EXHIBIT 4.117
-------------
[EXECUTION COPY]
AMENDMENT AND ASSIGNMENT AGREEMENT
THIS AMENDMENT AND ASSIGNMENT AGREEMENT, dated as of April 1, 2004
(this "Amendment Agreement"), is made by and 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 SYSTEM, INC., an Oklahoma corporation
("Thrifty," and, together with Operations, the "Subsidiary Borrowers"; the
Parent and the Subsidiary Borrowers being collectively referred to herein as the
"Borrowers"), the various financial institutions which are identified as
"Increasing Continuing Lenders" (the "Increasing Continuing Lenders"), "Reducing
Continuing Lenders" (the "Reducing Continuing Lenders") and "Maintaining
Continuing Lenders" (the "Maintaining Continuing Lenders") on the signature
pages hereof (the Increasing Continuing Lenders, the Reducing Continuing Lenders
and the Maintaining Continuing Lenders are collectively referred to herein as,
the "Continuing Lenders"), the financial institution which is identified as the
"Non-Continuing Lender" on the signature pages hereof (the "Non-Continuing
Lender" and, together with the Continuing Lenders, the "Existing Lenders"), the
various financial institutions which are identified as "New Lenders" on the
signature pages hereof (collectively, the "New Lenders", and, together with the
Continuing Lenders, 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 new syndication agent under the Third Amended and Restated
Credit Agreement, Credit Suisse First Boston, as the sole bookrunner under the
Third Amended and Restated Credit Agreement, DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as the documentation agent under the Third Amended and
Restated Credit Agreement and Credit Suisse First Boston and Scotia Capital as
the co-arrangers under the Third Amended and Restated Credit Agreement (in such
capacities, the "Arrangers").
W I T N E S S E T H:
-------------------
WHEREAS, the Borrowers, the Existing Lenders and the Administrative Agent
are parties to a Second Amended and Restated Credit Agreement, dated as of
December 6, 2002 (as amended and in effect immediately prior to the Amendment
Effective Date, the "Second Amended and Restated Credit Agreement", and together
with all of the Loan Documents (as defined therein and in effect immediately
prior to the Amendment Effective Date), the "Existing Loan Documents");
WHEREAS, the Borrowers have requested that the Existing Lenders amend and
restate the Second Amended and Restated Credit Agreement and certain of the
other Existing Loan Documents, which amendment and restatement includes, among
other things, an $85,000,000 increase (the "Commitment Increase") in the
Commitment Amount (from $215,000,000 to $300,000,000), all as provided in the
Third Amended and Restated Credit Agreement attached hereto as Annex I;
WHEREAS, (a) the Non-Continuing Lender and the Reducing Continuing Lenders
each desires, concurrently with the assignments and assumptions being effected
pursuant to Section 2.2(a), to sell and assign, in the case of the
Non-Continuing Lender, all, and in the case of each Reducing Continuing Lender,
a portion, of its rights and obligations under the Second Amended and Restated
Credit Agreement and each other Existing Loan Document to each Increasing
Continuing Lender and New Lender and (b) each such Increasing Continuing Lender
and New Lender desires to assume from each such Existing Lender such portion of
such rights and obligations in accordance with the terms hereof; and
WHEREAS, each Increasing Continuing Lender and New Lender desires to, on
the terms and subject to the conditions hereinafter set forth, to, in the case
of each Increasing Continuing Lender, increase its Commitments and, in the case
of each New Lender, provide Commitments in accordance with the terms hereof in
an aggregate amount equal to the Commitment Increase;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Definitions. The following terms (whether or not
underscored) when used in this Amendment Agreement shall have the following
meanings (such meanings to be equally applicable to the singular and plural
forms thereof):
"Administrative Agent" is defined in the preamble.
"Amendment Agreement" is defined in the preamble.
"Amendment Effective Date" is defined in Section 3.1.
"Arrangers" is defined in the preamble.
"Borrowers" is defined in the preamble.
"Commitment Increase" is defined in the second recital.
"Continuing Lenders" is defined in the preamble.
"Credit Suisse First Boston" is defined in the preamble.
"Existing Lenders" is defined in the preamble.
"Existing Loan Documents" is defined in the first recital.
"Existing Security Documents" is defined in Section 4.5.
"Increasing Continuing Lenders" is defined in the preamble.
2
"Lenders" is defined in the preamble.
"Maintaining Continuing Lenders" is defined in the preamble.
"New Lenders" is defined in the preamble.
"Non-Continuing Lender" is defined in the preamble.
"Operations" is defined in the preamble.
"Parent" is defined in the preamble.
"Pro Rata Percentage" means (i) with respect to any Increasing Continuing
Lender, the percentage obtained by dividing the increase in such Lender's
Commitment after giving effect to this Amendment Agreement by $105,000,000, and
(ii) with respect to any New Lender, the percentage obtained by dividing such
Lender's Commitment after giving effect to this Amendment Agreement by
$105,000,000.
