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EXHIBIT 10.43
SIXTH AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as
of February 9, 2001 (this "Amendment"), is made by and among BUDGET GROUP, INC.,
a Delaware corporation (the "Borrower"), the Lenders (such capitalized term and
all other capitalized terms not otherwise defined herein shall have the meanings
provided for in Article I below) parties hereto and CREDIT SUISSE FIRST BOSTON,
as administrative agent (in such capacity, the "Administrative Agent") for the
Lenders.
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Agents have heretofore
entered into that certain Amended and Restated Credit Agreement, dated as of
June 19, 1998 (as amended by the First Amendment to Amended and Restated Credit
Agreement dated as of September 11, 1998, the Second Amendment to Amended and
Restated Credit Agreement dated as of March 18, 1999, the Third Amendment to
Amended and Restated Credit Agreement dated as of December 22, 1999, the Fourth
Amendment and Waiver to Amended and Restated Credit Agreement dated as of
September 30, 2000, the Fifth Amendment to Amended and Restated Credit
Agreement, dated as of January 10, 2001, and as further amended, supplemented,
amended and restated or otherwise modified, the "Credit Agreement");
WHEREAS, the Borrower has suffered, and expects to continue to suffer,
certain losses from its operations in Europe, the Middle East and Africa and
plans to incur certain restructuring charges and expenses with respect to its
operations;
WHEREAS, the Borrower desires to have the ability to borrow new Loans
and have additional Letters of Credit issued on its behalf;
WHEREAS, the Borrower desires the amendment and/or waiver of certain
provisions of the Credit Agreement in connection with the foregoing; and
WHEREAS, the requisite Lenders are willing, on and subject to the terms
and conditions set forth below (including, without limitation, an increase in
the Applicable Margin), to amend and waive certain provisions of the Credit
Agreement as provided below (the Credit Agreement, as amended and otherwise
modified pursuant to the terms of this Amendment, being referred to as the
"Amended Credit Agreement");
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NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the Borrower and the requisite Lenders hereby agree
as follows:
ARTICLE I
DEFINITIONS
SECTION I.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 preamble.
"Amended Credit Agreement" is defined in the fifth recital.
"Amendment" is defined in the preamble.
"Borrower" is defined in the preamble.
"Credit Agreement" is defined in the first recital.
SECTION I.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
WAIVER AND AMENDMENTS TO CREDIT AGREEMENT; CONSENT
SECTION II.1. Waiver. (a) Subject to the satisfaction of the conditions
set forth in Article III, the Lenders hereby waive compliance by the Borrower
with (i) the provisions of clauses (b) and (c) of Section 8.2.4 of the Credit
Agreement with respect to the third and fourth Fiscal Quarters of the 2000
Fiscal Year and each Fiscal Quarter of the 2001 Fiscal Year and (ii) clause (a)
of Section 8.2.4 of the Credit Agreement.
(b) Clause (a) of this Section 2.1 shall be limited precisely as
written and relates solely to noncompliance by the Borrower with the provisions
of clauses (a), (b) and (c) of Section 8.2.4 of the Credit Agreement in the
manner and to the extent set forth above, and nothing in this Amendment shall be
deemed to constitute a waiver of compliance by the Borrower with respect
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to (A) clauses (b) and (c) of Section 8.2.4 of the Credit Agreement for any
period other than the third and fourth Fiscal Quarters of the 2000 Fiscal Year
or any Fiscal Quarter of the 2001 Fiscal Year or (B) any other term, provision
or condition of the Credit Agreement or any other instrument or agreement
referred to therein or relating thereto or prejudice any right or remedy that
the Administrative Agent or any Lender may now have or may have in the future
under or in connection with the Credit Agreement or any other instrument or
agreement referred to therein or relating thereto.
SECTION II.2. Amendments. Subject to the satisfaction of the conditions
set forth in Article III, effective as of the date hereof, the Credit Agreement
is hereby amended in accordance with this Section 2.2.
SECTION II.2.1. Amendments to Section 1.1 ("Defined Terms") of the
Credit Agreement. Section 1.1 of the Credit Agreement is hereby amended as
follows:
(a) by inserting in such Section the following
definitions in the appropriate alphabetical order:
"`Initial 13-Week Consolidated Cash Flow Projections'
means the 13-Week Consolidated Cash Flow Projections for the
period ending May 4, 2001, furnished to the Lenders on
February 7, 2001.
"`Lender Committee Member' means each of (i) Credit
Suisse First Boston, Bank of America, N.A., General Electric
Capital Corporation and Bank United and (ii) in the event any
of the foregoing resigns or is no longer a Lender or an
Affiliate of a Lender, any other Lender selected by the
Administrative Agent that consents to such selection; provided
that the aggregate number of Persons serving at any time as
Lender Committee Members shall not exceed five."
"`Loan Availability Amount' means, on any date
occurring during (i) the calendar month of February, 2001, the
lesser of (x) $10,000,000 and (y) the Loan Commitment Amount,
(ii) the calendar month of March, 2001 or the first Fiscal
Quarter of any Fiscal Year thereafter, the Loan Commitment
Amount, and (iii) the second, third or fourth Fiscal Quarter
of any Fiscal Year, $0; provided, however, that the Loan
Availability Amount shall be $0 at any time that a Required
Seasonal Facility is not in effect."
"`Permitted 4Q 2000 Restructuring Expenses' means the
extraordinary and non-recurring expenses or charges detailed
in Schedule VII hereto."
