Exhibit 10.3
TWELFTH AMENDMENT, WAIVER AND CONSENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS TWELFTH AMENDMENT, WAIVER AND CONSENT TO AMENDED AND RESTATED
CREDIT AGREEMENT, dated as of April 8, 2002 (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, the Sixth Amendment to Amended and
Restated Credit Agreement, dated as of February 9, 2001, the Seventh Amendment
and Consent to Amended and Restated Credit Agreement, dated as of June 19, 2001,
the Eighth Amendment and Consent to Amended and Restated Credit Agreement, dated
as of July 31, 2001, the Ninth Amendment, Waiver and Consent to Amended and
Restated Credit Agreement dated as of December 20, 2001, the Tenth Amendment,
Waiver and Consent to Amended and Restated Credit Agreement dated as of February
7, 2002, and the Eleventh Amendment, Waiver and Consent to Amended and Restated
Credit Agreement dated as of March 7, 2002, and as further amended,
supplemented, amended and restated or otherwise modified prior to the date
hereof, the "Credit Agreement");
WHEREAS, the Borrower desires to extend certain waivers and consents
obtained in the Tenth Amendment and to obtain certain related additional waivers
and consents from the requisite Lenders;
WHEREAS, absent the waivers and amendments contained herein the
Borrower would be unable to, among other things, request the issuance of General
Letters of Credit for its account because the Lenders' commitment to issue such
General Letters of Credit would have terminated as a result of the occurrence of
Events of Default on the part of the Borrower, and the Borrower desires to be
able to request and have issued after the date hereof General Letters of Credit
for its account in support of insurance requirements of the Borrower and its
Subsidiaries; and
WHEREAS, the requisite Lenders are willing, on and subject to the terms
and conditions set forth below (including, without limitation, the amendments to
the Credit Agreement provided for herein), to grant the waivers and consents
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");
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 third 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
AMENDMENTS, WAIVERS AND CONSENTS
SECTION II.1. Amendments. Subject to the satisfaction of the
conditions set forth in Article III, the Credit Agreement is hereby amended in
accordance with this Section 2.1.
SECTION II.1.1. Amendments to Section 1.1 ("Defined Terms") 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:
"`Acceleration Event' means all or any portion of the
principal evidenced by, or interest on, any Senior Note or any Series B
Note shall have been accelerated."
"`Interest Payment Notice' is defined in Section 8.1.20."
"`LC Collateralization Subaccount' is defined in Section 4.2."
"`Twelfth Amendment' means the Twelfth Amendment, Waiver and
Consent to Amended and Restated Credit Agreement, dated as of April 8,
2002, among the Borrower, the Lenders parties thereto and the
Administrative Agent."
"`Twelfth Amendment Effective Date' means the date the Twelfth
Amendment became effective in accordance with its terms."
"`Twelfth Amendment Extension Event' means payment of the
extension fee set forth in Section 5.4 of the Twelfth Amendment by the
Borrower in the amount and on the date set forth therein pursuant to
the terms thereof."
(b) amending the definition of "Applicable Commitment Fee"
contained in such Section by deleting the words "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" contained in the last
sentence of such definition and inserting the words "as of any date
occurring on or subsequent to the Sixth Amendment Effective Date" in
lieu thereof;
(c) amending the definition of "Applicable Margin" contained
in such Section by deleting the words "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" contained in the last sentence of such definition
and inserting the words "as of any date occurring on or subsequent to
the Sixth Amendment Effective Date" in lieu thereof; and
(d) amending the definition of "Eligible Cash and Cash
Equivalent Investments" contained in such Section by inserting the
following new sentence at the end of such definition:
"Notwithstanding anything to the contrary herein, `Eligible
Cash and Cash Equivalent Investments' shall not include any
cash or Cash Equivalent Investments held in the LC
Collateralization Subaccount.".
