AMENDMENT (this "AMENDMENT"), dated as of February 22, 2001, to the
FIVE YEAR COMPETITIVE ADVANCE AND REVOLVING CREDIT AGREEMENT dated as of October
2, 1996 (as amended, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT"), by and among CENDANT CORPORATION, a Delaware corporation
(the "BORROWER"), the financial institutions parties thereto (the "LENDERS"),
THE CHASE MANHATTAN BANK, a New York banking corporation, as agent for the
Lenders (in such capacity, the "ADMINISTRATIVE AGENT").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower has requested that certain provisions of
the Credit Agreement be amended as set forth herein; and
WHEREAS, the Lenders are willing to agree to such amendments on
the terms set forth herein;
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, the undersigned hereby agree as follows:
I. DEFINED TERMS. Terms defined in the Credit Agreement and used
herein shall have the meanings given to them in the Credit Agreement.
II. AMENDMENTS TO SECTION 1.
(a) Section 1 of the Credit Agreement is hereby amended by adding
thereto the following definitions in their appropriate alphabetical order:
"AESOP FINANCING PROGRAM" means the transactions contemplated by
that certain Amended and Restated Base Indenture, dated as of July 30,
1997, between AESOP Funding II L.L.C., as issuer, and the Bank of New
York, as Trustee, as it may be from time to time further amended,
supplemented or modified, and the instruments and agreements referenced
therein and otherwise executed in connection therewith.
"AVIS" shall mean Avis Group Holdings, Inc., a Delaware corporation.
"AVIS DEBT DOCUMENTS" shall mean the instruments and agreements
pursuant to which any indebtedness of Avis or any of its Subsidiaries has
been issued, is outstanding or is permitted to exist.
"AVIS MERGER" shall mean the transaction pursuant to the Agreement
and Plan of Merger, dated as of November 11, 2000 (the "MERGER
AGREEMENT"), by and among Avis, the Borrower, PHH and Avis Acquisition
Corp., a Delaware corporation and an indirect wholly-owned subsidiary of
the Borrower ("MERGER SUB") in which Merger Sub will merge with and into
Avis and each outstanding share of class A common stock, par value $.01
per share of Avis (the "COMMON STOCK"), other than shares of Common Stock
held by any subsidiary of Avis, held in Avis' treasury, held by Cendant or
any subsidiary of Cendant or held by stockholders who perfect their
appraisal rights under Delaware law, will be converted into the right to
receive $33.00 in cash.
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"AVIS SECURITIZATION INDEBTEDNESS" means (i) Indebtedness that
finances or refinances Eligible Vehicles (but only to the extent actually
used to finance or refinance Eligible Vehicles) and (ii) Indebtedness
secured by Permitted Vehicle Collateral.
"ELIGIBLE LEASES" means open-end and closed-end automobile fleet
leases originated by or on behalf of Avis or any of its Subsidiaries which
are of a type customarily eligible for inclusion in a Qualified
Securitization Transaction.
"ELIGIBLE VEHICLES" shall mean the motor vehicle inventory of Avis
or any of its Subsidiaries, in each case, whether held for sale, lease or
rental purposes which are of a type customarily eligible for inclusion in
a Qualified Securitization Transaction.
"FAIRFIELD" shall mean Fairfield Communities, Inc., a Delaware
corporation.
"FAIRFIELD DEBT DOCUMENTS" shall mean the instruments and agreements
pursuant to which any indebtedness of Fairfield or any of its Subsidiaries
has been issued, is outstanding or permitted to exist.
"FAIRFIELD MERGER" shall mean the transaction pursuant to the
Agreement and Plan of Merger, dated as of November 1, 2000, by and among
the Borrower, Fairfield and Grand Slam Acquisition Corp., a Delaware
corporation and subsidiary of the Borrower.
"FLEET RECEIVABLES" means all receivables generated by Avis or any
of its Subsidiaries from obligors under fleet maintenance contracts, fleet
management contracts and fuel card contracts and any other service
contracts billed together with Eligible Leases, which are of a type
customarily eligible for inclusion in a Qualified Securitization
Transaction.
