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EXHIBIT - 10.70
MASTER TRANSPORTATION
AND DECONSOLIDATION AGREEMENT
THIS MASTER TRANSPORTATION AND DECONSOLIDATION AGREEMENT (the "Agreement") made
and entered into as of the 1st day of January, 1999 ("Effective Date") by and
between GOODY'S FAMILY CLOTHING, INC., a Tennessee corporation having an office
at Knoxville, TN, hereinafter called "Goody's", and STAR TRANSPORTATION, INC., a
Tennessee corporation having an office at Nashville, TN, hereinafter called
"Carrier" or "Star".
RECITALS
A. Carrier is engaged in the business of transporting property as
a motor contract carrier in interstate and intrastate
commerce. Carrier has certain rights to operate tractors and
trailers for transportation in interstate and intrastate
commerce. In conjunction with Carrier's transportation
business, Carrier owns and operates warehouse facilities.
B. Goody's desires to use the carrier's transportation services
to satisfy the special and distinct needs of Goody's as
hereinafter set forth.
C. The parties desire to provide for stable rates and Carrier
agrees to assume some of the transportation functions now
performed by Goody's
D. Carrier agrees to transport property for Goody's at certain
fixed prices as set forth herein.
AGREEMENT
Goody's and Carrier agree as follows:
1. TRANSPORTATION AND DECONSOLIDATION
A) TRANSPORTATION
i) Tractors and Trailers Carrier is the owner/operator
of tractors (individually a "Tractor" and collectively, the "Tractors")
and trailers (individually a "Trailer and collectively, the
"Trailers"). During the "Term" (as hereinafter defined)
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of this Agreement, Carrier shall provide Tractor-Trailer service to
Goody's on the terms and conditions contained in this Agreement,
including, without limitation, the terms described in the Goody's
Delivery Procedures" described in Exhibit "A". For purposes of this
Agreement, a Tractor-Trailer shall be referred to as "Unit". Carrier is
responsible at its expense, for maintaining and paying for any and all
costs associated with owning and operating the Units and the "Ramps"
(as hereinafter defined).
ii) Control Goody's shall have absolute control over the
pick-up and delivery dates of Goody's merchandise, the location of
origin of each route, the loading and unloading of Goody's merchandise
from the Trailers, the Goody's stores and the Goody's warehouses, the
route each Tractor must take, and the type of merchandise to be
delivered on the Trailers.
iii) Ramps In order to accommodate the freight docks at
Goody's stores, Carrier, at its own expense, has installed ramps on the
Trailers identified on Exhibit "B" attached hereto. The specifications
for the Ramps and the actual total cost and current fair market value
for the Trailers and Ramps are identified on Exhibit "B-1" attached
hereto. Carrier, at its own expense, shall purchase Trailers and
install new Ramps on Trailers to accommodate the ratio described in
Section 6 (a) of this Agreement. All Ramps shall have a full one (1)
year unconditional warranty (including all parts and labor) from the
date of installation. All Ramps shall be new equipment, it being
understood and agreed that Carrier shall not purchase or install used
or reconditioned Ramps after the Effective Date without the prior
written approval of Goody's, and upon the prior written consent.
B) DECONSOLIDATION
Deconsolidation.
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Goody's, among other things, has the absolute control over the
pick-up and delivery dates of Goody's merchandise from the Goody's warehouse to
Goody's stores, the route each Unit must take and the type of merchandise to be
delivered on the Units. In order for Goody's to enhance its shipping and
operational needs, a certain amount of Goody's merchandise shall be
consolidated, packed and reshipped by Carrier from a facility owned and operated
by Carrier ("Carrier's Warehouse"), after pick-up and removal of such
merchandise from the Goody's distribution center located at 000 Xxxxx'x Xxxx,
Xxxxxxxxx, Xxxxxxxxx ("Goody's Distribution Center"). For purposes of this
Agreement, the process of consolidating, packing and reshipping Goody's
merchandise shall
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hereafter be referred to as "Deconsolidation" or the "Deconsolidation Process".
