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Exhibit 4.1
SECOND AMENDMENT
SECOND AMENDMENT, dated as of March 29, 2001 (this
"AMENDMENT"), to the Amended and Restated Senior Loan Agreement, dated as of
June 30, 2000 (as heretofore amended, supplemented or otherwise modified, the
"SENIOR LOAN AGREEMENT"), among ANC RENTAL CORPORATION, a Delaware corporation
(the "COMPANY"), the several Lenders from time to time parties thereto, ▇▇▇▇▇▇
BROTHERS INC., as sole advisor, sole lead arranger and sole book manager, and
▇▇▇▇▇▇ COMMERCIAL PAPER INC., as syndication agent and as administrative agent
(in such capacity, the "ADMINISTRATIVE AGENT").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company has requested that the Lenders amend
certain provisions of the Senior Loan Agreement; and
WHEREAS, the Lenders have agreed to amend the Senior Loan
Agreement, but only upon the terms and subject to the conditions set forth
below;
NOW, THEREFORE, in consideration of the premises and mutual
agreements contained herein, and for other valuable consideration, the receipt
of which is hereby acknowledged, the Company, the Lenders and the Agents hereby
agree as follows:
1. DEFINITIONS. All terms defined in the Senior Loan Agreement
shall have such defined meanings when used herein unless otherwise defined
herein.
2. AMENDMENT OF SECTION 1.1 (DEFINED TERMS). Section 1.1 of
the Senior Loan Agreement is hereby amended by:
(a) deleting the defined terms "LOAN DOCUMENTS" and "MATERIAL
ADVERSE EFFECT" in their entirety; and
(b) inserting the following defined terms in their appropriate
alphabetical order:
""CASH COLLATERAL AGREEMENT": the Collateral and
Control Agreement, to be executed by the Company in favor of
the Administrative Agent, in form and substance reasonably
satisfactory to the Administrative Agent, as the same may be
amended, supplemented or otherwise modified from time to time.
"CASH FLOW FORECAST": as defined in Section 5.12.
"COLLATERAL": all property, whether real or personal,
of the Loan Parties, now owned or hereafter acquired, upon
which a Lien is purported to be created by any Collateral
Document.
"COLLATERAL AGREEMENT": the Collateral Agreement, to
be executed by the Company in favor of the Collateral Trustee,
for the benefit of the Lenders and Liberty, if a party
thereto, in form and substance reasonably satisfactory to the
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Administrative Agent, as the same may be amended, supplemented
or otherwise modified from time to time.
"COLLATERAL DOCUMENTS": the collective reference to
the Collateral Agreement, the Cash Collateral Agreement, the
Intercreditor Agreement and the Trust Agreement and all other
security documents hereafter delivered to the Collateral
Trustee or the Administrative Agent granting a Lien on any
property, whether real or personal, of any Person to secure
the obligations and liabilities of any Loan Party under any
Loan Document.
"COLLATERAL TRUSTEE": the collateral trustee to be
designated pursuant to the Trust Agreement.
"EXCLUDED FOREIGN SUBSIDIARIES": any Foreign
Subsidiary in respect of which (a) no election has been made
by the Company to treat such Foreign Subsidiary as a branch
for United States tax purposes or (b) total net assets of such
Foreign Subsidiary (as shown on the most recent balance sheet
of such Foreign Subsidiary delivered to the Administrative
Agent) aggregates an equivalent of $5,000,000 or less. Any
Foreign Subsidiary which is owned by another Subsidiary that
constitutes an Excluded Foreign Subsidiary pursuant to clause
(a) of the foregoing sentence shall be an Excluded Foreign
Subsidiary.
"FINANCE COMPANIES": the collective reference to ANC
Rental Funding Corp., National Car Rental Financing Corp.,
National Car Rental Financing LP, Car Temps Financing, LLC,
Alamo Financing, LP, Alamo Financing, LLC, ARG Funding
Corporation, ANC Financial Corporation, ANC Financial GP
Corporation, CarTemps Financing, LP, Spirit Leasing, Inc. and
any of their respective successors and any finance Subsidiary
of the Company established in the future.
"INTERCREDITOR AGREEMENT": the Amended and Restated
Intercreditor Agreement, to be executed by the Company, the
Subsidiary Guarantors, the Collateral Trustee and the
administrative agents under the New Credit Facility, in form
and substance reasonably satisfactory to the Administrative
Agent, as the same may be amended, supplemented or otherwise
modified from time to time.
"LOAN DOCUMENTS": this Agreement, the Warrant
Agreement, the Escrow Agreement, the Debt Registration Rights
Agreement, the Equity Registration Rights Agreement, the Loan
Notes, the Subsidiary Guarantees and the Collateral Documents.
"LIBERTY": Liberty Mutual Insurance Company, in its
capacity as the provider of surety bonds and similar
undertakings for the account of the Company and its
Subsidiaries.
"MATERIAL ADVERSE EFFECT": a material adverse effect
on (a) the business, assets, property, condition (financial or
otherwise) or prospects of the Company and its Subsidiaries
taken as a whole; (b) the validity or enforceability of the
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Agreement or any other Loan Document, or any New Credit
Facility Documents or the rights or remedies of the Lenders
hereunder or thereunder; (c) the legality, validity,
enforceability, perfection or priority of the Liens of the
Collateral Trustee on the Collateral taken as a whole; or (d)
the Collateral or the value of the Collateral taken as a
whole.
