Exhibit 4.108
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[EXECUTION COPY]
CONSENT TO SECOND AMENDED
AND RESTATED CREDIT AGREEMENT
THIS CONSENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
February 9, 2004 (this "Consent"), 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:
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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 JPMorgan Chase Bank ("Chase"), as the syndication
agent (in such capacity, the "Syndication Agent", and, together with the
Administrative Agent, the "Agents") for the Lenders, have heretofore entered
into that certain Second Amended and Restated Credit Agreement, dated as of
December 6, 2002 (as amended by the First Amendment to Second Amended and
Restated Credit Agreement, dated as of March 7, 2003 and the Second Amendment to
Second Amended and Restated Credit Agreement, dated as of July 31, 2003, the
"Credit Agreement");
WHEREAS, Operations desires to acquire substantially all of the assets of a
Thrifty franchisee licensed to rent motor vehicles under the Thrifty name in,
among other places, Orlando and Tampa, Florida, for approximately $37,500,000
(the "Orlando/Tampa Acquisition");
WHEREAS, the Borrowers desire to have the Lenders consent and agree that
the Orlando/Tampa Acquisition shall be treated as if it were a Permitted
Business Acquisition for all purposes of the Credit Agreement without the
expenditures incurred in connection therewith being included in the calculation
of aggregate expenditures in respect of Business Acquisitions consummated during
the 2004 Fiscal Year for purposes of clause (a) of the definition of the term
"Permitted Business Acquisition" in the Credit Agreement; and
WHEREAS, the Lenders and the Administrative Agent are willing, on and
subject to the terms and conditions set forth below, to consent to the
Orlando/Tampa Acquisition as provided below (the Credit Agreement, as modified
pursuant to the terms of this Consent, 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 Consent 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 fourth recital.
"Borrowers" is defined in the preamble.
"Consent" is defined in the preamble.
"Consent Effective Date" is defined in the preamble to Article III.
"Credit Agreement" is defined in the first recital.
"Lenders" is defined in the first recital.
"Orlando/Tampa Acquisition" is defined in the second 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 Consent with such meanings.
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ARTICLE II
CONSENT
Effective as of the date hereof (but subject to the occurrence of the
Consent Effective Date), the Lenders hereby consent and agree that the
Orlando/Tampa Acquisition shall be treated as if it were a Permitted Business
Acquisition for all purposes of the Credit Agreement (including clause (b) of
Section 8.2.9 of the Credit Agreement) without the expenditures incurred in
connection therewith being included in the calculation of aggregate expenditures
in respect of Business Acquisitions consummated during the 2004 Fiscal Year for
purposes of clause (a) of the definition of the term "Permitted Business
Acquisition" in the Credit Agreement to the extent such expenditures do not
exceed $37,500,000 (it being understood and agreed that such expenditures may
exceed such amount but that any such excess shall be included in the calculation
of aggregate expenditures in respect of Business Acquisitions consummated during
the 2004 Fiscal Year for purposes of clause (a) of the definition of the term
"Permitted Business Acquisition" in the Credit Agreement).
In connection with the foregoing consent, the Borrowers hereby agree to
provide the Administrative Agent written notice of the consummation of the
Orlando/Tampa Acquisition and the aggregate amount of such expenditures paid at
closing within five Business Days of the consummation thereof.
ARTICLE III
CONDITIONS TO EFFECTIVENESS
This Consent, and the consent contained herein, shall be and become
effective on the date (the "Consent 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 Consent, duly executed and delivered on behalf of
(i) each of the Borrowers and (ii) the Required Lenders.
SECTION 3.2. Pro Forma Compliance Certificate. The Administrative Agent
shall have received a Compliance Certificate executed by the chief financial
Authorized Officer of the Parent certifying and 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 the Orlando/Tampa 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 of the Amended and Restated Credit Agreement or Section 8.1.1 of the
Credit Agreement, financial statements have been, or are required to have been,
delivered by the Parent and the Parent would be in compliance with Section 8.2.4
of the Credit Agreement as of the last day of such Fiscal Quarter.
SECTION 3.3. Consent 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
and otherwise in the form set forth in Annex I hereto.
SECTION 3.4. 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 3.5. Fees and Expenses. The Administrative Agent shall have
received all fees and expenses due and payable pursuant to Section 5.3 hereof
(to the extent then invoiced) and pursuant to the Amended Credit Agreement
(including all previously invoiced fees and expenses).
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Administrative Agent to enter into
this Consent, each of the Borrowers hereby represents and warrants to each Agent
and each Lender, as of the date hereof, as set forth in this Article IV.