"Reducing Continuing Lenders" is defined in the preamble.
"Scotia Capital" is defined in the preamble.
"Second Amended and Restated Credit Agreement" is defined in the first
recital.
"Subsidiary Borrowers" is defined in the preamble.
"Third Amended and Restated Credit Agreement" is defined in Section 2.1.
"Thrifty" is defined in the preamble.
SECTION 1.2. Other Definitions. Unless otherwise defined or the context
otherwise requires, terms used in this Amendment Agreement, including its
preamble and recitals, have the meanings provided in the Third Amended and
Restated Credit Agreement.
ARTICLE II
AMENDMENT AND RESTATEMENT; NEW LENDERS
SECTION 2.1. Amendment and Restatement. Effective on (and subject to the
occurrence of) the Amendment Effective Date and concurrently with the
assignments and assumptions being effected pursuant to Section 2.2(a), the
Second Amended and Restated Credit Agreement (including Exhibits A, D, E, F, G
and K, Schedule I, Schedule III, Schedule IV and the Disclosure Schedule, but
excluding all other Exhibits and Schedules thereto) shall be and is hereby
amended and restated to read in its entirety as set forth in Annex I hereto (as
set forth in such Annex I, the "Third Amended and Restated Credit Agreement"),
and as so amended and restated is hereby ratified, approved and confirmed in
each and every respect. The rights and obligations of the parties to the Third
Amended and Restated Credit Agreement with respect to the period prior to the
occurrence of the Amendment Effective Date shall not be affected by such
amendment and restatement.
3
SECTION 2.2. Lender Assignments and Assumptions; Commitment Increase.
(a) Assignments and Assumptions. Effective on (and subject to the
occurrence of) the Amendment Effective Date and concurrently with the
amendment and restatement of the Second Amended and Restated Credit
Agreement (including Exhibits A, D, E, F, G and K, Schedule I, Schedule
III, Schedule IV and the Disclosure Schedule, but excluding all other
Exhibits and Schedules thereto) being effected pursuant to Section 2.1,
(i) the Non-Continuing Lender hereby irrevocably sells,
transfers, conveys and assigns, without recourse, representation or
warranty (except as expressly set forth herein), to each Increasing
Continuing Lender and each New Lender, and each such Increasing
Continuing Lender and such New Lender hereby irrevocably purchases and
assumes from the Non-Continuing Lender its Pro Rata Percentage of all
of the rights and obligations of the Non-Continuing Lender under the
Second Amended and Restated Credit Agreement and each other Existing
Loan Document such that, after giving effect to the foregoing
assignment and delegation and the transactions described in clauses
(ii) and (iii) of this Section 2.2(a), each such Increasing Continuing
Lender's and such New Lender's Percentages for the purposes of the
Third Amended and Restated Credit Agreement and each other Loan
Document will be as set forth opposite such Person's name under the
column heading "New Percentage" in Schedule I hereto,
(ii) each of the Reducing Continuing Lenders hereby irrevocably
sells, transfers, conveys and assigns, without recourse,
representation or warranty (except as expressly set forth herein), to
each Increasing Continuing Lender and each New Lender, and each such
Increasing Continuing Lender and such New Lender hereby irrevocably
purchases and assumes from each Reducing Continuing Lender its Pro
Rata Percentage of a portion of the rights and obligations of such
Reducing Continuing Lender under the Second Amended and Restated
Credit Agreement and each other Existing Loan Document such that,
after giving effect to the foregoing assignment and delegation and the
transactions described in clauses (i) and (iii) of this Section
2.2(a), each such Reducing Continuing Lender's, each such Increasing
Continuing Lender's and each such New Lender's Percentages for the
purposes of the Third Amended and Restated Credit Agreement and each
other Loan Document will be as set forth opposite such Person's name
under the column heading "New Percentage" in Schedule I hereto, and
(iii) each Increasing Continuing Lender and each New Lender
hereby agrees to provide its Pro Rata Percentage of the Commitment
Increase such that, after giving effect thereto and to the
transactions described in clauses (i) and (ii) of this Section 2.2(a),
each such Increasing Continuing Lender's and such New Lender's
Percentages for the purposes of the Third Amended and Restated Credit
Agreement and each other Loan Document will be as set forth opposite
such Person's name under the column heading "New Percentage" in
Schedule I hereto.
4
(b) Additional Provisions for Assignments and Assumptions.
(i) Each New Lender confirms and agrees that in becoming a
Lender and in making its Commitments under the Third Amended and
Restated Credit Agreement, such actions have and will be made without
recourse to, or representation or warranty by the Administrative
Agent.
(ii) The Non-Continuing Lender, the Reducing Continuing
Lenders, the Increasing Continuing Lenders and the New Lenders each
represents and warrants that it is legally authorized to enter into
and deliver this Amendment Agreement and that this Amendment Agreement
constitutes a legal, valid and binding obligation of such Person.