"MORTGAGED PROPERTIES": any parcel of real property
owned by the Company or any Subsidiary Guarantor which is
acceptable to the Administrative Agents and as to which the
Collateral Trustee, for the benefit of the Lenders. shall be
granted a Lien pursuant to a Mortgage.
"MORTGAGES": each of the mortgages and deeds of trust
to be made by any Loan Party in favor of, or for the benefit
of, the Collateral Trustee for the benefit of the Lenders, in
the form and substance reasonably satisfactory to the
Collateral Trustee and the Administrative Agent, as the same
may be amended, supplemented or otherwise modified from time
to time.
"PROJECTED EXCESS CASH FLOW": the amount by which the
forecasted liquidity of the Company and its Subsidiaries as
reflected in the line item for "Peak Needs" under the heading
"Excess/Shortage" in the Cash Flow Forecast delivered pursuant
to Section 5.12 exceeds $75,000,000 through the period covered
by the Cash Flow Forecast.
"REAL ESTATE CASH COLLATERAL ACCOUNT": the cash
collateral account established pursuant to the Cash Collateral
Agreement.
"REAL ESTATE TRANSACTIONS": the sale or the sale and
leaseback of the real property of the Company and its
Subsidiaries listed on Schedule 1.1(a).
"SECOND AMENDMENT": the Second Amendment, dated as of
March 29, 2001, to this Agreement.
"SECOND AMENDMENT EFFECTIVE DATE": the effective date
of the Second Amendment.
"TRANCHE A INITIAL LOANS": as defined in Section
2.1(a).
"TRANCHE A PRINCIPAL AMOUNT": an amount equal to the
lesser of (i) the Net Proceeds of the Real Estate Transactions
and (ii) $85,000,000.
"TRANCHE A ROLLOVER TERM LOANS": as defined in
Section 2.1(b).
"TRANCHE B INITIAL LOANS": as defined in Section
2.1(a).
"TRANCHE B ROLLOVER TERM LOANS": as defined in
Section 2.1(b).
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"TRUST AGREEMENT": the Trust Agreement, to be
executed by the Company, the Subsidiary Borrower and the
Collateral Trustee, in form and substance reasonably
satisfactory to the Administrative Agent, as the same may be
amended, supplemented or otherwise modified from time to
time.".
3. AMENDMENT OF DEFINITION OF PERMITTED INVESTMENTS. The
definition of Permitted Investments in Section 1.1 of the Senior Loan Agreement
is hereby amended by (a) deleting the "and" at the end of clause (p) thereof,
(b) deleting the period at the end of clause (q) thereof and substituting in
lieu thereof "; and" and (c) adding at the end thereof the following new clause
(r):
"(r) Investments made by the Company or any of its
Subsidiaries of the proceeds in the Real Estate Cash Collateral
Account.".
4. AMENDMENT OF DEFINITION OF PERMITTED LIENS. The definition
of Permitted Liens in Section 1.1 of the Senior Loan Agreement is hereby amended
by (a) deleting the "and" at the end of clause (w) thereof, (b) deleting the
period at the end of clause (x) thereof and substituting in lieu thereof "; and"
and (c) adding at the end thereof the following new clause (y):
"(y) Liens created pursuant to the Collateral Documents.".
5. AMENDMENT OF SECTION 2.1 (LOANS). Section 2.1 of the Senior
Loan Agreement is hereby amended by:
(a) adding at the end of paragraph (a) thereof the following:
"On and after the Second Amendment Effective Date, the Initial Loans
shall be deemed to be comprised of, and the defined term Initial Loans
shall be deemed to include, Tranche A Initial Loans and Tranche B
Initial Loans (each such term as hereafter defined). On and after the
Second Amendment Effective Date, the Initial Loans in an aggregate
principal amount (and each Lender's pro rata portion thereof) equal to
the Tranche A Principal Amount shall be converted to and be deemed to
be Tranche A loans (the "TRANCHE A INITIAL LOANS"), and the Initial
Loans in an aggregate principal amount (and each Lender's pro rata
portion thereof) equal to the excess of (x) the aggregate principal
amount of the Initial Loans outstanding immediately prior to the Second
Amendment Effective Date over (y) the Tranche A Principal Amount shall
be converted to and be deemed to be Tranche B loans (the "TRANCHE B
INITIAL LOANS")."; and
(b) deleting paragraph (b) thereof and substituting in lieu
thereof the following new paragraph (b):
"(b) Subject to the terms and conditions hereof, each
Lender severally agrees, if the Initial Loans have not been repaid on
the Initial Maturity Date, to convert the then outstanding principal
amount of its (i) Tranche A Initial Loans into loans ("TRANCHE A
ROLLOVER TERM LOANS") and (ii) Tranche B Initial Loans into loans
("TRANCHE B ROLLOVER TERM LOANS"; and together with the Tranche A
Rollover Term Loans, collectively, the "ROLLOVER TERM LOANS"; the
Initial Loans and the Rollover Term Loans, collectively, the "LOANS"),
in each case to the Company, on or before the Initial
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Maturity Date, in aggregate principal amount equal to the then
outstanding principal amount of the Tranche A Initial Loans and the
Tranche B Initial Loans, as the case may be, then held by such Lender.
