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Exhibit 4.5
CONSENT AND AMENDMENT TO SERIES 1996-2 SUPPLEMENT AND SECOND
MASTER MOTOR VEHICLE LEASE AND SERVICING AGREEMENT, dated as of February 19,
1997 (this "Amendment"), among NATIONAL CAR RENTAL FINANCING LIMITED
PARTNERSHIP, a special purpose Delaware limited partnership ("NFLP"), NATIONAL
CAR RENTAL SYSTEM, INC., a Delaware corporation ("National"), THE BANK OF NEW
YORK, a New York banking corporation ("BONY"), as trustee (the "Trustee"),
NATIONAL FLEET FUNDING CORPORATION, a Delaware corporation (the "Series 1996-2
Noteholder"), CREDIT SUISSE FIRST BOSTON (formerly Credit Suisse), a Swiss
banking corporation acting through its New York Branch, as collateral agent (the
"NFC Collateral Agent"), CITIBANK , N.A., a national banking association, as
liquidity agent (the "Liquidity Agent"), and DEUTSCHE BANK AG, a German banking
corporation acting through its New York branch ("Deutsche Bank"), GENERAL MOTORS
CORPORATION, a Delaware corporation ("GM"), BONY, and CAISSE NATIONALE DE CREDIT
AGRICOLE, a French banking corporation acting through its Chicago Branch
(collectively with Deutsche Bank, GM and BONY, being the "Series 1996-2
Enhancement Providers").
PRELIMINARY STATEMENTS
WHEREAS, NFLP and the Trustee have entered into that certain
Series 1996-2 Supplement, dated as of December 20, 1996 (the "Series 1996-2
Supplement"), to the Base Indenture, dated as of April 30, 1996 (said Base
Indenture, as amended by the Supplement and Amendment to Base Indenture, dated
as of December 20, 1996, and as supplemented by the Series 1996-2 Supplement,
being the "Base Indenture"), creating the Floating Rate Rental Car Asset Backed
Variable Funding Note, Series 1996-2 (the "Series 1996-2 Note"); and
WHEREAS, NFLP and National have entered into that certain
Second Master Motor Vehicle Lease and Servicing Agreement, dated as of December
20, 1996 (the "Lease"), relating to the Series 1996-2 Note;
WHEREAS, National and NFLP have requested that the other
parties hereto consent to the amendment of Section 17.1.6 of the Lease made by
amending the definition of the term "Change of Control", contained in Section
2.2 of the Series 1996-2 Supplement, to permit the acquisition by Republic
Industries, Inc., a Delaware corporation, of the beneficial ownership of all of
the issued and outstanding shares of common stock, par value $.01 per share, of
National and all of the issued and outstanding shares of Series A Preferred
Stock,
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par value $.01 per share, of National; and such other parties are, on the terms
and conditions set forth below, willing to grant such request;
NOW, THEREFORE, in consideration of the premises and
agreements, provisions and covenants herein contained, the parties hereto hereby
agree, upon the terms and subject to the conditions set forth below, as follows:
SECTION 1. Defined Terms. Capitalized terms used but not
defined in this Amendment, including the preamble and the recitals (WHEREAS
clauses) hereof, shall have the meanings assigned to such term in the Base
Indenture.
SECTION 2. Amendment to Series 1996-2 Supplement. NFLP and the
Trustee agree that the Series 1996-2 Supplement is, effective as of the time,
and subject to the satisfaction of the conditions precedent, set forth in
Section 4 hereof, hereby amended by amending the definition of the term "Change
of Control" contained in Section 2.2 to read as follows:
"'Change of Control' means (i) a transaction or series of
transactions whereby any Person or group within the meaning of Section
13(d)(3) of the Exchange Act and the rules and regulations promulgated
thereunder (other than Republic Industries, Inc., a Delaware
corporation ("Republic"), or an Affiliate of Republic) acquires
beneficial ownership (within the meaning of Rule 13d-3 of the Exchange
Act), directly or indirectly, of securities of National (or other
securities convertible into such securities) representing 40% of the
combined voting power of all securities of National entitled to vote in
the election of directors (a "Controlling Person") or (ii) at any time,
a majority of National's directors are persons who were not (A)
initially nominated by Republic or an Affiliate of Republic, or (B)
successor directors whose nomination for election by the stockholders
of National was approved by a vote of a majority of the directors then
still in office. For this purpose, a Person shall not be a Controlling
Person if such Person holds voting power in good faith and not for the
purpose of circumventing the effect of the occurrence of a Change of
Control as an agent, bank, broker, nominee, trustee, or holder of
revocable proxies given in response to a solicitation pursuant to the
Exchange Act, for one or more beneficial owners who do not
individually, or, if they are a group acting in concert, as a group,
have the voting power specified in the previous sentence."
