Exhibit 4.53
SIXTEENTH AMENDMENT
SIXTEENTH AMENDMENT, dated as of September 28, 2001 (this
"AMENDMENT"), to and under 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, LEHMAN BROTHERS INC., as sole advisor, sole lead arranger and sole book
manager, and LEHMAN 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, in light of recent events affecting the Company's
business, prospects and financial condition the Company has requested that the
Lenders defer an imminent principal repayment and amend certain provisions of
the Senior Loan Agreement; and
WHEREAS, the Lenders have agreed to defer such repayment and
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 Credit Agreement is hereby amended by adding the following new defined term
in its appropriate alphabetical order:
""GM PROPOSALS": proposals to be made to General Motors
Corporation regarding potential equity or debt investments or any
potential fee reduction, operating concessions or other forms of
support".
3. AMENDMENT OF SECTION 2.5 (OPTIONAL AND MANDATORY
PREPAYMENTS). Section 2.5(c) of the Senior Loan Agreement is hereby amended by
deleting "on September 30, 2001" therein and substituting in lieu thereof "on
November 30, 2001".
4. AMENDMENT OF SECTION 5.1 (FINANCIAL STATEMENTS). Section
5.1 of the Senior Loan Agreement is hereby amended by (i) deleting the word
"and" at the end clause (a) thereof, (ii) deleting the semicolon at the end of
clause (b) thereof and substituting in lieu thereof "; and" and (iii) adding the
following new clause (c) at the end thereof:
"(c) as soon as available, but in any event not later than 10
Business Days after the end of each calendar month occurring during
each fiscal year of the Company,
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commencing on October 12, 2001, the unaudited consolidated balance
sheets of the Company and its subsidiaries as at the end of such month
and the related unaudited consolidated statements of income and of cash
flows for such month and the portion of the fiscal year through the end
of such month, setting forth in each case in comparative form (i) the
figures as of the end of and for the corresponding period in the
previous year and (ii) the figures as of the end of and for the
corresponding period as contemplated in the Company's business plan
delivered to the Lenders on or about June 15, 2001 or, on and after
delivery thereof, any subsequent business and/or restructuring plan
delivered to the Lenders pursuant to Section 5.2(i), in each case
certified by a Responsible Officer as being fairly stated in all
material respects (subject to normal year-end audit adjustments);".
5. AMENDMENT OF SECTION 5.2 (CERTIFICATES; OTHER INFORMATION).
Section 5.2 of the Senior Loan Agreement is hereby amended by: (a) deleting the
reference in the introductory clause thereof to "clause (h)" and substituting in
lieu thereof "clause (k)" and (b) relettering clause (d) thereof as clause (k)
and adding new clauses (d), (e), (f), (g), (h), (i) and (j) immediately after
clause (c) thereof as follows:
"(d) on or before Monday of each calendar week, commencing on
October 1, 2001:
(i) a statement, in detail reasonably satisfactory to
the Administrative Agent, of consolidated cash flows for the
Company and its Subsidiaries for the immediately preceding
calendar week, including without limitation, detail as to the
aggregate amount of capital expenditures and any payments in
excess of $1,000,000 to any Person made during such week;
(ii) a forecast, in detail reasonably satisfactory to
the Administrative Agent, of consolidated cash flows for the
Company and its Subsidiaries for the period of thirteen
consecutive calendar weeks beginning in the week immediately
following the week in which such forecast is delivered,
including without limitation, detail with respect to the
following information incorporated into such forecast: fleet
size, fleet mix and the aggregate amount of credit enhancement
provided in respect of maintenance of the fleet and in respect
of any Indebtedness, surety and other obligations of the
Company or any Subsidiary thereof, together with a comparison
of such amounts to the amount for the same period during the
immediately preceding fiscal year of the Company; and
(iii) a consolidated report, in detail reasonably
satisfactory to the Administrative Agent, of accounts
receivable for the immediately preceding week of the
businesses conducted by each of National Car Rental System,
Inc. and Alamo Rent-A-Car, LLC and their Subsidiaries;
(e) on or before the fifteenth day of each calendar month
commencing on October 15, 2001, a forecast, in detail reasonably