Upon conversion by each Lender of Initial Loans into Rollover Term
Loans, such Lender shall cancel on its records the principal amount of
the Initial Loans held by such Lender corresponding to the principal
amount of Rollover Term Loan resulting from such conversion, which
corresponding principal amount of the Initial Loans shall be satisfied
by the conversion thereof into Rollover Term Loans.".
6. AMENDMENT OF SECTION 2.3 (MATURITY AND EXCHANGE NOTES).
Section 2.3(c) of the Senior Loan Agreement is hereby amended by replacing the
first sentence thereof with the following:
"Each Lender will have the option (i) on the Initial Maturity Date to
receive, (A) Tranche A Exchange Notes (as defined in the Indenture) for
the Tranche A Initial Loans or (B) Tranche B Exchange Notes (as defined
in the Indenture) for the Tranche B Initial Loans or (ii) on or after
the Initial Maturity Date at any time or from time to time to receive
(A) Tranche A Exchange Notes (as defined in the Indenture) in exchange
for the Tranche A Rollover Term Loans or (B) Tranche B Exchange Notes
(as defined in the Indenture) in exchange for the Tranche B Rollover
Term Loans, in each case of such Lender then outstanding in accordance
with Section 5.9.".
7. AMENDMENT OF SECTION 2.5 (OPTIONAL AND MANDATORY
PREPAYMENTS). Section 2.5 of the Senior Loan Agreement is hereby amended by:
(a) (i) relettering paragraphs (c) and (d) thereof as new
paragraphs (d) and (e), respectively, and (ii) adding immediately after
paragraph (b) thereof the following new paragraph (c):
"(c) The Company shall prepay the Loans on September 30, 2001
in an aggregate amount equal to the sum of (i) the aggregate amount of
the Net Proceeds of the Real Estate Transactions deposited by the
Company into the Real Estate Cash Collateral Account pursuant to the
Cash Collateral Agreement, PLUS (ii) 100% of the Projected Excess Cash
Flow, LESS (iii) the aggregate amount of the reduction of availability
under the New Credit Facility as a result of the Real Estate
Transactions. On such date the Administrative Agent shall apply to such
prepayment all amounts on deposit in the Real Estate Cash Collateral
Account."; and
(b) adding at the end thereof the following new paragraph (f):
"(f) Amounts to be applied in connection with prepayments of
the Loans pursuant to this Section shall be applied, (i) at any time
prior to the conversion of Initial Loans into Rollover Term Loans,
FIRST, to the prepayment of the Tranche B Initial Loans and, SECOND, to
the prepayment of the Tranche A Initial Loans and (ii) at any time
after the conversion of Initial Loans into Rollover Term Loans, FIRST,
to the prepayment of the Tranche B Rollover Term Loans and, SECOND, to
the prepayment of the Tranche A Rollover Term Loans.".
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8. AMENDMENT OF SECTION 3 (REPRESENTATIONS AND WARRANTIES).
Section 3 of the Senior Loan Agreement is hereby amended by adding at the end
thereof the following new Section 3.21:
"3.21 Security Documents. (a) On and after the execution and
delivery thereof, the Collateral Agreement will be effective to create
in favor of the Collateral Trustee, for the benefit of the Lenders, a
legal, valid and enforceable security interest in the Collateral
described therein and proceeds thereof. In the case of the Pledged
Stock described in the Collateral Agreement, when any stock
certificates representing such Pledged Stock are delivered to the
Collateral Trustee or a bailee thereof, and in the case of the other
Collateral described in the Collateral Agreement for which security
interests may be perfected by a filing, when financing statements or
other relevant filing documents in appropriate form are filed in the
offices specified on Schedule 3.21(a) (which financing statements or
other relevant filing documents shall have been duly completed and
executed and delivered to the Collateral Trustee on or before execution
and delivery of the Collateral Agreement in accordance with Section
5.15) the Collateral Agreement shall constitute a fully perfected Lien
on, and security interest in, all right, title and interest of the Loan
Parties in such Collateral and the proceeds thereof, as security for
the Obligations (as defined in the Collateral Agreement), in each case
prior and superior in right to any other Person (except (i) in the case
of Collateral other than Pledged Stock, Liens permitted by Section 6.6,
(ii) in the case of all Collateral, the Liens in favor of the
administrative agents under the New Credit Facility and (iii) and Liens
on the Permitted Vehicle Collateral).
(b) Each Mortgage executed and delivered after the Second
Amendment Effective Date will be effective to create in favor of the
Collateral Trustee, for the benefit of the Lenders, a legal, valid and
enforceable Lien on the Mortgaged Properties described therein and
proceeds thereof; and when the Mortgages are filed in the recording
office designated by the Company, each Mortgage shall constitute a
fully perfected Lien on, and security interest in, all right, title and
interest of the Loan Parties in the Mortgaged Properties described
therein and the proceeds thereof, as security for the Obligations (as
defined in the relevant Mortgage), in each case prior and superior in
right to any other Person (other than (i) Persons holding Liens or
other encumbrances or rights permitted by the relevant Mortgage and
(ii) the mortgages executed and delivered in connection with the New
Credit Facility).".