(iii) The Non-Continuing Lender and the Reducing Continuing
Lenders each confirms and agrees that it is the legal and beneficial
owner of such rights and obligations that it is assigning pursuant to
Section 2.2(a), free and clear of any adverse claim created by it.
Except as set forth in the preceding sentence, the Non-Continuing
Lender and the Reducing Continuing Lenders make no representation or
warranty and assume no responsibility with respect to any statements,
warranties or representations made pursuant to or in connection with
this Amendment Agreement, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Second
Amended and Restated Credit Agreement or any other Existing Loan
Document or any other instrument or document furnished pursuant hereto
or thereto, including the financial condition of the Parent or any of
its Subsidiaries or the performance or observance by any Obligor or
any Lender of any of its obligations under the Second Amended and
Restated Credit Agreement, any other Existing Loan Document or any
other instrument or document furnished pursuant hereto or thereto.
(iv) Each Increasing Continuing Lender and each New Lender
represents and warrants and confirms that it has received copies of
the most recent financial statements delivered pursuant to Section 3.7
of this Amendment Agreement and such other documents and information
as it has deemed appropriate to make its own credit analysis and
decision to enter into this Amendment Agreement. In addition, each
Increasing Continuing Lender and each New Lender, independently and
without reliance upon the Non-Continuing Lender, any other Lender or
the Administrative Agent, and based on such documents and information
as it shall deem appropriate at the time, shall continue to make its
own credit decisions in taking or not taking action under the Third
Amended and Restated Credit Agreement, the other Loan Documents and
the other instruments and documents delivered in connection therewith.
5
(v) Immediately following all such assignments and assumptions
effected pursuant to Section 2.2(a), the Non-Continuing Lender shall
be released from all of its obligations to the Obligors under the
Second Amended and Restated Credit Agreement and the other Existing
Loan Documents.
(c) Waiver of Administrative Agent Processing Fee. The Administrative
Agent hereby agrees to waive receipt of the payment of the processing fees
set forth in Section 12.11.1 of the Second Amended and Restated Credit
Agreement in respect of the assignments effected under clause (a) above.
ARTICLE III
CONDITIONS TO EFFECTIVENESS
SECTION 3.1. Amendment Effective Date. This Amendment Agreement, and the
amendments, modifications and assignments set forth herein, shall be and become
effective on the date (the "Amendment Effective Date") when each of the
conditions set forth in this Article III shall have been fulfilled to the
satisfaction of the Administrative Agent on or before April 1, 2004.
SECTION 3.2. Resolutions, etc. The Administrative Agent shall have
received from each Borrower and each other Obligor (i) copies of good standing
certificates for each such Person, dated a date reasonably close to the
Amendment Effective Date, from the secretary of state of such Person's
jurisdiction of incorporation or organization and for each jurisdiction where
such Person is qualified as a foreign entity and maintains operations material
to its business and (ii) a certificate, dated the Amendment Effective Date, of
the Secretary or Assistant Secretary of such Person as to
(a) resolutions of its Board of Directors then in full force and
effect authorizing the execution, delivery and performance of this
Amendment Agreement, the Third Amended and Restated Credit Agreement, the
Notes and each other Loan Document to be executed by it;
(b) the incumbency and signatures of those of its officers authorized
to act with respect to this Amendment Agreement, the Third Amended and
Restated Credit Agreement, the Notes and each other Loan Document executed
by it; and
(c) the full force and validity of each Organic Document of such
Person and true and complete copies thereof,
upon which certificate each Lender, the Issuer and the Administrative Agent may
conclusively rely until it shall have received a further certificate of the
Secretary of such Borrower or such other Obligor canceling or amending such
prior certificate.
SECTION 3.3. Execution of Counterparts. The Administrative Agent shall
have received counterparts of this Amendment Agreement, duly executed and
delivered on behalf of each of the Borrowers, the Non-Continuing Lender and each
of the Lenders.
6
SECTION 3.4. Execution of the Third Amended and Restated Credit
Agreement. The Administrative Agent shall have received counterparts of the
Third Amended and Restated Credit Agreement, duly executed and delivered on
behalf of each of the Borrowers and each Lender.
