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EXHIBIT 4.6
U.S. $215,000,000
CREDIT AGREEMENT,
dated as of December __, 1997,
among
DOLLAR THRIFTY AUTOMOTIVE GROUP, INC.,
DOLLAR RENT A CAR SYSTEMS, INC.
and
THRIFTY RENT-A-CAR SYSTEM, INC.,
as the Borrowers,
and
VARIOUS FINANCIAL INSTITUTIONS,
as the Lenders,
CREDIT SUISSE FIRST BOSTON,
as the Administrative Agent,
and
THE CHASE MANHATTAN BANK,
as the Syndication Agent.
Arranged By
CREDIT SUISSE FIRST BOSTON
CHASE SECURITIES INC.
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TABLE OF CONTENTS
Section Page
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms.......................................................3
1.2. Use of Defined Terms...............................................35
1.3. Cross-References...................................................36
1.4. Accounting and Financial Determinations............................36
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES AND NOTES
2.1. Commitments........................................................36
2.1.1. Loan Commitment....................................................36
2.1.2. Commitment to Issue Letters of Credit..............................36
2.1.3. Lenders Not Permitted or Required to Make Loans or Issue
Letters of Credit Under Certain Circumstances....................36
2.2. Reduction of Commitment Amounts....................................37
2.2.1. Optional...........................................................37
2.2.2. Mandatory..........................................................37
2.2.3. Corresponding Reductions...........................................38
2.3. Borrowing Procedure................................................38
2.4. Continuation and Conversion Elections..............................39
2.5. Funding............................................................39
2.6. Loan Accounts......................................................40
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments.........................................40
3.2. Interest Provisions................................................42
3.2.1. Rates..............................................................42
3.2.2. Post-Maturity Rates................................................42
3.2.3. Payment Dates......................................................42
3.3. Fees...............................................................43
3.3.1. Commitment Fees....................................................43
3.3.2. Arrangement Fees...................................................43
3.3.3. Administrative Agent's Fee.........................................43
3.3.4. Letter of Credit Face Amount Fee...................................44
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3.3.5. Letter of Credit Issuing Fee.......................................44
3.3.6. Letter of Credit Administrative Fee................................44
ARTICLE IV
LETTERS OF CREDIT
4.1. Issuance Requests..................................................44
4.2. Issuances and Extensions...........................................46
4.3. Expenses...........................................................46
4.4. Other Lenders' Participation.......................................46
4.5. Disbursements......................................................47
4.6. Reimbursement......................................................48
4.7. Deemed Disbursements...............................................48
4.8. Nature of Reimbursement Obligations................................49
4.9. Indemnity..........................................................50
4.10. Borrowers' Guaranty of Reimbursement Obligations of
its Subsidiaries.................................................50
4.10.1. Guaranty...........................................................50
4.10.2. Acceleration of Guaranty...........................................51
4.10.3. Guaranty Absolute, etc.............................................51
4.10.4. Reinstatement, etc.................................................52
4.10.5. Waiver, etc........................................................52
4.10.6. Postponement of Subrogation, etc...................................53
4.10.7. Right of Contribution..............................................53
4.10.8. Successors, Transferees and Assigns; Transfers of Notes, etc.......54
4.11. No Bankruptcy Petition Against RCFC or Dollar Thrifty Funding......54
ARTICLE V
CERTAIN EURODOLLAR RATE AND OTHER PROVISIONS
5.1. Eurodollar Rate Lending Unlawful...................................55
5.2. Deposits Unavailable...............................................55
5.3. Increased Eurodollar Loan Costs, etc...............................55
5.4. Funding Losses.....................................................56
5.5. Increased Capital Costs............................................56
5.6. Taxes..............................................................57
5.7. Payments, Computations, etc........................................60
5.8. Sharing of Payments................................................60
5.9. Setoff.............................................................61
5.10. Replacement of Lender..............................................61
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ARTICLE VI
CONDITIONS PRECEDENT
6.1. Initial Credit Extension...........................................62
6.1.1. Resolutions, etc...................................................63
6.1.2. Delivery of Notes..................................................63
6.1.3. Transaction Consummated............................................63
6.1.4. Payment of Outstanding Indebtedness, etc...........................64
6.1.5. Delivery of Financial Statements...................................64
6.1.6. Consents, etc......................................................64
6.1.7. No Material Adverse Change.........................................65
6.1.8. Availability Under Credit Facility.................................65
6.1.9. Business Plan......................................................65
6.1.10. Closing Date Certificate...........................................65
6.1.11. Guaranty...........................................................65
6.1.12. Pledge Agreement...................................................65
6.1.13. Security Agreement.................................................66
6.1.14. Mortgages..........................................................66
6.1.15. Intercreditor Agreement............................................67
6.1.16. Insurance..........................................................67
6.1.17. Issuance Request...................................................67
6.1.18. Opinions of Counsel................................................67
6.1.19. Closing Fees, Expenses, etc........................................68
6.2. All Credit Extensions..............................................68
6.2.1. Compliance with Warranties, No Default, etc........................68
6.2.2. Credit Request.....................................................69
6.2.3. Enhancement Letters of Credit......................................69
6.2.4. Satisfactory Legal Form............................................69
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1. Organization, etc..................................................70
7.2. Due Authorization, Non-Contravention, etc..........................70
7.3. Government Approval, Regulation, etc...............................71
7.4. Validity, etc......................................................71
7.5. Financial Information; Absence of Undisclosed Liabilities..........71
7.6. No Material Adverse Change.........................................72
7.7. Litigation, Labor Controversies, etc...............................72
7.8. Subsidiaries.......................................................72
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7.9. Ownership of Properties............................................72
7.10. Taxes..............................................................73
7.11. Pension and Welfare Plans..........................................73
7.12. Environmental Warranties...........................................73
7.13. Intellectual Property..............................................75
7.14. Regulations G, U and X.............................................75
7.15. Accuracy of Information............................................75
7.16. Transaction Documents..............................................76
7.17. Non-Guarantor Subsidiaries.........................................76
ARTICLE VIII
COVENANTS
8.1. Affirmative Covenants..............................................77
8.1.1. Financial Information, Reports, Notices, etc.......................77
8.1.2. Compliance with Laws, Material Agreements, etc.....................80
8.1.3. Maintenance of Properties..........................................80
8.1.4. Insurance..........................................................80
8.1.5. Books and Records..................................................81
8.1.6. Environmental Covenant.............................................81
8.1.7. Use of Proceeds....................................................82
8.1.8. Additional Real Property...........................................82
8.1.9. Future Subsidiaries................................................83
8.2. Negative Covenants.................................................86
8.2.1. Business Activities................................................86
8.2.2. Indebtedness.......................................................86
8.2.3. Liens..............................................................89
8.2.4. Financial Condition................................................91
8.2.5. Investments........................................................94
8.2.6. Restricted Payments, etc...........................................96
8.2.7. Capital Expenditures, etc..........................................98
8.2.8. Take or Pay Contracts..............................................98
8.2.9. Consolidation, Merger, etc.........................................98
8.2.10. Asset Dispositions, etc............................................98
8.2.11. Modification of Certain Agreements.................................99
8.2.12. Transactions with Affiliates......................................100
8.2.13. Negative Pledges, Restrictive Agreements, etc.....................100
8.2.14. Ability to Amend; Restrictive ....................................101
8.2.15. Accounting Changes................................................101
8.2.16. Activities of the Parent..........................................101
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ARTICLE IX
EVENTS OF DEFAULT
9.1. Listing of Events of Default......................................102
9.1.1. Non-Payment of Obligations........................................102
9.1.2. Breach of Warranty................................................102
9.1.3. Non-Performance of Certain Covenants and Obligations..............102
9.1.4. Non-Performance of Other Covenants and Obligations................102
9.1.5. Default on Other Indebtedness.....................................102
9.1.6. Judgments.........................................................103
9.1.7. Pension Plans.....................................................103
9.1.8. Change in Control.................................................103
9.1.9. Bankruptcy, Insolvency, etc.......................................103
9.1.10. Impairment of Security, ..........................................104
9.2. Action if Bankruptcy..............................................104
9.3. Action if Other Event of Default..................................104
ARTICLE X
BORROWERS GUARANTY
10.1. Guaranty..........................................................105
10.2. Acceleration of Borrowers Guaranty................................105
10.3. Guaranty Absolute, etc............................................106
10.4. Reinstatement, etc................................................107
10.5. Waiver, etc.......................................................107
10.6. Postponement of Subrogation, etc..................................107
10.8. Successors, Transferees and Assigns; Transfers of Notes, etc......108
ARTICLE XI
THE AGENTS
11.1. Actions...........................................................109
11.2. Funding Reliance, etc.............................................109
11.3. Exculpation.......................................................110
11.4. Successor.........................................................110
11.5. Credit Extensions by Agents.......................................111
11.6. Credit Decisions..................................................111
11.7. Collateral Agent..................................................111
11.8. Copies, etc.......................................................111
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ARTICLE XII
MISCELLANEOUS PROVISIONS
12.1. Waivers, Amendments, etc..........................................111
12.2. Notices...........................................................113
12.3. Payment of Costs and Expenses.....................................113
12.4. Indemnification...................................................114
12.5. Survival..........................................................115
12.6. Severability......................................................115
12.7. Headings..........................................................115
12.8. Execution in Counterparts, Effectiveness, etc.....................115
12.9. Governing Law; Entire Agreement...................................115
12.10. Successors and Assigns............................................115
12.11. Sale and Transfer of Loans and Notes; Participations
in Loans and Notes..............................................116
12.11.1. Assignments.......................................................116
12.11.2. Participations....................................................118
12.12. Other Transactions................................................119
12.13. Independence of Covenants.........................................119
12.14. Confidentiality...................................................119
12.15. Forum Selection and Consent to Jurisdiction.......................120
12.16. Waiver of Jury Trial..............................................121
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SCHEDULE I - Lender Information
SCHEDULE II - Subordinated Intercompany Note Terms
SCHEDULE III - Existing Material Property
SCHEDULE IV - Excluded Property
SCHEDULE V - Certain Existing Rental Sites
EXHIBIT A - Form of Revolving Note
EXHIBIT B-1 - Form of Borrowing Request
EXHIBIT B-2 - Form of Issuance Request
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D - Form of Compliance Certificate
EXHIBIT E - Form of Pledge Agreement
EXHIBIT F - Form of Security Agreement
EXHIBIT G - Form of Subsidiary Guaranty
EXHIBIT H-1 - Form of Mortgage
EXHIBIT H-2 - Form of Deed of Trust
EXHIBIT I - Form of Intercreditor Agreement
[EXHIBIT J - Form of CP Enhancement Letter of Credit]
EXHIBIT K - Form of Closing Date Certificate
EXHIBIT L - Form of Lender Assignment Agreement
EXHIBIT M - Form of U.S. Tax Compliance Certificate
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of December __, 1997, among DOLLAR THRIFTY
AUTOMOTIVE GROUP, INC., a Delaware corporation (the "Parent"), DOLLAR RENT A CAR
SYSTEMS, INC., an Oklahoma corporation ("Dollar"), THRIFTY RENT-A-CAR SYSTEM,
INC., an Oklahoma corporation ("Thrifty," and, together with Dollar, the
"Subsidiary Borrowers"; the Parent and the Subsidiary Borrowers being
collectively referred to herein as the "Borrowers"), various financial
institutions as are or may become parties hereto (collectively, the "Lenders"),
CREDIT SUISSE FIRST BOSTON ("Credit Suisse First Boston"), as the administrative
agent (in such capacity, the "Administrative Agent") for the Lenders, THE CHASE
MANHATTAN BANK ("Chase"), as the syndication agent (in such capacity, the
"Syndication Agent") and, together with the Administrative Agent, the "Agents")
for the Lenders and CREDIT SUISSE FIRST BOSTON and CHASE SECURITIES INC. as the
co-arrangers (in such capacities, the "Arrangers").
W I T N E S S E T H:
WHEREAS, the Subsidiary Borrowers are engaged directly and through their
various Subsidiaries (capitalized terms used in these recitals to have the
meanings set forth in Section 1.1 below) in the business of (a) renting
worldwide for general use passenger automobiles, light and medium duty trucks
and vans, (b) selling in the United States and Canada late model automobiles,
(c) franchising the foregoing business to other Persons and (d) providing
support and services to franchisees, including fleet leasing of vehicles;
WHEREAS (a) the Parent intends to issue shares of its common stock, par
value $0.01 per share (the "Common Stock"), pursuant to a registered public
offering for net cash proceeds of at least $45,000,000, which proceeds will be
used to provide collateral for the financing of vehicles by the Parent and its
subsidiaries (the "Primary Equity Offering"), and (b) Chrysler Corporation, a
Delaware corporation ("Chrysler"), intends to sell 20,000,000 shares of the
Common Stock of the Parent owned by it pursuant to a registered public offering
which, following the consummation thereof, will result in the Parent no longer
being a subsidiary of Chrysler (the "Secondary Equity Offering," and, together
with the Primary Equity Offering, the "Equity Offerings");
WHEREAS, concurrently with the initial extension of credit hereunder, the
Parent (a) intends to implement through a special purpose, bankruptcy remote,
Wholly Owned Subsidiary, Rental Car Finance Corp., formerly known as Thrifty Car
Rental Finance Corporation ("RCFC"), a $900,000,000 medium-term note program
secured by vehicles and related assets to replace existing financing
arrangements with Chrysler Financial Corporation and provide funds for the
purchase of additional vehicles (the "MTN Program");
WHEREAS, after the initial extension of credit hereunder, (a) the Parent
intends to implement through a to-be-formed special purpose, bankruptcy remote,
Wholly Owned Subsidiary ("Dollar Thrifty Funding"), a commercial paper program
of up to $615,000,000
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secured by vehicles and related assets, the proceeds of which will be used to
finance vehicle fleet growth and to refinance existing vehicle fleet
indebtedness (the "CP Program"), and (b) in connection with the CP Program,
Dollar Thrifty Funding would enter into a 364-day revolving liquidity facility
in an amount of up to $545,000,000 to provide backup liquidity for the
commercial paper issued pursuant to the CP Program (the "Liquidity Facility");
WHEREAS, in connection with the foregoing, the Parent and its Subsidiaries
will enter into certain agreements with Chrysler and its subsidiaries relating
to the separation of the Parent from Chrysler, including (i) credit support
arrangements for the MTN Program (and, possibly, the CP Program) and (ii) other
matters with respect to taxes and insurance (collectively, the "Continuing
Chrysler Arrangements," and, together with the Equity Offerings, the MTN Program
and the CP Program, the "Transaction");
WHEREAS, in connection with the Transaction, the Borrowers desire to
obtain Commitments from the Lenders pursuant to which
(a) Loans will be made to the Borrowers from time to time prior to
the Commitment Termination Date; and
(b) Letters of Credit will be issued by the Issuer for the account
of the Borrowers and under the several responsibilities of the Lenders
from time to time prior to the Commitment Termination Date;
in maximum aggregate principal amount for Loans at any one time outstanding not
to exceed in the aggregate $70,000,000 and in a maximum aggregate Stated Amount
for Letters of Credit outstanding at any one time not to exceed in the aggregate
$190,000,000;
WHEREAS, the Lenders and the Issuer are willing, on the terms and subject
to the conditions hereinafter set forth (including Article VI), to extend such
Commitments, make such Loans to the Borrowers and issue, and participate in,
such Letters of Credit; and
WHEREAS,
(a) the proceeds of such Loans will be used for general corporate
purposes of Dollar, Thrifty and the other operating Subsidiaries of the
Parent; and
(b) such Letters of Credit will be used by the Borrowers and their
respective operating Subsidiaries
(i) as credit and/or liquidity enhancement for the CP Program
and the MTN Program (the "Enhancement Letters of Credit"), and
(ii) for other general corporate purposes (including
performance and insurance bonds) (the "General Letters of Credit");
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NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"ABR Loan" means a Loan bearing interest at a fluctuating rate determined
by reference to the Alternate Base Rate.
"Account Party" means (a) any Borrower, (b) in any case of the CP
Enhancement Letter of Credit, Dollar Thrifty Funding, (c) any Subsidiary
Guarantor or SPC for the account of which a Letter of Credit is issued in
accordance with Article IV and (d) to the extent permitted by clause (k) of
Section 8.2.5, any franchisee of a Subsidiary Borrower for the account of which
a Letter of Credit is issued in accordance with Article IV.
"Additional Material Property" means any property with respect to which a
Mortgage is required to be delivered pursuant to Section 8.1.8 hereof.
"Adjusted Debt" means, at any time, the sum of (a) Non-Vehicle Debt at
such time plus (b) the maximum amount available for drawing under each letter of
credit, bond or similar obligation (including Letters of Credit and Surety
Bonds, but excluding any Letter of Credit to the extent it may be drawn upon to
reimburse a payment made by the issuer of a Surety Bond under such Surety Bond),
whether or not drawn and whether or not any conditions to drawing can then be
met at such time.
"Adjusted EBITDA" means, for any applicable period, the excess of
(a) EBITDA for such period
over
(b) to the extent added in arriving at such EBITDA, the sum of (i)
the aggregate amount of depreciation in respect of Vehicles during such
period plus (ii) Vehicle Interest Expense during such period.
"Administrative Agent" is defined in the preamble and includes each other
Person as shall have subsequently been appointed as the successor Administrative
Agent pursuant to Section 11.4.
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"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power
(a) to vote 10% or more of the securities (on a fully diluted basis)
having ordinary voting power for the election of directors or managing
general partners; or
(b) to direct or cause the direction of the management and policies
of such Person whether by contract or otherwise.
Neither Chrysler nor any of its Subsidiaries shall be deemed to be an Affiliate
of the Parent solely as a result of its execution and delivery of the
Chrysler-Dollar Supply Agreement, the Chrysler-Thrifty Supply Agreement or any
agreement evidencing a Continuing Chrysler Arrangement or solely because of its
rights thereunder.
"Agents" is defined in the preamble.
"Aggregate Interest Expense" is defined in clause (a) of the definition of
"Non-Vehicle Interest Expense".
"Agreement" means, on any date, this Credit Agreement as originally in
effect on the Effective Date and as thereafter from time to time amended,
supplemented, amended and restated, or otherwise modified and in effect on such
date.
"Alternate Base Rate" means, on any date and with respect to all ABR
Loans, a fluctuating rate of interest per annum equal to the higher of
(a) the rate of interest most recently established by Credit Suisse
First Boston at its principal office in New York, New York as its base or
prime rate for U.S. Dollar loans; and
(b) the Federal Funds Rate most recently determined by the
Administrative Agent plus 50 basis points.
If for any reason the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is unable to
ascertain the Federal Funds Rate for any reason, including the inability of the
Administrative Agent to obtain sufficient quotations in accordance with the
terms of the definition of "Federal Funds Rate", the Alternate Base Rate shall
be determined without regard to clause (b) of the first sentence of this
definition until the circumstances giving rise to such inability no longer
exist. The Alternate Base Rate is not necessarily intended to be the lowest rate
of interest determined by Credit Suisse First Boston in connection with
extensions of credit. Changes in the rate of interest on that portion of any
Loans maintained as ABR Loans will take effect simultaneously with each change
in the Alternate Base
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Rate. The Administrative Agent will give notice promptly to the Borrowers and
the Lenders of changes in the Alternate Base Rate.
"Applicable Commitment Fee" means, as of any date, a per annum fee on the
average daily unused portion of the Commitment Amount determined pursuant to the
following pricing grid (expressed in basis points), subject to the provisions of
this definition set forth below:
PRICING GRID
Applicable
Leverage Ratio Commitment Fee
-------------- --------------
X > 2.0 37.5
-
X > 1.0, but < 2.0 30.0
- X < 1.0 25.0
The Applicable Commitment Fee on the average daily unused portion of the
Commitment Amount, at any time from and including the Effective Date to (but not
including) the date which is 180 days after the Effective Date, shall be 37.5
basis points per annum at such time.
The Applicable Commitment Fee, at any time from and after the date which
is 180 days after the Effective Date, on the average daily unused portion of the
Commitment Amount, shall be determined pursuant to the Pricing Grid above at
such time. At all times that the Applicable Commitment Fee is determined by
reference to the Pricing Grid, "X" refers to the Leverage Ratio, which ratio
shall be determined based upon the Compliance Certificate delivered pursuant to
clause (c) of Section 8.1.1 and shall remain in effect until such time as the
next Compliance Certificate shall be delivered (and, at such time, the
Applicable Commitment Fee shall change based on such next Compliance
Certificate); provided, however, that, if any such Compliance Certificate is not
delivered to the Administrative Agent on or prior to the date required pursuant
to clause (c) of Section 8.1.1, the Applicable Commitment Fee from and including
the date on which such Compliance Certificate was required to be delivered to
but not including the actual date of delivery of such Compliance Certificate
shall conclusively equal the highest Applicable Commitment Fee.
"Applicable Margin" means, with respect to any Loan of any type, as of any
date, the rate per annum determined pursuant to the following pricing grid
(expressed in basis points), subject to the provisions of this definition set
forth below:
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PRICING GRID
Eurodollar Loan ABR Loan
Leverage Ratio Applicable Margin Applicable Margin
-------------- ----------------- -----------------
X > 3.5 250 150
-
X > 3.0, but < 3.5 225 125
-
X > 2.0, but < 3.0 200 100
-
X > 1.0, but < 2.0 175 75
- X < 1.0 150 50
The Applicable Margin, at any time from and including the Effective Date
until the date which is 180 days after the Effective Date, for the Loans shall
be 250 basis points as to Eurodollar Loans and 150 basis points as to ABR Loans
at such time.
The Applicable Margin, at any time from and after the date which is 180
days after the Effective Date, for Loans, shall be determined pursuant to the
Pricing Grid above at such time. At all times that the Applicable Margin is
determined by reference to the Pricing Grid, "X" refers to the Leverage Ratio,
which ratio shall be determined based upon the Compliance Certificate delivered
pursuant to clause (c) of Section 8.1.1 and shall remain in effect until such
time as the next Compliance Certificate shall be delivered (and, at such time,
the Applicable Margin shall change based on such next Compliance Certificate);
provided, however, that, if any such Compliance Certificate is not delivered to
the Administrative Agent on or prior to the date required pursuant to clause (c)
of Section 8.1.1, the Applicable Margin for Loans from and including the date on
which such Compliance Certificate was required to be delivered to but not
including the actual date of delivery of such Compliance Certificate shall
conclusively equal the highest Applicable Margin for Loans set forth above.
"Arrangers" is defined in the preamble.
"Assignee Lender" is defined in Section 12.11.1.
"Authorized Officer" means, relative to any Borrower and any other
Obligor, those of its officers or managing members (in the case of a limited
liability company) whose signatures and incumbency shall have been certified to
the Administrative Agent and the Lenders pursuant to Section 6.1.1.
"Base Indenture" means the Base Indenture, dated as of December 13, 1995,
between RCFC and Bankers Trust Company, as Trustee, as in effect on the date
hereof, together with the Base Indenture Supplements thereto, as amended,
supplemented, amended and restated or otherwise modified from time to time in
accordance with the terms hereof and thereof.
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"Base Indenture Supplement" means any supplement to the Base Indenture,
including (i) the Series 1997-1 Supplement dated as of December __, 1997 (which
supplement was entered into in connection with the MTN Program) and (ii) the
supplement to the Base Indenture to be entered into in connection with the CP
Program.
"Borrower Debtor" is defined in clause (a) of Section 10.1.
"Borrower Guarantor" is defined in clause (a) of Section 10.1.
"Borrowers" is defined in the preamble.
"Borrower Guaranty" means the Obligations of a Borrower Guarantor
undertaken pursuant to Article X.
"Borrowing" means the Loans of the same type and, in the case of
Eurodollar Loans, having the same Interest Period made by all Lenders on the
same Business Day and pursuant to the same Borrowing Request in accordance with
Section 2.1.
"Borrowing Request" means a Loan request and certificate duly executed by
an Authorized Officer of any Borrower, substantially in the form of Exhibit B-1
hereto.
"Business Acquisition" means the acquisition, by purchase or otherwise, of
all or substantially all of the assets and, if applicable, assumption of all or
substantially all of the liabilities (or any part of the assets and, if
applicable, the liabilities, constituting all or substantially all of a business
or line of business) of any Person, whether such acquisition is direct or
indirect, including through the acquisition of the business of, or Capital Stock
of, such Person.
"Business Day" means
(a) any day which is neither a Saturday or Sunday nor a legal
holiday on which banks are authorized or required to be closed in New
York, New York; and
(b) relative to the making, continuing, converting, prepaying or
repaying of any Eurodollar Loan, any day described in clause (a) above on
which dealings in U.S. Dollars are carried on in the London interbank
market.
"Capital Expenditures" means, for any period, the sum of
(a) the aggregate amount of all expenditures of the Parent and its
Subsidiaries for fixed or capital assets made during such period which, in
accordance with GAAP, would be classified as capital expenditures; and
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(b) the aggregate amount of all Capitalized Lease Liabilities
incurred during such period.
"Capital Stock" means with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated) of such
Person's capital stock or equity, whether now outstanding or issued after the
date hereof, including all common stock, preferred stock, partnership interests
and member interests.
"Capitalized Lease Liabilities" means all monetary obligations of the
Parent or any of its Subsidiaries under any leasing or similar arrangement
which, in accordance with GAAP, would be classified as capitalized leases, and,
for purposes of this Agreement and each other Loan Document, the amount of such
obligations shall be the capitalized amount thereof, determined in accordance
with GAAP, and, with respect to any such leasing or similar arrangement, the
stated maturity thereof shall be the date of the last payment of rent or any
other amount due under such lease prior to the first date upon which such lease
may be terminated by the lessee without payment of a premium or a penalty.
"Cash Equivalent Investments" means
(a) U.S. Government Obligations maturing in not more than 270 days;
(b) participation certificates (excluding strip mortgage securities
that are purchased at prices exceeding their principal amounts) and senior
debt obligations of the Federal Home Loan Mortgage Corporation,
consolidated system wide bonds and notes of the Farm Credit System, senior
debt obligations and mortgage-backed securities (excluding stripped
mortgage securities which are purchased at prices exceeding their
principal amounts) of the Federal Mortgage Association which, in the case
of mortgage-backed securities, are rated at least AA by S&P and Aa by
Xxxxx'x, senior debt obligations (excluding securities that have no fixed
value and/or whose terms do not promise a fixed dollar amount at maturity
or call date) of the Student Loan Marketing Association and debt
obligations of the Resolution Funding Corp., in each case, maturing not
more than 270 days (collectively, "Agency Obligations");
(c) direct obligations of any state of the United States or any
subdivision or agency thereof whose short-term unsecured general
obligation debt has ratings from S&P of at least A-1 and Xxxxx'x of at
least P-1 or any obligation that has ratings from S&P and Xxxxx'x at least
equivalent to A-1 and P-1, respectively, and which is fully and
unconditionally guaranteed by any state, subdivision or agency whose short
term, unsecured general obligation debt has ratings from S&P and Xxxxx'x
at least equivalent to A-1 and P-1, respectively;
(d) commercial paper maturing in not more than 270 days which is
issued by a corporation (other than an Affiliate of any Obligor) and
having ratings from S&P and Xxxxx'x at least equivalent to A-1 and P-1,
respectively;
-8-
17
(e) deposits (including Eurodollar time deposits), federal funds or
bankers acceptances (maturing in not more than 365 days) of any domestic
bank (including a branch office of a foreign bank which branch office is
located in the United States), which:
(i) has an unsecured, uninsured and unguaranteed obligation
which has ratings from S&P and Xxxxx'x at least equivalent to A-1
and P-1, respectively, or
(ii) is the lead bank of a parent bank holding company with an
uninsured, unsecured and unguaranteed obligation meeting the rating
requirements in the preceding clause (i);
(f) deposits of any bank or savings and loan association which has
combined capital, surplus and undivided profits of not less than $100
million and deposits, not to exceed $100,000, at any bank or savings and
loan association that serves the local and non-centralized corporate
operations of a Subsidiary Borrower, provided such deposits are in each
case fully insured by the Federal Deposit Insurance Corporation, the
Banking Insurance Fund or the Savings Association Insurance Fund;
(g) investments in a money-market fund which may be a 12b-1 fund as
registered under the Investment Company Act of 1940 and is rated at least
the equivalent of AAm or AAm-G by S&P and P-1 by Xxxxx'x;
(h) repurchase agreements with a term of six months or less with any
institution having short-term, unsecured debt rated at least the
equivalent of A-1 by S&P and P-1 by Xxxxx'x; and
(i) repurchase agreements collateralized by U.S. Government
Obligations or Agency Obligations (the "Collateral Securities") with any
registered broker-dealer which is under the jurisdiction of the Securities
Investors Protection Corp. or any commercial bank, if such broker-dealer
or bank has uninsured, unsecured and unguaranteed debt rated at least the
equivalent of A-1 by S&P and P-1 by Xxxxx'x, provided that:
(A) a master repurchase agreement or other specific written
repurchase agreement governs the transaction;
(B) the Collateral Securities are held free and clear of any
other Lien by the Administrative Agent or an independent third party
acting solely as agent for the Administrative Agent, provided that
any such third party (1) is (x) a Federal Reserve bank, (y) a bank
which is a member of the Federal Deposit Insurance Corporation and
which has combined capital, surplus and undivided profits of not
less that $250 million, or (z) a bank approved in writing for such
purpose by the Required Lenders, and (2) certifies in writing to the
Administrative Agent (or delivers to the Administrative Agent a
written opinion of counsel to such third
-9-
18
party) that such third party holds the Collateral Securities free
and clear of any Lien, as agent for the Administrative Agent;
(C) a perfected first security interest under the Uniform
Commercial Code is created in, or book entry procedures prescribed
at 31 C.F.R. 306.1 et seq. or 31 C.F.R. 350.0 et seq. are followed
with respect to, the Collateral Securities for the benefit of the
Administrative Agent;
(D) such repurchase agreement has a term of 30 days or less;
(E) such repurchase agreement matures (or permits the
Administrative Agent to withdraw all or any portion of the invested
funds) at least ten (10) days (or other appropriate liquidation
period) prior to each Quarterly Payment Date;
(F) the fair market value of the Collateral Securities in
relation to the amount of the repurchase obligation, including
principal and interest, is equal to at least one hundred and three
percent (103%) (as determined by the Parent and certified by the
chief financial Authorized Officer of the Parent to the
Administrative Agent in a certificate in form and substance
satisfactory to the Administrative Agent); and
(G) the Administrative Agent obtains an opinion of counsel to
such broker-dealer or bank to the effect that such repurchase
agreement is a legal, valid, binding and enforceable agreement of
such broker-dealer or bank (and, in the case of a bank which is a
branch of a foreign bank, of such foreign bank) in accordance with
its terms.
"Cash Rental Expense" is defined in the definition of "Fixed Charge
Coverage Ratio".
"Casualty Event" means the damage, destruction or condemnation, as the
case may be, of property of the Parent or any of its Subsidiaries.
"Casualty Proceeds" means, with respect to any Casualty Event, the amount
of any insurance proceeds or condemnation awards received by or on behalf of the
Parent or any of its Subsidiaries in connection with such Casualty Event
(provided that, in the event the aggregate amount of such proceeds or awards
resulting from such Casualty Event do not exceed $100,000, such proceeds or
awards shall not constitute Casualty Proceeds), but excluding (i) any proceeds
or awards required to be paid to a creditor (other than the Lenders) which holds
a first-priority Lien permitted by Section 8.2.3 on the property which is the
subject of such Casualty Event (including Vehicles securing Vehicle Debt) and
(ii) reasonable and customary expenses incurred in obtaining such proceeds or
awards.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
-10-
19
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"Change in Control" means
(a) any Person other than the Parent shall own any Capital Stock of
either of Dollar or Thrifty or otherwise have the ability to elect any
members of the board of directors of Dollar or Thrifty;
(b) a "person" or "group" (within the meaning of Sections 13(d) and
14(d)(2) of the Exchange Act) (i) becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act) of more than 30% of the
total then outstanding voting power of the Voting Stock of the Parent or
(ii) has the right or the ability by voting right, contract or otherwise
to elect or designate for election a majority of the board of directors of
the Parent;
(c) during any period of twenty-four months, individuals who at the
beginning of such period constituted the board of directors of the Parent
(together with any new directors whose election by such board of
directors, or whose nomination for election by the shareholders of the
Parent, as the case may be, was approved by a vote of 66 2/3% of the
directors then still in office who were either directors at the beginning
of such period or whose election or nomination for election was previously
so approved) cease for any reason to constitute 50% or more of the board
of directors then in office; or
(d) any Person or two or more Persons acting in concert shall have
acquired by contract or otherwise, or shall have entered into a contract
or arrangement that, upon consummation thereof, will result in its or
their acquisition of the power to direct or control, directly or
indirectly, the management or policies of any Borrower.
"Chase" is defined in the preamble.
"Chrysler" is defined in the second recital.
"Chrysler Credit Support Agreement" means the Agreement, dated as of
December , 1997, among Chrysler and the Borrowers, as amended, supplemented,
amended and restated or otherwise modified from time to time in accordance with
the terms hereof and thereof.
"Chrysler Credit Support Documents" means the Chrysler Credit Support
Agreement and each agreement, instrument or document delivered in connection
therewith.
"Chrysler-Dollar Supply Agreement" means the Vehicle Supply Agreement,
dated as of July, 1, 1996, between Chrysler and Dollar, as amended,
supplemented, amended and restated or otherwise modified from time to time in
accordance with the terms hereof and thereof.
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20
"Chrysler Letter of Credit" means a letter of credit issued pursuant to
the Chrysler Credit Support Agreement.
"Chrysler-Thrifty Supply Agreement" means the Amended and Restated Vehicle
Supply Agreement dated as of July 1, 1997, between Chrysler and Thrifty, as
amended, supplemented, amended and restated or otherwise modified from time to
time in accordance with the terms hereof and thereof.
"Closing Date" means the date on which Credit Extensions are first made
hereunder.
"Closing Date Certificate" means the closing date certificate executed and
delivered by the Borrowers pursuant to Section 6.1.10, substantially in the form
of Exhibit K hereto.
"Code" means the Internal Revenue Code of 1986, and the regulations
thereunder, in each case as amended, reformed or otherwise modified from time to
time.
"Commitment" means, as the context may require, a Lender's Loan Commitment
and/or Letter of Credit Commitment.
"Commitment Amount" means, on any date, $215,000,000, as such amount may
be reduced from time to time pursuant to Section 2.2.
"Commitment Termination Date" means the earliest of
(a) January 30, 1998 (if the initial Credit Extension has not
occurred on or prior to such date);
(b) the Business Day immediately preceding the Stated Maturity Date;
(c) the date on which the Loan Commitment Amount is terminated in
full or reduced to zero pursuant to Section 2.2; and
(d) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in clause (c) or (d) above, the
Commitments shall terminate automatically and without any further action.
"Commitment Termination Event" means
(a) the occurrence of any Event of Default described in clauses (a)
through (d) of Section 9.1.9; or
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21
(b) the occurrence and continuance of any other Event of Default and
either
(i) the declaration of all or any portion of the Loans to be
due and payable pursuant to Section 9.3, or
(ii) the giving of notice by the Administrative Agent, acting
at the direction of the Required Lenders, to the Borrowers that the
Commitments have been terminated.
"Common Stock" is defined in the second recital.
"Compliance Certificate" means a certificate duly completed and executed
by the chief financial Authorized Officer of the Parent, substantially in the
form of Exhibit D hereto, together with such changes thereto as the
Administrative Agent may from time to time reasonably request in writing for the
purpose of monitoring the Parent's compliance with the financial covenants
contained herein.
"Consolidated Working Capital" means, with respect to the Parent, at any
date, the excess (or the deficit) of (a) the sum of the amounts that, in
accordance with GAAP, are set forth opposite the captions "accounts and notes
receivable, net", "prepaid expenses and other assets" and "income taxes
receivable", or any like captions, at such date over (b) the sum of the amounts
that, in accordance with GAAP, are set forth opposite the captions "accounts
payable", "accrued liabilities" and "income taxes payable", or any like
captions, at such date.
"Contingent Liability" means any agreement, undertaking or arrangement by
which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the indebtedness,
obligation or any other liability of any other Person (other than by
endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of any other Person.
The amount of any Person's obligation under any Contingent Liability shall
(subject to any limitation set forth therein) be deemed to be the outstanding
principal amount (or maximum principal amount, if larger) of the debt,
obligation or other liability guaranteed thereby.
"Continuation/Conversion Notice" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of the
applicable Borrower, substantially in the form of Exhibit C hereto.
"Continuing Chrysler Arrangements" is defined in the fifth recital.
"Controlled Group" means all members of a controlled group of corporations
and all members of a controlled group of trades or businesses (whether or not
incorporated) under common control which, together with any Borrower, are
treated as a single employer under Section 414(b) or 414(c) of the Code or
Section 4001 of ERISA.
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22
"CP Enhancement Letter of Credit" means a Letter of Credit issued pursuant
to the terms hereof and of a CP Enhancement Letter of Credit Application and
Agreement.
"CP Enhancement Letter of Credit Application and Agreement" is defined in
Section 4.1.
"CP Program" is defined in the fourth recital.