9. AMENDMENT OF SECTION 5.1 (FINANCIAL STATEMENTS). Section
5.1 of the Senior Loan Agreement is hereby amended by adding immediately after
"90 days" in paragraph (a) thereof the following: "(or, in the case of the 2000
fiscal year of the Company, 120 days)".
10. AMENDMENT OF SECTION 5.9 (EXCHANGE NOTES). Section 5.9 of
the Senior Loan Agreement is hereby amended by:
(a) deleting the first sentence in paragraph (b) thereof in
its entirety and substituting in lieu thereof the following new sentence:
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"At any time on or after the Initial Maturity Date on or prior
to the third Business Day following the written request (the "EXCHANGE
REQUEST") of any Lender execute, and cause the Trustee to authenticate,
and deliver to such Lender in accordance with the Indenture a Tranche A
Exchange Note or Tranche B Exchange Note (each such term as defined in
the Indenture), as the case may be, bearing interest then in effect on
such Lender's Tranche A Rollover Term Loan or Tranche B Rollover Term
Loan, as the case may be, in exchange for such Lender's Tranche A
Rollover Term Loan or Tranche B Rollover Term Loan, dated the date of
issuance of such Exchange Note, registered in the name specified by
such Lender, in the principal amount equal to 100% of the aggregate
principal amount (including any accrued and unpaid interest not
required to be paid in cash) of the Rollover Term Loans for which they
are exchanged."; and
(b) adding immediately after "Each Exchange Request shall
specify" in the second sentence in paragraph (b) thereof the following "the type
and".
11. AMENDMENT OF SECTION 5 (AFFIRMATIVE COVENANTS). Section 5
of the Senior Loan Agreement is hereby amended by adding at the end thereof the
following new Sections 5.12, 5.13, 5.14 and 5.15:
"5.12 DELIVERY OF CASH FLOW FORECAST. The Company shall
deliver to the Administrative Agent on or before September 15, 2001 a
consolidated monthly cash flow forecast of the Company and its
Consolidated Subsidiaries covering the nine-month period from October
1, 2001 through June 30, 2002, which forecast shall be substantially in
the form attached hereto as Exhibit K and otherwise in form and
substance reasonably satisfactory to the Administrative Agent (the
"CASH FLOW FORECAST"), together with (i) a detailed written explanation
of the assumptions underlying the Cash Flow Forecast and any supporting
information relied upon in the preparation of the Cash Flow Forecast
and (ii) a certificate of a Responsible Officer of the Company
certifying (A) as to the validity of the assumptions underlying the
Cash Flow Forecast, (B) as to the preparation of the Cash Flow Forecast
based upon the best information available to the Company as of the date
delivery thereof and (C) that, to the best of such Responsible
Officer's knowledge after due inquiry, the Cash Flow Forecast fairly
and accurately presents the cash flow of the Company and its
Subsidiaries for the period covered thereby.
5.13 ADDITIONAL COLLATERAL, ETC. (a) With respect to any real
or personal property acquired after the execution and delivery of the
Collateral Agreement in accordance with Section 5.15 by any Loan Party,
including any entity that becomes a Loan Party hereafter pursuant to
Section 5.13(c), (other than any property described in paragraph (b) or
paragraph (c) of this Section) as to which the Collateral Trustee, for
the benefit of the Lenders, does not have a perfected Lien, promptly
(i) execute and deliver to the Collateral Trustee and the
Administrative Agent such amendments to the Collateral Agreement or
such other documents as the Collateral Trustee or the Administrative
Agent deems necessary or advisable to grant to the Collateral Trustee,
for the benefit of the Lenders, a security interest in such property
and (ii) take all actions necessary or advisable to grant to the
Collateral Trustee, for the benefit of the Lenders, a perfected
security interest (as provided in the Collateral Agreement) in such
property, including without limitation, the filing of Uniform
Commercial Code financing statements in such
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jurisdictions as may be required by the Collateral Agreement or by law
or as may be reasonably requested by the Collateral Trustee or the
Administrative Agent.
(b) With respect to any fee interest in any real property
having a value (together with improvements thereof) of at least
$1,000,000 acquired after the Second Amendment Effective Date by any
Loan Party, including any entity that becomes a Loan Party hereafter
pursuant to Section 5.13(c), promptly (i) execute and deliver a
Mortgage (as provided therein) in favor of the Collateral Trustee, for
the benefit of the Lenders, covering such real property, (ii) if
requested by the Collateral Trustee or the Administrative Agent,
provide the Lenders with (x) title and extended coverage insurance
covering such real property in an amount at least equal to the purchase
price of such real property (or such other amount as shall be
reasonably specified by the Collateral Trustee or the Administrative
Agent, as the case may be) as well as a current ALTA survey thereof,
together with a surveyor's certificate and (y) any consents or
estoppels reasonably deemed necessary or advisable by the Collateral
Trustee or the Administrative Agent in connection with such Mortgage,
each of the foregoing in form and substance reasonably satisfactory to
the Collateral Trustee or the Administrative Agent, as the case may be,
and (iii) if requested by the Collateral Trustee or the Administrative
Agent, deliver to the Collateral Trustee or the Administrative Agent,
as the case may be, legal opinions relating to the matters described
above, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Collateral Trustee or the Administrative
Agent, as the case may be.
