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EXHIBIT 10.24
[EXECUTION COPY]
FIRST AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT
AGREEMENT, dated as of September 11, 1998 (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 (the "Credit Agreement");
WHEREAS, the Credit Agreement prohibits, inter alia, the purchase or
redemption of shares of the Capital Stock of the Borrower by the Borrower or
its Subsidiaries;
WHEREAS, the Borrower desires (subject to certain limitations) to
purchase or redeem certain outstanding shares of its Capital Stock; and
WHEREAS, the Required Lenders are willing, on and subject to the terms
and conditions set forth below, to amend the Credit Agreement as provided below
(the Credit Agreement, as amended 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 Required Lenders hereby agree
as follows:
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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 fourth recital.
"Amendment" is defined in the preamble.
"Borrower" is defined in the preamble.
"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
AMENDMENTS TO CREDIT AGREEMENT
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 Article II; except expressly as so amended by this
Amendment, the Credit Agreement shall continue in full force and effect in
accordance with its terms.
SECTION 2.1. Amendment to Section 1.1 of the Credit Agreement.
Section 1.1 of the Credit Agreement ("Defined Terms") is hereby amended as
follows:
(a) by inserting in such Section the following
definition in the appropriate alphabetical order:
"First Amendment" means the First Amendment to
Amended and Restated Credit Agreement, dated as of September
11, 1998, among the Borrower, the Lenders parties thereto and
the Agents.
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(b) by deleting clause (b) of the definition of "EBITDA"
set forth in such Section in its entirety and substituting therefor
the following:
(b) to the extent deducted in arriving at such Net
Income, the sum, without duplication, of (i) Aggregate
Interest Expense, plus (ii) taxes computed on the basis of
income plus (iii) the aggregate amount of depreciation and
amortization of tangible and intangible assets plus (iv)
extraordinary and non-recurring expenses or charges resulting
from the Transaction in an amount not to exceed $56,000,000 in
the aggregate plus (v) other extraordinary and non-recurring
expenses or charges in an amount not to exceed $25,000,000 in
the aggregate since the Amendment Effective Date
minus
(c) to the extent included in arriving at such Net
Income, extraordinary and non-recurring gains in an amount
not to exceed $25,000,000 in the aggregate since the
Amendment Effective Date.
SECTION 2.2. Amendment to Section 8.2.6 of the Credit Agreement.
The proviso to clause (a) of Section 8.2.6 of the Credit Agreement ("Restricted
Payments, etc.") is hereby amended by deleting such proviso in its entirety and
substituting therefor the following:
provided, however, that the Borrower may (x) declare, pay and make
Distributions to its stockholders with respect to, and (y) purchase or
redeem, shares of any class of Capital Stock (now or hereafter
outstanding) of the Borrower, or warrants, options or other rights
with respect to any such shares of Capital Stock (now or hereafter
outstanding) of the Borrower, in each case, in any Fiscal Year to the
extent the aggregate amount to be expended in respect of such
Distribution, purchase or redemption to be made by the Borrower
pursuant to this proviso, when added to the aggregate amount expended
in respect of all other such Distributions, purchases or redemptions
made pursuant to this proviso during the Fiscal Year in which such
Distribution, purchase or redemption would be made, does not exceed
20% of the Net Income of the Borrower for the immediately preceding
Fiscal Year, so long as
(i) both before and after giving effect to any
such Distribution, purchase or redemption pursuant to the
preceding proviso, no Default shall have occurred and be
continuing, and
(ii) in the case of any such Distribution, the
Borrower shall have delivered to the Administrative Agent (A)
financial statements prepared on a pro forma basis to give
effect to such Distribution for the period of four
consecutive Fiscal Quarters ending with the Fiscal Quarter
then last ended for which financial statements and the
Compliance Certificate relating thereto have been delivered
to
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the Administrative Agent pursuant to Section 8.1.1 (including
Section 8.1.1 of the Original Credit Agreement) and (B) a
certificate of the Borrower executed by an Authorized Officer
of the Borrower demonstrating that the financial results
reflected in such financial statements would comply with the
requirements of Section 8.2.4 for the Fiscal Quarter in which
such Distribution is to be made;
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 Required Lenders.
