Exhibit 4.48
SURETY BOND GUARANTEE AND ASSUMPTION AGREEMENT
dated as of August 30, 2001, made by each of signatories hereto (together with
any other entity that may become a party hereto as provided herein, the
"Guarantors"), in favor of Liberty Mutual Insurance Company ("Liberty").
W I T N E S S E T H:
WHEREAS, pursuant to the Indemnity Agreements, Liberty, as
surety, has issued, or is liable as co-surety or reinsurer under, Surety Bond
Coverage for the benefit of, on behalf of, or at the request of ANC Rental
Corporation ("ANC") or certain of its direct and indirect subsidiaries, and
Liberty has been requested by ANC to issue, extend, renew, continue, increase
and/or permit to remain outstanding and refrain from canceling the Liberty Bonds
(as defined in the ANC Liberty Agreement); and
WHEREAS, the Liberty Bonds currently do, and in the future
shall, in part enable ANC to make valuable transfers to one or more of the
Guarantors in connection with the operation of their respective and
inter-related businesses; and
WHEREAS, ANC and the Guarantors are engaged in related
businesses, and each Guarantor will derive substantial direct and indirect
benefit from the issuance, extension, renewal, continuance and/or increase of
the Liberty Bonds, from Liberty's refraining from canceling the Liberty Bonds,
and from the execution of the Agreement dated August 30, 2001, between Liberty
and ANC, copy of which is annexed hereto as Exhibit "A" (as the same may be
amended, supplemented or otherwise modified from time to time, in accordance
with its terms, the "ANC Liberty Agreement"); and
WHEREAS, it is a condition precedent to Liberty's execution of
the ANC Liberty Agreement that the Guarantors shall have executed and delivered
this Surety Bond Guarantee and Assumption Agreement to Liberty;
NOW, THEREFORE, in consideration of the premises and to induce
Liberty to enter into the ANC Liberty Agreement and to issue, extend, renew,
continue, increase and/or permit to remain outstanding and refrain from
canceling such Surety Bond Coverage (as defined in the ANC Liberty Agreement)
pursuant to the terms of the ANC Liberty Agreement, together with other and
further consideration the receipt and sufficiency of which is hereby
acknowledged, each Guarantor agrees with Liberty as follows:
1. Definitions
1.1 As used herein, the following terms have the following
meanings:
"Guarantor Surety Bond Obligations" shall mean, with respect
to all Guarantors under this or any similar Surety Bond Guarantee, all
obligations and liabilities of all such Guarantors, whether joint or several,
direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with this Surety Bond Guarantee.
"Obligations" shall mean the Surety Bond Obligations and the
Guarantor Surety Bond Obligations, collectively.
"Surety Bond Guarantee" shall mean this Surety Bond Guarantee
And Assumption Agreement, as the same may be amended, supplemented or otherwise
modified from time to time.
"Surety Bond Obligations" shall mean, in respect of any
Liberty Bond, (a) the obligations of the Surety Bond Account Party (as defined
in the ANC Liberty Agreement), and of any indemnitor, to Liberty under any of
the Indemnity Agreements (as defined in the ANC Liberty Agreement) or under any
guarantee, including but not limited to the obligations to exonerate, indemnify,
hold harmless, secure, collateralize and/or reimburse Liberty, together with any
interest, fees, costs, expenses (including the costs and expenses of enforcing
any indemnities) or other amounts as may be provided under the terms of such
Indemnity Agreements or under any guarantee (including, without limitation,
interest accruing at the then applicable rate after the filing of any petition
in bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to such Surety Bond Account Party or indemnitor, whether or
not a claim for post-filing or post-petition interest is allowed in such
proceeding), whether direct or indirect, absolute or contingent, due or to
become due or now existing or hereafter incurred, and (b) any Guarantor Surety
Bond Obligations with respect to such Liberty Bond, and (c) any obligations of
ANC or of any of its subsidiaries under the ANC Liberty Agreement; PROVIDED that
the Surety Bond Obligations shall be reduced by the amount of proceeds actually
received by or on behalf of Liberty in respect of any cash or letter of credit
collateral to the extent application of such proceeds permanently reduces the
remaining contingent liability of Liberty in respect of such Surety Bond
Obligation.