SECTION 3. Consent of NFLP, National, Trustee, Series 1996-2
Noteholder, NFC Collateral Agent, Liquidity Agent and Series 1996-2 Enhancement
Providers to Amendment of Series 1996-2 Supplement and Lease. Effective as of
the time, and subject to the satisfaction of the conditions precedent, set forth
in Section 4 hereof, each of NFLP, National, the Trustee, the Series 1996-2
Noteholder, the NFC Collateral Agent, the Liquidity
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Agent and the Series 1996-2 Enhancement Providers hereby consents to (i) the
amendment of the Lease effected by the amendment of Section 2.2 of the Series
1996-2 Supplement effected by Section 2 hereof, and (ii) such amendment of the
Series 1996-2 Supplement effected by Section 2 hereof.
SECTION 4. Conditions of Effectiveness. This Amendment shall
become effective simultaneously with the consummation of the Acquisition under
and as defined in the Share Exchange Agreement dated as of January 5, 1997 among
Republic Industries, Inc., National, Santa Xxxx Holdings, Inc. and Emerald
Investors, L.L.C. when, and only when, the Trustee, the NFC Collateral Agent and
the Liquidity Agent shall have received counterparts of this Amendment executed
by NFLP, National, the Trustee, the NFC Collateral Agent, the Liquidity Agent,
the Series 1996-2 Noteholder, and the Series 1996-2 Enhancement Providers, and
counterparts of the Consent hereto executed by the Dealers and the Liquidity
Lenders, and Sections 2 and 3 hereof shall become effective when, and only when,
(I) such Acquisition shall have been consummated (it being understood and agreed
by the parties hereto that Sections 2 and 3 hereof shall become effective
simultaneously with such consummation) and (II) the Trustee, the NFC Collateral
Agent and the Liquidity Agent shall have received all of the following
documents, each document (unless otherwise indicated) being dated, or dated as
of, the date hereof and in form and substance satisfactory to the Trustee, the
NFC Collateral Agent and the Liquidity Agent:
(i) The written consent of the Rating Agencies to this
Amendment or, as to any Rating Agency, the written confirmation by such
Rating Agency that, upon giving effect to this Amendment, the Rating
Agency Condition will be met with respect to such Rating Agency;
(ii) A certificate of the Secretary or an Assistant Secretary
of each of the General Partner of NFLP, National and the Series 1996-2
Noteholder, certifying the names of the individual or individuals
authorized to sign this Amendment, together with a sample of the true
signature of each such individual; and
(iii) An opinion of counsel for NFLP, which counsel is
acceptable to the Trustee, stating that the amendment of the Lease and
the Series 1996-2 Supplement made by this Amendment does not affect any
Noteholder other than the Series 1996-2 Noteholder (which opinion may,
to the extent the same is based on any factual matter, rely upon an
Officer's Certificate as to the truth of such factual matter).
SECTION 5. Reference to and Effect on the Related Documents.
(a) Upon the effectiveness of this Amendment, including Sections 2 and 3 hereof,
each reference in the Series 1996-2 Supplement or the Lease to "this Supplement"
or "this Agreement" or "this Lease", "hereunder", "hereof" or words of like
import referring to the Series 1996-2 Supplement or the Lease, respectively, and
each reference in the Lease, the Series 1996-2 Supplement or the other Related
Documents to "the Series 1996-2 Supplement" or "the
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Lease", "thereunder", "thereof" or words of like import referring to the Series
1996-2 Supplement or the Lease, shall mean and be a reference to the Series
1996-2 Supplement, or the Lease, in each case as amended hereby.
