Exhibit 10.41
NINTH AMENDMENT, WAIVER AND CONSENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS NINTH AMENDMENT, WAIVER AND CONSENT TO AMENDED AND RESTATED CREDIT
AGREEMENT, dated as of December 20, 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, 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, and as further amended, supplemented, amended and restated
or otherwise modified prior to the date hereof, the "Credit Agreement");
WHEREAS, the aggregate unpaid principal amount of all Loans and Letter
of Credit Outstandings may exceed the Borrowing Base Amount;
WHEREAS, the Borrower desires to consummate certain asset sales;
WHEREAS, the Borrower desires certain waivers and consents from the
requisite Lenders in connection with the foregoing and with respect to certain
related matters; 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 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
AMENDMENTS, WAIVERS AND CONSENTS;
REDUCTION IN COMMITMENT AMOUNT
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.0.1. Amendment to Section 1.1 ("Defined Terms") of the
Credit Agreement. The definition of "Loan Availability Amount" set forth in
Section 1.1 of the Credit Agreement is hereby amended and restated in its
entirety as follows:
"'Loan Availability Amount" means $0.'"
SECTION II.0.2. Additional 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:
"Lease" means a Lease, as defined in the Base Indenture,
including (i) the Amended and Restated Master Motor Vehicle Lease
Agreement, dated as of December 1, 1996, as subsequently amended or
modified, among TFFC, Budget and the lessees party thereto; (ii) the
Motor Vehicle Lease Agreement - Series 1997-1, dated as of April 1,
1997, as subsequently amended or modified, among TFFC, Budget and the
lessees party thereto; (iii) the Motor Vehicle Lease Agreement - Series
1997-2, dated as of April 29, 1997, as subsequently amended or
modified, among TFFC, Budget and the lessees party thereto; (iv) the
Amended and Restated Master Motor Vehicle Lease Agreement - Group I,
dated as of June 19, 1998, as subsequently amended or modified, among
TFFC, Budget and the lessees party thereto; and (v) the Master Motor
Vehicle Lease Agreement - Group V, dated as of April 18, 2001 as
subsequently amended or modified, among TFFC, Budget and the lessees
party thereto.
"'Ninth Amendment' means the Ninth Amendment, Waiver and
Consent to Amended and Restated Credit Agreement, dated as of December
20, 2001, among the Borrower, the Lenders parties thereto and the
Administrative Agent."
"Ninth Amendment Effective Date" means the date the Ninth
Amendment became effective in accordance with its terms.
SECTION II.0.3. 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 final two sentences thereof in their 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 Enhancement Letters of Credit
or the increase in the Stated Amount of existing Enhancement Letters of
Credit, provided that (x) 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 $8,000,000 and (y) 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 Stated Amount of such newly issued Enhancement Letter of
Credit or such increase in the Stated Amount of an existing Enhancement
Letter of Credit, 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 $3,500,000."
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SECTION II.0.4. Amendment of Section 8.1.9 ("Future Subsidiaries") of
the Credit Agreement. Section 8.1.9 of the Credit Agreement is hereby amended by
(a) deleting in clause (a) thereof the phrase "in the event such Person is a
Subsidiary which is not a Foreign Subsidiary," and (b) deleting in clause (b)
thereof the proviso set forth in such clause.
SECTION II.0.5. Additional Amendments to Section 8.1 ("Affirmative
Covenants") of the Credit Agreement. Section 8.1 of the Credit Agreement is
hereby further amended by adding the following Sections 8.1.15, 8.1.16, 8.1.17,
8.1.18 and 8.1.19 thereto:
"SECTION 8.1.15. Lease Agreements. The Borrower shall cause
each of its Subsidiaries that is a lessee under a Lease (i) to make all
payments required to be made by it thereunder on the date such payments
are required to be made thereunder and (ii) to comply in all respects
with each of its other obligations thereunder.