"CP Program Documents" means the Base Indenture, the supplement thereto
relating to the CP Program, the Master Collateral Agency Agreement, the master
lease and servicing agreement relating to the CP Program, any note purchase
agreement between RCFC and Dollar Thrifty Funding, the Liquidity Facility and
any collateral agency agreement pursuant to which Dollar Thrifty Funding grants
a security interest in its assets to, among others, the lenders under the
Liquidity Facility and each other material agreement, instrument and document
delivered in connection with the CP Program, in each case as amended,
supplemented, amended and restated or otherwise modified from time to time in
accordance with the terms hereof and thereof.
"Credit Extension" means and includes
(a) the advancing of any Loans by the Lenders in connection with a
Borrowing, and
(b) any issuance or extension by the Issuer of a Letter of Credit.
"Credit Extension Request" means, as the context may require, any
Borrowing Request or Issuance Request.
"Credit Suisse First Boston" is defined in the preamble.
"Default" means any Event of Default or any condition, occurrence or event
which, after notice or lapse of time or both, would constitute an Event of
Default.
"Demand Capitalization Notes" means promissory notes, issued by the Parent
to RCFC for the purpose of capitalizing RCFC in connection with the MTN Program
and the CP Program.
"Disbursement Date" is defined in Section 4.5.
"Disclosure Schedule" means the Disclosure Schedule dated the date hereof
and delivered by the Borrowers to the Agents and the Lenders on or prior to the
date hereof in form and substance satisfactory to the Agents and the Lenders, as
amended, supplemented or otherwise modified from time to time by the Borrowers
with the written consent of the Administrative Agent and the Required Lenders.
"Distribution" means, with respect to any Person, any dividend or
distribution (in cash, property or obligations) on any shares of any class of
Capital Stock (now or hereafter outstanding) of such Person or on any warrants,
options or other rights with respect to any shares
-14-
23
of any class of Capital Stock (now or hereafter outstanding) of such Person,
other than dividends or distributions payable in the common stock (other than
Redeemable Capital Stock) of such Person or warrants or options to purchase such
common stock or split-ups or reclassifications of its Capital Stock into
additional or other shares of such common stock.
"Dollar" is defined in the preamble.
"Dollar Thrifty Funding" is defined in the fourth recital.
"Domestic Office" means, relative to any Lender, the office of such Lender
designated as such opposite its name in Schedule II hereto or designated in the
Lender Assignment Agreement or such other office of a Lender (or any successor
or assign of such Lender) within the United States as may be designated from
time to time by written notice from such Lender, as the case may be, to each
other Person party hereto. A Lender may have separate Domestic Offices for
purposes of making, maintaining or continuing ABR Loans.
"Domestic Subsidiary" means any Subsidiary of the Parent which is not a
Foreign Subsidiary.
"EBITDA" means, for any applicable period, the sum for such period of
(a) Net Income (excluding therefrom (i) the effect of any
extraordinary or other non-recurring gain outside the ordinary course of
business, (ii) any write-up (or write-down) in the value of any asset,
(iii) the earnings (or loss) of any Person (other than the Parent or any
other Subsidiary of the Parent) in which the Parent or any of its
Subsidiaries has an ownership interest, except to the extent of the amount
of dividends or other distributions actually paid in cash to the Parent or
any of its Subsidiaries by such Person during such period, (iv) except
where the provisions hereof expressly require a pro forma determination,
the earnings (or loss) of any Person accrued prior to the date it becomes
a Subsidiary of the Parent or is merged into or consolidated with any of
its Subsidiaries or the date that such other Person's assets are acquired
by any Subsidiary of the Parent and (v) the earnings of any Subsidiary of
the Parent that is neither a Subsidiary Borrower nor a Subsidiary
Guarantor to the extent that the declaration or payment of dividends or
similar distributions by such Subsidiary of such earnings is not at the
time permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to such Subsidiary)
plus
(b) to the extent deducted in arriving at such Net Income, the sum,
without duplication, of (i) Aggregate Interest Expense, plus (ii) taxes
computed on the basis of income plus (iii) the aggregate amount of
depreciation and amortization of tangible and intangible assets, plus (iv)
non-cash charges in respect of non-cash awards under the Parent's
incentive compensation programs.
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24
"Effective Date" means the date this Agreement becomes effective pursuant
to Section 12.8.
"Eligible Assignee" means a lending institution at the time of any
proposed assignment having total assets in excess of $1,000,000,000 which is
organized under the laws of the United States, or any state thereof or any other
country which is a member of the OECD, or a political subdivision of any such
country (provided that such bank is acting through a branch or agency located in
the country in which it is organized, another country which is also a member of
the OECD or in the Cayman Islands) and has long-term unsecured debt ratings of
BBB- (or better) from S&P and Baa3 (or better) from Xxxxx'x; provided, however,
that neither the Parent nor any of its Affiliates shall qualify as an Eligible
Assignee.
"Enhancement Letter of Credit Application and Agreement" means, with
respect to each Enhancement Letter of Credit, the application and agreement
therefor completed by the account party or parties in respect of such
Enhancement Letter of Credit and accepted by the Issuer.
"Enhancement Letters of Credit" is defined in clause (b)(i) of the eighth
recital.
"Environmental Laws" means all applicable federal, foreign, state or local
statutes, laws, ordinances, codes, rules, regulations and guidelines (including
consent decrees and administrative orders) relating to public health and safety
and protection of the environment.
"Equity Offerings" is defined in the second recital.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA also refer to any successor sections thereto.
"Eurodollar Loan" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a fixed rate of interest determined
by reference to the Eurodollar Rate (Reserve Adjusted).
"Eurodollar Office" means, relative to any Lender, the office of such
Lender designated as such opposite its name in Schedule II hereto or designated
in the Lender Assignment Agreement or such other office of a Lender (or any
successor or assign of such Lender) as designated from time to time by written
notice from such Lender to the Borrowers and the Administrative Agent, whether
or not outside the United States, which shall be making or maintaining
Eurodollar Loans of such Lender hereunder.
"Eurodollar Rate" means, relative to any Interest Period, with respect to
Eurodollar Loans, an interest rate per annum equal to the average (rounded
upward to the nearest whole multiple of 1/100 of 1% per annum, if such average
is not such a multiple) of the rates per annum at which deposits in U.S. Dollars
in immediately available funds are offered by the Eurodollar Office of Credit
Suisse First Boston in London, England to prime banks in the
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25
London interbank market at or about 11:00 a.m. (London, England time) two
Business Days before the first day of such Interest Period in an amount
substantially equal to Credit Suisse First Boston's Eurodollar Loan comprising
part of such Borrowing to be outstanding during such Interest Period and for a
period equal to such Interest Period.
"Eurodollar Rate (Reserve Adjusted)" means, relative to any Loan to be
made, continued or maintained as, or converted into, a Eurodollar Loan for any
Interest Period, a rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) determined pursuant to the following formula:
Eurodollar Rate = Eurodollar Rate
(Reserve Adjusted) ------------------------------------
1.00 - Eurodollar Reserve Percentage
The Eurodollar Rate (Reserve Adjusted) for any Interest Period for Eurodollar
Loans will be determined by the Administrative Agent on the basis of the
Eurodollar Reserve Percentage in effect two Business Days before the first day
of such Interest Period.
"Eurodollar Reserve Percentage" means, relative to any Interest Period for
Eurodollar Loans, the reserve percentage (expressed as a decimal) equal to the
maximum aggregate reserve requirements (including all basic, emergency,
supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements)
specified under regulations issued from time to time by the F.R.S. Board and
then applicable to assets or liabilities consisting of and including
"Eurocurrency Liabilities", as currently defined in Regulation D of the F.R.S.
Board, having a term approximately equal or comparable to such Interest Period.
"Event of Default" is defined in Section 9.1.
"Excess Cash Flow" means, for any Fiscal Year of the Parent, an amount
equal to the excess of (a) the sum, without duplication, of (i) EBITDA for such
Fiscal Year and (ii) decreases in Consolidated Working Capital for such Fiscal
Year over (b) the sum, without duplication, of (i) the aggregate amount paid by
the Parent and its Subsidiaries in cash during such Fiscal Year on account of
taxes computed on the basis of income, (ii) the portion of Aggregate Interest
Expense for such Fiscal Year paid by the Parent and its Subsidiaries in cash
during such Fiscal Year, (iii) the aggregate amount paid by the Parent and its
Subsidiaries in cash during such Fiscal Year on account of Capital Expenditures
(excluding the principal amount of Indebtedness incurred in connection with such
Capital Expenditures, whether incurred in such Fiscal Year or in a subsequent
Fiscal Year), (iv) the aggregate amount of all prepayments of any amounts
outstanding under any revolving credit facility or agreement (including this
Agreement) to which the Parent or any of its Subsidiaries is a borrower to the
extent accompanied by permanent reductions of the commitments to extend credit
thereunder, (v) the aggregate amount of all principal payments of Indebtedness
of the Parent or its Subsidiaries (including any term loans and the principal
component of payments in respect of capitalized lease liabilities) made during
such Fiscal Year (other than in respect of any revolving credit facility or
agreement (including this Agreement) to the extent there is not an equivalent
permanent reduction in commitments to
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26
extend credit thereunder), (vi) increases in Consolidated Working Capital for
such Fiscal Year, (vii) the amount of cash payments by the Parent and its
Subsidiaries during such Fiscal Year in respect of long-term liabilities of the
Parent and its Subsidiaries other than Indebtedness, (viii) the amount of
Investments made during such Fiscal Year in cash to the extent that such
Investments were financed with internally generated cash flow of the Parent and
its Subsidiaries, (ix) the amount of Distributions made during such Fiscal Year
by the Parent in cash and (x) the aggregate amount of expenditures made by the
Parent and its Subsidiaries in cash during such Fiscal Year (including
expenditures for the payment of financing fees) to the extent that such
expenditures are not expensed during such Fiscal Year.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Property" means the real property described in Schedule IV,
except to the extent such real property is owned by a Borrower or any of its
Subsidiaries after June 30, 1998.
"Excluded Receivable" means any receivable or other right of the Parent, a
Subsidiary Borrower or any Subsidiary of a Subsidiary Borrower that is (a)
subject to a Lien which is not a Lien in favor of the Administrative Agent for
the benefit of the Lenders and (b) (i) an obligation payable to RCFC in respect
of Vehicles leased or financed pursuant to the Lease or the Master Lease (as
defined in the Base Indenture), (ii) an obligation of a manufacturer of a
Vehicle securing Vehicle Debt pursuant to a Vehicle Disposition Program (as
defined in the Base Indenture) including any right to receive incentive
payments in respect of any transportation allowance, return allowance, retention
bonus or otherwise, (iii) an obligation of an insurer or governmental entity
with respect to a Casualty Event in respect of a Vehicle securing Vehicle Debt,
(iv) an obligation of a Person in respect of the purchase price of a Vehicle
securing Vehicle Debt, (v) an obligation of a Person, as sublessee, to a
Subsidiary Borrower, as sublessor, in respect of any sublease of a Vehicle
securing Vehicle Debt or (vi) an obligation of any Person under an insurance
contract in respect of any Vehicle securing Vehicle Debt.
"Existing Material Property" means each property listed on Schedule III
attached hereto.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to
(a) the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve
Bank of New York; or
(b) if such rate is not so published for any day which is a Business
Day, the average of the quotations for such day on such transactions
received by Credit Suisse First Boston from three federal funds brokers of
recognized standing selected by it.
"Fee Letter" is defined in Section 3.3.2.
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27
"Fiscal Quarter" means any quarter of a Fiscal Year.
"Fiscal Year" means any period of twelve consecutive calendar months
ending on December 31 or such other date permitted pursuant to Section 8.2.15;
references to a Fiscal Year with a number corresponding to any calendar year
(e.g., the "1997 Fiscal Year") refer to the Fiscal Year ending on the December
31 (or such other date permitted pursuant to Section 8.2.15) occurring during
such calendar year.
"Fixed Charge Coverage Ratio" means, at the end of any Fiscal Quarter, the
ratio of
(a) the sum of (i) Adjusted EBITDA for the four consecutive Fiscal
Quarters ending on the last day of such Fiscal Quarter plus (ii) rental
expense of the Parent and its Subsidiaries during such period under all
leases of real property exclusive of any portion of such expense
determined on the basis of the revenues generated by the operations
conducted on the real property subject to such leases ("Rental Expense")
to
(b) the sum of (i) Non-Vehicle Interest Expense for the four
consecutive Fiscal Quarters ending on the last day of such Fiscal Quarter
(subject to the proviso set forth in clause (a) of the definition of
"Non-Vehicle Interest Expense"), plus (ii) taxes computed on the basis of
income and paid in cash during such period (net of cash received during
such period in respect of such taxes), plus (iii) scheduled repayments of
principal made by the Parent and its Subsidiaries during such period of
Indebtedness (other than Vehicle Debt) of the type described in clause
(a), (c), (f) or (g) of the definition of "Indebtedness" or, to the extent
in respect of such type of Indebtedness, clause (h) of the definition of
"Indebtedness," plus (iv) Capital Expenditures made by the Parent and its
Subsidiaries during such period in cash (excluding Capital Expenditures
for the acquisition of Vehicles), plus (v) Rental Expense during such
period, plus (vi) Distributions made by the Parent during such period.
"Foreign Pledge Agreement" means any supplemental pledge agreement
governed by the laws of a jurisdiction other than the United States or a state
thereof executed and delivered by the Parent or any of its Subsidiaries pursuant
to the terms of this Agreement, in form and substance reasonably satisfactory to
the Administrative Agent, as may be necessary or desirable under the laws of
organization or incorporation of a Subsidiary to further protect or perfect the
Lien on and security interest in any Pledged Shares and/or Pledged Notes (as
such terms are defined in the Pledge Agreement).
"Foreign Subsidiary" means any Subsidiary of the Parent (a) which is
organized under the laws of any jurisdiction outside of the United States of
America, (b) which conducts the major portion of its business outside of the
United States of America and (c) all or substantially all of the property and
assets of which are located outside of the United States of America.
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"F.R.S. Board" means the Board of Governors of the Federal Reserve System
or any successor thereto.
"GAAP" is defined in Section 1.4.
"General Letters of Credit" is defined in clause (b)(ii) of the eighth
recital.
"Guarantor" means, collectively, each Borrower and each Subsidiary
Guarantor.
"Guaranty" means, as the context may require, the Borrower Guaranty or the
Subsidiary Guaranty.
"Guaranteed Obligations" is defined in Section 4.10.1.
"Hazardous Material" means
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource Conservation
and Recovery Act, as amended; or
(c) any pollutant or contaminant or hazardous, dangerous or toxic
chemical, material or substance (including any petroleum product) within
the meaning of any other applicable federal, foreign, state or local law,
regulation, ordinance or requirement (including consent decrees and
administrative orders) relating to or imposing liability or standards of
conduct concerning any hazardous, toxic or dangerous waste, substance or
material, all as amended.
"Hedging Agreements" means, collectively, currency exchange agreements,
interest rate swap agreements, interest rate cap agreements and interest rate
collar agreements, and all other agreements or arrangements designed to protect
a Person against fluctuations in interest rates or currency exchange rates.
"Hedging Obligations" means, with respect to any Person, all liabilities
of such Person under Hedging Agreements.
"herein," "hereof," "hereto," "hereunder" and similar terms contained in
this Agreement or any other Loan Document refer to this Agreement or such other
Loan Document, as the case may be, as a whole and not to any particular Section,
paragraph or provision of this Agreement or such other Loan Document.
"Impermissible Qualification" means, relative to the opinion or
certification of any independent public accountant as to any financial statement
of the Parent or any other Obligor, any qualification or exception to such
opinion or certification
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29
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of matters
relevant to such financial statement; or
(c) which relates to the treatment or classification of any item in
such financial statement and which, as a condition to its removal, would
require an adjustment to such item the effect of which would be to cause
the Parent or such other Obligor to be in default of any of its
obligations under Section 8.2.4.
"including" and "include" means including without limiting the generality
of any description preceding such term, and, for purposes of this Agreement and
each other Loan Document, the parties hereto agree that the rule of ejusdem
generis shall not be applicable to limit a general statement, which is followed
by or referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;
(b) all obligations, contingent or otherwise, relative to the face
amount of all letters of credit, bonds (including Surety Bonds) and
similar obligations, whether or not drawn, and banker's acceptances issued
for the account of such Person;
(c) all obligations of such Person as lessee under leases which have
been or should be, in accordance with GAAP, recorded as Capitalized Lease
Liabilities;
(d) all obligations of such Person in the nature of overdrafts;
(e) net liabilities of such Person under all Hedging Obligations;
(f) whether or not so included as liabilities in accordance with
GAAP, all obligations of such Person to pay the deferred purchase price of
property or services (excluding open accounts extended by suppliers on
normal trade terms in connection with purchases of goods and services),
and indebtedness (excluding prepaid interest thereon) secured by a Lien on
property owned or being purchased by such Person (including indebtedness
arising under conditional sales or other title retention agreements),
whether or not such indebtedness shall have been assumed by such Person or
is limited in recourse;
(g) Redeemable Capital Stock; and
(h) all Contingent Liabilities of such Person in respect of any of
the foregoing.
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For all purposes of this Agreement, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor.
"Indemnified Liabilities" is defined in Section 12.4.
"Indemnified Parties" is defined in Section 12.4.
"Intercompany Note" means, with respect to the Parent or any of its
Subsidiaries, as the maker thereof, a promissory note substantially in the form
of Exhibit A to the Pledge Agreement (with such modifications as the
Administrative Agent may consent to, such consent not to be unreasonably
withheld), which promissory note shall evidence all intercompany loans which may
be made from time to time by the payee thereunder to such maker and shall be
duly endorsed and pledged by the payee in favor of the Administrative Agent.
"Intercreditor Agreement" means the Intercreditor Agreement executed and
delivered by the Borrowers, Chrysler and the Administrative Agent pursuant to
Section 6.1.15, substantially in the form of Exhibit I, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Interest Coverage Ratio" means, at the end of any Fiscal Quarter, the
ratio of
(a) EBITDA for the four consecutive Fiscal Quarters ending on the
last day of such Fiscal Quarter
to
(b) Aggregate Interest Expense for the four consecutive Fiscal
Quarters ending on the last day of such Fiscal Quarter (subject to the
proviso set forth in clause (a) of the definition of "Non-Vehicle Interest
Expense"), net of interest income for such four-Fiscal-Quarter period.
"Interest Period" means, relative to any Eurodollar Loan, the period
beginning on (and including) the date on which such Eurodollar Loan is made or
continued as, or converted into, a Eurodollar Loan pursuant to Section 2.3 or
2.4 and ending on (but excluding) the day which numerically corresponds to such
date one, two, three or six months thereafter (or, if such month has no
numerically corresponding day, on the last Business Day of such month) as any
Borrower may select in its relevant written notice pursuant to Section 2.3 or
2.4; provided, however, that
(a) such Borrower shall not be permitted to select Interest Periods
to be in effect at any one time which have expiration dates occurring on
more than five different dates;
(b) Interest Periods commencing on the same date for Loans
comprising part of the same Borrowing shall be of the same duration;
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(c) if such Interest Period would otherwise end on a day which is
not a Business Day, such Interest Period shall end on the next following
Business Day (unless such next following Business Day is the first
Business Day of a calendar month, in which case such Interest Period shall
end on the Business Day next preceding such numerically corresponding
day); and
(d) no Interest Period may end later than the Stated Maturity Date.
"Investment" means, relative to any Person,
(a) any loan or advance made by such Person to any other Person
(excluding commission, travel and similar advances to officers and
employees made in the ordinary course of business);
(b) any Contingent Liability of such Person; and
(c) any ownership or similar interest held by such Person in any
other Person.
The amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon (and without adjustment
by reason of the financial condition of such other Person) and shall, if made by
the transfer or exchange of property other than cash, be deemed to have been
made in an original principal or capital amount equal to the fair market value
of such property.
"Issuance Request" means a request and certificate duly executed by the
chief executive, accounting or financial Authorized Officer of any Borrower, in
substantially the form of Exhibit B-2 attached hereto (with such changes thereto
as may be agreed upon from time to time by the Administrative Agent and such
Borrower).
"Issuer" means Credit Suisse First Boston or any of its affiliates, and/or
any other Lender having short-term credit ratings of A-1 (or better) from S&P
and P-1 from Moody's which has agreed to issue one or more Letters of Credit at
the request of the Administrative Agent with the consent of each Borrower (which
consents shall not be unreasonably withheld or delayed).
"Lender Assignment Agreement" means a Lender Assignment Agreement
substantially in the form of Exhibit L hereto.
"Lenders" is defined in the preamble and, in addition, shall include any
commercial bank or other financial institution that becomes a Lender pursuant to
Section 12.11.1.
"Letter of Credit" means, collectively, Enhancement Letters of Credit and
General Letters of Credit, which letters of credit, in each case, shall be
irrevocable standby letters of credit in such form as may be requested by any
Borrower and approved by the Issuer.
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"Letter of Credit Commitment" means, relative to any Lender, such Lender's
obligation to issue (in the case of the Issuer) or participate in (in the case
of all Lenders) Letters of Credit pursuant to Section 2.1.2.
"Letter of Credit Commitment Amount" means, on any date, $190,000,000, as
such amount may be reduced from time to time pursuant to Section 2.2.3.
"Letter of Credit Outstandings" means, at any time, an amount equal to the
sum of
(a) the aggregate Stated Amount at such time of all Letters of
Credit then outstanding and undrawn (as such aggregate Stated Amount shall
be adjusted, from time to time, as a result of drawings, the issuance of
Letters of Credit, or otherwise);
plus
(b) the then aggregate amount of all unpaid and outstanding
Reimbursement Obligations.
"Leverage Ratio" means, at any time, the ratio of
(a) Adjusted Debt at such time;
to
(b) Adjusted EBITDA for the four consecutive Fiscal Quarters ending
on the last day of the Fiscal Quarter most recently completed prior to or
at such time.
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property, or other priority or preferential
arrangement of any kind or nature whatsoever, to secure payment of a debt or
performance of an obligation.
"Liquidity Facility" is defined in the fourth recital.
"Liquidity Obligation" is defined in Section 4.5.
"Loans" is defined in Section 2.1.1.
"Loan Commitment" means, relative to any Lender, such Lender's obligation
to make Loans pursuant to Section 2.1.1.
"Loan Commitment Amount" means, on any date, $70,000,000, as such amount
may be reduced from time to time pursuant to Section 2.2.3.
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"Loan Document" means this Agreement, the Notes, the Security Documents,
the Subsidiary Guaranty, the Letters of Credit, the Enhancement Letter of Credit
Application and Agreements, and each other agreement, certificate, document or
instrument delivered in connection with this Agreement and such other
agreements, whether or not specifically mentioned herein or therein.
"LOC Liquidity Disbursement" means, with respect to any Enhancement Letter
of Credit, (i) any drawing thereunder to the extent such drawing is for the
purpose of providing liquidity support to Dollar Thrifty Funding or another SPC
which has issued highly rated commercial paper in connection with the financing
of Vehicles, including any LOC Liquidity Disbursement (as defined in a CP
Enhancement Letter of Credit Application and Agreement) under a CP Enhancement
Letter of Credit and (ii) the portion of any LOC Termination Disbursement (as
defined in a CP Enhancement Letter of Credit Application and Agreement)
allocable to Dollar Thrifty Funding as a result of a ratings downgrade of the
Issuer of such CP Enhancement Letter of Credit, the failure to extend such CP
Enhancement Letter of Credit or otherwise.
"Master Collateral Agency Agreement" means the Amended and Restated Master
Collateral Agency Agreement dated as of _________ __, ____, among RCFC, Dollar
and Thrifty, as grantors, the various financing sources and beneficiaries
parties thereto, and Bankers Trust Company, as master collateral agent, as
amended, supplemented, amended and restated or otherwise modified from time to
time in accordance with the terms hereof and thereof.
"Moody's" means Xxxxx'x Investors Service Inc.
"Mortgage" means each mortgage or deed of trust, as the case may be,
executed and delivered pursuant to Section 6.1.14 and Section 8.1.8,
substantially in the form of Exhibits H-1 and H-2 respectively, attached hereto,
as amended, supplemented, restated or otherwise modified from time to time.
"MTN Program" is defined in the third recital.
"MTN Program Documents" means the Base Indenture, the Series 1997-1
Supplement thereto, the Master Collateral Agency Agreement, the master lease and
servicing agreement relating to the MTN Program, and each other material
agreement, instrument and document delivered in connection with the MTN Program,
in each case as amended, supplemented, amended and restated or otherwise
modified from time to time in accordance with the terms hereof and thereof.
"Net Disposition Proceeds" means the excess of
(a) the gross cash proceeds received by the Parent or any of its
Subsidiaries from any sale, transfer or conveyance of assets permitted
pursuant to clause (c) of Section 8.2.10 (collectively referred to herein
for purposes of this definition as a "permitted disposition"), including
and together with any amounts collected by the vendor of such assets in
respect of the taxes described in clause (b)(ii) below, and any cash
payments
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received in respect of promissory notes or other non-cash consideration
delivered to the Parent or such Subsidiary in respect of any permitted
disposition (provided that, in the event the aggregate amount of such
proceeds resulting from such permitted disposition do not exceed $100,000,
such proceeds shall not constitute Net Disposition Proceeds),.
over
(b) the sum of
(i) all fees and expenses with respect to legal, investment
banking, brokerage and accounting and other professional fees, sales
commissions and disbursements actually incurred in connection with
such permitted disposition which have not been paid (other than in
the case of reasonable out-of-pocket expenses) to Affiliates of the
Parent;
plus
(ii) all taxes and other governmental costs and expenses
actually paid or estimated by the Parent or such Subsidiary (in good
faith) to be payable in cash in connection with such permitted
disposition;
plus
(iii) payments made by the Parent or such Subsidiary to retire
Indebtedness (other than the Loans) of the Parent or such Subsidiary
where payment of such Indebtedness is required in connection with
such permitted disposition;
provided, however, that if, after the payment of all taxes with respect to such
permitted disposition, the amount of estimated taxes, if any, pursuant to clause
(b)(ii) above exceeded the tax amount actually paid in respect of such permitted
disposition, the aggregate amount of such excess shall, at such time, constitute
Net Disposition Proceeds.
"Net Equity Proceeds" means, with respect to the sale or issuance by the
Parent or any of its Subsidiaries to any Person (other than the Parent, any
Subsidiary Borrower or any of its Subsidiaries) of any Capital Stock, other than
pursuant to the Equity Offerings, or any warrants or options with respect to
such Capital Stock or the exercise of any such warrants or options, the excess
of:
(a) the gross cash proceeds received by the Parent or such
Subsidiary from such sale, exercise or issuance (other than proceeds
received with respect to (i) employee incentive compensation plans
(including incentive stock options), (ii) employee stock purchase plans
(including deferred stock purchase plans) and (iii) direct purchase plans
(other than the plans described in the preceding clauses (i) and (ii)) to
the extent such proceeds do not exceed $1,000,000 in any Fiscal Year),
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over
(b) all fees and expenses with respect to underwriting commissions
and legal, investment banking, brokerage and accounting and other
professional fees, sales commissions and disbursements actually incurred
in connection with such sale or issuance or exercise which have not (other
than in the case of reasonable out-of-pocket expenses) been paid to
Affiliates of the Parent in connection therewith.
"Net Income" means, for any applicable period, the aggregate of all
amounts which, in accordance with GAAP, would be included as net earnings (or
net loss) on a consolidated statement of operations of the Parent and its
Subsidiaries for such period.
"Net Issuance Proceeds" means, as to any issuance of indebtedness for
borrowed money by the Parent or any of its Subsidiaries (other than Indebtedness
permitted by Section 8.2.2 (except clause (u) thereof)), the excess of:
(a) the gross cash proceeds received by the Parent or such
Subsidiary from such issuance,
over
(b) all fees and expenses with respect to underwriting commissions
and legal, investment banking, brokerage and accounting and other
professional fees, sales commissions and disbursements actually incurred
in connection with such issuance and any prepayment premiums or penalties
paid in respect of any indebtedness refinanced with such proceeds in
accordance with the terms of this Agreement, which in each case have not
(other than in the case of reasonable out-of-pocket expenses) been paid to
Affiliates of the Parent in connection therewith.
"Net Worth" means, with respect to any Person at any date, on a
consolidated basis for such Person and its Subsidiaries, the excess of:
(a) the sum of capital stock (other than Redeemable Capital Stock)
taken at par value, capital surplus (other than in respect of Redeemable
Capital Stock) and retained earnings (or accumulated deficit) of such
Person at such date;
over
(b) treasury stock of such Person and, to the extent included in the
preceding clause (a), minority interests in Subsidiaries of such Person at
such date.
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"Non-Material Subsidiary" means any Subsidiary of the Parent that
(a) accounted for no more than 1 1/2% of consolidated revenues of
the Parent and its Subsidiaries or 1 1/2% of consolidated net earnings of
the Parent and its Subsidiaries, in each case for the four consecutive
Fiscal Quarters of the Parent ending on September 30, 1997, or if later,
the last day of the most recently completed Fiscal Quarter with respect to
which, pursuant to Section 8.1.1, financial statements have been, or are
required to have been, delivered by the Parent to the Administrative
Agent, and
(b) has assets which represent no more than 1 1/2% of the
consolidated assets of the Parent and its Subsidiaries as of September 30,
1997, or if later, the last day of the last Fiscal Quarter of the most
recently completed Fiscal Quarter with respect to which, pursuant to
Section 8.1.1, financial statements have been, or are required to have
been, delivered by the Parent to the Administrative Agent,
to the extent that Non-Material Subsidiaries do not
(i) account in the aggregate for more than 2 1/2% of consolidated
revenues of the Parent and its Subsidiaries or 2 1/2% of consolidated net
earnings of the Parent and its Subsidiaries in each case for the four
consecutive Fiscal Quarters of the Parent ending on September 30, 1997, or
if later, the last day of the most recently completed Fiscal Quarter with
respect to which, pursuant to Section 8.1.1, financial statements have
been, or are required to have been, delivered by the Parent, to the
Administrative Agent, or
(ii) have assets which represent more than 2 1/2% of the
consolidated assets of the Parent and its Subsidiaries as of September 30,
1997, or if later, the last day of the last Fiscal Quarter of the most
recently completed Fiscal Quarter with respect to which, pursuant to
Section 8.1.1, financial statements have been, or are required to have
been, delivered by the Parent to the Administrative Agent.
"Non-Vehicle Debt" means
(a) Total Debt
minus
(b) to the extent included in such Total Debt, Vehicle Debt
plus
(c) any obligation of a Subsidiary Borrower or any Subsidiary of
such Subsidiary Borrower (other than RCFC or another SPC) with respect to
Vehicles owned by such Subsidiary Borrower or such Subsidiary (i) which
exceeds the excess of (x) the aggregate Capitalized Cost (as defined in
the Base Indenture) of such Vehicles over (y) the greater of the sum of
the aggregate Depreciation Charges (as defined in the Base Indenture)
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37
accrued with respect to such Vehicles and the difference between such
aggregate Capitalized Cost and the fair market value of such Vehicles and
(ii) which has become due and payable and remains unpaid as of the end of
any calendar month.
"Non-Vehicle Interest Expense" means, for any applicable period, the
excess of
(a) the aggregate consolidated gross interest expense of the Parent
and its Subsidiaries for such period, as determined in accordance with
GAAP ("Aggregate Interest Expense"), including (i) commitment fees paid or
owed with respect to the then unutilized portion of the Commitment Amount,
(ii) all other fees paid or owed with respect to the issuance or
maintenance of Contingent Liabilities (including letters of credit),
which, in accordance with GAAP, would be included as interest expense,
(iii) net costs or benefits under Hedging Arrangements and (iv) the
portion of any payments made in respect of Capitalized Lease Liabilities
of the Parent and its Subsidiaries allocable to interest expense, but
excluding the amortization of debt issuance costs and other financing
expenses incurred in connection with the Transaction (provided that in the
event such gross interest expense (or any component thereof) is being
determined (x) for the four consecutive Fiscal Quarters ending on the last
day of the first Fiscal Quarter of the 1998 Fiscal Year, gross interest
expense (or the applicable component thereof) for such period shall equal
the gross interest expense (or the applicable component thereof) for the
first Fiscal Quarter of the 1998 Fiscal Year multiplied by 4.0, (y) for
the four consecutive Fiscal Quarters ending on the last day of the second
Fiscal Quarter of the 1998 Fiscal Year, gross interest expense (or the
applicable component thereof) for such period shall equal the gross
interest expense (or the applicable component thereof) for the two
consecutive Fiscal Quarters of the 1998 Fiscal Year ending on such last
day multiplied by 2.0 and (z) for the four consecutive Fiscal Quarters
ending on the last day of the third Fiscal Quarter of the 1998 Fiscal
Year, gross interest expense (or the applicable component thereof) for
such period shall equal the gross interest expense (or the applicable
component thereof) for the three consecutive Fiscal Quarters of the 1998
Fiscal Year ending on such last day multiplied by 1.33)
over
(b) to the extent included in the preceding clause (a), gross
interest expense in respect of Vehicle Debt ("Vehicle Interest Expense").
"Note" means a promissory note of any Borrower payable to the order of any
Lender, in the form of Exhibit A hereto (as such promissory note may be amended,
endorsed or otherwise modified from time to time), evidencing the aggregate
Indebtedness of such Borrower to such Lender resulting from outstanding Loans,
and also means all other promissory notes accepted from time to time in
substitution therefor or renewal thereof.
"Obligations" means all obligations (monetary or otherwise, whether
absolute or contingent, matured or unmatured, direct or indirect, xxxxxx or
inchoate, sole, joint, several or joint and several, due or to become due,
heretofore or hereafter contracted or acquired) of each
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38
Borrower and each other Obligor arising under or in connection with this
Agreement, the Notes, the Letters of Credit and each other Loan Document.
"Obligor" means, as the context may require, any Borrower and any other
Person (other than any Agent, the Issuer or any Lender) to the extent such
Person is obligated under, or otherwise a party to, this Agreement or any other
Loan Document.
"OECD" means the Organization for Economic Cooperation and Development.
"Organic Document" means, relative to any Obligor, as applicable, its
certificate of incorporation, by-laws, certificate of partnership, partnership
agreement, certificate of formation, limited liability agreement and all
shareholder agreements, voting trusts and similar arrangements applicable to any
of such Obligor's partnership interests, limited liability company interests or
authorized shares of capital stock.
"Outstanding Enhancement Letter of Credit" is defined in Section 4.2.
"Parent" is defined in the preamble.
"Participant" is defined in Section 12.11.2.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Pension Plan" means a "pension plan", as such term is defined in Section
3(2) of ERISA, which is subject to Title IV of ERISA (other than a multiemployer
plan as defined in Section 4001(a)(3) of ERISA), and to which a Borrower or any
corporation, trade or business that is, along with any Borrower, a member of a
Controlled Group, may have liability, including any liability by reason of
having been a substantial employer within the meaning of Section 4063 of ERISA
at any time during the preceding five years, or by reason of being deemed to be
a contributing sponsor under Section 4069 of ERISA.
"Percentage" means, relative to any Lender, the percentage set forth
opposite its name in Schedule I hereto or set forth in the Lender Assignment
Agreement, as such percentage may be adjusted from time to time pursuant to
Lender Assignment Agreement(s) executed by such Lender and its Assignee
Lender(s) and delivered pursuant to Section 12.11.1.
"Permitted Business Acquisition" means any Business Acquisition, so long
as
(a) (i) such Business Acquisition is a Permitted Stock Acquisition;
or
(ii) in the case of a Business Acquisition other than a Permitted
Stock Acquisition, the aggregate amount of expenditures of the Parent and
its Subsidiaries (excluding Vehicle Debt but including the aggregate
amount of any and all other Indebtedness assumed in connection therewith
and including the fair market value of any
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39
shares of Capital Stock of the Parent issued in connection therewith) in
respect of such Business Acquisition (such amount, the "Subject Amount"),
when added to the aggregate amount of all such expenditures of the Parent
and its Subsidiaries in respect of Business Acquisitions (other than
Permitted Stock Acquisitions) during the Fiscal Year in which such Subject
Amount would be expended and from the Effective Date, does not exceed
$15,000,000 (provided that the portion thereof payable in cash does not
exceed $5,000,000) and $40,000,000, respectively, and
(b) in the event the Subject Amount (which amount shall include, in
the event such Business Acquisition is to be consummated in a series of
related transactions, the aggregate amount of all such expenditures of the
Parent and its Subsidiaries in respect of such related transactions) would
exceed $5,000,000 or in the event any portion of the consideration in
respect of such Business Acquisition is in Capital Stock of the Parent,
the Administrative Agent shall have received a Compliance Certificate
executed by the chief financial Authorized Officer of the Parent
certifying and, if reasonably requested by the Administrative Agent,
showing (in reasonable detail and with appropriate calculations and
computations in all respects reasonably satisfactory to the Administrative
Agent) that on a historical pro forma basis (after giving effect to such
Business Acquisition and all transactions related thereto (including all
Indebtedness that would be assumed or incurred as a result of such
acquisition) and all Business Acquisitions consummated prior thereto
during the applicable periods thereunder) as of the last day of the most
recently completed Fiscal Quarter with respect to which, pursuant to
Section 8.1.1, financial statements have been, or are required to have
been, delivered by the Parent and the Parent would be in compliance with
Section 8.2.4 as of the last day of such Fiscal Quarter.
