EXHIBIT 4.48
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FIRST AMENDMENT AND WAIVER TO AMENDED
AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT AND WAIVER TO AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of September 30, 2001 (this "Amendment and Waiver"), is made by and
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"), the Lenders
(as defined below) parties hereto and the Administrative Agent (as defined
below).
W I T N E S S E T H:
WHEREAS, the Borrowers, the various financial institutions parties thereto
(collectively, the "Lenders"), Credit Suisse First Boston ("Credit Suisse First
Boston"), as the administrative agent (in such capacity, the "Administrative
Agent") for the Lenders, and 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, have heretofore entered
into that certain Amended and Restated Credit Agreement dated as of August 3,
2000 (the "Credit Agreement");
WHEREAS, the Borrowers have requested that the Lenders and the
Administrative Agent waive through and including January 31, 2002 the
application of certain financial covenants; and
WHEREAS, the Lenders and the Administrative Agent are willing, on and
subject to the terms and conditions set forth below (including the amendments
set forth in Section 2.1 below), to agree to such waiver as provided below (the
Credit Agreement, as amended pursuant to the terms of this Amendment and Waiver,
being referred to as the "Amended Credit Agreement");
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the Borrowers, the Lenders and the Administrative Agent hereby
agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Definitions. The following terms (whether or not
underscored) when used in this Amendment and Waiver shall have the following
meanings (such meanings to be equally applicable to the singular and plural
forms thereof):
"Administrative Agent" is defined in the first recital.
"Agents" is defined in the first recital.
"Amended Credit Agreement" is defined in the third recital.
"Amendment and Waiver" is defined in the preamble.
"Borrowers" is defined in the preamble.
"Credit Agreement" is defined in the first recital.
"Lenders" is defined in the first recital.
"Parent" is defined in the preamble.
SECTION 1.2. Other Definitions. Terms for which meanings are provided in
the Amended Credit Agreement are, unless otherwise defined herein or the context
otherwise requires, used in this Amendment and Waiver with such meanings.
ARTICLE II
AMENDMENTS AND WAIVER
SECTION 2.1. Amendments to Credit Agreement. Effective as of the date
hereof, certain provisions of the Credit Agreement are hereby amended in
accordance with this Article II; except expressly as so amended by this
Amendment and Waiver, the Credit Agreement shall continue in full force and
effect in accordance with its terms.
SECTION 2.1.1. Amendment to Section 8.1.1. Section 8.1.1 of the Credit
Agreement is hereby amended:
(a) by re-labeling present clause (l) as clause (m); and
(b) by inserting new clause (l) to read in its entirety as follows:
"(l) by the 20th day of each month following a Subject
Month (as defined below in this clause (l)), a monthly liquidity
report, substantially in the form of Exhibit N hereto, for the
most recently ended Subject Month, commencing with the report for
the month ended on September 30, 2001, and continuing for each
calendar month thereafter until (and including) the month ending
on December 31, 2001 (each such month, a "Subject Month"); and"
SECTION 2.1.2. Amendment to Section 9.1.3. Section 9.1.3(a) is hereby
amended in its entirety to read as follows:
"(a) Any Borrower shall default in the due performance and observance
of its obligations under Xxxxxxx 0.0, xxxxxx (x), (x), (x), (x) or (l) of
Section 8.1.1 or Section 8.1.2, 8.1.8 or 8.1.9."
SECTION 2.1.3. Addition of Exhibit N. A new Exhibit N is added to the
Credit Agreement to read substantially as set forth in Annex I hereto.
SECTION 2.2. Waivers. (a) Subject to the satisfaction of the conditions
set forth in Article III herein, the Lenders hereby waive, from the date hereof
through and including January 31, 2002, compliance by the Borrowers with the
provisions of clauses (b), (c), (d) and (e) of Section 8.2.4 of the Credit
Agreement.
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(b) Clause (a) of this Section 2.2 shall be limited precisely as
written and relates solely to any noncompliance by the Borrowers with the
provisions of clauses (b), (c), (d) and (e) of Section 8.2.4 of the Credit
Agreement in the manner and to the extent set forth above, and nothing in this
Amendment and Waiver shall be deemed to constitute a waiver of compliance by the
Borrowers with respect to (A) clauses (b), (c), (d) and (e) of Section 8.2.4 of
the Credit Agreement for any period other than the period from the date hereof
through and including January 31, 2002 or (B) any other term, provision or
condition of the Credit Agreement or any other instrument or agreement referred
to therein or relating thereto or prejudice any right or remedy that the
Administrative Agent or any Lender may now have or may have in the future under
or in connection with the Credit Agreement or any other instrument or agreement
to therein or relating thereto.