All other capitalized terms used but not defined herein shall
have the same meanings specified in the ANC Liberty Agreement.
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2. Guarantee And Assumption
2.1 By executing and delivering this Surety Bond Guarantee,
the Guarantors hereby:
(a) jointly and severally, unconditionally and
irrevocably, guarantee to Liberty and its successors,
transferees and assigns, the prompt and complete
payment and performance when due of the Obligations;
and
(b) become parties to each of the Indemnity Agreements as
an Indemnitor thereunder with the same force and
effect as if originally named therein as an
Indemnitor and, without limiting the generality of
the foregoing, (i) hereby expressly assume all
obligations and liabilities of an Indemnitor
thereunder, and (ii) hereby expressly represent and
warrant that all Liberty Bonds, whether issued prior
to or subsequent to the date hereof, are deemed to
have been issued upon its written request in its
capacity as Indemnitor.
2.2 Anything herein to the contrary notwithstanding, the
maximum liability of each Guarantor hereunder shall in no event exceed the
amount which can be guaranteed or assumed by such Guarantor under applicable
federal and state laws, including laws relating to the insolvency of debtors,
fraudulent conveyance or transfer or laws affecting the rights of creditors
generally (after giving effect to the right of contribution established in
Section 2.5). Each Guarantor agrees that the Obligations may at any time and
from time to time exceed the amount of the liability of such Guarantor hereunder
without impairing the guarantee or assumption contained in this Surety Bond
Guarantee or affecting the rights and remedies of Liberty hereunder.
2.3 Notwithstanding the provisions of paragraph 15 of the
Indemnity Agreement dated August 4, 2000, or of paragraph 16 of the Indemnity
Agreement dated October 31, 2000, respecting "termination," the obligations of
the Guarantors under this Surety Bond Guarantee shall remain in full force and
effect until such date on which all risk undertaken by Liberty, whether residual
or future, under all Liberty Bonds, has been, in Liberty's sole discretion,
conclusively terminated, and no such Guarantor may unilaterally terminate its
obligations hereunder for any of the Obligations, whether incurred or to be
incurred.
2.4 Subject to the proviso to the definition of "Surety Bond
Obligations", no payment made or collateral delivered by ANC, any of the
Guarantors, any other guarantor or indemnitor or any other Person, or received
or collected by Liberty from ANC, any of the Guarantors, any other guarantor or
indemnitor or Person, by virtue of any transaction, action or proceeding or any
set-off, recoupment or appropriation or application at any time or from time to
time in reduction of, in payment of or to secure
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any of the Obligations shall be deemed to modify, reduce, release or otherwise
affect the liability of any Guarantor hereunder which shall, notwithstanding any
such payment or delivery (other than any payment made by or collected from such
Guarantor), remain liable in full hereunder until this Surety Bond Guarantee
shall terminate pursuant to its terms.
2.5 Each Guarantor hereby agrees that to the extent that a
Guarantor shall have paid more than its proportionate share of any payment made
hereunder, such Guarantor shall be entitled to seek and receive contribution
from and against any other Guarantor hereunder which has not paid its
proportionate share of such payment. Each Guarantor's right of contribution
shall be subject to the terms and conditions of section 2.6 herein below. The
provisions of this section 2.5 shall in no respect limit the obligations and
liabilities of any Guarantor to Liberty, and each Guarantor shall remain liable
to Liberty in full hereunder.
2.6 Notwithstanding any payment made by any Guarantor
hereunder or any set-off, recoupment or application of funds of any Guarantor by
Liberty, no Guarantor shall be entitled to be subrogated to any of the rights of
Liberty or the Collateral Trustee against ANC or any other Guarantor or any
collateral security or guarantee or right of offset or recoupment held by
Liberty for the payment and performance of the Obligations, nor shall any
Guarantor seek or be entitled to seek any contribution or reimbursement from ANC
or any other Guarantor in respect of payments made by such Guarantor hereunder,
until all the Obligations have been discharged in full as determined by Liberty
in its sole discretion. If any amount shall be paid to any Guarantor on account
of such subrogation rights at any time when all of the Obligations shall not
have been discharged in full, such amount shall be held by such Guarantor in
trust for Liberty, segregated from other funds of such Guarantor, and shall,
forthwith upon receipt by such Guarantor, be turned over to Liberty in the exact
form received by such Guarantor (duly indorsed by such Guarantor to Liberty, if
required), to be applied against the Obligations, whether matured or unmatured,
absolute or contingent, due or to become due or now existing or hereafter
incurred, in such order as Liberty may determine.
