EXHIBIT 4.1
EXECUTION COPY
ASSIGNMENT, ASSUMPTION AND MODIFICATION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND MODIFICATION AGREEMENT (this "Agreement")
is made and entered into as of September 20, 1996, by and among GOTHAM FUNDING
CORPORATION (formerly known as Stellar Capital Corporation) (the "Assignor"),
BANNER RECEIVABLES CORPORATION (the "Assignee"), ALAMO RENT-A-CAR, INC., a
Florida corporation (the "Borrower"), THE BANK OF TOKYO-MITSUBISHI, LTD., NEW
YORK BRANCH ("BOTM"), as Fronting Bank, and BANK OF TOKYO-MITSUBISHI TRUST
COMPANY (BOTM Trust Company"), as Manager.
RECITALS
A. A Loan Agreement dated as of October 26, 1994 (as amended, modified
restated and supplemented from time to time, the "Loan Agreement") has been
entered into between the Borrower and the Assignor, as Lender (the "Lender").
All capitalized terms not otherwise defined herein are used herein as defined in
the Loan Agreement. Pursuant to the Loan Agreement, the Lender has agreed to
extend credit to the Borrower in an aggregate principal amount not to exceed at
any time $250,000,000 (the "Commitment"). The aggregate principal amount of
outstanding Loans under the Commitment made by the Assignor to the Borrower
pursuant to the Commitment is specified in Item 2 on Schedule 1 hereto (the
"Assignor Loans").
B. The Assignor wishes to be relieved on the Assignment Date of its
obligation to make further Loans under the Loan Agreement (with the effect that
on and after October 2, 1996 (the final Payment Date in respect of all Assignor
Loans now outstanding), all obligations to Assignor under the Loan Agreement be
repaid and Assignor have no further participation in the Loan Agreement). The
Borrower wishes to terminate its borrower relationship under the Loan Agreement
with the Assignor as soon as possible and to commence obtaining loans from the
Assignee on substantially the same terms as currently apply to Assignor Loans
under the Loan Agreement. The Assignee wishes to make loans to the Borrower on
substantially the same terms as currently apply to Assignor Loans under the Loan
Agreement.
C. The above could be accomplished by the Borrower terminating the Loan
Agreement and entering into a new loan agreement (with substantially the same
terms as the Loan Agreement) with the Assignee. For convenience and efficiency
only, the parties have determined to accomplish the substantive result described
in the preceding sentence by entering into this Agreement.
On the basis of valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties agree as follows:
Section 1. Assignment. Subject to the terms and conditions set forth
herein, the Assignor hereby sells and assigns without recourse to the Assignee,
and the Assignee purchases and assumes from the Assignor, on the date first set
forth above (the "Assignment Date"), all rights and obligations of the Assignor
under the Loan Agreement with respect to the Commitment. Assignor's rights and
obligations with respect to the Assignor Loans are not being assigned to the
Assignee.
Section 2. Consent and Undertaking. The Borrower hereby consents to the
assignment made herein, and without limiting any other obligation of the
Borrower hereunder, undertakes to provide a new Loan Note to the Assignee,
reflecting the amount of the Commitment.
Section 3. Representations and Warranties.
(a) Each of the Assignor and the Assignee represents and warrants to
the other that (i) it has full power and legal right to execute and deliver
this Agreement and to perform the provisions of this Agreement; (ii) the
execution, delivery and performance of this Agreement have been duly
authorized by all action, corporate or otherwise, and do not violate any
provisions of its charter or by-laws or any contractual obligations or
requirement of law binding on it; and (iii) this Agreement constitutes its
legal, valid and binding obligation, enforceable against it in accordance
with its terms subject, as to enforcement of remedies, to the following
qualifications: (1) an order of specific performance and an injunction are
discretionary remedies and, in particular, may not be available where
damages are considered an adequate remedy at law, and (2) enforcement may
be limited by bankruptcy, insolvency, liquidation, reorganization,
reconstruction and other similar laws affecting enforcement of creditors'
rights generally (insofar as any such law relates to the bankruptcy,
insolvency or similar event of the party against whom enforcement is
sought).
(b) The Borrower hereby confirms that each of its representations and
warranties made in the Loan Agreement are true and correct, on and as of
the Assignment Date, as if made on and as of such date.
(c) The Assignor and the Borrower each hereby represent and warrant
that the principal amounts and Payment Dates of each of the Assignor Loans
are as specified in Item 2 of Schedule 1 hereto.