ARTICLE III
CONDITIONS TO EFFECTIVENESS
This Amendment and Waiver, and the amendments and modifications contained
herein, shall be and become effective on the date (the "Amendment Effective
Date") when each of the conditions set forth in this Article III shall have been
fulfilled to the satisfaction of the Administrative Agent.
SECTION 3.1. Execution of Counterparts. The Administrative Agent shall
have received counterparts of this Amendment and Waiver, duly executed and
delivered on behalf of (i) each of the Borrowers and (ii) the Required Lenders.
SECTION 3.2. Amendment and Waiver Effective Date Certificate. The
Administrative Agent shall have received a certificate from the chief financial
Authorized Officer of the Parent confirming the representations and warranties
set forth in Article IV in form and substance satisfactory to the Administrative
Agent.
SECTION 3.3. Execution of Affirmation and Acknowledgment. The
Administrative Agent shall have received an affirmation and acknowledgment in
form and substance satisfactory to it, duly executed and delivered by each
Guarantor and any other Obligor that has granted a Lien pursuant to any Loan
Document, other than the Borrowers.
SECTION 3.4. Amendment Fee. The Administrative Agent shall have received
the amendment fees due and payable pursuant to Section 5.3.
SECTION 3.5. Fees and Expenses. The Administrative Agent shall have
received all fees and expenses due and payable pursuant to Section 5.4 hereof
(to the extent then invoiced) and pursuant to the Amended Credit Agreement
(including all previously invoiced fees and expenses).
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Administrative Agent to enter into
this Amendment and Waiver, each of the Borrowers hereby represents and warrants
to each Agent and each Lender, as of the date hereof, as set forth in this
Article IV.
SECTION 4.1. Representations and Warranties. (a) The representations and
warranties set forth in Article VII of the Credit Agreement (excluding, however,
those contained in Section 7.7 of the Credit Agreement) and in each other Loan
Document are, in each case, true and correct (unless stated to relate solely to
an earlier date, in which case such representations and warranties are true and
correct as of such earlier date);
(b) except as disclosed by any Borrower to the Administrative Agent,
the Issuer and the Lenders pursuant to Section 7.7 of the Credit Agreement
(i) there is no pending or, to the best knowledge of any
Borrower, threatened litigation, action, proceeding or labor controversy
affecting any Borrower or any of its Subsidiaries, or any of their
respective properties, businesses, or revenues, which may materially
adversely affect the businesses, property, operations, assets, liabilities,
condition (financial or otherwise) or prospects of the Parent and its
Subsidiaries taken as a whole, or which purports to affect the legality,
validity or enforceability of this Amendment and Waiver, the Credit
Agreement, the Notes or any other Loan Document, except as disclosed in
Item 7.7 ("Litigation") of the Disclosure Schedule to the Credit Agreement;
and
(ii) no development has occurred in any labor controversy,
litigation, arbitration or governmental investigation or proceeding
disclosed pursuant to Section 7.7 of the Credit Agreement which may
materially adversely affect the business, property, operations, assets,
liabilities, condition (financial or otherwise) or prospects of the Parent
and its Subsidiaries taken as a whole, or which purports to affect the
legality, validity or enforceability of this Amendment and Waiver, the
Credit Agreement, the Notes, or any other Loan Document;
(c) no Default (other than any Default that would not exist upon
effectiveness of this Amendment and Waiver) has occurred and is continuing, and
neither any Borrower nor any of their respective Subsidiaries nor any other
Obligor is in material violation of any law or governmental regulation or court
order or decree; and
(d) this Amendment and Waiver has been duly authorized, executed and
delivered by each of the Borrowers and constitutes a legal, valid and binding
obligation of each such Person, enforceable against it in accordance with its
terms, except to the extent the enforceability hereof may be limited by (i) the
effect of bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting the rights and remedies
of creditors generally and (ii) the effect of general principles of equity,
whether enforcement is considered in a proceeding in equity or at law.
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SECTION 4.2. Full Disclosure. Except as corrected by written information
delivered to the Agents and the Lenders reasonably prior to the date on which
this representation is made, all information (other than financial and business
projections and forecasts) heretofore or contemporaneously furnished by any
Borrower in writing to any Agent, the Issuer or any Lender for purposes of or in
connection with this Amendment and Waiver is true and accurate in every material
respect and such information is not incomplete by omitting to state any material
fact necessary to make such information not materially misleading in light of
the circumstances under which such information was furnished. All financial and
business projections and forecasts delivered to any Agent, the Issuer or any
Lender by or on behalf of any Borrower have been prepared in good faith based
upon assumptions which the Borrowers believe to be reasonable.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Full Force and Effect; Limited Amendment and Waiver. Except
as expressly amended hereby, all of the representations, warranties, terms,
covenants, conditions and other provisions of the Credit Agreement and the other
Loan Documents shall remain unamended and unwaived and shall continue to be, and
shall remain, in full force and effect in accordance with their respective
terms. The amendments and waivers set forth herein shall be limited precisely as
provided for herein to the provisions expressly amended or waived herein and
shall not be deemed to be a waiver of, an amendment to, consent to or
modification of any other term or provision of the Credit Agreement, any other
Loan Document referred to therein or herein or of any transaction or further or
future action on the part of any of the Borrowers or any other Obligor which
would require the consent of the Lenders under the Credit Agreement or any of
the other Loan Documents.