"`Permitted Letters of Credit' means
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(a) an Enhancement Letter of Credit or
Enhancement Letters of Credit issued (i) with an
aggregate Stated Amount not exceeding the sum of (A)
the Stated Amount (or the allocable portion of such
Stated Amount) of the outstanding Enhancement Letter
of Credit or Enhancement Letters of Credit (as in
effect immediately prior to the expiry or termination
thereof) issued in support of the medium term notes
to be refinanced by TFFC's initial issuance of medium
term notes in Fiscal Year 2001 (the "2001-1 MTN
Program") (provided that the previously issued
Enhancement Letter of Credit or Enhancement Letters
of Credit described in the preceding clause (A) are
terminated or the aggregate Stated Amount thereof is
permanently reduced (other than pursuant to a
drawing) by the aggregate amount described in such
clause (A)) and (B) the lesser of $24,000,000 and
6.0% of the aggregate principal amount of the medium
term notes to be so issued and (ii) in support of the
medium term notes issued in the 2001-1 MTN Program
(such 2001-1 MTN Program to have terms and conditions
reasonably satisfactory to the Administrative Agent
or, if the Administrative Agent is the lead
underwriting or placement agent for such medium term
notes, the Lender Committee Members (other than the
Administrative Agent) holding a majority of the
Commitment Amount held in the aggregate by them);
provided, however, that no such Enhancement Letter of
Credit or Enhancement Letters of Credit utilizing the
amount set forth in clause (i)(B) of this paragraph
may be issued unless a Required Seasonal Facility is
in effect;
(b) an Enhancement Letter of Credit or
Enhancement Letters of Credit issued (i) with an
aggregate Stated Amount not exceeding the sum of (A)
the Stated Amount of (or the allocable portion of
such Stated Amount) of the outstanding Enhancement
Letter of Credit or Enhancement Letters of Credit (as
in effect immediately prior to the expiry or
termination thereof) issued in support of the medium
term notes to be refinanced by TFFC's second issuance
of medium term notes in Fiscal Year 2001 (the "2001-2
MTN Program") (provided that the previously issued
Enhancement Letter of Credit or Enhancement Letters
of Credit described in the preceding clause (A) are
terminated or the aggregate Stated Amount thereof is
permanently reduced (other than pursuant to a
drawing) by the aggregate amount described in such
clause (A)) and (B) the lesser of (x) the excess of
$66,000,000 over the amount determined pursuant to
clause (B) of the preceding paragraph (a) and (y)
6.0% of the aggregate principal amount of the medium
term notes to be so issued and (ii) in support of the
medium term notes issued in the 2001-2 MTN Program
(such 2001-2 MTN Program to have terms and conditions
reasonably satisfactory to the Administrative Agent
or, if the
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Administrative Agent is the lead underwriting or
placement agent for such medium term notes, the
Lender Committee Members (other than the
Administrative Agent) holding a majority of the
Commitment Amount held in the aggregate by them);
provided, however, that no such Enhancement Letter of
Credit or Enhancement Letters of Credit utilizing the
amount set forth in clause (i)(B) of this paragraph
may be issued unless (x) a Required Seasonal Facility
is in effect and (y) (1) Budget Funding Corporation
has successfully renewed its commercial paper program
for another 364-day period and has received the
benefits of a 364-day committed liquidity facility of
at least $400,000,000 in order to provide liquidity
support to Budget Funding Corporation's commercial
paper program pursuant to terms and conditions
reasonably satisfactory to the Administrative Agent
or, if the Administrative Agent is the lead arranger
or agent for such liquidity facility, the Lender
Committee Members (other than the Administrative
Agent) holding a majority of the Commitment Amount
held in the aggregate by them or (2) in the event
Budget Funding Corporation has not renewed its
commercial paper program in accordance with the terms
of the immediately preceding clause (1) (which
failure would include a renewal of the commercial
paper program with a committed liquidity facility of
less than $400,000,000), the Borrower or any of its
Subsidiaries has received the benefits of a committed
financing facility for the acquisition of Vehicles in
an aggregate amount that is not less than the amount
that would be necessary to acquire the Vehicles for
use in the United States that would have otherwise
been acquired if such commercial paper program had
been successfully renewed in accordance with the
terms of the immediately preceding clause (1) from
financing source(s) reasonably satisfactory to each
Lender Committee Member pursuant to terms and
conditions reasonably satisfactory to each Lender
Committee Member (each such financing facility, a
"Replacement Facility"); and
(c) a General Letter of Credit or
General Letters of Credit issued with an aggregate
Stated Amount which, when added to the aggregate
Stated Amount at the time of such issuance of all
other General Letters of Credit then outstanding,
does not exceed the sum of $10,000,000 plus the
aggregate Stated Amount at the time of such issuance
of all General Letters of Credit that were
outstanding immediately prior to the Sixth Amendment
Effective Date; provided that no such General Letter
of Credit may be requested to be issued if the
purpose of such issuance is to assist the Borrower or
any of its Subsidiaries in obtaining any financing."
"`Replacement Facility' is defined in paragraph (b)
of the definition of `Permitted Letters of Credit'."
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"`Required Seasonal Facility' means a committed
financing facility that is available to the Borrower in an
aggregate amount of at least $350,000,000 for the acquisition
of Vehicles for use in the United States during periods in
which the Borrower and its Subsidiaries customarily experience
increased customer rental activity from financing source(s)
reasonably satisfactory to each Lender Committee Member
pursuant to terms and conditions reasonably satisfactory to
each Lender Committee Member."
"`Sixth Amendment Effective Date' means the date of
the effectiveness of the Sixth Amendment."
"`Sixth Amendment' means the Sixth Amendment to
Amended and Restated Credit Agreement, dated as of February 9,
2001, among the Borrower, the Lenders parties thereto and the
Agents."
"`Specified Real Estate Assets' means the real
property owned by the Borrower or any of its Subsidiaries at
the locations described in Schedule VIII hereto."
"`13-Week Consolidated Cash Flow Projections' means,
with respect to the relevant 13-week period, a consolidated
projected statement of cash flow for the operations of the
Borrower and its Subsidiaries for such period in respect of
the Borrower's North America segment (i.e., the United States
and Canada), detailing the sources and uses of such cash flow,
in form and scope consistent with the Initial 13-Week
Consolidated Cash Flow Projections."
(b) by amending the definition of "Adjusted EBITDA" set
forth in such Section in its entirety to read as follows:
"`Adjusted EBITDA' means, for any applicable period,
(a) EBITDA for such period
minus
(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;
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provided, however, that, notwithstanding anything to the
contrary herein, Adjusted EBITDA of the Borrower and its
Subsidiaries for the period consisting of the fourth Fiscal
Quarter of the 2000 Fiscal Year shall be deemed to be equal to
negative $59,261,000.";
(c) by amending the definition of "Applicable Commitment
Fee" set forth in such Section by deleting the last sentence thereof
and substituting therefor the following sentence:
"Notwithstanding anything to the contrary in this definition,
the Applicable Commitment Fee for the period from the Sixth
Amendment Effective Date to the date on which the
Administrative Agent receives the Compliance Certificate for
the Fiscal Quarter ending on or about March 31, 2002 shall
mean 50.0 basis points.";
(d) by amending the definition of "Applicable Margin" set
forth in such Section by deleting the last sentence thereof and
substituting therefor the following sentence:
"Notwithstanding anything to the contrary in this definition,
the Applicable Margin with respect to any Loan of any type for
the period from the Sixth Amendment Effective Date to the date
on which the Administrative Agent receives the Compliance
Certificate for the Fiscal Quarter ending on or about March
31, 2002 shall mean (x) 350 basis points with respect to each
Loan made or maintained as a Eurocurrency Loan or (y) 250
basis points with respect to each Loan made or maintained as
an ABR Loan.";
(e) by amending the definition of "Casualty Proceeds" set
forth in such Section in its entirety to read as follows:
"`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 Borrower
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 $250,000, such proceeds or awards shall not
constitute Casualty Proceeds), but excluding 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).";
(f) by amending the definition of "Compliance
Certificate" set forth in such Section in its entirety to read as follows:
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"`Compliance Certificate' means a certificate duly
completed and executed by an Authorized Officer of the
Borrower, substantially in the form of (a) Exhibit D-1 hereto
in the case where the "Computation Date" (as defined therein)
is on or about March 31, 2001, June 30, 2001, September 30,
2001 or December 31, 2001 and (b) Exhibit D-2 in all other
cases, together with, in each such case, such changes thereto
as the Administrative Agent may from time to time reasonably
request for the purpose of monitoring the Borrower's
compliance with the financial covenants contained herein.