"Permitted Stock Acquisition" means any Business Acquisition in respect of
a Person that was a franchisee of Dollar or Thrifty or any of their respective
Subsidiaries or that is actively engaged in the business of renting for general
use passenger automobiles, light and medium duty trucks and vans, so long as the
consideration paid in connection with such Business Acquisition consists solely
of Capital Stock of the Parent issued in connection therewith and the assumption
of Vehicle Debt (if any).
"Person" means any natural person, corporation, limited liability company,
partnership, joint venture, joint stock company, firm, association, trust or
unincorporated organization, government, governmental agency, court or any other
legal entity, whether acting in an individual, fiduciary or other capacity.
"Plan" means any Pension Plan or Welfare Plan.
"Pledge Agreement" means the Pledge Agreement executed and delivered by
the Borrowers pursuant to Section 6.1.13, substantially in the form of Exhibit E
hereto, as amended, supplemented, amended and restated or otherwise modified
from time to time.
"Primary Equity Offering" is defined in the second recital.
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40
"Quarterly Payment Date" means the last Business Day of each March, June,
September, and December.
"Rating Agencies" means S&P and Xxxxx'x.
"RCFC" is defined in the third recital.
"Redeemable Capital Stock" means Capital Stock of the Parent or any of its
Subsidiaries that, either by its terms, by the terms of any security into which
it is convertible or exchangeable or otherwise, (i) is or upon the happening of
an event or passage of time would be required to be redeemed (for consideration
other than shares of common stock of the Parent) on or prior to December 31,
2003, (ii) is redeemable at the option of the holder thereof (for consideration
other than shares of common stock of the Parent) at any time prior to such date
or (iii) is convertible into or exchangeable for debt securities of the Parent
or any of its Subsidiaries at any time prior to such anniversary.
"Register" is defined in Section 12.11.1.
"Regulation S-X" means the rules promulgated by the SEC and codified under
17 CFR ss.ss.210, et. seq.
"Reimbursement Due Date" is defined in Section 4.5.
"Reimbursement Obligation" is defined in Section 4.6.
"Release" means a "release," as such term is defined in CERCLA.
"Rental Expense" is defined in the definition of "Fixed Coverage Ratio".
"Replacement Letter of Credit" is defined in Section 4.2.
"Required Lenders" means, at any time, Lenders holding more than 50% of
the sum of the aggregate principal amount of the Loans then outstanding plus the
Letter of Credit Outstandings, or if no Loans and Letters of Credit are then
outstanding, Lenders having more than 50% of the Commitment Amount.
"Resource Conservation and Recovery Act" means the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901, et seq., as amended.
"S&P" means Standard & Poor's Rating Services.
"SEC" means the Securities and Exchange Commission.
"Secondary Equity Offering" is defined in the second recital.
"Secured Parties" means the Lenders, the Issuer, the Agents and each of
their respective successors, transferees and assigns.
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"Securities Act" means the Securities Act of 1933, as amended.
"Security Agreement" means the Security Agreement executed and delivered
by the Borrowers and the Subsidiary Guarantors pursuant to Section 6.1.13,
substantially in the form of Exhibit F hereto, as amended, supplemented, amended
and restated or otherwise modified from time to time.
"Security Documents" means (i) each Mortgage, (ii) the Security Agreement,
(iii) the Pledge Agreement, (iv) the Foreign Pledge Agreements (if any), (v) the
Intercreditor Agreement and (vi) all security agreements, mortgages, deeds of
trust, pledges, collateral assignments or any other instrument evidencing or
creating any security interest in favor of the Administrative Agent in any asset
or property of the Parent or any of its Subsidiaries, in each case as amended,
supplemented or otherwise modified from time to time.
"SPC" means RCFC, Dollar Thrifty Funding, Thrifty Trust, a trust organized
under the laws of Canada, each successor entity thereto, and any other special
purpose entity formed for the sole purpose of financing the acquisition of
Vehicles.
"Stated Amount" of any letter of credit (including each Letter of Credit)
means the maximum amount available for drawing thereunder (whether or not any
conditions to drawing can then be met).
"Stated Expiry Date" is defined in Section 4.1.
"Stated Maturity Date" means December 23, 2002.
"Subordinated Debt" means all unsecured Indebtedness of the Parent, any
Subsidiary Borrower or any Subsidiary Guarantor for money borrowed which is
subordinated, upon terms satisfactory to the Administrative Agent, in right of
payment to the payment in full in cash of all Obligations of the Parent, such
Subsidiary Borrower or such Subsidiary Guarantor, as the case may be.
"Subordinated Intercompany Debt" means unsecured Indebtedness (a)
subordinated to the Obligations by provisions substantially in the form set
forth in Schedule III hereto and (b) the terms of which (including interest
rate) are not more burdensome to the obligor or obligors thereunder than those
terms generally available from independent third parties to obligors similarly
situated as such obligor or obligors.
"Subsidiary" means, with respect to any Person, any corporation,
partnership or other business entity of which more than 50% of the outstanding
capital stock (or other ownership interest) having ordinary voting power to
elect a majority of the board of directors, managers or other voting members of
the governing body of such entity (irrespective of whether at the time capital
stock (or other ownership interest) of any other class or classes of such entity
shall or might have voting power upon the occurrence of any contingency) is at
the time directly or
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indirectly owned by such Person, by such Person and one or more other
Subsidiaries of such Person, or by one or more other Subsidiaries of such
Person.
"Subsidiary Borrowers" is defined in the preamble.
"Subsidiary Guarantor" means any Subsidiary of the Parent that is a party
to the Subsidiary Guaranty.
"Subsidiary Guaranty" means the Guaranty executed and delivered by each
Subsidiary of the Parent that is a party thereto pursuant to Section 6.1.11,
substantially in the form of Exhibit G hereto, as amended, supplemented,
restated or otherwise modified from time to time.
"Surety Bond" means any instrument pursuant to which the issuer thereof
agrees to pay on behalf of a Borrower or any of its Subsidiaries an amount then
due and payable by such Borrower or such Subsidiary to another Person (including
an insurer of such Borrower or such Subsidiary).
"Syndication Agent" is defined in the preamble.
"Tax Sharing Agreement" means the Tax Sharing and Disaffiliation Agreement
dated as of November 24, 1997, between Chrysler and the Parent, as amended,
supplemented, amended and restated or otherwise modified from time to time in
accordance with the terms hereof and thereof.
"Taxes" is defined in Section 5.6.
"Thrifty" is defined in the preamble.
"Total Debt" means, without duplication, the aggregate amount of all
Indebtedness of the Parent and its Subsidiaries, other than Indebtedness of the
type described in clause (d) or (e) of the definition of "Indebtedness" or, to
the extent in respect of such type of Indebtedness, clause (h) of the definition
of "Indebtedness."
"Transaction" is defined in the fifth recital.
"type" means, relative to any Loan, the portion thereof, if any, being
maintained as an ABR Loan or a Eurodollar Loan.
"U.C.C." means the Uniform Commercial Code as from time to time in effect
in the State of New York.
"United States" or "U.S." means the United States of America, its fifty
states and the District of Columbia.
"U.S. Dollar" and the symbol "$" mean the lawful currency of the United
States.
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"U.S. Government Obligations" means direct obligations of, or obligations
the timely payment of principal of and interest on which is fully and
unconditionally guaranteed by, the United States.
"U.S. Tax Compliance Certificate" is defined in clause (b)(Y) of Section
5.6.
"Vehicle Debt" means Indebtedness relating solely to the financing or
leasing of any Vehicle and secured thereby (and by related collateral); provided
that any obligation included as Non-Vehicle Debt pursuant to clause (c) of the
definition thereof shall not be deemed to be Vehicle Debt.
"Vehicle Interest Expense" is defined in clause (b) of the definition of
"Non-Vehicle Interest Expense."
"Vehicles" means all existing and hereafter acquired motor vehicle
inventory of either Dollar or Thrifty and their respective Subsidiaries
(including such inventory owned by other Subsidiaries of the Parent, including
RCFC, that is leased to Dollar or Thrifty or their respective Subsidiaries),
consisting of passenger automobiles, vans and light and medium duty trucks,
whether owned or leased and whether held for purposes of sale, lease, rental or
internal management use.
"Voting Stock" means, with respect to any Person, Capital Stock in respect
of the class or classes pursuant to which the holders thereof have the general
voting power under ordinary circumstances to elect at least a majority of the
board of directors, managers, trustees or other similar governing body of such
Person (irrespective of whether or not at the time the Capital Stock of any
other class or classes shall have or might have voting power by reason of the
occurrence of any contingency).
"Xxxxxx Agreement" means the ______________ dated as of _____________,
1997, between Xxxxxx Fleet Services, Inc. and Dollar, with respect to
approximately 3,000 1998 model year vehicles manufactured by Kia Motors
Corporation.
"Welfare Plan" means a "welfare plan", as such term is defined in Section
3(1) of ERISA.
"Wholly Owned Subsidiary" means, with respect to any Person, a Subsidiary
all the Capital Stock (other than directors' qualifying shares that are required
under applicable law) of which is owned by such Person or another Wholly Owned
Subsidiary of such Person.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the context
otherwise requires, terms for which meanings are provided in this Agreement
shall have such meanings when used in the Disclosure Schedule and in each Note,
Borrowing Request, Continuation/Conversion Notice, Issuance Request, Loan
Document, notice and other communication delivered from time to time in
connection with this Agreement or any other Loan Document.
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SECTION 1.3. Cross-References. Unless otherwise specified, references in
this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to such clause of
such Article, Section or definition.
SECTION 1.4. Accounting and Financial Determinations. Unless otherwise
specified, all accounting terms used herein or in any other Loan Document shall
be interpreted, all accounting determinations and computations hereunder or
thereunder (including under Section 8.2.4) shall be made, and all financial
statements required to be delivered hereunder or thereunder shall be prepared in
accordance with, those generally accepted accounting principles ("GAAP") applied
in the preparation of the financial statements referred to in Section 7.5.
Unless otherwise expressly provided, all financial covenants and defined
financial terms shall be computed on a consolidated basis for the Parent and its
Subsidiaries, in each case without duplication.
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES AND NOTES
SECTION 2.1. Commitments. On the terms and subject to the conditions of
this Agreement (including Article VI), each Lender severally agrees as follows:
SECTION 2.1.1. Loan Commitment. From time to time on any Business Day
occurring prior to the Commitment Termination Date, each Lender will make Loans
(relative to such Lender, its "Loans") to the Borrower so requesting such Loans
equal to such Lender's Percentage of the aggregate amount of the Borrowing of
Loans requested by such Borrower to be made on such day. On the terms and
subject to the conditions hereof, each Borrower may from time to time borrow,
prepay and reborrow Loans.
SECTION 2.1.2. Commitment to Issue Letters of Credit. From time to time on
any Business Day prior to the Stated Maturity Date, the Issuer will issue, and
each Lender will participate in, the Letters of Credit, in accordance with
Article IV.
SECTION 2.1.3. Lenders Not Permitted or Required to Make Loans or Issue
Letters of Credit Under Certain Circumstances. No Lender shall be permitted or
required to
(a) make any Loan if, after giving effect thereto, the aggregate
outstanding principal amount of all Loans
(i) of all Lenders would exceed the Loan Commitment Amount,
(ii) of all Lenders, together with all Letter of Credit
Outstandings, would exceed the Commitment Amount,
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(iii) of such Lender would exceed such Lender's Percentage of
the Loan Commitment Amount, or
(iv) of such Lender, together with its Percentage of all
Letter of Credit Outstandings, would exceed such Lender's Percentage
of the Commitment Amount; or
(b) issue (in the case of the Issuer) any Letter of Credit if, after
giving effect thereto
(i) all Letter of Credit Outstandings would exceed the Letter
of Credit Commitment Amount,
(ii) all Letter of Credit Outstandings, together with the
aggregate outstanding principal amount of all Loans of all Lenders
would exceed the Commitment Amount,
(iii) such Lender's Percentage of all Letter of Credit
Outstandings (after giving effect to Section 4.4) would exceed such
Lender's Percentage of the Letter of Credit Commitment Amount, or
(iv) such Lender's Percentage of all Letter of Credit
Outstandings (after giving effect to Section 4.4), together with the
aggregate outstanding principal amount of all Loans of such Lender
would exceed such Lender's Percentage of the Commitment Amount.
SECTION 2.2. Reduction of Commitment Amounts. The Commitment Amount, the
Letter of Credit Commitment Amount and the Loan Commitment Amount are subject to
reduction from time to time pursuant to this Section 2.2.
SECTION 2.2.1. Optional. The Borrowers may, from time to time on any
Business Day occurring after the Closing Date, voluntarily reduce the unused
amount of the Commitment Amount; provided, however, that all such reductions
shall require at least three Business Days' prior written notice to the
Administrative Agent and be permanent, and any partial reduction of the
Commitment Amount shall be in a minimum amount of $5,000,000 and in an integral
multiple of $1,000,000.
SECTION 2.2.2. Mandatory. The Commitment Amount shall, on the second
Business Day following the receipt by the Parent or any of its Subsidiaries of
any Net Disposition Proceeds, Net Equity Proceeds, Net Issuance Proceeds or
Casualty Proceeds, as the case may be, be reduced by an aggregate amount equal
to 100% of such Net Disposition Proceeds, 50% of such Net Equity Proceeds, 100%
of such Net Issuance Proceeds or 100% of such Casualty Proceeds, as the case may
be; provided, however, that, so long as a Default has not occurred and is not
then continuing, the Commitment Amount shall not be reduced by
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(a) the amount of Net Disposition Proceeds received by the Parent or
such Subsidiary in any Fiscal Year (commencing with the 1998 Fiscal Year)
that does not exceed $5,000,000 to the extent such proceeds are applied to
the acquisition or construction of property or assets to be used in the
business of the Borrowers and their Subsidiaries within 180 days following
the receipt thereof; provided further, however, that Net Disposition
Proceeds exceeding $2,500,000 from a single transaction shall not be
required to be applied to the reduction of the Commitment Amount if (i)
the Parent notifies the Administrative Agent in writing no later than the
thirtieth day following the receipt of such Net Disposition Proceeds of
the Parent's or such Subsidiary's good faith intention to apply such Net
Disposition Proceeds to such replacement, acquisition or construction (and
describes in reasonable written detail such proposed application no later
than the sixtieth day following the receipt of such Net Disposition
Proceeds) within 360 days following the receipt of such Net Disposition
Proceeds and (ii) the Parent or such Subsidiary in fact uses such Net
Disposition Proceeds as specified in such notice to the Administrative
Agent within 360 days following the receipt of such Net Disposition
Proceeds; and
(b) the amount of any Casualty Proceeds received by the Parent or
such Subsidiary that are applied to the rebuilding or replacement of the
property or assets which were the source of such Casualty Proceeds within
180 days following the occurrence of such Casualty Event or such longer
period as may otherwise be provided in any Mortgage with respect to such
property or assets.
Each such reduction in the Commitment Amount shall be permanent and automatic.
SECTION 2.2.3. Corresponding Reductions. Any reduction of the Commitment
Amount which reduces the Commitment Amount below the then current amount of the
Letter of Credit Commitment Amount or the Loan Commitment Amount, as the case
may be, shall result in an automatic and corresponding reduction of the Letter
of Credit Commitment Amount or the Loan Commitment Amount, as the case may be,
to the amount of the Commitment Amount, as so reduced, without any further
action on the part of the Administrative Agent, the Lenders or otherwise.
SECTION 2.3. Borrowing Procedure. By delivering a Borrowing Request to the
Administrative Agent on or before 11:00 a.m. (New York City, New York time) on a
Business Day, any Borrower may from time to time irrevocably request,
(a) on such Business Day (but in any event not more than five
Business Days' notice) in the case of ABR Loans, or
(b) on not less than three (but in any event not more than five)
Business Days' notice in the case of Eurodollar Loans,
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(c) that a Borrowing be made, in the case of ABR Loans, in a minimum
amount of $1,000,000 and an integral multiple of $100,000, in the case of
Eurodollar Loans, in a minimum amount of $5,000,000 and an integral
multiple of $100,000 or, in either case, in the unused amount of the
Commitment. On the terms and subject to the conditions of this Agreement,
each Borrowing shall be comprised of the type of Loans, and shall be made
on the Business Day specified in such Borrowing Request. On or before 1:00
p.m. (New York City, New York time) on such Business Day, each Lender
shall deposit with the Administrative Agent same day funds in an amount
equal to such Lender's Percentage of the requested Borrowing. Such deposit
will be made to an account which the Administrative Agent shall specify
from time to time by notice to the Lenders. To the extent funds are
received from the Lenders, the Administrative Agent shall make such funds
available to such Borrower by wire transfer to the accounts such Borrower
shall have specified in its Borrowing Request. No Lender's obligation to
make any Loan shall be affected by any other Lender's failure to make any
Loan.
SECTION 2.4. Continuation and Conversion Elections. By delivering a
Continuation/Conversion Notice to the Administrative Agent on or before 11:00
a.m. (New York City, New York time) on a Business Day, any Borrower may from
time to time irrevocably elect with respect to Loans borrowed by it,
(a) on such Business Day in the case of ABR Loans, or
(b) on not less than three (but in any event not more than five)
Business Days' notice in the case of Eurodollar Loans,
that all, or any portion in an aggregate minimum amount of $5,000,000 and an
integral multiple of $100,000, in the case of any Eurodollar Loan, be converted
into an ABR Loan, or an aggregate minimum amount of $5,000,000 and an integral
multiple of $100,000, in the case of any ABR Loan or Eurodollar Loan, as the
case may be, be converted into or continued as, as the case may be, a Eurodollar
Loan (in the absence of delivery of a Continuation/ Conversion Notice with
respect to any Eurodollar Loan at least three Business Days (but not more than
five Business Days) before the last day of the then current Interest Period with
respect thereto, such Eurodollar Loan shall, on such last day, automatically
convert to an ABR Loan); provided, however, that (i) each such conversion or
continuation shall be pro rated among the applicable outstanding Loans of all
Lenders and (ii) no portion of the outstanding principal amount of any Loans may
be continued as, or be converted into, Eurodollar Loans when any Default has
occurred and is continuing.
SECTION 2.5. Funding. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert Eurodollar Loans hereunder by causing
one of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such Eurodollar Loan; provided,
however, that such Eurodollar Loan shall nonetheless be deemed to have been made
and to be held by such Lender, and the obligation of the applicable Borrower to
repay such Eurodollar Loan shall nevertheless be to such Lender for the account
of such foreign branch, Affiliate or international banking facility. In
addition, each Borrower hereby consents
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and agrees that, for purposes of any determination to be made for purposes of
Section 5.1, 5.2, 5.3 or 5.4, it shall be conclusively assumed that each Lender
elected to fund all Eurodollar Loans by purchasing deposits in U.S. Dollars in
its Eurodollar Office's interbank eurodollar market.
SECTION 2.6. Loan Accounts. (a) The Loans and participations in the Letter
of Credit Outstandings made by each Lender and the Letters of Credit issued by
the Issuer shall be evidenced by one or more loan accounts or records maintained
by such Lender or the Issuer, as the case may be, in the ordinary course of
business. The loan accounts or records maintained by the Administrative Agent,
the Issuer and each Lender shall be conclusive absent manifest error of the
amount of the Loans, the participations in Letter of Credit Outstandings and the
Letters of Credit made by the Lenders and the Issuer, as the case may be, and
the interest and payments thereon. Any failure so to record or any error in
doing so shall not, however, limit or otherwise affect the obligation of any
Borrower hereunder to pay any amount owing with respect to the Loans and Letters
of Credit, as the case may be, or of the Lenders with respect to participations
in Letter of Credit Outstandings.
(b) If requested by any Lender, such Lender's Loans under the Loan
Commitment shall be evidenced by a Note payable to the order of such Lender in a
maximum principal amount equal to such Lender's Percentage of the original Loan
Commitment Amount. Each Borrower hereby irrevocably authorizes each Lender
having a Note to make (or cause to be made) appropriate notations on the grid
attached to such Lender's Note (or on any continuation of such grid), which
notations, if made, shall evidence, inter alia, the date of, the outstanding
principal of, and the interest rate and Interest Period applicable to the Loans
evidenced thereby. Such notations shall be conclusive and binding on applicable
Borrower absent manifest error; provided, however, that the failure of any
Lender having a Note to make any such notations shall not limit or otherwise
affect any Obligations of any Borrower or any other Obligor.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments. Each Borrower shall repay in full
the unpaid principal amount of each of its Loans upon the Stated Maturity Date.
Prior thereto, such Borrower
(a) may, from time to time on any Business Day, make a voluntary
prepayment, in whole or in part, of the outstanding principal amount of
any Loans borrowed by it; provided, however, that
(i) any such prepayment shall be made pro rata among Loans of
the same type, and, if applicable, having the same Interest Period
of all Lenders;
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(ii) all such voluntary prepayments shall require prior
irrevocable written notice to the Administrative Agent received by
the Administrative Agent no later than 11:00 a.m. (New York City,
New York)
(A) on such Business Day in the case of ABR Loans, or
(B) on not less than three (but in any event not more
than five) Business Days' notice in the case of Eurodollar
Loans, and
(iii) all such voluntary partial prepayments shall be, in the
case of ABR Loans, in an aggregate minimum amount of $1,000,000 and
an integral multiple of $100,000 and, in the case of Eurodollar
Loans, in an aggregate minimum amount of $5,000,000 and an integral
multiple of $100,000;
(b) shall, on each date when any reduction in the Commitment Amount
shall become effective (including pursuant to Section 2.2), make a
mandatory prepayment equal to the excess, if any, of the aggregate,
outstanding principal amount of all Loans and Letter of Credit
Outstandings over the Commitment Amount in effect on such date (following
such reduction), which mandatory prepayment shall be applied (or held for
application, as the case may be) by the Lenders
(i) first, to the payment of the aggregate unpaid principal
amount of those Loans then outstanding equal to the excess, if any,
of the aggregate, outstanding principal amount of all Loans over the
Loan Commitment Amount in effect on such date (following such
reduction, if applicable);
(ii) second, to the payment and/or cash collateralization of
the then outstanding Letter of Credit Outstandings equal to the
excess, if any, of the Letter of Credit Outstandings over the Letter
of Credit Commitment Amount in effect on such date (following such
reduction, if applicable); and
(iii) third, to the payment of the aggregate unpaid principal
amount of the Loans, and then to the payment and/or cash
collateralization of the then outstanding Letter of Credit
Outstandings equal to the excess, if any, of the aggregate,
outstanding principal amount of all Loans and Letter of Credit
Outstandings over the Commitment Amount in effect on such date; and
(c) shall, immediately upon any acceleration of the Stated Maturity
Date of any Loans pursuant to Section 9.2 or Section 9.3, repay all Loans,
unless, pursuant to Section 9.3, only a portion of all Loans is so
accelerated.
Each prepayment of any Loans made pursuant to this Section shall be without
premium or penalty (except as may be required by Section 5.4).
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SECTION 3.2. Interest Provisions. Interest on the outstanding principal
amount of Loans shall accrue and be payable in accordance with this Section 3.2.
SECTION 3.2.1. Rates. Pursuant to an appropriately delivered Borrowing
Request or Continuation/Conversion Notice, any Borrower may elect that Loans
comprising a Borrowing accrue interest at a rate per annum:
(a) on that portion maintained from time to time as an ABR Loan,
equal to the sum of the Alternate Base Rate from time to time in effect
plus the Applicable Margin for such Loan; and
(b) on that portion maintained as a Eurodollar Loan, during each
Interest Period applicable thereto, equal to the sum of the Eurodollar
Rate (Reserve Adjusted) for such Interest Period plus the Applicable
Margin for such Loan.
All Eurodollar Loans shall bear interest from and including the first day
of the applicable Interest Period to (but not including) the last day of such
Interest Period at the interest rate determined as applicable to such Eurodollar
Loan.
SECTION 3.2.2. Post-Maturity Rates. After the date any principal amount of
any Loan is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise) and not paid on such date, or after any other
monetary Obligation of any Borrower or any other Obligor, as the case may be,
shall have become due and payable and not be paid on such date, such Borrower or
such other Obligor, as the case may be, shall pay, but only to the extent
permitted by law and not otherwise provided for in any Enhancement Letter of
Credit in respect of a Liquidity Obligation, interest (after as well as before
judgment) on the aggregate principal amount of all Loans then outstanding and on
such other monetary Obligations at a rate per annum equal
(a) in the case of the aggregate principal amount of all Loans then
outstanding, to the interest rate otherwise applicable thereto plus an
additional margin of 200 basis points; and
(b) in the case of such other monetary Obligations of such Borrower
or such other Obligor (other than such obligations comprised of the
principal amount of any Loan), to the Alternate Base Rate from time to
time in effect plus a margin of 200 basis points.
SECTION 3.2.3. Payment Dates. Interest accrued on each Loan shall be
payable, without duplication:
(a) on the Stated Maturity Date therefor;
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(b) on the date of any optional or required payment or prepayment,
in whole or in part, of principal outstanding on such Loan (to the extent
of the amount prepaid or required to be prepaid);
(c) with respect to ABR Loans, on each Quarterly Payment Date
occurring on or after March 31, 1998;
(d) with respect to Eurodollar Loans, on the last day of each
applicable Interest Period (and, if such Interest Period shall exceed
three months, on the same calendar day of every third month of such
Interest Period as the day on which such Interest Period commenced);
(e) with respect to any ABR Loans converted into Eurodollar Loans on
a day when interest would not otherwise have been payable pursuant to
clause (c), on the date of such conversion; and
(f) on that portion of any Loans the Stated Maturity Date of which
is accelerated pursuant to Section 9.2 or Section 9.3, immediately upon
such acceleration.
Interest accrued on Loans or other monetary Obligations arising under this
Agreement or any other Loan Document after the date such amount is due and
payable (whether on the Stated Maturity Date, upon acceleration or otherwise)
shall be payable upon demand.
SECTION 3.3. Fees. The Borrowers, jointly and severally, agree to pay the
fees set forth in this Section 3.3. All such fees shall be non-refundable.
SECTION 3.3.1. Commitment Fees. The Borrowers, jointly and severally,
agree to pay to the Administrative Agent for the account of each Lender, for the
period (including any portion thereof when any of its Commitment is suspended by
reason of any Borrower's inability to satisfy any condition of Article VI)
commencing on the Effective Date and continuing through the Commitment
Termination Date, a commitment fee equal to the Applicable Commitment Fee on
such Lender's Percentage of the sum of the average daily unused portion of the
Commitment Amount. Such commitment fee shall be payable by the Borrowers,
jointly and severally, in arrears on each Quarterly Payment Date, on or after
March 31, 1998, and on the Commitment Termination Date.
SECTION 3.3.2. Arrangement Fees. In accordance with the letter agreement
(the "Fee Letter") among the Borrowers, Credit Suisse First Boston, Chase and
Chase Securities Inc. dated November 19, 1997, the Borrowers, jointly and
severally, shall pay on the Closing Date an arrangement fee to the Arrangers for
the account of the Lenders in such proportion as the Arrangers shall determine
in their sole discretion.
SECTION 3.3.3. Administrative Agent's Fee. The Borrowers, jointly and
severally, agree to pay to the Administrative Agent for its own account, a
non-refundable initial fee in the amount set forth in the Fee Letter, payable on
the Closing Date and, thereafter, a non-refundable
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annual fee in the amount set forth in the Fee Letter, payable in advance on each
anniversary of the Closing Date.
SECTION 3.3.4. Letter of Credit Face Amount Fee. The Borrower or Borrowers
requesting a Letter of Credit agree to pay to the Administrative Agent, for the
account of the Lenders, a fee for such Letter of Credit for the period from and
including the date of the issuance of such Letter of Credit to (but not
including) the date upon which such Letter of Credit expires or is terminated,
calculated at a per annum rate equal to the Applicable Margin with respect to
Eurodollar Loans on the Stated Amount of such Letter of Credit. Such fee shall
be payable by such Borrower or Borrowers in arrears each Quarterly Payment Date,
on or after March 31, 1998, commencing on the first such date after the issuance
of such Letter of Credit.
SECTION 3.3.5. Letter of Credit Issuing Fee. The Borrower or Borrowers
requesting a Letter of Credit agree to pay to the Administrative Agent, for the
account of the Issuer, an issuing fee for such Letter of Credit for the period
from and including the date of issuance of such Letter of Credit to (but not
including) the date upon which such Letter of Credit expires or is terminated of
1/8% per annum on the Stated Amount of such Letter of Credit. Such fee shall be
payable by such Borrower or Borrowers in arrears on each Quarterly Payment Date
on or after March 31, 1998, and on the Commitment Termination Date for any
period then ending for which such fee shall not theretofore have been paid,
commencing on the first such date after the issuance of such Letter of Credit.
SECTION 3.3.6. Letter of Credit Administrative Fee. Each Borrower agrees
to pay to the Administrative Agent, for the account of the Issuer, the amounts
set forth in Section 4.3.
ARTICLE IV
LETTERS OF CREDIT
SECTION 4.1. Issuance Requests. By delivering to the Administrative Agent
and the Issuer an Issuance Request, together with an Enhancement Letter of
Credit Application and Agreement if such Issuance Request is in respect of an
Enhancement Letter of Credit on or before 11:00 a.m. (New York City, New York
time), a Subsidiary Borrower may request, from time to time prior to the
Commitment Termination Date and on not less than three nor more than 30 Business
Days' notice, in the case of General Letters of Credit, and on not less than 15
nor more than 30 Business Days' notice, in the case of Enhancement Letters of
Credit, that the Issuer issue Letters of Credit in support of financial
obligations of such Subsidiary Borrower or any other Account Party incurred (in
the case of General Letters of Credit) in the ordinary course of business of
such Borrower or such Account Party, as the case may be, and which are described
in such Issuance Request; provided that, in the case of an Issuance Request that
requests an increase in the Stated Amount of an Enhancement Letter of Credit
then outstanding, such Issuance Request shall be so delivered on not less than
five nor more than fifteen Business Days notice. Upon receipt of an Issuance
Request and, if applicable, an Enhancement Letter of Credit
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Application and Agreement, the Administrative Agent shall promptly notify the
Lenders thereof. Each Letter of Credit shall by its terms:
(a) be issued in a Stated Amount denominated in U.S. Dollars which
(i) is at least $25,000;
(ii) does not exceed (or would not exceed)
(A) an amount equal to the excess, if any, of (x) the
Commitment Amount over (y) the sum of all Letter of Credit
Outstandings plus the aggregate outstanding principal amount
of all Loans, or
(B) an amount equal to the excess, if any, of the Letter
of Credit Commitment Amount over all Letter of Credit
Outstandings; and
(b) be stated to expire on a date (its "Stated Expiry Date") no
later than the earlier of (i) (A) one year from its date of issuance, in
the case of a General Letter of Credit, and (B) three years from its date
of issuance, in the case of an Enhancement Letter of Credit, and (ii) the
Commitment Termination Date in effect at the time of such issuance.
So long as no Default has occurred and is continuing, by delivery to the Issuer
and the Administrative Agent of an Issuance Request, at least three but not more
than ten Business Days prior to the Stated Expiry Date of any issued General
Letter of Credit or prior to the date any issued General Letter of Credit
containing an "evergreen" or similar automatic extension feature is scheduled to
automatically be extended (unless the beneficiary thereof shall have received
notice to the contrary from the Issuer), the applicable Subsidiary Borrower may
request the Issuer to extend the Stated Expiry Date of such issued General
Letter of Credit for an additional period not to exceed the earlier of (A) one
year from its date of extension and (B) the Commitment Termination Date in
effect at the time of such extension. So long as no Default has occurred and is
continuing, the applicable Subsidiary Borrower (or the applicable Account Party)
may request the Issuer to extend the Stated Expiry Date of any issued
Enhancement Letter of Credit for an additional period not to exceed the earlier
of (A) two years from its date of extension and (B) the Commitment Termination
Date in effect at the time of such extension; provided such request is made in
accordance with the terms of the Enhancement Letter of Credit Application and
Agreement relating thereto and is accompanied by delivery to the Issuer and the
Administrative Agent of an Issuance Request. Each Enhancement Letter of Credit
that provides for LOC Liquidity Disbursements shall be issued pursuant to an
Enhancement Letter of Credit Application and Agreement substantially in the form
of Exhibit J, with such modifications thereto as the Administrative Agent and
the Issuer may consent (a "CP Enhancement Letter of Credit Application and
Agreement"). Notwithstanding any provision contained in the foregoing to the
contrary, no Borrower may request the issuance of, and the Issuer shall not have
any obligation to issue, any Letter of Credit at any time when, and so long as,
there shall be
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outstanding in the aggregate 50 Letters of Credit, unless otherwise consented to
by the Issuer and the Administrative Agent.
SECTION 4.2. Issuances and Extensions. On the terms and subject to the
conditions of this Agreement (including Article VI), the Issuer shall issue
Letters of Credit, and extend the Stated Expiry Dates of outstanding Letters of
Credit, in accordance with the Issuance Requests made therefor and, if
applicable, the Enhancement Letter of Credit Application and Agreement relating
thereto; provided, however, that the issuance of an Enhancement Letter of Credit
(a "Replacement Enhancement Letter of Credit") to replace another outstanding
Enhancement Letter of Credit (an "Outstanding Enhancement Letter of Credit")
shall not require the satisfaction of the terms and conditions set forth in
Section 6.2.1 so long as (a) the issuance of the Replacement Enhancement Letter
of Credit is required under the Enhancement Letter of Credit Application and
Agreement relating to the Outstanding Enhancement Letter of Credit, (b) the
Replacement Letter of Credit has terms substantially identical to those of the
Outstanding Enhancement Letter of Credit, and (c) the Outstanding Enhancement
Letter of Credit is terminated contemporaneously with the issuance of the
Replacement Enhancement Letter of Credit. The Issuer shall promptly confirm any
such issuance or extension (including the date of such issuance or extension),
as the case may be, to the Administrative Agent. The Issuer will make available
the original of each Letter of Credit which it issues in accordance with the
Issuance Request and the Enhancement Letter of Credit Application and Agreement,
if applicable, therefor to the beneficiary thereof (and will promptly provide
each of the Lenders with a copy of such Letter of Credit) and will notify the
beneficiary under any Letter of Credit of any extension of the Stated Expiry
Date thereof.
SECTION 4.3. Expenses. Each Borrower agrees to pay to the Administrative
Agent for the account of the Issuer all reasonable and customary administrative
expenses of the Issuer in connection with the issuance, maintenance,
modification (if any) and administration of each Letter of Credit requested by
such Borrower promptly upon demand from time to time.
SECTION 4.4. Other Lenders' Participation. Each Letter of Credit issued
pursuant to Section 4.2 shall, effective upon its issuance and without further
action, be issued on behalf of all Lenders (including the Issuer thereof) pro
rata according to their respective Percentages. Each Lender shall, to the extent
of its Percentage, be deemed irrevocably to have participated in the issuance of
such Letter of Credit and (x) shall be responsible to reimburse promptly the
Issuer thereof for Reimbursement Obligations which have not been reimbursed by
the applicable Borrower in accordance with Section 4.5, or which have been
reimbursed by such Borrower but must be returned, restored or disgorged by the
Issuer for any reason, or (y) in the case of an LOC Liquidity Disbursement,
shall participate in such LOC Liquidity Disbursement in accordance with the
terms of the Enhancement Letter of Credit Application and Agreement relating
thereto. Each Lender shall, to the extent of its Percentage, be entitled to
receive from the Administrative Agent a ratable portion of the letter of credit
fees received by the Administrative Agent pursuant to Section 3.3.4 with respect
to each Letter of Credit. In the event that (a) the applicable Borrower or
Borrowers shall fail to reimburse the Issuer, or if for any reason Loans shall
not be made to fund any Reimbursement Obligation, all as provided in Section 4.5
and in an amount equal to the amount of any drawing honored by the Issuer under
a Letter of Credit issued by it,
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(b) the Issuer must for any reason return or disgorge such reimbursement or (c)
an LOC Liquidity Disbursement has occurred, the Issuer shall promptly notify the
Administrative Agent of the unreimbursed amount of such drawing and of such
Lender's respective participation therein. Each Lender shall make available to
the Administrative Agent for the account of the Issuer, whether or not any
Default shall have occurred and be continuing, an amount equal to its respective
participation in same day or immediately available funds at the office of the
Issuer specified in such notice not later than 11:00 a.m. (New York City, New
York time) on the Business Day (under the laws of the jurisdiction of the
Issuer) after the date notified by the Issuer. In the event that any Lender
fails to make available to the Administrative Agent for the account of the
Issuer the amount of such Lender's participation in such Letter of Credit as
provided herein, the Issuer shall be entitled to recover such amount on demand
from such Lender together with interest at the daily average Federal Funds Rate
for three Business Days (together with such other compensatory amounts as may be
required to be paid by such Lender to the Administrative Agent and/or the
Issuer, as the case may be, pursuant to the Rules for Interbank Compensation of
the Council on International Banking or the Clearinghouse Compensation
Committee, as the case may be, as in effect from time to time) and thereafter at
the Alternate Base Rate plus 200 basis points. Nothing in this Section shall be
deemed to prejudice the right of any Lender to recover from the Issuer any
amounts made available by such Lender to the Issuer pursuant to this Section in
the event that it is determined by a court of competent jurisdiction that the
payment with respect to a Letter of Credit by the Issuer in respect of which
payment was made by such Lender constituted gross negligence or wilful
misconduct on the part of the Issuer. The Issuer shall distribute to the
Administrative Agent for the account of each other Lender which has paid all
amounts payable by it under this Section with respect to any Letter of Credit
issued by the Issuer such other Lender's Percentage of all payments received by
the Issuer from any Borrower in reimbursement of drawings honored by the Issuer
under such Letter of Credit when such payments are received.
