Exhibit 4.49
FIRST AMENDMENT TO REIMBURSEMENT AGREEMENT
FIRST AMENDMENT, dated as of August 30, 2001 (this "Amendment"), to the
Reimbursement Agreement, dated as June 30, 2000 (the "Reimbursement Agreement"),
by and between ANC RENTAL CORPORATION, a Delaware corporation (the "Borrower"),
and AUTONATION, INC., a Delaware corporation (the "Lender").
W I T N E S S E T H:
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WHEREAS, pursuant to the Reimbursement Agreement, the Lender has agreed
to provide to the Borrower credit support for certain obligations incurred by
the Borrower in connection with its car rental business; and
WHEREAS, the Borrower and the Lender have agreed to amend certain
provisions of the Reimbursement Agreement in the manner provided for in this
Amendment.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. DEFINED TERMS. Terms defined in the Reimbursement Agreement and used
herein shall have the meanings given to them in the Reimbursement Agreement.
2. AMENDMENTS TO REIMBURSEMENT AGREEMENT.
(i) AMENDMENTS TO SECTION 1. Section 1.1 of the Reimbursement
Agreement is hereby amended as follows:
(1) by deleting the word "and" at the end of clause (v) of the
definition of "Continuing Obligations", and by deleting clause (vi) of
the definition of "Continuing Obligations" and substituting in lieu of
such clause (vi) the following:
"(vi) any reimbursement, indemnification or other agreement of
Borrower in favor of Liberty Mutual Insurance Company or any of its
affiliates, successors or assigns ("Liberty") in respect of the New AIG
Retro Bonding (as defined in that certain Indemnification Agreement
dated of even date herewith between Lender and Liberty
("Indemnification Agreement")); and
(vii) any other Indebtedness, liability or obligation of the
Borrower or its Subsidiaries for which there exists a Lender
Accommodation Obligation;"
(2) by deleting the word "and" at the end of clause (v) of the
definition of "Lender Accommodation Obligations" and by deleting clause
(vi) thereof and substituting in lieu of clause (vi) the following:
"(vi) any direct obligation of, or Guarantee Obligation from,
the Lender under the Indemnification Agreement; and
(vii) any other direct obligation or liability of, or
Guarantee Obligation from, the Lender in respect of or related to any
other Indebtedness, obligation or liability of the Borrower or its
Subsidiaries."
(2) AMENDMENT TO SECTION 2. Section 2.1(c) of the
Reimbursement Agreement is hereby amended by deleting the first sentence thereof
and substituting in lieu thereof the following:
"All Lender Accommodation Obligations shall expire no later
than the first anniversary of the Spin-Off Date, except for
Lender Accommodation Obligations related to the EuroDollar
Note, the Mitsubishi Property Leases, the Mitsubishi Fleet
Lease, and the New AIG Retro Bonding."
(3) AMENDMENT TO SECTION 3.1. Section 3.1 of the Reimbursement
Agreement is amended by deleting the first sentence thereof in its entirety and
substituting in lieu thereof the following:
"Notwithstanding any other provision of any of the Loan
Documents, effective upon the date on which the only remaining
outstanding Lender Accommodation Obligations are in respect of
the EuroDollar Note, the Mitsubishi Property Leases, the
Mitsubishi Fleet Lease and the New AIG Retro Bonding, and all
other Lender Accommodation Obligations have been paid,
satisfied and discharged in full, or have terminated or
expired, or have been waived by all of the respective
beneficiaries of such Lender Accommodation Obligations, such
that the Lender shall have no obligations or liability
whatsoever in respect thereof, the covenants of the Borrower
set forth in Sections 6.1, 6.2, 6.3, 6.4, 6.5 (subject to the
proviso below), 6.6, 6.8, and 6.9 of this Agreement shall
lapse and terminate, and have no further force nor effect;
PROVIDED HOWEVER that for so long as there remains any
outstanding Lender Accommodation Obligations in respect of the
New AIG Retro Bonding, Borrower agrees to comply with the
negative covenant contained in Section 6.5 hereof (a) without
regard to any waivers, amendments, consents or forbearance
agreements that might affect the terms of the Revolving Credit
Facility Loan Documentation or the Interim Facility Loan
Documentation since the date hereof; and (b) Borrower may not
make any Restricted Payment pursuant to the provisions of
Section 4.7(xii) of that certain Indenture dated June 30, 2001
evidencing the Interim Loan Facility without the written
consent of the Lender.
