Exhibit 10.2


 


FIRST AMENDMENT TO

ASSET PURCHASE AGREEMENT


 


This First Amendment, dated as of June 30, 2003 (this “Amendment”),
to the Asset Purchase Agreement (the “Agreement”), dated as of June 12,
2003, by and among ANC Rental Corporation, a Delaware corporation (“Seller”),
the Subsidiaries set forth on the signature page hereto (Seller and such
Subsidiaries collectively referred to as the “Debtors”), CAR Acquisition
Company LLC, a Delaware limited liability company (“Purchaser”), Cerberus
Capital Management, L.P., a Delaware limited partnership (“CCM”) and, solely
with respect to Section 2.5, Lehman Commercial Paper Inc., a New York
corporation (“Lehman”).


 


WHEREAS, the parties to the Agreement desire to enter into this
Amendment to amend certain provisions of the Agreement, as set forth below.


 


NOW, THEREFORE, in consideration of the premises and the mutual
covenants and conditions herein contained, the parties hereto hereby agree as
follows:


 


Section 1.                                                    Capitalized
Terms. All capitalized terms used in this Amendment and not otherwise
defined herein shall have their respective meanings set forth in the Agreement.


 


Section 2.                                                    Amendments.


 


Section 2.1.                                           Definitions.
Section 1.1 of the Agreement is hereby amended by adding the following
defined terms:


 


“9/11 Business Interruption Insurance Claim” shall mean the claim of
Debtors under Lexington Insurance Policy #852-6825 relating to the September 11,
2001, terrorist attacks.


 


“Avis/Hertz Claims” shall mean the claims that may be asserted
against Avis and Hertz for their predatory or anti-competitive actions in
connection with Debtors’ airport consolidation program.


 


Section 2.2.                                           Purchase
and Sale of Acquired Assets. Section 2.1 of the Agreement is hereby
amended by adding the following after the word “Business” at the end of clause (iii) of
Section 2.1(aa): “(other than the 9/11 Business Interruption Insurance
Claim)”.


 


Section 2.3.                                           Excluded
Assets. Section 2.2 of the Agreement is hereby amended by:


 


(a)                      deleting
Section 2.2(h) and replacing it in its entirety to read as follows:


 


“(h)               the
9/11 Business Interruption Insurance Claim (and the insurance proceeds and
awards derived therefrom), as well as the insurance proceeds, awards, claims
and causes of action not of the type contemplated by Section 2.1(aa);” and


 

















 


(b)                     adding
the following Section 2.2(n) after Section 2.2(m) (and deleting the “and”
after Section 2.2(1) and inserting “; and” in place of the period at
the end of Section 2.2(m)):


 


“(n)               (i) 25%
of the cash proceeds (including cash equivalents and cash actually received
upon payment of any promissory note) (net of expenses of collection) received
by Debtors on or prior to the Closing Date in respect of the Avis/Hertz Claims
and (ii) 25% of the cash proceeds (including cash equivalents and cash
actually received upon payment of any promissory note) (net of expenses of
collection) received by Purchaser or any of its Affiliates after the Closing
Date in respect of the Avis/Hertz Claims, such cash proceeds to be payable to
Debtors in accordance with Section 5.26.”


 


Section 2.4.                                           Assumed
Liabilities. Section 2.3(b) of the Agreement is hereby amended by
adding the following after the word “Commitment”: “(including any Encumbrances
thereunder)”.


 


Section 2.5.                                           Excluded
Liabilities. Section 2.4(k)of the Agreement is hereby deleted and
replaced in it entirety to read as follows:


 


“(k)                all
Liabilities of any Debtor relating to (i) any Benefit Plans not listed on Schedule 2.1(g) (other
than as provided in Section 2.3(h)) including the Key Employee Retention
Plan, the 401(k) Plan and the Company Health and Welfare Plan, (ii) all
Liabilities of any Debtor under the New Severance Plan and (iii) all
Liabilities of any Debtor under FAMPACT.”


 


Section 2.6.                                           Bidding
Procedures.


 


(a)                      The
second sentence of Section 5.7(a) is amended to read in its entirety
as follows: “Attached as Annex I are the bidding procedures (the “Bidding
Procedures”) to be employed with respect to this Agreement concerning the sale
of the Acquired Assets to Purchaser (the “Sale”). The order of the Bankruptcy
Court approving the Bidding Procedures attached hereto as Exhibit G is
hereinafter referred to as the “Bidding Procedures Order”. The Bidding
Procedures may be amended, modified or supplemented with the consent of
Purchaser, after consultation with the Secured Creditors and the Committee.”;
and


 


(b)                     Sections
5.7(b) through Section 5.7(f) are hereby deleted in their
entirety, and in lieu thereof Annex I is incorporated herein by reference as
Sections 5.7(b) through Section 5.7(f).