(c) With respect to any new Subsidiary (other than an Excluded
Foreign Subsidiary, an Insurance Company, a Finance Company or an
Inactive Subsidiary) created or acquired after the execution and
delivery of the Collateral Agreement in accordance with Section 5.15
(which, for the purposes of this paragraph, shall include (x) any
existing Subsidiary that ceases to be an Excluded Foreign Subsidiary or
an Inactive Subsidiary and (y) any Risk Management Subsidiary that
becomes a Wholly-Owned Subsidiary of the Company), by the Company or
any of its Subsidiaries, promptly (i) execute and deliver to the
Collateral Trustee and the Administrative Agent such amendments to the
Collateral Agreement as the Collateral Trustee or the Administrative
Agent deems necessary or advisable to grant to the Collateral Trustee,
for the benefit of the Lenders, a perfected security interest in the
Capital Stock of such new Subsidiary that is owned by the Company or
any of its Subsidiaries, (ii) deliver to the Collateral Trustee (or a
bailee thereof) the certificates representing such Capital Stock,
together with undated stock powers, in blank, executed and delivered by
a duly authorized officer of the Company or such Subsidiary, as the
case may be, (iii) cause such new Subsidiary (A) to become a party to
each of a Subsidiary Guarantee and the Collateral Agreement and (B) to
take such actions necessary or advisable to grant to the Collateral
Trustee for the benefit of the Lenders a perfected security interest in
the Collateral described in the Collateral Agreement with respect to
such new Subsidiary, including, without limitation, the filing of
Uniform Commercial Code financing statements in such jurisdictions as
may be required by the Collateral Agreement or by law or as may be
reasonably requested by the Collateral Trustee or the Administrative
Agent, and (iv) if requested by the Collateral Trustee or the
Administrative Agent, deliver to the Collateral Trustee or the
Administrative Agent, as the case may be, legal opinions relating to
the matters described
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above, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Collateral Trustee or the Administrative
Agent, as the case may be.
(d) With respect to any new Excluded Foreign Subsidiary
created or acquired after the execution and delivery of the Collateral
Agreement in accordance with Section 5.15 or any of its Subsidiaries
(other than any Excluded Foreign Subsidiaries), promptly (i) execute
and deliver to the Collateral Trustee and the Administrative Agent such
amendments to the Collateral Agreement or such other documents as the
Collateral Trustee or the Administrative Agent deems necessary or
advisable in order to grant to the Collateral Trustee, for the benefit
of the Lenders, a perfected security interest in the Capital Stock of
such new Subsidiary that is owned by the Company or any of its
Subsidiaries (other than any Excluded Foreign Subsidiaries), (PROVIDED
that in no event shall more than 65% of the total outstanding Capital
Stock of any such new Excluded Foreign Subsidiary be required to be so
pledged), (ii) deliver to the Collateral Trustee (or a bailee thereof)
the certificates representing such Capital Stock, together with undated
stock powers, in blank, executed and delivered by a duly authorized
officer of the Company or such Subsidiary, as the case may be, and take
such other action as may be necessary or, in the opinion of the
Collateral Trustee or the Administrative Agent, desirable to perfect
the Lien of the Collateral Trustee thereon, and (iii) if requested by
the Collateral Trustee or the Administrative Agent, deliver to the
Collateral Trustee or the Administrative Agent, as the case may be,
legal opinions relating to the matters described above, which opinions
shall be in form and substance, and from counsel, reasonably
satisfactory to the Collateral Trustee or the Administrative Agent, as
the case may be.
5.14. FURTHER ASSURANCES. From time to time execute and
deliver, or cause to be executed and delivered, such additional
instruments, certificates or documents, and take such actions, as the
Collateral Trustee or the Administrative Agent may reasonably request
for the purposes of implementing or effectuating the provisions of this
Agreement and the other Loan Documents, or of more fully perfecting or
renewing the rights of the Collateral Trustee, the Administrative Agent
and the Lenders with respect to the Collateral (or with respect to any
additions thereto or replacements or proceeds thereof or with respect
to any other property or assets hereafter acquired by the Company or
any Subsidiary which may be deemed to be part of the Collateral)
pursuant hereto or thereto. Upon the exercise by the Collateral
Trustee, the Administrative Agent or any Lender of any power, right,
privilege or remedy pursuant to this Agreement or the other Loan
Documents which requires any consent, approval, recording,
qualification or authorization of any Governmental Authority, the
Company will execute and deliver, or will cause the execution and
delivery of, all applications, certifications, instruments and other
documents and papers that Collateral Trustee, the Administrative Agent
or such Lender may be required to obtain from the Company or any of its
Subsidiaries for such governmental consent, approval, recording,
qualification or authorization.