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SECTION II.1.2. Amendment to Section 4.2 ("Issuances and Extensions")
of the Credit Agreement. Section 4.2 of the Credit Agreement is hereby amended
by amending and restating the last sentence thereof to read in its entirety as
follows:
"Notwithstanding anything to the contrary herein, on and after the
Ninth Amendment Effective Date, no Letter of Credit may be issued and
the Stated Amount of any Letter of Credit then existing may not be
increased, other than
(i) the issuance of new Enhancement Letters of
Credit or the increase in the Stated Amount of existing
Enhancement Letters of Credit, provided that
(A) the aggregate Stated Amount of such
newly issued Enhancement Letters of Credit, together
with the aggregate increases in the Stated Amount of
such existing Enhancement Letters of Credit, does not
exceed (1) $53,550,000 or (2) if the Twelfth
Amendment Extension Event shall have occurred,
$58,550,000,
(B) concurrently with any such issuance or
increase, the aggregate Stated Amount of all other
Enhancement Letters of Credit is reduced
dollar-for-dollar in an amount equal to the aggregate
Stated Amount of such newly issued Enhancement
Letters of Credit and such increases in the Stated
Amount of such existing Enhancement Letters of
Credit, and
(C) in the case of issuances of new
Enhancement Letters of Credit, or increases in the
Stated Amount of existing Enhancement Letters of
Credit, on or after the Ninth Amendment Effective
Date, where such newly issued Enhancement Letters of
Credit and such increases to such existing
Enhancement Letters of Credit are issued or
increased, as the case may be, in connection with a
decrease of the Stated Amount of an existing
Enhancement Letter of Credit as a result of, or
relating to,
(1) the amortization of the medium
term notes for which such decreased,
existing Enhancement Letter of Credit
provided credit enhancement or support, the
aggregate Stated Amount of such newly issued
Enhancement Letters of Credit and such
increases to such increased, existing
Enhancement Letters of Credit shall not
exceed (x) $5,000,000 or (y) if the Twelfth
Amendment Extension Event shall have
occurred, $10,000,000, and
(2) the issuance of a new
subordinated class of notes under an
existing medium term note program, (x) the
terms and conditions (including the
collateral being provided therefor) of such
newly issued subordinated class of notes
shall be satisfactory
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in all respects to the Lender Committee
Members holding a majority of the Commitment
Amount held in the aggregate by them and (y)
the aggregate Stated Amount of such newly
issued Enhancement Letters of Credit and
such increases to such increased, existing
Enhancement Letters of Credit shall not
exceed $30,000,000, and
(ii) the issuance of General Letters of Credit or the
increase in the Stated Amount of existing General Letters of
Credit, in each case for the purpose of supporting the
insurance requirements of the Borrower and its Subsidiaries,
provided that the aggregate Stated Amount of such newly issued
General Letters of Credit, together with the aggregate
increases in the Stated Amount of such existing General
Letters of Credit, does not exceed
(A) subsequent to the Ninth Amendment
Effective Date and prior to the Tenth Amendment
Effective Date, $3,500,000,
(B) on or following the Tenth Amendment
Effective Date and prior to the Eleventh Amendment
Effective Date, $5,250,000,
(C) on or following the Eleventh Amendment
Effective Date and prior to the Twelfth Amendment
Effective Date, $7,000,000 or
(D) on or following the Twelfth Amendment
Effective Date, $8,750,000 so long as (1) each
General Letter of Credit that is issued on or
following the Twelfth Amendment Effective Date is
cash collateralized (it being acknowledged and agreed
that such cash collateralization shall (x) not be in
limitation of the grant by the Borrower of a security
interest in its cash held in its Deposit Accounts, as
defined in the Borrower Security Agreement (including
its Master Deposit Accounts, as defined in the
Borrower Security Agreement), and (y) consist of cash
collateral in an amount equal to 100% of the Stated
Amount of such General Letter of Credit held in a
segregated subaccount (the "LC Collateralization
Subaccount") of the existing Master Deposit Account
maintained at Xxxxxx Trust and Savings Bank, Chicago,
Illinois, which cash collateral shall not be released
to the Borrower or any of its Subsidiaries unless and
until (in addition to all other conditions to the
release of collateral) such General Letter of Credit
is no longer outstanding and any Reimbursement
Obligations in respect thereof shall have been paid
in full, and (2) following all such issuances, the
Letter of Credit Outstandings do not exceed
$430,000,000."
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SECTION II.1.3. Amendment to Section 8.1.13 ("High Tide Debentures
Deferral") of the Credit Agreement. Clause (a) of Section 8.1.13 of the Credit
Agreement is hereby amended by:
(a) inserting the clause lettering "(i)" followed by the word
"the" immediately following the words "the High Tides Debentures will
be deferred for" contained therein and immediately preceding the words
"five consecutive quarterly interest payments beginning with the
interest payment that would otherwise have been due on March 15, 2001"
contained in such clause (a); and
(b) inserting the word "and" immediately following such
clause (a); and
(c) inserting a new subclause (ii) immediately following such
clause (a) and the word "and" inserted at the end thereof pursuant to
clause (b) above, which new subclause shall read as follows:
"(ii) the seven consecutive quarterly interest payments
beginning with the interest payment that would otherwise have
been due following the five consecutive quarterly interest
payments that were required to have been deferred pursuant to
the immediately preceding subclause (i)".
