EXHIBIT 4.2
AMENDMENT TO
LIQUIDITY LOAN AGREEMENT
THIS AMENDMENT TO LIQUIDITY LOAN AGREEMENT (this "Amendment") is dated as
of June 11, 1996 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 (the "Liquidity Loan Agreement");
WHEREAS, AFL and the Liquidity Agent desire to amend certain provisions of
the Liquidity Loan Agreement (including certain defined terms set forth in the
Definitions List attached as Annex A to the Liquidity Loan Agreement);
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereby agree, upon the
terms and subject to the conditions set forth below, 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 (the "Definitions List").
Section 2. Amendments to the Liquidity Loan Agreement.
(a) Amendment to Section 2.1. Section 2.1 of the Liquidity Loan Agreement
is hereby amended by deleting subsection (e) thereof in its entirety and
substituting therefor the following:
"(e) after giving effect to such issuance and the use of proceeds
thereof, the weighted average interest rate of
the Outstanding Commercial Paper Notes, Liquidity Advances and LOC
Liquidity Disbursements would be in excess of 12% per annum, unless (i) AFL
shall have given its written consent to a weighted average interest rate in
excess of 12% per annum, (ii) if required by the Rating Agencies in
connection therewith, the Letter of Credit Amount shall be increased and/or
a letter of credit on terms substantially similar to the Letter of Credit
shall be provided and/or an additional cash collateral account shall be
funded, and (iii) the Rating Agencies shall have confirmed that such
weighted average interest rate will not result in the downgrading or
withdrawal of the then current ratings of the Commercial Paper Notes.
Notwithstanding anything to the contrary contained in this Agreement (other
than in the proviso to this sentence) AFL shall not be required to obtain
the consent of any Liquidity Lender or the Liquidity Agent to any such (1)
increase in the Letter of Credit Amount pursuant to this Section 2.1(e),
(2) provision of a letter of credit pursuant to this Section 2.1(e) or (3)
funding of an additional cash collateral account pursuant to this Section
2.1(e); provided, however, that if the ratings of the Commercial Paper
Notes by S&P or Moody's will be less than A-1 or P-1, respectively, after
giving effect to such weighted average interest rate in excess of 12% per
annum and such increase in the Letter of Credit Amount, provision of a
letter of credit and/or funding of an additional cash collateral account,
such Commercial Paper Notes will not be issued unless the Majority Banks
shall have given their written consent thereto. AFL shall notify the
Liquidity Agent and the Collateral Agent in writing no later than 11:00
a.m. (New York City time) on any Business Day on which the weighted average
interest rate of the Outstanding Commercial Paper Notes, Liquidity Advances
and LOC Liquidity Disbursements exceeds 12% per annum,".
(b) Amendment to Section 3.5.2.
(1) Section 3.5.2 of the Liquidity Loan Agreement is hereby amended by
redesignating the body of current Section 3.5.2 as subsection (a) thereof
and deleting the last two sentences thereof.
(2) Section 3.5.2 of the Liquidity Loan Agreement is hereby further
amended by adding the following new subsection (b) immediately following
subsection (a):
"(b) If on any Business Day in a Related Month the weighted
average interest rate of the Outstanding Commercial Paper Notes,
Outstanding Liquidity Advances and Outstanding LOC Liquidity
Disbursements exceeds 12% per annum, then, unless the requirements for
the
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continued issuance of Commercial Paper Notes set forth in Section
2.1(e) shall have been complied with not later than 11:00 a.m. (New
York City time) on the last Business Day before the Payment Date with
respect to such Related Month, the Collateral Agent (provided AFL
shall have delivered the notice required pursuant to the last sentence
of Section 2.1(e)) shall, by delivering a Borrowing Request to the
Liquidity Agent (who will notify the other Liquidity Lenders of such
Borrowing Request not later than 12:00 noon, New York City time) for a
Borrowing consisting of Refunding Advances, irrevocably request, not
later than 11:30 a.m., New York City time, on such last Business Day
before such Payment Date, that such Borrowing be made in an aggregate
principal amount equal to the lesser of (i) the Aggregate Liquidity
Loan Commitment on such date minus the aggregate principal amount of
all Liquidity Advances (including any Swing Line Advances) Outstanding
on such date as determined immediately prior to such Borrowing Request
and (ii) the Outstanding Commercial Paper Notes on such date."