SECTION 3.5. Consents, etc. All governmental and third party approvals
and consents necessary in connection with the amendment and restatement of the
Second Amended and Restated Credit Agreement in the form of Annex I hereto and
the other transactions contemplated hereby and by the Third Amended and Restated
Credit Agreement (including the execution and delivery of this Amendment
Agreement, the Third Amended and Restated Credit Agreement and each other Loan
Document by each Obligor or party hereto and thereto and their performance of
their respective Obligations hereunder and thereunder) and continuing operations
of the Parent and its Subsidiaries (after giving effect to the amendment and
restatement of the Second Amended and Restated Credit Agreement in the form of
Annex I hereto and the other transactions contemplated hereby and by the Third
Amended and Restated Credit Agreement) shall have been obtained and be in full
force and effect (and, to the extent requested by the Administrative Agent, the
Administrative Agent shall have received true and correct copies of such
approvals and consents) and all applicable waiting periods shall have expired
without any action being taken or threatened by any competent authority which
would restrain, prevent or otherwise impose adverse conditions on any aspect of
the amendment and restatement of the Second Amended and Restated Credit
Agreement in the form of Annex I hereto and the other transactions contemplated
hereby and by the Third Amended and Restated Credit Agreement.
SECTION 3.6. Amendment Effective Date Certificate. The Administrative
Agent shall have received, with counterparts for each Lender, the Amendment
Effective Date Certificate, dated the date of the Amendment Effective Date and
duly executed and delivered by an Authorized Officer of each Borrower, in which
certificate such Borrower shall agree and acknowledge that the statements made
therein shall be deemed to be true and correct representations and warranties of
such Borrower made as of such date, and, at the time such certificate is
delivered, such statements shall in fact be true and correct. All documents and
agreements required to be appended to the Amendment Effective Date Certificate
shall be in form and substance reasonably satisfactory to the Administrative
Agent.
SECTION 3.7. Audited Financials; Delivery of Projections. The
Administrative Agent shall have received:
(a) the audited consolidated financial statements of the Parent and
its Subsidiaries as at December 31, 2003 that are required to be delivered
pursuant to clause (b) of Section 8.1.1 of the Second Amended and Restated
Credit Agreement;
(b) projected annual financial statements (including balance sheets
and statements of operations and cash flows) for the Parent and its
Subsidiaries for the five-year period beginning with the 2004 Fiscal Year;
and
7
(c) projected monthly financial statements (including balance sheets
and statements of operations and cash flows) for the Parent and its
Subsidiaries for the 2004 Fiscal Year.
SECTION 3.8. No Material Adverse Change. There shall not have occurred a
material adverse change in the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the Parent and
its Subsidiaries, taken as a whole, since December 31, 2003.
SECTION 3.9. Delivery of Notes. The Administrative Agent shall have
received, for the account of each Lender that has submitted, at least three
Business Days prior to the Amendment Effective Date, a written request that such
Lender's Loan Commitment be evidenced by a Note, a Note duly executed and
delivered by a Borrower. Nothing in this Section shall limit the rights of any
Lender to request a Note at any other time pursuant to clause (b) of Section 2.6
of the Third Amended and Restated Credit Agreement.
SECTION 3.10. Guaranty. The Administrative Agent shall have received, with
counterparts for each Lender, the Subsidiary Guaranty, dated as of the Amendment
Effective Date, duly executed and delivered by an Authorized Officer of each
Subsidiary Guarantor.
SECTION 3.11. Pledge Agreement. The Administrative Agent shall have
received, with counterparts for each Lender, the Pledge Agreement, dated as of
the Amendment Effective Date, duly executed by an Authorized Officer of each
Borrower and each Subsidiary Guarantor, together with (to the extent not
previously delivered) (i) all promissory notes pledged pursuant to the Pledge
Agreement evidencing Indebtedness payable to the Borrower duly endorsed to the
order of the Administrative Agent, and (ii) the certificates evidencing all of
the issued and outstanding shares of Capital Stock pledged pursuant to the
Pledge Agreement, which certificates shall in each case be accompanied by
undated powers of transfer duly executed in blank, or, if any securities pledged
pursuant to the Pledge Agreement are uncertificated securities, confirmation and
evidence satisfactory to the Administrative Agent that the security interest in
such uncertificated securities has been transferred to and perfected by the
Administrative Agent for the benefit of the Lenders in accordance with the
U.C.C. or any similar or local law which may be applicable.
SECTION 3.12. Security Agreement. The Administrative Agent shall have
received, with counterparts for each Lender, the Security Agreement, dated as of
the Amendment Effective Date, duly executed by an Authorized Officer of each
Borrower and each Subsidiary Guarantor together with (i) (to the extent not
previously delivered to the Administrative Agent or, if previously delivered to
the Administrative Agent, to the extent expiring within six months of the
Amendment Effective Date), U.C.C. financing statements (Form UCC-1) naming each
Borrower and each Subsidiary Guarantor as the debtor and the Administrative
Agent as the secured party, or other similar instruments or documents, suitable
for filing under the U.C.C. of all jurisdictions as may be necessary or, in the
opinion of the Administrative Agent, desirable to perfect the security interest
of the Administrative Agent in the interests of each Borrower and each
Subsidiary Guarantor in the collateral pledged pursuant to such Security
Agreement and (ii) 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 to
the Amendment Effective Date, listing all effective financing statements, tax
liens and judgment liens which name such Borrowers or such Subsidiaries (under
their respective present names and any previous names) as the debtor, together
with copies of such financing statements (none of which (other than those
permitted under Section 8.2.3 of the Third Amended and Restated Credit
Agreement) shall cover any collateral described in the Security Agreement or
Pledge Agreement).