5.15. COLLATERAL AND COLLATERAL DOCUMENTS. (a) Use their
respective reasonable best efforts to obtain the consents necessary to
grant Liens on all of the Collateral (except as set forth in paragraph
(b) below) and deliver on or before April 30, 2001 the following:
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(i) to the Administrative Agent the Intercreditor Agreement,
duly executed and delivered by each of the parties thereto;
(ii) to the Administrative Agent, the Collateral Agreement,
duly executed and delivered by the Company and each of the Subsidiary
Guarantors in favor of the Collateral Trustee;
(iii) to the Administrative Agent, the Trust Agreement, duly
executed and delivered by the Company, each of the Subsidiary
Guarantors and the Collateral Trustee;
(iv) to the Administrative Agent, for the account of each
Lender, replacements notes in the forms attached to the Second
Amendment as Annex C and Annex D thereto, duly executed and delivered
by the Company in favor of each Lender;
(v) to the Administrative Agent (i) an amended and restated
Indenture, duly executed and delivered by the Company and the Trustee,
which shall be deemed to replace Exhibit B in its entirety and (ii) the
Exchange Notes, duly executed and delivered by the Company; and the
Company shall have (x) executed and delivered the Exchange Notes and
the Indenture in escrow under the Escrow Agreement in exchange for the
Exchange Notes and the Indenture, each dated as of June 30, 2000 and
(y) delivered to the Trustee, the opinion required by Section 314(b)(1)
of the Trust Indenture Act of 1940, as amended;
(vi) to the Collateral Trustee (or its bailee) (i) the
certificates representing the shares of Capital Stock pledged pursuant
to the Collateral Agreement, together with an undated stock power for
each such certificate executed in blank by a duly authorized officer of
the pledgor thereof, (ii) an Acknowledgment and Consent, substantially
in the form of Annex II to the Collateral Agreement, duly executed by
any issuer of Capital Stock pledged pursuant to the Collateral
Agreement that is not itself a party to the Collateral Agreement and
(iii) each promissory note pledged pursuant to the Collateral Agreement
endorsed (without recourse) in blank (or accompanied by an executed
transfer form in blank satisfactory to the Collateral Trustee and the
Administrative Agent) by the pledgor thereof;
(vii) to the Collateral Trustee each document (including,
without limitation, any Uniform Commercial Code financing statement)
required by the Collateral Agreement or under law or reasonably
requested by the Collateral Trustee or the Administrative Agent to be
filed, registered or recorded in order to create in favor of the
Administrative Agent shall have received, for the benefit of the
Lenders, a perfected Lien on the Collateral described therein, prior
and superior in right to any other Person (other than with respect to
Liens expressly permitted by Section 6.6 and Liens on the Permitted
Vehicle Collateral), shall have been filed, registered or recorded or
shall have been delivered to the Collateral Trustee be in proper form
for filing, registration or recordation;
(viii) to the Administrative Agent insurance certificates
satisfying the requirements of the Collateral Agreement;
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(ix) to the Administrative Agent, a new Schedule 3.21(a) to
this Agreement; and
(x) if requested by the Collateral Trustee or the
Administrative Agent, to the Collateral Trustee or the Administrative
Agent, as the case may be, legal opinions relating to the matters
described herein, which opinions shall be in form and substance, and
from counsel, reasonably satisfactory to the Collateral Trustee or the
Administrative Agent, as the case may be.
(b) Use their respective reasonable best efforts to
obtain the consents necessary to grant Liens on all of the Permitted
Vehicle Collateral consisting of vehicles subject of capital leases
pursuant to which any of National Car Rental System, Inc., Spirit
Rent-A-Car, Inc. or Alamo Rent-A-Car, LLC is the lessor and with
respect to such Permitted Vehicle Collateral, on or before May 31, 2001
(i) execute and deliver to the Collateral Trustee and the
Administrative Agent such amendments to the Collateral Agreement or
such other documents as the Collateral Trustee or the Administrative
Agent deems necessary or advisable to grant to the Collateral Trustee,
for the benefit of the Lenders, a security interest in such property,
(ii) take all actions necessary or advisable to grant to the Collateral
Trustee, for the benefit of the Lenders, a perfected security interest
(as provided in the Collateral Agreement) in such property, including
without limitation, the filing of Uniform Commercial Code financing
statements in such jurisdictions as may be required by the Collateral
Agreement or by law or as may be reasonably requested by the Collateral
Trustee or the Administrative Agent, and (iii) if requested by the
Collateral Trustee or the Administrative Agent, deliver to the
Collateral Trustee or the Administrative Agent, as the case may be,
legal opinions relating to the matters described above, which opinions
shall be in form and substance, and from counsel, reasonably
satisfactory to the Collateral Trustee or the Administrative Agent, as
the case may be.".
12. AMENDMENT OF SECTION 6.5 (ASSET SALES). Section 6.5 of the
Senior Loan Agreement is hereby amended by inserting immediately before clause
(x) in the second sentence thereof the following new clause (w):
"(w) such Net Proceeds result from the Real Estate
Transactions consummated prior to September 30, 2001, PROVIDED that
upon receipt thereof by the Company or any of its Restricted
Subsidiaries such Net Proceeds are reinvested in the Company's business
by being deposited into the Real Estate Cash Collateral Account, which
is subject to the terms and conditions of the Cash Collateral
Agreement,".