(3) Section 3.5.2. of the Liquidity Loan Agreement is hereby further
amended by inserting the following new subsection (c) immediately following
subsection (b) thereof:
"(c) On the terms and subject to the conditions of this Liquidity
Loan Agreement, each Borrowing under this Section shall be initially
comprised of Base Rate Advances (subject to conversion in accordance
with the provisions of Section 3.7) and shall be made on the Business
Day specified in such Borrowing Request. For the purposes of this
Section, Commercial Paper Notes maturing on any day which have been
paid from an advance made by the Depositary shall nonetheless be
deemed to be unpaid."
(c) Amendment to Section 3.9. Section 3.9 of the Liquidity Loan Agreement
is hereby amended by inserting the following at the end of the first sentence of
such Section:
"(any Refunding Note(s) and any Revolving Note(s) may each be referred
to herein as a "Liquidity Advance Note" and collectively as "Liquidity
Advance Notes")".
(d) Amendment to Section 5.10. Section 5.10 of the Liquidity Loan Agreement
is hereby amended by (i) deleting the heading of such Section and substituting
therefor "Order and Priority" and (ii) adding the following to the end of the
penultimate sentence of such section:
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"; provided, however, nothing contained in this Section 5.10 shall be
construed to limit the rights of the Liquidity Lenders or the
Collateral Agent on behalf of the Liquidity Lenders to pursue any
remedy provided for herein or in any other Related Document".
(e) Amendment to Section 11.1. Section 11.1 of the Liquidity Loan Agreement
is hereby amended by deleting the reference to "Required Liquidity Lenders" in
clause (ii) thereof and substituting therefor "Required Liquidity Providers".
Section 3. Amendments to the Definitions List.
(a) The definition of "AFL Agreements" is hereby amended by adding "the
Loan Note," immediately following the phrase "the Loan Agreement,".
(b) The definition of "Liquidity Advance Note" is hereby amended to read in
its entirety as follows:
"Liquidity Advance Note" is defined in Section 3.9 of the Liquidity
Loan Agreement.
(c) The definition of "Program Size" is hereby amended by deleting the
reference to "Required Enhancement Amount" in clause (c) thereof and
substituting therefor "Letter of Credit Commitment".
(d) The following terms are hereby added to the Definitions List:
"Refunding Note" means, with respect to any Liquidity Lender, a
promissory note issued to such Liquidity Lender by AFL, substantially
in the form of Exhibit B to the Liquidity Loan Agreement, evidencing
the Refunding Advances (including a Commitment Termination Date
Liquidity Advance and, in the case of the Swing Line Lender, any Swing
Line Advances) by such Liquidity Lender to AFL, and all other
promissory notes accepted from time to time in substitution therefor
or renewal thereof.
"Revolving Note" means, with respect to any Liquidity Lender, a
promissory note issued to such Liquidity Lender by AFL, substantially
in the form of Exhibit A to the Liquidity Loan Agreement, evidencing
the Revolving Advances by such Liquidity Lender to AFL, and all other
promissory notes accepted from time to time in substitution therefor
or renewal thereof.
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Section 4. Conditions of Effectiveness. The following constitute conditions
precedent to the effectiveness of this Amendment:
(a) 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 Moody's to the effect that this Amendment will not result in the
downgrading or withdrawal of the then current ratings of the Commercial
Paper Notes;
(b) 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;
(c) Each Liquidity Lender and the Credit Enhancer shall each have
delivered written consent to this Amendment;
(d) AFL shall have delivered prior written notice of this Amendment to
each Rating Agency, the Depositary, the Agent, the Liquidity Agent and each
Dealer; and
(e) The Liquidity Agent shall have received an Opinion of Counsel to
AFL to the effect that (i) 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 and (ii) the Collateral Agent has a perfected
security interest in the Loan Agreement and the Loan Note.
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 the "Definitions List" or words of like import referring to the
Liquidity Loan Agreement or the Definitions List shall mean and be a reference
to the Liquidity Loan Agreement or the Definitions List, as applicable, 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, each of the Liquidity Loan
Agreement and the Definitions List is and shall
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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/ Richard L. Taiano
-------------------------------
Name: Richard L. Taiano
Title: Vice President
AFL FLEET FUNDING, INC.
By: /s/ Richard L. Taiano
-------------------------------
Name: Richard L. Taiano
Title: Vice President
CITIBANK, N.A., as Liquidity Agent
By: /s/ Annette Marsula
-------------------------------
Name: Annette Marsula
Title: Senior Trust Officer
Consented to by:
CREDIT SUISSE
NEW YORK BRANCH,
as Credit Enhancer
By: /s/ Geoffrey M. Craig
-------------------------------
Name: Geoffrey M. Craig
Title: Member of Senior Management
By: /s/ Kristinn R. Kristinsson
-------------------------------
Name: Kristinn R. Kristinsson
Title: Associate
CONSENT OF LIQUIDITY LENDERS
TO
AMENDMENT TO LIQUIDITY LOAN AGREEMENT
The undersigned, as Liquidity Lenders under the Loan Liquidity 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, hereby consent to the foregoing Amendment to Liquidity Loan Agreement.