8
SECTION 3.13. Mortgages. The Administrative Agent shall have received
counterparts of an amendment, in form and substance satisfactory to the
Administrative Agent and dated as of the Amendment Effective Date, to each
existing Mortgage, duly executed by the applicable Borrower or Subsidiary having
rights in the property described in such Mortgage, together with
(a) evidence of the completion (or satisfactory arrangements for the
completion) of all recordings and filings (including U.C.C. financing
statements) of each such amendment as may be necessary or, in the
reasonable opinion of the Administrative Agent, desirable to continue a
valid, perfected first priority Lien against the land and improvements
purported to be covered thereby;
(b) endorsements to mortgagee's title insurance policies in favor of
the Administrative Agent and the Lenders 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 Existing 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 continue to constitute valid first Liens
thereon free and clear of (i) any intervening Liens which may, on the date
hereof or hereafter, take priority over the Lien of the Mortgage and (ii)
all defects and encumbrances other than as approved by the Administrative
Agent and shall be accompanied by evidence of the payment in full of all
additional premiums, if any, thereon; and
(c) such other certifications (including flood hazard
certifications), certificates (including insurance certificates),
approvals, opinions or documents as the Administrative Agent may reasonably
request.
SECTION 3.14. Acknowledgment of Obligors. The Administrative Agent shall
have received, with counterparts for each Lender, an affirmation and
acknowledgment, substantially in the form of Annex II, dated as of the Amendment
Effective Date, from each Obligor not otherwise a party to this Amendment
Agreement affirming its obligations under the Loan Documents to which it is a
party and acknowledging the amendment and restatement of the Second Amended and
Restated Credit Agreement in the form of Annex I hereto and the other
transactions contemplated hereby and by the Third Amended and Restated Credit
Agreement, which affirmation and acknowledgment shall have been duly executed
and delivered by an Authorized Officer of each such Obligor.
9
SECTION 3.15. Opinions of Counsel. The Administrative Agent shall have
received opinions, dated the Amendment Effective Date and addressed to the
Administrative Agent, the Issuer and the Lenders, from (a) Debevoise & Xxxxxxxx,
New York counsel for the Obligors, in form and substance reasonably satisfactory
to the Administrative Agent, (b) Hall, Estill, Hardwick, Gable, Golden & Xxxxxx,
Oklahoma counsel for the Obligors, in form and substance reasonably satisfactory
to the Administrative Agent, and (c) local counsel to the Obligors satisfactory
to the Administrative Agent, in form and substance reasonably satisfactory to
the Administrative Agent, in Florida, Arizona, Texas, Nevada and Utah.
SECTION 3.16. Fees, Expenses, etc. (a) Each of the Arrangers and Lenders
shall have received, for its own account, such fees that may be due and payable
pursuant to arrangements that such Arrangers or Lenders may have made with the
Borrowers.
(b) The Administrative Agent shall have received for its own account
all fees, costs and expenses due and payable pursuant to Section 5.2 and
Sections 3.3 and 12.3 of the Third Amended and Restated Credit Agreement,
to the extent then invoiced.
SECTION 3.17. Payment Interest, Commitment Fees and Letter of Credit Fees
under the Second Amended and Restated Credit Agreement. The Administrative Agent
shall have received for its own account, and for the account of the
Non-Continuing Lender and each Lender, as the case may be, all interest fees,
costs and expenses due and payable pursuant to the Second Amended and Restated
Credit Agreement, together with all other interest and fees accrued (to, but
excluding the Amendment Effective Date) but unpaid under the Second Amended and
Restated Credit Agreement (including commitment fees and letter of credit fees
due under Section 3.3 of the Second Amended and Restated Credit Agreement)
(whether or not due on the Amendment Effective Date).
SECTION 3.18. Satisfactory Legal Form. All documents executed or submitted
pursuant hereto by or on behalf of any Borrower or any of their respective
Subsidiaries or any other Obligor shall be satisfactory in form and substance to
the Administrative Agent and its counsel; and the Administrative Agent and such
counsel shall have received all information, approvals, opinions, documents or
instruments as the Administrative Agent or such counsel may reasonably request.
SECTION 3.19. No Default. No Default or Event of Default under the Second
Amended and Restated Credit Agreement shall have occurred and be continuing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders, the Issuer and the Administrative Agent to
enter into this Amendment Agreement and to amend and restate the Second Amended
and Restated Credit Agreement (including the exhibits and schedules referred to
in Section 2.1) to read in its entirety as set forth in Annex I hereto, each of
the Borrowers represents and warrants unto each Agent, the Issuer and each
Lender as set forth in this Article IV.
