Exhibit 10.39
SEVENTH AMENDMENT AND CONSENT TO AMENDED
AND RESTATED CREDIT AGREEMENT
THIS SEVENTH AMENDMENT AND CONSENT TO AMENDED AND RESTATED CREDIT
AGREEMENT, dated as of June 19, 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 Waiver and Consent
to Amended and Restated Credit Agreement, dated as of May 7, 2001, and as
further amended, supplemented, amended and restated or otherwise modified, the
"Credit Agreement");
WHEREAS, the Borrower desires to sell all of the Capital Stock of its
indirect, Wholly-Owned Subsidiary, Compact Rent A Car Ltd., a corporation
organized under the laws of the province of Quebec and engaged in the renting of
passenger automobiles and trucks in Quebec ("Compact");
WHEREAS, such sale is expected to be for a purchase price of
approximately $7,000,000, comprised of approximately $1,000,000 in cash and
$6,000,000 in a promissory note maturing in approximately five years, and
condition precedents to such sale (among other conditions precedent) will be (i)
the repayment in cash of all obligations of Compact to the Borrower and its
Subsidiaries (other than Compact) (which intercompany obligations relate to the
transfer of passenger automobile and truck fleet and cash advances from Budget
and such Subsidiaries to Compact and which intercompany obligations, as of May
31, 2001, approximated $30,000,000, but which, at the closing of such sale, may
be greater or less than $30,000,000) and (ii) the entry by Compact into a
franchise agreement with Budget Rent-A-Car Corporation having terms similar to
other franchise agreements entered into by Budget Rent-A-Car Corporation with
other franchisees (collectively, the "Compact Sale");
WHEREAS, the Borrower desires to have the Lenders consent to the
Compact Sale; and
WHEREAS, the Required Lenders are willing, on and subject to the terms
and conditions set forth below (including, but not limited to, the reduction of
the Commitment Amount), to consent to the Compact Sale (the Credit Agreement, as
modified pursuant to the terms of this Waiver and Consent, 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 Required Lenders hereby agree
as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Definitions. The following terms (whether or not
underscored) when used in this Waiver and Consent shall have the following
meanings (such meanings to be equally applicable to the singular and plural
forms thereof):
"Administrative Agent" is defined in the preamble.
"Amended Credit Agreement" is defined in the fifth recital.
"Amendment" is defined in the preamble.
"Borrower" is defined in the preamble.
"Compact" is defined in the second recital.
"Compact Sale" is defined in the third recital.
"Credit Agreement" is defined in the first recital.
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
AMENDMENT AND CONSENT
SECTION 2.1. Amendments. Subject to the satisfaction of the conditions
set forth in Article III, effective as of the date hereof, the Credit Agreement
is hereby amended in accordance with this Section 2.1.
SECTION 2.1.1. Amendment to Section 1.1 of the Credit Agreement.
Concurrently with the closing of the Compact Sale (consummation of which the
Borrower shall promptly notify the Administrative Agent), the Commitment Amount
shall be reduced from $550,000,000 to $525,000,000 (with the reference in the
definition of "Commitment Amount" to "$550,000,000" being amended to be a
reference to "$525,000,000"), which reduction shall be allocated pro rata among
the Lenders at the time of such reduction.
SECTION 2.1.2. Amendment to Section 3.2.2 of the Credit Agreement.
Clause (b) of Section 3.2.2 of the Credit Agreement ("Post-Maturity Rates") is
hereby amended by inserting the phrase "plus the Applicable Margin" immediately
prior to the phrase "plus a margin of 2.0%".
SECTION 2.1.3. Amendment to Section 4.5 of the Credit Agreement. The
third sentence of Section 4.5 of the Credit Agreement ("Disbursements") is
hereby amended by inserting the phrase "plus the Applicable Margin" immediately
prior to the phrase ", plus a margin of 2.0%".
SECTION 2.2. Consents. Subject to the satisfaction of the conditions
set forth in this Section 2.2 and in Article III, the Lenders hereby:
(i) waive to the extent necessary to permit the Compact Sale,
the restrictions set forth in Section 8.2.10 of the Credit Agreement
("Asset Dispositions, etc.") and (B) subject to the reduction of the
Commitment Amount as provided in Section 2.1.1 above, the requirements
of Section 2.2.2 of the Credit Agreement ("Reduction of the Commitment
Amount - Mandatory") with respect to the proceeds of the Compact Sale
(it being understood and agreed that proceeds of the Compact Sale may
be used by the Borrower and its Subsidiaries for general corporate
purposes), and
consent and agree that no portion of the fair market value of
Compact 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;
provided that the Administrative Agent, for the benefit of the Secured Parties,
shall have, upon consummation of the Compact Sale, a perfected, first-priority
security interest in all non-cash consideration received by the Borrower and its
Subsidiaries in respect of the Compact Sale.