"PERMITTED VEHICLE COLLATERAL" means, as of any date of
determination:
(1) the collateral securing Avis Securitization Indebtedness
and consisting of Eligible Vehicles and receivables, or a beneficial
interest therein, arising from the disposition of Eligible Vehicles
and the proceeds thereof;
(2) Eligible Leases and Fleet Receivables, or a beneficial
interest therein, transferred to a Securitization Entity in
connection with a Qualified Securitization Transaction and the
proceeds thereof;
(3) any related assets which are customarily transferred, or
in respect of which security interests are customarily granted, in
connection with asset securitizations involving Eligible Vehicles or
Eligible Leases; and
(4) any proceeds of any of the foregoing.
"PURCHASE MONEY NOTE" means a promissory note of a Securitization
Entity evidencing a line of credit, which may be irrevocable, from Avis or
any of its Subsidiaries to a Securitization Entity or representing the
deferred purchase price for the purchase of assets by such Securitization
Entity from Avis or any of its Subsidiaries, in
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each case in connection with a Qualified Securitization Transaction, which
note is repayable from cash available to the Securitization Entity, other
than amounts required to be established as reserves pursuant to
agreements, amounts paid to investors in respect of interest, principal
and other amounts owing to such investors and amounts paid in connection
with the purchase of Eligible Vehicles, Eligible Leases, Fleet Receivables
or a beneficial interest therein.
"QUALIFIED SECURITIZATION TRANSACTION" means any transaction or
series of transactions that may be entered into by Avis or any of its
Subsidiaries pursuant to which Avis or any of its Subsidiaries may sell,
convey or otherwise transfer to (1) a Securitization Entity (in the case
of a transfer by Avis or any of its Subsidiaries) or (2) any other Person
(in the case of a transfer by a Securitization Entity), or may grant a
security interest in, any Permitted Vehicle Collateral (whether now
existing or arising in the future) of Avis or any of its Subsidiaries, and
any assets related thereto including, without limitation, the proceeds of
such Permitted Vehicle Collateral.
"SECURITIZATION ENTITY" means a Subsidiary of Avis (or another
Person in which Avis or any of its Subsidiaries makes an investment or to
which Avis or any of its Subsidiaries transfers Permitted Vehicle
Collateral or an interest in Permitted Vehicle Collateral) which engages
in no activities other than in connection with the ownership, leasing,
operation and financing of Eligible Vehicles and other Permitted Vehicle
Collateral and which is designated by the board of directors of Avis as a
Securitization Entity and as to which:
(1) no portion of the Indebtedness or any other obligations
(contingent or otherwise) of which:
(a) is guaranteed by Avis or any of its Subsidiaries
(excluding guarantees of obligations (other than the principal
of, and interest on, Indebtedness) pursuant to Standard
Securitization Undertakings);
(b) is recourse to or obligates Avis or any of its
Subsidiaries in any way other than pursuant to Standard
Securitization Undertakings; or
(c) subjects any property or asset of Avis or any of its
Subsidiaries (other than a Securitization Entity), directly or
indirectly, contingently or otherwise, to the satisfaction
thereof, other than pursuant to Standard Securitization
Undertakings;
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(2) neither Avis nor any of its Subsidiaries has any material
contract, agreement, arrangement or understanding (except in
connection with a Purchase Money Note or Qualified Securitization
Transaction) other than on terms no less favorable to Avis or such
Subsidiary of Avis than those that might be obtained at the time
from Persons that are not Affiliates of Avis, other than fees
payable in the ordinary course of business in connection with
servicing Permitted Vehicle Collateral; and
(3) neither Avis nor any of its Subsidiaries has any
obligation to maintain or preserve such entity's financial condition
or cause such entity to achieve certain levels of operating results.
