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EXHIBIT 4.3
SECOND AMENDMENT
SECOND AMENDMENT, dated as of March 29, 2001 (this
"AMENDMENT"), to the Amended and Restated Credit Agreement, dated as of June 30,
2000 (as heretofore amended, supplemented or otherwise modified, the "CREDIT
AGREEMENT"), among ANC RENTAL CORPORATION, a Delaware corporation (the
"BORROWER"), the several Lenders from time to time parties thereto, XXXXXX
BROTHERS INC., as advisor, lead arranger and book manager, and XXXXXX COMMERCIAL
PAPER INC., as syndication agent and as administrative agent (in such capacity,
the "ADMINISTRATIVE AGENT").
W I T N E S S E T H:
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WHEREAS, the Borrower has requested that the Lenders amend
certain provisions of the Credit Agreement; and
WHEREAS, the Lenders have agreed to amend the Credit
Agreement, but only upon the terms and subject to the conditions set forth
below;
NOW, THEREFORE, in consideration of the premises and mutual
agreements contained herein, and for other valuable consideration, the receipt
of which is hereby acknowledged, the Borrower, the Lenders and the Agents hereby
agree as follows:
1. DEFINITIONS. All terms defined in the Credit Agreement
shall have such defined meanings when used herein unless otherwise defined
herein.
2. AMENDMENT OF SECTION 1.1 (DEFINED TERMS). Section 1.1 of
the Credit Agreement is hereby amended by:
(a) deleting the definition of "Interim Facility Loan
Documentation" in its entirety; and
(b) inserting the following defined terms in their appropriate
alphabetical order:
""CASH COLLATERAL AGREEMENT": the Collateral and
Control Agreement, to be executed by the Borrower on or after
the Second Amendment Effective Date in favor of the Interim
Facility Administrative Agent or the Collateral Trustee, for
the benefit of the lenders and/or the holders under the
Interim Loan Facility, pursuant to which a cash collateral
account shall be established into which the Borrower shall
deposit all of the net proceeds of the Real Estate
Transactions, to the extent that such proceeds are not
required to be applied to prepay the Loans pursuant to Section
2.8(a), as the same may after the execution and delivery
thereof be amended, supplemented or otherwise modified from
time to time in accordance with Section 6.9. The Cash
Collateral Agreement shall provide that, upon the request of
the Borrower at any time when (x) no Default or Event of
Default under, and as defined in, the Interim Facility Loan
Agreement shall have occurred and be continuing and (y) the
representations and warranties contained in the Interim
Facility Loan Agreement are true and correct, funds held in
the Real Estate Cash Collateral Account will be released to
the Borrower for use as general working capital of the
Borrower and its Subsidiaries at the Borrower's discretion
without requiring the Borrower to first borrow hereunder.
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"COLLATERAL TRUSTEE": the collateral trustee to be
designated by the lenders under the Interim Loan Facility and
Liberty.
"INTERIM FACILITY ADMINISTRATIVE AGENT": the
Administrative Agent under, and as defined in, the Interim
Facility Loan Agreement.
"INTERIM FACILITY LOAN DOCUMENTATION": the Interim
Facility Loan Agreement and the Interim Loan Facility
Collateral Documents, together with all instruments and other
agreements entered into by the Borrower and certain of its
Subsidiaries in connection therewith, as the same may be
amended, supplemented or otherwise modified from time to time
in accordance with Section 6.9.
"INTERIM LOAN FACILITY AMENDMENT": the amendment to
the Interim Facility Loan Agreement, to be executed on or
after the Second Amendment Effective Date by the lenders party
thereto and the Borrower, pursuant to which the Transactions
shall be consummated.
