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EXHIBIT 4.29
[EXECUTION COPY]
U.S. $215,000,000
AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of August 3, 2000,
(amending and restating the Credit Agreement dated as of December 23, 1997)
among
DOLLAR THRIFTY AUTOMOTIVE GROUP, INC.,
DOLLAR RENT A CAR SYSTEMS, INC.
and
THRIFTY RENT-A-CAR SYSTEM, INC.,
as the Borrowers,
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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AMENDED AND RESTATED
CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of August 3, 2000
(amending and restating the Credit Agreement dated as of December 23, 1997,
as amended prior to the date hereof), 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 Borrowers, the Lenders, the Administrative Agent, the
Syndication Agent and the Arrangers are parties to a Credit Agreement,
dated as of December 23, 1997 (as amended and as in effect immediately
prior to the effectiveness of this Agreement, the "Original Credit
Agreement");
WHEREAS, the Borrowers have requested that the Lenders amend and
restate the Original Credit Agreement (the Original Credit Agreement, as
amended and restated by this Agreement (such capitalized term, and other
capitalized terms used in these recitals, to have the meanings set forth in
Section 1.1), being referred to as the "Credit Agreement");
WHEREAS,
(a) the Subsidiary Borrowers are engaged directly and through
their various Subsidiaries in the business of (i) renting worldwide
for general use passenger automobiles, light and medium duty trucks
and vans, (ii) selling in the United States and Canada new and used
vehicles, (iii) franchising the foregoing business to other Persons,
(iv) providing support and services to franchisees, including (A)
fleet leasing of vehicles and (B) purchasing passenger automobiles,
shuttle buses, vans and light and medium duty trucks and financing the
sale thereof to franchisees and (v) fleet leasing of vehicles to
Persons other than franchisees; and
(b) Thrifty Car Sales is engaged in (i) the business of
franchising businesses in the United States and Canada to sell new and
used vehicles (the "Thrifty Car Sale Franchise Business") and (ii) the
operation, directly or through its Subsidiaries, of
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(A) locations in the United States and Canada in which it sells
(1) vehicles used in the Parent's other businesses and (2) other used
vehicles purchased from time to time to maintain adequate inventory,
as well as (B) locations in the United States and Canada acquired from
franchisees of the Thrifty Car Sale Franchise Business in the ordinary
course of business (such operations, together with the Thrifty Car
Sale Franchise Business, the "Thrifty Car Sale Business");
WHEREAS (a) the Parent has issued 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 were used to
provide collateral for the financing of vehicles by the Parent and its
subsidiaries (the "Primary Equity Offering"), and (b) DaimlerChrysler
Corporation, a Delaware corporation (formerly known as Chrysler Corporation)
("Chrysler"), sold 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, resulted 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, the Parent has implemented through a special purpose, bankruptcy
remote, Wholly Owned Subsidiary, Rental Car Finance Corp., formerly known as
Thrifty Car Rental Finance Corporation ("RCFC"), medium-term note programs
secured by vehicles and related assets, which medium-term note programs replaced
previous financing arrangements with Chrysler Financial Corporation and has
provided and still provides funds for the purchase of additional vehicles
(collectively, the "MTN Program");
WHEREAS, (a) the Parent has implemented through a special purpose,
bankruptcy remote, Wholly Owned Subsidiary, Dollar Thrifty Funding Corp.
("Dollar Thrifty Funding"), a commercial paper program secured by vehicles and
related assets, the proceeds of which were and are 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 has entered
into a 364-day revolving liquidity facility 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
have entered 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 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 "Original Transaction");
WHEREAS, in connection with the amendment and restatement of the Original
Credit Agreement, the Borrowers desire to obtain Commitments from the Lenders
pursuant to which
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(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 set forth in the Amendment Agreement (including Article III
thereof) and hereinafter set forth (including Article VI), to so amend and
restate the Original Credit Agreement and 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");
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):
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"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)(ii) 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
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(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.
"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.
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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.
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"Aggregate Interest Expense" is defined in clause (a) of the definition
of "Non-Vehicle Interest Expense".
"Agreement" means, on any date, this Amended and Restated Credit
Agreement as originally in effect on the Amendment 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 Rate. The Administrative Agent will give notice promptly
to the Borrowers and the Lenders of changes in the Alternate Base Rate.
"Amendment Effective Date" means the date this Agreement becomes
effective pursuant to the terms and conditions of the Amendment Agreement.
"Amendment Effective Date Certificate" means the certificate executed
and delivered by the Borrowers pursuant to Section 3.9 of the Amendment
Agreement, substantially in the form of Exhibit K hereto.
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"Amendment Agreement" means the Amendment Agreement, dated as of August
3, 2000, among, inter alia, the Borrowers, the Lenders, the Administrative
Agent, the Syndication Agent and the Arrangers.
"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
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X >= 2.0 37.5
X >= 1.0, but < 2.0 30.0
X >= .75, but < 1.0 25.0
X < .75 22.5
The Applicable Commitment Fee, at any time from and after the Amendment
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 (or clause (c) of Section 8.1.1 of the Original Credit Agreement)
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 (or clause
(c) of Section 8.1.1 of the Original Credit Agreement), 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
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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 >= .75, but < 1.0 150 50
X < .75 125 37.5
The Applicable Margin, at any time from and after the Amendment
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 (or clause (c) of Section 8.1.1 of the Original
Credit Agreement) 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 (or clause (c) of Section 8.1.1 of the Original Credit Agreement),
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.
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"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 of the
Original Credit Agreement or Section 3.2 of the Amendment Agreement.
"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
Original Effective Date, 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 23, 1997 (which
supplement was entered into in connection with the MTN Program) and (ii) the
Series 1998-1 Supplement dated as of March 4, 1998 (which Supplement was 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.
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"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 (to the extent applicable), would be
classified as capital expenditures; and
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(b) the aggregate amount of all Capitalized Lease Liabilities
incurred during such period;
provided, however, that Capital Expenditures shall not include any such amounts
made or incurred in connection with Permitted Business Acquisitions (including
Permitted Business Acquisitions that are Excepted Dollar Acquisitions).
"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
Original Effective Date, 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
(i) AA by S&P and Aa by Moody's if such mortgage- backed securities are
rated by both such rating agencies or (ii) AA by S&P or Aa by Moody's
if such mortgage-backed securities are rated by only one such rating
agency, 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) (i) direct obligations of any state of the United States
or any subdivision or agency thereof whose short-term unsecured general
obligation debt is rated at least (A) A-1 by S&P and P-1 by Moody's if
such short-term unsecured general obligation debt is rated by both such
rating agencies or (B) A-1 by S&P or P-1 by Moody's if such short- term
unsecured general obligation debt is rated by only one such rating
agency or (ii) any obligation that is (A) rated at least equivalent to
(1) A-1 by S&P and P-1 by Moody's if such obligation is rated by both
such rating agencies or (2) A-1 by S&P or P-1 by Moody's if such
obligation debt is rated by only one such rating agency, and (B) fully
and unconditionally guaranteed by any state, subdivision or agency
whose short-term unsecured general obligation debt is rated at least
equivalent to (1) A-1 by S&P and P-1 by Moody's if such short-term
unsecured general obligation debt is rated by both such rating agencies
or (2) A-1 by S&P or P-1 by Moody's if such short-term unsecured
general obligation debt is rated by only one such rating agency;
(d) commercial paper maturing in not more than 270 days which
is issued by a corporation (other than an Affiliate of any Obligor) and
that is rated at least equivalent to (i) A-1 by S&P and P-1 by Moody's
if such commercial paper is rated by both such rating agencies or (ii)
A-1 by S&P or P-1 by Moody's if such commercial paper is rated by only
one such rating agency;
(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 that is rated at least equivalent to (A) A-1 by S&P
and P-1 by Moody's if such unsecured, uninsured and
unguaranteed obligation is rated by both such rating agencies
or (B) A-1 by S&P or P-1 by Moody's if such unsecured,
uninsured and unguaranteed obligation is rated by only one
such rating agency;
(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);
(iii) has combined capital, surplus and undivided
profits of not less than $500 million and an unsecured,
uninsured and unguaranteed long-term obligation that is rated
at least equivalent to (A) A by S&P and Moody's if such
unsecured, uninsured and unguaranteed long-term obligation is
rated by both such rating agencies or (B) A by S&P or Moody's
if such unsecured, uninsured and unguaranteed long-term
obligation is rated by only one such rating agency; or
(iv) is a Lender;
(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
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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 equivalent to (i) AAm or AAm-G by S&P and P-1 by Moody's
if such money-market fund is rated by both such rating agencies or (ii)
AAm or AAm-G by S&P or P-1 by Moody's if such money-market fund is
rated by only one such rating agency;
(h) repurchase agreements with a term of six months or less
with any institution having short-term, unsecured debt rated at least
equivalent to (i) A-1 by S&P and P-1 by Moody's if such short-term,
unsecured debt is rated by both such rating agencies or (ii) A-1 by S&P
or P-1 by Moody's if such short-term, unsecured debt is rated by only
one such rating agency;
(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 equivalent to (i) A-1 by S&P and P-1 by Moody's if such
uninsured, unsecured and unguaranteed debt is rated by both such rating
agencies or (ii) A-1 by S&P or P-1 by Moody's if such uninsured,
unsecured and unguaranteed debt is rated by only one such rating
agency; 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 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;
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(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 two percent 102% (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);
(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; and
(j) in the case of Investments of a Foreign Subsidiary,
(i) direct obligations of, or obligations the timely
payment of principal of and interest on which is fully and
unconditionally guaranteed by, the national government of the
jurisdiction in which such Foreign Subsidiary is organized,
provided (A) such obligation matures in not more than 270 days
and (B) such national government has an unsecured, uninsured
and unguaranteed long-term obligation which is rated at least
equivalent to (1) A by S&P and Moody's if such unsecured,
uninsured and unguaranteed long-term obligation is rated by
both such rating agencies or (2) A by S&P or Moody's if such
unsecured, uninsured and unguaranteed long-term obligation is
rated by only one such rating agency;
(ii) deposits (including Eurodollar time deposits)
maturing in not more than 365 days of any bank organized in
the jurisdiction in which such Foreign Subsidiary is organized
(including a branch office of a bank organized elsewhere,
which branch office is located in such jurisdiction) which:
(A) has an unsecured, uninsured and
unguaranteed obligation which is rated at least
equivalent to (1) A-1 by S&P and P-1 by Moody's if
such unsecured, uninsured and unguaranteed obligation
is rated by both such rating agencies or (2) A-1 by
S&P or P-1 by Moody's if such unsecured, uninsured
and unguaranteed obligation is rated by only one such
rating agency, or
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(B) 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 (A), or
(C) has combined capital, surplus and
undivided profits of not less than $100 million to
the extent such deposits do not exceed $100,000 and
such deposits are in each case fully insured by an
agency of the national government in which such bank
is organized which meets the requirements set forth
in subclause (j)(i) above, or
(D) has combined capital, surplus and
undivided profits of not less than $500 million and
an unsecured, uninsured and unguaranteed long-term
obligation which is rated at least equivalent to (1)
A by S&P and Moody's if such unsecured, uninsured and
unguaranteed long-term obligation is rated by both
such rating agencies or (2) A by S&P or Moody's if
such unsecured, uninsured and unguaranteed long-term
obligation is rated by only one such rating agency;
or
(E) is a Lender.
