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Exhibit 4.25
EXECUTION COPY
THIRD AMENDMENT TO
LETTER OF CREDIT REIMBURSEMENT AGREEMENT
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THIS THIRD AMENDMENT TO LETTER OF CREDIT REIMBURSEMENT
AGREEMENT (this "AMENDMENT") is dated as of March 28, 1997 among ALAMO
RENT-A-CAR, INC., a Florida corporation ("ALAMO"), ALAMO FUNDING, L.P., a New
York limited partnership ("AFL"), AFL FLEET FUNDING, INC., a New York
corporation (the "GENERAL PARTNER"), and CREDIT SUISSE, a Swiss banking
corporation acting through its New York Branch (the "CREDIT ENHANCER").
W I T N E S S E T H:
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WHEREAS, Alamo, AFL, the General Partner and the Credit
Enhancer are parties to that certain Letter of Credit Reimbursement Agreement
dated as of June 20, 1994 (as amended, restated or modified from time to time,
the "LETTER OF CREDIT REIMBURSEMENT AGREEMENT");
WHEREAS, Alamo, AFL, the General Partner and the Credit
Enhancer are parties to that certain Amendment to the Letter of Credit
Reimbursement Agreement, dated as of December 29, 1994;
WHEREAS, Alamo, AFL, the General Partner and the Credit
Enhancer are parties to that certain Second Amendment to the Letter of Credit
Reimbursement Agreement, dated as of November 25, 1996;
WHEREAS, Alamo, AFL, the General Partner and the Credit
Enhancer desire to amend certain provisions of the Letter of Credit
Reimbursement Agreement;
NOW, THEREFORE, the parties to this Amendment hereby agree as
follows:
Section 01. DEFINED TERMS. As used in this Amendment and
unless the context requires a different meaning, capitalized terms used but not
defined herein shall have the meanings assigned to such terms in (i) the
Definitions List, dated as of June 20, 1994, attached as ANNEX A to the
Liquidity Loan Agreement dated as of June 20, 1994, as such ANNEX A may be
amended or modified and (ii) the Letter of Credit Reimbursement Agreement.
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Section 02. AMENDMENTS TO THE LETTER OF CREDIT
REIMBURSEMENT AGREEMENT.
(a) AMENDMENT TO SECTION 3.2(h)(i). Section 3.2(h)(i) of the
Letter of Credit Reimbursement Agreement is hereby amended to read in
its entirety as follows:
"(i) QUARTERLY FINANCIAL STATEMENTS AND INFORMATION.
In the event the Republic Guaranty is terminated in
accordance with Section 13 thereof, within sixty
(60) days after the last day of each of the first
three calendar quarters in each fiscal year of
Alamo, the balance sheet of Alamo as at the end of
such quarter, and the related statements of income,
retained earnings, and cash flows of Alamo, and a
reconciliation of stockholders' equity with respect
to Alamo for such quarter and for the elapsed
portion of the year ended with the last day of such
quarter, which shall be in comparative form with
respect to the financial results of Alamo for the
corresponding calendar quarter of the preceding
year, and which shall be certified by the president,
chief financial officer, the treasurer or the
comptroller of Alamo, to be, in his or her opinion,
complete and correct in all material respects and to
present fairly, in accordance with generally
accepted accounting principles consistently applied,
the financial position of Alamo, as at the end of
such period and the results of operations for such
period, and for the elapsed portion of the year
ended with the last day of such period, subject only
to normal year-end adjustments, and which shall be
accompanied by a report of Xxxxxx Xxxxxxxx LLP, or
another "Big Six" accounting firm, stating that such
accountants have reviewed such financial
statements."
(b) AMENDMENT TO SECTION 3.2(h)(ii). Section 3.2(h)(ii) of
the Letter of Credit Reimbursement Agreement is hereby amended to read
in its entirety as follows:
"(ii) ANNUAL FINANCIAL STATEMENTS AND INFORMATION;
CERTIFICATE OF NO DEFAULT. In the event the Republic
Guaranty is terminated in accordance with Section 13
thereof, within ninety (90) days after the end of
each calendar year, the audited balance sheet of
Alamo, as at the end of such fiscal year, and the
related audited statements of income, retained
earnings and cash flows of Alamo, and a
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reconciliation of stockholders' equity with respect
to Alamo for such fiscal year, which financial
statements shall set forth in comparative form such
figures as at the end of and for the previous fiscal
year, and shall be accompanied by an unqualified
opinion of Xxxxxx Xxxxxxxx LLP or another "Big Six"
accounting firm, together with a statement of such
accountants certifying (A) that no Event of Default
was detected during the examination of Alamo and (B)
that such accountants have authorized Alamo to
deliver such financial statements and opinion
thereon to the Credit Enhancer pursuant to this
Agreement."
