EXHIBIT 4.47
EXECUTION COPY
AGREEMENT
Agreement, dated as of August 30, 2001, between Liberty Mutual Insurance
Company, solely in its capacity as surety ("Liberty"), and ANC Rental
Corporation ("ANC" or the "Company").
WHEREAS, ANC, as Indemnitor, executed General Agreements of Indemnity,
Commercial Surety, in favor of Liberty on August 4, 2000 and on October 31,
2000, copies of which are annexed hereto as Exhibit "A" (hereafter collectively
"Indemnity Agreements"); and
WHEREAS, prior to March 1, 2001, and then again as of June 11, 2001,
Liberty required, among other things, that ANC post cash collateral in
accordance with the terms of the Indemnity Agreements, including paragraph "5"
thereunder; and
WHEREAS, based upon ANC's offer to partially collateralize Liberty, on
March 1, 2001 Liberty temporarily deferred its aforesaid request while expressly
reserving the right at any time to renew it or take such further or other action
as Liberty deemed necessary; and
WHEREAS, notwithstanding the foregoing, ANC has requested that Liberty
issue, extend, renew, continue, increase and/or permit to remain outstanding and
refrain from canceling Liberty Bonds; and
WHEREAS, Liberty is unwilling to issue, extend, renew, continue, increase
and/or permit to remain outstanding and refrain from canceling any Liberty Bonds
except upon the following terms and conditions; and
WHEREAS, ANC (i) is concurrently entering into that certain Trust
Agreement, dated as of August 30, 2001, among ANC, the subsidiaries of ANC
parties thereto and Wilmington Trust Company, as Trustee (as amended, modified
or supplemented from time-to-time, in accordance with its terms, the "Trust
Agreement"), that certain Collateral Agreement, dated as of August 30, 2001,
among ANC, the subsidiaries of ANC parties thereto, Wilmington Trust Company, as
Collateral Trustee ("Collateral Trustee"), Liberty and Xxxxxx Commercial Paper
Inc. ("LCPI") (as amended, modified or supplemented from time-to-time, in
accordance with its terms, the "Collateral Agreement"), and that certain Deed of
Trust, dated as of August 30, 2001, of Alamo Rent-A-Car, LLC (the "Deed of
Trust"), and (ii) may in the future enter into a Financing Source and
Beneficiary Supplement to the Fourth Amended and Restated Master Collateral
Agency Agreement, in form satisfactory to Liberty (as amended, modified or
supplemented from time-to-time, in accordance with its terms, the "Beneficiary
Supplement") (the Trust Agreement, the Collateral Agreement, the Deed of Trust
and, once executed, the Beneficiary Supplement, and any related documentation,
as amended, modified or supplemented from time-to-time, in accordance with its
terms, collectively, the "Security Documentation");
NOW, THEREFORE, in consideration of the mutual agreements set forth
herein, the parties hereto agree as follows:
1. Definitions
1.1 As used herein, the following terms have the following meanings:
"AIG Group" means American International Group.
"ANC Group" means ANC and any and all of its direct or indirect, wholly or
partially owned subsidiaries.
"AutoNation" means AutoNation, Inc., a Delaware corporation.
"AutoNation Indemnification Agreement" means the Indemnification Agreement
which may be executed and delivered by AutoNation in favor of Liberty Mutual
Insurance Company, in the event ANC elects to proceed pursuant to Section
4.4(a)(i)(B), relating to the New AIG Retro Bonding, which Indemnification
Agreement shall be in form and substance acceptable to Liberty in its sole and
absolute discretion.
"Borrowing Base Revolving Credit Facility" means the $175 million secured
credit facility pursuant to the Amended and Restated Credit Agreement, dated as
of June 30, 2000, as amended on August 29, 2000, March 29, 2001 and June 26,
2001, among ANC, the lenders party thereto, Congress Financial Corporation
(Florida), as administrative agent, and others, including any related notes,
guarantees, collateral documents, instruments and agreements executed in
connection therewith, each as they may be amended in accordance with this
Agreement.
"Capital Lease Obligation": means with respect to any Person at the time
any determination thereof is to be made, the amount of the liability of such
Person in respect of a capital lease that would at such time be required to be
capitalized on a balance sheet of such Person in accordance with GAAP.
"Collateral" initially means the Corporate Collateral and the Finance
Company Equity Interests and, upon the grant to the Collateral Trustee for the
benefit of Liberty and Xxxxxx Brothers of a perfected security interest in the
Vehicle Collateral, shall mean the Corporate Collateral and the Fleet
Collateral.
"Confidential Agreements" has the meaning specified in Section 5(g) of
this Agreement.
"Corporate Collateral" has the meaning specified in the Collateral
Agreement.
"Excess Amount" has the meaning specified in Section 9.5(a) of this
Agreement.
"Finance Company Equity Interests" has the meaning specified in the
Collateral Agreement.
"Financing Leases" shall have the meaning specified in the Collateral
Agreement.
"Fleet Collateral" means the Finance Company Equity Interests and the
Vehicle Collateral.
"Future Obligor" has the meaning specified in Section 2.2 of this
Agreement.
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"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants, the statements and pronouncements of
the Financial Accounting Standards Board and such other statements by such other
entities as have been approved by a significant segment of the accounting
profession, which are applicable (1) at the date hereof and (2) with respect to
periodic reporting requirements, as in effect from time to time.
"Hedging Obligations": means, with respect to any Person, the net payment
obligations of such Person under: (a) interest rate swap agreements, interest
rate cap and floor agreements and interest rate collar agreements; (b) foreign
exchange contracts and currency swap agreements; and (c) other agreements or
arrangements in the ordinary course of business designed to protect such Person
against fluctuations in commodity prices, interest rates or current exchange
rates.
"Indenture" means the indenture, dated as of June 30, 2001, among the
Company, the subsidiary guarantors named therein and the Indenture Trustee, as
amended in accordance with this Agreement, and in any event including any
amendment required by the SEC in connection with the qualification under the
Trust Indenture Act.
"Insolvency Proceeding" means any case, proceeding or other action
commenced by or against any member of the ANC Group: (a) under any existing or
future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, including without limitation,
under Title 11 of the United States Code, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent,
or seeking a reorganization, arrangement, adjustment, winding up, liquidation,
dissolution, composition or other relief with respect to it or its assets or its
debts; or (b) seeking to make a general assignment for the benefit of its
creditors, or seeking appointment of a receiver, trustee, custodian, conservator
or other similar official for it for all or any substantial part of its assets.
"Intercreditor Agreement" means the Amended and Restated Intercreditor
Agreement, dated as of August 30, 2001, among Congress Financial Corporation
(Florida), as Administrative Agent under the Borrowing Base Revolving Credit
Facility, Xxxxxx Commercial Paper Inc., as Administrative Agent under the
Supplemental Revolving Loan Credit Facility, Liberty, Wilmington Trust Company,
as the trustee under the Trust Agreement, Xxxxxx Commercial Paper Inc., as
Administrative Agent under the Senior Loan Agreement, ANC and certain members of
the ANC Group, as the same now exists and may hereafter be amended, supplemented
or otherwise modified from time to time.
"Xxxxxx Brothers" means Xxxxxx Brothers Inc., Xxxxxx Commercial Paper
Inc., and any of their subsidiaries, parents, affiliates, successors or assigns.
"Liberty Bond" refers to any surety bond, undertaking, recognizance,
instrument of guarantee or other surety obligation issued heretofore or
hereafter by Liberty, or issued by another at the behest of Liberty and upon
which Liberty has any liability, including liability as co-surety or reinsurer,
for the benefit of, on behalf of, or at the request of any ANC Group member.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise
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perfected under applicable law (including any conditional sale or other title
retention agreement, any lease in the nature thereof, any option or other
agreement to sell or give a security interest in any asset and any filing of or
agreement to give any financing statement under the Uniform Commercial Code (or
equivalent statutes) of any jurisdiction).
"Limiting Provisions" means, when used in Section 8.10, (i) Section 4.12
of the Indenture, (ii) the definition of "ANC/Liberty Agreement" in the 15th
Amendment to the Senior Loan Agreement, (iii) the changes to Section 7.13 and
7.14 of the Borrowing Base Revolving Credit Facility contained in the Third
Amendment to the Borrowing Base Revolving Credit Facility, (iv) the addition of
Section 7.3(r) to the Borrowing Base Revolving Credit Facility contained in the
third Amendment to the Borrowing Base Revolving Credit Facility, (v) the changes
to Sections 6.13 and 6.14 of the Supplemental Revolving Credit Facility
contained in the 3rd Amendment to the Supplemental Revolving Credit Facility,
and (vi) Section 5.1 of the AutoNation Indemnification Agreement, in the case of
each of (i) through (vi) above, in the forms attached hereto as Annex I.
"Minimum Unencumbered Fleet Equity" means the dollar amount by which the
fair market value of the Vehicles in the ANC Group's fleet exceeds the value of
the obligations secured thereby (exclusive of security interests created under
the Security Documentation).
