SECOND AMENDMENT
Exhibit
10.1
SECOND
AMENDMENT
This
Second Amendment, dated as of March 10, 2010 (this “Amendment”), to the
Credit Agreement dated as of April 19, 2006, as amended by the First
Amendment dated as of December 23, 2008 (the “Credit Agreement”),
among AVIS BUDGET HOLDINGS, LLC (“Holdings”), AVIS
BUDGET CAR RENTAL, LLC (the “Borrower”), the
subsidiary borrowers from time to time parties thereto, the several lenders from
time to time parties thereto (the “Lenders”), BANK OF
AMERICA, N.A., CREDIT AGRICOLE CORPORATE & INVESTMENT BANK NEW YORK BRANCH
(formerly known as CALYON) and CITICORP USA, INC. as documentation agents,
WACHOVIA BANK, NATIONAL ASSOCIATION as co-documentation agent, DEUTSCHE BANK
SECURITIES INC. as syndication agent and JPMORGAN CHASE BANK, N.A., as
administrative agent (the “Administrative
Agent”; and together with the other agents named therein, the “Agents”).
W I T N E S S E T
H:
WHEREAS,
Holdings, the Borrower, the Lenders and the Agents are parties to the Credit
Agreement;
WHEREAS,
the Borrower has requested that the Lenders agree to extend the tenor of their
respective Term Loans and Revolving Commitments, as applicable, and amend
certain other terms in the Credit Agreement in the manner provided for herein;
and
WHEREAS,
the Administrative Agent and the Lenders are willing to agree to the requested
amendments subject to the provisions of this Amendment;
NOW,
THEREFORE, in consideration of the premises contained herein, the parties hereto
agree as follows:
1. Defined
Terms. Unless otherwise defined herein, capitalized terms are
used herein as defined in the Credit Agreement as amended hereby.
2. Amendments. The
Credit Agreement (including the Annexes, Schedules and Exhibits thereto) is
hereby amended in accordance with Exhibit A hereto: (a) by deleting each term
thereof which is lined out and (b) by inserting each term thereof which is
double underlined, in each case in the place where such term appears
therein.
3. Extension of Maturity
Date.
(a) Each
Extending Term Loan Lender hereby extends the final maturity date applicable to
all or any portion of its Term Loan (as detailed on its signature page hereto)
to the Extended Term Loan Maturity Date. The final maturity date applicable to
each other Term Lender (in each case, a “Non-Extending Term Loan
Lender”) shall be the Non-Extended Term Loan Maturity Date, and the
Extending Lenders understand and agree that the Term Loans of each Non-Extending
Term Loan Lender shall become due and be payable, together with all interest and
fees related thereto, on the Non-Extended Term Loan Maturity Date.
(b) Each Extending Revolving Lender
hereby extends the termination date as applicable to all or any portion of its
Revolving Commitment (as detailed on its signature page hereto) to the Extended
Revolving Termination Date. The termination date applicable to each
other Revolving Lender (in each case, a “Non-Extending Revolving
Lender”; Non-Extending Revolving
Lenders and Non-Extending Term Loan Lenders, collectively, the “Non-Extending
Lenders”) shall be the Non-Extended Revolving Termination Date and the
Extending Lenders understand and agree that
the
Revolving Loans of each Non-Extending Revolving Lender shall become due and
payable, together with all interest and fees related thereto, on the
Non-Extended Revolving Termination Date.
4. Reduction in Revolving
Commitment and Prepayment of Term Loans. On the Second
Amendment Effective Date, the Borrower shall (a) reduce the Extended Revolving
Commitment of each Extending Revolving Lender that has delivered a Commitment
Reduction Notice substantially in the form of Exhibit B hereto in an amount
equal to 20% of such Extending Revolving Lender’s Extended Revolving Commitment
and (b) prepay pro rata the principal amounts owing to the Term Lenders so that
the sum of (i) the aggregate amount of Term Loans outstanding and (ii) the
aggregate amount of Revolving Commitments outstanding after giving effect to the
reduction pursuant to clause (a) above shall not exceed $1,500,000,000. With
respect to the prepayment of the Term Loans, each Extending Term Loan Lender
shall have the right to refuse such prepayment by checking the applicable box on
its signature page hereto indicating such refusal, and any prepayment of the
Term Loans so refused shall be reallocated and applied pro rata towards the
payment of the principal amounts of (i) the then outstanding Term Loans of the
Non- Extending Term Loan Lenders and (ii) any portion of the then outstanding
Term Loans of the Extending Term Loan Lenders not being extended pursuant to
this Amendment.
5. Allocation and Repayment of
Revolving Loans and Letters of Credit. Notwithstanding
anything in the Credit Agreement to the contrary:
(a) From the Second
Amendment Effective Date until the Non-Extended Revolving Termination Date, all
Revolving Loans shall be made in accordance with the aggregate Revolving
Commitments (including both the Extended Revolving Commitments and the
Non-Extended Revolving Commitments thereunder from time to time in
effect).
(b) On
the Second Amendment Effective Date, the participations in any outstanding
Letters of Credit shall be reallocated so that after giving effect thereto the
Extending Revolving Lenders and the Non-Extending Revolving Lenders thereunder
shall share ratably in the Aggregate Exposures thereunder in accordance with the
aggregate Revolving Commitments (including both the Extended Revolving
Commitments and the Non-Extended Revolving Commitments thereunder from time to
time in effect). Thereafter until the Non-Extended Revolving Termination Date,
the participations in any new Letters of Credit shall be allocated in accordance
with the aggregate Revolving Commitments. On the Non-Extended
Revolving Termination Date, the participations in the outstanding Letters of
Credit of the Non-Extending Revolving Lenders shall be reallocated to the
Extending Revolving Lenders ratably in accordance with their Extended Revolving
Commitments but in any case, only to the extent the sum of the outstanding
Revolving Extensions of Credit of all Extending Revolving Lenders before giving
effect to such reallocation plus the participations in the outstanding Letters
of Credit of the Non-Extending Revolving Lenders does not exceed the total
Revolving Commitments of all Extending Revolving Lenders.
(c)
If the reallocation described in clause (b) above cannot, or can only partially,
be effected as a result of the limitations set forth therein, the Borrower shall
within five Business Days following notice by the Administrative Agent, either
(x) cash collateralize such Non-Extending Revolving Lender’s participations in
the outstanding Letters of Credit (after giving effect to any partial
reallocation pursuant to clause (b) above) or (y) backstop such Non-Extending
Revolving Lender’s participations in the Letters of Credit (after giving effect
to any partial reallocation pursuant to clause (b) above) with a letter of
credit reasonably satisfactory to the Issuing Lender, in each case, for so long
as any Letters of Credit are outstanding.
6. Replacement
Lenders. The Lenders party hereto and the Administrative Agent
agree that the Borrower shall have the right on or before the Non-Extended Term
Loan Maturity Date (with respect to Term Loans) or Non-Extended Revolving
Termination Date (with respect to Revolving Commitments) to replace, in whole or
in part (but if in part, in an aggregate principal amount of not
7. Termination of Local
Facilities. On and as of the Second Amendment Effective Date,
each New Local Facility (as defined in the existing Credit Agreement before
giving effect to the Second Amendment) shall be terminated, the commitments
outstanding thereunder shall be redesignated for availability under the
Revolving Facility and each letter of credit outstanding thereunder shall be
deemed to be a Letter of Credit outstanding under the Revolving
Facility.
8. Fees.
(a) The
Borrower agrees to pay to the Administrative Agent for the account of each
Extending Term Loan Lender that has executed and delivered a counterpart of this
Amendment by 5:00 P.M., New York City time, on March 8, 2010, an extension fee
in an amount equal to 12.5 basis points of such Lender’s Extended Term
Loan.
(b) The
Borrower agrees to pay to the Administrative Agent for the account of each
Extending Revolving Lender that has executed and delivered a counterpart of this
Amendment by 5:00 P.M., New York City time, on March 8, 2010, an extension fee
in an amount equal to 100.0 basis points of such Lender’s Extended Revolving
Commitment.
9. Representations and
Warranties. On and as of the date hereof, after giving effect
to this Amendment, the Borrower hereby confirms that the representations and
warranties set forth in Section 4 of the Credit Agreement are true and correct
in all material respects except to the extent that such representations and
warranties expressly relate solely to a specific earlier date.
10. Effectiveness of
Amendment. This Amendment shall become effective upon
satisfaction of the following conditions precedent (such date, the “Second Amendment Effective
Date”):
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(a)
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the
Lenders shall have consented to extend at least 75% of the existing Term
Loans; provided that the Borrower shall have the right to waive this
condition in its sole discretion;
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(b)
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the
Borrower shall have received, or substantially concurrently with the
satisfaction of the other conditions precedent set forth in this Section,
shall receive gross cash proceeds of not less than $250,000,000 from a
public or private capital markets transaction not otherwise prohibited by
the terms of the Credit Agreement (as amended by this Amendment);
and
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(c)
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the
Administrative Agent shall have received the
following:
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(i)
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counterparts
to this Amendment duly executed by Holdings, the Borrower, the Majority
Facility Lenders for each Facility, each Extending Revolving Lender and
each Extending Term Loan Lender
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(ii)
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an
extension fee for the account of each Extending Term Loan Lender that is a
party to this Amendment in accordance with Section 8(a)
hereof;
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(iii)
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an
extension fee for the account of each Extending Revolving Lender that is a
party to this Amendment in accordance with Section 8(b)
hereof;
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(iv)
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all
other fees required to be paid, and all expenses for which invoices have
been presented (including the reasonable fees and expenses of legal
counsel) required to be paid;
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(v)
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executed
counterparts from each Loan Party of the Guarantee and Collateral
Acknowledgement substantially in the form attached hereto as Exhibit
C;
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(vi)
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certified
resolutions from the board of directors, members or other similar body of
each Loan Party authorizing the execution, delivery and performance of the
Amendment; and
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(vii)
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the
legal opinion of Xxxxxxxx & Xxxxx LLP, counsel to the Loan Parties and
each special and local counsel as may be reasonably requested by the
Administrative Agent. Each such legal opinion shall cover such
customary matters incidental to the Amendment as the Administrative Agent
may request and shall be addressed to the Administrative Agent and the
Lenders.
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10. Continuing Effect; No Other
Amendments or Consents. Except as expressly provided herein,
all of the terms and provisions of the Credit Agreement are and shall remain in
full force and effect. The amendments provided for herein are limited
to the specific subsections of the Credit Agreement specified herein and shall
not constitute a consent, waiver or amendment of, or an indication of the
Administrative Agent’s or the Lenders’ willingness to consent to any action
requiring consent under any other provisions of the Credit Agreement or the same
subsection for any other date or time period.
11. Expenses. The
Borrower agrees to pay and reimburse the Administrative Agent for all its
reasonable costs and out-of-pocket expenses incurred in connection with the
preparation and delivery of this Amendment, including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative
Agent.
12. Counterparts. This
Amendment may be executed in any number of counterparts by the parties hereto
(including by facsimile and electronic (e.g. “.pdf”, or “.tif”) transmission),
each of which counterparts when so executed shall be an original, but all the
counterparts shall together constitute one and the same instrument.
13. GOVERNING
LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN
WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and
delivered by their proper and duly authorized officers as of the day and year
first above written.
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AVIS
BUDGET HOLDINGS, LLC
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By
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/s/
Xxxxxxxx Xxxxxxx
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Name: Xxxxxxxx
Xxxxxxx
Title: Vice
President and Treasurer
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AVIS
BUDGET CAR RENTAL, LLC
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By
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/s/
Xxxxxxxx Xxxxxxx
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Name: Xxxxxxxx
Xxxxxxx
Title:
Vice President and Treasurer
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JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent
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By
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/s/
Xxxxxx X. Xxxxxx
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Name: Xxxxxx
X. Xxxxxx
Title: Executive
Director
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JPMORGAN
CHASE BANK, N.A.,
as
an Extending Term Loan Lender
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By
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/s/
Xxxxx X. Xxxxxx
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Name: Xxxxx
X. Xxxxxx
Title: Managing
Director
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X.X.
Xxxxxx Whitefriars Inc.,
as
an Extending Term Loan Lender
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By
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/s/ Xxxxxxxx X.
Xxxxxx
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Name: Xxxxxxxx
X. Xxxxxx
Title: Attorney-in-Fact
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Citibank,
N.A.,
as
an Extending Term Loan Lender
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By
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/s/ Xxxxx
Xxxxxxxx
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Name: Xxxxx
Xxxxxxxx
Title: Attorney-in-Fact
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Deutsche
Bank AG New York Branch,
as
an Extending Term Loan Lender
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By
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/s/ Xxxxxx
Xxxxxxxx
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Name: Xxxxxx
Xxxxxxxx
Title: Vice
President
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By
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/s/ Xxxxx
Xxxxxxx
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Name: Xxxxx
Xxxxxxx
Title: Authorized
Signatory
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Deutsche
Bank AG London Branch,
as
an Extending Term Loan Lender
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By
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/s/ Xxxxxxx
Xxxxxxx
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Name: Xxxxxxx
Xxxxxxx
Title: Assistant
Vice President
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By
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/s/ Xxxxxxxx Xxxxxxxx
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Name: Xxxxxxxx
Xxxxxxxx
Title: Assistant
Vice President
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Xxxxx
Fargo Bank,
as
an Extending Term Loan Lender
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By
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/s/ Xxxx Xxxxxx
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Name: Xxxx
Xxxxxx
Title: Senior
Vice President
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Bank
of America, N.A.,
as
an Extending Term Loan Lender
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By
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/s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx
X. Xxxxxx
Title: Vice
President
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____________,
as
an Extending Term Loan Lender
By: ____________
Name:
Title:
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JPMORGAN
CHASE BANK, N.A.,
as
an Extending Revolving Lender
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By
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/s/
Xxxxxx X. Xxxxxx
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Name: Xxxxxx
X. Xxxxxx
Title: Executive
Director
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Credit
Agricole Corporate and Investment Bank,
as
an Extending Revolving Lender
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By
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/s/ Xxx
Xxxxx
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Name: Xxx
Xxxxx
Title: Managing
Director
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By
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/s/ Yuri
Muzichenko
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Name: Yuri
Muzichenko
Title: Director
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Wachovia
Bank, National Association,
as
an Extending Revolving Lender
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By
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/s/
Xxxxxx X. Xxxxxxx, Xx.
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Name: Xxxxxx
X. Xxxxxxx, Xx.
Title: Director
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Deutsche
Bank AG New York Branch,
as
an Extending Revolving Lender
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By
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/s/ Xxxxxx
Xxxxxxxx
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Name: Xxxxxx
Xxxxxxxx
Title: Vice
President
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By
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/s/ Xxxxx Xxxxxx
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Name: Xxxxx
Xxxxxx
Title: Director
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Citibank,
N.A.,
as
an Extending Revolving Lender
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By
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/s/
Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx
X. Xxxxxx
Title: Director
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Xxxxx
Fargo Bank, National Association,
as
an Extending Revolving Lender
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By
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/s/
Xxxxxxxx Xxxxx
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Name: Xxxxxxxx
Xxxxx
Title: Vice
President
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Bank
of America, N.A.,
as
an Extending Revolving Lender
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By
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/s/
Xxxx X. XxXxxxxx
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Name: Xxxx
X. XxXxxxxx
Title: Senior
Vice President
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____________,
as
an Extending Revolving Lender
By: ____________
Name:
Title:
____________,
as
an Amending Non-Extending Lender
By: ____________
Name:
Title:
EXHIBIT
A
CREDIT
AGREEMENT1
among
AVIS
BUDGET HOLDINGS, LLC,
AVIS
BUDGET CAR RENTAL, LLC,
as
Borrower,
The
Subsidiary Borrowers from Time to Time Parties Hereto,
The
Several Lenders from Time to Time Parties Hereto,
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent
DEUTSCHE
BANK SECURITIES INC.,
as
Syndication Agent,
BANK OF
AMERICA, N.A.,
CREDIT
AGRICOLE CORPORATE & INVESTMENT BANK
NEW YORK
BRANCH (formerly known as CALYON),
and
CITICORP
USA, INC.,
as
Documentation Agents,
and
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
Co-Documentation Agent
Dated as
of April 19, 2006
JPMORGAN
SECURITIES INC.
and
DEUTSCHE
BANK SECURITIES INC.,
as Joint
Lead Arrangers and Joint Bookrunners
TABLE OF
CONTENTS
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SECTION
1. DEFINITIONS
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1
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1.1 Defined
Terms
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1
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1.2 Other
Definitional Provisions
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25
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SECTION
2. AMOUNT
AND TERMS OF COMMITMENTS
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26
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2.1 Term
Commitments
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26
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2.2 Procedure
for Term Loan Borrowing
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26
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2.3 Repayment
of Term Loan
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27
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2.4 Revolving
Commitments
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27
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2.5 Procedure
for Revolving Loan Borrowing
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28
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2.6 Swingline
Commitment
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28
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2.7 Procedure
for Swingline Borrowing; Refunding of Swingline Loans
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29
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2.8 Commitment
Fees, et
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30
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2.9 Termination
or Reduction of Revolving Commitments
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30
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2.10 Optional
Prepayments
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31
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2.11 Mandatory
Prepayments
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31
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2.12 Conversion
and Continuation Options
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32
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2.13 Limitations
on Eurocurrency Tranche
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32
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2.14 Interest
Rates and Payment Dates
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32
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2.15 Computation
of Interest and Fees
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33
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2.16 Inability
to Determine Interest Rate
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33
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2.17 Pro
Rata Treatment and Payments
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33
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2.18 Requirements
of Law
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35
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2.19 Taxes
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36
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2.20 Indemnity
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37
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2.21 Change
of Lending Office
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38
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2.22 Replacement
of Lenders
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38
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2.23 Incremental
Facilities
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38
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2.24 Prepayments
Required Due to Currency Fluctuation
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40
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2.25 Defaulting
Lenders
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41
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SECTION
3. LETTERS
OF CREDIT
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42
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3.1 L/C
Commitment
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42
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3.2 Procedure
for Issuance of Letter of Credit
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42
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3.3 Fees
and Other Charges
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43
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3.4 L/C
Participations
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43
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3.5 Reimbursement
Obligation of the Borrowe
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44
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3.6 Obligations
Absolute
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44
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3.7 Letter
of Credit Payments
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45
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3.8 Applications
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45
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3.9 Existing
Letters of Credit
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45
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SECTION
4 REPRESENTATIONS
AND WARRANTIES
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45
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4.1 Financial
Condition
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45
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4.2 No
Change
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46
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4.3 Existence;
Compliance with Law
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46
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4.4 Power;
Authorization; Enforceable Obligations
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46
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4.5 No
Legal Bar
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46
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4.6 Litigation
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46
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4.7 No
Default
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47
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4.8 Ownership
of Property; Liens
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47
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4.9 Intellectual
Property
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47
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4.10 Taxes
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47
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4.11 Federal
Regulations
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47
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4.12 ERISA
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47
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4.13 Investment
Company Act; Other Regulations
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48
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4.14 Subsidiaries
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48
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4.15 Use
of Proceeds
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48
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4.16 Accuracy
of Information, etc
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48
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4.17 Security
Documents
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48
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4.18 Certain
Documents
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49
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SECTION
5. CONDITIONS
PRECEDENT
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49
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5.1 Conditions
to Initial Extension of Credit
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49
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5.2 Conditions
to Each Extension of Credit
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51
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SECTION
6 AFFIRMATIVE
COVENANTS
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51
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6.1 Financial
Statements
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51
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6.2 Certificates;
Other Information
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52
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6.3 Payment
of Obligations
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53
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6.4 Maintenance
of Existence; Compliance
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53
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6.5 Maintenance
of Property; Insurance
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53
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6.6 Inspection
of Property; Books and Records; Discussions
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53
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6.7 Notices
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54
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6.8 Environmental
Laws
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54
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6.9 Additional
Collateral, etc
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55
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SECTION
7 NEGATIVE
COVENANTS
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56
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7.1 Financial
Condition Covenants
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56
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7.2 Indebtedness
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7.3 Liens
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59
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7.4 Fundamental
Changes
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61
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7.5 Disposition
of Property
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61
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7.6 Restricted
Payments
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62
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7.7 Investments
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63
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7.8 Optional
Payments and Modifications of Certain Agreements
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64
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7.9 Transactions
with Affiliates
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64
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7.10 Sales
and Leasebacks
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65
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7.11 Changes
in Fiscal Periods
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65
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7.12 Clauses
Restricting Subsidiary Distributions
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65
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7.13 Lines
of Business
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65
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7.14 Business
Activities of Holdings
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65
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SECTION
8. EVENTS
OF DEFAULT
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66
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SECTION
9 THE
AGENTS
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68
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9.1 Appointment
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68
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9.2 Delegation
of Duties
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69
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9.3 Exculpatory
Provisions
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69
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9.4 Reliance
by Administrative Agent
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69
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9.5 Notice
of Default
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69
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9.6 Non-Reliance
on Agents and Other Lenders
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70
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9.7 Indemnification
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70
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9.8 Agent
in Its Individual Capacity
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70
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9.9 Successor
Administrative Agent
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71
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9.10 Co-Documentation
Agent, Documentation Agent and Syndication Agent
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71
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SECTION
10 MISCELLANEOUS
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71
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10.1 Amendments
and Waivers
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71
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10.2 Notices
|
73
|
|
10.3 No
Waiver; Cumulative Remedies
|
74
|
|
10.4 Survival
of Representations and Warranties
|
74
|
|
10.5 Payment
of Expenses and Taxes
|
74
|
|
10.6 Successors
and Assigns; Participations and Assignments
|
75
|
|
10.7 Adjustments;
Set-off
|
78
|
|
10.8 Counterparts
|
78
|
|
10.9 Severability
|
78
|
|
10.10 Integration
|
78
|
|
10.11 GOVERNING
LAW
|
79
|
|
10.12 Submission
To Jurisdiction; Waivers
|
79
|
|
10.13 Judgment
|
79
|
|
10.14 Acknowledgements
|
79
|
|
10.15 Releases
of Guarantees and Liens
|
80
|
|
10.16 Confidentiality
|
80
|
|
10.17 WAIVERS OF JURY
TRIAL
|
80
|
|
10.18 USA
Patriot Act
|
81
|
SCHEDULES:
1.1A Commitments
1.1B Excluded
Subsidiaries
1.1C Mandatory
Costs
1.1D Separation
Agreement
1.1E Tax
Sharing Agreement
1.1F Mortgaged
Properties
2
Extended and Non-Extended Revolving Commitments
3.9
Existing Letters of Credit
4.4
Consents, Authorizations, Filings and Notices
4.9
Intellectual Property Matters
4.14 Subsidiaries
4.17 UCC
Filing Jurisdictions
7.2(f) Existing
Indebtedness
7.3(g) Existing
Liens
7.5(h) Dispositions
7.7(k) Investments
7.9
Permitted Transactions
7.12 Certain
Agreements
EXHIBITS:
A Form
of Guarantee and Collateral Agreement
B Form
of Compliance Certificate
C Form
of Closing Certificate
D Form
of Assignment and Assumption
E Form
of Legal Opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
F Form
of Exemption Certificate
G Form
of Joinder
H Form
of Mortgage
ANNEXES:
A Form
of Fleet Financing Forecast
CREDIT
AGREEMENT (this “Agreement”), dated as
of April 19, 2006, among AVIS BUDGET HOLDINGS, LLC, a Delaware limited liability
company (“Holdings”), AVIS
BUDGET CAR RENTAL, LLC, a Delaware limited liability company (the “Borrower”), the
Subsidiary Borrowers (as defined herein) from time to time parties hereto, the
several banks and other financial institutions or entities from time to time
parties hereto (the “Lenders”), DEUTSCHE
BANK SECURITIES INC., as syndication agent (in such capacity, the “Syndication Agent”),
BANK OF AMERICA, N.A., CREDIT AGRICOLE CORPORATE & INVESTMENT BANK NEW YORK
BRANCH (formerly known as CALYON) and CITICORP USA, INC., as documentation
agents (in such capacity, the “Documentation
Agents”), WACHOVIA BANK, NATIONAL ASSOCIATION, as co-documentation agent
(in such capacity, the “Co-Documentation
Agent”), and JPMORGAN CHASE BANK, N.A., as administrative
agent.
The
parties hereto hereby agree as follows:
SECTION
1. DEFINITIONS
1.1 Defined
Terms. As
used in this Agreement, the terms listed in this Section 1.1 shall have the
respective meanings set forth in this Section 1.1.
“ABR”: for
any day, a rate per annum (rounded upwards, if necessary, to the next 1/16 of
1%) equal to the greatest of (a) the Prime Rate in effect on such day, (b)(i)
the Federal Funds Effective Rate in effect on such day plus (ii) ½ of 1% and
(c)(i) the Eurocurrency Rate for a one month interest period in effect on such
day (or if such day is not a Business Day, the immediately preceding Business
Day) plus (ii) 1%. For purposes hereof: (1) “Prime Rate”
shall mean the rate of interest per annum publicly announced from time to time
by JPMorgan Chase Bank as its prime rate in effect at its principal office in
New York City (the Prime Rate not being intended to be the lowest rate of
interest charged by JPMorgan Chase Bank in connection with extensions of credit
to debtors) and (2) the Eurocurrency Rate for any day shall be based on the rate
for deposits in Dollars appearing on the Reuters BBA Libor Rates Page 3750 (or
on any successor or substitute page of such page) at approximately 11:00 a.m.
London time on such day. Any change in the ABR due to a change in the
Prime Rate, the Federal Funds Effective Rate or the Eurocurrency Rate shall be
effective as of the opening of business on the effective day of such change in
the Prime Rate, the Federal Funds Effective Rate or the Eurocurrency Rate,
respectively.
“ABR
Loans”: Loans the rate of interest applicable to which is
based upon the ABR.
“AESOP Base
Indenture”: the Second Amended and Restated Base Indenture,
dated as of June 3, 2004, between the AESOP Issuer and the AESOP Trustee, as
amended, modified or supplemented from time to time.
“AESOP Financing
Program”: the transactions contemplated by the AESOP Base
Indenture, as it may be from time to time further amended, supplemented or
modified, and the instruments and agreements referenced therein and otherwise
executed in connection therewith, and any successor program.
“AESOP
Indebtedness”: any Indebtedness incurred pursuant to the AESOP
Financing Program.
“AESOP
Issuer”: Avis Budget Rental Car Funding (AESOP)
LLC.
“AESOP
Trustee”: The Bank of New York Mellon Trust Company, N.A., in
its capacity as Trustee under the AESOP Base Indenture.
1
“Administrative
Agent”: JPMorgan Chase Bank, together with its affiliates, as
the arranger of the Commitments and as the administrative agent for the Lenders
under this Agreement and the other Loan Documents, together with any of its
successors.
“Affiliate”: as
to any Person, any other Person which, directly or indirectly, is in control of,
is controlled by, or is under common control with, such Person. For
purposes of this definition, a Person shall be deemed to be “controlled by”
another if such latter Person possesses, directly or indirectly, power either to
(i) vote 10% or more of the securities having ordinary voting power for the
election of directors of such controlled Person or (ii) direct or cause the
direction of the management and policies of such controlled Person whether by
contract or otherwise.
“Agents”: the
collective reference to the Syndication Agent, the Documentation Agents, the
Co-Documentation Agent and the Administrative Agent.
“Aggregate
Exposure”: with respect to any Lender at any time, an amount
equal to (a) until the Closing Date, the aggregate amount of such Lender’s
Commitments at such time and (b) thereafter, the sum of (i) the aggregate then
unpaid principal amount of such Lender’s Term Loans and (ii) the amount of such
Lender’s Revolving Commitment then in effect or, if the Revolving Commitments
have been terminated, the amount of such Lender’s Revolving Extensions of Credit
then outstanding.
“Aggregate Exposure
Percentage”: with respect to any Lender at any time, the ratio
(expressed as a percentage) of such Lender’s Aggregate Exposure at such time to
the Aggregate Exposure of all Lenders at such time.
“Agreement”: as
defined in the preamble hereto.
“Amending Non-Extending
Lender”: any Lender who agreed to the amendments set forth in
the Second Amendment, but declined to extend any portion of its Term Loan or
Revolving Commitment, as applicable, beyond its scheduled maturity
date.
“Applicable Margin”:
(a) with respect to Non-Extended Term Loans, (i) 2.75% in the case of ABR Loans
and (ii) 3.75% in the case of Eurocurrency Loans, (b) with respect to Revolving
Loans and Swingline Loans made pursuant to Non-Extended Revolving Commitments,
(i) 3.00% in the case of ABR Loans and (ii) 4.00% in the case of Eurocurrency
Loans, (c) with respect to Extended Term Loans, (i) 3.25% in the case of ABR
Loans and (ii) 4.25% in the case of Eurocurrency Loans and (d) with respect to
Revolving Loans made pursuant to Extended Revolving Commitments, a rate
determined in accordance with the Pricing Grid, provided that prior to and on
the Non-Extended Revolving Termination Date, such rate shall not be, in any
event, lower than (x) 3.00% in the case of ABR Loans and (y) 4.00% in the case
of Eurocurrency Loans.
“Application”: an
application, in such form as the Issuing Lender may specify from time to time,
requesting the Issuing Lender to open a Letter of Credit.
“Approved
Fund”: as defined in Section 10.6(b).
“Asset
Sale”: any Disposition of property or series of related
Dispositions of property (excluding any such Disposition permitted by clause
(a), (b), (c), (d) or (e) of Section 7.5) that yields gross proceeds to any Loan
Party (valued at the initial principal amount thereof in the case of non-cash
proceeds consisting of notes or other debt securities and valued at fair market
value in the case of other non-cash proceeds) in excess of
$15,000,000.
2
“Assignee”: as
defined in Section 10.6(b).
“Assignment and
Assumption”: an Assignment and Assumption, substantially in
the form of Exhibit D.
“Australian Dollars”
and “A$”: the
lawful money of Australia.
“Available Revolving
Commitment”: as to any Revolving Lender at any time, an amount
equal to the excess, if any, of (a) such Lender’s Revolving Commitment then in
effect over (b)
such Lender’s Revolving Extensions of Credit then outstanding; provided, that in
calculating any Lender’s Revolving Extensions of Credit for the purpose of
determining such Lender’s Available Revolving Commitment pursuant to Section
2.8(a), the aggregate principal amount of Swingline Loans then outstanding shall
be deemed to be zero.
“Avis Budget
Finance”: Avis Budget Finance, Inc., a Delaware
corporation.
“Benefitted
Lender”: as defined in Section 10.7(a).
“Board”: the
Board of Governors of the Federal Reserve System of the United States (or any
successor).
“Borrower”: as
defined in the preamble hereto.
“Borrowing
Date”: any Business Day specified by the Borrower or any
Subsidiary Borrower as a date on which the Borrower or such Subsidiary Borrower
requests the relevant Lenders to make Loans hereunder.
“Budget”: as
defined in Section 6.2(c).
“Budget Truck
Division”: the truck rental business of Budget Rent A Car
System, Inc. and its Subsidiaries.
“Business
Day”: any day other than a Saturday, Sunday or other day on
which banks in the State of New York are permitted to close; provided, however, that when
used in connection with a Eurocurrency Loan, the term “Business Day” shall also
exclude any day on which banks are not open for dealings in Dollar deposits or
deposits in any Optional Currency, as applicable, in the London Interbank
market.
“Canadian Dollars” and
“C$”: the
lawful money of Canada.
“Canadian Securitization
Entity” means WTH Funding Limited Partnership, WTH Car Rental Limited
Partnership, each an Ontario limited partnership, and any other special purpose
entity formed for the purpose of engaging in vehicle financing in Canada
including, without limitation, any other partnerships formed from time to time
and each of the special purpose entities that may be partners in WTH Funding
Limited Partnership, WTH Car Rental Limited Partnership or in any other such
partnerships.
“Capital Lease
Obligations”: as to any Person, the obligations of such Person
to pay rent or other amounts under any lease of (or other arrangement conveying
the right to use) real or personal property, or a combination thereof, which
obligations are required to be classified and accounted for as capital leases on
a balance sheet of such Person under GAAP and, for the purposes of this
Agreement, the
3
amount of
such obligations at any time shall be the capitalized amount thereof at such
time determined in accordance with GAAP.
“Capital
Stock”: any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants, rights or options to purchase any of the
foregoing.
“Cash
Equivalents”: any of the following, to the extent acquired for
investment and not with a view to achieving trading profits: (i) obligations
fully backed by the full faith and credit of the United States of America
maturing not in excess of twelve months from the date of acquisition, (ii)
commercial paper maturing not in excess of twelve months from the date of
acquisition and rated at least “P-1” by Xxxxx’x or “A-1” by S&P on the date
of such acquisition, (iii) the following obligations of any Lender or any
domestic commercial bank having capital and surplus in excess of $500,000,000,
which has, or the holding company of which has, a commercial paper rating
meeting the requirements specified in clause (ii) above: (a) time deposits,
certificates of deposit and acceptances maturing not in excess of twelve months
from the date of acquisition, or (b) repurchase obligations with a term of not
more than thirty days for underlying securities of the type referred to in
clause (i) above, (iv) money market funds that invest exclusively in interest
bearing, short-term money market instruments and adhere to the minimum credit
standards established by Rule 2a-7 of the Investment Company Act of 1940, as
amended, and (v) municipal securities: (a) for which the pricing period in
effect is not more than twelve months long and (b) rated at least “P-1” by
Xxxxx’x or “A-1” by S&P.
“Cendant”: Cendant
Corporation, a Delaware corporation.
“Change in Control”:
(i) the acquisition by any Person or group (within the meaning of the Securities
Exchange Act of 1934, as amended, and the rules of the SEC thereunder as in
effect on the Closing Date), directly or indirectly, beneficially or of record,
of ownership or control of in excess of 50% of the voting common stock of
Cendant on a fully diluted basis at any time or (ii) if at any time, individuals
who at the Closing Date constituted the Board of Directors of Cendant (together
with any new directors whose election by such Board of Directors or whose
nomination for election by the shareholders of Cendant, as the case may be, was
approved by a vote of the majority of the directors then still in office who
were either directors at the Closing Date or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the Board of Directors of Cendant, (iii) Cendant shall
cease to own, directly or through one or more Wholly-Owned Subsidiaries, all of
the capital stock of Holdings, free and clear of any direct or indirect Liens
(other than statutory Liens) or (iv) Holdings shall cease to directly own all of
the capital stock of the Borrower, free and clear of any direct or indirect
Liens (other than statutory Liens or Liens created by the Loan
Documents). Notwithstanding anything to the contrary contained in
this definition, the consummation of the Spin-Off Transactions shall not result
in a Change in Control.