(4) Amendment to Section 5.1(c). Section 5.1 of the
Reimbursement Agreement is hereby amended by deleting the word "and" at the end
of subsection 5.1(b) thereof, by adding the word "and" at the end of subsection
5.1(c) thereof, and by adding the following subsection 5.1(d):
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"(d) any information required to be delivered to
Liberty pursuant to that certain Agreement between Borrower
and Liberty of even date herewith, including pursuant to
Section 5 thereof, as and when required thereunder;"
(5) AMENDMENT TO SECTION 5. Section 5 of the Reimbursement
Agreement is hereby amended by adding the following paragraph:
"5.10 REDUCTION OF THE LIBERTY INDEMNIFICATION OBLIGATIONS.
Post, on or before the date required by Section 4.4(b) of the
ANC - Liberty Agreement (as defined in the Indemnification
Agreement), additional cash or letter of credit collateral for
the benefit of Liberty, of a type and in an amount sufficient
to cause a reduction of the "Maximum Amount" (as defined in
the Indemnification Agreement) by at least $5.9 million for
each year elapsed since June 30, 2001, until such time as the
"Maximum Amount" is reduced to zero."
(6) Section 8 of the Reimbursement Agreement is hereby amended
by adding thereto the following paragraph:
"8.17 SPECIAL LIBERTY REPRESENTATIONS AND COVENANTS. (a)
Borrower represents to Lender that: (i) the New AIG Retro
Bonding secures in part certain premium, deductible, indemnity
and related obligations (collectively, whether or not
contingent, the "Liberty Secured AIG Obligations") of Borrower
to American International Group and/or its affiliates
(collectively with their respective successors and assigns,
"AIG"); and (ii) Borrower has posted to AIG as of July 31,
2001 cash and/or letters of credit in the collective actual
notional amount of $31,579,018 as additional collateral (such
amount, together with any additional amount of cash or letter
of credit collateral posted to AIG to secure the Liberty
Secured AIG Obligations, referred herein collectively as the
"AIG Cash Collateral") for the Liberty Secured AIG
Obligations.
(b) Borrower covenants and agrees that for so long as the
Indemnification Agreement remains in effect: (i) Borrower
shall not seek to obtain from AIG the release of, or seek to
obtain AIG's acquiescence to the reduction, termination or
cancellation of, any AIG Cash Collateral for so long as
Liberty has any liability or potential liability in respect of
the New AIG Retro Bonding; (ii) if AIG reduces its collateral
requirements (whether or not in connection with the sale of a
division or segment of business of the Borrower) for the
Liberty Secured AIG Obligations ("AIG Collateral Reduction"),
Borrower shall request, and shall satisfy any and all
reasonable requirements necessary to cause, the reduction of
the maximum penal sum of the New AIG Retro Bonding by the
amount of the AIG Collateral Reduction; and (iii) if AIG
unilaterally releases, or permits a reduction, termination or
cancellation of, any AIG Cash Collateral (whether or not in
connection with the sale of a division or segment
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of business of the Borrower) in lieu of reducing the amount of
the maximum penal sum of the New AIG Retro Bonding (it being
understood that such unilateral act would not be a breach of
clause (i) of this subsection 8.17(b)), Borrower shall take
all reasonable efforts (including satisfying any and all
reasonable requirements of AIG) to use such released AIG Cash
Collateral (or the benefits derived thereby) to either cause a
reduction on a dollar-for-dollar basis of the Maximum Amount
of the Indemnification Agreement, or to secure Borrower's
obligations hereunder in respect of the New AIG Retro Bonding.
