EXHIBIT 4.118
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[EXECUTION COPY]
U.S. $300,000,000
THIRD AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of April 1, 2004,
(amending and restating the Second Amended and Restated Credit Agreement
dated as of December 6, 2002)
among
DOLLAR THRIFTY AUTOMOTIVE GROUP, INC.,
DTG OPERATIONS, INC.
and
THRIFTY RENT-A-CAR SYSTEM, INC.,
as the Borrowers,
VARIOUS FINANCIAL INSTITUTIONS,
as the Lenders,
CREDIT SUISSE FIRST BOSTON,
as the Administrative Agent,
THE BANK OF NOVA SCOTIA,
as the Syndication Agent,
DRESDNER BANK AG,
NEW YORK and GRAND CAYMAN BRANCHES,
as the Documentation Agent,
and
CREDIT SUISSE FIRST BOSTON,
as Sole Bookrunner.
Arranged By
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CREDIT SUISSE FIRST BOSTON
THE BANK OF NOVA SCOTIA
THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
THIS THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April 1, 2004
(amending and restating the Second Amended and Restated Credit Agreement dated
as of December 6, 2002, as amended prior to the date hereof), among DOLLAR
THRIFTY AUTOMOTIVE GROUP, INC., a Delaware corporation (the "Parent"), DTG
OPERATIONS, INC., formerly known as DOLLAR RENT A CAR SYSTEMS, 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"), various financial institutions as are or may
become parties hereto (collectively, the "Lenders"), CREDIT SUISSE FIRST BOSTON
("Credit Suisse First Boston"), as the administrative agent (in such capacity,
the "Administrative Agent") for the Lenders, THE BANK OF NOVA SCOTIA ("Scotia
Capital"), as the syndication agent (in such capacity, the "Syndication Agent"),
for the Lenders, DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES, as the
documentation agent (in such capacity, the "Documentation Agent"), Credit Suisse
First Boston, as the sole bookrunner (in such capacity, the "Bookrunner") and
Credit Suisse First Boston and Scotia Capital as the co-arrangers (in such
capacities, the "Arrangers").
W I T N E S S E T H:
WHEREAS, the Borrowers, the Lenders and the Administrative Agent are
parties to the Second Amended and Restated Credit Agreement, dated as of
December 6, 2002 (as amended and as in effect immediately prior to the
effectiveness of this Agreement, the "Amended and Restated Credit Agreement");
WHEREAS, the Borrowers have requested that the Lenders amend and restate
the Amended and Restated Credit Agreement (the Amended and Restated Credit
Agreement, as amended and restated by this Agreement (such capitalized term, and
other capitalized terms used in these recitals, to have the meanings set forth
in Section 1.1), being referred to as the "Credit Agreement");
WHEREAS,
(a) the Subsidiary Borrowers are engaged directly and through their
various Subsidiaries in the business of (i) renting worldwide for general
use passenger automobiles, light and medium duty trucks and vans, (ii)
selling in the United States and Canada new and used vehicles, (iii)
franchising the foregoing business to other Persons, (iv) providing support
and services to franchisees, including (A) fleet leasing of vehicles and
(B) purchasing passenger automobiles, shuttle buses, vans and light and
medium duty trucks and financing the sale thereof to franchisees and (v)
fleet leasing of vehicles to Persons other than franchisees; and
(b) Thrifty Car Sales (i) is engaged in the business of franchising
businesses in the United States and Canada to sell new and used vehicles
(the "Thrifty Car Sale Franchise Business") and (ii) may engage in the
operation, directly or through its Subsidiaries, of (A) locations in the
United States and Canada from which it would sell (1) vehicles used in the
Parent's other businesses and (2) other used vehicles purchased from time
to time to maintain adequate inventory, as well as (B) locations in the
United States and Canada acquired from franchisees of the Thrifty Car Sale
Franchise Business in the ordinary course of business from which it would
continue to conduct the sale of new and used vehicles (such operations,
together with the Thrifty Car Sale Franchise Business, the "Thrifty Car
Sale Business");
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WHEREAS the Parent has issued shares of its common stock, par value $0.01
per share (the "Common Stock"), pursuant to a registered public offering;
WHEREAS, the Parent has implemented through a special purpose, bankruptcy
remote, Wholly Owned Subsidiary, Rental Car Finance Corp., ("RCFC"), (i)
medium-term note programs secured by vehicles and related assets, which medium
term note programs provide funds for the purchase of additional vehicles
(collectively, the "MTN Program") and (ii) variable funding note programs with
certain asset securitization conduits and the financial institutions that
administer such conduits, secured by vehicles and related assets, which programs
provide funds for the purchase of additional vehicles (collectively, the
"Conduit Program");
WHEREAS, (a) the Parent has implemented through a special purpose,
bankruptcy remote, Wholly Owned Subsidiary, Dollar Thrifty Funding Corp.
("Dollar Thrifty Funding"), a commercial paper program secured by vehicles and
related assets, the proceeds of which were and are used to finance vehicle fleet
growth and to refinance existing vehicle fleet indebtedness (the "CP Program"),
and (b) in connection with the CP Program, Dollar Thrifty Funding has entered
into a 364-day revolving liquidity facility to provide backup liquidity for the
commercial paper issued pursuant to the CP Program (the "Liquidity Facility");
WHEREAS, in connection with the amendment and restatement of the Amended
and Restated Credit Agreement, the Borrowers desire to obtain Commitments from
the Lenders pursuant to which
(a) Loans will be made to the Borrowers from time to time prior to
the Commitment Termination Date; and
(b) Letters of Credit will be issued by the Issuer for the account of
the Borrowers and under the several responsibilities of the Lenders from
time to time prior to the Commitment Termination Date,
in maximum aggregate principal amount for Loans at any one time outstanding not
to exceed in the aggregate $100,000,000 and in a maximum aggregate Stated Amount
for Letters of Credit outstanding at any one time not to exceed in the aggregate
$300,000,000;
WHEREAS, the Lenders and the Issuer are willing, on the terms and subject
to the conditions set forth in the Amendment Agreement (including Article III
thereof) and hereinafter set forth (including Article VI), to so amend and
restate the Amended and Restated Credit Agreement and to extend such
Commitments, make such Loans to the Borrowers and issue, and participate in,
such Letters of Credit; and
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WHEREAS,
(a) the proceeds of such Loans will be used for general corporate
purposes of Operations, Thrifty and the other operating Subsidiaries of the
Parent; and
(b) such Letters of Credit will be used by the Borrowers and their
respective operating Subsidiaries
(i) as credit and/or liquidity enhancement for the CP Program,
the MTN Program and the Conduit Program (the "Enhancement Letters of
Credit"), and
(ii) for other general corporate purposes (including
performance and insurance bonds) (the "General Letters of Credit");
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"ABR Loan" means a Loan bearing interest at a fluctuating rate determined
by reference to the Alternate Base Rate.
"Account Party" means (a) any Borrower, (b) in any case of the CP
Enhancement Letter of Credit, Dollar Thrifty Funding, (c) any Subsidiary
Guarantor or SPC for the account of which a Letter of Credit is issued in
accordance with Article IV and (d) to the extent permitted by clause (k)(ii) of
Section 8.2.5, any franchisee of a Subsidiary Borrower for the account of which
a Letter of Credit is issued in accordance with Article IV.
"Additional Material Property" means any property with respect to which a
Mortgage is required to be delivered pursuant to Section 8.1.8 hereof.
"Adjusted Debt" means, at any time, the sum of (a) Non-Vehicle Debt at such
time plus (b) the maximum amount available for drawing under each letter of
credit, bond or similar obligation (including Letters of Credit and Surety
Bonds, but excluding any Letter of Credit to the extent it may be drawn upon to
reimburse a payment made by the issuer of a Surety Bond under such Surety Bond),
whether or not drawn and whether or not any conditions to drawing can then be
met at such time; provided that up to $10,000,000 of the maximum amount
available for drawing under letters of credit may be deducted from the amount of
Adjusted Debt to the extent the issuer of such letter of credit or letters of
credit is in control of funds which cash collateralize the amount of
Indebtedness that is proposed to be deducted from Adjusted Debt pursuant to this
proviso.
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"Adjusted EBITDA" means, for any applicable period, the excess of
(a) EBITDA for such period
over
(b) to the extent added in arriving at such EBITDA, the sum of (i)
the aggregate amount of depreciation in respect of Vehicles during such
period plus (ii) Vehicle Interest Expense during such period.
"Administrative Agent" is defined in the preamble and includes each other
Person as shall have subsequently been appointed as the successor Administrative
Agent pursuant to Section 11.4.
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power
(a) to vote 10% or more of the securities (on a fully diluted basis)
having ordinary voting power for the election of directors or managing
general partners; or
(b) to direct or cause the direction of the management and policies
of such Person whether by contract or otherwise.
"Agents" means, collectively, the Administrative Agent, the Syndication
Agent, the Documentation Agent, the Bookrunner and the Arrangers.
"Aggregate Interest Expense" is defined in clause (a) of the definition of
"Non-Vehicle Interest Expense".
"Agreement" means, on any date, this Credit Agreement as originally in
effect upon the occurrence of the Amendment Effective Date and as thereafter
from time to time amended, supplemented, amended and restated, or otherwise
modified and in effect on such date.
"Alternate Base Rate" means, on any date and with respect to all ABR Loans,
a fluctuating rate of interest per annum equal to the higher of
(a) the rate of interest most recently established by Credit Suisse
First Boston at its principal office in New York, New York as its base or
prime rate for U.S. Dollar loans; and
(b) the Federal Funds Rate most recently determined by the
Administrative Agent plus 50 basis points.
If for any reason the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is unable to
ascertain the Federal Funds Rate for any reason, including the inability of the
Administrative Agent to obtain sufficient quotations in accordance with the
terms of the definition of "Federal Funds Rate", the Alternate Base Rate shall
be determined without regard to clause (b) of the first sentence of this
definition until the circumstances giving rise to such inability no longer
exist. The Alternate Base Rate is not necessarily intended to be the lowest rate
of interest determined by Credit Suisse First Boston in connection with
extensions of credit. Changes in the rate of interest on that portion of any
Loans maintained as ABR Loans will take effect simultaneously with each change
in the Alternate Base Rate. The Administrative Agent will give notice promptly
to the Borrowers and the Lenders of changes in the Alternate Base Rate.
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"Amended and Restated Credit Agreement" is defined in the first recital.
"Amendment Agreement" means the Amendment Agreement, dated as of April 1,
2004, among, inter alia, the Borrowers, the Lenders, the Issuer and the
Administrative Agent.
"Amendment Effective Date" means the date this Agreement becomes effective
pursuant to the terms and conditions of the Amendment Agreement.
"Amendment Effective Date Certificate" means the certificate executed and
delivered by the Borrowers pursuant to Section 3.5 of the Amendment Agreement,
substantially in the form of Exhibit K hereto.
"Applicable Commitment Fee" means, as of any date, a per annum fee on the
average daily unused portion of the Commitment Amount determined pursuant to the
following pricing grid (expressed in basis points), subject to the provisions of
this definition set forth below:
PRICING GRID
Applicable
Leverage Ratio Commitment Fee
-------------- --------------
X >= 2.0 37.5
X >= 1.0, but < 2.0 30.0
X >= .75, but < 1.0 25.0
X < .75 22.5
The Applicable Commitment Fee, at any time from and after the Prior
Amendment Effective Date, on the average daily unused portion of the Commitment
Amount, shall be determined pursuant to the Pricing Grid above at such time. At
all times that the Applicable Commitment Fee is determined by reference to the
Pricing Grid, "X" refers to the Leverage Ratio, which ratio shall be determined
based upon the Compliance Certificate delivered pursuant to clause (c) of
Section 8.1.1 of the Amended and Restated Credit Agreement or clause (c) of
Section 8.1.1 and shall remain in effect until such time as the next Compliance
Certificate shall be delivered (and, at such time, the Applicable Commitment Fee
shall change based on such next Compliance Certificate); provided, however,
that, if any such Compliance Certificate is not delivered to the Administrative
Agent on or prior to the date required pursuant to clause (c) of Section 8.1.1
of the Amended and Restated Credit Agreement or clause (c) of Section 8.1.1, the
Applicable Commitment Fee from and including the date on which such Compliance
Certificate was required to be delivered to but not including the actual date of
delivery of such Compliance Certificate shall conclusively equal the highest
Applicable Commitment Fee.
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"Applicable Margin" means, with respect to any Loan of any type, as of any
date, the rate per annum determined pursuant to the following pricing grid
(expressed in basis points), subject to the provisions of this definition set
forth below:
PRICING GRID
Eurodollar Loan ABR Loan
Leverage Ratio Applicable Margin Applicable Margin
-------------- ----------------- -----------------
X >= 3.5 250 150
X >= 3.0, but < 3.5 225 125
X >= 2.0, but < 3.0 200 100
X >= 1.0, but < 2.0 175 75
X >= .75, but < 1.0 150 50
X < .75 125 37.5
The Applicable Margin, at any time from and after the Prior Amendment
Effective Date, for Loans, shall be determined pursuant to the Pricing Grid
above at such time. At all times that the Applicable Margin is determined by
reference to the Pricing Grid, "X" refers to the Leverage Ratio, which ratio
shall be determined based upon the Compliance Certificate delivered pursuant to
clause (c) of Section 8.1.1 of the Amended and Restated Credit Agreement or
clause (c) of Section 8.1.1 and shall remain in effect until such time as the
next Compliance Certificate shall be delivered (and, at such time, the
Applicable Margin shall change based on such next Compliance Certificate);
provided, however, that, if any such Compliance Certificate is not delivered to
the Administrative Agent on or prior to the date required pursuant to clause (c)
of Section 8.1.1 of the Amended and Restated Credit Agreement or clause (c) of
Section 8.1.1, the Applicable Margin for Loans from and including the date on
which such Compliance Certificate was required to be delivered to but not
including the actual date of delivery of such Compliance Certificate shall
conclusively equal the highest Applicable Margin for Loans set forth above.
"Arrangers" is defined in the preamble.
"Assignee Lender" is defined in Section 12.11.1.
"Authorized Officer" means, relative to any Borrower and any other Obligor,
those of its officers or managing members (in the case of a limited liability
company) whose signatures and incumbency shall have been certified to the
Administrative Agent and the Lenders pursuant to Section 3.2 of the Amendment
Agreement.
"Base Indenture" means the Base Indenture, dated as of December 13, 1995,
between RCFC and Bankers Trust Company, now known as Deutsche Bank Trust Company
Americas, as Trustee, as in effect on the Amendment Effective Date, together
with the Base Indenture Supplements thereto, as amended, supplemented, amended
and restated or otherwise modified from time to time in accordance with the
terms hereof and thereof.
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"Base Indenture Supplement" means any supplement to the Base Indenture,
including (i) the Series 1997-1 Supplement dated as of December 23, 1997, (ii)
the Amended and Restated Series 1998-1 Supplement dated as of February 26, 2002,
(iii) the Series 1999-1 Supplement dated as of April 29, 1999, (iv) the Series
2000-1 Supplement dated as of December 15, 2000, (v) the Series 2001-1
Supplement dated as of March 6, 2001, (vi) the Series 2002-1 Supplement dated as
of June 4, 2002 and (vii) the Series 2003-1 Supplement dated as of March 25,
2003.
"Borrower Debtor" is defined in clause (a) of Section 10.1.
"Borrower Guarantor" is defined in clause (a) of Section 10.1.
"Borrower Guaranty" means the Obligations of a Borrower Guarantor
undertaken pursuant to Article X.
"Borrowers" is defined in the preamble.
"Borrowing" means the Loans of the same type and, in the case of Eurodollar
Loans, having the same Interest Period made by all Lenders on the same Business
Day and pursuant to the same Borrowing Request in accordance with Section 2.1.
"Borrowing Request" means a Loan request and certificate duly executed by
an Authorized Officer of any Borrower, substantially in the form of Exhibit B-1
hereto.
"Business Acquisition" means the acquisition, by purchase or otherwise, of
all or substantially all of the assets and, if applicable, assumption of all or
substantially all of the liabilities (or any part of the assets and, if
applicable, the liabilities, constituting all or substantially all of a business
or line of business) of any Person, whether such acquisition is direct or
indirect, including through the acquisition of the business of, or Capital Stock
of, such Person.
"Business Day" means
(a) any day which is neither a Saturday or Sunday nor a legal holiday
on which banks are authorized or required to be closed in New York, New
York; and
(b) relative to the making, continuing, converting, prepaying or
repaying of any Eurodollar Loan, any day described in clause (a) above on
which dealings in U.S. Dollars are carried on in the London interbank
market.
"Capital Expenditures" means, for any period, the sum of
(a) the aggregate amount of all expenditures of the Parent and its
Subsidiaries for fixed or capital assets made during such period which, in
accordance with GAAP (to the extent applicable), would be classified as capital
expenditures; and
(b) the aggregate amount of all Capitalized Lease Liabilities incurred
during such period;
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provided, however, that Capital Expenditures shall not include any such amounts
made or incurred in connection with Permitted Business Acquisitions (including
Permitted Business Acquisitions that are Excepted Acquisitions).
"Capital Stock" means with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated) of such
Person's capital stock or equity, whether now outstanding or issued after the
Amendment Effective Date, including all common stock, preferred stock,
partnership interests and member interests.
"Capitalized Lease Liabilities" means all monetary obligations of the
Parent or any of its Subsidiaries under any leasing or similar arrangement
which, in accordance with GAAP, would be classified as capitalized leases, and,
for purposes of this Agreement and each other Loan Document, the amount of such
obligations shall be the capitalized amount thereof, determined in accordance
with GAAP, and, with respect to any such leasing or similar arrangement, the
stated maturity thereof shall be the date of the last payment of rent or any
other amount due under such lease prior to the first date upon which such lease
may be terminated by the lessee without payment of a premium or a penalty.
"Cash Equivalent Investments" means
(a) U.S. Government Obligations maturing in not more than 270 days;
(b) participation certificates (excluding strip mortgage securities
that are purchased at prices exceeding their principal amounts) and senior
debt obligations of the Federal Home Loan Mortgage Corporation,
consolidated system wide bonds and notes of the Farm Credit System, senior
debt obligations and mortgage-backed securities (excluding stripped
mortgage securities which are purchased at prices exceeding their principal
amounts) of the Federal Mortgage Association which, in the case of
mortgage-backed securities, are rated at least (i) AA by S&P and Aa by
Moody's if such mortgage-backed securities are rated by both such rating
agencies or (ii) AA by S&P or Aa by Moody's if such mortgage-backed
securities are rated by only one such rating agency, senior debt
obligations (excluding securities that have no fixed value and/or whose
terms do not promise a fixed dollar amount at maturity or call date) of the
Student Loan Marketing Association and debt obligations of the Resolution
Funding Corp., in each case, maturing not more than 270 days (collectively,
"Agency Obligations");
(c) (i) direct obligations of any state of the United States or any
subdivision or agency thereof whose short-term unsecured general obligation
debt is (A) rated at least A-1 by S&P and P-1 by Moody's if such short-term
unsecured general obligation debt is rated by both such rating agencies or
(B) A-1 by S&P or P-1 by Moody's if such short-term unsecured general
obligation debt is rated by only one such rating agency, (ii) any
obligation that is (A) rated at least equivalent to (1) A-1 by S&P and P-1
by Moody's if such obligation is rated by both such rating agencies or (2)
A-1 by S&P or P-1 by Moody's if such obligation debt is rated by only one
such rating agency, and (B) fully and unconditionally guaranteed by any
state, subdivision or agency whose short-term unsecured general obligation
debt is rated at least equivalent to (1) A-1 by S&P and P-1 by Moody's if
such short-term unsecured general obligation debt is rated by both such
rating agencies or (2) A-1 by S&P or P-1 by Moody's if such short-term
unsecured general obligation debt is rated by only one such rating agency
or (iii) auction rate certificates, issued by any state of the United
States or any subdivision or agency thereof, that are rated (1) AAA by S&P
and Aaa by Moody's if such obligation is rated by both such rating agencies
or (2) AAA by S&P or Aaa by Moody's if such obligation is rated by only one
such rating agency;
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(d) commercial paper maturing in not more than 270 days which is
issued by a corporation (other than an Affiliate of any Obligor) and that
is rated at least equivalent to (i) A-1 by S&P and P-1 by Moody's if such
commercial paper is rated by both such rating agencies or (ii) A-1 by S&P
or P-1 by Moody's if such commercial paper is rated by only one such rating
agency;
(e) deposits (including Eurodollar time deposits), federal funds or
bankers acceptances (maturing in not more than 365 days) of any domestic
bank (including a branch office of a foreign bank which branch office is
located in the United States), which:
(i) has an unsecured, uninsured and unguaranteed obligation
that is rated at least equivalent to (A) A-1 by S&P and P-1 by Moody's
if such unsecured, uninsured and unguaranteed obligation is rated by
both such rating agencies or (B) A-1 by S&P or P-1 by Moody's if such
unsecured, uninsured and unguaranteed obligation is rated by only one
such rating agency;
(ii) is the lead bank of a parent bank holding company with an
uninsured, unsecured and unguaranteed obligation meeting the rating
requirements in the preceding clause (i);
(iii) has combined capital, surplus and undivided profits of not
less than $500 million and an unsecured, uninsured and unguaranteed
long-term obligation that is rated at least equivalent to (A) A by S&P
and Moody's if such unsecured, uninsured and unguaranteed long-term
obligation is rated by both such rating agencies or (B) A by S&P or
Moody's if such unsecured, uninsured and unguaranteed long-term
obligation is rated by only one such rating agency; or
(iv) is a Lender;
(f) deposits of any bank or savings and loan association that serves
the local and non-centralized corporate operations of a Subsidiary Borrower
which (a) has combined capital, surplus and undivided profits of not less
than $100,000,000 or (b) is a bank or branch of a bank holding company
which has combined capital, surplus and undivided profits of not less than
$100,000,000, which deposits shall not exceed $500,000 at any such bank or
savings and loan association;
(g) investments in a money-market fund which may be a 2a-7 fund as
registered under the Investment Company Act of 1940 and is rated at least
equivalent to (i) AAm or AAm-G by S&P and Aa by Moody's if such
money-market fund is rated by both such rating agencies or (ii) AAm or
AAm-G by S&P or Aa by Moody's if such money-market fund is rated by only
one such rating agency;
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(h) repurchase agreements with a term of six months or less with any
institution having short-term, unsecured debt rated at least equivalent to
(i) A-1 by S&P and P-1 by Moody's if such short-term, unsecured debt is
rated by both such rating agencies or (ii) A-1 by S&P or P-1 by Moody's if
such short-term, unsecured debt is rated by only one such rating agency;
(i) in the case of Investments of a Foreign Subsidiary,
(i) direct obligations of, or obligations the timely
payment of principal of and interest on which is fully and
unconditionally guaranteed by, the national government of the
jurisdiction in which such Foreign Subsidiary is organized,
provided (A) such obligation matures in not more than 270 days
and (B) such national government has an unsecured, uninsured and
unguaranteed long-term obligation which is rated at least
equivalent to (1) A by S&P and Moody's if such unsecured,
uninsured and unguaranteed long-term obligation is rated by both
such rating agencies or (2) A by S&P or Moody's if such
unsecured, uninsured and unguaranteed long-term obligation is
rated by only one such rating agency;
(ii) deposits (including Eurodollar time deposits)
maturing in not more than 365 days of any bank organized in the
jurisdiction in which such Foreign Subsidiary is organized
(including a branch office of a bank organized elsewhere, which
branch office is located in such jurisdiction) which:
(A) has an unsecured, uninsured and unguaranteed
obligation which is rated at least equivalent to (1) A-1 by
S&P and P-1 by Moody's if such unsecured, uninsured and
unguaranteed obligation is rated by both such rating
agencies or (2) A-1 by S&P or P-1 by ▇▇▇▇▇'▇ if such
unsecured, uninsured and unguaranteed obligation is rated by
only one such rating agency, or
(B) is the lead bank of a parent bank holding company
with an uninsured, unsecured and unguaranteed obligation
meeting the rating requirements in the preceding clause (A),
or
(C) has combined capital, surplus and undivided
profits of not less than $100 million to the extent such
deposits do not exceed $100,000 and such deposits are in
each case fully insured by an agency of the national
government in which such bank is organized which meets the
requirements set forth in subclause (i)(i) above, or
(D) has combined capital, surplus and undivided
profits of not less than $500 million and an unsecured,
uninsured and unguaranteed long-term obligation which is
rated at least equivalent to (1) A by S&P and ▇▇▇▇▇'▇ if
such unsecured, uninsured and unguaranteed long-term
obligation is rated by both such rating agencies or (2) A by
S&P or ▇▇▇▇▇'▇ if such unsecured, uninsured and unguaranteed
long-term obligation is rated by only one such rating
agency; or
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(E) is a Lender.
"Casualty Event" means the damage, destruction or condemnation, as the case
may be, of property of the Parent or any of its Subsidiaries.
"Casualty Proceeds" means, with respect to any Casualty Event, the amount
of any insurance proceeds or condemnation awards received by or on behalf of the
Parent or any of its Subsidiaries in connection with such Casualty Event
(provided that, in the event the aggregate amount of such proceeds or awards
resulting from such Casualty Event do not exceed $500,000, such proceeds or
awards shall not constitute Casualty Proceeds), but excluding (i) any proceeds
or awards required to be paid to a creditor (other than the Lenders) which holds
a first-priority Lien permitted by Section 8.2.3 on the property which is the
subject of such Casualty Event (including Vehicles securing Vehicle Debt) and
(ii) reasonable and customary expenses incurred in obtaining such proceeds or
awards.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"Change in Control" means
(a) any Person other than the Parent shall own any Capital Stock of
Operations, Dollar or Thrifty Holdco or otherwise have the ability to elect
any members of the board of directors of Operations, Dollar or Thrifty
Holdco;
(b) any Person other than Thrifty Holdco shall own any Capital Stock
of Thrifty or Thrifty Car Sales or otherwise have the ability to elect any
members of the board of directors of Thrifty or Thrifty Car Sales;
(c) a "person" or "group" (within the meaning of Sections 13(d) and
14(d)(2) of the Exchange Act) (i) becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act) of more than 35% of the total
then outstanding voting power of the Voting Stock of the Parent or (ii) has
the right or the ability by voting right, contract or otherwise to elect or
designate for election a majority of the board of directors of the Parent;
(d) during any period of twenty-four months occurring subsequent to
the Amendment Effective Date, individuals who at the beginning of such
period constituted the board of directors of the Parent (together with any
new directors whose election by such board of directors, or whose
nomination for election by the shareholders of the Parent, as the case may
be, was approved by a vote of 66 2/3% of the directors then still in office
who were either directors at the beginning of such period or whose election
or nomination for election was previously so approved) cease for any reason
to constitute 50% or more of the board of directors then in office; or
12
(e) any Person or two or more Persons acting in concert shall have
acquired by contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation thereof, will result in its or their
acquisition of the power to direct or control, directly or indirectly, the
management or policies of any Borrower.
"Code" means the Internal Revenue Code of 1986, and the regulations
thereunder, in each case as amended, reformed or otherwise modified from time to
time.
"Commitment" means, as the context may require, a Lender's Loan Commitment
and/or Letter of Credit Commitment.
"Commitment Amount" means, on any date, $300,000,000, as such amount may be
reduced from time to time pursuant to Section 2.2.
"Commitment Termination Date" means the earliest of
(a) [INTENTIONALLY OMITTED];
(b) the Business Day immediately preceding the Stated Maturity Date;
(c) the date on which the Loan Commitment Amount is terminated in
full or reduced to zero pursuant to Section 2.2; and
(d) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in clause (c) or (d) above, the
Commitments shall terminate automatically and without any further action.
"Commitment Termination Event" means
(a) the occurrence of any Event of Default described in clauses (a)
through (d) of Section 9.1.9; or
(b) the occurrence and continuance of any other Event of Default and
either
(i) the declaration of all or any portion of the Loans to be
due and payable pursuant to Section 9.3, or
(ii) the giving of notice by the Administrative Agent, acting
at the direction of the Required Lenders, to the Borrowers that the
Commitments have been terminated.
"Common Stock" is defined in the fourth recital.
"Compliance Certificate" means a certificate duly completed and executed by
the chief financial Authorized Officer of the Parent, substantially in the form
of Exhibit D hereto, together with such changes thereto as the Administrative
Agent may from time to time reasonably request in writing for the purpose of
monitoring the Parent's compliance with the financial covenants contained
herein.
13
"Conduit Program" is defined in the fifth recital.
"Conduit Program Documents" means the Base Indenture, the Series 2000-1
Supplement thereto, the Master Collateral Agency Agreement, the master lease and
servicing agreement relating to the Conduit Program, and each other material
agreement, instrument and document delivered in connection with the Conduit
Program, in each case as amended, supplemented, amended and restated or
otherwise modified from time to time in accordance with the terms hereof and
thereof.
"Consolidated Working Capital" means, with respect to the Parent, at any
date, the excess (or the deficit) of (a) the sum of the amounts that, in
accordance with GAAP, are set forth opposite the captions "receivables, net"
(excluding accounts receivable pledged to Bankers Trust Company, now known as
Deutsche Bank Trust Company Americas, as the master collateral agent, or any
successor thereto in such capacity under Sections 2.1(a)(iii) and 2.1(b)(iii) of
the Master Collateral Agency Agreement), "prepaid expenses and other assets",
"income taxes receivable", and "deferred income tax assets" or any like
captions, at such date over (b) the sum of the amounts that, in accordance with
GAAP, are set forth opposite the captions (i) "accounts payable" (excluding
outstanding checks included in accounts payable related to vehicle financing
("float")), (ii) "accrued liabilities", (iii) "income taxes payable", (iv)
"public liability and property damage", (v) "deferred income tax liabilities"
and (vi) any like captions, at such date; provided, however, that such sum shall
only include amounts set forth under the captions described in clauses (b)(ii),
(iv), (v) and such captions that are like the captions described in such clauses
(b)(ii), (iv) and (v), in each case, to the extent and solely to the extent that
such amounts are payable within the next 12 months of such date.
"Contingent Liability" means any agreement, undertaking or arrangement by
which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the indebtedness,
obligation or any other liability of any other Person (other than by
endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of any other Person.
The amount of any Person's obligation under any Contingent Liability shall
(subject to any limitation set forth therein) be deemed to be the outstanding
principal amount (or maximum principal amount, if larger) of the debt,
obligation or other liability guaranteed thereby.
"Continuation/Conversion Notice" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of the
applicable Borrower, substantially in the form of Exhibit C hereto.
"Controlled Group" means all members of a controlled group of corporations
and all members of a controlled group of trades or businesses (whether or not
incorporated) under common control which, together with any Borrower, are
treated as a single employer under Section 414(b) or 414(c) of the Code or
Section 4001 of ERISA.
14
"Corporate Reorganization" means the December 2002 reorganization by the
Parent of certain of its operations and Subsidiaries pursuant to which it (i)
combined the operations of its "Thrifty" brand vehicle rental locations in the
United States, which were previously conducted by TRAC Team, Inc., with the
operation of its "Dollar" brand vehicle rental locations in the United States
into one entity, Operations, and (ii) established Dollar as the franchisor of
the "Dollar" brand vehicle rental business to third parties.
"Corporate Reorganization Expenses" means expenses related to the Corporate
Reorganization, including expenses resulting from (i) headquarters relocations,
(ii) employee relocations, (iii) severance pay, (iv) installation of "Fastlane"
at the "Thrifty" brand vehicle rental locations, (v) transition of personnel,
systems, and facility lease from Florida to Tulsa headquarters, (vi) software
licensing, (vii) information technology systems interfaces, (viii) sales taxes
for transferring assets, (ix) amendment fees and legal expenses relating to
entry into the Amended and Restated Credit Agreement and vehicle financing and
leasing documents, (x) contract terminations and revisions and (xi) costs of
establishing Dollar and qualifying Dollar to do business in each jurisdiction in
which such qualification is necessary or desirable.
"CP Enhancement Letter of Credit" means a Letter of Credit issued pursuant
to the terms hereof and of a CP Enhancement Letter of Credit Application and
Agreement.
"CP Enhancement Letter of Credit Application and Agreement" is defined in
Section 4.1.
"CP Program" is defined in the sixth recital.
"CP Program Documents" means the Base Indenture, the supplement thereto
relating to the CP Program, the Master Collateral Agency Agreement, the master
lease and servicing agreement relating to the CP Program, any note purchase
agreement between RCFC and Dollar Thrifty Funding, the Liquidity Facility and
any collateral agency agreement pursuant to which Dollar Thrifty Funding grants
a security interest in its assets to, among others, the lenders under the
Liquidity Facility and each other material agreement, instrument and document
delivered in connection with the CP Program, in each case as amended,
supplemented, amended and restated or otherwise modified from time to time in
accordance with the terms hereof and thereof.
"Credit Agreement" is defined in the second recital.
"Credit Extension" means and includes
(a) the advancing of any Loans by the Lenders in connection with a
Borrowing, and
(b) any issuance or extension by the Issuer of a Letter of Credit.
"Credit Extension Request" means, as the context may require, any Borrowing
Request or Issuance Request.
15
"Credit Suisse First Boston" is defined in the preamble.
"Cumulative Excess Cash Flow" means, as of any date, the sum of (i)
$319,550,000 plus (ii) the aggregate amount of Excess Cash Flow for each Fiscal
Year subsequent to the 2003 Fiscal Year and prior to the Fiscal Year in which
such date occurs; provided, however, that for purposes of this and only this
definition, "Excess Cash Flow" for each such Fiscal Year shall be calculated as
the difference of clause (a) of the definition thereof minus clause (b) of the
definition thereof with negative Excess Cash Flow (as so computed) diminishing
the Cumulative Excess Cash Flow by an equal amount and positive Excess Cash Flow
increasing the Cumulative Excess Cash Flow by an equal amount.
"DaimlerChrysler" means DaimlerChrysler Motors Company, LLC, a Delaware
limited liability company.
"DaimlerChrysler Supply Agreement" means the Vehicle Supply Agreement,
dated as of October 31, 2002, between DaimlerChrysler and the Parent, as
amended, supplemented, amended and restated, replaced, extended or otherwise
modified from time to time in accordance with the terms hereof and thereof.
"Default" means any Event of Default or any condition, occurrence or event
which, after notice or lapse of time or both, would constitute an Event of
Default.
"Defaulting Lender" means any Lender which defaults in its obligation to
make any Loans hereunder in accordance with Section 2.1 or defaults in its
obligation to fund its reimbursement obligations in respect of any Letter of
Credit in accordance with Section 4.4.
"Demand Capitalization Notes" means promissory notes, issued by the Parent
to RCFC for the purpose of capitalizing RCFC in connection with the MTN Program,
the Conduit Program and the CP Program.
"Disbursement Date" is defined in Section 4.5.
"Disclosure Schedule" means the Disclosure Schedule dated the date hereof
and delivered by the Borrowers to the Administrative Agent and the Lenders on or
prior to the date hereof in form and substance satisfactory to the
Administrative Agent and the Lenders, as amended, supplemented or otherwise
modified from time to time by the Borrowers with the written consent of the
Administrative Agent and the Required Lenders.
"Distribution" means, with respect to any Person, any dividend or
distribution (in cash, property or obligations) on any shares of any class of
Capital Stock (now or hereafter outstanding) of such Person or on any warrants,
options or other rights with respect to any shares of any class of Capital Stock
(now or hereafter outstanding) of such Person, other than dividends or
distributions payable in the common stock (other than Redeemable Capital Stock)
of such Person or warrants or options to purchase such common stock or split-ups
or reclassifications of its Capital Stock into additional or other shares of
such common stock.
"Dollar" means Dollar Rent A Car, Inc., an Oklahoma corporation established
in December 2002 to operate the franchising of the "Dollar" brand vehicle rental
business.
16
"Dollar Thrifty Funding" is defined in the sixth recital.
"Domestic Office" means, relative to any Lender, the office of such Lender
designated as such opposite its name in Schedule I hereto or designated in the
Lender Assignment Agreement or such other office of a Lender (or any successor
or assign of such Lender) within the United States as may be designated from
time to time by written notice from such Lender, as the case may be, to each
other Person party hereto. A Lender may have separate Domestic Offices for
purposes of making, maintaining or continuing ABR Loans.
"Domestic Subsidiary" means any Subsidiary of the Parent which is not a
Foreign Subsidiary.
"EBITDA" means, for any applicable period, the sum for such period of
(a) Net Income (excluding therefrom (i) the effect of any
extraordinary or other non-recurring gain outside the ordinary course of
business, (ii) any write-up (or write-down) in the value of any asset,
(iii) the earnings (or loss) of any Person (other than the Parent or any
other Subsidiary of the Parent) in which the Parent or any of its
Subsidiaries has an ownership interest, except to the extent of the amount
of dividends or other distributions actually paid in cash to the Parent or
any of its Subsidiaries by such Person during such period, (iv) except
where the provisions hereof expressly require a pro forma --- -----
determination, the earnings (or loss) of any Person accrued prior to the
date it becomes a Subsidiary of the Parent or is merged into or
consolidated with any of its Subsidiaries or the date that such other
Person's assets are acquired by any Subsidiary of the Parent and (v) the
earnings of any Subsidiary of the Parent that is neither a Subsidiary
Borrower nor a Subsidiary Guarantor to the extent that the declaration or
payment of dividends or similar distributions by such Subsidiary of such
earnings is not at the time permitted by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation applicable to such Subsidiary)
plus
(b) to the extent deducted in arriving at such Net Income, the sum,
without duplication, of (i) Aggregate Interest Expense, plus (ii) taxes
computed on the basis of income plus (iii) the aggregate amount of
depreciation and amortization of tangible and intangible assets, plus (iv)
non-cash charges in respect of non-cash awards under the Parent's incentive
compensation programs, plus (v) for any such period that includes any
period from December 1, 2002 to and including December 31, 2003 (the
"subject period"), Corporate Reorganization Expenses incurred during the
subject period in an amount not to exceed $3,000,000.
"Eligible Assignee" means a lending institution at the time of any proposed
assignment having total assets in excess of $1,000,000,000 which is organized
under the laws of the United States, or any state thereof or any other country
which is a member of the OECD, or a political subdivision of any such country
(provided that such bank is acting through a branch or agency located in the
country in which it is organized, another country which is also a member of the
OECD or in the Cayman Islands) and has long-term unsecured debt ratings of BBB-
(or better) from S&P and Baa3 (or better) from ▇▇▇▇▇'▇; provided, however, that
neither the Parent nor any of its Affiliates shall qualify as an Eligible
Assignee.
17
"Enhancement Letter of Credit Application and Agreement" means, with
respect to each Enhancement Letter of Credit, the application and agreement
therefor completed by the account party or parties in respect of such
Enhancement Letter of Credit and accepted by the Issuer.
"Enhancement Letters of Credit" is defined in clause (b)(i) of the ninth
recital.
"Environmental Laws" means all applicable federal, foreign, state or local
statutes, laws, ordinances, codes, rules, regulations and guidelines (including
consent decrees and administrative orders) relating to public health and safety
and protection of the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA also refer to any successor sections thereto.
"Eurodollar Loan" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a fixed rate of interest determined
by reference to the Eurodollar Rate (Reserve Adjusted).
