EXHIBIT 4.105
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SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of July 31, 2003 (this "Amendment"), is made by and among DOLLAR
THRIFTY AUTOMOTIVE GROUP, INC., a Delaware corporation (the "Parent"), DTG
OPERATIONS, INC., an Oklahoma corporation ("Operations"), THRIFTY RENT-A-CAR
SYSTEM, INC., an Oklahoma corporation ("Thrifty," and, together with Operations,
the "Subsidiary Borrowers"; the Parent and the Subsidiary Borrowers being
collectively referred to herein as the "Borrowers"), the Lenders (as defined
below) parties hereto and the Administrative Agent (as defined below).
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrowers, the various financial institutions parties thereto
(collectively, the "Lenders"), Credit Suisse First Boston ("Credit Suisse First
Boston"), as the administrative agent (in such capacity, the "Administrative
Agent") for the Lenders, and JPMorgan Chase Bank ("Chase"), as the syndication
agent (in such capacity, the "Syndication Agent", and, together with the
Administrative Agent, the "Agents") for the Lenders, have heretofore entered
into that certain Second Amended and Restated Credit Agreement, dated as of
December 6, 2002 (as amended by the First Amendment to Second Amended and
Restated Credit Agreement, dated as of March 7, 2003, the "Credit Agreement");
WHEREAS, the Borrowers desire that the $40,000,000 "basket" for certain
Permitted Business Acquisitions in 2003 (as set forth in the definition of
"Permitted Business Acquisition") not be reduced as a result of Adjusted EBITDA
for any four-Fiscal-Quarter period ending in 2003 being less than $85,000,000;
WHEREAS, the Borrowers desire to avail themselves of up to $70,000,000 of
credit support facilities offered to them by Chrysler or subsidiaries of
Chrysler;
WHEREAS, the Borrowers have requested that the Lenders and the
Administrative Agent clarify and/or modify certain provisions of the Credit
Agreement; and
WHEREAS, the Lenders and the Administrative Agent are willing, on and
subject to the terms and conditions set forth below (including the amendments
set forth in Article II below), to amend certain provisions of the Credit
Agreement as provided below (the Credit Agreement, as amended pursuant to the
terms of this Amendment, being referred to as the "Amended Credit Agreement");
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the Borrowers, the Lenders and the Administrative Agent hereby
agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Definitions. The following terms (whether or not
underscored) when used in this Amendment shall have the following meanings (such
meanings to be equally applicable to the singular and plural forms thereof):
"Administrative Agent" is defined in the first recital.
"Agents" is defined in the first recital.
"Amended Credit Agreement" is defined in the third recital.
"Amendment" is defined in the preamble.
"Borrowers" is defined in the preamble.
"Credit Agreement" is defined in the first recital.
"Lenders" is defined in the first recital.
"Parent" is defined in the preamble.
"Second Amendment Effective Date" is defined in the preamble to Article
III.
SECTION 1.2. Other Definitions. Terms for which meanings are provided in
the Amended Credit Agreement are, unless otherwise defined herein or the context
otherwise requires, used in this Amendment with such meanings.
ARTICLE II
AMENDMENTS
Effective as of the date hereof (but subject to the occurrence of the
Second Amendment Effective Date), certain provisions of the Credit Agreement are
hereby amended in accordance with this Article II; except expressly as so
amended by this Amendment, the Credit Agreement shall continue in full force and
effect in accordance with its terms.