SECTION 4.5. Disbursements. The Issuer will notify the applicable Borrower
or Borrowers and the Administrative Agent promptly of the presentment for
payment of any Letter of Credit, together with notice of the date (a
"Disbursement Date") such payment shall be made. Subject to the terms and
provisions of such Letter of Credit, the Issuer shall make such payment to the
beneficiary (or its designee) of such Letter of Credit. The applicable Borrower
or Borrowers will reimburse the Issuer for all amounts which it has disbursed
under such Letter of Credit, except to the extent such amounts are in respect of
an LOC Liquidity Disbursement (in which case such amounts shall be reimbursed to
the Issuer or the Lenders by the applicable SPC in accordance with the
provisions of the Enhancement Letter of Credit Application and Agreement
relating thereto (the obligation of such SPC to reimburse the Issuer or the
Lenders for such amounts in accordance with such terms being herein referred to
as a "Liquidity Obligation")), on the Disbursement Date, if such Borrower or
Borrowers are notified of such disbursement prior to 12:00 noon (New York, New
York, time) on the Disbursement Date, or on the Business Day immediately
succeeding the Disbursement Date, if such Borrower or Borrowers are not so
notified (the "Reimbursement Due Date"). To the extent the Issuer is not
reimbursed in full in respect of any Reimbursement Obligation payable by such
Borrower or Borrowers on the Disbursement Date, such Reimbursement Obligation
shall accrue interest from (and including) the Disbursement Date at a
fluctuating rate per annum equal to the sum of the
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Alternate Base Rate from time to time in effect, plus the Applicable Margin for
ABR Loans from time to time in effect, plus from (and including) the
Reimbursement Due Date, a margin of 200 basis points, payable on demand. In the
event the Issuer is not reimbursed by such Borrower or Borrowers on the
Disbursement Date for any Reimbursement Obligation in respect of any Letter of
Credit due and owing on such Disbursement Date, or if the Issuer must for any
reason return or disgorge such reimbursement, the Lenders (including the Issuer)
shall, on the terms and subject to the conditions of this Agreement (including
the conditions set forth in Article VI), fund such Reimbursement Obligation by
making, on the next Business Day, Loans which are ABR Loans as provided in
Section 2.3 (such Borrower or Borrowers being deemed to have given a timely
Borrowing Request therefor for such amount); provided, however, for the purpose
of determining the availability of the Commitments to make Loans immediately
prior to giving effect to the application of the proceeds of such Loans, such
Reimbursement Obligation shall be deemed not to be outstanding at such time.
SECTION 4.6. Reimbursement. The obligation (a "Reimbursement Obligation")
of an Obligor under Section 4.5 or under the applicable Enhancement Letter of
Credit Application and Agreement to reimburse the Issuer with respect to each
disbursement (including interest thereon), and each Lender's obligation to make
participation payments in each drawing which has not been reimbursed by the
applicable Borrower or Borrowers or the applicable Account Party, shall be
absolute and unconditional under any and all circumstances and irrespective of
any setoff, counterclaim, or defense to payment which such Borrower or Borrowers
may have or have had against any Lender or any beneficiary of a Letter of
Credit, including any defense based upon the occurrence of any Default, any
draft, demand or certificate or other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient, the failure of
any disbursement to conform to the terms of the applicable Letter of Credit (if,
in the Issuer's good faith opinion, such disbursement is determined to be
appropriate) or any non-application or misapplication by the beneficiary of the
proceeds of such disbursement, or the legality, validity, form, regularity, or
enforceability of such Letter of Credit; provided, however, that nothing herein
shall adversely affect the right of such Borrower or Borrowers to commence any
proceeding against the Issuer for any wrongful disbursement made by the Issuer
under a Letter of Credit as a result of acts or omissions constituting gross
negligence or willful misconduct on the part of the Issuer.
SECTION 4.7. Deemed Disbursements. Upon the occurrence and during the
continuation of any Event of Default or the occurrence of the Commitment
Termination Date, an amount equal to that portion of Letter of Credit
Outstandings attributable to outstanding and undrawn Letters of Credit shall, at
the election of the Issuer acting on instructions from the Required Lenders, and
without demand upon or notice to any Borrower, be deemed to have been paid or
disbursed by the Issuer under such Letters of Credit (notwithstanding that such
amount may not in fact have been so paid or disbursed), and, upon notification
by the Issuer to the Administrative Agent and the applicable Borrower or
Borrowers of its obligations under this Section, such Borrower or Borrowers
shall be immediately obligated to reimburse the Issuer the amount deemed to have
been so paid or disbursed by the Issuer. Any amounts so received by the Issuer
from such Borrower or Borrowers pursuant to this Section shall be held as
collateral security for the repayment of such Borrower's or Borrowers'
obligations in connection with the
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Letters of Credit issued by the Issuer. At any time when such Letters of Credit
shall terminate and all Obligations of the Issuer are either terminated or paid
or reimbursed to the Issuer in full, the Obligations of such Borrower or
Borrowers under this Section shall be reduced accordingly (subject, however, to
reinstatement in the event any payment in respect of such Letters of Credit is
recovered in any manner from the Issuer), and the Issuer will return to such
Borrower or Borrowers the excess, if any, of
(a) the aggregate amount deposited by such Borrower or Borrowers
with the Issuer and not theretofore applied by the Issuer to any
Reimbursement Obligation
over
(b) the aggregate amount of all Reimbursement Obligations to the
Issuer pursuant to this Section, as so adjusted.
At such time when all Events of Default shall have been cured or waived, the
Issuer shall return to such Borrower or Borrowers all amounts then on deposit
with the Issuer pursuant to this Section. All amounts on deposit pursuant to
this Section shall, until their application to any Reimbursement Obligation or
their return to such Borrower or Borrowers, as the case may be, bear interest at
the daily average Federal Funds Rate from time to time in effect (net of the
costs of any reserve requirements, in respect of amounts on deposit pursuant to
this Section, pursuant to F.R.S. Board Regulation D), which interest shall be
held by the Issuer as additional collateral security for the repayment of such
Borrower's or Borrowers' Obligations in connection with the Letters of Credit
issued by the Issuer.
SECTION 4.8. Nature of Reimbursement Obligations. Each Borrower shall
assume all risks of the acts, omissions, or misuse of any Letter of Credit
requested by it by the beneficiary thereof. Neither the Issuer nor any Lender
shall be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness, or legal
effect of any Letter of Credit or any document submitted by any party in
connection with the application for and issuance of a Letter of Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent, or forged;
(b) the form, validity, sufficiency, accuracy, genuineness, or legal
effect of any instrument transferring or assigning or purporting to
transfer or assign a Letter of Credit or the rights or benefits thereunder
or proceeds thereof in whole or in part, which may prove to be invalid or
ineffective for any reason;
(c) failure of the beneficiary to comply fully with conditions
required in order to demand payment under a Letter of Credit;
(d) errors, omissions, interruptions, or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex, or otherwise;
or
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(e) any loss or delay in the transmission or otherwise of any
document or draft required in order to make a disbursement under a Letter
of Credit or of the proceeds thereof.
None of the foregoing shall affect, impair, or prevent the vesting of any of the
rights or powers granted the Issuer or any Lender hereunder. In furtherance and
extension, and not in limitation or derogation, of any of the foregoing, any
action taken or omitted to be taken by the Issuer in good faith shall be binding
upon each Borrower and, in the absence of gross negligence or willful misconduct
as determined by a final judgment of a court of competent jurisdiction, shall
not put the Issuer under any resulting liability to such Borrower.
SECTION 4.9. Indemnity. In addition to amounts payable as elsewhere
provided herein, the Borrowers hereby, jointly and severally, agree to protect,
indemnify, pay and save the Issuer harmless from and against any and all claims,
demands, liabilities, damages, losses, costs, charges and expenses (including
reasonable attorneys' fees and allocated costs of internal counsel) which the
Issuer may incur or be subject to as a consequence, direct or indirect, of
(a) the issuance of any Letter of Credit, other than as a result of
the gross negligence or willful misconduct of the Issuer or a breach by
the Issuer (or its agents or employees or any other Person under its
control) of any obligation of the Issuer under such Letter of Credit to
the Borrower which is the account party thereof, as determined by a final
judgment of a court of competent jurisdiction, or
(b) the failure of the Issuer to honor a drawing under any Letter of
Credit as a result of any act or omission, whether rightful or wrongful,
of any present or future de jure or de facto government or governmental
authority.
SECTION 4.10. Borrowers' Guaranty of Reimbursement Obligations of its
Subsidiaries. Each Borrower agrees as follows in respect of the Reimbursement
Obligations of their respective Subsidiaries (other than SPCs):
SECTION 4.10.1. Guaranty. Each Borrower hereby, absolutely,
unconditionally and irrevocably
(a) guarantees the full and punctual payment when due, whether at
stated maturity, by required prepayment, declaration, acceleration, demand
or otherwise, of all Reimbursement Obligations (other than Liquidity
Obligations) now or hereafter existing, of each Subsidiary Guarantor that
is an Account Party which arise out of, or are incurred in connection
with, such Letters of Credit, whether for principal, interest, fees,
expenses or otherwise (including all such amounts which would become due
but for the operation of the automatic stay under Section 362(a) of the
United States Bankruptcy Code, 11 U.S.C. ss.362(a), and the operation of
Sections 502(b) and 506(b) of the United States Bankruptcy Code, 11 U.S.C.
ss.502(b) and ss.506(b)), and
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(b) indemnifies and holds harmless each Secured Party and each
holder of a Note for any and all costs and expenses (including reasonable
attorneys' fees and expenses) incurred by such Secured Party or such
holder, as the case may be, in enforcing any rights under the guaranty
contained in this Section 4.10;
provided, however, that in the case of the guaranty made by each of Dollar and
Thrifty in respect of a Subsidiary Guarantor that is not its Subsidiary, Dollar
or Thrifty, as the case may be, shall be liable under the guaranty set forth in
this Section 4.10 for the maximum amount of such liability that can be hereby
incurred without rendering the guaranty set forth in this Section 4.10, as it
relates to Dollar or Thrifty, as the case may be, voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer, and not for any
greater amount. The guaranty contained in this Section 4.10 constitutes a
guaranty of payment when due and not of collection, and each Borrower
specifically agrees that it shall not be necessary or required that any Secured
Party exercise any right, assert any claim or demand or enforce any remedy
whatsoever against any Account Party or any other Obligor (or any other Person)
before or as a condition to the obligations of such Borrower under the guaranty
contained in this Section 4.10 (such obligations hereinafter referred to as the
"Guaranteed Obligations").
SECTION 4.10.2. Acceleration of Guaranty. Each Borrower agrees that, if an
Event of Default of the nature set forth in Section 9.1.9 shall occur at a time
when any of the Guaranteed Obligations of any Account Party may not then be due
and payable, such Borrower agrees that it will pay to the Administrative Agent
for the account of the Secured Parties forthwith the full amount which would be
payable under the guaranty contained in this Section 4.10 by such Borrower if
all such Guaranteed Obligations were then due and payable.
SECTION 4.10.3. Guaranty Absolute, etc. The guaranty contained in this
Section 4.10 shall in all respects be a continuing, absolute, unconditional and
irrevocable guaranty of payment, and shall remain in full force and effect until
all Guaranteed Obligations of the Account Parties have been paid in full in
cash, all Obligations of each Borrower and each other Obligor hereunder have
been paid in full in cash, all Letters of Credit have been terminated or expired
and all Commitments shall have terminated. Each Borrower guarantees that the
Guaranteed Obligations of the Account Parties will be paid strictly in
accordance with the terms of this Agreement and each other Loan Document under
which they arise, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of any
Secured Party or any holder of any Note with respect thereto. The liability of
each Borrower under the guaranty contained in this Section 4.10 shall be
absolute, unconditional and irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of this
Agreement, any Note or any other Loan Document;
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(b) the failure of any Secured Party or any holder of any Note
(i) to assert any claim or demand or to enforce any right or
remedy against any Account Party, any other Obligor or any other
Person (including any other guarantor (including such Borrower))
under the provisions of this Agreement, any Note, any other Loan
Document or otherwise, or
(ii) to exercise any right or remedy against any other
guarantor (including such Borrower) of, or collateral securing, any
Guaranteed Obligations of any Account Party;
(c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations of any Account
Party, or any other extension, compromise or renewal of any Guaranteed
Obligation of any Account Party;
(d) any reduction, limitation, impairment or termination of any
Guaranteed Obligations of any Account Party for any reason, including any
claim of waiver, release, surrender, alteration or compromise, and shall
not be subject to (and such Borrower hereby waives any right to or claim
of) any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality, nongenuineness,
irregularity, compromise, unenforceability of, or any other event or
occurrence affecting, any Guaranteed Obligations of any Account Party or
otherwise;
(e) any amendment to, rescission, waiver, or other modification of,
or any consent to departure from, any of the terms of this Agreement, any
Note or any other Loan Document;
(f) any addition, exchange, release, surrender or non-perfection of
any collateral, or any amendment to or waiver or release or addition of,
or consent to departure from, any other guaranty, held by any Secured
Party or any holder of any Note securing any of the Guaranteed Obligations
of any Account Party; or
(g) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, any Account
Party any surety or any guarantor.
SECTION 4.10.4. Reinstatement, etc. Each Borrower agrees that the guaranty
contained in this Section 4.10 shall continue to be effective or be reinstated,
as the case may be, if at any time any payment (in whole or in part) of any of
the Guaranteed Obligations is rescinded or must otherwise be restored by any
Secured Party or any holder of any Note, upon the insolvency, bankruptcy or
reorganization of any Account Party or otherwise, all as though such payment had
not been made.
SECTION 4.10.5. Waiver, etc. Each Borrower hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Guaranteed Obligations of any Account Party or any other Obligor and the
guaranty contained in this Section 4.10 and any
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requirement that the Administrative Agent, any other Secured Party or any holder
of any Note protect, secure, perfect or insure any security interest or Lien, or
any property subject thereto, or exhaust any right or take any action against
any Account Party, any other Obligor or any other Person (including any other
guarantor) or entity or any collateral securing the Guaranteed Obligations of
any Account Party.
SECTION 4.10.6. Postponement of Subrogation, etc. Each Borrower agrees
that it will not exercise any rights which it may acquire by way of rights of
subrogation under the guaranty contained in this Section 4.10, by any payment
made under the guaranty contained in this Section 4.10 or otherwise, until the
prior payment in full in cash of all Guaranteed Obligations of each Account
Party, the prior payment in full in cash of all Obligations of each Borrower,
the termination or expiration of all Letters of Credit and the termination of
all Commitments. Any amount paid to any Borrower on account of any such
subrogation rights prior to the payment in full in cash of all Guaranteed
Obligations of each Account Party shall be held in trust for the benefit of the
Secured Parties and each holder of a Note and shall immediately be paid to the
Administrative Agent for the benefit of the Secured Parties and each holder of a
Note and credited and applied against the Guaranteed Obligations of each Account
Party, whether matured or unmatured, in accordance with the terms of this
Agreement; provided, however, that if
(a) such Borrower has made payment to the Secured Parties and each
holder of a Note of all or any part of the Guaranteed Obligations of any
Account Party, and
(b) all Guaranteed Obligations of each Account Party have been paid
in full in cash, all Obligations of each Borrower have been paid in full
in cash, all Letters of Credit have been terminated or expired and all
Commitments have been permanently terminated,
each Secured Party and each holder of a Note agrees that, at such Borrower's
request, the Administrative Agent, on behalf of the Secured Parties and the
holders of the Notes, will execute and deliver to such Borrower appropriate
documents (without recourse and without representation or warranty) necessary to
evidence the transfer by subrogation to such Borrower of an interest in the
Guaranteed Obligations of each Account Party resulting from such payment by such
Borrower. In furtherance of the foregoing, for so long as any Obligations
(including Guaranteed Obligations) or Commitments remain outstanding, each
Borrower shall refrain from taking any action or commencing any proceeding
against any Account Party (or its successors or assigns, whether in connection
with a bankruptcy proceeding or otherwise) to recover any amounts in the respect
of payments made under the guaranty contained in this Section 4.10 to any
Secured Party or any holder of a Note.
SECTION 4.10.7. Right of Contribution. Each Borrower hereby agrees that to
the extent that a Borrower shall have paid more than its proportionate share of
any payment made hereunder, such Borrower shall be entitled to seek and receive
contribution from and against any other Borrower hereunder who has not paid its
proportionate share of such payment. Each Borrower's right of contribution shall
be subject to the terms and conditions of Section 4.10.6. The provisions of this
Section 4.10.7 shall in no respect limit the obligations and liabilities of
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any Borrower to the Administrative Agent and each other Secured Party, and each
Borrower shall remain liable to the Administrative Agent and each other Secured
Party for the full amount guaranteed by such Borrower hereunder.
SECTION 4.10.8. Successors, Transferees and Assigns; Transfers of Notes,
etc. The guaranty contained in this Section 4.10 shall:
(a) be binding upon each Borrower, and its successors, transferees
and assigns; and
(b) inure to the benefit of and be enforceable by the Administrative
Agent and each other Secured Party.
Without limiting the generality of the foregoing clause (b), any Lender may
assign or otherwise transfer (in whole or in part) any Note or Credit Extension
held by it to any other Person or entity, and such other Person or entity shall
thereupon become vested with all rights and benefits in respect thereof granted
to such Lender under any Loan Document (including the guaranty contained in this
Section 4.10) or otherwise, subject, however, to any contrary provisions in such
assignment or transfer, and to the provisions of Section 12.11 and Article XI.
SECTION 4.11. No Bankruptcy Petition Against RCFC or Dollar Thrifty
Funding. With respect to each Enhancement Letter of Credit issued hereunder
relating to RCFC or Dollar Thrifty Funding, each of the Lenders hereby covenants
and agrees that,
(a) prior to the date which is one year and one day after the
payment in full of the latest maturing note issued under the Base
Indenture, it will not institute against, or join with any other Person in
instituting against, RCFC, and
(b) prior to the date which is one year and one day after the
payment in full of the latest maturing commercial paper note issued by
Dollar Thrifty Funding, it will not institute against, or join with any
other Person in instituting against Dollar Thrifty Funding,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any federal or state bankruptcy or
similar law; provided, however, that nothing in this Section 4.11 shall
constitute a waiver of any right to indemnification, reimbursement or other
payment from any Obligor pursuant to this Agreement or any other Loan Document.
In the event that any Lender takes action in violation of this Section 4.11,
each Borrower agrees, for the benefit of the holders of the notes issued under
the Base Indenture and the commercial paper notes issued by Dollar Thrifty
Funding, that it shall cause RCFC or Dollar Thrifty Funding, as the case may be,
to file an answer with the bankruptcy court or otherwise properly contest the
filing of such a petition by such Lender against RCFC or Dollar Thrifty Funding,
as the case may be, or the commencement of such action and raise the defense
that such Lender has agreed in writing not to take such action and should be
estopped and precluded therefrom and such other defenses, if any, as its counsel
advises that it may assert; and such
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Lender shall be liable for and pay any costs and expenses incurred by RCFC or
Dollar Thrifty Funding, as the case may be, in connection therewith. The
provisions of this Section 4.11 shall survive the termination of the Agreement.
ARTICLE V
CERTAIN EURODOLLAR RATE AND OTHER PROVISIONS
SECTION 5.1. Eurodollar Rate Lending Unlawful. If any Lender shall
determine (which determination shall, upon notice thereof to the Borrowers, the
Administrative Agent and the Lenders, be conclusive and binding on each
Borrower) that the introduction of or any change in or in the interpretation of
any law makes it unlawful, or any central bank or other governmental authority
asserts that it is unlawful, for such Lender to make, continue or maintain any
Loan as, or to convert any Loan into, a Eurodollar Loan of a certain type, the
obligations of such Lender to make, continue, maintain or convert into any such
Loans shall, upon such determination, forthwith be suspended until such Lender
shall notify the Administrative Agent that the circumstances causing such
suspension no longer exist, and all outstanding Eurodollar Loans of such type of
such Lender shall automatically convert into ABR Loans at the end of the then
current Interest Periods with respect thereto or sooner, if required by such law
or assertion, and all Loans of such Lender that would otherwise have been made
or continued as, or converted into, Eurodollar Loans shall instead be made as or
converted into, or continued as, ABR Loans upon which interest shall be payable
at the same time as the related Eurodollar Loans.
SECTION 5.2. Deposits Unavailable. If the Administrative Agent shall have
determined that by reason of circumstances affecting the London interbank
market, adequate means do not exist for ascertaining the interest rate
applicable hereunder to Eurodollar Loans of any type, then, upon notice from the
Administrative Agent to the Borrowers and the Lenders, the obligations of all
Lenders under Section 2.3 and Section 2.4 to make or continue any Loans as, or
to convert any Loans into, Eurodollar Loans of such type shall forthwith be
suspended until the Administrative Agent shall notify the Borrowers and the
Lenders that the circumstances causing such suspension no longer exist.
SECTION 5.3. Increased Eurodollar Loan Costs, etc. The Borrowers, jointly
and severally, agree to reimburse each Lender for any increase in the cost to
such Lender of, or any reduction in the amount of any sum receivable by such
Lender in respect of, making, continuing or maintaining (or of its obligation to
make, continue or maintain) any Loans as, or of converting (or of its obligation
to convert) any Loans into, Eurodollar Loans that arise in connection with any
change in, or the introduction, adoption, effectiveness, interpretation,
reinterpretation or phase-in after the date hereof of, any law or regulation,
directive, guideline, decision or request (whether or not having the force of
law) of any court, central bank, regulator or other governmental authority,
except for such changes with respect to (i) increased capital costs which are
governed by Section 5.5 and (ii) taxes which are described and governed by
Section 5.6 (including taxes imposed by reason of any failure of such Lender to
comply with its obligations under clause (b) of Section 5.6, including taxes
imposed by a taxing authority on or measured by
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the net income, overall receipts or capital of such Lender or any lending
office, branch or any affiliate thereof and any franchise taxes or branch taxes
imposed by a taxing authority on such Lender or any lending office, branch or
any affiliate thereof); provided, however, that no Borrower shall have any
obligation to pay any such additional amount under this Section 5.3 with respect
to any such change unless such Lender shall have notified the applicable
Borrower of its demand within 90 days after the date upon which such Lender has
obtained audited financial statements with respect to the fiscal year of such
Lender in which such change occurred. Such Lender shall promptly notify the
Administrative Agent and the Borrowers in writing of the occurrence of any such
reduction or increase (but in no event later than the date by which such Lender
may demand reimbursement therefor pursuant to the immediately preceding
sentence), such notice to state, in reasonable detail, the reasons therefor and
the additional amount required fully to compensate such Lender on an after-tax
basis for such increased cost or reduced amount. Such additional amounts shall
be payable by the Borrowers directly to such Lender within five Business Days of
its receipt of such notice, and such notice shall, in the absence of manifest
error, be conclusive and binding on each Borrower.
SECTION 5.4. Funding Losses. In the event any Lender shall incur any loss
or expense (including any loss or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by such Lender to make,
continue or maintain any portion of the principal amount of any Loan as, or to
convert any portion of the principal amount of any Loan into, a Eurodollar Loan)
as a result of
(a) any conversion or repayment or prepayment of the principal
amount of any Eurodollar Loans on a date other than the scheduled last day
of the Interest Period applicable thereto, whether pursuant to Section 3.1
or otherwise;
(b) any Loans not being made as Eurodollar Loans in accordance with
the Borrowing Request therefor; or
(c) any Loans not being continued as, or converted into, Eurodollar
Loans in accordance with the Continuation/ Conversion Notice therefor,
then, upon the written notice of such Lender to the Borrowers (with a copy to
the Administrative Agent), the Borrowers shall, within five Business Days of
their receipt thereof, jointly and severally, pay directly to such Lender such
amount as will (in the reasonable determination of such Lender) reimburse such
Lender for such loss or expense. Such written notice (which shall include
calculations in reasonable detail) shall, in the absence of manifest error, be
conclusive and binding on each Borrower.
SECTION 5.5. Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority after the Effective Date affects or would affect
the amount of capital required or expected to be maintained by any Lender or any
Person controlling such Lender, and such Lender determines (in its sole and
absolute discretion) that the rate of
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return on its or such controlling Person's capital as a consequence of its
Commitments, issuance of or participation in Letters of Credit or the Loans made
by such Lender is reduced to a level below that which such Lender or such
controlling Person could have achieved but for the occurrence of any such
circumstance, then, in any such case upon notice from time to time by such
Lender to the Borrowers, the Borrowers shall, jointly and severally, pay
directly to such Lender within five Business Days additional amounts sufficient
to compensate such Lender or such controlling Person on an after-tax basis for
such reduction in rate of return; provided, however, that no Borrower shall have
any obligation to pay any such additional amount under this Section 5.5 with
respect to any such change unless such Lender shall have notified the applicable
Borrower of its demand within 90 days after the date upon which such Lender or
such controlling Person has obtained audited financial statements with respect
to the fiscal year of such Lender or such controlling Person in which such
change occurred. Such Lender or controlling Person shall promptly notify the
Administrative Agent and the Borrowers in writing of the occurrence of any such
reduction (but in no event later than the date by which such Lender or
controlling Person may demand payment therefor pursuant to the immediately
preceding sentence). A statement of such Lender as to any such additional amount
or amounts (including calculations thereof in reasonable detail) shall, in the
absence of manifest error, be conclusive and binding on each Borrower. In
determining such amount, such Lender may use any method of averaging and
attribution that it (in its sole and absolute discretion) shall deem applicable.
SECTION 5.6. Taxes. (a) Except to the extent otherwise provided in the
proviso to clause (iii) of this Section 5.6(a) and the proviso to the sentence
immediately succeeding such clause (iii), all payments by any Borrower of
principal of, and interest on, the Credit Extensions and all other amounts
payable hereunder (including fees) shall be made free and clear of and without
deduction for any present or future income, excise, stamp or franchise taxes and
other taxes, fees, duties, withholdings or other charges of any nature
whatsoever imposed by any taxing authority, but excluding (A) in the case of
each Lender and the Administrative Agent, taxes imposed on or measured by the
net income, overall receipts or capital of such Lender (or any Lending office,
branch or affiliate of such Lender) or the Administrative Agent and franchise
taxes or branch taxes imposed on such Lender (or any lending office, branch or
affiliate of such Lender) or the Administrative Agent, as the case may be, (x)
by the jurisdiction under the laws of which it is organized or any political
subdivision thereof or (y) by reason of any connection between the jurisdiction
imposing such tax and such Lender (or any lending office, branch or affiliate
thereof) or the Administrative Agent, as the case may be, other than a
connection arising solely from such Lender (or such lending office, branch or
affiliate) or the Administrative Agent, as the case may be, having executed,
delivered, or performed its obligations under, or received payment under or
enforced, this Agreement, any Note or any other Loan Document and, (B) in the
case of each Lender, taxes imposed on or measured by the net income, overall
receipts or capital of such Lender (or any lending office, branch or affiliate
of such Lender) and franchise taxes or branch taxes imposed on such Lender (or
any lending office, branch or affiliate of such Lender) by the jurisdiction in
which such Lender's Domestic Office or Eurodollar Office, as the case may be, is
located or any political subdivision thereof (such non-excluded items being
called "Taxes"). In the event that any withholding or deduction from any payment
to be made by any Borrower hereunder is required in respect of any Taxes
pursuant to any applicable law, rule or regulation, then such Borrower will
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(i) pay directly to the relevant authority the full amount required
to be so withheld or deducted;
(ii) promptly forward to the Administrative Agent an official
receipt or other documentation satisfactory to the Administrative Agent
evidencing such payment to such authority; and
(iii) pay to the Administrative Agent for the account of the Lenders
(or, if applicable, for its own account) such additional amount or amounts
as is necessary to ensure that the net amount actually received by each
Lender and the Administrative Agent will equal the full amount such Lender
or the Administrative Agent, as the case may be would have received had no
such withholding or deduction been required; provided, however, that the
Borrowers shall be entitled to deduct and withhold any Taxes and shall not
be required to increase any such amounts payable pursuant to this clause
(iii) to the Administrative Agent for the account of any Lender that is
not incorporated under the laws of the United States (or any State thereof
or the District of Columbia) to the extent such Taxes are imposed as a
result of the failure of such Lender to comply with the requirements of
clause (b) of this Section 5.6.
Moreover, if any Taxes are directly asserted against the Administrative Agent or
any Lender with respect to any payment received by the Administrative Agent or
such Lender hereunder, the Administrative Agent or such Lender may pay such
Taxes and promptly notify the Borrower of the nature and amount of such payment
and such Borrower will promptly pay such additional amounts (including any
penalties, interest or expenses) as is necessary in order that the net amount
received by such person after the payment of such Taxes (including any Taxes on
such additional amount) shall equal the amount such person would have received
had no such Taxes been asserted, provided, however, that the Borrowers shall not
be required to pay any additional amounts pursuant to this sentence to the
Administrative Agent for the account of any Lender or to any Lender that is not
incorporated under the laws of the United States (or any State thereof or the
District of Columbia) to the extent such Taxes are imposed as a result of the
failure of such Lender to comply with the requirements of clause (b) of this
Section 5.6.
If any Borrower fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent, for the account of the
respective Lenders, the required receipts or other required documentary
evidence, such Borrower shall indemnify the Lenders for any incremental Taxes,
interest or penalties that may become payable by any Lender as a result of any
such failure. For purposes of this Section 5.6, a distribution hereunder by the
Administrative Agent or any Lender to or for the account of any Lender shall be
deemed a payment by such Borrower.
(b) Each Lender that is not incorporated under the laws of the
United States (or any State thereof or the District of Columbia) shall:
(X)(i) on or before the date of any payment by any Borrower under
this Agreement, any Notes or any other Loan Document for the account of
such Lender,
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deliver to the Borrowers and the Administrative Agent (A) two duly
completed copies of United States Internal Revenue Service Form 1001 or
4224, or successor applicable form, as the case may be, and such other
forms and certifications as may reasonably be required under applicable
law, in order to establish that as of the date thereof such Lender is
entitled to receive all payments under this Agreement, any Notes or any
other Loan Document without deduction or withholding of any United States
federal income taxes and (B) an Internal Revenue Service Form W-8 or W-9,
or successor applicable form, as the case may be, certifying that such
Lender is entitled to an exemption from United States backup withholding
taxes;
(ii) deliver to the Borrowers and the Administrative Agent two
further copies of any such form on or before the date that any such form
expires or becomes obsolete and after the occurrence of any event
requiring a change in the most recent form previously delivered by it to
the Borrowers and Administrative Agent; and
(iii) if necessary, obtain, at the expense of the Borrowers, such
extensions of time for delivery of such forms as may reasonably be
requested by the Borrowers; or
(Y) in the case of any such Lender that is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Code, (i) furnish to the Borrowers
on or before the date of any payment by any Borrower, with a copy to the
Administrative Agent, (A) a certificate substantially in the form of
Exhibit M (any such certificate a "U.S. Tax Compliance Certificate"), and
(B) two accurate and complete original signed copies of Internal Revenue
Service Form W-8, or successor applicable form certifying to such Lender's
entitlement as of the date of such form to the exemption under Section
881(c) of the Code from U.S. withholding tax on payments of interest (and
deliver to the Borrowers and the Administrative Agent two further copies
of such form on or before the date the most recently delivered form
expires or becomes obsolete and after the occurrence of any event
requiring a change in the most recently delivered form and, if necessary,
obtain, at the expense of the Borrowers, any extensions of time reasonably
requested by the Borrowers for the delivery of such forms); and (ii) agree
upon reasonable request of the Borrowers, to provide to the Borrowers and
the Administrative Agent (for the benefit of the Borrowers and the
Administrative Agent), such other forms as may be reasonably required
under applicable law in order to establish the legal entitlement of such
Lender to an exemption from withholding of Taxes with respect to any
payments under this Agreement, any Notes and any other Loan Document;
unless in any such case any change in treaty, law or regulation or any change in
any previously published ruling, notice or other similar official Internal
Revenue Service interpretation of a treaty, law or regulation has occurred after
the date such Person becomes a Lender hereunder which renders all such forms
inapplicable to such Lender or which would prevent such Lender from duly
completing and delivering any such form with respect to it and such Lender
promptly so advises the Borrower and the Administrative Agent in writing. Each
Person that shall become a Lender or a Participant pursuant to Section 12.11
shall, upon the effectiveness of the related transfer, be required to provide
all of the forms, certifications and statements required pursuant to this
Section, provided that in the case of a Participant the obligations of such
Participant, pursuant to this clause (b) shall be determined as if such
Participant were a Lender except that such Participant shall furnish all such
required forms, certifications and statements to the Lender from which the
related participation shall have been purchased.
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SECTION 5.7. Payments, Computations, etc. Unless otherwise expressly
provided, all payments by each Borrower pursuant to this Agreement, the Notes,
each Letter of Credit or any other Loan Document shall be made by such Borrower
to the Administrative Agent for the pro rata account of the Lenders entitled to
receive such payment. All such payments required to be made to the
Administrative Agent shall be made, without setoff, deduction or counterclaim,
not later than 1:00 p.m. (New York City, New York time) on the date due, in same
day or immediately available funds, to such account as the Administrative Agent
shall specify from time to time by notice to the Borrowers. Funds received after
that time shall be deemed to have been received by the Administrative Agent on
the next succeeding Business Day. The Administrative Agent shall promptly remit
in same day funds to each Lender its share, if any, of such payments received by
the Administrative Agent for the account of such Lender. All interest (including
interest on Eurodollar Loans) and fees shall be computed on the basis of the
actual number of days (including the first day but excluding the last day)
occurring during the period for which such interest or fee is payable over a
year comprised of 360 days (or, in the case of interest on an ABR Loan (other
than when calculated with respect to the Federal Funds Rate), 365 days or, if
appropriate, 366 days). Whenever any payment to be made shall otherwise be due
on a day which is not a Business Day, such payment shall (except as otherwise
required by clause (c) of the definition of the term "Interest Period" with
respect to Eurodollar Loans) be made on the next succeeding Business Day and
such extension of time shall be included in computing interest and fees, if any,
in connection with such payment.
SECTION 5.8. Sharing of Payments. If any Lender shall obtain any payment
or other recovery (whether voluntary, involuntary, by application of setoff or
otherwise) on account of any Loan (other than pursuant to the terms of Sections
5.3, 5.4, 5.5 and 5.6) or Letter of Credit in excess of its pro rata share of
payments then or therewith obtained by all Lenders, such Lender shall purchase
from the other Lenders such participations in Loans made by them and/or Letters
of Credit as shall be necessary to cause such purchasing Lender to share the
excess payment or other recovery ratably with each of them; provided, however,
that if all or any portion of the excess payment or other recovery is thereafter
recovered from such purchasing Lender, the purchase shall be rescinded and each
Lender which has sold a participation to the purchasing Lender shall repay to
the purchasing Lender the purchase price to the ratable extent of such recovery
together with an amount equal to such selling Lender's ratable share (according
to the proportion of
(a) the amount of such selling Lender's required repayment to the
purchasing Lender
to
(b) the total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. Each Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section may,
to the fullest extent permitted by law, exercise all its rights of payment
(including pursuant to Section 5.9) with respect to such participation as
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fully as if such Lender were the direct creditor of such Borrower in the amount
of such participation. If under any applicable bankruptcy, insolvency or other
similar law, any Lender receives a secured claim in lieu of a setoff to which
this Section applies, such Lender shall, to the extent practicable, exercise its
rights in respect of such secured claim in a manner consistent with the rights
of the Lenders entitled under this Section to share in the benefits of any
recovery on such secured claim.
SECTION 5.9. Setoff. Each Lender shall, upon the occurrence of any Event
of Default described in clauses (a) through (d) of Section 9.1.9 or, with the
consent of the Required Lenders, upon the occurrence of any other Event of
Default, have the right to appropriate and apply to the payment of the
Obligations (other than Liquidity Obligations) owing to it (whether or not then
due), and (as security for such Obligations) each Borrower hereby grants to each
Lender a continuing security interest in, any and all balances, credits,
deposits, accounts or moneys of such Borrower then or thereafter maintained with
or otherwise held by such Lender; provided, however, that any such appropriation
and application shall be subject to the provisions of Section 5.8. Each Lender
agrees promptly to notify such Borrower and the Administrative Agent after any
such setoff and application made by such Lender; provided, however, that the
failure to give such notice shall not affect the validity of such setoff and
application. The rights of each Lender under this Section are in addition to
other rights and remedies (including other rights of setoff under applicable law
or otherwise) which such Lender may have.