 


Section 2.7.                                           Termination
Fee. Section 5.7(g) of the Agreement is hereby deleted and
replaced in its entirety to read as follows:


 


“The Debtors shall pay a fee in an amount equal to $11,000,000 (“Termination
Fee”) (which amount is inclusive of all expenses, except for expenses of $250,000
that were authorized and will be reimbursed pursuant to the Expense
Reimbursement Order) to Purchaser in the event that the Debtors (i) accept
a Bid, other than that of Purchaser, as the highest and best offer, (ii) sell,
transfer, lease or otherwise dispose directly or indirectly, including through
an asset sale, stock sale, merger, reorganization or other similar transaction
(by any Debtor or otherwise), all or substantially all or a material portion of
the Acquired Assets (or agree to do any


 


2

















 


of the foregoing)
in a transaction or series of transactions to a party or parties other
than Purchaser within one year from the date hereof, or (iii) choose not
to sell, transfer, lease or otherwise dispose of, directly or indirectly,
including through an asset sale, stock sale, merger, reorganization or other
similar transaction (by any Debtor or otherwise), all or substantially all or a
material portion of the Acquired Assets (or agree to do any of the foregoing)
to Purchaser whether as a result of the proposal of a stand-alone plan of
reorganization or otherwise (either of clause (i), (ii) or (iii), an “Alternative
Transaction”); provided  however, that in no event shall the
Termination Fee be payable to Purchaser (1) if Purchaser terminates this
Agreement pursuant to Section 7.1(a)(vi), the proviso to Section 7.l(a)(viii)(3),
Section 7.1(a)(ix) or Section 7.1(a)(x); (2) if this
Agreement is terminated by the Debtors pursuant to Section 7.l(a)(iii)(A);
(3) if this Agreement is terminated pursuant to Section 7.1(a)(i); (4) if
on the last day of the month that all of the conditions set forth in Section 6.2
of this Agreement (with such date replacing the terms “Closing” and “Closing
Date” in Section 6.2 of this Agreement) have been satisfied or waived
without the Closing having occurred Purchaser fails to consummate the
transaction contemplated by this Agreement; or (5) if this Agreement is
terminated by Purchaser pursuant to Section 7.1(a)(v)(A) solely
because of the filing of a motion to convert the Debtors’ cases under Chapter
7. Moreover, in the event that the Debtors accept a Bid, other than that of
Purchaser, as the highest and best offer, but that Alternative Transaction
fails to close and Purchaser ultimately acquires all or substantially all of
the assets of the Debtors, Purchaser shall not be entitled to the Termination
Fee, and any Termination Fee paid to Purchaser will be returned to the Debtors.
The obligations of the Debtors to pay the Termination Fee shall be entitled to
administrative expense status under Section 503(b)(1) in the
Bankruptcy Case and shall become due and payable upon the termination of this
Agreement as provided for hereunder and the Bidding Procedures Order.”


 


Section 2.8.                                           Employment


 


(a)                      Section 5.9(a) of
the Agreement is hereby deleted and replaced in its entirety to read as
follows:


 


“(a)                Hiring
of Employees. At least five Business Days prior to the Closing Date,
Purchaser shall offer employment as of the Closing Date to at least 90% of the
employees of Debtors who are employed in the Business (whether salaried or
hourly, union or non-union, and full-time or part-time), whether or not
actively employed on the Closing Date (e.g., including employees on
vacation and leave of absence, including maternity, family, sick or short-term
disability leave, and leave under the Family Medical Leave Act) at
substantially the same location where such employee was employed immediately
prior to the Closing Date on at least the same compensation and levels of
responsibility, and on such other terms and conditions (including premium pay,
shift differentials,   and benefit plan
and incentive plan coverages but excluding any equity-based compensation) that
are in the aggregate not less favorable than those in effect immediately prior
to the Closing Date. Each such employee who accepts Purchaser’s offer of
employment is hereinafter referred to as a “Transferred Employee”.
Notwithstanding the foregoing, Purchaser shall not be prohibited by this Section 5.9
from terminating the employment of any Transferred Employee following the
Closing Date. For avoidance of doubt, nothing in this Agreement shall create a
contract of employment or alter the at-will status of any employee of the
Business.”