2.7 Each Guarantor shall remain fully obligated hereunder
notwithstanding that, Liberty may, without reserving any rights against any
Guarantor and without notice to or further assent by any Guarantor, (a) rescind,
modify, release, waive or otherwise amend or alter the obligations or liability
of ANC or of any other Guarantors hereunder with respect to any of the
Obligations (b) release, surrender, liquidate, sell or exchange any collateral
security, guarantee or right of offset at any time held by or for the benefit of
Liberty, or (c) amend, modify, supplement or terminate, in whole or in part, as
Liberty deems advisable from time to time, the ANC Liberty Agreement, the
Security Documentation and any other documents executed and delivered in
connection therewith. Liberty shall have no obligation to protect, secure,
perfect or
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insure any lien at any time held by Liberty or on its behalf as security for the
Obligations, or any property subject thereto.
2.8 Each Guarantor waives any and all notice of the creation,
renewal, extension or accrual of any of the Obligations and notice of or proof
or reliance by Liberty upon the guarantee and assumption contained in this
Surety Bond Guarantee. The Obligations, and any of them, shall conclusively be
deemed to have been created, contracted and incurred, or renewed, extended,
amended or waived, in reliance upon the guarantee and assumption contained in
this Surety Bond Guarantee, and all dealings between ANC and the Guarantors, on
the one hand, and Liberty, on the other hand, likewise shall be conclusively
presumed to have been had or consummated in reliance upon the guarantee and
assumption contained in this Surety Bond Guarantee. Each Guarantor waives, to
the extent permitted by law, diligence, presentment, protest, demand for payment
and notice of default or nonpayment to or upon ANC or any of the Guarantors with
respect to the Obligations. Each Guarantor understands and agrees that the
guarantee contained in this Surety Bond Guarantee shall be construed as a
continuing, absolute and unconditional guarantee of payment without regard to
(a) the validity or enforceability of the ANC Liberty Agreement, the Indemnity
Agreements or any of the other Surety Bond Documents; any of the Obligations or
any other collateral security therefor or guarantee or right of offset or
recoupment with respect thereto at any time or from time to time held by Liberty
or on its behalf, (b) any defense, set-off, recoupment or counterclaim (other
than a defense of payment or performance) which may at any time be available to
or be asserted by ANC or any other Person against Liberty, or (c) any other
circumstance whatsoever (with or without notice to or knowledge of ANC or such
Guarantor) which constitutes, or might be construed to constitute, an equitable
or legal discharge of ANC for the Obligations, or of such Guarantor under the
guarantee contained in this Surety Bond Guarantee, in bankruptcy or in any other
instance. When making any demand hereunder or otherwise pursuing its rights and
remedies hereunder against any Guarantor, Liberty may, but shall be under no
obligation to, make a similar demand on or otherwise pursue such rights and
remedies as it may have against ANC, any other Guarantor or any other Person or
against any collateral security or guarantee for the Obligations or any right of
offset or recoupment with respect thereto, and any failure by Liberty to make
any such demand, to pursue such other rights or remedies or to collect any
payments from ANC, any other Guarantor or any other Person or to realize upon
any such collateral security or guarantee or to exercise any such right of
offset or recoupment, or any release of ANC, any other Guarantor or any other
Person or any such collateral security, guarantee or right of offset, shall not
relieve any Guarantor of any obligation or liability hereunder, and shall not
impair or affect the rights and remedies, whether express, implied or available
as a matter of law, equity, contract or otherwise, of Liberty against any
Guarantor. For the purposes hereof, "demand" shall include the commencement and
continuation of any legal proceedings.
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2.9 The guarantee contained in this Surety Bond Guarantee
shall continue to be effective, or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any of the Obligations is rescinded or
must otherwise be restored or returned by Liberty for any reason, including
without limitation by reason of the insolvency, bankruptcy, dissolution,
liquidation or reorganization of ANC or any Guarantor, or upon or as a result of
the appointment of a receiver, intervenor or conservator of, or trustee or
similar officer for, ANC or any Guarantor or any substantial part of its
property, or otherwise, all as though such payments had not been made.
