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EXHIBIT 4.12
EXECUTION COPY
SECOND AMENDMENT TO
LIQUIDITY LOAN AGREEMENT
THIS SECOND AMENDMENT TO LIQUIDITY LOAN AGREEMENT (this "Amendment") is
dated as of November 25, 1995 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
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 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.
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 definition of "Alamo" is hereby amended in
its entirety as follows:
""Alamo" means Alamo Rent-A-Car, Inc., a Florida corporation,
and its permitted successors and assigns"; and
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(2) the definition of "Multiple Employer Plan" is
hereby amended by inserting "4053" immediately following the
phrase "have liability under Section" on the seventh line
thereof.
(3) the definition of "Partnership Agreement" is
amended by adding at the end of such definition after "as
limited partner," the following phrase, "as such Agreement of
Limited Partnership may be amended or modified from time to
time in accordance with the provisions of the Related
Documents."
(4) the definition of "Pension Plan" is hereby
amended by deleting the parenthetical "(other than a
Multiemployer Plan or a Multiple Employer Plan)" and not
replacing it.
(5) the definition of "Required Enhancement Amount"
is hereby amended by deleting the reference to "9%" and
replacing it with "9.5%".
(b) Amendment to Section 8.1.1. Section 8.1.1(f) is hereby
amended by deleting the phrase "(ii) no Rating Agency has determined that the
face amount of the Letter of Credit must be increased," and replacing it with
"(ii) no Rating Agency has determined that the Required Enhancement Amount must
be increased."
(c) Amendment to Section 8.2.3. Section 8.2.3 of the Liquidity
Loan Agreement is hereby amended to read in its entirety as follows:
"SECTION 8.2.3. Consolidations and Mergers. Except for the
merger of a wholly owned subsidiary of Republic Industries, Inc., a Delaware
corporation, with and into the General Partner, each of the General Partner and
AFL will not, except as may be permitted by the express written approval of the
Required Liquidity Providers, merge with and into, enter into any joint venture
or other association with, or consolidate with, any other Person."
(d) Amendment to Section 8.2.12. Section 8.2.13 of the
Liquidity Loan Agreement is hereby amended by deleting "June 20, 1994" and
replacing it with "November 25, 1996."
Section 3. Increase of Aggregate Liquidity Loan Commitment.
Effective simultaneously with the effectiveness of this Amendment to the
Liquidity Loan Agreement and the Liquidity Loan Commitment Agreements annexed
hereto as Annex E, the Aggregate Liquidity Loan Commitment will increase to
$1,267,000,000 through the increase of the commitments of certain Liquidity
Lenders, each of whom through the execution of this Amendment and their
respective Liquidity Commitment Agreements have given their written consent to
such increase.
Section 4. Conditions of Effectiveness. The following
constitute conditions precedent to the effectiveness of this Amendment:
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(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 ▇▇▇▇▇'▇ to the effect that his 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 Depository, 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 Depository, the Agent, the
Liquidity Agent and each Dealer;
(f) Each Liquidity Lender or Eligible Liquidity Lender, as the
case may be, described in Section 3 of this Amendment, and AFL shall
have executed and delivered to the Liquidity Agent a Liquidity
Commitment Agreement as set forth in Annex B hereto;
(g) The Letter of Credit Amount shall be increased to the
Required Enhancement Amount simultaneously with giving effect to the
increase in the Aggregate Liquidity Loan Commitment as set forth in
Section 3 of this Amendment;
(h) 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
(i) 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 5. 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
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the extent such representatives and warranties expressly refer to an earlier
date, in which case they shall be true and correct as of such earlier date).
Section 6. 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 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) Except as specifically amended above, the Liquidity Loan
Agreement is and shall continue to be in full force and effect and is hereby
ratified and confirmed in all respects.
Section 7. 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 8. 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: ALAMO FLEET FUNDING, INC.,
its General Partner
By: /s/
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
AFL FLEET FUNDING, INC.
By: /s/
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Secretary
CITIBANK, N.A., as Liquidity Agent
By: /s/
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
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ANNEX A
CONSENT OF LIQUIDITY LENDERS AND CREDIT ENHANCER TO
SECOND AMENDMENT TO LIQUIDITY LOAN AGREEMENT,
SECOND AMENDMENT TO LETTER OF CREDIT REIMBURSEMENT
AGREEMENT, AND THIRD 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 Third
Amendment, dated November 25, 1996, 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 Second Amendment to the L/C Agreement, dated as of
November 25, 1996, (iii) the Second Amendment to the Liquidity Agreement, dated
as of November 25, 1996 (the "Liquidity Amendment") and (iv) the Liquidity
Commitment Agreements referenced in Section 3 to the Liquidity Amendment.
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IN WITNESS WHEREOF, the undersigned have caused this Consent
to be executed and delivered as of November 25, 1996 by their respective
officers thereunto duly authorized.
LIQUIDITY LOAN COMMITMENT LIQUIDITY LENDER
$50,000,000 BANK BRUSSELS ▇▇▇▇▇▇▇,
NEW YORK BRANCH
By: /s/
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
By: /s/
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇. Vangaever
Title: Senior Vice President Credit
$50,000,000 BANK OF MONTREAL
By: /s/
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
$50,000,000 BANK OF NEW YORK
By: /s/
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
$10,000,000 THE BANK OF TOKYO-MITSUBISHI, LTD., NEW
YORK BRANCH
By: /s/
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Attorney-in-Fact
$30,000,000 BAYERISCHE HYPOTHEREN-UND WECHSEL-
BANK AKTIENGESELLSCHAFT, NEW YORK
BRANCH
By: /s/
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Name: ▇▇▇ ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇
Title: Banking Officer FVP
$25,000,000 BOATMEN'S NATIONAL BANK OF ST. LOUIS
By: /s/
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Corporate Banking Officer
$40,000,000 CITIBANK, N.A.
By: /s/
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Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
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LIQUIDITY LOAN COMMITMENT LIQUIDITY LENDER
$50,000,000 ▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇ AGENCY
By: /s/ /s/
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President Asst. VP
$30,000,000 COOPERATIVE CENTRALE RAIFFEISEN-
BOERENEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
By: /s/
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Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President & Manager
By: /s/
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
$50,000,000 DRESDNER BANK AG NEW YORK BRANCH
AND GRAND CAYMAN BRANCH
By: /s/
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
By: /s/
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
$50,000,000 FIRST UNION NATIONAL BANK OF FLORIDA
By: /s/
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
$10,000,000 KREDISTBANK N.V.
By: /s/
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
$50,000,000 INTERNATIONALE NEDERLANDER (U.S.)
CAPITAL CORPORATION
By: /s/
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
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LIQUIDITY LOAN COMMITMENT LIQUIDITY LENDER
$50,000,000 ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF
NEW YORK
By: /s/
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
$15,000,000 SOCIETE GENERALE
By: /s/
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President & Manager
CREDIT ENHANCER
CREDIT SUISSE NEW YORK BRANCH, as Credit
Enhancer
By: /s/
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Associate
By: /s/
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Member of Senior Management
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