 


3

















 


(b)                     Section 5.9(i) of
the Agreement is hereby deleted and replaced in its entirely to read as
follows:


 


“(i)                   New
Severance Plan. On the date of this Agreement, the Seller shall adopt the
New Severance Plan and such New Severance Plan shall completely supersede and
replace any severance provisions offered to non-union employees and non-union
former employees of the Debtors under any Benefit Plan or under any other
severance plan, program or agreement, whether written or oral; provided that,
the New Severance Plan shall not supersede or replace the severance
arrangements already communicated to certain employees at the Debtor’s
Minneapolis, Minnesota location. The Debtors shall take appropriate action to
terminate any severance plan, program or agreement, whether written or oral,
applicable to non-union employees and non-union former employees of the Debtors
prior to the date of this Agreement; provided that, any non-union former
employee who became entitled to severance under the Debtors’ severance plan or
program prior to the date of this Agreement, shall continue to receive any owed
payments of severance in accordance with the terms of such severance plan or
program. The Debtors shall not amend, suspend or terminate the New Severance
Plan, without the express written consent of Purchaser, unless this Agreement
is terminated pursuant to Article VII hereby. Notwithstanding any
provision contained in the Agreement to the contrary, (i) Purchaser shall
not be responsible or liable for any severance payments, whether directly or
through payments to the Debtors or otherwise, to any employees of the Debtors
who are not Transferred Employees, (ii) neither Purchaser nor the Debtors
shall be responsible or liable for any severance payments under the New
Severance Plan to Transferred Employees or those employees of the Debtors who
are offered employment by Purchaser pursuant to Section 5.9(a) and
decline such offer and (iii) Purchaser acknowledges that Debtor may,
subject to express written consent of Lehman as to cash collateral, which may be
granted or withheld in Lehman’s sole discretion, make prior to the Closing Date
all or any portion of the severance payments payable by them under the New
Severance Plan to employees terminated by the Debtors at or prior to the
Closing Date.”


 


Section 2.9.                                           Liberty
Bonding Commitments. The Agreement is hereby amended by adding the
following Sections 5.25 and 5.26 after
Section 5.24:


 


“Section 5.25                                    Liberty
Bonding Commitments. Purchaser shall notify Liberty Mutual Insurance
Company at least two Business Days prior to the date scheduled for the
Bankruptcy Court hearing on the Sale Approval Order as to which of the
following two alternatives it will proceed under at the Closing: (a) Section 6.1.I
of the Supplemental Term Sheet or (b) Section 6.1.II of the
Supplemental Term Sheet.


 


Section 5.26                                        Avis/Hertz
Claims. Purchaser shall pay to the Debtors 25% of the cash proceeds
(including cash equivalents and cash actually received upon payment of any
promissory note) (net of expenses of collection) received by Purchaser or any
of its Affiliates after the Closing Date in respect of the Avis/Hertz Claims
within 10 Business Days of receipt of such proceeds. The Debtors acknowledge
and agree that (i) the decision of whether or not to pursue any of the
Avis/Hertz Claims shall be the decision of Purchaser, in its sole discretion, (ii) Purchaser
shall have the sole right to control the prosecution and settlement of the
Avis/Hertz Claims and (iii) Purchaser shall have the right to settle the
Avis/Hertz Claims for cash or non-cash consideration, and Debtors shall have no
rights with respect to non-cash consideration.”


 


4

















 


Section 2.10.    Approval
Period.


 


(a) Section 7.1(a)(viii)(3) of the Agreement is amended
by deleting the phrase “30 days” and inserting the phrase “20 days” in lieu
thereof.


 


(b) Section 7.1(a)(ix) of the Agreement is hereby
deleted in its entirety and replaced with the following:


 


“(ix)              (A) by
Purchaser on or prior to July 11, 2003, if (1) the Perot Agreement,
in form and substance satisfactory to Purchaser in its sole discretion has
not been executed and delivered by Perot, or (2) General Motors
Corporation and Chrysler Corporation have not each executed and delivered
multi-year Commitments for fleet supply and repurchase programs for the
Business, to become effective on the Closing Date in form and substance
satisfactory to Purchaser, in each case on terms and conditions satisfactory to
Purchaser in its sole discretion, and (B) by Purchaser on or prior to July 18,
2003, if MBIA shall not have permanently waived the Amortization Event
resulting from the Bankruptcy Case and the transactions contemplated hereby and
shall not have entered into a commitment relating to additional fleet financing
on terms and conditions satisfactory to Purchaser in its sole discretion;
provided, however, that if Purchaser shall not exercise its right to terminate
this Agreement pursuant to this Section 7.1(a)(ix) on or prior to
5:00 p.m., New York City time on such dates, then Purchaser shall be
deemed to have irrevocably waived its right to terminate this Agreement
pursuant to this Section 7.1(a)(ix);”


 


Section 2.11.    Exhibits
and Schedules.