"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.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
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<PAGE>
"Change in Control" means
(a) any Person other than the Parent shall own any Capital
Stock of either of Dollar or Thrifty Holdco or otherwise have the
ability to elect any members of the board of directors of Dollar or
Thrifty Holdco;
(b) any Person other than Thrifty Holdco shall own any Capital
Stock of Thrifty or Thrifty Car Sales or otherwise have the ability to
elect any members of the board of directors of Thrifty or Thrifty Car
Sales;
(c) 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;
(d) during any period of twenty-four months occurring
subsequent to the Amendment Effective Date, 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 662/3% 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
(e) 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 fourth recital.
"Chrysler Credit Support Agreement" means the Agreement, dated as of
December 23, 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.
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<PAGE>
"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, replaced (including as replaced with the
Vehicle Supply Agreement, effective as of July 1, 2001, between Chrysler and
DTAG), extended or otherwise modified from time to time in accordance with the
terms hereof and thereof.
"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, replaced (including as replaced
with the Vehicle Supply Agreement, effective as of July 1, 2001, between
Chrysler and DTAG), extended or otherwise modified from time to time in
accordance with the terms hereof and thereof.
"Closing Date" means December 23, 1997, the date on which Credit
Extensions were first made under the Original Credit Agreement.
"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) [INTENTIONALLY OMITTED];
(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.
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<PAGE>
"Commitment Termination Event" means
(a) the occurrence of any Event of Default described in clauses
(a) through (d) of Section 9.1.9; or
(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 fourth 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 "receivables, net"
(excluding accounts receivable pledged to Bankers Trust Company, as the master
collateral agent, or any successor thereto in such capacity under Sections
2.1(a)(iii) and 2.1(b)(iii) of the Master Collateral Agency Agreement), "prepaid
expenses and other assets", "income taxes receivable", and "deferred income tax
assets" 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 (i) "accounts
payable" (excluding outstanding checks included in accounts payable related to
vehicle financing ("float")), (ii) "accrued liabilities", (iii) "income taxes
payable", (iv) "public liability and property damage", (v) "deferred income tax
liabilities" and (vi) any like captions, at such date; provided, however, that
such sum shall only include amounts set forth under the captions described in
clauses (b)(ii), (iv), (v) and such captions that are like the captions
described in such clauses (b)(ii), (iv) and (v), in each case, to the extent and
solely to the extent that such amounts are payable within the next 12 months of
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
15
<PAGE>
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 seventh 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.
"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 sixth 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.
16
<PAGE>
"Cumulative Excess Cash Flow" means, as of any date, the aggregate
amount of Excess Cash Flow for each Fiscal Year subsequent to the 1999 Fiscal
Year and prior to the Fiscal Year in which such date occurs; provided, however,
that for purposes of this and only this definition, "Excess Cash Flow" for each
such Fiscal Year shall be calculated as the difference of clause (a) of the
definition thereof minus clause (b) of the definition thereof with negative
Excess Cash Flow (as so computed) diminishing the Cumulative Excess Cash Flow by
an equal amount and positive Excess Cash Flow increasing the Cumulative Excess
Cash Flow by an equal amount.
"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 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 sixth recital.
"Domestic Office" means, relative to any Lender, the office of such
Lender designated as such opposite its name in Schedule I 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.
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<PAGE>
"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.
"Effective Date" means December 23, 1997.
"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 Moody's; 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
tenth recital.
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<PAGE>
"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 fourth 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 I 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 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.
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<PAGE>
"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.
"Excepted Dollar Acquisition" means a Business Acquisition pursuant to
which Dollar or any of its Subsidiaries acquires a franchisee of Dollar that
operates, at the time of such acquisition, in one of the top fifty airport car
rental locations in the U.S. (as reported by the then most recent edition of
Auto Rental News (or, in the event such publication is no longer published, any
other publication of comparable standing)).
"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) Adjusted 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 aggregate amount paid
by the Parent and its Subsidiaries in cash during such Fiscal Year on account of
Capital Expenditures, other than Vehicle Debt (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), (iii) 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, (iv) the
aggregate amount of all principal payments of Indebtedness, other than Vehicle
Debt, 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)), (v) increases in Consolidated
Working Capital for such Fiscal Year, (vi) the amount of Investments, other than
Cash Equivalent 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, and (vii) the amount of Distributions made during
such Fiscal Year by the Parent in cash.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Property" means the property owned by Thrifty and located at
15 South 2400 West, Salt Lake City, Utah.
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"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 3.3.3.
"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 "2000 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
21
<PAGE>
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, 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.
"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 tenth
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.
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"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
(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
23
<PAGE>
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.
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.
"Initial Reduction Lender" is defined in Section 2.2.4.
24
<PAGE>
"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 of the Original Credit Agreement, a copy of which as amended
and supplemented to the date hereof is attached hereto as Exhibit I, as the same
may be 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, 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;
(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
25
<PAGE>
(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; provided, however, that ownership or similar
interests acquired by such Person with funds constituting compensation
to an employee of such Person, in each case pursuant to an employee
benefit plan being maintained by such Person in accordance with all
applicable laws, shall not constitute Investments hereunder so long as
the financial statements of such Person reflect such Person's
obligation to such employee (as a liability on such Person's balance
sheet or otherwise) with respect to such ownership or similar interest.
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.
26
<PAGE>
"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.
"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 sixth recital.
"Liquidity Obligation" is defined in Section 4.5.
"Loans" is defined in Section 2.1.1.
----- -------------
27
<PAGE>
"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.
"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, the Amendment Agreement and each
other agreement, certificate, document or instrument delivered in connection
with this Agreement or any such other agreement and designated to be a "Loan
Document," 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 December 23, 1997, 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 Moody's 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 or 8.1.8 of the Original
Credit Agreement and Section 8.1.8 of this Agreement, substantially in the form
of Exhibit H-1 or H-2 respectively, attached hereto, as amended, supplemented,
restated or otherwise modified from time to time.
"MTN Program" is defined in the fifth 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.
28
<PAGE>
"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 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
29
<PAGE>
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),
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:
30
<PAGE>
(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.
"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 March 31, 2000, 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 March 31,
2000, 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
March 31, 2000, 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 March 31,
2000, 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.
31
<PAGE>
"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) 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 Original Transaction, the amendment and restatement of the Original
Credit Agreement in the form hereof and the other transactions
contemplated hereby and by the Amendment Agreement;
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
32
<PAGE>
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, choate or
inchoate, sole, joint, several or joint and several, due or to become due,
heretofore or hereafter contracted or acquired) of each 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.
"Original Credit Agreement" is defined in the first recital.