SECTION 8.1.16 Additional Collateral. The Borrower shall (a)
as soon as practicable following the effectiveness of the Ninth
Amendment, (i) cause its relevant Subsidiary (or itself) to cause the
Administrative Agent, for the benefit of the Secured Parties, to have a
first priority perfected security interest in the property described on
Schedule I to the Ninth Amendment (subject to Liens permitted
hereunder), (ii) cause each Foreign Subsidiary (including each Foreign
Subsidiary acquired or formed following the effectiveness of the Ninth
Amendment), subject to exceptions agreed to by the Administrative Agent
based on the value to the Secured Parties of any such guaranty and the
cost to the Borrower and its Subsidiaries of providing such guaranty,
to execute and deliver to the Administrative Agent a supplement to the
Subsidiary Guaranty for the purpose of becoming a guarantor thereunder,
which supplement shall be substantially in the form of Annex I attached
to the Subsidiary Guaranty (with such modifications thereto as are
necessary, in the reasonable judgment of the Administrative Agent, to
cause the Subsidiary Guaranty to be the legal, valid, binding and
enforceable obligation of such Subsidiary under all applicable laws),
and (iii) cause each such Subsidiary to cause the Administrative Agent,
for the benefit of the Secured Parties, to have a first priority
perfected security interest in all the property (real and personal,
tangible and intangible) owned on the date of such effectiveness by
such Subsidiary and (except to the extent theretofore provided to the
Administrative Agent for the benefit of the Secured Parties) in all
Capital Stock of such Subsidiary, in each case subject to Liens
permitted hereunder and exceptions agreed to by the Administrative
Agent based on the value to the Secured Parties of any such security
interest and the cost to the Borrower and its Subsidiaries of providing
such security interest, and (b) cause each such Subsidiary to cause the
Administrative Agent, for the benefit of the Secured Parties, to have a
first priority security interest (subject to Liens permitted hereunder
and exceptions agreed to by the Administrative Agent based on the value
to the Secured Parties of any such security interest and the cost to
the Borrower and its Subsidiaries of providing such security interest)
in all the property (real and personal, tangible and intangible) owned
from time
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to time after the date of such effectiveness by each such Subsidiary
upon the acquisition of such property. The Borrower agrees to use its
best efforts to fulfill its obligations under clause (a) of the
immediately preceding sentence no later than December 31, 2001. In
order to effect the terms of the first sentence of this Section, the
Borrower and its Subsidiaries shall execute and deliver to the
Administrative Agent such agreements, instruments and documents as it
may reasonably request, including amendments and/or supplements to the
Subsidiary Guaranty, the Subsidiary Security Agreement, the Subsidiary
Pledge Agreement, mortgages and/or deeds of trust, title insurance
reports, financing statements and, in the Administrative Agent's
reasonable discretion, legal opinions (including legal opinions with
respect to collateral provided to the Administrative Agent pursuant to
the terms of Sections 3.5 and 3.6 of the Ninth Amendment), in each case
in form and substance reasonably satisfactory to the Administrative
Agent.
SECTION 8.1.17. Preliminary Plan. The Borrower shall furnish,
or shall cause to be furnished, to each Lender on or prior to January
25, 2002, its preliminary plan (i) for restructuring the Indebtedness
of it and its Subsidiaries, (ii) for obtaining financing for the
acquisition (or refinancing) of Vehicles necessary to meet its business
plan, and (iii) for meeting its liquidity needs, 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 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 8.1.18. Amendment Fee. The Borrower shall pay, without
setoff, deduction or counterclaim, a non-refundable amendment fee with
respect to the Ninth Amendment for the account of each Lender that
executed and delivered the Ninth Amendment on or prior to December 20,
2001 (as such time may be extended by the Borrower), in the amount of
50 basis points of such Lender's Commitment as of such date. The
aggregate amount of such amendment fee shall be paid to the
Administrative Agent for the pro rata account of the Lenders entitled
to receive such amendment fee on or prior to the earlier of (x)
September 12, 2002 and (y) the occurrence of a Commitment Termination
Event.