(c) AMENDMENT TO SECTION 3.2(h)(iii). Section
3.2(h)(iii) of the Letter of Credit Reimbursement Agreement is hereby
amended by deleting the section in its entirety and not replacing it.
Section 03. CONDITIONS OF EFFECTIVENESS. The
following constitute conditions precedent to the effectiveness of
this Amendment:
(a) Execution and delivery of this Amendment by Alamo,
AFL, the General Partner and the Credit Enhancer;
(b) AFL shall have received as of the date hereof a copy of
the written confirmation delivered to AFL by each of S&P and Xxxxx'x
to the effect that this Amendment will not result in the downgrading
or withdrawal of the then current ratings of the Commercial Paper
Notes;
(c) Each Liquidity Lender shall have delivered written
consent to this Amendment evidenced by their execution of ANNEX A to
the Third Amendment to the Liquidity Loan Agreement, dated March 28,
1997;
(d) AFL shall have delivered prior written notice of this
Amendment to the Rating Agencies, the Depositary, the Agent, the
Liquidity Agent and each Dealer;
(e) AFL shall have delivered a fully executed copy of this
Amendment to the Rating Agencies, the Depositary, the Agent, the
Liquidity Agent and each Dealer and shall have delivered to each
Dealer a revised Private Placement Memorandum (as such term is defined
in the Dealer Agreement) which reflects this Amendment;
(f) AFL shall have received from Alamo (i) a copy of
the resolutions of its Board of Directors, certified as of
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the date hereof by the Secretary thereof, authorizing the execution,
delivery and performance of this Amendment and (ii) an incumbency
certificate from the Secretary thereof with respect to its officers,
agents or other representatives authorized to execute this Amendment;
and
(g) AFL shall have received an Opinion of Counsel to Alamo to
the effect that this Amendment has been duly authorized, executed and
delivered and is the legal, valid and binding obligation of Alamo,
enforceable against it in accordance with its terms, subject to the
exceptions set forth therein.
Section 04. CONTINUATION OF REPRESENTATIONS AND WARRANTIES.
Alamo represents and warrants to the Credit Enhancer that the representations
and warranties in Article III of the Letter of Credit Reimbursement Agreement,
as amended by this Amendment, are true and correct on and as of the date hereof
with the same effect as if made on and as of the date hereof (except to the
extent such representations and warranties expressly refer to an earlier date,
in which case they shall be true and correct as of such earlier date).
Section 05. REFERENCE TO AND EFFECT ON THE RELATED
DOCUMENTS; RATIFICATION.
(a) Upon the effectiveness hereof, on and after the date
hereof each reference in the Related Documents and any other document
to the "Letter of Credit Reimbursement Agreement" or words of like
import referring to the Letter of Credit Reimbursement Agreement shall
mean and be a reference to the Letter of Credit Reimbursement
Agreement as amended hereby and each reference to any of the defined
terms referred to in this Amendment shall mean and refer to such
defined terms as amended hereby.
(b) The Letter of Credit Reimbursement Agreement, as amended
above, is and shall continue to be in full force and effect and is
hereby ratified and confirmed in all respects.
Section 06. EXECUTION IN COUNTERPARTS. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same instrument. Delivery of an executed counterpart of a signature
page to this Amendment by facsimile transmission shall be as effective as
delivery of a manually executed counterpart of this Amendment.
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Section 07. GOVERNING LAW. THIS AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
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IN WITNESS WHEREOF, Alamo, AFL, the General Partner and the Credit Enhancer
have caused this Amendment to be duly executed by their duly authorized
officers, as of the day and year first above written.
ALAMO RENT-A-CAR, INC.
By: /s/ Xxxx Xxxx Xxxxxxxxxxxx
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Name: Xxxx Xxxx Xxxxxxxxxxxx
Title: Authorized Signatory
ALAMO FUNDING, L.P.
By: AFL FLEET FUNDING, INC.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
AFL FLEET FUNDING, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
CREDIT SUISSE
NEW YORK BRANCH,
the Credit Enhancer
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Associate
By: /s/ X.X. Xxxxxx
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Name: X.X. Xxxxxx
Title: Managing Director
