance with Laws.......................................................................... 53
8.8. Inspection of Property, Books and Records..................................................... 53
8.9. Compliance with Related Documents............................................................. 54
8.10. Notice of Defaults............................................................................ 54
8.11. Notice of Material Proceedings................................................................ 54
8.12. Further Requests.............................................................................. 55
8.13. Further Assurances............................................................................ 55
8.14. Manufacturer Programs......................................................................... 56
8.15. Liens......................................................................................... 57
8.16. Other Indebtedness............................................................................ 57
8.17. Mergers....................................................................................... 58
8.18. Sales of Assets............................................................................... 58
8.19. Acquisition of Assets......................................................................... 58
8.20. Dividends, Officers' Compensation, etc........................................................ 58
8.21. Name; Principal Office........................................................................ 58
</TABLE>
-iii-
<PAGE> 5
<TABLE>
<CAPTION>
Section Page
- ------- ----
<S> <C> <C>
8.22. Organizational Documents...................................................................... 59
8.23. Investments................................................................................... 59
8.24. No Other Agreements........................................................................... 59
8.25. Other Business................................................................................ 60
8.26. Maintenance of Separate Existence............................................................. 60
8.27. Rule 144A Information Requirement............................................................. 61
8.28. Use of Proceeds of Notes...................................................................... 61
8.29. Vehicles...................................................................................... 62
8.30. Amendments to Exchange Documents.............................................................. 62
8.31. Demand Note................................................................................... 62
ARTICLE 9.
AMORTIZATION EVENTS AND REMEDIES
9.1. Amortization Events........................................................................... 62
9.2. Rights of the Trustee upon Amortization Event or Certain Other Events of Default.............. 64
9.3. Special Provisions Concerning Remedies Upon Liquidation Event of Default in Conjunction with
a Manufacturer Event of Default or Inability to Turn Back under Manufacturer Program..... 68
9.4. Other Remedies................................................................................ 70
9.5. Waiver of Past Events......................................................................... 70
9.6. Control by Requisite Investors................................................................ 71
9.7. Limitation on Suits........................................................................... 71
9.8. Unconditional Rights of Holders to Receive Payment............................................ 72
9.9. Collection Suit by the Trustee................................................................ 72
9.10. The Trustee May File Proofs of Claim.......................................................... 72
9.11. Priorities.................................................................................... 73
9.12. Undertaking for Costs......................................................................... 73
9.13. Rights and Remedies Cumulative................................................................ 73
9.14. Delay or Omission Not Waiver.................................................................. 73
9.15. Reassignment of Surplus....................................................................... 74
ARTICLE 10.
THE TRUSTEE
10.1. Duties of the Trustee......................................................................... 74
10.2. Rights of the Trustee......................................................................... 76
</TABLE>
-iv-
<PAGE> 6
<TABLE>
<CAPTION>
Section Page
- ------- ----
<S> <C> <C>
10.3. Individual Rights of the Trustee.............................................................. 77
10.4. Notice of Amortization Events and Potential Amortization Events............................... 77
10.5. Compensation.................................................................................. 77
10.6. Replacement of the Trustee.................................................................... 78
10.7. Successor Trustee by Merger, etc.............................................................. 79
10.8. Eligibility Disqualification.................................................................. 80
10.9. Appointment of Co-Trustee or Separate Trustee................................................. 80
10.10. Representations and Warranties of Trustee..................................................... 82
ARTICLE 11.
DISCHARGE OF INDENTURE
11.1. Termination of NFLP's Obligations............................................................. 82
11.2. Application of Trust Money.................................................................... 84
11.3. Repayment to NFLP............................................................................. 84
ARTICLE 12.
AMENDMENTS
12.1. Without Consent of the Noteholders............................................................ 85
12.2. With Consent of the Noteholders............................................................... 86
12.3. Supplements................................................................................... 88
12.4. Revocation and Effect of Consents............................................................. 88
12.5. Notation on or Exchange of Notes.............................................................. 88
12.6. The Trustee to Sign Amendments, etc........................................................... 88
ARTICLE 13.
MISCELLANEOUS
13.1. Notices....................................................................................... 89
13.2. Communication by Noteholders With Other Noteholders........................................... 90
13.3. Certificate as to Conditions Precedent........................................................ 90
13.4. Statements Required in Certificate............................................................ 91
13.5. Rules by the Trustee and the Paying Agent..................................................... 91
13.6. No Recourse Against Others.................................................................... 91
13.7. Duplicate Originals........................................................................... 91
</TABLE>
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<TABLE>
<CAPTION>
Section Page
- ------- ----
<S> <C> <C>
13.8. Benefits of Indenture......................................................................... 92
13.9. Payment on Business Day....................................................................... 92
13.10. Governing Law................................................................................. 92
13.11. No Adverse Interpretation of Other Agreements................................................. 92
13.12. Successors.................................................................................... 92
13.13. Severability.................................................................................. 92
13.14. Counterpart Originals......................................................................... 93
13.15. Table of Contents, Headings, etc.............................................................. 93
13.16. Termination; Collateral....................................................................... 93
13.17. No Bankruptcy Petition Against NFLP or the General Partner.................................... 93
13.18. No Recourse................................................................................... 94
</TABLE>
EXHIBITS AND SCHEDULES
SCHEDULE 1 DEFINITIONS LIST (ss. 1.1)
EXHIBIT A-1 RM OF TRANSFER CERTIFICATE (ss. 2.8)
EXHIBIT A-2 RESERVED
EXHIBIT A-3 FORM OF TRANSFER CERTIFICATE FOR EXCHANGE
OR TRANSFER FROM RESTRICTED GLOBAL
NOTE TO TEMPORARY GLOBAL NOTE (ss. 2.9)
EXHIBIT A-4 FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM RESTRICTED GLOBAL
NOTE TO PERMANENT GLOBAL NOTE (ss. 2.9)
EXHIBIT A-5 FORM OF TRANSFER CERTIFICATE FOR TRANSFER
OR EXCHANGE FROM TEMPORARY GLOBAL
NOTE TO RESTRICTED GLOBAL NOTE (ss. 2.9)
EXHIBIT B FORM OF CLEARING SYSTEM CERTIFICATE
EXHIBIT C FORM OF CERTIFICATE OF BENEFICIAL OWNERSHIP
EXHIBIT D FORM OF REPRESENTATION LETTERS
EXHIBIT E FORM OF MONTHLY TRUSTEE'S CERTIFICATE
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<PAGE> 8
BASE INDENTURE, dated as of April 30, 1996, between NATIONAL
CAR RENTAL FINANCING LIMITED PARTNERSHIP, a special purpose Delaware limited
partnership, as issuer ("NFLP"), and THE BANK OF NEW YORK, a New York banking
corporation, as trustee (in such capacity, the "Trustee").
W I T N E S S E T H:
WHEREAS, NFLP has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of one or more
series of NFLP's Rental Car Asset Backed Notes (the "Notes"), issuable as
provided in this Indenture;
WHEREAS, all things necessary to make this Indenture a legal,
valid and binding agreement of NFLP, in accordance with its terms, have been
done, and NFLP proposes to do all the things necessary to make the Notes, when
executed by NFLP and authenticated and delivered by the Trustee hereunder and
duly issued by NFLP, the legal, valid and binding obligations of NFLP as
hereinafter provided;
NOW, THEREFORE, for and in consideration of the premises and
the receipt of the Notes by the Noteholders, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Noteholders, as follows:
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
Certain capitalized terms used herein (including the preamble
and the recitals hereto) shall have the meanings assigned to such terms in the
Definitions List attached hereto as Schedule 1 (the "Definitions List"), as such
Definitions List may be amended or modified from time to time in accordance with
the provisions hereof.
Section 1.2. Cross-References.
Unless otherwise specified, references in this Indenture and
in each other Related Document to any Article or Section are references to such
Article or Section of this Indenture or such other Related Document, as the case
may be and, unless otherwise specified, references in any Article, Section or
definition to any clause are references to such clause of such Article, Section
or definition.
<PAGE> 9
Section 1.3. Accounting and Financial Determinations;
No Duplication.
Where the character or amount of any asset or liability or
item of income or expense is required to be determined, or any accounting
computation is required to be made, for the purpose of this Indenture, such
determination or calculation shall be made, to the extent applicable and except
as otherwise specified in this Indenture, in accordance with GAAP. When used
herein, the term "financial statement" shall include the notes and schedules
thereto. All accounting determinations and computations hereunder or under any
other Related Documents shall be made without duplication.
Section 1.4. Rules of Construction.
In this Indenture, unless the context otherwise requires:
(i) the singular includes the plural and vice
versa;
(ii) reference to any Person includes such Person's
successors and assigns but, if applicable, only if such
successors and assigns are permitted by this Indenture, and
reference to any Person in a particular capacity only refers
to such Person in such capacity;
(iii) reference to any gender includes the other
gender;
(iv) reference to any Requirement of Law means such
Requirement of Law as amended, modified, codified or
reenacted, in whole or in part, and in effect from time to
time;
(v) "including" (and with correlative meaning
"include") means including without limiting the generality of
any description preceding such term; and
(vi) with respect to the determination of any period
of time, "from" means "from and including" and "to" means "to
but excluding".
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<PAGE> 10
ARTICLE 2.
THE NOTES
Section 2.1. Designation and Terms of Notes.
Each Series of Notes shall be substantially in the form
specified in the applicable Supplement and shall bear, upon its face, the
designation for such Series to which it belongs so selected by NFLP. Except as
specified in any Supplement for a related Series, all Notes of any Series shall
be equally and ratably entitled as provided herein to the benefits hereof
without preference, priority or distinction on account of the actual time or
times of authentication and delivery, all in accordance with the terms and
provisions of this Indenture and the applicable Supplement. The aggregate
principal amount of Notes which may be authenticated and delivered under this
Indenture is unlimited. The Notes shall be in denominations of $250,000 and
integral multiples of $1,000 in excess thereof.
Section 2.2. Notes Issuable in Series.
The Notes may be issued in one or more Series. Each Series of
Notes shall be created by a Supplement. Notes of a new Series may from time to
time be executed by NFLP and delivered to the Trustee for authentication and
thereupon the same shall be authenticated and delivered by the Trustee upon the
receipt by the Trustee of a Company Request at least two (2) Business Days in
advance of the Closing Date for such Series and upon delivery by NFLP to the
Trustee, and receipt by the Trustee, of the following:
(a) a Company Order authorizing and directing the
authentication and delivery of the Notes of such new Series by the
Trustee and specifying the designation of such new Series, the
aggregate principal amount of Notes of such new Series to be
authenticated and the Note Rate (or the method for allocating interest
payments or other cash flow) with respect to such new Series;
(b) a Supplement in form satisfactory to the Trustee executed
by NFLP, the General Partner and the Trustee and specifying the
Principal Terms of such new Series;
(c) the related Enhancement Agreement, if any,
executed by each of the parties thereto, other than the
Trustee;
(d) written confirmation that the Rating Agency Condition
shall have been satisfied with respect to such issuance;
(e) an Officer's Certificate of NFLP dated as of the
applicable Closing Date to the effect that (i) no Amortization Event,
Asset Amount Deficiency, Enhancement Agreement Event of Default, if
applicable, Lease Event of Default, Manufacturer Event of Default,
Potential Amortization Event, Potential Enhancement Agreement Event of
Default, Potential Lease Event of Default, or Potential Manufacturer
Event of Default is continuing or will occur as a result of the
issuance of the new Series of Notes, (ii) the aggregate Market Value of
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<PAGE> 11
all Non-Program Vehicles on such date (including all Non-Program
Vehicles to be acquired, financed or refinanced on the Closing Date for
such Series) equals or exceeds the aggregate Net Book Value of such
Non-Program Vehicles as of such date, (iii) the issuance of the new
Series of Notes will not result in any breach of any of the terms,
conditions or provisions of or constitute a default under any
indenture, mortgage, deed of trust or other agreement or instrument to
which NFLP is a party or by which it or its property is bound or any
order of any court or administrative agency entered in any suit, action
or other judicial or administrative proceeding to which NFLP is a party
or by which it or its property may be bound or to which it or its
property may be subject, (iv) all conditions precedent provided in this
Base Indenture and the related Supplement with respect to the
authentication and delivery of the new Series of Notes have been
complied with and (v) if such new Series of Notes is a Segregated
Series, the criteria used to select the Series-Specific Collateral will
not have a material adverse effect on the quality of the Collateral
securing any other outstanding Series of Notes;
(f) unless otherwise specified in the related Supplement, an
Opinion of Counsel, subject to the assumptions and qualifications
stated therein, and in a form substantially acceptable to the Trustee,
dated the applicable Closing Date, substantially to the effect that:
(i) (x) the new Series of Notes will be treated as
indebtedness of NFLP for Federal and Minnesota state income
tax purposes and (y) the issuance of such Series will not
adversely affect the Federal or Minnesota state income tax
characterization of the Outstanding Notes of any Series;
(ii) all instruments furnished to the Trustee conform
in all material respects to the requirements of this Base
Indenture and the related Supplement and constitute all the
documents required to be delivered hereunder and thereunder
for the Trustee to authenticate and deliver the new Series of
Notes, and all conditions precedent provided for in this Base
Indenture and the related Supplement with respect to the
authentication and delivery of the new Series of Notes have
been complied with in all material respects;
(iii) (x) NFLP is a limited partnership duly
organized under the laws of the jurisdiction of its
organization and has the partnership power and authority to
execute and deliver the related Supplement (and, in the case
of the first Series to be
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<PAGE> 12
authenticated hereunder, this Base Indenture and each other
Related Document to which it is a party) and to issue the new
Series of Notes, (y) the General Partner is duly incorporated
under the jurisdiction of its incorporation and has the
corporate power and authority to execute and deliver the
related Supplement (and, in the case of the first Series to be
authenticated hereunder, this Base Indenture and each other
Related Document to which it is a party) and to issue the new
Series of Notes and (z) National, in its capacity as Lessee
and as Servicer is duly incorporated in the jurisdiction of
its incorporation and, as of the date of this Indenture, has
the corporate power and authority to execute and deliver each
of the Related Documents to which it is a party;
(iv) the related Supplement, this Base Indenture and
each of the other Related Documents to which NFLP, the General
Partner, the Lessee or the Servicer is a party have been duly
authorized, executed and delivered by NFLP, the General
Partner, the Lessee or the Servicer, as the case may be;
(v) the new Series of Notes has been
duly authorized and executed and, when authenticated and
delivered in accordance with the provisions of this Base
Indenture and the related Supplement, will constitute a valid,
binding and enforceable obligation of NFLP entitled to the
benefits of this Base Indenture and the related Supplement,
subject, in the case of enforcement, to bankruptcy,
insolvency, reorganization, moratorium and other similar laws
affecting creditor's rights generally and to general
principles of equity;
(vi) this Base Indenture, the related Supplement and
each of the other Related Documents to which NFLP, the General
Partner, the Lessee or the Servicer is a party are legal,
valid and binding agreements of NFLP, the General Partner, the
Lessee or the Servicer, as the case may be, enforceable in
accordance with their respective terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other similar laws
affecting creditors' rights generally and to general
principles of equity;
(vii) NFLP is not, and is not controlled by, an
"investment company" within the meaning of, and is not
required to register as an "investment company" under, the
Investment
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<PAGE> 13
Company Act of 1940, and this Base Indenture and the related
Supplement are not required to be registered under the Trust
Indenture Act;
(viii) the offer and sale of the new
Series of Notes is not required to be
registered under the Securities Act; and
(ix) as to the new Series of Notes and any
Outstanding Series of Notes, the opinions of counsel relating
to (A) the validity, perfection and priority of security
interests, (B) the nature of the lease of Acquired Vehicles
pursuant to the Lease as a true operating lease and not as a
financing, (C) the analysis of substantive consolidation of
the assets of NFLP or the General Partner with the assets of
the Lessee in the event of the insolvency of the Lessee, (D)
the status of NFLP as not being an investment company or
controlled by an investment company under the Investment
Company Act, as furnished by counsel retained by NFLP in
connection with the issuance of the initial Series of Notes,
are reaffirmed in all respects.
(g) such other documents, instruments, certifications,
agreements or other items as the Trustee may reasonably require.
Upon satisfaction of such conditions, the Trustee shall authenticate and
deliver, as provided above, such Series of Notes.
Section 2.3. Supplement For Each Series.
