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EXHIBIT 4.3
AMENDMENT AGREEMENT NO. 2 TO
CREDIT FACILITIES AND REIMBURSEMENT AGREEMENT
THIS AMENDMENT AGREEMENT is made and entered into this 21st day of
November, 1996, by and among REPUBLIC INDUSTRIES, INC., a Delaware corporation
(herein called the "Borrower"), NATIONSBANK NATIONAL ASSOCIATION (SOUTH) (the
"Agent") (successor by merger to NationsBank of Florida, National Association),
as Agent for the lenders (the "Lenders") party to the Credit Facilities and
Reimbursement Agreement dated December 19, 1995 among such Lenders, Borrower and
the Agent (the "Agreement").
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Lenders have entered into the
Agreement pursuant to which the Lenders have agreed to make revolving loans to
the Borrower in the principal amount of up to $250,000,000 as evidenced by the
Notes (as defined in the Agreement) and to issue Letters of Credit for the
benefit of the Borrower; and
WHEREAS, as a condition to the making of the revolving loans pursuant
to the Agreement the Lenders have required that all Material Subsidiaries of the
Borrower guaranty payment of all Obligations of the Borrower arising under the
Agreement; and
WHEREAS, the Borrower has requested that certain provisions of the
Agreement be amended for the purpose, inter alia, of making acquisitions in
addition to those currently permitted by the Agreement, and the Agent and the
Lenders, subject to the terms and conditions hereof, are willing to make such
amendments, as provided herein;
NOW, THEREFORE, the Borrower, the Agent and the Lenders do hereby agree
as follows:
1. Definitions. The term "Agreement" as used herein and in the Loan
Documents (as defined in the Agreement) shall mean the Agreement as hereinafter
amended and modified. Unless the context otherwise requires, all terms used
herein without definition shall have the definition provided therefor in the
Agreement.
2. Amendments. Subject to the conditions hereof, the Agreement is
hereby amended, effective as of the date hereof, as follows:
(a) A new definition "Alamo" is hereby added to Section 1.01
immediately following the definition of "Affiliate" which definition
shall read as follows:
"Alamo" means Alamo Rent-A-Car, Inc., a Florida
corporation and the other Conveyed Entities, as
defined in the Agreement and Plan of Reorganization
dated November 6, 1996 among Borrower and its
Subsidiaries, the
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Shareholders and the Conveyed Entities;"
(b) The definition of "Funded Indebtedness" is hereby amended
by adding the following proviso at the end hereof:
"provided, however, that there shall be included in
Consolidated Funded Indebtedness (i) the Guarantor's
Obligations as defined in the Republic Guaranty
Agreements dated November 18, 1996 in favor of First
Security Bank, N.A. and NationsBank, N.A., respectively
and (ii) Indebtedness described in Section 8.04(vi)
hereof."
(c) the definition of "Subsidiary" in Section 1.01 is hereby
amended by adding the following proviso at the end thereof:
"; provided, however, that until Xxxxx 00, 0000 Xxxxx
shall not be deemed a Subsidiary for purposes of this
Agreement;"
(d) Section 8.02 is hereby amended in its entirety so that as
amended it shall read as follows:
"8.02 Consolidated Fixed Charge Ratio. Permit at any
time the Consolidated Fixed Charge Ratio to be less than
1.50 to 1.00; provided, however, that until March 30,
1997 there shall be disregarded in calculating the
Consolidated Fixed Charge Ratio all Capital Expenditures
incurred by AutoNation or a Person acquired by Borrower
or its Subsidiaries that is engaged in Automobile
Retailing Activities."
(e) Section 8.04 is hereby amended by (i) deleting the period
at the end of clause (v) and inserting in lieu thereof a semi-colon and
the word "and" and (ii) adding a new clause (vi) thereto reading as
follows:
"(vi) Indebtedness of Alamo under standby letters of
credit issued by a financial institution for the benefit
of Alamo in an aggregate amount not to exceed
$135,000,000."
(f) (A) Clause (v) of Section 8.07 is hereby amended in its
entirety so that as amended it shall read as follows:
"(v) loans and advances to and investments in
Subsidiaries who are Guarantors; notwithstanding the
foregoing, in no event shall the aggregate amount of
loans and investments of cash and Capital Expenditures
and guaranties of obligations by the Borrower and its
Subsidiaries in (x) AutoNation exceed in the aggregate
$450,000,000 and (y) the amount of
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loan advances in Guarantors, other than AutoNation,
engaged in Automobile Retailing Activities exceed in the
aggregate $150,000,000."