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Subject to the satisfaction of the conditions set forth in
Article III, the Lenders hereby consent to any amendment or
modification to the Enhancement Letter of Credit Application and
Agreement with respect to the CP Program's Enhancement Letter of Credit
that the Issuer deems necessary or desirable in order to conform such
Enhancement Letter of Credit Application and Agreement to the terms of
the CP Program (including, without limitation, the Liquidity Facility)
or the terms of the Credit Agreement; provided that such amendments and
modifications, taken as a whole, could not reasonably be expected to
have an adverse effect on the Lenders.
Limitation. Section 2.2 shall be limited precisely as written and shall
not be deemed to constitute a waiver or consent with respect to any other term,
provision or condition of the Credit Agreement or any other instrument or
agreement referred to therein or relating thereto or prejudice any right or
remedy that the Administrative Agent or any Lender may now have or may have in
the future under or in connection with the Credit Agreement or any other
instrument or agreement referred to therein or relating thereto.
CONDITIONS TO EFFECTIVENESS
This Amendment, and the waivers, amendments, consents 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 (such date, the "Effective
Date").
Execution of Counterparts. The Administrative Agent shall have received
counterparts of this Waiver and Consent, duly executed and delivered on behalf
of the Borrower and each of the Required Lenders.
Closing Date Certificate. The Administrative Agent shall have received,
with counterparts for each Lender, a certificate, dated the 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.
Execution of Affirmation and Acknowledgment. The Administrative Agent
shall have received an affirmation and acknowledgment, dated the 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.
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REPRESENTATIONS AND WARRANTIES
Representations and Warranties. In order to induce the requisite
Lenders and the Administrative Agent to enter into this Waiver and Consent, the
Borrower hereby represents and warrants to the Administrative Agent, the Issuer
and each Lender, as of the date hereof, as follows:
the representations and warranties set forth in Article VII of
the Credit Agreement (excluding, however, those contained in Section
7.7 of the Credit Agreement) and in each other Loan Document are, in
each case, true and correct (unless stated to relate solely to an
earlier date, in which case such representations and warranties are
true and correct as of such earlier date);
except as disclosed by the Borrower to the Agents, the Issuer
and the Lenders pursuant to Section 7.7 of the Credit Agreement
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
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;
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;
this Waiver and Consent 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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the execution, delivery and performance by the Borrower and
its Subsidiaries of this Waiver and Consent and each other Loan
Document executed or to be executed by any of them in connection
therewith and the consummation of the transactions permitted or
contemplated hereby 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.
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 Waiver and Consent 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.
Compliance with Credit Agreement. 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.
Borrowing Base. No asset of Compact, including, without limitation,
passenger automobiles and trucks utilized by Compact in the conduct of its
business, was included in the Borrowing Base Certificate most recently furnished
to the Lenders prior to the date hereof.
MISCELLANEOUS
Full Force and Effect; Limited Waiver and Consent. 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
waiver and consents set forth herein shall be limited precisely as provided for
herein to the provisions expressly 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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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 Event of Default
for all purposes of the Credit Agreement and the other Loan Documents.
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, waivers and consents contemplated herein. The Lenders authorize the
Administrative Agent to execute and deliver such documents as may be reasonably
necessary to effectuate the amendments, waivers and consents contemplated herein
(including, without limitation, releases of Liens with respect to the Capital
Stock of Compact).
Fees and Expenses. The Borrower shall pay all reasonable out-of-pocket
expenses incurred by the Administrative Agent in connection with the
preparation, negotiation, execution and delivery of this Amendment and the
documents and transactions contemplated hereby, including the reasonable fees
and disbursements of Mayer, Brown, and Xxxxx, as counsel for the Administrative
Agent.
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.
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.
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.
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.
Successors and Assigns. This Amendment shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.
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:
BANK OF MONTREAL
By
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Name:
Title:
S-8
THE BANK OF NEW YORK
By
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Name:
Title:
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:
S-9
BANKERS TRUST COMPANY
By
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Name:
Title:
BNP PARIBAS
By
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Name:
Title:
By
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Name:
Title:
BANQUE WORMS CAPITAL CORPORATION
By
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Name:
Title:
BHF (USA) CAPITAL CORPORATION
By
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Name:
Title:
By
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Name:
Title:
S-10
CERBERUS PARTNERS L.P.
By
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Name:
Title:
CREDIT INDUSTRIEL ET COMMERCIAL
By
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Name:
Title:
By
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Name:
Title:
COMMERZBANK AKTIENGESELLSCHAFT,
CHICAGO BRANCH
By
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Name:
Title:
By
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Name:
Title:
S-11
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:
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By
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Name:
Title:
By
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Name:
Title:
S-12
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:
THE FUJI BANK, LIMITED
By
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Name:
Title:
IMPERIAL BANK
By
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Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By
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Name:
Title:
S-13
XXXXXXX SACHS CREDIT PARTNERS L.P.
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:
SATELLITE DISTRESSED CREDITS FUND, LLC
By: Satellite Asset Management, L.P.,
its Investment Manager
By
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Name:
Title:
SOUTHERN PACIFIC BANK
By
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Name:
Title:
S-14
SUMITOMO MITSUI BANKING CORPORATION
By
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Name:
Title:
SUNTRUST BANK
By
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Name:
Title:
DK ACQUISITION PARTNERS LP
By
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Name:
Title:
S-15