"INTERIM LOAN FACILITY COLLATERAL DOCUMENTS": the
collective reference to (a) the collateral agreement, to be
executed on or after the Second Amendment Effective Date by
the Borrower in favor of the Collateral Trustee, for the
benefit of the lenders and/or holders under the Interim Loan
Facility and Liberty, as the same may after the execution and
delivery thereof be amended, supplemented or otherwise
modified from time to time in accordance with Section 6.9, (b)
the Cash Collateral Agreement and (c) the trust agreement, to
be executed on or after the Second Amendment Effective Date by
the Borrower, the Subsidiary Guarantors and the Collateral
Trustee, for the benefit of the lenders and/or holders under
the Interim Loan Facility and Liberty, as the same may after
the execution and delivery thereof be amended, supplemented or
otherwise modified from time to time in accordance with
Section 6.9.
"LIBERTY": Liberty Mutual Insurance Company, in its
capacity as the provider of surety bonds and similar
undertakings for the account of the Borrower and its
Subsidiaries.
"REAL ESTATE CASH COLLATERAL ACCOUNT": the cash
collateral account established pursuant to the Cash Collateral
Agreement.
"REAL ESTATE TRANSACTIONS": the sale or the sale and
leaseback of the real property of the Borrower and its
Subsidiaries listed on Schedule 1.1(d).
"SECOND AMENDMENT EFFECTIVE DATE": the effective date
of the Second Amendment, dated as of March 29, 2001, to this
Agreement.
"TRANSACTIONS": the transactions pursuant to which,
among other things, (a) the Borrower shall deposit into the
Real Estate Cash Collateral Account the Net Proceeds (as
defined in the Interim Facility Loan Agreement) of the Real
Estate Transactions, less any prepayments required pursuant to
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Section 2.8(a), and the amount of such cash collateral shall
be released to the Borrower pursuant to the conditions and
procedures set forth in the Cash Collateral Agreement, (b) the
Borrower and the Subsidiary Guarantors shall grant Liens on
(i) substantially all of their respective assets (except as
set forth in clauses (ii), (iii) and (iv) below) in favor of
the Collateral Trustee, for the benefit of the lenders and/or
holders under the Interim Loan Facility and Liberty, pursuant
to the Interim Loan Facility Collateral Documents, which Liens
shall be subordinate to the Liens created pursuant to the
Security Documents and the Borrowing Base Credit Facility
Documentation, (ii) all of the limited partnership interests
in, and all of the equity interests in the general partner of,
each of Alamo Financing LP, National Car Rental Financing LP
and Car Temps Funding, LP and all of the capital stock of ARG
Funding Corporation in favor of the Collateral Trustee, for
the benefit of the lenders and/or holders under the Interim
Loan Facility and Liberty, pursuant to the Interim Loan
Facility Collateral Documents, (iii) all motor vehicles held
under finance leases by Alamo Rent-A-Car LLC, National Car
Rental System, Inc. and Spirit Rent-A-Car, Inc., pursuant to
the Interim Loan Facility Collateral Documents and (iv) the
Real Estate Cash Collateral Account, and the proceeds
contained therein, in favor of the Interim Facility
Administrative Agent or the Collateral Trustee, for the
benefit of the lenders and/or holders under the Interim Loan
Facility, pursuant to the Cash Collateral Agreement and (c)
the Loan Parties shall enter into an amended and restated
Intercreditor Agreement, to be executed by the Loan Parties,
the Administrative Agent, the administrative agent under the
Borrowing Base Credit Agreement and the Collateral Trustee, in
form and substance reasonably satisfactory to all such
parties, to set forth the relative priorities of Liens of the
parties thereto, all of the foregoing in accordance with the
Transaction Documents.
"TRANSACTION DOCUMENTS": the collective reference to
the Interim Loan Facility Amendment, the Interim Loan Facility
Collateral Documents and the amended and restated
Intercreditor Agreement.".
3. AMENDMENT OF SECTION 5.1 (FINANCIAL STATEMENTS). Section
5.1 of the Credit Agreement is hereby amended by adding immediately after "90
days" in paragraph (a) thereof the following: "(or, in the case of the 2000
fiscal year of the Borrower, 120 days)".