"Permitted Liens" means:
(a) Liens on the assets of any member of the ANC Group to secure
Hedging Obligations (consistent with the borrowing base limitations
imposed by the Security Documentation), provided that the Liens are
secured only by property or assets that secure the indebtedness relating
to the Hedging Obligation;
(b) Liens on property, assets or equity interests of a Person
existing at the time such Person is merged into or consolidated with any
member of the ANC Group; provided that such Liens were in existence prior
to the contemplation of such merger or consolidation and do not extend to
any assets other than those of the Person merged into or consolidated with
a member of the ANC Group; and provided further that such Liens do not
reduce the priority of Liberty's security interests in any ANC Group
assets;
(c) to the extent not covered by (b) above, Liens on property
existing at the time of the acquisition thereof by any member of the ANC
Group; provided that such Liens were in existence prior to the
contemplation of such acquisition and only extend to the property so
acquired; and provided further that such Liens do not reduce the priority
of Liberty's security interests in any ANC Group assets;
(d) Liens existing on the date hereof that have been disclosed to
Liberty in the form of lien search results;
(e) Liens in favor of any Restricted Entity, including Liens
securing indebtedness or other obligations of a member of the ANC Group
owing to any Restricted Entity;
(f) Liens to secure the performance of statutory obligations, and,
to the extent granted in accordance with this Agreement: surety or appeal
bonds, performance bonds and
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deposits to secure the performance of government contracts incurred in the
ordinary course of business consistent with past practice;
(g) Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent or that are being contested in good faith by
appropriate proceedings; provided that any reserve or other appropriate
provision as shall be required to conform with GAAP shall have been made
therefor;
(h) Liens to secure indebtedness under Capital Lease Obligations or
purchase money indebtedness covering only the assets acquired with such
indebtedness, to the extent incurred in the ordinary course of business
consistent with past practice;
(i) Liens imposed by law, such as carriers', warehousemen's,
mechanics', landlords', materialmen's, repairmen's or other like Liens, in
each case, arising in the ordinary course of business consistent with past
practice in respect of obligations not overdue for a period in excess of
60 days or which are being contested in good faith by appropriate
proceedings promptly instituted and diligently prosecuted; provided that
any reserve or other appropriate provision as shall be required to conform
with GAAP shall have been made therefor;
(j) easements, rights-of-way, minor survey exceptions, zoning and
similar restrictions and other similar encumbrances or title defects
incurred, or leases or subleases granted to others, in the ordinary course
of business, which do not in any case materially detract from the value of
the property subject thereto or do not interfere with or adversely affect
in any material respect the ordinary conduct of the business of any member
of the ANC Group;
(k) Liens in favor of customs and revenue authorities to secure
payment of customs duties in connection with the importation of goods in
the ordinary course of business and other similar Liens arising in the
ordinary course of business consistent with past practice;
(l) Liens (other than any Lien imposed by the Employee Retirement
Income Security Act of 1974, as amended, or any rule or regulation
promulgated thereunder) incurred or deposits made in the ordinary course
of business in connection with workers' compensation, unemployment
insurance, and other types of social security benefits or obligations,
public or statutory obligations or other obligations of a like general
nature incurred in the ordinary course of business consistent with past
practice;
(m) Liens (not in respect of indebtedness) arising from financing
statements filed under the Uniform Commercial Code for informational
purposes with respect to leases incurred in the ordinary course of
business consistent with past practice;
(n) Liens in connection with the incurrence of Vehicle Indebtedness
consisting of floating charges on the personal property of Foreign
Subsidiaries; provided that such Liens secure, in the aggregate, no more
than the equivalent of $100;
(o) Liens created under the Security Documentation;
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(p) Subject to Section 6.15, Liens securing Vehicle Indebtedness
incurred in the ordinary course of business consistent with past practice,
but excluding Liens on Finance Company Equity Interests;
(q) Liens to secure loans extended to finance tenant improvements
(to the extent of such tenant improvements and to the extent not bonded by
Liberty Bonds), used in connection with the concession agreement or permit
subject to such Liens;
(r) all Liens securing the Borrowing Base Revolving Credit Facility
and the Supplemental Revolving Credit Facility, which shall not include
Liens on Fleet Collateral;
(s) Liens on assets of any member of the ANC Group to the extent
necessary to secure Senior Secured Indebtedness otherwise permitted by
Sections 6 and 7 hereof;
(t) Liens securing indebtedness incurred to refinance indebtedness
that was previously permitted to be so secured, provided that any such
Lien is limited to all or part of the same property or assets (plus
improvements, accessions, proceeds or dividends or distributions in
respect thereof to the extent otherwise permitted by this Agreement) that
secured (or under the written arrangements under which the original Lien
arose, could secure) the indebtedness being refinanced or is in respect of
property that is secured for a Permitted Lien hereunder, provided that in
any event such refinanced indebtedness shall not be in an amount greater
than the indebtedness being refinanced; and
(u) other Liens so long as the aggregate outstanding amount of the
obligation secured thereby does not exceed $250,000.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof or any other entity.
"Premium and Deductible Surety Bond Coverage" means any Surety Bond
Coverage that secures and/or guarantees the obligation of the principal to its
insurer to post collateral and/or to pay retrospective premiums and/or otherwise
to indemnify, pay for losses, or pay premiums or other charges, as the case may
be.
"Relevant Provisions" has the meaning specified in Section 13.7 of this
Agreement.
"Restricted Entity" means any member of the ANC Group (i) in whose assets
Liberty has been granted, or under the terms of the Security Documentation
should have been granted, a security interest, (ii) all or at least a majority
of whose equity interest has been, or under the terms of the Security
Documentation should have been pledged to Collateral Trustee for the benefit of
Liberty and delivered to the Collateral Trustee or its bailee, or (iii) for
whose benefit or on whose behalf or request Liberty has provided a Liberty Bond.
"Restricted Location" means any place of business, operating facility,
location or point-of-sale of any Surety Bond Party as to which the Surety Bond
Party's agreement(s) or other obligations of any kind are guaranteed, secured or
are otherwise the subject of any Liberty Bond.
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"Senior Secured Indebtedness" means any indebtedness of any ANC Group
member which is secured by any assets or property of any ANC Group member on a
senior priority basis (to the extent permitted by this Agreement and the
Security Documentation) to the security interests granted to the Collateral
Trustee under the Collateral Agreement and which is not by its terms
subordinated or junior in right of payment to the obligations of any ANC Group
Member to Liberty under the Surety Bond Documents and the Security
Documentation. For purposes of this Agreement, Senior Secured Indebtedness shall
not include Vehicle Indebtedness, Capital Lease Obligations, purchase money
security indebtedness, guarantees of permitted secured debt in the ordinary
course of business, acquired secured debt to the extent the acquisition of the
underlying assets is not prohibited by this Agreement, any indebtedness under
the Senior Loan Agreement and the Indenture, and any indebtedness which
refinances but does not exceed in amount any of the foregoing.
"Senior Loan Agreement" means the Amended and Restated Senior Loan
Agreement, dated as of June 30, 2000, among ANC, the lenders party thereto and
Xxxxxx Commercial Paper Inc., as Administrative Agent, as amended through the
date hereof and as may be further amended in accordance with this Agreement.
"Supplemental Revolving Credit Facility" means the $40 million secured
credit facility pursuant to the Amended and Restated Credit Agreement, dated as
of June 30, 2000, as amended on August 29, 2000, March 29, 2000 and June 26,
2001, among ANC, the lenders party thereto, Xxxxxx Commercial Paper Inc., as
Administrative Agent, and others, including any related notes, guarantees,
security documentation, instruments and agreements executed in connection
therewith, as each is amended in accordance with this Agreement.
"Surety Bond" means a Liberty Bond.
"Surety Bond Account Party" has the meaning specified in the Trust
Agreement.
"Surety Bond Coverage" refers to (a) the issuance of any surety bond,
undertaking, recognizance, instrument of guarantee or other surety obligation,
(b) the increase of the penal sum of any such obligation, and (c) the renewal,
continuation or replacement of any such obligation in anticipation of, upon, or
following its expiration, cancellation or renewal. Use of the word "coverage"
does not indicate that suretyship constitutes, or is related to, insurance.
"Surety Bond Documents" means, in respect of each Surety Bond, (a) such
Surety Bond, (b) the underlying contract(s), agreement(s), undertaking(s),
obligation(s) or statute(s) to which such Surety Bond relates, (c) any Contract
of Indemnity and Surety Bond Guarantee, and (d) this Agreement, as each such
document may be amended or modified in accordance with its terms.
"Surety Bond Guarantee" means the Surety Bond Guarantee and Assumption
Agreement, of even date herewith, as amended from time-to-time.
"Surety Bond Guarantee Parties" means those Persons now or in the future
party to the Surety Bond Guarantee.
"Surety Bond Party" has the meaning specified in the Trust Agreement.
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"Vehicle Indebtedness" means indebtedness of the members of the ANC Group
incurred to finance, refinance or lease, directly or indirectly, Vehicles (but
only to the extent actually used to finance, refinance or lease Vehicles).
"Vehicles" means all now owned or hereafter acquired cars, trucks,
trailers, construction and earth-moving equipment and other vehicles covered by
a certificate of title law of any state, and all tires and other appurtenances
thereto.
"Vehicle Collateral" means all Vehicles subject to Financing Leases
pursuant to which any of National Car Rental System, Inc., Spirit Rent-A-Car,
Inc. (currently d/b/a Alamo) or Alamo Rent-A-Car, LLC or their successors is the
lessee, and which Vehicles are included in the Lessee Grantor Master Collateral
under and as defined in the Master Collateral Agency Agreement.
1.2 (a) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement, and
Section, Schedule, Annex and Exhibit references are to this Agreement
unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2. Indemnity Agreements and Subsidiaries
2.1 ANC acknowledges and agrees that (a) the Indemnity Agreements and
other Surety Bond Documents continue in full force and effect in accordance with
all of their terms and conditions, and it hereby reaffirms, ratifies and
confirms its obligations and Liberty's rights thereunder, and (b) by entering
into this Agreement Liberty has not, and shall not be deemed to have, waived or
modified in any way any of its rights or privileges under the Indemnity
Agreements or the other Surety Bond Documents. ANC acknowledges that all demands
made to date by Liberty under the Indemnity Agreements have been and shall be
deemed to have been properly made and transmitted.
2.2 ANC shall cause each member of the ANC Group that is identified now or
hereafter as an "Obligor" in either of the Trust Agreement or the Collateral
Agreement, and any member of the ANC Group which may be formed or acquired in
the future and which is required to execute any Assumption Agreement under
Section 5.13 of the Senior Loan Agreement (or its successor provisions), or any
direct or indirect domestic subsidiary (other than finance companies) of ANC
which hereafter has assets of more than $100,000 (a "Future Obligor"), to
execute a form of Assumption, Ratification and Amendment to general Agreement of
Indemnity satisfactory to Liberty and pursuant to which each such subsidiary
and/or affiliate shall become obligated to Liberty under the terms of the
Indemnity Agreements equally with the "Indemnitor" named therein with respect to
each and every Liberty Bond heretofore or hereafter issued, together with such
corporate resolutions or other pertinent documents as Liberty shall reasonably
require.