“Closing
Date”: the date on which the conditions precedent set forth in
Section 5.1 shall have been satisfied, which date is April 19,
2006.
“Code”: the
Internal Revenue Code of 1986, as amended from time to time.
“Co-Documentation
Agent”: as defined in the preamble hereto.
“Collateral”: all
property of the Loan Parties, now owned or hereafter acquired, upon which a Lien
is purported to be created by any Security Document, provided, however, that
Collateral shall not include the assets of any Foreign Subsidiary or more than
66% of the voting Capital Stock of any Foreign Subsidiary.
4
“Commitment”: as
to any Lender, the sum of the Term Commitment and the Revolving Commitment of
such Lender.
“Commitment Fee
Rate”: with respect to (i) Extended Revolving Commitments,
0.75% and (ii) Non-Extended Revolving Commitments, 0.50%.
“Commonly Controlled
Entity”: an entity, whether or not incorporated, that is under
common control with the Borrower within the meaning of Section 4001 of ERISA or
is part of a group that includes the Borrower and that is treated as a single
employer under Section 414 of the Code.
“Compliance
Certificate”: a certificate duly executed by a Responsible
Officer substantially in the form of Exhibit B.
“Collateralized”: secured
by cash collateral arrangements and/or backstop letters of credit entered into
on terms and in amounts reasonably satisfactory to the Administrative Agent and
the relevant Issuing Lender.
“Conduit
Lender”: any special purpose corporation organized and
administered by any Lender for the purpose of making Loans otherwise required to
be made by such Lender and designated by such Lender in a written instrument;
provided, that
the designation by any Lender of a Conduit Lender shall not relieve the
designating Lender of any of its obligations to fund a Loan under this Agreement
if, for any reason, its Conduit Lender fails to fund any such Loan, and the
designating Lender (and not the Conduit Lender) shall have the sole right and
responsibility to deliver all consents and waivers required or requested under
this Agreement with respect to its Conduit Lender, and provided, further, that no
Conduit Lender shall (a) be entitled to receive any greater amount pursuant to
Section 2.18, 2.19, 2.20 or 10.5 than the designating Lender would have been
entitled to receive in respect of the extensions of credit made by such Conduit
Lender or (b) be deemed to have any Commitment.
“Confidential Information
Memorandum”: the Confidential Information Memorandum dated
March 2006 and furnished to certain Lenders.
“Consolidated
EBITDA”: without duplication, for any period, Consolidated Net
Income plus (a)
provision for taxes based on income, (b) depreciation expense (excluding any
such expense attributable to depreciation of Eligible Assets), (c) Consolidated
Total Interest Expense, (d) amortization expense (excluding any such expense
attributable to amortization of Eligible Assets), (e) non-cash stock option and
restricted stock grant expense, (f)(i) separation, integration, restructuring
and severance cash items and (ii) other extraordinary, unusual or non-recurring
cash items, in the case of each of (i) and (ii) in an aggregate amount not to
exceed $60,000,000 for any period, (g) other unusual or non-recurring non-cash
expenses or losses, including fees, expenses and charges associated with the
transactions contemplated by the Separation Agreement, (h) unrealized losses
from interest rate, foreign exchange and gasoline Swap Agreements and (i) any
other non-cash charges and expenses (including amortization of deferred
financing fees), in the case of each of (a)-(i) above, to the extent such items
are reflected as a charge in the calculation of Consolidated Net Income for such
period. Notwithstanding the foregoing, in calculating Consolidated
EBITDA for any period, pro forma effect shall be given to (i)(A) any
non-recurring gains (losses) on business unit dispositions outside the ordinary
course of business and (B) any unusual or non-recurring non-cash income, in the
case of each of (A) and (B) above, to the extent such items are reflected as
income (losses) in the calculation of Consolidated Net Income for such period
and (ii) any cash payments made during such period in respect of items described
in clause (g) and (h) above subsequent to the fiscal quarter in which the
relevant non-cash expenses or non-cash or unrealized losses were reflected as a
charge in the calculation of Consolidated Net Income, all as determined on a
consolidated basis in accordance with GAAP. For the purposes of calculating
Consolidated EBITDA for any period of four consecutive fiscal
5
quarters
(each, a “Reference Period”) pursuant to any determination of the Consolidated
Leverage Ratio, (i) if at any time during such Reference Period the Borrower or
any Subsidiary shall have made any Material Disposition, the Consolidated EBITDA
for such Reference Period shall be reduced by an amount equal to the
Consolidated EBITDA (if positive) attributable to the property that is the
subject of such Material Disposition for such Reference Period or increased by
an amount equal to the Consolidated EBITDA (if negative) attributable thereto
for such Reference Period and (ii) if during such Reference Period the Borrower
or any Subsidiary shall have made a Material Acquisition, Consolidated EBITDA
for such Reference Period shall be calculated after giving pro forma effect thereto
as if such Material Acquisition occurred on the first day of such Reference
Period. As used in this definition, “Material Acquisition” means any
acquisition of property or series of related acquisitions of property that (a)
constitutes assets comprising all or substantially all of an operating unit of a
business or constitutes all or substantially all of the common stock of a Person
and (b) involves the payment of consideration by the Borrower and its
Subsidiaries in excess of $25,000,000; and “Material Disposition” means any
Disposition of property or series of related Dispositions of property under
Section 7.5(f), (g) or (h) that yields gross proceeds to the Borrower or any of
its Subsidiaries in excess of $25,000,000.
“Consolidated Financial
Statements”: as defined in Section 4.1(b).
“Consolidated Interest
Coverage Ratio”: for any period, the ratio of (a) Consolidated
EBITDA for such period to (b) Consolidated Interest Expense for such
period.
“Consolidated Interest
Expense”: for any period, (a) total interest expense paid or
payable in cash (including that properly attributable to Capital Leases
Obligations, but excluding in any event (w) all capitalized interest and
amortization of debt discount and debt issuance costs, (x) upfront fees in
connection with any debt issuance and fees and expenses in connection with any
amendment of debt, and (y) debt extinguishment costs) of the Borrower and its
Subsidiaries on a consolidated basis in accordance with GAAP including, without
limitation, all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers’ acceptance financing paid or payable
in cash and net cash costs (or minus net profits) under interest rate Swap
Agreements minus, (b) without
duplication, any interest income of the Borrower and its Subsidiaries on a
consolidated basis in accordance with GAAP during such period (other than
interest income earned on any Related Eligible
Assets). Notwithstanding the foregoing, interest expense in respect
of any (i) Securitization Indebtedness, (ii) AESOP Indebtedness or (iii)
Recourse Vehicle Indebtedness, in an amount, for this clause (iii), of up to
$750,000,000, shall not be included in Consolidated Interest Expense; provided that for any
period when the Consolidated Leverage Ratio is less than 3.25 to 1.0, interest
expense on Recourse Vehicle Indebtedness in an amount up to $850,000,000 shall
not be included in Consolidated Interest Expense. For purposes of
calculating Consolidated Interest Expense related to Recourse Vehicle
Indebtedness, such amount shall be equal to the product of:
|
Recourse
Vehicle Indebtedness – $750,000,000 (or $850,000,000, as
applicable)
|
x
|
total
cash interest expense on Recourse Vehicle Indebtedness
|
|
Recourse
Vehicle Indebtedness
|
“Consolidated Leverage
Ratio”: as at the last day of any period, the ratio of (a)
Consolidated Total Debt on such day to (b) Consolidated EBITDA for such
period.
“Consolidated Net
Income”: for any period for which such amount is being
determined, the net income (or loss) of the Borrower and its Subsidiaries during
such period determined on a consolidated basis for such period taken as a single
accounting period in accordance with GAAP; provided that there
shall be excluded (i) income (loss) of any Person (other than a Subsidiary of
the Borrower) in which the Borrower or any of its Subsidiaries has any equity
investment or comparable interest, except to the extent of the amount of
dividends or other distributions actually paid to the Borrower or its
Subsidiaries
6
by such
Person during such period, (ii) the income of any Subsidiary of the Borrower to
the extent that the declaration or payment of dividends or similar distributions
by that Subsidiary of the income 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 that Subsidiary, (iii)
any extraordinary after-tax gains and (iv) any extraordinary or unusual pretax
non-cash losses.
“Consolidated Total
Debt”: at any date, the aggregate principal amount of all
Indebtedness of the Borrower and its Subsidiaries at such date, determined on a
consolidated basis in accordance with GAAP; provided that, for
purposes of this definition, Indebtedness shall not include (i)(x)
Securitization Indebtedness, (y) AESOP Indebtedness or (z) Recourse Vehicle
Indebtedness up to $750,000,000; provided that for any
period when the Consolidated Leverage Ratio is less than 3.25 to 1.0, Recourse
Vehicle Indebtedness up to $850,000,000 shall be excluded from Consolidated
Total Debt, (ii) the aggregate undrawn amount of outstanding Letters of Credit,
(iii) the aggregate undrawn amount of outstanding letters of credit under the
Letter of Credit Facilities or (iv) obligations under Swap
Agreements. In addition, for purposes of this definition, the amount
of Indebtedness at any time shall be reduced (but not to less than zero) by the
amount of Excess Cash.
“Consolidated Total Interest
Expense”: for any period, without duplications (a) total
interest expense paid or payable in cash (including that properly attributable
to Capital Leases Obligations) plus, (b)(x) all
capitalized interest and amortization of debt discount and debt issuance costs
and (y) debt extinguishment costs, in each case, of the Borrower and its
Subsidiaries on a consolidated basis in accordance with GAAP including, without
limitation, all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers’ acceptance financing and net cash
costs (or minus net profits) under interest rate Swap Agreements minus, (c) without
duplication, any interest income of the Borrower and its Subsidiaries on a
consolidated basis in accordance with GAAP during such period (other than
interest income earned on any Related Eligible
Assets). Notwithstanding the foregoing, interest expense in respect
of any (i) Securitization Indebtedness, (ii) AESOP Indebtedness or (iii)
Recourse Vehicle Indebtedness, in an amount up to $750,000,000, shall not be
included in Consolidated Total Interest Expense; provided that for any
period when the Consolidated Leverage Ratio is less than 3.25 to 1.0, interest
expense on Recourse Vehicle Indebtedness in an amount up to $850,000,000 shall
not be included in Consolidated Total Interest Expense. For purposes
of calculating Consolidated Total Interest Expense related to Recourse Vehicle
Indebtedness, such amount shall be equal to the product of:
|
Recourse
Vehicle Indebtedness – $750,000,000 (or $850,000,000, as
applicable)
|
x
|
total
interest expense on Recourse Vehicle Indebtedness
|
|
Recourse
Vehicle Indebtedness
|
“Contractual
Obligation”: as to any Person, any provision of any security
issued by such Person or of any agreement, instrument or other undertaking to
which such Person is a party or by which it or any of its property is
bound.
“Currency”: Dollars
or any Optional Currency.
“Default”: any
of the events specified in Section 8, whether or not any requirement for
the giving of notice, the lapse of time, or both, has been
satisfied.
“Defaulting Lender”
means any Lender, as reasonably determined by the Administrative Agent, that has
(a) failed to fund any portion of its Loans or participations in Letters of
Credit or Swingline Loans within three Business Days of the date required to be
funded by it hereunder, unless such requirement to
fund such Loan or participation in Letters of Credit or Swingline Loans is
based on such Lender's good faith determination that the conditions precedent to
funding such Loan or participation in Letters of Credit
7
or Swingline Loans under this
Agreement have not been satisfied and such Lender has notified the
Administrative Agent in writing to that effect, (b)
notified the Borrower, the Administrative Agent, the Issuing Lender, the
Swingline Lender or any Lender in writing that it does not intend to comply with
any of its funding obligations generally under this Agreement or has made a
public statement to the effect that it does not intend to comply with its
funding obligations generally under this Agreement or under other agreements in
which it commits to extend credit, (c) failed, within three Business Days after
written request by the Administrative Agent, to confirm that it will comply with
the terms of this Agreement relating to its obligations to fund prospective
Loans and participations in then outstanding Letters of Credit and Swingline
Loans, provided that such Lender shall cease to be a Defaulting Lender under
this clause (c) upon receipt of such confirmation by the Administrative Agent,
or (d) otherwise failed to pay over to the Administrative Agent or any other
Lender any other amount required to be paid by it hereunder within three
Business Days of the date when due, unless the subject of a good faith dispute;
provided that a Lender shall not be a Defaulting Lender solely by virtue of the
ownership or acquisition of any ownership interest in such Lender or a parent
company thereof or the exercise of control over a Lender or parent company
thereof by a Governmental Authority or instrumentality thereof.
“Disposition”: with
respect to any property, any sale, lease, sale and leaseback, assignment,
conveyance, transfer or other disposition thereof. The terms “Dispose” and “Disposed of” shall
have correlative meanings.
“Documentation
Agents”: as defined in the preamble hereto.
“Dollar
Equivalent”: on any date of determination, (a) with respect to
any amount denominated in Dollars, such amount, and (b) with respect to an
amount denominated in any Optional Currency, the equivalent in Dollars of such
amount determined by the Administrative Agent in accordance with normal banking
industry practice using the Exchange Rate on the date of determination of such
equivalent. In making any determination of the Dollar Equivalent (for
purposes of calculating the amount of Loans to be borrowed from the respective
Lenders on any date or for any other purpose), the Administrative Agent shall
use the relevant Exchange Rate in effect on the date on which the Borrower or
any Subsidiary Borrower delivers a request for Revolving Loans or on such other
date upon which a Dollar Equivalent is required to be determined pursuant to the
provisions of this Agreement. As appropriate, amounts specified
herein as amounts in Dollars shall be or include any relevant Dollar Equivalent
amount.
“Dollars” and “$”: the
lawful money of the United States.
“Domestic
Subsidiary”: any Subsidiary of the Borrower organized under
the laws of any jurisdiction within the United States.
“Domestic Subsidiary
Borrower”: any Subsidiary Borrower which is a Domestic
Subsidiary.
“Eligible
Assets”: any of the following and any proceeds thereof: (a)
assets (and interests in assets) that are of the type described as “assets under
vehicle programs” in the consolidated financial statements of the Borrower and
its Subsidiaries, dated December 31, 2005, which shall include, without
limitation, vehicles, vehicle leases, fleet maintenance contracts, fleet
management contracts, other service contracts, receivables generated by any of
the foregoing and other asset servicing rights, and (b) equity interests or
other securities issued by any Subsidiary or other Person issuing securities or
incurring Indebtedness secured by, payable from or representing beneficial
interests in, or holding title or ownership interests in, assets of the type
described in clause (a) above or interests in such assets.
8
“Environmental
Laws”: all laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, judgments, injunctions, notices or requirements
issued, promulgated or entered into by any Governmental Authority, relating in
any way to the environment, preservation or reclamation of natural resources,
the management, release or threatened release of any Materials of Environmental
Concern or to health and safety matters, including without limitation, the Clean
Water Act also known as the Federal Water Pollution Control Act (“FWPCA”)
33 U.S.C. § 1251 et seq., the Clean Air
Act (“CAA”), 42
U.S.C. §§ 7401 et seq., the Federal
Insecticide, Fungicide and Rodenticide Act (“FIFRA”),
7 U.S.C. §§ 136 et seq., the Surface
Mining Control and Reclamation Act (“SMCRA”),
30 U.S.C. §§ 1201 etseq., the
Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”),
42 U.S.C. § 9601 et seq., the Superfund
Amendment and Reauthorization Act of 1986 (“XXXX”), Public Law
99-499, 100 Stat. 1613, the Emergency Planning and Community Right to Know Act
(“ECPCRKA”),
42 U.S.C. § 11001 et seq., the Resource
Conservation and Recovery Act (“RCRA”),
42 U.S.C. § 6901 etseq., the
Occupational Safety and Health Act as amended (“OSHA”),
29 U.S.C. § 655 and § 657, together, in each case, with any
amendment thereto, and the regulations adopted and binding publications
promulgated thereunder and all substitutions thereof.
“ERISA”: the
Employee Retirement Income Security Act of 1974, as amended from time to
time.
“Euro” and “€”: the
official currency of the European Union.
“Eurocurrency Base
Rate”: with respect to each day during each Interest Period
pertaining to a Eurocurrency Loan, the rate per annum determined on the basis of
the rate for deposits in Dollars or the applicable Optional Currency for a
period equal to such Interest Period commencing on the first day of such
Interest Period appearing on the applicable page of the Telerate screen as of
11:00 A.M., London time, two Business Days prior to the beginning of such
Interest Period. In the event that such rate does not appear on such
page of the Telerate screen (or otherwise on such screen), the “Eurocurrency Base
Rate” shall be determined by reference to such other comparable publicly
available service for displaying eurocurrency rates for the applicable Currency
as may be selected by the Administrative Agent or, in the absence of such
availability, by reference to the rate at which the Administrative Agent is
offered Dollar deposits or deposits in the applicable Optional Currency at or
about 11:00 A.M., New York City time, two Business Days prior to the beginning
of such Interest Period in the London interbank eurocurrency for delivery on the
first day of such Interest Period for the number of days comprised
therein.
“Eurocurrency
Loans”: Loans the rate of interest applicable to which is
based upon the Eurocurrency Rate.
“Eurocurrency
Rate”: with respect to each day during each Interest Period
pertaining to a Eurocurrency Loan, a rate per annum determined for such day in
accordance with the following formula (rounded upward to the nearest 1/100th
of 1%):
|
Eurocurrency
Base Rate
|
|
1.00
- Eurocurrency Reserve Requirements
|
; provided that with
respect to any Eurocurrency Loan denominated in Euro or Pounds Sterling, the
Eurocurrency Rate shall the mean the Eurocurrency Base Rate plus if applicable,
as reasonably determined by the Administrative Agent in accordance with Schedule
1.1C, the Mandatory Costs; and provided further that
the Eurocurrency Rate applicable to any Term Loan shall, in any event, be at all
times no less than 1.50%.
9
“Eurocurrency Reserve
Requirements”: a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board and any other banking authority to which the
Administrative Agent or any Lender is subject, for Eurocurrency Liabilities (as
defined in Regulation D). Such reserve percentages shall include
those imposed under Regulation D. Eurocurrency Loans shall be deemed
to constitute Eurocurrency Liabilities and as such shall be deemed to be subject
to such reserve requirements without benefit of or credit for proration,
exceptions or offsets which may be available from time to time to any Lender
under Regulation D. Eurocurrency Reserve Requirements shall be
adjusted automatically on and as of the effective date of any change in any
reserve percentage.
“Eurocurrency
Tranche”: the collective reference to Eurocurrency Loans under
a particular Facility the then current Interest Periods with respect to all of
which begin on the same date and end on the same later date (whether or not such
Loans shall originally have been made on the same day).
“Event of
Default”: any of the events specified in Section 8, provided that any
requirement for the giving of notice, the lapse of time, or both, has been
satisfied.
“Excess
Cash”: all cash and Cash Equivalents of the Borrower and its
Subsidiaries at such time determined on a consolidated basis in accordance with
GAAP in excess of $25,000,000.
“Exchange
Rate”: for any day with respect to any Optional Currency, the
rate at which such Optional Currency may be exchanged into Dollars, as set forth
at 11:00 A.M., London time, on such day on the applicable Reuters currency page
with respect to such Optional Currency. In the event that such rate
does not appear on the applicable Reuters currency page, the Exchange Rate with
respect to such Optional Currency shall be determined by reference to such other
publicly available service for displaying exchange rates as may be agreed upon
by the Administrative Agent and the Borrower or, in the absence of such
agreement, such Exchange Rate shall instead be the spot rate of exchange of the
Administrative Agent in the London Interbank market or other market where its
foreign currency exchange operations in respect of such Optional Currency are
then being conducted, at or about 11:00 A.M., London time, on such day for the
purchase of Dollars with such Optional Currency, for delivery two Business Days
later; provided, however, that if at
the time of any such determination, for any reason, no such spot rate is being
quoted, the Administrative Agent may use any reasonable method it deems
appropriate to determine such rate, and such determination shall be conclusive
absent manifest error.
“Excluded
Person”: as defined in the definition of
“Subsidiary”.
“Excluded
Subsidiary”: each Subsidiary listed on Schedule 1.1B and any
other Subsidiary so long as the Borrower or any Subsidiary of the Borrower does
not have the controlling authority under the organizational documents of such
Excluded Subsidiary to incur Indebtedness on its behalf or grant Liens on its
assets (other than purchase money security interests).
“Existing Letters of
Credit”: as defined in Section
3.9.
“Extended Revolving
Commitment”: with respect to any Extending Revolving Lender at
any time, the portion of such Lender’s Revolving Commitment extended pursuant to
the Second Amendment (including any increase thereof in connection with the
Second Amendment).
“Extended Revolving
Termination Date”: the date that is the earlier of (a) April
19, 2013 or (b) 91 calendar days prior to the Non-Extended Term Loan Maturity
Date unless on such date, either (i)
10
the
principal amount of Term Loans (other than Extended Term Loans) that remain
outstanding does not exceed $75,000,000 or (ii) the Consolidated Leverage Ratio
is not more than 4.00 to 1.00.
“Extended Term
Loan”: with respect to any Extending Term Loan Lender at any
time, the portion of such Lender’s outstanding Term Loan extended pursuant to
the Second Amendment (including any increase thereof in connection with the
Second Amendment).
“Extending
Lenders”: the Extending Term Loan Lenders and Extending
Revolving Lenders, individually or collectively, as the context may
require.
“Extending Revolving
Lender”: (a) any Revolving Lender who has agreed to extend all
or a portion of its Revolving Commitment until the Extended Revolving
Termination Date, (b) any Replacement Revolving Lender (as defined in the Second
Amendment) or (c) any non-Extending Lender that has converted to become an
Extending Revolving Lender pursuant to Section 6 of the Second
Amendment. A Lender shall only be an Extending Revolving Lender (x)
for the period from, as the case may be, the Second Amendment Effective Date,
the date that it becomes a Replacement Revolving Lender or the date it converts
to become an Extending Revolving Lender and (y) only with respect to its
Extended Revolving Commitment and any Loans made by it thereunder.
“Extending Term Loan
Lender”: (a) any Term Loan Lender who has agreed to extend all
or a portion of its outstanding Term Loan until the Extended Term Loan Maturity
Date, (b) any Replacement Term Loan Lender (as defined in the Second Amendment)
or (c) any non-Extending Lender that has converted to become an Extending Term
Loan Lender pursuant to Section 6 of the Second Amendment. A Lender
shall only be an Extending Term Loan Lender (x) for the period from, as the case
may be, the Second Amendment Effective Date, the date that it becomes a
Replacement Term Loan Lender or the date it converts to become an Extending Term
Loan Lender and (y) only with respect to the Extended Term Loans made by it
thereunder.
“Extended Term Loan Maturity
Date”: earlier of (a) April 19, 2014 or (b) 91 calendar days
prior to the maturity of the Senior Unsecured Notes due May 15, 2014, if such
Senior Unsecured Notes have not been repaid or refinanced by such
date.
“Facility”: each
of (a) the Term Commitments and the Term Loans made thereunder (the “Term Facility”) and
(b) the Revolving Commitments and the extensions of credit made thereunder (the
“Revolving
Facility”).
“Federal Funds Effective
Rate”: for any day, 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 on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average of the quotations for
the day of such transactions received by JPMorgan Chase Bank from three federal
funds brokers of recognized standing selected by it.
“Fee Payment
Date”: (a) the third Business Day following the last day of
each March, June, September and December and (b) the last day of the Revolving
Commitment Period.
“First Amendment Effective
Date”: December 23, 2008.
“Fleet Financing
Forecast”: the Borrower’s annual forecast of financing needs
for its domestic rental car rental fleet (including detailed sources and uses),
substantially in the form set forth in Section 1 of Annex A.
11
“Foreign
Subsidiary”: any Subsidiary of the Borrower that is not a
Domestic Subsidiary.
“Foreign Subsidiary
Borrower”: any Subsidiary Borrower that is not a Domestic
Subsidiary.
“Funding
Office”: the office of the Administrative Agent specified in
Section 10.2 or such other office as may be specified from time to time by the
Administrative Agent as its funding office by written notice to the Borrower and
the Lenders.
“GAAP”: generally
accepted accounting principles in the United States as in effect from time to
time.
“Governmental
Authority”: any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
or any federal, state or municipal court, in each case whether of the United
States or foreign.
“Group
Members”: the collective reference to Holdings, the Borrower
and their respective Subsidiaries.
“Guarantee and Collateral
Agreement”: the Amended and Restated Guarantee and Collateral
Agreement, dated as of the First Amendment Effective Date, as amended, modified
or supplemented from time to time.
“Guarantee
Obligation”: any obligation, contingent or otherwise, of the
Person guaranteeing or having the economic effect of guaranteeing any
Indebtedness of any other Person (the “primary obligor”) in
any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness (including reasonable
fees and expenses related thereto) or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness of the payment thereof, (c) to maintain working capital,
equity capital or any other financial statement condition or liquidity of the
primary obligor so as to enable the primary obligor to pay such Indebtedness or
(d) as an account party in respect of any letter of credit or letter of guaranty
issued to support such Indebtedness; provided, however, that the
amount of any Guarantee Obligation shall be limited to the extent necessary so
that such amount does not exceed the value of the assets of such Person (as
reflected on a consolidated balance sheet of such Person prepared in accordance
with GAAP) to which any creditor or beneficiary of such Guarantee Obligation
would have recourse. Notwithstanding the foregoing definition, the
term “Guarantee Obligation” shall not include any direct or indirect obligation
of a Person as a general partner of a general partnership or a joint venturer of
a joint venture in respect of Indebtedness of such general partnership or joint
venture, to the extent such Indebtedness is contractually non-recourse to the
assets of such Person as a general partner or joint venturer (other than assets
comprising the capital of such general partnership or joint
venture). The term “Guarantee Obligation” shall not include
endorsements for collection or deposit in the ordinary course of
business.
“Guarantors”: the
collective reference to Holdings and the Subsidiary Guarantors.
“Holdings”: as
defined in the preamble hereto.
“Increased Amount
Date”: is defined in Section 2.23.
“Incremental Commitment
Agreement”: is defined in Section 2.23.
12
“Incremental Loan
Commitments”: is defined in Section 2.23.
“Incremental Revolving
Commitments”: is defined in Section 2.23.
“Incremental Revolving
Lender”: is defined in Section 2.23.
“Incremental Revolving
Loan”: is defined in Section 2.23.
“Incremental Term
Loan”: is defined in Section 2.23.
“Incremental Term Loan
Commitments”: is defined in Section 2.23.
“Incremental Term Loan
Lender”: is defined in Section 2.23.
“Indebtedness”: of
any Person at any date, without duplication, (a) all indebtedness of such Person
for borrowed money, (b) all obligations of such Person for the deferred purchase
price of property or services (other than current trade payables incurred in the
ordinary course of such Person’s business), (c) all obligations of such Person
evidenced by notes, bonds, debentures or other similar instruments, (d) all
indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), (e)
all Capital Lease Obligations of such Person, (f) all obligations of such
Person, contingent or otherwise, as an account party or applicant under or in
respect of acceptances, letters of credit, surety bonds or similar arrangements,
(g) the liquidation value of all mandatorily redeemable preferred Capital Stock
of such Person, (h) all Guarantee Obligations of such Person in respect of
obligations of the kind referred to in clauses (a) through (g) above, (i) all
obligations of the kind referred to in clauses (a) through (h) above secured by
(or for which the holder of such obligation has an existing right, contingent or
otherwise, to be secured by) any Lien on property (including accounts and
contract rights) owned by such Person, whether or not such Person has assumed or
become liable for the payment of such obligation, and (j) for the purposes of
Section 8(e) only, all obligations of such Person in respect of Swap
Agreements. The Indebtedness of any Person shall include the
Indebtedness of any other entity (including any partnership in which such Person
is a general partner) to the extent such Person is liable therefor as a result
of such Person’s ownership interest in or other relationship with such entity,
except to the extent the terms of such Indebtedness expressly provide that such
Person is not liable therefor.
“Insolvency”: with
respect to any Multiemployer Plan, the condition that such Plan is insolvent
within the meaning of Section 4245 of ERISA.
“Insolvent”: pertaining
to a condition of Insolvency.
“Intellectual
Property”: the collective reference to all rights, priorities
and privileges with respect to intellectual property, whether arising under
United States, multinational or foreign laws or otherwise, including copyrights,
copyright licenses, patents, patent licenses, trademarks, trademark licenses,
technology, know-how and processes, and all rights to xxx at law or in equity
for any infringement or other impairment thereof, including the right to receive
all proceeds and damages therefrom.
“Interest Payment
Date”: (a) as to any ABR Loan (other than any Swingline Loan),
the last day of each March, June, September and December to occur while such
Loan is outstanding and the final maturity date of such Loan, (b) as to any
Eurocurrency Loan having an Interest Period of three months or less, the last
day of such Interest Period, (c) as to any Eurocurrency Loan having an Interest
Period longer than three months, each day that is three months, or a whole
multiple thereof, after the first day of such
13
Interest
Period and the last day of such Interest Period, (d) as to any Loan (other than
any Revolving Loan that is an ABR Loan and any Swingline Loan), the date of any
repayment or prepayment made in respect thereof and (e) as to any Swingline
Loan, the day that such Loan is required to be repaid.
“Interest
Period”: as to any Eurocurrency Loan, (a) initially, the
period commencing on the borrowing or conversion date, as the case may be, with
respect to such Eurocurrency Loan and ending one, two, three or six (or, if
agreed to by all Lenders under the relevant Facility, nine or twelve) months
thereafter, as selected by the Borrower or relevant Subsidiary Borrower in its
notice of borrowing or notice of conversion, as the case may be, given with
respect thereto; and (b) thereafter, each period commencing on the last day of
the next preceding Interest Period applicable to such Eurocurrency Loan and
ending one, two, three or six (or, if agreed to by all Lenders under the
relevant Facility, nine or twelve) months thereafter, as selected by the
Borrower or relevant Subsidiary Borrower by irrevocable notice to the
Administrative Agent not later than 12:00 Noon, New York City time, on the date
that is three Business Days prior to the last day of the then current Interest
Period with respect thereto; provided that, all of
the foregoing provisions relating to Interest Periods are subject to the
following:
|
(i)
|
if
any Interest Period would otherwise end on a day that is not a Business
Day, such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month in which event such Interest
Period shall end on the immediately preceding Business
Day;
|
|
(ii)
|
the
Borrower or relevant Subsidiary Borrower may not select an Interest Period
under a particular Facility that would extend beyond the Revolving
Termination Date or beyond the date final payment is due on the Term
Loans;
|
|
(iii)
|
any
Interest Period that begins on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the last
Business Day of a calendar month;
and
|
|
(iv)
|
the
Borrower and any relevant Subsidiary Borrower shall select Interest
Periods so as not to require a payment or prepayment of any Eurocurrency
Loan during an Interest Period for such
Loan.
|
“Investments”: as
defined in Section 7.7.
“Issuing
Lender”: JPMorgan Chase Bank or any affiliate thereof and such
other Lenders or affiliates thereof as may be designated in writing by the
Borrower which agree in writing to act as such in accordance with the terms
hereof and are reasonably acceptable to the Administrative Agent (including the
issuer of any Existing Letters of Credit), in the capacity as issuer of any
Letter of Credit.
“Joinder Agreement”:
is defined in Section 10.1.
“JPMorgan Chase
Bank”: JPMorgan Chase Bank, N.A.
“judgment
currency”: as defined in Section 10.13.
“L/C
Obligations”: at any time, an amount equal to the sum of (a)
the aggregate then undrawn and unexpired amount of the then outstanding Letters
of Credit and (b) the aggregate amount of drawings under Letters of Credit that
have not then been reimbursed pursuant to Section 3.5.
14
“L/C
Participants”: the collective reference to all the Revolving
Lenders other than the Issuing Lender.
“Lenders”: as
defined in the preamble hereto; provided, that unless
the context otherwise requires, each reference herein to the Lenders shall be
deemed to include any Conduit Lender.
“Letter of Credit
Facilities”: the Cendant letter of credit facilities, dated as
of July 2, 2004, as such agreements may be amended, supplemented and amended and
restated from time to time.
“Letters of
Credit”: as defined in Section 3.1(a).
“Lien”: with
respect to any asset, (a) any mortgage, deed of trust, lien, pledge,
hypothecation, encumbrance, charge or security interest in, on or of such asset
and (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing) relating
to such asset.
“Loan”: any
loan made by any Lender pursuant to this Agreement.
“Loan
Documents”: this Agreement, the Security Documents, the Notes
and any amendment, waiver, supplement or other modification to any of the
foregoing.
“Loan
Parties”: each Group Member that is a party to a Loan
Document.
“Majority Facility
Lenders”: with respect to any Facility, the holders of more
than 50% of the aggregate unpaid principal amount of the Term Loans or the Total
Revolving Extensions of Credit, as the case may be, outstanding under such
Facility (or, in the case of the Revolving Facility, prior to any termination of
the Revolving Commitments, the holders of more than 50% of the Total Revolving
Commitments).
“Material
Acquisition”: as defined in the definition of “Consolidated
EBITDA”.
