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EXHIBIT 4.2
THIRD AMENDMENT
THIRD AMENDMENT, dated as of June 26, 2001 (this "AMENDMENT"),
to the Amended and Restated Credit Agreement, dated as of June 30, 2000 (as
heretofore amended, supplemented or otherwise modified, the "CREDIT AGREEMENT"),
among ANC RENTAL CORPORATION, a Delaware corporation (the "BORROWER"), the
several Lenders from time to time parties thereto, XXXXXX BROTHERS INC., as
advisor, lead arranger and book manager, and XXXXXX COMMERCIAL PAPER INC., as
syndication agent and as administrative agent (in such capacity, the
"ADMINISTRATIVE AGENT").
W I T N E S S E T H:
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WHEREAS, the Borrower has requested that the Lenders amend
certain provisions of the Credit Agreement; and
WHEREAS, the Lenders have agreed to amend the Credit
Agreement, but only upon the terms and subject to the conditions set forth
below;
NOW, THEREFORE, in consideration of the premises and mutual
agreements contained herein, and for other valuable consideration, the receipt
of which is hereby acknowledged, the Borrower, the Lenders and the Agents hereby
agree as follows:
1. DEFINITIONS. All terms defined in the Credit Agreement
shall have such defined meanings when used herein unless otherwise defined
herein.
2. AMENDMENT OF SECTION 1.1 (DEFINED TERMS). Section 1.1 of
the Credit Agreement is hereby amended by:
(a) deleting the definition of "TRANSACTION DOCUMENTS" in its
entirety;
(b) inserting the following defined terms in their appropriate
alphabetical order:
""ANC LIBERTY AGREEMENT": the Agreement to be
executed by Liberty and the Borrower which shall be in form
and substance satisfactory to the Administrative Agent, as
evidenced by the execution of the amended and restated
Intercreditor Agreement by the Administrative Agent.
"TRANSACTION DOCUMENTS": the collective reference to
the Interim Loan Facility Amendment, the Interim Loan Facility
Collateral Documents, the ANC Liberty Agreement and the
amended and restated Intercreditor Agreement.".
(c) amending the definition of "CONSOLIDATED FIXED CHARGE
COVERAGE RATIO" by adding at the end thereof immediately before the period the
following:
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"; PROVIDED that for determination of the Fixed Charge
Coverage Ratio for the period of the four consecutive fiscal
quarters of the Borrower ending with FQ3 2001 only, the
Consolidated Adjusted EBITDA of the Borrower and its
Subsidiaries for such period shall be the Consolidated
Adjusted EBITDA of the Borrower and its Subsidiaries for the
three consecutive fiscal quarters of the Borrower ending with
FQ3 2001.";
(d) amending the definition of "INTERIM LOAN FACILITY
COLLATERAL DOCUMENTS" by (i) deleting "and" immediately before clause (c)
thereof and substituting in lieu thereof a comma and (ii) adding at the end
thereof immediately before the period the following:
"and (d) the deed of trust, to be executed on or after the
Second Amendment Effective Date by Alamo Rent-A-Car, LLC in
favor of the Collateral Trustee, for the benefit of the
lenders and/or holders under the Interim Loan Facility and
Liberty, as the same may after the execution and delivery
thereof be amended, supplemented or otherwise modified from
time to time in accordance with Section 6.9."; and
(e) amending the definition of "TRANSACTIONS" by deleting "and
(c)" therein and substituting in lieu thereof the following:
", (c) the Borrower and its Subsidiaries shall enter into the
ANC Liberty Agreement and (x)".
0. AMENDMENT OF SECTION 3.8 OF THE CREDIT AGREEMENT (OWNERSHIP
OF PROPERTY; LIENS). Section 3.8 of the Credit Agreement is hereby amended by
adding at the end of the second sentence thereof immediately before the period
the following: ", other than the real property subject of the Real Estate
Transactions".