satisfactory to the Administrative Agent, of consolidated cash flows
for the Company and its Subsidiaries for the period of 12 consecutive
calendar months beginning in the month immediately following the
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month in which such forecast is delivered, including the assumptions
based upon which such forecast was prepared in respect of fleet size,
fleet mix and the aggregate amount of credit enhancement provided in
respect of maintenance of the fleet and in respect of any Indebtedness,
surety and other obligations of the Company or any Subsidiary thereof;
(f) on or before the tenth Business Day of each calendar month
commencing on October 12, 2001, a consolidated report, in detail
reasonably satisfactory to the Administrative Agent, of accounts
receivable and payable (including agings) for the immediately preceding
month of the Company and its Subsidiaries;
(g) as soon as possible, but in any event within one Business
Day after the distribution thereof to senior management of the Company
or any Subsidiary thereof, internal reports of the operations of the
Company and its Subsidiaries, including without limitation, (i)
internal reports known as the "Daily Flash Report", which shall include
detail by brand (i.e., Alamo and National) as to revenue, utilization,
fleet size, rental volumes and pricing, and comparisons of any such
information to levels for prior periods, (ii) reports detailed by brand
(i.e., Alamo and National) as to advanced booking and comparisons of
any such information to levels for prior periods and (iii) reports as
to performance of the Alamo Local Markets Division and International
Division of the Company;
(h) on or before the twentieth day of each calendar month,
commencing on October 20, 2001:
(i) detail and summary relating to the valuation of
the fleet and information as to the outstanding Indebtedness
of the Company and its Subsidiaries, in each case prepared by
the Company in the ordinary course of business for, or
provided to any other lender, creditor or bond provider (or
any affiliate of any of the foregoing); it being understood
that the foregoing requirement shall be satisfied by delivery
of the Company's servicer reports for its domestic fleet
financing;
(ii) updated forecasts, projections or business plans
for the remainder of the then-current fiscal year of the
Company and the next following fiscal year for, or provided to
any other lender, creditor or bond provider (or any affiliate
of any of the foregoing);
(iii) information as to any past or pending
significant events or transactions that are material to the
Company or any Subsidiary thereof; PROVIDED that the Company
shall not be obligated to deliver confidentiality agreements,
financial advisory engagement letters, financial advisory fee
letters, non-binding letters of interest, bids, commitment
letters for commercial lending or high yield financings, or
non-binding letters of intent, each to the extent they are by
their terms confidential (collectively, "CONFIDENTIAL
AGREEMENTS"); and
(iv) any other or similar material information or
material data that the Company has furnished to any other any
other lender, creditor or bond
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provider (or any affiliate of any of the foregoing); PROVIDED
that the Company shall not be obligated to deliver any
Confidential Agreements;
(i) as soon as available but in any event within one
Business Day after distribution thereof to senior management
of the Company, any restructuring plan or updated business
plan prepared by, for or on behalf of the Company or any
Subsidiary thereof;
(j) on or before October 15, 2001, the GM Proposals
and, as promptly as possible after the occurrence of any
material discussions with General Motors Corporation in
respect of the GM Proposals, updates as to the progress of
such discussions; and".
6. AMENDMENT OF SECTION 5.7 (NOTICES). Section 5.7 of the Senior Loan
Agreement is hereby amended by (i) deleting the word "and" at the end of clause
(e) thereof, (ii) deleting the period at the end of clause (f) thereof and
substituting in lieu thereof "; and" and (iii) adding a new clause (g) at the
end thereof as follows:
"(g) as soon as possible but in no event later than
the day in which any such payment occurs, any payments in an aggregate
amount exceeding $1,000,000 made on such day by the Company or any of
its Subsidiaries to any Person, except for any such payments in respect
of (i) state or payroll taxes, (ii) remittals of insurance premiums,
(iii) remittals of travel agent commissions and (iv) ordinary course
payments to Perot Systems, Inc.".