"Original Letters of Credit" means the Letters of Credit (as defined in
the Original Credit Agreement) outstanding on the Amendment Effective Date.
"Original Loan Documents" means the Loan Documents (as defined in the
Original Credit Agreement and in effect immediately prior to the Amendment
Effective Date).
"Original Transaction" is defined in the seventh recital.
"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
33
<PAGE>
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 (a)
Lender Assignment Agreement(s) executed by such Lender and its Assignee
Lender(s) and delivered pursuant to Section 12.11.1 and (b) the terms of Section
2.2.4.
"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 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 Amendment Effective
Date, does not exceed $20,000,000 (provided that the portion
thereof payable in cash in respect of a Business Acquisition
other than an Excepted Dollar Acquisition does not exceed
$10,000,000) and $80,000,000, respectively;
(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 (or Section 8.1.1 of the Original Credit Agreement),
financial statements have been, or are required to have been,
34
<PAGE>
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; and
(c) immediately following the consummation of such Business
Acquisition, at least $25,000,000 of the Commitment Amount shall remain
unused and available.
"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 and certain of the Subsidiary Guarantors pursuant to Section
6.1.13 of the Original Credit Agreement, a copy of which as amended and
supplemented to the date hereof is attached hereto as Exhibit E, as the same may
be amended, supplemented, amended and restated or otherwise modified from time
to time.
"Primary Equity Offering" is defined in the fourth recital.
"Quarterly Payment Date" means the last Business Day of each March,
June, September, and December.
"Rating Agencies" means S&P and Moody's.
"RCFC" is defined in the fifth 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
August 2, 2006, (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.
35
<PAGE>
"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 Charge 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; provided,
however, that, in the event that at any such time the Agents (and their
Affiliates) hold more than 40% 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, have more than 40% of the
Commitment Amount, then "Required Lenders" shall mean (other than for purposes
of determining the Lenders necessary to declare all or any portion of the Loans
to be due and payable, to terminate any Commitment or to demand compliance with
Section 4.7) Lenders holding at least 662/3% 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 at least 662/3% 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 Ratings Services.
---
"SEC" means the Securities and Exchange Commission.
"Secondary Equity Offering" is defined in the fourth recital.
"Secured Parties" means the Lenders, the Issuer, the Agents and each of
their respective successors, transferees and assigns.
"Securities Act" means the Securities Act of 1933, as amended.
36
<PAGE>
"Security Agreement" means the Security Agreement executed and
delivered by the Borrowers and the Subsidiary Guarantors pursuant to Section
6.1.13 of the Original Credit Agreement, a copy of which as amended and
supplemented to the date hereof is attached hereto as Exhibit F, as the same may
be 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, TCL Funding Limited
Partnership, a financing partnership 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 August 2, 2005.
--------------------
"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 II 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 of
the Original Credit Agreement, a copy of which as amended and supplemented to
the date hereof is attached hereto as Exhibit G hereto, as the same may be
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.
-------
"Thrifty Car Sale Business" is defined in clause (b)(ii)(B) of the
third recital.
"Thrifty Car Sale Franchise Business" is defined in clause (b)(i) of
the third recital.
"Thrifty Car Sales" means Thrifty Car Sales, Inc., an Oklahoma
corporation.
"Thrifty Holdco" means Thrifty, Inc., an Oklahoma corporation.
--------------
"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."
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"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.
"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, shuttle buses, 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).
"Welfare Plan" means a "welfare plan", as such term is defined in
Section 3(1) of ERISA.
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"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.
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) and the Amendment Agreement (including
Article III thereof), 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.
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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,
(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.
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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
(a) the amount of Net Disposition Proceeds received by the
Parent or such Subsidiary in any Fiscal Year (commencing with the 2000
Fiscal Year) to the extent (x) 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 and (y) such property and assets (other
than such property and assets so acquired or constructed in any Fiscal
Year that have an aggregate fair market value not exceeding $1,000,000)
are subject to a perfected, first priority Lien in favor of the
Administrative Agent, subject only to Liens permitted by clauses (k),
(l), (m) and (o) of Section 8.2.3; 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
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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 2.2.4. Initial Reductions. In the event that an Initial
Reduction Lender's Percentage of the Commitment Amount is greater than
$30,000,000 and to the extent the Commitment Amount shall not have been reduced
(except to the extent during a period in which an Event of Default was then
continuing) or would not be reduced by an amount exceeding in the aggregate
$60,000,000, any reduction in the Commitment Amount pursuant to Section 2.2.1
shall result in an adjustment to such Lender's Percentage such that after giving
effect to such reduction, such Initial Reduction Lender's adjusted Percentage
shall be equal to the quotient, expressed as a percentage, of
(a) the greater of $30,000,000 and the excess of
(i) the product of (A) such Lender's Percentage
immediately prior to such reduction and (B) the Commitment
Amount immediately prior to such reduction
over
(ii) the product of (A) the amount of such reduction
(the "Reduction Amount") and (B) the Initial Reduction
Percentage (as defined below) of such Lender
divided by
(b) the excess of the Commitment Amount immediately prior to
such reduction over the Reduction Amount;
provided, however, that in the event that the Reduction Amount is not entirely
applied in reducing the percentages of the Initial Reduction Lenders pursuant to
the foregoing and any such Initial Reduction Lender's Percentage (after such
application) of the Commitment Amount is in excess of $30,000,000, the portion
of such Reduction Amount not so applied shall be applied to
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reduce such Initial Reduction Lender's Percentage of the Commitment Amount until
such Lender's Percentage of the Commitment Amount equals $30,000,000. After
adjusting the Percentages of the Initial Reduction Lenders in accordance with
the foregoing, the Percentages of the other Lenders shall be adjusted to equal
the quotient, expressed as a percentage, of
(a) the product of (i) such Lender's percentage immediately
prior to such reduction and (ii) the Commitment Amount immediately
prior to such reduction
over
(b) the excess of the Commitment Amount immediately prior to
such reduction over the Reduction Amount.
Application of such reduction among the Lenders for purposes of Section 3.1(b)
shall be made, first, to each Initial Reduction Lender that has its Percentage
adjusted pursuant to the first sentence of this Section 2.2.4 in an amount equal
to the excess of (a) the product of (i) such Initial Reduction Lender's
Percentage immediately prior to such adjustment and (ii) the Commitment Amount
immediately prior to such reduction over (b) the product of (i) such Initial
Reduction Lender's Percentage immediately after such adjustment and (ii) the
Commitment Amount immediately after such reduction, and, second, to all the
Lenders (including the Initial Reduction Lenders) pro rata in accordance with
their Percentages as adjusted pursuant to the first two sentences of this
Section 2.2.4. For purposes of this Section, the "Initial Reduction Percentage"
shall equal, in the case where the applicable Lender is Credit Suisse First
Boston (together with its Affiliates), 60%, and, in the case where the
applicable Lender is Chase (together with its Affiliates), 40%; provided,
however, that if any Initial Reduction Lender's Percentage of the Commitment
Amount shall at any time be equal to or less than $30,000,000, the Initial
Reduction Percentage of such Initial Reduction Lender shall at all times
thereafter equal zero and the Initial Reduction Percentage of the other Initial
Reduction Lender shall be 100%. "Initial Reduction Lender" shall mean each of
Credit Suisse First Boston (together with its Affiliates) and Chase (together
with its Affiliates).
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,
(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
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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, subject
to Section 2.2.4, 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 after the Amendment Effective Date;
(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 Amendment 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, after the
Amendment Effective Date, and on the Commitment Termination Date.
SECTION 3.3.2. [INTENTIONALLY OMITTED].
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 letter agreement (the
"Fee Letter"), dated August 3, 2000, between the Borrowers and Credit Suisse
First Boston, payable on the Amendment Effective Date and
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thereafter, a non-refundable annual fee in the amount set forth in the Fee
Letter, payable in advance on each anniversary of the Amendment Effective 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, after the Amendment Effective Date, 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
after the Amendment Effective Date, 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 (or such shorter or longer notice as may be acceptable to the
Issuer), in the case of General Letters of Credit, and on not less than 15 nor
more than 30 Business Days' notice (or such shorter or longer notice as may be
acceptable to the Issuer), in the case of Enhancement Letters of Credit
(provided that the Stated Amount of any such Enhancement Letter of Credit need
not be provided to the Issuer in writing until the fifth Business Day prior to
the issuance thereof), 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
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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 (or
such shorter or longer notice as may be acceptable to the Issuer). Upon receipt
of an Issuance Request and, if applicable, an Enhancement Letter of Credit
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 (or such shorter or longer notice as may be acceptable to
the Issuer) 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
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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 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) and the terms of the
Amendment Agreement (including Article III thereof), 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
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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, (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
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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 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.
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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 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
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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
(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.
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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
(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.
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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;
(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;
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(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 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,
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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 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,
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(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 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.
SECTION 4.12. Original Letters of Credit. Each Original Letter of Credit
shall be deemed to be a Letter of Credit issued hereunder on the Amendment
Effective Date.