a) Procedures - Generally. At Goody's direction, Carrier
shall pick-up trailers containing cartons/merchandise from the
Distribution Center (such cartons/merchandise may be randomly selected
by Goody's). Immediately following the pick-up of such
cartons/merchandise at the Distribution Center, Carrier shall deliver
the units to Carrier's Warehouse, located at 0000 Xxxx Xxxxxx xx
Xxxxxxxxx, Xxxxxxxxx 00000. Upon arrival at Carrier's Warehouse,
Carrier shall unload the cartons/merchandise in Carrier's Warehouse,
segregate such cartons/merchandise into certain categories for Goody's
stores (as designated by Goody's) and reload such cartons/merchandise
on the Trailers in sequential order as designated by Goody's (the
"Deconsolidated Merchandise"), to deliver the Deconsolidated
Merchandise to Goody's stores as directed by Goody's and finally, to
return the Trailers to a destination directed by Goody's.
b) Procedures - Specific. The parties agree to comply
with the rules, rights, obligations and procedures described in the
"Deconsolidation Procedures" attached hereto as Exhibit "C". Except for
the Deconsolidation Procedures, all other terms and conditions of
Goody's Delivery Procedures as described in Exhibit "A" shall remain in
full force and effect.
c) Transportation Claims, Loss and Damages. Goody's
shall supply Carrier with a "Shipping Log" at the time a Tractor
picks-up the cartons/merchandise from the Distribution Center, a form
copy of such Shipping Log is attached hereto as Exhibit "C-1". Carrier
shall be required to notify Goody's, in the time and manner described
in Paragraph 16 of the Deconsolidation Procedures, of any variances
between the number of cartons noted on the applicable Shipping Log and
the actual number of cartons counted in accordance with the
Deconsolidation Procedures. In the event Carrier fails to notify
Goody's of any such variances in the time and manner described in
Paragraph 16 of the Deconsolidation Procedures, Goody's shall have the
right to pursue (and Carrier shall have the obligation to pay) for any
damages (including, but not limited to, shortages) for such variance,
such damages to be processed and calculated in accordance with Section
13 of this Agreement.
d) Rates. Goody's shall pay Carrier in arrears a monthly
fee consisting of two (2) components: (i) $4,725.00 per month; and (ii)
a variable fee of $.28 per case/carton on two routes per trailer and
$.36 per case/carton on three routes per trailer.
e) Inspection and Audit. Goody's shall have the right to
inspect the Carrier's Warehouse and Units at any time to ensure
Carrier's compliance
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with the Deconsolidation Process and this Agreement. Goody's shall
likewise have the right, upon one (1) days notice, to review and/or
audit the books and records of Carrier relative to this Agreement and
the Transportation Agreement.
2. TERM OF AGREEMENT; EARLY TERMINATION
A) TERM OF AGREEMENT The term of this Agreement shall
commence on the 1st day of January, 1999, and shall
continue until December 31, 2000, ("Term") unless
sooner terminated pursuant to the terms hereof or by
mutual agreement.
B) EARLY TERMINATION Either party may terminate this
Agreement by giving the other party ninety (90) days
prior written notice (the "Termination Notice Date")
whereupon this Agreement shall be terminated ninety
(90) days after receipt of such notice by the
non-terminating party (the "Early Termination Date").
In the event Goody's elects to exercise this early
termination right prior to the natural expiration
date of the Term, then this Agreement shall terminate
on the Early Termination Date and Goody's shall pay
Carrier the "Equipment Purchase Price" (as hereafter
defined) on the Early Termination Date. Goody's has
no obligation to pay Carrier the Equipment Purchase
Price if: (i) Carrier elects to terminate this
Agreement; (ii) such termination is due to a default
of Carrier; or (iii) such termination occurs after
the natural expiration date of the Term.
3. CARRIER'S OPERATING AUTHORITY; REPRESENTATIONS
(a) Carrier shall at its own expense obtain and maintain
all operating licenses, authorities and permits required by
governmental authorities for the transportation services,
Deconsolidation Procedures and Carrier's Warehouses. Carrier represents
and warrants that it is authorized, pursuant to Permit Number MC-157677
(the "Permit"), Sub 2, issued to Carrier by the Interstate Commerce
Commission, hereinafter called the "ICC", to transport, as a motor
contract carrier, freight of all kinds, except household goods, Classes
A and B explosives, Commodities in Bulk and hazardous materials in
interstate commerce from, to or between all points and places in the
United States and to lawfully furnish to Goody's all of the
transportation and related services provided for herein.