13. AMENDMENT OF SECTION 7 (EVENTS OF DEFAULT). Section 7 of
the Senior Loan Agreement is hereby amended by:
(a) adding at the end of paragraph (d) thereof immediately
before the semicolon the following: "or (iii) any agreement contained in Section
5.12 or Section 5.15";
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(b) deleting in paragraph (e) thereof (i) the reference to
"any Guarantor" and substituting in lieu thereof a reference to "any other Loan
Party" and (ii) "this Agreement or the Subsidiary Guarantee" and substituting in
lieu thereof the phrase "this Agreement, the Collateral Documents or the
Subsidiary Guarantees";
(c) adding immediately after the semicolon in paragraph (j)
thereof "or"; and
(d) adding at the end of paragraph (j) thereof the following
new paragraph (k) as follows:
(e) any Collateral Document shall cease, for any reason (other
than by reason of express release thereof pursuant to Section 9.15), to be in
full force and effect, or any Loan Party or any Affiliate of any Loan Party
shall so assert, or any Lien created by any of the Collateral Documents shall
cease to be enforceable and of the same effect and priority purported to be
created thereby;".
14. AMENDMENT OF SECTION 9.1 (AMENDMENTS AND WAIVERS). Section
9.1 of the Senior Loan Agreement is hereby amended by (a) deleting the "or"
immediately before subclause (D) in clause (i) in the proviso thereof and adding
at the end of clause (i) in the proviso thereof immediately before ", in each
case without the written consent of all Lenders" the following new subclauses
(E) and (F):
", (E) release all or substantially all of the Collateral (except as
otherwise expressly required hereunder or under the other Loan
Documents) or (F) release all or substantially all of the Subsidiary
Guarantors from their guarantee obligations under the Subsidiary
Guarantee".
15. AMENDMENT OF SECTION 9.15 (RELEASE OF GUARANTEE
OBLIGATIONS). Section 9.15 of the Senior Loan Agreement is hereby amended by
deleting such Section in its entirety and substituting in lieu thereof the
following new Section 9.15:
9.15 RELEASE OF COLLATERAL AND GUARANTEE OBLIGATIONS.
(a) Notwithstanding anything to the contrary contained herein
or in any other Loan Document, upon request of the Company in connection with
any disposition of property permitted by the Loan Documents, the Administrative
Agent shall, or shall cause the Collateral Trustee to (without notice to, or
vote or consent of, any Lender, or any affiliate of any Lender) take such
actions as shall be required to release its security interest in any collateral
being disposed of in such disposition, and to release any guarantee obligations
under any Loan Document of any Person being disposed of in such disposition, to
the extent necessary to permit consummation of such disposition in accordance
with the Loan Documents.
(b) Notwithstanding anything to the contrary contained herein
or any other Loan Document, when all Obligations in respect of this Agreement
and the other Loan Documents have been paid in full and all Commitments have
terminated or expired, upon request of the Company, the Administrative Agent
shall, or shall cause the Collateral Trustee to (without notice to, or vote or
consent of, any Lender, or any affiliate of any Lender), take such actions as
shall be required to release its security interest in all Collateral, and to
release all
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guarantee obligations under any Loan Document. Any such release of guarantee
obligations shall be deemed subject to the provision that such guarantee
obligations shall be reinstated if after such release any portion of any payment
in respect of the Obligations guaranteed thereby shall be rescinded or must
otherwise be restored or returned upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Company 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, the Company or any Guarantor or any substantial
part of its property, or otherwise, all as though such payment had not been
made.".
16. ADDITION OF SCHEDULE. The Senior Loan Agreement is hereby
amended by adding a new Schedule 1.1(a) (Real Estate Transactions) to the Senior
Loan Agreement in the form attached hereto as Annex A.
17. ADDITION OF EXHIBIT. The Senior Loan Agreement is hereby
amended by adding a new Exhibit K in the form attached hereto as Annex B.
18. AMENDMENT TO THE INTERCREDITOR AGREEMENT. The
Administrative Agent is hereby instructed by the Lenders to, and to instruct the
Collateral Trustee to, execute and deliver an Intercreditor Agreement to reflect
the transactions contemplated by this Amendment.
19. REPRESENTATIONS; NO DEFAULT. On and as of the date hereof,
and after giving effect to this Amendment, (a) the Company certifies that no
Default or Event of Default has occurred or is continuing, and (b) the Company
confirms, reaffirms and restates that the representations and warranties set
forth in Section 3 of the Senior Loan Agreement and in the other Loan Documents
are true and correct in all material respects, PROVIDED that the references to
the Senior Loan Agreement therein shall be deemed to be references to this
Amendment and to the Senior Loan Agreement as amended by this Amendment.
20. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective as of the date hereof upon satisfaction of the following:
(a) the Administrative Agent shall have received counterparts
of this Amendment, duly executed and delivered by a duly authorized
officer of the Company;
(b) the Administrative Agent shall have received executed
Lender Consent Letters, substantially in the form of Exhibit A hereto,
from Lenders whose consent is required pursuant to Section 9.1 of the
Senior Loan Agreement;
(c) the Administrative Agent shall have received, for the
benefit of the Lenders, an amendment fee in an amount previously agreed
upon between the Administrative Agent and the Company;
(d) the Administrative Agent shall have received an executed
Acknowledgment and Consent, in the form set forth at the end of this
Amendment, from each Loan Party other than the Company;
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(e) the Administrative Agent shall have received the Cash
Collateral Agreement, duly executed and delivered by the Company in
favor of the Administrative Agent; and
(f) the Administrative Agent shall have received an executed
certificate of an officer of the Company in form satisfactory to the
Administrative Agent as to (i) the accuracy of the representations and
warranties set forth in Section 3 of the Senior Loan Agreement after
giving effect to this Amendment and in the other Loan Documents, (ii)
the absence of any Default or Event of Default after giving effect to
this Amendment, and (iii) such other customary matters as the
Administrative Agent may reasonably request.