Section 4. Condition Precedent. The obligations of the Assignor and the
Assignee hereunder shall be subject to (i) the execution and delivery by the
Manager of an Adoption Agreement with respect to Assignee's participation in the
Loan Agreement; (ii) the execution and delivery by the Collateral Agent of an
Approval of Loan Agreement under the Security Agreement with respect to
Assignee's participation in the Loan Agreement; (iii) receipt by the Assignee of
its Loan Note, appropriately completed and duly executed by the Borrower; (iv)
receipt by the Assignee of an opinion of Tripp, Scott, Conklin & Smith
acceptable to the Assignee; and (v) receipt by the Assignee of a litigation
certificate from the Borrower acceptable to the Assignee.
Section 5. Notice of Assignment. The Assignor and the Assignee hereby
instruct the Borrower to make payments (i) with respect to the Assignor Loans to
the Assignor in accordance with the Loan Agreement and (ii) with respect to the
Loans made by the Assignee pursuant to the Commitment to the Assignee in
accordance with the Loan Agreement. The Assignee's address for notices pursuant
to Section 11.1 of the Loan Agreement is specified in Item 3 on Schedule 1
hereto. From and after the Assignment Date, the Assignee shall be deemed to be a
party to the Loan Agreement and, to the extent that rights and obligations
thereunder shall have been assigned to Assignee as provided herein, shall have
the rights and obligations of the Lender under the Loan Agreement. From and
after the Assignment Date, (a) all interest, principal, fees and other amounts
that would otherwise be payable to the Assignor in respect of the Commitment
(other than in respect of the Assignor Loans) shall be paid to the Assignee, and
(b) if the Assignor receives any payment on account of the Commitment (other
than in respect of the Assignor Loans), the Assignor shall promptly deliver such
payment to the Assignee. Likewise, in the
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event the Assignee receives any payment on account of interest, principal, fees
or other amounts relating to the Assignor Loans, the Assignee shall promptly
deliver such payment to the Assignor. The Assignee agrees to deliver to the
Borrower such Internal Revenue Service forms as may be required to establish
that the Assignee is entitled to receive payments under the Loan Agreement
without deduction or withholding of tax.
Section 6. Independent Investigation. The Assignee acknowledges that it is
purchasing the Commitment from the Assignor totally without recourse and, except
as provided in Section 3 hereof, without representation or warranty. The
Assignee further acknowledges that it has made its own independent investigation
and credit evaluation of the Borrower in connection with its purchase of the
Commitment. Except for the representations or warranties set forth in Section 3,
the Assignee acknowledges that it is not relying on any representation or
warranty of the Assignor, expressed or implied, including without limitation,
any representation or warranty relating to the legality, validity, genuineness,
enforceability, collectability, interest rate, repayment schedule or accrual
status of the Commitment, the legality, validity, genuineness or enforceability
of the Loan Agreement, the Loan Note, or any other Loan Document referred to in
or delivered pursuant to the Loan Agreement, or financial condition or
creditworthiness of the Borrower. The Assignor has not and will not be acting as
either the representative, agent or trustee of the Assignee with respect to
matters arising out of or relating to the Loan Agreement or this Agreement. From
and after the Assignment Date, the Assignor shall have no rights or obligations
with respect to the Commitment.
Section 7. Other Collateral and Other Transactions. The Assignee shall have
no interest in any property in the Assignor's possession or control, or in any
deposit held or other indebtedness owing by the Assignor, which may be or become
collateral for or otherwise available for payment of the Assignor Loans by
reason of the general description of secured obligations contained in any
security agreement or other agreement or instrument held by the Assignor or by
reason of the right of setoff, counterclaim or otherwise. The Assignor and its
affiliates may accept deposits from, lend money to, act as trustee under
indentures for and generally engage in any kind of business with the Borrower,
and any person who may do business with or own securities of the Borrower, or
any Affiliate of the Borrower. The Assignee shall have no interest in any
property taken as security for any other loans or any other credits extended to
the Borrower by the Assignor.
Section 8. Amendments to Section 1.1 of the Loan Agreement. Section 1.1 of
the Loan Agreement is hereby amended as follows:
(a) On the Assignment Date, references to Collateral Agreement,
Commercial Paper, Issuing Agent, Issuing Agreement, Lender, Letter
Agreement, Liquidity Agreement, Loan Note, Management Agreement, Manager
and Participation Agreement shall be deemed to include the following
defined terms. On the date of repayment of the Assignor Loans, references
to Collateral Agreement, Commercial Paper, Issuing Agent, Issuing
Agreement, Lender, Letter Agreement, Liquidity Agreement, Loan Note,
Management Agreement, Manager and Participation Agreement shall be deemed
deleted in their entirety and replaced by the following defined terms.