"STANDARD SECURITIZATION UNDERTAKINGS" means representations,
warranties, covenants and indemnities entered into by Avis or any of its
Subsidiaries which are reasonably customary in securitizations of vehicles
and vehicle leases.
(b) Section 1 of the Credit Agreement is hereby amended by deleting
the definitions of the following defined terms in their respective entireties
and substituting in lieu thereof the following definitions:
"CONSOLIDATED INTEREST EXPENSE" shall mean for any period for which
such amount is being determined, total interest expense paid or payable in
cash (including that properly attributable to Capital Leases in accordance
with GAAP but excluding in any event all capitalized interest and
amortization of debt discount and debt issuance costs) of the Borrower and
its Consolidated Subsidiaries on a consolidated basis including, without
limitation, all commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance financing and
net cash costs (or minus net profits) under Interest Rate Protection
Agreements MINUS, without duplication, any interest income of the Borrower
and its Consolidated Subsidiaries on a consolidated basis during such
period. Notwithstanding the foregoing, interest expense on any Avis
Securitization Indebtedness, shall be deemed not to be included in
Consolidated Interest Expense.
"CONSOLIDATED NET WORTH" shall mean, as of any date of
determination, all items which in conformity with GAAP would be included
under shareholders' equity on a consolidated balance sheet of the Borrower
and its Subsidiaries at such date plus mandatorily redeemable preferred
securities issued by Subsidiaries of the Borrower (other than PHH and its
Subsidiaries). Consolidated Net Worth shall include the Borrower's equity
interest in PHH.
"CONSOLIDATED TOTAL INDEBTEDNESS" shall mean (i) the total amount of
Indebtedness of the Borrower and its Consolidated Subsidiaries determined
on a consolidated basis using GAAP principles of consolidation, which is,
at the dates as of which Consolidated Total Indebtedness is to be
determined, includable as liabilities on a consolidated balance sheet of
the Borrower and its Subsidiaries, plus (ii) without duplication of any
items included in Indebtedness pursuant to the foregoing clause (i),
indebtedness of others which the Borrower or any of its Consolidated
Subsidiaries has directly or indirectly assumed or guaranteed (but only to
the extent so assumed or
5
guaranteed) or otherwise provided credit support therefor, including
without limitation, Guaranties; PROVIDED that any Avis Securitization
Indebtedness shall not be deemed Indebtedness for the purposes of this
definition. In addition, for purposes of this definition, the amount of
Indebtedness at any time shall be reduced (but not to less than zero) by
the amount of Excess Cash.
III. AMENDMENTS TO SECTION 2.
Section 2.20 of the Credit Agreement is hereby amended by inserting
after "All payments by the Borrower hereunder and under the Notes shall be
made in Dollars in Federal or other immediately available funds" the words
"without deduction, setoff or counterclaim".
IV. AMENDMENTS TO SECTION 6.
(a) Section 6.1 of the Credit Agreement is hereby amended by
deleting Section 6.1(h) in its entirety and substituting in lieu thereof the
following:
(h) any Indebtedness (other than Avis Securitization
Indebtedness) of Avis or its Subsidiaries issued, outstanding or
permitted to exist pursuant to the terms of the Avis Debt Documents
as of the date of the Avis Merger and any renewal, extension or
modification of such Indebtedness so long as (i) such renewal,
extension or modification is effected on substantially the same
terms or on terms which, in the aggregate, are not more adverse to
the Lenders and (ii) the principal amount of such Indebtedness
issued, outstanding or permitted to exist pursuant to the terms of
the Avis Debt Documents is not increased directly or indirectly.