SECTION 8.1.19. Proceeds Cash Collateral Account. The Borrower
shall, as soon as possible following each withdrawal (if any) from the
Proceeds Cash Collateral Account (as defined in Section 2.2 of the
Ninth Amendment) that is made pursuant to a certification described in
subclause (2)(y) of the proviso to clause (d) of Section 2.2 of
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the Ninth Amendment, deposit all unrestricted cash held by it or any of
its Subsidiaries into the Proceeds Cash Collateral Account until the
aggregate amount of such deposits equals the aggregate amount of such
withdrawals.
SECTION II.0.6. Amendment to Section 8.2.10 ("Asset Dispositions,
etc.") of the Credit Agreement. Clause (c) of Section 8.2.10 of the Credit
Agreement is hereby amended by amending and restating the proviso thereto in its
entirety to read as follows:
"provided, however, that, following the Ninth Amendment Effective Date,
the aggregate fair market value of all such assets (whether or not
relating to the conduct of a Core Business) sold, transferred or
conveyed pursuant to this clause (c) following the Ninth Amendment
Effective Date shall not exceed $2,500,000; provided further, however,
that no such sale, transfer or conveyance of any asset (whether or not
relating to the conduct of a Core Business) shall be permitted to be
made if immediately before or after giving effect thereto, any Default
shall have occurred and be continuing;"
SECTION II.0.7. Additional Amendments to Section 8.2 ("Negative
Covenants") of the Credit Agreement. Section 8.2 of the Credit Agreement is
hereby further amended by adding a new Section 8.2.19 thereto:
"SECTION 8.2.19 Employment and Other Arrangements. (a) The
Borrower will not (i) amend, supplement or modify, or permit any of its
Subsidiaries to amend, supplement or modify, any agreement with an
officer or employee of the Borrower or any of its Subsidiaries who was,
as of November 1, 2001, one of the four most highly compensated
officers and employees of the Borrower and its Subsidiaries (exclusive
of all compensation payable in the Borrower's common stock, but
otherwise as would be determined pursuant to Regulation S-K under the
Securities Act), or (ii) enter into, or permit any of its Subsidiaries
to enter into, any new agreement or arrangement with any such officer
or employee (including with respect to severance), in any capacity
(including as a consultant), except to the extent the aggregate cash
cost to the Borrower and its Subsidiaries with respect to any such
officer or employee as a result of any such amendments, supplements,
modifications and new agreements and arrangements would not be
increased.
(b) The Borrower will not (i) amend, modify or supplement, or
permit any of its Subsidiaries to amend, supplement or modify, any
Lease or Supplement to the Base Indenture, or (ii) enter into, or
permit any of its Subsidiaries to enter into, any new Lease or new
Supplement to the Base Indenture, except to the extent such amendment,
modification or supplement or new Lease or Supplement could not
reasonably be expected to have an adverse effect on the Lenders.
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SECTION II.0.8. 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 adding the phrase " , 8.1.15, 8.1.16, 8.1.17,
8.1.18 or 8.1.19" at the end thereof.
SECTION II.0.9. Amendment to Section 11.3 ("Payment of Costs and
Expenses") of the Credit Agreement. Section 11.3 of the Credit Agreement is
hereby amended by adding the following sentence at the end thereof:
"In addition to, and without limiting the effect of, the foregoing
provisions of this Section 11.3, the Borrower also agrees to pay (i)
the out-of-pocket expenses of each Lender Committee Member and (ii) the
fees and out-of-pocket expenses of (A) any special restructuring
counsel engaged by the Administrative Agent and (B) ▇▇▇▇▇▇, Del Genio,
▇▇▇▇▇ & Co., LLC, consultants to the Lenders (and the Borrower agrees
that it 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)."