(B) Clause (vi) is hereby amended by deleting the period at
the end thereof and inserting in lieu thereof a semi-colon and the word
"and"; and
(C) A new clause (vii) is added thereto which shall read as
follows:
"(vii) loans to Alamo in an aggregate amount of up to
$550,000,000, provided that not less than 75% of any
outstanding principal amount of such loans are secured."
3. Subsidiary Consents. Each Subsidiary of the Borrower that has
delivered a Guaranty to the Agent has joined in the execution of this Amendment
Agreement for the purpose of (i) agreeing to the amendments to the Agreement and
(ii) confirming its guarantee of payment of all the Obligations.
4. Representations and Warranties. The Borrower hereby
represents and warrants that:
(a) The representations and warranties made by Borrower in
Article VI of the Agreement are true on and as of the date hereof
except that the financial statements referred to in Section 6.01(f)
shall be those most recently furnished to each Lender pursuant to
Section 7.01(a) and (b);
(b) There has been no material adverse change in the
condition, financial or otherwise, of the Borrower and its Subsidiaries
since the date of the most recent financial reports of the Borrower
received by each Lender under Section 7.01 thereof, other than changes
in the ordinary course of business, none of which has been a material
adverse change;
(c) The business and properties of the Borrower and its
Subsidiaries are not, and since the date of the most recent financial
report of the Borrower and its Subsidiaries received by each Lender
under Section 7.01 thereof have not been, adversely affected in any
substantial way as the result of any fire, explosion, earthquake,
accident, strike, lockout, combination of workers, flood, embargo,
riot, activities of armed forces, war or acts of God or the public
enemy, or cancellation or loss of any major contracts; and
(d) No event has occurred and no condition exists which, upon
the consummation of the transaction contemplated hereby, constitutes a
Default or an Event of Default on the part of the Borrower under the
Agreement, the Notes or any other Loan Document either immediately or
with the lapse of time or the giving of notice, or both.
5. Conditions. This Amendment Agreement shall become effective upon
satisfaction
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of all of the following conditions:
(i) The Borrower shall deliver or cause to be delivered to the
Agent, the following:
(a) fourteen (14) counterparts of this Amendment
Agreement duly executed by the Borrower and consented to by
each of the Subsidiaries;
(b) an opinion of counsel for the Borrower and its
Subsidiaries in form and content acceptable to the Agent; and
(c) such other instruments and documents as the Agent
may reasonably request;
(ii) the Agent shall receive the written consent to this
Amendment Agreement of the Required Lenders; and
(iii) all instruments and documents incident to the
consummation of the transactions contemplated hereby shall be
satisfactory in form and substance to the Agent and its counsel; the
Agent shall have received copies of all additional agreements,
instruments and documents which it may reasonably request in connection
therewith, including evidence of the authority of Borrower and its
Subsidiaries to enter into the transactions contemplated by this
Amendment Agreement, such documents, when appropriate, to be certified
by appropriate corporate or governmental authorities; and all
proceedings of the borrower and its Subsidiaries relating to the
matters provided for herein shall be satisfactory to the Agent and its
counsel.
6. Entire Agreement. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, conditions, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and no one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that, except
as in this Amendment Agreement otherwise expressly stated, no representations,
warranties or commitments, express or implied, have been made by any other party
to the other. None of the terms or conditions of this Amendment Agreement may be
changed, modified, waived or canceled orally or otherwise, except by writing,
signed by all the parties hereto, specifying such change, modification, waiver
or cancellation of such terms or conditions, or of any proceeding or succeeding
breach thereof.
7. Full Force and Effect of Agreement. Except as hereby specifically
amended, modified or supplemented, the Agreement and all of the other Loan
Documents are hereby confirmed and ratified in all respects and shall remain in
full force and effect according to their respective terms.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement to be duly executed by their duly authorized officers, all as of the
day and year first above written.
BORROWER:
REPUBLIC INDUSTRIES, INC.
WITNESS:
By: /s/
------------------------- ------------------------------
Name: Xxxxxxx X. Xxxxxxx
------------------------- Title: Senior Vice President and
Chief Legal Counsel
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GUARANTORS:
Absolute Systems, Inc.
All Service Refuse Company
Xxxxxxxx Solid Waste, Inc.
Arlington Disposal Company, Inc.
Assured Security Company
Astro Waste Services, Inc.
Bay County Development, Inc.
Bontana Aviation, Inc.
C.S.C. Disposal and Landfill, Inc.
CANA First Corporation
Cleveland Container Service, Inc.
D&L Waste, Inc.
EETL I, Inc.
East Bay Sanitation Service, Inc.
El Centro Sanitation Service, Co.
Enviro-Comp Services, Inc.
Envirocycle, Inc.
Environmental Specialists, Inc.
Xxxxxxx Container Co., Inc.
