EXHIBIT 4.95 [EXECUTION COPY]
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FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated
as of March 7, 2003 (this "Amendment"), is made by and among DOLLAR THRIFTY
AUTOMOTIVE GROUP, INC., a Delaware corporation (the "Parent"), DTG OPERATIONS,
INC., an Oklahoma corporation ("Operations"), THRIFTY RENT-A-CAR SYSTEM, INC.,
an Oklahoma corporation ("Thrifty," and, together with Operations, the
"Subsidiary Borrowers"; the Parent and the Subsidiary Borrowers being
collectively referred to herein as the "Borrowers"), the Lenders (as defined
below) parties hereto and the Administrative Agent (as defined below).
W I T N E S S E T H:
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WHEREAS, the Borrowers, the various financial institutions parties thereto
(collectively, the "Lenders"), Credit Suisse First Boston ("Credit Suisse First
Boston"), as the administrative agent (in such capacity, the "Administrative
Agent") for the Lenders, and JPMorgan Chase Bank ("Chase"), as the syndication
agent (in such capacity, the "Syndication Agent", and, together with the
Administrative Agent, the "Agents") for the Lenders, have heretofore entered
into that certain Second Amended and Restated Credit Agreement, dated as of
December 6, 2002 (the "Credit Agreement");
WHEREAS, the Borrowers have requested that the Lenders and the
Administrative Agent amend certain provisions of the Credit Agreement; and
WHEREAS, the Lenders and the Administrative Agent are willing, on and
subject to the terms and conditions set forth below (including the amendments
set forth in Article II below), to amend certain provisions of the Credit
Agreement as provided below (the Credit Agreement, as amended pursuant to the
terms of this Amendment, being referred to as the "Amended Credit Agreement");
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the Borrowers, the Lenders and the Administrative Agent hereby
agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Definitions. The following terms (whether or not
underscored) when used in this Amendment shall have the following meanings (such
meanings to be equally applicable to the singular and plural forms thereof):
"Administrative Agent" is defined in the first recital.
"Agents" is defined in the first recital.
"Amended Credit Agreement" is defined in the third recital.
"Amendment" is defined in the preamble.
"Borrowers" is defined in the preamble.
"Credit Agreement" is defined in the first recital.
"First Amendment Effective Date" is defined in the preamble to Article III.
"Lenders" is defined in the first recital.
"Parent" is defined in the preamble.
SECTION 1.2. Other Definitions. Terms for which meanings are provided in
the Amended Credit Agreement are, unless otherwise defined herein or the context
otherwise requires, used in this Amendment with such meanings.
ARTICLE II
AMENDMENTS
Effective as of the date hereof (but subject to the occurrence of the First
Amendment Effective Date), certain provisions of the Credit Agreement are hereby
amended in accordance with this Article II; except expressly as so amended by
this Amendment, the Credit Agreement shall continue in full force and effect in
accordance with its terms.
SECTION 2.1. Amendments to Section 1.1 of the Credit Agreement. Section
1.1 of the Credit Agreement is hereby amended by:
(a) inserting in such Section the following definition in the
appropriate alphabetical order:
"`First Amendment' means the First Amendment to Second Amended
and Restated Credit Agreement, dated as of March 7, 2003, among the
Borrower, the Lenders parties thereto and the Administrative Agent.";
and
(b) amending clause (a)(ii) of the definition of "Permitted Business
Acquisition" contained in such Section by inserting the following proviso
immediately following the words "such definitive documentation was executed
and delivered" and immediately preceding the words "; and" contained in the
last line of such clause (a)(ii):
"; provided, however, that, notwithstanding the foregoing, if Adjusted
EBITDA for the period of four consecutive Fiscal Quarters ending with
the Fiscal Quarter then last ended for which financial statements and
the Compliance Certificate relating thereto have been (or should have
been) delivered to the Administrative Agent pursuant to clause (c) of
Section 8.1.1 is less than $85,000,000, the amount set forth in the
table above opposite the Fiscal Year in which such Subject Amount
would be expended shall, during the Fiscal Quarter in which such
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Subject Amount would be expended, be deemed to be equal to the greater
of (x) the sum of (1) one-half (50%) of such amount (without giving
effect to any prior reductions thereto as a result of the operation of
this proviso during such Fiscal Year) and (2) $5,000,000 and (y) the
aggregate amount of all such expenditures of the Parent and its
Subsidiaries in respect of Permitted Business Acquisitions (other than
Permitted Stock Acquisitions) previously made during such Fiscal Year
in compliance with this Agreement; provided further, however, that (x)
for so long as the Compliance Certificate referred to in the
immediately preceding proviso has not been delivered to the
Administrative Agent (and whether or not a Compliance Certificate is
delivered in connection with such Business Acquisition pursuant to
clause (b) below), Adjusted EBITDA for purposes of this (and only
this) clause (a)(ii) shall be deemed to be less than $85,000,000 for
the period referred to in such proviso (and clause (y) of this proviso
shall not be given any effect) and (y) if a Compliance Certificate is
required to be delivered pursuant to clause (b) below in connection
with such Business Acquisition, then Adjusted EBITDA as used in the
immediately preceding proviso shall instead be Adjusted EBITDA as
calculated on a pro forma basis pursuant to clause (b) below;".
