Exhibit 4.129
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FIRST AMENDMENT TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated
as of December 6, 2004 (this "Amendment"), is made by and among DOLLAR THRIFTY
AUTOMOTIVE GROUP, INC., a Delaware corporation (the "Parent"), DTG OPERATIONS,
INC., an Oklahoma corporation ("Operations"), THRIFTY RENT-A-CAR SYSTEM, INC.,
an Oklahoma corporation ("Thrifty," and, together with Operations, the
"Subsidiary Borrowers"; the Parent and the Subsidiary Borrowers being
collectively referred to herein as the "Borrowers"), the Lenders (as defined
below) parties hereto and the Administrative Agent (as defined below).
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrowers, the various financial institutions parties thereto
(collectively, the "Lenders"), Credit Suisse First Boston ("Credit Suisse First
Boston"), as the administrative agent (in such capacity, the "Administrative
Agent") for the Lenders and The Bank of Nova Scotia ("Scotia Capital"), as the
syndication agent (in such capacity, the "Syndication Agent", and, together with
the Administrative Agent, the "Agents") for the Lenders, Dresdner Bank AG, New
York and Grand Cayman Branches, as the documentation agent, and Credit Suisse
First Boston and Scotia Capital, as the co-arrangers, have heretofore entered
into that certain Third Amended and Restated Credit Agreement, dated as of April
1, 2004 (the "Credit Agreement");
WHEREAS, the Borrowers have requested that the Lenders and the
Administrative Agent amend certain provisions of the Credit Agreement; and
WHEREAS, the Lenders and the Administrative Agent are willing, on and
subject to the terms and conditions set forth below (including the amendments
set forth in Article II below), to amend certain provisions of the Credit
Agreement as provided below (the Credit Agreement, as amended pursuant to the
terms of this Amendment, being referred to as the "Amended Credit Agreement");
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the Borrowers, the Lenders and the Administrative Agent hereby
agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Definitions. The following terms (whether or not
underscored) when used in this Amendment shall have the following meanings (such
meanings to be equally applicable to the singular and plural forms thereof):
"Administrative Agent" is defined in the first recital.
"Agents" is defined in the first recital.
"Amended Credit Agreement" is defined in the third recital.
"Amendment" is defined in the preamble.
"Borrowers" is defined in the preamble.
"Credit Agreement" is defined in the first recital.
"First Amendment Effective Date" is defined in the preamble to Article III.
"Lenders" is defined in the first recital.
"Parent" is defined in the preamble.
SECTION 1.2. Other Definitions. Terms for which meanings are provided
in the Amended Credit Agreement are, unless otherwise defined herein or the
context otherwise requires, used in this Amendment with such meanings.
ARTICLE II
AMENDMENTS
Effective as of the date hereof (but subject to the occurrence of the First
Amendment Effective Date), certain provisions of the Credit Agreement are hereby
amended in accordance with this Article II; except expressly as so amended by
this Amendment, the Credit Agreement shall continue in full force and effect in
accordance with its terms.
SECTION 2.1. Amendments to Section 1.1 of the Credit Agreement. Section
1.1 of the Credit Agreement is hereby amended by:
(a) inserting in such Section the following definitions in the
appropriate alphabetical order:
"'Adjusted Net Income' means, with respect to any Fiscal Year,
the sum of (a) Net Income at such time plus (b) to the extent deducted
in calculating such Net Income for such Fiscal Year, one-time non-cash
charges resulting from changes in GAAP or changes in the application
of GAAP by the Parent in response to the occurrence of an event which
affects, or a change in the conditions affecting, the Parent or any of
its Subsidiaries (other than charges in the nature of establishing a
reserve and other charges that reflect a determination that the future
cash flow of the Parent and its Subsidiaries is likely to be adversely
affected).";
'Unrestricted Cash' means cash and cash equivalents, as such
terms are used in GAAP, that are free of any Lien (other than common
law "banker's liens" or rights of setoff, unless such liens or rights
of setoff have been exercised or, to the Borrowers' best knowledge,
are threatened to be exercised).";
(b) amending clause (b)(vi) of the definition of "Fixed Charge
Coverage Ratio" contained in such Section in its entirety to read as
follows:
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"(vi) the aggregate amount of Distributions made by the Parent during
such period in cash."; and
(c) amending subclause (A) of the proviso at the end of clause (a) of
the definition of "Permitted Business Acquisition" in its entirety to read
as follows:
"(A) there shall be at least $75,000,000 of unused and available Loan
Commitments and/or Unrestricted Cash on hand at the Parent and its
Subsidiaries (on a consolidated basis) and".