(b) Section 6.1 of the Credit Agreement is hereby amended by
adding thereto the following Section 6.1(i):
(i) any Avis Securitization Indebtedness;
(c) Section 6.1 of the Credit Agreement is hereby amended by
adding thereto the following Section 6.1(j):
(j) any Indebtedness of Fairfield or its Subsidiaries issued,
outstanding or permitted to exist pursuant to the terms of the
Fairfield Debt Documents as of the date of the Fairfield Merger,
including any amendments, supplements, modifications, extensions,
renewals, restatements, refundings or substitutions thereof and any
agreements that replace, refund, refinance or substitute any part of
the indebtedness evidenced by the Fairfield Debt Documents;
(d) Section 6.1 of the Credit Agreement is hereby amended by adding
thereto the following Section 6.1(k):
6
(k) without limiting any of the foregoing, Indebtedness
incurred in connection with the acquisition by Avis or any of its
Subsidiaries of vehicles directly from a manufacturer pursuant to
such manufacturer's repurchase program, PROVIDED that (i) such
Indebtedness is not greater than the net book value of such vehicles
and (ii) such vehicles could not be financed under the AESOP
Financing Program; and
(e) Section 6.1 of the Credit Agreement is hereby amended by adding
thereto the following Section 6.1(l):
(l) in addition to the Indebtedness permitted by paragraphs
(a) - (k) above, Indebtedness of PHH and its Subsidiaries so long
as, after giving effect to the incurrence of such Indebtedness and
the use of the proceeds thereof, the ratio of Indebtedness (other
than Avis Securitization Indebtedness) of PHH and its Subsidiaries
to consolidated shareholders' equity of PHH is less than 8 to 1.
(f) Section 6.5 of the Credit Agreement is hereby amended by adding
thereto the following Section 6.5(j):
(j) any Liens securing Indebtedness and related obligations of
the Borrower or any of its Material Subsidiaries to the extent such
Indebtedness and related obligations are permitted under Section
6.1(h) hereof.
(g) Section 6.5 of the Credit Agreement is hereby amended by
adding thereto the following Section 6.5(k):
(k) any Liens securing Indebtedness and related obligations of
the Borrower or any of its Material Subsidiaries to the extent such
Indebtedness and related obligations are permitted under Section
6.1(i) hereof.
(h) Section 6.5 of the Credit Agreement is hereby amended by
adding thereto the following Section 6.5(l):
(l) any Liens securing Indebtedness and related obligations of
the Borrower or any of its Material Subsidiaries to the extent such
Indebtedness and related obligations are permitted under Section
6.1(j) hereof.
(i) Section 6.6 of the Credit Agreement is hereby amended by
deleting said section in its entirety and substituting in lieu thereof the
following:
SECTION 6.6 SALE AND LEASEBACK. Enter into any arrangement with any
Person or Persons, whereby in contemporaneous transactions the Borrower or
any of its Subsidiaries sells essentially all of its right, title and
interest in a material asset and the Borrower or any of its Subsidiaries
acquires or leases back the right to use such property except that the
Borrower and its Subsidiaries may enter into sale-leaseback transactions
relating to assets not in excess of $200,000,000 in the aggregate on a
cumulative basis, and except (a) any arrangements of Fairfield or any of
its Subsidiaries existing as of the date of the Fairfield Merger and any
renewals, extensions or modifications thereof, or
7
replacements or substitutions therefor, so long as such renewals,
extensions or modifications are effected on substantially the same terms
or on terms which, in the aggregate, are not more adverse to the Lenders
in any material respect, and (b) in connection with the issuance of Avis
Securitization Indebtedness.
V. EFFECTIVE DATE. This Amendment shall become effective on the
date (the "EFFECTIVE DATE") on which the Borrower, the Administrative Agent and
the Required Lenders under the Credit Agreement shall have duly executed and
delivered to the Administrative Agent this Amendment, and the Administrative
Agent shall have received evidence of the effectiveness of each of (i) the Term
Loan Agreement, dated as of February 22, 2001, among the Borrower, the lenders
parties thereto and The Chase Manhattan Bank, as administrative agent, (ii) the
Amendment, dated as of February 22, 2001, to the Three Year Competitive Advance
and Revolving Credit Agreement dated August 29, 2000, by and among the Borrower,
the lenders parties thereto and The Chase Manhattan Bank, as administrative
agent, (iii) the Amendment, dated as of February 22, 2001, to the Five Year
Competitive Advance and Revolving Credit Agreement dated as of March 4, 1997, as
amended and restated through February 28, 2000, by and among PHH, the lenders
parties thereto and The Chase Manhattan Bank, as administrative agent, (iv) the
364-Day Competitive Advance and Revolving Credit Agreement, dated as of March 4,
1997, as amended and restated through February 22, 2001, among PHH, the lenders
parties thereto and The Chase Manhattan Bank, as administrative agent, and (v)
the Amendment, dated as of February 22, 2001, to the Credit Agreement, dated as
of June 30, 1999, as amended and restated as of June 22, 2000, among Avis, the
lenders parties thereto and The Chase Manhattan Bank, as administrative agent.