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
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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 Original Effective Date
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, (ii) Taxes 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) and (iii) taxes imposed by
a taxing authority on or measured by 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.
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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 Original 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 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
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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
(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
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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 (or, if applicable, for its own
account) to the extent such Taxes are imposed as a result of the
failure of such Lender or, as applicable, the Administrative Agent 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, if applicable, for its
own account), or to any Lender, to the extent such Taxes are imposed as a result
of the failure of such Lender or, as applicable, the Administrative Agent 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) and, if the
Administrative Agent is not incorporated under the laws of the United States (or
any State thereof or the District of Columbia), the Administrative Agent 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 or the Administrative Agent, deliver to the
Borrowers and the Administrative Agent (A) two duly completed copies of
United States Internal Revenue Service Form W-8BEN or W-8ECI, 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 or the
Administrative Agent, as the case may be, 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
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and (B) an Internal Revenue Service Form W-8BEN or W-9, or successor
applicable form, as the case may be, certifying that such Lender or the
Administrative Agent, as the case may be, 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"), (B) two accurate and complete original signed copies of
Internal Revenue Service Form W-8BEN, 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 under this Agreement, any Notes or any
other Loan Document (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 (C) in the case of a
Lender that is entitled to receive payments under this Agreement, any
Notes or any other Loan Documents other than payments of interest, two
accurate and complete original signed copies of Internal Revenue
Service Form W- 8BEN, or successor applicable form certifying to such
Lender's entitlement as of the date of such form to receive payments
other than payments of interest under this Agreement, any Notes or any
other Loan Documents without deduction or withholding of any United
States federal income taxes (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;
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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 or the Administrative Agent, as
the case may be, which renders all such forms inapplicable to such Lender or the
Administrative Agent or which would prevent such Lender or the Administrative
Agent from duly completing and delivering any such form with respect to it and
such Lender or the Administrative Agent promptly so advises the Borrower and the
Administrative Agent (in the case of a Lender) 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. For purposes of this Section 5.6, references to a Lender shall
include each Arranger and the Issuer.
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
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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 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
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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 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
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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. [INTENTIONALLY OMITTED].
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);
(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
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(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.
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,
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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 Amendment 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 Amendment
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 Original
Transaction, the amendment and restatement of the Original Credit Agreement in
the form hereof and the other transactions contemplated hereby and by the
Amendment Agreement are within each such Borrower's and each such Obligor's
corporate powers, have been 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
(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 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 Amendment 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
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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 Original Transaction, the amendment and restatement of the
Original Credit Agreement in the form hereof and the other transactions
contemplated hereby and by the Amendment Agreement. 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, 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 3.7 of the
Amendment Agreement 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 in the
financial statements delivered pursuant to clauses (a) and (b) of Section 3.7 of
the Amendment Agreement, 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. 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 (or
Section 8.1.1 of the Original Credit Agreement) have been and will for periods
following the Amendment 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 December 31, 1999.
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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 Amendment
Agreement, the Notes or any other Loan Document, except as disclosed in Item 7.7
("Litigation") of the Disclosure Schedule.
The consummation of the amendment and restatement of the Original
Credit Agreement in the form hereof or any of the other transactions
contemplated hereby or by the Amendment Agreement 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 on the
date hereof, 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 Holdco has no direct Subsidiaries, except those
Subsidiaries (i) which are identified in Item 7.8(c) ("Existing Subsidiaries of
Thrifty Holdco") 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.
(d) Thrifty has no Subsidiaries, except those Subsidiaries (i) which
are identified in Item 7.8(d) ("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.
(e) Thrifty Car Sales has no Subsidiaries, except those Subsidiaries
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
March 31, 2000, or if later, the last day of the most recently completed Fiscal
Quarter with respect to which, pursuant to Section 8.1.1 (or Section 8.1.1 of
the Original Credit Agreement), financial statements 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 III 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 $1,000,000. 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 III does not in the aggregate have a net book value exceeding
$5,000,000.
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 Amendment Effective Date 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
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by such Borrower and such Subsidiary, as the case may be, in material
compliance with all Environmental Laws and in accordance with industry
practices;
(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
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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 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 mark 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 mark, service mark 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 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
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U or X. Terms for which meanings are provided in F.R.S. Board Regulation 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 Subsidiaries in writing to any Agent, the Issuer or any
Lender for purposes of or in connection with this Agreement, the Amendment
Agreement, the Original Credit Agreement or any transaction contemplated hereby
or thereby (including the Original 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 Amendment Effective Date, 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, the Amendment Agreement, the Original Credit Agreement or any
transaction contemplated hereby or thereby (including the Original 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. Original Transaction Documents. (a) As of the Amendment
Effective Date, each of the Chrysler-Dollar Supply Agreement, the
Chrysler-Thrifty Supply Agreement and the Continuing Chrysler Arrangements
(including the Chrysler Credit Support Agreement and the Tax Sharing Agreement)
has been duly executed and delivered by each of the parties thereto and except
in the case of the replacement of the Chrysler-Dollar Supply Agreement and the
Chrysler- Thrifty Supply Agreement specifically referred to in the definition
thereof, is in full force and effect without the existence of any material
default thereunder.
(b) From and after July 1, 2001, the replacement of the Chrysler-Dollar
Supply Agreement and the Chrysler-Thrifty Supply Agreement specifically referred
to in the definition thereof 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 March 31,
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2000, or, if later, the last day of the most recently completed Fiscal
Quarter with respect to which, pursuant to Section 8.1.1 (or Section
8.1.1 of the Original Credit Agreement), 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 March 31,
2000, 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 (or Section 8.1.1 of the Original Credit Agreement),
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,
(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
March 31, 2000, or, if later, the last day of the most recently
completed Fiscal Quarter with respect to which, pursuant to Section
8.1.1 (or Section 8.1.1 of the Original Credit Agreement), 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 March 31,
2000, 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 (or Section 8.1.1 of the Original Credit Agreement),
financial statements have been, or are required to have been, delivered
by the Parent to the Administrative Agent.
SECTION 7.18. Non-Impairment, etc. After giving effect to the Amendment
Agreement, neither the modification and restatement of the Original Credit
Agreement or any other Original Loan Document effected pursuant to the Amendment
Agreement nor the execution, delivery, performance or effectiveness of the
Amendment Agreement, this Agreement or any other Loan Document impairs the
validity, effectiveness or priority of the Liens granted pursuant to the Pledge
Agreement and the Security Agreement (as such terms are defined in the Original
Credit Agreement and as in effect immediately prior to the Amendment Effective
Date, the "Original Security Documents"), and such Liens continue unimpaired
with the same priority to secure repayment of all Obligations, whether
heretofore or hereafter incurred. Neither the modification and restatement of
the Original Credit Agreement or the other Original Loan
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Documents effected pursuant to the Amendment Agreement nor the execution,
delivery, performance or effectiveness of the Amendment Agreement, this
Agreement or any other Loan Document requires that any new filings be made or
other action taken to perfect or to maintain the perfection of such Liens. Under
the foregoing circumstances, the position of the Administrative Agent and the
Lenders with respect to such Liens, the Collateral (as defined in the Original
Security Documents) in which a security interest was granted pursuant to the
Original Security Documents, and the ability of the Administrative Agent to
realize upon such Liens pursuant to the terms of the Security Agreement and the
Pledge Agreement have not been adversely affected in any material respect by the
modification of the Original Credit Agreement or any other Original Loan
Documents effected pursuant to the Amendment Agreement or by the execution,
delivery, performance or effectiveness of the Amendment Agreement, this
Agreement or any other Loan Document.