SECTION II.1. Waivers and Consents. Subject to the satisfaction of the
conditions set forth in Article III, the Lenders, as of the date hereof, hereby:
(a) waive, until (and including) February 8, 2002, compliance
by the Borrower with the provisions of clause (d) of Section 8.2.4 of
the Credit Agreement with respect to the fourth Fiscal Quarter of the
2001 Fiscal Year;
(b) consent to the Borrowing Base Amount calculated as of the
last day of November 2001 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 such Borrowing Base Amount
is not less than $350,000,000 as of the last day of November 2001;
(c) consent, until (and including) February 8, 2002, to the
Borrowing Base Amount calculated as of the last day of December 2001 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 such Borrowing Base Amount is not less than
$267,000,000 as of the last day of December 2001;
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(d)(i) waive the requirements of Section 2.2.2 of the Credit
Agreement ("Reduction of the Commitment Amount - Mandatory") with
respect to the proceeds of the sale of the Specified Real Estate Assets
located in San Francisco, California and Seattle, Washington; and
(ii) consent and agree that no portion of the fair market
value of such assets shall be counted for purposes of computing the
aggregate amount set forth in clause (c)(ii) of Section 8.2.10 of the
Credit Agreement or in the proviso to such clause;
provided that (A) the proceeds of such sale are immediately deposited
in a cash collateral account maintained with the Administrative Agent
(the "Proceeds Cash Collateral Account") as security for the Secured
Obligations (as defined in the Borrower Security Agreement), and the
Borrower and its Subsidiaries shall have no right to withdraw any funds
from such account except to the extent that it has provided to the
Administrative Agent a certificate, executed by the chief financial or
chief accounting officer of the Borrower, certifying that (1) no
Default then exists and (2) (x) the amount being requested to be
withdrawn is to be transferred to the relevant collection account for
the payment of lease payments or other obligations of the lessees under
a Lease or the payment of demands made under a promissory note of the
type described in clause (h) of Section 8.2.2 of the Credit Agreement
(each such promissory note, a "Demand Capitalization Note", and,
collectively, "Demand Capitalization Notes"), (y) all demands (if any)
theretofore made under the Demand Capitalization Notes have been
satisfied by the Borrower and all lease payments and other obligations
of lessees under all Leases that are payable in December 2001 (whether
or not then due) have been paid to the relevant collection accounts and
the amount being requested to be withdrawn is being withdrawn on or
prior to January 4, 2002, will be used for general corporate purposes
not inconsistent with the terms of the Loan Documents and does not
exceed, when taken together with all other withdrawals made pursuant to
the certification described in this clause (y), $4,000,000, or (z) all
demands (if any) theretofore made under the Demand Capitalization Notes
have been satisfied by the Borrower and all lease payments and other
obligations of lessees under all Leases that are payable in December
2001 or January 2002 (whether or not then due) have been paid to the
relevant collection accounts and the amount being requested to be
withdrawn will be used for general corporate purposes not inconsistent
with the terms of the Loan Documents and (B) the Administrative Agent,
for the benefit of the Secured Parties, shall have, upon consummation
of any such sale, a perfected, first-priority security interest in all
non-cash consideration received by the Borrower and its Subsidiaries in
respect of any such sale; and
(e)(i) waive the requirements of Section 2.2.2 of the Credit
Agreement ("Reduction of the Commitment Amount - Mandatory") with
respect to the proceeds received from the sale, discount or
restructuring of (A) that certain Promissory Note dated as of October
20, 2000, executed by Cruise America, Inc. in favor of Budget Rent A
Car
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Corporation in the original principal amount of $22,739,232.92; (B)
that certain Subordinate Promissory Note dated as of September 29,
2000, executed by VPSI, Inc. in favor of Budget Rent a Car Corporation
in the original principal amount of $10,050,000.00; (C) that certain
Promissory Note dated as of October 20, 2000, executed by RVR, Inc. in
favor of Budget Rent A Car Corporation in the original principal amount
of $27,531,000.00; and (D) the Borrower's 19% interest in the Capital
Stock of Cruise America, Inc.;