SECTION 2.2. Amendment to Section 8.2.6 of the Credit Agreement. Clause
(b)(ii) of Section 8.2.6 of the Credit Agreement is hereby amended in its
entirety to read as follows:
"(ii) the aggregate amount of
(A) such Distribution to be made by the Parent and its
Subsidiaries 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
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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) 50% of Adjusted Net
Income for the 2004 Fiscal Year and
(ii) $20,000,000
2006 Fiscal Year The lesser of (i) 50% of Adjusted Net
Income for the 2005 Fiscal Year and
(ii) $23,000,000
2007 Fiscal Year The lesser of (i) 50% of Adjusted Net
Income for the 2006 Fiscal Year and
(ii) $26,000,000
2008 Fiscal Year The lesser of (i) 50% of Adjusted Net
Income for the 2007 Fiscal Year and
(ii) $29,000,000
2009 Fiscal Year The lesser of (i) 12.5% of Adjusted Net
Income for the 2008 Fiscal Year and
(ii) $8,000,000; 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 the last
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day of the most recent Fiscal Year included in the determination
of Cumulative Excess Cash Flow by the Parent and its Subsidiaries
and (y) the aggregate amount of all other purchases and
redemptions consummated prior to such purchase or redemption and
subsequent to such last day of such Fiscal Year; provided that
(aa) the aggregate amount of such purchases and redemptions in
any Fiscal Year shall not exceed $50,000,000 and in the aggregate
during the term of this Agreement shall not exceed $150,000,000,
(bb) there shall be at least $100,000,000 of Unrestricted Cash on
hand at the Parent and its Subsidiaries (on a consolidated basis)
as of the last day of the calendar month most recently completed
prior to such purchase or redemption and (cc) after giving pro
forma effect to such purchase or redemption, there shall be at
least $75,000,000 of Unrestricted Cash on hand at the Parent and
its Subsidiaries (on a consolidated basis) as of the date of such
purchase or redemption;".
SECTION 2.3. Amendment to Exhibit D to the Credit Agreement. Exhibit D
to the Credit Agreement ("Form of Compliance Certificate") is hereby amended by:
(a) adding the following paragraphs (i) and (j) after paragraph (h)
titled "Collateral, etc.":
"1(i) Adjusted Net Income and Cumulative Excess Cash Flow.
Adjusted Net Income for the Fiscal Year ending on the Computation Date
is $________ and Cumulative Excess Cash Flow as of the Computation
Date is $_______, each as computed on Attachment 5 hereto.
(j) Unrestricted Cash; Purchases and Redemption of Capital Stock.
Set forth below is (i) the amount of Unrestricted Cash on hand at the
Parent and its Subsidiaries (on a consolidated basis) as of the last
day of the calendar month immediately preceding each of the three
calendar months of the Fiscal Quarter ending on the Computation Date
and (ii) the aggregate amount of purchases and redemptions of shares
of any class of Capital Stock of the Parent, or warrants, options or
other rights with respect to any such shares of Capital Stock of the
Parent, during each of the three calendar months of the Fiscal Quarter
ending on the Computation Date:
----------------------------------- ------------------------------ ---------------------------
Relevant Month Amount of Unrestricted Cash Aggregate Amount of
as of Last Day of Preceding Purchases and Redemptions
Month
----------------------------------- ------------------------------ ---------------------------
[Insert 1st Month of Quarter] $____________ $____________
----------------------------------- ------------------------------ ---------------------------
[Insert 2nd Month of Quarter] $____________ $____________
----------------------------------- ------------------------------ ---------------------------
[Insert 3rd Month of Quarter] $____________ $____________";
----------------------------------- ------------------------------ ---------------------------
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(b) amending Item (K) in Attachment 2 in its entirety to read as
follows:
"K. Distributions made by the Parent during the Computation
Period (and for each of the four consecutive Fiscal Quarters
ending on the Computation Date) in cash:"; and
(c) adding a new Attachment 5 in the form of Annex A hereto.
ARTICLE III
CONDITIONS TO EFFECTIVENESS
This Amendment, and the amendments and modifications contained herein,
shall be and become effective on the date (the "First Amendment Effective Date")
when each of the conditions set forth in this Article III shall have been
fulfilled to the satisfaction of the Administrative Agent.
SECTION 3.1. Execution of Counterparts. The Administrative Agent shall
have received counterparts of this Amendment, duly executed and delivered on
behalf of (i) each of the Borrowers and (ii) the Required Lenders.
SECTION 3.2. Amendment Effective Date Certificate. The Administrative
Agent shall have received a certificate from the chief financial Authorized
Officer of the Parent confirming the representations and warranties set forth in
Article IV in form and substance satisfactory to the Administrative Agent.