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, as of the end of such Fiscal Quarter and (ii)
consolidated statements of operations and cash flow of the Parent and
its Subsidiaries 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 case for such
Fiscal Year, in each case certified (without any Impermissible
Qualification)
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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 Holdco and its Subsidiaries
including therein a consolidated balance sheet of Thrifty Holdco and
its Subsidiaries as of the end of such Fiscal Year and consolidated
statements of operations and cash flow of Thrifty Holdco 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 the first three Fiscal Quarters of each Fiscal Year of the
Parent and within 90 days after the end of the last Fiscal Quarter of
each Fiscal Year of the Parent, 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
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which the Parent or any of its Subsidiaries files with the SEC or any
national securities exchange;
(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
Holdco and its Subsidiaries, prepared on a monthly basis for such
Fiscal Year, and (B) a consolidating projected balance sheet of the
Parent and its direct Subsidiaries, prepared on an annual basis for
such Fiscal Year, and (ii)(A) consolidated statements of operations and
cash flow of each of the Parent and its Subsidiaries, Dollar and its
Subsidiaries and Thrifty Holdco and its Subsidiaries, prepared on a
monthly basis for such Fiscal Year, and (B) consolidating statements of
operations and cash flow of the Parent and its direct Subsidiaries,
prepared on an annual basis for such Fiscal Year;
(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 (other than
agreements with respect to Vehicle Debt) to which the Parent or any
Subsidiary of the Parent is a party and with a commitment or
outstandings exceeding $5,000,000, 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);
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provided, however, that the Borrowers shall have complied with the
requirements of this clause (j) if such notices, agreements or
documents have been either (x) furnished to the Administrative Agent or
(y) publicly filed with the SEC and the Administrative Agent has been
notified of such filing of such notices, agreements or documents;
(k) on or within 30 days prior to October 23, 2002, a
certificate from an Authorized Officer of the Parent, dated as of such
date, in which certificate such Authorized Officer shall certify that
all actions necessary for the continued perfection of the
Administrative Agent's Liens on all Collateral (as defined in each Loan
Document) for the period from the fifth anniversary of the Closing Date
until the Stated Maturity Date have been taken (including all
recordings, registerings, filings, re-recordings, re- registerings and
refilings of all financing statements, continuation statements or other
instruments of further assurance as is necessary to ensure such
continued perfection), together with, if requested by the
Administrative Agent, opinion(s) of counsel reasonably acceptable to
the Administrative Agent stating that, in the opinion of such counsel,
all actions necessary for the continued perfection of the
Administrative Agent's Liens on such Collateral for the period from the
fifth anniversary of the Closing Date until the Stated Maturity Date
have been taken and that no further action (other than as specified in
such opinion) needs to be taken (under then current law) to ensure the
continued perfection of such Liens during such period; and
(l) such other information respecting the condition or
operations, financial (including consolidating balance sheets and
statements of operations and cash flow of the Parent and its direct
Subsidiaries, in each case, as of the end of any Fiscal Quarter) 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.
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
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(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 $2,000,000 per occurrence (or $1,000,000 per occurrence, if reasonably
requested by the Administrative Agent) 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 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
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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;
(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
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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 tenth 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
$1,000,000 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 $5,000,000, 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 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;
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(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 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
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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 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 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)
and (ii) if applicable, the Intercompany Note referred to in the
preceding clause (a)(ii);
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(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 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 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 Administrative Agent, dated a
date reasonably near (but prior to) the date of any such
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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
(a) those business activities described in the third recital
(and such activities as may be incidental or related thereto (including
the operation of commercial parking lots)); provided, however, that
(i) the Borrowers and their respective Subsidiaries
may not purchase passenger automobiles, shuttle buses, vans
and light and medium duty trucks for the purpose of reselling
such motor vehicles to their franchisees with financing
provided by the Borrowers and their Subsidiaries, except to
the extent (A) the number of such motor vehicles subject to
such program do not exceed (1) in the 2000 Fiscal Year or 2001
Fiscal Year, 2,000 of such motor vehicles at any one time and
(2) in each Fiscal Year thereafter, 3,000 of such motor
vehicles at any one time, so long as the average amount paid
by the Borrower and such
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Subsidiaries for each such motor vehicle so purchased does not
exceed (aa) in the 2000 Fiscal Year, $20,000 and (bb) in each
Fiscal Year thereafter, 105% of the average amount permitted
during the prior Fiscal Year and (B) (1) the applicable
Borrower or Subsidiary has a first priority perfected security
interest in such motor vehicles (including by means of a
notation of such Borrower's or Subsidiary's Lien on the
certificate of title relating to such motor vehicles to the
extent necessary to perfect such Lien) and (2) the
Administrative Agent has received an assignment of such
security interest as well as a first priority perfected
security interest in the rights of such Borrower or Subsidiary
under the agreements and documents entered into and delivered
in connection with such sale and the financing thereof (but
not a notation of the Administrative Agent's Lien on the
certificate of title relating to such motor vehicles);
(ii) the Borrowers and their respective Subsidiaries
may only engage in fleet leasing of vehicles to Persons other
than franchisees so long as the aggregate amount of revenues
therefrom in any Fiscal Year does not exceed 21/2% of the
aggregate amount of the consolidated revenues of the Parent
and its Subsidiaries in the Fiscal Year preceding such Fiscal
Year); and
(iii) Thrifty Car Sales and its Subsidiaries may not
operate locations in the United States and Canada (A) from
which they sell at any time more than (1) for any one
location, 200 vehicles or (2) for all locations, 1500 vehicles
that, in each case, were used in a business other than the
Parent's other businesses and (B) acquired from franchisees of
the Thrifty Car Sale Franchise Business unless such locations
were acquired (1) in the ordinary course of business
consistent with the past practice of Thrifty acquiring
franchisees of its rent-a-car business in circumstances where
such franchisees have discontinued operations and Thrifty
acquires such franchisee's operation with the intention of
re-franchising the same and (2) in accordance with the terms
of this Agreement; and
(b) 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 September 15, 2000, 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 Amendment Effective Date
which is identified in Item 8.2.2(c) ("Ongoing Indebtedness") of the
Disclosure Schedule and extensions, renewals, refinancings and
replacements thereof; provided, however, that after giving effect to
any such extension, renewal, refinancing or replacement, (i) the
principal amount of outstanding Indebtedness is not increased above the
amount reflected in Item 8.2.2(c) of the Disclosure Schedule, (ii)
neither the tenor nor the average life thereof is reduced, (iii) the
respective obligor or obligors shall be the same on the Indebtedness
outstanding as a result of any such extension, renewal, refinancing or
replacement as on the Indebtedness being extended, renewed, refinanced
or replaced, (iv) the security, if any, for the Indebtedness
outstanding as a result of any such extension, renewal, refinancing or
replacement shall be the same as that for the Indebtedness being
extended, renewed, refinanced or replaced (except to the extent that
less security is granted to holders of the Indebtedness outstanding as
a result of any such extension, renewal, refinancing or replacement),
(v) the holders of the Indebtedness outstanding as a result of any such
extension, renewal, refinancing or replacement are not afforded
covenants, defaults, rights or remedies more materially burdensome to
the obligor or obligors than those contained in the Indebtedness being
extended, renewed, refinanced or replaced and (vi) the Indebtedness
outstanding as a result of any such extension, renewal, refinancing or
replacement is subordinated to the same degree, if any, as the
Indebtedness being extended, renewed, refinanced or replaced;
(d) Indebtedness in respect of Surety Bonds in an aggregate
amount not to exceed (i) during the 2000 Fiscal Year, $150,000,000,
(ii) during the 2001 Fiscal Year, $160,000,000, (iii) during the 2002
Fiscal Year, $170,000,000 and (iv) during the 2003 Fiscal Year and each
Fiscal Year thereafter, $175,000,000;
(e) Indebtedness in respect of the Chrysler Letters of Credit
in an aggregate amount not to exceed $50,000,000;
(f) [INTENTIONALLY OMITTED];
(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 $100,000,000;
(i) Indebtedness of Foreign Subsidiaries incurred (A) for
working capital purposes and (B) in respect of letters of credit, to
the extent the aggregate principal amount of such working capital
Indebtedness, together with the aggregate Stated Amount and outstanding
reimbursement obligations with respect to such letters of credit, does
not exceed at any time outstanding $3,000,000;
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(j) Indebtedness in an aggregate principal amount not to
exceed $10,000,000 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;
(n) Hedging Obligations of a Subsidiary of the Parent pursuant
to agreements designed to protect such Subsidiary 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 (i) 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 or (ii) evidenced by a promissory note
in the principal amount of $51,076,666 payable to Thrifty in connection
with the sale of the Capital Stock of RCFC to the Parent;
(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 Borrower owing to RCFC in respect of amounts advanced
by RCFC to a 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
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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
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 acquirer of such assets (in each
case, other than Indebtedness solely consisting of Vehicle Debt), 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 $10,000,000;
(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 August 2, 2006, 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
$20,000,000;
(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 Subsidiaries of the Parent in an
aggregate amount not to exceed (i) during the 2000 Fiscal Year,
$10,000,000, (ii) during the 2001 Fiscal Year, $15,000,000, or (iii)
during the 2002 Fiscal Year or any Fiscal Year thereafter, $20,000,000;
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.