 


(a)                      The
Capital Expenditures Plan attached to the Agreement as Exhibit C
hereto is hereby deleted and replaced in its entirety with the Capital
Expenditures Plan attached hereto as Exhibit C.


 


(b)                     The
Baseline Working Capital Statement and Current Assets and Current Liabilities
as of March 31, 2003 attached to the Agreement as Exhibit E is
hereby deleted and replaced in its entirety with the Baseline Working Capital
Statement and Current Assets and Current Liabilities as of March 31, 2003
attached hereto as Exhibit E.


 


(c)                      The
New Severance Plan attached to the Agreement as Exhibit F is hereby
deleted and replaced in its entirety with the New Severance Plan attached
hereto as Exhibit F.


 


(d)                     The
Bidding Procedures Order attached to the Agreement as Exhibit G is
hereby deleted and replaced in its entirety upon the Bidding Procedures Order
attached hereto as Exhibit G.


 


(e)                      The
Target Amount, Target Balance Sheets and Target Working Capital Statement
attached to the Agreement as Exhibit H is hereby deleted and
replaced in its entirety with the Target Amount, Target Balance Sheets and
Target Working Capital Statement attached hereto as Exhibit H.


 


5

















 


(f)                        The
Agreed Upon Procedures attached to the Agreement as Exhibit K is
hereby deleted and replaced in its entirety with the Agreed Upon Procedures
previously attached hereto as Exhibit K.


 


(g)                     The
Schedules attached to the Agreement are hereby deleted and replaced in their
entirety with the Schedules attached hereto.


 


Section 3.                                Miscellaneous.


 


Section 3.1.                       Governing Law. This
Amendment shall be governed by and construed, interpreted and enforced first in
accordance with and governed by the Bankruptcy Code and the applicable case law
under the Bankruptcy Code and, to the extent that the Bankruptcy Code and the
applicable case law under the Bankruptcy Code do not address the matter at
hand, then this Amendment shall be governed by and construed and interpreted in
accordance with the Laws of the State of Delaware applicable to contracts
entirely made and performed there.


 


Section 3.2.                       Severability. The
provisions of this Amendment are severable, and in the event that any one or
more provisions are deemed invalid, illegal or unenforceable by any rule of
law or public policy the remaining provisions shall remain in full force and
effect unless the deletion of such provision shall cause this Amendment to
become adverse to any party.


 


Section 3.3.                       Headings. The section and
paragraph headings and table of contents contained in this Amendment are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Amendment.


 


Section 3.4.                       Counterparts. This
Amendment may be executed in any number of counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.


 


Section 3.5.                       Full Force and Effect.
Except as expressly amended hereby, the Agreement remains in full force and
effect in accordance with its terms and the parties shall prepare a composite
of the Agreement and this Amendment.


 


Section 3.6.                       Entire Agreement. The
Agreement (including the Schedules and Exhibits thereto), this Amendment
(including the exhibits hereto) and the Confidentiality Agreement set forth the
entire agreement and understanding between the parties and supersede any prior
agreement or understanding, written or oral, relating to the subject matter of
the Agreement.


 


Section 3.7.                       Successors and Assigns;
Binding Effect. This Amendment shall bind and inure to the benefit of
Debtors, on one hand, and to CCM and Purchaser, on the other hand, and their
respective successors, transferees and assigns. Purchaser, without the consent
of Debtors, may assign all or any portion of its rights and obligations
hereunder, in whole or in part, to any one or more of its wholly-owned
subsidiaries or Affiliates.


 


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Section 3.8                          No Strict Construction.
The parties have participated jointly in the negotiation and drafting of this
Amendment. Consequently, in the event an ambiguity or question of intent or
interpretation arises, this Amendment shall be construed as if drafted jointly
by the parties hereto, and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any provision
of this Amendment.


 


Section 3.9                          No Third Party Beneficiaries. This Amendment shall be for the sole benefit
of the parties hereto (and their respective successors, assigns and legal
representatives), and is not intended (nor shall it be construed) to give any
other Person any legal or equitable right, benefit, remedy or claim hereunder
(including to bring a suit at law or in equity).


 


Section 3.10                    Consent to Jurisdiction. The parties hereby agree that without
limitation of any party’s right to appeal any order of the Bankruptcy Court, (a) the
Bankruptcy Court shall retain exclusive jurisdiction to enforce the terms of
this Amendment and to decide any claims or disputes that may arise or
result from, or be connected with, this Amendment, any breach or default
hereunder, or the transactions contemplated herein, and (b) any and all
claims, causes of action, suits and proceedings relating to the foregoing shall
be filed and maintained only in the Bankruptcy Court, and the parties hereby
consent and submit to jurisdiction of the Bankruptcy Court.