SECTION II.1.4. Amendment to Section 8.1.16 ("Additional Collateral")
of the Credit Agreement. Section 8.1.16 of the Credit Agreement is hereby
amended by inserting a new sentence at the end of such Section, which new
sentence shall read in its entirety as follows:
"Not in limitation of, but in furtherance of, the foregoing,
the Borrower shall fulfill its obligations under the preceding
provisions of this Section 8.1.16 of the Credit Agreement as such
provisions relate to each of (i) BTI (UK) Plc, Budget Leasing Ltd. and
Polyhire Ltd. no later than April 19, 2002, (ii) Budget Deutschland
GmbH and Autohansa Autovermietung X. Xxxxxxx GmbH no later than April
23, 2002 and (iii) Business Rent a Car GmbH no later than April 23,
2002.".
SECTION II.1.5. Amendment to Section 8.1.17 ("Restructuring Plan,
etc.")of the Credit Agreement. Section 8.1.17 of the Credit Agreement is hereby
amended by amending and restating such Section to read in its entirety as
follows:
"SECTION 8.1.17. Restructuring Plan, etc. The Borrower shall
furnish, or shall cause to be furnished, to each Lender:
(a) (i) on or prior to April 24, 2002, its plan (the
"Restructuring Plan") (A) for restructuring the Indebtedness
of it and its Subsidiaries, (B) for obtaining financing for
the acquisition (or refinancing) of Vehicles necessary to meet
its business plan, and (C) for meeting its liquidity needs and
(ii) on or prior to May 14, 2002 (but in no event earlier than
May 9, 2002), a revised Restructuring Plan
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addressing the same matters referred to in the immediately
preceding subclause (i) but updated to reflect any change in
the circumstances, results, prospects or projections of the
Borrower and its Subsidiaries since the date that the
Restructuring Plan referred to in such subclause (i) was
prepared, and
(b) (i) on or prior to April 24, 2002, a business
plan, including cash flow projections, for the Borrower and
its Subsidiaries and (ii) on or prior to May 14, 2002 (but in
no event earlier than May 9, 2002), a revised business plan,
including cash flow projections, for the Borrower and its
Subsidiaries updated to reflect any change in the
circumstances, results, prospects or projections of the
Borrower and its Subsidiaries since the date that the business
plan referred to in the immediately preceding subclause (i)
was prepared, in each case, in the event the new equity
contemplated by the preliminary Restructuring Plan delivered
to the Lenders on February 25, 2002 is not raised and the
Borrower and its Subsidiaries are not able to acquire the
increased number of Vehicles that they have customarily
acquired to satisfy seasonal customer rental activity and
assuming (including details with respect to whether such
assumptions are reasonable at such time) agreements are
entered into that permit the Borrower and its Subsidiaries to
continue using their Vehicles for retail rental operations on
and after May 31, 2002, without any claim of any creditor that
would prevent (or have the effect of preventing) such
continued usage,
each such plan to be in form and scope reasonably satisfactory to the
Lender Committee Members holding a majority of the Commitment Amount
held in the aggregate by them; provided that, if any such plan is
initially not reasonably satisfactory in form and scope to such Lender
Committee Members, the Borrower shall have three Business Days from its
receipt of notice from such Lender Committee Members that such plan is
not in form and scope reasonably satisfactory to such Lender Committee
Members (which notice shall set forth the reasons such plan is not
satisfactory) to furnish a revised plan that is in form and scope
reasonably satisfactory to such Lender Committee Members.".
SECTION II.1.6. Amendment to Section 8.2.6 ("Restricted Payments,
etc.")of the Credit Agreement. The proviso to clause (c) of Section 8.2.6 of the
Credit Agreement is hereby amended by deleting the date "June 1, 2002" contained
therein and inserting the date "March 1, 2004" in lieu thereof.