(b) Except as specifically amended above, the Base Indenture,
the Series 1996-2 Supplement, the Lease and all other Related Documents are and
shall continue to be in full force and effect and are hereby in all respects
ratified and confirmed. Without limiting the generality of the foregoing, the
Base Indenture and all of the Collateral described therein do and shall continue
to secure the payment of all NFLP Obligations to which such Collateral is
applicable (giving effect to this Amendment).
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of any party thereto under any of the Related
Documents, nor constitute a waiver of any provision of any of the Related
Documents.
SECTION 6. Costs and Expenses. NFLP agrees to pay on demand
all reasonable costs and expenses of the Trustee, the Liquidity Agent and the
NFC Collateral Agent in connection with the preparation, execution, delivery and
administration of this Amendment and the other instruments and documents to be
delivered under, or as contemplated by, Section 4 hereof, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Trustee, the Liquidity Agent and the NFC Collateral Agent with respect thereto
and with respect to advising the Trustee, the Liquidity Agent and the NFC
Collateral Agent as to their respective rights and responsibilities hereunder
and thereunder.
SECTION 7. 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 agreement. Delivery of an executed counterpart of a signature
page to this Amendment by telefacsimile shall constitute delivery of a manually
executed counterpart of this Amendment.
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SECTION 8. Governing Law. This Amendment shall be governed by,
and construed in accordance with, the laws of the State of New York excluding
(to the greatest extent a New York court would permit) any rule of law that
would cause application of the laws of any jurisdiction other than the State of
New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
NATIONAL CAR RENTAL FINANCING
LIMITED PARTNERSHIP
By: NATIONAL CAR RENTAL
FINANCING CORPORATION,
its General Partner
By: /s/ X.X. Xxxxxx
------------------------------
Name: X.X. XXXXXX
Title: TREASURER
NATIONAL CAR RENTAL
SYSTEM, INC.
By: /s/ X.X. Xxxxxx
------------------------------
Name: X.X. XXXXXX
Title: EVP
THE BANK OF NEW YORK,
as Trustee and as an A Support Credit
Enhancer
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------
Name: XXXXXXX X. XXXXXXXX
Title: ASSISTANT VICE PRESIDENT
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NATIONAL FLEET FUNDING
CORPORATION
By /s/ X.X. Xxxxxx
------------------------------
Name: X.X. XXXXXX
Title: TREASURER
CREDIT SUISSE FIRST BOSTON (formerly
Credit Suisse), NEW YORK BRANCH, as
NFC Collateral Agent
By /s/ Xxxxx X. Xxxxxx
------------------------------
Name: XXXXX X. XXXXXX
Title: ASSOCIATE
By /s/ Xxxxxx X. Xxxxx
------------------------------
Name: XXXXXX X. XXXXX
Title: ASSOCIATE
CITIBANK, N.A., as Liquidity Agent
By /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: XXXXXXX X. XXXXXXX
Title: SENIOR TRUST OFFICER
DEUTSCHE BANK AG, as A Credit
Enhancer and B Credit Enhancer
By /s/ Xxxx-Xxxxx Xxxxxx
------------------------------
Name: Xxxx-Xxxxx Xxxxxx
Title: Vice President
By /s/ Xxxxxxx Xxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Assistant Vice President
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GENERAL MOTORS CORPORATION,
as an A Support Credit Enhancer
By /s/ Xxxx X. Xxxxx
------------------------------
Name: Xxxx X. Xxxxx
Title: Attorney-in-fact
CAISSE NATIONALE DE CREDIT
AGRICOLE, as B Support Credit
Enhancer
By /s/ Xxxxxxxxx X. Xxxxxx
------------------------------
Name: XXXXXXXXX X. XXXXXX
Title: FIRST VICE PRESIDENT
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CONSENT
Dated as of February 19, 1997
Each of the undersigned, a Liquidity Lender under the
Liquidity Agreement (as defined in the Series 1996-2 Supplement referred to in
the foregoing Amendment) or a Dealer under the Dealer Agreement (as defined in
said Series 1996-2 Supplement), as applicable, hereby consents to the foregoing
Amendment, and hereby confirms and agrees that the Liquidity Agreement, the
Dealer Agreement and each other Related Document to which it is a party, is, and
shall continue to be, in full force and effect and is hereby ratified and
confirmed in all respects except that, upon the effectiveness of, and on and
after the date of, the said Amendment, each reference in the Liquidity
Agreement, the Dealer Agreement or such other Related Document to the Series
1996-2 Supplement or the Lease, "thereunder", "thereof" or words of like import
shall mean and be a reference to the Series 1996-2 Supplement or the Lease as
amended by the said Amendment.
