Exhibit 10.3


 


EXECUTION
COPY


 


SECOND AMENDMENT TO

ASSET PURCHASE AGREEMENT


 


This Second Amendment, dated as of August 5,
2003 (this “Amendment”), to the Asset Purchase Agreement, dated as of June 12,
2003, as amended (the “Agreement”), each 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.            Purchase Price. Section 2.5(e)(iii)(B) of the
Agreement is hereby deleted in its entirety and replaced with the following:


 


“(B)         If the Closing Date Amount exceeds the
Determination Date Amount, the Closing Escrow Deposit shall be returned to
Purchaser, and Debtors shall pay Purchaser from other funds an amount in
immediately available same day funds equal to the amount by which the Closing
Date Amount exceeds the Determination Date Amount, together with interest on
such amount at the Interest Rate from the Closing Date to the date of the
payment of such amount to Purchaser.”


 


Section 2.2.            Termination. Section 7.1(a) of the Agreement is hereby amended as
follows:


 


(a) The word “or” is deleted after the end of clause (x) and
inserted at the end of clause (xi).


 


(b) New clauses (xii), (xiii) and (xiv) are added at the end of Section 7.1(a) as
follows:


 


“(xii)        by Purchaser if as of the Closing Date either (a) (i) the
Amendment ( as defined in that that certain term sheet, dated as of August 4,
2003, between MBIA and Purchaser (the “MBIA Term Sheet”)) shall not have become
effective, and (ii) it has not received a commitment letter consistent in
all material respects with the financial terms of the MBIA Term Sheet from
either MBIA or another financial bond insurer reasonably satisfactory to
Purchaser, and in each case otherwise on terms and conditions reasonably
satisfactory to Purchaser, and all


 

















 


ancillary
agreements and documentation related thereto, or (b) if the Amendment
shall not have become effective, Purchaser has not received one or more
executed and delivered commitment letters for fleet financing from financial
bond insurers and other financial institutions reasonably satisfactory to
Purchaser on terms and conditions reasonably satisfactory to Purchaser and all
ancillary agreements and documentation related thereto, in case of clause (a) and
clause (b), all in form and substance satisfactory to Purchaser in its
reasonable discretion;


 


(xiii)         by Purchaser, if either (x) the commitment letter, dated July 28,
2003, of Lehman Brothers Inc. (“Lehman Brothers”) and CDC IXIS Capital Markets
North America Inc. (“CDC”) to CCM has been terminated or expired (other than as
a result of a material breach thereof by Purchaser or CCM or, except if Lehman
Brothers or CDC (but not both) terminates such commitment letter and the
non-terminating entity agrees to assume the obligations of the terminating
entity under such commitment letter) or (y) as of the Closing Date the
conditions precedent set forth in paragraphs 4(b)-(i), 4(n) and 4(p)-(q) in
such commitment letter (“Conditions”) have not been either satisfied or waived
by Lehman Brothers and CDC (provided that this termination right shall not
apply if Lehman Brothers or CDC (but not both) waives all of the Conditions not
satisfied and the waiving entity agrees to assume the obligations of the
non-waiving entity under such commitment letter).


 


(xiv)        by Purchaser if as of the Closing Date (a) General Motors
Acceptance Corporation (“GMAC”) has not executed and delivered definitive
financing documents on terms consistent in all material respects with the terms
of that certain commitment letter dated July 24, 2003, from GMAC to
Vanguard Car Rental USA Inc. (“Vanguard”) and made available to Vanguard up to
$800 million of financing and (b) Daimler Chrysler Services North America
LLC (“DaimlerChrysler”) has not executed and delivered definitive financing
documents on terms consistent in all material respects with the terms of that
certain commitment letter, dated August 4, 2003, from DaimlerChrysler to
Vanguard and made available to Vanguard up to $800 million of financing.”


 


Section 2.2             Termination Fee. Section 5.7(g) of the Agreement
is hereby amended as follows:


 


(a) Clause (1) of the proviso in the first sentence is
deleted and replaced in its entirety to read as follows:


 


“(1) if Purchaser terminates this Agreement pursuant to Section 7.1(a)(vi),
the proviso to Section 7.1(a)(viii)(3), Section 7.1(a)(ix), Section 7.1(a)(x),
Section 7.1(a)(xii), Section 7.1(a)(xiii) or Section 7.1(a)(xiv);”


 


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


 


2

















 


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.


 


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.


 


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


 


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IN WITNESS WHEREOF, each party has caused this
Amendment 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 Tessler

  
	
   

  	
   

  	
  Name:

  	
  Lenard Tessler

  
	
   

  	
   

  	
  Title:

  	
  Senior Managing Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CERBERUS CAPITAL MANAGEMENT, L.P.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   /s/Lenard Tessler

  
	
   

  	
   

  	
  Name:

  	
  Lenard Tessler

  
	
   

  	
   

  	
  Title:

  	
  Senior Managing Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SELLER:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ANC RENTAL CORPORATION

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   /s/Howard D. Schwartz

  
	
   

  	
   

  	
  Name:

  	
  Howard D. Schwartz

  
	
   

  	
   

  	
  Title:

  	
  Sr. Vice President

  
									



 


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  OTHER DEBTORS:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Alamo International Sales, Inc.

  
	
   

  	
   

  	
  Alamo Rent-A-Car 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

  
						



 


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  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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