(ii) waive any provision in the Loan Documents that restricts
the amendment or other modificaation of such promissory notes to the
extent necessary to permit any such sale, discount or restructuring;
and
(iii) consent and agree that no portion of the fair market
value of such promissory notes or Capital Stock shall be counted for
purposes of computing the aggregate amount set forth in clause (c)(ii)
of Section 8.2.10 of the Credit Agreement or in the proviso to such
clause;
provided that (A) the proceeds of such sale, discount or restructuring
are immediately deposited in the Proceeds Cash Collateral Account
subject to the withdrawal restrictions described in clause (d) of this
Section 2.2 and (B) the Administrative Agent, for the benefit of the
Secured Parties, shall have, upon consummation of any such sale, a
perfected, first-priority security interest in all non-cash
consideration received by the Borrower and its Subsidiaries in respect
of any such sale; and
(f)(i) waive the requirements of Section 2.2.2 of the Credit
Agreement ("Reduction of the Commitment Amount - Mandatory") with
respect to the proceeds of the sale of up to 4,804,560 shares of common
stock of ▇▇▇▇▇▇▇▇▇.▇▇▇ Inc.; and
(ii) consent and agree that no portion of the fair market
value of such shares shall be counted for purposes of computing the
aggregate amount set forth in clause (c)(ii) of Section 8.2.10 of the
Credit Agreement or in the proviso to such clause;
provided that (A) the proceeds of such sale are immediately deposited
in the Proceeds Cash Collateral Account subject to the withdrawal
restrictions described in clause (d) of this Section 2.2 and (B) the
Administrative Agent, for the benefit of the Secured Parties, shall
have, upon consummation of any such sale, a perfected, first-priority
security interest in all non-cash consideration received by the
Borrower and its Subsidiaries in respect of any such sale.
SECTION II.2. Reduction of Commitment Amount. The Borrower hereby
reduces the Commitment Amount from $500,000,000 to $430,000,000 effective as of
the Ninth Amendment Effective Date (with the reference in the definition of
"Commitment Amount" to "$500,000,000"
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being amended to be a reference to "$430,000,000"), and the Borrower, the
Administrative Agent and the Lenders waive any requirement of three Business
Days' prior notice thereof. Such reduction shall be allocated pro rata among the
Lenders as of the Ninth Amendment Effective Date.
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 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 "Ninth 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. December Payments. All lease payments and other
obligations of the lessees under all Leases that are payable in December 2001
(whether or not due prior to the Ninth Amendment Effective Date) shall have been
paid to the relevant collection accounts and all demands (if any) made under the
Demand Capitalization Notes prior to the Ninth Amendments Effective Date shall
have been satisfied by the Borrower.
SECTION III.5. Amendment to Subsidiary Pledge Agreements. The
Administrative Agent shall have received executed counterparts of the First
Amendment to the Amended and Restated Subsidiary Pledge Agreement substantially
in the form attached hereto as Exhibit A, dated as of the Ninth Amendment
Effective Date and duly executed and delivered by each of the parties thereto,
together with (to the extent not previously delivered to the Administrative
Agent) (i) the certificates evidencing all of the issued and outstanding shares
of Capital Stock pledged pursuant to such amendment, which certificates shall in
each case be accompanied by undated
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stock powers duly executed in blank, or, if any such shares of Capital Stock so
pledged are uncertificated securities, the Administrative Agent shall have
obtained "control" (as defined in the Uniform Commercial Code in effect in the
State of New York) over such shares of Capital Stock) and such other instruments
and documents as the Administrative Agent shall deem necessary or in the
reasonable opinion of the Administrative Agent desirable under applicable law to
perfect the first priority security interest of the Administrative Agent in such
shares of Capital Stock and (ii) executed copies of Uniform Commercial Code
financing statements naming the pledgor thereof as the debtor and the
Administrative Agent as the secured party, suitable for filing under the Uniform
Commercial Code of all jurisdictions as may be necessary or, in the reasonable
opinion of the Administrative Agent, desirable to perfect the first priority
security interest of the Administrative Agent in such Capital Stock.