(b) Carrier represents and warrants that Exhibit "D-1",
attached hereto, is a true, correct and complete copy of the said
Permit as of the Effective Date and that there are no outstanding
liens, claims, penalties, fines or infractions relative to such Permit
or Carrier's rights to such Permit.
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4. ALL SHIPMENTS UNDER CONTRACT
Whether or not Carrier is authorized to operate, or does operate, as a
common carrier, each and every shipment tendered to Carrier by Goody's on or
after the Effective Date shall be deemed to be a tender to Carrier as a motor
contract carrier and shall be subject only to the terms of this Agreement and
the provisions of law applicable to motor contract carriage hereunder.
5. RECEIPTS AND BILLS OF LADING
(a) Carrier shall issue and sign a receipt for each
shipment in the form required by Goody's and as
otherwise described in Goody's Delivery Procedures
and the Deconsolidation Process.
(b) If Goody's elects to use a xxxx of lading or other
form of freight receipt or contract for each
shipment, any terms, conditions or provisions of such
xxxx of lading or other form shall be subject and
subordinate to the terms of this Agreement and, in
the event of a conflict, this Agreement shall govern.
(c) Upon delivery of each shipment, Carrier shall obtain
a receipt from any Goody's consignee, in a form
required by Goody's, showing the goods delivered, the
condition of such goods and the date and time of
delivery.
6. CARRIER'S OPERATIONS AND OBLIGATIONS
(a) Carrier, at its sole cost and expense, shall furnish
all other supplies and equipment including, but not limited to, Units
required for its services hereunder and shall maintain such supplies,
and equipment in good repair and condition. Carrier shall maintain and
have available a ratio of 1.65 trailers per tractor. In the event
Goody's request Carrier to exceed the 1.65 ratio, Carrier shall invoice
Goody's weekly according to rates in Exhibit E attached hereto.
(b) Carrier, at its sole cost and expense, shall employ
for its services hereunder only competent, able and legally licensed
personnel (such personnel must be at least 21 years old). Such
personnel shall maintain a proper appearance (including a uniform) and
attitude. Carrier shall always maintain a dedicated pool of drivers
with specific training in Goody's loading, unloading and delivery
procedures. Carrier, at its expense, shall conduct a thorough criminal
and credit background check on all drivers of Tractors.
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(c) Without the prior written consent of Goody's, Carrier
shall not cause or permit any shipment tendered hereunder to be
transported by any other motor carrier or in "substituted service" by
railroad or other modes of transportation.
(d) Carrier shall provide and operate units of such
quality, design and construction as are required for shipment of
Goody's property hereunder. All Units (including Ramps) operated by
Carrier shall be repaired and maintained in good operating condition by
Carrier at Carrier's sole cost and expense.
(e) Carrier, at its sole cost and expense, will pay all
state and federal taxes, wages, license fees, unemployment compensation
insurance, pension, social security, and other taxes and assessments
with respect to all persons engaged by it in the performance of this
Agreement, including, without limitation, all management and
administrative expenses related to this Agreement.
(f) Carrier, at its expense, shall be responsible for
unloading Goody's merchandise at destinations designated by Goody's,
reloading Goody's merchandise for transfer to points designated by
Goody's or for loading/unloading Goody's merchandise for Carrier
back-haul requirements.
(g) Carrier, in addition to the terms and conditions of
this Agreement, shall fully comply with the Goody's Delivery
Procedures, and the Deconsolidation Procedures, and the Trailer Seal
Verification attached hereto as Exhibit "A".
(h) Carrier, at its sole cost and expense, shall pay all
fuel, fuel taxes, insurance, licenses, permits, tolls and highway use
taxes.
(i) Carrier shall strictly adhere to Goody's delivery
schedule and shall have replacement drivers available (if necessary)
within 3 hours of any problems with Carrier's designated drivers.
Carrier will make available and explain Goody's Delivery and
Deconsolidation Procedures, as well as, delivery windows.
(j) Carrier shall be responsible for scheduling a
quarterly review with Goody's Transportation Management and Star
Transportation's Senior Management to ensure adequate operational staff
and dedicated drivers are available to provide service for deliveries
to the current stores and the new stores.