(a) In conjunction with the issuance of a new Series, the
parties hereto shall execute a Supplement, which shall specify the
relevant terms with respect to such new Series of Notes, which shall
include, as applicable: (i) its name or designation, (ii) the aggregate
principal amount of Notes of such Series, (iii) the Note Rate (or the
method for calculating such Note Rate) with respect to such Series,
(iv) the interest payment date or dates and the date or dates from
which interest shall accrue, (v) the method of allocating Collections
with respect to such Series and the method by which the principal
amount of Notes of such Series shall amortize or accrete, (vi) the
names of any accounts to be used by such Series and the terms governing
the operation of any such account, (vii) the Servicing Fee Percentage,
(viii) the terms of any Enhancement, (ix) the Enhancement Provider, if
any, (x) whether the Notes may be issued in bearer form and any
limitations imposed thereon, (xi) the Series Termination Date, (xii)
whether the Notes will be issued in multiple classes and, if so, the
method of allocating Collections among such classes, (xiii) whether
such Series of Notes shall
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<PAGE> 14
have the benefit of Series- Specific Collateral and (xiv) any other
relevant terms of such Series of Notes that do not (subject to Section
2.3(b) and Article 12 hereof) change the terms of any Outstanding
Series of Notes or otherwise materially conflict with the provisions of
this Indenture and that do not prevent the satisfaction of the Rating
Agency Condition with respect to the issuance of such new Series (all
such terms, the "Principal Terms" of such Series);
(b) (i) A Supplement may specify that the related Series of
Notes (each, a "Segregated Series") will have Collateral that is to be
solely for the benefit of the Noteholders of such Segregated Series of
Notes (such Collateral being referred to as "Series-Specific
Collateral"); provided, however, that no such Segregated Series of
Notes will be issued unless (x) the Rating Agency Condition is met, (y)
NFLP shall have delivered to the Trustee an Officer's Certificate to
the effect that the issuance of such Segregated Series of Notes will
not have a material adverse effect upon the Noteholders of any Series
of Notes outstanding at the time of the issuance of the Segregated
Series of Notes, and (z) the applicable Supplement provides, in form
satisfactory to the Trustee, for the changes and modifications to the
Indenture and the other Related Documents as are described in clause
(ii) below.
(ii) In the event any Segregated Series of Notes is
issued, the related Supplement will provide that (A) the
Servicer, the Master Collateral Agent and the Trustee will
identify the Collateral for such Segregated Series of Notes
such that (x) the Series- Specific Collateral will secure only
the Segregated Series of Notes to which such Series-Specific
Collateral is applicable and (y) the Noteholders with respect
to any other Series of Notes will not be entitled to the
benefit of such Series-Specific Collateral, (B) the Trustee
will adjust the allocations and distributions to be made under
the Indenture at the direction of the Servicer so that the
Noteholders with respect to the Segregated Series of Notes
will be entitled to all allocations and distributions arising
from the Series-Specific Collateral applicable to such
Segregated Series of Notes and the Noteholders with respect to
the non-Segregated Series of Notes will be entitled to
allocations and distributions arising solely from the
non-Series-Specific Collateral, (C) the Trustee will act as
collateral agent under the Indenture (and in such capacity the
Trustee, together with the Master Collateral Agent, shall (x)
establish and maintain a master collection account, and one or
more segregated collection accounts, into which Collections
allocated to all Series of Notes will be deposited and, after
such deposit, further allocated among one or more Segregated
Series of Notes and the non-Segregated Series of Notes and (y)
hold its lien encumbering the non-Series-Specific Collateral
for the benefit of the non-Segregated Series of Notes and hold
its lien encumbering the Series-Specific Collateral for the
benefit of the Segregated Series of Notes), (D) the Servicer
and the Master Collateral Agent each will designate on its
computer
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<PAGE> 15
system the source of the funds for the financing of each
Vehicle (as between one or more Segregated Series of Notes and
the nonSegregated Series of Notes, the "Financing Provider"
with respect to such Series of Notes), (E) the Noteholders of
any Segregated Series of Notes will, subject to the
limitations contained in this Base Indenture and the
applicable Supplement, be entitled to cause the Trustee and
the Master Collateral Agent to exercise the remedies under the
Indenture and the Master Collateral Agency Agreement, as
applicable, each solely on behalf of such Segregated Series of
Notes, (F) separate monthly reports and other information will
be furnished under the Indenture by the Trustee for the
Series-Specific Collateral, which monthly reports and other
information will contain substantially the same type of
information as the monthly reports provided under the
Indenture prior to the issuance of such Segregated Series of
Notes, (G) a separate segregated Master Motor Vehicle Lease
and Servicing Agreement pertaining, as applicable, solely or
in part to the Series-Specific Collateral will be executed and
delivered by NFLP, as lessor, and National, as lessee, (H) to
the extent specified in the Supplement for such Segregated
Series of Notes, NFLP and the Servicer will take such actions
as are necessary to perfect (1) the Master Collateral Agent's
interest in the portion of the Series-Specific Collateral that
would constitute Master Collateral and to designate NFLP as
the "Financing Source" and the Trustee, on behalf of the
Noteholders of such Series, as the "Beneficiary" under the
Master Collateral Agency Agreement with respect to the
Series-Specific Collateral and (2) the Trustee's interest on
behalf of the Noteholders of such Series in the
Series-Specific Collateral, (I) amendments will be made to
this Indenture and the other Related Documents, if necessary,
to reflect the foregoing, which amendments will, among other
things, provide for revisions to the terms "Aggregate Asset
Amount", "Required Asset Amount", "Collateral", "Collection
Account", "NFLP Agreements", "Lease", "Related Documents",
"Aggregate Invested Amount" and "Requisite Investors" and such
other terms as may be appropriate to reflect the creation of
the Segregated Series, provided that any such amendment shall
not have a material adverse effect on the Noteholders or Note
Owners of any Series unless the Required Noteholders of such
Series shall have given their prior written consent thereto
(and, with respect to each Series, the Trustee may rely on an
Officer's Certificate of the Servicer as sufficient evidence
of such lack of a material adverse effect) and (J) references
herein to "all" Series of Notes (other than as specifically
stated herein) shall be modified to refer to all Series of
Notes other than any Segregated Series of Notes which may
hereafter be issued.
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<PAGE> 16
Section 2.4. Execution and Authentication.
(a) An Authorized Officer shall sign the Notes for NFLP by
manual or facsimile signature. If an Authorized Officer whose signature
is on a Note no longer holds that office at the time the Note is
authenticated, the Note shall nevertheless be valid.
(b) At any time and from time to time after the execution and
delivery of this Indenture, NFLP may deliver Notes of any particular
Series executed by NFLP to the Trustee for authentication, together
with one or more Company Orders for the authentication and delivery of
such Notes, and the Trustee, in accordance with such Company Order and
this Indenture, shall authenticate and deliver such Notes.
(c) No Note shall be entitled to any benefit under this
Indenture or be valid for any purpose unless there appears on such Note
a certificate of authentication substantially in the form provided for
herein, duly executed by the Trustee by the manual signature of a Trust
Officer (and the Luxembourg agent (the "Luxembourg Agent"), if such
Notes are listed on the Luxembourg Stock Exchange). Such signatures on
such certificate shall be conclusive evidence, and the only evidence,
that the Note has been duly authenticated under this Indenture. The
Trustee may appoint an authenticating agent acceptable to NFLP to
authenticate Notes. Unless limited by the term of such appointment, an
authenticating agent may authenticate Notes whenever the Trustee may do
so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with NFLP or an Affiliate of NFLP. The
Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Notes of a series issued under the within
mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
-------------------------------------
Authorized Signatory
(d) Each Note shall be dated and issued as of the date
of its authentication by the Trustee.
(e) Notwithstanding the foregoing, if any Note shall have been
authenticated and delivered hereunder but never issued and sold by
NFLP, and NFLP shall deliver such Note to the Trustee for cancellation
as provided in Section 2.14 together with a
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<PAGE> 17
written statement (which need not comply with Section 13.3 and need not
be accompanied by an Opinion of Counsel) stating that such Note has
never been issued and sold by NFLP, for all purposes of this Indenture
such Note shall be deemed never to have been authenticated and
delivered hereunder and shall not be entitled to the benefits of this
Indenture.
Section 2.5. Form of Notes; Book Entry Provisions;
Title.
(a) Restricted Global Note. Any Series of Notes, or any class
of such Series to be issued in the United States will be in registered
form and sold initially to institutional accredited investors within
the meaning of Regulation D under the Securities Act in reliance on an
exemption from the registration requirements of the Securities Act and
thereafter to qualified institutional buyers within the meaning of, and
in reliance on, Rule 144A under the Securities Act ("Rule 144A") as
provided in the applicable Supplement and shall be issued in the form
of and represented by one or more permanent global Notes in fully
registered form without interest coupons (each, a "Restricted Global
Note"), substantially in the form set forth in the applicable
Supplement, with such legends as may be applicable thereto, which shall
be deposited on behalf of the subscribers for the Notes represented
thereby with a custodian for DTC, and registered in the name of DTC or
a nominee of DTC, duly executed by NFLP and authenticated by the
Trustee as provided in Section 2.4 for credit to the accounts of the
subscribers at DTC. The aggregate initial principal amount of a
Restricted Global Note may from time to time be increased or decreased
by adjustments made on the records of the custodian for DTC, DTC or its
nominee, as the case may be, as hereinafter provided.
(b) Temporary Global Note; Permanent Global Note. Any Series
of Notes, or any class of such Series, offered and sold outside of the
United States will be offered and sold in reliance on Regulation S
("Regulation S") under the Securities Act and shall initially be issued
in the form of one or more temporary global Notes (each, a "Temporary
Global Note") in fully registered form without interest coupons
substantially in the form set forth in the applicable Supplement with
such legends as may be applicable thereto, registered in the name of
DTC or a nominee of DTC, duly executed by NFLP and authenticated by the
Trustee as provided in Section 2.4, for credit to the subscribers'
accounts at Morgan Guaranty Trust Company of New York, Brussels Office,
as operator of Euroclear or Cedel. Interests in a Temporary Global Note
will be exchangeable, in whole or in part, for interests in a permanent
global note (a "Permanent Global Note") in fully registered form
without interest coupons, representing Notes of the same Series,
substantially in the form set forth in the applicable Supplement, in
accordance with the provisions of the Temporary Global Note and this
Indenture. Until the Exchange Date, interests in a Temporary Global
Note may only be held by the agent members of Euroclear and Cedel. The
aggregate
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<PAGE> 18
initial principal amount of the Temporary Global Note and the Permanent
Global Note may from time to time be increased or decreased by
adjustments made on the records of the custodian for DTC, DTC or its
nominee, as the case may be, as hereinafter provided.
Section 2.6. Registrar and Paying Agent.
(a) NFLP shall maintain (i) an office or agency where Notes
may be presented for registration of transfer or for exchange
("Registrar") and (ii) an office or agency where Notes may be presented
for payment ("Paying Agent"). The Registrar shall keep a register of
the Notes and of their transfer and exchange (the "Note Register").
NFLP may appoint one or more co-registrars and one or more additional
paying agents. The term "Paying Agent" includes any additional paying
agent and the term "Registrar" includes any co-registrars. NFLP may
change any Paying Agent or Registrar without prior notice to any
Noteholder. NFLP shall notify the Trustee in writing of the name and
address of any Agent not a party to this Indenture. The Trustee is
hereby initially appointed as the Registrar, Paying Agent and agent for
service of notices and demands in connection with the Notes.
(b) NFLP shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture. Such agency agreement shall
implement the provisions of this Indenture that relate to such Agent.
NFLP shall notify the Trustee in writing of the name and address of any
such Agent. If NFLP fails to maintain a Registrar or Paying Agent and
the Trustee has knowledge of such failure, or if NFLP fails to give the
foregoing notice, the Trustee shall act as such, and shall be entitled
to appropriate compensation in accordance with this Indenture, until
NFLP shall appoint a replacement Registrar and Paying Agent.
Section 2.7. Paying Agent to Hold Money in Trust.
(a) NFLP will cause each Paying Agent other than the Trustee
to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee (and if the Trustee acts as
Paying Agent, it hereby so agrees), subject to the provisions of this
Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of
amounts due with respect to the Notes in trust for the benefit
of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided
and pay such sums to such Persons as herein provided;
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<PAGE> 19
(ii) give the Trustee notice of any default by NFLP
(or any other obligor under the Notes) of which it has actual
knowledge in the making of any payment required to be made
with respect to the Notes;
(iii) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent;
(iv) immediately resign as a Paying Agent and
forthwith pay to the Trustee all sums held by it in trust for
the payment of Notes if at any time it ceases to meet the
standards required to be met by a Trustee hereunder at the
time of its appointment; and
(v) comply with all requirements of the Code with
respect to the withholding from any payments made by it on any
Notes of any applicable withholding taxes imposed thereon and
with respect to any applicable reporting requirements in
connection therewith.
(b) NFLP may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose,
by Company Order direct any Paying Agent to pay to the Trustee all sums
held in trust by such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which the sums were held by such
Paying Agent; and upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with
respect to such money.
(c) Subject to applicable laws with respect to escheat of
funds, any money held by the Trustee or any Paying Agent or a Clearing
Agency in trust for the payment of any amount due with respect to any
Note and remaining unclaimed for two years after such amount has become
due and payable shall be discharged from such trust and be paid to NFLP
on Company Request; and the Holder of such Note shall thereafter, as an
unsecured general creditor, look only to NFLP for payment thereof (but
only to the extent of the amounts so paid to NFLP), and all liability
of the Trustee or such Paying Agent with respect to such trust money
shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at
the expense of NFLP cause to be published once, in a newspaper
published in the English language, customarily published on each
Business Day and of general circulation in New York City and, if the
related Series of Notes has been listed on the Luxembourg Stock
Exchange, and if the Luxembourg Stock Exchange so requires, in a
newspaper customarily published on each Luxembourg business day and of
general circulation in Luxembourg City, Luxembourg, notice that such
money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days
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from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to NFLP. The Trustee may also adopt and
employ, at the expense of NFLP, any other reasonable means of
notification of such repayment.
Section 2.8. Noteholder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Noteholders of each Series of Notes. If the Trustee is not the
Registrar, NFLP shall furnish to the Trustee at least seven Business Days before
each Distribution Date and at such other times as the Trustee may request in
writing, a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Noteholders of each Series of Notes.
Section 2.9. Transfer and Exchange.
(a) No Note may be resold, pledged or transferred (including,
without limitation, by pledge or hypothecation) unless such sale or
transfer is (1) to NFLP (upon redemption thereof or otherwise), (2) to
any person the transferor reasonably believes is a qualified
institutional buyer (as defined in Rule 144A) in a transaction meeting
the requirements of Rule 144A, (3) outside the United States to a
person who is not a U.S. Person (as such term is defined
in Regulation S) in a transaction meeting the requirements of
Regulation S, (4) in a transaction complying with or exempt from the
registration requirements of the Securities Act. Subject to provisions
of clauses (i) through (vii) of this Section 2.9(a), when a request to
register a transfer or exchange of global Notes is presented to the
Registrar or co-registrar or, in the case of Definitive Notes, when
Definitive Notes of any particular Series are presented to the
Registrar or a co-registrar with a request to register a transfer or to
exchange them for an equal principal amount of Notes of other
authorized denominations of the same Series, the Registrar shall
register the transfer or make the exchange if its requirements for such
transaction are met; provided, however, that the Notes surrendered for
transfer or exchange (a) shall be duly endorsed or accompanied by a
written instrument of transfer in form satisfactory to NFLP and the
Registrar, duly executed by the holder thereof or its attorney, duly
authorized in writing and (b) shall be transferred or exchanged in
compliance with the following provisions:
(i) Transfer of Restricted Global Notes.
(A) if such Note is being acquired for the account of
such Holder, without transfer, a certification from such Holder to that
effect (in substantially the form of Exhibit A-1 hereto); or
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(B) if such Note is being transferred to a qualified
institutional buyer (as defined in Rule 144A) in accordance with Rule
144A or pursuant to an exemption from registration in accordance with
Regulation S, a certification to that effect (in substantially the form
of Exhibit A-1 hereto); or
(C) if such Note is being transferred in reliance on
another exemption from the registration requirements of the Securities
Act, a certification to that effect (in substantially the form of
Exhibit A-1 hereto) and an opinion of counsel in form and substance
acceptable to NFLP and to the Registrar to the effect that such
transfer is in compliance with the Securities Act.
(ii) Temporary Global Note to Permanent Global Note.