3. Collateral
3.1 ANC confirms and acknowledges that it is contemporaneously granting to
Liberty a security interest in the Collateral described in, and certain other
rights and protections specified in,
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the Security Documentation. ANC acknowledges that Liberty may, with respect to
any Liberty Bonds, and in the exercise of its underwriting standards and
judgment, demand or request further or additional cash or letter of credit
collateral, in accordance with the terms of the Indemnity Agreements.
3.2 Subject to Section 6.16(b) of the Trust Agreement, any cash or letter
of credit collateral pledged or delivered to Liberty subsequent to the date
hereof shall be in addition to, and not in lieu of, the Collateral granted,
pledged and delivered to the Collateral Trustee under the terms of the
Collateral Agreement for the benefit of Liberty.
3.3 Liberty acknowledges that prior to the date hereof, ANC procured
Letter of Credit No. SM416270 issued by First Union National Bank for the
benefit of Liberty as cash collateral in the amount of $1,000,000. Liberty
agrees that on the date on which any and all of the security interests granted
to Liberty with respect to Corporate Collateral and Finance Company Equity
Interests under the Security Documentation have been perfected for more than 91
days without commencement of any Insolvency Proceeding, such Letter of Credit
shall be returned by Liberty for cancellation; provided that (u) no Event of
Default under this Agreement has occurred, (v) no party to the Trust Agreement
has issued or is entitled to issue a Notice of Acceleration as defined
thereunder, (w) no default, claim or demand upon any Liberty Bond remains
uncured for ten days and for which cash or letter of credit collateral
satisfactory to Liberty has not been posted or delivered within ten days
following written demand for same by Liberty to ANC, (x) at least ten business
days' prior written notice of the proposed return for cancellation is
transmitted to Liberty, (y) the proposed return for cancellation would not
violate the provisions of any covenant, promise, guarantee, pledge or other
contractual obligation to which any member of the ANC Group is bound, as
certified in writing by ANC's Chief Financial Officer, and (z) ANC has matched
or exceeded its year-to-date financial projections for both operating income and
net income (attached hereto as Exhibit F) through and including the most
recently completed calendar month prior to the proposed return for cancellation,
as certified in writing by ANC's Chief Financial Officer. However, nothing
herein will prohibit Liberty from drawing down on such Letter of Credit on or
before the return thereof.
3.4 ANC represents that it has delivered letter of credit collateral in
the form of Letter of Credit No. SM416169, issued by First Union National Bank
for the benefit of Metro Washington (Xxxxxx) Airport in the amount of $715,440.
Liberty consents to the termination or withdrawal of such letter of credit by
ANC (provided the beneficiary thereof consents thereto) and agrees that upon the
perfection of the security interest in the Corporate Collateral and the Finance
Company Equity Interests granted to Collateral Trustee under the Security
Documentation, it will issue Surety Bond Coverage on behalf of ANC and in favor
of Metro Washington (Xxxxxx) Airport in an amount equal to such letter of credit
and subject to the other terms specified in Exhibit B, which will secure the
same obligation secured by such letter of credit, and Liberty agrees to execute
whatever documentation the obligee may reasonably require in order to confirm
Liberty's aforesaid consent. However, the terms of paragraphs 4.1(c) and (d) and
4.2 hereof shall in all respects apply to such requested Surety Bond Coverage.
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4. Surety Bond Coverage
4.1 (a) ANC has presented to Liberty for underwriting review its
requests for Surety Bond Coverage to be issued, bound or made effective
through September 30, 2001, which requested Surety Bond Coverage is set
forth in the attached Exhibits C, D and E. Exhibit D contains a list of
such bond requests representing ANC's most pressing bonding needs, and
Exhibit E contains a list of such bond requests representing ANC's
intermediately pressing bonding needs. Exhibit C contains a list of all
other requests for Surety Bond Coverage through September 30, 2001.
(b) ANC shall present its requests for Surety Bond Coverage for any
particular calendar quarter (commencing with the calendar quarter
beginning on October 1, 2001) to Liberty in writing no later than the last
business day of the first month of the prior calendar quarter. Liberty
confirms that it has received such requests for the calendar quarter
beginning October 1, 2001. Liberty will thereafter provide its
underwriting determinations (subject to the provisions of subparagraph (c)
below) concerning such requests no later than thirty days following
Liberty's receipt of ANC's financial disclosures under paragraph 5 hereof
for the period ending on the last day of the first month of said prior
calendar quarter. By way of example only, if ANC's requests for Surety
Bond Coverage to be issued or bound during the calendar quarter beginning
on October 1, 2001 were to be submitted to Liberty no later than July 31,
2001, and if Liberty received ANC's paragraph 5 financial disclosures for
the period ending on July 31, 2001 (including the financials for the month
of July) no later than August 10, 2001, then Liberty would advise ANC of
its underwriting determinations with respect to such requests no later
than September 9, 2001. Nothing herein prohibits or prevents Liberty from
earlier advising ANC of its underwriting determinations.
(c) So long as any Liberty Bond remains unissued or ineffective, any
underwriting determination advice furnished by Liberty to ANC with respect
to any requested Surety Bond Coverage shall remain contingent and
executory, and may be reversed, altered, amended, conditioned or modified
at Liberty's sole discretion, due to any of the following events,
occurrences or factors: (i) any failure by ANC to perform its obligations
pursuant to paragraph 5 hereof subsequent to the date of the underwriting
advice; (ii) any change in Liberty's underwriting determination subsequent
to the date of the underwriting advice based upon Liberty's continuing
underwriting analysis and judgment as to ANC's performance,
creditworthiness or risk, or as to the risk presented by any requested
Liberty Bond, or (iii) the occurrence subsequent to the date of the
underwriting advice, or Liberty's discovery following the date of the
underwriting advice, of a default under this Agreement or the Security
Documentation, or of any default by any member of the ANC Group under any
of the Surety Bond Documents.
(d) Notwithstanding the other provisions of paragraph 4.1, Liberty
will not issue, extend, renew, continue or increase any Liberty Bonds
until Liberty and its counsel have been provided with written evidence
(acceptable to Liberty) of the perfection of all security interests in the
Corporate Collateral and Finance Company Equity Interests granted to the
Collateral Trustee for the benefit of Liberty and LCPI. Without limiting
the preceding sentence, Liberty agrees (subject to Sections 4.1(c) and
4.2) to issue the surety bonds specified (i) on Exhibit D, (ii) on Exhibit
E, and (iii) on Exhibit C (but only to the extent
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such Exhibit C bonds (I) are not duplicated on Exhibit D and Exhibit E and
(II) become due for renewal or extension on or before the date of this
Agreement), in each case as promptly as practicable after receiving
written evidence (acceptable to Liberty in its sole and absolute
discretion) of the perfection of the Corporate Collateral and the Finance
Company Equity Interests. All other requests for Surety Bond Coverage set
forth in Exhibit C remain subject to Liberty's underwriting determination
and advice pursuant to Section 4.1(b).
(e) Liberty agrees to review and consider ANC's bona fide, emergency
requests for surety bonds (and to notify ANC of its underwriting decision)
within five business days of receiving such request. Each such request
will be subject to Liberty's underwriting discretion, and Liberty shall be
under no obligation to approve any such request or issue bonds in response
thereto.
4.2 Except as expressly provided in paragraph 4.4 hereinbelow, nothing set
forth in this Agreement is intended, or shall be deemed, (a) to constitute an
agreement, promise or representation of any kind that Liberty will issue,
continue, renew, extend, increase or permit to remain in effect and/or refrain
from canceling any and/or all Liberty Bonds, or (b) to alter or amend in any way
the provisions of paragraph "11" of the Indemnity Agreements, entitled "Decline
Execution." Nothing set forth in this Agreement, in the Security Documentation
or any other document pertaining in any way to Liberty shall, or shall be deemed
to, create a committed surety bond facility or surety bond credit line of any
kind or in any amount in favor of ANC or any other Person or entity, and ANC
expressly warrants and represents that it has not received and has not relied
upon any agreement or representation, whether oral or written, to the contrary.
Nothing set forth in this Agreement shall, or shall be deemed to, waive,
diminish, impair, condition or delay any rights of Liberty under, or arising out
of or in connection with, any particular Liberty Bond (including but not limited
to rights of cancellation or non-renewal), or any rights or remedies of Liberty
which have arisen or shall arise in equity, under applicable law, under the
Surety Bond Documents, under the Indemnity Agreements or otherwise, including,
without limitation, rights or remedies of reimbursement, exoneration, equitable
subrogation or equitable lien. ANC further acknowledges that no Person employed
by or acting on behalf of Liberty has authority to commit or bind Liberty, other
than in writing, in any manner contrary to this paragraph 4.2.
4.3 Should another Surety Bond Coverage provider agree to replace all but
not less than all Liberty Bonds such that Liberty is satisfied in its sole
discretion that Liberty shall have no residual or future risk under or with
respect to any Liberty Bond, then Liberty, at the request and expense of ANC,
shall assign all security granted to it or for its benefit under the terms of
the Trust Agreement and the Collateral Agreement to or for the benefit of such
substitute Surety Bond Coverage provider or, at the request of ANC, shall
terminate such security interest; provided that such substitute Surety Bond
Coverage provider must, as a precondition to such replacement (i) have a rating
of not less than "A-" by A.M. Best or "A" by Standard & Poor's, (ii) be rated as
at least a financial size class XII by A.M. Best, (iii) have "paid up capital
and surplus" that exceeds by at least a factor of ten (10) the aggregate total
penal sums of those Liberty Bonds which are to be replaced and/or assumed by
such substitute Surety Bond Coverage provider, (iv) be listed pursuant to 31
U.S.C. Sections 9304 through 9308 by the U.S. Department of the Treasury as a
surety and shall have an "underwriting limitation" as defined and calculated
under 31 CFR Section 223.10 and as published by the U.S. Department of the
Treasury sufficient to issue each surety bond required to be replaced and/or
assumed by such substitute Surety Bond Coverage provider, and (v) at ANC's
11
cost, prepare, execute and deliver such documents and agreements as Liberty may
reasonably require (including assumption and release agreements and
indemnification and hold-harmless agreements (including for the costs of
enforcing the indemnification and hold-harmless) in favor of Liberty) to assure
that all risks, including residual and future, have been effectively transferred
to such substitute Surety Bond Coverage provider. Upon the fulfillment of the
conditions set forth in the foregoing provisos, Liberty agrees that, at ANC's
cost, it will take all reasonable actions and execute all reasonable
documentation (including without limitation security agreements, financing
statements, UCC filings and amendments to such filings) requested by ANC or such
substitute Surety Bond Coverage provider in order to assign all of its security
interests to such substitute Surety Bond Coverage provider or terminate its
security interests. However, nothing set forth herein shall be construed to
compel Liberty to (a) assign any indemnification agreement executed by
AutoNation in favor of Liberty, as described in paragraph 4.4, below without the
consent of AutoNation, or (b) act or fail to act in a manner contrary to or in
violation of any applicable law, rule, regulation, order, decree, contract,
agreement, instrument or other written or oral arrangement binding upon or
applicable to Liberty. No transfer or assignment of Liberty's security interests
in the Corporate Collateral will be effective unless and until the intended
transferee or assignee thereof agrees in writing to be bound by the terms and
conditions of the Intercreditor Agreement.