4. AMENDMENT OF SECTION 5.7 (NOTICES). Section 5.7 of the
Credit Agreement is hereby amended by (i) deleting the word "and" at the end
clause (d) thereof, (ii) deleting the period at the end of clause (e) thereof
and substituting in lieu thereof "; and" and (iii) adding the following new
clause (f) at the end thereof:
"(f) any Event of Default under and as defined in the ANC
Liberty Agreement.".
5. AMENDMENT OF SECTION 6.1 (FINANCIAL CONDITION COVENANT)
Section 6.1 of the Credit Agreement is hereby amended by:
(a) deleting the following from Section 6.1(a) (Consolidated
Interest Coverage Ratio) thereof:
CONSOLIDATED
FISCAL QUARTER INTEREST COVERAGE RATIO
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"FQ2 2001 and each fiscal 3.25:1.00"
quarter thereafter
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and substituting in lieu thereof the following:
CONSOLIDATED
FISCAL QUARTER INTEREST COVERAGE RATIO
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"FQ2 2001 1.50:1.00
FQ3 2001 1.00:1.00
FQ4 2001 and each fiscal quarter 3.25:1.00";
thereafter
(b) deleting the following from Section 6.1(b) (Consolidated
Fixed Charge Coverage Ratio) thereof:
CONSOLIDATED FIXED
FISCAL QUARTER CHARGE COVERAGE RATIO
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"FQ1 2001 and each fiscal 1.15:1.00"
quarter thereafter
and substituting in lieu thereof the following:
CONSOLIDATED FIXED
FISCAL QUARTER CHARGE COVERAGE RATIO
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"FQ1 2001 1.15:1.00
FQ2 2001 1.00:1.00
FQ3 2001 1.00:1.00
FQ4 2001 and each fiscal quarter 1.15:1.00"; and
thereafter
(c) deleting the following from Section 6.1(c) (Consolidated
Adjusted Funded Debt Ratio) thereof:
CONSOLIDATED ADJUSTED
FISCAL QUARTER FUNDED DEBT RATIO
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"FQ2 2001 3.25:1.00
FQ3 2001 3.25:1.00"
and substituting in lieu thereof the following:
CONSOLIDATED ADJUSTED
FISCAL QUARTER FUNDED DEBT RATIO
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"FQ2 2001 3.75:1.00
FQ3 2001 4.50:1.00.".
6. AMENDMENT OF SECTION 6.3 (LIMITATION ON LIENS). Section 6.3
of the Credit Agreement is hereby amended by (i) deleting the word "and" at the
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end of paragraph (p) thereof and substituting in lieu therefor a semicolon and
(ii) adding the following new paragraphs (r) and (s):
"(r) Liens purported to be created pursuant to the General
Agreements of Indemnity and Commercial Surety, issued by the Borrower,
as "Indemnitor", in favor of Liberty, on each of August 4, 2000 and
October 1, 2000; and
(s) Liens on the property of National Car Rental (Canada) Inc.
to secure working capital Indebtedness of National Car Rental (Canada)
Inc. to Bank of Montreal (or its successors) in an amount not to exceed
25,000,000 Canadian Dollars.".
7. AMENDMENT OF SECTION 6.9 (LIMITATION ON OPTIONAL PAYMENTS
AND MODIFICATIONS OF DEBT INSTRUMENTS, ETC.). Section 6.9 of the Credit
Agreement is hereby amended by adding immediately after "contemplated by the
Interim Loan Facility Amendment" at the end of subclause (ii) in clause (b)
thereof the following:
"and by an amendment to the AutoNation Support Agreement to
consummate the Transactions".
8. AMENDMENT OF SECTION 6.13 (LIMITATION ON NEGATIVE PLEDGE
CLAUSES). Section 6.13(c) of the Credit Agreement is hereby amended by adding at
the end thereof immediately before the comma the following: "and the ANC Liberty
Agreement as in effect on the date of execution and delivery thereof and as
further amended, supplemented or otherwise modified from time to time thereafter
except for any such amendment, supplement or other modification thereto which
would make more restrictive any such prohibition or limitation applicable to the
Borrower or any of its Subsidiaries thereunder".