IN WITNESS WHEREOF, the undersigned have caused this Consent to be executed
and delivered as of June 11, 1996 by their respective officers thereunto duly
authorized.
LIQUIDITY LOAN COMMITMENT LIQUIDITY LENDER
- ------------------------- ----------------
$15,000,000 BANK BRUSSELS LAMBERT,
NEW YORK BRANCH
By: /s/ Mallika Kambhampati
-------------------------------
Name: Mallika Kambhampati
Title: Vice President
By: /s/ Jean-Louis Recoussine
-------------------------------
Name: Jean-Louis Recoussine
Title: General Manager
$50,000,000 BANK OF MONTREAL
By: /s/ Robert K. Strong, Jr.
-------------------------------
Name: Robert K. Strong, Jr.
Title: Managing Director
$50,000,000 THE BANK OF NEW YORK
By: /s/ H. Stephen Griffith
-------------------------------
Name: H. Stephen Griffith
Title: Senior Vice President
$10,000,000 THE BANK OF TOKYO-MITSUBISHI,
LTD., NEW YORK BRANCH
By: /s/ Joseph P. Devoe
-------------------------------
Name: Joseph P. Devoe
Title: Attorney-in-fact
$30,000,000 BAYERISCHE HYPOTHEKEN-UND
WECHSEL-BANK
AKTIENGESELLSCHAFT,
NEW YORK BRANCH
By: /s/ R. Vogel
-------------------------------
Name: R. Vogel
Title: Banking Officer
By: /s/ R.G. Pankuch
-------------------------------
Name: R.G. Pankuch
Title: FVP
$25,000,000 BOATMEN'S NATIONAL BANK
OF ST. LOUIS
By: /s/ Michael S. Harvey
-------------------------------
Name:
Title:
$40,000,000 CITIBANK, N.A.
By: /s/ Kenneth M. Wozmser
-------------------------------
Name: Kenneth M. Wozmser
Title: Authorized Signatory
$50,000,000 COMMERZBANK AG, ATLANTA AGENCY
By: /s/ Andreas Bremer
-------------------------------
Name: Andreas Bremer
Title: SVP & Manager
By: /s/ Harry Yergey
-------------------------------
Name: Harry Yergey
Title: VP
$30,000,000 COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH
By: /s/ M. Christina Debler
-------------------------------
Name: M. Christina Debler
Title: Vice President
By: /s/ W. Jeffrey Vollack
-------------------------------
Name: W. Jeffrey Vollack
Title: Vice President, Manager
$50,000,000 DRESDNER BANK AG NEW YORK BRANCH
AND GRAND CAYMAN BRANCH
By: /s/ William E. Lambert
-------------------------------
Name: William E. Lambert
Title: Assistant Vice-President
By: /s/ Brian Haughney
-------------------------------
Name: Brian Haughney
Title: Assistant Treasurer
CONSENT OF LIQUIDITY LENDERS
TO
AMENDMENT TO LIQUIDITY LOAN AGREEMENT
The undersigned, as Liquidity Lenders under the Loan Liquidity 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, hereby consent to the foregoing Amendment to Liquidity Loan Agreement.
IN WITNESS WHEREOF, the undersigned have caused this Consent to be executed
and delivered as of June 11, 1996 by their respective officers thereunto duly
authorized.
LIQUIDITY LOAN COMMITMENT LIQUIDITY LENDER
- ------------------------- ----------------
$50,000,000 FIRST UNION NATIONAL BANK OF FLORIDA
By: /s/ Bruce Roland
-------------------------------
Bruce Roland
Vice President
$10,000,000 KREDIETBANK N.V.
By: /s/ Robert Snauffer
-------------------------------
Name: Robert Snauffer
Title: Vice President
By: /s/ Raymond F. Murray
-------------------------------
Name: Raymond F. Murray
Title: Vice President
$50,000,000 INTERNATIONALE NEDERLANDEN
(U.S.) CAPITAL CORPORATION
By: /s/ Michael Plunkett
-------------------------------
Name: Michael Plunkett
Title: Vice President
$50,000,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ Jeffrey Hwang
-------------------------------
Name: Jeffrey Hwang
Title: Vice President
$15,000,000 SOCIETE GENERALE
By: /s/ Ralph Saheb
-------------------------------
Name: Ralph Saheb
Title: Vice President, Manager