4.4 (a) ANC has requested that Liberty issue Surety Bond Coverage in
the form of new, previously unissued Premium and Deductible Surety Bond
Coverage in the approximate aggregate penal sum of $38.5 million in favor
of member companies of AIG (such requested Premium and Deductible Surety
Bond Coverage hereafter referred to as the "New AIG Retro Bonding").
Notwithstanding Section 4.1(d), Liberty agrees that it will issue the New
AIG Retro Bonding as promptly as reasonably practicable after the
following terms and conditions are met: (i) such New AIG Retro Bonding
shall be fully collateralized by, at ANC's option, either (A) cash
collateral (or letter of credit, at Liberty's option) in the full amount
of such New AIG Retro Bonding, which cash or letter of credit collateral
shall be specifically identified as supporting such bonds exclusively and,
subject to Section 6.16(b) of the Trust Agreement, shall be in addition
to, and not in lieu of, the Collateral (which Collateral also shall secure
such bonds), or (B) both (1) cash collateral (or letter of credit, at
Liberty's option) in an amount not less than $9 million, which cash or
letter of credit collateral shall be specifically identified as supporting
such bonds exclusively and<3>, subject to Section 6.16(b) of the Trust
Agreement, shall be in addition to, and not in lieu of, the Collateral
(which Collateral also shall secure such bonds), and (2) the AutoNation
Indemnification Agreement, it being understood that the indemnity provided
pursuant to the AutoNation Indemnification Agreement (x) shall be
secondary to the aforesaid cash or letter of credit collateral as well as,
for a limited period of time, to the Collateral granted under the
Collateral Agreement, and (y) shall be in a maximum amount equal to the
difference between the amount of cash or letter of credit collateral
posted by ANC and the amount of the New AIG Retro Bonding, but shall not
(in the case of (y)) exceed the amount of $29.5 million; (ii) AIG shall,
simultaneously with the issuance by Liberty and delivery to AIG of the New
AIG Retro Bonding, formally release and deliver to Liberty Indemnity
Agreement Bond Nos. 15004548 and 15008426 (previously issued by Liberty on
behalf of ANC's former corporate parent, Republic Industries, Inc., prior
to AIG's release of the obligations of Republic Industries, Inc. to AIG
which were the subject of such bonds), which bonds shall be marked
"cancelled" under the signature of an
12
authorized officer of AIG; and (iii) the conditions of subsections (i) and
(ii) of this section are complied with no later than 30 days after the
date hereof.
(b) In addition to the preconditions to the issuance of the New AIG
Retro Bonding set forth in section 4.4(a), ANC agrees that so long as such
New AIG Retro Bonding remains in effect, regardless of the penal sum of
such bonding in effect at any time, and/or until all risk undertaken by
Liberty (whether residual or future) under or in connection with such New
AIG Retro Bonding has been, in Liberty's sole and absolute discretion,
conclusively terminated, ANC shall at all times (i) in the event the
collateralization option described in Section 4.4(a)(i)(A) is elected by
ANC, maintain and otherwise cause to be continually in full force and
effect the cash or letter of credit collateral required by that option in
the full amount of such New AIG Retro Bonding; (ii) in the event the
collateralization option described in Section 4.4(a)(i)(B) is elected by
ANC, then (A) ANC shall maintain and otherwise cause to be continually in
full force and effect cash or letter of credit collateral supporting such
New AIG Retro Bonding in an amount not less that $ 9 million; (B) no later
than 75 days prior to each and every date upon which the Maximum Amount
payable under the AutoNation Indemnification Agreement is scheduled to
decrease in accordance with its terms, ANC shall deliver to Liberty cash
or letter of credit collateral (at Liberty's option) in an amount equal to
or exceeding the amount of such scheduled decrease; (C) no later than 91
days prior to either (1) any renewal date of any part of the New AIG Retro
Bonding or (2) the effective date of any increase in bond collateral
requested by AIG, ANC shall deliver to Liberty additional cash or letter
of credit collateral (at the option of Liberty) in an amount equal to the
difference between (x) the amount of the aggregate penal sum of the New
AIG Retro Bonding that is requested as of the renewal date or the
effective date of the bond increase demand from AIG, and (y) the sum of
(a) the Maximum Amount payable under the AutoNation Indemnification
Agreement as of such renewal date or such effective date, and (b) all cash
or letter of credit collateral held by Liberty specifically to secure the
New AIG Retro Bonding as of that date which is 92 days prior to such
renewal date or such effective date; (D) within six (6) business days of
written demand by Liberty, ANC shall deliver such additional cash (or, at
Liberty's option, letter or credit) collateral to secure the New AIG Retro
Bonding as Liberty, in its sole discretion, shall determine is required to
assure that the amount of such cash or letter of credit collateral held by
Liberty, taken together with the then applicable Maximum Amount payable
under the AutoNation Indemnification Agreement (and without regard to the
value at any time of any of the Collateral pledged to the Collateral
Trustee) is sufficient to fully collateralize Liberty's obligations and
risk under the New AIG Retro Bonding, provided that, at such times as
Liberty, in its sole discretion, deems appropriate and within a reasonable
time following written demand from ANC, and so long as no event has
occurred which but for notice or the passage of time would constitute an
Event of Default hereunder (a "Default") that remains uncured or that has
not been waived in writing, Liberty shall return to ANC or shall surrender
that part of such cash or letter or credit collateral as Liberty, in its
sole discretion, shall agree constitutes an excess of collateral above and
beyond the amounts required hereunder; and (E) if ANC delivers additional
cash (or, at Liberty's option, letter of credit) collateral above and
beyond the amounts required hereunder designated as collateral to secure
the New AIG Retro Bonding, then (1) so long as no Default under this
Agreement has occurred, and (2) effective as of the date when Liberty's
possession of or interest in such additional cash or letter of credit
collateral has been perfected for more than 91 days without
13
commencement of any Insolvency Proceeding, then Liberty shall treat such
additional cash and/or letter of credit collateral as L/C Collateral under
the terms of the AutoNation Indemnification Agreement.
(c) ANC agrees, on behalf of itself and the other members of the ANC
Group (including their respective successors, assigns, representatives and
trustees), that any payments made by AutoNation to Liberty under the terms
of the AutoNation Indemnification Agreement shall not be deemed to reduce
the amount due from ANC or any other member of the ANC Group to Liberty or
to any of Liberty's affiliates under the Indemnity Agreements or under any
other Surety Bond Documents; or to reduce any sums secured by the
Collateral.
5. Monthly Reporting
ANC agrees to provide disclosure to Liberty of all material financial
information on a monthly basis, or as soon as the information is reasonably
available if available on a more frequent basis than monthly, but in no event
later than within one business day of such information's being supplied to any
other lender, creditor or bond provider (or any affiliate thereof) (each a
"Report Recipient") by or on behalf of any member of the ANC Group. Such
material financial information shall include, at the minimum, the following
information:
(a) monthly and year-to-date operating results;
(b) monthly and year-to-date operating results compared to ANC's
business plan attached hereto as Exhibit F;
(c) accounts receivable aging, detail and summary;
(d) income statements and balance sheets on a monthly and
year-to-date basis;
(e) detail and summary fleet valuation and indebtedness information
prepared by ANC in the ordinary course of business for, or otherwise
provided to any other Report Recipient;
(f) updated forecasts, projections or business plans for the balance
of the then-current year and the next following year prepared for, or
otherwise provided to any other Report Recipient;
(g) information as to any past or pending events or transactions
that are material to ANC, any Restricted Entity or any Restricted
Location; provided that ANC shall not be obligated by this subsection to
deliver confidentiality agreements, financial advisory engagement letters,
financial advisory fee letters, non-binding letters of interest, bids,
commitment letters for commercial lending or high yield financings, or
non-binding letters of intent, each to the extent they are by their terms
confidential (collectively, "Confidential Agreements"); and
14
(h) any other or similar material information or material data that
ANC has furnished to any other Report Recipient; provided that ANC shall
not be obligated by this subsection to deliver Confidential Agreements.
With respect to information regarding ANC's results for the months of
March, June and September each year, ANC must provide such information to
Liberty no later than the earliest of the date on which ANC publicizes such
information, the date ANC conducts any "analysts' conference" concerning such
information, the date ANC provides such information to any other Report
Recipient or the date on which ANC's Form 10-Q for the prior quarter is filed
with the Securities and Exchange Commission. With respect to information
regarding ANC's results for the month of December each year, ANC must provide
such information no later than the earliest of the date on which ANC publicizes
such information, the date ANC conducts its "analysts' conference" regarding
such information, the date ANC provides such information to any other Report
Recipient, or the date on which ANC's Form 10-K for the prior fiscal year is
filed with the Securities and Exchange Commission.