Interests in a Temporary Global Note as to which the Trustee
has received from Euroclear or Cedel, as the case may be, a
certificate substantially in the form of Exhibit B to the
effect that Euroclear or Cedel, as applicable, has received a
certificate substantially in the form of Exhibit C from the
holder of a beneficial interest in such Note, will be
exchanged, on and after the 40th day after the completion of
the distribution of the relevant Series (the "Exchange Date"),
for interests in a Permanent Global Note. To effect such
exchange NFLP shall execute and the Trustee shall authenticate
and deliver to DTC, or its nominee, for credit to the
respective accounts of the holders of Notes, a duly executed
and authenticated Permanent Global Note, representing the
principal amount of interests in the Temporary Global Note
initially exchanged for interests in the Permanent Global
Note. The delivery to the Trustee by Euroclear or Cedel of the
certificate or certificates referred to above may be relied
upon by NFLP and the Trustee as conclusive evidence that the
certificate or certificates referred to therein has or have
been delivered to Euroclear or Cedel pursuant to the terms of
this Indenture and the Temporary Global Note. Upon any
exchange of interests in a Temporary Global Note for interests
in a Permanent Global Note, the Trustee shall endorse the
Temporary Global Note to reflect the reduction in the
principal amount represented thereby by the amount so
exchanged and shall endorse the Permanent Global Note to
reflect the corresponding increase in the amount represented
thereby. The Temporary Global Note or the Permanent Global
Note shall also be endorsed upon any cancellation of principal
amounts upon surrender of Notes purchased by NFLP or any of
its respective subsidiaries or affiliates or upon any
repayment of the principal amount represented thereby or any
payment of interest in respect of such Notes.
(iii) Restricted Global Note to Temporary Global Note
Prior to the Exchange Date. If, prior to the Exchange Date, a
holder of a beneficial interest in a Restricted Global Note
registered in the name of DTC or its nominee wishes at any
time to exchange its interest in such Restricted Global Note
for an
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<PAGE> 22
interest in a Temporary Global Note or to transfer its
interest in such Restricted Global Note to a Person who wishes
to take delivery thereof in the form of an interest in a
Temporary Global Note, such holder may, subject to the rules
and procedures of DTC, exchange or cause the exchange or
transfer of such interest for an equivalent beneficial
interest in the Temporary Global Note. Upon receipt by the
Registrar of (1) instructions given in accordance with DTC's
procedures from an agent member directing the Trustee as
Registrar to credit or cause to be credited a beneficial
interest in the Temporary Global Note in an amount equal to
the beneficial interest in the Restricted Global Note to be
exchanged or transferred, (2) a written order given in
accordance with DTC's procedures containing information
regarding the Euroclear or Cedel account to be credited with
such increase and the name of such account, and (3) a
certificate in the form of Exhibit A-3 attached hereto given
by the holder of such beneficial interest stating that the
exchange or transfer of such interest has been made in
compliance with the transfer restrictions applicable to the
Notes and pursuant to and in accordance with Regulation S, the
Registrar shall instruct DTC to reduce the Restricted Global
Note by the aggregate principal amount of the beneficial
interest in the Restricted Global Note to be so exchanged or
transferred and the Registrar, shall instruct DTC,
concurrently with such reduction, to increase the principal
amount of the Temporary Global Note by the aggregate principal
amount of the beneficial interest in the Restricted Global
Note to be so exchanged or transferred, and to credit or cause
to be credited to the account of the person specified in such
instructions (who shall be the agent member of Euroclear or
Cedel, or both, as the case may be) a beneficial interest in
the Temporary Global Note equal to the reduction in the
principal amount of the Restricted Global Note.
(iv) Restricted Global Note to Permanent Global Note
After the Exchange Date. If, after the Exchange Date, a holder
of a beneficial interest in the Restricted Global Note
registered in the name of DTC or its nominee wishes at any
time to transfer its interest in such Restricted Global Note
to a Person who wishes to take delivery thereof in the form of
an interest in a Permanent Global Note, such holder may,
subject to the rules and procedures of DTC, exchange or cause
the exchange or transfer of such interest for an equivalent
beneficial interest in such Permanent Global Note. Upon
receipt by the Registrar of (1) instructions given in
accordance with DTC's procedures from an agent member
directing the Trustee to credit or cause to be credited a
beneficial interest in the applicable Permanent Global Note in
an amount equal to the beneficial interest in the applicable
Restricted Global Note to be exchanged or transferred, (2) a
written order given in accordance with DTC's procedures
containing information regarding the participant account with
DTC and, in the case of a transfer pursuant to and in
accordance with Regulation S,
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<PAGE> 23
the Euroclear or Cedel account to be credited with such
increase and (3) a certificate in the form of Exhibit A-4
attached hereto given by the holder of such beneficial
interest stating that the exchange or transfer of such
interest has been made in compliance with the transfer
restrictions applicable to the Notes (A) and pursuant to and
in accordance with Regulation S or (B) and that the Note being
exchanged or transferred is not a "restricted security" as
defined in Rule 144, the Trustee shall instruct DTC to reduce
such Restricted Global Note by the aggregate principal amount
of the beneficial interest in such Restricted Global Note to
be so exchanged or transferred and the Registrar shall
instruct DTC, concurrently with such reduction, to increase
the principal amount of the applicable Permanent Global Note
by the aggregate principal amount of the beneficial interest
in such Restricted Global Note to be so exchanged or
transferred, and to credit or cause to be credited to the
account of the person specified in such instructions a
beneficial interest in the applicable Permanent Global Note
equal to the reduction in the principal amount of such
Restricted Global Note.
(v) Temporary Global Note to Restricted Global Note.
If a holder of a beneficial interest in a Temporary Global
Note registered in the name of DTC or its nominee wishes at
any time to exchange its interest in such Temporary Global
Note for an interest in a Restricted Global Note, or to
transfer its interest in such Temporary Global Note to a
Person who wishes to take delivery thereof in the form of an
interest in a Restricted Global Note, such holder may, subject
to the rules and procedures of Euroclear or Cedel and DTC, as
the case may be, exchange or cause the exchange or transfer of
such interest for an equivalent beneficial interest in a
Restricted Global Note. Upon receipt by the Registrar of (1)
instructions from Euroclear or Cedel or DTC, as the case may
be, directing the Registrar to credit or cause to be credited
a beneficial interest in a Restricted Global Note equal to the
beneficial interest in a Temporary Global Note to be exchanged
or transferred, such instructions to contain information
regarding the agent member's account with DTC to be credited
with such increase, and, with respect to an exchange or
transfer of an interest in a Temporary Global Note after the
Exchange Date, information regarding the agent member's
account with DTC to be debited with such decrease, and (2)
with respect to an exchange or transfer of an interest in a
Temporary Global Note for an interest in a Restricted Global
Note prior to the Exchange Date, a certificate in the form of
Exhibit A-5 attached hereto given by the holder of such
beneficial interest and stating that the Person transferring
such interest in such Temporary Global Note reasonably
believes that the Person acquiring such interest in the
applicable Restricted Global Note is a Qualified Institutional
Buyer (as defined in Rule 144A) and is obtaining such
beneficial interest in a transaction meeting the requirements
of Rule 144A, Euroclear or Cedel or the
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<PAGE> 24
Registrar, as the case may be, shall instruct DTC to reduce
such Temporary Global Note by the aggregate principal amount
of the beneficial interest in such Temporary Global Note to be
exchanged or transferred, and the Registrar shall instruct
DTC, concurrently with such reduction, to increase the
principal amount of such Restricted Global Note by the
aggregate principal amount of the beneficial interest in such
Temporary Global Note to be so exchanged or transferred, and
to credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in such
Restricted Global Note equal to the reduction in the principal
amount of such Temporary Global Note.
(vi) Permanent Global Note to Restricted Global
Note. Interests in a Permanent Global Note may not be
transferred for interests in a Restricted Global Note.
(vii) Other Transfers or Exchanges. In the event that
a Global Note is exchanged for Notes in definitive registered
form without interest coupons, pursuant to Section 2.18
hereof, such Notes may be exchanged or transferred for one
another only in accordance with such procedures as are
substantially consistent with the provisions of clauses (i)
through (vi) above (including the certification requirements
intended to insure that such exchanges or transfers comply
with Rule 144A or Regulation S, as the case may be) and as may
be from time to time adopted by NFLP and the Trustee.
(b) The Registrar shall not register the exchange of interests
in a Global Note for a Definitive Note or the transfer of or exchange
of a Note during the period beginning on any Record Date and ending on
the next following Distribution Date.
(c) NFLP or the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any exchange or registration of transfer of
Notes. No service charge shall be made for any such transaction.
(d) If the Notes are listed on the Luxembourg Stock
Exchange, the Trustee or the Luxembourg Agent, as the case may be,
shall send to NFLP upon any transfer or exchange of any Note
information reflected in the copy of the register for the Notes
maintained by the Registrar or the Luxembourg Agent, as the case may
be.
(e) To permit registrations of transfers and exchanges, NFLP
shall execute and the Trustee shall authenticate Notes, subject to such
rules as the Trustee may reasonably require. No service charge to the
Noteholder shall be made for any registration of transfer or exchange
(except as otherwise expressly permitted herein), but the Registrar may
require payment of a sum sufficient to cover any transfer tax or
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<PAGE> 25
similar government charge payable in connection therewith (other than
any such transfer tax or similar governmental charge payable upon
exchanges pursuant to Section 2.13 hereof in which event the Registrar
will be responsible for the payment of any such taxes.)
(f) All Notes issued upon any registration of transfer or
exchange of Notes shall be the valid obligations of NFLP, evidencing
the same debt, and entitled to the same benefits under this Indenture,
as the Notes surrendered upon such registration of transfer or
exchange.
(g) Prior to due presentment for registration of transfer of
any Note, the Trustee, any Agent and NFLP may deem and treat the Person
in whose name any Note is registered (as of the day of determination)
as the absolute owner of such Note for the purpose of receiving payment
of principal of and interest on such Note and for all other purposes
whatsoever, whether or not such Note is overdue, and neither the
Trustee, any Agent nor NFLP shall be affected by notice to the
contrary.
(h) Notwithstanding any other provision of this Section 2.9,
the typewritten Note or Notes representing Book-Entry Notes for any
Series may be transferred, in whole but not in part, only to another
nominee of the Clearing Agency for such Series, or to a successor
Clearing Agency for such Series selected or approved by NFLP or to a
nominee of such successor Clearing Agency, only if in accordance with
this Section 2.9 and Section 2.18.
(i) By its acceptance of a Note, each Noteholder and Note
Owner shall be deemed to have represented and warranted that its
purchase and holding of the Note will not, throughout the term of its
holding an interest therein, constitute a non-exempt "prohibited
transaction" under Section 406(a) of ERISA or Section 4975 of the Code.
Section 2.10. Legending of Notes.
Unless otherwise provided for in a Supplement and except as
permitted by the following sentence, in addition to any legend required by
Section 2.16, each Note shall bear a legend in substantially the following form:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES OR "BLUE SKY"
LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CLASS A-1 NOTE, AGREES FOR THE
BENEFIT OF NATIONAL CAR RENTAL FINANCING LIMITED PARTNERSHIP (THE "ISSUER") THAT
THIS CLASS A-1 NOTE IS BEING ACQUIRED FOR ITS OWN ACCOUNT AND NOT WITH A VIEW TO
DISTRIBUTION AND MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
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<PAGE> 26
ONLY (1) TO THE ISSUER (UPON REDEMPTION THEREOF OR OTHERWISE), (2) TO A PERSON
WHO THE "TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (3) OUTSIDE THE UNITED STATES TO A NON U.S. PERSON
(AS DEFINED IN REGULATION S OF THE SECURITIES ACT) IN A TRANSACTION IN
COMPLIANCE WITH REGULATION S OF THE SECURITIES ACT, OR (4) IN A TRANSACTION
COMPLYING WITH OR EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER FROM IT OF THE RESALE RESTRICTIONS SET FORTH ABOVE.
Upon any transfer, exchange or replacement of Notes bearing such legend, or if a
request is made to remove such legend on a Note, the Notes so issued shall bear
such legend, or such legend shall not be removed, as the case may be, unless
there is delivered to NFLP and the Trustee or the Luxembourg Agent, if the Notes
are listed on the Luxembourg Exchange, such satisfactory evidence, which may
include an opinion of counsel, as may be reasonably required by NFLP that
neither such legend nor the restrictions on transfer set forth therein are
required to ensure that transfers thereof comply with the provisions of Rule
144A, Rule 144 or Regulation S. Upon provision of such satisfactory evidence,
the Trustee, at the direction of NFLP, shall authenticate and deliver a Note
that does not bear such legend.
Section 2.11. Replacement Notes.
(a) If (i) any mutilated Note is surrendered to the Trustee,
or the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, and (ii) there is delivered to
the Trustee such security or indemnity as may be required by it to hold
NFLP and the Trustee harmless then, in the absence of notice to NFLP,
the Registrar or the Trustee that such Note has been acquired by a bona
fide purchaser, and provided that the requirements of Section 8-405 of
the UCC (which generally permit NFLP to impose reasonable requirements)
are met, NFLP shall execute and upon its request the Trustee shall
authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Note, a replacement Note;
provided, however, that if any such destroyed, lost or stolen Note, but
not a mutilated Note, shall have become or within seven days shall be
due and payable, instead of issuing a replacement Note, NFLP may pay
such destroyed, lost or stolen Note when so due or payable without
surrender thereof. If, after the delivery of such replacement Note or
payment of a destroyed, lost or stolen Note pursuant to the proviso to
the preceding sentence, a bona fide purchaser of the original Note in
lieu of which such replacement Note was issued presents for payment
such original Note, NFLP and the Trustee shall be entitled to recover
such replacement Note (or such payment) from the Person to whom it was
delivered or any Person taking such replacement Note from such Person
to whom such
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<PAGE> 27
replacement Note was delivered or any assignee of such Person, except a
bona fide purchaser, and shall be entitled to recover upon the security
or indemnity provided therefor to the extent of any loss, damage, cost
or expense incurred by NFLP or the Trustee in connection therewith.
(b) Upon the issuance of any replacement Note under this
Section, the Registrar, the Trustee or NFLP may require the payment by
the Holder of such Note of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any
other reasonable expenses (including the fees and expenses of the
Trustee) connected therewith.
(c) Every replacement Note issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Note shall be
entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
(d) The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or
stolen Notes.
Section 2.12. Treasury Notes.
In determining whether the Noteholders of the required
principal amount of Notes have concurred in any direction, waiver or consent,
Notes owned by NFLP or any Affiliate of NFLP shall be considered as though they
are not Outstanding, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Notes of which the Trustee has received written notice of such ownership
shall be so disregarded. Absent written notice to the Trustee of such ownership,
the Trustee shall not be deemed to have knowledge of the identity of the
individual beneficial owners of the Notes.
Section 2.13. Temporary Notes.
(a) Pending the preparation of Definitive Notes issued under
Section 2.18 hereof, NFLP may prepare and the Trustee, upon receipt of
a Company Order, shall authenticate and deliver temporary Notes of such
Series. Temporary Notes shall be substantially in the form of
Definitive Notes of like Series but may have variations that are not
inconsistent with the terms of this Indenture as the officers executing
such Notes may determine, as evidenced by their execution of such
Notes.
(b) If temporary Notes are issued pursuant to Section 2.13(a)
above, NFLP will cause Definitive Notes to be prepared without
unreasonable delay. After the
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preparation of Definitive Notes, the temporary Notes shall be
exchangeable for Definitive Notes upon surrender of the temporary Notes
at the office or agency of NFLP to be maintained as provided in Section
8.2, without charge to the Noteholder. Upon surrender for cancellation
of any one or more temporary Notes, NFLP shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal
amount of Definitive Notes of authorized denominations. Until so
exchanged, the temporary Notes shall in all respects be entitled to the
same benefits under this Indenture as Definitive Notes.
Section 2.14. Cancellation.
NFLP may at any time deliver to the Trustee for cancellation
any Notes previously authenticated and delivered hereunder which NFLP may have
acquired in any manner whatsoever, and all Notes so delivered shall be promptly
cancelled by the Trustee. The Registrar and Paying Agent shall forward to the
Trustee any Notes surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation. NFLP may not issue new
Notes to replace Notes that it has redeemed or paid or that have been delivered
to the Trustee for cancellation. All cancelled Notes held by the Trustee shall
be disposed of in accordance with the Trustee's standard disposition procedures
unless by a written order, signed by two Authorized Officers, NFLP shall direct
that cancelled Notes be returned to it.