(c) Borrower covenants and agrees that for so long as the
Indemnification Agreement remains in effect: (i) Borrower
shall not seek to obtain from Liberty the release of, or seek
to obtain Liberty's acquiescence to the reduction, termination
or cancellation of, any letter of credit or cash collateral
posted by Borrower in favor of Liberty ("Liberty Cash
Collateral") in respect of the New AIG Retro Bonding; (ii) if
Liberty reduces its collateral requirements for Borrower's
obligations in respect of the New AIG Retro Bonding ("Liberty
Collateral Reduction"), Borrower shall request, and shall
satisfy any and all reasonable requirements necessary to cause
the reduction by Liberty of the Maximum Amount under the
Indemnification Agreement by the amount of the Liberty
Collateral Reduction; and (iii) if Liberty unilaterally
releases, or permits a reduction, termination or cancellation
of, any Liberty Cash Collateral in lieu of reducing the amount
of the Maximum Amount of the Indemnification Agreement (it
being understood that such unilateral act would not be a
breach of clause (i) of this subsection 8.17(c)), Borrower
shall utilize the released Liberty Cash Collateral (or the
benefits derived thereby) to either secure Borrower's
obligations hereunder in respect of the New AIG Retro Bonding
or to secure Borrower's obligations in respect of the
obligations underlying the New AIG Retro Bonding.
(d) The provisions of subparagraph (b) of this Section 8.17
shall not apply in respect of the cancellation of that certain
$9 million letter of credit issued by First Union National
Bank, N.A. in favor of AIG for the purpose of effecting the
concurrent issuance of a $9 million letter of credit to be
issued on behalf of Borrower in favor of Liberty pursuant to
section 4.4(a) of that certain Agreement of even date herewith
between Liberty and Borrower."
(7) AMENDMENT TO SCHEDULE 2.2. Schedule 2.2 of the
Reimbursement Agreement is hereby amended by adding thereto the following
paragraph:
"7. LIBERTY BONDS. The Borrower shall pay to the Lender an
accommodation fee (the "Liberty Accommodation Fee") computed
by multiplying an agreed upon notional amount equal to the
"Maximum Amount" as defined in the Indemnification Agreement
(which, as of the
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date hereof, is $29,500,000) by the applicable per annum rate
set forth below opposite the applicable period:
Period Rate
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From the date hereof through September 30, 2001 0%
October 1, 2001 through March 31, 2002 3%
April 1, 2002 through September 30, 2002 6%
October 1, 2002 through December 31, 2002 7%
January 1, 2003 through March 31, 2003 8%
April 1, 2003 through June 30, 2003 9%
July 1, 2003 and thereafter 10%
The Liberty Accommodation Fee shall be payable quarterly in
arrears commencing on April 1, 2002; PROVIDED HOWEVER, that
the Liberty Accommodation Fee shall be waived in the event
Lender shall be released in full from its obligations under
the Indemnification Agreement on or prior to March 31, 2002."
3. CONDITIONS TO EFFECTIVENESS. This Amendment shall become effective
on the date (the "Amendment Effective Date") on which all of the following
conditions precedent have been satisfied:
(1) The Borrower and the Lender shall have executed and
delivered this Amendment.
(2) The Lender shall have received a copy of the resolutions,
in form and substance satisfactory to the Lender, of the Board of Directors of
the Borrower authorizing the execution, delivery and performance of this
Amendment, certified by the Secretary or an Assistant Secretary of the Borrower
as of the Amendment Effective Date, which certificate shall state that the
resolutions thereby certified have not been amended, modified, revoked or
rescinded as of the date of such certificate.
(3) The Lender shall have received a certificate of the
Secretary or Assistant Secretary of the Borrower, dated the Amendment Effective
Date, as to the incumbency and signature of each officer of the Borrower signing
this Amendment and any other instrument or document delivered by the Borrower in
connection herewith, together with evidence of the incumbency of such Secretary
or Assistant Secretary.