6. Negative Covenants
Subject only to the exceptions specifically provided in Section 7 below,
without the prior written consent of Liberty, ANC shall not, and shall cause
each other member of the ANC Group not, to directly or indirectly, in one or a
series of transactions:
6.1 Sell, lease, transfer or otherwise dispose of or encumber (other than
encumbering via Permitted Liens) the properties and assets, real or personal,
now or hereafter acquired by any member of the ANC Group except for (i) the
sale, lease, transfer or other disposition or encumbrance of Vehicles disposed
of in the ordinary course of business consistent with past practice, (ii) the
sale of the real property listed on Schedule 6.1A hereto as part of ANC's
pending sale/leaseback transactions, (iii) the sale, lease, transfer or other
disposition or encumbrance of the real property listed on Schedule 6.1B hereto,
(iv) the transfer of assets between and among Restricted Entities, from members
of the ANC Group who are not Restricted Entities to members of the ANC Group who
are Restricted Entities, and between and among members of the ANC Group who are
not Restricted Entities, (v) the arm's-length, bona fide franchising of new or
existing Spirit Rent-A-Car (currently d/b/a Alamo) rental locations in the
ordinary course of business consistent with industry practice in an aggregate
amount not to exceed 30% of the total asset value of all such locations as of
June 30, 2001, to the extent not involving the transfer of ownership in or any
irrevocable right to use intellectual property, (vi) the sale or other
disposition in the ordinary course of business consistent with past practice of
other demonstrably obsolete equipment, which sales or dispositions shall count
against the calculations in (vii) below, and (vii) the sale or other disposition
or encumbrance in the ordinary course of business consistent with past practice
of assets or properties (excluding Restricted Locations and any intellectual
property) in any 12-month period worth not more than $500,000 individually or
$5,000,000 in the aggregate. Notwithstanding the foregoing exceptions, no member
of the ANC Group shall sell, lease, transfer, franchise or otherwise dispose of
or encumber any Restricted Location, or any interest whatsoever in any of the
operating, concession or similar agreements relating to a Restricted Location,
without the prior written consent of Liberty; provided that nothing in this
Section 6.1 shall limit the right or ability of the Administrative Agent under
the Borrowing Base Revolving Credit Facility to foreclose upon and sell any
Corporate Collateral.
15
6.2 Change or alter in any material respect the nature of the business of
the ANC Group (or the National, Alamo or Sprit Rent-A-Car (currently d/b/a
Alamo) operating units) from the nature of the business engaged in by it on the
date hereof.
6.3 Enter into any arrangement, directly or indirectly, with any Person
whereby any ANC Group member shall sell or transfer any property, whether real
or personal, other than the Vehicles and the real estate listed on Schedule 6.1A
or Schedule 6.1B, whether now owned or hereafter acquired, if at the time of
such sale or disposition such ANC Group member intends to lease or otherwise
acquire the right to use or possess (except by purchase) such property or like
property for a substantially similar purpose, unless the disposition of property
is permitted by Section 6.1 hereof.
6.4 Permit any change in the accounting policies and procedures of any
member of the ANC Group, including a change in fiscal year; provided, however,
that any policy or procedure required to be changed by the FASB (or other board
or committee of the FASB) in order to comply with GAAP may be so changed.
6.5 (a) Merge or consolidate with, or sell, assign, sell a majority of the
voting equity interests (directly or through convertible or exchangeable
instruments) in, lease, sublease or otherwise dispose of all or substantially
all of the assets whether now or hereafter acquired) of a member of the ANC
Group, or (b) acquire all or substantially all of the assets or the business of
any other Person unless such acquisition does not decrease the net worth of the
ANC Group and does not reduce the net asset value of the Restricted Entities,
other than purchases or acquisitions of franchised locations in the ordinary
course of business consistent with past practice, or (c) liquidate, wind up or
dissolve or suffer any liquidation or dissolution, except that any member of the
ANC Group may merge or consolidate with and into any other member of the ANC
Group that is a Restricted Entity, any member of the ANC Group may transfer or
dispose of assets or properties to a Restricted Entity, and any member of the
ANC Group which is not a Restricted Entity may merge or consolidate with or into
or transfer or dispose of assets or properties to any other member of the ANC
Group which is also not a Restricted Entity.
6.6 Prepay, defease, purchase, redeem, retire or otherwise acquire any
subordinated debt.
6.7 Except to the extent permitted by any security issued in compliance
with Section 6.14, declare any dividend (other than payment in kind dividends)
on, or make any payment on account of, or set apart assets for a sinking or
other analogous fund for the purchase, redemption, defeasance, retirement or
other acquisition of, any shares of any class of stock of or equity interests in
any member of the ANC Group, whether now or hereafter outstanding, or make any
other distribution in respect thereof, either directly or indirectly, whether in
cash, securities or property or in obligations of any member of the ANC Group or
in any combination thereof; provided that this Section 6.7 shall not prohibit or
prevent (A) dividends and distributions among Restricted Entities, or by any
member of the ANC Group to any Restricted Entity, or by any member of the ANC
Group which is not a Restricted Entity to any other member of the ANC Group
which is also not a Restricted Entity; (B) the redemption by either Post
Retirement Liability Management, Inc., a Florida corporation, or Rental
Liability Management, Inc., a Florida corporation, of the shares of AON to the
extent required pursuant to the charter documents (as in effect on the date
hereof) of such corporations, for cash consideration not to exceed $1.886
million in the aggregate; and (c)
16
repurchases of capital stock deemed to occur upon the exercise of stock options
by directors and employees, to the extent those shares of capital stock
represent a portion of the cashless exercise price of such stock options.
6.8 Take or omit to take any action which could reasonably be expected to
have the result of impairing the security interest in any property subject to a
security interest in favor of the Collateral Trustee or Liberty.
6.9 During any period in which there is an Event of Default to Liberty,
incur any secured indebtedness (other than pursuant to the Borrowing Base
Revolving Credit Facility, to the extent contemplated by Section 6.16) or issue
any asset-backed notes or bonds, either publicly or privately; provided that for
a period of seven days beyond the grace period otherwise provided in Section 10,
ANC may continue to incur secured debt (i) pursuant to its commercial paper
facility to the extent and in the amounts necessary to pay its mandatory and
absolute obligations to dealerships for vehicles actually delivered to ANC's
possession and (ii) pursuant to working capital borrowings under the
international credit facilities listed on Schedule 6.9, but only to the extent
not secured by the Corporate Collateral or the Vehicle Collateral.
6.10 Incur, permit, guarantee or suffer to exist any Senior Secured
Indebtedness (other than under the Borrowing Base Revolving Credit Facility and
the Supplemental Revolving Credit Facility, to the extent not limited by Section
6.16), except (i) to the extent permitted under Section 7, and (ii) that ANC may
without receiving consent from Liberty replace in its entirety its current
Borrowing Base Revolving Credit Facility and Supplemental Revolving Credit
Facility (including the Intercreditor Agreement) with another first priority
asset based credit facility in a maximum amount not to exceed $175 million;
provided that simultaneously with and as a precondition to the execution of the
replacement first priority asset based credit facility (including any
intercreditor agreement), ANC shall have delivered to Liberty, as general
collateral for any and all Surety Bond Obligations, a letter of credit (in form,
substance and from a source reasonably acceptable to Liberty and in effect for
the duration of such new intercreditor and subordination agreement) in the
amount of $20 million; provided, that any such intercreditor agreement shall
contain the same provisions as set forth in the Intercreditor Agreement, other
than non-substantive changes to reflect the new replacement first priority asset
based credit facility.
6.11 Create, or suffer to exist, any mortgage, lien or other encumbrance
on any real property, except for (i) those existing of record on the date
hereof, (ii) in the case of a mortgage, except for those disclosed to Liberty in
writing, or (iii) except for Liens described in clause (j), (o) or (r) of the
definition of "Permitted Liens.".
6.12 Make, accept, agree to, consent to, or implement any changes,
amendments, modifications or supplement to the Senior Loan Agreement or the
Collateral and Control Agreement (as defined in the Collateral Agreement), the
Indenture Documents, or enter into any separate agreement(s) covering the same
or substantially similar subject matter thereof; provided that Liberty's consent
to such changes, amendments, modifications or supplements shall not be
unreasonably withheld.
6.13 (a) Make, accept, agree to, consent to, or implement any changes,
amendments, modifications or supplement to, or otherwise take any action that
would have the effect of changing
17
any definition contained or used within, the Security Documentation or the
Surety Bond Documents, except to the extent specifically permitted therein; or
(b) increase above $175 million the aggregate maximum amount that may be
borrowed or otherwise extended pursuant to the Borrowing Base Revolving Credit
Facility and the Supplemental Revolving Credit Facility.
6.14 Issue any equity security or instrument convertible into or
exchangeable for any equity security of any member of the ANC Group (other than
(a) common stock, LLC interests and limited partnership interests, not having
rights to cash, issued to Restricted Entities in the ordinary course of business
consistent with past practice for bona fide corporate or tax structuring
purposes, (b) common stock not having any rights to cash payments not shared by
all holders of ANC's publicly traded common stock, and (c) options granted
pursuant to ANC's existing or future board-approved employee stock option plans,
exercisable for such common stock) unless such security or instrument expressly
and irrevocably provides by its terms that any right of the holder or beneficial
owner thereof to any cash or cash equivalent, whether by or upon liquidation,
redemption, dividend, interest, premium, penalty, default or delay payment,
indemnification or otherwise, is in all respects junior and subordinate to the
rights of all senior, secured creditors.
6.15 Until after such time as ANC has granted to Liberty (or Liberty,
together with Xxxxxx) perfected security interests in the Vehicle Collateral,
grant to any other Person any interest in, or lien or encumbrance upon, the
Vehicle Collateral; provided that ANC shall be permitted to grant first priority
security interests in the Vehicle Collateral solely for the purpose of financing
its vehicle fleet in the ordinary course of business consistent with past
practice, but only to the extent ANC remains in compliance with Section 9.4.