(g) by amending clauses (b) and (c) of the definition of
"EBITDA" set forth in such Section in their entirety to read as follows:
"(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)
extraordinary and non-recurring expenses or charges
resulting from the Transaction in an amount not to
exceed $56,000,000 in the aggregate plus (v) other
extraordinary and non-recurring expenses or charges
in an amount not to exceed $50,000,000 in the
aggregate since the date of the First Amendment plus
(vi) Permitted 1999/2000 Restructuring Expenses and,
solely for the purposes of determining compliance
with clause (d) of Section 8.2.4, Excluded EMEA
Losses"
minus
(c) to the extent included in arriving
at such Net Income, extraordinary and non-recurring
gains in an amount not to exceed, since the date of
the Fourth Amendment, the sum of $175,000,000 plus
the aggregate amount of Permitted 4Q 2000
Restructuring Expenses actually taken or incurred.";
(h) by amending the definition of "Excluded EMEA Losses"
in its entirety to read as follows:
"`Excluded EMEA Losses' means, with respect to each
of the four-consecutive Fiscal Quarters ending on the last day
of the fourth Fiscal Quarter of the 2000 Fiscal Year or any
Fiscal Quarter of the 2001 Fiscal Year, any loss for such
four-consecutive Fiscal Quarters in respect of the operations
of the Borrower and its Subsidiaries conducted in Europe, the
Middle East and Africa, as separately reported by the Borrower
(with such detail as the Administrative Agent may reasonably
request) with the financial statements to be furnished to the
Lenders pursuant to clauses (a) and (b) of Section 8.1.1
following the
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effectiveness of the Fourth Amendment and determined in a
manner consistent with the accounting principles applied in
the preparation of the financial statements furnished to the
Lenders pursuant to Section 8.1.1 prior to the effectiveness
of the Fourth Amendment.";
(i) by amending the definition of "Loan Commitment
Amount" in its entirety to read as follows:
"`Loan Commitment Amount' means, on any date,
$25,000,000, as such amount may be reduced from time to time pursuant
to Section 2.2.3.";
(j) by amending clauses (a) and (b) of the definition of
"Non-Material Subsidiary" in their entirety to read as follows:
"(a) accounted for no more than 1% of
consolidated revenues of the Borrower and its Subsidiaries and
1% of consolidated earnings of the Borrower and its
Subsidiaries before interest and taxes, in each case for the
four consecutive Fiscal Quarters of the Borrower ending on 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 Borrower to the Administrative Agent, and
(b) has assets which represent no more than 1%
of the consolidated net tangible assets or net intangible
assets of the Borrower and its Subsidiaries as of 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 Borrower to the Administrative Agent,";
and
(k) by amending clause (a)(ii) of the definition of
"Permitted Business Acquisition" in its entirety to read as follows:
"(ii) in the case of a Business Acquisition other
than a Franchisee Acquisition, the aggregate amount of
expenditures of the Borrower 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 Borrower 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 Borrower and its Subsidiaries in respect of Business
Acquisitions (other than Franchisee Acquisitions, the Cruise
America Acquisition and the Ryder Acquisition) during the
Fiscal Year in which such Subject Amount would be expended,
does not exceed $25,000,000 (provided that, following the
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effectiveness of the Fourth Amendment, the consideration
payable by the Borrower and its Subsidiaries in connection
with any such Business Acquisition shall solely consist of
Capital Stock of the Borrower, except in the case of the
Business Acquisition of the Budget Franchisee operating in
Tucson, Arizona, so long as the sum of Indebtedness assumed or
incurred in connection therewith (other than Vehicle Debt) and
the aggregate payments of cash consideration therefor does not
exceed $6,000,000 in the aggregate), and".
SECTION II.2.2. Additional Amendments to Section 1.1 ("Defined Terms")
of the Credit Agreement. Section 1.1 of the Credit Agreement is hereby further
amended as follows:
(a) by inserting in such Section the following
definitions in the appropriate alphabetical order:
"`Applicable Real Estate Percentage' means (i) with
respect to the first and second Fiscal Quarters of the 2001
Fiscal Year, 50%, and (ii) with respect to each subsequent
Fiscal Quarter, 30%."
"`Applicable Trademark Percentage' means (i) with
respect to the first and second Fiscal Quarters of the 2001
Fiscal Year, 60%, and (ii) with respect to each subsequent
Fiscal Quarter, 50%."
"`Appraised Value' means, with respect to the
Eligible Trademarks, $440,000,000."
"`Eligible FF&E' means, at any time of determination
thereof, all fixtures, furniture and equipment (collectively,
`FF&E') of the Borrower or any Subsidiary of the Borrower that
is a Subsidiary Guarantor as to which each of the following
requirements has been fulfilled to the reasonable satisfaction
of the Administrative Agent (which requirements shall be
deemed to have been fulfilled to the reasonable satisfaction
of the Administrative Agent unless the Administrative Agent
shall have otherwise notified the Borrower in writing):
(a) the Borrower or such Subsidiary
owns such FF&E, free and clear of all Liens other
than (i) the Liens in favor of the Administrative
Agent for the benefit of the Lenders and (ii) the
Liens described in clause (h) of Section 8.2.3
(provided that the aggregate amount of assessed and
unpaid taxes, assessments or other governmental
charges or levies that resulted in such Liens shall
be deducted from the Net Book Value of Eligible FF&E
for purposes of determining the Borrowing Base
Amount);
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(b) the Borrower or such Subsidiary has
the full and unqualified right to assign and ▇▇▇▇▇ ▇
▇▇▇▇ in such FF&E to the Administrative Agent for the
benefit of the Lenders;
(c) the Administrative Agent has a
security interest in such FF&E, which security
interest is legal, valid, binding, perfected and
first priority under the U.C.C. and all other
applicable laws;
(d) such FF&E is located in one of the
States of the United States or the District of
Columbia;
(e) none of such FF&E consists of items
in the Borrower's or such Subsidiary's possession but
intended by the Borrower or such Subsidiary for
return to the suppliers thereof;
(f) none of such FF&E is obsolete,
unsalable, damaged or otherwise unfit for sale; and
(g) such FF&E has such other
characteristics or criteria as the Administrative
Agent, in its reasonable discretion, may specify in
writing to the Borrower from time to time."
"`Eligible Real Estate' means, at any time of
determination thereof, all real property (other than fixtures)
(the `Specified Real Property') of the Borrower or any
Subsidiary of the Borrower that is a Subsidiary Guarantor as
to which each of the following requirements has been fulfilled
to the reasonable satisfaction of the Administrative Agent
(which requirements shall be deemed to have been fulfilled to
the reasonable satisfaction of the Administrative Agent unless
the Administrative Agent shall have otherwise notified the
Borrower in writing):
(a) the Borrower or such Subsidiary
owns such Specified Real Property, free and clear of
all Liens other than (i) the Liens in favor of the
Administrative Agent for the benefit of the Lenders,
(ii) the Liens described in clause (i) of Section
8.2.3 and (iii) the Liens described in clause (h) of
Section 8.2.3 (provided that the aggregate amount of
assessed and unpaid taxes, assessments or other
governmental charges or levies that resulted in such
Liens shall be deducted from the Net Book Value of
Eligible Real Estate for purposes of determining the
Borrowing Base Amount);
(b) the Borrower or such Subsidiary has
the full and unqualified right to assign and ▇▇▇▇▇ ▇
▇▇▇▇ in such Specified Real Property to the
Administrative Agent for the benefit of the Lenders;
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(c) such Specified Real Property is the
subject property of (x) a Mortgage that was duly
executed, delivered and recorded in favor of the
Administrative Agent and (y) a title insurance policy
(a "Title Insurance Policy") having terms
satisfactory to, and issued in favor of, the
Administrative Agent by a title insurer reasonably
satisfactory to the Administrative Agent; and
(d) the Net Book Value of such
Specified Real Property does not exceed the face
amount of the related Title Insurance Policy;
(e) such Specified Real Property is
located in one of the States of the United States or
the District of Columbia; and
(f) the Administrative Agent has a
security interest in such Specified Real Property,
which security interest is legal, valid, binding,
perfected and first priority under all applicable
laws."