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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 Amendment Effective Date to
secure payment of Indebtedness of the type permitted and described in
clause (c) of Section 8.2.2 and extensions and renewals of such Liens
so long as such any such extension or renewal does not relate to any
collateral (or replacement thereof) not covered by the Lien as in
effect immediately prior to any such extension or renewal;
(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 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;
(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;
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(j) Liens existing on specific assets at the time acquired by
a Subsidiary of the Parent 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 the Parent or any other
Subsidiary of the Parent 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 (i) in
connection with workmen's compensation, unemployment insurance or other
forms of governmental insurance or benefits or (ii) to secure (A)
performance of tenders, statutory obligations, leases and contracts
(other than for borrowed money) entered into in the ordinary course of
business, (B) obligations on surety or appeal bonds or (C) obligations
under leases of Vehicles not constituting Capitalized Lease Liabilities
to the extent such Vehicles do not exceed the Applicable Percentage of
the aggregate number of Vehicles utilized by the Subsidiary Borrowers
and their Subsidiaries and such Liens are limited to the receivables,
accounts and other rights arising from the rental, sale or other
disposition of such Vehicles (for purposes of this clause (m), the
"Applicable Percentage" shall mean (x) if the Net Worth of the Parent
as of the last day of the most recently completed Fiscal Quarter with
respect to which, pursuant to Section 8.1.1 (or Section 8.1.1 of the
Original Credit Agreement), financial statements (and the related
Compliance Certificate) have been delivered by the Parent is equal to
(or greater than) 115% of the minimum Net Worth required to satisfy
clause (a) of Section 8.2.4 as of the last day of such most recently
completed Fiscal Quarter, 15%, (y) if the Net Worth of the Parent as of
the last day of the most recently completed Fiscal Quarter with respect
to which, pursuant to Section 8.1.1 (or Section 8.1.1 of the Original
Credit Agreement), financial statements (and the related Compliance
Certificate) have been delivered by the Parent is equal to (or greater
than) 110% of, but less than 115% of, the minimum Net Worth required to
satisfy clause (a) of Section 8.2.4 as of the last day of such most
recently completed Fiscal Quarter, 12%, and (z) otherwise, 8%;
provided, that any decrease in the Applicable Percentage shall not take
effect until the forty-fifth day following the day the Parent has
delivered the financial statements (and the related Compliance
Certificate) that results in such decrease);
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(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
(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; and
(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 2000 Fiscal Year, to be less than the
amount set forth opposite such Fiscal Quarter below:
Fiscal Quarter Amount
The second and third Fiscal
Quarters of the 2000 Fiscal
Year $75,000,000
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Fiscal Quarter Amount
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 last
day of the second Fiscal
Quarter of the 2000 Fiscal
Year to (but excluding) the
last day of the second Fiscal
Quarter of the 2002 Fiscal Year 3.75:1.00
From (and including) the last
day of the second Fiscal
Quarter of the 2002 Fiscal
Year (but excluding) the
last day of the second Fiscal
Quarter of the 2004 Fiscal Year 3.50:1.00
From (and including) the last
day of the second Fiscal
Quarter of the 2004 Fiscal
year (and at all times
thereafter) 3.25:1.00
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(d) the Interest Coverage Ratio, as of the last day of each
Fiscal Quarter, commencing with the second Fiscal Quarter of the 2000
Fiscal Year, to be less than the ratio set forth opposite such Fiscal
Quarter below:
Fiscal Quarter Ratio
The second Fiscal Quarter of 4.00:1.00
the 2000 Fiscal Year
and each Fiscal Quarter
thereafter
(e) the Fixed Charge Coverage Ratio, as of the last
day of each Fiscal Quarter, commencing with the third Fiscal
Quarter of the 2000 Fiscal Year, to be less than the ratio set
forth opposite such Fiscal Quarter below:
Fiscal Quarter Ratio
The third Fiscal Quarter of the 1.10:1.00
2000 Fiscal Year and
each Fiscal Quarter
thereafter
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 Amendment Effective Date and
identified in Item 8.2.5(a) ("Ongoing Investments") of the Disclosure
Schedule and extensions, replacements of Investments in the same Person
or renewals thereof (provided that no such extension, replacement or
renewal shall be permitted if it would (x) increase the amount of such
Investment at the time of such extension, replacement or renewal above
the amount reflected in Item 8.2.5(a) of the Disclosure Schedule or (y)
result in a Default or Event of Default);
(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;
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(e) (i) Investments by a Subsidiary Borrower or a Subsidiary
Guarantor 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 a Subsidiary
Guarantor, 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;
(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 2000
Fiscal Year) does not exceed $11,000,000 and the aggregate amount of
such Investments at any time outstanding does not exceed $20,000,000 in
any Fiscal Year (commencing with the 2000 Fiscal Year and increasing by
$1,000,000 in each Fiscal Year thereafter) (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, Thrifty or Thrifty
Car Sales
(i) by way of (A) guaranties or (B) obtaining letters
of credit for the benefit of beneficiaries selected by any
such franchisees and with respect to which any such franchisee
is the account party or is benefitted and the Parent or any of
its Subsidiaries is obligated to reimburse the issuer thereof
for drawings thereunder, in each case, in respect 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 the sum of (x) the
guaranteed obligations payable thereunder (other than any
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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) and (y) the aggregate stated amounts of such letters
of credit, together with unreimbursed obligations in respect
thereof, does not exceed at any time $10,000,000 (exclusive of
Investments permitted by clause (a) above);
(ii) by way of the making of loans or advances to
such franchisees or guaranties for their benefit or otherwise
to the extent such Investments do not exceed in the aggregate
at any time $12,000,000 (exclusive of Investments permitted by
clause (a) above); or
(iii) to the extent permitted under clause (a)(i) of
Section 8.2.1;
provided, however, that the aggregate amount of the Investments made
pursuant to clauses (k)(i) and (k)(ii) that were funded in cash and
that are outstanding at any time does not exceed $5,000,000;
(l) other Investments in an aggregate amount at any time not to
exceed $10,000,000;
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
(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
Amendment 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
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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, and purchase or redeem any
shares of any class of its Capital Stock held by, its stockholders in
any Fiscal Year, so long as
(i) both before and after giving effect to any such
payment, purchase or redemption, 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 Distribution, purchase
or redemption 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 Section 8.1.1 (or Section 8.1.1 of the
Original Credit Agreement) 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, purchase or redemption is to be made, and
(iii) the aggregate amount of
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(A) 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
----------- ------
2000 Fiscal Year The lesser of (i) 25% of Excess Cash
Flow for the 1999 Fiscal Year and
(ii) $5,000,000
2001 Fiscal Year The lesser of (i) 25% of Excess Cash
Flow for the 2000 Fiscal Year and
(ii) $8,000,000
2002 Fiscal Year The lesser of (i) 25% of Excess Cash
Flow for the 2001 Fiscal Year and
(ii) $11,000,000
2003 Fiscal Year The lesser of (i) 25% of Excess Cash
Flow for the 2002 Fiscal Year and
(ii) $14,000,000
2004 Fiscal Year The lesser of (i) 25% of Excess Cash
Flow for the 2003 Fiscal Year and
(ii) $17,000,000
2005 Fiscal Year The lesser of (i) 25% of Excess Cash
Flow for the 2004 Fiscal Year and
(ii) $20,000,000; or
(B) such purchase or redemption does not
exceed the excess of (1) the sum of (x) $15,000,000
and (y) 25% of Cumulative Excess Cash Flow over (2)
the sum of (x) the aggregate amount of Distributions
made prior to such date and subsequent to January 1,
2000 by the Parent and (y) the aggregate amount of
all other purchases and redemptions consummated prior
to such purchase or redemption;
(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,
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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
(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 $50,000,000 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
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(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 or clauses (e) through (i) of Section
8.2.5;
(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 and (B) in the event the fair market value of such assets
exceeds $5,000,000, the determination of the Board of Directors of the
Parent or a committee thereof 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) is an
Investment that would be 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 $10,000,000; 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
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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).
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
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(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.
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
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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 and (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. 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), (h)
or (j) of Section 8.2.5 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.
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.
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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), (g) or (k) 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 $5,000,000, 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 and/or require the cash collateralization 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 or in the case of any letter of credit,
to be cash collateralized prior to its stated expiry dated (including pursuant
to any right of such holder, holders, trustee or agent to 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 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 $5,000,000 (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
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(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.
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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 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,
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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 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.
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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 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
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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;
(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,
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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
(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
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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
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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 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
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(b) Section 11.3 and Section 11.4 shall continue to inure to its
benefit.
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 5.1 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.
SECTION 11.9. Subagents. At any time, for the purposes of complying
with any legal requirements, restrictions or conditions in any jurisdiction in
which any particular act or acts are to be performed, or for the purposes of
obtaining a judgment in any jurisdiction of either a judgment already obtained
or the enforcement of any of the provisions of this Agreement or any other Loan
Document or for any other similar reason, the Administrative Agent shall have
the
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power, upon notice in writing to the Parent, to appoint any Person to act as its
subagent with such of the rights (including the right to remuneration and
indemnity), powers, duties and obligations that the Administrative Agent has
hereunder or under any other Loan Document as may be conferred or imposed by the
instrument of appointment; provided, however, that such subagent shall not be
entitled to exercise any greater trusts, powers, authorities and discretion
than, or to do anything which could not have been done by, the Administrative
Agent pursuant to this Agreement or any other Loan Document. Any subagent so
appointed may be removed by the Administrative Agent in like manner. Such
reasonable remuneration as the Administrative Agent may pay to any such Person,
together with any reasonable costs, charges, liabilities and expenses incurred
by it in performing its functions as such subagent, shall for purposes of this
Agreement and each other Loan Document, be treated as costs, charges,
liabilities and expenses incurred by the Administrative Agent.
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 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;
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(d) modify Section 2.2.4 shall be made without the consent
of Credit Suisse First Boston and Chase;
(e) affect adversely the rights or obligations of the Issuer
qua the Issuer shall be made without the consent of the Issuer;
or
(f) 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 or
maintenance of any CP Program or MTN Program, without the consent of any Lender,
enter into any amendment, supplement or other modification to any Enhancement
Letters of Credit or Enhancement Letter of Credit Application and Agreement, 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
such CP Program or MTN Program; 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 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 I
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.
