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EXHIBIT 4.1
THIRD AMENDMENT
THIRD AMENDMENT, dated as of June 26, 2001 (this "AMENDMENT"),
to the Amended and Restated Credit Agreement, dated as of June 30, 2000 (as
heretofore amended, supplemented or otherwise modified, the "CREDIT AGREEMENT"),
among ANC RENTAL CORPORATION, a Delaware corporation (the "BORROWER"), the
several Lenders from time to time parties thereto, LEHMAN BROTHERS INC., as
advisor, lead arranger and book manager, LEHMAN COMMERCIAL PAPER INC., as
syndication agent, BANKERS TRUST COMPANY, as documentation agent, and CONGRESS
FINANCIAL CORPORATION (FLORIDA), as administrative agent and collateral agent
(in such capacities, the "ADMINISTRATIVE AGENT").
W I T N E S S E T H:
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WHEREAS, the Borrower has requested that the Lenders amend
certain provisions of the Credit Agreement; and
WHEREAS, the Lenders have agreed to amend the Credit
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 Borrower, the Lenders and the Agents hereby
agree as follows:
1. DEFINITIONS. All terms defined in the Credit 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 Credit Agreement is hereby amended by:
(a) deleting the definition of "TRANSACTION DOCUMENTS" in its
entirety;
(b) inserting the following defined terms in their appropriate
alphabetical order:
""ANC LIBERTY AGREEMENT": the Agreement to be
executed by Liberty and the Borrower which shall be in form
and substance satisfactory to the Administrative Agent, as
evidenced by the execution of the amended and restated
Intercreditor Agreement by the Administrative Agent.
"LIBERTY GROUP": the collective reference to,
together with their respective successors and assigns:
Liberty, LM Insurance Corporation, The First Liberty Insurance
Corporation, Liberty Mutual Fire Insurance Company, Liberty
Insurance Corporation, and any of their Subsidiaries or
Affiliates that issue or assist in the issuance of Surety
Bonds.
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"LIBERTY INDEMNITY AGREEMENTS": the collective
reference to (as the same now exist or may hereafter be
amended, modified, supplemented, extended, renewed, restated
or replaced) the following: (a) the General Agreement of
Indemnity - Commercial Surety, dated August 4, 2000, by the
Borrower in favor of the Liberty Group pursuant to which the
Liberty Group may issue Surety Bonds and (b) the General
Agreement of Indemnity - Commercial Surety, dated October 31,
2000, by the Borrower in favor of the Liberty Group pursuant
to which the Liberty Group may issue Surety Bonds.
"SURETY BOND DOCUMENTS": the collective reference to
(as the same now exist or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced) the
following: (a) the Liberty Indemnity Agreements, (b) the
Surety Bonds, (c) the ANC Liberty Agreement, and (d) any other
agreements, documents and instruments executed and/or
delivered in connection therewith by the Borrower or any of
its Subsidiaries and/or any beneficiary or holder of any
Surety Bond.
"SURETY BONDS": the collective reference to (as the
same now exist or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced) the
bonds, undertakings, instruments of guaranty and other like
obligations on behalf of the Borrower or any of its
Subsidiaries in favor of another Person issued in accordance
with the terms and conditions of the Surety Bond Documents.
"TRANSACTION DOCUMENTS": the collective reference to
the Interim Loan Facility Amendment, the Interim Loan Facility
Collateral Documents, the ANC Liberty Agreement and the
amended and restated Intercreditor Agreement.".
(c) amending the definition of "CONSOLIDATED FIXED CHARGE
COVERAGE RATIO" by adding at the end thereof immediately before the period the
following:
"; PROVIDED that for determination of the Fixed Charge
Coverage Ratio for the period of the four consecutive fiscal
quarters of the Borrower ending with FQ3 2001 only, the
Consolidated Adjusted EBITDA of the Borrower and its
Subsidiaries for such period shall be the Consolidated
Adjusted EBITDA of the Borrower and its Subsidiaries for the
three consecutive fiscal quarters of the Borrower ending with
FQ3 2001.";
(d) amending the definition of "INTERIM LOAN FACILITY
COLLATERAL DOCUMENTS" by (i) deleting "and" immediately before clause (c)
thereof and substituting in lieu thereof a comma and (ii) adding at the end
thereof immediately before the period the following:
"and (d) the deed of trust, to be executed on or after the
Second Amendment Effective Date by Alamo Rent-A-Car, LLC in
favor of the Collateral Trustee, for the benefit of the
lenders and/or holders under the Interim Loan Facility and
Liberty, as the same may after the execution and delivery
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thereof be amended, supplemented or otherwise modified from
time to time in accordance with Section 7.9."; and
(e) amending the definition of "TRANSACTIONS" by deleting "and
(c)" therein and substituting in lieu thereof the following:
", (c) the Borrower and its Subsidiaries shall enter into the
ANC Liberty Agreement and (d)".