4. GENERAL.
(i) REPRESENTATIONS AND WARRANTIES; COVENANTS. To induce the
Lender to enter into this Amendment, the Borrower hereby represents, warrants
and covenants to the Lender that:
(1) The Borrower has the corporate power and authority to execute,
deliver and perform this Amendment and to perform the Reimbursement
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Agreement, as amended hereby, and has taken all necessary corporate
action to authorize the execution, delivery and performance of this
Amendment and the performance of the Reimbursement Agreement, as so
amended.
(2) The Borrower is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
(3) No consent or authorization of, approval by, notice to, filing with
or other act by or in respect of, any Governmental Authority or any
other Person is required in connection with the execution, delivery and
performance of this Amendment or with the performance, validity or
enforceability of the Reimbursement Agreement, as amended hereby,
except for consents, authorizations, approvals, notices, filings or
other acts (x) that have been made or obtained or (y) the failure to
obtain the same would not have a Material Adverse Effect.
(4) This Amendment has been duly executed and delivered on behalf of
the Borrower.
(5) This Amendment and the Reimbursement Agreement, as amended hereby,
constitutes a legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms, except
as affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws relating to or
affecting the enforcement of creditors' rights generally and general
equitable principles (whether considered in a proceeding in equity or
at law).
(6) The execution, delivery and performance of this Amendment and the
performance of the Reimbursement Agreement, as amended hereby, will not
violate any Requirement of Law or Contractual Obligation of the
Borrower or of any of its Subsidiaries and will not result in, or
require, the creation or imposition of any Lien on any of its or their
respective properties or revenues pursuant to any such Requirement of
Law or Contractual Obligation, except to the extent any of the
foregoing would not have a Material Adverse Effect.
(7) No Default or Event of Default has occurred and is continuing under
the Reimbursement Agreement, and no default or event of default has
occurred and is continuing under any agreement or instrument evidencing
any material Indebtedness of the Borrower or any of its Subsidiaries
the outstanding principal balance of which exceeds $5,000,000.
(2) PAYMENT OF EXPENSES. The Borrower agrees to pay or
reimburse the Lender for all of its reasonable out-of-pocket costs and expenses
incurred in connection with this Amendment, any other documents prepared in
connection herewith and the transactions contemplated hereby, including, without
limitation, the reasonable fees and disbursements of Akerman, Senterfitt &
Eidson, P.A., special counsel to the Lender.
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(3) NO OTHER AMENDMENTS. Except as expressly amended, modified
or supplemented hereby, the provisions of the Reimbursement Agreement,
including, without limitation, Section 2.1(c) thereof, shall continue to be, and
shall remain, in full force and effect in accordance with their respective
terms.
(4) GOVERNING LAW; COUNTERPARTS.
(1) This Amendment and the rights and obligations of
the parties hereto shall be governed by, and construed and interpreted in
accordance with, the law of the State of New York.
(2) This Amendment may be executed by the parties
hereto in any number of separate counterparts, and all of such counterparts
taken together shall be deemed to constitute one and the same instrument.
Delivery of an executed counterpart of a signature page to this Amendment by
facsimile transmission shall be effective as delivery of a manually executed
counterpart of this Amendment. This Amendment shall not be effective until such
time as Borrower delivers an executed counterpart of this Amendment to Lender's
authorized agent and Lender's authorized agent accepts delivery thereof at the
closing of the transaction contemplated hereby in New York, New York.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective proper and duly authorized
officers as of the date first written above.
ANC RENTAL CORPORATION
By: /s/ O. Mason Hurst, II
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Name: O. Mason Hurst, II
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Title: Vice President and Secretary
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AUTONATION, INC.
By: /s/ Michael J. Jackson
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Name: Michael J. Jackson
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Title: CEO
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