SECTION 5.10. Replacement of Lender. Each Lender agrees that, upon the
occurrence of any event set forth in Section 5.1, 5.3, or 5.5, or in the event
any Borrower is required to pay additional amounts in respect of amounts payable
hereunder to such Lender pursuant to Section 5.6, such Lender will use
reasonable efforts to book and maintain its Loans through a different lending
office or to transfer its Loans to an Affiliate which is an Eligible Assignee
with the objective of avoiding or minimizing the consequences of such event;
provided that such booking or transfer is not otherwise disadvantageous to such
Lender as determined by such Lender in its sole and absolute discretion. If any
Lender
(a) notifies the Borrowers pursuant to Section 5.1 that it is unable
to make, continue or maintain Eurodollar Loans or convert any Base Rate
Loan into a Eurodollar Loan when a majority of the other Lenders have not
given any such notice,
(b) has demanded to be paid additional amounts pursuant to Section
5.3, 5.5 or 5.6 and the payment of such additional amounts are, and are
likely to continue to be, more onerous in the reasonable judgment of the
Borrowers than with respect to the other Lenders, or
(c) has wrongfully failed to fund any Loan on the date specified for
the making thereof and all of the other Lenders funded their portion of
such Loan on such date,
then the Borrowers shall have the right at any time when no Default shall have
occurred and be continuing to seek one or more Eligible Assignees (each, a
"Replacement Lender") to purchase
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the outstanding Loans of such Lender (the "Affected Lender"), and if the
Borrowers locate a Replacement Lender, the Affected Lender shall, upon
(i) prior written notice to the Administrative Agent,
(ii) (A) payment to the Affected Lender of the purchase price agreed
between it and the Replacement Lender (or, failing such agreement, a
purchase price in the amount of the outstanding principal amount of the
Affected Lender's Loans and accrued interest thereon to the date of
payment) by the Replacement Lender plus (B) payment by the Borrowers of
all amounts (other than principal and interest) then due to the Affected
Lender or accrued for its account hereunder or under any other Loan
Document,
(iii) satisfaction of the provisions set forth in Section 12.11.1,
and
(iv) payment by the Borrower to the Affected Lender and the
Administrative Agent of all reasonable out-of-pocket expenses in
connection with such assignment and assumption (including the processing
fees described in Section 12.11.1),
assign and delegate all its rights and obligations under this Agreement and any
other Loan Document to which it is a party (including its outstanding Loans and
participations in Letter of Credit Outstandings) to the Replacement Lender, and
the Replacement Lender shall assume such rights and obligations, whereupon the
Replacement Lender shall in accordance with Section 12.11.1 become a party to
each Loan Document to which the Affected Lender is a party and shall have the
rights and obligations of a Lender thereunder and the Affected Lender shall be
released from its obligations hereunder and each other Loan Document to the
extent of such assignment and delegation.
ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.1. Initial Credit Extension. The obligations of the Lenders and
the Issuer to make the initial Credit Extension shall be subject to the prior or
concurrent satisfaction of each of the conditions precedent set forth in this
Section 6.1.
SECTION 6.1.1. Resolutions, etc. The Administrative Agent shall have
received from each Borrower and each other Obligor a certificate, dated the
Closing Date, of the Secretary or Assistant Secretary of such Person as to
(a) resolutions of its Board of Directors then in full force and
effect authorizing the execution, delivery and performance of this
Agreement, the Notes and each other Loan Document to be executed by it;
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(b) the incumbency and signatures of those of its officers
authorized to act with respect to this Agreement, the Notes and each other
Loan Document executed by it; and
(c) the full force and validity of each Organic Document of such
Person and true and complete copies thereof,
upon which certificate each Lender, the Issuer and the Administrative Agent may
conclusively rely until it shall have received a further certificate of the
Secretary of such Borrower or such other Obligor canceling or amending such
prior certificate.
SECTION 6.1.2. Delivery of Notes. The Administrative Agent shall have
received, for the account of each Lender that requests in writing three Business
Days prior to the Closing Date that its Loans be evidenced by Notes, its Notes
duly executed and delivered by each Borrower.
SECTION 6.1.3. Transaction Consummated. (a) The Equity Offerings shall
have resulted in gross cash proceeds of at least $350,000,000, and the Parent
shall have received net cash proceeds of at least $45,000,000 pursuant to the
Equity Offerings, such proceeds (up to $50,000,000) shall have been used to
collateralize the MTN Program and in the event such proceeds exceed
$55,000,000, such proceeds in excess of $55,000,000 (up to $50,000,000 of such
excess proceeds) shall also have been used to collateralize the MTN Program.
(b) The MTN Program shall have been established and medium term notes
shall have been issued thereunder in an aggregate face amount of not less than
$900,000,000, the proceeds of which shall have been applied to repay the
existing Vehicle financing arrangements between the Parent and its Subsidiaries,
on the one hand, and Chrysler and its Subsidiaries, on the other hand, and to
provide funds for the purchasing of additional Vehicles.
(c) The Chrysler-Dollar Supply Agreement, the Chrysler-Thrifty Supply
Agreement and the Continuing Chrysler Arrangements (including the Chrysler
Credit Support Documents and the Tax Sharing Agreement) shall have been entered
into by the parties thereto on terms and conditions reasonably satisfactory in
all respects to the Agents (including the terms and conditions relating to the
furnishing by Chrysler to the Borrowers of advertising and promotional support).
The Xxxxxx Agreement shall have been entered into by the parties thereto on
terms and conditions reasonably satisfactory in all respects to the Agents.
(d) All intercompany accounts in respect of intercompany advances (other
than with respect to vehicle supply arrangements or any shuttle bus financing
set forth in Item 8.2.2(c) ("Ongoing Indebtedness") of the Disclosure Schedule)
between the Parent and its Subsidiaries, on the one hand, and Chrysler and its
Subsidiaries (excluding the Parent and its Subsidiaries), on the other hand,
shall have been settled, and the Borrowers shall have received any balance
payable to them or their Subsidiaries in cash. All Surety Bonds necessary for
the Borrowers to conduct their businesses in accordance with the terms of this
Agreement (including Section 8.1.4) and otherwise consistent with past practice
shall have been issued on terms and conditions reasonably satisfactory in all
respects to the Agents [, including the absence of any requirement that the
Parent and its Subsidiaries provide any collateral security therefor (other than
Letters of Credit in an aggregate Stated Amount not exceeding $[19,000,000])].
All other aspects of the
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capital structure of each Borrower and Subsidiary Guarantor shall be reasonably
satisfactory in all respects to the Agents.
SECTION 6.1.4. Payment of Outstanding Indebtedness, etc. All Indebtedness,
if any, identified in Item 8.2.2(b) ("Indebtedness to be Paid") of the
Disclosure Schedule, together with all interest, all prepayment premiums and
other amounts due and payable with respect thereto, shall have been paid in full
(including, to the extent necessary, from proceeds of the initial Credit
Extensions); and all Liens securing payment of any such Indebtedness shall have
been released and the Administrative Agent shall have received all Uniform
Commercial Code Form UCC-3 termination statements or other instruments as may be
suitable or appropriate in connection therewith.
SECTION 6.1.5. Delivery of Financial Statements. The Administrative Agent
shall have received
(a) audited consolidated financial statements for each of the three
Fiscal Years in the three-Fiscal-Year period ending December 31, 1996 of
each of (i) the Parent and its Subsidiaries, (ii) Dollar and its
Subsidiaries and (iii) Thrifty and its Subsidiaries;
(b) unaudited interim consolidated financial statements for the
three-Fiscal-Quarter period ending September 30, 1997 of each of the
Parent and its Subsidiaries; and
(c) unaudited pro forma consolidated balance sheet of the Parent and
its Subsidiaries as at the date of the most recent consolidated balance
sheet delivered pursuant to clause (b) above (the "Pro Forma Balance
Sheet"), certified by the chief financial Authorized Officer of the
Parent, giving effect to the consummation of the Transaction (including
the initial Credit Extension) and reflecting the proposed capital
structure of the Parent and its Subsidiaries as at the Closing Date.
SECTION 6.1.6. Consents, etc. All governmental and third party approvals
and consents necessary in connection with the Transaction (including the
execution and delivery of this Agreement and each other Loan Document by each
Obligor or party hereto and thereto and their performance of their respective
Obligations hereunder and thereunder) and continuing operations of the Parent
and its Subsidiaries (after giving effect to the consummation of the
Transaction) shall have been obtained and be in full force and effect (and, to
the extent requested by the Administrative Agent, the Administrative Agent shall
have received true and correct copies of such approvals and consents) and all
applicable waiting periods shall have expired without any action being taken or
threatened by any competent authority which would restrain, prevent or otherwise
impose adverse conditions on any aspect of the Transaction.
SECTION 6.1.7. No Material Adverse Change. There shall not have occurred a
material adverse change in the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the Parent and
its Subsidiaries, taken as a whole, since September 30, 1997.
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SECTION 6.1.8. Availability Under Credit Facility. After the making of all
Credit Extensions under this Agreement on the Closing Date, (i) at least
$125,000,000 of the Commitment Amount shall remain unused and available and (ii)
at least $40,000,000 of the Loan Commitment Amount shall remain unused and
available.
SECTION 6.1.9. Business Plan. The Administrative Agent and the Lenders
shall have received (a) a business plan for the 1998 Fiscal Year for the Parent
and its Subsidiaries in form and scope reasonably satisfactory to the Agents and
(b) financial projections for the period from January 1, 1998 to the Stated
Maturity Date for the Parent and its Subsidiaries in form and scope reasonably
satisfactory to the Agents.
SECTION 6.1.10. Closing Date Certificate. The Administrative Agent shall
have received, with counterparts for each Lender, the Closing Date Certificate,
dated the date of the Closing Date and duly executed and delivered by an
Authorized Officer of each Borrower, in which certificate each Borrower shall
agree and acknowledge that the statements made therein shall be deemed to be
true and correct representations and warranties of such Borrower made as of such
date, and, at the time such certificate is delivered, such statements shall in
fact be true and correct. All documents and agreements required to be appended
to the Closing Date Certificate shall be in form and substance reasonably
satisfactory to the Agents.
SECTION 6.1.11. Guaranty. The Administrative Agent shall have received the
Subsidiary Guaranty, dated the Closing Date, duly executed by each Subsidiary of
each of the Borrowers that is a party thereto.
SECTION 6.1.12. Pledge Agreement. The Administrative Agent shall have
received executed counterparts of the Pledge Agreement, dated as of the Closing
Date and duly executed and delivered by each Borrower and each of their
respective Subsidiaries that is a party thereto together with the Pledged Notes
(as defined therein), if any, and the certificates evidencing all of the issued
and outstanding shares of Capital Stock pledged pursuant thereto, which
certificates shall in each case be accompanied by undated stock powers duly
executed in blank, or, if any securities pledged pursuant to the Pledge
Agreement are uncertificated securities, confirmation and evidence satisfactory
to the Administrative Agent that the security interest in such uncertificated
securities has been transferred to and perfected by the Administrative Agent for
the benefit of the Lenders in accordance with the U.C.C. or any similar or local
law which may be applicable.
SECTION 6.1.13. Security Agreement. The Administrative Agent shall have
received executed counterparts of the Security Agreement, dated as of the
Closing Date and duly executed and delivered by each Borrower and each of their
respective Subsidiaries that is a party thereto, together with
(a) properly completed Uniform Commercial Code financing statements
(Form UCC-1) suitable for filing, naming in each case such Borrower or
such Subsidiary, as the case may be, as the debtor and the Administrative
Agent as the secured party, or other similar instruments or documents,
suitable for filing under the applicable laws of all
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jurisdictions as may be necessary or, in the opinion of the Administrative
Agent, desirable to perfect the security interest of the Administrative
Agent pursuant to the Security Agreement;
(b) executed copies of proper Uniform Commercial Code Form UCC-3
termination statements, if any, necessary to release all Liens and other
rights of any Person (other than Liens permitted under Section 8.2.3) (i)
in any collateral described in the Security Agreement and (ii) securing
any of the Indebtedness identified in Item 8.2.2(b) ("Indebtedness to be
Paid") of the Disclosure Schedule, together with such other Uniform
Commercial Code Form UCC-3 termination statements as the Administrative
Agent may reasonably request from such Obligors; and
(c) certified copies of Uniform Commercial Code Requests for
Information or Copies (Form UCC-11), or a similar search report certified
by a party acceptable to the Administrative Agent, dated a date reasonably
near to the Closing Date, listing all effective financing statements, tax
liens and judgment liens which name such Borrower and such Subsidiaries,
as the case may be (under their respective present names and any previous
names thereof), as the debtor and which are filed in the jurisdictions in
which filings were made pursuant to clause (a) above, together with copies
of such financing statements (none of which shall cover any collateral
described in each Security Agreement, except to the extent permitted by
Section 8.2.3).
SECTION 6.1.14. Mortgages. The Administrative Agent shall have received
counterparts of a Mortgage for each Existing Material Property, dated as of the
Closing Date, duly executed by the Borrower (or applicable Subsidiary) having
rights in the property described therein, together with
(a) evidence of the completion (or satisfactory arrangements for the
completion) of all recordings and filings of each such Mortgage as may be
necessary or, in the reasonable opinion of the Administrative Agent,
desirable to create a valid, perfected first priority Lien against the
land and improvements purported to be covered thereby;
(b) mortgagee's title insurance policies in favor of the
Administrative Agent and the Lenders issued by insurers reasonably
satisfactory to the Administrative Agent, in amounts and in form and
substance reasonably satisfactory to the Administrative Agent, with
respect to each Existing Material Property purported to be covered by each
such Mortgage, insuring that title to such property is marketable and that
the interests created by the Mortgage constitute valid first Liens thereon
free and clear of all defects and encumbrances other than as approved by
the Administrative Agent, and including a revolving credit endorsement and
such other endorsements as the Administrative Agent shall reasonably
request and shall be accompanied by evidence of the payment in full of all
premiums thereon;
(c) to the extent requested by the Administrative Agent, surveys for
each Existing Material Property made in accordance with the Minimum
Standard Detail Requirements
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for Land Title Surveys jointly established and adopted by the American
Land Title Association and the American Congress of Surveying and Mapping
in 1992, which surveys shall be certified to the Administrative Agent and
in form and substance reasonably satisfactory to the Administrative Agent;
(d) Uniform Commercial Code financing statements related to the
security interests created by each Mortgage, together with evidence of the
completion (or satisfactory arrangements for the completion) of all
recordings and filings of such financing statements in the appropriate
offices and records as may be necessary or, in the reasonable opinion of
the Administrative Agent, desirable to create valid, perfected first
priority Liens against the improvements purported to be covered thereby;
and
(e) such other certifications (including flood hazard
certifications), certificates (including insurance certificates),
approvals, opinions or documents as the Administrative Agent may
reasonably request.
SECTION 6.1.15. Intercreditor Agreement. The Administrative Agent shall
have received executed counterparts of the Intercreditor Agreement, dated as of
the Closing Date, duly executed and delivered by Chrysler, each Borrower and
each Subsidiary of a Borrower that is a party to the Pledge Agreement, the
Security Agreement or a Mortgage.
SECTION 6.1.16. Insurance. The Administrative Agent shall have received
evidence reasonably satisfactory to it (which evidence shall include a
certificate from an authorized insurance representative of the Borrowers) that
all insurance required by Section 8.1.4 is in full force and effect with no
default by any Borrower or any of their respective Subsidiaries, is fully paid
and is not subject to cancellation without 30 days' prior written notice to the
Administrative Agent.
SECTION 6.1.17. Issuance Request. The Administrative Agent and the Issuer
shall have received an Issuance Request for each Letter of Credit to be issued
on the Closing Date and an Enhancement Letter of Credit Application and
Agreement for each Enhancement Letter of Credit to be issued on the Closing Date
(if any).
SECTION 6.1.18. Opinions of Counsel. (a) The Administrative Agent shall
have received opinions, dated the Closing Date and addressed to the Agents, the
Issuer and the Lenders, from
(i) Debevoise & Xxxxxxxx, New York counsel for the Obligors and
Chrysler, in form and substance reasonably satisfactory to the
Administrative Agent;
(ii) Hall, Estill, Hardwick, Gable, Golden & Xxxxxx, Oklahoma
counsel for the Obligors, in form and substance reasonably satisfactory to
the Administrative Agent;
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(iii) ___________________________, special California counsel for
____________, in form and substance reasonably satisfactory to the
Administrative Agent;
(iv) ___________________________, special Arizona counsel for
_____________, in form and substance reasonably satisfactory to the
Administrative Agent;
(v) ___________________________, special Florida counsel for
_____________, in form and substance reasonably satisfactory to the
Administrative Agent;
(vi) __________________________, special Texas counsel for
_____________, in form and substance reasonably satisfactory to the
Administrative Agent; [and]
(vii) __________________________, special Utah counsel for
______________, in form and substance reasonably satisfactory to the
Administrative Agent.
(b) The Administrative Agent shall have received such reliance letters as
it may reasonably request with respect to opinions delivered in connection with
the Transaction, in each case dated the Closing Date and addressed to the
Agents, the Issuer and all of the Lenders.
SECTION 6.1.19. Closing Fees, Expenses, etc. The Administrative Agent
shall have received for its own account or for the account of each Arranger or
each Lender, as the case may be, all fees, costs and expenses due and payable
pursuant to Sections 3.3 and 12.3, if then invoiced.
SECTION 6.2. All Credit Extensions. The obligation of each Lender and the
Issuer to make any Credit Extension (including the initial Credit Extension)
shall be subject to the satisfaction of each of the conditions precedent set
forth in this Section 6.2.
SECTION 6.2.1. Compliance with Warranties, No Default, etc. Both before
and after giving effect to any Credit Extension (but, if any Default of the
nature referred to in Section 9.1.5 shall have occurred with respect to any
other Indebtedness, without giving effect to the application, directly or
indirectly, of the proceeds of any Credit Extension), the following statements
shall be true and correct
(a) the representations and warranties set forth in Article VII
(excluding, however, those contained in Section 7.7) and in each other
Loan Document shall, in each case, be true and correct with the same
effect as if then made (unless stated to relate solely to an earlier date,
in which case such representations and warranties shall be true and
correct as of such earlier date);
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(b) except as disclosed by any Borrower to the Administrative Agent,
the Issuer and the Lenders pursuant to Section 7.7
(i) no labor controversy, litigation, arbitration or
governmental investigation or proceeding shall be pending or
threatened against such Borrower or any of its Subsidiaries which
could reasonably be expected to materially adversely affect the
consolidated business, property, operations, assets, liabilities,
condition (financial or otherwise) or prospects of the Parent and
its Subsidiaries taken as a whole or which purports to affect the
legality, validity or enforceability of this Agreement, the Notes or
any other Loan Document; and
(ii) no development shall have occurred in any labor
controversy, litigation, arbitration or governmental investigation
or proceeding disclosed pursuant to Section 7.7 which could
reasonably be expected to materially adversely affect the
consolidated business, property, operations, assets, liabilities,
condition (financial or otherwise) or prospects of the Parent and
its Subsidiaries taken as a whole; and
(c) no Default shall have then occurred and be continuing.
SECTION 6.2.2. Credit Request. The Administrative Agent shall have
received a Borrowing Request or Issuance Request, as the case may be, for such
Credit Extension. Each of the delivery of a Borrowing Request or an Issuance
Request and the acceptance by any Borrower of the proceeds of the Borrowing or
the issuance of the Letter of Credit, as applicable, shall constitute a
representation and warranty by such Borrower that on the date of such Borrowing
(both immediately before and after giving effect to such Borrowing and the
application of the proceeds thereof) or the issuance of the Letter of Credit, as
applicable, the statements made in Section 6.2.1 are true and correct.
SECTION 6.2.3. Enhancement Letters of Credit. In the event such Credit
Extension is in respect of an Enhancement Letter of Credit, the conditions to
such Credit Extension set forth in the Enhancement Letter of Credit Application
and Agreement with respect to such Enhancement Letter of Credit shall have been
satisfied.
SECTION 6.2.4. Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of any Borrower or any of its
Subsidiaries or any other Obligor shall be reasonably satisfactory in form and
substance to the Administrative Agent and its counsel; the Administrative Agent
and its counsel shall have received all information, approvals, opinions,
documents or instruments as the Administrative Agent or its counsel may
reasonably request.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders, the Issuer and the Administrative Agent to
enter into this Agreement and to make Loans and issue Letters of Credit
hereunder, each Borrower represents and warrants unto the Administrative Agent,
the Issuer and each Lender as set forth in this Article VII.
SECTION 7.1. Organization, etc. Each Borrower and each of its Subsidiaries
(a) is a corporation validly organized and existing and in good
standing under the laws of the jurisdiction of its incorporation,
(b) is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction where the nature of its business
requires such qualification, except to the extent that the failure to so
qualify has not had, and could not reasonably be expected to have, a
material adverse effect on the business, property, operations, assets,
liabilities, condition (financial or otherwise) or prospects of the Parent
and its Subsidiaries taken as a whole,
(c) has full power and authority and holds all requisite
governmental licenses, permits and other approvals to enter into and
perform its Obligations under this Agreement, the Notes and each other
Loan Document to which it is a party and to own and hold under lease its
property and to conduct its business substantially as currently conducted
by it, and
(d) subject to Section 7.12, has complied in all material respects
with all material laws, rules, regulations and orders applicable to it.
SECTION 7.2. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by each Borrower of this Agreement, the Notes and each
other Loan Document executed or to be executed by it, and the execution,
delivery and performance by each other Obligor of each Loan Document executed or
to be executed by it and each such Borrower's and each such other Obligor's
participation in the consummation of the Transaction are or, in the case of the
CP Program, will be within each such Borrower's and each such Obligor's
corporate powers, have been or, in the case of the CP Program, will be duly
authorized by all necessary corporate action, and do not
(a) contravene such Borrower's or such other Obligor's Organic
Documents;
(b) contravene any material contractual restriction, law or
governmental regulation or court decree or order binding on or affecting
such Borrower or such other Obligor; or
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(c) result in, or require the creation or imposition of, any Lien
(other than the Liens created under the Loan Documents in favor of the
Administrative Agent for the benefit of the Secured Parties and the Liens
created under the Chrysler Credit Support Documents for the benefit of
Chrysler) on any of such Borrower or such other Obligor's properties.
SECTION 7.3. Government Approval, Regulation, etc. Other than those
authorizations, approvals or other actions by, and notices to or filings with,
any governmental authority or regulatory body, if any, which have been or, in
the case of the CP Program, will be duly obtained or made and are in full force
and effect, no additional authorization or approval or other action by, and no
additional notice to or filing with, any governmental authority or regulatory
body or other Person is required for the due execution, delivery or performance
by any Borrower or any other Obligor of this Agreement, the Notes or any other
Loan Document to which it is a party, or, except to the extent such failure to
so obtain or make such authorizations, approvals or other actions could not
reasonably be expected to have an adverse effect on the interests of the Lenders
hereunder and under the other Loan Documents or a material adverse effect on the
business, property, operations, assets, liabilities, condition (financial or
otherwise) or prospects of the Parent and its Subsidiaries, taken as a whole,
for such Borrower's and each such other Obligor's participation in the
consummation of the Transaction. No Borrower nor any of its Subsidiaries is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, or a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
SECTION 7.4. Validity, etc. This Agreement constitutes, and the Notes and
each other Loan Document executed by each Borrower will, on the due execution
and delivery thereof, constitute, the legal, valid and binding obligations of
such Borrower, enforceable against such Borrower in accordance with their
respective terms; and each Loan Document executed pursuant hereto by each other
Obligor will, on the due execution and delivery thereof by such Obligor, be the
legal, valid and binding obligation of such Obligor be the legal, valid and
binding obligation of such Obligor, as the case may be, enforceable in
accordance with its terms. Each of the Loan Documents which purports to create a
security interest creates a valid first priority security interest in the
Collateral (as defined in such Loan Document) subject thereto, subject only to
Liens permitted by Section 8.2.3, securing the payment of the Obligations
described therein.
SECTION 7.5. Financial Information; Absence of Undisclosed Liabilities.
The financial statements of each Borrower and its Subsidiaries furnished to each
Agent and each Lender pursuant to clauses (a) and (b) of Section 6.1.5 have been
prepared in accordance with GAAP consistently applied, and present fairly, in
all material respects, the consolidated financial condition of the entities
covered thereby as at the dates thereof and the results of their operations for
the periods then ended. Neither the Parent nor any of its Subsidiaries had any
material liabilities (matured or unmatured, fixed or contingent) that were not
fully reflected or provided for on the financial statements delivered pursuant
to clause (a) and (b) of Section 6.1.5, whether or not required by GAAP to be
shown in such financial statements, except as set forth in Item 7.5
("Liabilities") of the Disclosure Schedule. The Pro Forma Balance Sheet
delivered pursuant to clause (c) of Section 6.1.5 has been prepared in
accordance with the
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requirements of Regulation S-X and utilizing accounting principles that when
applied to the Transaction provide a reasonable basis on which to present
unaudited pro forma financial data. All balance sheets, all statements of
operations, shareholders' equity and cash flow and all other financial
information of each of the Parent and its Subsidiaries furnished pursuant to
Section 8.1.1 have been and will for periods following the Effective Date be
prepared in accordance with GAAP consistently applied, and do or will present
fairly, in all material respects, the consolidated financial condition of the
entities covered thereby as at the dates thereof and the results of their
operations for the periods then ended.
SECTION 7.6. No Material Adverse Change. There has been no material
adverse change in the business, property, operations, assets, liabilities,
condition (financial or otherwise) or prospects of the Parent and its
Subsidiaries, taken as a whole, since September 30, 1997.
SECTION 7.7. Litigation, Labor Controversies, etc. There is no pending or,
to the best knowledge of any Borrower, threatened litigation, action,
proceeding, or labor controversy affecting any Borrower or any of its
Subsidiaries, or any of their respective properties, businesses, assets or
revenues, which may materially adversely affect the business, property,
operations, assets, liabilities, condition (financial or otherwise) or prospects
of the Parent and its Subsidiaries, taken as a whole, or which purports to
affect the legality, validity or enforceability of this Agreement, the Notes or
any other Loan Document, except as disclosed in Item 7.7 ("Litigation") of the
Disclosure Schedule.
The consummation of the Transaction will not give rise to a right of
termination or right of renegotiation on the part of any union under any
collective bargaining agreement to which any Obligor (or any predecessor) is a
party or by which the Parent or any of its Subsidiaries (or any predecessor) is
bound.
SECTION 7.8. Subsidiaries. (a) The Parent has no direct Subsidiaries,
except as set forth in Item 7.8(a) ("Existing Subsidiaries of the Parent") of
the Disclosure Schedule.
(b) Dollar has no Subsidiaries, except those Subsidiaries (i) which are
identified in Item 7.8(b) ("Existing Subsidiaries of Dollar") of the Disclosure
Schedule by their correct legal name, their jurisdiction of organization and the
holders (and their respective percentage ownership) of the Capital Stock thereof
or (ii) which are permitted to have been acquired in accordance with Section
8.2.5 or 8.2.10.
(c) Thrifty has no Subsidiaries, except those Subsidiaries (i) which are
identified in Item 7.8(c) ("Existing Subsidiaries of Thrifty") of the Disclosure
Schedule by their correct legal name, their jurisdiction of organization and the
holders (and their respective percentage ownership of) the Capital Stock thereof
or (ii) which are permitted to have been acquired in accordance with Section
8.2.5 or 8.2.10.
SECTION 7.9. Ownership of Properties. Except as permitted pursuant to
Section 7.13 or Section 8.2.3, each Borrower and each of its Subsidiaries owns
(i) in the case of owned real property, good and marketable fee title to, and
(ii) in the case of owned personal property, good
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and valid title to, or, in the case of leased real or personal property, valid
and enforceable leasehold interests (as the case may be) in, all of its
properties and assets, real and personal, tangible and intangible, of any nature
whatsoever, to the extent reflected on the financial statements dated as of
September 30, 1997, or if later, the last day of the most recently completed
Fiscal Quarter with respect to which, pursuant to Section 8.1.1, financial
statements have been, or are required to have been, delivered by the Parent to
the Administrative Agent, free and clear in each case of all Liens or claims,
except for Liens permitted pursuant to Section 8.2.3. The real property
described in Schedule IV constitutes each of the real estate owned in fee by a
Borrower or any of its Subsidiaries on the date hereof (other than the Excluded
Property) having a net book value of at least $500,000. All other real property
owned in fee by a Borrower or any of its Subsidiaries on the date hereof (other
than the Excluded Property) which is not set forth on such Schedule IV does not
in the aggregate have a net book value exceeding $2,500,000.
SECTION 7.10. Taxes. Each Borrower and each of its Subsidiaries has filed
all material tax returns and reports required by law to have been filed by it
and has paid all taxes and governmental charges thereby shown to be due and
owing, except any such taxes or charges which are being diligently contested in
good faith by appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books.
SECTION 7.11. Pension and Welfare Plans. During the
twelve-consecutive-month period prior to the date of the execution and delivery
of this Agreement and prior to the date of any Credit Extension hereunder, (i)
no steps have been taken to terminate any Pension Plan, and (ii) no contribution
failure has occurred with respect to any Pension Plan sufficient to give rise to
a Lien under section 302(f) of ERISA, which in the case of any of the events
described in clause (i) or (ii) above could reasonably be expected to result in
a liability of the Parent and its Subsidiaries in excess of $1,000,000. No
condition exists or event or transaction has occurred with respect to any
Pension Plan which might result in the incurrence by any Borrower or any member
of the Controlled Group of any liability, fine or penalty that, in the
aggregate, exceeds $1,000,000. Except as disclosed in Item 7.11 ("Employee
Benefit Plans") of the Disclosure Schedule, no Borrower nor any member of the
Controlled Group has any contingent liability with respect to any
post-retirement benefit under a Welfare Plan, other than liability for
continuation coverage described in Part 6 of Title I of ERISA.
SECTION 7.12. Environmental Warranties. Except as set forth in Item 7.12
("Environmental Matters") of the Disclosure Schedule (none of which items
disclosed therein, singly or in the aggregate, have, or may reasonably be
expected to have, a material adverse effect on the business, property,
operations, assets, liabilities, condition (financial or otherwise) or prospects
of the Parent and its Subsidiaries, taken as a whole),
(a) all facilities and property (including underlying groundwater)
owned or leased by any Borrower or any of its Subsidiaries have been, and
continue to be, owned or leased by such Borrower and such Subsidiary, as
the case may be, in material compliance with all Environmental Laws and in
accordance with industry practices;
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(b) there have been no past, and there are no pending or threatened
(i) claims, complaints, notices or requests for information
received by any Borrower or any of its Subsidiaries with respect to
any alleged violation of any Environmental Law, which, if true
would, singly or in the aggregate, result in a liability of more
than $2,500,000 to the Parent and/or any of its Subsidiaries, or
(ii) complaints, notices or inquiries to any Borrower or any
of its respective Subsidiaries regarding potential liability under
any Environmental Law, which, if true would, singly or in the
aggregate, result in a liability of more than $2,500,000 to the
Parent and/or any of its Subsidiaries;
(c) there have been no Releases of Hazardous Materials at, on or
under any property now or previously owned or leased by any Borrower or
any of its Subsidiaries that, singly or in the aggregate, have, or may
reasonably be expected to have, a material adverse effect on the business,
property, operations, assets, liabilities, condition (financial or
otherwise) or prospects of the Parent and its Subsidiaries, taken as a
whole;
(d) each Borrower and each of its Subsidiaries have been issued and
are in material compliance with all permits, certificates, approvals,
licenses and other authorizations relating to environmental matters and
necessary or desirable for their businesses;
(e) no property now or previously owned or leased by any Borrower or
any of its Subsidiaries is listed or proposed for listing (with respect to
owned property only) on the National Priorities List pursuant to CERCLA,
on the CERCLIS or on any similar state list of sites requiring
investigation or clean-up;
(f) there are no underground storage tanks, active or abandoned,
including petroleum storage tanks, on or under any property now or
previously owned or leased by any Borrower or any of its Subsidiaries
that, singly or in the aggregate, have, or may reasonably be expected to
have, a material adverse effect on the business, property, operations,
assets, liabilities, condition (financial or otherwise) or prospects of
the Parent and its Subsidiaries, taken as a whole;
(g) Borrower nor any of its Subsidiaries has directly transported or
directly arranged for the transportation of any Hazardous Material to any
location which is listed or proposed for listing on the National
Priorities List pursuant to CERCLA, on the CERCLIS or on any similar state
list or which is the subject of federal, state or local enforcement
actions or other investigations which may lead to material claims against
such Borrower or such Subsidiary thereof for any remedial work, damage to
natural resources or personal injury, including claims under CERCLA;
(h) no Borrower nor any of its Subsidiaries has entered into any
agreements or engaged in any activities that, singly or in the aggregate,
would give rise to liability under
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any Environmental Law with regard to acts, omissions or conditions of
property of any third party, including any franchisee of any Borrower or
any of its Subsidiaries or that, singly or in the aggregate, have, or may
reasonably be expected to have, a material adverse effect on the business,
property, operations, assets, liabilities, condition (financial or
otherwise) or prospects of the Parent and its Subsidiaries, taken as a
whole;
(i) there are no polychlorinated biphenyls or friable asbestos
present at any property now or previously owned or leased by any Borrower
or any of its Subsidiaries that, singly or in the aggregate, have, or may
reasonably be expected to have, a material adverse effect on the business,
property, operations, assets, liabilities, condition (financial or
otherwise) or prospects of the Parent and its Subsidiaries, taken as a
whole; and
(j) no conditions exist at, on or under any property now or
previously owned or leased by the Parent or any of its Subsidiaries,
which, with the passage of time, or the giving of notice or both, would
give rise to liability under any Environmental Law that, singly or in the
aggregate, has, or may reasonably be expected to have, a material adverse
effect on the business, property, operations, assets, liabilities,
condition (financial or otherwise) or prospects of the Parent and its
Subsidiaries, taken as a whole.
SECTION 7.13. Intellectual Property. Each Borrower and each of its
Subsidiaries owns and possesses or licenses (as the case may be) all such
patents, patent rights, trademarks, trademark rights, trade names, trade name
rights, service marks, service xxxx rights and copyrights as such Borrower
considers necessary for the conduct of the businesses of such Borrower and its
Subsidiaries as now conducted without, individually or in the aggregate, any
infringement upon rights of other Persons, in each case except as could not
reasonably be expected to result in a material adverse effect on the business,
property, operations, assets, liabilities, condition (financial or otherwise) or
prospects of the Parent and its Subsidiaries, taken as a whole, and there is no
individual patent, patent right, trademark, trademark right, trade name, trade
name right, service xxxx, service xxxx right or copyright the loss of which
could reasonably be expected to result in a material adverse change in the
business, property, operations, assets, liabilities, condition (financial or
otherwise) or prospects of the Parent and its Subsidiaries, taken as a whole,
except as may be disclosed in Item 7.13 ("Intellectual Property") of the
Disclosure Schedule.
SECTION 7.14. Regulations G, U and X. No Borrower nor any of its
Subsidiaries is engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock, and no proceeds of any Credit Extensions
will be used to purchase or carry margin stock or otherwise for a purpose which
violates, or would be inconsistent with, F.R.S. Board Regulation G, U or X.
Terms for which meanings are provided in F.R.S. Board Regulation G, U or X or
any regulations substituted therefor, as from time to time in effect, are used
in this Section with such meanings.
SECTION 7.15. Accuracy of Information. All information (other than
financial statements and financial and business projections and forecasts)
heretofore or contemporaneously furnished by or on behalf of any Borrower or any
of their respective
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Subsidiaries in writing to any Agent, the Issuer or any Lender for purposes of
or in connection with this Agreement or any transaction contemplated hereby
(including the Transaction), is, and all of other such information hereafter
furnished by or on behalf of any Borrower or any of their respective
Subsidiaries to any Agent, the Issuer or any Lender will be, true and accurate
in every material respect on the date as of which such information is dated or
certified and as of the date of execution and delivery of this Agreement by such
Agent, the Issuer and such Lender, and such information is not, or shall not be,
as the case may be, incomplete by omitting to state any material fact necessary
to make such information not materially misleading in light of the circumstances
under which such information was furnished. All financial and business
projections and forecasts heretofore or contemporaneously furnished by or on
behalf of any Borrower or any of its Subsidiaries in writing to any Agent, the
Issuer or any Lender for purposes of or in connection with this Agreement or any
transaction contemplated hereby (including the Transaction) have been, and all
of the financial and business projections and forecasts hereafter furnished by
or on behalf of any Borrower or any of its Subsidiaries in writing to any Agent,
the Issuer or any Lender will be prepared in good faith based upon assumptions
which the Borrowers believe to be reasonable.
SECTION 7.16. Transaction Documents. As of the Closing Date, each of the
Chrysler-Dollar Supply Agreement, the Chrysler-Thrifty Supply Agreement, the
Continuing Chrysler Arrangements (including the Chrysler Credit Support
Agreement and the Tax Sharing Agreement) and the Xxxxxx Agreement has been duly
executed and delivered by each of the parties thereto and is in full force and
effect without the existence of any material default thereunder.