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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 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
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(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 Original Transaction, the amendment and restatement of the
Original Credit Agreement in the form hereof, any of the other
transactions contemplated hereby or by the Amendment Agreement 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 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
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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 pursuant to the terms of the Amendment Agreement.
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:
(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.
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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
(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.
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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 mark 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.
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
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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,
(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.
126
<PAGE>
Each Borrower acknowledges and agrees that each Participant, for purposes of
Sections 5.3, 5.4, 5.5, 5.6, 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 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,
127
<PAGE>
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 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
128
<PAGE>
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]
129
<PAGE>
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: 5330 East 31st Street
Tulsa, OK 74135
Facsimile No.: (918) 669-2301
Attention: Pamela S. Peck
DOLLAR RENT A CAR SYSTEMS, INC.
By:
--------------------------------------------------
Name:
Title:
Address: 5330 East 31st Street
Tulsa, OK 74135
Facsimile No.: (918) 669-3046
Attention: Vicki J. Vaniman
S-1
1
<PAGE>
THRIFTY RENT-A-CAR SYSTEM, INC.
By:
--------------------------------------------------
Name:
Title:
Address: 5310 East 31st Street
Tulsa, OK 74135
Facsimile No.: (918) 669-2596
Attention: Randall J. Holder
CREDIT SUISSE FIRST BOSTON, as the
Administrative Agent and as an Arranger
By:
--------------------------------------------------
Name:
Title:
By:
--------------------------------------------------
Name:
Title:
Address: Eleven Madison Avenue
13th Floor
New York, NY 10010-3629
Facsimile No.: (212) 325-8304
Attention: Andrea Chicas
S-2
2
<PAGE>
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:
S-3
3
<PAGE>
LENDERS:
CREDIT SUISSE FIRST BOSTON
By:
--------------------------------------------------
Name:
Title:
By:
--------------------------------------------------
Name:
Title:
S-4
4
<PAGE>
THE CHASE MANHATTAN BANK
By: _______________________
Name:
Title:
S-5
5
<PAGE>
BANK OF OKLAHOMA, NATIONAL
ASSOCIATION
By: _______________________
Name:
Title:
S-6
6
<PAGE>
MIDFIRST BANK
By: _______________________
Name:
Title:
S-7
7
<PAGE>
THE BANK OF NOVA SCOTIA
By: _______________________
Name:
Title:
S-8
8
<PAGE>
TEXTRON FINANCIAL CORPORATION
By: _______________________
Name:
Title:
S-9
9
<PAGE>
DEUTSCHE BANK AG, NEW YORK
BRANCH AND/OR CAYMAN
ISLANDS BRANCH
By: _______________________
Name:
Title:
By: _______________________
Name:
Title:
S-10
10
<PAGE>
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES
By: _______________________
Name:
Title:
S-11
11
<PAGE>
LOCAL OKLAHOMA BANK
By: _______________________
Name:
Title:
S-12
12
<PAGE>
BANK OF TOKYO - MITSUBISHI
TRUST COMPANY
By: _______________________
Name:
Title:
S-13
13
<PAGE>
ARVEST STATE BANK
By: _______________________
Name:
Title:
S-14
14
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE I
LENDER INFORMATION
<S> <C> <C> <C>
LENDER PERCENTAGE DOMESTIC OFFICE EURODOLLAR OFFICE
------ ---------- --------------- -----------------
Credit Suisse First Boston 16.7441860465% Credit Suisse First Boston Credit Suisse First Boston
Eleven Madison Avenue Eleven Madison Avenue
New York, NY 10010-3629 New York, NY 10010-3629
Telecopier: 212-325-6677 Telecopier: 212-325-6677
Attn: Andrea Chicas Attn: Andrea Chicas
The Chase Manhattan Bank 15.8139534884% Chase Manhattan Bank Chase Manhattan Bank
240 Park Avenue 48th Floor 240 Park Avenue 48th Floor
New York, NY 10017 New York, NY 10017
Telecopier: 212-270-5659 Telecopier: 212-270-5659
Attn: Karen Sharf Attn: Karen Sharf
Bank of Oklahoma, National 11.6279069767% Bank of Oklahoma, N.A. Bank of Oklahoma, N.A.
Association Bok Tower 8SE Bok Tower 8SE
One Williams Center One Williams Center
Tulsa, OK 74192 Tulsa, OK 74192
Telecopier: 918-295-0400 Telecopier: 918-295-0400
Attn: Robert D Mattax Attn: Robert D Mattax
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C> <C>
LENDER PERCENTAGE DOMESTIC OFFICE EURODOLLAR OFFICE
------ ---------- --------------- -----------------
Deutsche Bank AG New York 1.6279069767% Deutsche Bank AG New York Branch Deutsche Bank AG New York Branch
Branch and/ or Cayman Islands and/or Cayman Islands Branch and/or Cayman Islands Branch
Branch 31 West 52nd Street 31 West 52nd Street
New York, New York 10019 New York, New York 10019
Facsimile: 212-469-2930 Facsimile: 212-469-2930
Attn: Hans - Josef Thiele Attn: Hans - Josef Thiele
Bank of Tokyo - Mitsubishi, Trust 9.3023255814% Bank of Tokyo-Mitsubishi Trust Co. BankofTokyo-Mitsubishi Trust Co.
Company 1251 Avenue of the Americas 1251 Avenue of the Americas
New York, NY 10002-1104 New York, NY 10002-1104
Facsimile: 212-782-6402 Facsimile: 212-782-6402
Attn: Kathleen McGroary Attn: Kathleen McGroary
Dresdner Bank AG, New York 6.9767441860% Dresdner Bank NA Dresdner Bank NA
and Grand Cayman Branches 75 Wall Street 75 Wall Street
New York, NY 10005-2889 New York, NY 10005-2889
Facsimile: 212-429-2524 Facsimile: 212-429-2524
Attn: Ken Hamilton Attn: Ken Hamilton
Local Oklahoma Bank 6.9767441860% Local Oklahoma Bank Local Oklahoma Bank
2550 East 73rd Street, Suite 200 2550 East 73rd Street, Suite 200
Tulsa, OK 74136 Tulsa, OK 74136
Facsimile: 918-497-2497 Facsimile: 918-497-2497
Attn: Elisabeth Blue Attn: Elisabeth Blue
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C> <C>
LENDER PERCENTAGE DOMESTIC OFFICE EURODOLLAR OFFICE
------ ---------- --------------- -----------------
MidFirst Bank 6.9767441860% MidFirst Bank MidFirst Bank
321 S. Boston Suite 104 321 S. Boston Suite 104
Tulsa, OK 74103 Tulsa, OK 74103
Facsimile: 918-587-4058 Facsimile: 918-587-4058
Attn: Nicholas E. Fitzgerald Attn: Nicholas E. Fitzgerald
The Bank of Nova Scotia 4.6511627907% The Bank of Nova Scotia The Bank of Nova Scotia
600 Peachtree Street, Suite 2700 600 Peachtree Street, Suite 2700
Atlanta, GA 30308 Atlanta, GA 30308
Facsimile: 404-888-8998 Facsimile: 404-888-8998
Attn: Viki Gibson Attn: Viki Gibson
Arvest State Bank 4.6511627907% Arvest State Bank Arrest State Bank
South Garnett Road South Garnett Road
Tulsa, OK 74146 Tulsa, OK 74146
Facsimile: 918-631-6820 Facsimile: 918-631-6820
Attn: Michael E. Gibson Attn: Michael E. Gibson
Textron Financial Corporation 4.6511627907% Textron Financial Corp. Textron Financial Corp.