4. AMENDMENT OF SECTION 6.3 (LIMITATION ON LIENS). Section 6.3
of the Credit Agreement is hereby amended by (a) deleting the word "and" at the
end of paragraph (o) thereof, (b) deleting the period at the end of paragraph
(p) thereof and substituting therefor ";and" and (c) adding at the end of such
Section the following new paragraph (q):
"(q) (i) Liens in favor of the Collateral Trustee,
for the benefit of the lenders and/or holders under the
Interim Loan Facility and Liberty, created pursuant to the
Interim Facility Collateral Documents on all of the limited
partnership interests in, and all of the equity interests in
the general partner of, each of Alamo Financing LP, National
Car Rental Financing LP and Car Temps Funding, LP and all of
the capital stock of ARG Funding Corporation, (ii) Liens in
favor of the Collateral Trustee, for the benefit of the
lenders and/or holders under the Interim Loan Facility and
Liberty, created pursuant to the Interim Facility Collateral
Documents on all motor vehicles held under finance leases by
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Alamo Rent-A-Car LLC, National Car Rental System, Inc. and
Spirit Rent-A-Car, Inc., (iii) Liens in favor of the Interim
Facility Administrative Agent or the Collateral Trustee, for
the benefit of the lenders and/or holders under the Interim
Loan Facility, on the Real Estate Cash Collateral Account, and
the proceeds contained therein, pursuant to the Cash
Collateral Agreement and (iv) Liens (other than the Liens
described in the foregoing clauses (i), (ii) and (iii)) in
favor of the Collateral Trustee, for the benefit of the
lenders and/or holders under the Interim Loan Facility and
Liberty created pursuant to the Interim Facility Collateral
Documents, PROVIDED that such Liens described in this clause
(iv) (x) are junior to the Liens created under the Security
Documents and the Borrowing Base Credit Facility Documentation
and (y) shall not be permitted unless and until the
Administrative Agent shall have received an amendment and
restatement of the Intercreditor Agreement, in form and
substance satisfactory to the Administrative Agent.".
5. AMENDMENT OF SECTION 6.5 (LIMITATION ON DISPOSITION OF
PROPERTY). Section 6.5 of the Credit Agreement is hereby amended by (a) deleting
the word "and" at the end of paragraph (m) thereof, (b) deleting the period at
the end of paragraph (n) thereof and substituting therefor "; and" and (c)
adding at the end of such Section the following new paragraph (o):
"(o) the Real Estate Transactions.".
6. AMENDMENT OF SECTION 6.8 (LIMITATION ON INVESTMENTS).
Section 6.8 of the Credit Agreement is hereby amended by (a) deleting the word
"and" at the end of paragraph (p) thereof, (b) deleting the period at the end of
paragraph (q) thereof and substituting therefor a semicolon and (c) adding at
the end of such Section the following new paragraphs (r) and (s):
"(r) Investments made by the Borrower or any of its
Subsidiaries of the proceeds in the Real Estate Cash
Collateral Account; and
(s) Investments in respect of Guarantee Obligations
by the Borrower of the leases contemplated by the Real Estate
Transactions.".
7. AMENDMENT OF SECTION 6.9 (LIMITATION ON OPTIONAL PAYMENTS
AND MODIFICATIONS OF DEBT INSTRUMENTS, ETC.). Section 6.9 of the Credit
Agreement is hereby amended by:
(a) deleting the word "and" at the end of subclause (ii) in
clause (a) thereof and substituting therefor a semicolon;
(b) adding immediately after "used to make any such
prepayment" at the end of subclause (iii) in clause (a) thereof the following:
"; and (iv) the transactions contemplated by the
Interim Loan Facility Amendment"; and
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(c) adding immediately after "payment of a consent fee" at the
end of subclause (ii) in clause (b) thereof the following:
", and other than the amendments, modification,
waivers and other changes contemplated by the Interim Loan
Facility Amendment".
8. AMENDMENT OF SECTION 6.13 (LIMITATION ON NEGATIVE PLEDGE
CLAUSES). Section 6.13 of the Credit Agreement is hereby amended by (a) deleting
the word "and" at the end of clause (e) thereof and substituting in lieu thereof
a comma, and (b) adding at the end of such Section immediately before the period
the following:
"and (g) the documents governing the Guarantee
Obligations of the Borrower and its Subsidiaries in favor of
Liberty".