SECTION 7.17. Non-Guarantor Subsidiaries. (a) Each Domestic Subsidiary of
the Parent (other than Dollar, Thrifty and any SPC) that
(i) accounted for more than 1 1/2% of consolidated revenues of the
Parent and its Subsidiaries or 1 1/2% of consolidated net earnings of the
Parent and its Subsidiaries, in each case for the four consecutive Fiscal
Quarters of the Parent ending on September 30, 1997, or, if later, the
last day of the most recently completed Fiscal Quarter with respect to
which, pursuant to Section 8.1.1, financial statements have been, or are
required to have been, delivered by the Parent to the Administrative
Agent, or
(ii) has assets which represent more than 1 1/2% of the consolidated
assets of the Parent and its Subsidiaries as of September 30, 1997, or, if
later, the last day of the last Fiscal Quarter of the most recently
completed Fiscal Quarter with respect to which, pursuant to Section 8.1.1,
financial statements have been, or are required to have been, delivered by
the Parent to the Administrative Agent,
is a party to the Subsidiary Guaranty.
(b) There are no Domestic Subsidiaries of the Parent that are not
Subsidiary Borrowers or Subsidiary Guarantors and that, when taken together with
all other Subsidiaries of the Parent that are not Subsidiary Borrowers or
Subsidiary Guarantors,
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(i) account in the aggregate for more than 2 1/2% of consolidated
revenues of the Parent and its Subsidiaries or 2 1/2% of consolidated net
earnings of the Parent and its Subsidiaries, in each case for the four
consecutive Fiscal Quarters of the Parent ending on September 30, 1997,
or, if later, the last day of the most recently completed Fiscal Quarter
with respect to which, pursuant to Section 8.1.1, financial statements
have been, or are required to have been, delivered by the Parent to the
Administrative Agent, or
(ii) have assets which represent more than 2 1/2% of the
consolidated assets of the Parent and its Subsidiaries as of September 30,
1997, or, if later, the last day of the last Fiscal Quarter of the most
recently completed Fiscal Quarter with respect to which, pursuant to
Section 8.1.1, financial statements have been, or are required to have
been, delivered by the Parent to the Administrative Agent.
ARTICLE VIII
COVENANTS
SECTION 8.1. Affirmative Covenants. Each Borrower agrees with each Agent,
the Issuer and each Lender that, until all Commitments have terminated, all
Letters of Credit shall have terminated or expired and all Obligations have been
paid and performed in full, such Borrower will perform the obligations set forth
in this Section 8.1.
SECTION 8.1.1. Financial Information, Reports, Notices, etc. Each Borrower
will furnish, or will cause to be furnished, to each Lender, the Issuer and the
Administrative Agent copies of the following financial statements, reports,
notices and information:
(a) as soon as available and in any event within 45 days after the
end of each of the first three Fiscal Quarters of each Fiscal Year of the
Parent, (i) a consolidated balance sheet of the Parent and its
Subsidiaries and a consolidating balance sheet of the Parent and its
direct Subsidiaries, in each case, as of the end of such Fiscal Quarter
and (ii) consolidated statements of operations and cash flow of the Parent
and its Subsidiaries and consolidating statements of operations and cash
flow of the Parent and its direct Subsidiaries, in each case for such
Fiscal Quarter and for the period commencing at the end of the previous
Fiscal Year and ending with the end of such Fiscal Quarter, and, in each
case, certified by the chief financial Authorized Officer of the Parent;
(b) as soon as available and in any event within 90 days after the
end of each Fiscal Year of the Parent, (i) a copy of the annual audit
report for such Fiscal Year for the Parent and its Subsidiaries, including
therein a consolidated balance sheet of the Parent and its Subsidiaries
and a consolidating balance sheet of the Parent and its direct
Subsidiaries, in each case as of the end of such Fiscal Year and
consolidated statements of operations and cash flow of the Parent and its
Subsidiaries and consolidating statements of operations and cash flow of
the Parent and its direct Subsidiaries, in each
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case for such Fiscal Year, in each case certified (without any
Impermissible Qualification) in a manner acceptable to the Administrative
Agent and the Required Lenders by Deloitte & Touche or other nationally
recognized independent public accountants acceptable to the Administrative
Agent and the Required Lenders, together with a report from such
accountants containing a computation of each of the financial ratios and
restrictions contained in Section 8.2.4 and to the effect that, in making
the examination necessary for the signing of such annual report by such
accountants, they have not become aware of any Default that has occurred
and is continuing, or, if they have become aware of such Default,
describing such Default and the steps, if any, being taken to cure it; and
(ii) to the extent prepared for any other Person, (A) a copy of the annual
audit report for such Fiscal Year for Dollar and its Subsidiaries,
including therein a consolidated balance sheet of Dollar and its
Subsidiaries, as of the end of such Fiscal Year and consolidated
statements of operations and cash flow of Dollar and its Subsidiaries for
such Fiscal Year, and (B) a copy of the annual audit report for such
Fiscal Year for Thrifty and its Subsidiaries including therein a
consolidated balance sheet of Thrifty and its Subsidiaries as of the end
of such Fiscal Year and consolidated statements of operations and cash
flow of Thrifty and its Subsidiaries for such Fiscal Year, in each case
certified (without any Impermissible Qualification) in a manner acceptable
to the Administrative Agent and the Required Lenders by Deloitte & Touche
or other nationally recognized independent public accountants acceptable
to the Administrative Agent and the Required Lenders;
(c) as soon as available and in any event within 45 days after the
end of each Fiscal Quarter, a Compliance Certificate, executed by the
chief financial Authorized Officer of the Parent, showing, among other
things, (in reasonable detail and with appropriate calculations and
computations in all respects satisfactory to the Administrative Agent)
compliance with the financial covenants set forth in Section 8.2.4;
(d) as soon as possible and in any event within three Business Days
after the occurrence of each Default, a statement of the chief financial
Authorized Officer of the Parent setting forth details of such Default and
the action which the Parent or any other Borrower has taken and proposes
to take with respect thereto;
(e) as soon as possible and in any event within three Business Days
after (x) the occurrence of any adverse development with respect to any
litigation, action, proceeding or labor controversy of the type that would
be required to be described in Item 7.7 of the Disclosure Schedule or (y)
the commencement of any labor controversy, litigation, action or
proceeding of the type required to be described in Section 7.7, notice
thereof and copies of all documentation relating thereto;
(f) promptly after the sending or filing thereof, copies of all
reports which the Parent sends to any of its securityholders, and all
reports and registration statements which the Parent or any of its
Subsidiaries files with the SEC or any national securities exchange;
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(g) as soon as possible and in any event within three Business Days
after becoming aware of the institution of any steps by a Borrower or any
other Person to terminate any Pension Plan, or the failure to make a
required contribution to any Pension Plan if such failure is sufficient to
give rise to a Lien under section 302(f) of ERISA, or the taking of any
action with respect to a Pension Plan which could reasonably be expected
to result in the requirement that such Borrower or any of their respective
Subsidiaries furnish a bond or other security to the PBGC or such Pension
Plan, or the occurrence of any event with respect to any Pension Plan
which could reasonably be expected to result in the incurrence by a
Borrower of any material liability, fine or penalty, or any material
increase in the contingent liability of such Borrower with respect to any
post-retirement Welfare Plan benefit, notice thereof and copies of all
documentation relating thereto;
(h) as soon as available and in any event no later than 30 days
after the first day of each Fiscal Year of the Parent, an annual budget,
prepared on a monthly basis for such Fiscal Year of the Parent containing
(i)(A) a consolidated projected balance sheet of each of the Parent and
its Subsidiaries, Dollar and its Subsidiaries, and Thrifty and its
Subsidiaries, and (B) a consolidating projected balance sheet of the
Parent and its direct Subsidiaries and (ii)(A) consolidated statements of
operations and cash flow of each of the Parent and its Subsidiaries,
Dollar and its Subsidiaries and Thrifty and its Subsidiaries, and (B)
consolidating statements of operations and cash flow of the Parent and its
direct Subsidiaries;
(i) concurrently with the delivery of the financial statements
described in clause (b) of this Section 8.1.1, a narrative explanation, in
the form customarily provided to the Board of Directors of the Parent, of
any material variance from the budget of the Parent for such Fiscal Year
that is reflected in such financial statements, unless the Parent has
timely filed with the SEC an annual report on Form 10-K, in which case
delivery of such annual report to each Lender, the Issuer and the
Administrative Agent shall satisfy the requirements of this clause (i);
(j) as soon as possible and in any event within ten days after the
delivery thereof, copies of all notices, agreements or documents delivered
pursuant to any agreement for borrowed money to which the Parent or any
Subsidiary of the Parent is a party and with a commitment or outstandings
exceeding $2,500,000, except for such notices, agreements or documents (i)
delivered pursuant to the terms hereof or (ii) which are delivered in the
ordinary course of each such agreement (such as borrowing requests, letter
of credit requests and the like); and
(k) such other information respecting the condition or operations,
financial or otherwise, of any Borrower or any of their respective
Subsidiaries as any Lender through the Administrative Agent may from time
to time reasonably request.
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SECTION 8.1.2. Compliance with Laws, Material Agreements, etc. Each
Borrower will, and will cause each of its Subsidiaries to, comply in all
material respects with all material laws, rules, regulations, orders and
agreements applicable to it, such compliance to include:
(a) the maintenance and preservation of its corporate existence and
qualification as a foreign corporation;
(b) the maintenance and preservation of all governmental licenses,
permits and other approvals necessary for it to perform its obligations
under this Agreement, the Notes and each other Loan Document to which it
is a party and to own and hold under lease its property and to conduct its
business substantially as currently conducted by it;
(c) the maintenance, preservation and renewal of all material
agreements necessary to conduct its business substantially as currently
conducted by it (or the substitution for any such material agreement with
a similar agreement), including the Chrysler-Dollar Supply Agreement and
the Chrysler-Thrifty Supply Agreement; and
(d) the payment, before the same become delinquent, of all taxes,
assessments and governmental charges imposed upon it or upon its property
except to the extent being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with
GAAP shall have been set aside on its books.
SECTION 8.1.3. Maintenance of Properties. Each Borrower will, and will
cause each of its Subsidiaries to, maintain, preserve, protect and keep its
properties in good repair, working order and condition, and make necessary and
proper repairs, renewals and replacements so that its business carried on in
connection therewith may be properly conducted at all times unless the such
Person determines in good faith that the continued maintenance of any of its
properties is no longer economically desirable.
SECTION 8.1.4. Insurance. Each Borrower will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained with responsible insurance
companies (a) insurance with respect to its properties and business (including
business interruption insurance), against loss or damage by casualties and
contingencies, in amounts not less than the then full replacement value of such
properties, (b) general public liability insurance (including umbrella excess
liability insurance) against liability on account of damage to persons and
property in an amount not less than $7,500,000 per occurrence and $75,000,000
in the aggregate (provided that (i) Thrifty may self-insure up to $1,000,000
per occurrence through a combination of self-insurance, deductibles and/or
quota-sharing arrangements and may maintain a quota sharing arrangement with an
unaffiliated carrier under which it pays up to 15% of the portion of any such
loss between $1,000,000 and $2,000,000, and (ii) Dollar may self-insure up
to $1,000,000 per occurrence through a combination of self-insurance,
deductibles and/or quota-sharing arrangements), (c) insurance required under all
applicable workers' compensation laws in amounts which comply with relevant
statutory requirements, (d) environmental impairment liability insurance of such
types and in such amounts as may now or hereafter be required by applicable law
and (e) each other type of insurance in such amount as is customary in the case
of
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similar businesses of established reputation. All insurance policies described
under this Section shall be in form reasonably satisfactory to the
Administrative Agent. Upon request of the Administrative Agent, each Borrower
will, and will cause each of its Subsidiaries to, furnish (or cause to be
furnished) to each Lender at reasonable intervals a certificate of an Authorized
Officer of such Borrower setting forth the nature and extent of all insurance
maintenance by such Borrower and its Subsidiaries in accordance with this
Section.
SECTION 8.1.5. Books and Records. Each Borrower will, and will cause each
of its Subsidiaries to, keep books and records which accurately reflect all of
their respective business affairs and transactions and permit the Administrative
Agent and each Lender or any of their respective representatives, at reasonable
times and intervals, to visit all of their respective offices, to discuss their
respective financial matters with their respective officers and independent
public accountant (and each Borrower hereby authorizes such independent public
accountants to discuss such financial matters with each Lender or its
representatives whether or not any representative of such Borrower or such
Subsidiary is present, provided such Borrower has been given prior notice of
such discussion and an opportunity to be present during such discussion through
one or more of its representatives) and to examine (and, at the expense of such
Borrower, photocopy extracts from) any of their respective books or other
corporate records. The Borrowers shall, jointly and severally, pay any fees of
such independent public accountant incurred in connection with the
Administrative Agent's or any Lender's exercise of its rights pursuant to this
Section.
SECTION 8.1.6. Environmental Covenant. Each Borrower will, and will cause
each of its Subsidiaries to,
(a) use and operate all of their respective facilities and
properties in material compliance with all Environmental Laws, keep all
necessary permits, approvals, certificates, licenses and other
authorizations relating to environmental matters in effect and remain in
material compliance therewith, and handle all Hazardous Materials in
material compliance with all applicable Environmental Laws;
(b) follow practices that are at least as effective as industry
practices to minimize and respond to spills and overfills of petroleum
products;
(c) respond to past and ongoing releases of petroleum-containing
materials in a manner that minimizes potential liability to third parties
for off-site contamination from facilities owned or leased or otherwise
operated by such Borrower or any of its Subsidiaries;
(d) respond to past and ongoing releases of petroleum-containing
materials in a manner that minimizes any likelihood that such Borrower or
any of its Subsidiaries would incur costs or damages that, singly or in
the aggregate, have, or may reasonably be expected to have, a material
adverse effect on the business, property, operations, assets, liabilities,
condition (financial or otherwise) or prospects of the Parent and its
Subsidiaries, taken as a whole;
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(e) manage the disposition of residuals such as spent
petroleum-containing material in a manner that minimizes any likelihood
that such Borrower or any of its Subsidiaries would incur costs or damages
that, singly or in the aggregate, have, or may reasonably be expected to
have, a material adverse effect on the business, property, operations,
assets, liabilities, condition (financial or otherwise) or prospects of
the Parent and its Subsidiaries, taken as a whole;
(f) immediately notify the Administrative Agent and provide copies
upon receipt of all written claims, complaints, notices or inquiries
relating to the condition of their facilities and properties or compliance
with Environmental Laws, other than any claim, complaint, notice or
inquiry that alleges or makes reference to a violation of any
Environmental Law which, if true, could result in payments not in excess
of $2,500,000; and
(g) provide such information and certifications which the
Administrative Agent may reasonably request from time to time to evidence
compliance with this Section 8.1.6.
SECTION 8.1.7. Use of Proceeds. Each Borrower shall apply the proceeds of
each Credit Extension in accordance with the eighth recital; without limiting
the foregoing, no proceeds of any Loan will be used to acquire any equity
security of a class which is registered pursuant to Section 12 of the Exchange
Act or any "margin stock", as defined in F.R.S. Board Regulation U.
SECTION 8.1.8. Additional Real Property. Each Borrower shall, and shall
cause each of its Subsidiaries to, cause the Administrative Agent and the
Lenders to have at all times a first priority perfected security interest
(subject only to Liens and encumbrances permitted under Section 8.2.3) in all of
the real property owned from time to time by such Borrower and its Subsidiaries
(other than any such real property that has a net book value of less than
$500,000 and that, when added to the net book value of all other real property
owned by the Borrowers and their Subsidiaries that is not subject to a first
priority perfected security interest in favor of the Administrative Agent and
the Lenders, does not exceed $2,500,000, in either case). Without limiting the
generality of the foregoing, each such Borrower shall, and shall cause each such
Subsidiary to, execute and deliver or cause to be executed and delivered
Mortgages, that may be necessary or, in the opinion of the Administrative Agent,
desirable to create a valid, perfected Lien against such real property, together
with
(a) evidence of the completion (or satisfactory arrangements for the
completion) of all recordings and filings of each such Mortgage;
(b) mortgagee's title insurance policies in favor of the
Administrative Agent and the Lenders and issued by insurers reasonably
satisfactory to the Administrative Agent, in amounts and in form and
substance reasonably satisfactory to the Administrative Agent, with
respect to each Additional Material Property purported to be covered by
each such Mortgage, insuring that title to such property is marketable and
that the interests created by the Mortgage constitute valid first Liens
thereon free and clear of all defects
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and encumbrances other than as approved by the Administrative Agent, such
policies shall also include a revolving credit endorsement and such other
endorsements as the Administrative Agent shall request and shall be
accompanied by evidence of the payment in full of all premiums thereon;
(c) surveys for each Additional Material Property made in accordance
with the Minimum Standard Detail Requirements for Land Title Surveys
jointly established and adopted by the American Land Title Association and
the American Congress of Surveying and Mapping in 1992, which surveys
shall be certified to the Administrative Agent and in form and substance
reasonably satisfactory to the Administrative Agent;
(d) Uniform Commercial Code financing statements related to the
security interests created by each Mortgage, together with evidence of the
completion (or satisfactory arrangements for the completion) of all
recordings and filings of such financing statements in the appropriate
offices and records as may be necessary or, in the reasonable opinion of
the Administrative Agent, desirable to create valid, perfected first
priority Liens against the improvements purported to be covered thereby;
and
(e) such other certifications (including flood hazard
certifications), approvals, opinions or documents as the Administrative
Agent may reasonably request.
SECTION 8.1.9. Future Subsidiaries. Without limiting the effect of any
provision contained herein (including Section 8.2.5), upon any Person becoming
either a direct or indirect Subsidiary of the Parent (other than an SPC or a
Non-Material Subsidiary),
(a) in the event such Person is a Subsidiary which is not a Foreign
Subsidiary, such Person (i) if not theretofore a party to the Security
Agreement, shall execute and deliver to the Administrative Agent a
supplement to the Security Agreement for the purpose of becoming a grantor
thereunder, which supplement shall be substantially in the form attached
to the Security Agreement and (ii) to the extent required under Section
8.2.2, shall execute and deliver to the Parent or any of its applicable
Subsidiaries an Intercompany Note in a principal amount not less than the
aggregate amount such Person may borrow from the Parent or such Subsidiary
(which Intercompany Note shall be endorsed and pledged to the
Administrative Agent pursuant to the Pledge Agreement (in accordance with
the succeeding paragraph));
(b) the Parent or, if not the Parent, the Subsidiary of the Parent
(provided such Subsidiary is not a Foreign Subsidiary exempted from the
requirement of becoming a Subsidiary Guarantor as a result of the proviso
to the succeeding clause (c)) that will own shares of the Capital Stock of
such Person (which Subsidiary, if not theretofore a party to the Pledge
Agreement, shall execute and deliver to the Administrative Agent a
supplement to the Pledge Agreement for the purpose of becoming a pledgor
thereunder, which supplement shall be substantially in the form attached
to the Pledge Agreement) shall, pursuant to the Pledge Agreement (as
further supplemented, if necessary, by a Foreign Pledge Agreement), pledge
to the Administrative Agent (i) all of the outstanding
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shares of the Capital Stock of such Person owned by the Parent or such
Subsidiary, together with (A) undated stock powers or equivalent
instruments of transfer satisfactory to the Administrative Agent for such
certificates or such other evidence of beneficial ownership, executed in
blank (or, if any such shares of Capital Stock are uncertificated,
confirmation and evidence satisfactory to the Administrative Agent that
the security interest in such uncertificated securities has been perfected
by the Administrative Agent in accordance with the U.C.C. or any similar
or local law which may be applicable) and (B) executed copies of Uniform
Commercial Code financing statements naming the Parent or such Subsidiary
as the debtor and the Administrative Agent as the secured party, suitable
for filing under the Uniform Commercial Code of all jurisdictions as may
be necessary or, in the reasonable opinion of the Administrative Agent,
desirable to perfect the security interest of the Administrative Agent in
the interests of the Parent or such Subsidiary in such Person pledged
pursuant to such Pledge Agreement (and such Foreign Pledge Agreement, if
applicable); provided, however, that the Parent or such Subsidiary shall
not be required to pledge the shares of Capital Stock of a Foreign
Subsidiary required to be pledged hereunder (1) if the Required Lenders
have otherwise agreed or (2) to the extent such pledge could reasonably be
expected to constitute at any time an investment of earnings in United
States property under Section 956 (or any successor provision thereto) of
the Code that would increase by a material amount the amount of United
States federal income tax that would otherwise be payable by the Parent
and the other members of the affiliated group of corporations filing a
consolidated federal income tax return with the Parent in the absence of
such pledge, as determined by the Parent based on existing financial
statements and on financial projections prepared in good faith based upon
assumptions which the Parent believes to be reasonable and as evidenced by
a certificate of the chief financial Authorized Officer of the Parent that
is accepted in writing by the Administrative Agent (such acceptance not to
be unreasonably withheld and which acceptance shall be deemed to have
occurred in the absence of a written notice from the Administrative Agent
that is given to the Parent within five Business Days of the
Administrative Agent's receipt of such certificate, indicating the reasons
for not accepting such certificate); provided further, however, that, in
the event of any change in, or the introduction, adoption, effectiveness,
interpretation, reinterpretation or phase-in of, any law or regulation,
directive or guideline of any governmental authority (a "Law Change") that
could reasonably be expected to alter the conclusion set forth in such
certificate, the Administrative Agent or the Required Lenders may request
the Parent to deliver another such certificate in light of such event and,
in the absence of the delivery and acceptance of such certificate as
provided above, require the pledge of such shares of Capital Stock but
provided further, however, that, in the event that any Law Change occurs
subsequent to the date that any such pledge of such shares of Capital
Stock and is granted, and as a result thereof, such pledge could then
reasonably be expected to increase by a material amount the amount of
United States federal income tax that would otherwise be payable by the
Parent and the other members of the affiliated group of corporations
filing a consolidated federal income tax return with the Parent in the
absence of such pledge, then, such pledge shall be released upon the
written acceptance by the Administrative Agent of a certificate of the
chief financial Authorized Officer of the Parent detailing the adverse
effect of such subsequent Law Change (such
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acceptance not to be unreasonably withheld and which acceptance shall be
deemed to have occurred in the absence of a written notice from the
Administrative Agent that is given to the Parent within five Business Days
of the Administrative Agent's receipt of such certificate, indicating the
reasons for not accepting such certificate).
(c) if not theretofore a party to the Subsidiary Guaranty, such
Person shall execute and deliver to the Administrative Agent a supplement
to the Subsidiary Guaranty for the purpose of becoming a guarantor
thereunder, which supplement shall be substantially in the form attached
to the Subsidiary Guaranty; provided, however, that, in the event such
Subsidiary is a Foreign Subsidiary, such Subsidiary shall not be required
to become a guarantor under the Subsidiary Guaranty (1) if the Required
Lenders have otherwise agreed or (2) to the extent such guaranty could
reasonably be expected increase the amount of United States federal income
tax that would otherwise be payable by the Parent and the other members of
the affiliated group of corporations filing a consolidated federal income
tax return with the Parent in the absence of such guaranty, as determined
by the Parent based on existing financial statements and on financial
projections prepared in good faith based upon assumptions which the Parent
believes to be reasonable and as evidenced by a certificate of the chief
financial Authorized Officer of the Parent that is accepted in writing by
the Administrative Agent (such acceptance not to be unreasonably withheld
and which acceptance shall be deemed to have occurred in the absence of a
written notice from the Administrative Agent that is given to the Parent
within five Business Days of the Administrative Agent's receipt of such
certificate, indicating the reasons for not accepting such certificate);
provided further, however, that, in the event of any Law Change that could
reasonably be expected to alter the conclusion set forth in such
certificate, the Administrative Agent or the Required Lenders may request
the Parent to deliver another such certificate in light of such event and,
in the absence of the delivery and acceptance of such certificate as
provided above, require the execution and delivery by such Person of such
supplement to the Subsidiary Guaranty; but provided further, however,
that, in the event that any Law Change occurs subsequent to the date that
any such supplement to the Subsidiary Guaranty becomes effective, and as a
result thereof, such guaranty could then reasonably be expected to
increase by a material amount the amount of United States federal income
tax that would otherwise be payable by the Parent and the other members of
the affiliated group of corporations filing a consolidated federal income
tax return with the Parent in the absence of such guaranty, then, such
guarantee shall cease to be effective following the written acceptance by
the Administrative Agent of a certificate of the chief financial
Authorized Officer of the Parent detailing the adverse effect of such
subsequent Law Change (such acceptance not to be unreasonably withheld and
which acceptance shall be deemed to have occurred in the absence of a
written notice from the Administrative Agent that is given to the Parent
within five Business Days of the Administrative Agent's receipt of such
certificate, indicating the reasons for not accepting such certificate);
(d) the Administrative Agent shall have received from each such
Person certified copies of Uniform Commercial Code Requests for
Information or Copies (Form UCC-11), or a similar search report certified
by a party acceptable to the
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Administrative Agent, dated a date reasonably near (but prior to) the date
of any such Person becoming a direct or indirect Subsidiary of the Person,
listing all effective financing statements, tax liens and judgment liens
which name such Person as the debtor and which are filed in the
jurisdictions in which filings are to be made pursuant to this Agreement
and the other Loan Documents, and in such other jurisdictions as the
Administrative Agent may reasonably request, together with copies of such
financing statements (none of which (other than financing statements (i)
filed pursuant to the terms hereof in favor of the Administrative Agent,
if such Form UCC-11 or search report, as the case may be, is current
enough to list such financing statements, (ii) being terminated pursuant
to termination statements that are to be delivered on or prior to the date
such Person becomes such Subsidiary or (iii) in respect of Liens permitted
under Section 8.2.3) shall cover any of the collateral described in the
Security Agreement); and
(e) the Administrative Agent shall have received from each such
Person executed copies of U.C.C. financing statements naming each such
Person as the debtor and the Administrative Agent as the secured party,
suitable for filing under the U.C.C. of all jurisdictions as may be
necessary or, in the reasonable opinion of the Administrative Agent,
desirable to perfect the security interest of the Administrative Agent
pursuant to the Security Agreement entered into by such Person,
together, in each case, with such opinions of legal counsel as the
Administrative Agent may reasonably request, which legal opinions shall be in
form and substance reasonably satisfactory to the Administrative Agent.
SECTION 8.2. Negative Covenants. Each Borrower agrees with the
Administrative Agent, the Issuer and each Lender that, until all Commitments
have terminated, all Letters of Credit shall have terminated or expired and all
Obligations have been paid and performed in full, each Borrower will perform the
obligations set forth in this Section 8.2.
SECTION 8.2.1. Business Activities. Each Borrower will not, and will not
permit any of its Subsidiaries to, engage in any business activity, except (i)
those described in the first recital (and such activities as may be incidental
or related thereto) and (ii) the providing of telemarketing services.
SECTION 8.2.2. Indebtedness. Each Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume or suffer to exist or
otherwise become or be liable in respect of any Indebtedness, other than,
without duplication, the following:
(a) Indebtedness in respect of this Agreement, including the Loans
and other Obligations;
(b) until the Closing Date, Indebtedness identified in Item 8.2.2(b)
("Indebtedness to be Paid") of the Disclosure Schedule;
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(c) Indebtedness existing as of the Effective Date which is
identified in Item 8.2.2(c) ("Ongoing Indebtedness") of the Disclosure
Schedule;
(d) Indebtedness in respect of Surety Bonds in an aggregate amount
not to exceed (i) from the date hereof to (and including) the last day of
the 1998 Fiscal Year, $130,000,000, (ii) during the 1999 Fiscal Year,
$140,000,000, (iii) during the 2000 Fiscal Year, $150,000,000, (iv) during
the 2001 Fiscal Year, $160,000,000 and (v) during the 2002 Fiscal Year,
$170,000,000;
(e) Indebtedness of the Borrowers in respect of the Chrysler Letters
of Credit in an aggregate amount not to exceed $50,000,000;
(f) Indebtedness of the Subsidiary Borrowers and their respective
Subsidiaries in an aggregate principal amount not to exceed $15,000,000 at
any time outstanding which is incurred to finance buses that shuttle
vehicle rental customers to and from Dollar and Thrifty vehicle rental
sites;
(g) Vehicle Debt;
(h) Indebtedness in respect of Demand Capitalization Notes to the
extent the obligations of the Parent thereunder (whether contingent or
otherwise) do not exceed at any time $__________;
(i) Indebtedness of Foreign Subsidiaries incurred for working
capital purposes to the extent the aggregate principal amount thereof does
not exceed at any time outstanding $1,000,000;
(j) Indebtedness in an aggregate principal amount not to exceed
$2,500,000 at any time outstanding which is incurred by any Borrower or
any of its Subsidiaries to a vendor of any assets permitted to be acquired
pursuant to Section 8.2.7 to finance its acquisition of such assets;
(k) unsecured Indebtedness incurred in the ordinary course of
business (excluding Indebtedness incurred through the borrowing of money
or Contingent Liabilities);
(l) Indebtedness in respect of Capitalized Lease Liabilities to the
extent permitted by Section 8.2.7;
(m) Hedging Obligations of the Parent or any of its Subsidiaries
pursuant to agreements designed to protect the Parent or any of its
Subsidiaries against fluctuations in interest rates in respect of
Indebtedness of the Parent or such Subsidiary and not entered into for
purposes of speculation;
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(n) Hedging Obligations of a Subsidiary Borrower or any of its
Subsidiaries pursuant to agreements designed to protect such Subsidiary
Borrower or any of its Subsidiaries against fluctuations in currency
values and entered into in the ordinary course of business and not for
purposes of speculation;
(o) Indebtedness of the Parent owing to a Subsidiary Borrower or a
Subsidiary Guarantor pursuant to an Investment of such Subsidiary Borrower
or such Subsidiary Guarantor permitted pursuant to clause (e) of Section
8.2.5 or to any other Subsidiary of the Parent pursuant to clause (i) of
Section 8.2.5;
(p) Indebtedness of any Subsidiary Borrower or any Subsidiary
Guarantor owing to the Parent; provided that such Indebtedness is
evidenced by an Intercompany Note pledged to the Administrative Agent
pursuant to the terms of the Pledge Agreement;
(q) Indebtedness of a Borrower or any Subsidiary of a Borrower owing
to a Subsidiary of a Borrower that is not a Subsidiary Borrower or a
Subsidiary Guarantor; provided that such Indebtedness (other than
Indebtedness of a Subsidiary Borrower owing to RCFC in respect of amounts
advanced by RCFC to a Subsidiary Borrower) constitutes Subordinated
Intercompany Debt;
(r) Indebtedness of Subsidiary Borrowers or Subsidiary Guarantors
that are Wholly Owned Subsidiaries of the Parent owing to a Subsidiary
Borrower or a Subsidiary Guarantor; provided, however, that, in the event
the obligor in respect of such Indebtedness is a Subsidiary of the Parent
that is neither a Subsidiary Borrower nor a Subsidiary of a Subsidiary
Borrower, such Indebtedness shall not be subordinated to any other
liabilities of such obligor and shall be evidenced by an Intercompany Note
pledged to the Administrative Agent pursuant to the terms of the Pledge
Agreement;
(s) Indebtedness of Subsidiaries of the Parent owing to a Borrower
or a Subsidiary Guarantor to the extent permitted by clause (g) of Section
8.2.5;
(t) Indebtedness of a Person that becomes a Subsidiary of a
Subsidiary Borrower pursuant to a Permitted Business Acquisition or
Indebtedness that is assumed pursuant to an acquisition of assets
constituting a Permitted Business Acquisition by the acquiror of such
assets, to the extent (i) such Indebtedness existed at the time of such
Permitted Business Acquisition and was not created in contemplation
thereof, (ii) such Indebtedness is not guaranteed by any other Obligor and
(iii) the aggregate principal amount of all such Indebtedness outstanding
at any time does not exceed $5,000,000;
(u) Subordinated Debt of the Parent, to the extent (i) the terms of
such Indebtedness are consented to by the Administrative Agent (provided
such terms shall not include any scheduled principal payment (including
any sinking fund requirement) prior to December 31, 2003, any financial
covenants and any cross-default (other than cross-acceleration) to other
Indebtedness) and (ii) the aggregate principal amount of all such
Indebtedness outstanding at any time does not exceed $10,000,000;
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(v) Indebtedness which refinances Indebtedness permitted by clauses
(d), (e), (f), (g) and (u) above; provided, however, that after giving
effect to such refinancing, (i) the principal amount of outstanding
Indebtedness is not increased, (ii) neither the tenor nor the average life
thereof is reduced, (iii) the respective obligor or obligors shall be the
same on the refinancing Indebtedness as on the Indebtedness being
refinanced, (iv) the security, if any, for the refinancing Indebtedness
shall be the same as that for the Indebtedness being refinanced (except to
the extent that less security is granted to holders of refinancing
Indebtedness), (v) the holders of refinancing Indebtedness are not
afforded covenants, defaults, rights or remedies more burdensome to the
obligor or obligors than those contained in the Indebtedness being
refinanced and (vi) the refinancing Indebtedness is subordinated to the
same degree, if any, as the Indebtedness being refinanced; and
(w) other Indebtedness of the Subsidiary Borrowers and their
respective Subsidiaries in an aggregate amount not to exceed (i) during
the 1997 Fiscal Year, the 1998 Fiscal Year or the 1999 Fiscal Year,
$5,000,000 and (ii) during the 2000 Fiscal Year or any Fiscal Year
thereafter, $10,000,000;
provided, however, that no Indebtedness otherwise permitted by clauses (i), (j),
(l), (m), (n), (s), (t), (u) or (w) shall be permitted if, after giving effect
to the incurrence thereof, any Default shall have occurred and be continuing.
SECTION 8.2.3. Liens. Each Borrower will not, and will not permit any of
its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any
of its property, revenues or assets, whether now owned or hereafter acquired,
except:
(a) Liens securing payment of the Obligations, granted pursuant to
any Loan Document;
(b) Liens securing payment of Indebtedness of the type permitted and
described in clause (b) of Section 8.2.2;
(c) Liens granted prior to the Effective Date to secure payment of
Indebtedness of the type permitted and described in clause (c) of Section
8.2.2;
(d) Liens granted to secure payment of Vehicle Debt and covering
only Vehicles financed by such Vehicle Debt, Excluded Receivables relating
to such Vehicles, rights under the Demand Capitalization Notes, cash (and
investments thereof in Cash Equivalent Investments) of an SPC arising from
the operations of such SPC, deposit accounts with respect to such cash and
Cash Equivalent Investments and all proceeds of the foregoing;
(e) Liens securing payment of reimbursement obligations of the
Borrowers in respect of the Chrysler Letters of Credit, granted pursuant
to the Chrysler Credit Support Documents and subject to the terms of the
Intercreditor Agreement;
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(f) Liens granted to secure payment of Indebtedness of the type
permitted and described in clause (f) of Section 8.2.2 and covering only
those buses financed with the proceeds of such Indebtedness;
(g) Liens granted to secure payment of Indebtedness of the type
permitted and described in clause (i) of Section 8.2.2 and covering only
assets of the Foreign Subsidiary obligated under such Indebtedness;
(h) Liens granted to secure payment of Indebtedness of the type
permitted and described in clause (j) of Section 8.2.2 and covering only
those assets acquired with the proceeds of such Indebtedness;
(i) Liens granted to secure payment of Indebtedness (other than
Subordinated Intercompany Debt) of the type permitted and described in
clause (o) (to the extent payable to a Subsidiary Borrower), (q), (r) or
(s) of Section 8.2.2;
(j) Liens existing on specific assets at the time acquired by a
Subsidiary Borrower or any of its Subsidiaries pursuant to a Permitted
Business Acquisition, to the extent (i) such Liens existed at the time of
such acquisition and were not created in contemplation thereof, (ii) such
Liens do not encumber any other asset of any Borrower or any of its
Subsidiaries and (iii) the Indebtedness secured thereby is of the type
permitted and described in clause (t) of Section 8.2.2;
(k) Liens for taxes, assessments or other governmental charges or
levies not at the time delinquent or thereafter payable without penalty or
being diligently contested in good faith by appropriate proceedings and
for which adequate reserves in accordance with GAAP shall have been set
aside on its books;
(l) Liens of carriers, warehousemen, mechanics, materialmen and
landlords incurred in the ordinary course of business for sums not overdue
or being diligently contested in good faith by appropriate proceedings and
for which adequate reserves in accordance with GAAP shall have been set
aside on its books;
(m) Liens incurred in the ordinary course of business in connection
with workmen's compensation, unemployment insurance or other forms of
governmental insurance or benefits, or to secure performance of tenders,
statutory obligations, leases and contracts (other than for borrowed
money) entered into in the ordinary course of business or to secure
obligations on surety or appeal bonds;
(n) judgment Liens in existence less than 30 days after the entry
thereof or with respect to which execution has been stayed or the payment
of which is covered in full (subject to a customary deductible) by
insurance maintained with responsible insurance companies; and
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(o) Liens with respect to minor imperfections of title and
easements, rights-of-way, restrictions, reservations, permits, servitudes
and other similar encumbrances on real property and fixtures which do not
detract in any material respect from the value thereof or impair in any
material respect the use thereof by the Parent and its Subsidiaries in the
ordinary course of their operation;
(p) Liens consisting of any encumbrance or restriction on any
Capital Stock of a joint venture that is not a Subsidiary of any Borrower
(including any Subsidiary of any Borrower), to the extent (i) such Lien is
in favor of, or for the benefit of, such joint venture or any Person or
Persons owning more than 25% of the Capital Stock of such joint venture
and (ii) such Lien secures obligations to such joint venture of the
Subsidiary Borrower or the Subsidiary of a Subsidiary Borrower owning
Capital Stock of such joint venture;
(q) other Liens securing Indebtedness in an aggregate amount not to
exceed $1,000,000 at any time outstanding (it being acknowledged that any
such Liens shall not cover any property, revenues or assets constituting
Collateral (as such term is defined in the Pledge Agreement) or
Intellectual Property Collateral (as such term is defined in the Security
Agreement)).