SECTION II.1.7. Amendment to Section 9.2 ("Action if Bankruptcy") of
the Credit Agreement. Section 9.2 of the Credit Agreement is hereby amended by:
(a) amending and restating the heading thereof to read in its
entirety as follows:
"Action if Bankruptcy; Failure to Give Interest Payment Notice
in Respect of Series B Notes."; and
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(b) inserting the words "or Section 9.1.3 (in respect of, and
solely in respect of, the Borrower defaulting in the due performance
and observance of its obligations under Section 8.1.20 to give an
Interest Payment Notice in respect of the payment of interest on any
Series B Note)" immediately following the words "clauses (a) through
(d) of Section 9.1.9" and immediately preceding the words "shall
occur,", in each case, therein.
SECTION II.1.8. Amendment to Section 9.3 ("Action if Other Event of
Default") of the Credit Agreement. Section 9.3 of the Credit Agreement is hereby
amended by inserting the words "or Section 9.1.3 (in respect of, and solely in
respect of, the Borrower defaulting in the due performance and observance of its
obligations under Section 8.1.20 to give an Interest Payment Notice in respect
of the payment of interest on any Series B Note))" immediately following the
words "clauses (a) through (d) of Section 9.1.9" and immediately preceding the
words") shall occur for any reason,", in each case, therein.
SECTION II.2. Waivers and Consents. Subject to the satisfaction of
the conditions set forth in Article III, the Lenders, as of the date hereof,
hereby:
(a) so long as an Interest Payment Notice has not been given
and an Acceleration Event has not occurred, waive, until the earliest
of (x) (1) April 30, 2002, or (2) if the Twelfth Amendment Extension
Event shall have occurred, May 31, 2002, (y) the giving of an Interest
Payment Notice by the Borrower and (z) the occurrence of an
Acceleration Event, compliance by the Borrower with the provisions of
Section 8.2.4 of the Credit Agreement with respect to the fourth Fiscal
Quarter of the 2001 Fiscal Year and the first Fiscal Quarter of the
2002 Fiscal Year;
(b) so long as an Interest Payment Notice has not been given
and an Acceleration Event has not occurred, waive, until the earliest of
(x) (1) April 30, 2002, or (2) if the Twelfth Amendment Extension Event
shall have occurred, May 31, 2002, (y) the giving of an Interest Payment
Notice by the Borrower and (z) the occurrence of an Acceleration Event,
the Default arising under Section 9.1.5(a) of the Credit Agreement as a
result of the failure of the Borrower to pay interest on its Senior
Notes on April 1, 2002 or its Series B Notes on April 29, 2002;
(c) (i) so long as an Interest Payment Notice has not been
given and an Acceleration Event has not occurred, waive, until the
earliest of (w) April 16, 2002, (x) the date that the financial
statements referred to hereinafter are filed by the Borrower with the
SEC, (y) the giving of an Interest Payment Notice by the Borrower and
(z) the occurrence of an Acceleration Event, compliance by the Borrower
with the provisions of clauses (b) and (c) of Section
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8.1.1 of the Credit Agreement with respect to the delivery of its
annual audited financial statements for the 2001 Fiscal Year and the
related Compliance Certificate, respectively; and (ii) so long as the
Borrower delivers such financial statements and such Compliance
Certificate by the earliest such date referred to in the preceding
subclause (c)(i) in accordance with the terms of clauses (b) and (c) of
Section 8.1.1 of the Credit Agreement, the Lenders as of the date
hereof hereby consent to the inclusion of an Impermissible
Qualification of the type described in clause (a) of the definition
thereof in the independent public accountant's certification of such
audited financial statements; and
(d) consent to the Borrowing Base Amount calculated as of the
last day of February 2002 to be less than the aggregate unpaid
principal amount of all Loans and Letter of Credit Outstandings
outstanding during the period in which such Borrowing Base Amount is in
effect under the terms of the Credit Agreement, without requiring any
mandatory prepayments and/or cash collateralization under clause (b) of
Section 3.1.1 of the Credit Agreement;
(e) so long as an Interest Payment Notice has not been given
and an Acceleration Event has not occurred, consent, until the earliest
of (x) (1) April 30, 2002, or (2) if the Twelfth Amendment Extension
Event shall have occurred, May 31, 2002, (y) the giving of an Interest
Payment Notice by the Borrower and (z) the occurrence of an
Acceleration Event, to the Borrowing Base Amount calculated as of the
last day of March 2002 to be less than the aggregate unpaid principal
amount of all Loans and Letter of Credit Outstandings outstanding
during the period in which such Borrowing Base Amount is in effect
under the terms of the Credit Agreement, without requiring any
mandatory prepayments and/or cash collateralization under clause (b) of
Section 3.1.1 of the Credit Agreement; provided that the Borrowing Base
Amount is not less than $275,000,000 as of the last day of March 2002;
and
(f) so long as the Twelfth Amendment Extension Event has
occurred, an Interest Payment Notice has not been given and an
Acceleration Event has not occurred, consent, until the earliest of (x)
May 31, 2002, (y) the giving of an Interest Payment Notice by the
Borrower and (z) the occurrence of an Acceleration Event, to the
Borrowing Base Amount calculated as of the last day of April 2002 to be
less than the aggregate unpaid principal amount of all Loans and Letter
of Credit Outstandings outstanding during the period in which such
Borrowing Base Amount is in effect under the terms of the Credit
Agreement, without requiring any mandatory prepayments and/or cash
collateralization under clause (b) of Section 3.1.1 of the Credit
Agreement; provided that the Borrowing Base Amount is not less than
$275,000,000 as of the last day of April 2002.