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7. RATES AND CHARGES
As full compensation for the service provided by Carrier
hereunder, Goody's shall pay, without offset or deductions, in
accordance with the rates, charges, rules and regulations set forth
in this Agreement and Exhibit "E" attached hereto. In no case shall
the charges on any shipments hereunder exceed the charges agreed to
in the amounts listed on Exhibit "E" attached hereto, unless amended
in writing and signed by both parties. Each freight xxxx issued by
Carrier hereunder, if complete and correct, shall be paid by Goody's
not more than fifteen (15) days after receipt by Goody's. Interest
obligations shall be assessed if such freight xxxx received by Goody's
is overdue thirty (30) days after Goody's receipt of such invoice, at
which point all unpaid charges shall bear interest at the rate of
twelve percent (12%) per annum.
Goody's shall specify whether the charges for any shipment
hereunder shall be "prepaid" or "collect". Goody's may specify whether
the collection of charges from any consignee shall be without recourse
to Goody's, in accordance with the provisions of the Uniform Xxxx of
Lading as in effect on the Effective Date.
8. NO LIEN
Carrier shall have no lien on any shipment hereunder.
9. INDEPENDENT CONTRACTOR
In the performance of services under this Agreement, Carrier
and its employees are not agents or employees of Goody's; Carrier shall
perform the services hereunder only as an independent contractor.
Nothing herein shall cause either party to be deemed the agent,
representative, partner or joint venturer of the other, and neither
party shall be authorized to bind the other in any manner nor shall
either party represent itself to others to have such authority.
10. GOODY'S PURCHASE OBLIGATION
In the event Goody's elects to terminate this Agreement prior
to the natural expiration date of the Term, then, in such event,
Goody's, within fifteen (15) days of the Termination Notice Date, shall
designate an appraiser, at its expense, having at least five (5) years
experience in appraising tractor-trailers in Tennessee. Carrier, at its
expense, shall then appoint an appraiser with the minimum credentials
recited in the preceding sentence within fifteen (15) days after
receipt of Goody's notice that Goody's has appointed an appraiser. The
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two (2) appraisers shall immediately appoint a third appraiser with
such above stated minimum credentials and all three (3) appraisers
shall then appraise the then fair market value (as of the Early
Termination Date) of the Trailers listed on Exhibit B (including the
Trailers added by Carrier with Goody's prior written approval) and each
appraiser shall then render written appraisals to both Goody's and the
Carrier at least ten (10) days prior to the Early Termination Date. The
Trailers listed on Exhibit B, including the Trailers added by Carrier
with Goody's prior written approval shall be referred to as the
"Equipment". The third appraiser's fee shall be shared equally between
Carrier and Goody's.
In the event Carrier fails to appoint an appraiser, Goody's appraiser
shall be solely responsible for determining the fair market value of
the Equipment. In the event the three (3) appraisers are not able to
agree upon a fair market value, then the fair market value shall be
deemed to be the average of the two (2) closest appraisals. For
purposes of the Agreement, the "Equipment Purchase Price" shall be the
fair market value of the Equipment as determined by appraiser(s)
appointed in the manner described in this Section. The Equipment
Purchase Price shall be paid in full on the Early Termination Date.
Carrier agrees to cooperate with the appraisal process by providing
such information and documents to the appraisers as may be necessary to
evaluate the fair market value of the Equipment.
In exchange for Goody's payment of the Equipment Purchase Price for the
Equipment, Carrier shall deliver to Goody's on the Early Termination
Date: (i) a book value certificate for carrier's equipment as of the
Early Termination Date from Carrier's independent CPA firm regarding
the Equipment; (ii) an invoice for the Equipment Purchase Price for the
Equipment, itemizing each piece of Equipment; (iii) an executed
unconditional xxxx of sale wherein the Carrier: (x) lists all the
Equipment included in the Equipment Purchase Price and (y) represents
that it is the owner of such Equipment and that such Equipment is free
of all liens and encumbrances, and that all taxes and other fees have
been paid through the Early Termination Date; (iv) a written
certificate acknowledging that the Equipment is in good operating order
and condition, normal wear and tear excepted; and (v) a written
assignment of all warranties and guarantees applicable to the
Equipment.