"Eurodollar Office" means, relative to any Lender, the office of such
Lender designated as such opposite its name in Schedule I hereto or designated
in the Lender Assignment Agreement or such other office of a Lender (or any
successor or assign of such Lender) as designated from time to time by written
notice from such Lender to the Borrowers and the Administrative Agent, whether
or not outside the United States, which shall be making or maintaining
Eurodollar Loans of such Lender hereunder.
"Eurodollar Rate" means, with respect to any Eurodollar Loans for any
Interest Period, the rate per annum determined by Credit Suisse First Boston at
approximately 11:00 a.m. (London time) on the date that is two Business Days
prior to the beginning of the relevant Interest Period by reference to the
British Bankers' Association Interest Settlement Rates for deposits in U.S.
Dollars for a period equal to such Interest Period; provided that, to the extent
that an interest rate is not ascertainable pursuant to the foregoing provisions
of this definition, the "Eurodollar Rate" shall be the interest rate per annum
determined by Credit Suisse First Boston to be the average of the rates per
annum at which deposits in U.S. Dollars are offered for such relevant Interest
Period to major banks in the London interbank market in London, England by
Credit Suisse First Boston at approximately 11:00 a.m. (London time) on the date
that is two Business Days prior to the beginning of such Interest Period.
"Eurodollar Rate (Reserve Adjusted)" means, relative to any Loan to be
made, continued or maintained as, or converted into, a Eurodollar Loan for any
Interest Period, a rate per annum determined pursuant to the following formula:
Eurodollar Rate Eurodollar Rate
= ------------------------------------
(Reserve Adjusted) 1.00 - Eurodollar Reserve Percentage
18
The Eurodollar Rate (Reserve Adjusted) for any Interest Period for Eurodollar
Loans will be determined by the Administrative Agent on the basis of the
Eurodollar Reserve Percentage in effect two Business Days before the first day
of such Interest Period.
"Eurodollar Reserve Percentage" means, relative to any Interest Period for
Eurodollar Loans, the reserve percentage (expressed as a decimal) equal to the
maximum aggregate reserve requirements (including all basic, emergency,
supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements)
specified under regulations issued from time to time by the F.R.S. Board and
then applicable to assets or liabilities consisting of and including
"Eurocurrency Liabilities", as currently defined in Regulation D of the F.R.S.
Board, having a term approximately equal or comparable to such Interest Period.
"Event of Default" is defined in Section 9.1.
"Excepted Acquisition" means a Business Acquisition pursuant to which (a)
Operations or any of its Subsidiaries acquires a franchisee or the operations of
a franchisee, of the "Dollar" brand or "Thrifty" brand vehicle rental business
that, in each such case, was a franchisee of, or was conducted as a franchisee
of, Dollar or Thrifty on the Amendment Effective Date, and (b) neither the
Parent nor any of its Subsidiaries incurred, created, assumed, suffered to exist
or became liable with respect to, any Indebtedness in connection with such
Business Acquisition (other than Vehicle Debt and Indebtedness permitted under
clause (t) of Section 8.2.2).
"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 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 2003 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.
19
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Receivable" means any receivable or other right of the Parent, a
Subsidiary Borrower or any Subsidiary of a Subsidiary Borrower that is (a)
subject to a Lien which is not a Lien in favor of the Administrative Agent for
the benefit of the Lenders and (b) (i) an obligation payable to RCFC in respect
of Vehicles leased or financed pursuant to the Lease or the Master Lease (as
defined in the Base Indenture), (ii) an obligation of a manufacturer of a
Vehicle securing Vehicle Debt pursuant to a Vehicle Disposition Program (as
defined in the Base Indenture), including any right to receive incentive
payments in respect of any transportation allowance, return allowance, retention
bonus or otherwise, (iii) an obligation of an insurer or governmental entity
with respect to a Casualty Event in respect of a Vehicle securing Vehicle Debt,
(iv) an obligation of a Person in respect of the purchase price of a Vehicle
securing Vehicle Debt, (v) an obligation of a Person, as lessee or sublessee, to
a Subsidiary Borrower, as lessor or sublessor, in respect of any lease or
sublease of a Vehicle securing Vehicle Debt, (vi) an obligation of any Person
under an insurance contract in respect of any Vehicle securing Vehicle Debt or
(vii) proceeds of any of the items set forth in the preceding clauses (b)(i)
through (vi) that are not commingled with any other assets of the Parent, such
Subsidiary Borrower or any such Subsidiary, excluding, for the avoidance of
doubt, monies due or to become due from the retail rental of Vehicles.
"Existing Letters of Credit" means the Letters of Credit (as defined in the
Amended and Restated Credit Agreement) outstanding on the Amendment Effective
Date.
"Existing Loan Documents" means the Loan Documents (as defined in the
Amended and Restated Credit Agreement and in effect immediately prior to the
Amendment Effective Date).
"Existing Material Property" means each property listed on Schedule III
attached hereto.
"Existing Security Documents" is defined in Section 7.18.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to
(a) the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank of
New York; or
(b) if such rate is not so published for any day which is a Business
Day, the average of the quotations for such day on such transactions
received by Credit Suisse First Boston from three federal funds brokers of
recognized standing selected by it.
20
"Fee Letter" is defined in Section 3.3.3.
"Fiscal Quarter" means any quarter of a Fiscal Year.
"Fiscal Year" means any period of twelve consecutive calendar months ending
on December 31 or such other date permitted pursuant to Section 8.2.15;
references to a Fiscal Year with a number corresponding to any calendar year
(e.g., the "2003 Fiscal Year") refer to the Fiscal Year ending on the December
31 (or such other date permitted pursuant to Section 8.2.15) occurring during
such calendar year.
"Fixed Charge Coverage Ratio" means, at the end of any Fiscal Quarter, the
ratio of
(a) the sum of (i) Adjusted EBITDA for the four consecutive Fiscal
Quarters ending on the last day of such Fiscal Quarter plus (ii) rental
expense of the Parent and its Subsidiaries during such period under all
leases of real property exclusive of any portion of such expense determined
on the basis of the revenues generated by the operations conducted on the
real property subject to such leases ("Rental Expense")
to
(b) the sum of (i) Non-Vehicle Interest Expense for the four
consecutive Fiscal Quarters ending on the last day of such Fiscal Quarter,
plus (ii) taxes computed on the basis of income and paid in cash during
such period (net of cash received during such period in respect of such
taxes) (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)),
plus (iii) scheduled repayments of principal made by the Parent and its
Subsidiaries during such period of Indebtedness (other than Vehicle Debt)
of the type described in clause (a), (c), (f) or (g) of the definition of
"Indebtedness" or, to the extent in respect of such type of Indebtedness,
clause (h) of the definition of "Indebtedness," plus (iv) Capital
Expenditures made by the Parent and its Subsidiaries during such period in
cash (excluding Capital Expenditures for the acquisition of Vehicles), plus
(v) Rental Expense during such period, plus (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.
"Foreign Pledge Agreement" means any supplemental pledge agreement governed
by the laws of a jurisdiction other than the United States or a state thereof
executed and delivered by the Parent or any of its Subsidiaries pursuant to the
terms of this Agreement, in form and substance reasonably satisfactory to the
Administrative Agent, as may be necessary or desirable under the laws of
organization or incorporation of a Subsidiary to further protect or perfect the
Lien on and security interest in any Pledged Shares and/or Pledged Notes (as
such terms are defined in the Pledge Agreement).
"Foreign Subsidiary" means any Subsidiary of the Parent (a) which is
organized under the laws of any jurisdiction outside of the United States of
America, (b) which conducts the major portion of its business outside of the
United States of America and (c) all or substantially all of the property and
assets of which are located outside of the United States of America.
21
"F.R.S. Board" means the Board of Governors of the Federal Reserve System
or any successor thereto.
"GAAP" means generally accepted accounting principles and practices set
forth from time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board (or
agencies with similar functions of comparable stature and authority within the
U.S. accounting profession).
"General Letters of Credit" is defined in clause (b)(ii) of the ninth
recital.
"Guaranteed Obligations" is defined in Section 4.10.1.
"Guarantor" means, collectively, each Borrower and each Subsidiary
Guarantor.
"Guaranty" means, as the context may require, the Borrower Guaranty or the
Subsidiary Guaranty.
"Hazardous Material" means
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource Conservation
and Recovery Act, as amended; or
(c) any pollutant or contaminant or hazardous, dangerous or toxic
chemical, material or substance (including any petroleum product) within
the meaning of any other applicable federal, foreign, state or local law,
regulation, ordinance or requirement (including consent decrees and
administrative orders) relating to or imposing liability or standards of
conduct concerning any hazardous, toxic or dangerous waste, substance or
material, all as amended.
"Hedging Agreements" means, collectively, currency exchange agreements,
interest rate swap agreements, interest rate cap agreements and interest rate
collar agreements, and all other agreements or arrangements designed to protect
a Person against fluctuations in interest rates or currency exchange rates.
"Hedging Obligations" means, with respect to any Person, all liabilities of
such Person under Hedging Agreements.
"herein," "hereof," "hereto," "hereunder" and similar terms contained in
this Agreement or any other Loan Document refer to this Agreement or such other
Loan Document, as the case may be, as a whole and not to any particular Section,
paragraph or provision of this Agreement or such other Loan Document.
22
"Impermissible Qualification" means, relative to the opinion or
certification of any independent public accountant as to any financial statement
of the Parent or any other Obligor, any qualification or exception to such
opinion or certification
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of matters
relevant to such financial statement; or
(c) which relates to the treatment or classification of any item in
such financial statement and which, as a condition to its removal, would
require an adjustment to such item the effect of which would be to cause
the Parent or such other Obligor to be in default of any of its obligations
under Section 8.2.4.
"including" and "include" means including without limiting the generality
of any description preceding such term, and, for purposes of this Agreement and
each other Loan Document, the parties hereto agree that the rule of ejusdem
generis shall not be applicable to limit a general statement, which is followed
by or referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;
(b) all obligations, contingent or otherwise, relative to the face
amount of all letters of credit, bonds (including Surety Bonds) and similar
obligations, whether or not drawn, and banker's acceptances issued for the
account of such Person;
(c) all obligations of such Person as lessee under leases which have
been or should be, in accordance with GAAP, recorded as Capitalized Lease
Liabilities;
(d) all obligations of such Person in the nature of overdrafts;
(e) net liabilities of such Person under all Hedging Obligations;
(f) whether or not so included as liabilities in accordance with
GAAP, all obligations of such Person to pay the deferred purchase price of
property or services (excluding open accounts extended by suppliers on
normal trade terms in connection with purchases of goods and services), and
indebtedness (excluding prepaid interest thereon) secured by a Lien on
property owned or being purchased by such Person (including indebtedness
arising under conditional sales or other title retention agreements),
whether or not such indebtedness shall have been assumed by such Person or
is limited in recourse;
(g) Redeemable Capital Stock; and
(h) all Contingent Liabilities of such Person in respect of any of
the foregoing.
23
For all purposes of this Agreement, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor.
"Indemnified Liabilities" is defined in Section 12.4.
"Indemnified Parties" is defined in Section 12.4.
"Intercompany Note" means, with respect to the Parent or any of its
Subsidiaries, as the maker thereof, a promissory note substantially in the form
of Exhibit A to the Pledge Agreement (with such modifications as the
Administrative Agent may consent to, such consent not to be unreasonably
withheld), which promissory note shall evidence all intercompany loans which may
be made from time to time by the payee thereunder to such maker and shall be
duly endorsed and pledged by the payee in favor of the Administrative Agent.
"Interest Period" means, relative to any Eurodollar Loan, the period
beginning on (and including) the date on which such Eurodollar Loan is made or
continued as, or converted into, a Eurodollar Loan pursuant to Section 2.3 or
2.4 and ending on (but excluding) the day which numerically corresponds to such
date one, two, three or six months thereafter (or, if such month has no
numerically corresponding day, on the last Business Day of such month) as any
Borrower may select in its relevant written notice pursuant to Section 2.3 or
2.4; provided, however, that
(a) such Borrower shall not be permitted to select Interest Periods
to be in effect at any one time which have expiration dates occurring on more
than five different dates;
(b) Interest Periods commencing on the same date for Loans comprising
part of the same Borrowing shall be of the same duration;
(c) if such Interest Period would otherwise end on a day which is not
a Business Day, such Interest Period shall end on the next following
Business Day (unless such next following Business Day is the first Business
Day of a calendar month, in which case such Interest Period shall end on
the Business Day next preceding such numerically corresponding day); and
(d) no Interest Period may end later than the Stated Maturity Date.
"Investment" means, relative to any Person,
(a) any loan or advance made by such Person to any other Person
(excluding commission, travel and similar advances to officers and
employees made in the ordinary course of business);
(b) any Contingent Liability of such Person; and
(c) any ownership or similar interest held by such Person in any
other Person; provided, however, that ownership or similar interests
acquired by such Person with funds constituting compensation to an employee
of such Person, in each case pursuant to an employee benefit plan being
maintained by such Person in accordance with all applicable laws, shall not
constitute Investments hereunder so long as the financial statements of
such Person reflect such Person's obligation to such employee (as a
liability on such Person's balance sheet or otherwise) with respect to such
ownership or similar interest.
24
The amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon (and without adjustment
by reason of the financial condition of such other Person) and shall, if made by
the transfer or exchange of property other than cash, be deemed to have been
made in an original principal or capital amount equal to the fair market value
of such property.
"Issuance Request" means a request and certificate duly executed by the
chief executive, accounting or financial Authorized Officer of any Borrower, in
substantially the form of Exhibit B-2 attached hereto (with such changes thereto
as may be agreed upon from time to time by the Administrative Agent and such
Borrower).
"Issuer" means Credit Suisse First Boston or any of its affiliates, and/or
any other Lender having short-term credit ratings of A-1 (or better) from S&P
and P-1 from Moody's which has agreed to issue one or more Letters of Credit at
the request of the Administrative Agent with the consent of each Borrower (which
consents shall not be unreasonably withheld or delayed).
"Lender Assignment Agreement" means a Lender Assignment Agreement
substantially in the form of Exhibit L hereto.
"Lenders" is defined in the preamble and, in addition, shall include any
commercial bank or other financial institution that becomes a Lender pursuant to
Section 12.11.1.
"Letter of Credit" means, collectively, Enhancement Letters of Credit and
General Letters of Credit, which letters of credit, in each case, shall be
irrevocable standby letters of credit in such form as may be requested by any
Borrower and approved by the Issuer.
"Letter of Credit Commitment" means, relative to any Lender, such Lender's
obligation to issue (in the case of the Issuer) or participate in (in the case
of all Lenders) Letters of Credit pursuant to Section 2.1.2.
"Letter of Credit Commitment Amount" means, on any date, $300,000,000, as
such amount may be reduced from time to time pursuant to Section 2.2.3.
"Letter of Credit Outstandings" means, at any time, an amount equal to the
sum of
(a) the aggregate Stated Amount at such time of all Letters of Credit
then outstanding and undrawn (as such aggregate Stated Amount shall be
adjusted, from time to time, as a result of drawings, the issuance of
Letters of Credit, or otherwise);
plus
25
(b) the then aggregate amount of all unpaid and outstanding
Reimbursement Obligations.
"Leverage Ratio" means, at any time, the ratio of
(a) Adjusted Debt at such time;
to
(b) Adjusted EBITDA for the four consecutive Fiscal Quarters ending
on the last day of the Fiscal Quarter most recently completed prior to or
at such time.
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property, or other priority or preferential
arrangement of any kind or nature whatsoever, to secure payment of a debt or
performance of an obligation.
"Liquidity Facility" is defined in the sixth recital.
"Liquidity Obligation" is defined in Section 4.5.
"Loan Commitment" means, relative to any Lender, such Lender's obligation
to make Loans pursuant to Section 2.1.1.
"Loan Commitment Amount" means, on any date, $100,000,000, as such amount
may be reduced from time to time pursuant to Section 2.2.3.
"Loan Document" means this Agreement, the Notes, the Security Documents,
the Subsidiary Guaranty, the Letters of Credit, the Enhancement Letter of Credit
Application and Agreements, the Amendment Agreement, each Rate Protection
Agreement and each other agreement, certificate, document or instrument
delivered in connection with this Agreement or any such other agreement and
designated to be a "Loan Document" therein.
"Loans" is defined in Section 2.1.1.
"LOC Liquidity Disbursement" means, with respect to any Enhancement Letter
of Credit, (i) any drawing thereunder to the extent such drawing is for the
purpose of providing liquidity support to Dollar Thrifty Funding or another SPC
which has issued highly rated commercial paper in connection with the financing
of Vehicles, including any LOC Liquidity Disbursement (as defined in a CP
Enhancement Letter of Credit Application and Agreement) under a CP Enhancement
Letter of Credit and (ii) the portion of any LOC Termination Disbursement (as
defined in a CP Enhancement Letter of Credit Application and Agreement)
allocable to Dollar Thrifty Funding as a result of a ratings downgrade of the
Issuer of such CP Enhancement Letter of Credit, the failure to extend such CP
Enhancement Letter of Credit or otherwise.
"Master Collateral Agency Agreement" means the Amended and Restated Master
Collateral Agency Agreement dated as of December 23, 1997, among RCFC,
Operations and Thrifty, as grantors, the various financing sources and
beneficiaries parties thereto, and Bankers Trust Company, now known as Deutsche
Bank Trust Company Americas, as master collateral agent, as amended,
supplemented, amended and restated or otherwise modified from time to time in
accordance with the terms hereof and thereof.
26
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Mortgage" means each mortgage or deed of trust, as the case may be,
executed and delivered pursuant to Section 6.1.14 or 8.1.8 of the Original
Credit Agreement, Section 8.1.8 of the Amended and Restated Credit Agreement and
Section 8.1.8 of this Agreement, substantially in the form of Exhibit H-1 or H-2
respectively, attached hereto, as amended, supplemented, restated or otherwise
modified from time to time.
"MTN Program" is defined in the fifth recital.
"MTN Program Documents" means the Base Indenture, each Base Indenture
Supplement thereto relating to the MTN Program, the Master Collateral Agency
Agreement, the master lease and servicing agreement relating to the MTN Program,
and each other material agreement, instrument and document delivered in
connection with the MTN Program, in each case as amended, supplemented, amended
and restated or otherwise modified from time to time in accordance with the
terms hereof and thereof.
"Net Disposition Proceeds" means the excess of
(a) the gross cash proceeds received by the Parent or any of its
Subsidiaries from any sale, transfer or conveyance of assets permitted
pursuant to clause (c) of Section 8.2.10 (collectively referred to herein
for purposes of this definition as a "permitted disposition"), including
and together with any amounts collected by the vendor of such assets in
respect of the taxes described in clause (b)(ii) below, and any cash
payments received in respect of promissory notes or other non-cash
consideration delivered to the Parent or such Subsidiary in respect of any
permitted disposition (provided that, in the event the aggregate amount of
such proceeds resulting from such permitted disposition do not exceed
$100,000, such proceeds shall not constitute Net Disposition Proceeds),
over
(b) the sum of
(i) all fees and expenses with respect to legal, investment
banking, brokerage and accounting and other professional fees, sales
commissions and disbursements actually incurred in connection with
such permitted disposition which have not been paid (other than in the
case of reasonable out-of-pocket expenses) to Affiliates of the
Parent;
plus
27
(ii) all taxes and other governmental costs and expenses
actually paid or estimated by the Parent or such Subsidiary (in good
faith) to be payable in cash in connection with such permitted
disposition;
plus
(iii) payments made by the Parent or such Subsidiary to retire
Indebtedness (other than the Loans) of the Parent or such Subsidiary
where payment of such Indebtedness is required in connection with such
permitted disposition;
provided, however, that if, after the payment of all taxes with respect to such
permitted disposition, the amount of estimated taxes, if any, pursuant to clause
(b)(ii) above exceeded the tax amount actually paid in respect of such permitted
disposition, the aggregate amount of such excess shall, at such time, constitute
Net Disposition Proceeds.
"Net Equity Proceeds" means, with respect to the sale or issuance by the
Parent or any of its Subsidiaries to any Person (other than the Parent, any
Subsidiary Borrower or any of its Subsidiaries) of any Capital Stock or any
warrants or options with respect to such Capital Stock or the exercise of any
such warrants or options, the excess of:
(a) the gross cash proceeds received by the Parent or such Subsidiary
from such sale, exercise or issuance, other than proceeds received with
respect to (i) employee incentive compensation plans (including incentive
stock options), (ii) employee stock purchase plans (including deferred
stock purchase plans) and (iii) direct purchase plans (other than the plans
described in the preceding clauses (i) and (ii)) to the extent such
proceeds from direct purchase plans do not exceed $1,000,000 in any Fiscal
Year,
over
(b) all fees and expenses with respect to underwriting commissions
and legal, investment banking, brokerage and accounting and other
professional fees, sales commissions and disbursements actually incurred in
connection with such sale or issuance or exercise which have not (other
than in the case of reasonable out-of-pocket expenses) been paid to
Affiliates of the Parent in connection therewith.
"Net Income" means, for any applicable period, the aggregate of all amounts
which, in accordance with GAAP, would be included as net earnings (or net loss)
on a consolidated statement of operations of the Parent and its Subsidiaries for
such period.
"Net Issuance Proceeds" means, as to any issuance of indebtedness for
borrowed money by the Parent or any of its Subsidiaries (other than Indebtedness
permitted by Section 8.2.2 (except clause (u) thereof)), the excess of:
(a) the gross cash proceeds received by the Parent or such Subsidiary
from such issuance,
over
28
(b) all fees and expenses with respect to underwriting commissions
and legal, investment banking, brokerage and accounting and other
professional fees, sales commissions and disbursements actually incurred in
connection with such issuance and any prepayment premiums or penalties paid
in respect of any indebtedness refinanced with such proceeds in accordance
with the terms of this Agreement, which in each case have not (other than
in the case of reasonable out-of-pocket expenses) been paid to Affiliates
of the Parent in connection therewith.
"Net Worth" means, with respect to any Person at any date, on a
consolidated basis for such Person and its Subsidiaries, the excess of:
(a) the sum of capital stock (other than Redeemable Capital Stock)
taken at par value, capital surplus (other than in respect of Redeemable
Capital Stock) and retained earnings (or accumulated deficit) of such
Person at such date;
over
(b) treasury stock of such Person and, to the extent included in the
preceding clause (a), minority interests in Subsidiaries of such Person at
such date.
"Non-Defaulting Lender" means a Lender that is not a Defaulting Lender.
"Non-Material Subsidiary" means any Subsidiary of the Parent that
(a) accounted for no more than 1 1/2% of consolidated revenues of the
Parent and its Subsidiaries or 1 1/2% of consolidated net earnings of the
Parent and its Subsidiaries, in each case for the four consecutive Fiscal
Quarters of the Parent ending on the last day of the most recently
completed Fiscal Quarter with respect to which, pursuant to Section 8.1.1
of the Amended and Restated Credit Agreement or Section 8.1.1, financial
statements have been, or are required to have been, delivered by the Parent
to the Administrative Agent, and
(b) has assets which represent no more than 1 1/2% of the
consolidated assets of the Parent and its Subsidiaries as of the last day
of the last Fiscal Quarter of the most recently completed Fiscal Quarter
with respect to which, pursuant to Section 8.1.1 of the Amended and
Restated Credit Agreement or Section 8.1.1, financial statements have been,
or are required to have been, delivered by the Parent to the Administrative
Agent,
to the extent that Non-Material Subsidiaries do not
(i) account in the aggregate for more than 2 1/2% of
consolidated revenues of the Parent and its Subsidiaries or 2 1/2% of
consolidated net earnings of the Parent and its Subsidiaries in each
case for the four consecutive Fiscal Quarters of the Parent ending on
the last day of the most recently completed Fiscal Quarter with
respect to which, pursuant to Section 8.1.1 of the Amended and
Restated Credit Agreement or Section 8.1.1, financial statements have
been, or are required to have been, delivered by the Parent, to the
Administrative Agent, or
29
(ii) have assets which represent more than 2 1/2% of the
consolidated assets of the Parent and its Subsidiaries as of the last
day of the last Fiscal Quarter of the most recently completed Fiscal
Quarter with respect to which, pursuant to Section 8.1.1 of the
Amended and Restated Credit Agreement or Section 8.1.1, financial
statements have been, or are required to have been, delivered by the
Parent to the Administrative Agent;
provided that none of the Subsidiary Borrowers, Subsidiary Guarantors or SPCs or
Dollar shall be deemed to be a "Non-Material Subsidiary".
"Non-Vehicle Debt" means
(a) Total Debt
minus
(b) to the extent included in such Total Debt, Vehicle Debt
plus
(c) any obligation of a Borrower or any Subsidiary of such Borrower
(other than RCFC or another SPC) with respect to Vehicles owned by such
Borrower or such Subsidiary (i) which exceeds the excess of (x) the
aggregate Capitalized Cost (as defined in the Base Indenture) of such
Vehicles over (y) the greater of (1) the sum of the aggregate Depreciation
Charges (as defined in the Base Indenture) accrued with respect to such
Vehicles and (2) the excess of such aggregate Capitalized Cost over the
fair market value of such Vehicles and (ii) which has become due and
payable and remains unpaid as of the end of any calendar month.
"Non-Vehicle Interest Expense" means, for any applicable period, the excess
of
(a) the aggregate consolidated gross interest expense of the Parent
and its Subsidiaries for such period, as determined in accordance with GAAP
("Aggregate Interest Expense"), including (i) commitment fees paid or owed
with respect to the then unutilized portion of the Commitment Amount, (ii)
all other fees paid or owed with respect to the issuance or maintenance of
Contingent Liabilities (including letters of credit), which, in accordance
with GAAP, would be included as interest expense, (iii) net costs or
benefits under Hedging Agreements and (iv) the portion of any payments made
in respect of Capitalized Lease Liabilities of the Parent and its
Subsidiaries allocable to interest expense, but excluding the amortization
of debt issuance costs and other financing expenses incurred in connection
with the Original Credit Agreement, the amendment and restatement of the
Original Credit Agreement, the amendment and restatement of such amendment
and restatement pursuant to the Prior Amendment Agreement, the amendment
and restatement of the Amended and Restated Credit Agreement in the form
hereof and the other transactions contemplated hereby and by the Amendment
Agreement;
over
30
(b) to the extent included in the preceding clause (a), gross
interest expense in respect of Vehicle Debt ("Vehicle Interest Expense").
"Note" means a promissory note of any Borrower payable to the order of any
Lender, in the form of Exhibit A hereto (as such promissory note may be amended,
endorsed or otherwise modified from time to time), evidencing the aggregate
Indebtedness of such Borrower to such Lender resulting from outstanding Loans,
and also means all other promissory notes accepted from time to time in
substitution therefor or renewal thereof.
"Obligations" means all obligations (monetary or otherwise, whether
absolute or contingent, matured or unmatured, direct or indirect, ▇▇▇▇▇▇ or
inchoate, sole, joint, several or joint and several, due or to become due,
heretofore or hereafter contracted or acquired) of each Borrower and each other
Obligor arising under or in connection with this Agreement, the Notes, the
Letters of Credit and each other Loan Document.
"Obligor" means, as the context may require, any Borrower and any other
Person (other than any Agent, the Issuer or any Lender) to the extent such
Person is obligated under, or otherwise a party to, this Agreement or any other
Loan Document; provided that (i) RCFC shall not be an Obligor as a result of
having executed and delivered any Enhancement Letter of Credit Application and
Agreement and (ii) Dollar Thrifty Funding shall not be an Obligor except to the
extent relating to Liquidity Obligations.
"OECD" means the Organization for Economic Cooperation and Development.
"Organic Document" means, relative to any Obligor, as applicable, its
certificate of incorporation, by-laws, certificate of partnership, partnership
agreement, certificate of formation, limited liability agreement and all
shareholder agreements, voting trusts and similar arrangements applicable to any
of such Obligor's partnership interests, limited liability company interests or
authorized shares of capital stock.
"Original Amendment Agreement" means the Amendment Agreement dated as of
August 3, 2000, among inter alia, the Borrowers, the lenders party thereto and
the Administrative Agent.
"Original Credit Agreement" means the Credit Agreement dated as of December
23, 1997, among the Borrowers, the lenders party thereto and the Administrative
Agent.
"Outstanding Enhancement Letter of Credit" is defined in Section 4.2.
"Parent" is defined in the preamble.
"Participant" is defined in Section 12.11.2.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Pension Plan" means a "pension plan", as such term is defined in Section
3(2) of ERISA, which is subject to Title IV of ERISA (other than a multiemployer
plan as defined in Section 4001(a)(3) of ERISA), and to which a Borrower or any
corporation, trade or business that is, along with any Borrower, a member of a
Controlled Group, may have liability, including any liability by reason of
having been a substantial employer within the meaning of Section 4063 of ERISA
at any time during the preceding five years, or by reason of being deemed to be
a contributing sponsor under Section 4069 of ERISA.
31
"Percentage" means, relative to any Lender, the percentage set forth
opposite its name in Schedule I hereto or set forth in the Lender Assignment
Agreement, as such percentage may be adjusted from time to time pursuant to
Lender Assignment Agreement(s) executed by such Lender and its Assignee
Lender(s) and delivered pursuant to Section 12.11.
"Permitted Business Acquisition" means any Business Acquisition, so long as
(a) (i) such Business Acquisition is a Permitted Stock Acquisition;
or
(ii) such Business Acquisition is an Excepted Acquisition;
or
(iii) in the case of a Business Acquisition other than
a Permitted Stock Acquisition or Excepted Acquisition, the aggregate
amount of expenditures of the Parent and its Subsidiaries (excluding
Vehicle Debt but including the aggregate amount of any and all other
Indebtedness assumed in connection therewith and including the fair
market value of any shares of Capital Stock of the Parent issued in
connection therewith) in respect of such Business Acquisition (such
amount, the "Subject Amount"), when added to the aggregate amount of
all such expenditures of the Parent and its Subsidiaries in respect of
Business Acquisitions (other than Permitted Stock Acquisitions and
Excepted Acquisitions) during the Fiscal Year in which such Subject
Amount would be expended, does not exceed $10,000,000 for such Fiscal
Year; provided that, in the event the Parent and/or a Subsidiary of
the Parent executes and delivers binding definitive documentation with
respect to such Business Acquisition in one Fiscal Year and such
Business Acquisition is consummated in the initial 90 days of the
immediately succeeding Fiscal Year, the Parent may elect, for the
purposes of this clause (a)(iii), to treat such Business Acquisition
as having occurred in the Fiscal Year in which such definitive
documentation was executed and delivered;
provided, however, that, after giving effect to each Business Acquisition
described in this clause (a) (including each Excepted Acquisition) (A)
there shall be at least $75,000,000 of unused and available Loan
Commitments and/or unrestricted cash on hand at the Borrowers and the
Subsidiary Guarantors (on a consolidated basis) that is free of any Lien
(other than common law "banker's liens" or rights of setoff) and (B) there
shall be no more than $25,000,000 of unpaid and outstanding Loans and
Reimbursement Obligations; and
(b) such Business Acquisition was not preceded by an unsolicited
tender offer for the Capital Stock of the Person subject to such Business
Acquisition by, or by a proxy contest initiated by, the Parent or any of
its Subsidiaries; and
32
(c) in the event the Subject Amount (which amount shall include, in
the event such Business Acquisition is to be consummated in a series of
related transactions, the aggregate amount of all such expenditures of the
Parent and its Subsidiaries in respect of such related transactions),
including each Subject Amount with respect to an Excepted Acquisition,
would exceed $10,000,000 or in the event any portion of the consideration
in respect of such Business Acquisition is in Capital Stock of the Parent,
the Administrative Agent shall have received a Compliance Certificate
executed by the chief financial Authorized Officer of the Parent certifying
and, if reasonably requested by the Administrative Agent, showing (in
reasonable detail and with appropriate calculations and computations in all
respects reasonably satisfactory to the Administrative Agent) that on a
historical pro forma basis (after giving effect to such Business
Acquisition and all transactions related thereto (including all
Indebtedness that would be assumed or incurred as a result of such
acquisition) and all Business Acquisitions consummated prior thereto during
the applicable periods thereunder) as of the last day of the most recently
completed Fiscal Quarter with respect to which, pursuant to Section 8.1.1
of the Amended and Restated Credit Agreement or Section 8.1.1, financial
statements have been, or are required to have been, delivered by the Parent
and the Parent would be in compliance with Section 8.2.4 as of the last day
of such Fiscal Quarter.
"Permitted Stock Acquisition" means any Business Acquisition in respect of
a Person that is actively engaged in the business of renting for general use
passenger automobiles, light and medium duty trucks and vans, so long as the
consideration paid in connection with such Business Acquisition consists solely
of Capital Stock of the Parent issued in connection therewith and the assumption
of Vehicle Debt (if any).
"Person" means any natural person, corporation, limited liability company,
partnership, joint venture, joint stock company, firm, association, trust or
unincorporated organization, government, governmental agency, court or any other
legal entity, whether acting in an individual, fiduciary or other capacity.
"Plan" means any Pension Plan or Welfare Plan.
"Pledge Agreement" means the Amended and Restated Pledge Agreement executed
and delivered by the Borrowers and certain of the Subsidiary Guarantors pursuant
to the Amendment Agreement, which amends and restates the Pledge Agreement
delivered pursuant to Section 6.1.13 of the Original Credit Agreement, a copy of
which is attached hereto as Exhibit E, as the same may be amended, supplemented,
amended and restated or otherwise modified from time to time.
"Prior Amendment Agreement" means the Amendment Agreement dated as of
December 6, 2002, among inter alia, the Borrowers, the Lenders, and the
Administrative Agent.
"Prior Amendment Effective Date" means December 6, 2002, the date as of
which the Amended and Restated Credit Agreement became effective.
"Quarterly Payment Date" means the last Business Day of each March, June,
September, and December.
33
"Rate Protection Agreement" means any Hedging Agreement entered into by any
Borrower under which the counterparty of such agreement is (or, at the time such
agreement was entered into, was) a Lender or an Affiliate of a Lender.
"Rating Agencies" means S&P and ▇▇▇▇▇'▇.
"RCFC" is defined in the fifth recital.
"Redeemable Capital Stock" means Capital Stock of the Parent or any of its
Subsidiaries that, either by its terms, by the terms of any security into which
it is convertible or exchangeable or otherwise, (i) is or upon the happening of
an event or passage of time would be required to be redeemed (for consideration
other than shares of Common Stock) on or prior to ▇▇▇▇▇ ▇, ▇▇▇▇, (▇▇) is
redeemable at the option of the holder thereof (for consideration other than
shares of Common Stock) at any time prior to such date or (iii) is convertible
into or exchangeable for debt securities of the Parent or any of its
Subsidiaries at any time prior to such anniversary.
"Register" is defined in Section 12.11.1.
"Regulation S-X" means the rules promulgated by the SEC and codified under
17 CFRss.ss.210, et. seq.
"Reimbursement Due Date" is defined in Section 4.5.
"Reimbursement Obligation" is defined in Section 4.6.
"Release" means a "release," as such term is defined in CERCLA.
"Rental Expense" is defined in the definition of "Fixed Charge Coverage
Ratio".
"Replacement Lender" is defined in Section 12.11.3.
"Replacement Letter of Credit" is defined in Section 4.2.
"Required Lenders" means, at any time, Non-Defaulting Lenders holding more
than 50% of the sum of the aggregate principal amount of the Loans held by
Non-Defaulting Lenders then outstanding plus the Letter of Credit Outstandings,
or if no Loans and Letters of Credit are then outstanding, Non-Defaulting
Lenders having more than 50% of the Commitment Amount of Non-Defaulting Lenders.
"Resource Conservation and Recovery Act" means the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901, et seq., as amended.
"S&P" means Standard & Poor's Ratings Services.
"SEC" means the Securities and Exchange Commission.
"Secured Parties" means the Lenders, the Issuer, the Administrative Agent,
each counterparty to a Rate Protection Agreement and each of their respective
successors, transferees and assigns.
34
"Securities Act" means the Securities Act of 1933, as amended.
"Security Agreement" means the Amended and Restated Security Agreement
executed and delivered by the Borrowers and the Subsidiary Guarantors pursuant
to the Amendment Agreement, which amends and restates the Security Agreement
delivered pursuant to Section 6.1.13 of the Original Credit Agreement, a copy of
which is attached hereto as Exhibit F, as the same may be amended, supplemented,
amended and restated or otherwise modified from time to time.
"Security Documents" means (i) each Mortgage, (ii) the Security Agreement,
(iii) the Pledge Agreement, (iv) the Foreign Pledge Agreements (if any), and (v)
all security agreements, mortgages, deeds of trust, pledges, collateral
assignments or any other instrument evidencing or creating any security interest
in favor of the Administrative Agent in any asset or property of the Parent or
any of its Subsidiaries, in each case as amended, supplemented or otherwise
modified from time to time.
"SPC" means RCFC, Dollar Thrifty Funding, TCL Funding Limited Partnership,
a financing partnership organized under the laws of Canada, each successor
entity thereto, and any other special purpose entity formed for the sole purpose
of financing the acquisition of Vehicles.
"Stated Amount" of any letter of credit (including each Letter of Credit)
means the maximum amount available for drawing thereunder (whether or not any
conditions to drawing can then be met).
"Stated Expiry Date" is defined in Section 4.1.
"Stated Maturity Date" means April 1, 2009.
"Subordinated Debt" means all unsecured Indebtedness of the Parent, any
Subsidiary Borrower or any Subsidiary Guarantor for money borrowed which is
subordinated, upon terms satisfactory to the Administrative Agent, in right of
payment to the payment in full in cash of all Obligations of the Parent, such
Subsidiary Borrower or such Subsidiary Guarantor, as the case may be.
"Subordinated Intercompany Debt" means unsecured Indebtedness (a)
subordinated to the Obligations by provisions substantially in the form set
forth in Schedule II hereto and (b) the terms of which (including interest rate)
are not more burdensome to the obligor or obligors thereunder than those terms
generally available from independent third parties to obligors similarly
situated as such obligor or obligors.
"Subsidiary" means, with respect to any Person, any corporation,
partnership or other business entity of which more than 50% of the outstanding
capital stock (or other ownership interest) having ordinary voting power to
elect a majority of the board of directors, managers or other voting members of
the governing body of such entity (irrespective of whether at the time capital
stock (or other ownership interest) of any other class or classes of such entity
shall or might have voting power upon the occurrence of any contingency) is at
the time directly or indirectly owned by such Person, by such Person and one or
more other Subsidiaries of such Person, or by one or more other Subsidiaries of
such Person.
35
"Subsidiary Borrowers" is defined in the preamble.
"Subsidiary Guarantor" means any Subsidiary of the Parent that is a party
to the Subsidiary Guaranty.
"Subsidiary Guaranty" means the Amended and Restated Guaranty executed and
delivered by each Subsidiary of the Parent that is a party thereto pursuant to
the Amendment Agreement, which amends and restates the Guaranty delivered
pursuant to Section 6.1.11 of the Original Credit Agreement, a copy of which is
attached hereto as Exhibit G, as the same may be amended, supplemented, restated
or otherwise modified from time to time.
"Substitute Lender" is defined in Section 5.10.