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.
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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 requisite Lenders.
SECTION III.2. Effective Date Certificate. The Administrative Agent
shall have received, with counterparts for each Lender, a certificate, dated the
effective date of this Amendment (the "Twelfth 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 effective date of this Amendment 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. Fees and Expenses. (a) Amendment, Consent and Waiver
Fee. The Borrower shall have paid in cash no later than 3:00 p.m., New York time
on April 8, 2002, without setoff, deduction or counterclaim, a non-refundable
amendment, consent and waiver fee to the Administrative Agent for the pro rata
account of each Lender that has executed and delivered (including delivery by
way of facsimile) a copy of this Amendment to the attention of Xxxxxxx Xxx at
Mayer, Brown, Xxxx & Maw, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (00xx Xxxxx),
telecopy number 000-000-0000 at or prior to 12:00 noon, New York time, on April
8, 2002 (as such time may be extended by the Borrower), in the amount of 15
basis points of such Lender's Commitment as of the date hereof. Such amendment,
consent and waiver fee shall be paid in consideration for such Lender's
consenting to (x) the waivers and consents specifically set forth in Section 2.2
for the period from the date hereof through April 30, 2002 (or such shorter
period of time as specifically provided in Section 2.2) and (y) the amendments
specifically set forth in Section 2.1.
(b) Fees and Expenses. The Borrower shall have paid to the
Administrative Agent (and all other Persons entitled thereto) all fees and
expenses due and payable on or prior to the Twelfth Amendment Effective Date
pursuant to Section 5.5 (to the extent then invoiced) and pursuant to the Credit
Agreement (including all previously invoiced fees and expenses).
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
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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 7.6 and 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 pursuant to reports on
Form 10-Q and Form 10-K filed with the Securities and Exchange
Commission prior to the date hereof, there has been no material adverse
change in the business, property, operations, assets, liabilities,
condition (financial or otherwise) or prospects of the Borrower and its
Subsidiaries, taken as a whole, since December 31, 1997;
(c) 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;
(d) 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;
(e) 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
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(f) 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 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 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. Without
limiting the effect of any of the representations and warranties of this Article
IV, the Borrower has no reason to believe that it and its Subsidiaries will not
be in compliance with all the terms and conditions of the Credit Agreement and
the other Loan Documents during the period from the Twelfth Amendment Effective
Date through and including May 31, 2002, including the covenant that each lessee
under a Lease will make all payments required to be made by it thereunder on the
date such payments are required to be made thereunder and that each such lessee
will comply in all respects with each of its other obligations thereunder.
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
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confirmed. The amendments, waivers and consents 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, 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 immediate 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. Extension Fee. If the condition set forth in Section 3.1
shall have been satisfied and in consideration for extending the waivers and
consents specifically set forth in Section 2.2 from May 1, 2002 through May 31,
2002 (or such shorter period of time as specifically provided in Section 2.2),
the Borrower shall pay, without setoff, deduction or counterclaim, a
non-refundable extension 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 Xxxxxxx Xxx at Mayer, Brown, Xxxx & Maw, 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (00xx Xxxxx), telecopy number 000-000-0000 at or prior to
12:00 noon, New York time, on April 8, 2002 (as such time may be extended by the
Borrower), in the amount of 35 basis points of such Lender's Commitment as of
the date hereof. The aggregate amount of such extension fee shall be paid in
cash at or prior to 11:00 a.m., New York time, on May 1, 2002 to the
Administrative Agent for the pro rata account of the Lenders entitled to receive
such extension 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, Xxxx & Maw, counsel for the Administrative
Agent, and Wachtell, Lipton, Xxxxx & Xxxx, special restructuring 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.