SECTION 2.1. Amendments to Section 1.1 of the Credit Agreement. Section
1.1 of the Credit Agreement is hereby amended by:
(a) amending and restating it its entitety the definition of "Excess
Cash Flow" in such Section to read as follows:
`Excess Cash Flow' means, for any Fiscal Year of the Parent, an
amount equal to the excess of (a) the sum, without duplication, of (i)
Adjusted EBITDA for such Fiscal Year (without giving effect to
subclause (b)(v) of the definition of "EBITDA") and (ii) decreases in
Consolidated Working Capital for such Fiscal Year over (b) the sum,
without duplication, of (i) the aggregate amount paid by the Parent
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and its Subsidiaries in cash during such Fiscal Year on account of
taxes computed on the basis of income (it being understood and agreed
that, in the event the aggregate amount of cash received by the Parent
during such Fiscal Year on account of taxes computed on the basis of
income exceeds such aggregate amount paid, such excess shall be added
in the determination of Excess Cash Flow), (ii) the aggregate amount
paid by the Parent and its Subsidiaries in cash during such Fiscal
Year on account of Capital Expenditures, other than Vehicle Debt
(excluding the principal amount of Indebtedness incurred in connection
with such Capital Expenditures, whether incurred in such Fiscal Year
or in a subsequent Fiscal Year), (iii) the aggregate amount of all
prepayments of any amounts outstanding under any revolving credit
facility or agreement (including this Agreement) to which the Parent
or any of its Subsidiaries is a borrower to the extent accompanied by
permanent reductions of the commitments to extend credit thereunder,
(iv) the aggregate amount of all principal payments of Indebtedness,
other than Vehicle Debt, of the Parent or its Subsidiaries (including
any term loans and the principal component of payments in respect of
capitalized lease liabilities) made during such Fiscal Year (other
than in respect of any revolving credit facility or agreement
(including this Agreement)), (v) increases in Consolidated Working
Capital for such Fiscal Year, (vi) the amount of Investments, made
during such Fiscal Year in cash to the extent that such Investments
were financed with internally generated cash flow of the Parent and
its Subsidiaries, other than (A) Investments described in clauses (b),
(e), (f), (h) and (i) of Section 8.2.5 and (B) Investments in any
Person that do not exceed the aggregate amount of dividends or other
return of capital received by a Borrower or a Subsidiary Guarantor in
cash during such Fiscal Year or any prior Fiscal Year (but not prior
to the 2000 Fiscal Year) from such Person, and (vii) the aggregate
amount of Distributions and purchases and redemptions of shares of the
Parent's Capital Stock (or warrants, options or other rights with
respect thereto) made during such Fiscal Year by the Parent in cash.";
(b) amending the definition of "Fixed Charge Coverage Ratio" in such
Section by:
(i) inserting at the end of subclause (b)(ii) thereof the
parenthetical "(it being understood and agreed that, in the event the
aggregate amount of cash received by the Parent during such period on
account of taxes computed on the basis of income exceeds such amount
paid, such excess shall be subtracted from the other amounts described
in this clause (b))"; and
(ii) amending and restating subclause (b)(vi) thereof in its
entirety to read as follows: "(vi) the aggregate amount of
Distributions and purchases and redemptions of shares of the Parent's
Capital Stock or warrants, options or other rights with respect
thereto made by the Parent during such period in cash."; and
(c) amending the definition of "Permitted Business Acquisition" in
such Section by inserting in the second proviso following the table in
clause (a)(ii) thereof the parenthetical "(other than the 2003 Fiscal
Year)" after the words "the amount set forth in the table above opposite
the Fiscal Year".
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SECTION 2.2. Additional Amendments to Section 1.1 of the Credit
Agreement. Section 1.1 of the Credit Agreement is hereby further amended by
inserting in such Section the following definitions in the appropriate
alphabetical order:
"`New Chrysler Documents' is defined in clause (f) of Section 8.2.2."
"`New Intercreditor Agreement' is defined in clause (f) of Section
8.2.2."
"`Second Amendment' means the Second Amendment to Second
Amended and Restated Credit Agreement, dated as of July 31, 2003, among
the Borrower, the Lenders parties thereto and the Administrative
Agent."
"`Second Amendment Effective Date' means July 31, 2003."
SECTION 2.3. Amendment to Section 7.2 of the Credit Agreement. Clause (c)
of Section 7.2 of the Credit Agreement is hereby amended by deleting the words
"for the benefit of Chrysler" and inserting the words "and the New Chrysler
Documents for the benefit of Chrysler and its Subsidiaries that are parties
thereto".