Section 2.15. Principal and Interest.
(a) The principal of each Series of Notes shall be payable at
the times and in the amount set forth in the related Supplement in
accordance with Section 6.1.
(b) Each Series of Notes shall accrue interest as provided in
the related Supplement and such interest shall be payable on each
Distribution Date for such Series in accordance with Section 6.1 and
the related Supplement.
(c) Except as provided in the following sentence, the person
in whose name any Note is registered at the close of business on any
Record Date with respect to a Distribution Date for such Note shall be
entitled to receive the principal and interest payable on such
Distribution Date notwithstanding the cancellation of such Note upon
any registration of transfer, exchange or substitution of such Note
subsequent to such Record Date. Any interest payable at maturity shall
be paid to the Person to whom the principal of such Note is payable.
(d) If NFLP defaults in the payment of interest on the Notes
of any Series, such interest, to the extent paid on any date that is
more than five (5) Business Days after
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<PAGE> 29
the applicable due date, shall at the option of NFLP, cease to be
payable to the persons who were Noteholders of such Series at the
applicable Record Date and, in such case, NFLP shall pay the defaulted
interest in any lawful manner, plus, to the extent lawful, interest
payable on the defaulted interest, to the persons who are Noteholders
of such Series on a subsequent special record date which date shall be
at least five (5) Business Days prior to the payment date, at the rate
provided in this Indenture and in the Notes of such Series. NFLP shall
fix or cause to be fixed each such special record date and payment
date, and at least fifteen (15) days before the special record date,
NFLP (or, if so requested by NFLP, the Trustee in the name of and at
the expense of NFLP) shall mail to Noteholders of such Series a notice
that states the special record date, the related payment date and the
amount of such interest to be paid.
Section 2.16. Book-Entry Notes.
(a) For each Series of Notes to be issued in registered form,
NFLP shall duly execute the Notes, and the Trustee shall, in accordance
with Section 2.4 hereof, authenticate and deliver initially one or more
Global Notes that (a) shall be registered on the Note Register in the
name of DTC or DTC's nominee, and (b) shall bear legends substantially
to the following effect:
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO
NFLP OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. ("CEDE") OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT HEREON IS MADE TO CEDE OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE, HAS AN INTEREST
HEREIN.
So long as DTC or its nominee is the registered owner or
holder of a Global Note, DTC or its nominee, as the case may be, will be
considered the sole owner or holder of the Notes represented by such Global Note
for purposes of this Indenture and such Notes. Members of, or participants in,
DTC shall have no rights under this Indenture with respect to any Global Note
held on their behalf by DTC, and DTC may be treated by NFLP, the Trustee, the
Registrar, any Paying Agent and any agent of such entities as the absolute owner
of such Global Note for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent NFLP, the Trustee, the Registrar, any Paying Agent
and any agent of such entities from giving effect to any written certification,
proxy or other authorization
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furnished by DTC or impair, as between DTC and its agent members, the operation
of customary practices governing the exercise of the rights of a holder of any
Note.
(b) The provisions of the "Operating Procedures of the
Euroclear System" and the "Terms and Conditions Governing Use of
Euroclear" and the "Management Regulations" and "Instructions to
Participants" of Cedel, respectively, shall be applicable to the Global
Note insofar as interests in a Global Note are held by the agent
members of Euroclear or Cedel (which shall only occur in the case of
the Temporary Global Note and the Permanent Global Note). Account
holders or participants in Euroclear and Cedel shall have no rights
under this Indenture with respect to such Global Note, and the
registered holder may be treated by NFLP, the Trustee, the Registrar,
the Paying Agent and any agent of NFLP or any such entity as the owner
of such Global Note for all purposes whatsoever.
(c) Title to the Notes shall pass only by registration in the
Note Register maintained by the Registrar pursuant to Section 2.6.
(d) Any typewritten Note or Notes representing Book-Entry
Notes shall provide that they represent the aggregate
or a specified amount of Outstanding Notes from time to time endorsed
thereon and may also provide that the aggregate amount of Outstanding
Notes represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a typewritten Note or Notes representing
Book-Entry Notes to reflect the amount, or any increase or decrease in
the amount, or changes in the rights of Note Owners represented
thereby, shall be made in such manner and by such Person or Persons as
shall be specified therein or in the Company Order to be delivered to
the Trustee pursuant to Section 2.4. Subject to the provisions of
Section 2.5, the Trustee shall deliver and redeliver any typewritten
Note or Notes representing Book-Entry Notes in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. Any instructions by NFLP with respect to
endorsement or delivery or redelivery of a typewritten Note or Notes
representing the Book-Entry Notes shall be in writing but need not
comply with Section 13.3 hereof and need not be accompanied by an
Opinion of Counsel.
(e) Unless and until definitive, fully registered Notes
("Definitive Notes") have been issued to Note Owners pursuant to
Section 2.18:
(i) the provisions of this Section 2.16
shall be in full force and effect;
(ii) the Paying Agent, the Registrar and the Trustee
may deal with the Clearing Agency and the Clearing Agency
Participants for all purposes of this Indenture (including the
making of payments on the
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Notes and the giving of instructions or directions hereunder)
as the authorized representatives of the Note Owners;
(iii) to the extent that the provisions of this
Section 2.16 conflict with any other provisions of this
Indenture, the provisions of this Section 2.16 shall control;
(iv) whenever this Indenture requires or permits
actions to be taken based upon instructions or directions of
Holders of Notes evidencing a specified percentage of the
Outstanding principal amount of the Notes, the applicable
Clearing Agency shall be deemed to represent such percentage
only to the extent that it has received instructions to such
effect from Note Owners and/or their related Clearing Agency
Participants owning or representing, respectively, such
required percentage of the beneficial interest in the Notes
and has delivered such instructions to the Trustee; and
(v) the rights of Note Owners shall be exercised only
through the applicable Clearing Agency and their related
Clearing Agency Participants and shall be limited to those
established by law and agreements between such Note Owners and
their related Clearing Agency and/or the Clearing Agency
Participants. Unless and until Definitive Notes are issued
pursuant to Section 2.18, the applicable Clearing Agencies
will make book-entry transfers among their related Clearing
Agency Participants and receive and transmit payments of
principal and interest on the Notes to such Clearing Agency
Participants.
Section 2.17. Notices to Clearing Agency.
Whenever notice or other communication to the Noteholders is
required under this Indenture, unless and until Definitive Notes shall have been
issued to Note Owners pursuant to Section 2.18, the Trustee, the Servicer and
NFLP shall give all such notices and communications specified herein to be given
to Noteholders to the applicable Clearing Agency for further distribution to the
Note Owners in accordance with the customary practices and procedures of such
Clearing Agency and Clearing Agency Participants.
Section 2.18. Definitive Notes.
(a) Conditions for Issuance. Interests in a Restricted Global
Note or Permanent Global Note deposited with DTC or a custodian of DTC
pursuant to Section 2.5 shall be transferred to the beneficial owners
thereof in the form of definitive registered Notes only if such
transfer complies with Section 2.9 and (x) DTC notifies NFLP that it is
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unwilling or unable to continue as depositary for such Restricted
Global Note or Permanent Global Note or at any time ceases to be a
"clearing agency" registered under the Exchange Act, and, in either
case, a successor depositary so registered is not appointed by NFLP
within 90 days of such notice or (y) NFLP determines that the
Restricted Global Note or Permanent Global Notes with respect to the
relevant Series of Notes shall be exchangeable for definitive
registered Notes, in which case Definitive Notes shall be issuable or
exchangeable only in respect of such Global Notes or the category of
Definitive Notes represented thereby or (z) any Note Owner or purchaser
or transferee of a beneficial interest in a Restricted Global Note or a
Permanent Global Note requests the same in the form of a Definitive
Note and NFLP, in its sole discretion, consents to such request (in
which case a Definitive Note shall be issuable or transferable only to
such Noteholder, purchaser or transferee), NFLP will deliver Notes in
definitive registered form, without interest coupons, in exchange for
the Restricted Global Notes or the Permanent Global Notes or, in the
case of an exchange or transfer described in clause (z) above, in
exchange for the applicable beneficial interest in one or more Global
Notes. Definitive registered Notes shall be issued without coupons in
amounts of U.S.$1,000,000 and integral multiples of U.S.$1,000, subject
to compliance with all applicable legal and regulatory requirements.
(b) Issuance. If interests in any Restricted Global Note or
Permanent Global Note, as the case may be, are to be transferred to the
beneficial owners thereof in the form of Definitive Notes pursuant to
this Section 2.18, such Restricted Global Note or Permanent Global
Note, as the case may be, shall be surrendered by DTC or its custodian
or agent to the office or agency of the Registrar located in the
Borough of Manhattan, the City of New York, or if the Notes are listed
on the Luxembourg Stock Exchange, to the applicable Luxembourg Agent in
Luxembourg, to be so transferred, without charge. If interests in any
Permanent Global Note are to be transferred to the beneficial owners
thereof in the form of Definitive Notes pursuant to this Section 2.18,
such Permanent Global Note shall be surrendered by DTC or its custodian
or agent to the Registrar or its agent located in London to be so
transferred, without charge. The Trustee shall authenticate and
deliver, upon such transfer of interests in such Restricted Global Note
or Permanent Global Note, an equal aggregate principal amount of
Definitive Notes of authorized denominations; provided, that in the
case of an interest in a Restricted Global Note, no such interest will
be transferred except upon delivery of a certificate substantially in
the form of Exhibit A-1 hereto. The Definitive Notes transferred
pursuant to this Section 2.18 shall be executed, authenticated and
delivered only in the denominations specified in paragraph (a) above or
in the related Supplement, and Definitive Notes shall be registered in
such names as DTC shall direct in writing. The Registrar shall have at
least 30 days from the date of its receipt of Definitive Notes and
registration information to authenticate and deliver such Definitive
Notes. Any Definitive Note delivered in exchange for an interest in a
Restricted Global Note or Permanent Global Note shall, except as
otherwise provided
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by Section 2.10, bear, and be subject to, the legend regarding transfer
restrictions set forth in Section 2.10. NFLP will promptly make
available to the Registrar a reasonable supply of Definitive Notes.
NFLP shall bear the costs and expenses of printing or preparing any
Definitive Notes.
(c) Transfer of Definitive Notes. Subject to the terms of this
Indenture, the Holder of any Definitive Note may transfer the same in
whole or in part, in an amount equivalent to an authorized
denomination, by surrendering at the office maintained by the Registrar
for such purpose in the Borough of Manhattan, The City of New York,
such Note with the form of transfer endorsed on it duly completed and
executed by, or accompanied by a written instrument of transfer in form
satisfactory to NFLP and the Registrar by, the holder thereof and
accompanied by a certificate substantially in the form of Exhibit A-1
hereto. In exchange for any Definitive Note properly presented for
transfer, NFLP shall execute and the Trustee shall promptly
authenticate and deliver or cause to be authenticated and delivered in
compliance with applicable law, to the transferee at such office, or
send by mail (at the risk of the transferee) to such address as the
transferee may request, Definitive Notes for the same aggregate
principal amount as was transferred. In the case of the transfer of any
Definitive Note in part, NFLP shall execute and the Trustee shall also
promptly authenticate and deliver or cause to be authenticated and
delivered to the transferor at such office, or send by mail (at the
risk of the transferor) to such address as the transferor may request,
Definitive Notes for the aggregate principal amount that was not
transferred. No transfer of any Definitive Note shall be made unless
the request for such transfer is made by the registered Holder at such
office.
(d) Neither NFLP nor the Trustee shall be liable for any delay
in delivery of transfer instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance
of Definitive Notes for such Series, the Trustee shall recognize the
Holders of the Definitive Notes as Noteholders of such Series.
Section 2.19. Tax Treatment.
NFLP has structured this Indenture and the Notes have been (or
will be) issued with the intention that the Notes will qualify under applicable
tax law as indebtedness of NFLP and any entity acquiring any direct or indirect
interest in any Note by acceptance of its Notes (or, in the case of a Note
Owner, by virtue of such Note Owner's acquisition of a beneficial interest
therein) agrees to treat the Notes (or beneficial interests therein) for
purposes of Federal, state and local and income or
franchise taxes and any other tax imposed on or measured by income, as
indebtedness of NFLP. Each Noteholder agrees that it will cause any Note Owner
acquiring an interest in a Note through it to comply with this Indenture as to
treatment as indebtedness for such tax purposes.
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Section 2.20. Certain Purchaser Representations and
Certifications.
(a) Prior to any sale or transfer of the Notes described in clause (2)
of Section 2.9(a) above, each prospective purchaser of the Notes shall be deemed
to have represented and agreed as follows:
(1) It is a qualified institutional buyer as defined in Rule
144A, it is aware that any sale of the Notes to it will be made in
reliance on Rule 144A and it is acquiring the Notes for its own
institutional account or for the account of a qualified institutional
buyer.
(2) The purchaser understands that the Notes are being offered
in a transaction not involving any public offering in the United States
within the meaning of the Securities Act, that the Notes have not been
registered under the Securities Act and that (A) such Notes may be
offered, resold, pledged or otherwise transferred only (i) to the
Issuer, (ii) to a person who the seller reasonably believes is a
qualified institutional buyer (as defined in Rule 144A) in a
transaction meeting the requirements of Rule 144A, (iii) outside the
United States to a person other than a U.S. Person (as defined in
Regulation S) in a transaction meeting the requirements of Regulation S
under the Securities Act, (iv) in a transaction exempt from the
registration requirements of the Securities Act and the applicable
securities laws of any State of the United States and any other
jurisdiction or (v) pursuant to an effective registration statement
under the Securities Act, in each such case in accordance with the
Indenture and any applicable securities laws of any State of the United
States and (B) the purchaser will, and each subsequent holder of a Note
is required to, notify any subsequent purchaser of a Note of the resale
restrictions set forth in (A) above.
(b) Prior to (a) (i) any direct placement of the Notes from
the Issuer or (ii) any placement by a placement agent selected by the Issuer, to
an institutional accredited investor or (b) any sale or transfer of the Notes
described in clause (4) of Section 2.9(a) above, each such prospective purchaser
of the Notes shall represent and agree as follows:
(i) to the restrictions on transfer set forth in
clause (a) (2) above, (ii) that it is (w) a qualified institutional
buyer within the meaning of Rule 144A or an accredited investor as
defined in Rule 501(a)(1),(2),(3) or (7) under the Securities Act; (x)
acquiring Notes having a minimum purchase price of not less than
$250,000 for its own account or for any separate account for which it
is acting; (y) acquiring such Notes for its own institutional account
or the account of an accredited investor as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act or a qualified institutional
buyer within the meaning of Rule 144A; and (z) not acquiring the Notes
with a view to distribution thereof or with any present intention of
offering or selling any of the Notes in a transaction that would
violate the Securities Act or the securities
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laws of any State of the United States or any other applicable
jurisdiction, (iii) that the registrar and transfer agent for the Notes
will not be required to accept for registration of transfer any Notes
acquired by them, except upon presentation of evidence satisfactory to
the transfer agent that the restrictions on transfer set forth in
clause (a) (2) above have been complied with and (iv) to execute and
deliver to the Issuer and the Trustee a Purchaser Representation Letter
in the form of Exhibit D hereto.
(c) In addition, NFLP shall require such prospective purchaser
to provide additional information or certifications, as shall be reasonably
requested by the Trustee, the Issuer or the Initial Purchasers, to support the
truth and accuracy of the foregoing acknowledgements, representations and
agreements, it being understood that such additional information is not intended
to create additional restrictions on the transfer of the Notes. NFLP, the
Initial Purchasers and the Trustee are not obligated, in their individual
capacities or as a group, to register the Notes under the Securities Act or any
state securities laws.
ARTICLE 3.
SECURITY
Section 3.1. Grant of Security Interest.