"Surety Bond" means any instrument pursuant to which the issuer thereof
agrees to pay on behalf of a Borrower or any of its Subsidiaries an amount then
due and payable by such Borrower or such Subsidiary to another Person (including
an insurer of such Borrower or such Subsidiary).
"Syndication Agent" is defined in the preamble.
"Taxes" is defined in Section 5.6.
"Threshold Net Worth" means, at any time, the sum of (i) $384,368,000, plus
(ii) 50% of the Net Income of the Parent for each Fiscal Year, commencing with
the 2004 Fiscal Year, as shall have been completed on or prior to such time (in
each case with no reduction for net losses), plus (iii) 100% of Net Equity
Proceeds.
"Thrifty" is defined in the preamble.
"Thrifty Car Sale Business" is defined in clause (b)(ii)(B) of the third
recital.
"Thrifty Car Sale Franchise Business" is defined in clause (b)(i) of the
third recital.
"Thrifty Car Sales" means Thrifty Car Sales, Inc., an Oklahoma corporation.
"Thrifty Holdco" means Thrifty, Inc., an Oklahoma corporation.
"Total Debt" means, without duplication, the aggregate amount of all
Indebtedness of the Parent and its Subsidiaries, other than Indebtedness of the
type described in clause (d) or (e) of the definition of "Indebtedness" or, to
the extent in respect of such type of Indebtedness, clause (h) of the definition
of "Indebtedness."
"type" means, relative to any Loan, the portion thereof, if any, being
maintained as an ABR Loan or a Eurodollar Loan.
"U.C.C." means the Uniform Commercial Code as from time to time in effect
in the State of New York.
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"United States" or "U.S." means the United States of America, its fifty
states and the District of Columbia.
"U.S. Dollar" and the symbol "$" mean the lawful currency of the United
States.
"U.S. Government Obligations" means direct obligations of, or obligations
the timely payment of principal of and interest on which is fully and
unconditionally guaranteed by, the United States.
"U.S. Tax Compliance Certificate" is defined in clause (b)(Y) of Section
5.6.
"Vehicle Debt" means Indebtedness relating solely to the financing or
leasing of any Vehicle and secured thereby (and by related collateral); provided
that any obligation included as Non-Vehicle Debt pursuant to clause (c) of the
definition thereof shall not be deemed to be Vehicle Debt.
"Vehicle Interest Expense" is defined in clause (b) of the definition of
"Non-Vehicle Interest Expense."
"Vehicles" means all existing and hereafter acquired motor vehicle
inventory of Operations, Thrifty or Dollar and their respective Subsidiaries
(including such inventory owned by other Subsidiaries of the Parent, including
RCFC, that is leased to Operations, Thrifty or Dollar or their respective
Subsidiaries), consisting of passenger automobiles, shuttle buses, vans and
light and medium duty trucks, whether owned or leased and whether held for
purposes of sale, lease, rental or internal management use.
"Voting Stock" means, with respect to any Person, Capital Stock in respect
of the class or classes pursuant to which the holders thereof have the general
voting power under ordinary circumstances to elect at least a majority of the
board of directors, managers, trustees or other similar governing body of such
Person (irrespective of whether or not at the time the Capital Stock of any
other class or classes shall have or might have voting power by reason of the
occurrence of any contingency).
"Welfare Plan" means a "welfare plan", as such term is defined in Section
3(1) of ERISA.
"Wholly Owned Subsidiary" means, with respect to any Person, a Subsidiary
all the Capital Stock (other than directors' qualifying shares that are required
under applicable law) of which is owned by such Person or another Wholly Owned
Subsidiary of such Person.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in the Disclosure Schedule and in
each Note, Borrowing Request, Continuation/Conversion Notice, Issuance Request,
Loan Document, notice and other communication delivered from time to time in
connection with this Agreement or any other Loan Document.
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SECTION 1.3. Cross-References. Unless otherwise specified, references
in this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to such clause of
such Article, Section or definition.
SECTION 1.4. Accounting and Financial Determinations. (a) Unless
otherwise specified, all accounting terms used herein or in any other Loan
Document shall be interpreted, all accounting determinations and computations
hereunder or thereunder (including under Section 8.2.4) shall be made, and all
financial statements required to be delivered hereunder or thereunder shall be
prepared in accordance with GAAP unless otherwise indicated. Unless otherwise
expressly provided, all financial covenants and defined financial terms shall be
computed on a consolidated basis for the Parent and its Subsidiaries, in each
case without duplication.
(b) If the Parent notifies the Administrative Agent that the Borrowers
wish to amend any covenant in Article VIII or any related definition to
eliminate the effect of any change in GAAP occurring after the date of this
Agreement on the operation of such covenant (or if the Administrative Agent
notifies the Borrowers that the Required Lenders wish to amend Article VIII or
any related definition for such purpose), then the Borrowers' compliance with
such covenant shall be determined on the basis of GAAP in effect immediately
before the relevant change in GAAP became effective, until either such notice is
withdrawn or such covenant is amended in a manner reasonably satisfactory to the
Borrowers and the Required Lenders. In the event of any such notification from
the Parent or the Administrative Agent and until such notice is withdrawn or
such covenant is so amended, the Borrowers will furnish to each Lender and the
Administrative Agent, in addition to the financial statements required to be
furnished pursuant to Section 8.1.1 (the "Current GAAP Financials"), (i) the
financial statements described in Section 8.1.1 based upon GAAP as in effect at
the time such covenant was agreed to (the "Prior GAAP Financials") and (ii) a
reconciliation between the Prior GAAP Financials and the Current GAAP
Financials.
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES AND NOTES
SECTION 2.1. Commitments. On the terms and subject to the conditions
of this Agreement (including Article VI) and the Amendment Agreement (including
Article III thereof), each Lender severally agrees as follows:
SECTION 2.1.1. Loan Commitment. From time to time on any Business Day
occurring prior to the Commitment Termination Date, each Lender will make Loans
(relative to such Lender, its "Loans") to the Borrower so requesting such Loans
equal to such Lender's Percentage of the aggregate amount of the Borrowing of
Loans requested by such Borrower to be made on such day. On the terms and
subject to the conditions hereof, each Borrower may from time to time borrow,
prepay and reborrow Loans.
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SECTION 2.1.2. Commitment to Issue Letters of Credit. From time to time
on any Business Day prior to the Stated Maturity Date, the Issuer will issue,
and each Lender will participate in, the Letters of Credit, in accordance with
Article IV.
SECTION 2.1.3. Lenders Not Permitted or Required to Make Loans or Issue
Letters of Credit Under Certain Circumstances. No Lender shall be permitted or
required to
(a) make any Loan if, after giving effect thereto, the aggregate
outstanding principal amount of all Loans
(i) of all Lenders would exceed the Loan Commitment Amount,
(ii) of all Lenders, together with all Letter of Credit
Outstandings, would exceed the Commitment Amount,
(iii) of such Lender would exceed such Lender's Percentage of
the Loan Commitment Amount, or
(iv) of such Lender, together with its Percentage of all Letter
of Credit Outstandings, would exceed such Lender's Percentage of the
Commitment Amount; or
(b) issue (in the case of the Issuer) any Letter of Credit if, after
giving effect thereto
(i) all Letter of Credit Outstandings would exceed the Letter
of Credit Commitment Amount,
(ii) all Letter of Credit Outstandings, together with the
aggregate outstanding principal amount of all Loans of all Lenders
would exceed the Commitment Amount,
(iii) such Lender's Percentage of all Letter of Credit
Outstandings (after giving effect to Section 4.4) would exceed such
Lender's Percentage of the Letter of Credit Commitment Amount, or
(iv) such Lender's Percentage of all Letter of Credit
Outstandings (after giving effect to Section 4.4), together with the
aggregate outstanding principal amount of all Loans of such Lender
would exceed such Lender's Percentage of the Commitment Amount.
SECTION 2.2. Reduction of Commitment Amounts. The Commitment Amount,
the Letter of Credit Commitment Amount and the Loan Commitment Amount are
subject to reduction from time to time pursuant to this Section 2.2.
SECTION 2.2.1. Optional. The Borrowers may, from time to time on any
Business Day, voluntarily reduce the unused amount of the Commitment Amount;
provided, however, that all such reductions shall require at least three
Business Days' prior written notice to the Administrative Agent and be
permanent, and any partial reduction of the Commitment Amount shall be in a
minimum amount of $5,000,000 and in an integral multiple of $1,000,000.
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SECTION 2.2.2. Mandatory. The Commitment Amount shall, on the second
Business Day following the receipt by the Parent or any of its Subsidiaries of
any Net Disposition Proceeds, Net Equity Proceeds, Net Issuance Proceeds or
Casualty Proceeds, as the case may be, be reduced by an aggregate amount equal
to 100% of such Net Disposition Proceeds, 50% of such Net Equity Proceeds, 100%
of such Net Issuance Proceeds or 100% of such Casualty Proceeds, as the case may
be; provided, however, that, so long as a Default has not occurred and is not
then continuing, the Commitment Amount shall not be reduced by
(a) the amount of Net Disposition Proceeds received by the Parent or
such Subsidiary in any Fiscal Year (commencing with the 2003 Fiscal Year)
to the extent (x) such proceeds are applied to the acquisition or
construction of property or assets to be used in the business of the
Borrowers and their Subsidiaries within 360 days following the receipt
thereof and (y) such property and assets (other than such property and
assets so acquired or constructed in any Fiscal Year that have an aggregate
fair market value not exceeding $1,000,000) are subject to a perfected,
first priority Lien in favor of the Administrative Agent, subject only to
Liens permitted by clauses (k), (l), (m) and (o) of Section 8.2.3; provided
further, however, that Net Disposition Proceeds exceeding $2,500,000 from a
single transaction shall not be required to be applied to the reduction of
the Commitment Amount if (i) the Parent notifies the Administrative Agent
in writing no later than the thirtieth day following the receipt of such
Net Disposition Proceeds of the Parent's or such Subsidiary's good faith
intention to apply such Net Disposition Proceeds to such replacement,
acquisition or construction (and describes in reasonable written detail
such proposed application no later than the sixtieth day following the
receipt of such Net Disposition Proceeds) within 360 days following the
receipt of such Net Disposition Proceeds and (ii) the Parent or such
Subsidiary in fact uses such Net Disposition Proceeds as specified in such
notice to the Administrative Agent within 360 days following the receipt of
such Net Disposition Proceeds; and
(b) the amount of any Casualty Proceeds received by the Parent or
such Subsidiary that are applied to the rebuilding or replacement of the
property or assets which were the source of such Casualty Proceeds within
360 days following the occurrence of such Casualty Event or such longer
period as may otherwise be provided in any Mortgage with respect to such
property or assets.
Each such reduction in the Commitment Amount shall be permanent and automatic.
SECTION 2.2.3. Corresponding Reductions. Any reduction of the Commitment
Amount which reduces the Commitment Amount below the then current amount of the
Letter of Credit Commitment Amount or the Loan Commitment Amount, as the case
may be, shall result in an automatic and corresponding reduction of the Letter
of Credit Commitment Amount or the Loan Commitment Amount, as the case may be,
to the amount of the Commitment Amount, as so reduced, without any further
action on the part of the Administrative Agent, the Lenders or otherwise.
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SECTION 2.3. Borrowing Procedure. By delivering a Borrowing Request
to the Administrative Agent on or before 11:00 a.m. (New York City, New York
time) on a Business Day, any Borrower may from time to time irrevocably request,
(a) on such Business Day (but in any event not more than five
Business Days' notice) in the case of ABR Loans, or
(b) on not less than three (but in any event not more than five)
Business Days' notice in the case of Eurodollar Loans,
(c) that a Borrowing be made, in the case of ABR Loans, in a minimum
amount of $1,000,000 and an integral multiple of $100,000, in the case of
Eurodollar Loans, in a minimum amount of $5,000,000 and an integral
multiple of $100,000 or, in either case, in the unused amount of the
Commitment. On the terms and subject to the conditions of this Agreement,
each Borrowing shall be comprised of the type of Loans, and shall be made
on the Business Day specified in such Borrowing Request. On or before 1:00
p.m. (New York City, New York time) on such Business Day, each Lender shall
deposit with the Administrative Agent same day funds in an amount equal to
such Lender's Percentage of the requested Borrowing. Such deposit will be
made to an account which the Administrative Agent shall specify from time
to time by notice to the Lenders. To the extent funds are received from the
Lenders, the Administrative Agent shall make such funds available to such
Borrower by wire transfer to the accounts such Borrower shall have
specified in its Borrowing Request. No Lender's obligation to make any Loan
shall be affected by any other Lender's failure to make any Loan.
SECTION 2.4. Continuation and Conversion Elections. By delivering
a Continuation/Conversion Notice to the Administrative Agent on or before 11:00
a.m. (New York City, New York time) on a Business Day, any Borrower may from
time to time irrevocably elect with respect to Loans borrowed by it,
(a) on such Business Day in the case of ABR Loans, or
(b) on not less than three (but in any event not more than five)
Business Days' notice in the case of Eurodollar Loans,
that all, or any portion in an aggregate minimum amount of $5,000,000 and an
integral multiple of $100,000, in the case of any Eurodollar Loan, be converted
into an ABR Loan, or an aggregate minimum amount of $5,000,000 and an integral
multiple of $100,000, in the case of any ABR Loan or Eurodollar Loan, as the
case may be, be converted into or continued as, as the case may be, a Eurodollar
Loan (in the absence of delivery of a Continuation/ Conversion Notice with
respect to any Eurodollar Loan at least three Business Days (but not more than
five Business Days) before the last day of the then current Interest Period with
respect thereto, such Eurodollar Loan shall, on such last day, automatically
convert to an ABR Loan); provided, however, that (i) each such conversion or
continuation shall be pro rated among the applicable outstanding Loans of all
Lenders and (ii) no portion of the outstanding principal amount of any Loans may
be continued as, or be converted into, Eurodollar Loans when any Default has
occurred and is continuing.
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SECTION 2.5. Funding. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert Eurodollar Loans hereunder by causing
one of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such Eurodollar Loan; provided,
however, that such Eurodollar Loan shall nonetheless be deemed to have been made
and to be held by such Lender, and the obligation of the applicable Borrower to
repay such Eurodollar Loan shall nevertheless be to such Lender for the account
of such foreign branch, Affiliate or international banking facility. In
addition, each Borrower hereby consents and agrees that, for purposes of any
determination to be made for purposes of Section 5.1, 5.2, 5.3 or 5.4, it shall
be conclusively assumed that each Lender elected to fund all Eurodollar Loans by
purchasing deposits in U.S. Dollars in its Eurodollar Office's interbank
eurodollar market.
SECTION 2.6. Loan Accounts. (a) The Loans and participations in the
Letter of Credit Outstandings made by each Lender and the Letters of Credit
issued by the Issuer shall be evidenced by one or more loan accounts or records
maintained by such Lender or the Issuer, as the case may be, in the ordinary
course of business. The loan accounts or records maintained by the
Administrative Agent, the Issuer and each Lender shall be conclusive absent
manifest error of the amount of the Loans, the participations in Letter of
Credit Outstandings and the Letters of Credit made by the Lenders and the
Issuer, as the case may be, and the interest and payments thereon. Any failure
so to record or any error in doing so shall not, however, limit or otherwise
affect the obligation of any Borrower hereunder to pay any amount owing with
respect to the Loans and Letters of Credit, as the case may be, or of the
Lenders with respect to participations in Letter of Credit Outstandings.
(b) If requested by any Lender, such Lender's Loans under the Loan
Commitment shall be evidenced by a Note payable to the order of such Lender in a
maximum principal amount equal to such Lender's Percentage of the original Loan
Commitment Amount. Each Borrower hereby irrevocably authorizes each Lender
having a Note to make (or cause to be made) appropriate notations on the grid
attached to such Lender's Note (or on any continuation of such grid), which
notations, if made, shall evidence, inter alia, the date of, the outstanding
principal of, and the interest rate and Interest Period applicable to the Loans
evidenced thereby. Such notations shall be conclusive and binding on applicable
Borrower absent manifest error; provided, however, that the failure of any
Lender having a Note to make any such notations shall not limit or otherwise
affect any Obligations of any Borrower or any other Obligor.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments. Each Borrower shall repay in
full the unpaid principal amount of each of its Loans upon the Stated Maturity
Date. Prior thereto, such Borrower
(a) may, from time to time on any Business Day, make a voluntary
prepayment, in whole or in part, of the outstanding principal amount of any
Loans borrowed by it; provided, however, that
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(i) any such prepayment shall be made pro rata among Loans of
the same type, and, if applicable, having the same Interest Period of
all Lenders;
(ii) all such voluntary prepayments shall require prior
irrevocable written notice to the Administrative Agent received by the
Administrative Agent no later than 11:00 a.m. (New York City, New
York)
(A) on such Business Day in the case of ABR Loans, or
(B) on not less than three (but in any event not more than
five) Business Days' notice in the case of Eurodollar Loans, and
(iii) all such voluntary partial prepayments shall be, in the
case of ABR Loans, in an aggregate minimum amount of $1,000,000 and an
integral multiple of $100,000 and, in the case of Eurodollar Loans, in
an aggregate minimum amount of $5,000,000 and an integral multiple of
$100,000;
(b) shall, on each date when any reduction in the Commitment Amount
shall become effective (including pursuant to Section 2.2), make a
mandatory prepayment equal to the excess, if any, of the aggregate,
outstanding principal amount of all Loans and Letter of Credit Outstandings
over the Commitment Amount in effect on such date (following such
reduction), which mandatory prepayment shall be applied (or held for
application, as the case may be) by the Lenders
(i) first, to the payment of the aggregate unpaid principal
amount of those Loans then outstanding equal to the excess, if any, of
the aggregate, outstanding principal amount of all Loans over the Loan
Commitment Amount in effect on such date (following such reduction, if
applicable);
(ii) second, to the payment and/or cash collateralization of
the then outstanding Letter of Credit Outstandings equal to the
excess, if any, of the Letter of Credit Outstandings over the Letter
of Credit Commitment Amount in effect on such date (following such
reduction, if applicable); and
(iii) third, to the payment of the aggregate unpaid principal
amount of the Loans, and then to the payment and/or cash
collateralization of the then outstanding Letter of Credit
Outstandings equal to the excess, if any, of the aggregate,
outstanding principal amount of all Loans and Letter of Credit
Outstandings over the Commitment Amount in effect on such date; and
(c) shall, immediately upon any acceleration of the Stated Maturity
Date of any Loans pursuant to Section 9.2 or Section 9.3, repay all Loans,
unless, pursuant to Section 9.3, only a portion of all Loans is so
accelerated.
Each prepayment of any Loans made pursuant to this Section shall be without
premium or penalty (except as may be required by Section 5.4).
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SECTION 3.2. Interest Provisions. Interest on the outstanding
principal amount of Loans shall accrue and be payable in accordance with this
Section 3.2.
SECTION 3.2.1. Rates. Pursuant to an appropriately delivered Borrowing
Request or Continuation/Conversion Notice, any Borrower may elect that Loans
comprising a Borrowing accrue interest at a rate per annum:
(a) on that portion maintained from time to time as an ABR Loan,
equal to the sum of the Alternate Base Rate from time to time in effect
plus the Applicable Margin for such Loan; and
(b) on that portion maintained as a Eurodollar Loan, during each
Interest Period applicable thereto, equal to the sum of the Eurodollar Rate
(Reserve Adjusted) for such Interest Period plus the Applicable Margin for
such Loan.
All Eurodollar Loans shall bear interest from and including the first day
of the applicable Interest Period to (but not including) the last day of such
Interest Period at the interest rate determined as applicable to such Eurodollar
Loan.
SECTION 3.2.2. Post-Maturity Rates. After the date any principal amount
of any Loan is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise) and not paid on such date, or after any other
monetary Obligation of any Borrower or any other Obligor, as the case may be,
shall have become due and payable and not be paid on such date, such Borrower or
such other Obligor, as the case may be, shall pay, but only to the extent
permitted by law and not otherwise provided for in any Enhancement Letter of
Credit in respect of a Liquidity Obligation, interest (after as well as before
judgment) on the aggregate principal amount of all Loans then outstanding and on
such other monetary Obligations at a rate per annum equal
(a) in the case of the aggregate principal amount of all Loans then
outstanding, to the interest rate otherwise applicable thereto plus an
additional margin of 200 basis points; and
(b) in the case of such other monetary Obligations of such Borrower
or such other Obligor (other than such obligations comprised of the
principal amount of any Loan), to the Alternate Base Rate from time to time
in effect plus a margin of 200 basis points.
SECTION 3.2.3. Payment Dates. Interest accrued on each Loan shall be
payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) on the date of any optional or required payment or prepayment, in
whole or in part, of principal outstanding on such Loan (to the extent of
the amount prepaid or required to be prepaid);
44
(c) with respect to ABR Loans, on each Quarterly Payment Date
occurring after the Amendment Effective Date;
(d) with respect to Eurodollar Loans, on the last day of each
applicable Interest Period (and, if such Interest Period shall exceed three
months, on the same calendar day of every third month of such Interest
Period as the day on which such Interest Period commenced);
(e) with respect to any ABR Loans converted into Eurodollar Loans on
a day when interest would not otherwise have been payable pursuant to
clause (c), on the date of such conversion; and
(f) on that portion of any Loans the Stated Maturity Date of which is
accelerated pursuant to Section 9.2 or Section 9.3, immediately upon such
acceleration.
Interest accrued on Loans or other monetary Obligations arising under this
Agreement or any other Loan Document after the date such amount is due and
payable (whether on the Stated Maturity Date, upon acceleration or otherwise)
shall be payable upon demand.
SECTION 3.3. Fees. The Borrowers, jointly and severally, agree to pay
the fees set forth in this Section 3.3. All such fees shall be non-refundable.
SECTION 3.3.1. Commitment Fees. The Borrowers, jointly and severally, agree
to pay to the Administrative Agent for the account of each Lender, for the
period (including any portion thereof when any of its Commitment is suspended by
reason of any Borrower's inability to satisfy any condition of Article VI)
commencing on the Amendment Effective Date and continuing through the Commitment
Termination Date, a commitment fee equal to the Applicable Commitment Fee on
such Lender's Percentage of the sum of the average daily unused portion of the
Commitment Amount. Such commitment fee shall be payable by the Borrowers,
jointly and severally, in arrears on each Quarterly Payment Date, after the
Amendment Effective Date, and on the Commitment Termination Date.
SECTION 3.3.2. [INTENTIONALLY OMITTED].
SECTION 3.3.3. Administrative Agent's Fee. The Borrowers, jointly and
severally, agree to pay to the Administrative Agent for its own account, a
non-refundable initial fee in the amount set forth in the letter agreement (the
"Fee Letter"), dated March 31, 2004, between the Borrowers and Credit Suisse
First Boston, payable on the Amendment Effective Date and thereafter, a
non-refundable annual fee in the amount set forth in the Fee Letter, payable in
advance on each anniversary of the Amendment Effective Date.
SECTION 3.3.4. Letter of Credit Face Amount Fee. The Borrower or
Borrowers requesting a Letter of Credit agree to pay to the Administrative
Agent, for the account of the Lenders, a fee for such Letter of Credit for the
period from and including the date of the issuance of such Letter of Credit to
(but not including) the date upon which such Letter of Credit expires or is
terminated, calculated at a per annum rate equal to the Applicable Margin with
respect to Eurodollar Loans on the Stated Amount of such Letter of Credit. Such
fee shall be payable by such Borrower or Borrowers in arrears each Quarterly
Payment Date, after the Amendment Effective Date, commencing on the first such
date after the issuance of such Letter of Credit.
45
SECTION 3.3.5. Letter of Credit Issuing Fee. The Borrower or Borrowers
requesting a Letter of Credit agree to pay to the Administrative Agent, for the
account of the Issuer, an issuing fee for such Letter of Credit for the period
from and including the date of issuance of such Letter of Credit to (but not
including) the date upon which such Letter of Credit expires or is terminated
equal to the Stated Amount of such Letter of Credit multiplied by the per annum
rate set forth in the Fee Letter. Such fee shall be payable by such Borrower or
Borrowers in arrears on each Quarterly Payment Date after the Amendment
Effective Date, and on the Commitment Termination Date for any period then
ending for which such fee shall not theretofore have been paid, commencing on
the first such date after the issuance of such Letter of Credit.
SECTION 3.3.6. Letter of Credit Administrative Fee. Each Borrower agrees
to pay to the Administrative Agent, for the account of the Issuer, the amounts
set forth in Section 4.3.
ARTICLE IV
LETTERS OF CREDIT
SECTION 4.1. Issuance Requests. By delivering to the Administrative
Agent and the Issuer an Issuance Request, together with an Enhancement Letter of
Credit Application and Agreement if such Issuance Request is in respect of an
Enhancement Letter of Credit on or before 11:00 a.m. (New York City, New York
time), a Borrower may request, from time to time prior to the Commitment
Termination Date and on not less than three nor more than 30 Business Days'
notice (or such shorter or longer notice as may be acceptable to the Issuer), in
the case of General Letters of Credit, and on not less than 15 nor more than 30
Business Days' notice (or such shorter or longer notice as may be acceptable to
the Issuer), in the case of Enhancement Letters of Credit (provided that the
Stated Amount of any such Enhancement Letter of Credit need not be provided to
the Issuer in writing until the fifth Business Day prior to the issuance
thereof), that the Issuer issue Letters of Credit in support of financial
obligations of such Subsidiary Borrower or any other Account Party incurred (in
the case of General Letters of Credit) in the ordinary course of business of
such Borrower or such Account Party, as the case may be, and which are described
in such Issuance Request; provided that, in the case of an Issuance Request that
requests an increase in the Stated Amount of an Enhancement Letter of Credit
then outstanding, such Issuance Request shall be so delivered on not less than
five nor more than fifteen Business Days notice (or such shorter or longer
notice as may be acceptable to the Issuer). Upon receipt of an Issuance Request
and, if applicable, an Enhancement Letter of Credit Application and Agreement,
the Administrative Agent shall promptly notify the Lenders thereof. Each Letter
of Credit shall by its terms:
(a) be issued in a Stated Amount denominated in U.S. Dollars which
(i) is at least $25,000;
(ii) does not exceed (or would not exceed)
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(A) an amount equal to the excess, if any, of (x) the
Commitment Amount over (y) the sum of all Letter of Credit
Outstandings plus the aggregate outstanding principal amount of
all Loans, or
(B) an amount equal to the excess, if any, of the Letter of
Credit Commitment Amount over all Letter of Credit Outstandings;
and
(b) be stated to expire on a date (its "Stated Expiry Date") no later
than the earlier of (i) (A) one year from its date of issuance, in the case
of a General Letter of Credit, and (B) three years from its date of
issuance, in the case of an Enhancement Letter of Credit, and (ii) five
Business Days prior to the Stated Maturity Date in effect at the time of
such issuance.
So long as no Default has occurred and is continuing, by delivery to the Issuer
and the Administrative Agent of an Issuance Request, at least three but not more
than ten Business Days (or such shorter or longer notice as may be acceptable to
the Issuer) prior to the Stated Expiry Date of any issued General Letter of
Credit or prior to the date any issued General Letter of Credit containing an
"evergreen" or similar automatic extension feature is scheduled to automatically
be extended (unless the beneficiary thereof shall have received notice to the
contrary from the Issuer), the applicable Subsidiary Borrower may request the
Issuer to extend the Stated Expiry Date of such issued General Letter of Credit
for an additional period not to exceed the earlier of (A) one year from its date
of extension and (B) five Business Days prior to the Stated Maturity Date in
effect at the time of such extension. So long as no Default has occurred and is
continuing, the applicable Subsidiary Borrower (or the applicable Account Party)
may request the Issuer to extend the Stated Expiry Date of any issued
Enhancement Letter of Credit for an additional period not to exceed the earlier
of (A) two years from its date of extension and (B) five Business Days prior to
the Stated Maturity Date in effect at the time of such extension; provided such
request is made in accordance with the terms of the Enhancement Letter of Credit
Application and Agreement relating thereto and is accompanied by delivery to the
Issuer and the Administrative Agent of an Issuance Request. Each Enhancement
Letter of Credit that provides for LOC Liquidity Disbursements shall be issued
pursuant to an Enhancement Letter of Credit Application and Agreement
substantially in the form of Exhibit J, with such modifications thereto as the
Administrative Agent and the Issuer may consent (a "CP Enhancement Letter of
Credit Application and Agreement"). Notwithstanding any provision contained in
the foregoing to the contrary, no Borrower may request the issuance of, and the
Issuer shall not have any obligation to issue, any Letter of Credit at any time
when, and so long as, there shall be outstanding in the aggregate 75 Letters of
Credit, unless otherwise consented to by the Issuer and the Administrative
Agent.
SECTION 4.2. Issuances and Extensions. On the terms and subject to
the conditions of this Agreement (including Article VI) and the terms of the
Amendment Agreement (including Article III thereof), the Issuer shall issue
Letters of Credit, and extend the Stated Expiry Dates of outstanding Letters of
Credit, in accordance with the Issuance Requests made therefor and, if
applicable, the Enhancement Letter of Credit Application and Agreement relating
thereto; provided, however, that the issuance of an Enhancement Letter of Credit
(a "Replacement Enhancement Letter of Credit") to replace another outstanding
Enhancement Letter of Credit (an "Outstanding Enhancement Letter of Credit")
shall not require the satisfaction of the terms and conditions set forth in
Section 6.2.1 so long as (a) the issuance of the Replacement Enhancement Letter
of Credit is required under the Enhancement Letter of Credit Application and
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Agreement relating to the Outstanding Enhancement Letter of Credit, (b) the
Replacement Letter of Credit has terms substantially identical to those of the
Outstanding Enhancement Letter of Credit, and (c) the Outstanding Enhancement
Letter of Credit is terminated contemporaneously with the issuance of the
Replacement Enhancement Letter of Credit. The Issuer shall promptly confirm any
such issuance or extension (including the date of such issuance or extension),
as the case may be, to the Administrative Agent. The Issuer will make available
the original of each Letter of Credit which it issues in accordance with the
Issuance Request and the Enhancement Letter of Credit Application and Agreement,
if applicable, therefor to the beneficiary thereof (and will promptly provide
each of the Lenders with a copy of such Letter of Credit) and will notify the
beneficiary under any Letter of Credit of any extension of the Stated Expiry
Date thereof.
SECTION 4.3. Expenses. Each Borrower agrees to pay to the
Administrative Agent for the account of the Issuer all reasonable and customary
administrative expenses of the Issuer in connection with the issuance,
maintenance, modification (if any) and administration of each Letter of Credit
requested by such Borrower promptly upon demand from time to time.
SECTION 4.4. Other Lenders' Participation. Each Letter of Credit
issued pursuant to Section 4.2 shall, effective upon its issuance and without
further action, be issued on behalf of all Lenders (including the Issuer
thereof) pro rata according to their respective Percentages. Each Lender shall,
to the extent of its Percentage, be deemed irrevocably to have participated in
the issuance of such Letter of Credit and (x) shall be responsible to reimburse
promptly the Issuer thereof for Reimbursement Obligations which have not been
reimbursed by the applicable Borrower in accordance with Section 4.5, or which
have been reimbursed by such Borrower but must be returned, restored or
disgorged by the Issuer for any reason, or (y) in the case of an LOC Liquidity
Disbursement, shall participate in such LOC Liquidity Disbursement in accordance
with the terms of the Enhancement Letter of Credit Application and Agreement
relating thereto. Each Lender shall, to the extent of its Percentage, be
entitled to receive from the Administrative Agent a ratable portion of the
letter of credit fees received by the Administrative Agent pursuant to Section
3.3.4 with respect to each Letter of Credit. In the event that (a) the
applicable Borrower or Borrowers shall fail to reimburse the Issuer, or if for
any reason Loans shall not be made to fund any Reimbursement Obligation, all as
provided in Section 4.5 and in an amount equal to the amount of any drawing
honored by the Issuer under a Letter of Credit issued by it, (b) the Issuer must
for any reason return or disgorge such reimbursement or (c) an LOC Liquidity
Disbursement has occurred, the Issuer shall promptly notify the Administrative
Agent of the unreimbursed amount of such drawing and of such Lender's respective
participation therein. Each Lender shall make available to the Administrative
Agent for the account of the Issuer, whether or not any Default shall have
occurred and be continuing, an amount equal to its respective participation in
same day or immediately available funds at the office of the Issuer specified in
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such notice not later than 11:00 a.m. (New York City, New York time) on the
Business Day (under the laws of the jurisdiction of the Issuer) after the date
notified by the Issuer. In the event that any Lender fails to make available to
the Administrative Agent for the account of the Issuer the amount of such
Lender's participation in such Letter of Credit as provided herein, the Issuer
shall be entitled to recover such amount on demand from such Lender together
with interest at the daily average Federal Funds Rate for three Business Days
(together with such other compensatory amounts as may be required to be paid by
such Lender to the Administrative Agent and/or the Issuer, as the case may be,
pursuant to the Rules for Interbank Compensation of the Council on International
Banking or the Clearinghouse Compensation Committee, as the case may be, as in
effect from time to time) and thereafter at the Alternate Base Rate plus 200
basis points. Nothing in this Section shall be deemed to prejudice the right of
any Lender to recover from the Issuer any amounts made available by such Lender
to the Issuer pursuant to this Section in the event that it is determined by a
court of competent jurisdiction that the payment with respect to a Letter of
Credit by the Issuer in respect of which payment was made by such Lender
constituted gross negligence or wilful misconduct on the part of the Issuer. The
Issuer shall distribute to the Administrative Agent for the account of each
other Lender which has paid all amounts payable by it under this Section with
respect to any Letter of Credit issued by the Issuer such other Lender's
Percentage of all payments received by the Issuer from any Borrower in
reimbursement of drawings honored by the Issuer under such Letter of Credit when
such payments are received.
SECTION 4.5. Disbursements. The Issuer will notify the applicable
Borrower or Borrowers and the Administrative Agent promptly of the presentment
for payment of any Letter of Credit, together with notice of the date (a
"Disbursement Date") such payment shall be made. Subject to the terms and
provisions of such Letter of Credit, the Issuer shall make such payment to the
beneficiary (or its designee) of such Letter of Credit. The applicable Borrower
or Borrowers will reimburse the Issuer for all amounts which it has disbursed
under such Letter of Credit, except to the extent such amounts are in respect of
an LOC Liquidity Disbursement (in which case such amounts shall be reimbursed to
the Issuer or the Lenders by the applicable SPC in accordance with the
provisions of the Enhancement Letter of Credit Application and Agreement
relating thereto (the obligation of such SPC to reimburse the Issuer or the
Lenders for such amounts in accordance with such terms being herein referred to
as a "Liquidity Obligation")), on the Disbursement Date, if such Borrower or
Borrowers are notified of such disbursement prior to 12:00 noon (New York, New
York, time) on the Disbursement Date, or on the Business Day immediately
succeeding the Disbursement Date, if such Borrower or Borrowers are not so
notified (the "Reimbursement Due Date"). To the extent the Issuer is not
reimbursed in full in respect of any Reimbursement Obligation payable by such
Borrower or Borrowers on the Disbursement Date, such Reimbursement Obligation
shall accrue interest from (and including) the Disbursement Date at a
fluctuating rate per annum equal to the sum of the Alternate Base Rate from time
to time in effect, plus the Applicable Margin for ABR Loans from time to time in
effect, plus from (and including) the Reimbursement Due Date, a margin of 200
basis points, payable on demand. In the event the Issuer is not reimbursed by
such Borrower or Borrowers on the Disbursement Date for any Reimbursement
Obligation in respect of any Letter of Credit due and owing on such Disbursement
Date, or if the Issuer must for any reason return or disgorge such
reimbursement, the Lenders (including the Issuer) shall, on the terms and
subject to the conditions of this Agreement (including the conditions set forth
in Article VI), fund such Reimbursement Obligation by making, on the next
Business Day, Loans which are ABR Loans as provided in Section 2.3 (such
Borrower or Borrowers being deemed to have given a timely Borrowing Request
therefor for such amount unless, prior to the making of such Loans, such
Borrower or Borrowers shall have notified the Administrative Agent, in writing,
that such Borrower or Borrowers cannot satisfy the conditions set forth in
Article VI (each Borrower hereby agreeing to immediately provide the
Administrative Agent with such notice)); provided, however, for the purpose of
determining the availability of the Commitments to make Loans immediately prior
to giving effect to the application of the proceeds of such Loans, such
Reimbursement Obligation shall be deemed not to be outstanding at such time.
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SECTION 4.6. Reimbursement. The obligation (a "Reimbursement
Obligation") of an Obligor under Section 4.5 or under the applicable Enhancement
Letter of Credit Application and Agreement to reimburse the Issuer with respect
to each disbursement (including interest thereon), and each Lender's obligation
to make participation payments in each drawing which has not been reimbursed by
the applicable Borrower or Borrowers or the applicable Account Party, shall be
absolute and unconditional under any and all circumstances and irrespective of
any setoff, counterclaim, or defense to payment which such Borrower or Borrowers
may have or have had against any Lender or any beneficiary of a Letter of
Credit, including any defense based upon the occurrence of any Default, any
draft, demand or certificate or other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient, the failure of
any disbursement to conform to the terms of the applicable Letter of Credit (if,
in the Issuer's good faith opinion, such disbursement is determined to be
appropriate) or any non-application or misapplication by the beneficiary of the
proceeds of such disbursement, or the legality, validity, form, regularity, or
enforceability of such Letter of Credit; provided, however, that nothing herein
shall adversely affect the right of such Borrower or Borrowers to commence any
proceeding against the Issuer for any wrongful disbursement made by the Issuer
under a Letter of Credit as a result of acts or omissions constituting gross
negligence or willful misconduct on the part of the Issuer.
SECTION 4.7. Deemed Disbursements. Upon the occurrence and during the
continuation of any Event of Default or the occurrence of the Commitment
Termination Date, an amount equal to that portion of Letter of Credit
Outstandings attributable to outstanding and undrawn Letters of Credit shall, at
the election of the Issuer acting on instructions from the Required Lenders, and
without demand upon or notice to any Borrower, be deemed to have been paid or
disbursed by the Issuer under such Letters of Credit (notwithstanding that such
amount may not in fact have been so paid or disbursed), and, upon notification
by the Issuer to the Administrative Agent and the applicable Borrower or
Borrowers of its obligations under this Section, such Borrower or Borrowers
shall be immediately obligated to reimburse the Issuer the amount deemed to have
been so paid or disbursed by the Issuer. Any amounts so received by the Issuer
from such Borrower or Borrowers pursuant to this Section shall be held as
collateral security for the repayment of such Borrower's or Borrowers'
obligations in connection with the Letters of Credit issued by the Issuer. At
any time when such Letters of Credit shall terminate and all Obligations of the
Issuer are either terminated or paid or reimbursed to the Issuer in full, the
Obligations of such Borrower or Borrowers under this Section shall be reduced
accordingly (subject, however, to reinstatement in the event any payment in
respect of such Letters of Credit is recovered in any manner from the Issuer),
and the Issuer will return to such Borrower or Borrowers the excess, if any, of
(a) the aggregate amount deposited by such Borrower or Borrowers with
the Issuer and not theretofore applied by the Issuer to any Reimbursement
Obligation
over
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(b) the aggregate amount of all Reimbursement Obligations to the
Issuer pursuant to this Section, as so adjusted.
At such time when all Events of Default shall have been cured or waived, the
Issuer shall return to such Borrower or Borrowers all amounts then on deposit
with the Issuer pursuant to this Section. All amounts on deposit pursuant to
this Section shall, until their application to any Reimbursement Obligation or
their return to such Borrower or Borrowers, as the case may be, bear interest at
the daily average Federal Funds Rate from time to time in effect (net of the
costs of any reserve requirements, in respect of amounts on deposit pursuant to
this Section, pursuant to F.R.S. Board Regulation D), which interest shall be
held by the Issuer as additional collateral security for the repayment of such
Borrower's or Borrowers' Obligations in connection with the Letters of Credit
issued by the Issuer.
SECTION 4.8. Nature of Reimbursement Obligations. Each Borrower shall
assume all risks of the acts, omissions, or misuse of any Letter of Credit
requested by it by the beneficiary thereof. Neither the Issuer nor any Lender
shall be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness, or legal
effect of any Letter of Credit or any document submitted by any party in
connection with the application for and issuance of a Letter of Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent, or forged;
(b) the form, validity, sufficiency, accuracy, genuineness, or legal
effect of any instrument transferring or assigning or purporting to
transfer or assign a Letter of Credit or the rights or benefits thereunder
or proceeds thereof in whole or in part, which may prove to be invalid or
ineffective for any reason;
(c) failure of the beneficiary to comply fully with conditions
required in order to demand payment under a Letter of Credit;
(d) errors, omissions, interruptions, or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex, or otherwise;
or
(e) any loss or delay in the transmission or otherwise of any
document or draft required in order to make a disbursement under a Letter
of Credit or of the proceeds thereof.
None of the foregoing shall affect, impair, or prevent the vesting of any of the
rights or powers granted the Issuer or any Lender hereunder. In furtherance and
extension, and not in limitation or derogation, of any of the foregoing, any
action taken or omitted to be taken by the Issuer in good faith shall be binding
upon each Borrower and, in the absence of gross negligence or willful misconduct
as determined by a final judgment of a court of competent jurisdiction, shall
not put the Issuer under any resulting liability to such Borrower.
SECTION 4.9. Indemnity. In addition to amounts payable as elsewhere
provided herein, the Borrowers hereby, jointly and severally, agree to protect,
indemnify, pay and save the Issuer harmless from and against any and all claims,
demands, liabilities, damages, losses, costs, charges and expenses (including
reasonable attorneys' fees and allocated costs of internal counsel) which the
Issuer may incur or be subject to as a consequence, direct or indirect, of
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(a) the issuance of any Letter of Credit, other than as a result of
the gross negligence or willful misconduct of the Issuer or a breach by the
Issuer (or its agents or employees or any other Person under its control)
of any obligation of the Issuer under such Letter of Credit to the Borrower
which is the account party thereof, as determined by a final judgment of a
court of competent jurisdiction, or
(b) the failure of the Issuer to honor a drawing under any Letter
of Credit as a result of any act or omission, whether rightful or wrongful,
of any present or future de jure or de facto government or governmental
authority.
SECTION 4.10. Borrowers' Guaranty of Reimbursement Obligations of its
Subsidiaries. Each Borrower agrees as follows in respect of the Reimbursement
Obligations of their respective Subsidiaries (other than SPCs):
SECTION 4.10.1. Guaranty. Each Borrower hereby, absolutely,
unconditionally and irrevocably
(a) guarantees the full and punctual payment when due, whether at
stated maturity, by required prepayment, declaration, acceleration, demand
or otherwise, of all Reimbursement Obligations (other than Liquidity
Obligations) now or hereafter existing, of each Subsidiary Guarantor that
is an Account Party which arise out of, or are incurred in connection with,
such Letters of Credit, whether for principal, interest, fees, expenses or
otherwise (including all such amounts which would become due but for the
operation of the automatic stay under Section 362(a) of the United States
Bankruptcy Code, 11 U.S.C. ss.362(a), and the operation of Sections 502(b)
and 506(b) of the United States Bankruptcy Code, 11 U.S.C. ss.502(b) and
ss.506(b)), and
(b) indemnifies and holds harmless each Secured Party and each holder
of a Note for any and all costs and expenses (including reasonable
attorneys' fees and expenses) incurred by such Secured Party or such
holder, as the case may be, in enforcing any rights under the guaranty
contained in this Section 4.10;
provided, however, that in the case of the guaranty made by each of Operations
and Thrifty in respect of a Subsidiary Guarantor that is not its Subsidiary,
Operations or Thrifty, as the case may be, shall be liable under the guaranty
set forth in this Section 4.10 for the maximum amount of such liability that can
be hereby incurred without rendering the guaranty set forth in this Section
4.10, as it relates to Operations or Thrifty, as the case may be, voidable under
applicable law relating to fraudulent conveyance or fraudulent transfer, and not
for any greater amount. The guaranty contained in this Section 4.10 constitutes
a guaranty of payment when due and not of collection, and each Borrower
specifically agrees that it shall not be necessary or required that any Secured
Party exercise any right, assert any claim or demand or enforce any remedy
whatsoever against any Account Party or any other Obligor (or any other Person)
before or as a condition to the obligations of such Borrower under the guaranty
contained in this Section 4.10 (such obligations hereinafter referred to as the
"Guaranteed Obligations").
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SECTION 4.10.2. Acceleration of Guaranty. Each Borrower agrees that, if
an Event of Default of the nature set forth in Section 9.1.9 shall occur at a
time when any of the Guaranteed Obligations of any Account Party may not then be
due and payable, such Borrower agrees that it will pay to the Administrative
Agent for the account of the Secured Parties forthwith the full amount which
would be payable under the guaranty contained in this Section 4.10 by such
Borrower if all such Guaranteed Obligations were then due and payable.
SECTION 4.10.3. Guaranty Absolute, etc. The guaranty contained in this
Section 4.10 shall in all respects be a continuing, absolute, unconditional and
irrevocable guaranty of payment, and shall remain in full force and effect until
all Guaranteed Obligations of the Account Parties have been paid in full in
cash, all Obligations of each Borrower and each other Obligor hereunder have
been paid in full in cash, all Letters of Credit have been terminated or expired
and all Commitments shall have terminated. Each Borrower guarantees that the
Guaranteed Obligations of the Account Parties will be paid strictly in
accordance with the terms of this Agreement and each other Loan Document under
which they arise, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of any
Secured Party or any holder of any Note with respect thereto. The liability of
each Borrower under the guaranty contained in this Section 4.10 shall be
absolute, unconditional and irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of this
Agreement, any Note or any other Loan Document;
(b) the failure of any Secured Party or any holder of any Note
(i) to assert any claim or demand or to enforce any right or
remedy against any Account Party, any other Obligor or any other
Person (including any other guarantor (including such Borrower)) under
the provisions of this Agreement, any Note, any other Loan Document or
otherwise, or
(ii) to exercise any right or remedy against any other
guarantor (including such Borrower) of, or collateral securing, any
Guaranteed Obligations of any Account Party;
(c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations of any Account
Party, or any other extension, compromise or renewal of any Guaranteed
Obligation of any Account Party;
(d) any reduction, limitation, impairment or termination of any
Guaranteed Obligations of any Account Party for any reason, including any
claim of waiver, release, surrender, alteration or compromise, and shall
not be subject to (and such Borrower hereby waives any right to or claim
of) any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality, nongenuineness,
irregularity, compromise, unenforceability of, or any other event or
occurrence affecting, any Guaranteed Obligations of any Account Party or
otherwise;
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(e) any amendment to, rescission, waiver, or other modification of,
or any consent to departure from, any of the terms of this Agreement, any
Note or any other Loan Document;
(f) any addition, exchange, release, surrender or non-perfection of
any collateral, or any amendment to or waiver or release or addition of, or
consent to departure from, any other guaranty, held by any Secured Party or
any holder of any Note securing any of the Guaranteed Obligations of any
Account Party; or
(g) any other circumstance which might otherwise constitute a defense
available to, or a legal or equitable discharge of, any Account Party, any
surety or any guarantor.
SECTION 4.10.4. Reinstatement, etc. Each Borrower agrees that the
guaranty contained in this Section 4.10 shall continue to be effective or be
reinstated, as the case may be, if at any time any payment (in whole or in part)
of any of the Guaranteed Obligations is rescinded or must otherwise be restored
by any Secured Party or any holder of any Note, upon the insolvency, bankruptcy
or reorganization of any Account Party or otherwise, all as though such payment
had not been made.
SECTION 4.10.5. Waiver, etc. Each Borrower hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Guaranteed Obligations of any Account Party or any other Obligor and the
guaranty contained in this Section 4.10 and any requirement that the
Administrative Agent, any other Secured Party or any holder of any Note protect,
secure, perfect or insure any security interest or Lien, or any property subject
thereto, or exhaust any right or take any action against any Account Party, any
other Obligor or any other Person (including any other guarantor) or entity or
any collateral securing the Guaranteed Obligations of any Account Party.
SECTION 4.10.6. Postponement of Subrogation, etc. Each Borrower agrees
that it will not exercise any rights which it may acquire by way of rights of
subrogation under the guaranty contained in this Section 4.10, by any payment
made under the guaranty contained in this Section 4.10 or otherwise, until the
prior payment in full in cash of all Guaranteed Obligations of each Account
Party, the prior payment in full in cash of all Obligations of each Borrower,
the termination or expiration of all Letters of Credit and the termination of
all Commitments. Any amount paid to any Borrower on account of any such
subrogation rights prior to the payment in full in cash of all Guaranteed
Obligations of each Account Party shall be held in trust for the benefit of the
Secured Parties and each holder of a Note and shall immediately be paid to the
Administrative Agent for the benefit of the Secured Parties and each holder of a
Note and credited and applied against the Guaranteed Obligations of each Account
Party, whether matured or unmatured, in accordance with the terms of this
Agreement; provided, however, that if
(a) such Borrower has made payment to the Secured Parties and each
holder of a Note of all or any part of the Guaranteed Obligations of any
Account Party, and
(b) all Guaranteed Obligations of each Account Party have been paid
in full in cash, all Obligations of each Borrower have been paid in full in
cash, all Letters of Credit have been terminated or expired and all
Commitments have been permanently terminated,
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each Secured Party and each holder of a Note agrees that, at such Borrower's
request, the Administrative Agent, on behalf of the Secured Parties and the
holders of the Notes, will execute and deliver to such Borrower appropriate
documents (without recourse and without representation or warranty) necessary to
evidence the transfer by subrogation to such Borrower of an interest in the
Guaranteed Obligations of each Account Party resulting from such payment by such
Borrower. In furtherance of the foregoing, for so long as any Obligations
(including Guaranteed Obligations) or Commitments remain outstanding, each
Borrower shall refrain from taking any action or commencing any proceeding
against any Account Party (or its successors or assigns, whether in connection
with a bankruptcy proceeding or otherwise) to recover any amounts in the respect
of payments made under the guaranty contained in this Section 4.10 to any
Secured Party or any holder of a Note.
SECTION 4.10.7. Right of Contribution. Each Borrower hereby agrees that
to the extent that a Borrower shall have paid more than its proportionate share
of any payment made hereunder, such Borrower shall be entitled to seek and
receive contribution from and against any other Borrower hereunder who has not
paid its proportionate share of such payment. Each Borrower's right of
contribution shall be subject to the terms and conditions of Section 4.10.6. The
provisions of this Section 4.10.7 shall in no respect limit the obligations and
liabilities of any Borrower to the Administrative Agent and each other Secured
Party, and each Borrower shall remain liable to the Administrative Agent and
each other Secured Party for the full amount guaranteed by such Borrower
hereunder.
SECTION 4.10.8. Successors, Transferees and Assigns; Transfers of Notes,
etc. The guaranty contained in this Section 4.10 shall:
(a) be binding upon each Borrower, and its successors, transferees
and assigns; and
(b) inure to the benefit of and be enforceable by the Administrative
Agent and each other Secured Party.
Without limiting the generality of the foregoing clause (b), any Lender may
assign or otherwise transfer (in whole or in part) any Note or Credit Extension
held by it to any other Person or entity, and such other Person or entity shall
thereupon become vested with all rights and benefits in respect thereof granted
to such Lender under any Loan Document (including the guaranty contained in this
Section 4.10) or otherwise, subject, however, to any contrary provisions in such
assignment or transfer, and to the provisions of Section 12.11 and Article XI.
SECTION 4.11. No Bankruptcy Petition Against RCFC or Dollar Thrifty
Funding. With respect to each Enhancement Letter of Credit issued hereunder
relating to RCFC or Dollar Thrifty Funding, each of the Lenders hereby covenants
and agrees that,
(a) prior to the date which is one year and one day after the payment
in full of the latest maturing note issued under the Base Indenture, it
will not institute against, or join with any other Person in instituting
against, RCFC, and
55
(b) prior to the date which is one year and one day after the payment
in full of the latest maturing commercial paper note issued by Dollar
Thrifty Funding, it will not institute against, or join with any other
Person in instituting against Dollar Thrifty Funding,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any federal or state bankruptcy or
similar law; provided, however, that nothing in this Section 4.11 shall
constitute a waiver of any right to indemnification, reimbursement or other
payment from any Obligor pursuant to this Agreement or any other Loan Document.
In the event that any Lender takes action in violation of this Section 4.11,
each Borrower agrees, for the benefit of the holders of the notes issued under
the Base Indenture and the commercial paper notes issued by Dollar Thrifty
Funding, that it shall cause RCFC or Dollar Thrifty Funding, as the case may be,
to file an answer with the bankruptcy court or otherwise properly contest the
filing of such a petition by such Lender against RCFC or Dollar Thrifty Funding,
as the case may be, or the commencement of such action and raise the defense
that such Lender has agreed in writing not to take such action and should be
estopped and precluded therefrom and such other defenses, if any, as its counsel
advises that it may assert; and such Lender shall be liable for and pay any
costs and expenses incurred by RCFC or Dollar Thrifty Funding, as the case may
be, in connection therewith. The provisions of this Section 4.11 shall survive
the termination of the Agreement.
SECTION 4.12. Existing Letters of Credit. Each Existing Letter of Credit
shall be deemed to be a Letter of Credit issued hereunder.
ARTICLE V
CERTAIN EURODOLLAR RATE AND OTHER PROVISIONS
SECTION 5.1. Eurodollar Rate Lending Unlawful. If any Lender shall
determine (which determination shall, upon notice thereof to the Borrowers, the
Administrative Agent and the Lenders, be conclusive and binding on each
Borrower) that the introduction of or any change in or in the interpretation of
any law makes it unlawful, or any central bank or other governmental authority
asserts that it is unlawful, for such Lender to make, continue or maintain any
Loan as, or to convert any Loan into, a Eurodollar Loan of a certain type, the
obligations of such Lender to make, continue, maintain or convert into any such
Loans shall, upon such determination, forthwith be suspended until such Lender
shall notify the Administrative Agent that the circumstances causing such
suspension no longer exist, and all outstanding Eurodollar Loans of such type of
such Lender shall automatically convert into ABR Loans at the end of the then
current Interest Periods with respect thereto or sooner, if required by such law
or assertion, and all Loans of such Lender that would otherwise have been made
or continued as, or converted into, Eurodollar Loans shall instead be made as or
converted into, or continued as, ABR Loans upon which interest shall be payable
at the same time as the related Eurodollar Loans.
SECTION 5.2. Deposits Unavailable. If the Administrative Agent shall
have determined that by reason of circumstances affecting the London interbank
market, adequate means do not exist for ascertaining the interest rate
applicable hereunder to Eurodollar Loans of any type, then, upon notice from the
Administrative Agent to the Borrowers and the Lenders, the obligations of all
Lenders under Section 2.3 and Section 2.4 to make or continue any Loans as, or
to convert any Loans into, Eurodollar Loans of such type shall forthwith be
suspended until the Administrative Agent shall notify the Borrowers and the
Lenders that the circumstances causing such suspension no longer exist.
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SECTION 5.3. Increased Eurodollar Loan Costs, etc. The Borrowers,
jointly and severally, agree to reimburse each Lender for any increase in the
cost to such Lender of, or any reduction in the amount of any sum receivable by
such Lender in respect of, making, continuing or maintaining (or of its
obligation to make, continue or maintain) any Loans as, or of converting (or of
its obligation to convert) any Loans into, Eurodollar Loans that arise in
connection with any change in, or the introduction, adoption, effectiveness,
interpretation, reinterpretation or phase-in after the Prior Amendment Effective
Date (or, in the case of a Lender that became a Lender on the Amendment
Effective Date, the Amendment Effective Date) of, any law or regulation,
directive, guideline, decision or request (whether or not having the force of
law) of any court, central bank, regulator or other governmental authority,
except for such changes with respect to (i) increased capital costs which are
governed by Section 5.5, (ii) Taxes governed by Section 5.6 (including taxes
imposed by reason of any failure of such Lender to comply with its obligations
under clause (b) of Section 5.6) and (iii) taxes imposed by a taxing authority
on or measured by the net income, overall receipts or capital of such Lender or
any lending office, branch or any affiliate thereof and any franchise taxes or
branch taxes imposed by a taxing authority on such Lender or any lending office,
branch or any affiliate thereof; provided, however, that no Borrower shall have
any obligation to pay any such additional amount under this Section 5.3 with
respect to any such change unless such Lender shall have notified the applicable
Borrower of its demand within 90 days after the date upon which such Lender has
obtained audited financial statements with respect to the fiscal year of such
Lender in which such change occurred. Such Lender shall promptly notify the
Administrative Agent and the Borrowers in writing of the occurrence of any such
reduction or increase (but in no event later than the date by which such Lender
may demand reimbursement therefor pursuant to the immediately preceding
sentence), such notice to state, in reasonable detail, the reasons therefor and
the additional amount required fully to compensate such Lender on an after-tax
basis for such increased cost or reduced amount. Such additional amounts shall
be payable by the Borrowers directly to such Lender within five Business Days of
its receipt of such notice, and such notice shall, in the absence of manifest
error, be conclusive and binding on each Borrower.
SECTION 5.4. Funding Losses. In the event any Lender shall incur any
loss or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to make, continue or maintain any portion of the principal amount of any Loan
as, or to convert any portion of the principal amount of any Loan into, a
Eurodollar Loan) as a result of
(a) any conversion or repayment or prepayment of the principal amount
of any Eurodollar Loans on a date other than the scheduled last day of the
Interest Period applicable thereto, whether pursuant to Section 3.1 or
otherwise;
(b) any Loans not being made as Eurodollar Loans in accordance with
the Borrowing Request therefor; or
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(c) any Loans not being continued as, or converted into, Eurodollar
Loans in accordance with the Continuation/Conversion Notice therefor,
then, upon the written notice of such Lender to the Borrowers (with a copy to
the Administrative Agent), the Borrowers shall, within five Business Days of
their receipt thereof, jointly and severally, pay directly to such Lender such
amount as will (in the reasonable determination of such Lender) reimburse such
Lender for such loss or expense. Such written notice (which shall include
calculations in reasonable detail) shall, in the absence of manifest error, be
conclusive and binding on each Borrower.
SECTION 5.5. Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority after the Prior Amendment Effective Date (or, in
the case of a Lender that became a Lender on the Amendment Effective Date, the
Amendment Effective Date) affects or would affect the amount of capital required
or expected to be maintained by any Lender or any Person controlling such
Lender, and such Lender determines (in its sole and absolute discretion) that
the rate of return on its or such controlling Person's capital as a consequence
of its Commitments, issuance of or participation in Letters of Credit or the
Loans made by such Lender is reduced to a level below that which such Lender or
such controlling Person could have achieved but for the occurrence of any such
circumstance, then, in any such case upon notice from time to time by such
Lender to the Borrowers, the Borrowers shall, jointly and severally, pay
directly to such Lender within five Business Days additional amounts sufficient
to compensate such Lender or such controlling Person on an after-tax basis for
such reduction in rate of return; provided, however, that no Borrower shall have
any obligation to pay any such additional amount under this Section 5.5 with
respect to any such change unless such Lender shall have notified the applicable
Borrower of its demand within 90 days after the date upon which such Lender or
such controlling Person has obtained audited financial statements with respect
to the fiscal year of such Lender or such controlling Person in which such
change occurred. Such Lender or controlling Person shall promptly notify the
Administrative Agent and the Borrowers in writing of the occurrence of any such
reduction (but in no event later than the date by which such Lender or
controlling Person may demand payment therefor pursuant to the immediately
preceding sentence). A statement of such Lender as to any such additional amount
or amounts (including calculations thereof in reasonable detail) shall, in the
absence of manifest error, be conclusive and binding on each Borrower. In
determining such amount, such Lender may use any method of averaging and
attribution that it (in its sole and absolute discretion) shall deem applicable.
SECTION 5.6. Taxes. Except to the extent otherwise provided in the
proviso to clause (iii) of this Section 5.6(a) and the proviso to the sentence
immediately succeeding such clause (iii), all payments by any Borrower of
principal of, and interest on, the Credit Extensions and all other amounts
payable hereunder (including fees) shall be made free and clear of and without
deduction for any present or future income, excise, stamp or franchise taxes and
other taxes, fees, duties, withholdings or other charges of any nature
whatsoever imposed by any taxing authority, but excluding (A) in the case of
each Lender and the Administrative Agent, taxes imposed on or measured by the
net income, overall receipts or capital of such Lender (or any Lending office,
branch or affiliate of such Lender) or the Administrative Agent and franchise
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taxes or branch taxes imposed on such Lender (or any lending office, branch or
affiliate of such Lender) or the Administrative Agent, as the case may be, (x)
by the jurisdiction under the laws of which it is organized or any political
subdivision thereof or (y) by reason of any connection between the jurisdiction
imposing such tax and such Lender (or any lending office, branch or affiliate
thereof) or the Administrative Agent, as the case may be, other than a
connection arising solely from such Lender (or such lending office, branch or
affiliate) or the Administrative Agent, as the case may be, having executed,
delivered, or performed its obligations under, or received payment under or
enforced, this Agreement, any Note or any other Loan Document and, (B) in the
case of each Lender, taxes imposed on or measured by the net income, overall
receipts or capital of such Lender (or any lending office, branch or affiliate
of such Lender) and franchise taxes or branch taxes imposed on such Lender (or
any lending office, branch or affiliate of such Lender) by the jurisdiction in
which such Lender's Domestic Office or Eurodollar Office, as the case may be, is
located or any political subdivision thereof (such non-excluded items being
called "Taxes"). In the event that any withholding or deduction from any payment
to be made by any Borrower hereunder is required in respect of any Taxes
pursuant to any applicable law, rule or regulation, then such Borrower will
(i) pay directly to the relevant authority the full amount required
to be so withheld or deducted;
(ii) promptly forward to the Administrative Agent an official
receipt or other documentation satisfactory to the Administrative Agent
evidencing such payment to such authority; and
(iii) pay to the Administrative Agent for the account of the Lenders
(or, if applicable, for its own account) such additional amount or amounts
as is necessary to ensure that the net amount actually received by each
Lender and the Administrative Agent will equal the full amount such Lender
or the Administrative Agent, as the case may be would have received had no
such withholding or deduction been required; provided, however, that the
Borrowers shall be entitled to deduct and withhold any Taxes and shall not
be required to increase any such amounts payable pursuant to this clause
(iii) to the Administrative Agent for the account of any Lender (or, if
applicable, for its own account) to the extent such Taxes are imposed as a
result of the failure of such Lender or, as applicable, the Administrative
Agent to comply with the requirements of clause (b) of this Section 5.6.
Moreover, if any Taxes are directly asserted against the Administrative Agent or
any Lender with respect to any payment received by the Administrative Agent or
such Lender hereunder, the Administrative Agent or such Lender may pay such
Taxes and promptly notify the Borrower of the nature and amount of such payment
and such Borrower will promptly pay such additional amounts (including any
penalties, interest or expenses) as is necessary in order that the net amount
received by such person after the payment of such Taxes (including any Taxes on
such additional amount) shall equal the amount such person would have received
had no such Taxes been asserted, provided, however, that the Borrowers shall not
be required to pay any additional amounts pursuant to this sentence to the
Administrative Agent for the account of any Lender (or, if applicable, for its
own account), or to any Lender, to the extent such Taxes are imposed as a result
of the failure of such Lender or, as applicable, the Administrative Agent to
comply with the requirements of clause (b) of this Section 5.6.
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If any Borrower fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent, for the account of the
respective Lenders, the required receipts or other required documentary
evidence, such Borrower shall indemnify the Lenders for any incremental Taxes,
interest or penalties that may become payable by any Lender as a result of any
such failure. For purposes of this Section 5.6, a distribution hereunder by the
Administrative Agent or any Lender to or for the account of any Lender shall be
deemed a payment by such Borrower.
(b) Each Lender that is not incorporated under the laws of the United
States (or any State thereof or the District of Columbia) and, if the
Administrative Agent is not incorporated under the laws of the United States (or
any State thereof or the District of Columbia), the Administrative Agent shall:
(X) (i) on or before the date of any payment by any Borrower under
this Agreement, any Notes or any other Loan Document for the account
of such Lender or the Administrative Agent, deliver to the Borrowers
and the Administrative Agent two duly completed copies of United
States Internal Revenue Service Form W-8BEN or W-8ECI, or successor
applicable form, as the case may be, and such other forms and
certifications as may reasonably be required under applicable law, in
order to establish that as of the date thereof such Lender or the
Administrative Agent, as the case may be, is entitled to receive all
payments under this Agreement, any Notes or any other Loan Document
without deduction or withholding of any United States federal income
taxes, certifying that such Lender or the Administrative Agent, as the
case may be, is entitled to an exemption from United States backup
withholding taxes;
(ii) deliver to the Borrowers and the Administrative Agent two
further copies of any such form on or before the date that any such
form expires or becomes obsolete and after the occurrence of any event
requiring a change in the most recent form previously delivered by it
to the Borrowers and Administrative Agent; and
(iii) if necessary, obtain, at the expense of the Borrowers,
such extensions of time for delivery of such forms as may reasonably
be requested by the Borrowers; or
(Y) in the case of any such Lender that is not a "bank" within
the meaning of Section 881(c)(3)(A) of the Code, (i) furnish to the
Borrowers on or before the date of any payment by any Borrower, with a
copy to the Administrative Agent, (A) a certificate substantially in
the form of Exhibit M (any such certificate a "U.S. Tax Compliance
Certificate"), (B) two accurate and complete original signed copies of
Internal Revenue Service Form W-8BEN, or successor applicable form
certifying to such Lender's entitlement as of the date of such form to
the exemption under Section 881(c) of the Code from U.S. withholding
tax on payments of interest under this Agreement, any Notes or any
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other Loan Document (and deliver to the Borrowers and the
Administrative Agent two further copies of such form on or before the
date the most recently delivered form expires or becomes obsolete and
after the occurrence of any event requiring a change in the most
recently delivered form and, if necessary, obtain, at the expense of
the Borrowers, any extensions of time reasonably requested by the
Borrowers for the delivery of such forms), and (C) in the case of a
Lender that is entitled to receive payments under this Agreement, any
Notes or any other Loan Documents other than payments of interest, two
accurate and complete original signed copies of Internal Revenue
Service Form W-8BEN, or successor applicable form certifying to such
Lender's entitlement as of the date of such form to receive payments
other than payments of interest under this Agreement, any Notes or any
other Loan Documents without deduction or withholding of any United
States federal income taxes (and deliver to the Borrowers and the
Administrative Agent two further copies of such form on or before the
date the most recently delivered form expires or becomes obsolete and
after the occurrence of any event requiring a change in the most
recently delivered form and, if necessary, obtain at the expense of
the Borrowers, any extensions of time reasonably requested by the
Borrowers for the delivery of such forms); and (ii) agree, upon
reasonable request of the Borrowers, to provide to the Borrowers and
the Administrative Agent (for the benefit of the Borrowers and the
Administrative Agent), such other forms as may be reasonably required
under applicable law in order to establish the legal entitlement of
such Lender to an exemption from withholding of Taxes with respect to
any payments under this Agreement, any Notes and any other Loan
Document;
unless in any such case any change in treaty, law or regulation or any change in
any previously published ruling, notice or other similar official Internal
Revenue Service interpretation of a treaty, law or regulation has occurred after
the date such Person becomes a Lender hereunder or the Administrative Agent, as
the case may be, which renders all such forms inapplicable to such Lender or the
Administrative Agent or which would prevent such Lender or the Administrative
Agent from duly completing and delivering any such form with respect to it and
such Lender or the Administrative Agent promptly so advises the Borrower and the
Administrative Agent (in the case of a Lender) in writing. Each Person that
shall become a Lender or a Participant pursuant to Section 12.11 shall, upon the
effectiveness of the related transfer, be required to provide all of the forms,
certifications and statements required pursuant to this Section, provided that
in the case of a Participant the obligations of such Participant, pursuant to
this clause (b) shall be determined as if such Participant were a Lender except
that such Participant shall furnish all such required forms, certifications and
statements to the Lender from which the related participation shall have been
purchased. For purposes of this Section 5.6, references to a Lender shall
include each Agent and the Issuer.
SECTION 5.7. Payments, Computations, etc. (a) Unless otherwise
expressly provided, all payments by each Borrower pursuant to this Agreement,
the Notes, each Letter of Credit or any other Loan Document shall be made by
such Borrower to the Administrative Agent for the pro rata account of the
Lenders entitled to receive such payment. All such payments required to be made
to the Administrative Agent shall be made, without setoff, deduction or
61
counterclaim, not later than 1:00 p.m. (New York City, New York time) on the
date due, in same day or immediately available funds, to such account as the
Administrative Agent shall specify from time to time by notice to the Borrowers.
Funds received after that time shall be deemed to have been received by the
Administrative Agent on the next succeeding Business Day. The Administrative
Agent shall promptly remit in same day funds to each Lender its share, if any,
of such payments received by the Administrative Agent for the account of such
Lender. All interest (including interest on Eurodollar Loans) and fees shall be
computed on the basis of the actual number of days (including the first day but
excluding the last day) occurring during the period for which such interest or
fee is payable over a year comprised of 360 days (or, in the case of interest on
an ABR Loan (other than when calculated with respect to the Federal Funds Rate),
365 days or, if appropriate, 366 days). Whenever any payment to be made shall
otherwise be due on a day which is not a Business Day, such payment shall
(except as otherwise required by clause (c) of the definition of the term
"Interest Period" with respect to Eurodollar Loans) be made on the next
succeeding Business Day and such extension of time shall be included in
computing interest and fees, if any, in connection with such payment.
(b) All amounts received as a result of the exercise of remedies under
the Loan Documents (including from the proceeds of collateral securing the
Obligations) or under applicable law shall be applied upon receipt to the
Obligations as follows: (i) first, to the payment of all Obligations owing to
the Administrative Agent, in its capacity as the Administrative Agent (including
the fees and expenses of counsel to the Administrative Agent), (ii) second,
after payment in full in cash of the amounts specified in the immediately
preceding clause (i), to the ratable payment of all interest (including interest
accruing after the commencement of a proceeding in bankruptcy, insolvency or
similar law, whether or not permitted as a claim under such law) and fees owing
under the Loan Documents, and all costs and expenses owing to the Secured
Parties pursuant to the terms of the Loan Documents, until paid in full in cash,
(iii) third, after payment in full in cash of the amounts specified in the
immediately preceding clauses (i) and (ii), to the ratable payment of the
principal amount of the Loans then outstanding, the aggregate Reimbursement
Obligations then owing, the cash collateralization for contingent liabilities
under Letter of Credit Outstandings and credit exposure of Secured Parties under
Rate Protection Agreements, (iv) fourth, after payment in full in cash of the
amounts specified in the immediately preceding clauses (i) through (iii), to the
ratable payment of all other Obligations owing to the Secured Parties, and (v)
fifth, after payment in full in cash of the amounts specified in the immediately
preceding clauses (i) through (iv), and following the date that all Obligations
of each Borrower and each other Obligor hereunder have been paid in full in
cash, all Letters of Credit have been terminated or expired and all Commitments
have terminated, to each applicable Obligor or any other Person lawfully
entitled to receive such surplus. For purposes of this Section, the "credit
exposure" at any time of any Secured Party with respect to a Rate Protection
Agreement to which such Secured Party is a party shall be determined at such
time in accordance with the customary methods of calculating credit exposure
under similar arrangements by the counterparty to such arrangements, taking into
account potential interest rate (or, if applicable, currency) movements and the
respective termination provisions and notional principal amount and term of such
Rate Protection Agreement.
SECTION 5.8. Sharing of Payments. If any Lender shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Loan (other than pursuant to the terms of
Sections 5.3, 5.4, 5.5 and 5.6) or Letter of Credit in excess of its pro rata
62
share of payments then or therewith obtained by all Lenders, such Lender shall
purchase from the other Lenders such participations in Loans made by them and/or
Letters of Credit as shall be necessary to cause such purchasing Lender to share
the excess payment or other recovery ratably with each of them; provided,
however, that if all or any portion of the excess payment or other recovery is
thereafter recovered from such purchasing Lender, the purchase shall be
rescinded and each Lender which has sold a participation to the purchasing
Lender shall repay to the purchasing Lender the purchase price to the ratable
extent of such recovery together with an amount equal to such selling Lender's
ratable share (according to the proportion of
(a) the amount of such selling Lender's required repayment to the
purchasing Lender
to
(b) the total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. Each Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section may,
to the fullest extent permitted by law, exercise all its rights of payment
(including pursuant to Section 5.9) with respect to such participation as fully
as if such Lender were the direct creditor of such Borrower in the amount of
such participation. If under any applicable bankruptcy, insolvency or other
similar law, any Lender receives a secured claim in lieu of a setoff to which
this Section applies, such Lender shall, to the extent practicable, exercise its
rights in respect of such secured claim in a manner consistent with the rights
of the Lenders entitled under this Section to share in the benefits of any
recovery on such secured claim.
SECTION 5.9. Setoff. Each Lender shall, upon the occurrence of any
Event of Default described in clauses (a) through (d) of Section 9.1.9 or, with
the consent of the Required Lenders, upon the occurrence of any other Event of
Default, have the right to appropriate and apply to the payment of the
Obligations (other than Liquidity Obligations) owing to it (whether or not then
due), and (as security for such Obligations) each Borrower hereby grants to each
Lender a continuing security interest in, any and all balances, credits,
deposits, accounts or moneys of such Borrower then or thereafter maintained with
or otherwise held by such Lender; provided, however, that any such appropriation
and application shall be subject to the provisions of Section 5.8. Each Lender
agrees promptly to notify such Borrower and the Administrative Agent after any
such setoff and application made by such Lender; provided, however, that the
failure to give such notice shall not affect the validity of such setoff and
application. The rights of each Lender under this Section are in addition to
other rights and remedies (including other rights of setoff under applicable law
or otherwise) which such Lender may have.
SECTION 5.10. Replacement of Lender. Each Lender agrees that, upon the
occurrence of any event set forth in Section 5.1, 5.3, or 5.5, or in the event
any Borrower is required to pay additional amounts in respect of amounts payable
hereunder to such Lender pursuant to Section 5.6, such Lender will use
reasonable efforts to book and maintain its Loans through a different lending
office or to transfer its Loans to an Affiliate which is an Eligible Assignee
with the objective of avoiding or minimizing the consequences of such event;
provided that such booking or transfer is not otherwise disadvantageous to such
Lender as determined by such Lender in its sole and absolute discretion. If any
Lender
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(a) notifies the Borrowers pursuant to Section 5.1 that it is unable
to make, continue or maintain Eurodollar Loans or convert any Base Rate
Loan into a Eurodollar Loan when a majority of the other Lenders have not
given any such notice,
(b) has demanded to be paid additional amounts pursuant to Section
5.3, 5.5 or 5.6 and the payment of such additional amounts are, and are
likely to continue to be, more onerous in the reasonable judgment of the
Borrowers than with respect to the other Lenders,
(c) has wrongfully failed to fund any Loan on the date specified for
the making thereof and all of the other Lenders funded their portion of
such Loan on such date, or
(d) fails to consent to an election, consent, amendment, waiver or
other modification to this Agreement or any other Loan Document that
requires the consent of a greater percentage of the Lenders than the
Required Lenders and such election, consent, amendment, waiver or other
modification is otherwise consented to by the Required Lenders,
then the Borrowers shall have the right to seek one or more Eligible Assignees
(each, a "Substitute Lender") to purchase the outstanding Loans of such Lender
(the "Affected Lender") (provided that no such replacement may be made if (i)
such replacement conflicts with any applicable law or regulation or (ii) in the
case of the preceding clauses (a), (b) and (c), any Default shall have occurred
and be continuing at the time of such replacement), and if the Borrowers locate
a Substitute Lender, the Affected Lender shall, upon
(i) prior written notice to the Administrative Agent,
(ii) (A) payment to the Affected Lender of the purchase price agreed
between it and the Substitute Lender (or, failing such agreement, a
purchase price in the amount of the outstanding principal amount of the
Affected Lender's Loans (including, and together with, the amount of any
reimbursement of the Issuer by such Affected Lender pursuant to Section 4.4
that has not been repaid to such Affected Lender) and accrued interest
thereon to the date of payment) by the Substitute Lender plus (B) payment
by the Borrowers of all amounts (other than principal and interest) then
due to the Affected Lender or accrued for its account hereunder or under
any other Loan Document,
(iii) satisfaction of the provisions set forth in Section 12.11.1,
and
(iv) payment by the Borrower to the Affected Lender and the
Administrative Agent of all reasonable out-of-pocket expenses in connection
with such assignment and assumption (including the processing fees
described in Section 12.11.1),
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assign and delegate (in accordance with Section 12.11.1) all its rights and
obligations under this Agreement and any other Loan Document to which it is a
party (including all of its Loans, participations in Letter of Credit
Outstandings, Commitments and Reimbursement Obligations) to the Substitute
Lender and execute and deliver, on or prior to the day that the foregoing
conditions are satisfied, an assignment agreement necessary to effectuate any
assignment of such Affected Lender's interests hereunder; provided that such
assignment shall be without recourse, representation or warranty (other than
that the Loans, participations in Letter of Credit Outstandings, Commitments and
other rights being assigned, are free and clear of any Liens created or
consented to by such Affected Lender). Upon any such assignment and delegation
the Substitute Lender shall in accordance with Section 12.11.1 become a party to
each Loan Document to which the Affected Lender is a party and shall have the
rights and obligations of a Lender thereunder and the Affected Lender shall be
released from its obligations hereunder and each other Loan Document to the
extent of such assignment and delegation.
ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.1. [INTENTIONALLY OMITTED].
SECTION 6.2. All Credit Extensions. The obligation of each Lender and
the Issuer to make any Credit Extension (including the initial Credit Extension)
shall be subject to the satisfaction of each of the conditions precedent set
forth in this Section 6.2.
SECTION 6.2.1. Compliance with Warranties, No Default, etc. Both before
and after giving effect to any Credit Extension (but, if any Default of the
nature referred to in Section 9.1.5 shall have occurred with respect to any
other Indebtedness, without giving effect to the application, directly or
indirectly, of the proceeds of any Credit Extension), the following statements
shall be true and correct
(a) the representations and warranties set forth in Article VII
(excluding, however, those contained in Section 7.7) and in each other Loan
Document shall, in each case, be true and correct with the same effect as
if then made (unless stated to relate solely to an earlier date, in which
case such representations and warranties shall be 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
(i) no labor controversy, litigation, arbitration or
governmental investigation or proceeding shall be pending or
threatened against such Borrower or any of its Subsidiaries which
could reasonably be expected to materially adversely affect the
consolidated 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 Agreement, the Notes or
any other Loan Document; and
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(ii) no development shall have occurred in any labor
controversy, litigation, arbitration or governmental investigation or
proceeding disclosed pursuant to Section 7.7 which could reasonably be
expected to materially adversely affect the consolidated business,
property, operations, assets, liabilities, condition (financial or
otherwise) or prospects of the Parent and its Subsidiaries taken as a
whole; and
(c) no Default shall have then occurred and be continuing.
SECTION 6.2.2. Credit Request. The Administrative Agent shall have
received a Borrowing Request or Issuance Request, as the case may be, for such
Credit Extension. Each of the delivery of a Borrowing Request or an Issuance
Request and the acceptance by any Borrower of the proceeds of the Borrowing or
the issuance of the Letter of Credit, as applicable, shall constitute a
representation and warranty by such Borrower that on the date of such Borrowing
(both immediately before and after giving effect to such Borrowing and the
application of the proceeds thereof) or the issuance of the Letter of Credit, as
applicable, the statements made in Section 6.2.1 are true and correct.
SECTION 6.2.3. Enhancement Letters of Credit. In the event such Credit
Extension is in respect of an Enhancement Letter of Credit, the conditions to
such Credit Extension set forth in the Enhancement Letter of Credit Application
and Agreement with respect to such Enhancement Letter of Credit shall have been
satisfied.
SECTION 6.2.4. Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of any Borrower or any of its
Subsidiaries or any other Obligor shall be reasonably satisfactory in form and
substance to the Administrative Agent and its counsel; the Administrative Agent
and its counsel shall have received all information, approvals, opinions,
documents or instruments as the Administrative Agent or its counsel may
reasonably request.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders, the Issuer and the Administrative Agent to
enter into this Agreement and to make Loans and issue Letters of Credit
hereunder, each Borrower represents and warrants unto the Administrative Agent,
the Issuer and each Lender as set forth in this Article VII.
SECTION 7.1. Organization, etc. Each Borrower and each of its
Subsidiaries
(a) is a corporation validly organized and existing and in good
standing under the laws of the jurisdiction of its incorporation,
(b) is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction where the nature of its business
requires such qualification, except to the extent that the failure to so
qualify has not had, and could not reasonably be expected to have, a
material adverse effect on the business, property, operations, assets,
liabilities, condition (financial or otherwise) or prospects of the Parent
and its Subsidiaries taken as a whole,
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(c) has full power and authority and holds all requisite governmental
licenses, permits and other approvals to enter into and perform its
Obligations under this Agreement, the Amendment Agreement, the Notes and
each other Loan Document to which it is a party and to own and hold under
lease its property and to conduct its business substantially as currently
conducted by it, except where the failure to hold any such governmental
license, permit or approval could not reasonably be expected to have an
adverse effect on the interests of the Lenders hereunder and under the
other Loan Documents or a material adverse effect on the business,
property, operations, assets, liabilities, condition (financial or
otherwise) or prospects of the Parent and its Subsidiaries, taken as a
whole, and
(d) subject to Section 7.12, has complied in all material respects
with all material laws, rules, regulations and orders applicable to it.
SECTION 7.2. Due Authorization, Non-Contravention, etc. The
execution, delivery and performance by each Borrower of this Agreement, the
Amendment Agreement, the Notes and each other Loan Document executed or to be
executed by it, and the execution, delivery and performance by each other
Obligor of each Loan Document executed or to be executed by it and each such
Borrower's and each such other Obligor's participation in the consummation of
the amendment and restatement of the Amended and Restated Credit Agreement in
the form hereof and the other transactions contemplated hereby and by the
Amendment Agreement are within each such Borrower's and each such Obligor's
corporate powers, have been duly authorized by all necessary corporate action,
and do not
(a) contravene such Borrower's or such other Obligor's Organic
Documents;
(b) contravene any material contractual restriction, law or
governmental regulation or court decree or order binding on or affecting
such Borrower or such other Obligor; or
(c) result in, or require the creation or imposition of, any Lien
(other than the Liens created under the Loan Documents in favor of the
Administrative Agent for the benefit of the Secured Parties or the Liens
granted by Dollar Thrifty Funding in connection with the CP Program) on any
of such Borrower or such other Obligor's properties.
SECTION 7.3. Government Approval, Regulation, etc. Other than those
authorizations, approvals or other actions by, and notices to or filings with,
any governmental authority or regulatory body, if any, which have been duly
obtained or made and are in full force and effect, no additional authorization
or approval or other action by, and no additional notice to or filing with, any
governmental authority or regulatory body or other Person is required for the
due execution, delivery or performance by any Borrower or any other Obligor of
this Agreement, the Amendment Agreement, the Notes or any other Loan Document to
which it is a party, or, except to the extent such failure to so obtain or make
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such authorizations, approvals or other actions could not reasonably be expected
to have an adverse effect on the interests of the Lenders hereunder and under
the other Loan Documents or a material adverse effect on the business, property,
operations, assets, liabilities, condition (financial or otherwise) or prospects
of the Parent and its Subsidiaries, taken as a whole, for such Borrower's and
each such other Obligor's participation in the consummation of the amendment and
restatement of the Amended and Restated Credit Agreement in the form hereof and
the other transactions contemplated hereby and by the Amendment Agreement. No
Borrower nor any of its Subsidiaries is required to be registered as an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, or a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
SECTION 7.4. Validity, etc. This Agreement constitutes, and the Notes
and each other Loan Document executed by each Borrower will, on the due
execution and delivery thereof, constitute, the legal, valid and binding
obligations of such Borrower, enforceable against such Borrower in accordance
with their respective terms; and each Loan Document executed pursuant hereto by
each other Obligor will, on the due execution and delivery thereof by such
Obligor, be the legal, valid and binding obligation of such Obligor, enforceable
in accordance with its terms. Each of the Loan Documents which purports to
create a security interest creates a valid first priority security interest in
the Collateral (as defined in such Loan Document) subject thereto, subject only
to Liens permitted by Section 8.2.3, securing the payment of the Obligations
described therein.
SECTION 7.5. Financial Information. All balance sheets, all statements
of operations, shareholders' equity and cash flow and all other financial
information of each of the Parent and its Subsidiaries furnished pursuant to
Section 8.1.1 of the Amended and Restated Credit Agreement or Section 8.1.1 have
been and will for periods following the Amendment Effective Date be prepared in
accordance with GAAP consistently applied, and do or will present fairly, in all
material respects, the consolidated financial condition of the entities covered
thereby as at the dates thereof and the results of their operations for the
periods then ended.
SECTION 7.6. No Material Adverse Change. There has been no material
adverse change in the business, property, operations, assets, liabilities,
condition (financial or otherwise) or prospects of the Parent and its
Subsidiaries, taken as a whole, since December 31, 2003.
SECTION 7.7. Litigation, Labor Controversies, etc. 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, assets or
revenues, 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 Agreement, the Amendment
Agreement, the Notes or any other Loan Document, except as disclosed in Item 7.7
("Litigation") of the Disclosure Schedule.
The consummation of the amendment and restatement of the Amended and
Restated Credit Agreement in the form hereof or any of the other transactions
contemplated hereby or by the Amendment Agreement will not give rise to a right
of termination or right of renegotiation on the part of any union under any
collective bargaining agreement to which any Obligor (or any predecessor) is a
party or by which the Parent or any of its Subsidiaries (or any predecessor) is
bound.
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SECTION 7.8. Subsidiaries. (a) The Parent has no direct Subsidiaries
on the date hereof, except as set forth in Item 7.8(a) ("Existing Subsidiaries
of the Parent") of the Disclosure Schedule.
(b) Operations has no Subsidiaries, except those Subsidiaries (i) which
are identified in Item 7.8(b) ("Existing Subsidiaries of Operations") of the
Disclosure Schedule by their correct legal name, their jurisdiction of
organization and the holders (and their respective percentage ownership) of the
Capital Stock thereof or (ii) which are permitted to have been acquired in
accordance with Section 8.2.5 or 8.2.10.
(c) Thrifty Holdco has no direct Subsidiaries, except those Subsidiaries
(i) which are identified in Item 7.8(c) ("Existing Subsidiaries of Thrifty
Holdco") of the Disclosure Schedule by their correct legal name, their
jurisdiction of organization and the holders (and their respective percentage
ownership) of the Capital Stock thereof or (ii) which are permitted to have been
acquired in accordance with Section 8.2.5 or 8.2.10.
(d) Thrifty has no Subsidiaries, except those Subsidiaries (i) which are
identified in Item 7.8(d) ("Existing Subsidiaries of Thrifty") of the Disclosure
Schedule by their correct legal name, their jurisdiction of organization and the
holders (and their respective percentage ownership of) the Capital Stock thereof
or (ii) which are permitted to have been acquired in accordance with Section
8.2.5 or 8.2.10.
(e) Thrifty Car Sales has no Subsidiaries, except those Subsidiaries which
are permitted to have been acquired in accordance with Section 8.2.5 or 8.2.10.
(f) Dollar has no Subsidiaries, except those Subsidiaries which are
permitted to have been acquired in accordance with Section 8.2.5 or 8.2.10.
SECTION 7.9. Ownership of Properties. Except as permitted pursuant
to Section 7.13 or Section 8.2.3, each Borrower and each of its Subsidiaries
owns (i) in the case of owned real property, good and marketable fee title to,
and (ii) in the case of owned personal property, good and valid title to, or, in
the case of leased real or personal property, valid and enforceable leasehold
interests (as the case may be) in, all of its properties and assets, real and
personal, tangible and intangible, of any nature whatsoever, to the extent
reflected on the financial statements dated as of December 31, 2003, or if
later, the last day of the most recently completed Fiscal Quarter with respect
to which, pursuant to Section 8.1.1 of this Agreement, financial statements have
been delivered by the Parent to the Administrative Agent, free and clear in each
case of all Liens or claims, except for Liens permitted pursuant to Section
8.2.3. The real property described in Schedule III constitutes each of the real
estate owned in fee by a Borrower or any of its Subsidiaries on the date hereof
having a net book value of at least $2,000,000. With respect to each item of
real estate so owned in fee on the date hereof which is not set forth on such
Schedule III, no more than two such items of real estate have a net book value
exceeding $1,500,000 (per item) and collectively such items of real estate do
not in the aggregate have a net book value exceeding $7,500,000.
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SECTION 7.10. Taxes. Each Borrower and each of its Subsidiaries has
filed all material tax returns and reports required by law to have been filed by
it and has paid all taxes and governmental charges thereby shown to be due and
owing, except any such taxes or charges which are being diligently contested in
good faith by appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books.
SECTION 7.11. Pension and Welfare Plans. During the twelve-
consecutive-month period prior to the Amendment Effective Date and prior to the
date of any Credit Extension hereunder, (i) no steps have been taken to
terminate any Pension Plan, and (ii) no contribution failure has occurred with
respect to any Pension Plan sufficient to give rise to a Lien under section
302(f) of ERISA, which in the case of any of the events described in clause (i)
or (ii) above could reasonably be expected to result in a liability of the
Parent and its Subsidiaries in excess of $5,000,000. No condition exists or
event or transaction has occurred with respect to any Pension Plan which might
result in the incurrence by any Borrower or any member of the Controlled Group
of any liability, fine or penalty that, in the aggregate, exceeds $5,000,000.
Except as disclosed in Item 7.11 ("Employee Benefit Plans") of the Disclosure
Schedule, no Borrower nor any member of the Controlled Group has any contingent
liability with respect to any post-retirement benefit under a Welfare Plan,
other than liability for continuation coverage described in Part 6 of Title I of
ERISA.
SECTION 7.12. Environmental Warranties. Except as set forth in
Item 7.12 ("Environmental Matters") of the Disclosure Schedule (none of which
items disclosed therein, singly or in the aggregate, have, or may reasonably be
expected to have, a material adverse effect on the business, property,
operations, assets, liabilities, condition (financial or otherwise) or prospects
of the Parent and its Subsidiaries, taken as a whole),
(a) all facilities and property (including underlying groundwater)
owned or leased by any Borrower or any of its Subsidiaries have been, and
continue to be, owned or leased by such Borrower and such Subsidiary, as
the case may be, in material compliance with all Environmental Laws and in
accordance with industry practices;
(b ) there have been no past, and there are no pending or threatened
(i) claims, complaints, notices or requests for information
received by any Borrower or any of its Subsidiaries with respect to
any alleged violation of any Environmental Law, which, if true would,
singly or in the aggregate, result in a liability of more than
$5,000,000 to the Parent and/or any of its Subsidiaries, or
(ii) complaints, notices or inquiries to any Borrower or any of
its respective Subsidiaries regarding potential liability under any
Environmental Law, which, if true would, singly or in the aggregate,
result in a liability of more than $5,000,000 to the Parent and/or any
of its Subsidiaries;
(c) there have been no Releases of Hazardous Materials at, on or
under any property now or previously owned or leased by any Borrower or any
of its Subsidiaries that, singly or in the aggregate, have, or may
reasonably be expected to have, a material adverse effect on the business,
property, operations, assets, liabilities, condition (financial or
otherwise) or prospects of the Parent and its Subsidiaries, taken as a
whole;
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(d) each Borrower and each of its Subsidiaries have been issued and
are in material compliance with all permits, certificates, approvals,
licenses and other authorizations relating to environmental matters and
necessary or desirable for their businesses;
(e) no property now or previously owned or leased by any Borrower or
any of its Subsidiaries is listed or proposed for listing (with respect to
owned property only) on the National Priorities List pursuant to CERCLA, on
the CERCLIS or on any similar state list of sites requiring investigation
or clean-up;
(f) there are no underground storage tanks, active or abandoned,
including petroleum storage tanks, on or under any property now or
previously owned or leased by any Borrower or any of its Subsidiaries that,
singly or in the aggregate, have, or may reasonably be expected to have, a
material adverse effect on the business, property, operations, assets,
liabilities, condition (financial or otherwise) or prospects of the Parent
and its Subsidiaries, taken as a whole;
(g) Borrower nor any of its Subsidiaries has directly transported or
directly arranged for the transportation of any Hazardous Material to any
location which is listed or proposed for listing on the National Priorities
List pursuant to CERCLA, on the CERCLIS or on any similar state list or
which is the subject of federal, state or local enforcement actions or
other investigations which may lead to material claims against such
Borrower or such Subsidiary thereof for any remedial work, damage to
natural resources or personal injury, including claims under CERCLA;
(h) no Borrower nor any of its Subsidiaries has entered into any
agreements or engaged in any activities that, singly or in the aggregate,
would give rise to liability under any Environmental Law with regard to
acts, omissions or conditions of property of any third party, including any
franchisee of any Borrower or any of its Subsidiaries or that, singly or in
the aggregate, have, or may reasonably be expected to have, a material
adverse effect on the business, property, operations, assets, liabilities,
condition (financial or otherwise) or prospects of the Parent and its
Subsidiaries, taken as a whole;
(i) there are no polychlorinated biphenyls or friable asbestos
present at any property now or previously owned or leased by any Borrower
or any of its Subsidiaries that, singly or in the aggregate, have, or may
reasonably be expected to have, a material adverse effect on the business,
property, operations, assets, liabilities, condition (financial or
otherwise) or prospects of the Parent and its Subsidiaries, taken as a
whole; and
(j) no conditions exist at, on or under any property now or
previously owned or leased by the Parent or any of its Subsidiaries, which,
with the passage of time, or the giving of notice or both, would give rise
to liability under any Environmental Law that, singly or in the aggregate,
has, or may reasonably be expected to have, a material adverse effect on
the business, property, operations, assets, liabilities, condition
(financial or otherwise) or prospects of the Parent and its Subsidiaries,
taken as a whole.
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SECTION 7.13. Intellectual Property. Each Borrower and each of its
Subsidiaries owns and possesses or licenses (as the case may be) all such
patents, patent rights, trademarks, trademark rights, trade names, trade name
rights, service marks, service ▇▇▇▇ rights and copyrights as such Borrower
considers necessary for the conduct of the businesses of such Borrower and its
Subsidiaries as now conducted without, individually or in the aggregate, any
infringement upon rights of other Persons, in each case except as could not
reasonably be expected to result in a material adverse effect on the business,
property, operations, assets, liabilities, condition (financial or otherwise) or
prospects of the Parent and its Subsidiaries, taken as a whole, and there is no
individual patent, patent right, trademark, trademark right, trade name, trade
name right, service ▇▇▇▇, service ▇▇▇▇ right or copyright the loss of which
could reasonably be expected to result in a material adverse change in the
business, property, operations, assets, liabilities, condition (financial or
otherwise) or prospects of the Parent and its Subsidiaries, taken as a whole,
except as may be disclosed in Item 7.13 ("Intellectual Property") of the
Disclosure Schedule.
SECTION 7.14. Regulations U and X. No Borrower nor any of its
Subsidiaries is engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock, and no proceeds of any Credit Extensions
will be used to purchase or carry margin stock or otherwise for a purpose which
violates, or would be inconsistent with, F.R.S. Board Regulation U or X. Terms
for which meanings are provided in F.R.S. Board Regulation U or X or any
regulations substituted therefor, as from time to time in effect, are used in
this Section with such meanings.
SECTION 7.15. Accuracy of Information. All information (other than
financial statements and financial and business projections and forecasts)
heretofore or contemporaneously furnished by or on behalf of any Borrower or any
of their respective Subsidiaries in writing to the Administrative Agent, the
Issuer or any Lender for purposes of or in connection with this Agreement, the
Amendment Agreement, the Amended and Restated Credit Agreement or any
transaction contemplated hereby or thereby is, and all of other such information
hereafter furnished by or on behalf of any Borrower or any of their respective
Subsidiaries to the Administrative Agent, the Issuer or any Lender will be, true
and accurate in every material respect on the date as of which such information
is dated or certified and as of the Amendment Effective Date, and such
information is not, or shall not be, as the case may be, 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 heretofore or
contemporaneously furnished by or on behalf of any Borrower or any of its
Subsidiaries in writing to any Agent, the Issuer or any Lender for purposes of
or in connection with this Agreement, the Amendment Agreement, the Amended and
Restated Credit Agreement or any transaction contemplated hereby or thereby have
been, and all of the financial and business projections and forecasts hereafter
furnished by or on behalf of any Borrower or any of its Subsidiaries in writing
to the Administrative Agent, the Issuer or any Lender will be prepared in good
faith based upon assumptions which the Borrowers believe to be reasonable.
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SECTION 7.16. Other Transaction Documents. As of the Amendment
Effective Date, the DaimlerChrysler Supply Agreement has been duly executed and
delivered by each of the parties thereto and is in full force and effect without
the existence of any material default thereunder.
SECTION 7.17. Non-Guarantor Subsidiaries. (a) Dollar and each Domestic
Subsidiary of the Parent (other than Operations, Thrifty and any SPC) that
(i) accounted for more than 1 1/2% of consolidated revenues of the
Parent and its Subsidiaries or 1 1/2% of consolidated net earnings of the
Parent and its Subsidiaries, in each case for the four consecutive Fiscal
Quarters of the Parent ending on the last day of the most recently
completed Fiscal Quarter with respect to which, pursuant to Section 8.1.1
of the Amended and Restated Credit Agreement or Section 8.1.1, financial
statements have been, or are required to have been, delivered by the Parent
to the Administrative Agent, or
(ii) has assets which represent more than 1 1/2% of the consolidated
assets of the Parent and its Subsidiaries as of the last day of the last
Fiscal Quarter of the most recently completed Fiscal Quarter with respect
to which, pursuant to Section 8.1.1 of the Amended and Restated Credit
Agreement or Section 8.1.1, financial statements have been, or are required
to have been, delivered by the Parent to the Administrative Agent,
is a party to the Subsidiary Guaranty.
(b) There are no Domestic Subsidiaries of the Parent (other than SPCs)
that are not Subsidiary Borrowers or Subsidiary Guarantors and that, when taken
together with all other Domestic Subsidiaries of the Parent that are not
Subsidiary Borrowers or Subsidiary Guarantors,
(i) account in the aggregate for more than 2 1/2% of consolidated
revenues of the Parent and its Subsidiaries or 2 1/2% of consolidated net
earnings of the Parent and its Subsidiaries, in each case for the four
consecutive Fiscal Quarters of the Parent ending on the last day of the
most recently completed Fiscal Quarter with respect to which, pursuant to
Section 8.1.1 of the Amended and Restated Credit Agreement or Section
8.1.1, financial statements have been, or are required to have been,
delivered by the Parent to the Administrative Agent, or
(ii) have assets which represent more than 2 1/2% of the
consolidated assets of the Parent and its Subsidiaries as of the last day
of the most recently completed Fiscal Quarter with respect to which,
pursuant to Section 8.1.1 of the Amended and Restated Credit Agreement or
Section 8.1.1, financial statements have been, or are required to have
been, delivered by the Parent to the Administrative Agent.
SECTION 7.18. Non-Impairment, etc. After giving effect to the Amendment
Agreement, neither the modification and restatement of the Amended and Restated
Credit Agreement or any other Existing Loan Document effected pursuant to the
Amendment Agreement nor the execution, delivery, performance or effectiveness of
the Amendment Agreement, this Agreement or any other Loan Document impairs the
validity, effectiveness or priority of the Liens granted pursuant to the Pledge
Agreement and the Security Agreement (as such terms are defined in the Amended
and Restated Credit Agreement and as in effect immediately prior to the
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Amendment Effective Date, the "Existing Security Documents"), and such Liens
continue unimpaired with the same priority to secure repayment of all
Obligations, whether heretofore or hereafter incurred. Neither the modification
and restatement of the Amended and Restated Credit Agreement or the other
Existing Loan Documents effected pursuant to the Amendment Agreement nor the
execution, delivery, performance or effectiveness of the Amendment Agreement,
this Agreement or any other Loan Document requires that any new filings be made
or other action taken to perfect or to maintain the perfection of such Liens.
Under the foregoing circumstances, the position of the Administrative Agent and
the Lenders with respect to such Liens, the Collateral (as defined in the
Existing Security Documents) in which a security interest was granted pursuant
to the Existing Security Documents, and the ability of the Administrative Agent
to realize upon such Liens pursuant to the terms of the Security Agreement and
the Pledge Agreement have not been adversely affected in any material respect by
the modification of the Amended and Restated Credit Agreement or any other
Existing Loan Documents effected pursuant to the Amendment Agreement or by the
execution, delivery, performance or effectiveness of the Amendment Agreement,
this Agreement or any other Loan Document.
ARTICLE VIII
COVENANTS
SECTION 8.1. Affirmative Covenants. Each Borrower agrees with each
Agent, the Issuer and each Lender that, until all Commitments have terminated,
all Letters of Credit shall have terminated or expired and all Obligations have
been paid and performed in full, such Borrower will perform the obligations set
forth in this Section 8.1.
SECTION 8.1.1. Financial Information, Reports, Notices, etc. Each
Borrower will furnish, or will cause to be furnished, to each Lender, the Issuer
and the Administrative Agent copies of the following financial statements,
reports, notices and information:
(a) as soon as available and in any event within 45 days after the
end of each of the first three Fiscal Quarters of each Fiscal Year of the
Parent, (i) a consolidated balance sheet of the Parent and its Subsidiaries
and a consolidating balance sheet of the Parent and its direct
Subsidiaries, in each case as of the end of such Fiscal Quarter, and (ii)
consolidated statements of operations and cash flow of the Parent and its
Subsidiaries and consolidating statements of operations and cash flow of
the Parent and its direct Subsidiaries, in each case for such Fiscal
Quarter and for the period commencing at the end of the previous Fiscal
Year and ending with the end of such Fiscal Quarter, and, in each case,
certified by the chief financial Authorized Officer of the Parent.
(b) as soon as available and in any event within 90 days after the
end of each Fiscal Year of the Parent, (i) a copy of the annual audit
report for such Fiscal Year for the Parent and its Subsidiaries, including
therein a consolidated balance sheet of the Parent and its Subsidiaries and
a consolidating balance sheet of the Parent and its direct Subsidiaries, in
each case as of the end of such Fiscal Year and consolidated statements of
operations and cash flow of the Parent and its Subsidiaries and
consolidating statements of operations and cash flow of the Parent and its
direct Subsidiaries, in each case for such Fiscal Year, in each case
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certified (without any Impermissible Qualification) in a manner acceptable
to the Administrative Agent and the Required Lenders by Deloitte & Touche
or other nationally recognized independent public accountants acceptable to
the Administrative Agent and the Required Lenders, together with a report
from such accountants containing a computation of each of the financial
ratios and restrictions contained in Section 8.2.4 and to the effect that,
in making the examination necessary for the signing of such annual report
by such accountants, they have not become aware of any Default that has
occurred and is continuing, or, if they have become aware of such Default,
describing such Default and the steps, if any, being taken to cure it; and
(ii) to the extent prepared for any other Person, (A) a copy of the annual
audit report for such Fiscal Year for Operations and its Subsidiaries,
including therein a consolidated balance sheet of Operations and its
Subsidiaries, as of the end of such Fiscal Year and consolidated statements
of operations and cash flow of Operations and its Subsidiaries for such
Fiscal Year, (B) a copy of the annual audit report for such Fiscal Year for
Thrifty Holdco and its Subsidiaries, including therein a consolidated
balance sheet of Thrifty Holdco and its Subsidiaries as of the end of such
Fiscal Year and consolidated statements of operations and cash flow of
Thrifty Holdco and its Subsidiaries for such Fiscal Year, and (C) a copy of
the annual audit report for such Fiscal Year for Dollar and its
Subsidiaries, including therein a consolidated balance sheet of Dollar and
its Subsidiaries as of the end of such Fiscal Year and consolidated
statements of operations and cash flow of Dollar and its Subsidiaries for
such Fiscal Year, in each case certified (without any Impermissible
Qualification) in a manner acceptable to the Administrative Agent and the
Required Lenders by Deloitte & Touche or other nationally recognized
independent public accountants acceptable to the Administrative Agent and
the Required Lenders;
(c) as soon as available and in any event within 45 days after the
end of the first three Fiscal Quarters of each Fiscal Year of the Parent
and within 90 days after the end of the last Fiscal Quarter of each Fiscal
Year of the Parent, a Compliance Certificate, executed by the chief
financial Authorized Officer of the Parent, showing, among other things,
(in reasonable detail and with appropriate calculations and computations in
all respects satisfactory to the Administrative Agent) compliance with the
financial covenants set forth in Section 8.2.4;
(d) as soon as possible and in any event within three Business Days
after the occurrence of each Default, a statement of the chief financial
Authorized Officer of the Parent setting forth details of such Default and
the action which the Parent or any other Borrower has taken and proposes to
take with respect thereto;
(e) as soon as possible and in any event within three Business Days
after (x) the occurrence of any adverse development with respect to any
litigation, action, proceeding or labor controversy of the type that would
be required to be described in Item 7.7 of the Disclosure Schedule or (y)
the commencement of any labor controversy, litigation, action or proceeding
of the type required to be described in Section 7.7, notice thereof and
copies of all documentation relating thereto;
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(f) promptly after the sending or filing thereof, copies of all
reports which the Parent sends to any of its securityholders, and all
reports and registration statements which the Parent or any of its
Subsidiaries files with the SEC or any national securities exchange;
(g) as soon as possible and in any event within three Business Days
after becoming aware of the institution of any steps by a Borrower or any
other Person to terminate any Pension Plan, or the failure to make a
required contribution to any Pension Plan if such failure is sufficient to
give rise to a Lien under section 302(f) of ERISA, or the taking of any
action with respect to a Pension Plan which could reasonably be expected to
result in the requirement that such Borrower or any of their respective
Subsidiaries furnish a bond or other security to the PBGC or such Pension
Plan, or the occurrence of any event with respect to any Pension Plan which
could reasonably be expected to result in the incurrence by a Borrower of
any material liability, fine or penalty, or any material increase in the
contingent liability of such Borrower with respect to any post-retirement
Welfare Plan benefit, notice thereof and copies of all documentation
relating thereto;
(h) as soon as available and in any event no later than 45 days after
the first day of each Fiscal Year of the Parent, commencing with the 2005
Fiscal Year, an annual budget, prepared on a monthly basis for such Fiscal
Year of the Parent containing (A) a consolidated projected balance sheet of
each of the Parent and its Subsidiaries, Operations and its Subsidiaries,
Thrifty Holdco and its Subsidiaries and Dollar and its Subsidiaries,
prepared on a monthly basis for such Fiscal Year, and (B) consolidated
statements of operations and cash flow of each of the Parent and its
Subsidiaries, Operations and its Subsidiaries, Thrifty Holdco and its
Subsidiaries and Dollar and its Subsidiaries, prepared on a monthly basis
for such Fiscal Year;
(i) concurrently with the delivery of the financial statements
described in clause (b) of this Section 8.1.1, a narrative explanation, in
the form customarily provided to the Board of Directors of the Parent, of
any material variance from the budget of the Parent for such Fiscal Year
that is reflected in such financial statements, unless the Parent has
timely filed with the SEC an annual report on Form 10-K, in which case
delivery of such annual report to each Lender, the Issuer and the
Administrative Agent shall satisfy the requirements of this clause (i);
(j) as soon as possible and in any event within ten days after the
delivery thereof, copies of all notices, agreements or documents delivered
pursuant to any agreement for borrowed money (other than agreements with
respect to Vehicle Debt) to which the Parent or any Subsidiary of the
Parent is a party and with a commitment or outstandings exceeding
$5,000,000, except for such notices, agreements or documents (i) delivered
pursuant to the terms hereof or (ii) which are delivered in the ordinary
course of each such agreement (such as borrowing requests, letter of credit
requests and the like); provided, however, that the Borrowers shall have
complied with the requirements of this clause (j) if such notices,
agreements or documents have been either (x) furnished to the
Administrative Agent or (y) publicly filed with the SEC and the
Administrative Agent has been notified of such filing of such notices,
agreements or documents;
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(k) on or within 30 days prior to each date set forth on Schedule IV
hereto, a certificate from an Authorized Officer of the Parent, dated as of
such date, in which certificate such Authorized Officer shall certify that
all actions necessary for the continued perfection of the Administrative
Agent's Liens on all Collateral (as defined in each Loan Document) of the
Obligor or Obligors set forth opposite such date on such Schedule IV until
the Stated Maturity Date have been taken (including all recordings,
registerings, filings, re-recordings, re-registerings and refilings of all
financing statements, continuation statements or other instruments of
further assurance as is necessary to ensure such continued perfection),
together with, if requested by the Administrative Agent, opinion(s) of
counsel reasonably acceptable to the Administrative Agent stating that, in
the opinion of such counsel, all actions necessary for the continued
perfection of the Administrative Agent's Liens on such Collateral for the
period, with respect to each Obligor, from the date set forth opposite the
name of such Obligor on Schedule IV hereto until the Stated Maturity Date
have been taken and that no further action (other than as specified in such
opinion) needs to be taken (under then current law) to ensure the continued
perfection of such Liens during such period; and
(l) such other information respecting the condition or operations,
financial (including consolidating balance sheets and statements of
operations and cash flow of the Parent and its direct Subsidiaries, in each
case, as of the end of any Fiscal Quarter) or otherwise, of any Borrower or
any of their respective Subsidiaries as any Lender through the
Administrative Agent may from time to time reasonably request.
SECTION 8.1.2. Compliance with Laws, Material Agreements, etc. Each
Borrower will, and will cause each of its Subsidiaries to, comply in all
material respects with all material laws, rules, regulations, orders and
agreements applicable to it, such compliance to include:
(a) the maintenance and preservation of its corporate existence and
qualification as a foreign corporation;
(b) the maintenance and preservation of all governmental licenses,
permits and other approvals necessary for it to perform its obligations
under this Agreement, the Notes and each other Loan Document to which it is
a party and to own and hold under lease its property and to conduct its
business substantially as currently conducted by it;
(c) the maintenance, preservation and renewal of all material
agreements necessary to conduct its business substantially as currently
conducted by it (or the substitution for any such material agreement with a
similar agreement), including the DaimlerChrysler Supply Agreement; and
(d) the payment, before the same become delinquent, of all taxes,
assessments and governmental charges imposed upon it or upon its property
except to the extent being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with
GAAP shall have been set aside on its books.
SECTION 8.1.3. Maintenance of Properties. Each Borrower will, and will
cause each of its Subsidiaries to, maintain, preserve, protect and keep its
properties in good repair, working order and condition, and make necessary and
proper repairs, renewals and replacements so that its business carried on in
connection therewith may be properly conducted at all times unless the such
Person determines in good faith that the continued maintenance of any of its
properties is no longer economically desirable.
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SECTION 8.1.4. Insurance. Each Borrower will, and will cause each of
its Subsidiaries to, maintain or cause to be maintained with responsible
insurance companies (a) insurance with respect to its properties and business
(including business interruption insurance), against loss or damage by
casualties and contingencies, in amounts not less than the then full replacement
value of such properties, (b) general public liability insurance (including
umbrella excess liability insurance) against liability on account of damage to
persons and property in an amount not less than $7,500,000 per occurrence and
$75,000,000 in the aggregate (provided that each of the Borrowers and each of
their Subsidiaries may self-insure per occurrence (x) the initial $3,000,000 of
liability with respect thereto and (y) the subsequent $3,750,000 of liability
with respect thereto (but in no event greater than $15,000,000 in the aggregate
for all the Borrowers and their Subsidiaries for all such occurrences for the
relevant year pursuant to this subclause (y)), in each case through a
combination of self-insurance, deductibles and/or quota-sharing arrangements),
(c) insurance required under all applicable workers' compensation laws in
amounts which comply with relevant statutory requirements, (d) environmental
impairment liability insurance of such types and in such amounts as may now or
hereafter be required by applicable law and (e) each other type of insurance in
such amount as is customary in the case of similar businesses of established
reputation. All insurance policies described under this Section shall be in form
reasonably satisfactory to the Administrative Agent. Upon request of the
Administrative Agent, each Borrower will, and will cause each of its
Subsidiaries to, furnish (or cause to be furnished) to each Lender at reasonable
intervals a certificate of an Authorized Officer of such Borrower setting forth
the nature and extent of all insurance maintenance by such Borrower and its
Subsidiaries in accordance with this Section.
SECTION 8.1.5. Books and Records. Each Borrower will, and will cause
each of its Subsidiaries to, keep books and records which accurately reflect all
of their respective business affairs and transactions and permit the
Administrative Agent and each Lender or any of their respective representatives,
at reasonable times and intervals, to visit all of their respective offices, to
discuss their respective financial matters with their respective officers and
independent public accountant (and each Borrower hereby authorizes such
independent public accountants to discuss such financial matters with each
Lender or its representatives whether or not any representative of such Borrower
or such Subsidiary is present, provided such Borrower has been given prior
notice of such discussion and an opportunity to be present during such
discussion through one or more of its representatives) and to examine (and, at
the expense of such Borrower, photocopy extracts from) any of their respective
books or other corporate records. The Borrowers shall, jointly and severally,
pay any fees of such independent public accountant incurred in connection with
the Administrative Agent's or any Lender's exercise of its rights pursuant to
this Section.
SECTION 8.1.6. Environmental Covenant. Each Borrower will, and will
cause each of its Subsidiaries to,
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(a) use and operate all of their respective facilities and properties
in material compliance with all Environmental Laws, keep all necessary
permits, approvals, certificates, licenses and other authorizations
relating to environmental matters in effect and remain in material
compliance therewith, and handle all Hazardous Materials in material
compliance with all applicable Environmental Laws;
(b) follow practices that are at least as effective as industry
practices to minimize and respond to spills and overfills of petroleum
products;
(c) respond to past and ongoing releases of petroleum-containing
materials in a manner that minimizes potential liability to third parties
for off-site contamination from facilities owned or leased or otherwise
operated by such Borrower or any of its Subsidiaries;
(d) respond to past and ongoing releases of petroleum-containing
materials in a manner that minimizes any likelihood that such Borrower or
any of its Subsidiaries would incur costs or damages that, singly or in the
aggregate, have, or may reasonably be expected to have, a material adverse
effect on the business, property, operations, assets, liabilities,
condition (financial or otherwise) or prospects of the Parent and its
Subsidiaries, taken as a whole;
(e) manage the disposition of residuals such as spent
petroleum-containing material in a manner that minimizes any likelihood
that such Borrower or any of its Subsidiaries would incur costs or damages
that, singly or in the aggregate, have, or may reasonably be expected to
have, a material adverse effect on the business, property, operations,
assets, liabilities, condition (financial or otherwise) or prospects of the
Parent and its Subsidiaries, taken as a whole;
(f) immediately notify the Administrative Agent and provide copies
upon receipt of all written claims, complaints, notices or inquiries
relating to the condition of their facilities and properties or compliance
with Environmental Laws, other than any claim, complaint, notice or inquiry
that alleges or makes reference to a violation of any Environmental Law
which, if true, could result in payments not in excess of $2,500,000; and
(g) provide such information and certifications which the
Administrative Agent may reasonably request from time to time to evidence
compliance with this Section 8.1.6.
SECTION 8.1.7. Use of Proceeds. Each Borrower shall apply the proceeds
of each Credit Extension in accordance with the ninth recital; without limiting
the foregoing, no proceeds of any Loan will be used to acquire any equity
security of a class which is registered pursuant to Section 12 of the Exchange
Act or any "margin stock", as defined in F.R.S. Board Regulation U.
SECTION 8.1.8. Additional Real Property. Each Borrower shall, and shall
cause each of its Subsidiaries to, cause the Administrative Agent and the
Lenders to have at all times a first priority perfected security interest
(subject only to Liens and encumbrances permitted under Section 8.2.3) in all of
the real property owned from time to time by such Borrower and its Subsidiaries
(other than any such real property that has a net book value of less than
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$2,000,000 and that, when added to the net book value of all other real property
owned by the Borrowers and their Subsidiaries that is not subject to a first
priority perfected security interest in favor of the Administrative Agent and
the Lenders (exclusive of the net book value of the California Property (as
defined below) not required to be subject to a first priority perfected security
interest hereunder), does not exceed $7,500,000, provided that any California
Property shall not be required to be subject to a first priority perfected
security interest hereunder unless expressly requested by the Administrative
Agent; provided, however, that (i) in no event shall more than two items of real
property (other than California Property not required to be pledged hereunder)
with a net book value exceeding $1,500,000 (per item) be free of a first
priority perfected security interest in favor of the Administrative Agent and
the Lenders and (ii) the Administrative Agent may at any time require that the
San Diego Property (as defined below) or any other California Property that
would have otherwise been required to be subject to a first priority perfected
security interest hereunder, to be so subject. Without limiting the generality
of the foregoing, each such Borrower shall, and shall cause each such Subsidiary
to, execute and deliver or cause to be executed and delivered Mortgages, that
may be necessary or, in the opinion of the Administrative Agent, desirable to
create a valid, perfected Lien against such real property, together with
(a) evidence of the completion (or satisfactory arrangements for the
completion) of all recordings and filings of each such Mortgage;
(b) mortgagee's title insurance policies in favor of the
Administrative Agent and the Lenders and issued by insurers reasonably
satisfactory to the Administrative Agent, in amounts and in form and
substance reasonably satisfactory to the Administrative Agent, with respect
to each Additional Material Property purported to be covered by each such
Mortgage, insuring that title to such property is marketable and that the
interests created by the Mortgage constitute valid first Liens thereon free
and clear of all defects and encumbrances other than as approved by the
Administrative Agent, such policies shall also include a revolving credit
endorsement and such other endorsements as the Administrative Agent shall
request and shall be accompanied by evidence of the payment in full of all
premiums thereon;
(c) surveys for each Additional Material Property made in accordance
with the Minimum Standard Detail Requirements for Land Title Surveys
jointly established and adopted by the American Land Title Association and
the American Congress of Surveying and Mapping in 1992, which surveys shall
be certified to the Administrative Agent and in form and substance
reasonably satisfactory to the Administrative Agent;
(d) Uniform Commercial Code financing statements related to the
security interests created by each Mortgage, together with evidence of the
completion (or satisfactory arrangements for the completion) of all
recordings and filings of such financing statements in the appropriate
offices and records as may be necessary or, in the reasonable opinion of
the Administrative Agent, desirable to create valid, perfected first
priority Liens against the improvements purported to be covered thereby;
and
(e) such other certifications (including flood hazard
certifications), approvals, opinions or documents as the Administrative
Agent may reasonably request.
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As used above, "San Diego Property" means the real property owned by Operations
and located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and "California
Property" means, collectively, the San Diego Property and all other real
property now owned or hereafter acquired by an Obligor and located in the State
of California.
SECTION 8.1.9. Future Subsidiaries. Without limiting the effect of any
provision contained herein (including Section 8.2.5), upon any Person becoming
either a direct or indirect Subsidiary of the Parent (other than an SPC or a
Non-Material Subsidiary),
(a) in the event such Person is a Subsidiary which is not a Foreign
Subsidiary, such Person (i) if not theretofore a party to the Security
Agreement, shall execute and deliver to the Administrative Agent a
supplement to the Security Agreement for the purpose of becoming a grantor
thereunder, which supplement shall be substantially in the form attached to
the Security Agreement and (ii) to the extent required under Section 8.2.2,
shall execute and deliver to the Parent or any of its applicable
Subsidiaries an Intercompany Note in a principal amount not less than the
aggregate amount such Person may borrow from the Parent or such Subsidiary
(which Intercompany Note shall be endorsed and pledged to the
Administrative Agent pursuant to the Pledge Agreement (in accordance with
the succeeding paragraph));
(b) the Parent or, if not the Parent, the Subsidiary of the Parent
(provided such Subsidiary is not a Foreign Subsidiary exempted from the
requirement of becoming a Subsidiary Guarantor as a result of the proviso
to the succeeding clause (c)) that will own shares of the Capital Stock of
such Person (which Subsidiary, if not theretofore a party to the Pledge
Agreement, shall execute and deliver to the Administrative Agent a
supplement to the Pledge Agreement for the purpose of becoming a pledgor
thereunder, which supplement shall be substantially in the form attached to
the Pledge Agreement) shall, pursuant to the Pledge Agreement (as further
supplemented, if necessary, by a Foreign Pledge Agreement), pledge to the
Administrative Agent (i) all of the outstanding shares of the Capital Stock
of such Person owned by the Parent or such Subsidiary, together with (A)
undated stock powers or equivalent instruments of transfer satisfactory to
the Administrative Agent for such certificates or such other evidence of
beneficial ownership, executed in blank (or, if any such shares of Capital
Stock are uncertificated, confirmation and evidence satisfactory to the
Administrative Agent that the security interest in such uncertificated
securities has been perfected by the Administrative Agent in accordance
with the U.C.C. or any similar or local law which may be applicable) and
(B) executed copies of Uniform Commercial Code financing statements naming
the Parent or such Subsidiary as the debtor and the Administrative Agent as
the secured party, suitable for filing under the Uniform Commercial Code of
all jurisdictions as may be necessary or, in the reasonable opinion of the
81
Administrative Agent, desirable to perfect the security interest of the
Administrative Agent in the interests of the Parent or such Subsidiary in
such Person pledged pursuant to such Pledge Agreement (and such Foreign
Pledge Agreement, if applicable); provided, however, that the Parent or
such Subsidiary shall not be required to pledge the shares of Capital Stock
of a Foreign Subsidiary required to be pledged hereunder (1) if the
Required Lenders have otherwise agreed or (2) to the extent such pledge
could reasonably be expected to constitute at any time an investment of
earnings in United States property under Section 956 (or any successor
provision thereto) of the Code that would increase by a material amount the
amount of United States federal income tax that would otherwise be payable
by the Parent and the other members of the affiliated group of corporations
filing a consolidated federal income tax return with the Parent in the
absence of such pledge, as determined by the Parent based on existing
financial statements and on financial projections prepared in good faith
based upon assumptions which the Parent believes to be reasonable and as
evidenced by a certificate of the chief financial Authorized Officer of the
Parent that is accepted in writing by the Administrative Agent (such
acceptance not to be unreasonably withheld and which acceptance shall be
deemed to have occurred in the absence of a written notice from the
Administrative Agent that is given to the Parent within five Business Days
of the Administrative Agent's receipt of such certificate, indicating the
reasons for not accepting such certificate); provided further, however,
that, in the event of any change in, or the introduction, adoption,
effectiveness, interpretation, reinterpretation or phase-in of, any law or
regulation, directive or guideline of any governmental authority (a "Law
Change") that could reasonably be expected to alter the conclusion set
forth in such certificate, the Administrative Agent or the Required Lenders
may request the Parent to deliver another such certificate in light of such
event and, in the absence of the delivery and acceptance of such
certificate as provided above, require the pledge of such shares of Capital
Stock; but provided further, however, that, in the event that any Law
Change occurs subsequent to the date that any such pledge of such shares of
Capital Stock is granted, and as a result thereof, such pledge could then
reasonably be expected to increase by a material amount the amount of
United States federal income tax that would otherwise be payable by the
Parent and the other members of the affiliated group of corporations filing
a consolidated federal income tax return with the Parent in the absence of
such pledge, then, such pledge shall be released upon the written
acceptance by the Administrative Agent of a certificate of the chief
financial Authorized Officer of the Parent detailing the adverse effect of
such subsequent Law Change (such acceptance not to be unreasonably withheld
and which acceptance shall be deemed to have occurred in the absence of a
written notice from the Administrative Agent that is given to the Parent
within five Business Days of the Administrative Agent's receipt of such
certificate, indicating the reasons for not accepting such certificate) and
(ii) if applicable, the Intercompany Note referred to in the preceding
clause (a)(ii);
(c) if not theretofore a party to the Subsidiary Guaranty, such
Person shall execute and deliver to the Administrative Agent a supplement
to the Subsidiary Guaranty for the purpose of becoming a guarantor
thereunder, which supplement shall be substantially in the form attached to
the Subsidiary Guaranty; provided, however, that, in the event such
Subsidiary is a Foreign Subsidiary, such Subsidiary shall not be required
to become a guarantor under the Subsidiary Guaranty (1) if the Required
Lenders have otherwise agreed or (2) to the extent such guaranty could
reasonably be expected to constitute at any time an investment of earnings
in United States property under Section 956 (or any successor provision
thereto) of the Code that would increase the amount of United States
federal income tax that would otherwise be payable by the Parent and the
other members of the affiliated group of corporations filing a consolidated
federal income tax return with the Parent in the absence of such guaranty,
as determined by the Parent based on existing financial statements and on
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financial projections prepared in good faith based upon assumptions which
the Parent believes to be reasonable and as evidenced by a certificate of
the chief financial Authorized Officer of the Parent that is accepted in
writing by the Administrative Agent (such acceptance not to be unreasonably
withheld and which acceptance shall be deemed to have occurred in the
absence of a written notice from the Administrative Agent that is given to
the Parent within five Business Days of the Administrative Agent's receipt
of such certificate, indicating the reasons for not accepting such
certificate); provided further, however, that, in the event of any Law
Change that could reasonably be expected to alter the conclusion set forth
in such certificate, the Administrative Agent or the Required Lenders may
request the Parent to deliver another such certificate in light of such
event and, in the absence of the delivery and acceptance of such
certificate as provided above, require the execution and delivery by such
Person of such supplement to the Subsidiary Guaranty; but provided further,
however, that, in the event that any Law Change occurs subsequent to the
date that any such supplement to the Subsidiary Guaranty becomes effective,
and as a result thereof, such guaranty could then reasonably be expected to
increase by a material amount the amount of United States federal income
tax that would otherwise be payable by the Parent and the other members of
the affiliated group of corporations filing a consolidated federal income
tax return with the Parent in the absence of such guaranty, then, such
guarantee shall cease to be effective following the written acceptance by
the Administrative Agent of a certificate of the chief financial Authorized
Officer of the Parent detailing the adverse effect of such subsequent Law
Change (such acceptance not to be unreasonably withheld and which
acceptance shall be deemed to have occurred in the absence of a written
notice from the Administrative Agent that is given to the Parent within
five Business Days of the Administrative Agent's receipt of such
certificate, indicating the reasons for not accepting such certificate);
(d) the Administrative Agent shall have received from each such
Person certified copies of Uniform Commercial Code Requests for Information
or Copies (Form UCC-11), or a similar search report certified by a party
acceptable to the Administrative Agent, dated a date reasonably near (but
prior to) the date of any such Person becoming a direct or indirect
Subsidiary of the Person, listing all effective financing statements, tax
liens and judgment liens which name such Person as the debtor and which are
filed in the jurisdictions in which filings are to be made pursuant to this
Agreement and the other Loan Documents, and in such other jurisdictions as
the Administrative Agent may reasonably request, together with copies of
such financing statements (none of which (other than financing statements
(i) filed pursuant to the terms hereof in favor of the Administrative
Agent, if such Form UCC-11 or search report, as the case may be, is current
enough to list such financing statements, (ii) being terminated pursuant to
termination statements that are to be delivered on or prior to the date
such Person becomes such Subsidiary or (iii) in respect of Liens permitted
under Section 8.2.3) shall cover any of the collateral described in the
Security Agreement); and
(e) the Administrative Agent shall have received from each such
Person executed copies of U.C.C. financing statements naming each such
Person as the debtor and the Administrative Agent as the secured party,
suitable for filing under the U.C.C. of all jurisdictions as may be
necessary or, in the reasonable opinion of the Administrative Agent,
desirable to perfect the security interest of the Administrative Agent
pursuant to the Security Agreement entered into by such Person,
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together, in each case, with such opinions of legal counsel as the
Administrative Agent may reasonably request, which legal opinions shall be in
form and substance reasonably satisfactory to the Administrative Agent.
SECTION 8.2. Negative Covenants. Each Borrower agrees with the
Administrative Agent, the Issuer and each Lender that, until all Commitments
have terminated, all Letters of Credit shall have terminated or expired and all
Obligations have been paid and performed in full, each Borrower will perform the
obligations set forth in this Section 8.2.
SECTION 8.2.1. Business Activities. Each Borrower will not, and will not
permit any of its Subsidiaries to, engage in any business activity, except
(a) those business activities described in the third recital (and
such activities as may be incidental or related thereto (including the
operation of commercial parking lots)); provided, however, that
(i) the Borrowers and their respective Subsidiaries may not
purchase passenger automobiles, shuttle buses, vans and light and
medium duty trucks for the purpose of reselling such motor vehicles to
their franchisees with financing provided by the Borrowers and their
Subsidiaries (including, and together with, such financing comprised
of leasing arrangements which would, under GAAP, be classified as
capitalized leases (for purposes of this paragraph, "finance
leases")), except to the extent
(A) the number of such motor vehicles subject to such
program do not exceed at any time the lesser of (x) 10,000 of
such motor vehicles and (y) 7.0% of the number of motor vehicles
in the motor vehicle fleet of the Parent and its Subsidiaries as
of the last day of the most recently completed month, and
(B) (1) subject to any security interest described in the
exception to the immediately succeeding subclause (2), the
applicable Borrower or Subsidiary has a first priority perfected
security interest in such motor vehicles (including by means of a
notation of such Borrower's or Subsidiary's Lien on the
certificate of title relating to such motor vehicles to the
extent necessary to perfect such Lien) and (2) except in the case
in which such financing is provided through finance leases and
the acquisition by the applicable Borrower or Subsidiary of the
motor vehicles subject to such finance leases was financed by a
Person which has a purchase money security interest in such motor
vehicles, the Administrative Agent has received an assignment of
such security interest as well as a first priority perfected
security interest in the rights of such Borrower or Subsidiary
under the agreements and documents entered into and delivered in
connection with such sale and the financing thereof (but not a
notation of the Administrative Agent's Lien on the certificate of
title relating to such motor vehicles);
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(ii) the Borrowers and their respective Subsidiaries may only
engage in fleet leasing of vehicles to Persons other than franchisees
so long as the aggregate amount of revenues therefrom in any Fiscal
Year does not exceed 21/2% of the aggregate amount of the consolidated
revenues of the Parent and its Subsidiaries in the Fiscal Year
preceding such Fiscal Year); and
(iii) Thrifty Car Sales and its Subsidiaries may not operate
locations in the United States and Canada (A) from which they sell at
any time more than (1) for any one location, 200 vehicles or (2) for
all locations, 1500 vehicles that, in each case, were used in a
business other than the Parent's other businesses and (B) acquired
from franchisees of the Thrifty Car Sale Franchise Business unless
such locations were acquired (1) in the ordinary course of business
consistent with the past practice of Thrifty acquiring franchisees of
its rent-a-car business in circumstances where such franchisees have
discontinued operations and Thrifty acquires such franchisee's
operation with the intention of re-franchising the same and (2) in
accordance with the terms of this Agreement; and
(b) the providing of telemarketing services.
SECTION 8.2.2. Indebtedness. Each Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume or suffer to exist or
otherwise become or be liable in respect of any Indebtedness, other than,
without duplication, the following:
(a) Indebtedness in respect of this Agreement, including the Loans
and other Obligations;
(b) [INTENTIONALLY OMITTED];
(c) Indebtedness existing as of the Amendment Effective Date which is
identified in Item 8.2.2(c) ("Ongoing Indebtedness") of the Disclosure
Schedule and extensions, renewals, refinancings and replacements thereof;
provided, however, that after giving effect to any such extension, renewal,
refinancing or replacement, (i) the principal amount of outstanding
Indebtedness is not increased above the amount reflected in Item 8.2.2(c)
of the Disclosure Schedule, (ii) neither the tenor nor the average life
thereof is reduced, (iii) the respective obligor or obligors shall be the
same on the Indebtedness outstanding as a result of any such extension,
renewal, refinancing or replacement as on the Indebtedness being extended,
renewed, refinanced or replaced, (iv) the security, if any, for the
Indebtedness outstanding as a result of any such extension, renewal,
refinancing or replacement shall be the same as that for the Indebtedness
being extended, renewed, refinanced or replaced (except to the extent that
less security is granted to holders of the Indebtedness outstanding as a
result of any such extension, renewal, refinancing or replacement), (v) the
holders of the Indebtedness outstanding as a result of any such extension,
renewal, refinancing or replacement are not afforded covenants, defaults,
rights or remedies more materially burdensome to the obligor or obligors
than those contained in the Indebtedness being extended, renewed,
refinanced or replaced and (vi) the Indebtedness outstanding as a result of
any such extension, renewal, refinancing or replacement is subordinated to
the same degree, if any, as the Indebtedness being extended, renewed,
refinanced or replaced;
85
(d) Indebtedness in respect of Surety Bonds in an aggregate amount
not to exceed $175,000,000;
(e) [INTENTIONALLY OMITTED];
(f) [INTENTIONALLY OMITTED];
(g) Vehicle Debt;
(h) Indebtedness in respect of Demand Capitalization Notes identified
in Item 8.2.2(h) ("Existing Demand Capitalization Notes") of the Disclosure
Schedule and Demand Capitalization Notes issued following the Amendment
Effective Date so long as the Administrative Agent is satisfied that such
Demand Capitalization Notes are structured in a manner similar to the
Demand Capitalization Notes identified in Item 8.2.2(h) of the Disclosure
Schedule;
(i) Indebtedness of Foreign Subsidiaries incurred (A) for working
capital purposes and (B) in respect of letters of credit, to the extent the
aggregate principal amount of such working capital Indebtedness, together
with the aggregate Stated Amount and outstanding reimbursement obligations
with respect to such letters of credit, does not exceed at any time
outstanding $20,000,000 (exclusive of any Investments in such Foreign
Subsidiaries permitted pursuant to clause (g) of Section 8.2.5);
(j) Indebtedness in an aggregate principal amount not to exceed
$10,000,000 at any time outstanding which is incurred by any Borrower or
any of its Subsidiaries to a vendor of any assets permitted to be acquired
pursuant to Section 8.2.7 to finance its acquisition of such assets;
(k) unsecured Indebtedness incurred in the ordinary course of
business (excluding Indebtedness incurred through the borrowing of money or
Contingent Liabilities);
(l) Indebtedness in respect of Capitalized Lease Liabilities to the
extent permitted by Section 8.2.7;
(m) Hedging Obligations of the Parent or any of its Subsidiaries
pursuant to agreements designed to protect the Parent or any of its
Subsidiaries against fluctuations in interest rates in respect of
Indebtedness of the Parent or such Subsidiary and not entered into for
purposes of speculation;
(n) Hedging Obligations of a Subsidiary of the Parent pursuant to
agreements designed to protect such Subsidiary or any of its Subsidiaries
against fluctuations in currency values and entered into in the ordinary
course of business and not for purposes of speculation;
86
(o) Indebtedness of the Parent owing to a Subsidiary Borrower or a
Subsidiary Guarantor pursuant to an Investment of such Subsidiary Borrower
or such Subsidiary Guarantor permitted (i) pursuant to clause (e) of
Section 8.2.5 or to any other Subsidiary of the Parent pursuant to clause
(i) of Section 8.2.5 or (ii) evidenced by a promissory note in the
principal amount of $51,076,666 payable to Thrifty in connection with the
sale of the Capital Stock of RCFC to the Parent;
(p) Indebtedness of any Subsidiary Borrower or any Subsidiary
Guarantor owing to the Parent; provided that such Indebtedness is evidenced
by an Intercompany Note pledged to the Administrative Agent pursuant to the
terms of the Pledge Agreement;
(q) Indebtedness of a Borrower or any Subsidiary of a Borrower owing
to a Subsidiary of a Borrower that is not a Subsidiary Borrower or a
Subsidiary Guarantor; provided that such Indebtedness (other than
Indebtedness of a Borrower owing to RCFC in respect of amounts advanced by
RCFC to a Borrower) constitutes Subordinated Intercompany Debt;
(r) Indebtedness of Subsidiary Borrowers or Subsidiary Guarantors
that are Wholly Owned Subsidiaries of the Parent owing to a Subsidiary
Borrower or a Subsidiary Guarantor; provided, however, that, in the event
the obligor in respect of such Indebtedness is a Subsidiary of the Parent
that is neither a Subsidiary Borrower nor a Subsidiary of a Subsidiary
Borrower, such Indebtedness shall not be subordinated to any other
liabilities of such obligor and shall be evidenced by an Intercompany Note
pledged to the Administrative Agent pursuant to the terms of the Pledge
Agreement;
(s) Indebtedness of Subsidiaries of the Parent owing to a Borrower or
a Subsidiary Guarantor to the extent permitted by clause (g) of Section
8.2.5;
(t) Indebtedness of a Person that becomes a Subsidiary of a Borrower
pursuant to a Permitted Business Acquisition or Indebtedness that is
assumed pursuant to an acquisition of assets constituting a Permitted
Business Acquisition by the acquirer of such assets (in each case, other
than Indebtedness solely consisting of Vehicle Debt), to the extent (i)
such Indebtedness existed at the time of such Permitted Business
Acquisition and was not created in contemplation thereof, (ii) such
Indebtedness is not guaranteed by any other Obligor and (iii) the aggregate
principal amount of all such Indebtedness outstanding at any time does not
exceed $20,000,000;
(u) Subordinated Debt of the Parent, to the extent (i) the terms of
such Indebtedness are consented to by the Administrative Agent (provided
such terms shall not include any scheduled principal payment (including any
sinking fund requirement) prior to April 1, 2010, any financial covenants
and any cross-default (other than cross-acceleration) to other
Indebtedness) and (ii) the aggregate principal amount of all such
Indebtedness outstanding at any time does not exceed $100,000,000;
87
(v) Indebtedness which refinances Indebtedness permitted by clauses
(h), (t) and (u) above; provided, however, that after giving effect to such
refinancing, (i) the principal amount of outstanding Indebtedness is not
increased, (ii) neither the tenor nor the average life thereof is reduced,
(iii) the respective obligor or obligors shall be the same on the
refinancing Indebtedness as on the Indebtedness being refinanced, (iv) the
security, if any, for the refinancing Indebtedness shall be the same as
that for the Indebtedness being refinanced (except to the extent that less
security is granted to holders of refinancing Indebtedness), (v) the
holders of refinancing Indebtedness are not afforded covenants, defaults,
rights or remedies more burdensome to the obligor or obligors than those
contained in the Indebtedness being refinanced and (vi) the refinancing
Indebtedness is subordinated to the same degree, if any, as the
Indebtedness being refinanced; and
(w) other Indebtedness of the Parent and its Subsidiaries in an
aggregate amount not to exceed (i) during the 2004 Fiscal Year,
$25,000,000, (ii) during the 2005 Fiscal Year, $30,000,000, or (iii) during
the 2006 Fiscal Year or any Fiscal Year thereafter, $35,000,000;
provided, however, that no Indebtedness otherwise permitted by clauses (i), (j),
(l), (m), (n), (s), (t), (u) or (w) shall be permitted if, after giving effect
to the incurrence thereof, any Default shall have occurred and be continuing.
SECTION 8.2.3. Liens. Each Borrower will not, and will not permit any
of its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon
any of its property, revenues or assets, whether now owned or hereafter
acquired, except:
(a) Liens securing payment of the Obligations, granted pursuant to
any Loan Document;
(b) [INTENTIONALLY OMITTED];
(c) Liens granted prior to the Amendment Effective Date to secure
payment of Indebtedness of the type permitted and described in clause (c)
of Section 8.2.2 and extensions and renewals of such Liens so long as such
any such extension or renewal does not relate to any collateral (or
replacement thereof) not covered by the Lien as in effect immediately prior
to any such extension or renewal;
(d) Liens granted to secure payment of Vehicle Debt and covering only
Vehicles financed by such Vehicle Debt, Excluded Receivables relating to
such Vehicles, rights under the Demand Capitalization Notes and proceeds
thereof, cash (and investments thereof in Cash Equivalent Investments) of
an SPC arising from the operations of such SPC and deposit accounts with
respect to such cash and Cash Equivalent Investments, including Liens
granted by Dollar Thrifty Funding in Vehicle Debt issued to it by RCFC (and
in the assets of RCFC securing such Vehicle Debt);
(e) [INTENTIONALLY OMITTED];
(f) [INTENTIONALLY OMITTED];
(g) Liens granted to secure payment of Indebtedness of the type
permitted and described in clause (i) of Section 8.2.2 and covering only
assets of the Foreign Subsidiary obligated under such Indebtedness;
88
(h) Liens granted to secure payment of Indebtedness of the type
permitted and described in clause (j) of Section 8.2.2 and covering only
those assets acquired with the proceeds of such Indebtedness;
(i) Liens granted to secure payment of Indebtedness (other than
Subordinated Intercompany Debt) of the type permitted and described in
clause (o) (to the extent payable to a Subsidiary Borrower), (q), (r) or
(s) of Section 8.2.2;
(j) Liens existing on specific assets at the time acquired by a
Subsidiary of the Parent pursuant to a Permitted Business Acquisition, to
the extent (i) such Liens existed at the time of such acquisition and were
not created in contemplation thereof, (ii) such Liens do not encumber any
other asset of the Parent or any other Subsidiary of the Parent and (iii)
the Indebtedness secured thereby is of the type permitted and described in
clause (t) of Section 8.2.2;
(k) Liens for taxes, assessments or other governmental charges or
levies not at the time delinquent or thereafter payable without penalty or
being diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have been set aside
on its books;
(l) Liens of carriers, warehousemen, mechanics, materialmen and
landlords incurred in the ordinary course of business for sums not overdue
or being diligently contested in good faith by appropriate proceedings and
for which adequate reserves in accordance with GAAP shall have been set
aside on its books;
(m) Liens incurred in the ordinary course of business (i) in
connection with workmen's compensation, unemployment insurance or other
forms of governmental insurance or benefits or (ii) to secure (A)
performance of tenders, statutory obligations, leases and contracts (other
than for borrowed money) entered into in the ordinary course of business,
(B) obligations on surety or appeal bonds or (C) obligations under leases
of Vehicles not constituting Capitalized Lease Liabilities to the extent
such Vehicles do not exceed the Applicable Percentage of the aggregate
number of Vehicles utilized by the Subsidiary Borrowers and their
Subsidiaries and such Liens are limited to the receivables, accounts and
other rights arising from the rental, sale or other disposition of such
Vehicles (for purposes of this clause (m), the "Applicable Percentage"
shall mean (x) if the Net Worth of the Parent as of the last day of the
most recently completed Fiscal Quarter with respect to which, pursuant to
Section 8.1.1 of the Amended and Restated Credit Agreement or Section
8.1.1, financial statements (and the related Compliance Certificate) have
been delivered by the Parent is equal to (or greater than) 115% of
Threshold Net Worth, 15%, (y) if the Net Worth of the Parent as of the last
day of the most recently completed Fiscal Quarter with respect to which,
pursuant to Section 8.1.1 of the Amended and Restated Credit Agreement or
Section 8.1.1, financial statements (and the related Compliance
Certificate) have been delivered by the Parent is equal to (or greater
than) 110% of, but less than 115% of, Threshold Net Worth, 12%, and (z)
otherwise, 8%; provided, that any decrease in the Applicable Percentage
shall not take effect until the forty-fifth day following the day the
Parent has delivered the financial statements (and the related Compliance
Certificate) that results in such decrease);
89
(n) judgment Liens in existence less than 30 days after the entry
thereof or with respect to which execution has been stayed or the payment
of which is covered in full (subject to a customary deductible) by
insurance maintained with responsible insurance companies; and
(o) Liens with respect to minor imperfections of title and easements,
rights-of-way, restrictions, reservations, permits, servitudes and other
similar encumbrances on real property and fixtures which do not detract in
any material respect from the value thereof or impair in any material
respect the use thereof by the Parent and its Subsidiaries in the ordinary
course of their operation;
(p) Liens consisting of any encumbrance or restriction on any Capital
Stock of a joint venture that is not a Subsidiary of any Borrower
(including any Subsidiary of any Borrower), to the extent (i) such Lien is
in favor of, or for the benefit of, such joint venture or any Person or
Persons owning more than 25% of the Capital Stock of such joint venture and
(ii) such Lien secures obligations to such joint venture of the Subsidiary
Borrower or the Subsidiary of a Subsidiary Borrower owning Capital Stock of
such joint venture; and
(q) other Liens securing Indebtedness in an aggregate amount not to
exceed $1,000,000 at any time outstanding (it being acknowledged that any
such Liens shall not cover any property, revenues or assets constituting
Collateral (as such term is defined in the Pledge Agreement) or
Intellectual Property Collateral (as such term is defined in the Security
Agreement)).
SECTION 8.2.4. Financial Condition. No Borrower will permit:
(a) the Leverage Ratio, at any time, to be greater than the ratio set
forth opposite the applicable period set forth below:
Fiscal Quarter Ratio
The last day of the first Fiscal 3.50:1.00
Quarter of the 2004 Fiscal
Year
From (but excluding) the last day 3.25:1.00
of the first Fiscal Quarter
of the 2004 Fiscal year (and
at all times thereafter)
(b) the Fixed Charge Coverage Ratio, as of the last day of each Fiscal
Quarter, commencing with the first Fiscal Quarter of the 2004 Fiscal Year, to be
less than 1.20:1.00.
90
SECTION 8.2.5. Investments. Each Borrower will not, and will not permit
any of its Subsidiaries to, make, incur, assume or suffer to exist any
Investment in any other Person, except:
(a) Investments existing on the Amendment Effective Date and
identified in Item 8.2.5(a) ("Ongoing Investments") of the Disclosure
Schedule and extensions, replacements of Investments in the same Person or
renewals thereof (provided that no such extension, replacement or renewal
shall be permitted if it would (x) increase the amount of such Investment
at the time of such extension, replacement or renewal above the amount
reflected in Item 8.2.5(a) of the Disclosure Schedule or (y) result in a
Default or Event of Default);
(b) Cash Equivalent Investments;
(c) Investments which are Permitted Business Acquisitions;
(d) without duplication, Investments permitted as Capital
Expenditures pursuant to Section 8.2.7;
(e) (i) Investments by a Subsidiary Borrower or a Subsidiary
Guarantor in the Parent (A) by way of contributions to capital or the
making of loans or advances, to the extent the amount of such Investment
would be permitted as a dividend pursuant to clause (a) of Section 8.2.6 at
the time of such Investment and (B) by way of advances that are pursuant to
the Parent's cash management system for it and its Subsidiaries and (ii)
Investments by a direct Subsidiary of the Parent (other than a Subsidiary
Borrower) in the Parent;
(f) Investments by a Subsidiary Borrower or a Subsidiary Guarantor
in Subsidiary Borrowers and Subsidiary Guarantors that are Wholly Owned
Subsidiaries of a Borrower or a Subsidiary Guarantor, or, to the extent
permitted by clause (r) of Section 8.2.2, in a Subsidiary Guarantor that is
neither a Subsidiary Borrower nor a Subsidiary of a Subsidiary Borrower;
(g) Investments by a Borrower or a Subsidiary Guarantor in
Subsidiaries of the Parent that are not permitted by the preceding clause
(f) or succeeding clause (h) (exclusive of such Investments existing as of
the date hereof and identified in Item 8.2.5(a) ("Ongoing Investments") of
the Disclosure Schedule), by way of contributions to capital, the making of
loans or advances or the incurrence of Contingent Liabilities, to the
extent the aggregate amount of such Investments (i) in such Subsidiaries
(other than RCFC) do not exceed $35,000,000 at any time outstanding and
(ii) in RCFC are for the purpose of satisfying any required credit
enhancement of any Segregated Series of Notes (as such terms are defined in
the Base Indenture) and do not exceed $50,000,000 (or, in the
Administrative Agent's sole and absolute discretion, an amount in excess of
$50,000,000 which does not exceed $100,000,000) at any time outstanding;
(h) Investments by the Parent in a Subsidiary Borrower or any
Subsidiary Guarantor;
91
(i) Investments by a Subsidiary of the Parent that is neither a
Subsidiary Borrower nor a Subsidiary Guarantor in the Parent or any
Subsidiary of the Parent;
(j) Investments evidenced by the Demand Capitalization Notes
permitted by clause (h) of Section 8.2.2;
(k) Investments in franchisees of Thrifty, Thrifty Car Sales or
Dollar
(i) by way of (A) guaranties or (B) obtaining letters of
credit for the benefit of beneficiaries selected by any such
franchisees and with respect to which any such franchisee is the
account party or is benefited and the Parent or any of its
Subsidiaries is obligated to reimburse the issuer thereof for drawings
thereunder, in each case, in respect of obligations of such
franchisees in respect of the leasing by such franchisees of real or
personal property under arrangements which would not, under GAAP, be
classified as capitalized leases, to the extent the sum of (x) the
guaranteed obligations payable thereunder (other than any portion of
rental payments that are determined on the basis of revenues generated
by the property subject to such leases or by the operations conducted
on the property subject to such leases) and (y) the aggregate stated
amounts of such letters of credit, together with unreimbursed
obligations in respect thereof, does not exceed at any time
$10,000,000 (exclusive of Investments permitted by clause (a) above);
(ii) by way of the making of loans or advances to such
franchisees or guaranties for their benefit or otherwise to the extent
such Investments do not exceed in the aggregate at any time
$12,000,000 (exclusive of Investments permitted by clause (a) above);
or
(iii) to the extent permitted under clause (a)(i) of Section
8.2.1;
provided, however, that the aggregate amount of the Investments made
pursuant to clauses (k)(i) and (k)(ii) that were funded in cash and that
are outstanding at any time does not exceed $5,000,000;
(l) other Investments (except Investments which are Permitted
Business Acquisitions or Investments of the type described in clause (g))
in an aggregate amount at any time not to exceed $15,000,000;
provided, however, that
(i) any Investment which when made complies with the
requirements of the definition of the term "Cash Equivalent
Investment" may continue to be held notwithstanding that such
Investment if made thereafter would not comply with such requirements;
and
(ii) no Investment otherwise permitted by clause (c), (e), (g),
(k) or (l) shall be permitted to be made if, immediately before or
after giving effect thereto, any Default shall have occurred and be
continuing.
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SECTION 8.2.6. Restricted Payments, etc. On and at all times after the
Prior Amendment Effective Date:
(a) neither Subsidiary Borrower will declare, pay or make any
Distribution with respect to any shares of its Capital Stock (now or
hereafter outstanding) or on any warrants, options or other rights with
respect to any such shares of Capital Stock (now or hereafter outstanding)
or apply, or permit any of its Subsidiaries to apply, any of its funds,
property or assets to the purchase, redemption, sinking fund or other
retirement of, or agree or permit any of its Subsidiaries to purchase or
redeem, any shares of any class of Capital Stock (now or hereafter
outstanding) of such Subsidiary Borrower, or warrants, options or other
rights with respect to any such shares of Capital Stock (now or hereafter
outstanding) of such Subsidiary Borrower; provided, however, that the
Subsidiary Borrowers may (i) make Distributions to the Parent to the extent
that it is necessary to permit the Parent to pay taxes based on income and
franchise taxes and other similar licensure expenses and other actual and
reasonable general administrative costs and expenses attributable to the
operations of the Parent (including indemnity obligations payable to
directors and officers of the Parent who have acted in good faith), (ii)
make Distributions to the Parent to the extent it is necessary to permit
the Parent to satisfy a payment demand in respect of a Demand
Capitalization Note and (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) the Parent will not declare, pay or make any Distribution with
respect to any shares of its Capital Stock (now or hereafter outstanding)
or on any warrants, options or other rights with respect to any such shares
of Capital Stock (now or hereafter outstanding) or apply, or permit any of
its Subsidiaries to apply, any of its funds, property or assets to the
purchase, redemption, sinking fund or other retirement of, or agree or
permit any of its Subsidiaries to purchase or redeem, any shares of any
class of Capital Stock (now or hereafter outstanding) of the Parent, or
warrants, options or other rights with respect to any such shares of
Capital Stock (now or hereafter outstanding) of the Parent; provided,
however, that the Parent may declare, pay and make cash Distributions to,
and the Parent (or any of its Subsidiaries) may 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 in any
Fiscal Year, so long as
(i) both before and after giving effect to any such payment,
purchase or redemption, no Default shall have occurred and be
continuing,
(ii) the aggregate amount of
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(A) such Distribution to be made by the Parent and its
Subsidiaries pursuant to this clause (b), when added to the
aggregate amount of all such Distributions during the Fiscal Year
in which such Distribution would be made, does not exceed the
amount set forth below opposite such Fiscal Year
Fiscal Year Amount
----------- ------
2004 Fiscal Year The lesser of (i) 25% of Excess Cash Flow for the
2003 Fiscal Year and (ii) $17,000,000
2005 Fiscal Year The lesser of (i) 25% of Excess Cash Flow for the
2004 Fiscal Year and (ii) $20,000,000
2006 Fiscal Year The lesser of (i) 25% of Excess Cash Flow for the
2005 Fiscal Year and (ii) $23,000,000
2007 Fiscal Year The lesser of (i) 25% of Excess Cash Flow for the
2006 Fiscal Year and (ii) $26,000,000
2008 Fiscal Year The lesser of (i) 25% of Excess Cash Flow for the
2007 Fiscal Year and (ii) $29,000,000
2009 Fiscal Year The lesser of (i) 6.25% of Excess Cash Flow for
the 2008 Fiscal Year and (ii) $8,000,000; or
(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 in any
Fiscal Year shall not exceed $50,000,000 and in the aggregate
during the term of this Agreement shall not exceed $150,000,000;
(c) neither Subsidiary Borrower will permit any of its Subsidiaries
to declare, pay or make any Distribution with respect to any shares of
Capital Stock (now or hereafter outstanding) of any such Subsidiary (other
than (x) with respect to any such shares held by such Subsidiary Borrower
or any of its Wholly Owned Subsidiaries and (y) with respect to such shares
which are shares of common stock, so long as such Distribution is made on a
pro rata basis, consistent with the ownership interests in such shares of
common stock, to the owners of such shares of common stock) or apply any of
its funds, property or assets to the purchase, redemption, sinking fund or
other retirement of, or agree to purchase or redeem, any shares of any
class of Capital Stock (now or hereafter outstanding) of any such
Subsidiary, or warrants, options or other rights with respect to any such
shares of Capital Stock (now or hereafter outstanding) of any such
Subsidiary (other than any such shares, warrants, options or other rights
held by such Subsidiary Borrower or any of its Wholly Owned Subsidiaries);
94
(d) each Borrower will not, and will not permit any of its
Subsidiaries to
(i) make any payment or prepayment of principal of any
Subordinated Debt (including any reimbursement obligation in respect
of a letter of credit) or make any payment of interest on any
Subordinated Debt on any day other than the stated, scheduled date for
such payment or prepayment set forth in the documents and instruments
memorializing such Subordinated Debt, or which would violate the
subordination provisions applicable such Subordinated Debt; or
(ii) redeem, purchase or defease, any Subordinated Debt; and
(e) each Borrower will not, and will not permit any of its
Subsidiaries to, make any deposit for any of the foregoing purposes.
SECTION 8.2.7. Capital Expenditures, etc. Each Borrower will not, and
will not permit any of its Subsidiaries to, make or commit to make Capital
Expenditures in any Fiscal Year, except (a) Capital Expenditures for the
acquisition of Vehicles and (b) other Capital Expenditures which do not
aggregate in any Fiscal Year set forth below the amount set forth opposite such
Fiscal Year:
Fiscal Year Amount
----------- ------
2004 $50,000,000
2005 50,000,000
2006 50,000,000
2007 60,000,000
2008 60,000,000
2009 30,000,000
SECTION 8.2.8. Take or Pay Contracts. Each Borrower will not, and will
not permit any of its Subsidiaries to, enter into or be a party to any
arrangement for the purchase of materials, supplies, other property or services
if such arrangement by its express terms requires that payment be made by such
Borrower or such Subsidiary regardless of whether such materials, supplies,
other property or services are delivered or furnished to it.