SECTION 4.1. Representations and Warranties. (a) The representations and
warranties set forth in Article VII of the Credit Agreement (excluding, however,
those contained in Section 7.7 of the Credit Agreement) and in each other Loan
Document are, in each case, true and correct (unless stated to relate solely to
an earlier date, in which case such representations and warranties are true and
correct as of such earlier date);
(b) except as disclosed by any Borrower to the Administrative Agent, the
Issuer and the Lenders pursuant to Section 7.7 of the Credit Agreement
(i) there is no pending or, to the best knowledge of any Borrower,
threatened litigation, action, proceeding or labor controversy affecting
any Borrower or any of its Subsidiaries, or any of their respective
properties, businesses, or revenues, which may materially adversely affect
the businesses, property, operations, assets, liabilities, condition
(financial or otherwise) or prospects of the Parent and its Subsidiaries
taken as a whole, or which purports to affect the legality, validity or
enforceability of this Consent, 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 Consent, the Credit Agreement, the Notes, or any
other Loan Document;
(c) no Default (other than any Default that would not exist upon
effectiveness of this Consent) 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 Consent has been duly authorized, executed and delivered by each
of the Borrowers and constitutes a legal, valid and binding obligation of each
such Person, enforceable against it in accordance with its terms, except to the
extent the enforceability hereof may be limited by (i) the effect of bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting the rights and remedies of creditors generally
and (ii) the effect of general principles of equity, whether enforcement is
considered in a proceeding in equity or at law.
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SECTION 4.2. Full Disclosure. Except as corrected by written information
delivered to the Agents and the Lenders reasonably prior to the date on which
this representation is made, all information (other than financial and business
projections and forecasts) heretofore or contemporaneously furnished by any
Borrower in writing to any Agent, the Issuer or any Lender for purposes of or in
connection with this Consent is true and accurate in every material respect and
such information is not incomplete by omitting to state any material fact
necessary to make such information not materially misleading in light of the
circumstances under which such information was furnished. All financial and
business projections and forecasts delivered to any Agent, the Issuer or any
Lender by or on behalf of any Borrower have been prepared in good faith based
upon assumptions which the Borrowers believe to be reasonable.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Full Force and Effect; Limited Effect. Except as expressly
modified hereby, all of the representations, warranties, terms, covenants,
conditions and other provisions of the Credit Agreement and the other Loan
Documents shall remain unmodified and shall continue to be, and shall remain, in
full force and effect in accordance with their respective terms. The consent set
forth herein shall be limited precisely as provided for herein to the provisions
expressly modified herein and shall not be deemed to be an consent to, waiver of
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 Consent 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 Consent shall be deemed to be an Event of Default
for all purposes of the Credit Agreement and the other Loan Documents.
SECTION 5.3. 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
Consent and the documents and transactions contemplated hereby, including the
reasonable fees and disbursements of Mayer, Brown, Rowe & Maw, as counsel for
the Administrative Agent.
SECTION 5.4. Headings. The various headings of this Consent are inserted
for convenience only and shall not affect the meaning or interpretation of this
Consent or any provisions hereof.
SECTION 5.5. Execution in Counterparts. This Consent 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.
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SECTION 5.6. Cross-References. References in this Consent to any Article or
Section are, unless otherwise specified or otherwise required by the context, to
such Article or Section of this Consent.
SECTION 5.7. Successors and Assigns. This Consent shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
SECTION 5.8. GOVERNING LAW. THIS CONSENT SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Consent to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
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DOLLAR THRIFTY AUTOMOTIVE GROUP, INC.
By:_____________________________________
Name: Pamela S. Peck
Title: Treasurer
DTG OPERATIONS, INC.
By:_____________________________________
Name: Pamela S. Peck
Title: Treasurer
THRIFTY RENT-A-CAR SYSTEM, INC.
By:_____________________________________
Name: Pamela S. Peck
Title: Treasurer
CREDIT SUISSE FIRST BOSTON, acting
through its New York Branch, as the
Administrative Agent
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
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LENDERS:
CREDIT SUISSE FIRST BOSTON, acting
through its Cayman Islands Branch
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
JPMORGAN CHASE BANK
By:_____________________________________
Name:
Title:
BANK OF OKLAHOMA, NATIONAL ASSOCIATION
By:_____________________________________
Name:
Title:
DEUTSCHE BANK AG, NEW YORK BRANCH
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
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BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By:_____________________________________
Name:
Title:
DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
LOCAL OKLAHOMA BANK, N.A.
By:_____________________________________
Name:
Title:
MIDFIRST BANK
By:_____________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
By:_____________________________________
Name:
Title:
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ARVEST BANK (formerly known as Arvest
State Bank)
By:_____________________________________
Name:
Title:
TEXTRON FINANCIAL CORPORATION
By:_____________________________________
Name:
Title:
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