Xxxxxxx Waste Systems, Inc.
Xxxx-Vac Inc.
Florida Refuse Service, Inc.
GF/WWF, Inc.
Garbage Disposal Service, Inc.
Grand Prairie Disposal Company, Inc.
Gulf Coast Waste Service, Inc.
Xxxxxx Management Corporation
X.X. Xxxxxx Company, Inc.
JMN, Inc.
Xxxxx Security Systems, Inc.
Xxxxx Security Systems II, Inc.
Xxxxxxxx Environmental, Inc.
Living Earth Technology Co.
Medical Waste Services, Inc.
Midwest Sanitation Service, Inc.
Nine Mile Road, Inc.
Panego I, Inc.
By: /s/
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Name Xxxxxxx X. Xxxxxxx
Title: Senior Vice President and Chief
Legal Counsel for each of the above-
name corporations
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Pepperhill Development Co., Inc.
RCLJ Construction, Inc.
R.E. Xxxxx Enterprises of Edinburg, Inc.
R.E. Xxxxx Enterprises of Texas, Inc.
Reliable Sanitation, Inc.
Republic Acquisition Company
Republic Finance Company
Republic Imperial Acquisition, Corp.
Republic/Xxxxx Landfill and Sanitation
Company
Republic Resources Company
Republic Solutions, Inc.
Republic Trademark Company
Republic Wabash Company
Republic Waste Management Company
Xxxxx Alarm of Birmingham, Inc.
Xxxxx Alarm of Cocoa, Inc.
Xxxxx Alarm of Charlotte, Inc.
Xxxxx Alarm of Ft. Xxxxx, Inc.
Xxxxx Alarm of Gainesville, Inc.
Xxxxx Alarm of Xxxxxx Beach, Inc.
Xxxxx Alarm of Lakeland, Inc.
Xxxxx Alarm of Nashville, Inc.
Xxxxx Alarm of Orlando, Inc.
Xxxxx Alarm of Sarasota, Inc.
Xxxxx Alarm of Savannah, Inc.
Xxxxx Alarm of St. Augustine, Inc.
Xxxxx Alarm of Tallahassee, Inc.
Xxxxx Alarm of Tampa Bay, Inc.
Xxxxx Alarm of West Palm Beach, Inc.
SeaBoard Waste Systems, Inc.
Southland Environmental Services, Inc.
Southland Maintenance Services, Inc.
Southland Recycling Services, Inc.
Southland Waste Systems of Jax, Inc.
Sunburst Sanitation Corporation
TATS Corporation of Jax, Inc.
Tos-It Service Company, Inc.
Trashaway Services, Inc.
Treasure Coast Refuse, Inc.
United Waste Service Corp.
By: /s/
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Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President and Chief
Legal Counsel for each of the above-
named corporation
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Wabash Valley Refuse Removal, Inc.
Waste Collection Services Corp.
Waste handling Systems, Inc.
Xxx Tex Waste Services, Inc.
By: /s/
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Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President and
Chief Legal Counsel for each
of the above-named
corporations
Republic Waste Management I Limited Partnership
By: Republic Waste Management Co.,
its General Partner
By: /s/
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Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President and Chief
Legal Counsel
Wabash Valley Landfill Company Ltd.
By: Republic Acquisition Company,
its General Partner
By: /s/
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Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President and Chief
Legal Counsel
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NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH), as Agent for the Lenders
By: /s/
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Name: Xxxx X. Xxxxxx
Title: Vice President
NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH), as Lender
By: /s/
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Name: Xxxx X. Xxxxxx
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON
as Co-Agent and a Lender
By: /s/
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Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/
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Name: Xxxxx X. Xxxxxxx
Title: Relationship Manager
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/
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Name: Xxxxx X. Xxxxx
Title: Vice President
SUNTRUST BANK, SOUTH FLORIDA, N.A.
By: /s/
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Name: Xxxxxx Xxxxxxxx
Title: Assistant Vice President
UNITED STATES NATIONAL BANK
OF OREGON
By:
-------------------------------------
Name:
Title:
ABN AMROBANK N.V.
By:
-------------------------------------
Name:
Title:
By: /
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Name:
Title:
THE BANK OF NEW YORK
By: /s/
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Name: Xxxxxxx Xxxxxxxx
Title: Senior Vice President
XXXXXXX BANK, N.A., successor to
XXXXXXX BANK OF BROWARD COUNTY,
N.A.
By: /s/
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Name: Xxxxxxx Xxxxxx
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By:
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Name:
Title:
CREDIT LYONNAIS CAYMAN ISLAND
BRANCH
By:
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Name:
Title:
LTCB TRUST COMPANY
By:
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Name:
Title:
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