SECTION 3.3. Execution of Affirmation and Acknowledgment. The
Administrative Agent shall have received an affirmation and acknowledgment in
form and substance satisfactory to it, duly executed and delivered by each
Guarantor and any other Obligor that has granted a Lien pursuant to any Loan
Document, other than the Borrowers.
SECTION 3.3.1. Amendment Fee. The Administrative Agent shall have received
the amendment fees due and payable pursuant to Section 5.3 hereof.
SECTION 3.4. Fees and Expenses. The Administrative Agent shall have
received all fees and expenses due and payable pursuant to Section 5.4 hereof
(to the extent then invoiced) and pursuant to the Amended Credit Agreement
(including all previously invoiced fees and expenses).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Administrative Agent to enter into
this Amendment, each of the Borrowers hereby represents and warrants to each
Agent and each Lender, as of the date hereof, as set forth in this Article IV.
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SECTION 4.1. Representations and Warranties. (a) The representations and
warranties set forth in Article VII of the Credit Agreement (excluding, however,
those contained in Section 7.7 of the Credit Agreement) and in each other Loan
Document are, in each case, true and correct (unless stated to relate solely to
an earlier date, in which case such representations and warranties are true and
correct as of such earlier date);
(b) except as disclosed by any Borrower to the Administrative Agent,
the Issuer and the Lenders pursuant to Section 7.7 of the Credit Agreement
(i) there is no pending or, to the best knowledge of any
Borrower, threatened litigation, action, proceeding or labor
controversy affecting any Borrower or any of its Subsidiaries, or any
of their respective properties, businesses, assets or revenues, which
may materially adversely affect the businesses, property, operations,
assets, liabilities, condition (financial or otherwise) or prospects
of the Parent and its Subsidiaries taken as a whole, or which purports
to affect the legality, validity or enforceability of this Amendment,
the Credit Agreement, the Notes or any other Loan Document, except as
disclosed in Item 7.7 ("Litigation") of the Disclosure Schedule to the
Credit Agreement; and
(ii) no development has occurred in any labor controversy,
litigation, arbitration or governmental investigation or proceeding
disclosed pursuant to Section 7.7 of the Credit Agreement which may
materially adversely affect the business, property, operations,
assets, liabilities, condition (financial or otherwise) or prospects
of the Parent and its Subsidiaries taken as a whole, or which purports
to affect the legality, validity or enforceability of this Amendment,
the Credit Agreement, the Notes, or any other Loan Document;
(c) no Default has occurred and is continuing, and neither any
Borrower nor any of their respective Subsidiaries nor any other Obligor is
in material violation of any law or governmental regulation or court order
or decree; and
(d) this Amendment has been duly authorized, executed and delivered by
each of the Borrowers and constitutes a legal, valid and binding obligation
of each such Person, enforceable against it in accordance with its terms,
except to the extent the enforceability hereof may be limited by (i) the
effect of bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting the rights
and remedies of creditors generally and (ii) the effect of general
principles of equity, whether enforcement is considered in a proceeding in
equity or at law.
SECTION 4.2. Full Disclosure. Except as corrected by written
information delivered to the Agents and the Lenders reasonably prior to the date
on which this representation is made, all information (other than financial and
business projections and forecasts) heretofore or contemporaneously furnished by
any Borrower in writing to any Agent, the Issuer or any Lender for purposes of
or in connection with this Amendment is true and accurate in every material
respect and such information is not incomplete by omitting to state any material
fact necessary to make such information not materially misleading in light of
the circumstances under which such information was furnished. All financial and
business projections and forecasts delivered to any Agent, the Issuer or any
Lender by or on behalf of any Borrower have been prepared in good faith based
upon assumptions which the Borrowers believe to be reasonable.
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ARTICLE V
MISCELLANEOUS
SECTION 5.1. Full Force and Effect; Limited Amendment. Except as
expressly amended hereby, all of the representations, warranties, terms,
covenants, conditions and other provisions of the Credit Agreement and the other
Loan Documents shall remain unamended and unwaived and shall continue to be, and
shall remain, in full force and effect in accordance with their respective
terms. The amendments set forth herein shall be limited precisely as provided
for herein to the provisions expressly amended herein and shall not be deemed to
be an amendment to, consent to or modification of any other term or provision of
the Credit Agreement, any other Loan Document referred to therein or herein or
of any transaction or further or future action on the part of any of the
Borrowers or any other Obligor which would require the consent of the Lenders
under the Credit Agreement or any of the other Loan Documents.
SECTION 5.2. Loan Document Pursuant to Credit Agreement. This Amendment
is a Loan Document executed pursuant to the Credit Agreement and shall be
construed, administered and applied in accordance with all of the terms and
provisions of the Credit Agreement (and, following the date hereof, the Amended
Credit Agreement). Any breach of any representation or warranty or covenant or
agreement contained in this Amendment shall be deemed to be an Event of Default
for all purposes of the Credit Agreement and the other Loan Documents.