3. Representations And Warranties
3.1 To induce Liberty to enter into the ANC Liberty Agreement
and to issue, extend, renew, continue, increase and/or permit to remain
outstanding and refrain from canceling the Liberty Bonds, each Guarantor hereby
represents and warrants to Liberty that the representations and warranties set
forth in Section 8 of the ANC Liberty Agreement as they relate to such
Guarantor, each of which is hereby incorporated herein by reference, are true
and correct, and Liberty shall be entitled to rely on each of them as if they
were fully set forth herein, PROVIDED that each reference in each such
representation and warranty to ANC's knowledge shall, for the purposes of this
Section 3, be deemed to be a reference to such Guarantor's knowledge.
4. Miscellaneous
4.1 None of the terms or provisions of this Surety Bond
Guarantee may be waived, amended, supplemented or otherwise modified except in
writing executed by Liberty and the respective Guarantor to which the waiver,
amendment, supplementation or modification is to apply.
4.2 Liberty shall not by any act (except by a written
instrument pursuant to Section 4.1), delay, indulgence, omission or otherwise be
deemed to have waived any right or remedy hereunder or to have acquiesced in any
default or event of default under this Surety Bond Guarantee, the ANC Liberty
Agreement, any of the Indemnity Agreements or any of the other Surety Bond
Documents. No failure to exercise, nor any delay in exercising, on the part of
Liberty, any right, power or privilege hereunder, shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder, under the ANC Liberty Agreement, under any of the Indemnity
Agreements or under or with respect to any of the other Surety Bond Documents,
shall preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. A waiver by Liberty of any right or remedy
hereunder, or under the ANC Liberty Agreement, under any of the Indemnity
Agreements or under or with respect to any of the other Surety Bond Documents,
on any one or more occasions shall not be construed as a bar to any right or
remedy which Liberty would otherwise have on any future occasion. The rights and
remedies herein provided are cumulative, may be exercised singly or concurrently
and are not exclusive of any other rights or remedies provided by law.
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4.3 In addition to, and not in lieu of, the remedies provided
under the Indemnity Agreements, each Guarantor agrees to indemnify and reimburse
Liberty for, and hold Liberty harmless against, (a) all its costs and expenses
incurred in collecting against such Guarantor under this Surety Bond Guarantee
or otherwise enforcing or preserving any rights under this Surety Bond
Guarantee, the ANC Liberty Agreement, the Indemnity Agreements assumed hereunder
and any other Surety Bond Documents to which such Guarantor is a party,
including, without limitation, the reasonable fees and disbursements of counsel
to Liberty, (b) any and all liabilities with respect to, or resulting from any
delay in paying, and all stamp, excise, sales, transfer, recording or other
taxes which may be payable or determined to be payable in connection with any of
the transactions contemplated by this Surety Bond Guarantee, and (c) any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with respect
to the execution, delivery, enforcement (including the enforcement of this
provision), performance and administration of this Surety Bond Guarantee. The
agreements in this Section shall survive payment or discharge of the
Obligations.
4.4 This Surety Bond Guarantee shall be binding upon the
successors and assigns of each Guarantor and shall inure to the benefit of
Liberty and its successors and assigns, PROVIDED that no Guarantor may assign,
transfer or delegate any of its rights or obligations under this Surety Bond
Guarantee without the prior written consent of Liberty, and PROVIDED FURTHER
that nothing herein shall prevent any Guarantor from merging or consolidating
into or with, or transferring all or substantially all of its assets to, any
other entity to the extent permitted by the terms of the ANC Liberty Agreement.
4.5 This Surety Bond Guarantee may be executed by one or more
of the parties to this Surety Bond Guarantee on any number of separate
counterparts (including via telecopier), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument.
4.6 Any provision of this Surety Bond Guarantee which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
4.7 This Surety Bond Guarantee represents the agreement of the
Guarantors and Liberty with respect to the subject matter hereof, and there are
no promises, undertakings, representations or warranties by Liberty relative to
the subject matter hereof not expressly set forth or referred to herein.