7. AMENDMENT OF SECTION 5 OF THE SENIOR LOAN AGREEMENT (AFFIRMATIVE
COVENANTS). Section 5 of the Senior Loan Agreement is hereby amended by adding
at the end thereof new Sections 5.16, 5.17 and 5.18 as follows:
"5.16. PURSUIT OF TRANSACTIONS. Continue to pursue
strategic alternatives for the Company and its Subsidiaries as
described in the Company's Form 8-K report dated August 2, 2001,
including, without limitation, transactions proposed or under
discussion prior to September 19, 2001, and transactions that may be
proposed after September 19, 2001, in each case providing for the sale,
upon commercially reasonable terms, of all of, or discrete portions of,
the business of the Company and its Subsidiaries or for the investment
in the Company of additional equity.
5.17. CRISIS MANAGER. Continue to retain William N.
Plamondon as a crisis manager (or a replacement crisis manager
reasonably satisfactory to the Administrative Agent), which crisis
manager shall be permitted to communicate directly with the
Administrative Agent and the Company's board of directors to, among
other things, (a) assist the Company and its Subsidiaries with (i) the
strategic and operational decisions of the Company and its Subsidiaries
as requested by the board of directors of the Company, (ii) the
modification and enhancement of the management information systems and
reporting systems of the Company and its Subsidiaries and (iii) the
management of and communications with its creditors and other parties,
(b) supplement the treasury and finance staff of the Borrower and its
Subsidiaries as needed and (c) make recommendations to conserve and
generate cash and liquidity for the Company and its Subsidiaries.
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5.18. SALES OF PROPERTY. Continue to pursue the sale
on commercially reasonable terms of property owned by the Company or
any Subsidiary thereof which is neither material nor necessary to the
operations of the business of the Company and its Subsidiaries.".
8. AMENDMENT OF SECTION 6.13 (LIMITATION ON BUSINESS ACTIVITIES).
Section 6.13 of the Senior Loan Agreement is hereby amended by adding at the end
thereof immediately before the period the following: "PROVIDED, HOWEVER, the
Company will not, and the Company will not permit any of its Restricted
Subsidiaries to, directly or indirectly, extend or expand the business conducted
by the Alamo Local Market Division of the Company".
9. AMENDMENT OF SECTION 7 (EVENTS OF DEFAULT). Section 7(e) of the
Credit Agreement is hereby amended by adding immediately after "this Section 7"
in the parenthetical therein "or in Sections 5.16, 5.17 or 5.18".
10. 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 (i) 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 and (ii) for
purposes of this Section 10 the representation and warranty contained in (A)
Section 3.2 of the Senior Loan Agreement shall be deemed modified to change the
date referred to therein from December 31, 1999 to September 17, 2001 and (B)
Section 3.18 of the Senior Loan Agreement shall be deemed modified to change the
last sentence thereof to replace the word "There" in the beginning of such
sentence with "Since September 17, 2001, there".
11. 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; and
(c) 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.
12. LIMITED AMENDMENT. Except as expressly amended herein, the Senior
Loan Agreement shall continue to be, and shall remain, in full force and effect.
This
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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.
13. 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.
14. 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/ Howard D. Schwartz
-------------------------------------
Name: Howard D. Schwartz
Title: Sr. Vice President & Secretary
LEHMAN COMMERCIAL PAPER INC.,
as Administrative Agent
By: /s/ G. Andrew Keith
-------------------------------------
Name: G. Andrew Keith
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 Lehman 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 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
-------------------------------------
Name: Leland F. Wilson
Title: Vice President & Treasurer
ALAMO RENT-A-CAR, LLC
By: /s/ Kathleen W. Kyle
-------------------------------------
Name: Kathleen W. Kyle
Title: Sr. Vice President & Treasurer
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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 & Treasurer
EXHIBIT A
to Sixteenth Amendment
LENDER CONSENT LETTER
ANC RENTAL CORPORATION
AMENDED AND RESTATED SENIOR LOAN AGREEMENT
DATED AS OF JUNE 30, 2000
To: Lehman Commercial Paper Inc.
3 World Financial Center
New York, New York 10285
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, LEHMAN 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