“Material Adverse
Effect”: any event, development or circumstance that has had
or could reasonably be expected to have a material adverse effect on
(i) the business, operations, property or condition (financial or
otherwise) of the Borrower and its Subsidiaries taken as a whole (it being
understood that a bankruptcy filing by, or change in the actual or perceived
credit quality of, or work stoppage affecting any “big three” auto manufacturer
shall not constitute a Material Adverse Effect so long as such “big three” auto
manufacturer has not failed to perform its material performance obligations owed
to the Borrower or any of its Subsidiaries) or (ii) the validity or
enforceability of this Agreement or any of the other Loan Documents or the
rights and remedies of the Administrative Agent or the Lenders hereunder or
thereunder; provided that on the
date of making the initial extensions of credit under this Agreement, “Material
Adverse Effect” shall mean any event, development or circumstance that has had
or could reasonably be expected to have a material adverse effect on the
business, operations, property or condition (financial or otherwise) of the
Borrower and its Subsidiaries, taken as a whole, excluding in any case, any
event, development or circumstance resulting from (A) general changes or
developments (other than those resulting from acts of terrorism, war or armed
hostilities) in the vehicle rental industry or in the general economy (except to
the extent such changes or developments have a disproportionate adverse effect
on the Borrower and its Subsidiaries, taken as a whole, relative to other
participants in the vehicle rental industry), (B) normal seasonal changes in the
results of operations of the Borrower and its Subsidiaries, (C) the announcement
of the Spin-Off Transactions and the consummation of the transactions
contemplated thereby, (D) changes in accounting requirements or principles or
any changes in applicable laws or interpretations thereof, or (E)
15
any
failure in and of itself by the Borrower or any of its Subsidiaries to meet any
estimates of revenues or earnings or other financial performance for any period
(it being agreed that the facts and circumstances giving rise to such failure
may be taken into account in determining whether there has been a Material
Adverse Effect); provided that a
bankruptcy filing by, or change in the actual or perceived credit quality of, or
work stoppage affecting any “big three” auto manufacturer shall not constitute a
Material Adverse Effect so long as such “big three” auto manufacturer has not
failed to perform its material performance obligations owed to the Borrower or
any of its Subsidiaries.
“Material
Disposition”: as defined in the definition of “Consolidated
EBITDA”.
“Materials of Environmental
Concern”: all explosive or radioactive substances or wastes
and all hazardous or toxic substances, wastes or other pollutants, including
petroleum or petroleum distillates, asbestos or asbestos containing materials,
polychlorinated biphenyls, radon gas, infectious or medical wastes and all other
substances or wastes of any nature regulated pursuant to any Environmental
Law.
“Maximum
Facilities Amount”: as defined in Section 2.23.
“Moody’s”: Xxxxx’x
Investors Service, Inc.
“Mortgaged
Properties”: the real properties listed on Schedule 1.1F, as
to which the Administrative Agent for the benefit of the Lenders shall be
granted a Lien pursuant to the Mortgages.
“Mortgages”: each
of the mortgages and deeds of trust made by any Loan Party in favor of, or for
the benefit of, the Administrative Agent for the benefit of the Lenders,
substantially in the form of Exhibit H (with such changes thereto as the
Administrative Agent may approve or as shall be advisable under the law of the
jurisdiction in which such mortgage or deed of trust is to be
recorded).
“Multiemployer
Plan”: a Plan that is a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
“Net Cash
Proceeds”: (a) in connection with any Asset Sale or any
Recovery Event, the proceeds thereof in the form of cash and Cash Equivalents
(including any such proceeds received by way of deferred payment of principal
pursuant to a note or installment receivable or purchase price adjustment
receivable or otherwise, but only as and when received), net of attorneys’ fees,
accountants’ fees, investment banking fees, amounts required to be applied to
the repayment of Indebtedness secured by a Lien expressly permitted hereunder on
any asset that is the subject of such Asset Sale or Recovery Event (other than
any Lien pursuant to a Security Document) and other customary fees and expenses
actually incurred in connection therewith and net of taxes paid or reasonably
estimated to be payable as a result thereof (after taking into account any
available tax credits or deductions and any tax sharing arrangements, to the
extent such tax credits or deductions or tax sharing arrangements are utilized)
and (b) in connection with any issuance or sale of Capital Stock or any
incurrence of Indebtedness, the cash proceeds received from such issuance or
incurrence, net of attorneys’ fees, investment banking fees, accountants’ fees,
underwriting discounts and commissions and other customary fees and expenses
actually incurred in connection therewith.
“New Zealand Dollars”
and “NZ$”: the
lawful money of New Zealand.
“Non-Excluded
Taxes”: as defined in Section 2.19(a).
16
“Non-Extended Term
Loan”: any Term Loan or portion thereof not extended pursuant
to the Second Amendment.
“Non-Extended Revolving
Commitment”: any Revolving Commitment or portion thereof not
extended pursuant to the Second Amendment.
“Non-Extended Revolving
Termination Date”: April 19, 2011.
“Non-Extended Term Loan
Maturity Date”: April 19, 2012.
“Non-U.S.
Lender”: as defined in Section 2.19(d).
“Notes”: the
collective reference to any promissory note evidencing Loans.
“Obligations”: the
unpaid principal of and interest on (including interest accruing after the
maturity of the Loans and Reimbursement Obligations and interest accruing after
the filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower or any Subsidiary
Borrower, whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding) the Loans and all other obligations and liabilities
of the Borrower and each Subsidiary Borrower to any Agent or Lender (or, in the
case of Specified Swap Agreements and Specified Cash Management Agreements, any
affiliate of any Agent or Lender, in each case, at the time such agreement was
entered into), whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under, out
of, or in connection with, this Agreement, any other Loan Document, the Letters
of Credit, any Specified Swap Agreement, any Specified Cash Management Agreement
or any other document made, delivered or given in connection herewith or
therewith, whether on account of principal, interest, reimbursement obligations,
swap coupon or termination payments, fees or indemnities, or reasonable
out-of-pocket costs or expenses (including reasonable out-of-pocket fees,
charges and disbursements of counsel to the Administrative Agent or to any
Lender that are required to be paid by the Borrower or any Subsidiary Borrower
pursuant hereto) or otherwise.
“OID”: is defined in
Section 2.23.
“Optional
Currency”: at any time, Australian Dollars, Canadian Dollars,
Euro, New Zealand Dollars, Pounds Sterling and such other currencies which are
convertible into Dollars and are freely traded and available in the London
interbank eurocurrency market.
“original
currency”: as defined in Section 10.13.
“Other
Taxes”: any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement or any other Loan
Document.
“Parent”: each
of Cendant, Cendant Financing Holding Company, LLC and any other direct or
indirect parent of Holdings and the Borrower.
“Parent
Expenses”: (i) costs (including all professional fees and
expenses) incurred by any Parent in connection with its reporting obligations
under, or in connection with compliance with, applicable laws or applicable
rules of any applicable laws or applicable rules of any governmental, regulatory
or self-regulatory body or stock exchange, the Senior Unsecured Note Indenture,
or any other agreement or
17
instrument
relating to Indebtedness of the Borrower or any Subsidiary Guarantor, including
in respect of any reports filed with respect to the Securities Act of 1933, as
amended, the Securities Exchange Act of 1934, as amended, or the respective
rules and regulations promulgated thereunder, (ii) an aggregate amount not to
exceed $5,000,000 in any fiscal year to permit any Parent to pay its corporate
overhead expenses incurred in the ordinary course of business, and to pay
salaries or other compensation of employees who perform services for any Parent
or for such Parent and the Borrower, provided that Cendant allocates such
overhead among its Subsidiaries in conformity with clause (vi) of this
paragraph, (iii) expenses incurred by any Parent in connection with the
acquisition, development, maintenance, ownership, prosecution, protection and
defense of its Intellectual Property and associated rights to the extent such
Intellectual Property and associated rights relate to the business or businesses
of the Borrower or any Subsidiary, (iv) indemnification obligations of any
Parent owing to directors, officers, employees or other Persons under its
charter or by-laws or pursuant to written agreements with any such Person, (v)
other operational and tax expenses of any Parent attributable to or incurred on
behalf of Holdings, the Borrower and its Subsidiaries in the ordinary course of
business, including reimbursement obligations under the Letter of Credit
Facilities and including obligations in respect of director and officer
insurance (including premiums therfor); provided, that
following the completion of the Spin-Off Transactions, all operational and tax
expenses of any Parent are deemed to be attributable to or incurred on behalf of
the Borrower if the Borrower’s and its Subsidiaries’ activities represent
substantially all of the operating activities of such Parent and all of its
Subsidiaries, (vi) prior to the completion of the Spin-Off Transactions, general
corporate overhead expenses allocated in conformity with past practices of the
Borrower or as applied to other Subsidiaries of Cendant (or, if applicable, to
former Subsidiaries of Cendant), and (vii) fees and expenses incurred by any
Parent in connection with any offering of Capital Stock or Indebtedness, (x)
where the net proceeds of such offering are intended to be received by or
contributed or loaned to the Borrower or any Subsidiary Guarantor, or (y) in a
prorated amount of such expenses in proportion to the amount of such net
proceeds intended to be so received, contributed or loaned, or (z) otherwise on
an interim basis prior to completion of such offering so long as any Parent
shall cause the amount of such expenses to be repaid to the Borrower or the
relevant Subsidiary Guarantor out of the proceeds of such offering promptly if
completed.
“Participant”: as
defined in Section 10.6(c).
“PBGC”: the
Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title
IV of ERISA (or any successor).
“Permitted
Acquisition”: an acquisition or any series of related
acquisitions by a Loan Party (including any merger where such Loan Party (or a
Subsidiary that becomes a Loan Party) is the surviving entity) of (a) all or
substantially all of the assets or a majority of the outstanding Capital Stock
of any Person or (b) any division, line of business or other business unit of
any Person (such Person or such division, line of business or other business
unit of such Person shall be referred to herein as the “Target”), in each
case that is a type of business (or assets used in a type of business) permitted
to be engaged in by the Borrower and its Subsidiaries pursuant to Section 7.13,
so long as (i) no Default or Event of Default shall then exist or would exist
after giving effect thereto, (ii) the Borrower shall demonstrate to the
reasonable satisfaction of the Administrative Agent (which calculations and
information provided to the Administrative Agent shall be made available to the
Lenders) that, after giving effect to the acquisition on a pro forma basis, the
Borrower is in compliance with each of the financial covenants set forth in
Section 7.1 as of the most recently ended fiscal quarter for which financial
statements have been delivered hereunder, (iii) the Administrative Agent, on
behalf of the Lenders, shall have received (or shall receive in connection with
the closing of such acquisition) a first priority perfected security interest,
subject only to Permitted Liens, in Collateral described in the Guarantee and
Collateral Agreement (including, without limitation, Capital Stock) acquired
with respect to the Target in accordance with the terms of Section 6.9 and the
Target, if a Person that has not merged with any Loan Party, shall have taken
such actions as are required of
18
it under
Section 6.9 and (iv) such acquisition shall not be a “hostile” acquisition and
shall have been approved by the Board of Directors and/or shareholders of the
applicable Loan Party and the Target.
“Permitted
Lien”: any Lien permitted by Section 7.3.
“Permitted
Refinancing”: any Indebtedness or Capital Stock issued in
exchange for, or the net proceeds of which are used to extend, refinance, renew,
replace, defease or refund other Indebtedness; provided
that:
(i) the
principal amount (or accreted value, if applicable) of such Indebtedness does
not exceed the principal amount (or accreted value, if applicable) of the
Indebtedness so extended, refinanced, renewed, replaced, defeased or refunded
(plus all accrued interest thereon and the amount of all fees, expenses and
premiums incurred in connection therewith);
(ii) such
Indebtedness has a final maturity date later than the final maturity date of,
and has a weighted average life to maturity equal to or greater than the
weighted average life to maturity of, the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; and
(iii) such
Indebtedness is incurred by the obligor (or obligors) on the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded.
“Person”: an
individual, partnership, corporation, limited liability company, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
“Plan”: at
a particular time, any employee benefit plan that is covered by ERISA and in
respect of which the Borrower or a Commonly Controlled Entity is (or, if such
plan were terminated at such time, would under Section 4069 of ERISA be deemed
to be) an “employer” as defined in Section 3(5) of ERISA.
“Pounds Sterling” and
“£: the
lawful money of the United Kingdom.
“Pricing
Grid”: the table set forth below (in basis
points):
|
Level
|
Specified
Rating
|
Applicable
Margin
Eurodollar
Loans
|
Applicable
Margin
ABR
Loans
|
|
Level
I
|
≥
Ba3 from Xxxxx’x and
≥
BB- from S&P
|
3.75%
|
2.75%
|
|
Level
II
|
B1
from Moodys’s and
B+
from S&P
|
4.00%
|
3.00%
|
|
Level
III
|
<B1
from Xxxxx’x and
<B+
from S&P
|
4.50%
|
3.50%
|
In the
event the Specified Rating assigned by Xxxxx’x is not equivalent to the
Specified Rating assigned by S&P, the lower of the two Specified Ratings
will determine the Applicable Margin, unless the Specified Ratings are two or
more levels apart, in which case the Applicable Margin shall be based on Level
II so long as the lower Specified Rating is at least B1 from Xxxxx’x or B+ from
S&P. In the event either
19
Xxxxx’x
or S&P shall cease to assign a Specified Rating, then the Applicable Margin
shall be based on Level III. Any change in the Applicable Margin determined in
accordance with the foregoing table shall become effective on the date of
announcement or publication by the Borrower or either rating agency of any
change in the Specified Ratings or, in the absence of such announcement or
publication, on the effective date of such change in the Specified
Ratings.
“Pro Forma Balance
Sheet”: as defined in Section 4.1(a).
“Properties”: the
facilities and properties owned, leased or operated by any Group
Member.
“Recourse Vehicle
Indebtedness”: Indebtedness (i) secured by, payable from or
representing beneficial interests in Eligible Assets or (ii) that is unsecured,
the proceeds of which are used, directly or indirectly, to purchase Eligible
Assets, which provides for recourse to the Borrower or any Subsidiary (other
than a Securitization Entity); provided that Recourse Vehicle Indebtedness shall
not include any Indebtedness of the Borrower and Avis Budget Finance in respect
of the Senior Unsecured Notes and any Permitted Refinancing
thereof.
“Recovery
Event”: any settlement of or payment in a principal amount
greater than $15,000,000 in respect of any property or casualty insurance claim
or any condemnation proceeding relating to any asset of any Loan
Party.
“Reference Period”: as
defined in the definition of “Consolidated EBITDA”.
“Refunded Swingline
Loans”: as defined in Section 2.7.
“Register”: as
defined in Section 10.6(b).
“Regulation
S-X”: Regulation S-X, promulgated pursuant to the Securities
Act of 1933, as such Regulation is in effect on the date hereof.
“Regulation
U”: Regulation U of the Board as in effect from time to
time.
“Reimbursement
Obligation”: the obligation of the Borrower or relevant
Subsidiary Borrower to reimburse the Issuing Lender pursuant to Section 3.5 for
amounts drawn under Letters of Credit.
“Reinvestment Deferred
Amount”: with respect to any Reinvestment Event, the aggregate
Net Cash Proceeds received by any Loan Party in connection therewith that are
not applied to prepay the Term Loans or reduce the Revolving Commitments
pursuant to Section 2.11(b) as a result of the delivery of a Reinvestment
Notice.
“Reinvestment
Event”: any Asset Sale or Recovery Event in respect of which
the Borrower has delivered a Reinvestment Notice.
“Reinvestment
Notice”: a written notice executed by a Responsible Officer
stating that no Event of Default has occurred and is continuing and that the
Borrower (directly or indirectly through a Subsidiary) intends and expects to
use all or a specified portion of the Net Cash Proceeds of an Asset Sale or
Recovery Event to acquire or repair assets useful in its business.
20
“Reinvestment Prepayment
Amount”: with respect to any Reinvestment Event, the
Reinvestment Deferred Amount relating thereto less any amount expended prior to
the relevant Reinvestment Prepayment Date to acquire or repair assets useful in
the Borrower’s business.
“Reinvestment Prepayment
Date”: with respect to any Reinvestment Event, the earlier of
(a) the date occurring six months after such Reinvestment Event and (b) the date
on which the Borrower shall have determined not to, or shall have otherwise
ceased to, acquire or repair assets useful in the Borrower’s business with all
or any portion of the relevant Reinvestment Deferred Amount.
“Related Eligible
Assets”: Eligible Assets that secure or are the direct or
indirect source of payment for AESOP Indebtedness, Securitization Indebtedness
or Recourse Vehicle Indebtedness.
“Related
Taxes”: any and all Taxes required to be paid by the Borrower
or any Parent other than Taxes directly attributable to (i) the income of any
entity other than any Parent, Holdings, the Borrower or any of its Subsidiaries,
(ii) owning the Capital Stock of any corporation or other entity other than any
Parent, Holdings, the Borrower or any of its Subsidiaries or (iii) withholding
taxes on payments actually made by any Parent other than to any other Parent,
Holdings, the Borrower or any of its Subsidiaries.
“Reorganization”: with
respect to any Multiemployer Plan, the condition that such plan is in
reorganization within the meaning of Section 4241 of ERISA.
“Replaced Term
Loan”: as defined in Section 10.1(b).
“Replacement Term
Loan”: as defined in Section 10.1(b).
“Reportable
Event”: any of the events set forth in Section 4043(c) of
ERISA, other than those events as to which the thirty day notice period is
waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC Reg.
§ 4043.
“Required
Lenders”: at any time, the holders of more than 50% of (a)
until the Closing Date, the Commitments then in effect and (b) thereafter, the
sum of (i) the aggregate unpaid principal amount of the Term Loans then
outstanding and (ii) the Total Revolving Commitments then in effect or, if the
Revolving Commitments have been terminated, the Total Revolving Extensions of
Credit then outstanding.
“Requirements of
Law”: as to any Person, the Certificate of Incorporation and
By-Laws or other organizational or governing documents of such Person, and any
law, treaty, rule or regulation or determination of an arbitrator or a court of
competent jurisdiction or other Governmental Authority, in each case applicable
to and binding upon such Person and any of its property, and to which such
Person and any of its property is subject.
“Responsible
Officer”: the chief executive officer, president, chief
accounting officer, chief financial officer, treasurer or assistant treasurer of
the Borrower.
“Restricted
Payments”: as defined in Section 7.6.
“Revolving
Commitment”: as to any Lender, the obligation of such Lender,
if any, to make Revolving Loans and participate in Swingline Loans and Letters
of Credit in an aggregate principal and/or face amount not to exceed the amount
set forth under the heading “Revolving Commitment” opposite such Lender’s name
on Schedule 1.1A or in the Assignment and Assumption pursuant to
which
21
such
Lender became a party hereto, as the same may be changed from time to time
pursuant to the terms hereof. The amount of the Extended Revolving
Commitment and the Non-Extended Revolving Commitment of such Lender after the
Second Amendment Effective date is set forth in Schedule 2.
“Revolving Commitment
Period”: the period from and including the Closing Date to the
Revolving Termination Date.
“Revolving Extensions of
Credit”: as to any Revolving Lender at any time, an amount
equal to the sum of (a) the Dollar Equivalent of the aggregate principal amount
of all Revolving Loans held by such Lender then outstanding, (b) the Dollar
Equivalent of such Lender’s Revolving Percentage of the L/C Obligations then
outstanding and (c) such Lender’s Revolving Percentage of the aggregate
principal amount of Swingline Loans then outstanding.
“Revolving
Lender”: each Lender that has a Revolving Commitment or that
holds Revolving Loans.
“Revolving
Loans”: as defined in Section 2.4(a).
“Revolving
Percentage”: as to any Revolving Lender at any time, the
percentage which such Lender’s Revolving Commitment then constitutes of the
Total Revolving Commitments or, at any time after the Revolving Commitments
shall have expired or terminated, the percentage which the aggregate principal
amount of such Lender’s Revolving Loans then outstanding constitutes of the
aggregate principal amount of the Revolving Loans then outstanding, provided, that, in
the event that the Revolving Loans are paid in full prior to the reduction to
zero of the Total Revolving Extensions of Credit, the Revolving Percentages
shall be determined in a manner designed to ensure that the other outstanding
Revolving Extensions of Credit shall be held by the Revolving Lenders on a
comparable basis.
“Revolving Termination
Date”: (a) with respect to Revolving Commitments other than
Extended Revolving Commitments, the Non-Extended Revolving Termination Date and
(b) with respect to Extended Revolving Commitments, the Extended Revolving
Termination Date.
“S&P”: Standard
& Poor’s Ratings Group.
“SEC”: the
Securities and Exchange Commission, any successor thereto and any analogous
Governmental Authority.
“Second
Amendment”: the Second Amendment to this Agreement, dated as
of March 10, 2010, among Holdings, Borrower, the Extending Term Loan Lenders,
the Extending Revolving Lenders and the Amending Non-Extending Lenders party
thereto.
“Second Amendment Effective
Date”: the date on which all the conditions set forth in
Section 10 of the Second Amendment are satisfied.
“Securitization
Entity”: any Subsidiary or other Person (a) engaged solely in
the business of effecting asset securitization transactions and related
activities or (b) whose primary purpose is to hold title or ownership interests
in Eligible Assets, it being understood that each Canadian Securitization
entity, shall be deemed to be a Securitization Entity.
“Securitization
Indebtedness”: Indebtedness incurred by or attributable to a
Securitization Entity that does not permit or provide for recourse (other than
Standard Securitization Undertakings) to the Borrower or any Subsidiary of the
Borrower (other than a Securitization Entity or a Foreign
Subsidiary
22
organized
under the laws of Canada) or any property or asset of the Borrower or any
Subsidiary of the Borrower (other than the property or assets of, or any equity
interests or other securities issued by, a Securitization Entity or a Foreign
Subsidiary organized under the laws of Canada).
“Security
Documents”: the collective reference to the Guarantee and
Collateral Agreement, the Mortgages and all other security documents hereafter
delivered to the Administrative Agent granting a Lien on any property of any
Person to secure the obligations and liabilities of any Loan Party under any
Loan Document.
“Senior Unsecured Note
Indenture”: the Indenture entered into by the Borrower and
Avis Budget Finance in connection with the issuance of the Senior Unsecured
Notes, together with all instruments and other agreements entered into by the
Borrower, Avis Budget Finance and any other Subsidiary of the Borrower in
connection therewith.
“Senior Unsecured
Notes”: (i) the 7.625% senior notes of the Borrower and Avis
Budget Finance due 2014, (ii) the 7.75% senior notes of the Borrower and Avis
Budget Finance due 2016 and (iii) the floating rate senior notes of the Borrower
and Avis Budget Finance due 2014 issued pursuant to the Senior Unsecured Note
Indenture.
“Separation
Agreement”: as described on Schedule 1.1D.
“Significant
Subsidiary”: any Subsidiary that would be a “significant
subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X.
“Single Employer
Plan”: any Plan that is covered by Title IV of ERISA, but that
is not a Multiemployer Plan.
“Specified Cash Management
Agreement”: any agreement providing for treasury, depositary
or cash management services, including in connection with any automated clearing
house transfers of funds or any similar transactions between the Borrower or any
Guarantor and any Lender or affiliate thereof or any Agent or affiliate thereof,
which has been designated by such Lender and the Borrower, by notice to the
Administrative Agent not later than 90 days after the execution and delivery by
the Borrower or such Guarantor, as a “Specified Cash Management
Agreement”.
“Specified
Ratings”: the corporate credit rating assigned by Xxxxx’x and
the corporate issuer rating assigned by S&P, in each case, with respect to
the Borrower. In the event that either Xxxxx’x or S&P places the Borrower’s
corporate credit rating on “Watchlist” for a possible downgrade in the case of
Xxxxx’x or the Borrowers’ corporate issuer rating on “CreditWatch” with negative
implications in the case of S&P (or, in each case, any successor,
replacement or analogous list) the Specified Rating from such rating agency
shall be the next lower rating below the then corporate credit rating or the
corporate issuer rating, as the case may be, of the Borrower assigned by such
rating agency.
“Specified Swap
Agreement”: any Swap Agreement entered into by the Borrower or
any Guarantor and any counterparty that at the time such Swap Agreement was
entered into was an Agent, Lender or affiliate thereof, to hedge or mitigate its
risk with respect to interest rates, currency exchange rates or commodity
prices, including, without limitation, Swap Agreements entered into by such
parties with respect to AESOP Indebtedness, Recourse Vehicle Indebtedness or
Securitization Indebtedness.
“Spin-Off
Transactions”: the separation of Cendant as contemplated by
the Separation Agreement.
23
“Standard Securitization
Undertakings”: representations, warranties (and any related
repurchase obligations), servicer obligations, guaranties, covenants and
indemnities entered into by the Borrower or any Subsidiary of the Borrower of a
type that are reasonably customary in securitizations.
“Subsidiary”: (a)
with respect to any Person, any corporation, association, joint venture,
partnership, limited liability company or other business entity (whether now
existing or hereafter organized) of which at least a majority of the voting
stock or other ownership interests having ordinary voting power for the election
of directors (or the equivalent) is, at the time as of which any determination
is being made, owned or controlled by such Person or one or more subsidiaries of
such Person or by such Person and one or more subsidiaries of such Person or (b)
any partnership where more than 50% of the general partners of such partnership
are owned or controlled, directly or indirectly, by (i) such Person and/or (ii)
one or more Subsidiaries of such Person. Unless otherwise qualified,
all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall
refer to a Subsidiary or Subsidiaries of the Borrower; provided, that, at
Borrower’s election, any Person in which an investment is made pursuant to
Section 7.7(p) shall, so long as such investment is maintained in reliance on
such Section, not be a “Subsidiary” of the Borrower for any purpose of this
Agreement (other than Section 6.1) (each such Person referred to in this proviso
being an “Excluded
Person”); provided, further, that Borrower may elect to designate any
Excluded Person as a “Subsidiary” at any time, upon which such Excluded Person
shall be a “Subsidiary” for all purposes of this Agreement and be required to
comply with all requirements applicable to such Subsidiary herein.
“Subsidiary
Borrower”: any Subsidiary of the Borrower that becomes a party
hereto pursuant to Section 10.1(c)(i) until such time as such Subsidiary
Borrower is removed as a party hereto pursuant to Section
10.1(c)(ii).
“Subsidiary
Guarantor”: each Subsidiary of the Borrower other than any
Foreign Subsidiary, Excluded Subsidiary or Securitization Entity.
“Swap
Agreement”: any agreement with respect to any swap, forward,
future or derivative transaction or option or similar agreement involving, or
settled by reference to, one or more rates, currencies, commodities, equity or
debt instruments or securities, or economic, financial or pricing indices or
measures of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions; provided that no
phantom stock or similar plan providing for payments only on account of services
provided by current or former directors, officers, employees or consultants of
the Borrower or any of its Subsidiaries shall be a “Swap
Agreement”.
“Swingline
Commitment”: the obligation of the Swingline Lender to make
Swingline Loans pursuant to Section 2.6 in an aggregate principal amount at any
one time outstanding not to exceed $50,000,000.
“Swingline
Lender”: JPMorgan Chase Bank, in its capacity as the lender of
Swingline Loans.
“Swingline
Loans”: as defined in Section 2.6.
“Swingline Participation
Amount”: as defined in Section 2.7.
“Syndication
Agent”: as defined in the preamble hereto.
“Target”: as defined
in the definition of “Permitted Acquisition”.
24
“Tax Sharing
Agreement”: as described on Schedule 1.1E.
“Taxes” means any
taxes, charges or assessments, including but not limited to income, sales, use,
transfer, rental, ad valorem, value-added, stamp, property consumption,
franchise, license, capital, net worth, gross receipts, excise, occupancy,
intangibles or similar tax, charges or assessments.
“Term
Commitment”: as to any Lender, the obligation of such Lender,
if any, to make a Term Loan to the Borrower in a principal amount not to exceed
the amount set forth under the heading “Term Commitment” opposite such Lender’s
name on Schedule 1.1A.
“Term
Lender”: each Lender that has a Term Commitment or holds a
Term Loan.
“Term
Loans”: as defined in Section 2.1.
“Term
Percentage”: as to any Term Lender at any time, (i) in the
case of Extended Term Loans, the percentage which the aggregate principal amount
of such Lender’s Extended Term Loans then outstanding constitutes of the
aggregate principal amount of the Extended Term Loans then outstanding and (ii)
in the case of the Non-Extended Term Loans, the percentage which the aggregate
principal amount of such Lender’s Non-Extended Term Loans then outstanding
constitutes of the aggregate principal amount of the Non-Extended Term Loans
then outstanding.
“Total Revolving
Commitments”: at any time, the aggregate amount of the
Revolving Commitments then in effect.
“Total Revolving Extensions
of Credit”: at any time, the aggregate amount of the Revolving
Extensions of Credit of the Revolving Lenders outstanding at such
time.
“Transferee”: any
Assignee or Participant.
“Type”: as
to any Loan, its nature as an ABR Loan or a Eurocurrency Loan.
“United
States”: the United States of America.
“Wholly Owned
Subsidiary”: as to any Person, any other Person all of the
Capital Stock of which (other than directors’ qualifying shares required by law)
is owned by such Person directly and/or through other Wholly Owned
Subsidiaries.
“WTH Funding
LP”: WTH Funding Limited Partnership, an Ontario limited
partnership, and any successor special purpose entity formed for the purpose of
engaging in vehicle financings in Canada.
1.2 Other Definitional
Provisions
(a)
Unless otherwise specified therein, all terms defined in this Agreement shall
have the defined meanings when used in the other Loan Documents or any
certificate or other document made or delivered pursuant hereto or
thereto.
(b) As
used herein and in the other Loan Documents, and any certificate or other
document made or delivered pursuant hereto or thereto, (i) accounting terms
relating to any Group Member not defined in Section 1.1 and accounting terms
partly defined in Section 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP, (ii) the words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without
limitation”, (iii) the word “incur” shall be construed to mean incur, create,
issue, assume, become liable in respect of or suffer to exist (and
the
25
words
“incurred” and “incurrence” shall have correlative meanings), (iv) the words
“asset” and “property” shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, Capital Stock, securities, revenues, accounts, leasehold
interests and contract rights, and (v) references to agreements or other
Contractual Obligations shall, unless otherwise specified, be deemed to refer to
such agreements or Contractual Obligations as amended, supplemented, restated or
otherwise modified from time to time.
(c) The
words “hereof”, “herein” and “hereunder” and words of similar import, when used
in this Agreement, shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, and Section, Schedule and Exhibit
references are to this Agreement unless otherwise specified.
(d) The
meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.
SECTION
2. AMOUNT
AND TERMS OF COMMITMENTS
2.1 Term
Commitments. Subject
to the terms and conditions hereof, each Term Lender severally agrees to make a
term loan (a “Term
Loan”) in Dollars to the Borrower on the Closing Date in an amount not to
exceed the amount of the Term Commitment of such Lender. The Term
Loans may from time to time be Eurocurrency Loans or ABR Loans, as determined by
the Borrower and notified to the Administrative Agent in accordance with
Sections 2.2 and 2.12.
2.2 Procedure for Term Loan
Borrowing. The
Borrower shall give the Administrative Agent irrevocable notice (which notice
must be received by the Administrative Agent prior to (a) 12:00 Noon, New York
City time, three Business Days prior to the anticipated Closing Date, in the
case of Eurocurrency Loans, or (b) 10:00 A.M., New York City time, on the day of
the anticipated Closing Date, in the case of ABR Loans) requesting that the Term
Lenders make the Term Loans on the Closing Date and specifying the amount to be
borrowed. Upon receipt of such notice the Administrative Agent shall
promptly notify each Term Lender thereof. Not later than 12:00 Noon,
New York City time, on the Closing Date each Term Lender shall make available to
the Administrative Agent at the Funding Office an amount in immediately
available funds equal to the Term Loan or Term Loans to be made by such
Lender. The Administrative Agent shall credit the account of the
Borrower on the books of such office of the Administrative Agent with the
aggregate of the amounts made available to the Administrative Agent by the Term
Lenders in immediately available funds.
26
2.3 Repayment
of Term Loans. (a) The
Non-Extended Term Loans shall be repayable on each date set forth below in an
amount equal to such Non-Extending Term Loan Lender’s Term Percentage multiplied
by the amount set forth below opposite such date, subject to reduction pursuant
to Section 2.17(b):
|
Installment
|
Principal
Amount
|
|
April
30, 2010
|
$146,654.38
|
|
July
30, 2010
|
$146,654.38
|
|
October
29, 2010
|
$146,654.38
|
|
January
31, 2011
|
$146,654.38
|
|
April
29, 2011
|
$146,654.38
|
|
July
29, 2011
|
$146,654.38
|
|
October
31, 2011
|
$146,654.38
|
|
January
31, 2012
|
$146,654.38
|
|
Non-Extended
Term Loan Maturity Date
|
$50,847,169.57
|
(b) The
Extended Term Loans shall be repayable on each date set forth below in an amount
equal to such Extending Term Loan Lender’s Term Percentage multiplied by the
amount set forth below opposite such date, subject to reduction pursuant to
Section 2.17(b):
|
Installment
|
Principal
Amount
|
|
April
30, 2010
|
$769,012.15
|
|
July
30, 2010
|
$769,012.15
|
|
October
29, 2010
|
$769,012.15
|
|
January
31, 2011
|
$769,012.15
|
|
April
29, 2011
|
$769,012.15
|
|
July
29, 2011
|
$769,012.15
|
|
October
31, 2011
|
$769,012.15
|
|
January
31, 2012
|
$769,012.15
|
|
April
30, 2012
|
$769,012.15
|
|
July
31, 2012
|
$769,012.15
|
|
October
31, 2012
|
$769,012.15
|
|
January
31, 2013
|
$769,012.15
|
|
April
30, 2013
|
$769,012.15
|
|
July
31, 2013
|
$769,012.15
|
|
October
31, 2013
|
$769,012.15
|
|
January
31, 2014
|
$769,012.15
|
|
Extended
Term Loan Maturity Date
|
$260,475,400.97
|
2.4 Revolving Commitments (a) Subject to the
terms and conditions hereof, each Revolving Lender severally agrees to make
revolving credit loans (“Revolving Loans”) in
Dollars and in any Optional Currency to the Borrower or any Subsidiary Borrower
from time to time during the Revolving Commitment Period in an aggregate
principal amount at any one time outstanding which, when added to such Lender’s
Revolving Percentage of the sum of the Dollar Equivalent of (i) the L/C
Obligations then outstanding and (ii) the aggregate principal amount of the
Swingline Loans then outstanding, does not exceed the amount of such Lender’s
Revolving Commitment. During the Revolving Commitment Period the
Borrower and any Subsidiary Borrower may use the Revolving Commitments by
borrowing, prepaying
27
the
Revolving Loans in whole or in part, and reborrowing, all in accordance with the
terms and conditions hereof. The Revolving Loans may from time to
time be Eurocurrency Loans or ABR Loans, as determined by the Borrower or any
Subsidiary Borrower and notified to the Administrative Agent in accordance with
Sections 2.5 and 2.12. ABR Loans shall be denominated only in
Dollars.