4.8 THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF
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NEW YORK AS APPLIED TO AGREEMENTS EXECUTED AND TO BE PERFORMED EXCLUSIVELY
WITHIN SUCH STATE, WITHOUT REGARD TO CHOICE OF LAW PRINCIPLES. THE UNDERSIGNED
AGREE THAT ANY DISPUTE BETWEEN THE UNDERSIGNED AND LIBERTY WILL AT LIBERTY'S
OPTION BE RESOLVED EXCLUSIVELY IN A COURT OF COMPETENT JURISDICTION LOCATED IN
THE STATE OF NEW YORK AND COUNTY OF NEW YORK. EACH GUARANTOR FURTHER CONSENTS TO
THE PERSONAL JURISDICTION AND VENUE OF ANY COURT IN WHICH ANY ACTION MAY BE
BROUGHT AGAINST IT BY LIBERTY AND TO SERVICE OF PROCESS IN ANY SUCH ACTION BY
CERTIFIED MAIL, RETURN RECEIPT REQUESTED OR BY ANY MEANS GIVING ACTUAL NOTICE OF
SUCH PROCESS TO SUCH GUARANTOR. EACH GUARANTOR HEREBY WAIVES ANY RIGHT TO TRIAL
BY JURY IN ANY SUCH ACTION.
4.9 Each Guarantor agrees that (a) it has been advised by
counsel in the negotiation, execution and delivery of this Surety Bond
Guarantee, (b) Liberty has no fiduciary relationship with or duty to any
Guarantor arising out of or in connection with this Surety Bond Guarantee, the
ANC Liberty Agreement, any of the Indemnity Agreements or any of the other
Surety Bond Documents, and (c) no joint venture is created hereby or otherwise
exists by virtue of the transactions contemplated hereby among the Guarantors
and Liberty.
4.10 As required under the terms of paragraph 2.2 of the ANC
Liberty Agreement, ANC shall cause those subsidiaries identified in paragraph
2.2 of the ANC Liberty Agreement to become a Guarantor under this Surety Bond
Guarantee by executing and delivering an Assumption Agreement in the form
annexed hereto as Exhibit "B".
4.11 Subject to Section 2.9, this Surety Bond Guarantee shall
terminate and be of no force and effect upon full discharge of all Surety Bond
Obligations.
IN WITNESS HEREOF, each of the undersigned has caused this
Surety Bond Guarantee to be duly executed and delivered as of the date first
above written.
ANC RENTAL CORPORATION,
for purposes of Section 4.10 only
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Sr. Vice President & Xxxxxxxxx
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XXXXX XXXX-X-XXX (XXXXXX), 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.
LIABILITY MANAGEMENT COMPANIES
HOLDING, INC.
NATIONAL CAR RENTAL LICENSING, INC.
NATIONAL CAR RENTAL SYSTEM, INC.
NCR AFFILIATE SERVICER, INC.
NCRAS MANAGEMENT, LP
By: NCRAS-GP, Inc., its general
partner
NCRAS-GP, INC.
REPUBLIC XXX XXXXXX PARTNER, INC.
REPUBLIC INDUSTRIES AUTOMOTIVE RENTAL
GROUP (BELGIUM) INC.
SPIRIT RENT-A-CAR, INC.
SRAC MANAGEMENT, LP
By: SRAC-GP, Inc., its general
partner
SRAC-GP, INC.
SRAC-TM, INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Treasurer
ALAMO RENT-A-CAR, LLC
By: /s/ O. Xxxxx Xxxxx, XX
-------------------------------------
Name: O. Xxxxx Xxxxx, XX
Title: Vice President & Secretary
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ANC FINANCIAL CORPORATION
ANC FINANCIAL PROPERTIES LLC
ANC IT COLLECTOR CORPORATION
ARC-TM PROPERTIES LLC
NCR AFFILIATE SERVICER PROPERTIES, LLC
ANC INFORMATION TECHNOLOGY HOLDING, INC.
ANC INFORMATION TECHNOLOGY, INC.
ANC INFORMATION TECHNOLOGY, L.P.
By: ANC INFORMATION TECHNOLOGY, INC.,
its general partner
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Treasurer
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