(a) To secure the NFLP Obligations, NFLP hereby pledges,
assigns, conveys, delivers, transfers and sets over to the Trustee, for
the benefit of the Noteholders and the Note Owners (the Noteholders and
the Note Owners being referred to as the "Secured Parties"), and hereby
grants to the Trustee, for the benefit of the Secured Parties, a
security interest in all of the right, title and interest in and to all
of the following assets, property and interests in property of NFLP
whether now owned or hereafter acquired or created (all of such right,
title and interest, together with the portion of the Master Collateral
with respect to which the Trustee is named as a Beneficiary, being
referred to as the "Collateral"):
(i) all right, title and interest of NFLP in, to and
under the NFLP Agreements, including, without limitation, all
rights of NFLP arising thereunder in respect of the National
Master Collateral, all monies due and to become due to NFLP
from the Lessee or the Servicer under or in connection with
NFLP Agreements, whether payable as rent, guaranty payments,
supplemental payments, fees, expenses, costs, indemnities,
insurance recoveries, damages for the breach of any of NFLP
Agreements or otherwise, and all rights, remedies, powers,
privileges and claims of NFLP against any other party under or
with respect to NFLP Agreements (whether arising pursuant to
the terms of
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such NFLP Agreements or otherwise available to NFLP at law or
in equity), the right to enforce any of the NFLP Agreements as
provided herein and to give or withhold any and all consents,
requests, notices, directions, approvals, extensions or
waivers under or with respect to NFLP Agreements or the
obligations of any party thereunder; and
(ii) (a) the Collection Account (including any
accounts designated in a Supplement or otherwise as a
subaccount thereof), (b) all funds on deposit therein from
time to time, (c) all certificates and instruments, if any,
representing or evidencing any or all of the Collection
Account or any subaccount thereof or the funds on deposit
therein from time to time, and (d) all Permitted Investments
made at any time and from time to time with the moneys in the
Collection Account or any subaccount thereof (including income
thereon); and
(iii) all right, title and interest of NFLP in, to
and under the Master Collateral Agency Agreement with respect
to the portion of the Master Collateral for which NFLP is
designated as a Financing Source and the Trustee is designated
as a Beneficiary thereunder; and
(iv) all additional property that may from time to
time hereafter (pursuant to the terms of any Supplement or
otherwise) be subjected to the grant and pledge hereof by NFLP
or by anyone on its behalf; and
(v) all proceeds, products, rents or profits of any
and all of the foregoing including, without limitation,
payments under insurance (whether or not the Master Collateral
Agent or the Trustee is the loss payee thereof) or Vehicle
warranties and cash.
(b) To secure the NFLP Obligations, NFLP hereby confirms the
grant, pledge, hypothecation, assignment, conveyance, delivery and
transfer to the Master Collateral Agent under the Master Collateral
Agency Agreement for the benefit of the Trustee of a continuing first
priority perfected Lien on all right, title and interest of NFLP in, to
and under all the NFLP Master Collateral.
(c) Notwithstanding anything to the contrary contained in (a)
and (b) above, the Collateral shall not include the Retained
Distribution Account, any funds on deposit therein from time to time,
any certificates or instruments, if any, representing or evidencing any
or all of the Retained Distribution Account or the funds on deposit
therein from time to time, or any Permitted Investments made at any
time and from time to time with the funds on deposit in the Retained
Distribution Account (including the income thereon); provided, further,
the Collateral shall not include any right, title
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or interest in the Fleet Finance Agreement or the NFLP Fleet Finance
Agreement and payments thereunder.
(d) The foregoing grant is made in trust to secure the NFLP
Obligations and to secure compliance with the provisions of this
Indenture and any Supplement, all as provided in this Indenture. The
Trustee, as Trustee on behalf of the Secured Parties, acknowledges such
grant, accepts the trusts under this Indenture in accordance with the
provisions of this Indenture and agrees to perform its duties required
in this Indenture to the best of its abilities to the end that the
interests of the Noteholders may be adequately and effectively
protected. The Collateral shall secure the Notes equally and ratably
without prejudice, priority (except, with respect to any Series of
Notes, as otherwise stated in the applicable Supplement) or
distinction.
Section 3.2. Certain Rights and Obligations of NFLP
Unaffected.
(a) Notwithstanding the assignment and security interest so
granted to the Trustee, NFLP shall nevertheless be permitted, subject
to the Trustee's right to revoke such permission in the event of an
Amortization Event and subject to the provisions of Section 3.3 hereof,
to give all consents, requests, notices, directions, approvals,
extensions or waivers, if any, which are required to be given in the
normal course of business (which does not include waivers of defaults
under any of the NFLP Agreements or any of the Manufacturer Programs or
revocation of powers of attorney to the Lessee) to the Lessee by NFLP
and by National to the Manufacturers by the specific terms of the Lease
and each Manufacturer Program, respectively.
(b) The grant of a security interest in the Collateral to the
Trustee shall not (i) relieve NFLP from the performance of any term,
covenant, condition or agreement on NFLP's part to be performed or
observed under or in connection with any of the NFLP Agreements or any
of the Manufacturer Programs or from any liability to National or the
Manufacturers, as the case may be, subject to the limitations contained
in Section 13.18, or (ii) impose any obligation on the Trustee or any
of the Secured Parties to perform or observe any such term, covenant,
condition or agreement on NFLP's part to be so performed or observed or
impose any liability on the Trustee or any of the Secured Parties for
any act or omission on the part of NFLP or from any breach of any
representation or warranty on the part of NFLP. NFLP hereby agrees to
indemnify and hold harmless the Trustee, each Noteholder and each Note
Owner (including, in each case, their respective directors, officers,
employees and agents) from and against any and all losses, liabilities
(including liabilities for penalties), claims, demands, actions, suits,
judgments, out-of-pocket costs and expenses arising out of or resulting
from the security interest granted hereby or by any Assignment
Agreement, whether arising by virtue of any act or omission on the part
of NFLP or otherwise, including, without limitation, out-of-pocket
costs, expenses, and
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disbursements (including reasonable attorneys' fees and expenses)
incurred by the Trustee, any of the Noteholders and any of the Note
Owners in enforcing this Indenture or preserving any of their
respective rights to, or realizing upon, any of the Collateral;
provided, however, the foregoing indemnification shall not extend to
any action by the Trustee, a Noteholder or a Note Owner which
constitutes negligence or willful misconduct by the Trustee, such
Noteholder, such Note Owner or any other Indemnified Person hereunder.
The indemnification provided for in this Section 3.2 shall survive the
removal of, or a resignation by, such Person as Trustee as well as the
termination of this Indenture, any Supplement or any Assignment
Agreement.
Section 3.3. Performance of Agreement.
Upon the occurrence of a Limited Liquidation Event of Default
or Liquidation Event of Default, promptly following a request from the Trustee
or the Master Collateral Agent to do so and at NFLP's expense, NFLP agrees to
take all such lawful action as permitted under this Indenture as the Trustee or
the Master Collateral Agent may request to compel or secure the performance and
observance by: (i) National or by any other party to any of the NFLP Agreements
or any other Related Document of its obligations to NFLP, and (ii) a
Manufacturer under a Manufacturer Program of its obligations to the Lessor or
the Lessee, or the Master Collateral Agent, as assignee, in each case in
accordance with the applicable terms thereof, and to exercise any and all
rights, remedies, powers and privileges lawfully available to NFLP to the extent
and in the manner directed by the Trustee or the Master Collateral Agent, as
applicable, including, without limitation, the transmission of notices of
default and the institution of legal or administrative actions or proceedings to
compel or secure performance by National (or such party to any NFLP Agreement or
any other Related Document) or by a Manufacturer under a Manufacturer Program,
of their respective obligations thereunder. If NFLP or National shall have
failed, within 30 days of receiving the direction of the Trustee or the Master
Collateral Agent, as applicable, to take commercially reasonable action to
accomplish such directions of the Trustee or the Master Collateral Agent, as
applicable, the Trustee or the Master Collateral Agent, as applicable, may take
such previously directed action and any related action permitted under this
Indenture which the Trustee or the Master Collateral Agent, as applicable,
thereafter determines is appropriate, without the need under this provision or
any other provision under the Indenture to direct NFLP to take such action) on
behalf of NFLP and the Noteholders.
Section 3.4. Release of Lien on Vehicles.
The Lien of the Trustee on the Vehicles shall automatically be deemed
to be released concurrently with any release thereof as provided in the Lease,
or Sections 2.3 or 2.7 of the Master Collateral Agency Agreement.
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Section 3.5. Stamp, Other Similar Taxes and Filing
Fees.
NFLP shall indemnify and hold harmless the Trustee, the Master
Collateral Agent and each Noteholder from any present or future claim for
liability for any stamp or other similar tax and any penalties or interest with
respect thereto, that may be assessed, levied or collected by any jurisdiction
in connection with this Indenture or any Collateral. NFLP shall pay, or
reimburse the Trustee for, any and all amounts in respect of, all search,
filing, recording and registration fees, taxes, excise taxes and other similar
imposts that may be payable or determined to be payable in respect of the
execution, delivery, performance and/or enforcement of this Indenture.
ARTICLE 4.
REPORTS
Section 4.1. Agreement of Servicer to Provide Reports.
(a) Pursuant to the Lease and the Master Collateral Agency Agreement,
the Servicer has agreed to provide certain reports specified therein. The
Noteholders by their acceptance of the Notes consent to the provision of such
reports by the Servicer in lieu of the Trustee or NFLP.
(b) The Trustee and the Paying Agent shall promptly follow the
instructions of the Servicer given pursuant to the Lease to withdraw funds from
the Collection Account and make drawings under any Enhancement, as provided in
the applicable Supplement.
ARTICLE 5.
ALLOCATION AND APPLICATION OF COLLECTIONS
Section 5.1. Collection Account.
(a) Establishment of Collection Account. The Trustee shall
establish and maintain in the name of the Trustee for the benefit of
the Secured Parties, or cause to be established and maintained, an
account (the "Collection Account"), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of
the Secured Parties. The Collection Account shall be maintained (i)
with a Qualified Institution, or (ii) as a segregated trust account
with the corporate trust department of a depository institution or
trust company having corporate trust powers and acting as trustee for
funds deposited in the Collection Account. If the Collection Account is
not maintained in accordance with the previous sentence, then within 10
Business Days after obtaining knowledge of such fact, the Trustee shall
establish a new Collection Account which complies with such sentence
and transfer into the new Collection
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Account all cash and investments from the non-qualifying Collection
Account. Initially, the Collection Account will be established with the
Trustee.
(b) Establishment of Retained Distribution Account. The
Trustee shall establish and maintain in the name of the Retained
Interestholder, for the benefit of the Retained Interestholder, or
cause to be established and maintained, an account (the "Retained
Distribution Account") bearing a designation clearly indicating that
the funds deposited therein are held for the benefit of the Retained
Interestholder. Unless otherwise instructed by NFLP, the Retained
Distribution Account shall be maintained (i) with a Qualified
Institution, or (ii) as a segregated trust account with the corporate
trust department of a depository institution or trust company having
corporate trust powers and acting as trustee for funds deposited in the
Retained Distribution Account. If the Retained Distribution Account is
not maintained in accordance with the previous sentence, then within
ten (10) Business Days after obtaining knowledge of such fact, the
Trustee shall establish a new Retained Distribution Account which
complies with such sentence and transfer into the new Retained
Distribution Account all cash and investments from the non-qualifying
Retained Distribution Account. Initially, the Retained Distribution
Account will be established with the Trustee.
(c) Establishment of Additional Accounts. To the extent
specified in the Supplement with respect to any Series of Notes, the
Trustee may establish and maintain one or more additional accounts
and/or administrative sub- accounts to facilitate the proper allocation
of Collections in accordance with the terms of such Supplement.
(d) Administration of the Collection Account. NFLP shall
instruct the institution maintaining the Collection Account to invest
funds on deposit in the Collection Account (including any
administrative subaccount thereof) at all times in Permitted
Investments selected by NFLP; provided, however, that any such
investment shall mature not later than the Business Day prior to the
Distribution Date following the date on which such funds were so
invested, except for any Permitted Investment held in the Collection
Account which is in an investment made by the Paying Agent institution,
in which event such investment may mature on such Distribution Date and
such funds shall be available for withdrawal on or prior to such
Distribution Date provided, further, that any such investment described
in clause (iv) of the definition of "Permitted Investments" need not
mature on or prior to such Distribution Date but need only permit
withdrawals therefrom not less frequently than on each Distribution
Date. The Trustee shall hold, for the benefit of the Secured Parties,
possession of any negotiable instruments or securities evidencing the
Permitted Investments until their maturity.
(e) Earnings from Collection Account. Subject to the
restrictions set forth above, NFLP shall
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have the authority to instruct the Trustee (which instructions shall be
in writing) with respect to (i) the investment of funds on deposit in
the Collection Account and (ii) liquidation of such investments. All
interest and earnings (net of losses and investment expenses) paid on
funds on deposit in the Collection Account shall be deemed to be
available and on deposit for distribution.
(f) Earnings from Retained Distribution Account. Subject to
the restrictions set forth above, the Servicer shall have the authority
to instruct the Trustee with respect to the investment of funds on
deposit in the Retained Distribution Account. All interest and earnings
(net of losses and investment expenses) on funds on deposit in the
Retained Distribution Account shall be deemed to be available and on
deposit for distribution to the Retained Interestholder.
Section 5.2. Collections and Allocations.
(a) Collections in General. Until this Indenture is terminated
pursuant to Section 11.1, NFLP shall, and the Trustee is authorized to,
cause all Collections due and to become due to NFLP or the Trustee, as
the case may be, (i) under or in connection with the Master Collateral
for which NFLP is designated as a Financing Source and the Trustee is
designated as a Beneficiary under the Master Collateral Agency
Agreement (including, without limitation, amounts due from
Manufacturers under their Manufacturer Programs with respect to
Vehicles other than Exchanged Vehicles but excluding amounts
representing the proceeds from sales of Vehicles by the Lessee or the
Lessor to third parties other than the Manufacturers, warranty payments
and insurance proceeds) to be paid directly to the Master Collateral
Agent for deposit into the Master Collateral Account; (ii) with respect
to amounts representing the proceeds from sales of Vehicles (other than
Exchanged Vehicles) by the Lessee or the Lessor to third parties other
than the Manufacturers (including proceeds from sales of Vehicles at
Auction which are due from third parties other than the Manufacturer)
to be deposited by the Lessee or the Lessor, as applicable, within two
Business Days of its receipt thereof into the Master Collateral
Account; (iii) under the Lease to be paid directly to the Trustee for
deposit into the Collection Account; and (iv) from any other source
(other than Collections excluded from deposit into the Master
Collateral Account under clause (i) above) to be paid either (a)
directly into the Collection Account at such times as such
amounts are due or (b) by the Lessee or the Lessor, as applicable, into
the Collection Account within two Business Days of its receipt thereof
(and, in each case, NFLP represents to the Trustee for the benefit of
the Secured Parties that it has instructed the Lessee, the Servicer,
the Manufacturers, and that it will instruct any other source of
Collections, as applicable, to so remit such amounts). Upon the
occurrence and during the continuance of an Amortization Event or
Potential Amortization Event, insurance proceeds (with respect to
Vehicles other than Exchanged Vehicles) will be deposited in the Master
Collateral Account within two Business Days of their receipt by the
Lessee, the Lessor or the Servicer, as applicable; provided,
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however, upon the delivery of an Officer's Certificate of the Servicer
to the Trustee (upon which it may conclusively rely) certifying (i)
that a Vehicle for which insurance proceeds have been received in the
Collection Account has been repaired and (ii) as to the dollar amount
of such repairs, the Trustee shall release to National insurance
proceeds in such dollar amount. NFLP agrees that if any such monies,
instruments, cash or other proceeds shall be received by NFLP in an
account other than the Master Collateral Account or the Collection
Account or in any other manner, such monies, instruments, cash and
other proceeds will not be commingled by NFLP with any of its other
funds or property, if any, but will be held separate and apart
therefrom and shall be held in trust by NFLP for, and immediately paid
over to, but in any event within two Business Days from receipt, the
Trustee or the Master Collateral Agent, as applicable, with any
necessary endorsement. All amounts on deposit in the Master Collateral
Account shall be allocated and distributed to the Trustee and other
Beneficiaries as provided in the Master Collateral Agency Agreement.
All monies, instruments, cash and other proceeds received by the
Trustee pursuant to this Indenture (including amounts received from the
Master Collateral Agent) shall be immediately deposited in the
Collection Account and shall be applied as provided in this Article 5.
Notwithstanding the foregoing, to the extent that the aggregate amount
of proceeds received in the Collection Account with respect to any
Financed Vehicle exceeds the Termination Value of such Vehicle, the
Trustee shall, upon the written direction (on which it may conclusively
rely) of NFLP delivered by 12:00 noon (New York City time) on a
Business Day, release such excess to the Lessee on such Business Day,
or, if such written direction is received by the Trustee after 12:00
noon (New York City time) on a Business Day, on the next succeeding
Business Day.