SECTION 3.2. Execution of Affirmation and Consent. The
Administrative Agent shall have received an affirmation and consent 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 3.3. Fees and Expenses. The Administrative Agent shall
have received all fees and expenses due and payable pursuant to Section 5.4 (to
the extent then invoiced) and pursuant to the Credit Agreement (including all
previously invoiced fees and expenses).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. Representations and Warranties. In order to induce
the Required Lenders and the Agents to enter into this Amendment, the Borrower
hereby represents and warrants to each Agent, the Issuer and each Lender, as of
the date hereof, as follows:
(a) the representations and warranties set forth in
Article VII of the Credit Agreement (excluding, however, those
contained in Section 7.7 of the Credit Agreement) and in each other
Loan Document are, in each case, true and correct (unless stated to
relate solely to an earlier date, in which case such representations
and warranties are true and correct as of such earlier date);
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(b) except as disclosed by the Borrower to the Agents,
the Issuer and the Lenders pursuant to Section 7.7 of the Credit
Agreement
(i) no labor controversy, litigation, arbitration or
governmental investigation or proceeding is pending or, to
the best knowledge of the Borrower, threatened against the
Borrower or any of its Subsidiaries which might materially
adversely affect the Borrower's consolidated business,
operations, assets, revenues, properties or prospects or
which purports to affect the legality, validity or
enforceability of this Agreement, the Notes or any other Loan
Document; and
(ii) no development has occurred in any labor
controversy, litigation, arbitration or governmental
investigation or proceeding disclosed pursuant to Section 7.7
of the Credit Agreement which might materially adversely
affect the consolidated businesses, operations, assets,
revenues, properties or prospects of the Borrower and its
Subsidiaries;
(c) 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; and
(d) this Amendment has been duly authorized, executed
and delivered by the Borrower and constitutes a legal, valid and
binding obligation of the Borrower, enforceable against it in
accordance with its terms, except to the extent the enforceability
hereof may be limited by (i) the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting the rights and remedies of creditors
generally and (ii) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law.
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 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 Credit Agreement. As of the
execution and delivery of this Amendment, each Obligor is in compliance with
all the terms and conditions of the Credit
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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 amended hereby, all of the representations, warranties, terms,
covenants, conditions and other provisions of the Credit Agreement and the
other Loan Documents shall remain unamended and unwaived and shall continue to
be, and shall remain, in full force and effect in accordance with their
respective terms. The amendments set forth herein shall be limited precisely as
provided for herein to the provisions expressly amended herein and shall not be
deemed to be an amendment to, 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 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
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, and Xxxxx, as counsel for
the Administrative Agent.
SECTION 5.5. 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.
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SECTION 5.6. Execution in Counterparts. This Amendment may be
executed by the parties hereto in several 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 5.7. 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 5.8. 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 5.9. 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: /s/
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Name:
Title:
CREDIT SUISSE FIRST BOSTON, as a Lender,
the Issuer and the Administrative Agent
By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
Title: Vice President
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
Title: Managing Director
NATIONSBANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
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BANK OF HAWAII
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
BANK OF MONTREAL
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Director
THE BANK OF NEW YORK
By: /s/ Xxxxxxxxx X. Xxxxxx
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Name: Xxxxxxxxx X. Xxxxxx
Title: Assistant Vice President
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. Xxxxx
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Name: F.C.H. Xxxxx
Title: Senior Manager Loan Operations
THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH
By:
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Name:
Title:
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BANK POLSKA KASA OPIEKI S.A. - PEKAO
S.A GROUP, NEW YORK BRANCH
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Vice President
BANK UNITED
By:
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Name:
Title:
PARIBAS
By: /s/
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Name:
Title:
By: /s/
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Name:
Title:
BANQUE WORMS CAPITAL CORPORATION
By: /s/
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Name:
Title:
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BHF-BANK AKTIENGESELLSCHAFT
By:
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Name:
Title:
By:
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Name:
Title:
CIBC, INC.
By: /s/ Xxxxxxxxx X. Xxxxxx
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Name: Xxxxxxxxx X. Xxxxxx
Title: Executive Director
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Vice President
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Vice President
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COMMERZBANK AKTIENGESELLSCHAFT,
CHICAGO BRANCH
By:
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Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: FVP
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Senior Vice President
CREDIT LYONNAIS CHICAGO BRANCH
By:
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Name:
Title:
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/ Xxx Xxxxxxxx
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Name: Xxx Xxxxxxxx
Title:
By: /s/ Xxxxxxx Xxxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxxx
Title: Vice President
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ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN AG
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: First Vice President
FLEET BANK, N.A.
By: /s/ Xxxxxx X. Xxx
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Name: Xxxxxx X. Xxx
Title: Vice President
THE FUJI BANK, LIMITED
By:
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Name:
Title:
GREEN TREE FINANCIAL SERVICING CORP.
By: /s/
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Name:
Title:
IMPERIAL BANK
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Senior Vice President
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THE LONG-TERM CREDIT BANK OF JAPAN,
LTD.
By:
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Name:
Title:
NATEXIS BANQUE
By: /s/ Xxxxxx X. van Tulder
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Name: Xxxxxx X. van Tulder
Title: Vice President and Manager
PNC BANK, N.A.
By:
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Name:
Title:
SOUTHERN PACIFIC BANK
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President
THE SUMITOMO BANK, LIMITED, NEW
YORK BRANCH
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: General Manager
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SUNTRUST BANK CENTRAL FLORIDA, N.A.
By: /s/
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Name:
Title:
TORONTO DOMINION (TEXAS), INC.
By: /s/ Xxxxx Simlen
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Name: Xxxxx Simlen
Title: Vice President
THE TOYO TRUST & BANKING CO., LTD.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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