9. AMENDMENT TO SECTION 7(e) (CROSS-DEFAULTS). SECTION 7(e) OF
THE CREDIT AGREEMENT IS HEREBY AMENDED BY ADDING THE FOLLOWING PROVISO AT THE
END THEREOF:
"; and, PROVIDED, FURTHER, that a default, event or condition described
in clause (iii) of this paragraph (e) shall not at any time constitute
an Event of Default to the extent such default, event or condition
arises out of the Borrower's failure to deliver audited financial
statements or file a Form 10-K in respect of the Borrower's 2000 fiscal
year prior to April 30, 2001, as may be required under any such
instrument or agreement".
10. ADDITION OF SCHEDULE 1.1(D) (REAL ESTATE TRANSACTIONS).
The Credit Agreement is hereby amended by adding a new Schedule 1.1(d) to the
Credit Agreement in the form attached hereto as Annex A.
11. AMENDMENT TO THE INTERCREDITOR AGREEMENT. The
Administrative Agent is hereby instructed by the Lenders to execute and deliver
an amended and restated Intercreditor Agreement to reflect the Transactions. It
is understood that such amended and restated Intercreditor Agreement shall
provide, in substance, that the rights, remedies and interests of the Collateral
Trustee and the beneficiaries for which the Collateral Trustee acts, in respect
of the Collateral in which both the Administrative Agent and the Collateral
Trustee hold a security interest, shall be equivalent (but subject to) the
rights, remedies and interests in such Collateral of the Administrative Agent
and the Lenders.
12. REPRESENTATIONS; NO DEFAULT. On and as of the date hereof,
and after giving effect to this Amendment, (a) the Borrower certifies that no
Default or Event of Default has occurred or is continuing, and (b) the Borrower
confirms, reaffirms and restates that the representations and warranties set
forth in Section 3 of the Credit Agreement and in the other Loan Documents are
true and correct in all material respects, PROVIDED that the references to the
Credit Agreement therein shall be deemed to be references to this Amendment and
to the Credit Agreement as amended by this Amendment.
13. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective on and as of the date that:
(a) the Administrative Agent shall have received counterparts
of this Amendment, duly executed and delivered by a duly authorized officer of
the Borrower;
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(b) the Administrative Agent shall have received executed
Lender Consent Letters, substantially in the form of Exhibit A hereto, from
Lenders whose consent is required pursuant to Section 9.1 of the Credit
Agreement;
(c) the Administrative Agent shall have received, for the
benefit of the Lenders, an amendment fee in an amount previously agreed upon
between the Administrative Agent and the Borrower;
(d) the Administrative Agent shall have received an executed
Acknowledgment and Consent, in the form set forth at the end of this Amendment,
from each Loan Party other than the Borrower; and
(e) the Administrative Agent shall have received an executed
certificate of an officer of the Borrower in form satisfactory to the
Administrative Agent as to (i) the accuracy of the representations and
warranties set forth in Section 3 of the Credit Agreement and in the other Loan
Documents, (ii) the absence of any Default or Event of Default after giving
effect to this Amendment, and (iii) such other customary matters as the
Administrative Agent may reasonably request.
14. LIMITED CONSENT AND AMENDMENT. Except as expressly amended
herein, the Credit Agreement shall continue to be, and shall remain, in full
force and effect. This Amendment shall not be deemed to be a waiver of, or
consent to, or a modification or amendment of, any other term or condition of
the Credit Agreement or any other Loan Document or to prejudice any other right
or rights which the Lenders may now have or may have in the future under or in
connection with the Credit Agreement or any of the instruments or agreements
referred to therein, as the same may be amended from time to time.
15. COUNTERPARTS. This Amendment may be executed by one or
more of the parties hereto in any number of separate counterparts (which may
include counterparts delivered by facsimile transmission) and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
16. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered by their respective duly authorized
officers as of the date first above written.