95
SECTION 8.2.9. Consolidation, Merger, etc. Each Borrower will not, and
will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate
with, or merge into or with, any other Person, or otherwise enter into or
consummate any Business Acquisition not constituting an Investment, except
(a) (i) any Domestic Subsidiary (other than a Subsidiary Borrower)
may liquidate or dissolve voluntarily into, and may merge with and into,
the Parent or any Wholly Owned Subsidiary of the Parent that is a Domestic
Subsidiary, and any Foreign Subsidiary may liquidate or dissolve
voluntarily into, and may merge with and into, any Wholly Owned Subsidiary
of the Parent that is a Foreign Subsidiary or a Domestic Subsidiary (so
long as, in the case of a Domestic Subsidiary, such Domestic Subsidiary is
a parent of such Foreign Subsidiary and such transaction will not result in
any material increase in the liabilities of such Domestic Subsidiary);
provided that any Subsidiary Guarantor may only liquidate or dissolve
voluntarily into, and may only merge with and into, a Borrower or any other
Subsidiary Guarantor that is a Wholly Owned Subsidiary of the Parent, and
(ii) the assets of any Domestic Subsidiary may be purchased or
otherwise acquired by the Parent or any Wholly Owned Subsidiary of the
Parent that is a Domestic Subsidiary, and the assets of any Foreign
Subsidiary may be purchased or otherwise acquired by any Wholly Owned
Subsidiary of the Parent that is a Foreign Subsidiary; provided that
(A) the assets of any Subsidiary Guarantor to be purchased or
otherwise acquired pursuant to the preceding exception may only be so
purchased or otherwise acquired by a Borrower or another Subsidiary
Guarantor that is a Wholly Owned Subsidiary of the Parent and (B) no
substantial part of the assets of any Subsidiary Borrower may be
purchased or otherwise acquired pursuant to the preceding exception;
and
(b) so long as no Default has occurred and is continuing or would
occur after giving effect thereto, Operations or any of its Subsidiaries
may enter into or consummate any Excepted Acquisition and the Parent or any
of its Subsidiaries may enter into or consummate any other Permitted
Business Acquisition.
SECTION 8.2.10. Asset Dispositions, etc. Each Borrower will not, and will
not permit any of its Subsidiaries to, sell, issue, transfer, lease, contribute
or otherwise convey, or grant options, warrants or other rights with respect to,
any property, business or assets of the Parent, any Subsidiary Borrower or any
of their respective Subsidiaries (including accounts receivable and Capital
Stock) to any Person, unless
(a) any such sale, transfer, lease, contribution or conveyance is in
the ordinary course of its business (including sales of used Vehicles and
the customary franchising activities of the Borrowers) or is permitted by
Section 8.2.9 or clauses (e) through (i) of Section 8.2.5;
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(b) any such issuance is an issuance of Capital Stock of the Parent
or of options or warrants in respect of such Capital Stock;
(c) (i) (A) any such sale, transfer or conveyance is for not less
than the fair market value of the assets so sold, transferred or conveyed
and (B) in the event the fair market value of such assets exceeds
$10,000,000, the determination of the Board of Directors of the Parent or a
committee thereof is evidenced by a certified written resolution of such
Board or committee) and the consideration received by the relevant
Subsidiary Borrower or the relevant Subsidiary of such Subsidiary Borrower
in respect thereof consists of at least 80% cash or Cash Equivalent
Investments, (ii) any such consideration not consisting of cash or Cash
Equivalent Investments is an Investment that would be permitted by Section
8.2.5 and (iii) the fair market value of such assets, together with the
aggregate fair market value of all other assets sold, transferred or
conveyed pursuant to this clause (c) in the Fiscal Year such assets are
sold, transferred or conveyed, does not exceed $10,000,000; provided,
however, that no such sale, transfer or conveyance shall be permitted to be
made if immediately before or after giving effect thereto, any Default
shall have occurred and be continuing; or
(d) without limiting the effect in any manner of the provisions of
Article IX, any such sale, transfer or conveyance of Vehicles is as a
result of an Amortization Event (as defined in the Base Indenture).
SECTION 8.2.11. Modification of Certain Agreements. Each Borrower will
not, and will not permit any of its Subsidiaries to, consent to any amendment,
supplement or other modification of any of the terms or provisions contained in,
or applicable to, the DaimlerChrysler Supply Agreement, the MTN Program
Documents, the Conduit Program Documents and the CP Program Documents, or any
document or instrument evidencing or applicable to any Subordinated Debt, other
than any amendment, supplement or other modification which would not have an
adverse effect on the Lenders (unless otherwise consented to by the
Administrative Agent), a material adverse effect on the interests of the Lenders
hereunder and under the other Loan Documents (unless otherwise consented to by
the Required Lenders) or a material adverse effect on the business, property,
operations, assets, liabilities, condition (financial or otherwise) or prospects
of the Parent and its Subsidiaries taken as whole (unless otherwise consented to
by the Required Lenders).
SECTION 8.2.12. Transactions with Affiliates. Each Borrower will not, and
will not permit any of its Subsidiaries to, enter into, or cause, suffer or
permit to exist any arrangement or contract with any of its other Affiliates
unless such arrangement or contract is fair and equitable to such Borrower or
such Subsidiary and is an arrangement or contract of the kind which would be
entered into by a prudent Person in the position of such Borrower or such
Subsidiary with a Person which is not one of its Affiliates; provided, however,
that the foregoing restriction shall not apply to (i) any agreement or
arrangement between or among a Borrower and a Wholly Owned Subsidiary of a
Borrower that is not otherwise prohibited hereunder and (ii) any agreement or
arrangement that provides for the sale of Vehicles from RCFC to a Subsidiary
Borrower or any Subsidiary of a Subsidiary Borrower at the higher of the fair
market value thereof and the net book value thereof, to the extent such
agreement or arrangement is entered into in connection with a structured
financing or securitization program.
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SECTION 8.2.13. Negative Pledges, Restrictive Agreements, etc. Each
Borrower will not, and will not permit any of its Subsidiaries to, enter into
any agreement (excluding this Agreement and any other Loan Document) prohibiting
(a) the creation or assumption of any Lien upon its properties,
revenues or assets, whether now owned or hereafter acquired; or
(b) the ability of any Subsidiary of any Borrower to make any
payments, directly or indirectly, to such Borrower by way of dividends,
advances, repayments of loans or advances, reimbursements of management and
other intercompany charges, expenses and accruals or other returns on
investments, or any other agreement or arrangement which restricts the
ability of any such Subsidiary to make any payment, directly or indirectly,
to such Borrower;
except
(i) any indenture or agreement governing Indebtedness permitted by
clause (c) of Section 8.2.2 as in effect on the Amendment Effective Date
and any refinancings thereof permitted by such clause (c);
(ii) any agreement governing any Indebtedness permitted by clause
(f) (g), (j), (l) or (t) of Section 8.2.2 as to the assets financed with
the proceeds of such Indebtedness;
(iii) as to any SPC, usual and customary restrictions pursuant to the
Organic Documents of such SPC or pursuant to the MTN Program Documents, the
Conduit Program Documents or CP Program Documents; or
(iv) usual and customary restrictions pursuant to any agreement
relating to any Indebtedness of any Foreign Subsidiary permitted pursuant
to clause (i) of Section 8.2.2, such as maintenance of net worth or other
balance sheet conditions, provided that such restrictions are agreed to in
good faith and, where applicable, based upon reasonable assumptions.
SECTION 8.2.14. Ability to Amend; Restrictive Agreements. Each Borrower
will not, and will not permit any of its Subsidiaries to, enter into, or accept
obligations under, any agreement (a) prohibiting (including subjecting to any
condition) the ability of such Borrower or any of its Subsidiaries to amend,
supplement or otherwise modify this Agreement or any other Loan Document or (b)
containing any provision that would contravene any provision of this Agreement
or any other Loan Document.
SECTION 8.2.15. Accounting Changes. The Parent will not, and will not
permit any of its Subsidiaries to, change its Fiscal Year from twelve
consecutive calendar months ending on December 31, except with the consent of
the Administrative Agent (which consent shall not be unreasonably withheld, but
which consent may be conditioned upon the effectuation of such amendments and
other modifications to this Agreement and the other Loan Documents as the
Administrative Agent may reasonably request).
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SECTION 8.2.16. Activities of the Parent. Without limiting the effect
of any provision contained in this Article VIII and notwithstanding any
implication to the contrary hereunder, the Parent will not engage in any
business activity other than (i) its ownership of all the shares of Capital
Stock of Operations, Thrifty Holdco, RCFC, Dollar Thrifty Funding, Dollar and
any other Person that may become a direct Subsidiary of the Parent in accordance
with the provisions hereof to the extent such Person does not conduct a business
activity which is one of the principal business activities conducted by
Operations, Thrifty or Dollar on the date hereof and (ii) its compliance with
the obligations applicable to it under the Loan Documents, the MTN Program
Documents, the Conduit Program Documents and the CP Program Documents. Without
limiting the generality of the immediately preceding sentence, the Parent will
not (a) create, incur, assume or suffer to exist any Indebtedness (other than
Indebtedness under this Agreement or any other Loan Document, any Demand
Capitalization Note, any guaranty of Vehicle Debt (or Non-Vehicle Debt which is
Non-Vehicle Debt solely as a result of the operation of clause (c) of the
definition thereof incurred by a Subsidiary Borrower), any intercompany
Indebtedness pursuant to clause (o) of Section 8.2.2 or any Subordinated Debt
pursuant to clause (u) of Section 8.2.2), (b) create, assume, or suffer to exist
any Lien upon, or grant any options or other rights with respect to, any of its
revenues, property or other assets, whether now owned or hereafter acquired
(other than pursuant to the Loan Documents or any intercompany Indebtedness
described in clause (i) of Section 8.2.3), (c) wind-up, liquidate or dissolve
itself (or suffer to exist any of the foregoing), or consolidate or amalgamate
with or merge into or with any other Person, or convey, sell, transfer, lease or
otherwise dispose of all or any part of its assets, in one transaction or a
series of transactions, to any Person or Persons, (d) create, incur, assume or
suffer to exist any Investment in any Person other than (i) as provided in
clause (a), (b), (g), (h) or (j) of Section 8.2.5 or (e) permit to be taken any
action that would result in a Change in Control. The Parent agrees not to
commence or cause the commencement of any of the actions described in clause
(b), (c) or (d) of Section 9.1.9 of this Agreement with respect to any of its
Subsidiaries.
ARTICLE IX
EVENTS OF DEFAULT
SECTION 9.1. Listing of Events of Default. Each of the following
events or occurrences described in this Section 9.1 shall constitute an "Event
of Default".
SECTION 9.1.1. Non-Payment of Obligations. Any Borrower or any other
Obligor shall (a) default in the payment or prepayment when due of any principal
of any Loan, (b) default in the payment when due of any Reimbursement
Obligation, or (c) default (and such default shall continue unremedied for a
period of three Business Days) in the payment when due of any interest on any
Loan, any fee or of any other Obligation.
SECTION 9.1.2. Breach of Warranty. Any representation or warranty of any
Borrower or any other Obligor made or deemed to be made hereunder or in any
other Loan Document executed by it (including the Original Amendment Agreement,
the Prior Amendment Agreement and the Amended and Restated Credit Agreement) or
any other writing or certificate furnished by or on behalf of any Borrower or
any other Obligor to the Administrative Agent or any Lender for the purposes of
or in connection with this Agreement or any such other Loan Document (including
any certificates delivered pursuant to Article VI) is or shall be incorrect when
made in any material respect.
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SECTION 9.1.3. Non-Performance of Certain Covenants and Obligations. (a)
Any Borrower shall default in the due performance and observance of any of its
obligations under ▇▇▇▇▇▇▇ ▇.▇, ▇▇▇▇▇▇ (▇), (▇), (▇) or (k) of Section 8.1.1, or
Section 8.1.2, 8.1.8 or 8.1.9.
(b) Any Borrower shall default in the due performance and observance of
any of its obligations under clause (a), (b), (c), (h) or (i) of Section 8.1.1,
and such default shall continue unremedied for a period of ten days.
SECTION 9.1.4. Non-Performance of Other Covenants and Obligations. Any
Obligor shall default in the due performance and observance of any other
agreement contained herein or in any other Loan Document executed by it, and
such default shall continue unremedied for a period of 30 days after notice
thereof shall have been given to the Borrowers by the Administrative Agent or
any Lender.
SECTION 9.1.5. Default on Other Indebtedness. (a) A default shall occur
in the payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any Indebtedness (other than Indebtedness
described in Section 9.1.1) of the Parent or any of its Subsidiaries having a
principal amount, individually or in the aggregate, in excess of $10,000,000, or
a default shall occur in the performance or observance of any obligation or
condition with respect to such Indebtedness if the effect of such default is to
accelerate the maturity and/or require the cash collateralization of any such
Indebtedness or such default shall continue unremedied for any applicable period
of time sufficient to permit the holder or holders of such Indebtedness, or any
trustee or agent for such holders, to cause such Indebtedness to become due and
payable prior to its expressed maturity or in the case of any letter of credit,
to be cash collateralized prior to its stated expiry dated (including pursuant
to any right of such holder, holders, trustee or agent to require the
redemption, repurchase or other acquisition of such Indebtedness prior to its
expressed maturity).
(b) An Amortization Event (as defined in the Base Indenture) shall
have occurred or RCFC shall become unable to finance the purchase of
Vehicles pursuant to the MTN Program, the Conduit Program, the CP Program
or any other material program or facility established for the purchase of
Vehicles and the Borrowers shall have failed to replace the MTN Program,
Conduit Program. CP Program or other material program or facility, as the
case may be, with an alternative source of financing having terms
acceptable to the Required Lenders within 30 days of such occurrence.
SECTION 9.1.6. Judgments. Any judgment or order for the payment of money
in excess of $10,000,000 (to the extent not covered by insurance provided by a
carrier that has not disputed coverage) shall be rendered against the Parent or
any of its Subsidiaries and either
(a) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order; or
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(b) there shall be any period of 20 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect.
SECTION 9.1.7. Pension Plans. Any of the following events shall occur
with respect to any Pension Plan
(a) the institution of any steps by any Borrower, any member of its
Controlled Group or any other Person to terminate a Pension Plan if, as a
result of such termination, any Borrower or any such member could be
required to make a contribution to such Pension Plan, or could reasonably
expect to incur a liability or obligation to such Pension Plan, in excess
of $1,000,000; or
(b) a contribution failure occurs with respect to any Pension Plan
sufficient to give rise to a Lien under Section 302(f) of ERISA.
SECTION 9.1.8. Change in Control. Any Change in Control shall occur.
SECTION 9.1.9. Bankruptcy, Insolvency, etc. The Parent or any of its
Subsidiaries or any other Obligor shall
(a) become insolvent or generally fail to pay, or admit in writing
its inability or unwillingness to pay, debts as they become due;
(b) apply for, consent to, or acquiesce in, the appointment of a
trustee, receiver, sequestrator or other custodian for the Parent or any of
its Subsidiaries or any other Obligor or any property of any thereof, or
make a general assignment for the benefit of creditors;
(c) in the absence of such application, consent or acquiescence,
permit or suffer to exist the appointment of a trustee, receiver,
sequestrator or other custodian for the Parent or any of its Subsidiaries
or any other Obligor or for a substantial part of the property of any
thereof, and such trustee, receiver, sequestrator or other custodian shall
not be discharged within 60 days, provided that each of its Subsidiaries
and each other Obligor hereby expressly authorizes the Administrative Agent
and each Lender to appear in any court conducting any relevant proceeding
during such 60- day period to preserve, protect and defend their rights
under the Loan Documents;
(d) permit or suffer to exist the commencement of any bankruptcy,
reorganization, debt arrangement or other case or proceeding under any
bankruptcy or insolvency law, or any dissolution, winding up or liquidation
proceeding, in respect of the Parent or any of its Subsidiaries or any
other Obligor, and, if any such case or proceeding is not commenced by the
Parent or such Subsidiary or such other Obligor, such case or proceeding
shall be consented to or acquiesced in by the Parent or such Subsidiary or
such other Obligor or shall result in the entry of an order for relief or
shall remain for 60 days undismissed, provided that the Parent, such
Subsidiary and each other Obligor hereby expressly authorizes the
Administrative Agent and each Lender to appear in any court conducting any
such case or proceeding during such 60-day period to preserve, protect and
defend their rights under the Loan Documents; or
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(e) take any action authorizing, or in furtherance of, any of the
foregoing.
SECTION 9.1.10. Impairment of Security, etc. Any Loan Document, or any
Lien granted thereunder, shall (except in accordance with its terms), in whole
or in part, terminate, cease to be effective or cease to be the legally valid,
binding and enforceable obligation of any Obligor party thereto; any Borrower or
any other Obligor shall, directly or indirectly, contest in any manner such
effectiveness, validity, binding nature or enforceability; or any Lien securing
any Obligation shall, in whole or in part, cease to be a perfected first
priority Lien, subject only to those exceptions expressly permitted by such Loan
Document.
SECTION 9.2. Action if Bankruptcy. If any Event of Default described
in clauses (a) through (d) of Section 9.1.9 shall occur (except with respect to
a Non-Material Subsidiary), the Commitments (if not theretofore terminated)
shall automatically terminate and the outstanding principal amount of all
outstanding Loans and all other Obligations shall automatically be and become
immediately due and payable and each Borrower shall immediately comply with its
obligations under Section 4.7, in each case, without notice or demand.
SECTION 9.3. Action if Other Event of Default. If any Event of
Default (other than any Event of Default described in clauses (a) through (d) of
Section 9.1.9 (except with respect to a Non-Material Subsidiary)) shall occur
for any reason, whether voluntary or involuntary, and be continuing, the
Administrative Agent, upon the direction of the Required Lenders, shall by
notice to the Borrowers declare all or any portion of the outstanding principal
amount of the Loans and other Obligations to be due and payable and/or the
Commitments (if not theretofore terminated) to be terminated and/or demand
immediate compliance of each Borrower with its obligations under Section 4.7,
whereupon the full unpaid amount of such Loans and other Obligations which shall
be so declared due and payable shall be and become immediately due and payable,
without further notice, demand or presentment, the Commitments shall terminate
and/or, as the case may be, each Borrower shall be obligated to comply
immediately with its obligations under Section 4.7.
ARTICLE X
BORROWERS GUARANTY
SECTION 10.1. Guaranty. Each Borrower hereby absolutely,
unconditionally and irrevocably
(a) guarantees (in such capacity, a "Borrower Guarantor") the full
and punctual payment when due, whether at stated maturity, by required
prepayment, declaration, acceleration, demand or otherwise, of all
Obligations of each other Borrower (in such capacity, a "Borrower Debtor")
now or hereafter existing, whether for principal, interest, fees, expenses
or otherwise (including all such amounts which would become due but for the
operation of the automatic stay under Section 362(a) of the United States
Bankruptcy Code, 11 U.S.C. ss.362(a), and the operation of Sections 502(b)
and 506(b) of the United States Bankruptcy Code, 11 U.S.C. ss.502(b) and
ss.506(b)), and
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(b) indemnifies and holds harmless each Secured Party and each holder
of a Note for any and all costs and expenses (including reasonable
attorneys' fees and expenses) incurred by such Secured Party or such
holder, as the case may be, in enforcing any rights under the guaranty set
forth in this Article X;
provided, however, that in the case of the guaranty made by each of Operations
and Thrifty, Operations or Thrifty, as the case may be, shall be liable under
the guaranty set forth in this Article X for the maximum amount of such
liability that can be hereby incurred without rendering the guaranty set forth
in this Article X, as it relates to Operations or Thrifty, as the case may be,
voidable under applicable law relating to fraudulent conveyance or fraudulent
transfer, and not for any greater amount. The guaranty set forth in this Article
X constitutes a guaranty of payment when due and not of collection, and each
Borrower Guarantor specifically agrees that it shall not be necessary or
required that any Secured Party or any holder of any Note exercise any right,
assert any claim or demand or enforce any remedy whatsoever against any Borrower
Debtor or any other Obligor (or any other Person) before or as a condition to
the obligations of such Borrower Guarantor under the guaranty set forth in this
Article X.
SECTION 10.2. Acceleration of Borrowers Guaranty. Each Borrower
Guarantor agrees that, if an Event of Default of the nature set forth in Section
9.1.9 shall occur at a time when any of the Obligations of a Borrower Debtor may
not then be due and payable, such Borrower Guarantor agrees that it will pay to
the Administrative Agent for the account of the Secured Parties forthwith the
full amount which would be payable under the guaranty set forth in this Article
X by such Borrower Guarantor if all such Obligations were then due and payable.
SECTION 10.3. Guaranty Absolute, etc. The guaranty set forth in this
Article X shall in all respects be a continuing, absolute, unconditional and
irrevocable guaranty of payment, and shall remain in full force and effect until
all Obligations of each Borrower and each other Obligor have been paid in full
in cash, all obligations of each Borrower Guarantor under the guaranty set forth
in this Article X shall have been paid in full in cash, all Letters of Credit
have been terminated or expired and all Commitments shall have terminated. Each
Borrower Guarantor guarantees that the Obligations of each Borrower Debtor will
be paid strictly in accordance with the terms of this Agreement and each other
Loan Document under which they arise, regardless of any law, regulation or order
now or hereafter in effect in any jurisdiction affecting any of such terms or
the rights of any Secured Party or any holder of any Note with respect thereto.
The liability of each Borrower Guarantor under the guaranty set forth in this
Article X shall be absolute, unconditional and irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of this
Agreement, any Note or any other Loan Document;
(b) the failure of any Secured Party or any holder of any Note
(i) to assert any claim or demand or to enforce any right or
remedy against any Borrower Debtor, any other Obligor or any other
Person (including any other guarantor (including such Borrower
Guarantor)) under the provisions of this Agreement, any Note, any
other Loan Document or otherwise, or
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(ii) to exercise any right or remedy against any other
guarantor (including such Borrower Guarantor) of, or collateral
securing, any Obligations of any Borrower Debtor;
(c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations of any Borrower Debtor, or any
other extension, compromise or renewal of any Obligation of the any
Borrower Debtor;
(d) any reduction, limitation, impairment or termination of any
Obligations of any Borrower Debtor for any reason, including any claim of
waiver, release, surrender, alteration or compromise, and shall not be
subject to (and such Borrower Guarantor hereby waives any right to or claim
of) any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality, nongenuineness,
irregularity, compromise, unenforceability of, or any other event or
occurrence affecting, any Obligations of any Borrower Debtor or otherwise;
(e) any amendment to, rescission, waiver, or other modification of,
or any consent to departure from, any of the terms of this Agreement, any
Note or any other Loan Document;
(f) any addition, exchange, release, surrender or non-perfection of
any collateral, or any amendment to or waiver or release or addition of, or
consent to departure from, any other guaranty, held by any Secured Party or
any holder of any Note securing any of the Obligations of any Borrower
Debtor; or
(g) any other circumstance which might otherwise constitute a defense
available to, or a legal or equitable discharge of, any Borrower Debtor,
any surety or any guarantor.
SECTION 10.4. Reinstatement, etc. Each Borrower Guarantor agrees that
the guaranty set forth in this Article X shall continue to be effective or be
reinstated, as the case may be, if at any time any payment (in whole or in part)
of any of the Obligations is rescinded or must otherwise be restored by any
Secured Party or any holder of any Note, upon the insolvency, bankruptcy or
reorganization of any Borrower Debtor or otherwise, all as though such payment
had not been made.
SECTION 10.5. Waiver, etc. Each Borrower Guarantor hereby waives
promptness, diligence, notice of acceptance and any other notice with respect to
any of the Obligations of any Borrower Debtor and the guaranty set forth in this
Article X and any requirement that the Administrative Agent, any other Secured
Party or any holder of any Note protect, secure, perfect or insure any security
interest or Lien, or any property subject thereto, or exhaust any right or take
any action against any Borrower Debtor, any other Obligor or any other Person
(including any other guarantor) or entity or any collateral securing the
Obligations of any Borrower Debtor.
SECTION 10.6. Postponement of Subrogation, etc. Each Borrower Guarantor
agrees that it will not exercise any rights which it may acquire by way of
rights of subrogation under the guaranty set forth in this Article X, by any
payment made under the guaranty set forth in this Article X or otherwise, until
the prior payment in full in cash of all Obligations of each Borrower Debtor and
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each other Obligor, the termination or expiration of all Letters of Credit and
the termination of all Commitments. Any amount paid to any Borrower Guarantor on
account of any such subrogation rights prior to the payment in full in cash of
all Obligations of each Borrower Debtor and each other Obligor shall be held in
trust for the benefit of the Secured Parties and each holder of a Note and shall
immediately be paid to the Administrative Agent for the benefit of the Secured
Parties and each holder of a Note and credited and applied against the
Obligations of each Borrower Debtor and each other Obligor, whether matured or
unmatured, in accordance with the terms of this Agreement; provided, however,
that if
(a) such Borrower Guarantor has made payment to the Secured Parties
and each holder of a Note of all or any part of the Obligations of each
Borrower Debtor, and
(b) all Obligations of each Borrower and each other Obligor have
been paid in full in cash, all Letters of Credit have been terminated or
expired and all Commitments have been permanently terminated,
each Secured Party and each holder of a Note agrees that, at such Borrower
Guarantor's request, the Administrative Agent, on behalf of the Secured Parties
and the holders of the Notes, will execute and deliver to the Parent appropriate
documents (without recourse and without representation or warranty) necessary to
evidence the transfer by subrogation to such Borrower Guarantor of an interest
in the Obligations of the applicable Borrower Debtor resulting from such payment
by such Borrower Guarantor. In furtherance of the foregoing, for so long as any
Obligations or Commitments remain outstanding, such Borrower Guarantor shall
refrain from taking any action or commencing any proceeding against such Borrow
Debtor (or its successors or assigns, whether in connection with a bankruptcy
proceeding or otherwise) to recover any amounts in the respect of payments made
under the guaranty set forth in this Article X to any Secured Party or any
holder of a Note.
SECTION 10.7. Right of Contribution. Each Borrower Guarantor hereby
agrees that to the extent that a Borrower Guarantor shall have paid more than
its proportionate share of any payment made hereunder, such Borrower Guarantor
shall be entitled to seek and receive contribution from and against any other
Borrower Guarantor hereunder who has not paid its proportionate share of such
payment. Each Borrower Guarantor's right of contribution shall be subject to the
terms and conditions of Section 10.6. The provisions of this Section 10.7 shall
in no respect limit the obligations and liabilities of any Borrower Guarantor to
the Administrative Agent and each other Secured Party, and each Borrower
Guarantor shall remain liable to the Administrative Agent and each other Secured
Party for the full amount guaranteed by such Borrower Guarantor hereunder.
SECTION 10.8. Successors, Transferees and Assigns; Transfers of Notes,
etc. The guaranty set forth in this Article X shall:
(a) be binding upon each Borrower Guarantor, and its successors,
transferees and assigns; and
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(b) inure to the benefit of and be enforceable by the Administrative
Agent and each other Secured Party.
Without limiting the generality of the foregoing clause (b), any Lender may
assign or otherwise transfer (in whole or in part) any Note or Credit Extension
held by it to any other Person or entity, and such other Person or entity shall
thereupon become vested with all rights and benefits in respect thereof granted
to such Lender under any Loan Document (including the guaranty set forth in this
Article X) or otherwise, subject, however, to any contrary provisions in such
assignment or transfer, and to the provisions of Section 12.11 and Article XI.
ARTICLE XI
THE AGENTS
SECTION 11.1. Actions. Each Lender hereby appoints Credit Suisse First
Boston as its Administrative Agent under and for purposes of this Agreement, the
Notes and each other Loan Document. Each Lender authorizes the Administrative
Agent to act on behalf of such Lender under this Agreement, the Notes and each
other Loan Document and, in the absence of other written instructions from the
Required Lenders received from time to time by the Administrative Agent (with
respect to which the Administrative Agent agrees that it will comply, except as
otherwise provided in this Section or as otherwise advised by counsel in order
to avoid contravention of applicable law), to exercise such powers hereunder and
thereunder as are specifically delegated to or required of the Administrative
Agent by the terms hereof and thereof, together with such powers as may be
reasonably incidental thereto. Each Lender hereby indemnifies (which indemnity
shall survive any termination of this Agreement) the Administrative Agent pro
rata according to such Lender's Percentage, from and against any and all
liabilities, obligations, losses, damages, claims, costs or expenses of any kind
or nature whatsoever which may at any time be imposed on, incurred by, or
asserted against, the Administrative Agent in any way relating to or arising out
of this Agreement, the Notes and any other Loan Document, including reasonable
attorneys' fees, and as to which the Administrative Agent is not reimbursed by
the Borrowers; provided, however, that no Lender shall be liable for the payment
of any portion of such liabilities, obligations, losses, damages, claims, costs
or expenses which are determined by a court of competent jurisdiction in a final
proceeding to have resulted solely from the Administrative Agent's gross
negligence or willful misconduct. The Administrative Agent shall not be required
to take any action hereunder, under the Notes or under any other Loan Document,
or to prosecute or defend any suit in respect of this Agreement, the Notes or
any other Loan Document, unless the Administrative Agent is indemnified
hereunder to its satisfaction. If any indemnity in favor of the Administrative
Agent shall be or become, in the Administrative Agent's determination,
inadequate, the Administrative Agent may call for additional indemnification
from the Lenders and cease to do the acts indemnified against hereunder until
such additional indemnity is given.
SECTION 11.2. Funding Reliance, etc. Unless the Administrative Agent
shall have been notified by telephone, confirmed in writing, by any Lender by
12:00 noon (New York City, New York time) on the Business Day of a Borrowing,
with respect to ABR Loans, and by 5:00 p.m. (New York City, New York time) on
the Business Day prior to a Borrowing, with respect to Eurodollar Loans, that
such Lender will not make available the amount which would constitute its
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Percentage of such Borrowing on the date specified therefor, the Administrative
Agent may assume that such Lender has made such amount available to the
Administrative Agent and, in reliance upon such assumption, make available to
the applicable Borrower a corresponding amount. If and to the extent that such
Lender shall not have made such amount available to the Administrative Agent,
such Lender and the applicable Borrower severally agree to repay the
Administrative Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date the Administrative Agent made such
amount available to such Borrower to the date such amount is repaid to the
Administrative Agent, at the interest rate applicable at the time to Loans
comprising such Borrowing (in the case of such Borrower) and (in the case of the
Lender), at the Federal Funds Rate for the first two Business Days after which
such amount has not been repaid, and thereafter at the interest rate applicable
to Loans comprising such Borrowing.
SECTION 11.3. Exculpation. Neither the Administrative Agent nor any of
its respective directors, officers, employees or agents shall be liable to any
Lender for any action taken or omitted to be taken by it under this Agreement or
any other Loan Document, or in connection herewith or therewith, except for its
own willful misconduct or gross negligence, nor responsible for any recitals or
warranties herein or therein, nor for the effectiveness, enforceability,
validity or due execution of this Agreement or any other Loan Document, nor for
the creation, perfection or priority of any Liens purported to be created by any
of the Loan Documents, or the validity, genuineness, enforceability, existence,
value or sufficiency of any collateral security, nor to make any inquiry
respecting the performance by any Borrower of its obligations hereunder or under
any other Loan Document. Any such inquiry which may be made by the
Administrative Agent shall not obligate it to make any further inquiry or to
take any action. The Administrative Agent shall be entitled to rely upon advice
of counsel concerning legal matters and upon any notice, consent, certificate,
statement or writing which the Administrative Agent believes to be genuine and
to have been presented by a proper Person.
SECTION 11.4. Successor. The Administrative Agent may resign as such
at any time upon at least 30 days' prior written notice to the Borrowers and all
Lenders. If the Administrative Agent at any time shall resign, the Required
Lenders may (with the consent of the Borrowers so long as a Default has not
occurred and is not then continuing, such consent not to be unreasonably
withheld or delayed) appoint another Lender as a successor Administrative Agent
which shall thereupon become the Administrative Agent hereunder. If no successor
Administrative Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Administrative Agent's giving written notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be one of the Lenders or a commercial banking
institution organized under the laws of the U.S. (or any State thereof) or a
U.S. branch or agency of a commercial banking institution, and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as the Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall be entitled to receive from the
retiring Administrative Agent such documents of transfer and assignment as such
successor Administrative Agent may reasonably request, and shall thereupon
succeed to and become vested with all rights, powers, privileges and duties of
the retiring Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations under this Agreement. After any
retiring Administrative Agent's resignation hereunder as the Administrative
Agent, the provisions of
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(a) this Article XI shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Administrative Agent
under this Agreement; and
(b) Section 11.3 and Section 11.4 shall continue to inure to its
benefit.
SECTION 11.5. Credit Extensions by Agents. Each Agent shall have the
same rights and powers with respect to (x) the Loans made by it in its capacity
as a Lender or any of its Affiliates, (y) the Notes held by it or any of its
Affiliates, and (z) its participating interests in the Letters of Credit as any
other Lender and may exercise the same as if it were not an Agent. Each Agent
and its Affiliates may accept deposits from, lend money to, and generally engage
in any kind of business with any Borrower or any Subsidiary or Affiliate of any
Borrower as if Credit Suisse First Boston, Scotia Capital and Dresdner Bank were
not Agents hereunder.
SECTION 11.6. Credit Decisions. Each Lender acknowledges that it has,
independently of each Agent and each other Lender, and based on such Lender's
review of the financial information of the Borrowers, this Agreement, the other
Loan Documents (the terms and provisions of which being satisfactory to such
Lender) and such other documents, information and investigations as such Lender
has deemed appropriate, made its own credit decision to extend its Commitments.
Each Lender also acknowledges that it will, independently of each Agent and each
other Lender, and based on such other documents, information and investigations
as it shall deem appropriate at any time, continue to make its own credit
decisions as to exercising or not exercising from time to time any rights and
privileges available to it under this Agreement or any other Loan Document.
SECTION 11.7. Security Documents. Each Lender consents and agrees to
all of the terms and provisions of the Security Documents, as the same may be in
effect from time to time or may be amended, supplemented or otherwise modified
from time to time in accordance with the provisions of the Security Documents
and this Agreement.
SECTION 11.8. Copies, etc. The Administrative Agent shall give prompt
notice to each Lender of each notice or request required or permitted to be
given to the Administrative Agent by any Borrower pursuant to the terms of this
Agreement (unless concurrently delivered to the Lenders by such Borrower). The
Administrative Agent will distribute to each Lender each document or instrument
received for its account and copies of all other communications received by the
Administrative Agent from any Borrower for distribution to the Lenders by the
Administrative Agent in accordance with the terms of this Agreement or any other
Loan Document.
SECTION 11.9. Subagents. At any time, for the purposes of complying
with any legal requirements, restrictions or conditions in any jurisdiction in
which any particular act or acts are to be performed, or for the purposes of
obtaining a judgment in any jurisdiction of either a judgment already obtained
or the enforcement of any of the provisions of this Agreement or any other Loan
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Document or for any other similar reason, the Administrative Agent shall have
the power, upon notice in writing to the Parent, to appoint any Person to act as
its subagent with such of the rights (including the right to remuneration and
indemnity), powers, duties and obligations that the Administrative Agent has
hereunder or under any other Loan Document as may be conferred or imposed by the
instrument of appointment; provided, however, that such subagent shall not be
entitled to exercise any greater trusts, powers, authorities and discretion
than, or to do anything which could not have been done by, the Administrative
Agent pursuant to this Agreement or any other Loan Document. Any subagent so
appointed may be removed by the Administrative Agent in like manner. Such
reasonable remuneration as the Administrative Agent may pay to any such Person,
together with any reasonable costs, charges, liabilities and expenses incurred
by it in performing its functions as such subagent, shall for purposes of this
Agreement and each other Loan Document, be treated as costs, charges,
liabilities and expenses incurred by the Administrative Agent.
SECTION 11.10. Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely upon any certification, notice or other
communication (including any thereof by telephone, telecopy, telegram or cable)
believed by it to be genuine and correct and to have been signed or sent by or
on behalf of the proper Person, and upon advice and statements of legal counsel,
independent accountants and other experts selected by the Administrative Agent.
As to any matters not expressly provided for by the Loan Documents, the
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, thereunder in accordance with instructions given by the
Required Lenders or all of the Lenders as is required in such circumstance, and
such instructions of such Lenders and any action taken or failure to act
pursuant thereto shall be binding on all Secured Parties. For purposes of
applying amounts in accordance with this Section, the Administrative Agent shall
be entitled to rely upon any Secured Party that has entered into a Rate
Protection Agreement for a determination (which such Secured Party agrees to
provide or cause to be provided upon request of the Administrative Agent) of the
outstanding Obligations owed to such Secured Party under any Rate Protection
Agreement. Unless it has actual knowledge evidenced by way of written notice
from any such Secured Party and the Borrowers to the contrary, the
Administrative Agent, in acting in such capacity under the Loan Documents, shall
be entitled to assume that no Rate Protection Agreements or Obligations in
respect thereof are in existence or outstanding between any Secured Party and
any Borrower.
SECTION 11.11. Other Agent Parties. Each of the Documentation Agent,
the Syndication Agent, the Bookrunner and each of the Arrangers shall have no
duties or responsibilities under this Agreement or any other Loan Document nor
any fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Documentation Agent, the Syndication
Agent, the Bookrunner, or any of the Arrangers, in such capacities.
SECTION 11.12. Rate Protection Agreements; Release of Liens.
Notwithstanding anything herein to the contrary or in any other Loan Document,
the collateral securing the Obligations hereunder shall secure obligations under
Rate Protection Agreements solely to the extent that this Agreement remains in
effect and the collateral securing the Obligations and the Guarantors providing
guarantees of the Obligations have not otherwise been released pursuant to the
terms hereof. In furtherance of the foregoing, upon the satisfaction of the
Obligations (excluding obligations owing to counterparties under Rate Protection
Agreements that are not then due) owed to the Lenders under this Agreement and
the termination of this Agreement, the security interests granted in the
collateral securing the Obligations and the guarantees provided by the
Guarantors of the Obligations shall automatically terminate without regard to
obligations that may be owing under Rate Protection Agreements.
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ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.1. Waivers, Amendments, etc. The provisions of this
Agreement and of each other Loan Document (other than Rate Protection
Agreements, Letters of Credit and the Fee Letter (which documents may be amended
or otherwise modified in accordance with their terms)) may from time to time be
amended, modified or waived, if such amendment, modification or waiver is in
writing and consented to by each Borrower and the Required Lenders; provided,
however, that no such amendment, modification or waiver which would:
(a) modify any requirement hereunder that any particular action be
taken by all the Lenders or by the Required Lenders shall be effective
unless consented to by each Lender;
(b) modify this Section 12.1, change the definition of "Required
Lenders", increase the Commitment Amount or the Percentage of any Lender,
reduce any fees described in Article III (other than any fee payable to the
Administrative Agent solely for its own account or the Issuer solely for
its own account), release all or substantially all of the collateral,
except as otherwise specifically provided in any Loan Document, release any
Guarantor from its obligations under its Guaranty, or extend the Commitment
Termination Date shall be made without the consent of each Lender;
(c) extend the due date for, or reduce the amount of, (i) any
scheduled repayment or prepayment of principal of or interest on any Loan
(or reduce the principal amount of or rate of interest on any Loan) or (ii)
any repayment of a Reimbursement Obligation (or reduce the amount of or
rate of interest on any Reimbursement Obligation) shall be made without the
consent of each Lender;
(d) affect adversely the rights or obligations of the Issuer qua the
Issuer shall be made without the consent of the Issuer; or
(e) affect adversely the rights or obligations of the Administrative
Agent qua the Administrative Agent shall be made without the consent of the
Administrative Agent.