SECTION 2.4. Amendments to Section 8.2.2 of the Credit Agreement. Section
8.2.2 of the Credit Agreement is hereby amended by:
(a) clause (f) of such Section is hereby amended and restated in its
entirety to read as follows:
"(f) Indebtedness in respect of letters of credit and Surety
Bonds issued by Chrysler or any of its Subsidiaries (i) for the
account of, or on behalf of, any Borrower or any of its Subsidiaries
in an aggregate amount not to exceed $70,000,000 and (ii) pursuant to
agreements in form and substance reasonably satisfactory in all
respects to the Administrative Agent (collectively, the "New Chrysler
Documents") and so long as the creditors and debtors under the New
Chrysler Documents shall be subject to an intercreditor agreement with
the Administrative Agent in form and substance reasonably satisfactory
in all respects to the Administrative Agent (the "New Intercreditor
Agreement");"; and
(b) clause (v) of such Section is hereby amended by deleting the word
"(f)," therefrom.
SECTION 2.5. Amendment to Section 8.2.3 of the Credit Agreement. Clause
(f) of Section 8.2.3 of the Credit Agreement is hereby amended and restated in
its entirety to read as follows:
"(f) Liens securing payment of reimbursement obligations in respect of
Indebtedness of the type permitted and described in clause (f) of Section
8.2.2, so long as such Liens (i) do not cover any real property,
intellectual property or the Retained Interest (as defined in the Security
Agreement) of any Borrower or any of its Subsidiaries, (ii) are granted
pursuant to the New Chrysler Documents and (iii) are subordinated to the
Liens of the type permitted and described in clause (a) above pursuant to
the New Intercreditor Agreement;".
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SECTION 2.6. Amendments to Section 8.2.6 of the Credit Agreement. Section
8.2.6 of the Credit Agreement is hereby amended by:
(a) amending and restating clause (a)(iii) of such Section in its
entirety to read as follows:
"(iii) make a Distribution to the Parent to the extent necessary
to enable the Parent to (A) make a Distribution declared by the Parent
(but in no event exceeding the amount of such Distribution permitted
to be made by the Parent pursuant to the succeeding clause (b)) or (B)
purchase or redeem any shares of any class of the Parent's Capital
Stock or warrants, options or other rights with respect thereto held
by the Parent's stockholders (but in no event exceeding the amount of
such purchase or redemption permitted to be made by the Parent
pursuant to the succeeding clause (b)), in each case, so long as,
immediately before and after giving effect thereto, no Default shall
have occurred and be continuing and the Distribution or the purchase
or redemption, as applicable, to be made by the Parent is made at the
time the Subsidiary Borrowers make their Distribution;";
(b) amending the proviso to clause (b) of such Section to insert the
words "or warrants, options or other rights with respect thereto"
immediately following the words "class of the Parent's Capital Stock" and
immediately preceding the words "held by the Parent's stockholders" in the
third line of such proviso;
(c) amending subclause (ii) of such proviso to clause (b) by inserting
at the end thereof the following:
"demonstrating that the aggregate amount of such Distribution,
purchase or redemption would comply with the amount limitations set
forth in subclause (iii) immediately below; provided that, in the case
of any such purchase or redemption, such financial statements and
certificate shall only be required in the event the aggregate amount
of such purchases and redemptions since the date financial statements
were last delivered under this subclause (ii) (or, if financial
statements have never been delivered under this subclause (ii), since
January 1, 2000) exceeds $7,500,000, and"; and
(d) amending and restating subclause (iii)(B) of such proviso to
clause (b) in its entirety to read as follows:
"(B) such purchase or redemption does not exceed the excess of
(1) the sum of (x) $15,000,000 and (y) 25% of Cumulative Excess Cash
Flow over (2) the sum of (x) the aggregate amount of Distributions
made prior to such date and subsequent to the last day of the most
recent Fiscal Year included in the determination of Cumulative Excess
Cash Flow by the Parent and its Subsidiaries and (y) the aggregate
amount of all other purchases and redemptions consummated prior to
such purchase or redemption and subsequent to such last day of such
Fiscal Year; provided that the aggregate amount of such purchases and
redemptions prior to the date the Administrative Agent receives the
Compliance Certificate for the fourth Fiscal Quarter of the 2003
Fiscal Year shall not exceed $15,000,000;"
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SECTION 2.7. Amendment to Section 8.2.11 of the Credit Agreement. Section
8.2.11 of the Credit Agreement is hereby amended by inserting the following
sentence at the end thereof:
"Each Borrower will not, and will not permit any of its Subsidiaries
to, consent to any material amendment, supplement or other
modification of any of the terms or provisions contained in, or
applicable to, the New Chrysler Documents, other than any amendment,
supplement or other modification extending the termination or expiry
date thereof, without the prior consent of the Administrative Agent."