21. LIMITED CONSENT AND AMENDMENT. Except as expressly amended
herein, the Senior Loan Agreement shall continue to be, and shall remain, in
full force and effect. This Amendment shall not be deemed to be a waiver of, or
consent to, or a modification or amendment of, any other term or condition of
the Senior Loan Agreement or any other Loan Document or to prejudice any other
right or rights which the Lenders may now have or may have in the future under
or in connection with the Senior Loan Agreement or any of the instruments or
agreements referred to therein, as the same may be amended from time to time.
22. COUNTERPARTS. This Amendment may be executed by one or
more of the parties hereto in any number of separate counterparts (which may
include counterparts delivered by facsimile transmission) and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
23. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered by their respective duly authorized
officers as of the date first above written.
ANC RENTAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President,
General Counsel and
Secretary
▇▇▇▇▇▇ COMMERCIAL PAPER INC.,
as Administrative Agent
By: /s/ G. ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: G. ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Authorized Signatory
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ACKNOWLEDGMENT AND CONSENT
Each of the undersigned parties to the Subsidiary Guarantee,
dated as of June 30, 2000 and as amended, supplemented or otherwise modified
from time to time, made by the undersigned in favor of ▇▇▇▇▇▇ Commercial Paper
Inc., as Administrative Agent, for the benefit of the Lenders, hereby (a)
consents to the transactions contemplated by the foregoing Amendment to the
Senior Loan Agreement and (b) acknowledges and agrees that the guarantees
contained in the Subsidiary Guarantee and in the other Loan Documents are, and
shall remain, in full force and effect after giving effect to such Amendment and
all prior modifications to the Senior Loan Agreement.
ALAMO RENT-A-CAR (CANADA), INC.
LIABILITY MANAGEMENT COMPANIES
HOLDING, INC.
NATIONAL CAR RENTAL LICENSING, INC.
NATIONAL CAR RENTAL SYSTEM, INC.
REPUBLIC ▇▇▇ ▇▇▇▇▇▇ PARTNER, INC.
REPUBLIC INDUSTRIES AUTOMOTIVE RENTAL
GROUP (BELGIUM) INC.
SPIRIT RENT-A-CAR, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and
Treasurer
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.
NCR AFFILIATE SERVICER, INC.
NCRAS MANAGEMENT, LP
By: NCRAS-GP, Inc., its general
partner
NCRAS-GP, INC.
SRAC MANAGEMENT, LP
By: SRAC-GP, Inc., its general
partner
SRAC-GP, INC.
SRAC-TM, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and
Treasurer
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ALAMO RENT-A-CAR, LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President and
Treasuer
ANC FINANCIAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and
Treasurer
ANC FINANCIAL PROPERTIES, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and
Treasurer
ANC INFORMATION TECHNOLOGY
HOLDING, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President and
Secretary
ANC INFORMATION TECHNOLOGY, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President and
Secretary
ANC INFORMATION TECHNOLOGY, L.P.
By: ANC INFORMATION TECHNOLOGY,
INC., its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President and
Secretary
ANC IT COLLECTOR CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President and
Secretary
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ARC-TM PROPERTIES, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and
Treasurer
NCR AFFILIATE SERVICER PROPERTIES, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and
Treasurer
19
ANNEX A
to Second Amendment
Schedule 1.1(a)
to Senior Loan Agreement
REAL ESTATE TRANSACTIONS
20
ANNEX B
to Second Amendment
EXHIBIT K
to Senior Loan Agreement
[FORM OF CASH FLOW FORECAST]
21
ANNEX C
to Second Amendment
[FORM OF TRANCHE A INITIAL LOAN NOTE]
22
ANNEX D
to Second Amendment
[FORM OF TRANCHE B INITIAL LOAN NOTE]
23
EXHIBIT A
to Second Amendment
LENDER CONSENT LETTER
ANC RENTAL CORPORATION
AMENDED AND RESTATED SENIOR LOAN AGREEMENT
DATED AS OF JUNE 30, 2000
To: ▇▇▇▇▇▇ Commercial Paper Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Reference is made to the Amended and Restated Senior Loan
Agreement, dated as of June 30, 2000 (the "SENIOR LOAN AGREEMENT"), among ANC
RENTAL CORPORATION, a Delaware corporation (the "COMPANY"), the Lenders parties
thereto, ▇▇▇▇▇▇ COMMERCIAL PAPER INC., as Administrative Agent, and others.
Unless otherwise defined herein, capitalized terms used herein and defined in
the Senior Loan Agreement are used herein as therein defined.
The Company has requested that the Lenders consent to amend
the Senior Loan Agreement on the terms described in the Amendment to which a
form of this Lender Consent Letter is attached as Exhibit A (the "AMENDMENT").
Pursuant to Section 9.1 of the Senior Loan Agreement, the
undersigned Lender hereby consents to the execution by the Agents of the
Amendment.
Very truly yours,
---------------------------------------
(NAME OF LENDER)
By:
-----------------------------------
Name:
Title:
Dated as of ____________ __, 2001