Notwithstanding the foregoing provisions of this Section 12.1, the
Administrative Agent and the Borrowers may, in connection with implementation or
maintenance of any CP Program, Conduit Program or MTN Program, without the
consent of any Lender, enter into any amendment, supplement or other
modification to any Enhancement Letters of Credit or Enhancement Letter of
Credit Application and Agreement, in form and substance satisfactory to the
Administrative Agent, to cure any ambiguity or to correct or supplement any
provision in this Agreement or any other Loan Document that may be inconsistent
with any provision applicable to such CP Program, Conduit Program or MTN
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Program; provided, however, that (i) any such action shall not have an adverse
effect on the interests of the Lenders and (ii) a copy of any such amendment,
supplement or other modification shall be furnished to the Lenders or the Issuer
in accordance with the notice provisions hereof not later than five days prior
to the execution thereof by the Administrative Agent. No failure or delay on the
part of the Administrative Agent, the Issuer, any Lender or the holder of any
Note in exercising any power or right under this Agreement or any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power or right preclude any other or further exercise
thereof or the exercise of any other power or right. No notice to or demand on
any Borrower in any case shall entitle it to any notice or demand in similar or
other circumstances. No waiver or approval by the Administrative Agent, the
Issuer, any Lender or the holder of any Note under this Agreement or any other
Loan Document shall, except as may be otherwise stated in such waiver or
approval, be applicable to subsequent transactions. No waiver or approval
hereunder shall require any similar or dissimilar waiver or approval thereafter
to be granted hereunder.
SECTION 12.2. Notices. All notices and other communications provided to
any party hereto under this Agreement or any other Loan Document shall be in
writing or by facsimile and addressed, delivered or transmitted to such party at
its address or facsimile number set forth in the case of any Borrower or the
Administrative Agent, below its signature hereto or in the case of any Lender,
in Schedule I hereto or in a Lender Assignment Agreement or at such other
address or facsimile number as may be designated by such party in a notice to
the other parties. Each notice shall be deemed to have been duly given or made
when delivered, or five Business Days after being deposited in the mail, postage
prepaid and return receipt requested, or, in the case of facsimile notice, when
electronic confirmation thereof is received by the transmitter, except that
notices pursuant to Article II, III, IV or XI to the Administrative Agent shall
not be effective until actually received by the Administrative Agent, and
notices pursuant to Article IV to the Issuer shall not be effective until
actually received by the Issuer.
SECTION 12.3. Payment of Costs and Expenses. The Borrowers, jointly and
severally, agree to pay on demand all expenses of each Agent (including the
reasonable fees and out-of-pocket expenses of counsel to the Administrative
Agent and of local counsel, if any, who may be retained by counsel to the
Administrative Agent) in connection with
(a) the negotiation, preparation, execution and delivery of this
Agreement and of each other Loan Document, including schedules and
exhibits, and any amendments, waivers, consents, supplements or other
modifications to this Agreement or any other Loan Document as may from time
to time hereafter be required, whether or not the transactions contemplated
hereby are consummated;
(b) the filing, recording, refiling or rerecording of any Loan
Document and/or any Uniform Commercial Code financing statements relating
thereto and all amendments, supplements, amendments and restatements and
other modifications to any thereof and any and all other documents or
instruments of further assurance required to be filed or recorded or
refiled or rerecorded by the terms hereof or the terms of any Loan
Document; and
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(c) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document.
The Borrowers further, jointly and severally, agree to pay, and to save the
Agents, the Issuer and the Lenders harmless from all liability for, any stamp,
issuance, excise or other similar taxes which may be payable in connection with
the execution or delivery of this Agreement, the Credit Extensions hereunder,
the issuance of the Notes, Letters of Credit or any other Loan Documents. The
Borrowers also, jointly and severally, agree to reimburse the Administrative
Agent, the Issuer and each Lender upon demand for all reasonable out-of-pocket
expenses (including reasonable attorneys' fees and legal expenses) incurred by
the Administrative Agent or such Lender in connection with (x) the negotiation
of any restructuring or "work-out", whether or not consummated, of any
Obligations and (y) the enforcement of any Obligations.
SECTION 12.4. Indemnification. In consideration of the execution and
delivery of this Agreement by each Agent, the Issuer and each Lender and the
extension of the Commitments, the Borrowers hereby, jointly and severally,
indemnify, exonerate and hold each Agent, the Issuer and each Lender and each of
their respective officers, directors, employees and agents (collectively, the
"Indemnified Parties") free and harmless from and against any and all actions,
causes of action, suits, losses, costs, liabilities and damages, and expenses
incurred in connection therewith (irrespective of whether any such Indemnified
Party is a party to the action for which indemnification hereunder is sought),
including reasonable attorneys' fees and disbursements whether incurred in
connection with actions between or among the parties hereto or the parties
hereto and third parties (collectively, the "Indemnified Liabilities"), incurred
by the Indemnified Parties or any of them as a result of, or arising out of, or
relating to
(a) any transaction financed or to be financed in whole or in part,
directly or indirectly, with the proceeds of any Credit Extension,
including all Indemnified Liabilities arising in connection with the
Original Credit Agreement and the transactions contemplated thereby, the
amendment and restatement of the Original Credit Agreement, the amendment
and restatement of such amendment and restatement pursuant to the Prior
Amendment Agreement, the amendment and restatement of the Amended and
Restated Credit Agreement in the form hereof, any of the other transactions
contemplated hereby or by the Amendment Agreement or the use of any Letter
of Credit;
(b) the entering into and performance of this Agreement and any other
Loan Document by any of the Indemnified Parties (including any action
brought by or on behalf of any Borrower as the result of any determination
by the Required Lenders pursuant to Article VI not to fund any Credit
Extension; provided that any such action is resolved by final judgment of a
court of competent jurisdiction in favor of such Indemnified Party);
(c) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by the Parent or any of its
Subsidiaries of all or any portion of the stock or assets of any Person,
whether or not such Agent, the Issuer or such Lender is party thereto;
(d) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to the
protection of the environment or the Release by the Parent or any of its
Subsidiaries of any Hazardous Material; or
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(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any real
property owned or operated by the Parent or any Subsidiary thereof of any
Hazardous Material (including any losses, liabilities, damages, injuries,
costs, expenses or claims asserted or arising under any Environmental Law),
regardless of whether caused by, or within the control of, the Parent or
such Subsidiary,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party as to the portion thereof and to the extent
directly caused by the relevant Indemnified Party's gross negligence or willful
misconduct or a breach by such Indemnified Party (or its agents or employees or
any other Person under its control) of any of its obligations under this
Agreement, as determined by a final judgment of a court of competent
jurisdiction. If and to the extent that the foregoing undertaking may be
unenforceable for any reason, each Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law.
SECTION 12.5. Survival. The obligations of each Borrower under Sections
4.9, 5.3, 5.4, 5.5, 5.6, 12.3 and 12.4, and the obligations of the Lenders under
Section 11.1, shall in each case survive any assignment from one Lender to
another and any termination of this Agreement, the payment in full of all
Obligations and the termination of all Commitments. The representations and
warranties made by each Obligor in this Agreement and in each other Loan
Document shall survive the execution and delivery of this Agreement and each
such other Loan Document.
SECTION 12.6. Severability. Any provision of this Agreement or any
other Loan Document which is prohibited or unenforceable in any jurisdiction
shall, as to such provision and such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or such Loan Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 12.7. Headings. The various headings of this Agreement and of
each other Loan Document are inserted for convenience only and shall not affect
the meaning or interpretation of this Agreement or such other Loan Document or
any provisions hereof or thereof.
SECTION 12.8. Execution in Counterparts, Effectiveness, etc. This
Agreement may be executed by the parties hereto in several counterparts, each of
which shall constitute together but one and the same agreement. This Agreement
shall become effective pursuant to the terms of the Amendment Agreement.
SECTION 12.9. Governing Law; Entire Agreement. THIS AGREEMENT, THE
NOTES AND EACH OTHER LOAN DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. This Agreement, the Fee
Letter, the Notes and the other Loan Documents constitute the entire
understanding among the parties hereto with respect to the subject matter hereof
and supersede any prior agreements, written or oral, with respect thereto.
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SECTION 12.10. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that:
(a) no Borrower may assign or transfer either of their respective
rights or obligations hereunder without the prior written consent of the
Administrative Agent and all of the Lenders, except permitted pursuant to
clause (a) of Section 8.2.9 provided that, in the event of any such
transaction, the Administrative Agent shall have received such supplements
or other modifications to this Agreement and the other Loan Documents as it
may reasonably request to confirm the Obligations of such Borrower and the
other Obligors); and
(b) the rights of sale, assignment and transfer of the Lenders are
subject to Section 12.11.
SECTION 12.11. Sale and transfer of Loans and Notes; Participations in
Loans and Notes. Each Lender may assign, or sell participations in, its Loans,
Letters of Credit and Commitments to one or more other Persons in accordance
with this Section 12.11.
SECTION 12.11.1. Assignments. Any Lender,
(a) with the written consents of each Borrower, the Issuer and the
Administrative Agent (which consents shall not be unreasonably delayed or
withheld and which consent, in the case of such Borrower, (i) shall be
deemed to have been given in the absence of a written notice delivered by
such Borrower to the Administrative Agent, on or before the fifth Business
Day after receipt by such Borrower of such Lender's request for consent,
stating, in reasonable detail, the reasons why such Borrower proposes to
withhold such consent and (ii) shall not be required if an Event of Default
has occurred and is then continuing) may at any time assign and delegate to
one or more Eligible Assignees, and
(b) with notice to the Borrowers, the Issuer and the Administrative
Agent, but without the consent of any Borrower, the Issuer or the
Administrative Agent, may assign and delegate to any of its Affiliates
which is an Eligible Assignee or to any other Lender (so long as such
Lender is not then in the process of being replaced pursuant to Section
12.11.3).
(each assignee to whom such assignment and delegation is to be made, being
hereinafter referred to as an "Assignee Lender"), all or any fraction of such
Lender's total Loans, participations in Letter of Credit Outstandings and
Commitments (which assignment and delegation shall be of a constant, and not a
varying, percentage of all the assigning Lender's Loans and Commitments) in a
minimum aggregate amount equal to the lesser of $5,000,000 and the aggregate
amount of such assigning Lender's Loans, participation in Letter of Credit
Outstanding and Commitments; provided, however, that, after giving effect to
such assignment, the assigning Lender shall have Commitments, participations in
Letter of Credit Outstandings and Loans aggregating at least $5,000,000 or no
such Commitments, participations and Loans; provided further, however, that any
such Assignee Lender will comply, if applicable, with the provisions contained
in the last sentence of Section 5.6; provided further, however, that, each
Borrower, the Issuer and the Administrative Agent shall be entitled to continue
to deal solely and directly with such Lender in connection with the interests so
assigned and delegated to an Assignee Lender until
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(i) written notice of such assignment and delegation, together with
payment instructions, addresses and related information with respect to
such Assignee Lender, shall have been given to the Borrowers, the Issuer
and the Administrative Agent by such assigning Lender and such Assignee
Lender,
(ii) the parties to each assignment shall have (A) electronically
executed and delivered to the Administrative Agent a Lender Assignment
Agreement via an electronic settlement system acceptable to the
Administrative Agent (which initially shall be ClearPar, LLC) or (B)
executed and delivered to the Administrative Agent a Lender Assignment
Agreement, accepted by the Administrative Agent, and
(iii) the processing fees described below shall have been paid (such
processing fee not being required if the Lender Assignment Agreement is
delivered to the Administrative Agent via ClearPar, LLC or such other
electronic settlement system acceptable to the Administrative Agent).
From and after the date that the Administrative Agent accepts such Lender
Assignment Agreement, (x) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that rights and
obligations hereunder have been assigned and delegated to such Assignee Lender
in connection with such Lender Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and under the other Loan Documents, and (y)
the assigning Lender, to the extent that rights and obligations hereunder have
been assigned and delegated by it in connection with such Lender Assignment
Agreement, shall be released from its obligations hereunder and under the other
Loan Documents. Within five Business Days after its receipt of notice that the
Administrative Agent has received an executed Lender Assignment Agreement, each
Borrower shall, to the extent requested, execute and deliver to the
Administrative Agent (for delivery to the relevant Assignee Lender) new Notes
evidencing such Assignee Lender's assigned Loans and Commitments and, if the
assigning Lender has retained Loans and Commitments hereunder which are
evidenced by any Notes, replacement Notes in the principal amount of the Loans
and Commitments retained by the assignor Lender hereunder (such Notes to be in
exchange for, but not in payment of, those Notes then held by such assignor
Lender). Each such Note shall be dated the date of the predecessor Notes. The
assignor Lender shall ▇▇▇▇ the predecessor Notes "exchanged" and deliver them to
each applicable Borrower. Accrued interest on that part of the principal
comprising any assigned Loans, and accrued fees, shall be paid as provided in
the Lender Assignment Agreement. Accrued interest on that part of the principal
of any Loans not assigned shall be paid to the assignor Lender. Accrued interest
and accrued fees shall be paid at the same time or times provided in this
Agreement. Such assigning Lender must also pay a processing fee to the
Administrative Agent upon delivery of any Lender Assignment Agreement in the
amount of $3,500. Any attempted assignment and delegation not made in accordance
with this Section 12.11.1 shall be null and void.
Notwithstanding any other provision set forth in this Agreement, any Lender
may at any time create a security interest in all or any portion of its rights
under this Agreement (including the Loans owing to it and the Notes held by it)
in favor of any Federal Reserve Bank in accordance with Regulation A of the
F.R.S. Board; provided, however, the obligations of such Lender under this
Agreement or under any other Loan Document shall not be delegated or assigned
pursuant to any foreclosure under such pledge without the consents of each
Borrower, the Administrative Agent and the Issuer.
115
The Borrowers hereby designate the Administrative Agent to serve as the
Borrowers' agent, solely for the purpose of this paragraph, to maintain a
register (the "Register") on which the Administrative Agent will record each
Lender's Loan Commitment, the Loans made by each Lender, and each repayment in
respect of the principal amount of the Loans of each Lender and annexed to which
the Administrative Agent shall retain a copy of each Lender Assignment Agreement
delivered to the Administrative Agent pursuant to this Section 12.11.1. Failure
to make any recordation, or any error in such recordation, shall not affect the
Borrowers obligations in respect of such Loans. The entries in the Register
shall be conclusive, in the absence of manifest error, and the Borrowers, the
Administrative Agent and the Lenders shall treat each Person in whose name a
Loan is registered as the owner thereof for all purposes of this Agreement,
notwithstanding notice or any provision herein to the contrary. A Lender's Loan
Commitment and the Loans made pursuant thereto may be assigned or otherwise
transferred in whole or in part only by registration of such assignment or
transfer in the Register. Any assignment or transfer of a Lender's Loan
Commitment or the Loans made pursuant thereto shall be registered in the
Register only upon delivery to the Administrative Agent of a Lender Assignment
Agreement duly executed by the assignor thereof. No assignment or transfer of a
Lender's Loan Commitment or the Loans made pursuant thereto shall be effective
unless such assignment or transfer shall have been recorded in the Register by
the Administrative Agent as provided in this Section.
SECTION 12.11.2. Participations. Any Lender may at any time sell to one or
more commercial banks or other financial institutions (each of such commercial
banks and other financial institutions being herein called a "Participant")
participating interests (or a sub-participating interest, in the case of a
Lender's participating interest in a Letter of Credit) in any of the Loans,
Commitments, or other interests of such Lender hereunder; provided, however,
that
(a) no participation or sub-participation contemplated in this
Section 12.11 shall relieve such Lender from its Commitments or its other
obligations hereunder or under any other Loan Document,
(b) such Lender shall remain solely responsible for the performance
of its Commitments and such other obligations,
(c) each Borrower and each other Obligor and the Administrative Agent
shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement and each of
the other Loan Documents,
(d) no Participant, unless such Participant is an Affiliate of such
Lender, or is itself a Lender, shall be entitled to require such Lender to
take or refrain from taking any action hereunder or under any other Loan
Document, except that such Lender may agree with any Participant that such
Lender will not, without such Participant's consent, take any actions of
the type described in clause (b) or (c) of Section 12.1,
116
(e) no Borrower shall be required to pay any amount under Section 5.6
that is greater than the amount which it would have been required to pay
had no participating interest been sold, and
(f) such Lender shall comply with any obligation to withhold taxes or
any filing or reporting requirements imposed under applicable law relating
to such Participant and the Borrowers and the Administrative Agent shall
continue to deal solely and directly with such Lender in connection with
such matters.
Each Borrower acknowledges and agrees that each Participant, for purposes of
Sections 5.3, 5.4, 5.5, 5.6, 5.8, 5.9, 12.3 and 12.4, shall be considered a
Lender; provided, that no Participant shall be entitled to receive any greater
payment under Section 5.3, 5.4 or 5.5 than the Lender that transferred such
rights to such Participant would have been entitled to receive with respect to
such rights, unless such transfer is made with a Borrower's prior written
consent.
SECTION 12.11.3. Lender Downgrade; Lender Replacement. In the event that
(i) a Lender defaults in its obligation to fund any Loan or
fails to reimburse the Issuer for any Reimbursement Obligation
pursuant to Section 4.4 (or notifies the Administrative Agent or any
Issuer that it does not intend to honor any such funding or
reimbursement obligation),
(ii) a Lender's capital status, as determined by its principal
federal or state supervisor or other applicable governmental agency or
authority (if applicable), is rated at or below "undercapitalized",
(iii) S&P or ▇▇▇▇▇'▇, shall, after the date that any Person
becomes a Lender, downgrade the long-term certificate of deposit
ratings or long-term unsecured debt ratings of such Lender, and the
resulting ratings shall be below BBB- or Baa3, respectively, or the
equivalent, or
(iv) in the case of a Lender that does not have a long-term
certificate of deposit rating provided by both S&P and ▇▇▇▇▇'▇ or a
long-term unsecured debt rating provided by both S&P and ▇▇▇▇▇'▇, such
Lender suffers a material adverse change in its financial condition or
a material impairment in its ability to honor its obligation to fund
any Loan or to reimburse the Issuer for any Reimbursement Obligation
pursuant to Section 4.4,
(other than during the continuance of an Event of Default) then, at the request
of any Issuer, each Issuer shall each have the right, but not the obligation,
upon notice to such Lender and the Administrative Agent, to replace such Lender
with an Eligible Assignee (a "Replacement Lender") reasonably acceptable to the
Parent, each Issuer and the Administrative Agent (such consents not to be
unreasonably withheld or delayed; provided that no such consent shall be
required if the Replacement Lender is an existing Lender and no such consent of
the Parent shall be required during the continuance of an Event of Default), and
each such Lender hereby agrees to assign and delegate (in accordance with
Section 12.11.1) all its rights and obligations under this Agreement and any
other Loan Document to which it is a party (including all of its Loans,
117
participations in Letter of Credit Outstandings, Commitments and Reimbursement
Obligations) to such Replacement Lender and execute and deliver, on or prior to
the day that the conditions set forth below are satisfied, an assignment
agreement necessary to effectuate any assignment of such Lender's interests
hereunder; provided that (i) such assignment shall be without recourse,
representation or warranty (other than that the Loans, participations in Letter
of Credit Outstandings, Commitments and other rights being assigned, are free
and clear of any Liens created or consented to by such Lender), and (ii) the
purchase price to be paid by the Replacement Lender for such Lender's Loans,
participations, Commitments and other rights and obligations shall be the
purchase price agreed between such Lender and the Replacement Lender (or,
failing such agreement, a purchase price in the amount of the outstanding
principal amount of such Lender's Loans (including, and together with, the
amount of any reimbursement of such Lender of the Issuer pursuant to Section 4.4
that has not been repaid to such Lender), together with all accrued and unpaid
interest and fees in respect thereof, plus all other amounts (other than the
amounts (if any) demanded and unreimbursed under Sections 5.2 through (and
including) 5.6, which shall be paid by the Borrowers, jointly and severally),
owing to such Lender hereunder. Upon any such assignment and delegation, the
Replacement Lender shall in accordance with Section 12.11.1 become a party to
each Loan Document to which such replaced Lender is a party and shall have the
rights and obligations of a Lender thereunder and such replaced Lender shall be
released from its obligations hereunder and each other Loan Document to the
extent of such assignment and delegation but shall continue to be entitled to
the benefits of, and subject to the obligations of, any provision of this
Agreement which by its terms survives the termination of this Agreement.
SECTION 12.12. Other Transactions. Nothing contained herein shall
preclude any Agent or any other Lender from engaging in any transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with any Borrower or any of its Affiliates in which such Borrower or such
Affiliate is not restricted hereby from engaging with any other Person.
SECTION 12.13. Independence of Covenants. All covenants contained in
this Agreement and each other Loan Document shall be given independent effect
such that, in the event a particular action or condition is not permitted by any
of such covenants, the fact that it would be permitted by an exception to, or be
otherwise within the limitations of, another covenant shall not, unless
expressly so provided in such first covenant, avoid the occurrence of a Default
or an Event of Default if such action is taken or such condition exists.
SECTION 12.14. Confidentiality. The Agents, the Issuer and the Lenders
shall hold all non-public information provided to them by the Parent or any of
its Subsidiaries pursuant to or in connection with this Agreement in accordance
with their customary procedures for handling confidential information of this
nature, but may make disclosure to any of their examiners, regulators (including
the National Association of Insurance Commissioners), Affiliates, outside
auditors, counsel and other professional advisors in connection with this
Agreement or any other Loan Document or as reasonably required by any potential
bona fide transferee, participant or assignee, or in connection with the
exercise of remedies under a Loan Document, or as requested by any governmental
agency or representative thereof or pursuant to legal process; provided,
however, that (a) unless specifically prohibited by applicable law or court
118
order, each Agent, the Issuer and each Lender shall promptly notify the
Borrowers of any request by any governmental agency or representative thereof
(other than any such request in connection with an examination of the financial
condition of such Agent, the Issuer or such Lender by such governmental agency)
for disclosure of any such non-public information and, where practicable, prior
to disclosure of such information; (b) prior to any such disclosure pursuant to
this Section 12.14, each Agent, the Issuer and each Lender shall require any
such bona fide transferee, participant and assignee receiving a disclosure of
non-public information to agree, for the benefit of the Parent and its
Subsidiaries, in writing (i) to be bound by this Section 12.14; and (ii) to
require such Person to require any other Person to whom such Person discloses
such non-public information to be similarly bound by this Section 12.14; and (c)
except as may be required by an order of a court of competent jurisdiction and
to the extent set forth therein, no Lender shall be obligated or required to
return any materials furnished by the Parent or any of its Subsidiary.
SECTION 12.15. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE
AGENT, THE LENDERS OR ANY BORROWER SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY
IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE
ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH BORROWER HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK
AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES
TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION.
EACH BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY
REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE
STATE OF NEW YORK. EACH BORROWER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH SUCH PERSON MAY HAVE OR
HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY
SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT ANY BORROWER HAS OR
HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY
LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO SUCH PERSON OR THE
PROPERTY OF SUCH PERSON, EACH BORROWER HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY
IN RESPECT OF THE OBLIGATIONS OF SUCH PERSON UNDER THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS.
119
SECTION 12.16. Waiver of Jury Trial. THE ADMINISTRATIVE AGENT, THE
LENDERS AND EACH BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE AGENT, THE LENDERS OR
ANY BORROWER. EACH BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL
AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF
EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE AGENT AND THE LENDERS ENTERING INTO
THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
120
IN WITNESS WHEREOF, the parties hereto have caused this Agreement 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:________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇
Treasurer
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
DTG OPERATIONS, INC., formerly known as
Dollar Rent A Car Systems, Inc.
By:________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇
Treasurer
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
S-1
THRIFTY RENT-A-CAR SYSTEM, INC.
By:________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇
Treasurer
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
S-2
CREDIT SUISSE FIRST BOSTON, as a Lender,
the Issuer and the Administrative Agent
By:________________________________________
Name:
Title:
By:________________________________________
Name:
Title:
Address: Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
S-3
THE BANK OF NOVA SCOTIA, as a Lender and
the Syndication Agent
By:________________________________________
Name:
Title:
S-4
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES, as a Lender and the
Documentation Agent
By:________________________________________
Name:
Title:
By:________________________________________
Name:
Title:
S-5
ARVEST BANK, as a Lender
By:________________________________________
Name:
Title:
S-6
BANK OF TOKYO - MITSUBISHI TRUST COMPANY,
as a Lender
By:________________________________________
Name:
Title:
▇-▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ BRANCH, as a
Lender
By:________________________________________
Name:
Title:
By:________________________________________
Name:
Title:
S-8
JPMORGAN CHASE BANK, as a Lender
By:________________________________________
Name:
Title:
S-9
BANK OF OKLAHOMA, NATIONAL ASSOCIATION,
as a Lender
By:________________________________________
Name:
Title:
S-10
LOCAL OKLAHOMA BANK, as a Lender
By:________________________________________
Name:
Title:
S-11
MIDFIRST BANK, as a Lender
By:________________________________________
Name:
Title:
S-12
ABN AMRO BANK N.V., as a Lender
By:________________________________________
Name:
Title:
S-13
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Financing, Inc., as a Lender
By:________________________________________
Name:
Title:
S-14
KEYBANK NATIONAL ASSOCIATION, as a Lender
By:________________________________________
Name:
Title:
S-15
SCHEDULE I
LENDER INFORMATION
------------------
------------------------------------------------------------------------------------------------------------------------
NAME OF INSTITUTION AND DOMESTIC OFFICE EURODOLLAR OFFICE PERCENTAGE
ADDRESS FOR NOTICES
------------------------------------------------------------------------------------------------------------------------
ABN AMRO Bank N.V. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Street, 8.333333333%
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ Suite 1500
Suite 625 Chicago, IL 60604 ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Loan Administration Attention: Loan Administration
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------------
Arvest Bank ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ 5.000000000%
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Financing, Inc. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 5.000000000%
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------------
The Bank of Nova Scotia ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, 10.000000000%
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ 30308 ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mystro ▇▇▇▇▇▇▇ Attention: Mystro ▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
NAME OF INSTITUTION AND DOMESTIC OFFICE EURODOLLAR OFFICE PERCENTAGE
ADDRESS FOR NOTICES
------------------------------------------------------------------------------------------------------------------------
Bank of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇ 8.333333333%
Association One ▇▇▇▇▇▇▇▇ Center ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------------
Bank of Tokyo-Mitsubishi Trust 1251 Avenue of the Americas, 1251 Avenue of the Americas, 8.333333333%
Company ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇▇ Attention: ▇▇▇▇▇▇▇ ▇▇
Attention: J. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------------
Credit Suisse First Boston Eleven Madison Avenue Eleven Madison Avenue 11.666666668%
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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Deutsche Bank AG, New York ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 10.000000000%
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NAME OF INSTITUTION AND DOMESTIC OFFICE EURODOLLAR OFFICE PERCENTAGE
ADDRESS FOR NOTICES
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Dresdner Bank AG, New York and ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 10.000000000%
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JPMorgan Chase Bank ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 8.333333333%
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KeyBank National Association ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 5.000000000%
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Local Oklahoma Bank 2250 East 73rd Street, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, 5.000000000%
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ Suite 200
Suite 200 Tulsa, OK 74136 ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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MidFirst Bank ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ 5.000000000%
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SCHEDULE IV
SCHEDULE IV
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UCC DATES
---------
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Debtor Name Date
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Dollar Thrifty Automotive Group, Inc. 7/30/07
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Thrifty, Inc. 8/30/08
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Thrifty Rent-A-Car System, Inc. 7/30/07
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Thrifty Car Sales, Inc. 8/30/08
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Dollar Rent A Car, Inc. 7/30/07
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DTG Operations, Inc. 8/7/07 and 8/30/08
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS.................................4
SECTION 1.1. Defined Terms..............................................4
SECTION 1.2. Use of Defined Terms......................................37
SECTION 1.3. Cross-References..........................................37
SECTION 1.4. Accounting and Financial Determinations...................38
ARTICLE II COMMITMENTS, BORROWING PROCEDURES AND NOTES.....................38
SECTION 2.1. Commitments...............................................38
SECTION 2.1.1. Loan Commitment....................................38
SECTION 2.1.2. Commitment to Issue Letters of Credit..............38
SECTION 2.1.3. Lenders Not Permitted or Required to Make
Loans or Issue Letters of Credit Under
Certain Circumstances...........................38
SECTION 2.2. Reduction of Commitment Amounts...........................39
SECTION 2.2.1. Optional...........................................39
SECTION 2.2.2. Mandatory..........................................39
SECTION 2.2.3. Corresponding Reductions...........................40
SECTION 2.3. Borrowing Procedure.......................................40
SECTION 2.4. Continuation and Conversion Elections.....................41
SECTION 2.5. Funding...................................................41
SECTION 2.6. Loan Accounts.............................................42
ARTICLE III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES......................42
SECTION 3.1. Repayments and Prepayments................................42
SECTION 3.2. Interest Provisions.......................................43
SECTION 3.2.1. Rates..............................................43
SECTION 3.2.2. Post-Maturity Rates................................44
SECTION 3.2.3. Payment Dates......................................44
SECTION 3.3. Fees......................................................45
SECTION 3.3.1. Commitment Fees....................................45
SECTION 3.3.2. [INTENTIONALLY OMITTED]............................45
SECTION 3.3.3. Administrative Agent's Fee.........................45
SECTION 3.3.4. Letter of Credit Face Amount Fee...................45
SECTION 3.3.5. Letter of Credit Issuing Fee.......................45
TABLE OF CONTENTS
Page
SECTION 3.3.6. Letter of Credit Administrative Fee................46
ARTICLE IV LETTERS OF CREDIT...............................................46
SECTION 4.1. Issuance Requests.........................................46
SECTION 4.2. Issuances and Extensions..................................47
SECTION 4.3. Expenses..................................................48
SECTION 4.4. Other Lenders' Participation..............................48
SECTION 4.5. Disbursements.............................................49
SECTION 4.6. Reimbursement.............................................49
SECTION 4.7. Deemed Disbursements......................................50
SECTION 4.8. Nature of Reimbursement Obligations.......................51
SECTION 4.9. Indemnity.................................................51
SECTION 4.10. Borrowers' Guaranty of Reimbursement Obligations
of its Subsidiaries....................................52
SECTION 4.10.1. Guaranty...........................................52
SECTION 4.10.2. Acceleration of Guaranty...........................52
SECTION 4.10.3. Guaranty Absolute, etc.............................52
SECTION 4.10.4. Reinstatement, etc.................................53
SECTION 4.10.5. Waiver, etc........................................54
SECTION 4.10.6. Postponement of Subrogation, etc...................54
SECTION 4.10.7. Right of Contribution..............................55
SECTION 4.10.8. Successors, Transferees and Assigns;
Transfers of Notes, etc.........................55
SECTION 4.11. No Bankruptcy Petition Against RCFC or Dollar
Thrifty Funding........................................55
SECTION 4.12. Existing Letters of Credit................................56
ARTICLE V CERTAIN EURODOLLAR RATE AND OTHER PROVISIONS....................56
SECTION 5.1. Eurodollar Rate Lending Unlawful..........................56
SECTION 5.2. Deposits Unavailable......................................56
SECTION 5.3. Increased Eurodollar Loan Costs, etc......................56
SECTION 5.4. Funding Losses............................................57
SECTION 5.5. Increased Capital Costs...................................57
SECTION 5.6. Taxes.....................................................58
TABLE OF CONTENTS
Page
SECTION 5.7. Payments, Computations, etc...............................61
SECTION 5.8. Sharing of Payments.......................................62
SECTION 5.9. Setoff....................................................63
SECTION 5.10. Replacement of Lender.....................................63
ARTICLE VI CONDITIONS PRECEDENT............................................65
SECTION 6.1. [INTENTIONALLY OMITTED]...................................65
SECTION 6.2. All Credit Extensions.....................................65
SECTION 6.2.1. Compliance with Warranties, No Default, etc........65
SECTION 6.2.2. Credit Request.....................................65
SECTION 6.2.3. Enhancement Letters of Credit......................66
SECTION 6.2.4. Satisfactory Legal Form............................66
ARTICLE VII REPRESENTATIONS AND WARRANTIES..................................66
SECTION 7.1. Organization, etc.........................................66
SECTION 7.2. Due Authorization, Non-Contravention, etc.................67
SECTION 7.3. Government Approval, Regulation, etc......................67
SECTION 7.4. Validity, etc.............................................67
SECTION 7.5. Financial Information.....................................68
SECTION 7.6. No Material Adverse Change................................68
SECTION 7.7. Litigation, Labor Controversies, etc......................68
SECTION 7.8. Subsidiaries..............................................68
SECTION 7.9. Ownership of Properties...................................69
SECTION 7.10. Taxes.....................................................69
SECTION 7.11. Pension and Welfare Plans.................................69
SECTION 7.12. Environmental Warranties..................................70
SECTION 7.13. Intellectual Property.....................................71
SECTION 7.14. Regulations U and X.......................................72
SECTION 7.15. Accuracy of Information...................................72
SECTION 7.16. Other Transaction Documents...............................72
SECTION 7.17. Non-Guarantor Subsidiaries................................72
SECTION 7.18. Non-Impairment, etc.......................................73
ARTICLE VIII COVENANTS.......................................................74
TABLE OF CONTENTS
Page
SECTION 8.1. Affirmative Covenants.....................................74
SECTION 8.1.1. Financial Information, Reports, Notices, etc.......74
SECTION 8.1.2. Compliance with Laws, Material Agreements, etc.....77
SECTION 8.1.3. Maintenance of Properties..........................77
SECTION 8.1.4. Insurance..........................................77
SECTION 8.1.5. Books and Records..................................78
SECTION 8.1.6. Environmental Covenant.............................78
SECTION 8.1.7. Use of Proceeds....................................79
SECTION 8.1.8. Additional Real Property...........................79
SECTION 8.1.9. Future Subsidiaries................................80
SECTION 8.2. Negative Covenants........................................83
SECTION 8.2.1. Business Activities................................83
SECTION 8.2.2. Indebtedness.......................................85
SECTION 8.2.3. Liens..............................................88
SECTION 8.2.4. Financial Condition................................90
SECTION 8.2.5. Investments........................................90
SECTION 8.2.6. Restricted Payments, etc...........................92
SECTION 8.2.7. Capital Expenditures, etc..........................95
SECTION 8.2.8. Take or Pay Contracts..............................95
SECTION 8.2.9. Consolidation, Merger, etc.........................95
SECTION 8.2.10. Asset Dispositions, etc............................96
SECTION 8.2.11. Modification of Certain Agreements.................97
SECTION 8.2.12. Transactions with Affiliates.......................97
SECTION 8.2.13. Negative Pledges, Restrictive Agreements, etc......97
SECTION 8.2.14. Ability to Amend; Restrictive Agreements...........98
SECTION 8.2.15. Accounting Changes.................................98
SECTION 8.2.16. Activities of the Parent...........................98
ARTICLE IX EVENTS OF DEFAULT...............................................99
SECTION 9.1. Listing of Events of Default..............................99
SECTION 9.1.1. Non-Payment of Obligations.........................99
SECTION 9.1.2. Breach of Warranty.................................99
TABLE OF CONTENTS
Page
SECTION 9.1.3. Non-Performance of Certain Covenants and
Obligations.....................................99
SECTION 9.1.4. Non-Performance of Other Covenants and
Obligations.....................................99
SECTION 9.1.5. Default on Other Indebtedness.....................100
SECTION 9.1.6. Judgments.........................................100
SECTION 9.1.7. Pension Plans.....................................100
SECTION 9.1.8. Change in Control.................................101
SECTION 9.1.9. Bankruptcy, Insolvency, etc.......................101
SECTION 9.1.10. Impairment of Security, etc.......................101
SECTION 9.2. Action if Bankruptcy.....................................101
SECTION 9.3. Action if Other Event of Default.........................102
ARTICLE X BORROWERS GUARANTY.............................................102
SECTION 10.1. Guaranty.................................................102
SECTION 10.2. Acceleration of Borrowers Guaranty.......................103
SECTION 10.3. Guaranty Absolute, etc...................................103
SECTION 10.4. Reinstatement, etc.......................................104
SECTION 10.5. Waiver, etc..............................................104
SECTION 10.6. Postponement of Subrogation, etc.........................104
SECTION 10.7. Right of Contribution....................................105
SECTION 10.8. Successors, Transferees and Assigns; Transfers
of Notes, etc.........................................105
ARTICLE XI THE AGENTS.....................................................105
SECTION 11.1. Actions..................................................105
SECTION 11.2. Funding Reliance, etc....................................106
SECTION 11.3. Exculpation..............................................106
SECTION 11.4. Successor................................................107
SECTION 11.5. Credit Extensions by Agents..............................107
SECTION 11.6. Credit Decisions.........................................107
SECTION 11.7. Security Documents.......................................108
SECTION 11.8. Copies, etc..............................................108
SECTION 11.9. Subagents................................................108
TABLE OF CONTENTS
Page
SECTION 11.10. Reliance by Administrative Agent.........................108
SECTION 11.11. Other Agent Parties......................................109
SECTION 11.12. Rate Protection Agreements; Release of Liens.............109
ARTICLE XII MISCELLANEOUS PROVISIONS.......................................109
SECTION 12.1. Waivers, Amendments, etc.................................109
SECTION 12.2. Notices..................................................110
SECTION 12.3. Payment of Costs and Expenses............................111
SECTION 12.4. Indemnification..........................................111
SECTION 12.5. Survival.................................................112
SECTION 12.6. Severability.............................................113
SECTION 12.7. Headings.................................................113
SECTION 12.8. Execution in Counterparts, Effectiveness, etc............113
SECTION 12.9. Governing Law; Entire Agreement..........................113
SECTION 12.10. Successors and Assigns...................................113
SECTION 12.11. Sale and Transfer of Loans and Notes;
Participations in Loans and Notes.....................113
SECTION 12.11.1. Assignments.......................................114
SECTION 12.11.2. Participations....................................116
SECTION 12.11.3. Lender Downgrade; Lender Replacement..............116
SECTION 12.12. Other Transactions.......................................118
SECTION 12.13. Independence of Covenants................................118
SECTION 12.14. Confidentiality..........................................118
SECTION 12.15. Forum Selection and Consent to Jurisdiction..............118
SECTION 12.16. Waiver of Jury Trial.....................................119
TABLE OF CONTENTS
SCHEDULE I - Lender Information
SCHEDULE II - Subordinated Intercompany Note Terms
SCHEDULE III - Existing Material Property
SCHEDULE IV - UCC Dates
DISCLOSURE SCHEDULE
EXHIBIT A - Form of Revolving Note
EXHIBIT B-1 - Form of Borrowing Request
EXHIBIT B-2 - Form of Issuance Request
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D - Form of Compliance Certificate
EXHIBIT E - Form of Pledge Agreement
EXHIBIT F - Form of Security Agreement
EXHIBIT G - Form of Subsidiary Guaranty
EXHIBIT H-1 - Form of Mortgage
EXHIBIT H-2 - Form of Deed of Trust
EXHIBIT I - [Intentionally Omitted.]
EXHIBIT J - Form of CP Enhancement Letter of Credit
EXHIBIT K - Form of Amendment Effective Date Certificate
EXHIBIT L - Form of Lender Assignment Agreement
EXHIBIT M - Form of U.S. Tax Compliance Certificate