6.16 (a) Borrow any amounts under the Borrowing Base Revolving Credit
Facility on and after the date that is 31 days after the date the Administrative
Agent under the Borrowing Base Revolving Credit Facility has received a Liberty
Default Notice of an Event of Default that has occurred by reason of the events
or circumstances identified in Section 10(ii), (iii), (vii) or (ix) hereof so
long as such Event of Default has not been waived or cured or has not otherwise
ceased to exist, or
(b) Borrow any amounts under the Borrowing Base Revolving Credit Facility
such that the aggregate principal amount of loans under the Borrowing Base
Revolving Credit Facility outstanding at any one time during 19 day time period
referred to below exceeds $10 million (plus the principal amount of loans
outstanding under the Borrowing Base Revolving Credit Facility at the time the
Administrative Agent under the Borrowing Base Revolving Credit Facility received
a Liberty Default Notice of such an Event of Default), for a period of 19 days
commencing on the date the Administrative Agent under the Borrowing Base
Revolving Credit Facility receives a Liberty Default Notice of an Event of
Default that has occurred by reason of the events or circumstances identified in
Section 10(i), (iv), (v), (vi) or (viii) hereof so long as such Event of Default
has not been waived or cured or has not otherwise ceased to exist, or
(c) Borrow any amounts under the Borrowing Base Revolving Credit Facility
on and after the date that is 19 days after the date the Administrative Agent
under the Borrowing Base Revolving Credit Facility has received a Liberty
Default Notice of an Event of Default that has occurred by reason of the events
or circumstances identified in Section 10(i), (iv), (v), (vi) or (viii)
18
hereof is continuing so long as such Event of Default has not been waived or
cured or has not otherwise ceased to exist.
(d) Notwithstanding anything to the contrary contained in paragraphs (a),
(b) and (c) of this Section 6.16, ANC or any member of the ANC Group may, to the
extent permitted by and subject to the terms and conditions contained in the
Borrowing Base Revolving Credit Facility, at any time after an Event of Default
has occurred and is continuing that has not been waived or cured or has not
otherwise ceased to exist, borrow under the Borrowing Base Revolving Credit
Facility with respect to which Lender has received a Liberty Default Notice so
that the outstanding principal amount of loans under the Borrowing Base
Revolving Credit Facility does not exceed $2,000,000 at any one time outstanding
(plus the principal amount of loans outstanding under the Borrowing Base
Revolving Credit Facility at the time the Administrative Agent under the
Borrowing Base Revolving Credit Facility received a Liberty Default Notice) for
purposes of protecting, preserving and defending the collateral securing the
Borrowing Base Revolving Credit Facility, which borrowing must be approved by
the Administrative Agent; provided, that (i) nothing contained in this Agreement
shall limit, restrict or impair the ability of Administrative Agent to exercise
any of its rights or remedies under the Borrowing Base Revolving Credit Facility
before, on or after an Event of Default, (ii) any such loans or advances
borrowed by ANC or any member of the ANC Group or made by Administrative Agent
under the Borrowing Base Revolving Credit Facility shall not give rise to any
liabilities of the Administrative Agent under the Borrowing Base Revolving
Credit Facility to Liberty or any other Surety Bond Party or otherwise to permit
Liberty or any Surety Bond Party to pursue any action or make any claim against
the Administrative Agent under the Borrowing Base Revolving Credit Facility, and
(iii) the principal amount of any such loans or advances on the books and
records of Administrative Agent under the Borrowing Base Revolving Credit
Facility shall be conclusive evidence of the amount of such loans or advances
absent manifest error. Nothing contained herein shall be construed to limit,
except as provided in Section 9.5, the right of ANC or any member of the ANC
Group to borrow under the Borrowing Base Revolving Credit Facility at any time
that no Event of Default exists hereunder. The Administrative Agent under the
Borrowing Base Revolving Credit Facility is relying upon the provisions of this
Section 6.16 and Section 13.7 in providing future financing to ANC and any
member of the ANC Group and the provisions of this Section 6.16 and Section 13.7
will be binding upon Liberty and any Surety Bond Party and their respective
successors and assigns and inure to the benefit of the Administrative Agent
under the Borrowing Base Revolving Credit Facility and its successors and
assigns. The provisions of this Section 6.16 and Section 13.7 cannot be changed,
modified or terminated, except by written agreement signed by the Administrative
Agent under the Borrowing Base Revolving Credit Facility. The term "Liberty
Default Notice" shall mean a written notice from Liberty received by the
Administrative Agent under the Borrowing Base Revolving Credit Facility of the
occurrence of an Event of Default hereunder (after giving effect to any
applicable cure period) and sent so long as such Event of Default has not been
waived or cured or has not otherwise ceased to exist.
6.17 Enter into any oral or written agreement, contract, side-letter or
arrangement (a) limiting ANC's ability to agree to modifications, changes or
amendments to this Agreement, (b) impairing Liberty's rights, remedies or
privileges hereunder, or (c) having an adverse impact on ANC's ability to
perform its obligations hereunder.
19
7. Limited Exceptions to Negative Covenants
7.1 Notwithstanding the provisions of paragraph "6" above, and, provided
that (v) no Event of Default under this Agreement has occurred, (w) no party to
the Trust Agreement has issued a Notice of Acceleration as defined thereunder,
(x) no default, claim or demand upon any Liberty Bond remains uncured for ten
days and for which cash or letter of credit collateral satisfactory to Liberty
has not been posted or delivered within ten days following written demand for
same by Liberty to ANC, (y) with respect to (c) below, at least ten business
days' prior written notice of the proposed transaction is transmitted to
Liberty, and (z) the proposed transaction would not violate the provisions of
any covenant, promise, guarantee, pledge or other contractual obligation to
which any member of the ANC Group is bound, then ANC may incur hereafter further
or additional Senior Secured Indebtedness as follows:
(a) [INTENTIONALLY LEFT BLANK]
(b) [INTENTIONALLY LEFT BLANK]
(c) secured indebtedness in favor of Bank of Montreal (or its
successors) of up to CDN $25 million secured by non-Fleet Collateral
assets of National Car Rental (Canada) Inc. located within Canada only;
provided that substantially identical irrevocable consents and agreements
to permit such indebtedness have been provided under the Borrowing Base
Revolving Credit Facility and the Supplemental Revolving Credit Facility.
(d) Nothing contained in Section 7.1 shall limit or affect the
ability of ANC to incur further or additional Senior Secured Indebtedness
under the Borrowing Base Revolving Credit Facility or the Supplemental
Revolving Credit Facility in accordance with the terms hereof.
7.2 [INTENTIONALLY LEFT BLANK]
7.3 In the event Liberty declines any request for Surety Bond Coverage by
ANC, ANC and/or any Obligor under the terms of the Collateral Agreement may
provide a security interest to any other entity that actually provides such
Surety Bond Coverage, but only upon the following terms and conditions:
(a) If such Surety Bond Coverage, when issued, will completely
assume an existing surety risk under a Liberty Bond such that Liberty is
satisfied in its sole discretion that it has no residual or future risk
under such Liberty Bond, then the new Surety Bond Coverage provider may be
granted a security interest as, and to the extent, provided in the Trust
Agreement and the Collateral Agreement, as a Surety Party;
(b) If such Surety Bond Coverage, when issued, will provide Surety
Bond Coverage for a risk not previously bonded under a Liberty Bond, then
the provider of the new Surety Bond Coverage may be granted a security
interest in the assets of the members of the ANC Group senior to the
security interests granted to the Collateral Trustee under the Collateral
Agreement (provided that, any such senior priority security interest does
not violate the borrowing restrictions set forth in Section 6 and in
paragraph 7.1 hereinabove and consent of the Collateral Trustee and any
required beneficiaries under the Collateral
20
Agreement and the Trust Agreement shall have been obtained and all such
parties shall have agreed in writing to subordinate to such new Surety
Bond Provider), or may be collateralized with cash or letters of credit;
provided, further, that Liberty has a right of first refusal to issue such
Surety Bond Coverage on the same terms and conditions and with the same
collateral. Liberty shall, within five (5) business days of receiving
written notice from ANC describing the terms of the requested alternative
Surety Bond Coverage and the proposed security, respond in writing to ANC
whether it agrees to issue such Surety Bond Coverage on such terms.
7.4 Liberty agrees that any member of the ANC Group may, in addition to
the real estate on Schedule 6.1A, sell real estate after the date hereof (to the
extent permitted by the other agreements to which ANC and/or the proposed seller
are party or bound) up to the amount of cash or letter of credit collateral
actually posted or delivered by ANC pursuant to paragraph 4.4 hereinabove;
provided that the use of the proceeds of such sale, whether directly or
indirectly, are used only for (a) general and ordinary business operating
expenses consistent with past practice, and any permanent prepayment of the
borrowings outstanding under the Borrowing Base Revolving Credit Facility or the
Supplemental Revolving Credit Facility required in consequence of such sale of
real estate, or any presently existing debt with predetermined repayment dates,
to the extent listed on Schedule 7.4A or the Eurodollar notes listed on Schedule
7.4B; and further provided that such proceeds shall not be used, whether
directly or indirectly, (1) to prepay, retire or secure any debt or obligation
of ANC under the Senior Loan Agreement, or (2) to prepay, retire or secure any
other debt or obligation of ANC to Xxxxxx Brothers Inc. or its affiliates, or to
creditors senior to Liberty or to Xxxxxx Brothers Inc. or its affiliates, (3)
redeem or repurchase equity interests in ANC or any of its subsidiaries or
affiliates (unless permitted by Section 6.7) or (4) secure any obligation or
undertaking of ANC to AutoNation in connection with the indemnity to be provided
by AutoNation pursuant to paragraph 4.4 hereof.
8. Representations and Warranties.
ANC represents and warrants as follows:
8.1 Each ANC Group member maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific authorizations,
(ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain asset accountability, (iii)
access to assets is permitted only in accordance with management's general or
specific authorization and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
8.2 Neither ANC, nor any director, officer, agent, employee or other
Person acting on behalf of any ANC Group member has, in the course of acting
for, or on behalf of, ANC or any ANC Group member, directly or indirectly used
any corporate funds for any unlawful contribution, gift, entertainment or other
unlawful expenses relating to political activity; directly or indirectly made
any direct or indirect unlawful payment to any foreign or domestic government or
party official or employee from corporate funds; violated or is in violation of
any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended, or
any similar treaties of the United States; or
21
directly or indirectly made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment to any foreign or domestic government or
party official or employee.