(b) The
Borrower and any relevant Subsidiary Borrower shall repay all
outstanding
Revolving
Loans on the Revolving Termination Date.
2.5 Procedure for Revolving Loan
Borrowing. The
Borrower and any Subsidiary Borrower may borrow under the Revolving Commitments
during the Revolving Commitment Period on any Business Day, provided that the
Borrower or the relevant Subsidiary Borrower shall give the Administrative Agent
irrevocable notice (which notice must be received by the Administrative Agent
prior to (a) 12:00 Noon, New York City time, three Business Days prior to the
requested Borrowing Date, in the case of Eurocurrency Loans, or (b) 12:00 Noon,
New York City Time, on the date of the proposed borrowing, in the case of ABR
Loans) (provided that any
such notice of a borrowing of ABR Loans under the Revolving Facility to finance
payments required by Section 3.5 may be given not later than 12:00 Noon,
New York City time, on the date of the proposed borrowing), specifying (i) the
amount and Type of Revolving Loans to be borrowed, (ii) the requested Borrowing
Date and (iii) in the case of Eurocurrency Loans, the respective amounts of each
such Type of Loan, the Currency with respect thereto and the respective lengths
of the initial Interest Period therefor. If no election as to the
Type of a Revolving Loan is specified in any such notice, then the requested
borrowing shall be an ABR Loan. If no Currency with respect to any
Eurocurrency Loans is specified in any such notice, then the Borrower or the
relevant Subsidiary Borrower shall be deemed to have requested a borrowing in
Dollars. If no Interest Period with respect to any Eurocurrency Loan
is specified in any such notice, then the Borrower or the relevant Subsidiary
Borrower shall be deemed to have selected an Interest Period of one month’s
duration. Each borrowing under the Revolving Commitments shall be in
an amount equal to (x) in the case of ABR Loans, $1,000,000 or a whole multiple
thereof (or, if the then aggregate Available Revolving Commitments are less than
$1,000,000, such lesser amount) and (y) in the case of Eurocurrency Loans,
$5,000,000 or a whole multiple of $1,000,000 in excess thereof; provided, that the
Swingline Lender may request, on behalf of the Borrower or any Subsidiary
Borrower, borrowings under the Revolving Commitments that are ABR Loans in other
amounts pursuant to Section 2.7. Upon receipt of any such notice from
the Borrower or any Subsidiary Borrower, the Administrative Agent shall promptly
notify each Revolving Lender thereof. Each Revolving Lender will make
the amount of its pro rata share of each
borrowing available to the Administrative Agent for the account of the Borrower
or the relevant Subsidiary Borrower at the Funding Office prior to 2:00 P.M.,
New York City time, on the Borrowing Date requested by the Borrower in funds
immediately available to the Administrative Agent. Such borrowing
will then be made available to the Borrower or the relevant Subsidiary Borrower
by the Administrative Agent crediting the account of the Borrower or the
relevant Subsidiary Borrower on the books of such office or such other account
as the Borrower or relevant Subsidiary Borrower may specify to the
Administrative Agent in writing with the aggregate of the amounts made available
to the Administrative Agent by the Revolving Lenders and in like funds as
received by the Administrative Agent.
2.6 Swingline
Commitment. (a)
Subject to the terms and conditions hereof, the Swingline Lender agrees to make
a portion of the credit otherwise available to the Borrower and any Subsidiary
Borrower under the Revolving Commitments from time to time during the Revolving
Commitment Period by making swing line loans (“Swingline Loans”) in
Dollars to the Borrower and any Subsidiary Borrower; provided that (i) the
aggregate principal amount of Swingline Loans outstanding at any time shall not
exceed the Swingline Commitment then in effect (notwithstanding that the
Swingline Loans outstanding at any time, when aggregated with the Swingline
Lender’s other outstanding Revolving Loans, may exceed the Swingline Commitment
then in effect) and (ii) the Borrower or the relevant Subsidiary Borrower shall
not request, and the Swingline Lender shall not make, any Swingline Loan
if,
28
after
giving effect to the making of such Swingline Loan, the aggregate amount of the
Available Revolving Commitments would be less than zero. During the
Revolving Commitment Period, the Borrower and any Subsidiary Borrower may use
the Swingline Commitment by borrowing, repaying and reborrowing, all in
accordance with the terms and conditions hereof. Swingline Loans
shall be ABR Loans only.
(b) The
Borrower or relevant Subsidiary Borrower shall repay to the Swingline Lender the
then unpaid principal amount of each Swingline Loan on the earlier of the
Revolving Termination Date and the first date after such Swingline Loan is made
that is the 15th or last day of a calendar month and is at least two Business
Days after such Swingline Loan is made; provided that on each
date that a Revolving Loan is borrowed, the Borrower or relevant Subsidiary
Borrower shall repay all Swingline Loans then outstanding.
2.7 Procedure for Swingline
Borrowing; Refunding of Swingline Loans. (a)
Whenever the Borrower or any Subsidiary Borrower desires that the Swingline
Lender make Swingline Loans it shall give the Swingline Lender irrevocable
telephonic notice confirmed promptly in writing (which telephonic notice must be
received by the Swingline Lender not later than 1:00 P.M., New York City time,
on the proposed Borrowing Date), specifying (i) the amount to be borrowed and
(ii) the requested Borrowing Date (which shall be a Business Day during the
Revolving Commitment Period). Each borrowing under the Swingline
Commitment shall be in an amount equal to $500,000 or a whole multiple of
$100,000 in excess thereof. Not later than 3:00 P.M., New York City
time, on the Borrowing Date specified in a notice in respect of Swingline Loans,
the Swingline Lender shall make available to the Administrative Agent at the
Funding Office an amount in immediately available funds equal to the amount of
the Swingline Loan to be made by the Swingline Lender. The
Administrative Agent shall make the proceeds of such Swingline Loan available to
the Borrower or relevant Subsidiary Borrower on such Borrowing Date by
depositing such proceeds in the account of the Borrower or relevant Subsidiary
Borrower with the Administrative Agent or such other account as the Borrower or
relevant Subsidiary Borrower may specify to the Administrative Agent in writing
on such Borrowing Date in immediately available funds.
(b) The
Swingline Lender, at any time and from time to time in its sole and absolute
discretion may, on behalf of the Borrower or relevant Subsidiary Borrower (each
of which hereby irrevocably directs the Swingline Lender to act on its behalf),
on one Business Day’s notice given by the Swingline Lender no later than 12:00
Noon, New York City time, request each Revolving Lender to make, and each
Revolving Lender hereby agrees to make, a Revolving Loan, in an amount equal to
such Revolving Lender’s Revolving Percentage of the aggregate amount of the
Swingline Loans (the “Refunded Swingline
Loans”) outstanding on the date of such notice, to repay the Swingline
Lender. Each Revolving Lender shall make the amount of such Revolving
Loan available to the Administrative Agent at the Funding Office in immediately
available funds, not later than 10:00 A.M., New York City time, one Business Day
after the date of such notice. The proceeds of such Revolving Loans
shall be immediately made available by the Administrative Agent to the Swingline
Lender for application by the Swingline Lender to the repayment of the Refunded
Swingline Loans. The Borrower and relevant Subsidiary Borrower
irrevocably authorize the Swingline Lender to charge the Borrower’s and relevant
Subsidiary Borrower’s accounts with the Administrative Agent (up to the amount
available in each such account) in order to immediately pay the amount of such
Refunded Swingline Loans to the extent amounts received from the Revolving
Lenders are not sufficient to repay in full such Refunded Swingline
Loans.
(c) If
prior to the time a Revolving Loan would have otherwise been made pursuant to
Section 2.7(b), one of the events described in Section 8(f) shall have occurred
and be continuing with respect to the Borrower or relevant Subsidiary Borrower
or if for any other reason, as determined by the Swingline Lender in its sole
discretion, Revolving Loans may not be made as contemplated by Section 2.7(b),
each Revolving Lender shall, on the date such Revolving Loan was to have been
made pursuant to the notice referred to in Section 2.7(b), purchase for cash an
undivided participating interest in the then outstanding Swingline Loans by
paying to the Swingline Lender an amount (the “Swingline
Participation
29
Amount”) equal to (i)
such Revolving Lender’s Revolving Percentage times (ii) the sum of
the aggregate principal amount of Swingline Loans then outstanding that were to
have been repaid with such Revolving Loans.
(d) Whenever,
at any time after the Swingline Lender has received from any Revolving Lender
such Lender’s Swingline Participation Amount, the Swingline Lender receives any
payment on account of the Swingline Loans, the Swingline Lender will distribute
to such Lender its Swingline Participation Amount (appropriately adjusted, in
the case of interest payments, to reflect the period of time during which such
Lender’s participating interest was outstanding and funded and, in the case of
principal and interest payments, to reflect such Lender’s pro rata portion of such
payment if such payment is not sufficient to pay the principal of and interest
on all Swingline Loans then due); provided, however, that in the
event that such payment received by the Swingline Lender is required to be
returned, such Revolving Lender will return to the Swingline Lender any portion
thereof previously distributed to it by the Swingline Lender.
(e) Each
Revolving Lender’s obligation to make the Loans referred to in Section 2.7(b)
and to purchase participating interests pursuant to Section 2.7(c) shall be
absolute and unconditional and shall not be affected by any circumstance,
including (i) any setoff, counterclaim, recoupment, defense or other right that
such Revolving Lender or the Borrower or any Subsidiary Borrower may have
against the Swingline Lender, the Borrower or any Subsidiary Borrower or any
other Person for any reason whatsoever, (ii) the occurrence or continuance of a
Default or an Event of Default or the failure to satisfy any of the other
conditions specified in Section 5, (iii) any adverse change in the condition
(financial or otherwise) of the Borrower or any Subsidiary Borrower, (iv) any
breach of this Agreement or any other Loan Document by the Borrower, any
Subsidiary Borrower, any other Loan Party or any other Revolving Lender or (v)
any other circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing.
2.8 Commitment Fees,
etc. (a) The
Borrower agrees to pay to the Administrative Agent for the account of each
Revolving Lender a commitment fee for the period from and including the date
hereof to the last day of the Revolving Commitment Period, computed at the
Commitment Fee Rate on the average daily amount of the Available Revolving
Commitment of such Lender during the period for which payment is made, payable
quarterly in arrears on each Fee Payment Date, commencing on the first such date
to occur after the date hereof.
(b) The
Borrower agrees to pay to the Administrative Agent the fees in the amounts and
on the dates as set forth in any fee agreements with the Administrative Agent
and to perform any other obligations contained therein.
2.9 Termination or Reduction of
Revolving Commitments. The
Borrower shall have the right, upon not less than three Business Days’ notice to
the Administrative Agent, to terminate the Revolving Commitments or, from time
to time, to reduce the amount of the Revolving Commitments; provided that no such
termination or reduction of Revolving Commitments shall be permitted if, after
giving effect thereto and to any prepayments of the Revolving Loans and
Swingline Loans made on the effective date thereof, the Total Revolving
Extensions of Credit would exceed the Total Revolving
Commitments. Any such reduction shall be in an amount equal to
$1,000,000, or a whole multiple thereof, and shall reduce permanently the
Revolving Commitments then in effect. Each notice delivered by the
Borrower pursuant to this Section 2.9 shall be irrevocable; provided, that a
notice to terminate the Revolving Commitments delivered by the Borrower may
state that such notice is conditioned upon the effectiveness of other credit
facilities or a Change in Control, in either case, which such notice may be
revoked by the Borrower (by notice to the Administrative Agent on or prior to
the specified effective date) if such condition is not
satisfied. Notwithstanding the foregoing, the revocation of a
termination notice
30
shall not
affect the Borrower’s obligation to indemnify any Lender in accordance with
Section 2.20 for any loss or expense sustained or incurred as a consequence
thereof.
2.10 Optional
Prepayments. The
Borrower and any relevant Subsidiary Borrower may at any time and from time to
time prepay the Loans, in whole or in part, without premium or penalty, upon
irrevocable notice (except as otherwise provided below) delivered to the
Administrative Agent no later than 12:00 Noon, New York City time, three
Business Days prior thereto, in the case of Eurocurrency Loans, and no later
than 12:00 Noon, New York City time, on the day of such prepayment, in the case
of ABR Loans, which notice shall specify the date and amount of prepayment and
whether the prepayment is of Eurocurrency Loans or ABR Loans; provided, that if a
Eurocurrency Loan is prepaid on any day other than the last day of the Interest
Period applicable thereto, the Borrower or relevant Subsidiary Borrower shall
also pay any amounts owing pursuant to Section 2.20; provided, further, that such
notice to prepay the Loans delivered by the Borrower may state that such notice
is conditioned upon the effectiveness of other credit facilities or a Change in
Control, in either case, which such notice may be revoked by the Borrower (by
further notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied. Notwithstanding
the foregoing, the revocation of a termination notice shall not affect the
Borrower’s obligation to indemnify any Lender in accordance with Section 2.20
for any loss or expense sustained or incurred as a consequence
thereof. Upon receipt of any such notice the Administrative Agent
shall promptly notify each relevant Lender thereof. If any such
notice is given, the amount specified in such notice shall be due and payable on
the date specified therein, together with (except in the case of Revolving Loans
that are ABR Loans and Swingline Loans) accrued interest to such date on the
amount prepaid. Partial prepayments of Term Loans and Revolving Loans
shall be in an aggregate principal amount of $1,000,000 or a whole multiple
thereof. Partial prepayments of Swingline Loans shall be in an
aggregate principal amount of $100,000 or a whole multiple thereof.
2.11 Mandatory Prepayments
(a) If
any Indebtedness shall be issued or incurred by any Group Member (excluding (i)
any Indebtedness incurred in accordance with Section 7.2, other than paragraph
(y) thereof to the extent that the Net Cash Proceeds of any such Indebtedness
incurred under Section 7.2(y) exceeds $150,000,000 and (ii) any Permitted
Refinancing of Indebtedness incurred under Section 7.2(y)), an amount equal to
75% of the Net Cash Proceeds thereof shall be applied on the date of such
issuance or incurrence, or in the event such Net Cash Proceeds are received
after 12:00 Noon, New York City time, on the next Business Day, toward the
prepayment of the Term Loans as set forth in Section 2.11(c).
(b) If
on any date any Loan Party shall receive Net Cash Proceeds from any Asset Sale
or Recovery Event then, unless a Reinvestment Notice shall be delivered in
respect thereof, 100% of such Net Cash Proceeds or, in the case of any
Disposition permitted by Section 7.5(f), 100% of such Net Cash Proceeds, shall
be applied within three Business Days toward the prepayment of the Term Loans as
set forth in Section 2.11(c); provided that on each
Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment
Amount with respect to the relevant Reinvestment Event shall be applied toward
the prepayment of the Term Loans as set forth in Section 2.11(c).
(c) Amounts
to be applied in connection with prepayments of the outstanding Term Loans
pursuant to this Section 2.11 shall be applied, first, to ABR Loans
and, second, to
Eurocurrency Loans and, in each case, in accordance with Section
2.17(b). Each prepayment of the Term Loans under this Section 2.11
shall be accompanied by accrued interest to the date of such prepayment on the
amount prepaid. If no Term Loans are outstanding, such remaining
amounts shall be retained by the relevant Group Member.
(d) Notwithstanding
the foregoing, the provisions of this Section 2.11 shall be suspended at any
time when the Specified Ratings are Baa3 or better from Xxxxx’x and BBB- or
better from S&P, in each case with stable or positive outlook.
31
2.12 Conversion and Continuation
Options. (a) The
Borrower or any Subsidiary Borrower may elect from time to time to convert
Eurocurrency Loans to ABR Loans by giving the Administrative Agent prior
irrevocable notice of such election no later than 11:00 A.M., New York City
time, on the Business Day preceding the proposed conversion date, provided that any
such conversion of Eurocurrency Loans may only be made on the last day of an
Interest Period with respect thereto. The Borrower or any Subsidiary
Borrower may elect from time to time to convert ABR Loans to Eurocurrency Loans
by giving the Administrative Agent prior irrevocable notice of such election no
later than 12:00 Noon, New York City time, on the third Business Day preceding
the proposed conversion date (which notice shall specify the length of the
initial Interest Period therefor), provided that no ABR
Loan under a particular Facility may be converted into a Eurocurrency Loan when
any Event of Default has occurred and is continuing and the Administrative Agent
or the Majority Facility Lenders in respect of such Facility have determined in
its or their sole discretion not to permit such conversions. Upon
receipt of any such notice the Administrative Agent shall promptly notify each
relevant Lender thereof.
(b) Any
Eurocurrency Loan may be continued as such upon the expiration of the then
current Interest Period with respect thereto by the Borrower or relevant
Subsidiary Borrower giving irrevocable notice to the Administrative Agent, in
accordance with the applicable provisions of the term “Interest Period” set
forth in Section 1.1, of the length of the next Interest Period to be applicable
to such Loans, provided that no
Eurocurrency Loan under a particular Facility may be continued as such when any
Event of Default has occurred and is continuing and the Administrative Agent has
or the Majority Facility Lenders in respect of such Facility have determined in
its or their sole discretion not to permit such continuations (and the
Administrative Agent shall notify the Borrower within a reasonable amount of
time of any such determination), and provided, further, that if the
Borrower or such Subsidiary Borrower shall fail to give any required notice as
described above in this paragraph such Loans shall be automatically continued as
Eurocurrency Loans having an Interest Period of one month in duration or if such
continuation is not permitted pursuant to the preceding proviso such Loans shall
be automatically converted to ABR Loans on the last day of such then expiring
Interest Period. Upon receipt of any such notice the Administrative
Agent shall promptly notify each relevant Lender thereof.
2.13 Limitations on Eurocurrency
Tranches. Notwithstanding
anything to the contrary in this Agreement, all borrowings, conversions and
continuations of Eurocurrency Loans and all selections of Interest Periods shall
be in such amounts and be made pursuant to such elections so that, (a) after
giving effect thereto, the aggregate principal amount of the Eurocurrency Loans
comprising each Eurocurrency Tranche shall be equal to $5,000,000 or a whole
multiple of $1,000,000 in excess thereof and (b) no more than ten Eurocurrency
Tranches shall be outstanding at any one time.
2.14 Interest Rates and Payment
Dates. (a) Each
Eurocurrency Loan shall bear interest for each day during each Interest Period
with respect thereto at a rate per annum equal to the Eurocurrency Rate
determined for such day plus the Applicable Margin.
(b) Each
ABR Loan shall bear interest at a rate per annum equal to the ABR plus the
Applicable Margin.
(c)
(i) If all or a portion of the principal amount of any Loan or
Reimbursement Obligation shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear interest
at a rate per annum equal to (x) in the case of the Loans, the rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of this
Section plus 2%
or (y) in the case of Reimbursement Obligations, the rate applicable to ABR
Loans under the Revolving Facility plus 2%, and (ii) if
all or a portion of any interest payable on any Loan or Reimbursement Obligation
or any commitment fee or other amount payable hereunder shall not be paid when
due (whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum equal to
32
the rate
then applicable to ABR Loans under the relevant Facility plus 2% (or, in the
case of any such other amounts that do not relate to a particular Facility, the
rate then applicable to ABR Loans under the Revolving Facility plus 2%), in each
case, with respect to clauses (i) and (ii) above, from the date of such
non-payment until such amount is paid in full (as well after as before
judgment).
(d) Interest
shall be payable in arrears on each Interest Payment Date, provided that
interest accruing pursuant to paragraph (c) of this Section shall be payable
from time to time on demand.
2.15 Computation of Interest and
Fees. (a) Interest
and fees payable pursuant hereto shall be calculated on the basis of a 360-day
year for the actual days elapsed, except that, with respect to ABR Loans the
rate of interest on which is calculated on the basis of the Prime Rate, the
interest thereon shall be calculated on the basis of a 365- (or 366-, as the
case may be) day year for the actual days elapsed. The Administrative
Agent shall as soon as practicable notify the Borrower or relevant Subsidiary
Borrower and the relevant Lenders of each determination of a Eurocurrency
Rate. Any change in the interest rate on a Loan resulting from a
change in the ABR or the Eurocurrency Reserve Requirements shall become
effective as of the opening of business on the day on which such change becomes
effective. The Administrative Agent shall as soon as practicable
notify the Borrower or relevant Subsidiary Borrower and the relevant Lenders of
the effective date and the amount of each such change in interest
rate.
(b) Each
determination of an interest rate by the Administrative Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrower, any
Subsidiary Borrower and the Lenders in the absence of manifest
error. The Administrative Agent shall, at the request of the Borrower
or any Subsidiary Borrower, deliver to the Borrower or such Subsidiary Borrower
a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to Section 2.14(a).
2.16 Inability to Determine
Interest Rate. If prior
to the first day of any Interest Period:
(a) the
Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the Borrower or relevant Subsidiary Borrower) that,
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurocurrency Rate for such
Interest Period, or
(b) the
Administrative Agent shall have received notice from the Majority Facility
Lenders in respect of the relevant Facility that the Eurocurrency Rate
determined or to be determined for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (as conclusively certified by such
Lenders) of making or maintaining their affected Loans during such Interest
Period,
the
Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower or relevant Subsidiary Borrower and the relevant Lenders as soon as
practicable thereafter. If such notice is given (w) any Eurocurrency
Loans under the relevant Facility requested to be made on the first day of such
Interest Period shall be made as ABR Loans, (x) any Loans under the
relevant Facility that were to have been converted on the first day of such
Interest Period to Eurocurrency Loans shall be continued as ABR Loans and (y)
any outstanding Eurocurrency Loans under the relevant Facility shall be
converted, on the last day of the then-current Interest Period, to ABR
Loans. Until such
notice has been withdrawn by the Administrative Agent, no further Eurocurrency
Loans under the relevant Facility shall be made or continued as such, nor shall
the Borrower nor any Subsidiary Borrower have the right to convert Loans under
the relevant Facility to Eurocurrency Loans.
2.17 Pro Rata Treatment and
Payments. (a) Each
borrowing of Revolving Loans by the Borrower or any Subsidiary Borrower from the
Lenders hereunder, each payment by the Borrower on
33
account
of any commitment fee and any reduction of the Commitments of the Lenders shall
be made pro
rata according
to the respective Revolving Percentages of the relevant Lenders.
(b) Each
payment (including each prepayment) by the Borrower on account of principal of
and interest on the Term Loans shall be made pro rata according to the
respective outstanding principal amounts of the Term Loans then held by the Term
Lenders; provided that at the
option of the Borrower, all or a portion of any optional prepayments of the Term
Loans made in accordance with Section 2.10 may be applied to repay the Term
Loans other than the Extended Term Loans. The amount of each
principal prepayment of the Term Loans shall be applied to reduce the then
remaining installments of the Term Loans as directed by the
Borrower. Amounts prepaid on account of the Term Loans may not be
reborrowed.
(c) Each
payment (including each prepayment) by the Borrower or any Subsidiary Borrower
on account of principal of and interest on the Revolving Loans shall be made
pro rata according to the
respective outstanding principal amounts of the Revolving Loans then held by the
Revolving Lenders.
(d) All
payments (including prepayments) to be made by the Borrower or any Subsidiary
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without setoff or counterclaim and shall be made prior
to 1:00 P.M., New York City time, on the due date thereof to the Administrative
Agent, for the account of the Lenders, at the Funding Office, in Dollars or in
any other applicable currency and in immediately available funds. The
Administrative Agent shall distribute such payments to the Lenders promptly upon
receipt in like funds as received. If any payment hereunder (other
than payments on the Eurocurrency Loans) becomes due and payable on a day other
than a Business Day, such payment shall be extended to the next succeeding
Business Day. If any payment on a Eurocurrency Loan becomes due and
payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day unless the result of such extension
would be to extend such payment into another calendar month, in which event such
payment shall be made on the immediately preceding Business Day. In
the case of any extension of any payment of principal pursuant to the preceding
two sentences, interest thereon shall be payable at the then applicable rate
during such extension. Any obligation under this Agreement denominated in
currency other than Dollars should be payable in such currency unless the
obligor, the obligee and the Administrative Agent shall otherwise
agree.
(e) Unless
the Administrative Agent shall have been notified in writing by any Lender prior
to a borrowing that such Lender will not make the amount that would constitute
its share of such borrowing available to the Administrative Agent, the
Administrative Agent may assume that such Lender is making such amount available
to the Administrative Agent, and the Administrative Agent may, in reliance upon
such assumption, make available to the Borrower or any Subsidiary Borrower a
corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date therefor, such
Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon, at a rate up to the greater of (i) the Federal Funds Effective
Rate and (ii) a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation, for the period until such
Lender makes such amount immediately available to the Administrative
Agent. A certificate of the Administrative Agent submitted to any
Lender with respect to any amounts owing under this paragraph shall be
conclusive in the absence of manifest error. If such Lender’s share
of such borrowing is not made available to the Administrative Agent by such
Lender within three Business Days after such Borrowing Date, the Administrative
Agent shall also be entitled to recover such amount with interest thereon at the
rate per annum applicable to ABR Loans under the relevant Facility, on demand,
from the Borrower or relevant Subsidiary Borrower.
(f) Unless
the Administrative Agent shall have been notified in writing by the Borrower or
relevant Subsidiary Borrower prior to the date of any payment due to be made by
the Borrower or such Subsidiary Borrower hereunder that the Borrower or such
Subsidiary Borrower will not make such payment
34
to the
Administrative Agent, the Administrative Agent may assume that the Borrower or
such Subsidiary Borrower is making such payment, and the Administrative Agent
may, but shall not be required to, in reliance upon such assumption, make
available to the Lenders their respective pro rata shares of a
corresponding amount. If such payment is not made to the
Administrative Agent by the Borrower or relevant Subsidiary Borrower within
three Business Days after such due date, the Administrative Agent shall be
entitled to recover, on demand, from each Lender to which any amount which was
made available pursuant to the preceding sentence, such amount with interest
thereon at the rate per annum equal to the daily average Federal Funds Effective
Rate. Nothing herein shall be deemed to limit the rights of the
Administrative Agent or any Lender against the Borrower or any Subsidiary
Borrower.
2.18 Requirements of
Law. Except
with respect to Taxes, which shall be governed exclusively by Section 2.19 of
this Agreement:
(a) If
the adoption of or any change in any Requirement of Law or in the interpretation
or application thereof or compliance by any Lender with any request or directive
(whether or not having the force of law) from any central bank or other
Governmental Authority made subsequent to the date hereof:
(i) shall
impose, modify or hold applicable any reserve, special deposit, compulsory loan
or similar requirement against assets held by, deposits or other liabilities in
or for the account of, advances, loans or other extensions of credit by, or any
other acquisition of funds by, any office of such Lender that is not otherwise
included in the determination of the Eurocurrency Rate; or
(ii)
shall impose on such Lender any other condition;
and the
result of any of the foregoing is to increase the cost to such Lender, by an
amount that such Lender deems to be material, of making, converting into,
continuing or maintaining Eurocurrency Loans or issuing or participating in
Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower or relevant Subsidiary Borrower
shall promptly pay such Lender, upon its demand, any additional amounts
necessary to compensate such Lender for such increased cost or reduced amount
receivable. If any Lender becomes entitled to claim any additional
amounts pursuant to this paragraph, it shall promptly notify the Borrower or
relevant Subsidiary Borrower (with a copy to the Administrative Agent) of the
event by reason of which it has become so entitled.
(b) If
any Lender shall have determined that the adoption of or any change in any
Requirement of Law regarding capital adequacy or in the interpretation or
application thereof or compliance by such Lender or any corporation controlling
such Lender with any request or directive regarding capital adequacy (whether or
not having the force of law) from any Governmental Authority made subsequent to
the date hereof shall have the effect of reducing the rate of return on such
Lender’s or such corporation’s capital as a consequence of its obligations
hereunder or under or in respect of any Letter of Credit to a level below that
which such Lender or such corporation could have achieved but for such adoption,
change or compliance (taking into consideration such Lender’s or such
corporation’s policies with respect to capital adequacy) by an amount deemed by
such Lender to be material, then from time to time, after submission by such
Lender to the Borrower (with a copy to the Administrative Agent) of a written
request therefor, the Borrower shall pay to such Lender such additional amount
or amounts as will compensate such Lender or such corporation for such
reduction.
(c) A
certificate as to any additional amounts payable pursuant to this Section
submitted by any Lender to the Borrower or relevant Subsidiary Borrower (with a
copy to the Administrative Agent) shall be conclusive in the absence of manifest
error. Notwithstanding anything to the contrary in this Section, the
Borrower or relevant Subsidiary Borrower shall not be required to compensate a
Lender pursuant to this Section for any amounts incurred more than six months
prior to the date that such Lender
35
notifies
the Borrower or such Subsidiary Borrower of such Lender’s intention to claim
compensation therefor; provided that, if the
circumstances giving rise to such claim have a retroactive effect, then such
six-month period shall be extended to include the period of such retroactive
effect. The obligations of the Borrower or relevant Subsidiary
Borrower pursuant to this Section shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable
hereunder.
2.19 Taxes. (a) All
payments made by the Borrower or any Subsidiary Borrower under this Agreement
shall be made free and clear of, and without deduction or withholding for or on
account of, any present or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority, excluding
(a) net income taxes and franchise taxes (imposed in lieu of net income taxes)
imposed on the Administrative Agent or any Lender as a result of a present or
former connection between the Administrative Agent or such Lender and the
jurisdiction of the Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any such
connection arising solely from the Administrative Agent or such Lender having
executed, delivered or performed its obligations or received a payment under, or
enforced, this Agreement or any other Loan Document) and (b) any branch profit
taxes imposed by the United States or any similar tax imposed by any other
Governmental Authority. If any such non-excluded taxes, levies,
imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”)
or Other Taxes are required to be withheld from any amounts payable to the
Administrative Agent or any Lender hereunder, the amounts so payable to the
Administrative Agent or such Lender shall be increased to the extent necessary
to yield to the Administrative Agent or such Lender (after payment of all
Non-Excluded Taxes and Other Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement, provided, however, that neither
the Borrower nor any Subsidiary Borrower shall be required to increase any such
amounts payable to any Lender with respect to any Non-Excluded Taxes (i) that
are attributable to such Lender’s failure to comply with the requirements of
paragraph (d) or (e) of this Section, (ii) that are United States withholding
taxes imposed on amounts payable to such Lender at the time such Lender becomes
a party to this Agreement (or designates a new lending office or offices)
except, in the case of an assignment or designation of a new lending office, to
the extent that the Lender making such assignment or designation was entitled,
at the time of such assignment or designation, to receive additional amounts
from the Borrower or the relevant Subsidiary Borrower with respect to
Non-Excluded Taxes pursuant to this section or (iii) that are imposed as a
result of a Lender’s gross negligence or willful misconduct.
(b) In
addition, the Borrower or any relevant Subsidiary Borrower shall pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable
law.
(c)
Whenever any Non-Excluded Taxes or Other Taxes are payable by the Borrower or
any Subsidiary Borrower, as promptly as possible thereafter the Borrower or such
Subsidiary Borrower shall send to the Administrative Agent for its own account
or for the account of the relevant Lender, as the case may be, a certified copy
of an original official receipt received by the Borrower or such Subsidiary
Borrower showing payment thereof. If the Borrower or any Subsidiary
Borrower fails to pay any Non-Excluded Taxes or Other Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, the Borrower and each
Subsidiary Borrower shall indemnify the Administrative Agent and the Lenders for
any incremental taxes, interest or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such failure.
(d) Each
Lender (or Transferee) (i) that is not a “U.S. Person” as defined in Section
7701(a)(30) of the Code (a “Non-U.S. Lender”)
shall deliver to the Borrower and the Administrative Agent (or, in the case of a
Participant, to the Lender from which the related participation shall have been
purchased) two copies of either U.S. Internal Revenue Service Form W-8BEN or
Form W-8ECI, or, in the
36
case of a
Non-U.S. Lender claiming exemption from U.S. federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of “portfolio
interest”, a statement substantially in the form of Exhibit F and a Form W-8BEN,
or any subsequent versions thereof or successors thereto, properly completed and
duly executed by such Non-U.S. Lender claiming complete exemption from, or a
reduced rate of, U.S. federal withholding tax on all payments by the Borrower or
any Subsidiary Borrower under this Agreement and the other Loan Documents and
(ii) that is a “U.S. Person” as defined in Section 7701(a)(30) of the Code shall
deliver to the Borrower and the Administrative Agent (or in the case of a
Participant, to the Lender from which the related participation shall have been
purchased) two copies of U.S. Internal Revenue Service Form W-9. Such
forms shall be delivered by each Lender on or before the date it becomes a party
to this Agreement (or, in the case of any Participant, on or before the date
such Participant purchases the related participation). In addition,
each Lender shall deliver such forms promptly upon the obsolescence or
invalidity of any form previously delivered by such Lender at any other time
prescribed by applicable law or as reasonably requested by the
Borrower. Each Non-U.S. Lender shall promptly notify the Borrower at
any time it determines that it is no longer in a position to provide any
previously delivered certificate to the Borrower (and any other form of
certification adopted by the U.S. taxing authorities for such
purpose).
(e) A
Lender or Transferee that is entitled to an exemption from or reduction of
non-U.S. withholding tax under the law of the jurisdiction in which the Borrower
or any Subsidiary Borrower is located, or any treaty to which such jurisdiction
is a party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law or reasonably requested by the Borrower, such
properly completed and executed documentation prescribed by applicable law as
will permit such payments to be made without withholding or at a reduced
rate.