9. AMENDMENT OF SECTION 6.14 (LIMITATION ON RESTRICTIONS ON
SUBSIDIARY DISTRIBUTIONS). Section 6.14 of the Credit Agreement is hereby
amended by (a) deleting the word "and" at the end of clause (vi) thereof and (b)
adding at the end thereof immediately before the period the following: "and
(viii) any restrictions existing under the ANC Liberty Agreement as in effect on
the date of execution and delivery thereof and as further amended, supplemented
or otherwise modified from time to time thereafter except for any such
amendment, supplement or other modification thereto which would make more
restrictive any such restriction applicable to the Borrower or any of its
Subsidiaries thereunder".
10. AMENDMENT OF SECTION 7 (EVENTS OF DEFAULT). Section 7 of
the Credit Agreement is hereby amended by: (a) adding immediately after the
semicolon in paragraph (j) thereof "or"; and (b) adding at the end of paragraph
(j) thereof the following new paragraph (k) as follows:
"(k) in addition to, and without limiting, the Events of
Default under this Section 7, an Event of Default under and as defined
in the ANC Liberty Agreement shall have occurred and shall not have
been cured or waived in a manner acceptable to the Administrative Agent
and the Required Lenders within thirty (30) days after the occurrence
of such Event of Default (unless otherwise extended by the
Administrative Agent in writing in its good faith judgment), so long as
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during such thirty (30) day period (or such later period as may be
extended by the Administrative Agent), (i) Liberty shall not have
exercised any of its rights or remedies under the ANC Liberty Agreement
or otherwise during such time period and (ii) the Administrative Agent
shall not have issued a notice of default to the Borrower (it being
acknowledged that prior to the expiration of the foregoing grace
period, no Default shall be deemed to have occurred under this
Agreement);".
11. AMENDMENT TO THE INTERCREDITOR AGREEMENT. The
Administrative Agent is authorized by the Lenders, upon the refinancing of the
Borrowing Base Credit Facility, to negotiate, execute and deliver an
intercreditor agreement in substitution of the Intercreditor Agreement, such
substitute intercreditor agreement to be in form and substance satisfactory to
the Administrative Agent.
12. REPRESENTATIONS; NO DEFAULT. On and as of the date hereof,
and after giving effect to this Amendment, (a) the Borrower certifies that no
Default or Event of Default has occurred or is continuing, and (b) the Borrower
confirms, reaffirms and restates that the representations and warranties set
forth in Section 3 of the Credit Agreement and in the other Loan Documents are
true and correct in all material respects, PROVIDED that the references to the
Credit Agreement therein shall be deemed to be references to this Amendment and
to the Credit Agreement as amended by this Amendment.
13. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective on and as of the date that:
(a) the Administrative Agent shall have received counterparts
of this Amendment, duly executed and delivered by a duly authorized officer of
the Borrower;
(b) the Administrative Agent shall have received executed
Lender Consent Letters, substantially in the form of Exhibit A hereto, from
Lenders whose consent is required pursuant to Section 9.1 of the Credit
Agreement;
(c) the Administrative Agent shall have received, for the
benefit of the Lenders, an amendment fee in an amount previously agreed upon
between the Administrative Agent and the Borrower;
(d) the Administrative Agent shall have received an executed
Acknowledgment and Consent, in the form set forth at the end of this Amendment,
from each Loan Party other than the Borrower; and
(e) the Administrative Agent shall have received an executed
certificate of an officer of the Borrower in form satisfactory to the
Administrative Agent as to (i) the accuracy of the representations and
warranties set forth in Section 3 of the Credit Agreement and in the other Loan
Documents, (ii) the absence of any Default or Event of Default after giving
effect to this Amendment, and (iii) such other customary matters as the
Administrative Agent may reasonably request.
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14. LIMITED CONSENT AND AMENDMENT. Except as expressly amended
herein, the Credit Agreement shall continue to be, and shall remain, in full
force and effect. This Amendment shall not be deemed to be a waiver of, or
consent to, or a modification or amendment of, any other term or condition of
the Credit Agreement or any other Loan Document or to prejudice any other right
or rights which the Lenders may now have or may have in the future under or in
connection with the Credit Agreement or any of the instruments or agreements
referred to therein, as the same may be amended from time to time.
15. COUNTERPARTS. This Amendment may be executed by one or
more of the parties hereto in any number of separate counterparts (which may
include counterparts delivered by facsimile transmission) and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
16. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered by their respective duly authorized
officers as of the date first above written.
ANC RENTAL CORPORATION
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
XXXXXX COMMERCIAL PAPER INC.,
as Administrative Agent
By: /s/ G. XXXXXX XXXXX
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Name: G. Xxxxxx Xxxxx
Title: Authorized Signatory
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ACKNOWLEDGMENT AND CONSENT
Each of the undersigned parties to the Guarantee and
Collateral Agreement, dated as of June 30, 2000 and as amended, supplemented or
otherwise modified from time to time, made by the undersigned in favor of Xxxxxx
Commercial Paper Inc., as Administrative Agent, for the benefit of the Secured
Parties, hereby (a) consents to the transactions contemplated by the foregoing
Amendment to the Credit Agreement and (b) acknowledges and agrees that the
guarantees and grants of security interests contained in the Guarantee and
Collateral Agreement and in the other Security Documents are, and shall remain,
in full force and effect after giving effect to such Amendment and all prior
modifications to the Credit Agreement.
ALAMO RENT-A-CAR (CANADA), INC.
LIABILITY MANAGEMENT COMPANIES HOLDING, INC.
NATIONAL CAR RENTAL LICENSING, INC.
NATIONAL CAR RENTAL SYSTEM, INC.
REPUBLIC XXX XXXXXX PARTNER, INC.
REPUBLIC INDUSTRIES AUTOMOTIVE RENTAL GROUP
(BELGIUM) INC.
SPIRIT RENT-A-CAR, INC.
ALAMO RENT-A-CAR MANAGEMENT, LP
By: ARC-GP, Inc., its general partner
ANC COLLECTOR CORPORATION
ANC FINANCIAL, LP
By: ANC Financial GP Corporation, its
general partner
ARC-GP, INC.
ARC-TM, INC.
NCR AFFILIATE SERVICER, INC.
NCRAS MANAGEMENT, LP
By: NCRAS-GP, Inc., its general partner
NCRAS-GP, INC.
SRAC MANAGEMENT, LP
By: SRAC-GP, Inc., its general partner
SRAC-GP, INC.
SRAC-TM, INC.
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
ALAMO RENT-A-CAR, LLC
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
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ANC FINANCIAL CORPORATION
ANC FINANCIAL PROPERTIES, LLC
ANC INFORMATION TECHNOLOGY HOLDING, INC.
ANC INFORMATION TECHNOLOGY, INC.
ANC INFORMATION TECHNOLOGY, L.P.
By: ANC INFORMATION TECHNOLOGY, INC.,
its general partner
ANC IT COLLECTOR CORPORATION
ARC-TM PROPERTIES, LLC
NCR AFFILIATE SERVICER PROPERTIES, LLC
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
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EXHIBIT A
LENDER CONSENT LETTER
ANC RENTAL CORPORATION
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF JUNE 30, 2000
To: Xxxxxx Commercial Paper Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Reference is made to the Amended and Restated Credit
Agreement, dated as of June 30, 2000 (as heretofore amended, supplemented or
otherwise modified, the "CREDIT AGREEMENT"), among ANC RENTAL CORPORATION, a
Delaware corporation (the "BORROWER"), the Lenders parties thereto, XXXXXX
COMMERCIAL PAPER INC., as Syndication Agent and as Administrative Agent, and
others. Unless otherwise defined herein, capitalized terms used herein and
defined in the Credit Agreement are used herein as therein defined.
The Borrower has requested that the Lenders consent to amend
the Credit Agreement on the terms described in the Amendment to which a form of
this Lender Consent Letter is attached as Exhibit A (the "AMENDMENT").
Pursuant to Section 9.1 of the Credit Agreement, the
undersigned Lender hereby consents to the execution by the Agents of the
Amendment.
Very truly yours,
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(NAME OF LENDER)
By:
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Name:
Title:
Dated as of ____________ __, 2001