SECTION 2.2. Amendment to Section 3.3.2 of the Credit Agreement. Section
3.3.2 of the Credit Agreement is hereby amended in its entirety to read as
follows:
"SECTION 3.3.2. First Amendment Fees. (a) The Borrowers, jointly and
severally, agree to pay on the first Business Day following the First
Amendment (Early) Delivery Date (as defined below) to the Administrative
Agent for the account of each Lender that executes its signature page to
the First Amendment and delivers (including delivery by way of telecopier)
such executed signature page to Xxxxxxx Xxx at Mayer, Brown, Xxxx & Maw,
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (00xx Xxxxx), telecopy number
000-000-0000 at or prior to 4:00 p.m. (New York City time) on March 7, 2003
(such date (including as it may be extended by written notice of the Parent
to the Administrative Agent to a date prior to the First Amendment (Final)
Delivery Date (as defined below)), the `First Amendment (Early) Delivery
Date') a non-refundable amendment fee equal to 25 basis points on such
Lender's Percentage of the Commitment Amount as in effect on the First
Amendment (Early) Delivery Date.
(b) The Borrowers, jointly and severally, agree to pay on the first
Business Day following the First Amendment (Final) Delivery Date (as
defined below) to the Administrative Agent for the account of each Lender
that executes its signature page to the First Amendment and delivers
(including delivery by way of telecopier) such executed signature page to
Xxxxxxx Xxx at Mayer, Brown, Xxxx & Maw, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (00xx Xxxxx), telecopy number 000-000-0000 subsequent to 4:00 p.m.
(New York City time) on the First Amendment (Early) Delivery Date but at or
prior to 4:00 p.m. (New York City time) on March 14, 2003 (such date
(including as it may be extended by written notice of the Parent to the
Administrative Agent), the `First Amendment (Final) Delivery Date') a
non-refundable amendment fee equal to 20 basis points on such Lender's
Percentage of the Commitment Amount as in effect on the First Amendment
(Final) Delivery Date.".
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SECTION 2.3. Amendment to Section 8.2.4 of the Credit Agreement. Clause
(b) of Section 8.2.4 of the Credit Agreement is hereby amended by replacing the
last row set forth in the table contained in such clause to read in its entirety
as follows:
"The fourth Fiscal Quarter of the 2002 $90,000,000
Fiscal Year
The first Fiscal Quarter of the 2003 $60,000,000".
Fiscal Year and each Fiscal
Quarter thereafter
SECTION 2.4. Amendment to Section 8.2.7 of the Credit Agreement. Section
8.2.7 of the Credit Agreement is hereby amended by deleting the two provisos
contained in such Section and replacing such provisos in their entirety with the
following provisos "provided, however, that if Adjusted EBITDA for the period of
four consecutive Fiscal Quarters ending with the Fiscal Quarter then last ended
for which financial statements and the Compliance Certificate relating thereto
have been (or should have been) delivered to the Administrative Agent pursuant
to clause (c) of Section 8.1.1 is less than $85,000,000, such amount of
$50,000,000 for such Fiscal Year shall, during the Fiscal Quarter immediately
following such period, be deemed to be equal to the greater of (x) $30,000,000
and (y) the aggregate amount of all such other Capital Expenditures made during
such Fiscal Year prior to such Fiscal Quarter in compliance with this Section
8.2.7, provided further, however, that for so long as the Compliance Certificate
referred to in the immediately preceding proviso has not been delivered to the
Administrative Agent, Adjusted EBITDA for purposes of this (and only this)
Section shall be deemed to be less than $85,000,000 for the period referred to
in such proviso".