(f) If
the Administrative Agent, any Transferee or any Lender determines, in its sole
good faith discretion, that it has received a refund of any Non-Excluded Taxes
or Other Taxes as to which it has been indemnified by the Borrower or any
Subsidiary Borrower or with respect to which the Borrower or any Subsidiary
Borrower has paid additional amounts pursuant to this Section 2.19, it shall pay
over such refund to the Borrower or such Subsidiary Borrower (but only to the
extent of indemnity payments made, or additional amounts paid, by the Borrower
or such Subsidiary Borrower under this Section 2.19 with respect to the
Non-Excluded Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent, such Transferee or such
Lender and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund); provided, that the
Borrower or such Subsidiary Borrower, upon the request of the Administrative
Agent , such Transferee or such Lender, agrees to repay the amount paid over to
the Borrower or such Subsidiary Borrower (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) to the Administrative
Agent, such Transferee or such Lender in the event the Administrative Agent,
such Transferee or such Lender is required to repay such refund to such
Governmental Authority. This paragraph shall not be construed to require the
Administrative Agent, any Transferee or any Lender to make available its tax
returns (or any other information relating to its taxes which it deems
confidential) to the Borrower, any Subsidiary Borrower or any other
Person.
(g) Each
Assignee shall be bound by this Section 2.19.
(h) The
agreements in this Section shall survive the termination of this Agreement and
the payment of the Loans and all other amounts payable hereunder.
2.20 Indemnity. The
Borrower or relevant Subsidiary Borrower agrees to indemnify each Lender for,
and to hold each Lender harmless from, any actual loss or expense that such
Lender may sustain or incur as a consequence of (a) default by the Borrower
or relevant Subsidiary Borrower in making
37
a
borrowing of, conversion into or continuation of Eurocurrency Loans after the
Borrower or such Subsidiary Borrower has given a notice requesting the same in
accordance with the provisions of this Agreement, (b) default by the Borrower or
relevant Subsidiary Borrower in making any prepayment of or conversion from
Eurocurrency Loans after the Borrower or such Subsidiary Borrower has given a
notice thereof in accordance with the provisions of this Agreement or (c) the
making of a prepayment of Eurocurrency Loans on a day that is not the last day
of an Interest Period with respect thereto. Such indemnification may
include an amount up to the excess, if any, of (i) the amount of interest that
would have accrued on the amount so prepaid, or not so borrowed, converted or
continued, for the period from the date of such prepayment or of such failure to
borrow, convert or continue to the last day of such Interest Period (or, in the
case of a failure to borrow, convert or continue, the Interest Period that would
have commenced on the date of such failure) in each case at the applicable rate
of interest for such Loans provided for herein (excluding, however, the
Applicable Margin and any minimum Eurocurrency Rate to the extent in effect,
included therein, if any) over (ii) the amount
of interest (as reasonably determined by such Lender) that would have accrued to
such Lender on such amount by placing such amount on deposit for a comparable
period with leading banks in the interbank eurocurrency market. A
certificate as to any amounts payable pursuant to this Section submitted to the
Borrower or relevant Subsidiary Borrower by any Lender shall be conclusive in
the absence of manifest error. This covenant shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.21 Change of Lending
Office. Each
Lender agrees that, upon the occurrence of any event giving rise to the
operation of Section 2.18 or 2.19(a) with respect to such Lender, it will, if
requested by the Borrower, use reasonable efforts (subject to overall policy
considerations of such Lender) to designate another lending office for any Loans
affected by such event with the object of avoiding the consequences of such
event; provided, that such
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing
in this Section shall affect or postpone any of the obligations of the Borrower
or any Subsidiary Borrower or the rights of any Lender pursuant to Section 2.18
or 2.19(a).
2.22 Replacement of
Lenders. The
Borrower shall be permitted to replace any Lender that (a) requests
reimbursement for amounts owing pursuant to Section 2.18 or 2.19(a), (b) becomes
a Defaulting Lender or (c) fails to give its consent for any issue requiring the
consent of 100% of the Lenders or all affected Lenders (and such Lender is an
affected Lender) and for which Lenders holding 66 2/3 of the Loans and/or
Commitments required for such vote have consented, with a replacement financial
institution; provided that (i)
such replacement does not conflict with any Requirement of Law, (ii) no Event of
Default shall have occurred and be continuing at the time of such replacement,
(iii) prior to any such replacement, such Lender shall have taken no action
under Section 2.21 so as to eliminate the continued need for payment of amounts
owing pursuant to Section 2.18 or 2.19(a), (iv) the replacement financial
institution shall purchase, at par, all Loans and other amounts owing to such
replaced Lender on or prior to the date of replacement, (v) the Borrower shall
be liable to such replaced Lender under Section 2.20 if any Eurocurrency Loan
owing to such replaced Lender shall be purchased other than on the last day of
the Interest Period relating thereto, (vi) the replacement financial institution
shall be reasonably satisfactory to the Administrative Agent, (vii) the replaced
Lender shall be obligated to make such replacement in accordance with the
provisions of Section 10.6 (provided that the Borrower shall be obligated to pay
the registration and processing fee referred to therein), (viii) until such time
as such replacement shall be consummated, the Borrower shall pay all additional
amounts (if any) required pursuant to Section 2.18 or 2.19(a), as the case may
be, and (ix) any such replacement shall not be deemed to be a waiver of any
rights that the Borrower, the Administrative Agent or any other Lender shall
have against the replaced Lender.
2.23 Incremental
Facilities.
38
(a) After
the Second Amendment Effective Date and before the Extended Term Loan Maturity
Date (with respect to Term Loans) and Extended Revolving Termination Date (with
respect to Revolving Loans), as applicable, the Borrower, by written notice to
Administrative Agent, may request (i) the establishment of one or more
additional tranches of term loans (the commitments thereto, the “Incremental Term Loan
Commitments”) and/or (ii) increases in the Revolving Commitments (the
“Incremental Revolving
Commitments” and, together with the Incremental Term Loan Commitments,
the “Incremental Loan
Commitments”); provided that (i)
each such request shall be for not less than $25,000,000 (or such lesser amount
up to the Maximum Facilities Amount) and (ii) after giving effect to each such
request, the aggregate amount (the “Maximum Facilities
Amount”) of outstanding Term Loans and Revolving Commitments shall not
exceed $1,500,000,000. Each such notice shall specify the date (each,
an “Increased Amount
Date”) on which the Borrower proposes that the Incremental Loan
Commitments shall be effective, which shall be a date not less than 10 Business
Days after the date on which such notice is delivered to the Administrative
Agent. The Borrower may approach any Lender or any Person to provide
all or a portion of the Incremental Loan Commitments; provided that (i) no
Lender will be required to provide such Incremental Loan Commitment and (ii) any
entity providing all or a portion of the Incremental Loan Commitments other than
a Lender, an affiliate of a Lender or an Approved Fund, shall be reasonably
acceptable to the Administrative Agent (with such acceptance by the
Administrative Agent to not be unreasonably withheld or delayed).
(b) In
each case, such Incremental Loan Commitments shall become effective as of the
applicable Increased Amount Date, provided that (i) no
Default or Event of Default shall exist on such Increased Amount Date before or
after giving effect to such Incremental Loan Commitments, (ii) the Borrower
shall be in compliance with Section 7.1 as of the most recently ended fiscal
quarter after giving effect to such Incremental Loan Commitments, (iii) the
weighted average life to maturity of any Incremental Term Loan shall be greater
than or equal to the then-remaining weighted average life to maturity of the
Extended Term Loans, (iv) the interest rate margin in respect of any Incremental
Revolving Loans that is in effect on the Increased Amount Date (giving effect to
original issue discount (“OID”) or upfront
fees, (which shall be deemed to constitute like amounts of OID, with OID being
equated to interest rates in a manner determined by the Administrative Agent
based on a four-year life to maturity) paid to all of the Incremental Revolving
Lenders in connection therewith) shall not exceed the sum of (x) the Applicable
Margin for the Revolving Loans made pursuant to Extended Revolving Commitments
that is in effect on the Increased Amount Date, and (y) the upfront fees paid to
all of the Lenders in respect of their Extended Revolving Commitments, which
shall be equated to interest rate based on a four-year life to maturity, or if
it does so exceed the sum of such Applicable Margin and such fees, such
Applicable Margin for the Revolving Loans made pursuant to Extended Revolving
Commitments shall be increased so that the interest rate margin in respect of
such Incremental Revolving Loan that is in effect on the Increased Amount Date
(giving effect to any OID issued or upfront fees paid to all of the Incremental
Lenders in connection therewith) is no greater than the sum of (x) the
Applicable Margin for the Revolving Loans made pursuant to Extended Revolving
Commitments that is in effect on the Increased Amount Date and (y) the upfront
fees paid to all of the Lenders in respect of their Extended Revolving
Commitments, (v) unless the final maturity date of such Incremental Term Loans
is at least one year later than the final maturity date of the Extended Term
Loans, the interest rate margin in respect of such Incremental Term Loans
(giving effect to OID or upfront fees paid to all of the Incremental Term
Lenders in connection therewith (with fees and OID being equated to interest
rate in the manner set forth above)) shall not exceed the sum of (x) the
Applicable Margin for the Extended Term Loans, and (y) the upfront fees paid to
all of the Lenders in respect of their Extended Term Loans, which shall be
equated to interest rate based on a four-year life to maturity, or if it does so
exceed the sum of such Applicable Margin and such fees, such Applicable Margin
for the Extended Term Loans shall be increased so that the interest rate margin
in respect of such Incremental Term Loan (giving effect to any OID issued or
upfront fees paid to all of the Incremental Term Lenders in connection
therewith) is no greater than the sum of (x) the Applicable Margin for the
Extended Term Loans and (y) the upfront fees paid to all of the Lenders in
respect of their Extended Term Loans, (vi) if the final maturity
date
39
of such
Incremental Term Loans is at least one year later than the final maturity date
of the Extended Term Loans, the interest rate margin in respect of such
Incremental Term Loans (giving effect to OID or upfront fees paid to all of the
Incremental Term Lenders in connection therewith (with fees and OID being
equated to interest rate in the manner set forth above)) shall not exceed by
more than 25 bps the sum of (x) the Applicable Margin for the Extended Term
Loans, and (y) the upfront fees paid to all of the Lenders in respect of their
Extended Term Loans, which shall be equated to interest rate based on a
four-year life to maturity, or if it does so exceed by more than 25 bps the sum
of such Applicable Margin and such fees, such Applicable Margin for the Extended
Term Loans shall be increased so that the interest rate margin in respect of
such Incremental Term Loan (giving effect to any OID issued or upfront fees paid
to all of the Incremental Term Lenders in connection therewith) is no greater
than the sum of (x) the Applicable Margin for the Extended Term Loans, (y) the
upfront fees paid to all of the Lenders in respect of their Extended Term Loans
and (z) 25 bps, and (vii) the Incremental Loan Commitments shall be effected
pursuant to one or more incremental commitment agreements in a form reasonably
acceptable to the Administrative Agent (each, a “Incremental Commitment
Agreement”) executed and delivered by the Borrower, the applicable
Incremental Term Loan Lender and the Administrative Agent pursuant to which such
Incremental Term Loan Lender agrees to be bound to the terms of this Agreement
as a Lender. Any Incremental Term Loans made on an Increased Amount
Date shall be designated a separate tranche of Incremental Term Loans for all
purposes of this Agreement.
(c) On
any Increased Amount Date on which Incremental Revolving Commitments are
effected, subject to the satisfaction of the foregoing terms and conditions, (a)
each of the Lenders with Revolving Commitments shall assign to each Person with
an Incremental Revolving Commitment (each, an “Incremental Revolving
Lender”) and each of the Incremental Revolving Lenders shall purchase
from each of the Lenders with Revolving Commitments, at the principal amount
thereof, such interests in the Revolving Loans outstanding on such Increased
Amount Date as shall be necessary in order that, after giving effect to all such
assignments and purchases, the Revolving Loans will be held by existing
Revolving Lenders and Incremental Revolving Lenders ratably in accordance with
their Revolving Commitments after giving effect to the addition of such
Incremental Revolving Commitments to the Revolving Commitments, (b) each
Incremental Revolving Commitment shall be deemed for all purposes a Revolving
Commitment and each Loan made thereunder (an “Incremental Revolving
Loan”) shall be deemed, for all purposes, a Revolving Loan and (c) each
Incremental Revolving Lender shall become a Lender with respect to the
Incremental Revolving Commitment and all matters relating thereto. The terms and
provisions of the Incremental Revolving Loans and Incremental Revolving
Commitments shall be identical to the Revolving Loans and the Revolving
Commitments.
(d) On
any Increased Amount Date on which any Incremental Term Loan Commitments are
effected, subject to the satisfaction of the foregoing terms and conditions, (i)
each Person with an Incremental Term Loan Commitment (each, an “Incremental Term Loan
Lender”) shall make a Loan to the Borrower (an “Incremental Term
Loan”) in an amount equal to its Incremental Term Loan Commitment, and
(ii) each Incremental Term Loan Lender shall become a Lender hereunder with
respect to the Incremental Term Loan Commitment and the Incremental Term Loans
made pursuant thereto.
(e) Each
Incremental Commitment Agreement may, without the consent of any other Lenders,
effect such amendments to this Agreement and the other Loan Documents as may be
necessary or appropriate, in the opinion of the Administrative Agent, to effect
the provisions of this Section 2.23.
2.24 Prepayments Required Due to
Currency Fluctuation. On
the last Business Day of each fiscal quarter, or at such other time as is
reasonably determined by the Administrative Agent, the Administrative Agent
shall determine the Dollar Equivalent of aggregate outstanding Revolving
Extensions of Credit. If, at the time of such determination the
aggregate outstanding Revolving Extensions of Credit exceed the Revolving
Commitments then in effect by 5% or more, then within five Business
Days
40
of notice
to the Borrower, the Borrower or the relevant Subsidiary Borrower shall prepay
Revolving Loans or Swingline Loans or cash collateralize the outstanding Letters
of Credit in an aggregate principal amount at least equal to such excess; provided that the
failure of the Administrative Agent to determine the Dollar Equivalent Amount of
the aggregate outstanding Revolving Extensions of Credit as provided in this
Section 2.24 shall not subject the Administrative Agent to any liability
hereunder.
2.25 Defaulting
Lenders. Notwithstanding
any provision of this Agreement to the contrary, if any Lender becomes a
Defaulting Lender, then the following provisions shall apply for so long as such
Lender is a Defaulting Lender:
(a) if
any L/C Obligations exist at the time a Revolving Lender is a Defaulting Lender
then:
(i) subject
to the satisfaction of the condition precedent in Section 5.2(b) of the Credit
Agreement and following notice by the Administrative Agent, all or any part of
the Defaulting Lender’s ratable participating interest in the L/C Obligations
shall be reallocated among the Revolving Lenders that are not Defaulting Lenders
in accordance with their respective Revolving Percentages but, in any case, only
to the extent the sum of the outstanding Revolving Extensions of Credit of all
Revolving Lenders that are not Defaulting Lenders before giving effect to such
reallocation plus such Defaulting Lender’s ratable participating interest in the
L/C Obligations does not exceed the total of the Revolving Commitments of all
Revolving Lenders that are not Defaulting Lenders; provided that if such
condition precedent is not satisfied on the date of such notice by the
Administrative Agent, the Borrower shall within five Business Days following
notice by the Administrative Agent, either (x) cash collateralize such
Defaulting Lender’s ratable participating interest in the L/C Obligations or (y)
backstop such Defaulting Lender’s participating interest in the L/C Obligations
with a letter of credit reasonably satisfactory to the Issuing
Lender;
(ii) if
the reallocation described in clause (i) above cannot, or can only partially, be
effected as a result of the limitations set forth therein, the Borrower shall
within five Business Days following notice by the Administrative Agent, either
(x) cash collateralize such Defaulting Lender’s participating interest in the
L/C Obligations (after giving effect to any partial reallocation pursuant to
clause (i) above) or (y) backstop such Defaulting Lender’s participating
interest in the L/C Obligations (after giving effect to any partial reallocation
pursuant to clause (i) above) with a letter of credit reasonably satisfactory to
the Issuing Lender, in each case, for so long as such L/C Obligations are
outstanding;
(iii) if
the Borrower cash collateralizes or backstops any portion of such Defaulting
Lender’s L/C Obligations pursuant to this paragraph (a), the Borrower shall not
be required to pay any fees to such Defaulting Lender pursuant to Section 3.3
with respect to such Defaulting Lender’s L/C Obligations during the period such
Defaulting Lender’s L/C Obligations are cash collateralized or
backstopped;
(iv) if
the L/C Obligations attributable to the Defaulting Lenders that are Revolving
Lenders is reallocated pursuant to this paragraph (a), then the fees payable to
the Lenders pursuant to Sections 2.8 and 3.3 shall be adjusted in accordance
with the non-Defaulting Lenders’ respective Revolving Percentages;
(v) if
any Defaulting Lender’s participating interest in L/C Obligations is neither
cash collateralized, backstopped nor reallocated pursuant to this paragraph (a),
then, without prejudice to any rights or remedies of the Issuing Lenders or any
Lender hereunder, all letter of credit fees payable under Section 3.3 with
respect to such Defaulting Lender’s participating interest
41
in all
L/C Obligations shall be payable to the applicable Issuing Lenders until such
participating interest in all L/C Obligations is backstopped, cash
collateralized and/or reallocated;
(vii) any
subsequent request for issuance, amendment or increase of any Letter of Credit
shall be subject to reallocating or cash collateralizing the relating L/C
Obligations attributable to any Defaulting Lender that is a Revolving Lender in
the manner described above; and
(viii) in
the event a Revolving Lender ceases to be a Defaulting Lender, all outstanding
L/C Obligations shall be immediately reallocated ratably to the Revolving
Lenders who are not Defaulting Lenders and any cash collateral posted in respect
of such Lender’s participating interest shall be returned to the Borrower and
any letter of credit issued to backstop such Lender’s participating interest
shall be terminated, cancelled or returned to the Borrower for cancellation, in
each case, within three Business Days.
(b) if
any Swingline Loans are outstanding at the time a Lender is a Defaulting Lender,
the Borrower shall within five Business Days following notice by the
Administrative Agent prepay such Swingline Loans or, if agreed by the Swingline
Lender, cash collateralize the participating interests in the Swingline Loans of
the Defaulting Lender on terms reasonably satisfactory to the Swingline Lender;
and
(c) following
the notice by the Administrative Agent to the Borrower pursuant to clauses (a)
or (b) above, the Swingline Lender shall not be required to fund any Swingline
Loan and the Issuing Lender shall not be required to issue or increase any
Letter of Credit unless it is reasonably satisfied that the reallocation and
cash collateral requirements described in clauses (a) and (b) above shall be
provided for.
SECTION
3 LETTERS
OF CREDIT
3.1 L/C
Commitment. (a) Subject
to the terms and conditions hereof, the Issuing Lender, in reliance on the
agreements of the other Revolving Lenders set forth in Section 3.4(a), agrees to
issue letters of credit (“Letters of Credit”)
for the account of the Borrower or any Subsidiary Borrower on any Business Day
during the Revolving Commitment Period in such form as may be approved from time
to time by the Issuing Lender; provided that the
Issuing Lender shall not issue any Letter of Credit if, after giving effect to
such issuance, the aggregate amount of the Available Revolving Commitments would
be less than zero. Each Letter of Credit shall (i) be denominated in
Dollars or an Optional Currency and (ii) expire no later than the earlier of (x)
the first anniversary of its date of issuance and (y) the date that is five
Business Days prior to the Revolving Termination Date, provided that any
Letter of Credit with a one-year term may provide for the automatic renewal or
renewal thereof for additional one-year periods (which shall in no event extend
beyond the date referred to in clause (y) above).
(b) The
Issuing Lender shall not at any time be obligated to issue any Letter of Credit
if such issuance would conflict with, or cause the Issuing Lender or any L/C
Participant to exceed any limits imposed by, any applicable Requirement of
Law.
3.2 Procedure for Issuance of
Letter of Credit. The
Borrower or any Subsidiary Borrower may from time to time request that the
Issuing Lender issue a Letter of Credit by delivering to the Issuing Lender at
its address for notices specified herein an Application therefor, completed to
the satisfaction of the Issuing Lender, and such other certificates, documents
and other papers and information as the Issuing Lender may
request. Upon receipt of any Application, the Issuing Lender will
process such Application and the certificates, documents and other papers and
information delivered to it in connection
42
therewith
in accordance with its customary procedures and shall promptly issue the Letter
of Credit requested thereby (but in no event shall the Issuing Lender be
required to issue any Letter of Credit earlier than three Business Days after
its receipt of the Application therefor and all such other certificates,
documents and other papers and information relating thereto) by issuing the
original of such Letter of Credit to the beneficiary thereof or as otherwise may
be agreed to by the Issuing Lender and the Borrower or relevant Subsidiary
Borrower. The Issuing Lender shall furnish a copy of such Letter of
Credit to the Borrower or relevant Subsidiary Borrower promptly following the
issuance thereof. The Issuing Lender shall promptly furnish to the
Administrative Agent, which shall in turn promptly furnish to the Lenders,
notice of the issuance of each Letter of Credit (including the amount
thereof).
3.3 Fees and Other
Charges.
(a) The Borrower will pay a fee on all outstanding Letters of Credit
issued for the account of the Borrower and any relevant Subsidiary Borrower at a
per annum rate equal to the Applicable Margin then in effect with respect to
Eurocurrency Loans under the Revolving Facility, shared ratably among the
Revolving Lenders and payable quarterly in arrears on each Fee Payment Date
after the issuance date. In addition, the Borrower shall pay a
fronting fee in an amount to be agreed with the Issuing Lender (but, in any
event, not greater than of 0.125% per annum) on the undrawn and unexpired amount
of each Letter of Credit issued for the account of the Borrower or any relevant
Subsidiary Borrower, payable quarterly in arrears on each Fee Payment Date after
the issuance date.
(b) In
addition to the foregoing fees, the Borrower shall pay or reimburse the Issuing
Lender for such normal and customary costs and expenses as are incurred or
charged by the Issuing Lender in issuing, negotiating, effecting payment under,
amending or otherwise administering any Letter of Credit.
3.4 L/C
Participations.
(a) The Issuing Lender irrevocably agrees to grant and hereby grants
to each L/C Participant, and, to induce the Issuing Lender to issue Letters of
Credit, each L/C Participant irrevocably agrees to accept and purchase and
hereby accepts and purchases from the Issuing Lender, on the terms and
conditions set forth below, for such L/C Participant’s own account and risk an
undivided interest equal to such L/C Participant’s Revolving Percentage in the
Issuing Lender’s obligations and rights under and in respect of each Letter of
Credit and the amount of each draft paid by the Issuing Lender
thereunder. Each L/C Participant agrees with the Issuing Lender that,
if a draft is paid under any Letter of Credit for which the Issuing Lender is
not reimbursed in full by the Borrower or relevant Subsidiary Borrower in
accordance with the terms of this Agreement, such L/C Participant shall pay to
the Issuing Lender upon demand at the Issuing Lender’s address for notices
specified herein an amount equal to such L/C Participant’s Revolving Percentage
of the amount of such draft, or any part thereof, that is not so
reimbursed. Each L/C Participant’s obligation to pay such amount
shall be absolute and unconditional and shall not be affected by any
circumstance, including (i) any setoff, counterclaim, recoupment, defense or
other right that such L/C Participant may have against the Issuing Lender, the
Borrower, any Subsidiary Borrower or any other Person for any reason whatsoever,
(ii) the occurrence or continuance of a Default or an Event of Default or the
failure to satisfy any of the other conditions specified in Section 5, (iii) any
adverse change in the condition (financial or otherwise) of the Borrower or any
Subsidiary Borrower, (iv) any breach of this Agreement or any other Loan
Document by the Borrower, any Subsidiary Borrower, any other Loan Party or any
other L/C Participant or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing
(b) If
any amount required to be paid by any L/C Participant to the Issuing Lender
pursuant to Section 3.4(a) in respect of any unreimbursed portion of any payment
made by the Issuing Lender under any Letter of Credit is paid to the Issuing
Lender within three Business Days after the date such payment is due, such L/C
Participant shall pay to the Issuing Lender on demand an amount equal to the
product of (i) such amount, times (ii) the daily average Federal Funds Effective
Rate during the period from and including the date such payment is required to
the date on which such payment is immediately available to the Issuing Lender,
times (iii) a fraction the numerator of which is the number of days that elapse
during
43
such
period and the denominator of which is 360. If any such amount
required to be paid by any L/C Participant pursuant to Section 3.4(a) is not
made available to the Issuing Lender by such L/C Participant within three
Business Days after the date such payment is due, the Issuing Lender shall be
entitled to recover from such L/C Participant, on demand, such amount with
interest thereon calculated from such due date at the rate per annum applicable
to ABR Loans under the Revolving Facility. A certificate of the
Issuing Lender submitted to any L/C Participant with respect to any amounts
owing under this Section shall be conclusive in the absence of manifest
error.
(c)
Whenever, at any time after the Issuing Lender has made payment under any Letter
of Credit and has received from any L/C Participant its pro rata share of such
payment in accordance with Section 3.4(a), the Issuing Lender receives any
payment related to such Letter of Credit (whether directly from the Borrower or
relevant Subsidiary Borrower or otherwise, including proceeds of collateral
applied thereto by the Issuing Lender), or any payment of interest on account
thereof, the Issuing Lender will distribute to such L/C Participant its pro rata share thereof;
provided, however, that in the
event that any such payment received by the Issuing Lender shall be required to
be returned by the Issuing Lender, such L/C Participant shall return to the
Issuing Lender the portion thereof previously distributed by the Issuing Lender
to it.
3.5 Reimbursement Obligation of
the Borrower. If
any draft is paid under any Letter of Credit, the Borrower or relevant
Subsidiary Borrower shall reimburse the Issuing Lender for the amount of (a) the
draft so paid and (b) any taxes, fees, charges or other costs or expenses
incurred by the Issuing Lender in connection with such payment, not later than
1:00 P.M., New York City time, on (i) the Business Day that the Borrower or
relevant Subsidiary Borrower receives notice of such draft, if such notice is
received on such day prior to 10:00 A.M., New York City time, or (ii) if clause
(i) above does not apply, the Business Day immediately following the day that
the Borrower or relevant Subsidiary Borrower receives such
notice. Each such payment shall be made to the Issuing Lender at its
address for notices referred to herein in Dollars or in any other applicable
currency and in immediately available funds. Interest shall be
payable on any such amounts from the date on which the relevant draft is paid
until payment in full at the rate set forth in (x) until the Business Day next
succeeding the date of the relevant notice, Section 2.14(b) and (y) thereafter,
Section 2.14(c).
3.6 Obligations
Absolute. The
obligations of the Borrower and any relevant Subsidiary Borrower under this
Section 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment that the
Borrower or such Subsidiary Borrower, as the case may be, may have or have had
against the Issuing Lender, any beneficiary of a Letter of Credit or any other
Person. The Borrower and each relevant Subsidiary Borrower also
agrees with the Issuing Lender that the Issuing Lender shall not be responsible
for, and the Reimbursement Obligations under Section 3.5 of the Borrower and any
relevant Subsidiary Borrower shall not be affected by, among other things, the
validity or genuineness of documents or of any endorsements thereon, even though
such documents shall in fact prove to be invalid, fraudulent or forged, or any
dispute between or among the Borrower or such Subsidiary Borrower, as the case
may be, and any beneficiary of any Letter of Credit or any other party to which
such Letter of Credit may be transferred or any claims whatsoever of the
Borrower or such Subsidiary, as the case may be, against any beneficiary of such
Letter of Credit or any such transferee. The Issuing Lender shall not
be liable for any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with any Letter of Credit, except for errors or omissions found by a
final and nonappealable decision of a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of the Issuing
Lender. The Borrower and each relevant Subsidiary Borrower agrees
that any action taken or omitted by the Issuing Lender under or in connection
with any Letter of Credit or the related drafts or documents, if done in the
absence of gross negligence or willful misconduct, shall be binding on the
Borrower or such
44
Subsidiary
Borrower and shall not result in any liability of the Issuing Lender to the
Borrower or such Subsidiary Borrower.
3.7 Letter of Credit
Payments. If
any draft shall be presented for payment under any Letter of Credit, the Issuing
Lender shall promptly notify the Borrower or relevant Subsidiary Borrower of the
date and amount thereof. The responsibility of the Issuing Lender to
the Borrower or relevant Subsidiary Borrower in connection with any draft
presented for payment under any Letter of Credit shall, in addition to any
payment obligation expressly provided for in such Letter of Credit, be limited
to determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are substantially in
conformity with such Letter of Credit.
3.8 Applications. To
the extent that any provision of any Application related to any Letter of Credit
is inconsistent with the provisions of this Section 3, the provisions of this
Section 3 shall apply.
3.9 Existing Letters of
Credit. On
and as of the Closing Date the letters of credit set forth on
Schedule 3.9 (the “Existing Letters of
Credit”) will constitute Letters of Credit under this Agreement and for
the purposes hereof will be deemed to have been issued for the account of the
Borrower on the Closing Date.
SECTION
4. REPRESENTATIONS AND WARRANTIES
To induce
the Administrative Agent and the Lenders to enter into this Agreement and to
make the Loans and issue or participate in the Letters of Credit, Holdings and
the Borrower hereby jointly and severally represent and warrant to the
Administrative Agent and each Lender that:
4.1 Financial
Condition. (a)
The unaudited pro forma consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at December
31, 2005 (including the notes thereto) (the “Pro Forma Balance
Sheet”), copies of which have heretofore been furnished to each Lender,
has been prepared giving effect (as if such events had occurred on such date) to
(i) the Loans to be made on the Closing Date and the use of proceeds thereof,
(ii) the issuance of the Senior Unsecured Notes and the use of proceeds thereof
and (iii) the payment of fees and expenses in connection with the
foregoing. The Pro Forma Balance Sheet has been prepared based on the
best information available to the Borrower as of the date of delivery thereof,
and presents fairly on a pro forma basis the
estimated financial position of the Borrower and its consolidated Subsidiaries
as at December 31, 2005, assuming that the events specified in the preceding
sentence had actually occurred at such date.
(b) The
audited consolidated balance sheets of the Borrower as at December 31, 2005,
December 31, 2004 and December 31, 2003, and the related consolidated statements
of income and of cash flows for the fiscal years ended on such dates (the “Consolidated Financial
Statements”), reported on by and accompanied by an unqualified report
from Deloitte & Touche LLP, present fairly the consolidated financial
condition of the Borrower as at such date, and the consolidated results of its
operations and its consolidated cash flows for the respective fiscal years then
ended. All such financial statements, including the related schedules
and notes thereto, have been prepared in accordance with GAAP applied
consistently throughout the periods involved (except as approved by the
aforementioned firm of accountants and disclosed therein). No Group
Member has any material Guarantee Obligations, or any unusual forward or
long-term commitments, including any interest rate or foreign currency swap or
exchange transaction or other obligation in respect of derivatives, that are not
reflected in the most recent financial statements referred to in this
paragraph. During the period from December 31, 2005 to and including
the date hereof there has been no Disposition by any Group Member of any
material part of the business or property of the Group Members taken as a
whole.
45
4.2 No Change. Since
December 31, 2008, there has been no development or event that has had or could
reasonably be expected to have a Material Adverse Effect.
4.3 Existence; Compliance with
Law. Each
Group Member (a) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, except where (other than the
Borrower) the failure to be so organized, existing or in good standing could not
reasonably be expected to have a Material Adverse Effect, (b) has the power and
authority, and the legal right, to own and operate its property, to lease the
property it operates as lessee and to conduct the business in which it is
currently engaged, except where failure to have such power, authority and legal
right could not reasonably be expected to have a Material Adverse Effect, (c) is
duly qualified as a foreign corporation or other organization and in good
standing or has applied for authority to operate as a foreign corporation under
the laws of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification and where a
failure to be in good standing as a foreign corporation would have a Material
Adverse Effect and (d) is in compliance with all Requirements of Law except to
the extent that the failure to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
4.4 Power; Authorization;
Enforceable Obligations. Each
Loan Party has the power and authority, and the legal right, to make, deliver
and perform the Loan Documents to which it is a party and, in the case of the
Borrower, to obtain extensions of credit hereunder. Each Loan Party
has taken all necessary organizational action to authorize the execution,
delivery and performance of the Loan Documents to which it is a party and, in
the case of the Borrower, to authorize the extensions of credit on the terms and
conditions of this Agreement. No consent or authorization of, filing
with, notice to or other act by or in respect of, any Governmental Authority or
any other Person is required in connection with the extensions of credit
hereunder or with the execution, delivery, performance, validity or
enforceability of this Agreement or any of the Loan Documents, except (i)
consents, authorizations, filings and notices described in Schedule 4.4, which
consents, authorizations, filings and notices have been obtained or made and are
in full force and effect and (ii) the filings referred to in Section
4.17. Each Loan Document has been duly executed and delivered on
behalf of each Loan Party party thereto. This Agreement constitutes,
and each other Loan Document upon execution will constitute, a legal, valid and
binding obligation of each Loan Party party thereto, enforceable against each
such Loan Party in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors’ rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law).
4.5 No Legal
Bar. The
execution, delivery and performance of this Agreement and the other Loan
Documents, the issuance of Letters of Credit, the borrowings hereunder and the
use of the proceeds thereof will not violate any material Requirement of Law or
any material Contractual Obligation of any Group Member and will not result in,
or require, the creation or imposition of any Lien on any of their respective
properties or revenues pursuant to any Requirement of Law or any such
Contractual Obligation (other than the Liens created by the Security
Documents). No Requirement of Law or Contractual Obligation
applicable to the Borrower or any of its Subsidiaries could reasonably be
expected to have a Material Adverse Effect.
4.6 Litigation. Except
as disclosed by the Borrower to the Lenders in writing at least three Business
Days prior to the Closing Date, there shall not exist any action, investigation,
litigation or proceeding pending or, to the knowledge of the Borrower,
threatened in any court or before any arbitrator or Governmental Authority that
if adversely determined would have a Material Adverse Effect.
46
4.7 No
Default. No
Group Member is in default under or with respect to any of its Contractual
Obligations in any respect that could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is
continuing.
4.8 Ownership of Property;
Liens. Each
Group Member has title in fee simple to, or a valid leasehold interest in, all
its real property (except as could not reasonably be expected to have a Material
Adverse Effect) and none of such property is subject to any Lien except a
Permitted Lien.