10
SECTION 4.1. Compliance with Representations and Warranties. The
representations and warranties set forth herein, in Article VII of the Third
Amended and Restated Credit Agreement and in each other Loan Document delivered
in connection with this Amendment Agreement, the Third Amended and Restated
Credit Agreement or the Second Amended and Restated Credit Agreement are true
and correct with the same effect as if made on and as of the Amendment Effective
Date (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).
SECTION 4.2. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by each Borrower of this Amendment Agreement, the Third
Amended and Restated Credit 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
amendment and restatement of the Second Amended and Restated Credit Agreement in
the form of Annex I hereto and the other transactions contemplated hereby and by
the Third Amended and Restated Credit 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) on any of such
Borrower or such other Obligor's properties.
SECTION 4.3. 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 Amendment Agreement, the Third Amended and Restated Credit 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 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 Third Amended and Restated
Credit Agreement and 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 amendment
and restatement of the Second Amended and Restated Credit Agreement in the form
of Annex I hereto and the other transactions contemplated hereby and by the
Third Amended and Restated Credit Agreement and the other Loan Documents. No
Borrower nor any of its Subsidiaries is 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.
11
SECTION 4.4. Validity, etc. This Amendment Agreement constitutes, and the
Third Amended and Restated Credit Agreement, 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.
SECTION 4.5. Non-Impairment, etc. After giving effect to this Amendment
Agreement, neither the modification and restatement of the Second Amended and
Restated Credit Agreement or any other Existing Loan Document effected pursuant
to this Amendment Agreement nor the execution, delivery, performance or
effectiveness of this Amendment Agreement, the Third Amended and Restated Credit
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 Second Amended and Restated Credit
Agreement and as in effect immediately prior to the 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 Second
Amended and Restated Credit Agreement or the other Existing Loan Documents
effected pursuant to this Amendment Agreement nor the execution, delivery,
performance or effectiveness of this Amendment Agreement, the Third Amended and
Restated Credit 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 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 and restatement of the Second Amended and Restated Credit Agreement
or the other Existing Loan Documents effected pursuant to this Amendment
Agreement or by the execution, delivery, performance or effectiveness of this
Amendment Agreement, the Third Amended and Restated Credit Agreement or any
other Loan Document.
SECTION 4.6. Compliance With Second Amended and Restated Credit
Agreement. As of the execution and delivery of this Amendment Agreement and up
to the Amendment Effective Date, each Obligor is in compliance in all material
respects with all the terms and conditions of the Second Amended and Restated
Credit Agreement and the other Existing Loan Documents to be observed or
performed by it, and no Default has occurred and is continuing.
12
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. No Other Amendments; References to the Credit Agreement.
Other than as specifically provided herein or in the amendment of terms and
conditions of the Second Amended and Restated Credit Agreement that are
specifically reflected in the Third Amended and Restated Credit Agreement, this
Amendment Agreement shall not operate as a waiver or amendment of any right,
power or privilege of any Lender under the Second Amended and Restated Credit
Agreement or any other Existing Loan Document or of any other term or condition
of the Second Amended and Restated Credit Agreement or any other Existing Loan
Document nor shall the entering into of this Amendment Agreement preclude the
Lenders from refusing to enter into any further waivers or amendments with
respect to the Third Amended and Restated Credit Agreement. All references to
the Second Amended and Restated Credit Agreement in any document, instrument,
agreement, or writing shall from and after the Amendment Effective Date be
deemed to refer to the Third Amended and Restated Credit Agreement, and, as used
in the Third Amended and Restated Credit Agreement, the terms "Agreement",
"herein", "hereunder", "hereto", and words of similar import shall mean, from
and after the Amendment Effective Date, the Third Amended and Restated Credit
Agreement.
SECTION 5.2. Fees and Expenses. The Borrowers shall pay all reasonable
out-of-pocket expenses incurred by the Administrative Agent in connection with
the preparation, negotiation, execution and delivery of this Amendment Agreement
(and the Third Amended and Restated Credit Agreement), including all reasonable
fees and disbursements of Mayer, Brown, Xxxx & Maw, LLP as counsel for the
Administrative Agent.
SECTION 5.3. Further Assurances, etc. Each of the Borrowers agrees that,
from time to time at its own expense, it will promptly execute and deliver, or
cause the execution and delivery of, all further instruments and documents, and
take all further action, that may be necessary or reasonably desirable, or that
the Administrative Agent may reasonably request, in order to effectuate the
amendments to, and modifications of, the provisions of the Loan Documents
expressly contemplated herein, including (i) amendments to, and/or modifications
of, other provisions of the Loan Documents and (ii) for purposes of maintaining
the validity, effectiveness and priority of the Liens granted pursuant to the
Existing Security Documents or enabling the Administrative Agent to exercise and
enforce its rights and remedies with respect to any Collateral (as defined in
the relevant Loan Document).