(b) Disqualification of Institution Maintaining
Collection Account. In the event the Qualified Institution
maintaining the Collection Account ceases to be such, then, upon the
occurrence of such event and the establishment of a new Collection
Account with a Qualified Institution or qualified corporate trust
department pursuant to Section 5.1(a) and thereafter, the Servicer, the
Lessee and NFLP shall deposit or cause to be deposited all Collections
as set forth in Section 5.2(a) into the new Collection Account, and in
no such event shall deposit or cause to be deposited any Collections
thereafter into any account established, held or maintained with the
institution formerly maintaining the Collection Account (unless it
later becomes a Qualified Institution or qualified corporate trust
department). NFLP will instruct the Lessee and the Servicer as to the
foregoing requirements of this subsection (b).
(c) Right of Servicer to Deduct Fees. Notwithstanding anything
in this Indenture to the contrary but subject to any limitations set
forth in the applicable Supplement, as long as the Servicer is National
or an Affiliate of National and the Retained Interest Amount equals or
exceeds zero, the Servicer (i) may make or cause to be made deposits to
the Collection Account net of any amounts which are allocable to
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the Retained Distribution Account and represent amounts due and owing
to the Servicer or National, and (ii) need not deposit or cause to be
deposited any amounts to be paid to the Servicer or National pursuant
to this Section 5.2 and such amounts will be deemed paid to National or
the Servicer, as the case may be, pursuant to this Section 5.2.
(d) Sharing Collections. To the extent that Principal
Collections that are allocated to any Series on a Distribution Date are
not needed to make payments to Noteholders of such Series or required
to be deposited in a Distribution Account for such Series on such
Distribution Date, such Principal Collections may at the direction of
the Servicer, be applied to cover principal payments due to or for the
benefit of Noteholders of another Series. Any such reallocation will
not result in a reduction of the Principal Balance or Invested Amount
of the Series to which such Principal Collections were initially
allocated.
(e) Unallocated Principal Collections. If, after giving effect
to Section 5.2(d), Principal Collections allocated to any Series on any
Distribution Date are in excess of the amount required to be paid in
respect of such Series on such Distribution Date, then any such excess
Principal Collections shall be allocated to the Retained Distribution
Account, to the extent that the Retained Interest Amount, calculated as
of such Distribution Date, equals or exceeds zero and such payment will
not violate any restriction contained in this Indenture.
Section 5.3. Determination of Monthly Interest.
Monthly interest with respect to each Series of Notes shall be
determined, allocated and distributed in accordance with the procedures set
forth in the applicable Supplement.
Section 5.4. Determination of Monthly Principal.
Monthly principal with respect to each Series of Notes shall
be determined, allocated and distributed in accordance with the procedures set
forth in the applicable Supplement. However, all principal or interest with
respect to any Series of Notes shall be due and payable no later than the Series
Termination Date with respect to such Series.
Section 5.5. Paired Series.
To the extent provided in a Supplement, any Series of Notes
may be paired with one or more other Series (each, a "Paired Series"). Each
Paired Series may be prefunded with an initial deposit to a pre-funding account
in an amount up to the initial principal balance of such Paired Series,
primarily from the proceeds of the sale of such Paired Series, or will have
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a variable principal amount. Any such pre-funding account will be held for the
benefit of such Paired Series and not for the benefit of the Noteholders of the
Series paired therewith. As funds are accumulated in a principal funding account
or paid to Noteholders either (i) in the case of a pre-funded Paired Series, an
equal amount of funds on deposit in any pre-funding account for such pre-funded
Paired Series will be released and paid to NFLP or (ii) in the case of a Paired
Series having a variable principal amount, an interest in such variable Paired
Series in an equal or lesser amount may be sold by NFLP and, in either case, the
invested amount of such Paired Series will increase by up to a corresponding
amount. Upon payment in full of the Series paired to the Paired Series, the
aggregate invested amount of such related Paired Series will have been increased
by an amount up to an aggregate amount equal to the Invested Amount of such
Series paid to the Noteholders thereof. The issuance of a Paired Series may be
subject to certain conditions described in the related Supplement.
[THE REMAINDER OF ARTICLE 5 IS RESERVED AND MAY BE SPECIFIED IN
ANY SUPPLEMENT WITH RESPECT TO ANY SERIES]
ARTICLE 6.
DISTRIBUTIONS AND REPORTS TO NOTEHOLDERS
Section 6.1. Distributions in General.
(a) Unless otherwise specified in the applicable Supplement,
on each Distribution Date with respect to each Outstanding Series, (i)
the Paying Agent shall deposit (in accordance with the Monthly
Certificate delivered by the Servicer to the Trustee) in the
Distribution Account for each such Series the amounts on deposit in the
Collection Account allocable to Noteholders of such Series as interest
and, if during an Amortization Period, principal, and (ii) to the
extent provided for in the applicable Supplement, the Trustee (in
accordance with the Monthly Certificate or other instructions of the
Servicer) shall deposit in the Distribution Account for each such
Series the amount of Enhancement for such Series drawn in connection
with such Distribution Date.
(b) Unless otherwise specified in the applicable Supplement,
on each Distribution Date, the Paying Agent shall distribute to the
Noteholders of each Series, to the extent amounts are on deposit in the
Distribution Account for such Series, an amount sufficient to pay all
principal and interest due on such Series on such Distribution Date.
Such distribution shall be to each Noteholder of record of such Series
on the preceding Record Date based on such Noteholder's pro rata share
of the aggregate principal amount of the Notes of such Series held by
such Noteholder; provided, however, that, the final principal payment
due on a Note shall only be paid
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to the holder of a Note on due presentment of such Note for
cancellation in accordance with the provisions of the Note.
(c) Unless otherwise specified in the applicable Supplement,
amounts distributable to a Noteholder pursuant to this Section 6.1
shall be payable by check mailed first-class postage prepaid to such
Noteholder at the address for such Noteholder appearing in the Note
Register except that with respect to Notes registered in the name of a
Clearing Agency or its nominee, such amounts shall be payable by wire
transfer of immediately available funds released by the Paying Agent
from the Distribution Account no later than 2:00 p.m. (New York City
time) for credit to the account designated by such Clearing Agency or
its nominee, as applicable.
(d) Unless otherwise specified in the applicable
Supplement (i) all distributions to Noteholders of all classes within a
Series of Notes will have the same priority and (ii) in the event that
on any date of determination the amount available to make payments to
the Noteholders of a Series is not sufficient to pay all sums required
to be paid to such Noteholders on such date, then each class of
Noteholders will receive its ratable share (based upon the aggregate
amount due to such class of Noteholders) of the aggregate amount
available to be distributed in respect of the Notes of such Series.
(e) All distributions in respect of Notes represented by a
Temporary Global Note will be made only with respect to that portion of
the Temporary Global Note in respect of which Euroclear or Cedel shall
have delivered to the Trustee a certificate or certificates
substantially in the form of Exhibit B. The delivery to the Trustee by
Euroclear or Cedel of the certificate or certificates referred to above
may be relied upon by NFLP and the Trustee as conclusive evidence that
the certificate or certificates referred to therein has or have been
delivered to Euroclear or Cedel pursuant to the terms of this Indenture
and the Temporary Global Note. No payments of interest will be made on
a Temporary Global Note after the Exchange Date therefor.
Section 6.2. Distributions to Retained Distribution
Account.
Subject to the terms and conditions of the related Supplement
or Supplements, at any time and from time to time upon receipt of a duly
executed Company Order, the Trustee will transfer funds from the Collection
Account to the Retained Distribution Account; provided, however, that the
Trustee will not make any such transfer on any date other than on a Distribution
Date unless the Trustee receives an Officer's Certificate from the Servicer
stating that, on the date such transfer is made and, in the reasonable
anticipation of the Servicer, on the next Distribution Date, (i) the transfer of
such funds from the Collection Account to the Retained Distribution Account will
not cause an Asset Amount Deficiency to exist and (ii) the transfer of such
funds from the Collection Account to the Retained
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Distribution Account will not violate any restriction contained in this
Indenture or any Supplement.
Section 6.3. Optional Repurchase of Notes.
On any Distribution Date occurring on or after the date on
which the aggregate Principal Balance of any Series or class of such Series is
equal to or less than the Repurchase Amount (if any) for such series or class
set forth in the Supplement related to such Series, or at such other time
otherwise provided for in the Supplement relating to such Series, NFLP shall
have the option to purchase all Outstanding Notes of such Series, or class of
such Series, at a purchase price (determined after giving effect to any payment
of principal and interest on such Distribution Date) equal to (unless otherwise
specified in the related Supplement) the Principal Balance of such Series or
class, as applicable, on such Distribution Date, plus accrued and unpaid
interest on the unpaid Principal Balance of the Notes of such Series or class
(calculated at the applicable Note Rate of such Series or class) through the day
immediately prior to the date of such purchase plus, if provided for in the
related Supplement, any premium payable at such time. NFLP shall give the
Trustee at least 30 days prior written notice of the date on which NFLP intends
to exercise such option to purchase. Not later than 12:00 noon, New York City
time, on such Distribution Date, the purchase price of the Notes being
repurchased on such Distribution Date and the amount of accrued and unpaid
interest with respect to such Notes and any applicable premium will be deposited
into the Distribution Account for such Series in immediately available funds.
The funds deposited into such Distribution Account or distributed to the Paying
Agent will be passed through in full to the Noteholders on such Distribution
Date.
Section 6.4. Monthly Noteholders' Statement.
(a) On each Distribution Date, the Paying Agent shall forward
to each Noteholder of record of all outstanding Series, the Rating
Agencies, the Trustee (if other than the Paying Agent) and any
Enhancement Provider the Monthly Noteholders' Statement prepared by the
Servicer pursuant to
the Lease.
(b) Annual Noteholders' Tax Statement. On or before January 31
of each calendar year, beginning with calendar year 1997, the Paying
Agent shall furnish to each Person who at any time during the preceding
calendar year was a Noteholder a statement prepared by the Servicer
containing the information prepared by the Servicer which is required
to be contained in the Monthly Noteholders' Statement aggregated for
such calendar year or the applicable portion thereof during which such
Person was an Noteholder, together with such other customary
information (consistent with the treatment of the Notes as debt) as the
Servicer deems necessary or desirable to enable the Noteholders to
prepare their tax returns (each such statement, an "Annual Noteholders'
Tax Statement"). Such obligations of the Servicer to prepare and the
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Paying Agent to distribute the Annual Noteholders' Tax Statement shall
be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Paying Agent pursuant
to any requirements of the Code as from time to time in effect.
ARTICLE 7.
REPRESENTATIONS AND WARRANTIES
NFLP hereby represents and warrants, for the benefit of the
Trustee and the Noteholders, as follows as of each Closing Date:
Section 7.1. Legal Existence and Power.
(a) NFLP (i) is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of Delaware, (ii) is
duly qualified to do business as a foreign limited partnership and in good
standing under the laws of each jurisdiction where the character of its
property, the nature of its business or the performance of its obligations make
such qualification necessary, and (iii) has all partnership powers and all
material governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted and for purposes of the transactions
contemplated by this Indenture and the other Related Documents; except that NFLP
may not have all required authorizations to purchase, rent and sell vehicles in
all states where it operates but NFLP has applied for all such authorizations
and expects to receive them within 90 days after the initial Closing Date.
(b) The General Partner (i) is the sole general partner of
NFLP, (ii) is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware, (iii) is duly qualified to do
business as a foreign corporation and in good standing under the laws of each
jurisdiction where the character of its property, the nature of its business or
the performance of its obligations make such qualification necessary and (iv)
has all corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted and
for purposes of the transactions contemplated by this Indenture and the other
Related Documents.
Section 7.2. Authorization.
The execution, delivery and performance by NFLP of this
Indenture, the related Supplement and the other Related Documents to which it is
a party (a) is within NFLP's partnership powers, has been duly authorized by all
necessary partnership action, (b) requires no action by or in respect of, or
filing with, any governmental body, agency or official which has not been
obtained and (c) does not contravene, or constitute a default under, any
provision
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of applicable law or regulation or of the certificate of limited partnership or
partnership agreement of NFLP or of any law or governmental regulation, rule,
contract, agreement, judgment, injunction, order, decree or other instrument
binding upon NFLP or any of its Assets or result in the creation or imposition
of any Lien on any Asset of NFLP, except for Liens created by this Indenture,
the Master Collateral Agency Agreement or the other Related Documents. This
Indenture and each of the other Related Documents to which NFLP is a party has
been executed and delivered by a duly authorized officer of NFLP.
Section 7.3. Binding Effect.
This Indenture and each other Related Document is a legal,
valid and binding obligation of NFLP enforceable against NFLP in accordance with
its terms (except as such enforceability may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws affecting creditors' rights generally or by general equitable principles,
whether considered in a proceeding at law or in equity and by an implied
covenant of good faith and fair dealing).
Section 7.4. Financial Information; Financial
Condition.
All balance sheets, all statements of operations, of
shareholders' equity and of cash flow, and other financial data (other than
projections) of NFLP which have been or shall hereafter be furnished by NFLP to
the Trustee and the Rating Agencies pursuant to Section 8.3 have been and will
be prepared in accordance with GAAP (to the extent applicable) and do and will
present fairly the financial condition of the entities involved as of the dates
thereof and the results of their operations for the periods covered thereby,
subject, in the case of all unaudited statements, to normal year-end adjustments
and lack of footnotes and presentation items.
Section 7.5. Litigation.
There is no action, suit or proceeding pending against or, to
the knowledge of NFLP, threatened against NFLP before any court or arbitrator or
any Governmental Authority with respect to which there is a reasonable
possibility of an adverse decision that could materially adversely affect the
financial position, results of operations, business, properties, performance, or
condition (financial or otherwise) of NFLP or which in any manner draws into
question the validity or enforceability of this Indenture, any Supplement or any
other Related Document or the ability of NFLP to perform its obligations
hereunder or thereunder.
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Section 7.6. No ERISA Plan.
NFLP has not established and does not maintain or contribute
to any Pension Plan that is covered by Title IV of ERISA and will not do so, as
long as any Notes are Outstanding.
Section 7.7. Tax Filings and Expenses.
NFLP has filed all federal, state and local tax returns and
all other tax returns which, to the knowledge of NFLP, are required to be filed
(whether informational returns or not), and has paid all taxes due, if any,
pursuant to said returns or pursuant to any assessment received by NFLP, except
such taxes, if any, as are being contested in good faith and for which adequate
reserves have been set aside on its books. NFLP has paid all fees and expenses
required to be paid by it in connection with the conduct of its business, the
maintenance of its partnership existence and its qualification as a foreign
partnership authorized to do business in each State in which it is required to
so qualify, except where the failure to pay any such fees and expenses is not
reasonably likely to have a Material Adverse Effect.
Section 7.8. Disclosure.
The Private Placement Memorandum does not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. All certificates, reports, statements,
documents and other information furnished to the Trustee by or on behalf of NFLP
pursuant to any provision of this Indenture or any Related Document, or in
connection with or pursuant to any amendment or modification of, or waiver
under, this Indenture or any Related Document, shall, at the time the same are
so furnished, be complete and correct to the extent necessary to give the
Trustee true and accurate knowledge of the subject matter thereof in all
material respects, and the furnishing of the same to the Trustee shall
constitute a representation and warranty by NFLP made on the date the same are
furnished to the Trustee to the effect specified herein.
Section 7.9. Investment Company Act; Securities Act.
NFLP is not, and is not "controlled" by, an "investment
company" within the meaning of, and is not required to register as an
"investment company" under, the Investment Company Act of 1940. It is not
necessary in connection with the issuance and sale of the Notes under the
circumstances contemplated in the Private Placement Memorandum, any Placement
Memorandum Supplement
thereto and in any note purchase or similar agreement to register any security
under the Securities Act or to qualify any indenture under the Trust Indenture
Act.
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Section 7.10. Regulations G, T, U and X.
The proceeds of the Notes will not be used to purchase or
carry any "margin stock" (as defined or used in the regulations of the Board of
Governors of the Federal Reserve System, including Regulations G, T, U and X
thereof). NFLP is not engaged in the business of extending credit for the
purpose of purchasing or carrying any margin stock.
Section 7.11. No Consent.
No consent, action by or in respect of, approval or other
authorization of, or registration, declaration or filing with, any Governmental
Authority or other Person is required for the execution and delivery of this
Indenture or any Supplement or for the performance of any of NFLP's obligations
hereunder or thereunder or under any other Related Document other than such
consents, approvals, authorizations, registrations, declarations or filings as
shall have been obtained by NFLP prior to the initial Closing Date or as
contemplated in Section 7.14, or in the case of NFLP's authorization to
purchase, rent and sell vehicles in each state in which it operates, within 90
days after the initial Closing Date.