"`Eligible Trademark' means, at any time of
determination thereof, the "Budget" trade name and each other
Trademark (as defined in the applicable Security Agreement) of
the Borrower or any Subsidiary of the Borrower that is a
Subsidiary Guarantor that is directly related to the "Budget"
trade name, so long as each of following requirements has been
fulfilled to the reasonable satisfaction of the Administrative
Agent (which requirements shall be deemed to have been
fulfilled to the reasonable satisfaction of the Administrative
Agent unless the Administrative Agent shall have otherwise
notified the Borrower in writing):
(a) the Borrower or such Subsidiary
owns each such Trademark, free and clear of all Liens
other than the Liens in favor of the Administrative
Agent for the benefit of the Lenders;
(b) the Borrower or such Subsidiary has
the full and unqualified right to assign and ▇▇▇▇▇ ▇
▇▇▇▇ in each such Trademark to the Administrative
Agent for the benefit of the Lenders;
(c) each such Trademark is subsisting
and has not been adjudged invalid or unenforceable,
in whole or in part;
(d) each such Trademark is valid and
enforceable;
(e) the Borrower or such Subsidiary has
made all necessary filings and recordations to
protect its interest in each such Trademark in the
United States Patent and Trademark Office;
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(f) the Borrower or such Subsidiary is
the exclusive owner of the entire and unencumbered
right, title and interest in and to each such
Trademark and no claim has been made that the use of
any such Trademark does or may violate the asserted
rights of any third party;
(g) the Borrower or such Subsidiary has
performed all acts and has paid all required fees and
taxes necessary or desirable to maintain each such
Trademark in full force and effect in the United
States;
(h) the Administrative Agent has a
security interest in each such Trademark, which
security interest is legal, valid, binding, perfected
and first priority under the U.C.C. and all other
applicable laws; and
(i) each such Trademark is subject to a
Trademark Assignment Agreement (as defined in the
applicable Security Agreement) that was duly executed
and delivered by the Borrower or such Subsidiary to
the Administrative Agent."
(b) by amending the definition of "Borrowing Base Amount"
set forth in such Section in its entirety to read as follows:
"`Borrowing Base Amount' means, at any time, an
amount equal to the sum (without duplication) of:
(a) 85% of Eligible Receivables at such time;
plus
(b) the lesser of (x) 100% of Eligible Cash and Cash
Equivalent Investments at such time and (y) $40,000,000;
plus
(c) the sum of (i) 90% of the Net Book Value of
all Eligible Repurchase Vehicles at such time and (ii) 85% of
the Non-Repurchase Value of all Eligible Non-Repurchase
Vehicles at such time;
plus
(d) the sum (without duplication) of (i) the
Applicable Trademark Percentage of the Appraised Value of all
Eligible Trademarks at such time, (ii) 25% of the Net Book
Value of all Eligible FF&E at such time and (iii) the
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Applicable Real Estate Percentage of the Net Book Value of all
Eligible Real Estate at such time; provided that in no event
shall the amount added to the Borrowing Base Amount pursuant
to this clause (d) exceed the sum of the preceding clauses (a)
through (c) for any determination of the Borrowing Base Amount
for July 31, 2001 or any date thereafter;
provided, however, that, at any time during an Investment Grade Period
or on or subsequent to the Collateral Release Date, the Borrowing Base
Amount shall be deemed to equal the Commitment Amount then in effect.";
(c) by amending the definition of "Net Book Value" in its
entirety to read as follows:
"`Net Book Value' means
(a) with respect to a Pledged Vehicle,
(i) as of any date of determination during the period
from the Pledge Date for such Pledged Vehicle to but
excluding the Determination Date with respect to the
Related Month in which such Pledge Date occurs (such
Determination Date, the "Initial Determination Date"
for such Pledged Vehicle), the Starting Net Book
Value of such Pledged Vehicle, (ii) as of the Initial
Determination Date for such Pledged Vehicle, (A) the
Starting Net Book Value for such Pledged Vehicle
minus (B) the aggregate Depreciation Charges accrued
with respect to such Pledged Vehicle through the last
day of the Related Month in which the Pledge Date for
such Pledged Vehicle occurred, (iii) as of any
Determination Date after the Initial Determination
Date, (A) the Net Book Value of such Pledged Vehicle
as calculated on the immediately preceding
Determination Date minus (B) the aggregate
Depreciation Charges accrued with respect to such
Pledged Vehicle during the Related Month (through the
last day thereof). After the Initial Determination
Date, on any day which is not a Determination Date,
the Net Book Value of a Pledged Vehicle shall be the
Net Book Value calculated for such Pledged Vehicle on
the most recent Determination Date; and
(b) with respect to Eligible FF&E or
Eligible Real Estate, as of any determination date,
the net book value thereof as included in the
consolidated balance sheet of the Borrower and its
Subsidiaries as of the last day of then most recently
completed calendar month in a manner consistent with
the preparation of the balance sheet of the Borrower
and its Subsidiaries for the 1999 Fiscal Year.";
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SECTION II.2.3. Amendment to Section 2.1.3 ("Lenders Not Permitted or
Required To Make Loans or Issue Letters of Credit Under Certain Circumstances")
of the Credit Agreement. Section 2.1.3 of the Credit Agreement is hereby amended
in its entirety to read as follows:
"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, together with all
Letter of Credit Outstandings, would exceed the
lesser of (A) the Commitment Amount and (B) the then
existing Borrowing Base Amount, or
(ii) of such Lender, together with its
Percentage of all Letter of Credit Outstandings,
would exceed such Lender's Percentage of the lesser
of (A) the Commitment Amount and (B) the then
existing Borrowing Base Amount, or
(iii) of all Lenders would exceed the Loan
Availability Amount; or
(iv) of such Lender would exceed such
Lender's Percentage of the Loan Availability 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,
together with the aggregate outstanding principal
amount of all Loans of all Lenders would exceed the
lesser of (A) the Commitment Amount and (B) the then
existing Borrowing Base Amount, or
(ii) such Lender's Percentage of all
Letter of Credit Outstandings, together with the
aggregate outstanding principal amount of all Loans
of such Lender would exceed such Lender's Percentage
of the lesser of (A) the Commitment Amount and (B)
the then existing Borrowing Base Amount."
SECTION II.2.4. Amendment to Section 2.2.2 ("Mandatory") of the Credit
Agreement. Section 2.2.2 of the Credit Agreement is hereby amended by
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(a) deleting the parenthetical "(or to the payment of
Contingent Additional Consideration (as defined in Section 3.4 of the
Ryder Merger Agreement) or the Total Warrant Value (as defined in
Section 3.5 of the Ryder Merger Agreement) to the extent permitted by
clause (ii) of the proviso to clause (a) of Section 8.2.6)" therefrom
and substituting therefor the following parenthetical:
"(or, in the case of Net Disposition Proceeds resulting from
the permitted disposition of Specified Real Estate Assets, to
the acquisition of any property or assets (other than
Indebtedness or Capital Stock) to be used in the business of
the Borrower and its Subsidiaries, so long as, in the case
such Specified Real Estate Assets constituted Eligible Real
Estate, the portion of the consideration received by the
Borrower or its relevant Subsidiary in respect of each such
permitted disposition that is equal to the Applicable Real
Estate Percentage of the Net Book Value of such Eligible Real
Estate as of the last day of the then most recently completed
month is maintained from (and including) the date the Borrower
or such Subsidiary receives such consideration as Eligible
Cash and Cash Equivalent Investments hereunder)"; and
(b) inserting the following parenthetical at the end of
clause (a)(i)(B) of the proviso thereto: "(other than Net Disposition
Proceeds which are required to be maintained upon receipt as Eligible
Cash and Cash Equivalent Investments pursuant to the immediately
preceding clause (a)(i)(A))".
SECTION II.2.5. Amendment to Section 3.1 ("Repayments and Prepayments")
of the Credit Agreement. Section 3.1 of the Credit Agreement is hereby amended
by
(a) deleting the word "and" at the end of clause (b)
thereof;
(b) relettering clause (c) thereof to be clause (d)
thereof; and
(c) inserting a new clause (c) thereto, which clause
shall read in its entirety as follows:
"(c) shall, on the last Business Day of May of
each Fiscal Year, repay all Loans; and".