4.9 Intellectual
Property. Each
Group Member owns, or is licensed to use, to its knowledge, all material
Intellectual Property necessary for the conduct of its business as currently
conducted. Except as set forth on Schedule 4.9, to each Group
Member’s knowledge, no claim has been asserted and is pending against such Group
Member by any Person challenging or questioning the use of any Intellectual
Property or the validity or effectiveness of any Intellectual Property, nor does
Holdings or the Borrower know of any valid basis for any such claim that if
adversely determined could have a material adverse effect on the value of any
material Intellectual Property owned by such Group Member. Subject to
the foregoing sentence, the use of Intellectual Property by each Group Member
does not infringe, to its knowledge, on the rights of any Person in any material
respect.
4.10 Taxes. Each
Group Member has filed or caused to be filed all federal, state and local income
and other material tax returns that are required to be filed by it and has paid
all taxes shown to be due and payable on said returns or on any assessments made
against it or any of its property and all other taxes, fees or other charges
imposed on it or any of its property by any Governmental Authority (other than
any amount the validity of which is currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of the relevant Group Member or to the
extent that failure to do so could not reasonably be expected to result in a
Material Adverse Effect) or with respect to which the failure to have filed such
tax returns or have paid such taxes would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
4.11 Federal
Regulations. No
part of the proceeds of any Loans, and no other extensions of credit hereunder,
will be used (a) for “buying” or “carrying” any “margin stock” within the
respective meanings of each of the quoted terms under Regulation U as now and
from time to time hereafter in effect for any purpose that violates the
provisions of the Regulations of the Board or (b) for any purpose that violates
the provisions of the Regulations of the Board. If requested by any
Lender or the Administrative Agent, the Borrower will furnish to the
Administrative Agent and each Lender a statement to the foregoing effect in
conformity with the requirements of FR Form G-3 or FR Form U-1, as applicable,
referred to in Regulation U.
4.12 ERISA. (a)
Neither a Reportable Event nor an “accumulated funding deficiency” (within the
meaning of Section 412 of the Code or Section 302 of ERISA) has occurred
during the five-year period prior to the date on which this representation is
made or deemed made with respect to any Plan, and each Plan has complied in all
material respects with the applicable provisions of ERISA and the Code; (b) no
termination of a Single Employer Plan has occurred, and no Lien in favor of the
PBGC or a Plan has arisen, during such five-year period; (c) the present value
of all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last annual valuation
date prior to the date on which this representation is made or deemed made,
exceed the value of the assets of such Plan allocable to such accrued benefits
by a material amount; (d) neither the Borrower nor any Commonly Controlled
Entity has had a complete or partial withdrawal from any Multiemployer Plan that
has resulted or could reasonably be expected to result in a liability under
ERISA, and neither the Borrower nor any Commonly Controlled Entity would become
subject to any material liability under ERISA if the Borrower or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which this
representation is made or
47
deemed
made; and (e) no such Multiemployer Plan is in Reorganization or Insolvent,
except where, in each of clauses (a) through (e), such event or condition,
together with all other events or conditions, could not reasonably be expected
to have a Material Adverse Effect.
4.13 Investment Company Act;
Other Regulations. No
Loan Party is an “investment company”, or a company “controlled” by an
“investment company”, within the meaning of the Investment Company Act of 1940,
as amended.
4.14 Subsidiaries. As
of the Closing Date, (a) Schedule 4.14 sets forth the name and jurisdiction of
organization of each Subsidiary and, (i) as to each such Subsidiary (other than
WTH Funding LP), the percentage of each class of Capital Stock owned by any Loan
Party and (ii) in the case of WTH Funding LP, the names of the partners of such
partnership and to the extent that the partners of such partnership are
Subsidiaries, the percentage of Capital Stock of such Subsidiaries owned by any
Loan Party and (b) there are no outstanding subscriptions, options, warrants,
calls, rights or other agreements or commitments (other than stock options
granted to employees or directors and directors’ qualifying shares) of any
nature relating to any Capital Stock of the Borrower or any Subsidiary (other
than WTH Funding LP), except as created by the Loan Documents.
4.15 Use of
Proceeds. The
proceeds of the Term Loans shall be used (i) to repay AESOP Indebtedness, (ii)
to pay costs and expenses in connection with the entering into of the Loan
Documents and the issuance of the Senior Unsecured Notes and (iii) to finance
the working capital needs and general corporate purposes of the Borrower and its
Subsidiaries. The proceeds of the Revolving Loans and the Swingline
Loans, and the Letters of Credit, shall be used to finance the working capital
needs and general corporate purposes of the Borrower and its
Subsidiaries.
4.16 Accuracy of Information,
etc. No
statement or information (other than the projections and pro forma financial
information) contained in this Agreement, any other Loan Document, the
Confidential Information Memorandum or any other document, certificate or
statement furnished by or on behalf of any Loan Party to the Administrative
Agent or the Lenders, or any of them, for use in connection with the
transactions contemplated by this Agreement or the other Loan Documents taken as
a whole, contained as of the date such statement, information, document or
certificate was so furnished (or, in the case of the Confidential Information
Memorandum, as of the date of this Agreement), any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements contained herein or therein not misleading. The
projections and pro forma financial
information contained in the materials referenced above are based upon good
faith estimates and assumptions believed by management of the Borrower to be
reasonable at the time made, it being recognized by the Lenders that such
financial information as it relates to future events is not to be viewed as fact
and that actual results during the period or periods covered by such financial
information may differ from the projected results set forth therein by a
material amount. As of the Closing Date there is no fact known to any
Loan Party that could reasonably be expected to have a Material Adverse Effect
that has not been expressly disclosed herein, in the other Loan Documents, in
the Confidential Information Memorandum or in any other documents, certificates
and statements furnished to the Administrative Agent and the Lenders for use in
connection with the transactions contemplated hereby and by the other Loan
Documents.
4.17 Security
Documents. (a)
The Guarantee and Collateral Agreement is effective to create in favor of the
Administrative Agent, for the benefit of the Secured Parties (as defined in the
Guarantee and Collateral Agreement), a legal, valid and enforceable security
interest in the Collateral described therein and proceeds thereof. In
the case of the Pledged Stock described in the Guarantee and Collateral
Agreement, when stock certificates representing such Pledged Stock are delivered
to the Administrative Agent, and in the case of the other Collateral described
in the Guarantee and Collateral Agreement, when financing statements and other
filings specified on Schedule 4.17 in appropriate form are
48
filed in
the offices specified on Schedule 4.17, the Guarantee and Collateral
Agreement shall constitute a fully perfected Lien on, and security interest in,
all right, title and interest of the Loan Parties in such Collateral and the
proceeds thereof, as security for the Obligations (as defined in the Guarantee
and Collateral Agreement), in each case prior and superior in right to any other
Person (except (i) in the case of Collateral other than Pledged Stock, Permitted
Liens and (ii) in the case of Pledged Stock, statutory Liens); and (b) When
executed, each of the Mortgages will be effective to create in favor of the
Administrative Agent, for the benefit of the Lenders, a legal, valid and
enforceable Lien on the Mortgaged Properties described therein and proceeds
thereof, and when the Mortgages are accepted for recording in the applicable
recording offices, each such Mortgage shall constitute a fully perfected Lien
on, and security interest in, all right, title and interest of the Loan Parties
in the Mortgaged Properties and the proceeds thereof, as security for the
Obligations (as defined in the relevant Mortgage), in each case prior and
superior in right to any other Person (except for any Permitted Lien other than
Liens securing Indebtedness). Schedule 1.1F lists, as of the First
Amendment Effective Date, each parcel of owned real property and each leasehold
interest in real property located in the United States and held by the Borrower
or any of its Subsidiaries that has a value, in the reasonable opinion of the
Borrower, in excess of $400,000.
4.18 Certain
Documents. The
Borrower has delivered to the Administrative Agent a complete and correct copy
of the Senior Unsecured Note Indenture and such other documents as the
Administrative Agent shall have reasonably requested.
SECTION
5. CONDITIONS
PRECEDENT
5.1 Conditions to Initial
Extension of Credit. The
agreement of each Lender to make the initial extension of credit requested to be
made by it is subject to the satisfaction, prior to or concurrently with the
making of such extension of credit on the Closing Date, of the following
conditions precedent:
(a) Credit Agreement; Guarantee
and Collateral Agreement. The Administrative Agent shall have
received (i) this Agreement, executed and delivered by the Administrative
Agent, Holdings, the Borrower and each Person listed on Schedule 1.1A and (ii)
the Guarantee and Collateral Agreement, executed and delivered by Holdings, the
Borrower and each Subsidiary Guarantor.
(b) Senior Unsecured Notes
Issuance. The Borrower and Avis Budget Finance shall have
received at least $1,000,000,000 in gross cash proceeds from the issuance of the
Senior Unsecured Notes on terms and conditions reasonably satisfactory to the
Joint Arrangers.
(c) Pro Forma Balance Sheet;
Financial Statements. The Lenders shall have received (i) the
Pro Forma Balance Sheet, (ii) the Consolidated Financial Statements and (iii)
unaudited interim consolidated financial statements of the Borrower for each
fiscal quarter ended more than 45 days before the Closing Date and after the
date of the latest applicable financial statements delivered pursuant to clause
(ii) of this paragraph as to which such financial statements are available, and
such financial statements shall not, in the reasonable judgment of the Lenders,
reflect any material inconsistency with the financial statements or projections
contained in the Confidential Information Memorandum, except as a result of
changes thereto required by GAAP.
(d) Projections. The
Lenders shall have received satisfactory projections through 2011.
(e) Approvals. All
material governmental and third party approvals necessary in connection with the
continuing operations of the Group Members, the issuance of the Senior Unsecured
Notes and the financing contemplated hereby shall have been obtained and be in
full force and effect, and all applicable waiting periods shall have expired
without any action being
49
taken or
threatened by any competent authority that would restrain, prevent or otherwise
impose adverse conditions on the issuance of the Senior Unsecured Notes or the
financing contemplated hereby.
(f) Lien
Searches. The Administrative Agent shall have received the
results of a recent lien search in each jurisdiction where the Loan Parties have
their chief executive office or are organized, and such search shall reveal no
Liens on any of the assets of the Loan Parties except for Liens permitted by
Section 7.3, Liens discharged on or prior to the Closing Date or Liens for which
termination arrangements have been made pursuant to documentation and on terms
satisfactory to the Administrative Agent.
(g) Fees. The
Lenders and the Administrative Agent shall have received all fees required to be
paid, and all expenses for which invoices have been presented (including the
reasonable fees and expenses of legal counsel), on or before the Closing
Date. All such amounts will be paid with proceeds of Loans made on
the Closing Date and will be reflected in the funding instructions given by the
Borrower to the Administrative Agent on or before the Closing Date.
(h) Closing Certificate;
Certified Certificate of Incorporation; Good Standing
Certificates. The Administrative Agent shall have received (i)
a certificate of each Loan Party, dated the Closing Date, substantially in the
form of Exhibit C, with appropriate insertions and attachments, including the
certificate of incorporation of each Loan Party that is a corporation certified
by the relevant authority of the jurisdiction of organization of such Loan
Party, and (ii) a long form good standing certificate for each Loan Party from
its jurisdiction of organization.
(i) Legal
Opinions. The Administrative Agent shall have received the
executed legal opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel
to the Borrower and its Subsidiaries, substantially in the form of Exhibit
E.
(j) Pledged Stock; Stock Powers;
Pledged Notes. The Administrative Agent shall have received
(i) the certificates representing the shares of Capital Stock pledged pursuant
to the Guarantee and Collateral Agreement, together with an undated stock power
for each such certificate executed in blank by a duly authorized officer of the
pledgor thereof and (ii) each promissory note (if any) pledged to the
Administrative Agent pursuant to the Guarantee and Collateral Agreement endorsed
(without recourse) in blank (or accompanied by an executed transfer form in
blank) by the pledgor thereof.
(k) Filings, Registrations and
Recordings. Each document (including any Uniform Commercial
Code financing statement) required by the Security Documents or under law
or reasonably requested by the Administrative Agent to be filed, registered or
recorded in order to create in favor of the Administrative Agent, for the
benefit of the Lenders, a perfected Lien on the Collateral described therein,
prior and superior in right to any other Person (other than with respect to
Liens expressly permitted by Section 7.3), shall be in proper form for filing,
registration or recordation.
(l) Solvency
Opinion. The Administrative Agent shall have received a
satisfactory solvency opinion from Duff & Xxxxxx LLC that shall document the
solvency of the Borrower and its Subsidiaries after giving effect to the
financing contemplated hereby and the issuance of the Senior Unsecured
Notes.
(m) Officer’s
Certificate. The Lenders shall have received a certificate
from the chief financial officer of the Borrower documenting the Borrower’s
compliance with the conditions set
50
5.2 Conditions to Each Extension
of Credit. The
agreement of each Lender to make any extension of credit requested to be made by
it on any date (including its initial extension of credit) is subject to the
satisfaction of the following conditions precedent:
(a) Representations and
Warranties. Each of the representations and warranties made by
any Loan Party in or pursuant to the Loan Documents shall be true and correct in
all material respects on and as of such date as if made on and as of such
date.
(b) No
Default. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the extensions of
credit requested to be made on such date.
(c) No Excess
Proceeds. The amount of any extension of credit, after giving
effect to the application of proceeds thereof, shall not exceed the reasonable
working capital needs of the Borrower and its Subsidiaries by a material
amount.
(d) Extensions of Credit to a
Subsidiary Borrower. The representations and warranties
contained in Sections 4.3, 4.4 and 4.5 as to any Subsidiary Borrower to which an
extension of credit is to be made shall be true and correct in all material
respects on and as of such date as if made on and as of such date.
Each
borrowing by and issuance of a Letter of Credit on behalf of the Borrower or any
Subsidiary Borrower hereunder shall constitute a representation and warranty by
the Borrower, or such Subsidiary Borrower, as applicable, as of the date of such
extension of credit that the conditions contained in this Section 5.2 have been
satisfied.
SECTION
6. AFFIRMATIVE
COVENANTS
Holdings
and the Borrower hereby jointly and severally agree that, so long as the
Commitments remain in effect, any Letter of Credit remains outstanding or any
Loan or other amount is owing to any Lender or the Administrative Agent
hereunder, each of Holdings and the Borrower shall and shall cause each of its
Subsidiaries to:
6.1 Financial
Statements. Furnish
to the Administrative Agent and each Lender:
(a) as soon
as available, but in any event within 100 days after the end of each fiscal
year of the Borrower, a copy of the audited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such year and the
related audited consolidated statements of income and of cash flows for such
year, setting forth in each case in comparative form the figures for the
previous year, reported on without a “going concern” or like qualification or
exception, or qualification arising out of the scope of the audit, by Deloitte
& Touche LLP or other independent certified public accountants of nationally
recognized standing; and
(b) as soon
as available, but in any event not later than 55 days after the end of each of
the first three quarterly periods of each fiscal year of the Borrower, the
unaudited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such quarter and the related unaudited
consolidated statements of income and of cash flows for such quarter and the
portion of the fiscal year through the end of such quarter, setting forth in
each case in comparative form the
51
figures
for the previous year, certified by a Responsible Officer as being fairly stated
in all material respects (subject to normal year-end audit
adjustments).
All such
financial statements shall be complete and correct in all material respects and
shall be prepared in reasonable detail and in accordance with GAAP applied
(except as approved by such accountants or officer, as the case may be, and
disclosed in reasonable detail therein) consistently throughout the periods
reflected therein and with prior periods and shall be deemed to have been
delivered on the date on which the Borrower provides notice to the
Administrative Agent that such information has been posted on the Borrower’s
website at the website address listed on the signature pages of such notice, at
xxx.xxx.xxx or at such other website identified in such notice and accessible by
the Lenders without charge; provided that the
Borrower shall deliver paper copies of such financial statements to the
Administrative Agent or any Lender who requests the Borrower to deliver such
paper copies until written notice to cease delivering paper copies is given by
the Administrative Agent or such Lender. The Borrower will be deemed
to have satisfied the requirements of this Section 6.1 if any parent files with
the SEC and provides reports, documents and information of the types otherwise
so required, in each case within the applicable time periods specified by the
applicable rules and regulations of the SEC, and the Borrower is not required to
file such reports, documents and information separately under the applicable
rules and regulations of the SEC (after giving effect to any exemptive relief)
because of the filings by such parent.
6.2 Certificates; Other
Information. Furnish
to the Administrative Agent and each Lender (or, in the case of clause (d), to
the relevant Lender):
(a) concurrently
with the delivery of the financial statements referred to in Section 6.1(a), a
letter, written and signed by the independent certified public accountants
reporting on such financial statements describing the scope of such financial
statements and certifying that such financial statements are presented in an
accurate manner and in accordance with GAAP;
(b) concurrently
with the delivery of any financial statements pursuant to Section 6.1, (i) a
certificate of a Responsible Officer stating that, to the best of each such
Responsible Officer’s knowledge, each Loan Party during such period has observed
or performed all of its covenants and other agreements, and satisfied every
condition contained in this Agreement and the other Loan Documents to which it
is a party to be observed, performed or satisfied by it, and that such
Responsible Officer has obtained no knowledge of any Default or Event of Default
except as specified in such certificate and (ii) in the case of quarterly or
annual financial statements, (x) a Compliance Certificate containing all
information and calculations necessary for determining compliance by each Group
Member with the provisions of this Agreement referred to therein as of the last
day of the fiscal quarter or fiscal year of the Borrower, as the case may be,
and (y) to the extent not previously disclosed to the Administrative Agent, (1)
a description of any change in the jurisdiction of organization of any Loan
Party and the name and jurisdiction of organization of any new Subsidiary and
the percentage of each class of Capital Stock owned by any Loan Party and (2) a
list of any Intellectual Property registrations and applications acquired by any
Loan Party since the date of the most recent report delivered pursuant to this
clause (y) (or, in the case of the first such report so delivered, since the
Closing Date);
(c) as soon
as available, and in any event no later than 45 days after the end of each
fiscal year of the Borrower, a consolidated budget for the following fiscal year
(which shall include the Fleet Financing Forecast for such fiscal year) and, as
soon as available, significant revisions, if any, of such budget with respect to
such fiscal year (the “Budget”), which
Budget shall in each case be accompanied by a certificate of a Responsible
Officer stating that such Budget is based on reasonable estimates, information
and assumptions and that such Responsible Officer has no reason to believe that
such Budget is incorrect or misleading in any material respect, it being
understood
52
that such
Budget is based upon good faith estimates and assumptions believed by management
of the Borrower to be reasonable at the time made, and it being recognized by
the Lenders that such financial information as it relates to future events is
not to be viewed as fact and that actual results during the period or periods
covered by such financial information may differ from Budget by a material
amount;
(d) unless
the Borrower shall at such time have Specified Ratings of at least Ba2 or better
from Xxxxx’x and BB or better from S&P (in each case with a stable or
positive outlook), as soon as available, but in any event not later than ten
Business Days after the end of each calendar month, a financial report setting
forth in comparative detail the Borrower’s financial performance and liquidity
for such calendar month (including rental car financing activity) against the
projected performance and liquidity for such calendar month contained in the
consolidated budget for the fiscal year (including the Fleet Financing Forecast,
it being understood that the financial performance information provided pursuant
to this Section 6.2(e) will be subject to quarterly and year-end adjustments),
substantially in the form set forth in Section 2 of Annex A; and
(e) promptly,
such additional financial and other information as any Lender may from time to
time reasonably request.
6.3 Payment of
Obligations. Pay,
discharge or otherwise satisfy at or before maturity or before they become
delinquent, as the case may be, its obligations and liabilities in respect of
taxes, assessments and governmental charges or levies imposed upon it or upon
its income or profits or in respect of its property, except where the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of the relevant Group Member or except to the extent that
failure to do so could not reasonably be expected to result in a Material
Adverse Effect.
6.4 Maintenance of Existence;
Compliance. (a)(i) Preserve,
renew and keep in full force and effect its organizational existence (provided
that Holdings and any of its Subsidiaries may change its organizational form so
long as such change shall not adversely affect the interests of the Lenders) and
(ii) take all reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of its business, except,
in each case, as otherwise permitted by Section 7.4 and except to the extent
that failure to do so could not reasonably be expected to have a Material
Adverse Effect; and (b) comply with all Contractual Obligations and Requirements
of Law except to the extent that failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
6.5 Maintenance of Property;
Insurance. (a)
Keep all property material to its business in good working order and condition
consistent with industry practices, ordinary wear and tear excepted, except
where the failure to do so could not reasonably be expected to have a Material
Adverse Effect and
(b) maintain with financially sound and reputable insurance companies
insurance on all its material property in amounts and against such risks (but
including in any event, to the extent available on commercially reasonable
terms, public liability, product liability and business interruption) as are
usually insured against in the same general area by companies engaged in the
same or a similar business.
6.6 Inspection of Property;
Books and Records; Discussions. (a) Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities and (b) permit the
Administrative Agent, and after the occurrence and during the continuance of an
Event of Default, representatives of any Lender (in coordination with the
Administrative Agent), to visit and inspect any of its properties and examine
and make abstracts from any of its books and records at any reasonable time and
upon reasonable advance notice, and to discuss the business, operations,
properties and financial
53
and other
condition of the Group Members with officers and employees of the Group Members
and with their independent certified public accountants; provided that a
representative of the Loan Parties shall be permitted to be present for any
discussion with independent certified accountants referred to
above. Notwithstanding Section 10.5, unless any such visit or
inspection is conducted after the occurrence and during the continuance of a
Default or Event of Default, the Borrower shall not be required to pay any costs
or expenses incurred by the Administrative Agent, any Lender or Lender’s
representative in connection with such visit or inspection.
6.7 Notices. Promptly
upon obtaining actual knowledge thereof, give notice to the Administrative Agent
and each Lender of:
(a) the
occurrence of any Default or Event of Default;
(b) any (i)
default or event of default under any Contractual Obligation of any Group Member
or (ii) litigation, investigation or proceeding that may exist at any time
between any Group Member and any Governmental Authority, that in either case, if
not cured or if adversely determined, as the case may be, could reasonably be
expected to have a Material Adverse Effect;
(c) any
litigation or proceeding affecting any Group Member (i) in which the amount
involved is $50,000,000 or more and not covered by insurance, (ii) in which
injunctive or similar relief is sought or (iii) which relates to any Loan
Document;
(d) the
following events, as soon as possible and in any event within 30 days after the
Borrower knows or has reason to know thereof: (i) the occurrence of
any Reportable Event with respect to any Plan, a failure to make any required
contribution to a Plan, the creation of any Lien in favor of the PBGC or a Plan
or any withdrawal from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan or (ii) the institution of proceedings or the taking of any
other action by the PBGC or the Borrower or any Commonly Controlled Entity or
any Multiemployer Plan with respect to the withdrawal from, or the termination,
Reorganization or Insolvency of, any Plan; and
(e) any
development or event that has had or could reasonably be expected to have a
Material Adverse Effect.
Each
notice pursuant to this Section 6.7 shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the relevant Group Member proposes to take with respect
thereto.
6.8 Environmental
Laws. (a)
Comply with, and use commercially reasonable efforts to ensure compliance by all
tenants and subtenants, if any, with, all applicable Environmental Laws, and
obtain and comply with and maintain, and use commercially reasonable efforts to
ensure that all tenants and subtenants obtain and comply with and maintain, any
and all licenses, approvals, binding notifications, registrations or permits
required by applicable Environmental Laws, except where the failure to do so
could not reasonably be expected to have a Material Adverse Effect.
(b) Conduct
and complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental Laws and
promptly comply with all lawful orders and directives of all Governmental
Authorities regarding Environmental Laws, except where the failure to do so
could not reasonably be expected to have a Material Adverse Effect.
54
6.9 Additional Collateral,
etc. (a)
With respect to any property constituting Collateral described in the Guarantee
and Collateral Agreement acquired after the Closing Date by any Loan Party as to
which the Administrative Agent, for the benefit of the Lenders, does not have a
perfected Lien, promptly (i) execute and deliver to the Administrative Agent
such amendments to the Guarantee and Collateral Agreement or such other
documents as the Administrative Agent deems necessary or advisable to grant to
the Administrative Agent, for the benefit of the Lenders, a security interest in
such property and (ii) take all actions necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a perfected first priority
security interest in such property, including the filing of Uniform Commercial
Code financing statements in such jurisdictions as may be required by the
Guarantee and Collateral Agreement or by law or as may be requested by the
Administrative Agent; provided that the
Loan Parties shall not be required to take any such action with respect to any
Intellectual Property acquired after the Closing Date until the earlier of the
date on which (i) the aggregate value of all such Intellectual Property with
respect to which the actions described above have not already been taken shall
be at least $10,000,000 or (ii) the list describing such Intellectual Property
is required to be furnished to the Administrative Agent and each Lender pursuant
to Section 6.2(b).
(b) With
respect to any new Subsidiary (other than a Foreign Subsidiary, an Excluded
Subsidiary, an Excluded Person, a Securitization Entity or any Subsidiary of a
Foreign Subsidiary, Excluded Subsidiary or Securitization Entity) created or
acquired after the Closing Date by any Loan Party, promptly (i) execute and
deliver to the Administrative Agent such amendments to the Guarantee and
Collateral Agreement as the Administrative Agent deems necessary or advisable to
grant to the Administrative Agent, for the benefit of the Lenders, a perfected
first priority security interest in the Capital Stock of such new Subsidiary
that is owned by any Loan Party, (ii) deliver to the Administrative Agent the
certificates representing such Capital Stock, together with undated stock
powers, in blank, executed and delivered by a duly authorized officer of the
relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party
to the Guarantee and Collateral Agreement, (B) to take such actions necessary or
advisable to grant to the Administrative Agent for the benefit of the Lenders a
perfected first priority security interest in the Collateral described in the
Guarantee and Collateral Agreement with respect to such new Subsidiary,
including the filing of Uniform Commercial Code financing statements in such
jurisdictions as may be required by the Guarantee and Collateral Agreement or by
law or as may be requested by the Administrative Agent and (C) to deliver to the
Administrative Agent a certificate of such Subsidiary, substantially in the form
of Exhibit C, with appropriate insertions and attachments, and (iv) if
reasonably requested by the Administrative Agent, deliver to the Administrative
Agent legal opinions relating to the matters described above, which opinions
shall be in form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.
(c) With
respect to any new Foreign Subsidiary created or acquired after the Closing Date
by any Loan Party (other than by any Foreign Subsidiary, an Excluded Subsidiary,
an Excluded Person or a Securitization Entity), promptly (i) execute and deliver
to the Administrative Agent such amendments to the Guarantee and Collateral
Agreement as the Administrative Agent deems necessary or advisable to grant to
the Administrative Agent, for the benefit of the Lenders, a perfected first
priority security interest in a portion of the Capital Stock of such new
Subsidiary that is owned by any such Loan Party (provided that in no event shall
more than 66% of the total outstanding voting Capital Stock of any such new
Subsidiary be required to be so pledged), (ii) deliver to the Administrative
Agent the certificates representing such Capital Stock, together with undated
stock powers, in blank, executed and delivered by a duly authorized officer of
the relevant Group Member, and take such other action as may be necessary or, in
the opinion of the Administrative Agent, desirable to perfect the Administrative
Agent’s security interest therein, and (iii) if reasonably requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent.
55
(d) With
respect to any fee interest or leasehold interest in any real property having a
value (together with improvements thereof) of at least $1,000,000 acquired after
the Second Amendment Effective Date by any Group Member (other than (x) any such
real property subject to a Lien expressly permitted by Section 7.3(h) or 7.3(o)
and (y) real property acquired by any Excluded Subsidiary, Excluded Person or
Foreign Subsidiary), promptly (i) execute and deliver a first priority Mortgage,
in favor of the Administrative Agent, for the benefit of the Lenders, covering
such real property; provided that the
obligation to deliver a Mortgage covering any leasehold property shall be
limited to the use by the applicable Group Member of its commercially reasonable
efforts to obtain any necessary landlord consents or waivers and (ii) in the
case of any real property with a value of $5,000,000 or more, if requested by
the Administrative Agent (x) provide the Lenders with title and extended
coverage insurance covering such real property in an amount at least equal to
the purchase price of such real property (or such other amount as shall be
reasonably specified by the Administrative Agent) and (y) deliver to the
Administrative Agent legal opinions relating to the matters described above,
which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.
SECTION
7. NEGATIVE
COVENANTS
Holdings
and the Borrower hereby jointly and severally agree that, so long as the
Commitments remain in effect, any Letter of Credit remains outstanding or any
Loan or other amount is owing to any Lender or the Administrative Agent
hereunder, each of Holdings and the Borrower shall not, and shall not permit any
of its Subsidiaries to, directly or indirectly:
7.1 Financial Condition
Covenants. (a) Consolidated Leverage
Ratio. Permit the Consolidated Leverage Ratio as at the last
day of any period of four consecutive fiscal quarters of the Borrower ending
with any fiscal quarter set forth below (commencing with the fiscal quarter
ending June 30, 2010) to exceed the ratio set forth below opposite such fiscal
quarter:
|
Fiscal Quarter
|
Consolidated
Leverage Ratio
|
|||
|
June
30, 2010
|
6.25
to 1.00
|
|||
|
September
30, 2010
|
5.75
to 1.00
|
|||
|
December
31, 2010
|
5.50
to 1.00
|
|||
|
March
31, 2011
|
5.50
to 1.00
|
|||
|
June
30, 2011
|
5.25
to 1.00
|
|||
|
September
30, 2011
|
5.00
to 1.00
|
|||
|
December
31, 2011
|
4.75
to 1.00
|
|||
|
March
31, 2012
|
4.75
to 1.00
|
|||
|
June
30, 2012
|
4.75
to 1.00
|
|||
|
September
30, 2012
|
4.50
to 1.00
|
|||
|
December
31, 2012
|
4.50
to 1.00
|
|||
|
March
31, 2013
|
4.50
to 1.00
|
|||
|
June
30, 2013
|
4.50
to 1.00
|
|||
|
September
30, 2013
|
4.25
to 1.00
|
|||
|
December
31, 2013
|
4.25
to 1.00
|
|||
|
March
31, 2014
|
4.25
to 1.00
|
|||
56
(b) Consolidated Interest
Coverage Ratio. Permit the Consolidated Interest Coverage
Ratio for any period of four consecutive fiscal quarters of the Borrower ending
with any fiscal quarter set forth below (commencing with the fiscal quarter
ending June 30, 2010) to be less than the ratio set forth below opposite such
fiscal quarter:
|
Fiscal Quarter
|
Consolidated
Interest Coverage Ratio
|
|
June
30, 2010
|
1.30
to 1.00
|
|
September
30, 2010
|
1.30
to 1.00
|
|
December
31, 2010
|
1.35
to 1.00
|
|
March
31, 2011
|
1.40
to 1.00
|
|
June
30, 2011
|
1.45
to 1.00
|
|
September
30, 2011
|
1.55
to 1.00
|
|
December
31, 2011
|
1.60
to 1.00
|
|
March
31, 2012
|
1.60
to 1.00
|
|
June
30, 2012
|
1.65
to 1.00
|
|
September
30, 2012
|
1.70
to 1.00
|
|
December
31, 2012
|
1.70
to 1.00
|
|
March
31, 2013
|
1.70
to 1.00
|
|
June
30, 2013
|
1.70
to 1.00
|
|
September
30, 2013
|
1.75
to 1.00
|
|
December
31, 2013
|
1.75
to 1.00
|
|
March
31, 2014
|
1.75
to 1.00
|
|
|
7.2 Indebtedness. Create,
issue, incur, assume, become liable in respect of or suffer to exist any
Indebtedness, except:
(a) Indebtedness
of any Loan Party pursuant to any Loan Document;
(b) Indebtedness
of the Borrower to any Subsidiary and of any Subsidiary Guarantor to the
Borrower or any other Subsidiary;
(c) Guarantee
Obligations of the Borrower, Holdings and any Subsidiary of the Borrower in
respect of the Guarantee and Collateral Agreement;
(d) Guarantee
Obligations incurred by the Borrower or any of its Subsidiaries of obligations
of any Subsidiary Guarantor or the Borrower;
(e) Guarantee
Obligations of the Borrower in respect of obligations under the Letter of Credit
Facilities;
(f) Indebtedness
outstanding on the date hereof or required to be incurred pursuant to a
Contractual Obligation in existence on the date hereof (other than AESOP
Indebtedness and Securitization Indebtedness) and listed on Schedule 7.2(f) and
any Permitted Refinancing thereof;
57
(g) Indebtedness
(including, without limitation, Capital Lease Obligations) secured by Liens
permitted by Section 7.3(h) in an aggregate principal amount not to exceed
$100,000,000 at any one time outstanding;
(h) Indebtedness
of the Borrower and Avis Budget Finance in respect of the Senior Unsecured Notes
and any Permitted Refinancing thereof;
(i) unsecured
Guarantee Obligations of Holdings and any Subsidiary of the Borrower in respect
of the Senior Unsecured Notes; provided that each
guarantor under the Senior Unsecured Notes or any Permitted Refinancing thereof
shall be a guarantor of the Obligations pursuant to the Guarantee and Collateral
Agreement or such other agreement as the Administrative Agent may approve in its
reasonable discretion;
(j) AESOP
Indebtedness;
(k) Securitization
Indebtedness;
(l) Recourse
Vehicle Indebtedness;
(m) Indebtedness
incurred in connection with any acquisition by the Borrower or any of its
Subsidiaries of vehicles directly from a manufacturer pursuant to such
manufacturer’s repurchase program; provided that (i)
such Indebtedness is not greater than the net book value of such vehicles and
(ii) such vehicles could not be financed under the AESOP Financing
Program;
(n) Indebtedness
incurred pursuant to terminal rental adjustment clause lease financings of
trucks to be used in the truck rental operations of the Borrower and its
Subsidiaries;
(o) Indebtedness
under any Swap Agreement;
(p) Indebtedness
of any Foreign Subsidiary, Excluded Subsidiary or Securitization Entity to the
Borrower or any Subsidiary Guarantor incurred in the ordinary course of business
or to satisfy the general financing needs of such Foreign Subsidiary, Excluded
Subsidiary or Securitization Entity;
(q) Indebtedness
of any Foreign Subsidiary, Excluded Subsidiary or Securitization Entity to the
Borrower or any Subsidiary Guarantor in an amount not to exceed $50,000,000 at
any one time outstanding;
(r) Indebtedness
of any Foreign Subsidiary, Excluded Subsidiary or Securitization Entity to any
Foreign Subsidiary, Excluded Subsidiary or Securitization Entity;
(s) Guarantee
Obligations incurred by any Foreign Subsidiary, Excluded Subsidiary or
Securitization Entity in respect of Indebtedness of any Foreign Subsidiary,
Excluded Subsidiary or Securitization Entity;
(t) Indebtedness
of any Foreign Subsidiary in an aggregate principal amount not to exceed
$50,000,000 at any one time outstanding and any Permitted Refinancing
thereof;
(u) Indebtedness
of any Person that becomes a Subsidiary pursuant to a Permitted Acquisition or
that is otherwise assumed by the Borrower or any of its Subsidiaries in
connection
58
with a
Permitted Acquisition which is not incurred in contemplation of such Permitted
Acquisition and any Permitted Refinancing thereof;
(v) unsecured
or subordinated Indebtedness of the Borrower, Holdings or any Subsidiary
Guarantor of the Borrower having no scheduled principal payments or prepayments
prior to the Extended Term Loan Maturity Date incurred in connection with
Permitted Acquisitions and any Permitted Refinancing thereof;
(w) additional
Indebtedness of the Borrower or any of its Subsidiaries in an aggregate
principal amount not to exceed $50,000,000 at any one time
outstanding;
(x) Indebtedness
incurred in connection with the financing of any insurance premiums;
and
(y) additional
unsecured or subordinated Indebtedness of the Borrower, Holdings or any
Subsidiary Guarantor having no scheduled principal payments or prepayments
(other than (i) as a result of change of control, asset sale, or issuance of
Capital stock or Indebtedness or (ii) pursuant to other mandatory prepayment
requirements customary for similar Indebtedness after taking into account then
prevailing market conditions, in each case, not otherwise in conflict with the
mandatory prepayment requirements contained in Section 2.11) prior to the
Extended Term Loan Maturity Date and any Permitted Refinancing
thereof;
provided, that if the
Group Member’s action or event meets the criteria of more than one of the types
of Indebtedness described in the clauses above, the Borrower in its sole
discretion may classify such action or event in one or more clauses (including
in part under one such clause and in part under another such
clause).