SECTION 5.4. Headings. The various headings of this Amendment Agreement
are inserted for convenience only and shall not affect the meaning or
interpretation of this or any other provisions hereof.
SECTION 5.5. Governing Law. THIS AMENDMENT AGREEMENT, THE THIRD AMENDED
AND RESTATED CREDIT 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.
13
SECTION 5.6. Counterparts. This Amendment Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. The
parties hereto agree that delivery of an executed counterpart of a signature
page to this Amendment Agreement by facsimile shall be effective as delivery of
an original executed counterpart of this Amendment Agreement.
SECTION 5.7. Cross-References. References in this Amendment Agreement to
any Article or Section are, unless otherwise specified or otherwise required by
the context, to such Article or Section of this Amendment Agreement.
SECTION 5.8. Successors and Assigns. This Amendment Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
14
IN WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement
to be executed by their respective duly authorized officers as of the day and
year first above written.
DOLLAR THRIFTY AUTOMOTIVE GROUP, INC.
By:________________________________________
Xxxxxx X. Xxxx
Treasurer
Address: 0000 Xxxx 00xx Xxxxxx
Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxx
DTG OPERATIONS, INC., formerly known as
Dollar Rent A Car Systems, Inc.
By:________________________________________
Xxxxxx X. Xxxx
Treasurer
Address: 0000 Xxxx 00xx Xxxxxx
Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxx
S-1
THRIFTY RENT-A-CAR SYSTEM, INC.
By:________________________________________
Xxxxxx X. Xxxx
Treasurer
Address: 0000 Xxxx 00xx Xxxxxx
Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxx
S-2
CREDIT SUISSE FIRST BOSTON, as a Reducing
Continuing Lender, the Issuer and the
Administrative Agent
By:________________________________________
Name:
Title:
By:________________________________________
Name:
Title:
Address: Eleven Xxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxx Xxxxxxx
S-3
THE BANK OF NOVA SCOTIA, as an Increasing
Continuing Lender and the New Syndication
Agent
By:________________________________________
Name:
Title:
Address: 000 X. Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxxx
S-4
DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES, as an Increasing
Continuing Lender and the Documentation
Agent
By:________________________________________
Name:
Title:
By:________________________________________
Name:
Title:
Address: 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxxx
S-5
ARVEST BANK, as an Increasing Continuing
Lender
By:________________________________________
Name:
Title:
S-6
BANK OF TOKYO - MITSUBISHI TRUST COMPANY,
as an Increasing Continuing Lender
By:________________________________________
Name:
Title:
X-0
XXXXXXXX XXXX XX, XXX XXXX BRANCH, as an
Increasing Continuing Lender
By:________________________________________
Name:
Title:
By:________________________________________
Name:
Title:
S-8
JPMORGAN CHASE BANK, as a Reducing
Continuing Lender
By:________________________________________
Name:
Title:
S-9
BANK OF OKLAHOMA, NATIONAL ASSOCIATION, as
a Maintaining Continuing Lender
By:________________________________________
Name:
Title:
S-10
LOCAL OKLAHOMA BANK, as a Maintaining
Continuing Lender
By:________________________________________
Name:
Title:
S-11
MIDFIRST BANK, as a Maintaining Continuing
Lender
By:________________________________________
Name:
Title:
S-12
TEXTRON FINANCIAL CORPORATION, as the
Non-Continuing Lender
By:________________________________________
Name:
Title:
S-13
ABN AMRO BANK N.V., as a New Lender
By:________________________________________
Name:
Title:
S-14
Xxxxxx Xxxxxxx Financing, Inc., as a New
Lender
By:________________________________________
Name:
Title:
S-15
KEYBANK NATIONAL ASSOCIATION, as a New
Lender
By:________________________________________
Name:
Title:
S-16
SCHEDULE I
PERCENTAGES
-----------
---------------------------------------------------- ---------------------------
Name of Institution New Commitment Amount New Percentage
------------------------------------------------- ------------------------------
ABN AMRO Bank N.V. $25,000,000 8.333333333%
--------------------------------------------------------------------------------
Arvest Bank $15,000,000 5.000000000%
--------------------------------------------------------------------------------
Xxxxxx Xxxxxxx Financing, Inc. $15,000,000 5.000000000%
--------------------------------------------------------------------------------
The Bank of Nova Scotia $30,000,000 10.000000000%
------------------------------------------------- ------------------------------
Bank of Oklahoma, National $25,000,000 8.333333333%
Association
------------------------------------------------- ------------------------------
Bank of Tokyo-Mitsubishi $25,000,000 8.333333333%
Trust Company
------------------------------------------------- ------------------------------
Credit Suisse First Boston $35,000,000 11.666666668%
--------------------------------------------------------------------------------
Deutsche Bank AG, New York Branch $30,000,000 10.000000000%
--------------------------------------------------------------------------------
Dresdner Bank AG, New York $30,000,000 10.000000000%
and Grand Cayman Branches
------------------------------------------------- ------------------------------
JPMorgan Chase Bank $25,000,000 8.333333333%
--------------------------------------------------------------------------------
KeyBank National Association $15,000,000 5.000000000%
--------------------------------------------------------------------------------
Local Oklahoma Bank $15,000,000 5.000000000%
--------------------------------------------------------------------------------
MidFirst Bank $15,000,000 5.000000000%
--------------------------------------------------------------------------------
TOTAL $300,000,000 100.000000000%
--------------------------------------------------------------------------------
ANNEX I
THIRD AMENDED AND
RESTATED CREDIT
AGREEMENT
[ see attached ]
ANNEX II
AFFIRMATION AND ACKNOWLEDGMENT
April 1, 2004
Each of the Lenders (as defined below)
and
Credit Suisse First Boston,
as Administrative Agent
Eleven Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000-0000
DOLLAR THRIFTY AUTOMOTIVE GROUP, INC.