SECTION 5.3. Amendment Fee. Upon the satisfaction of the condition set
forth in clause (ii) of Section 3.1, the Borrowers shall pay, without setoff,
deduction or counterclaim, a non-refundable amendment fee for the account of
each Lender that has executed and delivered (including delivery by way of
facsimile) a counterpart of this Amendment to the attention of ▇▇▇ ▇▇▇▇▇▇▇▇ at
Mayer, Brown, ▇▇▇▇ & Maw LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (▇▇▇▇ ▇▇▇▇▇),
telecopy no. (▇▇▇) ▇▇▇-▇▇▇▇, at or prior to 5:00 p.m. New York time, on or
before November 29, 2004 (as such time may be extended by the Parent), in the
amount of five (5.0) basis points of such Lender's Commitment as of the date
hereof. The aggregate amount of such amendment fee shall be paid at or prior to
noon, New York time, on November 30, 2004 (or, in the event that the date in the
immediately preceding sentence has been extended, the Business Day that
immediately succeeds such extended date) to the Administrative Agent for the pro
rata account of the Lenders entitled to receive such amendment fee.
SECTION 5.4. Fees and Expenses. The Borrowers, jointly and severally,
agree to pay on demand all out-of-pocket expenses incurred by the Administrative
Agent in connection with the preparation, negotiation, execution and delivery of
this Amendment and the documents and transactions contemplated hereby, including
the reasonable fees and disbursements of Mayer, Brown, ▇▇▇▇ & Maw LLP, as
counsel for the Administrative Agent.
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SECTION 5.5. Headings. The various headings of this Amendment are
inserted for convenience only and shall not affect the meaning or interpretation
of this Amendment or any provisions hereof.
SECTION 5.6. Execution in Counterparts. This Amendment may be executed
by the parties hereto in several counterparts, each of which shall be deemed to
be an original and all of which shall constitute together but one and the same
agreement.
SECTION 5.7. Cross-References. References in this Amendment to any
Article or Section are, unless otherwise specified or otherwise required by the
context, to such Article or Section of this Amendment.
SECTION 5.8. Successors and Assigns. This Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SECTION 5.9. GOVERNING LAW. THIS AMENDMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment 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: Treasurer
DTG OPERATIONS, INC.
By:_____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
THRIFTY RENT-A-CAR SYSTEM, INC.
By:_____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
CREDIT SUISSE FIRST BOSTON, as the
Administrative Agent
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
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LENDERS:
CREDIT SUISSE FIRST BOSTON
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
By:_____________________________________
Name:
Title:
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
ARVEST BANK
By:_____________________________________
Name:
Title:
10
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By:_____________________________________
Name:
Title:
DEUTSCHE BANK AG, NEW YORK BRANCH
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
JPMORGAN CHASE BANK, N.A. (formerly
known as JPMorgan Chase Bank)
By:_____________________________________
Name:
Title:
BANK OF OKLAHOMA, NATIONAL ASSOCIATION
By:_____________________________________
Name:
Title:
INTERNATIONAL BANK OF COMMERCE
(successor by merger to Local
Oklahoma Bank, N.A.)
By:_____________________________________
Name:
Title:
11
MIDFIRST BANK
By:_____________________________________
Name:
Title:
ABN AMRO BANK N.V.
By:_____________________________________
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ FINANCING, INC.
By:_____________________________________
Name:
Title:
KEYBANK NATIONAL ASSOCIATION
By:____________________________________
Name:
Title:
12
ANNEX A
Attachment 5 to
__/__/_ Compliance
Certificate
ADJUSTED NET INCOME:
A. Net Income: 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 the Fiscal Year ending on the Computation
Date: $_______
B. To the extent deducted in calculating Item (A),
one-time non-cash charges resulting from changes
in GAAP or changes in the application of GAAP by
the Parent in response to the occurrence of an
event which affects, or a change in the conditions
affecting, the Parent or any of its Subsidiaries
(other than charges in the nature of establishing
a reserve and other charges that reflect a
determination that the future cash flow of the
Parent and its Subsidiaries is likely to be
adversely affected): $_______
C. Adjusted Net Income: Item (A) plus Item (B): $_______
CUMULATIVE EXCESS CASH FLOW:
A. Starting Amount $319,550,000
B. Excess Cash Flow for each Fiscal Year subsequent
to the 2003 Fiscal Year and completed on or prior
to the Computation Date:
Fiscal Year
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$_______1
200_
C. Cumulative Excess Cash Flow: Item (A) plus each of
the entries in Item (B): $_______
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1 Insert an amount for each such Fiscal Year.