8.3 Except as set forth on Schedule 8.3 or as reflected in ANC's most
recent 10-K or 00-X, xxxx of the officers or directors of any ANC Group member
is presently a party to any transaction with any ANC Group member (other than
for services as employees, officers and directors), including any contract,
agreement or other arrangement providing for the furnishing of services to or
by, providing for rental of real or personal property to or from, or otherwise
requiring payments to or from any officer, or director or, to the knowledge of
ANC, any corporation, partnership, trust or other entity in which any officer or
director has a substantial interest or is an officer, director, trustee or
partner.
8.4 There are no liabilities of any ANC Group member, other than
liabilities disclosed on Schedule 8.4 or reflected in ANC's most recent 10-K or
10-Q that would or reasonably could have a Material Adverse Effect.
8.5 There are no facts pertaining to any ANC Group member which affect
adversely and materially any ANC Group member or which are likely in the future
to affect adversely and materially any ANC Group member, and which have not been
disclosed in this Agreement, Schedule 8.5, or ANC's most recent 10-K or 10-Q.
8.6 No ANC Group member is in default of (or has received a notice or
declaration of default in respect of) any obligation, whether created or
existing, under contract, statute or otherwise, which is secured or guaranteed
by any Liberty Bond.
8.7 Subsequent to the completion of the pending sale/leaseback
transactions being concluded by ANC and/or certain of its subsidiaries with
Cardinal Financial, ANC can draw no more than $108,581,000 in the aggregate
under the terms of the Borrowing Base Revolving Credit Facility and the
Supplemental Revolving Credit Facility, by reason of the application of the
Borrowing Formulae to the remaining assets of ANC and those of its subsidiaries
whose assets are used as the basis for such calculations.
8.8 ANC has agreed to no signed termsheet, and to no letter of intent or
other contract, agreement or arrangement in respect of a strategic transaction,
sale or business combination involving any member of the ANC Group. Since March
1, 2001 ANC has not directly or indirectly granted, or agreed to grant, any
interest in the Vehicle Collateral (other than as would be permitted by the
proviso to Section 6.15) to any party other than the Trustee, for the benefit of
Liberty and Xxxxxx Commercial Paper, Inc.
8.9 Any action, transaction, event or circumstance which would have
required any member of the ANC Group to obtain the permission, consent, approval
or waiver of or from Liberty had this Agreement been in effect as of and
following June 7, 2001, is disclosed and described on Schedule 8.9.
8.10 Except as provided in the Limiting Provisions, ANC has not entered
into any oral or written agreement, contract, side-letter or arrangement (a)
limiting ANC's ability to agree to modifications, changes or amendments to this
Agreement, (b) impairing Liberty's rights, remedies
22
or privileges hereunder, or (c) having an adverse impact on ANC's ability to
perform its obligations hereunder.
9. Affirmative Covenants
9.1 ANC agrees that any transaction or arrangement between or among any of
the ANC Group members, on the one hand, and any affiliate thereof, on the other
hand (other than an ANC Group member), shall be effected on an arms' length
basis in accordance with customary commercial practice and, except with respect
to compensation, benefits and grants of options and stock to employees, officers
and directors, any such transaction or series of transactions in excess of $5
million shall be approved by a majority of ANC's outside directors.
9.2 ANC shall, at ANC's cost, do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver all
such other agreements, certificates, instruments and documents, as Liberty may
reasonably request in order to carry out the intent and accomplish the purposes
of this Agreement and the consummation of the transactions contemplated hereby.
9.3 Liberty shall have the rights and remedies set forth in this
Agreement, the Trust Agreement, the Collateral Agreement, the Indemnity
Agreements or other Surety Bond Documents, and all rights and remedies which
Liberty has been granted at any time under any other agreement or contract and
all of the rights which Liberty has under any law or regulation or in equity.
Any person having any rights under any provision of this Agreement shall be
entitled to enforce such rights specifically (without posting a bond or other
security), to recover damages by reason of any breach of any provision of this
Agreement and to exercise all other rights granted by law. All of Liberty's
rights and remedies, whether existing at law, in equity, by contract or
otherwise, shall be cumulative. Any delay or failure by Liberty to enforce the
provisions of this Agreement shall not be deemed a waiver of its rights or
remedies hereunder.
9.4 ANC shall at all times maintain Minimum Unencumbered Fleet Equity of
at least $460 million.
9.5 (a) In the event that ANC borrows money pursuant to the Borrowing
Base Revolving Credit Facility using borrowing base formulae other than those
attached hereto as Exhibit G (the "Borrowing Formulae") then, to the extent ANC
actually borrows amounts (exclusive of up to $2 million in loans outstanding
from time to time to the extent permitted by Section 6.16(d)) in excess of the
amounts it otherwise would be permitted to borrow had the Borrowing Formulae
applied (the total of such amount being the "Excess Amount"), simultaneously
with and as a condition to such borrowing, upon the prior written request of
Liberty, ANC shall deliver to Liberty (as general collateral supporting any and
all Surety Bond Obligations) collateral equal to 25% of such excess, as provided
in Section 9.5(b).
(b) As long as the Excess Amount is either (i) not more than $10 million
or (ii) not outstanding for more than 10 consecutive days (or more than 21 days
in any 30 day period), even if the Excess Amount is less than $10 million, then
ANC has the option to collateralize Liberty (in lieu of the letter of credit it
would otherwise be obligated to post) by depositing cash equal to 25% of the
Excess Amount into Liberty's account no. ______ at Fleet Bank ("Excess Amount
23
Account"), such Excess Amount Account and all funds therein to be under the
exclusive dominion of Liberty. However, if at any time the Excess Amount either
exceeds (X) $10 million or (Y) is outstanding for more than 10 consecutive days
(or more than 21 days in any 30 period), regardless of amount, then ANC must
immediately deliver to Liberty a letter of credit as general collateral for all
Surety Bond Obligations (on terms and from a bank acceptable to Liberty) in an
amount equal to 25% of the entire Excess Amount, such letter of credit not to be
returned until the Excess Amount equals zero for five (5) business days, and
then only if there is no Default. Assuming there is no Default, Liberty will
return to ANC from the Excess Amount Account (I) in the event the Excess Amount
is reduced to zero, all funds after such zero balance has been maintained for
two business days, (II) in the event the Excess Amount is reduced (but not to
zero), funds equal to the amount of such reduction, after such reduction has
been maintained for two business days, and (III) in the event the Excess Amount
is replaced in its entirety with such letter of credit, all funds within 2
business days of Liberty's receipt of such letter of credit. Nothing in this
Section 9.5(b) shall require Liberty to return a letter of credit to ANC more
than once per business week, or require Liberty to return funds to ANC from the
Excess Amount Account more than once per business week. In the event ANC does
not timely exercise its option to provide to Liberty cash in lieu of a letter of
credit, then ANC must provide to Liberty such letter of credit.
10. Events of Default.
If any of the following events (each an "Event of Default") shall occur
and be continuing (A) for 5 days in the case of (i), (iii) or (ix) below, (B)
for 5 days from the date of ANC's discovery of such event (it being agreed that
ANC has an affirmative obligation to inform Liberty of the existence of such an
event promptly upon ANC's discovery of its existence), in the case of (ii), (v),
(vi) or (vii) below, and (C) at any time in the case of (iv) or (viii) below:
(i) default or failure in the payment of any amounts due, or the
performance of any obligation or thing (including without
limitation the performance of any covenant, including without
limitation the covenants contained in Section 4.4 and 13.13 of
this Agreement) to be done, under the Surety Bond Documents or
Security Documentation; or
(ii) any representation or warranty made or deemed made by any ANC
Group member herein or in any other Security Documentation or
Surety Bond Document or which is contained in any certificate,
document or financial or other statement furnished by it at
any time under or in connection with this Agreement or any
such other Security Documentation or Surety Bond Document
shall have been incorrect in any material respect on or as of
the date made or deemed made; or
(iii) failure by any ANC Group member to pay final judgments
aggregating in excess of $5.0 million (excluding amounts
covered by insurance), which judgments are not paid,
discharged or stayed for a period of 30 days; or
(iv) (a) any ANC Group member which is or should be a Surety Bond
Guarantee Party shall commence any case, proceeding or other
action (I) under any existing or future law of any
jurisdiction, domestic or foreign, relating to
24
bankruptcy, insolvency, reorganization or relief of debtors,
seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with
respect to it or its debts, or (II) seeking appointment or a
receiver, trustee, custodian, conservator or other similar
official for it or for all or any substantial part of its
assets, or any ANC Group member which is or should be a Surety
Bond Guarantee Party shall make a general assignment for the
benefit of its creditors; or (b) there shall be commenced
against any ANC Group member which is or should be a Surety
Bond Guarantee Party any case, proceeding or other action of a
nature referred to in clause (a) above which (I) results in
the entry of an order for relief or any such adjudication or
appointment or (II) remains undismissed, undischarged or
unbonded for a period of 45 days; or (c) there shall be
commenced against ANC or any ANC Group member which is or
should be a Surety Bond Guarantee Party any case, proceeding
or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of
an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within
45 days from the entry thereof; or (d) any ANC Group member
which is or should be a Surety Bond Guarantee Party shall take
any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in
clause (a), (b), or (c) of this subparagraph (iv); or (e) ANC
or any ANC Group member which is or should be a Surety Bond
Guarantee Party shall be generally unable to, or shall admit
in writing its inability to, pay its debts as they become due;
or
(v) either (a) any Subsidiary Surety Guarantee shall cease, for
any reason, to be in full force and effect (other than
pursuant to the terms hereof or thereof) or any Subsidiary
Surety Guarantor shall so assert in writing or (b) the
subordination provisions applicable to the AutoNation
Subordinated Debt shall cease for any reason to be in effect,
or AutoNation, any Surety Party or any affiliate of any Surety
Party shall so assert; or
(vi) any Security Documentation shall cease, for any reason (other
than by reason of Liberty's consent) to be in full force and
effect or any Surety Party or any affiliate of any Surety
Party shall so assert, or any lien created by any of the
Security Documentation shall cease to be enforceable and of
the same effect and priority purported to be created thereby;
or
(vii) any default under or acceleration prior to any maturity or
payment due date on any mortgage, indenture, instrument, bond
or other document under which there may be issued or by which
there may be secured or evidenced any indebtedness or Surety
Bond Obligation owed by any member of the ANC Group, whether
now or hereafter existing, provided that the amount of such
indebtedness or Surety Bond Obligation exceeds $5,000,000, in
the aggregate; or
25
(viii) solely in the event ANC enters into a new credit protection
or similar facility which replaces its current liquidity
facility (a) in its entirety, or (b) in a manner that either
(X) increases the size of such liquidity facility or (Y) adds
any liquidity facility lenders, the failure to grant Liberty a
perfected security interest (junior only to the security
interests permitted by the proviso to Section 6.15) in the
Vehicle Collateral simultaneously therewith; or
(ix) the Company's common stock is no longer listed on the Nasdaq
Stock Market, the New York Stock Exchange or the American
Stock Exchange (collectively, the "Approved Markets");
then, and in any such event, (I) if such event is an Event of Default specified
in paragraph (iv) of this Section with respect to ANC, then immediately, and
(II) if such event is any other Event of Default, then by notice to ANC: Liberty
may declare the March 1, 2001 temporary deferral of Liberty's January 5, 2001
demand letter, and/or the June 19, 2001 temporary deferral of Liberty's June 11,
2001 demand letter, to be terminated and withdrawn, deem ANC and applicable ANC
Group members to be in breach of paragraph "5" of the Indemnity Agreements, and
immediately enforce, without the necessity of any further notice period or
demand (including any specified by paragraph "5" of the Indemnity Agreements),
the provisions thereof. Without limiting the foregoing, Liberty shall have the
right, but not the obligation, either in conjunction with or instead of the
foregoing, to exercise any rights or remedies available to it at law, in equity,
under any contact or agreement or otherwise, including without limitation under
the Surety Bond Documents. Except as expressly provided above in this paragraph,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived.