SECTION 8.2.4. Financial Condition. No Borrower will permit:
(a) the Net Worth of the Parent to be at any time less than the sum,
at such time, of (i) $225,000,000, plus (ii) 100% of the net cash proceeds
received by the Parent in excess of $45,000,000 pursuant to the Equity
Offerings, plus (iii) 50% of the Net Income of the Parent for each Fiscal
Year, commencing with the 1998 Fiscal Year, as shall have been completed
on or prior to such time (in each case with no reduction for net losses),
plus (iv) 100% of Net Equity Proceeds;
(b) Adjusted EBITDA for the four consecutive Fiscal Quarters ending
on the last day of each Fiscal Quarter, commencing with the second Fiscal
Quarter of the 1998 Fiscal Year, to be less than the amount set forth
opposite such Fiscal Quarter below:
Fiscal Quarter Amount
-------------- ------
The second Fiscal Quarter of
the 1998 Fiscal Year $50,000,000
The third Fiscal Quarter of
the 1998 Fiscal Year $50,000,000
The fourth Fiscal Quarter of
the 1998 Fiscal Year $70,000,000
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Fiscal Quarter Amount
-------------- ------
The first, second and third
Fiscal Quarters of the 1999
Fiscal Year $70,000,000
The fourth Fiscal Quarter of
the 1999 Fiscal Year $75,000,000
The first, second and third
Fiscal Quarters of the 2000
Fiscal Year $75,000,000
The fourth Fiscal Quarter of
the 2000 Fiscal Year $85,000,000
The first, second and third
Fiscal Quarters of the 2001
Fiscal Year $85,000,000
The fourth Fiscal Quarter of
the 2001 Fiscal Year and
each Fiscal Quarter
thereafter $90,000,000
(c) the Leverage Ratio, at any time, to be greater than the ratio
set forth opposite the applicable period set forth below:
Fiscal Quarter Ratio
-------------- -----
From (and including) the
Closing Date to (but
excluding) the last day of
the fourth Fiscal Quarter of
the 1998 Fiscal Year 4.95:1.00
From (and including) the last
day of the fourth Fiscal
Quarter of the 1998 Fiscal
Year to (but excluding) the
last day of the fourth Fiscal
Quarter of the 1999 Fiscal
Year 4.50:1.00
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Fiscal Quarter Ratio
-------------- -----
From (and including) the last
day of the fourth Fiscal
Quarter of the 1999 Fiscal
Year to (but excluding) the
last day of the fourth Fiscal
Quarter of the 2000 Fiscal
Year 4.25:1.00
From (and including) the last
day of the fourth Fiscal
Quarter of the 2000 Fiscal
Year (but excluding) the
last day of the fourth Fiscal
Quarter of the 2001 Fiscal
Year 4.00:1.00
From (and including) the last
day of the fourth Fiscal
Quarter of the 2001 Fiscal
year (and at all times
thereafter) 3.50:1.00
(d) the Interest Coverage Ratio, as of the last day of each Fiscal
Quarter, commencing with the second Fiscal Quarter of the 1998 Fiscal
Year, to be less than the ratio set forth opposite such Fiscal Quarter
below:
Fiscal Quarter Ratio
-------------- -----
The second Fiscal Quarter of
the 1998 Fiscal Year 3.75:1.00
The third Fiscal Quarter of
the 1998 Fiscal Year 3.75:1.00
The fourth Fiscal Quarter of
the 1998 Fiscal Year
and each Fiscal Quarter
thereafter 4.00:1.00
(e) the Fixed Charge Coverage Ratio, as of the last day of
each Fiscal Quarter, commencing with the fourth Fiscal Quarter of
the 1998 Fiscal Year, to be less than the ratio set forth opposite
such Fiscal Quarter below:
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Fiscal Quarter Ratio
-------------- -----
The second Fiscal Quarter of
the 1998 Fiscal Year 1.00:1.00
The third Fiscal Quarter of
the 1998 Fiscal Year 1.00:1.00
The fourth Fiscal Quarter of
the 1998 Fiscal Year 1.00:1.00
The first Fiscal Quarter of the
1999 Fiscal Year and
each Fiscal Quarter
thereafter 1.10:1.00
SECTION 8.2.5. Investments. Each Borrower will not, and will not permit
any of its Subsidiaries to, make, incur, assume or suffer to exist any
Investment in any other Person, except:
(a) Investments existing on the Effective Date and identified in
Item 8.2.5(a) ("Ongoing Investments") of the Disclosure Schedule;
(b) Cash Equivalent Investments;
(c) Investments which are Permitted Business Acquisitions;
(d) without duplication, Investments permitted as Capital
Expenditures pursuant to Section 8.2.7;
(e) (i) Investments by a Subsidiary Borrower in the Parent (A) by
way of contributions to capital or the making of loans or advances, to the
extent the amount of such Investment would be permitted as a dividend
pursuant to clause (a) of Section 8.2.6 at the time of such Investment and
(B) by way of advances that are pursuant to the Parent's cash management
system for it and its Subsidiaries and (ii) Investments by a direct
Subsidiary of the Parent (other than a Subsidiary Borrower) in the Parent;
(f) Investments by a Subsidiary Borrower or a Subsidiary Guarantor
in Subsidiary Borrowers and Subsidiary Guarantors that are Wholly Owned
Subsidiaries of a Subsidiary Borrower or, to the extent permitted by
clause (r) of Section 8.2.2, in a Subsidiary Guarantor that is neither a
Subsidiary Borrower nor a Subsidiary of a Subsidiary Borrower;
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(g) Investments by a Borrower or a Subsidiary Guarantor in
Subsidiaries of the Parent that are not permitted by the preceding clause
(f) or succeeding clause (h), by way of contributions to capital, the
making of loans or advances or the incurrence of Contingent Liabilities,
to the extent the aggregate amount of such Investments that are made in
any Fiscal Year (commencing with the 1998 Fiscal Year) does not exceed
$5,000,000 and the aggregate amount of such Investments at any time
outstanding does not exceed $15,000,000 (exclusive of such Investment
existing as of the date hereof and identified in Item 8.2.5(a) ("Ongoing
Investments") of the Disclosure Schedule);
(h) Investments by the Parent in a Subsidiary Borrower or any
Subsidiary Guarantor;
(i) Investments by a Subsidiary of the Parent that is neither a
Subsidiary Borrower (nor a Subsidiary Guarantor in the Parent or any
Subsidiary of the Parent;
(j) Investments evidenced by the Demand Capitalization Notes;
(k) Investments in franchisees of Dollar or Thrifty (i) by way of
guaranties of obligations of such franchisees in respect of the leasing by
such franchisees of real or personal property under arrangements which
would not, under GAAP, be classified as capitalized leases, to the extent
such obligations (other than any portion of rental payments that are
determined on the basis of revenues generated by the property subject to
such leases or by the operations conducted on the property subject to such
leases) do not exceed $1,000,000 during any Fiscal Year, and (ii) by way
of the making of loans or advances to such franchisees or otherwise
(including by obtaining a letter of credit for the benefit of a
beneficiary selected by any such franchisee and with respect to which such
franchisee is the account party and the Parent or any of its Subsidiaries
is obligated to reimburse the issuer thereof for drawings thereunder), to
the extent such Investments (which, in the case of any such letter of
credit, would be accounted for at the Stated Amount thereof) do not exceed
in the aggregate at any time $10,000,000; provided, however, that the
aggregate amount of such Investments that were funded in cash and that are
outstanding at any time does not exceed $3,000,000;
(l) other Investments in an aggregate amount at any time not to
exceed $3,500,000;
provided, however, that
(i) any Investment which when made complies with the requirements of
the definition of the term "Cash Equivalent Investment" may continue to be
held notwithstanding that such Investment if made thereafter would not
comply with such requirements; and
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(ii) no Investment otherwise permitted by clause (c), (e), (g), (k)
or (l) shall be permitted to be made if, immediately before or after
giving effect thereto, any Default shall have occurred and be continuing.
SECTION 8.2.6. Restricted Payments, etc. On and at all times after the
Effective Date:
(a) neither Subsidiary Borrower will declare, pay or make any
Distribution with respect to any shares of its Capital Stock (now or
hereafter outstanding) or on any warrants, options or other rights with
respect to any such shares of Capital Stock (now or hereafter outstanding)
or apply, or permit any of its Subsidiaries to apply, any of its funds,
property or assets to the purchase, redemption, sinking fund or other
retirement of, or agree or permit any of its Subsidiaries to purchase or
redeem, any shares of any class of Capital Stock (now or hereafter
outstanding) of such Subsidiary Borrower, or warrants, options or other
rights with respect to any such shares of Capital Stock (now or hereafter
outstanding) of such Subsidiary Borrower; provided, however, that the
Subsidiary Borrowers may (i) make Distributions to the Parent to the
extent that it is necessary to permit the Parent to pay taxes based on
income and franchise taxes and other similar licensure expenses and other
actual and reasonable general administrative costs and expenses
attributable to the operations of the Parent (including indemnity
obligations payable to directors and officers of the Parent who have acted
in good faith), (ii) make Distributions to the Parent to the extent it is
necessary to permit the Parent to satisfy a payment demand in respect of a
Demand Capitalization Note and (iii) make a Distribution to the Parent to
the extent necessary to make a Distribution declared by the Parent (but in
no event exceeding the amount of such Distribution permitted to be made by
the Parent pursuant to the succeeding clause (b)), so long as,
immediately before and after giving effect thereto, no Default shall have
occurred and be continuing and the Distribution by the Parent is made at
the time the Subsidiary Borrowers make their Distribution;
(b) the Parent will not declare, pay or make any Distribution with
respect to any shares of its Capital Stock (now or hereafter outstanding)
or on any warrants, options or other rights with respect to any such
shares of Capital Stock (now or hereafter outstanding) or apply, or permit
any of its Subsidiaries to apply, any of its funds, property or assets to
the purchase, redemption, sinking fund or other retirement of, or agree or
permit any of its Subsidiaries to purchase or redeem, any shares of any
class of Capital Stock (now or hereafter outstanding) of the Parent, or
warrants, options or other rights with respect to any such shares of
Capital Stock (now or hereafter outstanding) of the Parent; provided,
however, that the Parent may declare, pay and make cash Distributions to
its stockholders in any Fiscal Year, so long as
(i) both before and after giving effect to any such payment,
no Default shall have occurred and be continuing,
(ii) the Parent shall have delivered to the Administrative
Agent (A) financial statements prepared on a pro forma basis to give
effect to such
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Distribution for the period of four consecutive Fiscal Quarters
ending with the Fiscal Quarter then last ended for which financial
statements and the Compliance Certificate relating thereto have been
delivered to the Administrative Agent pursuant to Sections 8.1.1 and
(B) a certificate of the Parent executed by its chief financial
Authorized Officer demonstrating that the financial results
reflected in such financial statements would comply with the
requirements of Section 8.2.4 for the Fiscal Quarter in which such
Distribution is to be made, and
(iii) the aggregate amount of such Distribution to be made by
the Parent pursuant to this clause (b), when added to the aggregate
amount of all such Distributions during the Fiscal Year in which
such Distribution would be made, does not exceed the amount set
forth below opposite such Fiscal Year
Fiscal Year Amount
----------- ------
1998 Fiscal Year $1,000,000
1999 Fiscal Year and each The lesser of (i) 25% of
Fiscal Year thereafter Excess Cash Flow for
the 1998 Fiscal Year
and (ii) $2,000,000
2000 Fiscal Year The lesser of (i) 25% of
Excess Cash Flow for
the 1999 Fiscal Year
and (ii) $4,000,000
2001 Fiscal Year The lesser of (i) 25% of
Excess Cash Flow for
the 2000 Fiscal Year
and (ii) $6,000,000
2002 Fiscal Year The lesser of (i) 25% of
Excess Cash Flow for
the 2001 Fiscal Year
and (ii) $8,000,000
(c) neither Subsidiary Borrower will permit any of its Subsidiaries
to declare, pay or make any Distribution with respect to any shares of
Capital Stock (now or hereafter outstanding) of any such Subsidiary (other
than (x) with respect to any such shares held by such Subsidiary Borrower
or any of its Wholly Owned Subsidiaries and (y) with respect to such
shares which are shares of common stock, so long as such Distribution is
made on a pro rata basis, consistent with the ownership interests in such
shares of common stock, to the owners of such shares of common stock) or
apply any of its funds, property or assets to the purchase, redemption,
sinking fund or other retirement of, or agree to purchase or redeem, any
shares of any class of Capital Stock (now or hereafter outstanding) of any
such Subsidiary, or warrants, options or other rights with respect to any
such shares of Capital Stock (now or hereafter outstanding) of any such
Subsidiary (other than any such shares, warrants, options or other rights
held by such Subsidiary Borrower or any of its Wholly Owned Subsidiaries);
(d) each Borrower will not, and will not permit any of its
Subsidiaries to
(i) make any payment or prepayment of principal of any
Subordinated Debt (including any reimbursement obligation in respect
of a letter of credit) or make any payment of interest on any
Subordinated Debt on any day other than the stated, scheduled date
for such payment or prepayment set forth in the documents and
instruments memorializing such Subordinated Debt, or which would
violate the subordination provisions applicable such Subordinated
Debt; or
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(ii) redeem, purchase or defease, any Subordinated Debt; and
(e) each Borrower will not, and will not permit any of its
Subsidiaries to, make any deposit for any of the foregoing purposes.
SECTION 8.2.7. Capital Expenditures, etc. Each Borrower will not, and will
not permit any of its Subsidiaries to, make or commit to make Capital
Expenditures in any Fiscal Year, except (a) Capital Expenditures for the
acquisition of Vehicles and (b) other Capital Expenditures which do not
aggregate in excess of $35,000,000 for such Fiscal Year.
SECTION 8.2.8. Take or Pay Contracts. Each Borrower will not, and will not
permit any of its Subsidiaries to, enter into or be a party to any arrangement
for the purchase of materials, supplies, other property or services if such
arrangement by its express terms requires that payment be made by such Borrower
or such Subsidiary regardless of whether such materials, supplies, other
property or services are delivered or furnished to it.
SECTION 8.2.9. Consolidation, Merger, etc. Each Borrower will not, and
will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate
with, or merge into or with, any other Person, or otherwise enter into or
consummate any Business Acquisition not constituting an Investment, except
(a) any Subsidiary of the Parent may liquidate or dissolve
voluntarily into, and may merge with and into, the Parent or any Wholly
Owned Subsidiary of the Parent, and the assets or stock of any Subsidiary
of the Parent may be purchased or otherwise acquired by the Parent or any
Wholly Owned Subsidiary of the Parent; and
(b) so long as no Default has occurred and is continuing or would
occur after giving effect thereto, a Subsidiary Borrower or any of its
Subsidiaries may enter into or consummate any Permitted Business
Acquisition.
SECTION 8.2.10. Asset Dispositions, etc. Each Borrower will not, and will
not permit any of its Subsidiaries to, sell, issue, transfer, lease, contribute
or otherwise convey, or grant options, warrants or other rights with respect to,
any property, business or assets of the Parent, any Subsidiary Borrower or any
of their respective Subsidiaries (including accounts receivable and Capital
Stock) to any Person, unless
(a) any such sale, transfer, lease, contribution or conveyance is in
the ordinary course of its business (including sales of used Vehicles and
the customary franchising activities of the Borrowers) or is permitted by
Section 8.2.9;
(b) any such issuance is an issuance of Capital Stock of the Parent
or of options or warrants in respect of such Capital Stock;
(c) (i) (A) any such sale, transfer or conveyance is for not less
than the fair market value of the assets so sold, transferred or conveyed
(as determined in good faith
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by the Board of Directors of the Parent or a committee thereof) and (B) in
the event the fair market value of such assets exceeds $2,500,000, the
determination of such Board or committee is evidenced by a certified
written resolution of such Board or committee) and, except in the case of
Non-Counted Assets, the consideration received by the relevant Subsidiary
Borrower or the relevant Subsidiary of such Subsidiary Borrower in respect
thereof consists of at least 80% cash or Cash Equivalent Investments, (ii)
any such consideration not consisting of cash or Cash Equivalent
Investments (including consideration received in the sale, transfer or
conveyance of Non-Counted Assets) shall be an Investment permitted by
Section 8.2.5 and (iii) the fair market value of such assets (other than
Non-Counted Assets), together with the aggregate fair market value of all
other assets (other than Non-Counted Assets) sold, transferred or conveyed
pursuant to this clause (c) in the Fiscal Year such assets are sold,
transferred or conveyed, does not exceed $5,000,000; provided, however,
that no such sale, transfer or conveyance shall be permitted to be made if
immediately before or after giving effect thereto, any Default shall have
occurred and be continuing; or
(d) without limiting the effect in any manner of the provisions of
Article IX, any such sale, transfer or conveyance of Vehicles is as a
result of an Amortization Event (as defined in the Base Indenture).
For purposes hereof, "Non-Counted Assets" means assets sold, transferred or
conveyed as part of the sale of the operations conducted on the sites set forth
on Schedule V hereto or as part of the sale of the operations conducted at a
site previously operated by a franchisee of Dollar or Thrifty or any of their
respective Subsidiaries and acquired by any of them pursuant to a Permitted
Business Acquisition after the date hereof.
SECTION 8.2.11. Modification of Certain Agreements. Each Borrower will
not, and will not permit any of its Subsidiaries to, consent to any amendment,
supplement or other modification of (a) any of the terms or provisions contained
in, or applicable to, the Chrysler Credit Support Documents, other than any
amendment, supplement or other modification which would not have an adverse
effect on the interests of the Lenders hereunder and under the other Loan
Documents (unless otherwise consented to by the Required Lenders) or the
business, property, operations, assets, liabilities, condition (financial or
otherwise) or prospects of the Parent and its Subsidiaries taken as a whole
(unless otherwise consented to by the Required Lenders) or (b) any of the terms
or provisions contained in, or applicable to, the Chrysler-Dollar Supply
Agreement, the Chrysler-Thrifty Supply Agreement, the Tax Sharing Agreement, the
MTN Program Documents and, upon the execution and delivery thereof, the CP
Program Documents, or any document or instrument evidencing or applicable to any
Subordinated Debt, other than any amendment, supplement or other modification
which would not have an adverse effect on the Lenders (unless otherwise
consented to by the Administrative Agent), a material adverse effect on the
interests of the Lenders hereunder and under the other Loan Documents (unless
otherwise consented to by the Required Lenders) or a material adverse effect on
the business, property, operations, assets, liabilities, condition (financial or
otherwise) or prospects of the Parent and its Subsidiaries taken as whole
(unless otherwise consented to by the Required Lenders).
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SECTION 8.2.12. Transactions with Affiliates. Each Borrower will not, and
will not permit any of its Subsidiaries to, enter into, or cause, suffer or
permit to exist any arrangement or contract with any of its other Affiliates
unless such arrangement or contract is fair and equitable to such Borrower or
such Subsidiary and is an arrangement or contract of the kind which would be
entered into by a prudent Person in the position of such Borrower or such
Subsidiary with a Person which is not one of its Affiliates; provided, however,
that the foregoing restriction shall not apply to (i) any agreement or
arrangement between or among a Borrower and a Wholly Owned Subsidiary of a
Borrower that is not otherwise prohibited hereunder and (ii) any agreement or
arrangement that provides for the sale of Vehicles from RCFC to a Subsidiary
Borrower or any Subsidiary of a Subsidiary Borrower at the higher of the fair
market value thereof and the net book value thereof, to the extent such
agreement or arrangement is entered into in connection with a structured
financing or securitization program.
SECTION 8.2.13. Negative Pledges, Restrictive Agreements, etc. Each
Borrower will not, and will not permit any of its Subsidiaries to, enter into
any agreement (excluding this Agreement and any other Loan Document) prohibiting
(a) the creation or assumption of any Lien upon its properties,
revenues or assets, whether now owned or hereafter acquired; or
(b) the ability of any Subsidiary of any Borrower to make any
payments, directly or indirectly, to such Borrower by way of dividends,
advances, repayments of loans or advances, reimbursements of management
and other intercompany charges, expenses and accruals or other returns on
investments, or any other agreement or arrangement which restricts the
ability of any such Subsidiary to make any payment, directly or
indirectly, to such Borrower;
except
(i) any indenture or agreement governing Indebtedness permitted by
clause (c) of Section 8.2.2 as in effect on the Closing Date and any
refinancings thereof permitted by clause (w) of Section 8.2.2;
(ii) any agreement governing any Indebtedness permitted by clause
(f) (g), (j), (l) or (t) of Section 8.2.2 as to the assets financed with
the proceeds of such Indebtedness;
(iii) as to any SPC, usual and customary restrictions pursuant to
the Organic Documents of such SPC or pursuant to the MTN Program Documents
or CP Program Documents; or
(iv) usual and customary restrictions pursuant to any agreement
relating to any Indebtedness of any Foreign Subsidiary permitted pursuant
to clause (i) of Section 8.2.2, such as maintenance of net worth or other
balance sheet conditions, provided that such restrictions are agreed to in
good faith and, where applicable, based upon reasonable assumptions.
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SECTION 8.2.14. Ability to Amend; Restrictive Agreements. Each Borrower
will not, and will not permit any of its Subsidiaries to, enter into, or accept
obligations under, any agreement (a) prohibiting (including subjecting to any
condition) the ability of such Borrower or any of its Subsidiaries to amend,
supplement or otherwise modify this Agreement or any other Loan Document or (b)
containing any provision that would contravene any provision of this Agreement
or any other Loan Document.
SECTION 8.2.15. Accounting Changes. The Parent will not, and will not
permit any of its Subsidiaries to, change its Fiscal Year from twelve
consecutive calendar months ending on December 31, except with the consent of
the Administrative Agent (which consent shall not be unreasonably withheld, but
which consent may be conditioned upon the effectuation of such amendments and
other modifications to this Agreement, the other Loan Documents and the Chrysler
Credit Support Documents as the Administrative Agent may reasonably request.
SECTION 8.2.16. Activities of the Parent. Without limiting the effect of
any provision contained in this Article VIII and notwithstanding any implication
to the contrary hereunder, the Parent will not engage in any business activity
other than (i) its ownership of all the shares of Capital Stock of the
Subsidiary Borrowers, RCFC, Dollar Thrifty Funding and any other Person that may
become a direct Subsidiary of the Parent in accordance with the provisions
hereof to the extent such Person does not conduct a business activity which is
one of the principal business activities conducted by Dollar or Thrifty on the
date hereof, (ii) its compliance with the obligations applicable to it under the
Loan Documents, the Chrysler Credit Support Documents, the MTN Program Documents
and the CP Program Documents and (iii) the execution and delivery of guaranties
of (A) obligations of Subsidiary Borrowers or Subsidiary Guarantors in respect
of the leasing by such Obligors of real or personal property under arrangements
which would not, under GAAP, be classified as capitalized leases and (B) other
obligations of such Obligors in an aggregate amount not exceeding $20,000,000 at
any time. Without limiting the generality of the immediately preceding sentence,
the Parent will not (a) create, incur, assume or suffer to exist any
Indebtedness (other than Indebtedness under this Agreement or any other Loan
Document, any Chrysler Credit Support Document, any such guaranty any Demand
Capitalization Note, any intercompany Indebtedness pursuant to clause (o) of
Section 8.2.2 or any Subordinated Debt pursuant to clause (u) of Section 8.2.2),
(b) create, assume, or suffer to exist any Lien upon, or grant any options or
other rights with respect to, any of its revenues, property or other assets,
whether now owned or hereafter acquired (other than pursuant to the Loan
Documents, the Chrysler Credit Support Documents or any intercompany
Indebtedness described in clause (i) of Section 8.2.3), (c) wind-up, liquidate
or dissolve itself (or suffer to exist any of the foregoing), or consolidate or
amalgamate with or merge into or with any other Person, or convey, sell,
transfer, lease or otherwise dispose of all or any part of its assets, in one
transaction or a series of transactions, to any Person or Persons, (d) create,
incur, assume or suffer to exist any Investment in any Person other than (i) as
provided in clause (a), (b), (g) or (j) of Section 8.2.5 and (ii) in respect of
any additional equity Investments in a Subsidiary Borrower or any Subsidiary
Guarantor or (e) permit to be taken any action that would result in a Change in
Control. The Parent agrees not to commence or cause the commencement of any of
the actions described in clause (b), (c) or (d) of Section 9.1.9 of this
Agreement with respect to any of its Subsidiaries.
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ARTICLE IX
EVENTS OF DEFAULT
SECTION 9.1. Listing of Events of Default. Each of the following events or
occurrences described in this Section 9.1 shall constitute an "Event of
Default".
SECTION 9.1.1. Non-Payment of Obligations. Any Borrower or any other
Obligor shall (a) default in the payment or prepayment when due of any principal
of any Loan, (b) default in the payment when due of any Reimbursement
Obligation, or (c) default (and such default shall continue unremedied for a
period of three Business Days) in the payment when due of any interest on any
Loan, any fee or of any other Obligation.
SECTION 9.1.2. Breach of Warranty. Any representation or warranty of any
Borrower or any other Obligor made or deemed to be made hereunder or in any
other Loan Document executed by it or any other writing or certificate furnished
by or on behalf of any Borrower or any other Obligor to either Agent or any
Lender for the purposes of or in connection with this Agreement or any such
other Loan Document (including any certificates delivered pursuant to Article
VI) is or shall be incorrect when made in any material respect.
SECTION 9.1.3. Non-Performance of Certain Covenants and Obligations. (a)
Any Borrower shall default in the due performance and observance of any of its
obligations under Section 8.2, clause (d), (e) or (g) of Section 8.1.1, or
Section 8.1.2, 8.1.8 or 8.1.9.
(b) Any Borrower shall default in the due performance and observance of
any of its obligations under clause (a), (b), (c), (h) or (i) of Section 8.1.1,
and such default shall continue unremedied for a period of ten days.
SECTION 9.1.4. Non-Performance of Other Covenants and Obligations. Any
Obligor shall default in the due performance and observance of any other
agreement contained herein or in any other Loan Document executed by it, and
such default shall continue unremedied for a period of 30 days after notice
thereof shall have been given to the Borrowers by the Administrative Agent or
any Lender.
SECTION 9.1.5. Default on Other Indebtedness. (a) A default shall occur in
the payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any Indebtedness (other than Indebtedness
described in Section 9.1.1) of the Parent or any of its Subsidiaries having a
principal amount, individually or in the aggregate, in excess of $2,500,000, or
a default shall occur in the performance or observance of any obligation or
condition with respect to such Indebtedness if the effect of such default is to
accelerate the maturity of any such Indebtedness or such default shall continue
unremedied for any applicable period of time sufficient to permit the holder or
holders of such Indebtedness, or any trustee or agent for such holders, to cause
such Indebtedness to become due and payable prior to its expressed maturity
(including pursuant to any right of such holder, holders, trustee or agent to
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require the redemption, repurchase or other acquisition of such Indebtedness
prior to its expressed maturity).
(b) An Amortization Event (as defined in the Base Indenture) shall have
occurred or, following the closing of the CP Program, RCFC shall become unable
to finance the purchase of Vehicles pursuant to the CP Program or any similar
event shall have occurred with respect to RCFC or any other SPC that would
result in such Person being unable to finance the purchase of Vehicles and the
Borrowers shall have failed to replace the MTN Program or CP Program, as the
case may be, with an alternative source of financing having terms acceptable to
the Required Lenders within 30 days of such occurrence.
SECTION 9.1.6. Judgments. Any judgment or order for the payment of money
in excess of $2,500,000 (to the extent not covered by insurance provided by a
carrier that has not disputed coverage) shall be rendered against the Parent or
any of its Subsidiaries and either
(a) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order; or
(b) there shall be any period of 20 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect.
SECTION 9.1.7. Pension Plans. Any of the following events shall occur with
respect to any Pension Plan
(a) the institution of any steps by any Borrower, any member of its
Controlled Group or any other Person to terminate a Pension Plan if, as a
result of such termination, any Borrower or any such member could be
required to make a contribution to such Pension Plan, or could reasonably
expect to incur a liability or obligation to such Pension Plan, in excess
of $1,000,000; or
(b) a contribution failure occurs with respect to any Pension Plan
sufficient to give rise to a Lien under Section 302(f) of ERISA.
SECTION 9.1.8. Change in Control. Any Change in Control shall occur.
SECTION 9.1.9. Bankruptcy, Insolvency, etc. The Parent or any of its
Subsidiaries or any other Obligor shall
(a) become insolvent or generally fail to pay, or admit in writing
its inability or unwillingness to pay, debts as they become due;
(b) apply for, consent to, or acquiesce in, the appointment of a
trustee, receiver, sequestrator or other custodian for the Parent or any
of its Subsidiaries or any other
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Obligor or any property of any thereof, or make a general assignment for
the benefit of creditors;
(c) in the absence of such application, consent or acquiescence,
permit or suffer to exist the appointment of a trustee, receiver,
sequestrator or other custodian for the Parent or any of its Subsidiaries
or any other Obligor or for a substantial part of the property of any
thereof, and such trustee, receiver, sequestrator or other custodian shall
not be discharged within 60 days, provided that each of its Subsidiaries
and each other Obligor hereby expressly authorizes the Administrative
Agent and each Lender to appear in any court conducting any relevant
proceeding during such 60-day period to preserve, protect and defend
their rights under the Loan Documents;
(d) permit or suffer to exist the commencement of any bankruptcy,
reorganization, debt arrangement or other case or proceeding under any
bankruptcy or insolvency law, or any dissolution, winding up or
liquidation proceeding, in respect of the Parent or any of its
Subsidiaries or any other Obligor, and, if any such case or proceeding is
not commenced by the Parent or such Subsidiary or such other Obligor, such
case or proceeding shall be consented to or acquiesced in by the Parent or
such Subsidiary or such other Obligor or shall result in the entry of an
order for relief or shall remain for 60 days undismissed, provided that
the Parent, such Subsidiary and each other Obligor hereby expressly
authorizes each Agent and each Lender to appear in any court conducting
any such case or proceeding during such 60-day period to preserve, protect
and defend their rights under the Loan Documents; or
(e) take any action authorizing, or in furtherance of, any of the
foregoing.
SECTION 9.1.10. Impairment of Security, etc. Any Loan Document, or any
Lien granted thereunder, shall (except in accordance with its terms), in whole
or in part, terminate, cease to be effective or cease to be the legally valid,
binding and enforceable obligation of any Obligor party thereto; any Borrower or
any other Obligor shall, directly or indirectly, contest in any manner such
effectiveness, validity, binding nature or enforceability; or any Lien securing
any Obligation shall, in whole or in part, cease to be a perfected first
priority Lien, subject only to those exceptions expressly permitted by such Loan
Document.
SECTION 9.2. Action if Bankruptcy. If any Event of Default described in
clauses (a) through (d) of Section 9.1.9 shall occur, the Commitments (if not
theretofore terminated) shall automatically terminate and the outstanding
principal amount of all outstanding Loans and all other Obligations shall
automatically be and become immediately due and payable and each Borrower shall
immediately comply with its obligations under Section 4.7, in each case, without
notice or demand.
SECTION 9.3. Action if Other Event of Default. If any Event of Default
(other than any Event of Default described in clauses (a) through (d) of Section
9.1.9) shall occur for any reason, whether voluntary or involuntary, and be
continuing, the Administrative Agent, upon the direction of the Required
Lenders, shall by notice to the Borrowers declare all or any portion of
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the outstanding principal amount of the Loans and other Obligations to be due
and payable and/or the Commitments (if not theretofore terminated) to be
terminated and/or demand immediate compliance of each Borrower with its
obligations under Section 4.7, whereupon the full unpaid amount of such Loans
and other Obligations which shall be so declared due and payable shall be and
become immediately due and payable, without further notice, demand or
presentment, the Commitments shall terminate and/or, as the case may be, each
Borrower shall be obligated to comply immediately with its obligations under
Section 4.7.
ARTICLE X
BORROWERS GUARANTY
SECTION 10.1. Guaranty. Each Borrower hereby absolutely, unconditionally
and irrevocably
(a) guarantees (in such capacity, a "Borrower Guarantor") the full
and punctual payment when due, whether at stated maturity, by required
prepayment, declaration, acceleration, demand or otherwise, of all
Obligations of each other Borrower (in such capacity, a "Borrower Debtor")
now or hereafter existing, whether for principal, interest, fees, expenses
or otherwise (including all such amounts which would become due but for
the operation of the automatic stay under Section 362(a) of the United
States Bankruptcy Code, 11 U.S.C. ss.362(a), and the operation of Sections
502(b) and 506(b) of the United States Bankruptcy Code, 11 U.S.C.
ss.502(b) and ss.506(b)), and
(b) indemnifies and holds harmless each Secured Party and each
holder of a Note for any and all costs and expenses (including reasonable
attorneys' fees and expenses) incurred by such Secured Party or such
holder, as the case may be, in enforcing any rights under the guaranty set
forth in this Article X;
provided, however, that in the case of the guaranty made by each of Dollar and
Thrifty, Dollar or Thrifty, as the case may be, shall be liable under the
guaranty set forth in this Article X for the maximum amount of such liability
that can be hereby incurred without rendering the guaranty set forth in this
Article X, as it relates to Dollar or Thrifty, as the case may be, voidable
under applicable law relating to fraudulent conveyance or fraudulent transfer,
and not for any greater amount. The guaranty set forth in this Article X
constitutes a guaranty of payment when due and not of collection, and each
Borrower Guarantor specifically agrees that it shall not be necessary or
required that any Secured Party or any holder of any Note exercise any right,
assert any claim or demand or enforce any remedy whatsoever against any Borrower
Debtor or any other Obligor (or any other Person) before or as a condition to
the obligations of such Borrower Guarantor under the guaranty set forth in this
Article X.
SECTION 10.2. Acceleration of Borrowers Guaranty. Each Borrower Guarantor
agrees that, if an Event of Default of the nature set forth in Section 9.1.9
shall occur at a time when any of the Obligations of a Borrower Debtor may not
then be due and payable, such Borrower
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Guarantor agrees that it will pay to the Administrative Agent for the account of
the Secured Parties forthwith the full amount which would be payable under the
guaranty set forth in this Article X by such Borrower Guarantor if all such
Obligations were then due and payable.
SECTION 10.3. Guaranty Absolute, etc. The guaranty set forth in this
Article X shall in all respects be a continuing, absolute, unconditional and
irrevocable guaranty of payment, and shall remain in full force and effect until
all Obligations of each Borrower and each other Obligor have been paid in full
in cash, all obligations of each Borrower Guarantor under the guaranty set forth
in this Article X shall have been paid in full in cash, all Letters of Credit
have been terminated or expired and all Commitments shall have terminated. Each
Borrower Guarantor guarantees that the Obligations of each Borrower Debtor will
be paid strictly in accordance with the terms of this Agreement and each other
Loan Document under which they arise, regardless of any law, regulation or order
now or hereafter in effect in any jurisdiction affecting any of such terms or
the rights of any Secured Party or any holder of any Note with respect thereto.
The liability of each Borrower Guarantor under the guaranty set forth in this
Article X shall be absolute, unconditional and irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of this
Agreement, any Note or any other Loan Document;
(b) the failure of any Secured Party or any holder of any Note
(i) to assert any claim or demand or to enforce any right or
remedy against any Borrower Debtor, any other Obligor or any other
Person (including any other guarantor (including such Borrower
Guarantor)) under the provisions of this Agreement, any Note, any
other Loan Document or otherwise, or
(ii) to exercise any right or remedy against any other
guarantor (including such Borrower Guarantor) of, or collateral
securing, any Obligations of any Borrower Debtor;
(c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations of any Borrower Debtor, or
any other extension, compromise or renewal of any Obligation of the any
Borrower Debtor;
(d) any reduction, limitation, impairment or termination of any
Obligations of any Borrower Debtor for any reason, including any claim of
waiver, release, surrender, alteration or compromise, and shall not be
subject to (and such Borrower Guarantor hereby waives any right to or
claim of) any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality, nongenuineness,
irregularity, compromise, unenforceability of, or any other event or
occurrence affecting, any Obligations of any Borrower Debtor or otherwise;
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(e) any amendment to, rescission, waiver, or other modification of,
or any consent to departure from, any of the terms of this Agreement, any
Note or any other Loan Document;
(f) any addition, exchange, release, surrender or non-perfection of
any collateral, or any amendment to or waiver or release or addition of,
or consent to departure from, any other guaranty, held by any Secured
Party or any holder of any Note securing any of the Obligations of any
Borrower Debtor; or
(g) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, any Borrower
Debtor, any surety or any guarantor.