ARTICLE III
CONDITIONS TO EFFECTIVENESS
This Amendment, and the amendments and modifications contained herein,
shall be and become effective on the date (the "First Amendment Effective Date")
when each of the conditions set forth in this Article III shall have been
fulfilled to the satisfaction of the Administrative Agent.
SECTION 3.1. Execution of Counterparts. The Administrative Agent shall
have received counterparts of this Amendment, duly executed and delivered on
behalf of (i) each of the Borrowers and (ii) the Required Lenders.
SECTION 3.2. Amendment Effective Date Certificate. The Administrative
Agent shall have received a certificate from the chief financial Authorized
Officer of the Parent confirming the representations and warranties set forth in
Article IV in form and substance satisfactory to the Administrative Agent.
SECTION 3.3. Execution of Affirmation and Acknowledgment. The
Administrative Agent shall have received an affirmation and acknowledgment in
form and substance satisfactory to it, duly executed and delivered by each
Guarantor and any other Obligor that has granted a Lien pursuant to any Loan
Document, other than the Borrowers.
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SECTION 3.4. Fees and Expenses. The Administrative Agent shall have
received all fees and expenses due and payable pursuant to Section 5.3 hereof
(to the extent then invoiced) and pursuant to the Amended Credit Agreement
(including all previously invoiced fees and expenses).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Administrative Agent to enter into
this Amendment, each of the Borrowers hereby represents and warrants to each
Agent and each Lender, as of the date hereof, as set forth in this Article IV.
SECTION 4.1. Representations and Warranties. (a) The representations and
warranties set forth in Article VII of the Credit Agreement (excluding,
however, those contained in Section 7.7 of the Credit Agreement) and in
each other Loan Document are, in each case, true and correct (unless stated
to relate solely to an earlier date, in which case such representations and
warranties are true and correct as of such earlier date);
(b) except as disclosed by any Borrower to the Administrative Agent,
the Issuer and the Lenders pursuant to Section 7.7 of the Credit Agreement
(i) there is no pending or, to the best knowledge of any
Borrower, threatened litigation, action, proceeding or labor
controversy affecting any Borrower or any of its Subsidiaries, or any
of their respective properties, businesses, or revenues, which may
materially adversely affect the businesses, property, operations,
assets, liabilities, condition (financial or otherwise) or prospects
of the Parent and its Subsidiaries taken as a whole, or which purports
to affect the legality, validity or enforceability of this Amendment,
the Credit Agreement, the Notes or any other Loan Document, except as
disclosed in Item 7.7 ("Litigation") of the Disclosure Schedule to the
Credit Agreement; and
(ii) no development has occurred in any labor controversy,
litigation, arbitration or governmental investigation or proceeding
disclosed pursuant to Section 7.7 of the Credit Agreement which may
materially adversely affect the business, property, operations,
assets, liabilities, condition (financial or otherwise) or prospects
of the Parent and its Subsidiaries taken as a whole, or which purports
to affect the legality, validity or enforceability of this Amendment,
the Credit Agreement, the Notes, or any other Loan Document;
(c) no Default (other than any Default that would not exist upon
effectiveness of this Amendment) has occurred and is continuing, and
neither any Borrower nor any of their respective Subsidiaries nor any other
Obligor is in material violation of any law or governmental regulation or
court order or decree; and
(d) this Amendment has been duly authorized, executed and delivered
by each of the Borrowers and constitutes a legal, valid and binding
obligation of each such Person, enforceable against it in accordance with
its terms, except to the extent the enforceability hereof may be limited by
(i) the effect of bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or affecting the
rights and remedies of creditors generally and (ii) the effect of general
principles of equity, whether enforcement is considered in a proceeding in
equity or at law.