-------------------------------------
Gentlemen and Ladies:
This Affirmation and Acknowledgment is delivered to you pursuant to Section
3.14 of the Amendment Agreement to the Third Amended and Restated Credit
Agreement, dated as of April 1, 2004 (the "Amendment Agreement"), 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"), the Lenders (as defined below) parties thereto,
Credit Suisse First Boston ("Credit Suisse First Boston"), as the administrative
agent for the Lenders, The Bank of Nova Scotia ("Scotia Capital"), as the new
syndication agent under the Third Amended and Restated Credit Agreement (in such
capacity, the "New Syndication Agent"), Credit Suisse First Boston, as the sole
bookrunner under the Third Amended and Restated Credit Agreement, Dresdner Bank
AG, New York and Grand Cayman Branches, as the documentation agent under the
Third Amended and Restated Credit Agreement and Credit Suisse First Boston and
Scotia Capital as the co-arrangers under the Third Amended and Restated Credit
Agreement (in such capacities, the "Arrangers"), which Amendment Agreement,
among other things, amends certain provisions of the Second Amended and Restated
Credit Agreement, dated as of December 6, 2002 (as in effect immediately prior
to the Amendment Effective Date, the "Existing Credit Agreement", and as amended
by the Amendment Agreement, the "Amended Credit Agreement" and, together with
all of the Loan Documents (as defined in the Amended Credit Agreement), the
"Loan Documents"), among, inter alia, the Borrowers, the financial institutions
parties thereto as "Lenders" (the "Lenders") and the Administrative Agent.
Unless otherwise defined herein or the context otherwise requires, terms used
herein have the meanings provided in the Amendment Agreement.
Each of the undersigned hereby acknowledges the amendment of the Existing
Credit Agreement pursuant to the Amendment Agreement and confirms that it has
received a copy of the Amendment Agreement.
As a condition precedent to the effectiveness of the Amendment Agreement,
each of the undersigned hereby reaffirms as of the Amendment Effective Date, its
covenants and agreements contained in each Loan Document to which it is a party.
Each of the undersigned hereby further certifies that, as of the date hereof
(both before and after giving effect to the effectiveness of the Amendment
Agreement), the representations and warranties made by it in the Loan Documents
to which it is a party are true and correct with the same effect as if made on
the date hereof, except to the extent any such representation or warranty refers
or pertains solely to a date prior to the date hereof (in which case such
representation or warranty is true and correct as of such prior date). Each of
the undersigned further confirms that each Loan Document to which it is a party
is and shall continue to be in full force and effect and the same are hereby
ratified, approved and confirmed in all respects, except that upon the
occurrence of the Amendment Effective Date, all references in such Loan
Documents to the "Credit Agreement", "thereunder", "thereof", "therein" or words
of like or similar import shall mean and be a reference to the Amended Credit
Agreement.
Each of the undersigned hereby further acknowledges and agrees that the
acceptance by the Administrative Agent and each of the Lenders of this document
shall not be construed in any manner to establish (or indicate) any course of
dealing on the Administrative Agent's or any Lender's part, including, without
limitation, the providing of any notice or the requesting of any acknowledgment
not otherwise expressly provided for in any Loan Document with respect to any
future amendment, waiver, supplement or other modification to any Loan Document
or any arrangement contemplated by any Loan Document.
THIS AFFIRMATION AND ACKNOWLEDGMENT SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
2
IN WITNESS WHEREOF, each of the undersigned has executed and delivered this
Affirmation and Acknowledgment as of the date first above written.
THRIFTY, INC.
By:________________________________________
Xxxxxx X. Xxxx
Treasurer
THRIFTY CAR SALES, INC.
By:________________________________________
Xxxxxx X. Xxxx
Treasurer
DOLLAR RENT A CAR, INC.
By:________________________________________
Xxxxxx X. Xxxx
Treasurer
