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Exhibit 4.24
EXECUTION COPY
THIRD AMENDMENT TO
LIQUIDITY LOAN AGREEMENT
------------------------
THIS THIRD AMENDMENT TO LIQUIDITY LOAN AGREEMENT (this
"AMENDMENT") is dated as of March 28, 1997 among ALAMO FUNDING, L.P., a limited
partnership organized under the laws of the State of New York ("AFL"), AFL
FLEET FUNDING, INC., a New York corporation (the "GENERAL PARTNER"), and
CITIBANK, N.A., as the Liquidity Agent for the Liquidity Lenders (the
"LIQUIDITY AGENT").
W I T N E S S E T H:
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WHEREAS, AFL, the General Partner, the Liquidity Agent and
the Liquidity Lenders are parties to that certain Liquidity Loan Agreement
dated as of June 20, 1994 (as amended, restated, or modified from time to time,
the "LIQUIDITY LOAN AGREEMENT");
WHEREAS, AFL, the General Partner, the Liquidity Agent and
the Liquidity Lenders are parties to that certain Amendment to the Liquidity
Loan Agreement dated as of June 11, 1996;
WHEREAS, AFL, the General Partner, the Liquidity Agent and
the Liquidity Lenders are parties to that certain Second Amendment to the
Liquidity Loan Agreement dated as of November 25, 1996;
WHEREAS, AFL, the General Partner, the Liquidity Agent and
the Liquidity Lenders desire to amend certain provisions of the Liquidity Loan
Agreement;
NOW, THEREFORE, the parties to this Amendment hereby agree as
follows:
Section 1. 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 Definitions List
dated as of June 20, 1994 and annexed to the Liquidity Loan Agreement as ANNEX
A, as such Definitions List may be further amended, supplemented, restated or
otherwise modified from time to time.
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Section 2. AMENDMENTS TO THE LIQUIDITY LOAN AGREEMENT.
(a) AMENDMENT TO SECTION 1.1. ANNEX A to the
Liquidity Loan Agreement as referenced in Section 1.1
thereto is hereby amended as follows:
(1) The following term is hereby added:
"REPUBLIC GUARANTY" means the Guaranty dated
March 27, 1997 by Republic Industries, Inc.
in favor of AFL, as amended, supplemented or
otherwise modified from time to time in
accordance with the terms thereof."
(2) The definition of "SCHEDULED LIQUIDITY
COMMITMENT TERMINATION DATE" is hereby deleted in its
entirety and replaced with the following:
"SCHEDULED LIQUIDITY COMMITMENT TERMINATION
DATE" means, for any Liquidity Lender, the
date that is 364 days from the date of the
Third Amendment to Liquidity Loan
Agreement, as such date may be extended
from time to time."
(3) The definition of "RELATED DOCUMENTS" is hereby
amended by adding the phrase "the Republic Guaranty,"
immediately following the phrase "the Loan Agreement,".
(b) AMENDMENT TO SECTION 8.1.1(a). Section 8.1.1(a)
of the Liquidity Loan Agreement is hereby amended to read in
its entirety as follows:
"(a) In the event the Republic Guaranty is
terminated in accordance with Section 13
thereof, as soon as available and in any
event within 90 days after the end of each
fiscal year of Alamo, a copy of the
consolidated and consolidating balance
sheets of Alamo and its Subsidiaries as at
the end of such fiscal year, together with
the related statements of earnings,
stockholders' equity and cash flows for
such fiscal year, prepared in reasonable
detail and in accordance with GAAP,
certified without a going concern or like
qualification by Xxxxxx Xxxxxxxx LLP & Co.