VI. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents
and warrants that (a) each of the representations and warranties in Section 3 of
the Credit Agreement shall be, after giving effect to this Amendment, true and
correct in all material respects as if made on and as of the Effective Date
(unless such representations and warranties are stated to relate to a specific
earlier date, in which case such representations and warranties shall be true
and correct in all material respects as of such earlier date) and (b) after
giving effect to this Amendment, no Default or Event of Default shall have
occurred and be continuing.
VII. NO OTHER AMENDMENTS; CONFIRMATION. Except as expressly amended
hereby, the provisions of the Credit Agreement and each of the Fundamental
Documents are and shall remain in full force and effect.
VIII. GOVERNING LAW. This Amendment and the rights and obligations
of the parties hereto shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York.
IX. COUNTERPARTS. This Amendment may be executed by one or more of
the parties hereto on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. This Amendment may be delivered by facsimile transmission of the
relevant signature pages hereof.
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
executed and delivered by their duly authorized officers as of the date first
above written.
CENDANT CORPORATION
By: ______________________________
Name:
Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Lender
By: ______________________________
Name:
Title:
0
XXX-XXXX XXXX X.X. XXX XXXX BRANCH
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
BANK OF AMERICA, N.A.
By: ______________________________
Name:
Title:
THE BANK OF NEW YORK
By: ______________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
By: ______________________________
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: ______________________________
Name:
Title:
00
XXXXXXXXXX XXXX-XXX XXXXXXXXXXX XX, XXX
XXXX BRANCH
By: ______________________________
Name:
Title:
BAYERISCHE LANDESBANK GIROZENTRALE CAYMAN
ISLANDS BRANCH
By: ______________________________
Name:
Title:
CIBC INC.
By: ______________________________
Name:
Title:
CITIBANK, N.A.
By: ______________________________
Name:
Title:
COMERICA BANK
By: ______________________________
Name:
Title:
11
CREDIT LYONNAIS NEW YORK BRANCH
By: ______________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK,
CAYMAN ISLAND BRANCH
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
FIRST HAWAIIAN BANK
By: ______________________________
Name:
Title:
12
THE FUJI BANK, LIMITED
By: ______________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By: ______________________________
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED
NEW YORK BRANCH
By: ______________________________
Name:
Title:
MELLON BANK, N.A.
By: ______________________________
Name:
Title:
THE NORTHERN TRUST COMPANY
By: ______________________________
Name:
Title:
13
PNC BANK, N.A.
By: ______________________________
Name:
Title:
ROYAL BANK OF CANADA
By: ______________________________
Name:
Title:
THE SAKURA BANK, LIMITED
By: ______________________________
Name:
Title:
THE SANWA BANK, LIMITED
By: ______________________________
Name:
Title:
THE SUMITOMO BANK, LIMITED,
By: ______________________________
Name:
Title:
SUMMIT BANK
By: ______________________________
Name:
Title:
00
XXX XXXXX XXXX XXXXXXX
XXX XXXX BRANCH
By: ______________________________
Name:
Title:
U.S. BANK
By: ______________________________
Name:
Title:
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW
YORK BRANCH
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
15
BNP PARIBAS
By: ______________________________
Name:
Title:
YASUDA TRUST & BANKING COMPANY, LTD.
By: ______________________________
Name:
Title:
