1
Exhibit 4.23
EXECUTION COPY
FOURTH AMENDMENT TO
LOAN AGREEMENT
THIS FOURTH AMENDMENT TO LOAN AGREEMENT (this "AMENDMENT") is
dated as of March 28, 1997 among ALAMO RENT-A-CAR, INC., a Florida corporation
("ALAMO"), and ALAMO FUNDING, L.P., a limited partnership organized under the
laws of the State of New York (the "LENDER").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Alamo and the Lender are parties to that certain
Loan Agreement dated as of June 20, 1994 (as amended, restated or modified from
time to time, the "LOAN AGREEMENT");
WHEREAS, Alamo and the Lender are parties to that certain
Amendment to Loan Agreement, dated as of December 29, 1994;
WHEREAS, Alamo and the Lender are parties to that certain
Second Amendment to Loan Agreement, dated as of June 11, 1996;
WHEREAS, Alamo and the Lender are parties to that certain
Third Amendment to Loan Agreement, dated as of November 25, 1996;
WHEREAS, Alamo and the Lender desire to amend certain
provisions of the Loan Agreement;
NOW, THEREFORE, the parties to this Amendment hereby agree as
follows:
Section 01. DEFINED TERMS. All capitalized terms used herein
(including in the preamble and in the recitals) and not otherwise defined
herein shall have the meanings set forth for such terms in the Loan Agreement.
Section 02. AMENDMENTS TO THE LOAN AGREEMENT.
(a) AMENDMENT TO SECTION 1.1. The following term is
added to Section 1.1:
2
"REPUBLIC GUARANTY" has the meaning
assigned thereto in the Definitions List
annexed to the Liquidity Loan Agreement.
(b) AMENDMENT TO SECTION 9.8(i). Section 9.8(i) of
the Loan 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
statement 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
the normal year-end adjustments, and which
shall be accompanied by a certificate of
Xxxxxx Xxxxxxxx LLP, or another "Big Six"
accounting firm, stating that such
accountants have reviewed such financial
statements."
(c) AMENDMENT TO SECTION 9.8(ii). Section 9.8(ii) of
the Loan 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
-2-
3
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 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 (i) that no
default or Loan Event of Default was
detected during the examination of Alamo,
and (ii) that such accountants have
authorized Alamo to deliver such financial
statements and opinion thereon to the Agent
and the Lender pursuant to this Agreement."
(d) AMENDMENT TO ARTICLE XII. Article XII of the Loan
Agreement is hereby amended by adding the following new Section 12.1.6
immediately following Section 12.1.5:
"SECTION 12.1.6. DEFAULT UNDER THE REPUBLIC
GUARANTY AND/OR OTHER AGREEMENTS OR
COVENANTS. Default in the payment when due
of any payments required under the Republic
Guaranty, and the continuance thereof for
two (2) Business Days after the occurrence
thereof or the default in the performance
of any other agreement or covenant
(financial or otherwise) in the Republic
Guaranty, and the continuance thereof for
thirty (30) days after written notice
thereof from the Lender."
Section 03. CONDITIONS OF EFFECTIVENESS. The following
constitute conditions precedent to the effectiveness of this Amendment:
(a) The Lender shall have received written confirmation from
the Rating Agencies that this Amendment will not result in the
downgrading or withdrawal of the then current ratings of the
Commercial Paper Notes by any Rating Agency;
(b) Each Liquidity Lender and the Credit Enhancer shall have
delivered written consent to this Amendment evidenced by their
execution of ANNEX A to the Third
-3-
4
Amendment to the Liquidity Loan Agreement, dated as of March
__, 1997 (the "CONSENT");
(c) Execution and delivery of this Amendment by the
Lender and Alamo;
(d) The Lender and Alamo shall have delivered prior written
notice of this Amendment to the Rating Agencies, the Depositary, the
Agent, the Liquidity Agent and each Dealer;
(e) The Lender and Alamo shall have delivered fully executed
copies of this Amendment to the Rating Agencies, the Depositary, the
Agent, the Liquidity Agent and each Dealer;
(f) The Lender shall have received from Alamo (i) a copy of
the resolutions of its Board of Directors, certified as of 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) The Lender 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 Lender as to itself and as to each
Borrower, that the representations and warranties in Article VIII of the Loan
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 "Loan Agreement" or words of like import referring to the Loan
Agreement shall mean and be a reference to the Loan 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.
-4-
5
(b) The Loan 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.
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.
-5-
6
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.
ALAMO RENT-A-CAR, INC.
By: /s/ Xxxx Xxxx Xxxxxxxxxxxx
------------------------------
Name: Xxxx Xxxx Xxxxxxxxxxxx
Title: Authorized Signatory
ALAMO FUNDING, L.P.
By: AFL FLEET FUNDING, INC.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