830 Post Road East 830 Post Road East
Westport, CT 06880 Westport, CT 06880
Facsimile: 203-454-3784 Facsimile: 203-454-3784
Attn: Stewart Schulman Attn: Stewart Schulman
</TABLE>
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<TABLE>
<CAPTION>
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
<S> <C> <C>
1.1. Defined Terms.......................................................................................3
1.2. Use of Defined Terms...............................................................................40
1.3. Cross-References...................................................................................40
1.4. Accounting and Financial Determinations............................................................40
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES AND NOTES
2.1. Commitments........................................................................................40
2.1.1. Loan Commitment....................................................................................40
2.1.2. Commitment to Issue Letters of Credit..............................................................41
2.1.3. Lenders Not Permitted or Required to Make Loans or Issue Letters of Credit
Under Certain Circumstances....................................................................41
2.2. Reduction of Commitment Amounts....................................................................42
2.2.1. Optional...........................................................................................42
2.2.2. Mandatory..........................................................................................42
2.2.3. Corresponding Reductions...........................................................................43
2.2.4. Initial Reductions.................................................................................43
2.3. Borrowing Procedure................................................................................44
2.4. Continuation and Conversion Elections..............................................................45
2.5. Funding............................................................................................45
2.6. Loan Accounts......................................................................................46
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments.........................................................................46
3.2. Interest Provisions................................................................................48
3.2.1. Rates..............................................................................................48
3.2.2. Post-Maturity Rates................................................................................48
3.2.3. Payment Dates......................................................................................48
3.3. Fees...............................................................................................49
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<S> <C> <C>
3.3.1. Commitment Fees....................................................................................49
3.3.2. [INTENTIONALLY OMITTED]............................................................................49
3.3.3. Administrative Agent's Fee.........................................................................49
3.3.4. Letter of Credit Face Amount Fee...................................................................50
3.3.5. Letter of Credit Issuing Fee.......................................................................50
3.3.6. Letter of Credit Administrative Fee................................................................50
ARTICLE IV
LETTERS OF CREDIT
4.1. Issuance Requests..................................................................................50
4.2. Issuances and Extensions...........................................................................52
4.3. Expenses...........................................................................................52
4.4. Other Lenders' Participation.......................................................................52
4.5. Disbursements......................................................................................53
4.6. Reimbursement......................................................................................54
4.7. Deemed Disbursements...............................................................................54
4.8. Nature of Reimbursement Obligations................................................................55
4.9. Indemnity..........................................................................................56
4.10. Borrowers' Guaranty of Reimbursement Obligations of its Subsidiaries...............................56
4.10.1. Guaranty...........................................................................................56
4.10.2. Acceleration of Guaranty...........................................................................57
4.10.3. Guaranty Absolute, etc.............................................................................57
4.10.4. Reinstatement, etc.................................................................................58
4.10.5. Waiver, etc........................................................................................59
4.10.6. Postponement of Subrogation, etc...................................................................59
4.10.7. Right of Contribution..............................................................................59
4.10.8. Successors, Transferees and Assigns; Transfers of Notes, etc.......................................60
4.11. No Bankruptcy Petition Against RCFC or Dollar Thrifty Funding......................................60
4.12. Original Letters of Credit.........................................................................61
ARTICLE V
CERTAIN EURODOLLAR RATE AND OTHER PROVISIONS
5.1. Eurodollar Rate Lending Unlawful...................................................................61
5.2. Deposits Unavailable...............................................................................61
5.3. Increased Eurodollar Loan Costs, etc...............................................................61
5.4. Funding Losses.....................................................................................62
5.5. Increased Capital Costs............................................................................63
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Section Page
<S> <C> <C>
5.6. Taxes..............................................................................................63
5.7. Payments, Computations, etc........................................................................66
5.8. Sharing of Payments................................................................................67
5.9. Setoff.............................................................................................68
5.10. Replacement of Lender..............................................................................68
ARTICLE VI
CONDITIONS PRECEDENT
6.1. [INTENTIONALLY OMITTED]............................................................................69
6.2. All Credit Extensions..............................................................................69
6.2.1. Compliance with Warranties, No Default, etc........................................................69
6.2.2. Credit Request.....................................................................................70
6.2.3. Enhancement Letters of Credit......................................................................70
6.2.4. Satisfactory Legal Form............................................................................70
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1. Organization, etc..................................................................................71
7.2. Due Authorization, Non-Contravention, etc..........................................................71
7.3. Government Approval, Regulation, etc...............................................................72
7.4. Validity, etc......................................................................................72
7.5. Financial Information; Absence of Undisclosed Liabilities..........................................72
7.6. No Material Adverse Change.........................................................................73
7.7. Litigation, Labor Controversies, etc...............................................................73
7.8. Subsidiaries.......................................................................................73
7.9. Ownership of Properties............................................................................74
7.10. Taxes..............................................................................................74
7.11. Pension and Welfare Plans..........................................................................74
7.12. Environmental Warranties...........................................................................75
7.13. Intellectual Property..............................................................................76
7.14. Regulations U and X................................................................................77
7.15. Accuracy of Information............................................................................77
7.16. Original Transaction Documents.....................................................................77
7.17. Non-Guarantor Subsidiaries.........................................................................78
7.18. Non-Impairment, etc................................................................................79
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<CAPTION>
Section Page
ARTICLE VIII
COVENANTS
<S> <C> <C>
8.1. Affirmative Covenants..............................................................................79
8.1.1. Financial Information, Reports, Notices, etc.......................................................79
8.1.2. Compliance with Laws, Material Agreements, etc.....................................................82
8.1.3. Maintenance of Properties..........................................................................83
8.1.4. Insurance..........................................................................................83
8.1.5. Books and Records..................................................................................84
8.1.6. Environmental Covenant.............................................................................84
8.1.7. Use of Proceeds....................................................................................85
8.1.8. Additional Real Property...........................................................................85
8.1.9. Future Subsidiaries................................................................................86
8.2. Negative Covenants.................................................................................89
8.2.1. Business Activities................................................................................89
8.2.2. Indebtedness.......................................................................................90
8.2.3. Liens..............................................................................................94
8.2.4. Financial Condition................................................................................96
8.2.5. Investments........................................................................................98
8.2.6. Restricted Payments, etc..........................................................................100
8.2.7. Capital Expenditures, etc.........................................................................103
8.2.8. Take or Pay Contracts.............................................................................103
8.2.9. Consolidation, Merger, etc........................................................................103
8.2.10. Asset Dispositions, etc...........................................................................104
8.2.11. Modification of Certain Agreements................................................................105
8.2.12. Transactions with Affiliates......................................................................105
8.2.13. Negative Pledges, Restrictive Agreements, etc.....................................................105
8.2.14. Ability to Amend; Restrictive Agreements..........................................................106
8.2.15. Accounting Changes................................................................................106
8.2.16. Activities of the Parent..........................................................................106
ARTICLE IX
EVENTS OF DEFAULT
9.1. Listing of Events of Default......................................................................107
9.1.1. Non-Payment of Obligations........................................................................107
9.1.2. Breach of Warranty................................................................................107
9.1.3. Non-Performance of Certain Covenants and Obligations..............................................108
9.1.4. Non-Performance of Other Covenants and Obligations................................................108
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<S> <C> <C>
9.1.5. Default on Other Indebtedness.....................................................................108
9.1.6. Judgments.........................................................................................108
9.1.7. Pension Plans.....................................................................................109
9.1.8. Change in Control.................................................................................109
9.1.9. Bankruptcy, Insolvency, etc.......................................................................109
9.1.10. Impairment of Security, ..........................................................................110
9.2. Action if Bankruptcy..............................................................................110
9.3. Action if Other Event of Default..................................................................110
ARTICLE X
BORROWERS GUARANTY
10.1. Guaranty..........................................................................................110
10.2. Acceleration of Borrowers Guaranty................................................................111
10.3. Guaranty Absolute, etc............................................................................111
10.4. Reinstatement, etc................................................................................112
10.5. Waiver, etc.......................................................................................113
10.6. Postponement of Subrogation, etc..................................................................113
10.7. Right of Contribution.............................................................................114
10.8. Successors, Transferees and Assigns; Transfers of Notes, etc......................................114
ARTICLE XI
THE AGENTS
11.1. Actions...........................................................................................114
11.2. Funding Reliance, etc.............................................................................115
11.3. Exculpation.......................................................................................115
11.4. Successor.........................................................................................116
11.5. Credit Extensions by Agents.......................................................................116
11.6. Credit Decisions..................................................................................116
11.7. Collateral Agent..................................................................................117
11.8. Copies, etc.......................................................................................117
11.9. Subagents.........................................................................................117
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<CAPTION>
Section Page
ARTICLE XII
MISCELLANEOUS PROVISIONS
<S> <C> <C>
12.1. Waivers, Amendments, etc..........................................................................118
12.2. Notices...........................................................................................119
12.3. Payment of Costs and Expenses.....................................................................119
12.4. Indemnification...................................................................................120
12.5. Survival..........................................................................................121
12.6. Severability......................................................................................121
12.7. Headings..........................................................................................121
12.8. Execution in Counterparts, Effectiveness, etc.....................................................122
12.9. Governing Law; Entire Agreement...................................................................122
12.10. Successors and Assigns............................................................................122
12.11. Sale and Transfer of Loans and Notes; Participations in Loans and Notes...........................122
12.11.1. Assignments.......................................................................................122
12.11.2. Participations....................................................................................124
12.12. Other Transactions................................................................................125
12.13. Independence of Covenants.........................................................................125
12.14. Confidentiality...................................................................................126
12.15. Forum Selection and Consent to Jurisdiction.......................................................126
12.16. Waiver of Jury Trial..............................................................................127
SCHEDULE I - Lender Information
SCHEDULE II - Subordinated Intercompany Note Terms
SCHEDULE III - Existing Material Property
SCHEDULE IV - [INTENTIONALLY OMITTED]
SCHEDULE V - Non-Counted Assets
DISCLOSURE SCHEDULE
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
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<CAPTION>
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<S> <C>
EXHIBIT K - Form of Amendment Effective Date Certificate
EXHIBIT L - Form of Lender Assignment Agreement
EXHIBIT M - Form of U.S. Tax Compliance Certificate
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