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SECTION 4.2. Full Disclosure. Except as corrected by written information
delivered to the Agents and the Lenders reasonably prior to the date on which
this representation is made, all information (other than financial and business
projections and forecasts) heretofore or contemporaneously furnished by any
Borrower in writing to any Agent, the Issuer or any Lender for purposes of or in
connection with this Amendment is true and accurate in every material respect
and such information is not incomplete by omitting to state any material fact
necessary to make such information not materially misleading in light of the
circumstances under which such information was furnished. All financial and
business projections and forecasts delivered to any Agent, the Issuer or any
Lender by or on behalf of any Borrower have been prepared in good faith based
upon assumptions which the Borrowers believe to be reasonable.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Full Force and Effect; Limited Amendment. Except as
expressly amended hereby, all of the representations, warranties, terms,
covenants, conditions and other provisions of the Credit Agreement and the other
Loan Documents shall remain unamended and unwaived and shall continue to be, and
shall remain, in full force and effect in accordance with their respective
terms. The amendments set forth herein shall be limited precisely as provided
for herein to the provisions expressly amended herein and shall not be deemed to
be an amendment to, consent to or modification of any other term or provision of
the Credit Agreement, any other Loan Document referred to therein or herein or
of any transaction or further or future action on the part of any of the
Borrowers or any other Obligor which would require the consent of the Lenders
under the Credit Agreement or any of the other Loan Documents.
SECTION 5.2. Loan Document Pursuant to Credit Agreement. This Amendment
is a Loan Document executed pursuant to the Credit Agreement and shall be
construed, administered and applied in accordance with all of the terms and
provisions of the Credit Agreement (and, following the date hereof, the Amended
Credit Agreement). Any breach of any representation or warranty or covenant or
agreement contained in this Amendment shall be deemed to be an Event of Default
for all purposes of the Credit Agreement and the other Loan Documents.
SECTION 5.3. Fees and Expenses. The Borrowers, jointly and severally,
agree to pay on demand all out-of-pocket expenses incurred by the Administrative
Agent in connection with the preparation, negotiation, execution and delivery of
this Amendment and the documents and transactions contemplated hereby, including
the reasonable fees and disbursements of Mayer, Brown, Xxxx & Maw, as counsel
for the Administrative Agent.
SECTION 5.4. Headings. The various headings of this Amendment are
inserted for convenience only and shall not affect the meaning or interpretation
of this Amendment or any provisions hereof.
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SECTION 5.5. Execution in Counterparts. This Amendment may be executed by
the parties hereto in several counterparts, each of which shall be deemed to be
an original and all of which shall constitute together but one and the same
agreement.
SECTION 5.6. Cross-References. References in this Amendment to any
Article or Section are, unless otherwise specified or otherwise required by the
context, to such Article or Section of this Amendment.
SECTION 5.7. Successors and Assigns. This Amendment shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
SECTION 5.8. GOVERNING LAW. THIS AMENDMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
DOLLAR THRIFTY AUTOMOTIVE GROUP, INC.
By:_____________________________________
Name: Xxxxxx X. Xxxx
Title: Treasurer
DTG OPERATIONS, INC.
By:_____________________________________
Name: Xxxxxx X. Xxxx
Title: Treasurer
THRIFTY RENT-A-CAR SYSTEM, INC.
By:_____________________________________
Name: Xxxxxx X. Xxxx
Title: Treasurer
CREDIT SUISSE FIRST BOSTON, as the
Administrative Agent
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
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LENDERS:
CREDIT SUISSE FIRST BOSTON
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
JPMORGAN CHASE BANK
By:_____________________________________
Name:
Title:
BANK OF OKLAHOMA, NATIONAL ASSOCIATION
By:_____________________________________
Name:
Title:
DEUTSCHE BANK AG, NEW YORK BRANCH
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
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BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By:_____________________________________
Name:
Title:
DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
LOCAL OKLAHOMA BANK, N.A.
By:_____________________________________
Name:
Title:
MIDFIRST BANK
By:_____________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
By:_____________________________________
Name:
Title:
10
ARVEST STATE BANK
By:_____________________________________
Name:
Title:
TEXTRON FINANCIAL CORPORATION
By:_____________________________________
Name:
Title:
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