Liquidity Lenders
ABN AMRO BANK, N.V.
By /s/ Xxxxxxxxx X. Xxxxxx
------------------------------
Name: XXXXXXXXX X. XXXXXX
Title: VICE PRESIDENT
By /s/ Xxxxxx Xxxxx
------------------------------
Name: XXXXXX XXXXX
Title: Vice President
BANK AUSTRIA AKTIENGESELLSCHAFT
By /s/ Xxxxxxx Xxxx
------------------------------
Name: Xxxxxxx Xxxx
Title: Assistant Vice President
Bank Austria
By /s/ J. Xxxxxxx Xxxx
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Name: J. Xxxxxxx Xxxx
Title: Vice President
Bank Austria
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BANK BRUSSELS XXXXXXX,
NEW YORK BRANCH
By /s/ Xxxx Xxxxxx
------------------------------
Name: Xxxx Xxxxxx
Title: Vice President & Manager
By /s/ Xxxxxxxx X. X. Vangaever
------------------------------
Name: Xxxxxxxx X. X. Vangaever
Title: Senior Vice President
Credit
BANK OF IRELAND
By /s/ Xxxxx X'Xxxxx
------------------------------
Name: XXXXX X'XXXXX
Title: MANAGER
By /s/ X.X. Xxxx
------------------------------
Name: X.X. Xxxx
Title:
BANK OF MONTREAL
By /s/ Xxxxxx X. XxXxxxx
------------------------------
Name: XXXXXX X. XXXXXXX
Title: DIRECTOR
THE BANK OF NEW YORK
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
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THE BANK OF NOVA SCOTIA
By /s/ F.C.H. Xxxxx
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Name: F.C.H. Xxxxx
Title: Senior Manager Loan Operations
THE BANK OF TOKYO-MITSUBISHI,
LTD., CHICAGO BRANCH
By /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
BANQUE ET CAISSE D'EPARGNE DE
L'ETAT
By /s/ Xxxx Xxxx
------------------------------
Name: Xxxx XXXX
Title: Sous-Directeur
By /s/ Xxxxx Xxxxxxx
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Name: Xxxxx XXXXXXX
Title: Chof ______ Servico
Correspondent Banking
BANQUE NATIONALE DE PARIS,
CHICAGO BRANCH
By /s/ Xxxxxx Xxxxxx du Xxxxxx
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Name: XXXXXX XXXXXX du BOCAGE
Title: Executive Vice President
and General Manager
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BAYERISCHE HYPOTHEKEN-UND
WECHSEL - BANK
AKTIENGESELLSCHAFT, NEW YORK
BRANCH
By /s/ X. Xxxxx
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Name: X. Xxxxx
Title: A.T.
By /s/ X. X. Xxxxxxx
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Name: X. X. Xxxxxxx
Title: F&P
CAISSE NATIONALE DE CREDIT
AGRICOLE
By /s/ Xxxxxxxxx X. Xxxxxx
------------------------------
Name: XXXXXXXXX X. XXXXXX
Title: FIRST VICE PRESIDENT
CANADIAN IMPERIAL BANK OF
COMMERCE
By /s/ Xxxx Xxxxx
------------------------------
Name: Xxxx Xxxxx
Title: Authorized Signatory
CITIBANK, N.A.
