EXHIBIT 10.7
[SECOND REVISED EXECUTION COPY]
FIFTEENTH AMENDMENT, WAIVER AND CONSENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIFTEENTH AMENDMENT, WAIVER AND CONSENT TO AMENDED AND RESTATED
CREDIT AGREEMENT, dated as of July 15, 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, the Eleventh Amendment, Waiver and Consent to
Amended and Restated Credit Agreement dated as of March 7, 2002, the Twelfth
Amendment, Waiver and Consent to Amended and Restated Credit Agreement dated as
of April 8, 2002, the Thirteenth Amendment, Waiver and Consent to Amended and
Restated Credit Agreement dated as of May 31, 2002, and the Fourteenth
Amendment, Waiver and Consent to Amended and Restated Credit Agreement dated as
of June 28, 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 Fourteenth Amendment; 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 1.1. Certain Definitions. The following terms (whether or not
underscored) when used in this Amendment shall have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"Administrative Agent" is defined in the 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.
"Series 1997-2 Letter of Credit" is defined in Section 3.5.
SECTION 1.2. Other Definitions. Terms for which meanings are provided
in the Amended Credit Agreement are, unless otherwise defined herein or the
context otherwise requires, used in this Amendment with such meanings.
ARTICLE II
AMENDMENTS, WAIVERS AND CONSENTS
SECTION 2.1. 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 2.1.1. Amendments to Section 1.1 ("Defined Terms") of the
Credit Agreement. Section 1.1 of the Credit Agreement is hereby amended by
inserting in such Section the following definitions in the appropriate
alphabetical order:
"`Fifteenth Amendment' means the Fifteenth Amendment, Waiver
and Consent to Amended and Restated Credit Agreement, dated as of July
15, 2002, among the Borrower, the Lenders parties thereto and the
Administrative Agent."
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"`Fifteenth Amendment Effective Date' means the date the
Fifteenth Amendment became effective in accordance with its terms."
SECTION 2.1.2. Amendment to Clause (f) of Section 2.2 ("Waivers and
Consents") of the Thirteenth Amendment. Clause (f) of Section 2.2 of the
Thirteenth Agreement is hereby amended and restated in its entirety to read as
follows:
"(f) on or following the date on which the Administrative
Agent shall have received evidence satisfactory to it from the
Borrower that Ford Motor Company ("Ford") has agreed to make available
to the Borrower and its Domestic Subsidiaries new Ford Vehicles having
an initial Net Book Value of not less than $75,000,000 pursuant to a
financing or an operating lease (such amount to be subject to
reductions from time to time equal to the depreciation of such new
Ford Vehicles) in the event that the Borrower and such Domestic
Subsidiaries file voluntary petitions under Section 301 of the
Bankruptcy Reform Act of 1978, as amended and codified as 11 U.S.C.
ss.ss.101 et seq. (the "Bankruptcy Code"), to initiate Chapter 11
cases and to have continued in the possession of their assets
(including such new Ford Vehicles) and in the management of their
business pursuant to Sections 1107 and 1108 of the Bankruptcy Code,
such financing or operating lease, as the case may be, to be subject
to customary terms for financings or leases, as the case may be, of
this type with such Vehicles to be available until the earlier of (x)
the date such Vehicles would otherwise be returned to Ford consistent
with past practice pursuant to their Repurchase Program and (y) the
date that such Chapter 11 cases are terminated, consent to payments to
the four officers identified in the Borrower Letter in amounts not
exceeding the amounts set forth therein, which payments (exclusive of
the payments referred to in the preceding clause (e)) shall not exceed
in the aggregate $774,250;".
SECTION 2.2. 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) July 26, 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 and second Fiscal Quarters 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) July 26, 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;
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(c) so long as an Interest Payment Notice has not been given
and an Acceleration Event has not occurred, consent, until the
earliest of (x) July 26, 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
June 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 $280,000,000 as of the last day of June 2002; and
(d) waive the three Business Day notice requirement under
Section 2.2.1 of the Credit Agreement as such Section relates to the
request of the Borrower to reduce the Commitment Amount by
$4,497,515.50 concurrent with the reduction of the Series 1997-2
Letter of Credit.
