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Exhibit 4.2
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, XXXXXX COMMERCIAL
PAPER INC., as syndication agent, BANKERS TRUST COMPANY, as documentation agent,
and CONGRESS FINANCIAL CORPORATION (FLORIDA), as administrative agent and
collateral agent (in such capacities, the "ADMINISTRATIVE AGENT").
W I T N E S S E T H:
- - - - - - - - - -
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:
""CARDINAL": Cardinal Capital Partners, Inc., a Texas
corporation, in its capacity as purchaser and lessor of the
real property of the Borrower and its Subsidiaries pursuant to
the Real Estate Transactions.
"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
only 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
2.10(a), as the same may after the execution
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and delivery thereof be amended, supplemented or otherwise
modified from time to time in accordance with Section 7.9. 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 at the Borrower's discretion as general
working capital of the Borrower and its Subsidiaries without
requiring the Borrower to first borrow hereunder.
"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 7.9.
"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 7.9, (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 7.9.
"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.
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"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(g) to Cardinal as set
forth in (a) the Contract of Sale, dated as of February 28,
2001, between Alamo Rent-A-Car, LLC and Cardinal, together
with each lease, lease memorandum and deed or special warranty
deed with respect to each of the real property locations
listed on Schedule 1.1(g), the Guarantee of Lease by the
Borrower in favor of Cardinal with respect to each such lease,
and the other agreements, documents and instruments executed
and delivered in connection therewith and (b) the Contract of
Sale, dated as of February 28, 2001, between National Car
Rental Systems, Inc. and Cardinal, together with each lease,
lease memorandum and deed or special warranty deed with
respect to each of the real property locations listed on
Schedule 1.1(g), the Guarantee of Lease by the Borrower in
favor of Cardinal with respect to each such lease, and the
other agreements, documents and instruments executed and
delivered in connection therewith.
"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
Section 2.10(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 Supplemental 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
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agent under the Supplemental 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 6.1 (FINANCIAL STATEMENTS). Section
6.1 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 7.3 (LIMITATION ON LIENS). Section 7.3
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 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 (consisting of the net cash proceeds
received from the Real Estate Transactions and any income thereon) in
accordance with the terms of 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 Loan Documents and the Supplemental 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 7.5 (LIMITATION ON DISPOSITIONS OF
PROPERTY). Section 7.5 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
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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 7.8 (LIMITATION ON INVESTMENTS).
Section 7.8 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 "; and" and (c) adding at the
end of such Section the following new paragraph (r):
"(r) Investments made by the Borrower or any of its
Subsidiaries of the proceeds in the Real Estate Cash Collateral
Account.".
7. AMENDMENT OF SECTION 7.9 (LIMITATION ON OPTIONAL PAYMENTS
AND MODIFICATIONS OF DEBT INSTRUMENTS, ETC.). Section 7.9 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
(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 7.13 (LIMITATION ON NEGATIVE PLEDGE
CLAUSES). Section 7.13 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 8(e) (CROSS-DEFAULTS). Section 8(e) of
the Credit Agreement is hereby amended by adding the following proviso at the
end thereof:
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"; 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(g) (REAL ESTATE TRANSACTIONS).
The Credit Agreement is hereby amended by adding a new Schedule 1.1(g) 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 under the Supplemental Credit Facility Agreement.
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 4 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;
(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 10.1 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 a payment
instruction letter executed by the Borrower and satisfactory to the
Administrative Agent directing payment of the net cash proceeds of the Real
Estate Transactions into the Real Estate Cash Collateral Account or
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such other account established at the offices of the administrative agent under
the Interim Loan Facility or an affiliate thereof;
(e) 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
(f) 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 4 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
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President, General
Counsel and Secretary
XXXXXX COMMERCIAL PAPER INC.,
as Syndication Agent
By: G. Xxxxxx Xxxxx
-------------------------------------
Name: G. Xxxxxx Xxxxx
Title: Authorized Signatory
CONGRESS FINANCIAL CORPORATION
(FLORIDA), as Administrative Agent
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
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Name: Xxxxxx X. Xxxxxxx, Xx.
Title: First Vice President
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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
Congress Financial Corporation (Florida), 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
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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
ALAMO RENT-A-CAR, LLC
By: /s/ Xxxxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Senior Vice President and
Treasurer
ANC FINANCIAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
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
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ANC INFORMATION TECHNOLOGY, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
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
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President and
Secretary
ANC IT COLLECTOR CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President and
Secretary
ARC-TM PROPERTIES, LLC
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and
Treasurer
NCR AFFILIATE SERVICER PROPERTIES, LLC
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and
Treasurer
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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
Congress Financial Corporation (Florida)
000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 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, CONGRESS FINANCIAL
CORPORATION (FLORIDA), 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 10.1 of the Credit Agreement, the
undersigned Lender hereby consents to the execution by the Agents of the
Amendment.
Very truly yours,
-----------------------------------------
(NAME OF LENDER)
By:
-------------------------------------
Name:
Title:
Dated as of ____________ __, 2001