By /s/ Xxxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxxx X. Xxxxxxx
Title: Attorney-In-Fact
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COMMERZBANK AG,
CHICAGO BRANCH
By /s/ Xxxx Xxxxxx
------------------------------
Name: XXXX XXXXXX
Title: Assistant Treasurer
By /s/ Xx. Xxxxxxx
------------------------------
Name: Xx. XXXXXX X. XXXXXXX
Title: Executive Vice President
CREDIT SUISSE FIRST BOSTON (formerly
Credit Suisse), NEW YORK BRANCH
By /s/ Xxxxx X. Xxxxxx
------------------------------
Name: XXXXX X. XXXXXX
Title: ASSOCIATE
By /s/ Xxxxxx X. Xxxxx
------------------------------
Name: XXXXXX X. XXXXX
Title: ASSOCIATE
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DEN DANSKE BANK AKTIESELSKAB,
NEW YORK BRANCH
By /s/ Xxxxxxx X. Xxxx
-----------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
By /s/ Xxxx X. X'Xxxxx
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Name: XXXX X. X'XXXXX
Title: VICE PRESIDENT
DRESDNER BANK AG, NEW YORK
BRANCH AND GRAND CAYMAN
BRANCH
By /s/ Xxxxxxxxxxx X. Xxxxxxx
------------------------------
Name: XXXXXXXXXXX X. XXXXXXX
Title: Assistant Treasurer
By /s/ Xxxxxx X. Nadramla
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Name: Xxxxxx X. Nadramla
Title: Vice President
FIRST BANK NATIONAL
ASSOCIATION
By /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
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THE INDUSTRIAL BANK OF JAPAN,
LIMITED, CHICAGO BRANCH
By /s/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx
Title: General Manager
ING BARING (U.S.) CAPITAL
MARKETS, INC.
By /s/ Xxxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
NORDDEUTSCHE LANDESBANK
GIROZENTRALE
By /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
By /s/ Xxxxx Xxxxx-Xxxx
------------------------------
Name: Xxxxx Xxxxx-Xxxx
Title: VP
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By /s/
------------------------------
Name:
Title:
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PNC BANK, NATIONAL
ASSOCIATION
By /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
THE SANWA BANK, LIMITED
CHICAGO BRANCH
By /s/ Xxxxxx Xxxxx
------------------------------
Name: Xxxxxx Xxxxx
Title: Assistant General Manager
THE SUMITOMO BANK,
LIMITED
By /s/ H Iwami
------------------------------
Name: Xxxxxxxx Xxxxx
Title: Joint General Manager
SVENSKA HANDELSBANKEN,
NEW YORK BRANCH
By /s/
------------------------------
Name:
Title:
By /s/ Xxxxx X. Dabisio
------------------------------
Name: Xxxxx X. Dabisio
Title: Vice President
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XXXXXX XXXXXX XXXXXXXX XXXX
XX XXXXXX
By /s/ Xxxxx X. Xxxx
------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK
BRANCH
By /s/ Xxxxxxx X. XxXxxxxxx
------------------------------
Name: XXXXXXX X. XxXXXXXXX
Title: MANAGING DIRECTOR
By /s/ X.X. Xxxxxx
------------------------------
Name: X.X. Xxxxxx
Title: Associate
Dealers
CREDIT SUISSE FIRST BOSTON
CORPORATION (formerly CS First Boston
Corporation), as a Dealer
By /s/ Xxxxx X Xxxxxx
------------------------------
Name: Xxxxx X Xxxxxx
Title: Director
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XXXXXXX, XXXXX & CO. (successor
organization to Xxxxxxx Sachs Money
Markets, L.P.), as a Dealer
By: /s/ Xxxx X. Xxxxxx
------------------------------
Name: Xxxx X. Xxxxxx
Title: Authorized Signatory
CITICORP SECURITIES, INC., as a Dealer
By /s/ J. Xxxxxxx Xxxxxx
------------------------------
Name: J. Xxxxxxx Xxxxxx
Title: Vice President