ANC RENTAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President, General
Counsel and Secretary
XXXXXX COMMERCIAL PAPER INC.,
as Administrative Agent
By: /s/ G. Xxxxxx Xxxxx
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Name: G. Xxxxxx Xxxxx
Title: Authorized Signatory
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ACKNOWLEDGMENT AND CONSENT
Each of the undersigned parties to the Guarantee and
Collateral Agreement, dated as of June 30, 2000 and as amended, supplemented or
otherwise modified from time to time, made by the undersigned in favor of Xxxxxx
Commercial Paper Inc., as Administrative Agent, for the benefit of the Secured
Parties, hereby (a) consents to the transactions contemplated by the foregoing
Amendment to the Credit Agreement and (b) acknowledges and agrees that the
guarantees and grants of security interests contained in the Guarantee and
Collateral Agreement and in the other Security Documents are, and shall remain,
in full force and effect after giving effect to such Amendment and all prior
modifications to the Credit Agreement.
ALAMO RENT-A-CAR (CANADA), INC.
LIABILITY MANAGEMENT COMPANIES HOLDING, INC.
NATIONAL CAR RENTAL LICENSING, INC.
NATIONAL CAR RENTAL SYSTEM, INC.
REPUBLIC XXX XXXXXX PARTNER, INC.
REPUBLIC INDUSTRIES AUTOMOTIVE
RENTAL GROUP (BELGIUM) INC.
SPIRIT RENT-A-CAR, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President and Treasurer
ALAMO RENT-A-CAR MANAGEMENT, LP
By: ARC-GP, Inc., its general partner
ANC COLLECTOR CORPORATION
ANC FINANCIAL, LP
By: ANC Financial GP Corporation, its general
partner
ARC-GP, INC.
ARC-TM, INC.
NCR AFFILIATE SERVICER, INC.
NCRAS MANAGEMENT, LP
By: NCRAS-GP, Inc., its general partner
NCRAS-GP, INC.
SRAC MANAGEMENT, LP
By: SRAC-GP, Inc., its general partner
SRAC-GP, INC.
SRAC-TM, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President and Treasurer
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ALAMO RENT-A-CAR, LLC
By: /s/ Xxxxxxxx X. Xxxx
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Name: Xxxxxxxx X. Xxxx
Title: Senior Vice President and
Treasurer
ANC FINANCIAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President and Treasurer
ANC FINANCIAL PROPERTIES, LLC
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Treasurer
ANC INFORMATION TECHNOLOGY HOLDING, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President and
Secretary
ANC INFORMATION TECHNOLOGY, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President and
Secretary
ANC INFORMATION TECHNOLOGY, L.P.
By: ANC INFORMATION TECHNOLOGY, INC., its
general partner
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President and
Secretary
ANC IT COLLECTOR CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President and
Secretary
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ARC-TM PROPERTIES, LLC
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President and Treasurer
NCR AFFILIATE SERVICER PROPERTIES, LLC
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President and Treasurer
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EXHIBIT A
LENDER CONSENT LETTER
ANC RENTAL CORPORATION
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF JUNE 30, 2000
To: Xxxxxx Commercial Paper Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Reference is made to the Amended and Restated Credit
Agreement, dated as of June 30, 2000 (the "CREDIT AGREEMENT"), among ANC RENTAL
CORPORATION, a Delaware corporation (the "BORROWER"), the Lenders parties
thereto, XXXXXX COMMERCIAL PAPER INC., as Syndication Agent and as
Administrative Agent, and others. Unless otherwise defined herein, capitalized
terms used herein and defined in the Credit Agreement are used herein as therein
defined.
The Borrower has requested that the Lenders consent to amend
the Credit Agreement on the terms described in the Amendment to which a form of
this Lender Consent Letter is attached as Exhibit A (the "AMENDMENT").
Pursuant to Section 9.1 of the Credit Agreement, the
undersigned Lender hereby consents to the execution by the Agents of the
Amendment.
Very truly yours,
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(NAME OF LENDER)
By:
---------------------------------
Name:
Title:
Dated as of ____________ __, 2001