7.3 Liens. Create,
incur, assume or suffer to exist any Lien upon any of its property, whether now
owned or hereafter acquired, except:
(a) Liens for
taxes, assessments, governmental charges or other similar obligations not yet
due or that are being contested in good faith by appropriate proceedings, provided that
adequate reserves with respect thereto are maintained on the books of the
Borrower or its Subsidiaries, as the case may be, in conformity with
GAAP;
(b) carriers’,
warehousemen’s, mechanics’, landlord’s, materialmen’s, repairmen’s or other like
Liens arising in the ordinary course of business that are not overdue for a
period of more than 60 days or that are being contested in good faith by
appropriate proceedings;
(c) Liens
incidental to the conduct of the Borrower’s business or the ownership of its
assets which were not incurred in connection with the borrowing of money, and
which do not in the aggregate materially detract from the value of its assets or
materially impair the use thereof in the operation of its business;
(d) pledges
or deposits in connection with workers’ compensation, unemployment insurance and
other social security legislation;
(e) pledges
or deposits to secure the performance of bids, trade contracts (other than for
borrowed money), leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
59
(f) easements,
rights-of-way, restrictions, covenants and other similar encumbrances incurred
in the ordinary course of business or of record that, in the aggregate, are not
substantial in amount and that do not in any case materially detract from the
value of the property subject thereto or materially interfere with the ordinary
conduct of the business of the Borrower or any of its Subsidiaries;
(g) Liens in
existence on the date hereof listed on Schedule 7.3(g), securing Indebtedness
permitted by Section 7.2(f), provided that no such
Lien is spread to cover any additional property after the Closing Date and that
the amount of Indebtedness secured thereby is not increased;
(h) Liens
securing Indebtedness of the Borrower or any other Subsidiary incurred pursuant
to Section 7.2(g) to finance the acquisition of fixed or capital assets, provided that (i)
such Liens shall be created substantially simultaneously with the acquisition of
such fixed or capital assets, (ii) such Liens do not at any time encumber any
property other than the property financed by such Indebtedness and (iii) the
amount of Indebtedness secured thereby is not increased;
(i) Liens
created pursuant to the Security Documents;
(j) Liens on
any Related Eligible Assets or arising out of the transfer of Related Eligible
Assets to Securitization Entities; provided that such
transfer is otherwise permitted by the Agreement;
(k) Liens
securing Indebtedness permitted under Section 7.2(j), (k), (l), (m) and
(n);
(l) Liens
securing judgments which do not constitute an Event of Default;
(m) statutory
rights of tenants under leases with respect to which the Borrower or any
Subsidiary is the lessor;
(n) any
interest or title of a lessor under any lease entered into by the Borrower or
any other Subsidiary in the ordinary course of its business and covering only
the assets so leased;
(o) Liens
existing on any property or asset prior to the acquisition thereof by any Group
Member or existing on any property or asset of any Person that becomes a
Subsidiary after the date hereof prior to the time such Person becomes a
Subsidiary; provided that such
Lien is not created in contemplation of or in connection with such acquisition
or such Person becoming a Subsidiary, as the case may be, and such Lien shall
secure only those obligations which it secures on the date of such acquisition
or the date on which such Person becomes a Subsidiary, as the case may be, and
any Permitted Refinancing of such obligations; provided further that no such
Liens shall be permitted to exist on the Capital Stock of any Person that is
required to be a Subsidiary Guarantor hereunder; and
(p) Liens
attaching solely to xxxx xxxxxxx money deposits in connection with any permitted
Investment or Permitted Acquisition;
(q) Liens on
insurance policies and the proceeds thereof securing the financing of the
insurance premiums with respect thereto;
(r) Encumbrances
permitted under Section 7.12 or otherwise imposed pursuant to an agreement that
has been entered into in connection with a Disposition of assets;
and
60
(s) Liens not
otherwise permitted by this Section so long as neither (i) the aggregate
outstanding principal amount of the obligations secured thereby nor (ii) the
aggregate fair market value (determined as of the date such Lien is incurred) of
the assets subject thereto exceeds (as to the Borrower and all Subsidiaries)
$50,000,000 at any one time;
provided, that if the
Group Member’s action or event meets the criteria of more than one of the types
of Liens described in the clauses above, the Borrower in its sole discretion may
classify such action or event in one or more clauses (including in part under
one such clause and in part under another such clause).
7.4 Fundamental
Changes. Enter
into any merger, consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or Dispose of all or
substantially all of its property or business, except that:
(a) any
Subsidiary of the Borrower may be merged or consolidated with or into the
Borrower (provided that the
Borrower shall be the continuing or surviving corporation) or with or into any
Wholly Owned Subsidiary (provided that the
Wholly Owned Subsidiary shall be the continuing or surviving corporation); provided that any
such merger or consolidation of a Subsidiary Guarantor shall only be with or
into the Borrower or another Subsidiary Guarantor;
(b) any
Subsidiary of the Borrower may Dispose of any or all of its assets (i) to the
Borrower or any Wholly Owned Subsidiary (upon voluntary liquidation or
otherwise); provided that any
such Disposition by a Subsidiary Guarantor shall only be to the Borrower or
another Subsidiary Guarantor or (ii) pursuant to a Disposition permitted by
Section 7.5; and
(c) any
Investment expressly permitted by Section 7.7 may be structured as a merger,
consolidation or amalgamation.
7.5 Disposition of
Property. Dispose
of any of its property, whether now owned or hereafter acquired, or, in the case
of any Subsidiary, issue or sell any shares of such Subsidiary’s Capital Stock
to any Person, except:
(a) the
Disposition of obsolete or worn out property in the ordinary course of
business;
(b) the
sale of inventory in the ordinary course of business;
(c) Dispositions
permitted by clause (i) of Section 7.4(b), Investments permitted under Section
7.7 (other than Section 7.7 (m)) and Restricted Payments permitted under Section
7.6;
(d) the sale
or issuance of any Subsidiary’s Capital Stock to the Borrower or any Wholly
Owned Subsidiary; provided that any
sale or issuance of any Subsidiary Guarantor’s Capital Stock shall only be to
the Borrower or another Subsidiary Borrower;
(e) Dispositions
of any Related Eligible Assets (i) in connection with the AESOP Financing
Program, (ii) to any Securitization Entity or (iii) in connection with the
incurrence of any Securitization Indebtedness;
(f) the sale
of the Budget Truck Division for fair market value as determined by the board of
directors of the Borrower;
(g) the
Disposition of other property having a fair market value not to exceed
$200,000,000 in the aggregate for any fiscal year of the Borrower;
61
(h) the
Dispositions listed on Schedule 7.5(h);
(i) Dispositions
of properties subject to condemnation, eminent domain or taking;
(j) leases,
subleases, licenses and sublicenses of real or personal property in the ordinary
course of business;
(k) dispositions
or use of cash and Cash Equivalents in the ordinary course of
business;
(l) the
abandonment, termination or other disposition of intellectual property or
leasehold properties in the ordinary course of business; and
(m) dispositions,
discounts or forgiveness of accounts receivable in connection with the
collection or compromise thereof;
provided that all
Dispositions permitted under paragraphs (f) and (g) of this Section 7.5 shall be
made for fair value and for at least 75% cash consideration.
7.6 Restricted
Payments. Declare
or pay any dividend (other than dividends payable solely in common stock of the
Person making such dividend) on, or make any payment on account of, or set apart
assets for a sinking or other analogous fund for, the purchase, redemption,
defeasance, retirement or other acquisition of, any Capital Stock of any Group
Member, whether now or hereafter outstanding, or make any other distribution in
respect thereof, either directly or indirectly, whether in cash or property or
in obligations of any Group Member (collectively, “Restricted
Payments”), except that:
(a) any
Subsidiary may make Restricted Payments to the Borrower or any Subsidiary
Guarantor; provided, that any
non-Subsidiary Guarantor may make Restricted Payments to any Group
Member;
(b) so
long as no Default or Event of Default shall have occurred and be continuing,
the Borrower may pay dividends to Holdings and Holdings may pay dividends to
Cendant to purchase Cendant common stock or common stock options from present or
former officers or employees of any Group Member upon the death, disability or
termination of employment of such officer or employee;
(c) the
Borrower may make Restricted Payments to Holdings to permit Holdings to (i) pay
corporate overhead expenses incurred in the ordinary course of business and (ii)
pay any taxes that are due and payable by Holdings or the Borrower;
(d) (i) the
Borrower may make Restricted Payments to Holdings to permit Holdings to pay
dividends to any higher tier entity to provide for the payment of (A) Parent
Expenses, (B) Related Taxes and (C) any Taxes that are due and payable by any
Group Member as part of a consolidated group or which have been paid for the
account of any Group Member pursuant to the Tax Sharing Agreement and (ii) so
long as no Default or Event of Default shall have occurred and be continuing,
the Borrower may make Restricted Payments to Holdings to permit Holdings to pay
dividends to any Parent in an aggregate amount not to exceed $40,000,000 plus 50% of
Consolidated Net Income of the Borrower and its Subsidiaries, determined on a
cumulative basis since April 1, 2010, during the term of this
Agreement;
(e) Investments
permitted by Section 7.7; and
62
(f) any
Subsidiary may make Restricted Payments (including in respect of management
fees) to the holders of the Capital Stock of such Subsidiary ratably based on
the respective ownership interests of such holders.
7.7 Investments
. Make
any advance, loan, extension of credit (by way of guaranty or otherwise) or
capital contribution to, or purchase any Capital Stock, bonds, notes, debentures
or other debt securities of, or any assets constituting a business unit of, or
make any other investment in, any other Person (all of the foregoing, “Investments”),
except:
(a) Investments
consisting of extensions of trade credit and Investments received in
satisfaction or partial satisfaction thereof from financially troubled account
debtors and other credits to suppliers in the ordinary course of
business;
(b) Investments
in Cash Equivalents;
(c) Guarantee
Obligations permitted by Section 7.2;
(d) loans and
advances to employees of any Group Member in the ordinary course of business
(including for travel, entertainment and relocation expenses) in an aggregate
amount not to exceed $500,000 in any fiscal year;
(e) Investments
in assets useful in the business of the Borrower and its Subsidiaries made by
the Borrower or any of its Subsidiaries with the proceeds of any Reinvestment
Deferred Amount;
(f) intercompany
Investments by any Group Member in the Borrower or any Person that, prior to
such investment, is a Subsidiary Guarantor;
(g) intercompany
Investments by the Borrower or any Subsidiary Guarantor in any Securitization
Entity, Foreign Subsidiary or Excluded Subsidiary made in the ordinary course of
business or to satisfy the general financing needs of such Securitization
Entity, Foreign Subsidiary or Excluded Subsidiary;
(h) intercompany
Investments by the Borrower or any Subsidiary Guarantor in any Securitization
Entity, Foreign Subsidiary or Excluded Subsidiary in an amount not to exceed
$50,000,000 at any one time outstanding;
(i) intercompany
Investments by any Foreign Subsidiary, Excluded Subsidiary or Securitization
Entity in any Foreign Subsidiary, Excluded Subsidiary or Securitization
Entity;
(j) Restricted
Payments to Cendant permitted by Section 7.6 in the form of loans and
advances;
(k) Investments
listed on Schedule 7.7(k);
(l) Permitted
Acquisitions, provided that the
aggregate amount (or, in the case of consideration consisting of assets, fair
market value) of the consideration paid by the Borrower and its Subsidiaries
(net of acquired cash and Cash Equivalents and excluding consideration in
respect of acquired vehicles as long as (i) the purchase price for such vehicles
does not exceed their fair market value and (ii) such vehicles will be financed
in the Borrower’s normal operation of its business through the AESOP Financing
Program or any other similar financing program, or will be
63
replaced
with vehicles financed through the AESOP Financing Program or any other similar
financing program) shall not exceed (i) $50,000,000 or (ii) $200,000,000 in the
event that after giving pro forma effect to such acquisition, the Consolidated
Leverage Ratio is less than 4.00 to 1.00 as of the most recently ended fiscal
quarter for which financial statements have been delivered hereunder, in each
case, on a cumulative basis for all such acquisitions;
(m)
Investments
consisting of Liens, Indebtedness, fundamental changes, Dispositions, Restricted
Payments permitted under Sections 7.2, 7.3, 7.4, 7.5 or 7.6
respectively;
(n) any
seller-financing or other non-cash consideration received in connection with
Dispositions permitted by Section 7.5;
(o) the
Borrower or any Subsidiary may make Investments to purchase from a minority
shareholder the Capital Stock of such shareholder in a joint venture entity in
which any Group Member owns a majority equity interest (regardless of whether
such a joint venture entity is a Subsidiary); and
(p) in
addition to Investments otherwise expressly permitted by this Section,
Investments by the Borrower or any of its Subsidiaries in an aggregate amount
(valued at cost) not to exceed $50,000,000 during the term of this
Agreement;
provided, that (i) if
the Group Member’s action or event meets the criteria of more than one of the
types of Investments described in the clauses above, the Borrower in its sole
discretion may classify such action or event in one or more clauses (including
in part under one such clause and in part under another such clause) and (ii)
the Borrower and its Subsidiaries may not make any Investment in an Excluded
Person except to the extent permitted by Section 7.7(p).
7.8 Optional Payments and
Modifications of Certain Agreements.
(a) Make or offer to make any optional or voluntary payment,
prepayment, repurchase or redemption of or otherwise optionally or voluntarily
defease or segregate funds with respect to the Indebtedness permitted by Section
7.2(h), (t) or (v); provided that any
such Indebtedness may be repaid, prepaid, repurchased or redeemed (i) in
connection with a Permitted Refinancing or (ii) for consideration (including any
premium paid in connection therewith) in an aggregate amount of up to
$50,000,000 plus
an additional $50,000,000 in the event that after giving pro forma effect
to such prepayment, repurchase or redemption, the Consolidated Leverage Ratio is
less than 4.00 to 1.00, (b) amend, modify, waive or otherwise change, or consent
or agree to any amendment, modification, waiver or other change to, any of the
terms of the Senior Unsecured Notes in a manner materially adverse to the
Lenders or (c) amend, modify, waive or otherwise change, or consent or agree to
any amendment, modification, waiver or other change to, any of the terms of the
Separation Agreement or the Tax Sharing Agreement in a manner materially adverse
to the Lenders, it being understood that an increase of the obligations or
potential liability of Cendant resulting from any such amendment, modification
or other change to the Separation Agreement or Tax Sharing Agreement shall not,
in and of itself, be regarded as materially adverse to the Lenders.
7.9 Transactions with
Affiliates. Enter
into any transaction (other than (i) transactions listed on Schedule 7.9, (ii)
transactions permitted by Section 7.6, (iii) Investments permitted by Section
7.7(d) and (o), (iv) Investments in joint ventures permitted by Section 7.7 and
(v) issuances of Equity Interests, including any servicing agreement, purchase,
sale, lease or exchange of property, the rendering of any service or the payment
of any management, advisory or similar fees, with any Affiliate (other than
Holdings, the Borrower or any Subsidiary) unless such transaction is
(a) otherwise permitted under this Agreement and (b) upon fair and
reasonable terms taken as a whole no less favorable to the relevant Group Member
than it would obtain in a comparable arm’s length transaction with a Person that
is not an Affiliate.
64
7.10 Sales and
Leasebacks. Enter
into any arrangement with any Person providing for the leasing by any Group
Member of real or personal property that has been or is to be sold or
transferred by such Group Member to such Person or to any other Person to whom
funds have been or are to be advanced by such Person on the security of such
property or rental obligations of such Group Member except sale-lease back
transactions relating to Eligible Assets not in excess of $50,000,000 and
without duplication of any such transactions permitted by Section
7.2.
7.11 Changes in Fiscal
Periods. Permit
the fiscal year of the Borrower to end on a day other than December 31 or change
the Borrower’s method of determining fiscal quarters.
7.12 Clauses Restricting
Subsidiary Distributions. Enter
into or suffer to exist or become effective any consensual encumbrance or
restriction on the ability of any Subsidiary of the Borrower (other than a
Securitization Entity) to (a) make Restricted Payments in respect of any Capital
Stock of such Subsidiary held by, or pay any Indebtedness owed to, the Borrower
or any other Subsidiary of the Borrower, (b) make loans or advances to, or other
Investments in, the Borrower or any other Subsidiary of the Borrower or (c)
transfer any of its assets to the Borrower or any other Subsidiary of the
Borrower, except for such encumbrances or restrictions existing under or by
reason of (i) any restrictions existing under the Loan Documents, (ii) any
restrictions with respect to a Subsidiary or assets imposed pursuant to an
agreement that has been entered into in connection with the Disposition of all
or substantially all of the Capital Stock or assets of such Subsidiary or such
assets other than the Senior Unsecured Note Indenture and such other agreements
listed on Schedule 7.12 , (iii) restrictions which are not more restrictive than
those contained in this Agreement contained in any documents governing any
Indebtedness incurred in accordance with the provisions of this Agreement, (iv)
any documents relating to joint ventures to the extent that such joint ventures
are not prohibited hereunder, (v) any agreement in effect at the time a Person
became a Subsidiary or assets are first acquired pursuant to an Investment
permitted under Section 7.7, so long as (x) such agreement was not entered into
solely in contemplation of such Investment and (y) such encumbrance or
restriction applies only to such Person and assets, and (vi)with respect to the
restrictions in clause (c), (x) restrictions or conditions imposed by any
agreement relating to secured debt permitted by this Agreement if such
restrictions or conditions apply only to the property or assets securing such
debt, and (y) customary provisions in leases, licenses or contracts restricting
assignability or subleasing prohibit the granting of Liens on the rights
contained therein; provided that loans made by the Borrower or any Subsidiary to
any other Subsidiary that is a Securitization Entity or a partner or direct
equity owner of a Securitization Entity may be subject to customary repayment
restrictions required by the lenders to such Securitization Entity.
7.13 Lines of
Business. Enter
into any business, either directly or through any Subsidiary, except for those
businesses in which the Borrower and its Subsidiaries are engaged on the date of
this Agreement or that are reasonably related thereto.
7.14 Business Activities of
Holdings. In
the case of Holdings, (i) conduct, transact or otherwise engage in, or commit to
conduct, transact or otherwise engage in, any business or operations other than
those incidental to its ownership of the Capital Stock of the Borrower, (ii)
incur, create, assume or suffer to exist any Indebtedness or other liabilities
or financial obligations, except (w) Guarantee Obligations permitted pursuant to
Section 7.2(c) and 7.2(i), (x) nonconsensual obligations imposed by operation of
law, (y) obligations pursuant to the Loan Documents to which it is a party and
(z) obligations with respect to its Capital Stock, or (iii) own, lease, manage
or otherwise operate any properties or assets (including cash (other than cash
received in connection with dividends made by the Borrower in accordance with
Section 7.6 pending application in the manner contemplated by said Section) and
cash equivalents (other than cash received from capital contributions to, or the
issuance of Capital Stock by Holdings) other than the ownership of shares of
Capital Stock of the Borrower.
65
SECTION
8. EVENTS
OF DEFAULT
If any of
the following events shall occur and be continuing:
(a) the
Borrower or any Subsidiary Borrower shall fail to pay any principal of any Loan
or Reimbursement Obligation when due in accordance with the terms hereof; or the
Borrower or any Subsidiary Borrower shall fail to pay any interest on any Loan
or Reimbursement Obligation, or any other amount payable hereunder or under any
other Loan Document, within five days after any such interest or other amount
becomes due in accordance with the terms hereof; or
(b) any
representation or warranty made or deemed made by any Loan Party herein or in
any other Loan Document or that is contained in any certificate, document or
financial or other statement furnished by it at any time under or in connection
with this Agreement or any such other Loan Document shall prove to have been
false or misleading in any material respect on or as of the date made or
delivered; or
(c) any Loan
Party shall default in the observance or performance of any agreement contained
in clause (i) or (ii) of Section 6.4(a) (with respect to Holdings and the
Borrower only), Section 6.7(a) or Section 7 of this Agreement or Sections
6.4 or 6.6(b) of
the Guarantee and Collateral Agreement; or
(d) any Loan
Party shall default in the observance or performance of any other agreement
contained in this Agreement or any other Loan Document (other than as provided
in paragraphs (a) through (c) of this Section), and such default shall continue
unremedied for a period of 30 days after notice to the Borrower from the
Administrative Agent or the Required Lenders; or
(e) any Group
Member shall (i) default in making any payment of any principal of any
Indebtedness (including any Guarantee Obligation, but excluding the Loans) on
the scheduled or original due date with respect thereto; or (ii) default in
making any payment of any interest on any such Indebtedness beyond the period of
grace, if any, provided in the instrument or agreement under which such
Indebtedness was created; or (iii) default in the observance or performance of
any other agreement or condition relating to any such Indebtedness or contained
in any instrument or agreement evidencing, securing or relating thereto, or any
other event shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or beneficiary of such
Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to
cause, with the giving of notice if required, such Indebtedness to become due
prior to its stated maturity or (in the case of any such Indebtedness
constituting a Guarantee Obligation) to become payable; provided, that a
default, event or condition described in clause (i), (ii) or (iii) of this
paragraph (e) shall not at any time constitute an Event of Default unless, at
such time, one or more defaults, events or conditions of the type described in
clauses (i), (ii) and (iii) of this paragraph (e) shall have occurred and be
continuing with respect to Indebtedness (x) the outstanding principal amount of
which exceeds in the aggregate $50,000,000; and (y) in the case of such
Indebtedness which is Securitization Indebtedness (including AESOP
Indebtedness), (1) an amortization or termination event pursuant to a
securitization program prior to the end of the scheduled term or revolving
period thereunder shall have occurred, (2) the Borrower and its Subsidiaries
shall become unable to finance the purchase of vehicles and (3) the Borrower
shall have failed, by the 45th day after the occurrence of an event referred to
in clause (y)(1) and the expiration of all grace periods applicable thereto, to
either (A) replace such securitization program with an alternative source of
financing having terms not materially adverse to the Lenders from the program
being replaced or having terms acceptable to the Required Lenders, or (B) obtain
a waiver with respect to the occurrence of such event from the applicable
required noteholders or lenders under such
66
securitization
program, and provided that until and unless the event described in clause (y)(3)
shall have occurred, no Event of Default shall exist as a result of the
occurrence of an event referred to in clause (y)(1). Upon the
entering into of any replacement facility referred to in clause (y)(1)(A), the
Borrower shall deliver to the Administrative Agent a written officer’s
certificate providing that the Borrower has sufficient vehicle financing
arrangements available to it to carry-on its business activities consistent, in
all material respects, with its past practices; or
(f) (i) any
Group Member (other than any Subsidiary which is not a Significant Subsidiary)
shall commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator
or other similar official for it or for all or any substantial part of its
assets, or any Group Member (other than any Subsidiary which is not a
Significant Subsidiary) shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against any Group Member any case,
proceeding or other action of a nature referred to in clause (i) above that (A)
results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed or undischarged for a period of 60 days;
or (iii) there shall be commenced against any Group Member any case, proceeding
or other action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of its assets
that results in the entry of an order for any such relief that shall not have
been vacated, discharged, or stayed or bonded pending appeal within 60 days from
the entry thereof; or (iv) any Group Member shall take any action in furtherance
of, or indicating its consent to, approval of, or acquiescence in, any of the
acts set forth in clause (i), (ii), or (iii) above; or (v) any Group Member
shall generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; or
(g) (i) any
Person shall engage in any “prohibited transaction” (as defined in Section 406
of ERISA or Section 4975 of the Code) involving any Plan, (ii) any
“accumulated funding deficiency” (as defined in Section 302 of ERISA), whether
or not waived, shall exist with respect to any Plan or any Lien in favor of the
PBGC or a Plan shall arise on the assets of any Group Member or any Commonly
Controlled Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall be
appointed, to administer or to terminate, any Single Employer Plan, which
Reportable Event or commencement of proceedings or appointment of a trustee is,
in the reasonable opinion of the Required Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any Single
Employer Plan shall terminate for purposes of Title IV of ERISA, (v) any
Group Member or any Commonly Controlled Entity shall, or in the reasonable
opinion of the Required Lenders is likely to, incur any liability in connection
with a withdrawal from, or the Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other event or condition shall occur or exist with respect to a
Plan; and in each case in clauses (i) through (vi) above, such event or
condition, together with all other such events or conditions in this clause (g),
if any, could reasonably be expected to have a Material Adverse Effect;
or
(h) one or
more judgments or decrees shall be entered against any Group Member involving in
the aggregate a liability (to the extent not paid or fully covered by insurance
provided by a carrier not disputing coverage) of $50,000,000 or more, and all
such judgments or decrees shall not have been vacated, discharged, stayed or
bonded pending appeal within 30 days from the entry thereof; or
67
(i) any
material provision of any Security Documents shall cease, for any reason, to be
in full force and effect, or any Loan Party or any Affiliate of any Loan Party
shall so assert, or any Lien created by any of the Security Documents shall
cease to be enforceable and of the same effect and priority purported to be
created thereby with respect to any Collateral, other than Collateral having a
de minimus
value (unless due to action or inaction by the Administrative Agent);
or
(j) the
guarantees contained in Section 2 and Section 3 of the Guarantee and Collateral
Agreement shall cease, for any reason, to be in full force and effect or any
Loan Party or any Affiliate of any Loan Party shall so assert; or
(k) the
occurrence of a Change in Control;
then, and
in any such event, (A) if such event is an Event of Default specified in clause
(i) or (ii) of paragraph (f) above with respect to the Borrower or any
Subsidiary Borrower, automatically the Commitments shall immediately terminate
and the Loans (with accrued interest thereon) and all other amounts owing under
this Agreement and the other Loan Documents (including all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) shall immediately
become due and payable, and (B) if such event is any other Event of Default,
either or both of the following actions may be taken: (i) with the
consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Borrower declare the Revolving Commitments to be terminated forthwith,
whereupon the Revolving Commitments shall immediately terminate; and (ii) with
the consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Borrower, declare the Loans (with accrued interest thereon) and all other
amounts owing under this Agreement and the other Loan Documents (including all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) to be due and payable forthwith, whereupon the same shall
immediately become due and payable. With respect to all Letters of
Credit with respect to which presentment for honor shall not have occurred at
the time of an acceleration pursuant to this paragraph, the Borrower or the
relevant Subsidiary Borrower shall at such time deposit in a cash collateral
account opened by the Administrative Agent an amount equal to the aggregate then
undrawn and unexpired amount of such Letters of Credit. Amounts held
in such cash collateral account shall be applied by the Administrative Agent to
the payment of drafts drawn under such Letters of Credit, and the unused portion
thereof after all such Letters of Credit shall have expired or been fully drawn
upon, if any, shall be applied to repay other obligations of the Borrower and
any Subsidiary Borrower hereunder and under the other Loan
Documents. After all such Letters of Credit shall have expired or
been fully drawn upon, all Reimbursement Obligations shall have been satisfied
and all other obligations of the Borrower and any Subsidiary Borrower hereunder
and under the other Loan Documents shall have been paid in full, the balance, if
any, in such cash collateral account shall be returned to the Borrower or such
Subsidiary Borrower (or such other Person as may be lawfully entitled
thereto). Except as expressly provided above in this Section,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived by the Borrower and each Subsidiary Borrower.
SECTION
9. THE
AGENTS
9.1 Appointment. Each
Lender hereby irrevocably designates and appoints the Administrative Agent as
the agent of such Lender under this Agreement and the other Loan Documents, and
each such Lender irrevocably authorizes the Administrative Agent, in such
capacity, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to the Administrative Agent by the terms
of this Agreement and the other Loan Documents, together with such other powers
as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement, the Administrative
68
Agent
shall not have any duties or responsibilities, except those expressly set forth
herein, or any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
9.2 Delegation of
Duties. The
Administrative Agent may execute any of its duties under this Agreement and the
other Loan Documents by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such
duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys in-fact selected by it with
reasonable care.
9.3 Exculpatory
Provisions. Neither
any Agent nor any of their respective officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with
this Agreement or any other Loan Document (except to the extent that any of the
foregoing are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from its or such Person’s own gross
negligence or willful misconduct) or (ii) responsible in any manner to any of
the Lenders for any recitals, statements, representations or warranties made by
any Loan Party or any officer thereof contained in this Agreement or any other
Loan Document or in any certificate, report, statement or other document
referred to or provided for in, or received by the Agents under or in connection
with, this Agreement or any other Loan Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or for any failure of any Loan Party a party thereto to
perform its obligations hereunder or thereunder. The Agents shall not
be under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of any Loan Party.
9.4 Reliance by Administrative
Agent. The
Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any instrument, writing, resolution, notice, consent, certificate,
affidavit, letter, telecopy, telex or teletype message, e-mail, statement, order
or other document or conversation believed by it to be genuine and correct and
to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel (including counsel to Holdings or the
Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the
payee of any Note as the owner thereof for all purposes unless a written notice
of assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully
justified in failing or refusing to take any action under this Agreement or any
other Loan Document unless it shall first receive such advice or concurrence of
the Required Lenders (or, if so specified by this Agreement, all Lenders) as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense that may be incurred by it by
reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Loan Documents in
accordance with a request of the Required Lenders (or, if so specified by this
Agreement, all Lenders), and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future holders of
the Loans.
9.5 Notice of
Default. The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default unless the Administrative Agent
has received notice from a Lender, Holdings, the Borrower or any Subsidiary
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a “notice of default”. In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof to the Lenders. The Administrative
Agent shall take such action with respect to such Default or Event of Default as
shall be reasonably directed by the Required Lenders (or, if so specified by
this
69
Agreement,
all Lenders); provided that unless
and until the Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the
Lenders.
9.6 Non-Reliance on Agents and
Other Lenders. Each
Lender expressly acknowledges that neither the Agents nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates have made any representations or warranties to it and that no act by
any Agent hereafter taken, including any review of the affairs of a Loan Party
or any affiliate of a Loan Party, shall be deemed to constitute any
representation or warranty by any Agent to any Lender. Each Lender
represents to the Agents that it has, independently and without reliance upon
any Agent or any other Lender, and based on such documents and information as it
has deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their affiliates and made its own
decision to make its Loans hereunder and enter into this
Agreement. Each Lender also represents that it will, independently
and without reliance upon any Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Loan Parties and their affiliates. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of any Loan Party or any affiliate of
a Loan Party that may come into the possession of the Administrative Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
9.7 Indemnification. The
Lenders agree to indemnify each Agent in its capacity as such (to the extent not
reimbursed by Holdings, the Borrower or any Subsidiary Borrower and without
limiting the obligation of Holdings, the Borrower or any Subsidiary Borrower to
do so), ratably according to their respective Aggregate Exposure Percentages in
effect on the date on which indemnification is sought under this Section (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with such Aggregate Exposure Percentages immediately prior to such date), from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever that may at any time (whether before or after the payment of the
Loans) be imposed on, incurred by or asserted against such Agent in any way
relating to or arising out of, the Commitments, this Agreement, any of the other
Loan Documents or any documents contemplated by or referred to herein or therein
or the transactions contemplated hereby or thereby or any action taken or
omitted by such Agent under or in connection with any of the foregoing; provided that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements that are found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted from such Agent’s gross
negligence or willful misconduct. The agreements in this Section
shall survive the payment of the Loans and all other amounts payable
hereunder.
9.8 Agent in Its Individual
Capacity. Each
Agent and its affiliates may make loans to, accept deposits from and generally
engage in any kind of business with any Loan Party as though such Agent were not
an Agent. With respect to its Loans made or renewed by it and with
respect to any Letter of Credit issued or participated in by it, each Agent
shall have the same rights and powers under this Agreement and the other Loan
Documents as any Lender and may exercise the same as though it were not an
Agent, and the terms “Lender” and “Lenders” shall include each Agent in its
individual capacity.