SECTION 5.2. Loan Document Pursuant to Credit Agreement. This Amendment
and Waiver is a Loan Document executed pursuant to the Credit Agreement and
shall be construed, administered and applied in accordance with all of the terms
and provisions of the Credit Agreement (and, following the date hereof, the
Amended Credit Agreement). Any breach of any representation or warranty or
covenant or agreement contained in this Amendment and Waiver shall be deemed to
be an Event of Default for all purposes of the Credit Agreement and the other
Loan Documents.
SECTION 5.3. Amendment Fee. Upon satisfaction of the condition set forth
in clause (ii) of Section 3.1, the Borrowers shall pay, without setoff,
deduction or counterclaim, a non-refundable amendment fee for the account of
each Lender that has executed and delivered (including delivery by way of
facsimile) a copy of this Amendment and Waiver to the attention of Xxxxx
Xxxxxxxx at Xxxxx, Xxxxx & Xxxxx, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (19th
floor), telecopy number 000-000-0000, at or prior to 5:00 p.m., New York time,
on or before October 8, 2001 (as such time may be extended by the Parent), in
the amount of 12.5 basis points of such Lender's Commitment as of the date
hereof. The aggregate amount of such amendment fee shall be paid at or prior to
noon, New York time, on October 9, 2001 (or, in the event the date in the
immediately preceding sentence has been extended, the Business Day that
immediately succeeds such extended date) to the Administrative Agent for the pro
rata account of the Lenders entitled to receive such amendment fee.
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SECTION 5.4. Fees and Expenses. The Borrowers, jointly and severally,
agree to pay on demand all out-of-pocket expenses incurred by the Administrative
Agent in connection with the preparation, negotiation, execution and delivery of
this Amendment and Waiver and the documents and transactions contemplated
hereby, including the reasonable fees and disbursements of Mayer, Brown, and
Xxxxx, as counsel for the Administrative Agent.
SECTION 5.5. Headings. The various headings of this Amendment and Waiver
are inserted for convenience only and shall not affect the meaning or
interpretation of this Amendment and Waiver or any provisions hereof.
SECTION 5.6. Execution in Counterparts. This Amendment and Waiver may be
executed by the parties hereto in several counterparts, each of which shall be
deemed to be an original and all of which shall constitute together but one and
the same agreement.
SECTION 5.7. Cross-References. References in this Amendment and Waiver to
any Article or Section are, unless otherwise specified or otherwise required by
the context, to such Article or Section of this Amendment and Waiver.
SECTION 5.8. Successors and Assigns. This Amendment and Waiver shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SECTION 5.9. GOVERNING LAW. THIS AMENDMENT AND WAIVER SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Waiver 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:
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Name:
Title:
DOLLAR RENT A CAR SYSTEMS, INC.
By:
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Name:
Title:
THRIFTY RENT-A-CAR SYSTEM, INC.
By:
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Name:
Title:
CREDIT SUISSE FIRST BOSTON, as the
Administrative Agent, as the Issuer
and as a Lender
By:
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Name:
Title:
By:
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Name:
Title:
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THE CHASE MANHATTAN BANK
By:
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Name:
Title:
BANK OF OKLAHOMA,
NATIONAL ASSOCIATION
By:
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Name:
Title:
DEUTSCHE BANK AG, NEW YORK BRANCH AND/OR
CAYMAN ISLANDS BRANCH
By:
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Name:
Title:
By:
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Name:
Title:
8
DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
By:
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Name:
Title:
By:
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Name:
Title:
LOCAL OKLAHOMA BANK, N.A.
By:
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Name:
Title:
MIDFIRST BANK
By:
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Name:
Title:
THE BANK OF NOVA SCOTIA
By:
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Name:
Title:
ARVEST STATE BANK
By:
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Name:
Title:
9
TEXTRON FINANCIAL CORPORATION
By:
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Name:
Title:
10
Annex I
to First Amendment and Waiver
[EXHIBIT N TO AMENDED CREDIT AGREEMENT]
FORM OF MONTHLY LIQUIDITY REPORT