During the period that Loans are outstanding from both the Assignor and the
Assignee, the claims of the Assignor and the Assignee against the Borrower
(and against the collateral under the Security Agreement) shall, except as
provided in Section 12 hereof, be pari passu.
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"Collateral Agreement" shall mean the Security Agreement dated as
of April 23, 1993 by and between the Lender and the Manager, as such
agreement has been and may be further amended, supplemented or
otherwise modified from time to time.
"Commercial Paper" shall have the meaning ascribed to "Commercial
Paper Notes" in the Issuing Agreement.
"Issuing Agent" shall mean the person serving as issuing and
paying agent and depositary under the Issuing Agreement.
"Issuing Agreement" shall mean the Depositary Agreement dated as
of April 23, 1993 between the Lender and the Manager, as Issuing
Agent, as such agreement has been and may be further amended,
supplemented or otherwise modified from time to time.
"Lender" shall mean Banner Receivables Corporation and its
successors and assigns.
"Letter Agreement" shall mean the Letter Agreement dated as of
September 20, 1996 between the Lender and the Borrower specifying
certain fees payable by the Borrower to the Lender and the applicable
margin.
"Liquidity Agreement" shall mean the Liquidity Agreement dated as
of September 20, 1996 between the Lender, as borrower, The Bank of
Tokyo-Mitsubishi, Ltd., New York Branch, as agent, Bank of
Tokyo-Mitsubishi Trust Company, as liquidity agent, Bank of
Tokyo-Mitsubishi Trust Company, as program administrator, and the
banks panty thereto, as such agreement may be amended, supplemented or
otherwise modified from time to time.
"Loan Note" shall mean the Loan Note delivered to Banner
Receivables Corporation ("Banner") pursuant hereto and to the
Assignment, Assumption and Modification Agreement, dated as of
September 20, 1996, among the Borrower, Banner, Gotham Funding
Corporation (formerly known as Stellar Capital Corporation), The Bank
of Tokyo-Mitsubishi, Ltd., New York Branch and Bank of
Tokyo-Mitsubishi Trust Company.
"Management Agreement" shall mean the Program Administration
Agreement dated as of September 20, 1996, between the Manager and the
Lender as such agreement has been and may be further amended,
supplemented or otherwise modified from time to time.
"Manager" shall mean Bank of Tokyo-Mitsubishi Trust Company, in
its capacity as Program Administrator under the Management Agreement
and its successors in such capacity.
"Participation Agreement" shall mean the Master Participation
Agreement dated September 20, 1996 between The Bank of
Tokyo-Mitsubishi, Ltd., New York Branch and the other Liquidity
Lenders, as such agreement shall be amended, supplemented or otherwise
modified from time to time.
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(b) References in the Loan Agreement and the Loan Documents to "The
Bank of Tokyo, Ltd." shall refer to "The Bank of Tokyo-Mitsubishi, Ltd.,";
and references therein to "The Bank of Tokyo Trust Company" shall refer to
"Bank of Tokyo-Mitsubishi Trust Company."
(C) The definition of "Notice of Increase" and all references thereto
are hereby deleted in their entirety on the date of repayment of the
Assignor Loans.
Section 9. Amendment to Section 2.19 of the Loan Agreement. Section 2.19 of
the Loan Agreement is hereby amended by deleting the reference to "ninety (90)
days" in the first line thereof and replacing it with "sixty (60) days".
Section 10. Amendment to Section 11.4 of the Loan Agreement. Section
11.4(b) of the Loan Agreement is hereby amended to read in its entirety as
follows:
The Lender may not assign any of its rights or obligations hereunder or
under the Loan Note or under the other Loan Documents without the consent
of the Borrower; provided, that, the Lender shall assign such rights to the
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Manager (in its capacity as collateral agent thereunder) pursuant to the
Collateral Agreement and, pursuant to the provisions of the Collateral
Agreement, the Manager (in its capacity as collateral agent thereunder) may
further assign the same; and provided, further, that, upon the request of
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the Required Lenders under the Liquidity Agreement at any time following
the occurrence and during the continuance of an Event of Default, the
Lender shall assign all of its rights and interests under the Loan
Agreement, the Loan Documents and the Loan Note to The Bank of
Tokyo-Mitsubishi, Ltd., New York Branch.
Section 11. Extension of Termination Date. In accordance with the terms and
provisions of Section 2.19 of the Loan Agreement, the Borrower and the Lender
agree that the Termination Date is hereby extended to September 19, 1997.