SECTION II.2.6. Amendment to Section 4.2 ("Issuances and Extensions")
of the Credit Agreement. Section 4.2 of the Credit Agreement is hereby amended
to insert the following sentence at the end thereof:
"Notwithstanding anything to the contrary herein, no Letter of Credit
may be issued on or after Sixth Amendment Effective Date other than (i)
a Letter of Credit issued in replacement of an existing Letter of
Credit outstanding on the Sixth Amendment
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Effective Date (provided that the Stated Amount of such replacement
Letter of Credit shall not exceed the Stated Amount of such existing
Letter of Credit), whether or not such replacement Letter of Credit is
issued to the same beneficiary of, or for the same purpose as, the
Letter of Credit being replaced, and (ii) Permitted Letters of Credit.
Not in limitation of, but in furtherance of, the foregoing, the Stated
Amount of each Letter of Credit (including each Enhancement Letter of
Credit) outstanding on the Sixth Amendment Effective Date or initially
issued thereafter shall not be increased in excess of the Stated Amount
thereof as in effect on the Sixth Amendment Effective Date or the date
of the initial issuance thereof, respectively."
SECTION II.2.7. Amendment to Section 6.2.4 ("Compliance Certificate")
of the Credit Agreement. Section 6.2.4 of the Credit Agreement is hereby amended
in its entirety to read as follows:
"SECTION 6.2.4. Cash Flow Certificate. With respect to each
Credit Extension requested after March 31, 2001, a certificate executed
by an Authorized Officer that is the chief financial officer, chief
accounting officer, treasurer or controller of the Borrower, (a)
certifying and showing (in reasonable detail and with appropriate
calculations and computations (and, if applicable, projections and
assumptions) in all respects satisfactory to the Administrative Agent)
that the cash flow of the Borrower and its Domestic Subsidiaries used
to fund the operations of the Borrower and its Subsidiaries conducted
in Europe, the Middle East and Africa for the period commencing on
January 1, 2001 and ending on the last day of the then most recently
completed month is not greater than the amount set forth opposite such
month in Schedule IX hereto and (b) certifying that neither the
Borrower nor any of its Subsidiaries is aware of any event or
circumstance that exists or is reasonably likely to exist that could
reasonably be expected to result in a failure to meet the cumulative
cash flow amounts set forth in Schedule IX hereto or a Default arising
in respect of a clause (ii) of the proviso to Section 8.2.5."
SECTION II.2.8. Amendment to Section 8.1.1 ("Financial Information,
Reports, Notices, etc.") of the Credit Agreement. Section 8.1.1 of the Credit
Agreement is hereby amended by
(a) deleting the word "and" at the end of clause (n)
thereof;
(b) relettering clause (o) thereof to be clause (q)
thereof; and
(c) inserting new clauses (o) and (p) thereto, which
clauses shall read in their entirety as follows:
"(o) promptly upon receipt thereof, copies of all
material reports submitted to the Borrower or any of its
Subsidiaries by independent public
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accountants in connection with each annual, interim or special
audit of the financial statements of the Borrower and/or its
Subsidiaries made by such accountants, including any comment
letter submitted by such accountants to management in
connection with their annual audit;
(p) on or prior to March 9, 2001, 13-Week
Consolidated Cash Flow Projections for the period commencing
on March 10, 2001, and on or prior to the second Friday of
each calendar month subsequent to March 2001, 13-Week
Consolidated Cash Flow Projections for the period commencing
with the immediately succeeding Saturday; and"
SECTION II.2.9. Amendment to Section 8.1.5 ("Books and Records") of
the Credit Agreement. Section 8.1.5 of the Credit Agreement is hereby amended
by:
(a) inserting the clause designation "(a)" immediately
following the heading of such Section and immediately preceding the
first sentence of such Section;
(b) deleting the penultimate sentence of such newly
lettered clause (a) of such Section and inserting the following
sentence in lieu thereof:
"In addition to, and without limiting the effect of the
foregoing provisions of this Section, (i) the Administrative
Agent shall be permitted to engage consultants (other than
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) reasonably acceptable to the Lender Committee
Members to review the Borrower's calculation of the Borrowing
Base Amount from time to time and the documents to be
furnished from time to time pursuant to Section 8.1.1,
together with any other matter or matters relating to the
condition or operations, financial or otherwise, of the
Borrower or any of its Subsidiaries, in each case as the
Lender Committee Members may request (subject to the prior
consent of the Borrower as to the scope of such engagement,
which consent shall not be unreasonably withheld or delayed),
(ii) the Borrower will, and will cause each of its
Subsidiaries to, permit such consultants to have access to
their respective books, records, officers and accountants for
the purpose of completing their engagement and otherwise
cooperate with such consultants in completing their
engagement, and (iii) the Borrower shall pay any fees and
out-of-pocket expenses of such consultants for such engagement
that are incurred in connection with the provisions of this
sentence (it being understood that, assuming timely delivery
of the documents required to be delivered by the Borrower
pursuant to Section 8.1.1 and compliance by the Borrower and
its Subsidiaries with the terms of this Section, each such
engagement should, unless otherwise consented to by the
Borrower, end on or prior to June 30, 2001 and not require the
engagement by such consultants of their own accountants).";
and
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(c) adding a new clause (b) to such Section, which clause
(b) shall read in its entirety as follows:
"(b) The Borrower shall also arrange for a
meeting to be held during the week of April 9, 2001 (with the
ability to participate by teleconference), pursuant to which
meeting the Lenders will be given an opportunity to discuss
the operations, financial condition and prospects of the
Borrower and its Subsidiaries (including the operations,
financial condition and prospects of the Borrower and its
Subsidiaries in Europe, the Middle East and Africa) with the
officers of the Borrower. The Borrower shall provide at least
5 Business Days' prior written notice of such meeting and such
meeting shall occur during regular business hours on a
Business Day."
SECTION II.2.10. Amendment to Section 8.1 ("Affirmative Covenants") of
the Credit Agreement. Section 8.1 of the Credit Agreement is hereby amended by
adding a new Section 8.1.13 and Section 8.1.14 thereto:
"SECTION 8.1.13. High Tide Debentures Deferral. The Borrower
shall (a) take all actions necessary under the High Tides Debentures
Indenture (including the delivery of any notices required thereunder)
to ensure that the payment of interest on the High Tides Debentures
will be deferred for five consecutive quarterly interest payments
beginning with the interest payment that would otherwise have been due
on March 15, 2001 and (b) provide evidence satisfactory to the
Administrative Agent concurrently with the taking of such actions that
such actions have in fact been taken.
SECTION 8.1.14. Required Seasonal Facility. The Borrower
shall cause a Required Seasonal Facility to be in effect prior to April
30, 2001."
SECTION II.2.11. Amendment to Section 8.2.4 ("Financial Condition") of
the Credit Agreement. Section 8.2.4 of the Credit Agreement is hereby amended by
(a) inserting a new clause (d) thereto, which clause (d)
shall read in its entirety as follows:
"(d) as of the last day of any Fiscal Quarter set
forth below, Adjusted EBITDA of the Borrower (without giving
effect to Excluded EMEA Losses) for the four consecutive
Fiscal Quarters ending on such day to be less than the amount
set forth opposite such Fiscal Quarter:
MINIMUM ADJUSTED
FISCAL QUARTER EBITDA
-------------- -----------------
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MINIMUM ADJUSTED
FISCAL QUARTER EBITDA
-------------- ----------------
The first Fiscal Quarter of the
2001 Fiscal Year $ 49,200,000
The second Fiscal Quarter of
the 2001 Fiscal Year $ 36,100,000
The third Fiscal Quarter of the
2001 Fiscal Year $ 56,800,000
The fourth Fiscal Quarter of
the 2001 Fiscal Year $ 124,100,000."; and
(b) by inserting a new clause (e) thereto, which clause (e)
shall read in its entirety as follows:
"(e) the taking or occurrence of any extraordinary
and non-recurring charges or expenses against Net Income
during the fourth Fiscal Quarter of the 2000 Fiscal Year other
than extraordinary and non-recurring charges or expenses in
respect of the operations of the Borrower and its Subsidiaries
conducted in Europe, the Middle East and Africa and Permitted
4Q 2000 Restructuring Expenses.".