SECTION III.6. Supplement and Amendment to Subsidiary Security
Agreement. The Administrative Agent shall have received executed counterparts of
a supplement and an amendment to the Subsidiary Security Agreement substantially
in the forms of Exhibit B-1 and Exhibit B-2 hereto, in each case, dated as of
the Ninth Amendment Effective Date and duly executed and delivered by Budget
Rent-A-Car International, Inc. and the Obligors parties thereto, respectively,
together with all Uniform Commercial Code financing statement amendments
suitable for filing under the Uniform Commercial Code of all jurisdictions as
may be necessary or, in the opinion of the Administrative Agent, desirable to
perfect the security interest of the Administrative Agent pursuant to the
Subsidiary Security Agreement.
SECTION III.7. Annual Budget. The Administrative Agent shall have
received a preliminary annual budget for the 2002 Fiscal Year for the Borrower
and its Subsidiaries, which budget shall be in form and scope reasonably
satisfactory to the Administrative Agent.
SECTION III.8. Fees and Expenses. The Administrative Agent (and all
other Persons entitled thereto) 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).
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:
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(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
(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
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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.
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, 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.
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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. 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 ▇▇▇▇▇, ▇▇▇▇▇ and ▇▇▇▇▇, counsel for the Administrative
Agent, and Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, special restructuring counsel for the
Administrative Agent.
SECTION V.5. Headings. The various headings of this Amendment are
inserted for convenience only and shall not affect the meaning or interpretation
of this Amendment or any provisions hereof.
SECTION V.6. 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.7. Cross-References. References in this Amendment to any
Article or Section are, unless otherwise specified or otherwise required by the
context, to such Article or Section of this Amendment.
SECTION V.8. 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.9. 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.10. Acknowledgments of the Borrower. The Borrower hereby
acknowledges that (a) each of the provisions of this Amendment has been entered
into by the Borrower and the Lenders in consideration of, among other things,
all of the other provisions of
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this Amendment, and (b) the value of such consideration to, and the timing of
the receipt of such value by, the Borrower and its Subsidiaries has been and
should be determined by reference to the provisions of this Amendment (and the
transactions contemplated hereby) taken as a whole.
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 MONTREAL
By
-----------------------------------------
Name:
Title:
S-1
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:
WASHINGTON MUTUAL BANK, F.A. (as
successor in interest to BANK UNITED)
By
----------------------------------------
Name:
Title:
S-2
BANKERS TRUST COMPANY
By
----------------------------------------
Name:
Title:
BNP PARIBAS
By
----------------------------------------
Name:
Title:
By
----------------------------------------
Name:
Title:
BANQUE WORMS CAPITAL CORPORATION
By
----------------------------------------
Name:
Title:
BHF (USA) CAPITAL CORPORATION
By
-----------------------------------------
Name:
Title:
By
-----------------------------------------
Name:
Title:
S-3
CERBERUS PARTNERS L.P.
By
-----------------------------------------
Name:
Title:
CREDIT INDUSTRIEL ET COMMERCIAL
By
----------------------------------------
Name:
Title:
By
----------------------------------------
Name:
Title:
COMMERZBANK AKTIENGESELLSCHAFT,
CHICAGO BRANCH
By
----------------------------------------
Name:
Title:
By
----------------------------------------
Name:
Title:
S-4
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:
S-5
ERSTE BANK 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:
S-6
GENERAL ELECTRIC CAPITAL CORPORATION
By
----------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS L.P.
By
----------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ 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:
SUMITOMO MITSUI BANKING CORPORATION
By
-----------------------------------------
Name:
Title:
SUNTRUST BANK
By
-----------------------------------------
Name:
Title:
DK ACQUISITION PARTNERS LP
By
----------------------------------------
Name:
Title:
S-8