Section 12. Repayment of Assignor Loans. So long as no Default or Event of
Default shall occur and be continuing under the Loan Agreement, all payments of
principal and interest required to be made or made under the Loan Agreement
shall be applied first to the Assignor Loans. If a Default or Event of Default
shall occur and be continuing under the Loan Agreement, the Assignor and
Assignee shall be entitled to exercise all rights against the Borrower afforded
in the Loan Agreement or any other Loan Document or otherwise provided by law as
if their interests in the Loan Agreement were separate Credit Agreements for
purposes of the Security Agreement. Upon the payment in full of the Assignor
Loans, all rights of the Assignor (except for rights to indemnification or costs
under Article X or Section 11.12 of the Loan Agreement) under the Loan Agreement
shall be automatically transferred to, and become exercisable solely by, the
Assignee. Following repayment of the Assignor Loans, (i) the Manager shall
cancel and terminate the Collateral Agreement dated as of October 26, 1994 with
respect to Assignor's interest under the Loan Agreement, and all UCC financing
statements filed in respect thereof, (ii) Assignor shall cancel and return to
the Borrower Assignor's Loan Note, (iii) the Assignor shall terminate the
portion of its Liquidity Agreement currently allocated to the Loan Agreement,
(iv) The Bank of Tokyo-Mitsubishi, Ltd. shall cancel the Master Participation
Agreement dated as of October 26, 1994 and (v) the Manager, the Assignor, the
Borrower and the Assignee shall take such other action as is appropriate to
evidence the aforesaid repayment and the termination of the Assignor's
participation in the Loan Agreement.
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Section 13. Effect on Related Agreements on the Assignment Date and
Thereafter Until Payment of Assignor Loans.
(a) On the Assignment Date, the undrawn portion of the Alamo Related
Commitment under the Gotham Liquidity Agreement (the "Gotham Liquidity
Commitment") shall automatically be reduced to equal the Face Value (as
defined therein) of all then outstanding Alamo Related Commercial Paper.
(b) During the period from the Assignment Date until the payment of
the Assignor Loans (the "Interim Period") simultaneously with each
repayment of an Assignor Loan, the Gotham Liquidity Commitment shall
automatically be reduced by an amount equal to the Face Value of the Alamo
Related Commercial Paper formerly funding such Loan.
Section 14. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of the Assignor and
the Assignee.
Section 15. Method of Payment. All payments to be made by either panty
hereunder shall be in funds available at the place of payment on the same day
and shall be made by wire transfer to the account designated by the party to
receive payment.
Section 16. Integration. This Agreement shall supersede any prior agreement
or understanding between the parties (other than the Loan Agreement or the other
Loan Documents) as to the subject matter hereof. This Agreement shall be deemed
to be a Loan Document for all purposes under the Loan Agreement and the other
Loan Documents. The Assignee hereby makes each of the consents and agreements
required of it pursuant to Section 9.5 of the Loan Agreement.
Section 17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and shall be
binding upon both parties, their successors and assigns.
Section 18. Effect on Loan Agreement and Loan Documents. Any references or
provisions in the Loan Agreement or the Loan Documents which are inconsistent
with the provisions of this Agreement are hereby amended to be consistent with
the provisions of this Agreement. Except as amended or supplemented hereby, the
Loan Agreement and the Loan Documents each remain in full force and effect and
are each hereby ratified and approved in all respects.
Section 19. Lender Representative. The Assignee hereby irrevocably appoints
and authorizes, and hereby agrees that it will require any transferee of any of
its interest in its Loans and in its Loan Note irrevocably to appoint and
authorize, the Manager as its Lender Representative under the Security Agreement
to take such actions as its representative on its behalf and to exercise such
powers under the Loan Agreement as are delegated by the terms of the Loan
Agreement and the Security Agreement, together with such powers as are
reasonably incidental thereto, which shall include, but need not be limited to,
the voting of each Lender's Voting Obligations (as defined in the Security
Agreement) in accordance with the instructions of the Assignee in connection
with any matter requiring a vote of the Assignee, the execution of any Adoption
Agreement on behalf of such Lender and the execution of any Collateral Pool
Description Addendum; provided that the Lender Representative shall not instruct
the Collateral Agent to act except in compliance with the instructions of the
Borrower and the Lenders or under the terms and conditions of the Loan
Agreement.
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Section 20. References. From and after the Assignment Date, all references
to the Loan Agreement shall be deemed to be references to the Loan Agreement as
amended by this Agreement.
Section 21. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO ITS CONFLICTS OF LAW PRINCIPLES.