11. INDEMNITY
Carrier shall defend, indemnify and hold harmless Goody's
(including Goody's officers, directors, executives, employees, agents
and related entities) from and against all loss, damage, judgment,
actions, cost and expense (including attorney fees and litigation
costs), claims for injury to or death of persons and damage to property
arising out of or in connection with Carrier's loading, handling,
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transportation, unloading or delivery of any shipment hereunder or
Carrier's use or operation of the Units (including, but not limited to,
damage to such Units) unless caused by Goody's. It is further
understood and agreed that Goody's shall not be deemed or held
responsible for any damage resulting to Carrier's Units property,
vehicles or personnel, including Carrier's employee-drivers or
independently contracted drivers. Carrier shall be held responsible for
any damage to a Goody's facility caused by the operation of the Units
provided loss is reported within 72 hours to Star.
12. INSURANCE
(a) Carrier shall provide and maintain, at its sole cost
and expense, (i) general liability insurance and auto
liability with a insurer reasonably satisfactory to
Goody's, insuring Carrier against liability and
claims for injuries to or death of persons and damage
to property, in a combined single unit of not less
than $5,000,000.00 per occurrence, and for loss or
damage to cargo, in an amount not less than
$250,000.00 and workers compensation insurance in
amounts required by the state or any other
governmental agency; and (ii) any additional
insurance required by applicable laws, rules and
regulations; (iii) property damage coverage of not
less than $5,000,000.00 for Goody's
cartons/merchandise while it is being processed by
Carrier during the Deconsolidation Process
(including, but not limited to, unloading,
deconsolidating or reloading at Carrier's Warehouse
or otherwise being stored at or around Carrier's
Warehouse); and (iv) third party fidelity insurance
coverage of not less than $500,000.00 and will be
increased when necessary, to include a minimum of
$250,000 per trailer for Goody's cartons/merchandise.
(Exhibit D)
(b) Goody's shall be named as an additional insured under
such policies. Such policies shall contain a waiver
of subrogation releasing Goody's from any and all
claims, (unless determined to be due to the
negligence of Goody's) expenses and damages subject
to the respective insurance contracts.
(c) Carrier shall furnish to Goody's, on or before the
Effective Date and throughout the Term of this
Agreement, a copy of each such insurance policies and
written certificates of insurance.
(d) If any policy is canceled or materially modified,
written notice thereof shall be given to Goody's at
least thirty (30) days in advance.
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13. FREIGHT LOSS OR DAMAGE
(a) For loss, damage, injury or delay of any shipment
hereunder while in the custody, possession or control
of Carrier, Carrier hereby assumes the equivalent
liability of a motor common carrier as provided in
Section 14706 of Title 49 of the United States Code
and 49CFR370 as in effect on the Effective Date.
(b) If any shipment hereunder or any part thereof is
lost, damaged, or destroyed, Carrier shall pay the
wholesale invoice to Goody's (as well as $.09 for
each item of apparel or related product which is
either lost, damaged or destroyed) for the goods
lost, damaged or destroyed while in the care,
custody, or control of the Carrier.
(c) Goody's shall notify Carrier of shortage or damage to
any shipment within ten (10) days after delivery of
shipment, with written claim for loss to be filed by
Goody's within six (6) months after delivery. Carrier
shall use its best efforts to amicably settle and
resolve such claim within thirty (30) days after
receipt of Goody's notice of claim.
(d) Any action at law to recover for such loss or damage
shall be instituted by Goody's against Carrier not
later than twenty-four (24) months after such loss or
damage.
14. OVERCHARGES AND UNDERCHARGES
(a) Any request for arbitration by Carrier to recover
undercharges hereunder, or by Goody's to recover
overcharges hereunder, shall be commenced no more
than six (6) months after Carrier's receipt of the
shipment with respect to which such undercharge or
overcharge is claimed to be due.
(b) The provisions of this Section shall survive the
cancellation, termination or expiration of this
Agreement.