SECTION II.2.12. Amendment to Section 8.2.5 ("Investments") of the
Credit Agreement. Section 8.2.5 of the Credit Agreement is hereby amended by:
(a) amending clause (g) thereto in its entirety to read as
follows:
"(g) Investments by the Borrower and Subsidiary
Guarantors in Subsidiaries of the Borrower (other than Budget
Capital) that are not permitted by the preceding clause (f),
by way of contributions to capital, the making of loans or
advances or the incurrence of Contingent Liabilities (other
than Contingent Liabilities permitted pursuant to clause (t)
of Section 8.2.2), to the extent the aggregate amount of such
Investments in any Fiscal Year does not exceed (x) for each
Fiscal Year up to and including the 1999 Fiscal Year,
$35,000,000, (y) for the 2000 Fiscal Year, $30,000,000, and
(z) for the remaining term of the Agreement, $39,000,000 and
the aggregate amount of such Investments at any time
outstanding does not exceed $104,000,000;";
(b) amending clause (j) thereof to delete the word "and" at
the end of such clause;
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(c) amending clause (k) thereof to insert the word "and" at
the end of such clause;
(d) inserting a new clause (l) thereto, which new clause shall
read in its entirety as follows:
"(l) Investments received as a result of the sale,
transfer or conveyance of any of the property, business or
assets of the Borrower or any of its Subsidiaries pursuant to,
and in accordance with, clause (c) of Section 8.2.10 and
identified in Schedule X hereto or, in the event received
after the Sixth Amendment Effective Date, to the extent the
Administrative Agent (for the benefit of the Secured Parties)
has a first priority, perfected security interest in such
Investments;"; and
(e) amending clause (ii) of the proviso thereto in its
entirety to read as follows:
"(ii) no Investment proposed to be made after
November 1, 2000 that would otherwise be permitted hereunder,
including any Investment that would be permitted under clause
(f), (g), (i) or (k), shall be permitted to be made during any
period set forth below to the extent the amount of such
Investment that would be utilized, directly or indirectly, in
connection with the operations conducted by the Borrower and
its Subsidiaries in Europe, the Middle East and Africa would
exceed, when taken together with the aggregate amount of all
other such Investments made during such period, the amount set
forth opposite such period
Period Amount
------ ------
November 1, 2000 through
January 31, 2001 $ 30,000,000
February 1, 2001 through
March 31, 2001 $ 19,000,000
April 1, 2001 through
June 30, 2001 $ 6,000,000
July 1, 2001 through
September 30, 2001 $ 0
September 30, 2001 through
December 31, 2001 $ 4,000,000
Thereafter $ 0;
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provided, that, to the extent such Investments are made in any
period set forth above in an amount less than the maximum
amount permitted for such period as provided in this clause
(inclusive of any increase to such maximum amount as a result
of the operation of this proviso), such Investments which the
Borrower or its Subsidiaries may make in the immediately
subsequent period set forth above (but not for any period
commencing after December 31, 2001) shall be increased by the
amount of such permitted Investments not so made in the
immediately preceding period; and".
SECTION II.2.13. Amendment to Section 8.2.6 ("Restricted Payments,
etc.") of the Credit Agreement. Clause (c) of Section 8.2.6 of the Credit
Agreement is hereby amended by deleting the word "and" at the end thereof and by
inserting the following proviso (flush against the applicable left margin):
"provided, however, that, notwithstanding anything to the contrary, no
payments of interest shall be made under the High Tides Debenture or
High Tides Debenture Indenture during the period from the Sixth
Amendment Effective Date to June 1, 2002; and".
SECTION II.2.14. Amendment to Section 8.2.7 ("Capital Expenditures,
etc.") of the Credit Agreement. Clause (a) of Section 8.2.7 of the Credit
Agreement is hereby amended in its entirety to read as follows:
"(a) The Borrower will not, and will not permit any of its
Subsidiaries to, make or commit to make Capital Expenditures in any
Fiscal Year, except (i) Capital Expenditures for the acquisition of
Vehicles and (ii) other Capital Expenditures which do not aggregate in
excess of the amount set forth below opposite such Fiscal Year:
1998 $ 86,000,000
1999 $ 110,000,000
2000 $ 60,000,000
2001 $ 35,000,000
2002 $ 35,000,000
2003 $ 35,000,000."
SECTION II.2.15. Amendment to Section 8.2.10 ("Asset Dispositions,
etc.") of the Credit Agreement. Clause (c)(ii) of Section 8.2.10 of the Credit
Agreement is hereby amended by inserting the parenthetical "(other than
Specified Real Estate Assets)" after the phrase "the fair market value of such
assets".
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SECTION II.2.16. Amendment to Section 8.2 ("Negative Covenants") of the
Credit Agreement. Section 8.2 of the Credit Agreement is hereby amended by
inserting a new Section 8.2.17 and Section 8.2.18 thereto, which new Sections
shall read in their entirety as follows:
"SECTION 8.2.17. Pledged Vehicles. The Borrower shall not
permit, on March 31, 2001 and during the immediately succeeding 10-day
period and on June 30, 2001 and during the immediately succeeding
10-day period, the sum of (i) the Net Book Value of all Eligible
Repurchase Vehicles during such period and (ii) the Non-Repurchase
Value of all Eligible Non-Repurchase Vehicles during such period to be
less than (x) $55,000,000 in the case where such period is the period
commencing March 31, 2001 or (y) $75,000,000 in the case where such
period is the period commencing June 30, 2001.
SECTION 8.2.18. Certain Issuances. The Borrower shall not, and
shall not permit any of its Subsidiaries to, issue, or agree to issue,
any shares of its Capital Stock, including any warrants, options or
other rights to acquire its Capital Stock (and including in Capital
Stock for purposes of this Section 8.2.18 stock appreciation rights or
similar rights), to any provider, underwriter or arranger of any
secured financing to the Borrower or any of its Subsidiaries (or any
Affiliate of such provider, underwriter or arranger) in connection with
the providing, underwriting or arranging of such financing, unless
(i) prior written notice of such financing and such
issuance setting forth the terms and conditions thereof is
furnished to each Lender Committee Member, and
(ii) in the event the Lender Committee Members
holding a majority of the Commitment Amount held in the
aggregate by them determine that such Capital Stock, when
taken together with all other compensation to be received by
such provider, underwriter or arranger (including (x)
structuring, underwriting, placement, arrangement and similar
fees, (y) commitment, usage and similar fees and (z) interest
and other charges in respect of credit actually extended, in
each case whether payable in cash or other property), would
exceed the compensation that such Lender Committee Members in
good faith determine would be customary for such financing,
the Borrower has issued to each Lender, or has caused its
relevant Subsidiary to issue to each Lender, such Lender's pro
rata portion (based on such Lender's Percentage of the
Commitment Amount) of shares or rights of the class or type of
Capital Stock issued or issuable in connection with such
financing the aggregate value of which shares or rights such
Lender Committee Members determine in good faith is equal to
such excess multiplied by a fraction the numerator or which is
equal to the Commitment
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Amount and the denominator of which is equal to the aggregate
amount of such financing."