11. Fees and Expenses
ANC agrees to reimburse Liberty at the signing of this Agreement and the
related Trust Agreement and Collateral Agreement for Liberty's costs, fees and
expenses incurred, including but not limited to the fees and expenses of
attorneys, consultants and other outside experts, in connection with the
investigation of ANC following Liberty's demand under paragraph "5" of the
Indemnity Agreements and in connection with negotiating and entering into this
Agreement, the Trust Agreement, the Collateral Agreement and all other documents
and agreements appurtenant thereto.
12. Termination
This agreement shall terminate upon the earlier to occur of (1) such date
on which all risk undertaken by Liberty, whether residual or future, under all
Liberty Bonds, has been, in Liberty's sole discretion, conclusively terminated
(or the bonds are all cash collateralized or backed by letters of credit in a
form and issued by institutions acceptable to Liberty in Liberty's sole
discretion, in which Liberty's rights have been vested for in excess of
ninety-one days without the commencement of any Insolvency Proceeding), or (2)
such time that the parties agree in writing to terminate this agreement.
Notwithstanding the foregoing, at such time as (a) the maximum penal amount or
amounts of obligations under all Liberty Bonds (no part of which shall
constitute Premium and Deductible Surety Bond Coverage) shall be less than $50
million and (b) ANC's unsecured, unsubordinated corporate debt is rated not
lower than "BBB-" by Standard & Poor's or
26
"Baa3" by Moody's, then in such event the provisions of Sections 5, 6 and 9 of
this Agreement (and any Event of Default related thereto) shall terminate if and
only if ANC has shares of common stock listed on one of the Approved Markets at
such time.
13. Miscellaneous
13.1 This agreement may be executed by one or more of the parties to this
agreement on any number of separate counterparts (including by facsimile
transmission), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
13.2 Any provision of this agreement which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without, to the extent permitted by law,
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not, to the extent permitted by law,
invalidate or render unenforceable such provision in any other jurisdiction.
13.3 THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAW OF THE STATE OF NEW YORK AS APPLIED TO AGREEMENTS EXECUTED AND TO BE
PERFORMED EXCLUSIVELY WITHIN SUCH STATE, WITHOUT REGARD TO CHOICE OF LAW
PRINCIPLES. THE UNDERSIGNED AGREE THAT ANY DISPUTE BETWEEN THE UNDERSIGNED WILL
AT LIBERTY'S OPTION BE RESOLVED EXCLUSIVELY IN A COURT OF COMPETENT JURISDICTION
LOCATED IN THE STATE OF NEW YORK AND COUNTY OF NEW YORK. ANC FURTHER CONSENTS TO
THE PERSONAL JURISDICTION AND VENUE OF ANY COURT IN WHICH ANY ACTION MAY BE
BROUGHT AGAINST IT BY LIBERTY AND TO SERVICE OF PROCESS IN ANY SUCH ACTION BY
CERTIFIED MAIL, RETURN RECEIPT REQUESTED OR BY ANY MEANS GIVING ACTUAL NOTICE OF
SUCH PROCESS TO ANC. ANC HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY SUCH
ACTION.
13.4 Liberty agrees that, with respect to any fiscal year following
December 31, 2001, Liberty will review and consider without obligation any
business plan submitted to it by ANC for such year. Liberty acknowledges that in
connection with any particular contemplated transaction, ANC may request, but
Liberty shall not be obligated to agree to, alterations or enhancements to these
terms based on ANC's then-existing needs.
13.5 With respect to any obligations or action to be performed by any ANC
Group member on a particular date or within a specified period, time is of the
essence.
13.6 No waiver by Liberty of any default with respect to any provision,
condition or requirement of this Agreement shall be deemed to be a continuing
waiver in the future or a waiver of any other provision, condition or
requirement hereof, nor shall any delay or omission of Liberty to exercise any
right hereunder in any manner impair the exercise of any such right accruing to
it thereafter.
13.7 This Agreement shall be binding upon and inure to the benefit of the
parties and their successors and permitted assigns. This Agreement may not be
amended except by a writing signed by both Liberty and ANC. The Relevant
Provisions may not be amended in a manner having an
27
adverse impact on the Borrowing Base Revolving Credit Facility, directly or
indirectly, without the prior written consent of the Administrative Agent under
the Borrowing Base Revolving Credit Facility. As used in this Section 13.7, the
"Relevant Provisions" shall mean the following provisions hereof: (i) the
definitions of the "Borrowing Base Revolving Credit Facility," the "Borrowing
Formulae," the "Corporate Collateral," (it being agreed that the Administrative
Agent has no rights or interests in any existing or future Fleet Collateral, or
any provision of this Agreement to the extent pertaining to such Fleet
Collateral, and such provisions may be amended, modified, altered or changed
without the Administrative Agent's consent) the "Excess Amount," the
"Intercreditor Agreement" and the "Supplemental Revolving Credit Facility;" (ii)
the proviso to the last sentence of Section 6.1; (iii) the parenthetical clause
in Section 6.9; (iv) Section 6.10; (v) the $175 million cap in clause (b) of
Section 6.13; (vi) Section 6.16; (vii) Section 7.1(d); (viii) Section 9.5(a);
(ix) Section 10, to the extent it adversely affects Section 6.16, (x) Section
13.7, (xi) clause "r" in the definition of "Permitted Liens", (xii) the
reference in clause (iii) of Section 6.11 to clause "r" in the definition of
"Permitted Liens" and (xiii) Sections 3.1 and 3.2 to the extent they deal with
Corporate Collateral. ANC shall not enter into any oral or written agreement,
contract, side-letter or arrangement (x) limiting ANC's ability to agree to
modifications, changes or amendments to the Borrowing Base Revolving Credit
Facility, (y) impairing the Administrative Agent's rights, remedies or
privileges thereunder, or (z) having an adverse impact on ANC's ability to
perform its obligations thereunder. The Company may not assign this Agreement or
any rights or obligations hereunder without the prior written consent of Liberty
(which consent may be withheld in Liberty's sole discretion).
13.8 This Agreement is intended for the benefit of the parties hereto and
their respective permitted successors and assigns and is not for the benefit of,
nor may any provision hereof be enforced by, any other person.
13.9 The representations and warranties (which are given only as of the
date of this Agreement) and the agreements and covenants of the Company
contained herein shall survive the execution of this Agreement.
13.10 The Company acknowledges and agrees that irreparable damage to
Liberty would occur in the event that any of the provisions of this Agreement or
the Security Documentation were not performed in accordance with their specific
terms or were otherwise breached. It is accordingly agreed that Liberty shall be
entitled to an injunction or injunctions to prevent or cure breaches of the
provisions of this Agreement or the Security Documentation and to enforce
specifically the terms and provisions hereof and thereof, this being in addition
to any other remedy to which Liberty may be entitled by law or equity.
13.11 Simultaneously with execution of this Agreement, ANC shall deliver
to Liberty (i) from Xxxxxx Commercial Paper Inc., a consent to ANC's execution
of this Agreement, and (ii) from AutoNation, Inc., a Subordination Agreement,
each in form and substance acceptable to Liberty.
13.12 Liberty agrees that, during the effectiveness of this Agreement, it
will continue to abide by its confidentiality obligations contained in the March
1, 2001 letter from Xxx Xxxxxx to Xxxxxx Xxxxxxxx, notwithstanding any earlier
termination provisions provided therein.
28
13.13 Prior to the date of this Agreement, ANC delivered to Liberty, as
general collateral for any and all Surety Bond Obligations, letters of credit in
the amount of $3.25 million. Simultaneous with the execution of this Agreement,
ANC is delivering to Liberty, as general collateral for any and all Surety Bond
Obligations, an additional letter of credit in the amount of $1.75 million. On
or before December 31, 2001, ANC will deliver to Liberty, as general collateral
for any and all Surety Bond Obligations, an additional letter of credit in the
amount of $5 million. Each of these letters of credit is, subject to Section
6.16(b) of the Trust Agreement, in addition to, and not in lieu of, the
Collateral granted pursuant to the Collateral Agreement.
[SIGNATURE PAGE TO FOLLOW]
29
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
ANC RENTAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Sr. Vice President, General
Counsel and Secretary
LIBERTY MUTUAL INSURANCE
COMPANY, solely in its capacity as surety
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President, Liberty Bond
Services, a division of LMIC
30