SECTION 2.8. Amendment to Section 8.2.15 of the Credit Agreement. Section
8.2.15 of the Credit Agreement is hereby amended by inserting the words ", the
New Chrysler Documents" immediately following the words "the other Loan
Documents" and immediately preceding the words "and the Chrysler Credit Support
Documents" contained therein.
SECTION 2.9. Amendment to Section 8.2.16 of the Credit Agreement. Section
8.2.16 of the Credit Agreement is hereby amended by deleting each reference to
the words "the Chrysler Credit Support Documents" and "any Chrysler Credit
Support Document" contained in such Section and inserting the words "the
Chrysler Credit Support Documents, the New Chrysler Documents" and "any Chrysler
Credit Support Document, any New Chrysler Document", respectively, in lieu
thereof.
SECTION 2.10. Amendment to Exhibit D of the Credit Agreement (Form of
Compliance Certificate). Exhibit D of the Credit Agreement (Form of Compliance
Certificate) is hereby amended by inserting the following paragraph (k)
immediately following paragraph (j) thereof:
"[(k)[TO BE INCLUDED IF THE COMPUTATION DATE IS AT THE END OF A FISCAL
YEAR]
Excess Cash Flow, Cumulative Excess Cash Flow, etc. Excess Cash Flow
for the Fiscal Year ending on the Computation Date is $________, as
computed on Attachment 8 hereto. Cumulative Excess Cash Flow as of the
Computation Date is $__________, as computed on Attachment 8 hereto.
The aggregate amount of Distributions and purchases or redemptions of
shares of any class of the Parent's Capital Stock (or warrants,
options or other rights with respect thereto) made or consummated
since January 1, 2000 and prior to the date hereof is $___________.]"
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ARTICLE III
CONDITIONS TO EFFECTIVENESS
This Amendment, and the amendments and modifications contained herein,
shall be and become effective on the date (the "Second Amendment Effective
Date") when each of the conditions set forth in this Article III shall have been
fulfilled to the satisfaction of the Administrative Agent.
SECTION 3.1. Execution of Counterparts. The Administrative Agent shall
have received counterparts of this Amendment, duly executed and delivered on
behalf of (i) each of the Borrowers and (ii) the Required Lenders.
SECTION 3.2. Amendment Effective Date Certificate. The Administrative
Agent shall have received a certificate from the chief financial Authorized
Officer of the Parent confirming the representations and warranties set forth in
Article IV and otherwise in the form set forth in Annex I hereto.
SECTION 3.3. Execution of Affirmation and Acknowledgment. The
Administrative Agent shall have received an affirmation and acknowledgment in
form and substance satisfactory to it, duly executed and delivered by each
Guarantor and any other Obligor that has granted a Lien pursuant to any Loan
Document, other than the Borrowers.
SECTION 3.4. Amendment Fee. The Administrative Agent shall have received
the amendment fees due and payable pursuant to Section 5.3.