SECTION II.2.17. Amendment to Section 9.1.3 ("Non-Performance of
Certain Covenants and Obligations") of the Credit Agreement. Section 9.1.3 of
the Credit Agreement is hereby amended by deleting the words ", or 8.1.9"
therefrom and inserting the words ", 8.1.9, 8.1.13 or 8.1.14" in lieu thereof.
SECTION II.2.18. Amendment to Section 9.1.5 ("Default on Other
Indebtedness, etc.") of the Credit Agreement. Section 9.1.5(b) of the Credit
Agreement is hereby amended by inserting the phrase "or any Replacement
Facility" after the term "CP Program".
SECTION II.2.19. Amendment to Section 10.3 ("Exculpation") of the
Credit Agreement. Section 10.3 of the Credit Agreement is hereby amended to add
the following sentence at the end of such Section:
"In connection with the Sixth Amendment, a committee comprised
of Lender Committee Members was established to assist the
Administrative Agent in making certain evaluations and
decisions under the Credit Agreement and the other Loan
Documents, and in connection therewith, and in reliance of
this sentence, each Lender Committee Member shall be entitled
in its capacity as such to all rights and benefits afforded to
the Administrative Agent under the provisions of this Section
10.3 and any similar provision hereunder or under any other
Loan Document.".
SECTION II.2.20. Amendment to Section 10.4 ("Successor") of the Credit
Agreement. Clause (b) of Section 10.4 of the Credit Agreement is hereby amended
in its entirety to read as follows:
"(b) Section 11.3 and Section 11.4 shall continue to insure to
its benefit."
SECTION II.2.21. Amendment to Article X ("The Agents") of the Credit
Agreement. Article X of the Credit Agreement is hereby amended by adding a new
Section 10.8 thereto:
"SECTION 10.8. Release of Collateral. Each Secured Party
irrevocably authorizes the Administrative Agent to release any
Guarantor from its obligations under the Subsidiary Guaranty and any
Lien granted to or held by or in favor of the Administrative Agent for
the benefit of the Secured Parties upon the occurrence of the date by
which all Obligations have been paid in full in cash and all Letters of
Credit and Commitments have expired or been terminated or in connection
with (i) collateral under the Loan Documents being disposed of in
accordance with the terms of Section 8.2.10 and the other relevant
provisions of this Agreement or (ii) the release of any Guarantor the
Capital Stock of which has been disposed of in accordance with the
terms of Section 8.2.10 and the other relevant provisions of this
Agreement; provided, however, that the
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Administrative Agent may, prior to any such release, request that the
Borrower certify in a written notice delivered to the Administrative
Agent (with such detail as the Administrative Agent may reasonably
request) that such disposition or release is made in compliance with
the terms of the Loan Documents. Upon request by the Administrative
Agent at any time, each Secured Party will confirm in writing the
Administrative Agent's authority to release any Guarantor or particular
types or items of collateral under the Loan Documents pursuant to this
Section 10.8.".
SECTION II.2.22. Amendment to Schedules and Exhibits to the Credit
Agreement. (a) The schedules to the Credit Agreement are amended to include
Annexes I, II, III and IV hereto as Schedules VII, VIII, IX and X, respectively,
to the Credit Agreement.
(b) The exhibits to the Credit Agreement are amended to
(i) reletter Exhibit D ("Form of Compliance Certificate") to
the Credit Agreement to be Exhibit D-2 to the Credit Agreement;
(ii) to include Annex V hereto as Exhibit D-1 to the Credit
Agreement; and
(iii) to amend and restate Exhibit E ("Form of Borrowing Base
Certificate") to the Credit Agreement in its entirety to read as set
forth in Annex VI hereto.
SECTION II.3. Consent. The parties hereto hereby agree that the
Borrowing Base Certificate that is to be delivered by the Borrower pursuant to
Section 3.7 (the "December Borrowing Base Certificate") shall be deemed to (a)
constitute the Borrowing Base Certificate required to be delivered under the
Credit Agreement in respect of the month ending December 31, 2000 and (b)
substitute for any previously delivered Borrowing Base Certificate for such
month for all purposes of the Credit Agreement and each other Loan Document as
if the December Borrowing Base Certificate had been delivered on the date such
previously delivered Borrowing Base Certificate was delivered.
ARTICLE III
CONDITIONS TO EFFECTIVENESS
This Amendment, and the amendments and modifications contained herein,
shall be and shall become effective as of the date hereof subject to the
satisfaction of each of the conditions set forth in this Article III to the
satisfaction of the Administrative Agent.
SECTION III.1. Execution of Counterparts. The Administrative Agent
shall have received counterparts of this Amendment, duly executed and delivered
on behalf of the Borrower and each of the Required Lenders; provided that the
amendments and modifications
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set forth in Section 2.2.2 and Section 2.2.22(b)(iii) and the consent set forth
in Section 2.3 shall not become effective unless the Administrative Agent shall
have received counterparts of this Amendment duly executed and delivered by each
of the Supermajority Lenders.
SECTION III.2. Closing Date Certificate. The Administrative Agent shall
have received, with counterparts for each Lender, a certificate, dated the Sixth
Amendment Effective Date, appropriately completed and duly executed and
delivered by an Authorized Officer of the Borrower in which certificate the
Borrower shall agree and acknowledge that the statements made therein shall be
deemed to be true and correct representations and warranties of the Borrower
made as of such date and, at the time such certificate is delivered, such
statements shall in fact be true and correct.
SECTION III.3. Execution of Affirmation and Acknowledgment. The
Administrative Agent shall have received an affirmation and acknowledgment,
dated the Sixth Amendment Effective Date and 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.
SECTION III.4. Opinions of Counsel. The Administrative Agent shall have
received opinions, dated the Sixth Amendment Effective Date and addressed to the
Agents, the Issuer and the Lenders, from (i) King & Spalding, counsel to the
Obligors, and (ii) the general counsel of the Borrower, in each case, in form
and substance satisfactory to the Administrative Agent.
SECTION III.5. Amendment Fee. The Administrative Agent shall have
received the amendment fees due and payable pursuant to Section 5.4.
SECTION III.6. Fees and Expenses. The Administrative Agent shall have
received all fees and expenses due and payable pursuant to Section 5.5 (to the
extent then invoiced) and pursuant to the Credit Agreement (including all
previously invoiced fees and expenses).
SECTION III.7. Borrowing Base Certificate. As an additional condition
precedent to the effectiveness of the amendments and modifications set forth in
Section 2.2.2 and Section 2.2.22(b)(iii) and the consent set forth in Section
2.3, the Administrative Agent shall have received, with counterparts for each
Lender, a Borrowing Base Certificate, substantially in the form of Annex VI
hereto (and utilizing the Applicable Real Estate Percentage and Applicable
Trademark Percentage that would be relevant for the First Quarter of the 2001
Fiscal Year) and dated the Sixth Amendment Effective Date, for the calendar
month ending December 31, 2000 that is calculated as of such date, certified by
an Authorized Officer of the Borrower.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION IV.1. Representations and Warranties. In order to induce the
requisite Lenders and the Administrative Agent to enter into this Amendment, the
Borrower hereby represents and warrants to the Administrative Agent, the Issuer
and each Lender, as of the date hereof, as follows:
(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 the Borrower to the Agents, the
Issuer and the Lenders pursuant to Section 7.7 of the Credit Agreement
(i no labor controversy, litigation, arbitration or
governmental investigation or proceeding is pending or, to the
best knowledge of the Borrower, threatened against the
Borrower or any of its Subsidiaries which might materially
adversely affect the Borrower's consolidated business,
operations, assets, revenues, properties or prospects or which
purports to affect the legality, validity or enforceability of
this Agreement, the Notes or any other Loan Document; 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 might materially adversely
affect the consolidated businesses, operations, assets,
revenues, properties or prospects of the Borrower and its
Subsidiaries;
(c after giving effect to this Amendment, no Default has
occurred and is continuing, and neither the Borrower nor any of its
Subsidiaries nor any other Obligor is in material violation of any law
or governmental regulation or court order or decree;
(d this Amendment has been duly authorized, executed and
delivered by the Borrower and constitutes a legal, valid and binding
obligation of the Borrower, 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; and
(e the execution, delivery and performance by the Borrower and
its Subsidiaries of this Amendment and each other Loan Document
executed or to be executed by any of them in connection therewith are
within the Borrower's and each such Subsidiary's corporate powers, have
been duly authorized by all necessary corporate action, and do
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not (i) contravene the Borrower's or such Subsidiary's Organic
Documents, (ii) contravene any contractual restriction, law or
governmental regulation or court decree or order binding on or
affecting the Borrower or such Subsidiary or (iii) 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) on any of the Borrower's or
such Subsidiary's properties.