Section 22. Nonpetition Covenants.
(a) Notwithstanding any prior termination of this Agreement, neither
the Assignee, nor the Borrower, nor the Fronting Bank nor the Manager shall
themselves (or join with others to), prior to the date which is one year
and one day after the maturity of the last maturing Commercial Paper note
issued by the Assignor, acquiesce, petition or otherwise, directly or
indirectly, invoke or cause the Assignor to invoke the process of any
governmental authority for the purpose of commencing or sustaining a case
against the Assignor under any Federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Assignor or any
substantial part of its property or ordering the winding up or liquidation
of the affairs of the Assignor.
(b) Notwithstanding any prior termination of this Agreement, neither
the Assignor, nor the Borrower, nor the Fronting Bank nor the Manager shall
themselves (or join with others to), prior to the date which is one year
and one day after the maturity of the last maturing Commercial Paper note
issued by the Assignee, acquiesce, petition or otherwise, directly or
indirectly, invoke or cause the Assignee to invoke the process of any
governmental authority for the purpose of commencing or sustaining a case
against the Assignee under any Federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Assignee or any
substantial part of its property or ordering the winding up or liquidation
of the affairs of the Assignee.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused it to be executed, all as of the day and year first above written.
GOTHAM FUNDING CORPORATION
(formerly known as Stellar
Capital Corporation)
By /S/ Tiffany Percival
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Name TIFFANY PERCIVAL
Title Vice President
BANNER RECEIVABLES CORPORATION
By [ILLEGIBLE]
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Name ________________________
Title ________________________
"BORROWER"
ALAMO RENT-A-CAR, INC.,
a Florida corporation
By /S/ N. Maria Menendez
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N. Maria Menendez
Treasurer
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The Fronting Bank under the Liquidity Agreement with Stellar Capital
Corporation dated April 1, 1994 and the Liquidity Agreement with Banner
Receivables Corporation dated September 20, 1996 hereby agrees, accepts and
consents to the foregoing Assignment, Assumption and Modification Agreement.
"FRONTING BANK"
THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH
By [ILLEGIBLE]
------------------------------
Name ________________________
Title ________________________
Bank of Tokyo-Mitsubishi Trust Company, as Manager under the Management
Agreement and pledgor under a Collateral Agreement dated as of October 26, 1994
hereby agrees, accepts and consents to the foregoing Assignment, Assumption and
Modification Agreement.
"MANAGER"
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By [ILLEGIBLE]
--------------------------------
Name ________________________
Title ________________________
NationsBank, N.A. (South), as Collateral Agent, hereby consents to the
foregoing Assignment, Assumption and Modification Agreement.
NATIONSBANK, N.A. (SOUTH),
as Collateral Agent
By _________________________________
Richard M. Starke
Vice President
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The Fronting Bank under the Liquidity Agreement with Stellar Capital
Corporation dated April 1, 1994 and the Liquidity Agreement with Banner
Receivables Corporation dated September 20, 1996 hereby agrees, accepts and
consents to the foregoing Assignment, Assumption and Modification Agreement.
"FRONTING BANK"
THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH
By ________________________________
Name ________________________
Title ________________________
Bank of Tokyo-Mitsubishi Trust Company, as Manager under the Management
Agreement and pledgor under a Collateral Agreement dated as of October 26, 1994
hereby agrees, accepts and consents to the foregoing Assignment, Assumption and
Modification Agreement.
"MANAGER"
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By ________________________________
Name ________________________
Title ________________________
NationsBank, N.A. (South), as Collateral Agent, hereby consents to the
foregoing Assignment, Assumption and Modification Agreement.
NATIONSBANK, N.A. (SOUTH),
as Collateral Agent
By /S/Richard M. Starke
------------------------------
Richard M. Starke
Vice President
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SCHEDULE 1
TO
ASSIGNMENT, ASSUMPTION AND MODIFICATION AGREEMENT
Loan Agreement
Between Alamo Rent-A-Car, Inc., as borrower
and Banner Receivables Corporation,
as Lender
dated as of October 26, 1994
Item 1. Commitment $250,000,000
Item 2. Assignor Loans Outstanding $250,000,000
consisting of:
Maturity Date CP Face Amount
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10/01/96 $45,000,000.00
09/26/96 $60,000,000.00
09/25/96 $35,000,000.00
10/02/96 $50,000,000.00
10/01/96 $20,000,000.00
09/23/96 $40,000,000.00
Item 3. See Exhibit A to
Schedule I for Assignee
notice information
under Loan Agreement
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