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 3.1. 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 3.2. Effective Date Certificate. The Administrative Agent
shall have received, with counterparts for each Lender, a certificate, dated
the effective date of this Amendment (the "Fifteenth 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 3.3. Execution of Affirmation and Acknowledgment. The
Administrative Agent shall have received an affirmation and acknowledgment,
dated the Fifteenth 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 3.4. Fees and Expenses. (a) Amendment, Consent and Waiver Fee.
The Borrower shall have paid in cash no later than 4:30 p.m., New York time on
Friday, July 19,
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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 or the earlier version hereof marked with
the heading "[REVISED EXECUTION COPY]" on the first page thereof to the
attention of Xxxxxxx Xxx at Mayer, Brown, Xxxx & Maw, 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (19(th) Floor), telecopy number 000-000-0000 at or prior to 4:00
p.m., New York time, on Friday, July 19, 2002 (as such time may be extended by
the Borrower), in the amount of 10 basis points of such Lender's Commitment as
of the date hereof after giving effect to the $8,000,0000 reduction of the
Commitment Amount as requested under Section 5.5.
(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 Fifteenth Amendment Effective Date
pursuant to Section 5.4 (to the extent then invoiced) and pursuant to the
Credit Agreement (including all previously invoiced fees and expenses).
SECTION 3.5. Reduction to Series 1997-2 Letter of Credit. The
Administrative Agent shall have received evidence from the Borrower that the
Stated Amount of the Irrevocable Letter of Credit No. TS-07001752 (the "Series
1997-2 Letter of Credit") issued by the Issuer on June 20, 2001, in the initial
Stated Amount of $85,000,000 shall have been reduced by $4,497,515.50 such that
only $3,502,484.50 shall remain available to be drawn thereunder and the Letter
of Credit Outstandings remaining in respect thereof shall not exceed
$77,000,000, in each case, on or prior to the Fifteenth Amendment Effective
Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. 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 Amended Credit Agreement (excluding, however, those
contained in Section 7.7 of the Amended 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 on or prior to May 15, 2002, 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;
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(c) except as disclosed by the Borrower to the Agents, the
Issuer and the Lenders pursuant to Section 7.7 of the Amended 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 Amended 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
(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 4.2. Full Disclosure. Except as corrected by written
information delivered to the Agents and the Lenders reasonably prior to the
date on which this representation is made, all 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
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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 4.3. Compliance with Amended Credit Agreement. After giving
effect to this Amendment, each Obligor is in compliance with all the terms and
conditions of the Amended 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 5.1. 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, 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 5.2. Loan Document Pursuant to Credit Agreement. This
Amendment is a Loan Document executed pursuant to the Credit Agreement and
shall be construed, administered and applied in accordance with all of the
terms and provisions of the Credit Agreement (and, following the date hereof,
the Amended Credit Agreement). Any breach of any representation or warranty or
covenant or agreement contained in this Amendment shall be deemed to be an
immediate Event of Default for all purposes of the Credit Agreement and the
other Loan Documents.
SECTION 5.3. 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 5.4. 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,
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counsel for the Administrative Agent, and Wachtell, Lipton, Xxxxx & Xxxx,
special restructuring counsel for the Administrative Agent.
SECTION 5.5. Commitment Amount Reduction Request. By its signature
below, the Borrower hereby irrevocably requests that the Commitment Amount be
permanently reduced in an amount equal to $8,000,000 effective as of the date
that the Series 1997-2 Letter of Credit is reduced in an amount equal to such
amount.