(or such other independent certified public
accountants of recognized national standing
as shall be selected by Alamo);"
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(c) AMENDMENT TO SECTION 8.1.1(b). Section 8.1.1(b)
of the Liquidity Loan Agreement is hereby amended to read in
its entirety as follows:
"(b) In the event the Republic Guaranty is
terminated in accordance with Section 13
thereof, as soon as available, but in any
event within 60 days after the end of each
fiscal quarter (except the fourth fiscal
quarter) of Alamo, copies of the unaudited
consolidated and consolidating balance
sheets of Alamo and its Subsidiaries as at
the end of such fiscal quarter and the
related unaudited statements of earnings,
stockholders' equity and cash flows for the
portion of the fiscal year through such
fiscal quarter and as to the statements of
earnings for such fiscal quarter, in each
case setting forth in comparative form the
figures for the corresponding periods of
the previous fiscal year, prepared in
reasonable detail and in accordance with
GAAP and certified by the chief financial
or accounting officer of Alamo as
presenting fairly the financial condition
and results of operations of Alamo (subject
to normal year-end adjustments);"
(d) AMENDMENT TO SECTION 8.1.1(d). Section 8.1.1(d)
of the Liquidity Loan Agreement is hereby amended to read in
its entirety as follows:
"(d) In the event the Republic Guaranty is
terminated in accordance with Section 13
thereof, at the time of delivery of the
items described in clauses (a) and (b)
above, a consolidating balance sheet and
statement of earnings in respect of Alamo
and its Subsidiaries as of such date or for
the year to date period ending on such
date;"
Section 3. CONDITIONS OF EFFECTIVENESS. The following
constitute conditions precedent to the effectiveness of this
Amendment:
(a) Execution and delivery of this Amendment by AFL,
the General Partner and the Liquidity Agent;
(b) The Liquidity Agent and 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
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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 and the Credit Enhancer shall each
have delivered written consent to this Amendment evidenced by their
execution of ANNEX A hereto;
(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;
(f) The Liquidity Agent shall have received (i) from AFL
evidence that all necessary partnership action has been taken to
authorize the execution, delivery and performance of this Amendment
and (ii) from the General Partner (x) 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 (y) an incumbency certificate thereof with respect to
its officers, agents or other representatives authorized to execute
this Amendment; and
(g) The Liquidity Agent shall have received an Opinion of
Counsel to AFL to the effect that this Amendment has been duly
authorized, executed and delivered and is the legal, valid and binding
obligation of AFL, enforceable against it in accordance with its
terms, subject to the exceptions set forth therein.
Section 4. CONTINUATION OF REPRESENTATIONS AND WARRANTIES.
AFL represents and warrants to the Liquidity Agent and each Liquidity Lender
that the representations and warranties in Article VII of the Liquidity 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 5. 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 "Liquidity Loan Agreement" or words of like import referring to
the Liquidity Loan Agreement shall
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mean and be a reference to the Liquidity 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.
(b) The Liquidity 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 6. 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 7. 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, 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 FUNDING, L.P.
By: AFL FLEET FUNDING, INC.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
AFL FLEET FUNDING, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
CITIBANK, N.A., as Liquidity Agent
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Assistant Vice President
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ANNEX A
CONSENT OF LIQUIDITY LENDERS AND CREDIT ENHANCER TO
THIRD AMENDMENT TO LIQUIDITY LOAN AGREEMENT,
THIRD AMENDMENT TO LETTER OF CREDIT REIMBURSEMENT
AGREEMENT, AND FOURTH AMENDMENT TO LOAN AGREEMENT
The undersigned, as Liquidity Lenders under the Liquidity
Loan Agreement dated as of June 20, 1994 among Alamo Funding, L.P., AFL Fleet
Funding, Inc., certain financial institutions party thereto and Citibank, N.A.,
as Liquidity Agent, as amended from time to time prior to the date hereof (the
"LIQUIDITY AGREEMENT"), and as Credit Enhancer under the Letter of Credit
Reimbursement Agreement, dated as of June 20, 1994, among Alamo Rent-A-Car,
Inc., AFL Fleet Funding, Inc., Alamo Funding, L.P. and Credit Enhancer, as
amended from time to time prior to the date hereof (the "L/C AGREEMENT"),
hereby consent to the execution and delivery by the parties thereto of (i) the
Fourth Amendment, dated March 28, 1997, to the Loan Agreement, dated as of June
20, 1994, between Alamo Rent-A-Car, Inc. and Alamo Funding, L.P., as such Loan
Agreement has been amended from time to time prior to the date hereof (the
"LOAN AGREEMENT"), (ii) the Third Amendment to the L/C Agreement, dated as of
March 28, 1997 and (iii) the Third Amendment to the Liquidity Loan Agreement,
dated as of March 28, 1997.
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IN WITNESS WHEREOF, the undersigned have caused this Consent
to be executed and delivered as of March __, 1997 by their respective officers
thereunto duly authorized.
LIQUIDITY LOAN COMMITMENT LIQUIDITY LENDER
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$15,000,000 BANK BRUSSELS XXXXXXX,
NEW YORK BRANCH
By:_________________________
Name:
Title:
By:_________________________
Name:
Title:
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IN WITNESS WHEREOF, the undersigned have caused this Consent
to be executed and delivered as of March 28, 1997 by their respective officers
thereunto duly authorized.
LIQUIDITY LOAN COMMITMENT LIQUIDITY LENDER
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$50,000,000 BANK OF MONTREAL
By: /s/ Xxxxxx X. XxXxxxx
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Name: Xxxxxx X. XxXxxxx
Title: Director
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IN WITNESS WHEREOF, the undersigned have caused this Consent
to be executed and delivered as of March 28, 1997 by their respective officers
thereunto duly authorized.
LIQUIDITY LOAN COMMITMENT LIQUIDITY LENDER
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$50,000,000 THE BANK OF NEW YORK
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
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IN WITNESS WHEREOF, the undersigned have caused this Consent
to be executed and delivered as of March 28, 1997 by their respective officers
thereunto duly authorized.