Section 7.12. Solvency.
Both before and after giving effect to the transactions
contemplated by this Indenture and the other Related Documents, NFLP is solvent
within the meaning of the Bankruptcy Code and NFLP is not the subject of any
voluntary or involuntary case or proceeding seeking liquidation, reorganization
or other relief with respect to itself or its debts under any bankruptcy or
insolvency law and no Event of Bankruptcy has occurred with respect to NFLP.
Section 7.13. Ownership; Subsidiary.
The sole general partner of NFLP is the General Partner and
the sole limited partner of NFLP is National, all of the issued and outstanding
common stock of the General Partner is owned by National, all of which common
stock has been validly issued, is fully paid and non-assessable and is owned of
record by such corporation. NFLP has no subsidiaries and owns no capital stock
of, or other interest in, any other Person.
Section 7.14. Security Interests.
(a) All action necessary (including the filing of UCC-1
financing statements and the notation on the Certificates of Title for
all Vehicles (other than Initial Vehicles) of the Master Collateral
Agent's Lien for the benefit of NFLP and the Trustee) to protect and
perfect the Trustee's security interest in the Collateral and the
Master
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Collateral Agent's security interest in the Master Collateral now in
existence and hereafter acquired or created has been duly and
effectively taken.
(b) No security agreement, financing statement, equivalent
security or lien instrument or continuation statement listing NFLP as
debtor covering all or any part of the Collateral is on file or of
record in any jurisdiction, except such as may have been filed,
recorded or made by NFLP in favor of the Trustee in connection with
this Indenture or the Master Collateral Agent in connection with the
Master Collateral Agency Agreement.
(c) This Indenture constitutes a valid and continuing Lien on
the Collateral in favor of the Trustee, which Lien will be prior to all
other Liens (other than Permitted Liens), and the Master Collateral
Agency Agreement constitutes a valid and continuing Lien on the Master
Collateral in favor of the Master Collateral Agent prior to all other
Liens (other than Permitted Liens) and, in each case, will be
enforceable as such as against creditors of and purchasers from NFLP in
accordance with its terms, except as such enforceability may be limited
by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting creditors' rights generally
or by general equitable principles, whether considered in a proceeding
at law or in equity and by an implied covenant of good faith and fair
dealing. All action necessary to perfect such prior security interest
has been duly taken.
(d) NFLP's principal place of business and chief executive
office shall be at: 7700 France Avenue South, Minneapolis, Minnesota
55435, and the place where its records concerning the Collateral are
kept is at: 7700 France Avenue South, Minneapolis, Minnesota 55435.
NFLP does not transact, and has not transacted, business under any
other name.
(e) All authorizations in this Indenture for the Trustee to
endorse checks, instruments and securities and to execute financing
statements, continuation statements,
security agreements, Certificates of Title, and other instruments with
respect to the Collateral are powers coupled with an interest and are
irrevocable.
Section 7.15. Binding Effect of Lease.
The Lease is in full force and effect and there are no
existing Lease Events of Default or Manufacturer Events of Default thereunder
nor have events occurred which with the giving of notice, the passage of time or
both would constitute a Lease Event of Default or Manufacturer Event of Default.
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Section 7.16. Non-Existence of Other Agreements.
As of the date of the issuance of the first Series of Notes,
other than as permitted by Section 8.24 and Section 8.26 hereof (i) NFLP is not
a party to any contract or agreement of any kind or nature and (ii) NFLP is not
subject to any obligations or liabilities of any kind or nature in favor of any
third party, including, without limitation, Contingent Obligations.
Section 7.17. Manufacturer Programs.
Each Manufacturer and Manufacturer Program in respect of which
Vehicles will be acquired or financed under the Lease is an Eligible
Manufacturer and Eligible Manufacturer Program, respectively, and each of NFLP
and National is an Authorized Fleet Purchaser under each such Manufacturer
Program.
Section 7.18. Other Representations.
All representations and warranties of NFLP made in each
Related Document to which it is a party are true and correct (in all material
respects to the extent any such representations and warranties do not
incorporate a materiality limitation in their terms) and are repeated herein as
though fully set forth herein.
ARTICLE 8.
COVENANTS
NFLP and, where specified, the General Partner, hereby
covenants, to the Trustee for the benefit of the Secured Parties, as follows:
Section 8.1. Payment of Notes.
NFLP shall pay the principal of (and premium, if any)
and interest on the Notes pursuant to the provisions of this
Indenture and any applicable Supplement. Principal and interest shall be
considered paid on the date due if the Paying Agent holds on that date money
designated for and sufficient to pay all principal and interest then due.
Section 8.2. Maintenance of Office or Agency.
NFLP will maintain an office or agency (which may be an office
of the Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or exchange, where notices and demands to or upon NFLP
in respect of the Notes and this
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Indenture may be served, and where, at any time when NFLP is obligated to make a
payment of principal and premium upon the Notes, the Notes may be surrendered
for payment. NFLP will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time NFLP shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.
NFLP may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations. NFLP will
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
NFLP hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of NFLP.
Section 8.3. Information.
NFLP will deliver or cause to be delivered to the Trustee and
each Rating Agency (provided that, if Duff & Phelps is then a Rating Agency, the
Trustee, not NFLP, will deliver such items to Duff & Phelps promptly upon
receipt of same from NFLP):
(a) promptly upon the delivery by the Servicer to NFLP, a copy
of the financial information and other materials required to be
delivered by the Servicer to NFLP and the Master Collateral Agent
pursuant to Section 24.6(i) of the Lease;
(b) promptly upon the delivery by the Servicer to NFLP, copies
of the financial information and other materials required to be
delivered by the Servicer to NFLP and the Master Collateral Agent
pursuant to Section 24.6(ii) of the Lease;
(c) promptly upon the delivery by the Servicer to NFLP, the
financial information and other materials required to be delivered by
the Servicer pursuant to Section 24.6(vi) of the Lease;
(d) promptly upon the delivery by the Servicer to NFLP, the
financial information and other materials required to be delivered by
the Servicer pursuant to Section 24.6(ix) of the Lease;
(e) promptly upon the delivery by the Servicer to NFLP, the
financial information and other materials required to be delivered by
the Servicer pursuant to Section 24.6(x) of the Lease;
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(f) promptly upon the delivery by the Servicer to NFLP, the
financial information and other materials required to be delivered by
the Servicer pursuant to Section 24.6(xi) of the Lease;
(g) from time to time such additional information regarding
the financial position, results of operations or business of National
and its Subsidiaries as the Trustee may reasonably request to the
extent that National delivers such information to NFLP pursuant to
Section 24.6(xii) of the Lease;
(h) at the time of delivery of the items described in clauses
(a) through (g) above, a certificate of an officer of NFLP that, except
as provided in any certificate delivered in accordance with Section
8.10, no Amortization Event, Lease Event of Default or (to the best of
such officer's knowledge) Potential Amortization Event or Potential
Lease Event of Default has occurred or is continuing during such fiscal
quarter;
(i) on or prior to June 30 of each year, a certificate of the
chief financial officer of NFLP certifying that (i) the ratings
assigned by the Rating Agencies in respect of any outstanding Series of
Notes have not been withdrawn or downgraded since the date of the
related Supplement, (ii) no change in the Manufacturer Program of any
Manufacturer in respect of any new model year shall have given rise to
any request on the part of the Rating Agencies that any modification be
made to the Lease or any other Related Document, and (iii) NFLP has
apprised the Rating Agencies of all material changes in the
Manufacturer Programs occurring since the date of this Indenture;
(j) on or prior to the twentieth day of each month (or if such
day is not a Business Day, on the next succeeding Business Day), a copy
of the Monthly Vehicle Statement
relating to the Collateral as of the last Business Day of the
immediately preceding month received by NFLP from the Servicer pursuant
to Section 24.6(iv) of the Lease; and
(k) promptly following the introduction of any prospective
change in any Manufacturer Program or the introduction of any new
Manufacturer Program by an existing Manufacturer, or, if later, the
date NFLP or National obtains notice thereof, notice of the same and
notice thereof to the Rating Agencies describing the principal terms
thereof, and at least annually a copy of each Manufacturer Program to
the Rating Agencies.
Section 8.4. Payment of Obligations.
NFLP will pay and discharge, at or before maturity, all of its
respective material obligations and liabilities, including, without limitation,
tax liabilities and other
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governmental claims, except where the same may be contested in good faith by
appropriate proceedings, and will maintain, in accordance with GAAP, reserves as
appropriate for the accrual of any of the same.
Section 8.5. Reserved.
Section 8.6. Conduct of Business and Maintenance of
Existence.
NFLP will maintain its corporate existence as a corporation
validly existing and in good standing under the laws of the State of Delaware
and duly qualified as a foreign corporation licensed under the laws of each
state in which the failure to so qualify would have a material adverse effect on
the business and operations of NFLP.
Section 8.7. Compliance with Laws.
NFLP will comply in all respects with all Requirements of Law
(including, without limitation, ERISA and the rules and regulations thereunder)
except where such noncompliance would not materially and adversely affect the
condition, financial or otherwise, operations, performance, properties of NFLP
or its ability to carry out the transactions contemplated in this Indenture and
each other Related Document; provided, however, such noncompliance will not
result in a Lien (other than a Permitted Lien) on any Assets of NFLP.
Section 8.8. Inspection of Property, Books and
Records.
NFLP will keep proper books of record and account in
which full, true and correct entries shall be made of all dealings and
transactions in relation to its Assets, business and activities in accordance
with GAAP; and will permit the Trustee to visit and inspect any of its
properties, to examine and make abstracts from any of its books and records and
to discuss its affairs, finances and accounts with its officers, directors,
employees and independent public accountants, all at such reasonable times upon
reasonable notice and as often as may reasonably be requested.
Section 8.9. Compliance with Related Documents.
NFLP will perform and comply with each and every obligation,
covenant and agreement required to be performed or observed by it in or pursuant
to this Indenture and each other Related Document to which it is a party,
subject to the grace periods set forth therein, and will not take any action
which would permit the Lessee, the Servicer or National to have the right to
refuse to perform any of its obligations under any Related Document. NFLP will
not amend the Lease, except in accordance with Section 22 thereof.
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Section 8.10. Notice of Defaults.
(a) Promptly upon becoming aware of any Potential Amortization
Event, Amortization Event, Lease Event of Default or Potential Lease
Event of Default, NFLP shall give the Trustee, each Enhancement
Provider and the Rating Agencies notice thereof, together with a
certificate of the President, Vice President or principal financial
officer of NFLP setting forth the details thereof and any action with
respect thereto taken or contemplated to be taken by NFLP, and
(b) Promptly upon becoming aware of any default under any
Related Document or under any Manufacturer Program, NFLP shall give the
Trustee, each Enhancement Provider and the Rating Agencies notice
thereof.
Section 8.11. Notice of Material Proceedings.
Promptly upon becoming aware thereof, NFLP shall give the
Trustee and the Rating Agencies written notice of the commencement or existence
of any proceeding by or before any Governmental Authority against or affecting
NFLP which is reasonably likely to have a material adverse effect on the
business, condition (financial or otherwise), results of operations, properties
or performance of NFLP or the ability of NFLP to perform its obligations under
this Indenture or under any other Related Document to which it is a party.
Section 8.12. Further Requests.
NFLP will promptly furnish to the Trustee, each Enhancement
Provider and the Rating Agencies such other information as, and in such form as,
the Trustee or such Enhancement Provider or the Rating Agencies may reasonably
request in connection with the transactions contemplated hereby.
Section 8.13. Further Assurances.
(a) NFLP shall do such further acts and things, and shall
execute and deliver to the Trustee such additional assignments,
agreements, powers and instruments, as the Trustee or the Required
Noteholders reasonably determine to be necessary to carry into effect
the purposes of this Indenture or the other Related Documents or to
better assure and confirm unto the Trustee or the Noteholders their
rights, powers and remedies hereunder including, without limitation,
the filing of any financing or continuation statements under the
Uniform Commercial Code in effect in any jurisdiction with respect to
the liens and security interests granted hereby and pursuant to the
Master Collateral Agency Agreement. NFLP also hereby acknowledges that
the Trustee has the right but not the obligation to file any such
financing statement or continuation statement without the signature of
NFLP to the extent permitted by applicable law. If
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any amount payable under or in connection with any of the Collateral
shall be or become evidenced by any promissory note, chattel paper or
other instrument, such note, chattel paper or instrument shall be
deemed to be held in trust and immediately pledged to the Trustee
hereunder, and shall, subject to the rights of any Person in whose
favor a prior Lien has been perfected, be duly endorsed in a manner
satisfactory to the Trustee and delivered to the Trustee promptly.
Without limiting the generality of the foregoing provisions of this
Section 8.13(a), NFLP shall take all actions that are required to
maintain the security interest of the Trustee in the Collateral and of
the Master Collateral Agent in the Master Collateral as a perfected
security interest subject to no prior Liens, including, without
limitation (i) filing all Uniform Commercial Code financing statements,
continuation statements and amendments thereto necessary to achieve the
foregoing, (ii) causing the Lien of the Master Collateral Agent to be
noted on all Certificates of Title (other than with respect to Initial
Vehicles) and (iii) causing the Servicer, as agent for the Master
Collateral Agent, to maintain possession of the Certificates of Title
for the benefit of the Master Collateral Agent pursuant to Section
[2.6] of the Master Collateral Agency Agreement.
(b) NFLP will warrant and defend the Trustee's right, title
and interest in and to the Collateral and the income, distributions and
proceeds thereof, for the benefit of the Noteholders and the Trustee,
against the claims and demands of all Persons whomsoever.
(c) If so requested by Noteholders holding 10% or in excess of
10% of the aggregate Invested Amount of any Series of Notes (excluding
for the purposes of making the foregoing calculation, any Notes held by
National or any Affiliate of National), NFLP will provide, no more
frequently than annually and, without the request of Noteholders on the
fifth anniversary of the date hereof, an Opinion of Counsel to the
effect that no UCC financing or continuation statements are required to
be filed with respect to any of the Collateral in which a security
interest may be perfected by the filing of UCC financing statements.
Section 8.14. Manufacturer Programs.
(a) Prior to acquiring or financing the acquisition of any
Program Vehicles under the Lease for any model year after the 1996
model year, (i) NFLP will have received an executed Assignment
Agreement with respect to National's rights under such Manufacturer
Program for such model year (to the extent National will be acquiring
Financed Vehicles (other than Texas Vehicles) under the Lease under
such Manufacturer Program), (ii) NFLP shall have delivered an executed
Assignment Agreement with respect to NFLP's rights under such
Manufacturer Program for such model year, (iii) if any Series of Notes
is then being rated by Standard & Poor's and/or Duff & Phelps, NFLP
shall have received a written confirmation from Standard &
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Poor's and/or Duff & Phelps, as applicable, that the acquisition of
Vehicles pursuant to such Manufacturer Program will not result in the
reduction or withdrawal of any rating issued by Standard & Poor's
and/or Duff & Phelps, as applicable, in respect of any outstanding
Series of Notes and (iv) if there is a material change to a
Manufacturer Program during a model year, NFLP shall have received
written confirmation from Standard & Poor's and/or Duff & Phelps, as
applicable, that the acquisition of Vehicles pursuant to such
Manufacturer Program will not result in the reduction or withdrawal of
any rating issued by Standard & Poor's and/or Duff & Phelps, as
applicable, in respect of any outstanding Series of Notes. A copy of
the rating confirmations set forth in clauses (iii) and (iv) will
promptly be delivered to the Trustee for delivery to the Noteholders of
any outstanding Series of Notes.
(b) NFLP will (a) provide the Trustee with at least 30 days'
prior written notice of its intention to finance Vehicles from any new
Manufacturer, (b) provide the Trustee with a copy of the final
Manufacturer Program of such Manufacturer promptly upon its being
available and (c) certify to the Trustee and the Noteholders that such
new Manufacturer is an Eligible Manufacturer and that such Manufacturer
Program is an Eligible Manufacturer Program at such time. In no event
shall NFLP agree, to the extent any consent of NFLP is solicited or
required by the Manufacturer or any assignor of such Manufacturer
Program, to any change in any Manufacturer Program that is reasonably
likely to materially adversely affect its rights or the rights of the
Noteholders with respect to any Vehicle previously purchased or
financed under such Manufacturer Program.