SECTION 5.6. 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 5.7. 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 5.8. 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 5.9. 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 5.10. 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 5.11. Release. The Borrower hereby releases, waives and
forever relinquishes all claims, demands, obligations, liabilities and causes
of action of whatever kind or nature, whether known or unknown, which it has,
may have, or might assert at the time of execution of this Amendment against
the Administrative Agent, the Lenders, the Issuer and/or their respective
parents, affiliates, participants, officers, directors, employees, agents,
attorneys, accountants, consultants, predecessors, successors and assigns
(collectively, the "Lender Group"), directly or indirectly, which occurred,
existed, was taken, permitted or begun prior to the execution of this
Amendment, arising out of, based upon, or in any manner connected with (i) any
transaction, event, circumstance, action, failure to act or occurrence of any
sort or type, whether known or unknown, with respect to the Credit Agreement,
any other Loan Document and/or the administration thereof or the obligations
created thereby, (ii) any discussions, commitments, negotiations, conversations
or communications with respect to the restructuring, modification or collection
of any obligations or commitments related to the Credit Agreement, any other
Loan Document and/or the administration thereof or the obligations created
thereby, or (iii) any matter related to the foregoing.
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SECTION 5.12. GOVERNING LAW. THIS AMENDMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers or general partners (or their respective
officers) thereunto duly authorized as of the day and year first above written.
BUDGET GROUP, INC.
By
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Name:
Title:
CREDIT SUISSE FIRST BOSTON, as a Lender and
the Administrative Agent
By
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Name:
Title:
By
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Name:
Title:
BANK OF AMERICA, N.A.
By
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Name:
Title:
THE BANK OF NEW YORK
By
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Name:
Title:
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THE BANK OF NOVA SCOTIA
By
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Name:
Title:
THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH
By
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Name:
Title:
BANK POLSKA KASA OPIEKI S.A. - PEKAO
S.A. GROUP, NEW YORK BRANCH
By
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Name:
Title:
WASHINGTON MUTUAL BANK, F.A. (as
successor in interest to BANK UNITED)
By
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Name:
Title:
DEUTSCHE BANK TRUST COMPANY
AMERICAS (formerly known as Bankers Trust
Company)
By
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Name:
Title:
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BNP PARIBAS
By
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Name:
Title:
By
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Name:
Title:
PB CAPITAL CORPORATION
By
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Name:
Title:
By
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Name:
Title:
CERBERUS PARTNERS L.P.
By
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Name:
Title:
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CREDIT INDUSTRIEL ET COMMERCIAL
By
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Name:
Title:
By
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Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By
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Name:
Title:
By
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Name:
Title:
CREDIT LYONNAIS CHICAGO BRANCH
By
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Name:
Title:
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XXXXXXXX XXXX XX, XXX XXXX AND
GRAND CAYMAN BRANCHES
By
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Name:
Title:
By
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Name:
Title:
ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN AG
By
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Name:
Title:
By
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Name:
Title:
FLEET BANK, N.A.
By
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Name:
Title:
COMERICA BANK (as successor to Imperial Bank
by merger)
By
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Name:
Title:
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GENERAL ELECTRIC CAPITAL
CORPORATION
By
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Name:
Title:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By
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Name:
Title:
NATEXIS BANQUE
By
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Name:
Title:
By
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Name:
Title:
XXX CAPITAL FUNDING L.P.
By: Highland Capital Management, L.P., as
Collateral Manager
By
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Name:
Title:
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SOUTHERN PACIFIC BANK
By
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Name:
Title:
SUNTRUST BANK
By
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Name:
Title:
DK ACQUISITION PARTNERS LP
By X.X. Xxxxxxxx & Co., its General Partner
By
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Name:
Title:
HCM/Z SPECIAL OPPORTUNITIES LLC
(formerly known as HZ Special Opportunities
LLC)
By: Highbridge Capital Management, LLC
By
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Name:
Title:
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R2 TOP HAT, LTD.
By Amalgamated Gadget, L.P., as Investment
Manager
By Scepter Holdings, Inc., its General Partner
By
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Name:
Title:
MSD PORTFOLIO L.P. - INVESTMENTS
By
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Name: Xxxx X. Xxxxxx
Title: General Counsel of General Partner
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