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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.
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 /s/ Xxxxxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President & Treasurer
CREDIT SUISSE FIRST BOSTON, as a Lender and
the Administrative Agent
By /s/ Xxxxx Xxxxxx
---------------------------------------------
Name: Xxxxx Xxxxxx
Title:
By /s/ Xxxxxx Xxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
BANK OF AMERICA, N.A.
By
---------------------------------------------
Name:
Title:
THE BANK OF NEW YORK
By /s/ Xxxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
S-1
THE BANK OF NOVA SCOTIA
By /s/ Xxxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH
By /s/ Xxx Xxxxx
---------------------------------------------
Name: Xxx Xxxxx
Title: Vice President
BANK POLSKA KASA OPIEKI S.A. - PEKAO S.A.
GROUP, NEW YORK BRANCH
By /s/ H.B. El-Xxxxx
---------------------------------------------
Name: H.B. El-Xxxxx
Title: Vice President for H. Winter,
Vice President
WASHINGTON MUTUAL BANK, F.A. (as successor
in interest to BANK UNITED)
By /s/ Xxxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Vice President
BANKERS TRUST COMPANY
By /s/ Xxxx Xxxxxxxxxx
---------------------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Managing Director
S-2
BNP PARIBAS
By /s/ Xxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
By /s/ Xxxxxxx Xxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
PB CAPITAL CORPORATION
By
---------------------------------------------
Name:
Title:
By
---------------------------------------------
Name:
Title:
CERBERUS PARTNERS L.P.
By
---------------------------------------------
Name:
Title:
CREDIT INDUSTRIEL INDOSUEZ
By /s/ Xxxxxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
By /s/ Xxxxxxxxx X. Aage
---------------------------------------------
Name: Xxxxxxxxx X. Aage
Title: Vice President
S-3
CREDIT AGRICOLE ET COMMERCIAL
By /s/ Xxxx Xxxxx
---------------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
By /s/ Xxxx Xxxxxxx
---------------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
CREDIT LYONNAIS CHICAGO BRANCH
By /s/ Xxxxxxx Xxxxxxxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Vice President
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES
By /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
By
---------------------------------------------
Name:
Title:
S-4
ERSTE BANK DER OESTERREICHISCHEN SPARKASSEN AG
By /s/ Xxxx Xxx
---------------------------------------------
Name: Xxxx Xxx
Title: Vice President
By /s/ Xxxx Xxxx???
---------------------------------------------
Name: Xxxx Xxxx???
Title: Managing Director
FLEET BANK, N.A.
By /s/ Xxxxx X'Xxxxx
---------------------------------------------
Name: Xxxxx X'Xxxxx
Title: Vice President
COMERICA BANK (as successor to Imperial
Bank by merger)
By
---------------------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION
By /s/ W. Xxxxxx XxXxxxxxx
---------------------------------------------
Name: W. Xxxxxx XxXxxxxxx
Title: Authorized Signatory
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By /s/ Xxxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
S-4
NATEXIS BANQUE
By /s/ Xxxxxxxxx Xxxxxxxxx
---------------------------------------------
Name: Xxxxxxxxx Xxxxxxxxx
Title: Vice President
By /s/ Xxxx Xxxxxx
---------------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
XXX CAPITAL FUNDING L.P.
By: Highland Capital Management, L.P., as
Collateral Manager
By
---------------------------------------------
Name:
Title:
SOUTHERN PACIFIC BANK
By /s/ Mun Xxxxx Xxx
---------------------------------------------
Name: Mun Xxxxx Xxx
Title: Vice President
SUNTRUST BANK
By
---------------------------------------------
Name:
Title:
S-5
DK ACQUISITION PARTNERS LP
By /s/ Xxxxxx Xxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxx
Title: General Partner
HZ SPECIAL OPPORTUNITIES LLC
By: Highbridge Capital Management, LLC
By /s/ Xxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Portfolio Manager
R2 TOP HAT, LTD.
By Amalgamated Gadget, L.P., as Investment
Manager
By Scepter Holdings, Inc., its General
Partner
By /s/ Xxxxxx XxXxxxxxx
---------------------------------------------
Name: Xxxxxx XxXxxxxxx
Title: Vice President
MSD PORTFOLIO L.P. - INVESTMENTS
By /s/ Xxxx X. Xxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxx
Title: General Counsel of General
Partner
S-6