(c) On the date of acquisition by NFLP of each Acquired
Vehicle (and each Texas Vehicle) which is a Program Vehicle, NFLP shall
be an Authorized Fleet Purchaser under the related Manufacturer Program
and on the date of financing under the Lease of any Financed Vehicle
which is a Program Vehicle (other than any Texas Vehicle), National
shall be an Authorized Fleet Purchaser under the related Manufacturer
Program.
Section 8.15. Liens.
NFLP will not create, incur, assume or permit to exist any
Lien upon any of its Assets (including the Collateral), other than (i) Liens in
favor of the Trustee for the benefit of the Secured Parties, (ii) Liens upon
Exchanged Vehicle Repurchase Rights and Exchanged Vehicle Insurance Payments in
favor of the Exchange Lender and (iii) Liens created by or permitted under the
Related Documents.
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Section 8.16. Other Indebtedness.
Neither NFLP nor the General Partner will create, assume,
incur, suffer to exist or otherwise become or remain liable in respect of any
Indebtedness other than (i) Indebtedness hereunder, (ii) Indebtedness permitted
under any other Related Document, (iii) Indebtedness to an Exchange Lender for
the purchase of Replacement Vehicles, which Indebtedness is non-recourse to NFLP
or any Master Collateral, and is created pursuant to an Exchange Financing
Agreement and (iv) Indebtedness permitted under NFLP's certificate of limited
partnership or under the General Partner's certificate of incorporation.
Section 8.17. Mergers.
Neither NFLP nor the General Partner will merge or consolidate
with or into any other Person.
Section 8.18. Sales of Assets.
NFLP will not sell, lease, transfer, liquidate or otherwise
dispose of any Assets, except as contemplated by the Related Documents and
provided that the proceeds received by NFLP are paid directly to the Collection
Account or the Master Collateral Account or deposited by NFLP into the
Collection Account or the Master Collateral Account within 2 Business Days after
receipt thereof by NFLP (except that amounts payable to NFLP with respect to
Exchanged Vehicles by the related Manufacturer under its Manufacturer Program
shall be paid into the Exchange Account).
Section 8.19. Acquisition of Assets.
Neither NFLP nor the General Partner will acquire, by
long-term or operating lease or otherwise, any Assets except in accordance with
to the terms of the Related Documents.
Section 8.20. Dividends, Officers' Compensation, etc.
(a) NFLP may make any distribution (by reduction of capital or
otherwise, whether in cash, property, securities or a combination thereof), with
respect to any partnership interest in NFLP and directly or indirectly redeem,
purchase, retire or otherwise acquire for value any such partnership interest or
set aside any amount for such purpose, as permitted by its agreement of limited
partnership; except to the extent that an Amortization Event or Potential
Amortization Event has occurred and is continuing, or would result therefrom.
(b) The General Partner will not (i) declare or pay any
dividends on any shares of its capital stock or make any other distribution on,
or any purchase, redemption or other
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acquisition of, any shares of its capital stock or (ii) pay any wages or
salaries or other compensation to officers, directors, employees or others
except, in each case, to the extent no Amortization Event or Potential
Amortization Event has occurred and is continuing or would result therefrom.
Section 8.21. Name; Principal Office.
NFLP will neither (a) change the location of its chief
executive office or principal place of business (within the meaning of the
applicable UCC) without sixty (60) days' prior
notice to the Trustee and the Master Collateral Agent nor (b) change its name
without prior notice to the Trustee and the Master Collateral Agent sufficient
to allow the Trustee and the Master Collateral Agent to make all filings
(including filings of financing statements on form UCC-1) and recordings
necessary to maintain the perfection of the interest of the Trustee in the
Collateral pursuant to this Indenture and the perfection of the interest of the
Master Collateral Agent in the Master Collateral pursuant to the Master
Collateral Agency Agreement. In the event that NFLP desires to so change its
office or change its name, NFLP will make any required filings and prior to
actually changing its office or its name NFLP will deliver to the Trustee and
the Master Collateral Agent (i) an Officer's Certificate and (except with
respect to a change of the location of NFLP's chief executive office or
principal place of business to a new location in the same county) an Opinion of
Counsel confirming that all required filings have been made to continue the
perfected interest of the Trustee in the Collateral and the perfected interest
of the Master Collateral Agent in the Master Collateral in respect of the new
office or new name of NFLP and (ii) copies of all such required filings with the
filing information duly noted thereon by the office in which such filings were
made.
Section 8.22. Organizational Documents.
Neither NFLP nor the General Partner will amend any of its
organizational documents, including the certificate of limited partnership and
the limited partnership of NFLP and the Certificate of Incorporation and By-Laws
of the General Partner, unless, prior to such amendment, each Rating Agency
confirms that after such amendment the Rating Agency Condition will be met.
Section 8.23. Investments.
Neither NFLP nor the General Partner will make, incur, or
suffer to exist any loan, advance, extension of credit or other investment in
any Person other than (in the case of NFLP), pursuant to the Demand Note or as
permitted by the Lease and this Indenture and with respect to Permitted
Investments and (in the case of the General Partner) in NFLP and, in addition,
without limiting the generality of the foregoing, NFLP will not cause the
Trustee to make any Permitted Investments on NFLP's behalf that would have the
effect of causing NFLP to be an "investment company" within the meaning of the
Investment Company Act.
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Section 8.24. No Other Agreements.
NFLP will not (a) enter into or be a party to any agreement or
instrument other than any Related Document, any documents related to any
Enhancement, an Exchange Agreement, a Master Deposit Agreement, an Exchange
Financing Agreement and
documents and agreements incidental to any of the foregoing or entered into as
contemplated in Section 8.26 or (b) except as provided for in Sections 12.1 or
12.2, amend, modify or waive any provision of any Related Document to which it
is a party, or (c) give any approval or consent or permission provided for in
any Related Document, except as permitted in Section 3.2(a).
Section 8.25. Other Business.
Neither NFLP nor the General Partner will engage in any
business or enterprise or enter into any transaction other than (in the case of
NFLP) the acquisition, financing, refinancing, leasing and disposition of
Vehicles pursuant to the Lease and pursuant to the other Related Documents, the
related exercise of its rights as lessor thereunder, the making of loans to
National pursuant to the Demand Note, the incurrence and payment of ordinary
course operating expenses, the issuing and selling of the Notes and other
activities related to or incidental to either of the foregoing (including
transactions contemplated in Sections 8.24 and 8.26) and (in the case of the
General Partner) executing and entering into NFLP's limited partnership
agreement and performing the obligations of the General Partner thereunder.
Section 8.26. Maintenance of Separate Existence.
Each of NFLP and the General Partner will do all things
necessary to maintain its corporate or partnership existence separate and apart
from that of National and Affiliates of National including, without limitation,
(i) practicing and adhering to corporate or partnership formalities, such as
maintaining appropriate corporate or partnership books and records; (ii) in the
case of the General Partner, maintaining at least two corporate directors who
are not officers, directors or employees of any of its Affiliates; (iii) owning
or leasing (including through shared arrangements with Affiliates) all office
furniture and equipment necessary to operate its business; (iv) not (A)
guaranteeing or otherwise becoming liable for any obligations of any of its
Affiliates, (B) having obligations guaranteed by any of its Affiliates, (C)
holding itself out as responsible for debts of any of its Affiliates or for
decisions or actions with respect to the affairs of any of its Affiliates and
(D) being directly or indirectly named as a direct or contingent beneficiary or
loss payee on any insurance policy of any Affiliate other than as required by
the Related Documents with respect to insurance on the Vehicles; (v) other than
as provided in the Related Documents, maintaining its deposit and other bank
accounts and all of its assets separate from those of any other Person; (vi)
maintaining its financial records and books of account separate and apart from
those of any other Person; (vii) compensating all its employees, officers,
consultants and agents for services provided to it by such Persons, or
reimbursing any of its Affiliates in respect of services provided to it by
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employees, officers, consultants and agents of such Affiliate, out of its own
funds; (viii) maintaining office space separate and apart from that of any of
its Affiliates (even if such office space is subleased from or is on or near
premises occupied by any of its Affiliates) and a telephone number separate and
apart from that of any of its Affiliates; (ix) accounting for and managing all
of its liabilities separately from those of any of its Affiliates; (x)
allocating, on an arm's-length basis, all shared corporate or partnership
operating services, leases and expenses, including, without limitation, those
associated with the services of shared consultants and agents and shared
computer and other office equipment and software; (xi) refraining from filing or
otherwise initiating or supporting the filing of a motion in any bankruptcy or
other insolvency proceeding involving NFLP, the General Partner, National or any
Affiliate of National, to substantively consolidate NFLP or the General Partner
with National or any Affiliate of National; (xii) remaining solvent and (xiii)
conducting all of its business (whether written or oral) solely in its own name.
Each of NFLP and the General Partner acknowledges its receipt of a copy of that
certain opinion letter issued by Mayer, Brown & Platt dated the date of issuance
of the initial Series of Notes addressing the issue of substantive consolidation
as it may relate to National, the General Partner and NFLP. NFLP and the General
Partner hereby agree to maintain in place all policies and procedures, and take
and continue to take all action, described in the factual assumptions set forth
in such opinion letter and relating to NFLP or the General Partner. On an annual
basis, NFLP will provide to the Rating Agencies, the Trustee and the Master
Collateral Agent, an Officer's Certificate certifying that it is in compliance
with its obligations under this Section 8.26.
Section 8.27. Rule 144A Information Requirement.
For so long as any of the Notes remain outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, NFLP covenants and agrees that it shall, during any period in
which it is not subject to Section 13 or 15(d) under the Exchange Act, make
available to any Noteholder in connection with any sale thereof and any
prospective purchaser of Notes from such Noteholder in each case upon request,
the information specified in, and meeting the requirements of, Rule 144A(d)(4)
under the Securities Act.
Section 8.28. Use of Proceeds of Notes.
NFLP shall use the proceeds of Notes solely for one or
more of the following purposes: (a) to pay amortizing Notes when
due, in accordance with this Indenture; and (b) to acquire, finance or refinance
the acquisition of Eligible Vehicles in accordance with the Lease.
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Section 8.29. Vehicles.
NFLP shall use commercially reasonable efforts to maintain,
and to cause the Lessee to maintain good, legal and marketable title to the
Vehicles leased under the Lease, free and clear of all Liens except for
Permitted Liens.
Section 8.30. Amendments to Exchange Documents. NFLP
shall not agree to any amendment of or waiver under (a) any Exchange Agreement,
except such amendments or waivers as will not, in the aggregate, result in a
material adverse effect on the interest of the Noteholders of any Series, or (b)
any Master Deposit Agreement or Exchange Financing Agreement, except such
amendments or waivers as are made only to cure any ambiguity, defect or
inconsistency in, or to correct or supplement any provision of, this Indenture,
unless, prior to the effectiveness of any such amendment or waiver, each Rating
Agency has confirmed in writing that such amendment or waiver will not result in
the reduction or withdrawal of the then current rating of any outstanding Series
of Notes.
Section 8.31. Demand Note. NFLP shall not reduce the amount of
the Demand Note or forgive amounts payable thereunder unless NFLP has first
delivered to the Trustee an Opinion of Counsel (from counsel that is nationally
recognized as to tax matters) that such reduction or forgiveness will not have
an adverse effect on the tax characterization of any Series of Notes.
ARTICLE 9.
AMORTIZATION EVENTS AND REMEDIES
Section 9.1. Amortization Events.
If any one of the following events shall occur during the
Revolving Period, the Accumulation Period or the Controlled Amortization Period
with respect to any Series of Notes:
(a) NFLP defaults in the payment of any interest on any Note
of such Series when the same becomes due and payable and such default
continues for a period of five (5) days;
(b) NFLP defaults in the payment of any principal or premium
on any Note of such Series when the same becomes due and payable and
such default continues for a period of five (5) Business Days;
(c) NFLP fails to comply with any of its other agreements or
covenants in, or provisions of, the Notes of a Series or this Indenture
and the failure to so comply materially and adversely affects the
interests of the Noteholders of any Series and continues to materially
and adversely affect the interests of the
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Noteholders of such Series for a period of 60 days after the earlier of
(i) the date on which a Responsible Officer of NFLP obtains knowledge
thereof or (ii) the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to NFLP by the
Trustee or to NFLP or by the Required Noteholders of such Series;
(d) there occurs an Event of Bankruptcy, with
respect to NFLP, the General Partner or National;
(e) (i) any Lease Event of Default described in Section
17.1.1(i) or 17.1.5 of the Lease shall occur, whether or not
subsequently waived by NFLP or (ii) any other Lease Event of Default
shall occur, whether or not subsequently waived by NFLP;
(f) subject to the provisions of Section 9.2(g),
any Asset Amount Deficiency exists and continues for a
period of ten (10) days;
(g) NFLP shall have become an "investment company" or shall
have become under the "control" of an "investment company" under the
Investment Company Act of 1940, as amended;
(h) the Lease is terminated for any reason;
(i) any representation made by NFLP or National in this Base
Indenture or any Related Document is false and such false
representation materially and adversely affects the interests of the
Noteholders of any Series of Notes and such false representation is not
cured for a period of 60 days after the earlier of (i) the date on
which a Responsible Officer of NFLP or National (as applicable) obtains
knowledge thereof or (ii) the date that written notice thereof is given
to NFLP or National (as applicable) by the Trustee or to NFLP or
National (as applicable) and the Trustee by the Required Noteholders of
such Series; or
(j) any other event shall occur which may be
specified in any Supplement as an "Amortization Event";
then (i) in the case of any event described in clause (a), (b),
(c) or (i) above, either the Trustee, by written notice to NFLP, or the Required
Noteholders of the applicable Series of Notes, by written notice to NFLP and the
Trustee, may declare that an amortization event ("Amortization Event") has
occurred with respect to such Series as of the date of the notice, or (ii) in
the case of any event described in clause (j) above, an Amortization Event may
be declared in a manner specified in the related Supplement, or (iii) in the
case of any event described in clause (e)(ii) above, either the Trustee, by
written notice to NFLP, or the
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Required Noteholders of any Series of Notes, by written notice to NFLP and the
Trustee, may declare that an Amortization Event has occurred with respect to
such Series as of the date of the notice, or (iv) in the case of any event
described in clause (d), (e)(i), (f), (g) or (h) above, an Amortization Event
with respect to all Series of Notes then outstanding shall immediately occur
without any notice or other action on the part of the Trustee or any
Noteholders; provided, however, that the Trustee shall have no liability in
connection with any action or inaction taken, or not taken by it upon the
occurrence of an Amortization Event unless the Trustee has actual knowledge of
such Amortization Event; provided, further, however, the provisions of this
sentence shall not insulate the Trustee from liability arising out of its
negligence or willful misconduct.
Section 9.2. Rights of the Trustee upon Amortization
Event or Certain Other Events of Default.
(a) General. If and whenever an Amortization Event, or certain
events of default under any Enhancement Agreement (as specified in the
applicable Supplement) shall have occurred and be continuing, the
Trustee may and, at the direction of the Requisite Investors shall,
exercise (or direct the Master Collateral Agent to exercise) from time
to time any rights and remedies available to it under applicable law or
any Related Document; provided, however, that if such Amortization
Event is based solely on an event described in clauses (a), (b), (c),
(e)(ii), (i) or (j) of Section 9.1, then the Trustee's rights and
remedies pursuant to the provisions of this Section 9.2 shall, to the
extent not detrimental to the rights of the holders of the applicable
Series of Notes, be limited to rights and remedies pertaining only to
those Series of Notes with respect to which such Amortization Event has
occurred. Any amounts obtained by the Trustee (or by the Master
Collateral Agent at the direction of the Trustee) on account of or as a
result of the exercise by the Trustee of any right shall be held by the
Trustee as additional collateral for the repayment of NFLP Obligations
and shall be applied as provided in Article 5 hereof.
(b) Lease. If a Liquidation Event of Default or a Limited
Liquidation Event of Default shall have occurred and be continuing, the
Trustee, at the direction of the Requisite Investors (in the case of a
Liquidation Event of Default) or the Required Noteholders (in the case
of a Limited Liquidation Event of Default), shall direct NFLP and the
Master Collateral Agent to exercise (and NFLP agrees to exercise) all
rights, remedies, powers, privileges and claims of NFLP against
National and National's Franchisees under or in connection with the
Lease, the Subleases, the Master Collateral Agency Agreement and any of
the Related Documents and against any party to any Related Document,
including the right or power to take any action to compel performance
or observance by National, National's Franchisees, or any such party of
its obligations to NFLP, the right to take pos