SECTION IV.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 factual information heretofore or
contemporaneously furnished by the Borrower in writing to any Agent, the Issuer
or any Lender for purposes of or in connection with this Amendment or any
transaction contemplated hereby 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 misleading. All projections delivered to
any Agent or any Lender by or on behalf of the Borrower (including the Initial
13-Week Consolidated Cash Flow Projections) have been prepared in good faith by
the Borrower and represent the best estimates of the Borrower, as of the date
hereof, of the reasonably expected future performance of the businesses
reflected in such projections.
SECTION IV.3. Compliance with Credit Agreement. After giving effect to
this Amendment, each Obligor is in compliance with all the terms and conditions
of the Credit Agreement and the other Loan Documents to be observed or performed
by it thereunder, and no Default has occurred and is continuing.
ARTICLE V
MISCELLANEOUS
SECTION V.1. Full Force and Effect; Limited Amendment. Except as
expressly provided herein, all of the representations, warranties, terms,
covenants, conditions and other provisions of the Credit Agreement and the other
Loan Documents shall remain in full force and effect in accordance with their
respective terms and are in all respects hereby ratified and confirmed. The
amendments set forth herein shall be limited precisely as provided for herein to
the provisions expressly amended herein, waived hereby or consented to hereby
and shall not be deemed to be an amendment to, waiver of, 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 the Borrower or any other Obligor which would
require the consent of any of the Lenders under the Credit Agreement or any of
the other Loan Documents.
SECTION V.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,
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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 V.3. Further Assurances. The Borrower hereby agrees that it
will take any action that from time to time may be reasonably necessary to
effectuate the amendments contemplated herein.
SECTION V.4. Amendment Fee. Upon satisfaction of the condition set
forth in Section 3.1, the Borrower shall pay, without setoff, deduction or
counterclaim, a non-refundable amendment fee for the account of each Lender that
has executed and delivered (including delivery by way of facsimile) a copy of
this Amendment to the attention of ▇▇. ▇▇▇▇▇▇▇ ▇▇▇ at ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (19th floor), telecopy number ▇▇▇-▇▇▇-▇▇▇▇ at
or prior to noon, New York time, on February 13, 2001 (as such time may be
extended by the Borrower), in the amount of 1/4 of 1% of such Lender's
Commitment. The aggregate amount of such amendment fee shall be paid at or prior
to noon, New York time, on February 14, 2001 (or, in the event the date in the
immediately preceding sentence has been extended, the Business Day that
immediately succeeds such extended date) to the Administrative Agent for the pro
rata account of the Lenders entitled to receive such amendment fee.
SECTION V.5. Fees and Expenses. The Borrower shall pay all reasonable
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, and ▇▇▇▇▇, as counsel for the Administrative
Agent.
SECTION V.6. 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 V.7. Execution in Counterparts. This Amendment may be executed
by the parties hereto in 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 V.8. 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 V.9. Severability. Any provision of this Amendment 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 Amendment
or affecting the validity or enforceability of such provision in any other
jurisdiction.
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SECTION V.10. 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 V.11. GOVERNING LAW. THIS AMENDMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers or general partners (or their respective
officers) thereunto duly authorized as of the day and year first above written.
BUDGET GROUP, INC.
By
---------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON, as a Lender
and the Administrative Agent
By
---------------------------------------
Name:
Title:
By
---------------------------------------
Name:
Title:
BANK OF AMERICA, N.A.
By
---------------------------------------
Name:
Title:
BANK OF HAWAII
By
---------------------------------------
Name:
Title:
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32
BANK OF MONTREAL
By
---------------------------------------
Name:
Title:
THE BANK OF NEW YORK
By
---------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By
---------------------------------------
Name:
Title:
THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH
By
---------------------------------------
Name:
Title:
BANK POLSKA KASA OPIEKI S.A. - PEKAO
S.A. GROUP, NEW YORK BRANCH
By
---------------------------------------
Name:
Title:
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33
BANK UNITED
By
---------------------------------------
Name:
Title:
BANKERS TRUST COMPANY
By
---------------------------------------
Name:
Title:
BNP PARIBAS
By
---------------------------------------
Name:
Title:
By
---------------------------------------
Name:
Title:
BANQUE WORMS CAPITAL CORPORATION
By
---------------------------------------
Name:
Title:
S-3
34
BHF (USA) CAPITAL CORPORATION
By
---------------------------------------
Name:
Title:
By
---------------------------------------
Name:
Title:
CHASE MANHATTAN BANK, N.A.
By
---------------------------------------
Name:
Title:
CREDIT INDUSTRIEL ET COMMERCIAL
By
---------------------------------------
Name:
Title:
By
---------------------------------------
Name:
Title:
COMMERZBANK AKTIENGESELLSCHAFT,
CHICAGO BRANCH
By
---------------------------------------
Name:
Title:
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35
By
---------------------------------------
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By
---------------------------------------
Name:
Title:
By
---------------------------------------
Name:
Title:
CREDIT LYONNAIS CHICAGO BRANCH
By
---------------------------------------
Name:
Title:
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By
---------------------------------------
Name:
Title:
By
---------------------------------------
Name:
Title:
▇-▇
▇▇
▇▇▇▇▇ ▇▇▇▇ DER OESTERREICHISCHEN
SPARKASSEN AG
By
---------------------------------------
Name:
Title:
By
---------------------------------------
Name:
Title:
FLEET BANK, N.A.
By
---------------------------------------
Name:
Title:
THE FUJI BANK, LIMITED
By
---------------------------------------
Name:
Title:
IMPERIAL BANK
By
---------------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION
By
---------------------------------------
Name:
Title:
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37
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By
---------------------------------------
Name:
Title:
NATEXIS BANQUE
By
---------------------------------------
Name:
Title:
By
---------------------------------------
Name:
Title:
SATELLITE DISTRESSED CREDITS FUND, LLC
By: Satellite Asset Management, L.P., its
Investment Manager
By
-----------------------------------
Name:
Title:
SOUTHERN PACIFIC BANK
By
---------------------------------------
Name:
Title:
S-7
38
THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH
By
---------------------------------------
Name:
Title:
SUNTRUST BANK CENTRAL FLORIDA, N.A.
By
---------------------------------------
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
By
---------------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By
---------------------------------------
Name:
Title:
S-8
39
THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH
By
---------------------------------------
Name:
Title:
SUNTRUST BANK CENTRAL FLORIDA, N.A.
By
---------------------------------------
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
By
---------------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By
---------------------------------------
Name:
Title:
S-8