SECTION 10.4. Reinstatement, etc. Each Borrower Guarantor agrees that the
guaranty set forth in this Article X shall continue to be effective or be
reinstated, as the case may be, if at any time any payment (in whole or in part)
of any of the Obligations is rescinded or must otherwise be restored by any
Secured Party or any holder of any Note, upon the insolvency, bankruptcy or
reorganization of any Borrower Debtor or otherwise, all as though such payment
had not been made.
SECTION 10.5. Waiver, etc. Each Borrower Guarantor hereby waives
promptness, diligence, notice of acceptance and any other notice with respect to
any of the Obligations of any Borrower Debtor and the guaranty set forth in this
Article X and any requirement that the Administrative Agent, any other Secured
Party or any holder of any Note protect, secure, perfect or insure any security
interest or Lien, or any property subject thereto, or exhaust any right or take
any action against any Borrower Debtor, any other Obligor or any other Person
(including any other guarantor) or entity or any collateral securing the
Obligations of any Borrower Debtor.
SECTION 10.6. Postponement of Subrogation, etc. Each Borrower Guarantor
agrees that it will not exercise any rights which it may acquire by way of
rights of subrogation under the guaranty set forth in this Article X, by any
payment made under the guaranty set forth in this Article X or otherwise, until
the prior payment in full in cash of all Obligations of each Borrower Debtor and
each other Obligor, the termination or expiration of all Letters of Credit and
the termination of all Commitments. Any amount paid to any Borrower Guarantor on
account of any such subrogation rights prior to the payment in full in cash of
all Obligations of each Borrower Debtor and each other Obligor shall be held in
trust for the benefit of the Secured Parties and each holder of a Note and shall
immediately be paid to the Administrative Agent for the benefit of the Secured
Parties and each holder of a Note and credited and applied against the
Obligations of each Borrower Debtor and each other Obligor, whether matured or
unmatured, in accordance with the terms of this Agreement; provided, however,
that if
(a) such Borrower Guarantor has made payment to the Secured Parties
and each holder of a Note of all or any part of the Obligations of each
Borrower Debtor, and
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(b) all Obligations of each Borrower and each other Obligor have
been paid in full in cash, all Letters of Credit have been terminated or
expired and all Commitments have been permanently terminated,
each Secured Party and each holder of a Note agrees that, at such Borrower
Guarantor's request, the Administrative Agent, on behalf of the Secured Parties
and the holders of the Notes, will execute and deliver to the Parent appropriate
documents (without recourse and without representation or warranty) necessary to
evidence the transfer by subrogation to such Borrower Guarantor of an interest
in the Obligations of the applicable Borrower Debtor resulting from such payment
by such Borrower Guarantor. In furtherance of the foregoing, for so long as any
Obligations or Commitments remain outstanding, such Borrower Guarantor shall
refrain from taking any action or commencing any proceeding against such Borrow
Debtor (or its successors or assigns, whether in connection with a bankruptcy
proceeding or otherwise) to recover any amounts in the respect of payments made
under the guaranty set forth in this Article X to any Secured Party or any
holder of a Note.
SECTION 10.7. Right of Contribution. Each Borrower Guarantor hereby agrees
that to the extent that a Borrower Guarantor shall have paid more than its
proportionate share of any payment made hereunder, such Borrower Guarantor shall
be entitled to seek and receive contribution from and against any other Borrower
Guarantor hereunder who has not paid its proportionate share of such payment.
Each Borrower Guarantor's right of contribution shall be subject to the terms
and conditions of Section 10.6. The provisions of this Section 10.7 shall in no
respect limit the obligations and liabilities of any Borrower Guarantor to the
Administrative Agent and each other Secured Party, and each Borrower Guarantor
shall remain liable to the Administrative Agent and each other Secured Party for
the full amount guaranteed by such Borrower Guarantor hereunder.
SECTION 10.8. Successors, Transferees and Assigns; Transfers of Notes,
etc. The guaranty set forth in this Article X shall:
(a) be binding upon each Borrower Guarantor, and its successors,
transferees and assigns; and
(b) inure to the benefit of and be enforceable by the Administrative
Agent and each other Secured Party.
Without limiting the generality of the foregoing clause (b), any Lender may
assign or otherwise transfer (in whole or in part) any Note or Credit Extension
held by it to any other Person or entity, and such other Person or entity shall
thereupon become vested with all rights and benefits in respect thereof granted
to such Lender under any Loan Document (including the guaranty set forth in this
Article X) or otherwise, subject, however, to any contrary provisions in such
assignment or transfer, and to the provisions of Section 12.11 and Article XI.
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ARTICLE XI
THE AGENTS
SECTION 11.1. Actions. Each Lender hereby appoints Credit Suisse First
Boston as its Administrative Agent under and for purposes of this Agreement, the
Notes and each other Loan Document. Each Lender authorizes the Administrative
Agent to act on behalf of such Lender under this Agreement, the Notes and each
other Loan Document and, in the absence of other written instructions from the
Required Lenders received from time to time by the Administrative Agent (with
respect to which the Administrative Agent agrees that it will comply, except as
otherwise provided in this Section or as otherwise advised by counsel in order
to avoid contravention of applicable law), to exercise such powers hereunder and
thereunder as are specifically delegated to or required of the Administrative
Agent by the terms hereof and thereof, together with such powers as may be
reasonably incidental thereto. Each Lender hereby indemnifies (which indemnity
shall survive any termination of this Agreement) each Agent pro rata according
to such Lender's Percentage, from and against any and all liabilities,
obligations, losses, damages, claims, costs or expenses of any kind or nature
whatsoever which may at any time be imposed on, incurred by, or asserted
against, such Agent in any way relating to or arising out of this Agreement, the
Notes and any other Loan Document, including reasonable attorneys' fees, and as
to which such Agent is not reimbursed by the Borrowers; provided, however, that
no Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, claims, costs or expenses which are determined by
a court of competent jurisdiction in a final proceeding to have resulted solely
from such Agent's gross negligence or willful misconduct. No Agent shall be
required to take any action hereunder, under the Notes or under any other Loan
Document, or to prosecute or defend any suit in respect of this Agreement, the
Notes or any other Loan Document, unless such Agent is indemnified hereunder to
its satisfaction. If any indemnity in favor of either Agent shall be or become,
in such Agent's determination, inadequate, such Agent may call for additional
indemnification from the Lenders and cease to do the acts indemnified against
hereunder until such additional indemnity is given.
SECTION 11.2. Funding Reliance, etc. Unless the Administrative Agent shall
have been notified by telephone, confirmed in writing, by any Lender by 12:00
noon (New York City, New York time) on the Business Day of a Borrowing, with
respect to ABR Loans, and by 5:00 p.m. (New York City, New York time) on the
Business Day prior to a Borrowing, with respect to Eurodollar Loans, that such
Lender will not make available the amount which would constitute its Percentage
of such Borrowing on the date specified therefor, the Administrative Agent may
assume that such Lender has made such amount available to the Administrative
Agent and, in reliance upon such assumption, make available to the applicable
Borrower a corresponding amount. If and to the extent that such Lender shall not
have made such amount available to the Administrative Agent, such Lender and the
applicable Borrower severally agree to repay the Administrative Agent forthwith
on demand such corresponding amount together with interest thereon, for each day
from the date the Administrative Agent made such amount available to such
Borrower to the date such amount is repaid to the Administrative Agent, at the
interest rate applicable at the time to Loans comprising such Borrowing (in the
case of such Borrower) and (in the case of the Lender), at the Federal Funds
Rate for the first two Business
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Days after which such amount has not been repaid, and thereafter at the interest
rate applicable to Loans comprising such Borrowing.
SECTION 11.3. Exculpation. Neither Agent nor any of their respective
directors, officers, employees or agents shall be liable to any Lender for any
action taken or omitted to be taken by it under this Agreement or any other Loan
Document, or in connection herewith or therewith, except for its own willful
misconduct or gross negligence, nor responsible for any recitals or warranties
herein or therein, nor for the effectiveness, enforceability, validity or due
execution of this Agreement or any other Loan Document, nor for the creation,
perfection or priority of any Liens purported to be created by any of the Loan
Documents, or the validity, genuineness, enforceability, existence, value or
sufficiency of any collateral security, nor to make any inquiry respecting the
performance by any Borrower of its obligations hereunder or under any other Loan
Document. Any such inquiry which may be made by either Agent shall not obligate
it to make any further inquiry or to take any action. Each Agent shall be
entitled to rely upon advice of counsel concerning legal matters and upon any
notice, consent, certificate, statement or writing which such Agent believes to
be genuine and to have been presented by a proper Person.
SECTION 11.4. Successor. The Administrative Agent may resign as such at
any time upon at least 30 days' prior written notice to the Borrowers and all
Lenders. If the Administrative Agent at any time shall resign, the Required
Lenders may (with the consent of the Borrowers so long as a Default has not
occurred and is not then continuing, such consent not to be unreasonably
withheld or delayed) appoint another Lender as a successor Administrative Agent
which shall thereupon become the Administrative Agent hereunder. If no successor
Administrative Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Administrative Agent's giving written notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be one of the Lenders or a commercial banking
institution organized under the laws of the U.S. (or any State thereof) or a
U.S. branch or agency of a commercial banking institution, and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as the Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall be entitled to receive from the
retiring Administrative Agent such documents of transfer and assignment as such
successor Administrative Agent may reasonably request, and shall thereupon
succeed to and become vested with all rights, powers, privileges and duties of
the retiring Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations under this Agreement. After any
retiring Administrative Agent's resignation hereunder as the Administrative
Agent, the provisions of
(a) this Article XI shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Administrative Agent
under this Agreement; and
(b) Section 11.3 and Section 11.4 shall continue to inure to its
benefit.
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SECTION 11.5. Credit Extensions by Agents. Each Agent shall have the same
rights and powers with respect to (x) the Loans made by it in its capacity as a
Lender or any of its Affiliates, (y) the Notes held by it or any of its
Affiliates, and (z) its participating interests in the Letters of Credit as any
other Lender and may exercise the same as if it were not an Agent. Each Agent
and its Affiliates may accept deposits from, lend money to, and generally engage
in any kind of business with any Borrower or any Subsidiary or Affiliate of any
Borrower as if Credit Suisse First Boston and Chase were not Agents hereunder.
SECTION 11.6. Credit Decisions. Each Lender acknowledges that it has,
independently of each Agent and each other Lender, and based on such Lender's
review of the financial information of the Borrowers, this Agreement, the other
Loan Documents (the terms and provisions of which being satisfactory to such
Lender) and such other documents, information and investigations as such Lender
has deemed appropriate, made its own credit decision to extend its Commitments.
Each Lender also acknowledges that it will, independently of each Agent and each
other Lender, and based on such other documents, information and investigations
as it shall deem appropriate at any time, continue to make its own credit
decisions as to exercising or not exercising from time to time any rights and
privileges available to it under this Agreement or any other Loan Document.
SECTION 11.7. Collateral Agent. Each Lender consents and agrees to all of
the terms and provisions of the Intercreditor Agreement and the other Security
Documents, as the same may be in effect from time to time or may be amended,
supplemented or otherwise modified from time to time in accordance with the
provisions of the Security Documents and this Agreement, and authorizes and
directs the Collateral Agent (as defined in the Intercreditor Agreement) to act
as collateral agent pursuant to the Intercreditor Agreement (including pursuant
to the appointment thereof under Section ___ of the Intercreditor Agreement).
SECTION 11.8. Copies, etc. The Administrative Agent shall give prompt
notice to each Lender of each notice or request required or permitted to be
given to the Administrative Agent by any Borrower pursuant to the terms of this
Agreement (unless concurrently delivered to the Lenders by such Borrower). The
Administrative Agent will distribute to each Lender each document or instrument
received for its account and copies of all other communications received by the
Administrative Agent from any Borrower for distribution to the Lenders by the
Administrative Agent in accordance with the terms of this Agreement or any other
Loan Document.
ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.1. Waivers, Amendments, etc. The provisions of this Agreement
and of each other Loan Document may from time to time be amended, modified or
waived, if such amendment, modification or waiver is in writing and consented to
by each Borrower and the
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Required Lenders; provided, however, that no such amendment, modification or
waiver which would:
(a) modify any requirement hereunder that any particular action be
taken by all the Lenders or by the Required Lenders shall be effective
unless consented to by each Lender;
(b) modify this Section 12.1, change the definition of "Required
Lenders", increase the Commitment Amount or the Percentage of any Lender,
reduce any fees described in Article III (other than any fee payable to
the Administrative Agent solely for its own account or the Issuer solely
for its own account), release all or substantially all of the collateral,
except as otherwise specifically provided in any Loan Document, release
any Guarantor from its obligations under its Guaranty, or extend the
Commitment Termination Date shall be made without the consent of each
Lender;
(c) extend the due date for, or reduce the amount of, (i) any
scheduled repayment or prepayment of principal of or interest on any Loan
(or reduce the principal amount of or rate of interest on any Loan) or
(ii) any repayment of a Reimbursement Obligation (or reduce the amount of
or rate of interest on any Reimbursement Obligation) shall be made without
the consent of each Lender;
(d) affect adversely the rights or obligations of the Issuer qua the
Issuer shall be made without the consent of the Issuer; or
(e) affect adversely the rights or obligations of the Administrative
Agent qua the Administrative Agent shall be made without the consent of
the Administrative Agent.
Notwithstanding the foregoing provisions of this Section 12.1, the
Administrative Agent and the Borrowers may, in connection with implementation of
the CP Program, without the consent of any Lender, enter into any amendment,
supplement or other modification to this Agreement or any other Loan Document,
in form and substance satisfactory to the Administrative Agent, to cure any
ambiguity or to correct or supplement any provision in this Agreement or any
other Loan Document that may be inconsistent with any provision applicable to
the CP Program as described in that certain Confidential Memorandum dated
November 1997 of the Borrowers; provided, however, that (i) any such action
shall not have an adverse effect on the interests of the Lenders and (ii) a copy
of any such amendment, supplement or other modification shall be furnished to
the Lenders or the Issuer in accordance with the notice provisions hereof not
later than five days prior to the execution thereof by the Administrative Agent.
No failure or delay on the part of either Agent, the Issuer, any Lender or the
holder of any Note in exercising any power or right under this Agreement or any
other Loan Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right. No notice to or
demand on any Borrower in any case shall entitle it to any notice or demand in
similar or other circumstances. No waiver or approval by either Agent, the
Issuer, any Lender or the holder of any Note under this Agreement or any other
Loan Document shall, except as may be otherwise
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stated in such waiver or approval, be applicable to subsequent transactions. No
waiver or approval hereunder shall require any similar or dissimilar waiver or
approval thereafter to be granted hereunder.
SECTION 12.2. Notices. All notices and other communications provided to
any party hereto under this Agreement or any other Loan Document shall be in
writing or by facsimile and addressed, delivered or transmitted to such party at
its address or facsimile number set forth in the case of any Borrower or any
Agent, below its signature hereto or in the case of any Lender, in Schedule II
hereto or in a Lender Assignment Agreement or at such other address or facsimile
number as may be designated by such party in a notice to the other parties. Each
notice shall be deemed to have been duly given or made when delivered, or five
Business Days after being deposited in the mail, postage prepaid and return
receipt requested, or, in the case of facsimile notice, when electronic
confirmation thereof is received by the transmitter, except that notices
pursuant to Article II, III, IV or XI to the Administrative Agent shall not be
effective until actually received by the Administrative Agent, and notices
pursuant to Article IV to the Issuer shall not be effective until actually
received by the Issuer.
SECTION 12.3. Payment of Costs and Expenses. The Borrowers, jointly and
severally, agree to pay on demand all expenses of each Agent and each Arranger
(including the reasonable fees and out-of-pocket expenses of counsel to the
Agents and of local counsel, if any, who may be retained by counsel to the
Agents) in connection with
(a) the negotiation, preparation, execution and delivery of this
Agreement and of each other Loan Document, including schedules and
exhibits, and any amendments, waivers, consents, supplements or other
modifications to this Agreement or any other Loan Document as may from
time to time hereafter be required, whether or not the transactions
contemplated hereby are consummated;
(b) the filing, recording, refiling or rerecording of any Loan
Document and/or any Uniform Commercial Code financing statements relating
thereto and all amendments, supplements, amendments and restatements and
other modifications to any thereof and any and all other documents or
instruments of further assurance required to be filed or recorded or
refiled or rerecorded by the terms hereof or the terms of any Loan
Document; and
(c) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document.
The Borrowers further, jointly and severally, agree to pay, and to save the
Agents, the Arrangers, the Issuer and the Lenders harmless from all liability
for, any stamp, issuance, excise or other similar taxes which may be payable in
connection with the execution or delivery of this Agreement, the Credit
Extensions hereunder, the issuance of the Notes, Letters of Credit or any other
Loan Documents. The Borrowers also, jointly and severally, agree to reimburse
each Agent, the Issuer and each Lender upon demand for all reasonable
out-of-pocket expenses (including reasonable attorneys' fees and legal expenses)
incurred by such Agent or such Lender
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in connection with (x) the negotiation of any restructuring or "work-out",
whether or not consummated, of any Obligations and (y) the enforcement of any
Obligations.
SECTION 12.4. Indemnification. In consideration of the execution and
delivery of this Agreement by each Agent, each Arranger, the Issuer and each
Lender and the extension of the Commitments, the Borrowers hereby, jointly and
severally, indemnify, exonerate and hold each Agent, each Arranger, the Issuer
and each Lender and each of their respective officers, directors, employees and
agents (collectively, the "Indemnified Parties") free and harmless from and
against any and all actions, causes of action, suits, losses, costs, liabilities
and damages, and expenses incurred in connection therewith (irrespective of
whether any such Indemnified Party is a party to the action for which
indemnification hereunder is sought), including reasonable attorneys' fees and
disbursements whether incurred in connection with actions between or among the
parties hereto or the parties hereto and third parties (collectively, the
"Indemnified Liabilities"), incurred by the Indemnified Parties or any of them
as a result of, or arising out of, or relating to
(a) any transaction financed or to be financed in whole or in part,
directly or indirectly, with the proceeds of any Credit Extension,
including all Indemnified Liabilities arising in connection with the
Transaction or the use of any Letter of Credit;
(b) the entering into and performance of this Agreement and any
other Loan Document by any of the Indemnified Parties (including any
action brought by or on behalf of any Borrower as the result of any
determination by the Required Lenders pursuant to Article VI not to fund
any Credit Extension; provided that any such action is resolved by final
judgment of a court of competent jurisdiction in favor of such Indemnified
Party);
(c) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by the Parent or any of its
Subsidiaries of all or any portion of the stock or assets of any Person,
whether or not such Agent, such Arranger, the Issuer or such Lender is
party thereto;
(d) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to the
protection of the environment or the Release by the Parent or any of its
Subsidiaries of any Hazardous Material; or
(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any real
property owned or operated by the Parent or any Subsidiary thereof of any
Hazardous Material (including any losses, liabilities, damages, injuries,
costs, expenses or claims asserted or arising under any Environmental
Law), regardless of whether caused by, or within the control of, the
Parent or such Subsidiary,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or willful misconduct or a
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breach by such Indemnified Party (or its agents or employees or any other Person
under its control) of any of its obligations under this Agreement, as determined
by a final judgment of a court of competent jurisdiction. If and to the extent
that the foregoing undertaking may be unenforceable for any reason, each
Borrower hereby agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law.
SECTION 12.5. Survival. The obligations of each Borrower under Sections
4.9, 5.3, 5.4, 5.5, 5.6, 12.3 and 12.4, and the obligations of the Lenders under
Section 11.1, shall in each case survive any assignment from one Lender to
another and any termination of this Agreement, the payment in full of all
Obligations and the termination of all Commitments. The representations and
warranties made by each Obligor in this Agreement and in each other Loan
Document shall survive the execution and delivery of this Agreement and each
such other Loan Document.
SECTION 12.6. Severability. Any provision of this Agreement or any other
Loan Document which is prohibited or unenforceable in any jurisdiction shall, as
to such provision and such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions of
this Agreement or such Loan Document or affecting the validity or enforceability
of such provision in any other jurisdiction.
SECTION 12.7. Headings. The various headings of this Agreement and of each
other Loan Document are inserted for convenience only and shall not affect the
meaning or interpretation of this Agreement or such other Loan Document or any
provisions hereof or thereof.
SECTION 12.8. Execution in Counterparts, Effectiveness, etc. This
Agreement may be executed by the parties hereto in several counterparts, each of
which shall constitute together but one and the same agreement. This Agreement
shall become effective when counterparts hereof executed on behalf of each
Borrower, each Lender and the Administrative Agent (or notice thereof
satisfactory to the Administrative Agent) shall have been received by the
Administrative Agent.
SECTION 12.9. Governing Law; Entire Agreement. THIS AGREEMENT, THE NOTES
AND EACH OTHER LOAN DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER
AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. This Agreement, the Fee
Letter, the Notes and the other Loan Documents constitute the entire
understanding among the parties hereto with respect to the subject matter hereof
and supersede any prior agreements, written or oral, with respect thereto.
SECTION 12.10. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that:
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(a) no Borrower may assign or transfer either of their respective
rights or obligations hereunder without the prior written consent of the
Administrative Agent and all of the Lenders, except permitted pursuant to
clause (a) of Section 8.2.9 provided that, in the event of any such
transaction, the Administrative Agent shall have received such supplements
or other modifications to this Agreement and the other Loan Documents as
it may reasonably request to confirm the Obligations of such Borrower and
the other Obligors); and
(b) the rights of sale, assignment and transfer of the Lenders are
subject to Section 12.11.
SECTION 12.11. Sale and Transfer of Loans and Notes; Participations in
Loans and Notes. Each Lender may assign, or sell participations in, its Loans,
Letters of Credit and Commitments to one or more other Persons in accordance
with this Section 12.11.
SECTION 12.11.1. Assignments. Any Lender,
(a) with the written consents of each Borrower, the Issuer and the
Administrative Agent (which consents shall not be unreasonably delayed or
withheld and which consent, in the case of such Borrower, (i) shall be
deemed to have been given in the absence of a written notice delivered by
such Borrower to the Administrative Agent, on or before the fifth Business
Day after receipt by such Borrower of such Lender's request for consent,
stating, in reasonable detail, the reasons why such Borrower proposes to
withhold such consent and (ii) shall not be required if an Event of
Default has occurred and is then continuing) may at any time assign and
delegate to one or more Eligible Assignees, and
(b) with notice to the Borrowers, the Issuer and the Administrative
Agent, but without the consent of any Borrower, the Issuer or the
Administrative Agent, may assign and delegate to any of its Affiliates
which is an Eligible Assignee or to any other Lender
(each assignee to whom such assignment and delegation is to be made, being
hereinafter referred to as an "Assignee Lender"), all or any fraction of such
Lender's total Loans, participations in Letter of Credit Outstandings and
Commitments (which assignment and delegation shall be of a constant, and not a
varying, percentage of all the assigning Lender's Loans and Commitments) in a
minimum aggregate amount equal to the lesser of $5,000,000 and the aggregate
amount of such assigning Lender's Loans, participation in Letter of Credit
Outstanding and Commitments; provided, however, that, after giving effect to
such assignment, the assigning Lender shall have Commitments, participations in
Letter of Credit Outstandings and Loans aggregating at least $5,000,000 or no
such Commitments, participations and Loans; provided further, however, that any
such Assignee Lender will comply, if applicable, with the provisions contained
in the last sentence of Section 5.6; provided further, however, that, each
Borrower, the Issuer and the Administrative Agent shall be entitled to continue
to deal solely and directly with such Lender in connection with the interests so
assigned and delegated to an Assignee Lender until
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(i) written notice of such assignment and delegation, together with
payment instructions, addresses and related information with respect to
such Assignee Lender, shall have been given to the Borrowers, the Issuer
and the Administrative Agent by such assigning Lender and such Assignee
Lender,
(ii) such Assignee Lender shall have executed and delivered to the
Borrowers, the Issuer and the Administrative Agent a Lender Assignment
Agreement, accepted by the Administrative Agent, and
(iii) the processing fees described below shall have been paid.
From and after the date that the Administrative Agent accepts such Lender
Assignment Agreement, (x) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that rights and
obligations hereunder have been assigned and delegated to such Assignee Lender
in connection with such Lender Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and under the other Loan Documents, and (y)
the assigning Lender, to the extent that rights and obligations hereunder have
been assigned and delegated by it in connection with such Lender Assignment
Agreement, shall be released from its obligations hereunder and under the other
Loan Documents. Within five Business Days after its receipt of notice that the
Administrative Agent has received an executed Lender Assignment Agreement, each
Borrower shall, to the extent requested, execute and deliver to the
Administrative Agent (for delivery to the relevant Assignee Lender) new Notes
evidencing such Assignee Lender's assigned Loans and Commitments and, if the
assigning Lender has retained Loans and Commitments hereunder which are
evidenced by any Notes, replacement Notes in the principal amount of the Loans
and Commitments retained by the assignor Lender hereunder (such Notes to be in
exchange for, but not in payment of, those Notes then held by such assignor
Lender). Each such Note shall be dated the date of the predecessor Notes. The
assignor Lender shall xxxx the predecessor Notes "exchanged" and deliver them to
each applicable Borrower. Accrued interest on that part of the principal
comprising any assigned Loans, and accrued fees, shall be paid as provided in
the Lender Assignment Agreement. Accrued interest on that part of the principal
of any Loans not assigned shall be paid to the assignor Lender. Accrued interest
and accrued fees shall be paid at the same time or times provided in this
Agreement. Such assigning Lender must also pay a processing fee to the
Administrative Agent upon delivery of any Lender Assignment Agreement in the
amount of $3,500. Any attempted assignment and delegation not made in accordance
with this Section 12.11.1 shall be null and void.
Notwithstanding any other provision set forth in this Agreement, any
Lender may at any time create a security interest in all or any portion of its
rights under this Agreement (including the Loans owing to it and the Notes held
by it) in favor of any Federal Reserve Bank in accordance with Regulation A of
the F.R.S. Board; provided, however, the obligations of such Lender under this
Agreement or under any other Loan Document shall not be delegated or assigned
pursuant to any foreclosure under such pledge without the consents of each
Borrower, the Administrative Agent and the Issuer.
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The Borrowers hereby designate the Administrative Agent to serve as the
Borrowers' agent, solely for the purpose of this paragraph, to maintain a
register (the "Register") on which the Administrative Agent will record each
Lender's Loan Commitment, the Loans made by each Lender, and each repayment in
respect of the principal amount of the Loans of each Lender and annexed to which
the Administrative Agent shall retain a copy of each Lender Assignment Agreement
delivered to the Administrative Agent pursuant to this Section 12.11.1. Failure
to make any recordation, or any error in such recordation, shall not affect the
Borrowers obligations in respect of such Loans. The entries in the Register
shall be conclusive, in the absence of manifest error, and the Borrowers, the
Administrative Agent and the Lenders shall treat each Person in whose name a
Loan is registered as the owner thereof for all purposes of this Agreement,
notwithstanding notice or any provision herein to the contrary. A Lender's Loan
Commitment and the Loans made pursuant thereto may be assigned or otherwise
transferred in whole or in part only by registration of such assignment or
transfer in the Register. Any assignment or transfer of a Lender's Loan
Commitment or the Loans made pursuant thereto shall be registered in the
Register only upon delivery to the Administrative Agent of a Lender Assignment
Agreement duly executed by the assignor thereof. No assignment or transfer of a
Lender's Loan Commitment or the Loans made pursuant thereto shall be effective
unless such assignment or transfer shall have been recorded in the Register by
the Administrative Agent as provided in this Section.
SECTION 12.11.2. Participations. Any Lender may at any time sell to one or
more commercial banks or other financial institutions (each of such commercial
banks and other financial institutions being herein called a "Participant")
participating interests (or a sub-participating interest, in the case of a
Lender's participating interest in a Letter of Credit) in any of the Loans,
Commitments, or other interests of such Lender hereunder; provided, however,
that
(a) no participation or sub-participation contemplated in this
Section 12.11 shall relieve such Lender from its Commitments or its other
obligations hereunder or under any other Loan Document,
(b) such Lender shall remain solely responsible for the performance
of its Commitments and such other obligations,
(c) each Borrower and each other Obligor and the Administrative
Agent shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement
and each of the other Loan Documents,
(d) no Participant, unless such Participant is an Affiliate of such
Lender, or is itself a Lender, shall be entitled to require such Lender to
take or refrain from taking any action hereunder or under any other Loan
Document, except that such Lender may agree with any Participant that such
Lender will not, without such Participant's consent, take any actions of
the type described in clause (b) or (c) of Section 12.1,
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(e) no Borrower shall be required to pay any amount under Section
5.6 that is greater than the amount which it would have been required to
pay had no participating interest been sold, and
(f) such Lender shall comply with any obligation to withhold taxes
or any filing or reporting requirements imposed under applicable law
relating to such Participant and the Borrowers and the Administrative
Agent shall continue to deal solely and directly with such Lender in
connection with such matters.
Each Borrower acknowledges and agrees that each Participant, for purposes of
Sections 5.3, 5.4, 5.5, 5.6 (subject to clause (e) above) 5.8, 5.9, 12.3 and
12.4, shall be considered a Lender; provided, that no Participant shall be
entitled to receive any greater payment under Section 5.3, 5.4 or 5.5 than the
Lender that transferred such rights to such Participant would have been entitled
to receive with respect to such rights, unless such transfer is made with a
Borrower's prior written consent.
SECTION 12.12. Other Transactions. Nothing contained herein shall preclude
either Agent or any other Lender from engaging in any transaction, in addition
to those contemplated by this Agreement or any other Loan Document, with any
Borrower or any of its Affiliates in which such Borrower or such Affiliate is
not restricted hereby from engaging with any other Person.
SECTION 12.13. Independence of Covenants. All covenants contained in this
Agreement and each other Loan Document shall be given independent effect such
that, in the event a particular action or condition is not permitted by any of
such covenants, the fact that it would be permitted by an exception to, or be
otherwise within the limitations of, another covenant shall not, unless
expressly so provided in such first covenant, avoid the occurrence of a Default
or an Event of Default if such action is taken or such condition exists.
SECTION 12.14. Confidentiality. The Agents, the Issuer and the Lenders
shall hold all non-public information provided to them by the Parent or any of
its Subsidiaries pursuant to or in connection with this Agreement in accordance
with their customary procedures for handling confidential information of this
nature, but may make disclosure to any of their examiners, regulators (including
the National Association of Insurance Commissioners), Affiliates, outside
auditors, counsel and other professional advisors in connection with this
Agreement or any other Loan Document or as reasonably required by any potential
bona fide transferee, participant or assignee, or in connection with the
exercise of remedies under a Loan Document, or as requested by any governmental
agency or representative thereof or pursuant to legal process; provided,
however, that (a) unless specifically prohibited by applicable law or court
order, each Agent, the Issuer and each Lender shall promptly notify the
Borrowers of any request by any governmental agency or representative thereof
(other than any such request in connection with an examination of the financial
condition of such Agent, the Issuer or such Lender by such governmental agency)
for disclosure of any such non-public information and, where practicable, prior
to disclosure of such information; (b) prior to any such disclosure pursuant to
this Section 12.14, each Agent, the Issuer and each Lender shall require any
such bona fide transferee, participant and assignee receiving a disclosure of
non-public information to agree, for the benefit of the Parent and its
Subsidiaries, in writing (i) to be bound by this Section 12.14; and (ii) to
require such Person to require any other Person to whom such Person discloses
such non-public information to be similarly bound by this Section 12.14; and (c)
except as may be required by an
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order of a court of competent jurisdiction and to the extent set forth therein,
no Lender shall be obligated or required to return any materials furnished by
the Parent or any of its Subsidiary.
SECTION 12.15. Forum Selection and Consent to Jurisdiction. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE AGENT, THE LENDERS OR
ANY BORROWER SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE
STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT
AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE
AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER
PROPERTY MAY BE FOUND. EACH BORROWER HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH
LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT
RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. EACH BORROWER FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. EACH
BORROWER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH SUCH PERSON MAY HAVE OR HEREAFTER MAY HAVE
TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED
TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. TO THE EXTENT THAT ANY BORROWER HAS OR HEREAFTER MAY ACQUIRE
ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER
THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OR OTHERWISE) WITH RESPECT TO SUCH PERSON OR THE PROPERTY OF SUCH
PERSON, EACH BORROWER HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF THE
OBLIGATIONS OF SUCH PERSON UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION 12.16. Waiver of Jury Trial. THE ADMINISTRATIVE AGENT, THE LENDERS
AND EACH BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY
RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE
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129
ADMINISTRATIVE AGENT, THE LENDERS OR ANY BORROWER. EACH BORROWER ACKNOWLEDGES
AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS
PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A
PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE
AGENT AND THE LENDERS ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER LOAN
DOCUMENT.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
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130
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
DOLLAR THRIFTY AUTOMOTIVE GROUP,
INC.
By:
---------------------------------
Name:
Title:
Address: 0000 Xxxx 00xx Xxxxxx
Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention:
DOLLAR RENT A CAR SYSTEMS, INC.
By:
---------------------------------
Name:
Title:
Address: 0000 Xxxx 00xx Xxxxxx
Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention:
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131
THRIFTY RENT-A-CAR SYSTEM, INC.
By:
---------------------------------
Name:
Title:
Address: 0000 Xxxx 00xx Xxxxxx
Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention:
CREDIT SUISSE FIRST BOSTON, as the
Administrative Agent and as an Arranger
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
Address: Eleven Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Facsimile No.:
Attention:
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132
CREDIT SUISSE FIRST BOSTON, as Issuer
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, as the
Syndication Agent
By:
---------------------------------
Name:
Title:
Address:
Facsimile No.:
Attention:
CHASE SECURITIES INC., as
an Arranger
By:
---------------------------------
Name:
Title:
Address:
Facsimile No.:
Attention:
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133
LENDERS:
--------
CREDIT SUISSE FIRST BOSTON
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By:
---------------------------------
Name:
Title:
[NAME OF LENDER]
By:
---------------------------------
Name:
Title:
[NAME OF LENDER]
By:
---------------------------------
Name:
Title:
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SCHEDULE I
LENDER INFORMATION
------------------
LENDER PERCENTAGE DOMESTIC OFFICE EUROCURRENCY OFFICE
------ ---------- --------------- -------------------
Credit Suisse First Boston _______% ________________________ ________________________
________________________ ________________________
________________________ ________________________
Telecopier: ____________ Telecopier: ____________
Attn: ________________ Attn: ________________
The Chase Manhattan Bank _______% ________________________ ________________________
________________________ ________________________
________________________ ________________________
Telecopier: ____________ Telecopier: ____________
Attn: ________________ Attn: ________________
[Name of Lender] _______% ________________________ ________________________
________________________ ________________________
________________________ ________________________
Telecopier: ____________ Telecopier: ____________
Attn: ________________ Attn: ________________
135
LENDER PERCENTAGE DOMESTIC OFFICE EUROCURRENCY OFFICE
------ ---------- --------------- -------------------
[Name of Lender] _______% ________________________ ________________________
________________________ ________________________
________________________ ________________________
Telecopier: ____________ Telecopier: ____________
Attn: ________________ Attn: ________________
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136
SCHEDULE II
SUBORDINATED INTERCOMPANY NOTE TERMS
137
SCHEDULE III
EXISTING MATERIAL PROPERTY
--------------------------------------------------------------------------------
Owner Site
----- ----
--------------------------------------------------------------------------------
Pentastar Services Headquarters, Tulsa, Oklahoma
--------------------------------------------------------------------------------
Dollar 0000 Xxxxxx Xxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx
--------------------------------------------------------------------------------
Dollar 0000 X. Xxxxxx Xxxxxx
Xxxxx Xxx, Xxxxxxx
--------------------------------------------------------------------------------
Thrifty 0000 X. Xxxxxxxxxx
Xxxxxxx, Xxxxxxx
--------------------------------------------------------------------------------
Thrifty 0000 XX Xxxxx Xxxx
Xx. Xxxxxxxxxx, Xxxxxxx
--------------------------------------------------------------------------------
Thrifty 0000 X. Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxx
--------------------------------------------------------------------------------
Thrifty 0000 Xxxxx Xxxxx
0000 Xxxxxx Xxxx.
Xxxxxx, Xxxxx
--------------------------------------------------------------------------------
Thrifty 00000 XXX Xxxxxxxxx
Xxxxxxx, Xxxxx
--------------------------------------------------------------------------------
Thrifty 00 Xxxxx 0000 Xxxx
Xxxx Xxxx Xxxx, Xxxx
--------------------------------------------------------------------------------
138
SCHEDULE IV
EXCLUDED PROPERTY
--------------------------------------------------------------------------------
Owner Site
----- ----
--------------------------------------------------------------------------------
Dollar 0000 X. Xxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx
--------------------------------------------------------------------------------
Thrifty 0000 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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