 


[Remainder of this page intentionally
left blank. Signature page follows.]


 


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IN WITNESS WHEREOF, each party has caused this Asset Purchase Agreement
to be duly executed on its behalf by its duly authorized officer as of the date
first written above.


 


 


	
   

  	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CAR ACQUISITION COMPANY LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Lenard B. Tessler

  	
   

  
	
   

  	
  Name:
  Lenard B. Tessler

  
	
   

  	
  Title:
  Senior Managing Director

  
	
   

  	
   

  
	
   

  	
  CERBERUS CAPITAL MANAGEMENT, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Lenard B. Tessler

  	
   

  
	
   

  	
  Name:
  Lenard B. Tessler

  
	
   

  	
  Title:
  Senior Managing Director

  
	
   

  	
   

  
	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ANC RENTAL CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Howard D. Schwartz

  	
   

  
	
   

  	
  Name: Howard
  D. Schwartz

  
	
   

  	
  Title:
    Sr. Vice President

  



 


8

















 


	
   

  	
  OTHER
  DEBTORS:

  
	
   

  	
  Alamo
  International Sales, Inc.

  
	
   

  	
  Alamo
  Rent-A-Cat Management, LP

  
	
   

  	
  Alamo
  Rent-A-Car, LLC

  
	
   

  	
  ANC
  Aviation, Inc.

  
	
   

  	
  ANC
  Collector Corporation

  
	
   

  	
  ANC
  Financial Corporation

  
	
   

  	
  ANC
  Financial GP Corporation

  
	
   

  	
  ANC
  Financial Properties LLC

  
	
   

  	
  ANC
  Financial LP

  
	
   

  	
  ANC-GP, Inc.

  
	
   

  	
  ANC
  Information Technology, Inc.

  
	
   

  	
  ANC
  Information Technology Holding, Inc.

  
	
   

  	
  ANC
  Information Technology, L.P.

  
	
   

  	
  ANC
  IT Collector Corporation

  
	
   

  	
  ANC
  Management Services Corporation

  
	
   

  	
  ANC
  Management Services LP

  
	
   

  	
  ANC
  Payroll Administration, LLC

  
	
   

  	
  ANC-TM
  Management LP

  
	
   

  	
  ARC-GP.
  Inc.

  
	
   

  	
  ARC-TM.
  Inc.

  
	
   

  	
  ARC-TM
  Properties LLC

  
	
   

  	
  ARG
  Reservation Services, LLC

  
	
   

  	
  ARI
  Fleet Services, Inc.

  
	
   

  	
  Auto
  Rental Inc.

  
	
   

  	
  Car
  Rental Claims, Inc.

  
	
   

  	
  Claims
  Management Center, Inc.

  
	
   

  	
  Guy
  Salmon USA, Inc.

  
	
   

  	
  Liability
  Management Companies Holding, Inc.

  
	
   

  	
  National
  Car Rental Licensing, Inc.

  
	
   

  	
  National
  Car Rental System, Inc.

  
	
   

  	
  NCR
  Affiliate Servicer Properties LLC

  
	
   

  	
  NCR
  Affiliate Servicer, Inc.

  
	
   

  	
  NCRAS
  Management, LP

  
	
   

  	
  NCRAS-GP, Inc.

  
	
   

  	
  NCRS
  Insurance Agency, Inc.

  
	
   

  	
  Post
  Retirement Liability Management, Inc.

  
	
   

  	
  Rental
  Liability Management Holdings, LLC

  
	
   

  	
  Rental
  Liability Management, Inc.

  
	
   

  	
  Republic
  Fiduciary, Inc.

  
	
   

  	
  Republic
  Guy Salmon Partner, Inc.

  
	
   

  	
  Spirit
  Leasing, Inc.

  
	
   

  	
  Spirit
  Rent-A-Car

  
	
   

  	
  SRAC
  Management, LP

  
	
   

  	
  SRAC-GP, Inc.

  
	
   

  	
  SRAC-TM, Inc.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Howard D. Schwartz

  	
   

  
	
   

  	
  Name:  Howard D. Schwartz

  
	
   

  	
  Title:    Sr. Vice President

  



 


9

















 


	
   

  	
  LEHMAN:

  
	
   

  	
   

  
	
   

  	
  As to Section 2.5 only

  LEHMAN COMMERCIAL PAPER INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/
  James P. Seery, Jr

  	
   

  
	
   

  	
  Name:  James
  P. Seery, Jr

  
	
   

  	
  Title:    Authorized
  Signatory

  



 


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