SECTION 3.5. Fees and Expenses. The Administrative Agent shall have
received all fees and expenses due and payable pursuant to Section 5.4 hereof
(to the extent then invoiced) and pursuant to the Amended Credit Agreement
(including all previously invoiced fees and expenses).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Administrative Agent to enter into
this Amendment, each of the Borrowers hereby represents and warrants to each
Agent and each Lender, as of the date hereof, as set forth in this Article IV.
SECTION 4.1. Representations and Warranties. (a) The representations and
warranties set forth in Article VII of the Credit Agreement (excluding,
however, those contained in Section 7.7 of the Credit Agreement) and in
each other Loan Document are, in each case, true and correct (unless stated
to relate solely to an earlier date, in which case such representations and
warranties are true and correct as of such earlier date);
(b) except as disclosed by any Borrower to the Administrative Agent,
the Issuer and the Lenders pursuant to Section 7.7 of the Credit Agreement
(i) there is no pending or, to the best knowledge of any
Borrower, threatened litigation, action, proceeding or labor
controversy affecting any Borrower or any of its Subsidiaries, or any
of their respective properties, businesses, or revenues, which may
materially adversely affect the businesses, property, operations,
assets, liabilities, condition (financial or otherwise) or prospects
of the Parent and its Subsidiaries taken as a whole, or which purports
to affect the legality, validity or enforceability of this Amendment,
the Credit Agreement, the Notes or any other Loan Document, except as
disclosed in Item 7.7 ("Litigation") of the Disclosure Schedule to the
Credit Agreement; and
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(ii) no development has occurred in any labor controversy,
litigation, arbitration or governmental investigation or proceeding
disclosed pursuant to Section 7.7 of the Credit Agreement which may
materially adversely affect the business, property, operations,
assets, liabilities, condition (financial or otherwise) or prospects
of the Parent and its Subsidiaries taken as a whole, or which purports
to affect the legality, validity or enforceability of this Amendment,
the Credit Agreement, the Notes, or any other Loan Document;
(c) no Default (other than any Default that would not exist upon
effectiveness of this Amendment) has occurred and is continuing, and
neither any Borrower nor any of their respective Subsidiaries nor any other
Obligor is in material violation of any law or governmental regulation or
court order or decree; and
(d) this Amendment has been duly authorized, executed and delivered by
each of the Borrowers and constitutes a legal, valid and binding obligation
of each such Person, enforceable against it in accordance with its terms,
except to the extent the enforceability hereof may be limited by (i) the
effect of bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting the rights
and remedies of creditors generally and (ii) the effect of general
principles of equity, whether enforcement is considered in a proceeding in
equity or at law.
SECTION 4.2. Full Disclosure. Except as corrected by written information
delivered to the Agents and the Lenders reasonably prior to the date on which
this representation is made, all information (other than financial and business
projections and forecasts) heretofore or contemporaneously furnished by any
Borrower in writing to any Agent, the Issuer or any Lender for purposes of or in
connection with this Amendment is true and accurate in every material respect
and such information is not incomplete by omitting to state any material fact
necessary to make such information not materially misleading in light of the
circumstances under which such information was furnished. All financial and
business projections and forecasts delivered to any Agent, the Issuer or any
Lender by or on behalf of any Borrower have been prepared in good faith based
upon assumptions which the Borrowers believe to be reasonable.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Full Force and Effect; Limited Amendment. Except as
expressly amended hereby, all of the representations, warranties, terms,
covenants, conditions and other provisions of the Credit Agreement and the other
Loan Documents shall remain unamended and unwaived and shall continue to be, and
shall remain, in full force and effect in accordance with their respective
terms. The amendments set forth herein shall be limited precisely as provided
for herein to the provisions expressly amended herein and shall not be deemed to
be an amendment to, consent to or modification of any other term or provision of
the Credit Agreement, any other Loan Document referred to therein or herein or
of any transaction or further or future action on the part of any of the
Borrowers or any other Obligor which would require the consent of the Lenders
under the Credit Agreement or any of the other Loan Documents.