LIQUIDITY LOAN COMMITMENT LIQUIDITY LENDER
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$200,000,000 THE BANK OF TOKYO-MITSUBISHI,
LTD., NEW YORK BRANCH
By: /s/
-----------------------------
Name:
Title:
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IN WITNESS WHEREOF, the undersigned have caused this Consent
to be executed and delivered as of March 28, 1997 by their respective officers
thereunto duly authorized.
LIQUIDITY LOAN COMMITMENT LIQUIDITY LENDER
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$30,000,000 BAYERISCHE HYPOTHEKEN-UND
WECHSEL-BANK
AKTIENGESELLSCHAFT,
NEW YORK BRANCH
By: /s/ Xxx Xxxxx
--------------------------
Name: Xxx Xxxxx
Title:
By: /s/ X.X. Xxxxxxx
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Name: X.X. Xxxxxxx
Title: FVP
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IN WITNESS WHEREOF, the undersigned have caused this Consent
to be executed and delivered as of March 28, 1997 by their respective officers
thereunto duly authorized.
LIQUIDITY LOAN COMMITMENT LIQUIDITY LENDER
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$25,000,000 BOATMEN'S NATIONAL BANK
OF ST. LOUIS
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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IN WITNESS WHEREOF, the undersigned have caused this Consent
to be executed and delivered as of March 28, 1997 by their respective officers
thereunto duly authorized.
LIQUIDITY LOAN COMMITMENT LIQUIDITY LENDER
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$421,000,000 CITIBANK, N.A.
By: /s/ Xxxx Xxxxxx
-----------------------
Name: Xxxx Xxxxxx
Title: Attorney-in-fact
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IN WITNESS WHEREOF, the undersigned have caused this Consent
to be executed and delivered as of March 28, 1997 by their respective officers
thereunto duly authorized.
LIQUIDITY LOAN COMMITMENT LIQUIDITY LENDER
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$50,000,000 XXXXXXXXXXX XX, XXXXXXX AGENCY
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: SVP & Manager
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: AVP
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IN WITNESS WHEREOF, the undersigned have caused this Consent
to be executed and delivered as of March 28, 1997 by their respective officers
thereunto duly authorized.
LIQUIDITY LOAN COMMITMENT LIQUIDITY LENDER
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$30,000,000 COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
By: /s/
-------------------------
Name:
Title: Deputy General Manager
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IN WITNESS WHEREOF, the undersigned have caused this Consent
to be executed and delivered as of March __, 1997 by their respective officers
thereunto duly authorized.
LIQUIDITY LOAN COMMITMENT LIQUIDITY LENDER
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$50,000,000 DRESDNER BANK AG NEW YORK BRANCH
AND GRAND CAYMAN BRANCH
By: ________________________
Name:
Title:
By: ________________________
Name:
Title:
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IN WITNESS WHEREOF, the undersigned have caused this Consent
to be executed and delivered as of March __, 1997 by their respective officers
thereunto duly authorized.
LIQUIDITY LOAN COMMITMENT LIQUIDITY LENDER
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$50,000,000 FIRST UNION NATIONAL BANK
OF FLORIDA
By: ________________________
Name:
Title:
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IN WITNESS WHEREOF, the undersigned have caused this Consent
to be executed and delivered as of March 28, 1997 by their respective officers
thereunto duly authorized.
LIQUIDITY LOAN COMMITMENT LIQUIDITY LENDER
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$10,000,000 KREDIETBANK N.V.
By: /s/
----------------------------
Name:
Title:
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IN WITNESS WHEREOF, the undersigned have caused this Consent
to be executed and delivered as of March 28, 1997 by their respective officers
thereunto duly authorized.
LIQUIDITY LOAN COMMITMENT LIQUIDITY LENDER
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$50,000,000 ING (U.S.) CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
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IN WITNESS WHEREOF, the undersigned have caused this Consent
to be executed and delivered as of March 28, 1997 by their respective officers
thereunto duly authorized.
LIQUIDITY LOAN COMMITMENT LIQUIDITY LENDER
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$50,000,000 XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Vice President
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IN WITNESS WHEREOF, the undersigned have caused this Consent
to be executed and delivered as of March 28, 1997 by their respective officers
thereunto duly authorized.
LIQUIDITY LOAN COMMITMENT LIQUIDITY LENDER
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$15,000,000 SOCIETE GENERALE
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Vice President, Manager
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IN WITNESS WHEREOF, the undersigned have caused this Consent
to be executed and delivered as of March 28, 1997 by their respective officers
thereunto duly authorized.
CREDIT SUISSE
NEW YORK BRANCH,
as 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
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IN WITNESS WHEREOF, the undersigned have caused this Consent
to be executed and delivered as of March 28, 1997 by their respective officers
thereunto duly authorized.
$271,000,000 NATIONSBANK, N.A. (SOUTH)
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