3. AMENDMENT OF SECTION 4.8 OF THE CREDIT AGREEMENT (OWNERSHIP
OF PROPERTY; LIENS). Section 4.8 of the Credit Agreement is hereby amended by
adding at the end of the second sentence thereof immediately before the period
the following: ", other than the real property subject of the Real Estate
Transactions".
4. AMENDMENT OF SECTION 5.7 (NOTICES). Section 5.7 of the
Credit Agreement is hereby amended by (i) deleting the word "and" at the end
clause (d) thereof, (ii) deleting the period at the end of clause (e) thereof
and substituting in lieu thereof "; and" and (iii) adding the following new
clause (f) at the end thereof:
"(f) any Event of Default under and as defined in the ANC
Liberty Agreement.".
5. AMENDMENT OF SECTION 7.1 (FINANCIAL CONDITION COVENANT)
Section 7.1 of the Credit Agreement is hereby amended by:
(a) deleting the following from Section 7.1(a) (Consolidated
Interest Coverage Ratio) thereof:
CONSOLIDATED
FISCAL QUARTER INTEREST COVERAGE RATIO
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"FQ2 2001 and each fiscal 3.25:1.00"
quarter thereafter
and substituting in lieu thereof the following:
CONSOLIDATED
FISCAL QUARTER INTEREST COVERAGE RATIO
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"FQ2 2001 1.50:1.00
FQ3 2001 1.00:1.00
FQ4 2001 and each fiscal quarter 3.25:1.00";
thereafter
(b) deleting the following from Section 7.1(b) (Consolidated
Fixed Charge Coverage Ratio) thereof:
CONSOLIDATED FIXED
FISCAL QUARTER CHARGE COVERAGE RATIO
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"FQ1 2001 and each fiscal 1.15:1.00"
quarter thereafter
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and substituting in lieu thereof the following:
CONSOLIDATED FIXED
FISCAL QUARTER CHARGE COVERAGE RATIO
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"FQ1 2001 1.15:1.00
FQ2 2001 1.00:1.00
FQ3 2001 1.00:1.00
FQ4 2001 and each fiscal quarter 1.15:1.00"; and
thereafter
(c) deleting the following from Section 7.1(c) (Consolidated
Adjusted Funded Debt Ratio) thereof:
CONSOLIDATED ADJUSTED
FISCAL QUARTER FUNDED DEBT RATIO
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"FQ2 2001 3.25:1.00
FQ3 2001 3.25:1.00"
and substituting in lieu thereof the following:
CONSOLIDATED ADJUSTED
FISCAL QUARTER FUNDED DEBT RATIO
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"FQ2 2001 3.75:1.00
FQ3 2001 4.50:1.00.".
6. AMENDMENT OF SECTION 7.3 (LIMITATION ON LIENS). Section 7.3
of the Credit Agreement is hereby amended by (i) deleting the word "and" at the
end of paragraph (p) thereof and substituting in lieu therefor a semicolon and
(ii) adding the following new paragraphs (r) and (s):
"(r) Liens in favor of the members of the Liberty Group to
secure the contingent indebtedness owed to the Liberty Group evidenced
by the Surety Bonds arising pursuant to the Surety Bond Documents as in
effect on the date of execution and delivery thereof, so long as each
of the following conditions have been satisfied as determined by the
Administrative Agent: (i) the Borrower and its Subsidiaries do not have
any arrangements with any member of the Liberty Group that gives any
such member of the Liberty Group any rights or remedies with respect to
the Collateral, other than (A) the Liens arising under Section 6 of the
Indemnity Agreements as in effect on the date of execution and delivery
thereof, (B) such rights or remedies that are within the scope of the
rights or remedies of a surety arising under the Surety Bond Documents
as in effect on the date of execution and delivery thereof or under
suretyship law and (C) the Liens pursuant to the Interim Facility
Collateral Documents as in effect on the date of execution and delivery
thereof to the extent permitted by Section 7.3(q) hereof; and (ii) the
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Borrower and any of its Subsidiaries shall not, directly or indirectly,
amend, modify, alter or change any terms of the Surety Bond Documents
or the Surety Bonds or enter into any other agreement, document or
instrument that in either case, would, as determined by Administrative
Agent in its good faith judgment, (A) result in any assets of the
Borrower or any of its Subsidiaries being subject to any Lien in favor
of any member of the Liberty Group, other than the assets that are
subject to the Liens or rights and remedies permitted by clause (i) of
this Section 7.3(r) as in effect on the effective date of the Third
Amendment, dated as of June 26, 2001, to this Agreement and (B) result
in any rights or remedies being granted to any member of the Liberty
Group with respect to the Collateral that are greater than or in
addition to the rights and remedies in favor of any member of the
Liberty Group permitted by clause (i) of this Section 7.3(r) as in
effect on the effective date of the Third Amendment, dated as of June
26, 2001, to this Agreement; and
(s) Liens on the property of National Car Rental (Canada) Inc.