70
9.9 Successor Administrative
Agent. The
Administrative Agent may resign as Administrative Agent upon 10 days’ notice to
the Lenders and the Borrower. If the Administrative Agent shall
resign as Administrative Agent under this Agreement and the other Loan
Documents, then the Required Lenders shall appoint from among the Lenders a
successor agent for the Lenders, which successor agent shall (unless an Event of
Default under Section 8(a) or Section 8(f) with respect to the Borrower shall
have occurred and be continuing) be subject to approval by the Borrower (which
approval shall not be unreasonably withheld or delayed), whereupon such
successor agent shall succeed to the rights, powers and duties of the
Administrative Agent, and the term “Administrative Agent” shall mean such
successor agent effective upon such appointment and approval, and the former
Administrative Agent’s rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. If no successor agent has accepted appointment
as Administrative Agent by the date that is 10 days following a retiring
Administrative Agent’s notice of resignation, the retiring Administrative Agent
may, on behalf of the Lenders and with the consent of the Borrower (such consent
not to be unreasonably withheld), appoint a successor Administrative Agent,
which shall be a commercial bank organized or licensed under the laws of the
United States of America or of any State thereof and having a combined capital
and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the 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 as Administrative Agent, the provisions of
this Section 9 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under this Agreement and the
other Loan Documents.
9.10 Co-Documentation Agent,
Documentation Agent and Syndication Agent. Neither
of the Co-Documentation Agent, the Documentation Agents nor the Syndication
Agent shall have any duties or responsibilities hereunder in its capacity as
such.
SECTION
10. MISCELLANEOUS
10.1 Amendments and
Waivers. (a) Neither
this Agreement, any other Loan Document, nor any terms hereof or thereof may be
amended, supplemented or modified except in accordance with the provisions of
this Section 10.1. The Required Lenders and each Loan Party party to
the relevant Loan Document may, or, with the written consent of the Required
Lenders, the Administrative Agent and each Loan Party party to the relevant Loan
Document may, from time to time, (i) enter into written amendments, supplements
or modifications hereto and to the other Loan Documents for the purpose of
adding any provisions to this Agreement or the other Loan Documents or changing
in any manner the rights of the Lenders or of the Loan Parties hereunder or
thereunder or (ii) waive, on such terms and conditions as the Required Lenders
or the Administrative Agent, as the case may be, may specify in such instrument,
any of the requirements of this Agreement or the other Loan Documents or any
Default or Event of Default and its consequences; provided, however, that no such
waiver and no such amendment, supplement or modification shall (A) forgive any
principal amount or extend the final scheduled date of maturity of any Loan or
any Reimbursement Obligation or extend the scheduled date of any amortization
payment in respect of any Term Loan (for the purpose of clarity each of the
foregoing not to include any waiver of a prepayment), reduce the stated rate of
any interest or fee payable hereunder (except (1) in connection with the waiver
of applicability of any post-default increase in interest rates (which waiver
shall be effective with the consent of the Majority Facility Lenders of each
adversely affected Facility) and (2) that any amendment or modification of
defined terms used in the financial covenants in this Agreement shall not
constitute a reduction in the rate of interest or fees for purposes of this
clause (A)) or extend the scheduled date of any payment thereof, or increase the
amount or extend the expiration date of any Lender’s Revolving Commitment, in
each case without the written consent of each Lender directly affected thereby;
(B) eliminate or reduce the voting rights of any Lender under this Section 10.1
without the written consent
71
of such
Lender; (C) reduce any percentage specified in the definition of Required
Lenders, consent to the assignment or transfer by the Borrower or any Subsidiary
Borrower of any of its rights and obligations under this Agreement and the other
Loan Documents, release all or substantially all of the Collateral or release
all or substantially all of the Subsidiary Guarantors from their obligations
under the Guarantee and Collateral Agreement except as otherwise provided in the
Loan Documents, in each case without the written consent of all Lenders;
(D) amend, modify or waive any provision of Section 2.11 or 2.17 without
the written consent of the Majority Facility Lenders in respect of each Facility
adversely affected thereby; (E) reduce the percentage specified in the
definition of Majority Facility Lenders with respect to any Facility without the
written consent of all Lenders under such Facility; (F) after the Closing Date,
amend, modify or waive any provision of Section 5.2 without the written consent
of the Majority Facility Lenders with respect of the Revolving Facility, (G)
amend, modify or waive any provision of Section 9 without the written consent of
the Administrative Agent; (H) amend, modify or waive any provision of Section
2.6 or 2.7 without the written consent of the Swingline Lender; or (I) amend,
modify or waive any provision of Section 3 without the written consent of the
Issuing Lender. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall be binding
upon the Loan Parties, the Lenders, the Administrative Agent and all future
holders of the Loans. In the case of any waiver, the Loan Parties,
the Lenders and the Administrative Agent shall be restored to their former
position and rights hereunder and under the other Loan Documents, and any
Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon.
(b) Notwithstanding
the foregoing, this Agreement may be amended with the written consent of the
Administrative Agent, the Borrower and each of the Lenders providing the
relevant Replacement Term Loans (as defined below) to permit the refinancing,
replacement or modification of all outstanding Term Loans (“Replaced Term Loans”)
with a replacement term loan tranche hereunder (“Replacement Term
Loans”), provided that (i) the
aggregate principal amount of such Replacement Term Loans shall not exceed the
aggregate principal amount of such Replaced Term Loans, (ii) the Applicable
Margin for such Replacement Term Loans shall not be higher than the Applicable
Margin for such Replaced Term Loans and (iii) the weighted average life to
maturity of such Replacement Term Loans shall not be shorter than the weighted
average life to maturity of such Replaced Term Loans at the time of such
refinancing.
(c) In
addition, notwithstanding the foregoing, this Agreement may be amended without
consent of the Lenders, so long as no Default or Event of Default shall have
occurred and be continuing, as follows:
(i) to
designate any Domestic Subsidiary of the Borrower as a Domestic Subsidiary
Borrower under the Revolving Facility upon (A) ten Business Days prior notice to
the Lenders (such notice to contain the name, primary business address and
taxpayer identification number of such Subsidiary), (B) the execution and
delivery by the Borrower, such Subsidiary and the Administrative Agent of a
Joinder Agreement, substantially in the form of Exhibit G (a “Joinder Agreement”),
providing for such Subsidiary to become a Subsidiary Borrower, (C) the agreement
and acknowledgment by the Borrower and each other Subsidiary Borrower that the
Guarantee and Collateral Agreement covers the Obligations of such Subsidiary and
(D) the delivery to the Administrative Agent of (1) corporate or other
applicable resolutions, other corporate or other applicable documents,
certificates and legal opinions in respect of such Subsidiary reasonably
equivalent to comparable documents delivered on the Closing Date and (2) such
other documents with respect thereto as the Administrative Agent shall
reasonably request; and
72
(ii) to remove any
Subsidiary as a Subsidiary Borrower upon execution and delivery by the Borrower
to the Administrative Agent of a written notification to such effect and
repayment in full of all Loans made to such Subsidiary Borrower, cash
collateralization of all L/C Obligations in respect of any Letters of Credit
issued for the account of such Subsidiary Borrower and repayment in full of all
other amounts owing by such Subsidiary Borrower under this Agreement and the
other Loan Documents (it being agreed that any such repayment shall be in
accordance with the other terms of this Agreement).
10.2 Notices. All
notices, requests and demands to or upon the respective parties hereto to be
effective shall be in writing (including by telecopy or electronic
transmission), and, unless otherwise expressly provided herein, shall be deemed
to have been duly given or made when delivered, or three Business Days after
being deposited in the mail, postage prepaid, or, in the case of telecopy notice
or electronic transmission, when received, addressed as follows in the case of
Holdings, the Borrower and the Administrative Agent, and as set forth in an
administrative questionnaire delivered to the Administrative Agent in the case
of the Lenders, or to such other address as may be hereafter notified by the
respective parties hereto:
|
Holdings:
|
Avis
Budget Holdings, LLC
|
|
0
Xxxxxx Xxxxx
Xxxxxxxxxx,
Xxx Xxxxxx 00000
Attention: Xxxxx
X. Xxxxxxx
|
|
|
Telecopy: (000)
000-0000
|
|
|
Telephone: (000)
000-0000
|
|
|
Borrower:
|
Avis
Budget Car Rental, LLC
|
|
0
Xxxxxx Xxxxx
Xxxxxxxxxx,
Xxx Xxxxxx 00000
Attention: Xxxxx
X. Xxxxxxx
|
|
|
Telecopy: (000)
000-0000
|
|
|
Telephone: (000)
000-0000
|
|
|
Administrative
Agent:
|
JPMorgan
Chase Bank, N.A.
0000
Xxxxxx Xxxxxx
00xx
Xxxxx
Xxxxxxx,
Xxxxx 00000
|
|
Attn:
Xxxx X Xxxxx
Telecopy:
(000) 000-0000
Telephone:
(000) 000-0000
|
|
|
with a copy to:
|
JPMorgan
Chase Bank, N.A.
000
Xxxxxxx Xxxxxx
Xxxxx
00
Xxx
Xxxx, XX 00000
Attention: Xxxxxx
Xxxxxx
Telecopy: 000-000-0000
Telephone:
000-000-0000
|
provided that any
notice, request or demand to or upon the Administrative Agent or the Lenders
shall not be effective until received.
73
Notices
and other communications to the Lenders hereunder may be delivered or furnished
by electronic communications pursuant to procedures approved by the
Administrative Agent; provided that the
foregoing shall not apply to notices pursuant to Section 2 unless otherwise
agreed by the Administrative Agent and the applicable Lender. The
Administrative Agent or the Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or
communications.
10.3 No Waiver; Cumulative
Remedies. No
failure to exercise and no delay in exercising, on the part of the
Administrative Agent or any Lender, any right, remedy, power or privilege
hereunder or under the other Loan Documents shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
10.4 Survival of Representations
and Warranties. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans and other extensions of credit
hereunder.
10.5 Payment of Expenses and
Taxes. The
Borrower agrees (a) to pay or reimburse the Administrative Agent for all its
reasonable out-of-pocket costs and expenses incurred in connection with the
development, preparation and execution of, and any amendment, supplement or
modification to, this Agreement and the other Loan Documents and any other
documents prepared in connection herewith or therewith, and the consummation and
administration of the transactions contemplated hereby and thereby, including
the reasonable fees and disbursements of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP and
filing and recording fees and expenses, with statements with respect to the
foregoing to be submitted to the Borrower prior to the Closing Date (in the case
of amounts to be paid on the Closing Date) and from time to time thereafter on a
quarterly basis or such other periodic basis as the Administrative Agent shall
deem appropriate, (b) to pay or reimburse each Lender and the Administrative
Agent for all its reasonable out-of-pocket costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the other Loan Documents and any such other documents, including the
fees and disbursements of counsel to the Lenders and of counsel to the
Administrative Agent; provided, that the
Borrower shall not be liable for the fees and disbursements of more than one
separate firm for the Lenders (unless there shall exist an actual conflict of
interest among the Lenders) in connection with any one action or any separate
but substantially similar or related actions in the same jurisdiction, nor shall
the Borrower be liable for any settlement or extra-judicial resolution of claims
without the Borrower’s written consent, (c) to pay, indemnify, and hold each
Lender and the Administrative Agent harmless from, any and all recording and
filing fees and any and all liabilities with respect to, or resulting from any
delay in paying, stamp, excise and similar taxes, if any, that may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, the other Loan Documents and any such other
documents, and (d) to pay, indemnify, and hold each Lender and the
Administrative Agent and their respective officers, directors, employees,
affiliates, agents and controlling persons (each, an “Indemnitee”) harmless
from and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever (other than with respect to taxes, which shall be
governed exclusively by Section 2.19) with respect
to the execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents and any such other documents, including any
of the foregoing relating to the use of proceeds of the Loans or the violation
of, noncompliance with or liability under, any Environmental Law applicable to
the operations of any Group Member or any of the
74
Properties
and the reasonable fees and expenses of legal counsel in connection with claims,
actions or proceedings by any Indemnitee against any Loan Party under any Loan
Document (all the foregoing in this clause (d), collectively, the “Indemnified
Liabilities”), provided, that the
Borrower shall have no obligation hereunder to any Indemnitee with respect to
Indemnified Liabilities to the extent such Indemnified Liabilities are found by
a final and nonappealable decision of a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of such Indemnitee;
provided further, that that
the Borrower shall not be liable for the fees and disbursements of more than one
separate firm for any Indemnitees (unless there shall exist an actual conflict
of interest among such Indemnitees) in connection with any one action or any
separate but substantially similar or related actions in the same jurisdiction,
nor shall the Borrower be liable for any settlement or extra-judicial resolution
of such Indemnitees’ claims without the Borrower’s written
consent. Without limiting the foregoing, and to the extent permitted
by applicable law, the Borrower agrees not to assert and to cause its
Subsidiaries not to assert, and hereby waives and agrees to cause its
Subsidiaries to waive, all rights for contribution or any other rights of
recovery with respect to all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature, under or
related to Environmental Laws, that any of them might have by statute or
otherwise against any Indemnitee. All amounts due under this Section
10.5 shall be payable not later than 10 days after written demand
therefor. Statements payable by the Borrower pursuant to this Section
10.5 shall be submitted to Xxxxx X. Xxxxxxx (Telephone No. 000-000-0000)
(Telecopy No. 973-496-5080), at the address of the Borrower set forth in
Section 10.2, or to such other Person or address as may be hereafter designated
by the Borrower in a written notice to the Administrative Agent. The
agreements in this Section 10.5 shall survive repayment of the Loans and all
other amounts payable hereunder.
10.6 Successors and Assigns;
Participations and Assignments. (a) The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted hereby
(including any affiliate of the Issuing Lender that issues any Letter of
Credit), except that (i) the Borrower may not assign or otherwise transfer any
of its rights or obligations hereunder without the prior written consent of each
Lender (and any attempted assignment or transfer by the Borrower without such
consent shall be null and void) and (ii) no Lender may assign or otherwise
transfer its rights or obligations hereunder except in accordance with this
Section.
(b)(i) Subject to the
conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or
more assignees (each, an “Assignee”) all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitments and the Loans at the time owing to it) with the prior
written consent of:
(A) the Borrower (such consent not to
be unreasonably withheld), provided that no
consent of the Borrower shall be required for an assignment to a Lender, an
affiliate of a Lender, an Approved Fund (as defined below) or, if an Event of
Default under Section 8(a) or (f) has occurred and is continuing, any other
Person; and
(B) the Administrative Agent,
provided that
no consent of the Administrative Agent shall be required for an assignment of
all or any portion of a Term Loan to a Lender, an affiliate of a Lender or an
Approved Fund.
(C) the Issuing Lender, provided that no
consent of the Issuing Lender shall be required for an assignment of all or any
portion of a Term Loan or Term Commitment.
(ii) Assignments shall be subject to
the following additional conditions:
75
(A) except in the case of an assignment
to a Lender, an affiliate of a Lender or an Approved Fund or an assignment of
the entire remaining amount of the assigning Lender’s Commitments or Loans under
any Facility, the amount of the Commitments or Loans of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Administrative
Agent) shall not be less than, in the case of the Revolving Facility, $5,000,000
or, in the case of the Term Facility, $1,000,000 unless each of the Borrower and
the Administrative Agent otherwise consent, provided that (1) no
such consent of the Borrower shall be required if an Event of Default under
Section 8(a) or (f) has occurred and is continuing and (2) such amounts shall be
aggregated in respect of each Lender and its affiliates or Approved Funds, if
any;
(B) the parties to each assignment
shall execute and deliver to the Administrative Agent an Assignment and
Assumption, together with a processing and recordation fee of $3,500;
and
(C) the Assignee, if it shall not
be a Lender, shall deliver to the Administrative Agent an administrative
questionnaire.
For the
purposes of this Section 10.6, “Approved Fund” means
any Person (other than a natural person) that is engaged in making, purchasing,
holding or investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or managed by (a) a
Lender, (b) an affiliate of a Lender or (c) an entity or an affiliate of an
entity that administers or manages a Lender.
(iii) Subject to acceptance and
recording thereof pursuant to paragraph (b)(iv) below, from and after the
effective date specified in each Assignment and Assumption the Assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.18, 2.19, 2.20 and
10.5). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 10.6
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (c) of
this Section.
(iv) The Administrative
Agent, acting for this purpose as an agent of the Borrower, shall maintain at
one of its offices a copy of each Assignment and Assumption delivered to it and
a register for the recordation of the names and addresses of the Lenders, and
the Commitments of, and principal amount of and interest on the Loans and L/C
Obligations owing to, each Lender pursuant to the terms hereof from time to time
(the “Register”). The
entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent, the Issuing Lender and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the
Borrower, the Issuing Lender and any Lender, at any reasonable time and from
time to time upon reasonable prior notice.
(v) Upon its receipt of a
duly completed Assignment and Assumption executed by an assigning Lender and an
Assignee, the Assignee’s completed administrative questionnaire (unless the
Assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written consent to
such assignment required by paragraph (b) of this Section, the Administrative
Agent shall accept such Assignment and Assumption and record the
76
information
contained therein in the Register. No assignment shall be effective
for purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.
(c)(i) Any Lender may,
without the consent of the Borrower or the Administrative Agent, sell
participations to one or more banks or other entities (a “Participant”) in all
or a portion of such Lender’s rights and obligations under this Agreement
(including all or a portion of its Commitments and the Loans owing to it); provided that
(A) such Lender’s obligations under this Agreement shall remain unchanged,
(B) such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations and (C) the Borrower, the
Administrative Agent, the Issuing Lender and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender’s
rights and obligations under this Agreement. Any agreement pursuant
to which a Lender sells such a participation shall provide that such Lender
shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver that (1) requires
the consent of each Lender directly affected thereby pursuant to the proviso to
the second sentence of Section 10.1 and (2) directly affects such
Participant. Subject to paragraph (c)(ii) of this Section, the
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.18, 2.19 and 2.20 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this
Section. To the extent permitted by law, and subject to paragraph
(c)(ii) of this Section, each Participant also shall be entitled to the benefits
of Section 10.7(b) as though it were a Lender, provided such Participant
shall be subject to Section 10.7(a) as though it were a Lender.
(ii) A Participant shall not
be entitled to receive any greater payment under Section 2.18 or 2.19 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant. A Participant shall not be
entitled to receive any funds directly from the Borrower in respect of Sections
2.18, 2.19, 2.20 or 10.7 unless such Participant shall have provided to
Administrative Agent, acting for this purpose as an agent of the Borrower, such
information as is required to be recorded in the Register pursuant to paragraph
(b)(iv) above as if such Participant were a Lender. Any Participant
that is a Non-U.S. Lender shall not be entitled to the benefits of
Section 2.19 unless such Participant complies with Section 2.19(d) as
though it were a Lender.
(d) Any Lender may at any
time pledge or assign a security interest in all or any portion of its rights
under this Agreement to secure obligations of such Lender, including any pledge
or assignment to secure obligations to a Federal Reserve Bank, and this Section
shall not apply to any such pledge or assignment of a security interest; provided that no such
pledge or assignment of a security interest shall release a Lender from any of
its obligations hereunder or substitute any such pledgee or Assignee for such
Lender as a party hereto.
(e) The
Borrower, upon receipt of written notice from the relevant Lender, agrees to
issue Notes to any Lender requiring Notes to facilitate transactions of the type
described in paragraph (d) above.
(f) Notwithstanding
the foregoing, any Conduit Lender may assign any or all of the Loans it may have
funded hereunder to its designating Lender without the consent of the Borrower
or the Administrative Agent and without regard to the limitations set forth in
Section 10.6(b). Each of Holdings, the Borrower, each Subsidiary
Borrower, each Lender and the Administrative Agent hereby confirms that it will
not institute against a Conduit Lender or join any other Person in instituting
against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceeding under any state bankruptcy or similar law, for one
year and one day after the payment in full of the latest maturing commercial
paper note issued by such Conduit Lender; provided, however,
that each Lender designating any Conduit Lender hereby agrees to indemnify, save
and hold harmless each other party hereto for any
77
loss,
cost, damage or expense arising out of its inability to institute such a
proceeding against such Conduit Lender during such period of
forbearance.
10.7 Adjustments;
Set-off. (a)
Except to the extent that this Agreement expressly provides for payments to be
allocated to a particular Lender or to the Lenders under a particular Facility,
if any Lender (a “Benefitted Lender”)
shall, at any time after the Loans and other amounts payable hereunder shall
immediately become due and payable pursuant to Section 8, receive any payment of
all or part of the Obligations owing to it, or receive any collateral in respect
thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in Section 8(f), or otherwise), in a
greater proportion than any such payment to or collateral received by any other
Lender, if any, in respect of the Obligations owing to such other Lender, such
Benefitted Lender shall purchase for cash from the other Lenders a participating
interest in such portion of the Obligations owing to each such other Lender, or
shall provide such other Lenders with the benefits of any such collateral, as
shall be necessary to cause such Benefitted Lender to share the excess payment
or benefits of such collateral ratably with each of the Lenders; provided, however, that if all
or any portion of such excess payment or benefits is thereafter recovered from
such Benefitted Lender, such purchase shall be rescinded, and the purchase price
and benefits returned, to the extent of such recovery, but without
interest.
(b) In
addition to any rights and remedies of the Lenders provided by law, each Lender
shall have the right, without prior notice to Holdings, the Borrower or any
Subsidiary Borrower, any such notice being expressly waived by Holdings, the
Borrower and each Subsidiary Borrower to the extent permitted by applicable law,
upon any amount becoming due and payable by Holdings, the Borrower or any
Subsidiary Borrower hereunder (whether at the stated maturity, by acceleration
or otherwise), to set off and appropriate and apply against such amount any and
all deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of Holdings, the Borrower or such
Subsidiary Borrower, as the case may be. Each Lender agrees promptly
to notify the Borrower and the Administrative Agent after any such setoff and
application made by such Lender, provided that the
failure to give such notice shall not affect the validity of such setoff and
application.
10.8 Counterparts. This
Agreement may be executed by one or more of the parties to this Agreement on any
number of separate counterparts, and all of said counterparts taken together
shall be deemed to constitute one and the same instrument. Delivery
of an executed signature page of this Agreement by facsimile or other electronic
transmission shall be effective as delivery of a manually executed counterpart
hereof. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Borrower and the Administrative
Agent.
10.9 Severability. Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.10 Integration. This
Agreement and the other Loan Documents represent the entire agreement of
Holdings, the Borrower, the Administrative Agent and the Lenders with respect to
the subject matter hereof and thereof, and there are no promises, undertakings,
representations or warranties by the Administrative Agent or any Lender relative
to the subject matter hereof not expressly set forth or referred to herein or in
the other Loan Documents.
78
10.11 GOVERNING
LAW. THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF NEW YORK.
10.12 Submission To Jurisdiction;
Waivers. Each
of the Agents, Lenders, Holdings, the Borrower and the Subsidiary Borrowers
hereby irrevocably and unconditionally:
(a) submits
for itself and its property in any legal action or proceeding relating to this
Agreement and the other Loan Documents to which it is a party, or for
recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New York, the
courts of the United States for the Southern District of New York, and
appellate courts from any thereof;
(b) consents
that any such action or proceeding may be brought in such courts and waives any
objection that it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees
that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to Holdings, the Borrower or the
relevant Subsidiary Borrower, as the case may be, at its address set forth in
Section 10.2 or at such other address of which the Administrative Agent shall
have been notified pursuant thereto;
(d) agrees
that nothing herein shall affect the right to effect service of process in any
other manner permitted by law or shall limit the right to xxx in any other
jurisdiction; and
(e) waives,
to the maximum extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this Section any
special, exemplary, punitive or consequential damages.
10.13 Judgment. The
obligations of the Borrower or any Subsidiary Borrower in respect of this
Agreement and the other Loan Documents due to any party hereto shall,
notwithstanding any judgment in a currency (the “judgment currency”)
other than the currency in which the sum originally due to such party is
denominated (the “original currency”),
be discharged only to the extent that on the Business Day following receipt by
such party of any sum adjudged to be so due in the judgment currency such party
may in accordance with normal banking procedures purchase the original currency
with the judgment currency; if the amount of the original currency so purchased
is less than the sum originally due under such judgment to such party in the
original currency, the Borrower or such Subsidiary Borrower, as the case may be,
agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify such party against such loss, and if the amount of the original
currency so purchased exceeds the sum originally due to any party to this
Agreement, such party agrees to remit to the Borrower such
excess. The provisions of this Section 10.13 shall survive the
termination of this Agreement and payment of the obligations of the Borrower and
the Subsidiary Borrowers under this Agreement and the other Loan
Documents.
10.14 Acknowledgements. Each
of Holdings, the Borrower and the Subsidiary Borrowers hereby acknowledges
that:
(a) it has
been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Loan Documents;
79
(b) neither
the Administrative Agent nor any Lender has any fiduciary relationship with or
duty to Holdings, the Borrower or any Subsidiary Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between Administrative Agent and Lenders, on one hand, and
Holdings, the Borrower or any Subsidiary Borrower, on the other hand, in
connection herewith or therewith is solely that of debtor and creditor;
and
(c) no
joint venture is created hereby or by the other Loan Documents or otherwise
exists by virtue of the transactions contemplated hereby among the Lenders or
among Holdings, the Borrower or any Subsidiary Borrower and the
Lenders.
10.15 Releases of Guarantees and
Liens. (a)
Notwithstanding anything to the contrary contained herein or in any other Loan
Document, the Administrative Agent is hereby irrevocably authorized by each
Lender (without requirement of notice to or consent of any Lender except as
expressly required by Section 10.1) to take any action requested by the Borrower
having the effect of releasing any Collateral or guarantee obligations (i) to
the extent necessary to permit consummation of any transaction not prohibited by
any Loan Document or that has been consented to in accordance with Section 10.1
or (ii) under the circumstances described in paragraph (b) below.
(b) At
such time as the Loans, the Reimbursement Obligations and the other obligations
under the Loan Documents (other than obligations under or in respect of
Specified Swap Agreements) shall have been paid in full, the Commitments have
been terminated and no Letters of Credit shall be outstanding (or such Letters
of Credit are Collateralized), the Collateral shall be released from the Liens
created by the Security Documents, and the Security Documents and all
obligations (other than those expressly stated to survive such termination) of
the Administrative Agent and each Loan Party under the Security Documents shall
terminate, all without delivery of any instrument or performance of any act by
any Person.
10.16 Confidentiality. Each
of the Administrative Agent and each Lender agrees to keep confidential all
non-public information provided to it by any Loan Party, the Administrative
Agent or any Lender pursuant to or in connection with this Agreement that is
designated by the provider thereof as confidential; provided that nothing
herein shall prevent the Administrative Agent or any Lender from disclosing any
such information (a) to the Administrative Agent, any other Lender or any
affiliate thereof, (b) subject to an agreement to comply with the provisions of
this Section, to any actual or prospective Transferee or any direct or indirect
counterparty to any Swap Agreement (or any professional advisor to such
counterparty), (c) to its employees, directors, agents, attorneys, accountants
and other professional advisors or those of any of its affiliates for performing
the purposes of a Loan Document, (d) upon the request or demand of any
Governmental Authority, (e) in response to any order of any court or other
Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, after notice to the Borrower if reasonably feasible, (f) if
requested or required to do so in connection with any litigation or similar
proceeding, after notice to the Borrower if reasonably feasible, (g) that has
been publicly disclosed, (h) to the National Association of Insurance
Commissioners or any similar organization or any nationally recognized rating
agency that requires access to information about a Lender’s investment portfolio
in connection with ratings issued with respect to such Lender, or (i) in
connection with the exercise of any remedy hereunder or under any other Loan
Document.
10.17 WAIVERS OF JURY
TRIAL. HOLDINGS,
THE BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN.
80
10.18 USA Patriot
Act. Each
Lender hereby notifies Holdings and the Borrower that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the “USA Patriot Act”), it is required to obtain, verify
and record information that identifies Holdings and the Borrower, which
information includes the name and address of Holdings and the Borrower and other
information that will allow such Lender to identify Holdings and the Borrower in
accordance with the USA Patriot Act
81
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.
AVIS
BUDGET HOLDINGS, LLC
By:
Name:
Title:
AVIS
BUDGET CAR RENTAL, LLC
By:
Name:
Title:
JPMORGAN
CHASE BANK, N.A., as Administrative Agent and as a Lender
By:
Name:
Title:
DEUTSCHE
BANK SECURITIES INC., as Syndication Agent
By:
Name:
Title:
By:
Name:
Title:
DEUTSCHE
BANK AG NEW YORK BRANCH, as a Lender
By:
Name:
Title:
By:
Name:
Title:
BANK OF
AMERICA, N.A., as a Documentation Agent and as a Lender
By:
Name:
Title:
CREDIT
AGRICOLE CORPORATE & INVESTMENT BANK NEW YORK BRANCH (formerly known as
CALYON), as a Documentation Agent and as a Lender
By:
Name:
Title:
CITICORP
USA, INC., as a Documentation Agent and as a Lender
By:
Name:
Title:
WACHOVIA
BANK, NATIONAL ASSOCIATION, as Documentation Agent and as a Lender
By:
Name:
Title:
Schedule
2
REVOLVING
COMMITMENTS
|
Lenders
|
Aggregate
Revolving
Commitments
|
Extended
Revolving Commitments2
|
Non-Extended
Revolving Commitments
|
|
JPMORGAN
CHASE BANK, N.A.
|
$125,000,000.00
|
$125,000,000.00
|
$0.00
|
|
DEUTSCHE
BANK AG NEW YORK BRANCH
|
$125,000,000.00
|
$125,000,000.00
|
$0.00
|
|
DEUTSCHE
BANK AG NEW YORK BRANCH GCT
|
$30,666,666.67
|
$0.00
|
$30,666,666.67
|
|
DEUTSCHE
BANK AG - LONDON BRANCH
|
$2,300,000.00
|
$0.00
|
$2,300,000.00
|
|
BANK
OF AMERICA, N.A.
|
$97,033,333.33
|
$97,033,333.33
|
$0.00
|
|
CITIBANK,
N.A.
|
$95,833,333.33
|
$95,833,333.33
|
$0.00
|
|
WACHOVIA
BANK, NATIONAL ASSOCIATION
|
$82,033,333.33
|
$82,033,333.33
|
$0.00
|
|
CREDIT
AGRICOLE CORPORATE AND INVESTMENT BANK (fka CALYON)
|
$82,033,333.33
|
$82,033,333.33
|
$0.00
|
|
BARCLAYS
BANK PLC
|
$82,000,000.00
|
$82,000,000.00
|
$0.00
|
|
THE
ROYAL BANK OF SCOTLAND PLC
|
$75,000,000.00
|
$75,000,000.00
|
$0.00
|
|
THE
BANK OF NOVA SCOTIA
|
$57,500,000.00
|
$57,500,000.00
|
$0.00
|
|
THE
BANK OF TOKYO-MITSUBISHI UFJ, LTD
|
$46,000,000.00
|
$46,000,000.00
|
$0.00
|
|
CREDIT
SUISSE GROUP AG
|
$34,500,000.00
|
$0.00
|
$34,500,000.00
|
|
SUMITOMO
MITSUI BANKING CORPORATION
|
$30,666,666.66
|
$30,666,666.66
|
$0.00
|
|
BANK
OF MONTREAL
|
$27,600,000.00
|
$27,600,000.00
|
$0.00
|
|
COMMERZBANK
AG
|
$24,533,333.33
|
$0.00
|
$24,533,333.33
|
|
MIZUHO
CORPORATE BANK LTD
|
$19,500,000.00
|
$0.00
|
$19,500,000.00
|
|
XXXXX
FARGO BANK, NATIONAL ASSOCIATION
|
$19,166,666.67
|
$19,166,666.67
|
$0.00
|
|
THE
BANK OF NEW YORK MELLON
|
$19,166,666.67
|
$0.00
|
$19,166,666.67
|
|
IBM
CREDIT LLC
|
$19,166,666.67
|
$0.00
|
$19,166,666.67
|
|
UNICREDIT
BANK AG, NEW YORK BRANCH
|
$15,333,333.34
|
$15,333,333.34
|
$0.00
|
|
FIRST
COMMERCIAL BANK LTD
|
$15,333,333.33
|
$0.00
|
$15,333,333.33
|
|
BANK
HAPOALIM BM
|
$11,500,000.00
|
$0.00
|
$11,500,000.00
|
|
WESTPAC
BANKING CORPORATION
|
$9,200,000.00
|
$9,200,000.00
|
$0.00
|
|
XXXXXXX
XXXXX CAPITAL CORPORATION
|
$7,666,666.67
|
$7,666,666.67
|
$0.00
|
|
NATIXIS
|
$7,666,666.67
|
$0.00
|
$7,666,666.67
|
|
XXXXX
XXX COMMERCIAL BANK LIMITED
|
$7,666,666.67
|
$0.00
|
$7,666,666.67
|
|
XXXXXXX
XXXXX BANK, FSB
|
$6,133,333.34
|
$6,133,333.34
|
$0.00
|
2After giving effect to the reduction of
the Extended Revolving Commitments pursuant to Section 4 of the
Second Amendment.
EXHIBIT
B
Form
of Commitment Reduction Notice
Reference
is made to the Credit Agreement dated as of April 19, 2006 (as amended from time
to time, the “Credit
Agreement”) among Avis Budget Car Rental, LLC, the Lenders and other
parties thereto and JPMorgan Chase Bank, N.A., as administrative
agent. Capitalized terms used but not defined herein are used with
the meanings assigned to them in the Credit Agreement.
The
undersigned Lender hereby elects to have its Revolving Commitment reduced in
accordance with Section 4 of the Second Amendment.
Lender
Name: _________________
Revolving
Commitment: $ _________________
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[ ]
By:
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Name:
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Title:
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EXHIBIT
C
Form
of Guarantee and Collateral Acknowledgement
Reference
is made to the Credit Agreement dated as of April 19, 2006 (as amended from time
to time, the “Credit
Agreement”) among others Avis Budget Car Rental, LLC, the Lenders and
other parties thereto and JPMorgan Chase Bank, N.A., as administrative
agent. Capitalized terms used but not defined herein are used with
the meanings assigned to them in the Credit Agreement.
Each Loan
Party executing a copy of this Guarantee and Collateral Acknowledgement confirms
and agrees that notwithstanding the effectiveness of the foregoing Second
Amendment, each Loan Document to which such Person is a party is, and shall
continue to be, in full force and effect and is hereby ratified and confirmed in
all respects, in each case as amended by the Second Amendment.
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[ ]
By:
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Name:
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Title:
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