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SECTION 5.2. Loan Document Pursuant to Credit Agreement. This Amendment
is a Loan Document executed pursuant to the Credit Agreement and shall be
construed, administered and applied in accordance with all of the terms and
provisions of the Credit Agreement (and, following the date hereof, the Amended
Credit Agreement). Any breach of any representation or warranty or covenant or
agreement contained in this Amendment shall be deemed to be an Event of Default
for all purposes of the Credit Agreement and the other Loan Documents.
SECTION 5.3. Amendment Fee. Upon satisfaction of the condition set forth
in clause (ii) of Section 3.1, the Borrowers shall pay, without setoff,
deduction or counterclaim, a non-refundable amendment fee for the account of
each Lender that has executed and delivered (including delivery by way of
facsimile) a copy of this Amendment to the attention of ▇▇▇▇▇▇▇ ▇▇▇ at Mayer,
Brown, ▇▇▇▇ & Maw LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (19th floor),
telecopy number ▇▇▇-▇▇▇-▇▇▇▇, at or prior to 5:00 p.m., New York time, on or
before July 31, 2003 (as such time may be extended by the Parent), in the amount
of 10.0 basis points of such Lender's Commitment as of the date hereof. The
aggregate amount of such amendment fee shall be paid at or prior to noon, New
York time, on August 1, 2003 (or, in the event the date in the immediately
preceding sentence has been extended, the Business Day that immediately succeeds
such extended date) to the Administrative Agent for the pro rata account of the
Lenders entitled to receive such amendment fee.
SECTION 5.4. Fees and Expenses. The Borrowers, jointly and severally,
agree to pay on demand all out-of-pocket expenses incurred by the Administrative
Agent in connection with the preparation, negotiation, execution and delivery of
this Amendment and the documents and transactions contemplated hereby, including
the reasonable fees and disbursements of Mayer, Brown, ▇▇▇▇ & Maw, as counsel
for the Administrative Agent.
SECTION 5.5. Headings. The various headings of this Amendment are
inserted for convenience only and shall not affect the meaning or interpretation
of this Amendment or any provisions hereof.
SECTION 5.6. Execution in Counterparts. This Amendment may be executed by
the parties hereto in several counterparts, each of which shall be deemed to be
an original and all of which shall constitute together but one and the same
agreement.
SECTION 5.7. Cross-References. References in this Amendment to any
Article or Section are, unless otherwise specified or otherwise required by the
context, to such Article or Section of this Amendment.
SECTION 5.8. Successors and Assigns. This Amendment shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
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SECTION 5.9. GOVERNING LAW. THIS AMENDMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY 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 by their respective officers thereunto duly authorized as of the day
and year first above written.
DOLLAR THRIFTY AUTOMOTIVE GROUP, INC.
By:_____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
DTG OPERATIONS, INC.
By:_____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
THRIFTY RENT-A-CAR SYSTEM, INC.
By:_____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
CREDIT SUISSE FIRST BOSTON, acting
through its New York Branch, as the
Administrative Agent
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
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LENDERS:
CREDIT SUISSE FIRST BOSTON, acting
through its Cayman Islands Branch
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
JPMORGAN CHASE BANK
By:_____________________________________
Name:
Title:
BANK OF OKLAHOMA, NATIONAL ASSOCIATION
By:_____________________________________
Name:
Title:
DEUTSCHE BANK AG, NEW YORK BRANCH
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
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BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By:_____________________________________
Name:
Title:
DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
LOCAL OKLAHOMA BANK, N.A.
By:_____________________________________
Name:
Title:
MIDFIRST BANK
By:_____________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
By:_____________________________________
Name:
Title:
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ARVEST BANK (formerly known as Arvest
State Bank)
By:_____________________________________
Name:
Title:
TEXTRON FINANCIAL CORPORATION
By:_____________________________________
Name:
Title:
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