15. DEFAULT; ARBITRATION
(a) Default. If either party shall fail to perform or
observe any of the obligations and covenants
contained herein and such failure continues for more
than ten (10) days after written notice from the
non-defaulting party (unless more than ten (10) days
shall be required because of the nature of the
default) then, in such event, the non-defaulting
party shall have the right to terminate this
Agreement by providing ten (10) days prior written
notice to the defaulting party and to exercise any
right or
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remedy now or hereafter existing in law, equity or by
statute. In the event Carrier's Permit is revoked,
canceled or suspended or if Carrier's insurance
coverage is canceled or materially modified, Goody's
shall have the right to terminate this Agreement
immediately, without notice.
(b) Arbitration. Any dispute, controversy or claim
arising out of or relating to the provisions of this
Agreement or the performance of the parties hereunder
shall be resolved by arbitration before a single
arbitrator chosen under American Arbitration
Association ("AAA") procedures. The arbitration
proceedings shall be held in Knoxville, Tennessee, or
at such other place as the parties and the arbitrator
agree, in accordance with the Commercial Arbitration
Rules of the AAA. An award rendered by an arbitrator
appointed hereunder shall be final and binding on the
parties, and shall be enforceable under the Tennessee
Uniform Arbitration Act and the United States
Arbitration Act. The parties shall each bear all of
their respective arbitration costs and expenses, and
shall equally share the costs, fees, and expenses of
the arbitrator and the AAA. Except for a suit to
enforce the confidentiality provisions of Section 19
hereof, the provisions of this Section 15(b) shall be
a complete bar and defense to any suit, action or
proceeding instituted in any court or before any
administrative tribunal with respect to any dispute,
controversy or claim hereunder. The arbitration
provisions contained herein shall, with respect to
any such dispute, controversy or claim, survive the
termination or expiration of this Agreement.
16. NOTICES
(a) Any notice by either party to this Agreement shall be
given by registered or certified mail, return receipt
requested, addressed to the other party as set forth
below or to such other place as the parties hereto
may hereafter designate.
(b) Alternatively, any such notice may be given by fax
that is confirmed by mail or by overnight courier.
If to Carrier: Star Transportation, Inc.
0000 Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxx
Fax number: 000-000-0000
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If to Goody's: Goody's Family Clothing, Inc.
000 Xxxxx'x Xxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Xxx Xxxxxx
With a copy to: Goody's Family Clothing, Inc.
General Counsel
Fax number: 000-000-0000
17. ASSIGNMENT
The Agreement may not be assigned, in whole or in part, by
Carrier without the prior written consent of Goody's.
18. MODIFICATION OF AGREEMENT; WAIVER
(a) This Agreement supersedes all previous agreements and
no modification of this Agreement and understandings
by and between the parties hereto. No waiver of its
terms or provisions shall be valid or binding unless
in writing signed by both parties.
(b) No waiver or failure to enforce the provisions hereof
by Carrier shall operate as a future or continuing
waiver of terms and provisions hereof.
19. CONFIDENTIALITY
Except as required by law, the terms and conditions of this
Agreement and information pertaining to any shipment hereunder
shall not be disclosed by either party hereto to persons other
than its directors, officers, employees, agents, lenders,
creditors, attorneys, accountants and auditors, and
governmental agencies.
20. GOVERNING LAW
This Agreement shall be interpreted and construed in
accordance with the laws of the State of Tennessee.
21. EXISTING CONTRACT
The parties have executed a Master Transportation Agreement
dated July 25, 1995 (the "MTA") and thereafter executed a
First Amendment to the Master Transportation Agreement on
September 23, 0000 (xxx "Xxxxx XXX"). The
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MTA and the First MTA are hereafter jointly referred to as the
MTA. Concurrent with the Effective Date of this Agreement, the
MTA shall automatically terminate and become null and void.
Notwithstanding the termination of the MTA, each party
reserves any and all claims for unpaid obligations payable (or
claims) under the MTA through the Effective Date, it being
further understood and agreed that the confidentiality
indemnity and insurance rights and obligations in the MTA
shall survive the termination of the MTA.
IN WITNESS WHEREOF, this Agreement has been signed by the authorized
representative of Goody's and Carrier to be effective as of the date shown in
the opening paragraph of this Agreement.
GOODY'S CARRIER
GOODY'S FAMILY CLOTHING, INC. STAR TRANSPORTATION, INC.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxxxx
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Title: Director Distribution & Traffic Title: President, CEO
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Date: 2/1/99 Date: 2/3/99
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