to secure working capital Indebtedness of National Car Rental (Canada)
Inc. to Bank of Montreal (or its successors) in an amount not to exceed
25,000,000 Canadian Dollars.".
7. AMENDMENT OF SECTION 7.9 (LIMITATION ON OPTIONAL PAYMENTS
AND MODIFICATIONS OF DEBT INSTRUMENTS, ETC.). Section 7.9 of the Credit
Agreement is hereby amended by adding immediately after "contemplated by the
Interim Loan Facility Amendment" at the end of subclause (ii) in clause (b)
thereof the following:
"and by an amendment to the AutoNation Support Agreement to
consummate the Transactions".
8. AMENDMENT OF SECTION 7.13 (LIMITATION ON NEGATIVE PLEDGE
CLAUSES). Section 7.13(c) of the Credit Agreement is hereby amended by adding at
the end thereof immediately before the comma the following: "and the ANC Liberty
Agreement as in effect on the date of execution and delivery thereof and as
further amended, supplemented or otherwise modified from time to time therafter
except for any such amendment, supplement or other modification thereto which
would make more restrictive any such prohibition or limitation applicable to the
Borrower or any of its Subsidiaries thereunder".
9. AMENDMENT OF SECTION 7.14 (LIMITATION ON RESTRICTIONS ON
SUBSIDIARY DISTRIBUTIONS). Section 7.14 of the Credit Agreement is hereby
amended by (a) deleting the word "and" at the end of clause (vi) thereof and (b)
adding at the end thereof immediately before the period the following: "and
(viii) any restrictions existing under the ANC Liberty Agreement as in effect on
the date of execution and delivery thereof and as further amended, supplemented
or otherwise modified from time to time therafter except for any such amendment,
supplement or other modification thereto which would make more restrictive any
such restriction applicable to the Borrower or any of its Subsidiaries
thereunder".
10. AMENDMENT OF SECTION 8 (EVENTS OF DEFAULT). Section 8 of
the Credit Agreement is hereby amended by: (a) adding immediately after the
semicolon in paragraph (j) thereof "or"; and (b) adding at the end of paragraph
(j) thereof the following new paragraph (k) as follows:
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"(k) in addition to, and without limiting, the Events of
Default under this Section 8, an Event of Default under and as defined
in the ANC Liberty Agreement shall have occurred and shall not have
been cured or waived in a manner acceptable to the Administrative Agent
and the Required Lenders within thirty (30) days after the occurrence
of such Event of Default (unless otherwise extended by the
Administrative Agent in writing in its good faith judgment), so long as
during such thirty (30) day period (or such later period as may be
extended by the Administrative Agent), (i) Liberty shall not have
exercised any of its rights or remedies under the ANC Liberty Agreement
or otherwise during such time period and (ii) the Administrative Agent
shall not have issued a notice of default to the Borrower (it is
acknowledged that prior to the expiration of the foregoing grace
period, no Default shall be deemed to have occurred under this
Agreement);".
11. REPRESENTATIONS; NO DEFAULT. On and as of the date hereof,
and after giving effect to this Amendment, (a) the Borrower certifies that no
Default or Event of Default has occurred or is continuing, and (b) the Borrower
confirms, reaffirms and restates that the representations and warranties set
forth in Section 4 of the Credit Agreement and in the other Loan Documents are
true and correct in all material respects, PROVIDED that the references to the
Credit Agreement therein shall be deemed to be references to this Amendment and
to the Credit Agreement as amended by this Amendment.
12. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective on and as of the date that:
(a) the Administrative Agent shall have received counterparts
of this Amendment, duly executed and delivered by a duly authorized officer of
the Borrower;
(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 10.1 of the Credit
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 Borrower;
(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 Borrower; and
(e) the Administrative Agent shall have received an executed
certificate of an officer of the Borrower in form satisfactory to the
Administrative Agent as to (i) the accuracy of the representations and
warranties set forth in Section 4 of the Credit Agreement 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.
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13. LIMITED CONSENT AND AMENDMENT. Except as expressly amended
herein, the Credit 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 Credit 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 Credit Agreement or any of the instruments or agreements
referred to therein, as the same may be amended from time to time.
14. 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.
15. 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/ LELAND F. WILSON
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Name: Leland F. Wilson
Title: Vice President
LEHMAN COMMERCIAL PAPER INC.,
as Syndication Agent
By: /s/ G. ANDREW KEITH
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Name: G. Andrew Keith
Title: Authorized Signatory
CONGRESS FINANCIAL CORPORATION
(FLORIDA), as Administrative
Agent
By: /s/ MARTIN J. COLOSON JR.
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Name: Martin J. Coloson Jr.
Title: First Vice President
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ACKNOWLEDGMENT AND CONSENT
Each of the undersigned parties to the Guarantee and
Collateral Agreement, dated as of June 30, 2000 and as amended, supplemented or
otherwise modified from time to time, made by the undersigned in favor of
Congress Financial Corporation (Florida), as Administrative Agent, for the
benefit of the Secured Parties, hereby (a) consents to the transactions
contemplated by the foregoing Amendment to the Credit Agreement and (b)
acknowledges and agrees that the guarantees and grants of security interests
contained in the Guarantee and Collateral Agreement and in the other Security
Documents are, and shall remain, in full force and effect after giving effect to
such Amendment and all prior modifications to the Credit Agreement.
ALAMO RENT-A-CAR (CANADA), INC.
LIABILITY MANAGEMENT COMPANIES HOLDING, INC.
NATIONAL CAR RENTAL LICENSING, INC.
NATIONAL CAR RENTAL SYSTEM, INC.
REPUBLIC GUY SALMON PARTNER, INC.
REPUBLIC INDUSTRIES AUTOMOTIVE RENTAL GROUP
(BELGIUM) INC.
SPIRIT RENT-A-CAR, 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.
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/ LELAND F. WILSON
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Name: Leland F. Wilson
Title: Vice President
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ALAMO RENT-A-CAR, LLC
By: /s/ LELAND F. WILSON
-------------------------------
Name: Leland F. Wilson
Title: Vice President
ANC FINANCIAL CORPORATION
ANC FINANCIAL PROPERTIES, LLC
ANC INFORMATION TECHNOLOGY HOLDING, INC.
ANC INFORMATION TECHNOLOGY, INC.
ANC INFORMATION TECHNOLOGY, L.P.
By: ANC INFORMATION TECHNOLOGY, INC.,
its general partner
ANC IT COLLECTOR CORPORATION
ARC-TM PROPERTIES, LLC
NCR AFFILIATE SERVICER PROPERTIES, LLC
By: /s/ LELAND F. WILSON
--------------------------------
Name Leland F. Wilson
Title: Vice President
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EXHIBIT A
LENDER CONSENT LETTER
ANC RENTAL CORPORATION
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF JUNE 30, 2000
To: Lehman Commercial Paper Inc.
3 World Financial Center
New York, New York 10285
Congress Financial Corporation (Florida)
777 Brickell Avenue
Miami, Florida 33131
Ladies and Gentlemen:
Reference is made to the Amended and Restated Credit
Agreement, dated as of June 30, 2000 (as heretofore amended, supplemented or
otherwise modified, the "CREDIT AGREEMENT"), among ANC RENTAL CORPORATION, a
Delaware corporation (the "BORROWER"), the Lenders parties thereto, LEHMAN
COMMERCIAL PAPER INC., as Syndication Agent, CONGRESS FINANCIAL CORPORATION
(FLORIDA), as Administrative Agent, and others. Unless otherwise defined herein,
capitalized terms used herein and defined in the Credit Agreement are used
herein as therein defined.
The Borrower has requested that the Lenders consent to amend
the Credit 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 10.1 of the Credit Agreement, the
undersigned Lender hereby consents to the execution by the Agents of the
Amendment.
Very truly yours,
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(NAME OF LENDER)
By:
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Name:
Title:
Dated as of ____________ __, 2001