EXHIBIT 10.4
THIRTEENTH AMENDMENT, WAIVER AND CONSENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRTEENTH AMENDMENT, WAIVER AND CONSENT TO AMENDED AND RESTATED
CREDIT AGREEMENT, dated as of May 31, 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.
WITNESSETH:
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, and the
Twelfth Amendment, Waiver and Consent to Amended and Restated Credit Agreement
dated as of April 8, 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 Twelfth Amendment;
WHEREAS, the Borrower, in connection with a retention and severance
plan for its top fifty-six employees, desires a waiver of the terms of Section
8.2.19(a) of the Credit Agreement to the extent necessary to permit upfront
retention payments to be made to each of the four most highly compensated
officers and employees of the Borrower and its Subsidiaries (as determined
pursuant to such Section 8.2.19(a) and as specifically identified by the
Borrower in a letter to the Lender Committee Members dated May 31, 2002 (the
"Borrower Letter"));
WHEREAS, the Borrower and its Subsidiaries desire to make Investments
in Budget France S.A. in order to avert such Subsidiary from being determined
to be insolvent by the
administrator thereof and in order to obtain the approval of such administrator
in respect of the franchising of the operations of Budget and its Subsidiaries
in France;
WHEREAS, the Borrower desires to be permitted to sell, transfer or
convey (a) assets located in the United States having a fair market value of up
to $3,000,000 to make payments under its Leases and (b) master franchise rights
relating to the operations of the Borrower and its Subsidiaries in France,
Germany and the United Kingdom, together with any existing assets and/or
leaseholds needed for the conduct of such operations; 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 sixth recital.
"Amendment" is defined in the preamble.
"Borrower" is defined in the preamble.
"Borrower Letter" 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.
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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:
"'Thirteenth Amendment' means the Thirteenth Amendment,
Waiver and Consent to Amended and Restated Credit Agreement, dated as
of May 31, 2002, among the Borrower, the Lenders parties thereto and
the Administrative Agent."
"'Thirteenth Amendment Effective Date' means the date the
Thirteenth Amendment became effective in accordance with its terms."
SECTION 2.1.2. Amendment to Section 4.2 ("Issuances and Extensions")
of the Credit Agreement. Clause (i) of the last sentence to Section 4.2 of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
"(i) the issuance of new Enhancement Letters of Credit or the increase
in the Stated Amount of existing Enhancement Letters of Credit,
provided that
(A) the aggregate Stated Amount of such newly issued
Enhancement Letters of Credit, together with the aggregate
increases in the Stated Amount of such existing Enhancement
Letters of Credit, does not exceed $66,550,000,
(B) concurrently with any such issuance or increase,
the aggregate Stated Amount of all other Enhancement Letters
of Credit is reduced dollar-for-dollar in an amount equal to
the aggregate Stated Amount of such newly issued Enhancement
Letters of Credit and such increases in the Stated Amount of
such existing Enhancement Letters of Credit, and
(C) in the case of issuances of new Enhancement
Letters of Credit, or increases in the Stated Amount of
existing Enhancement Letters of Credit, on or after the
Thirteenth Amendment Effective Date, where such newly issued
Enhancement Letters of Credit and such increases to such
existing Enhancement Letters of Credit are issued or
increased, as the case may be, in connection with a decrease
of the Stated Amount of an existing Enhancement Letter of
Credit as a result of, or relating to,
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(1) the amortization of the medium term
notes for which such decreased, existing Enhancement
Letter of Credit provided credit enhancement or
support, the aggregate Stated Amount of such newly
issued Enhancement Letters of Credit and such
increases to such increased, existing Enhancement
Letters of Credit shall not exceed $9,400,000
(provided that (x) such decreased, existing
Enhancement Letter(s) of Credit shall be (aa) the
Irrevocable Letter of Credit No. TS-06000867, issued
on April 29, 1997 (the 'Series 1997-1 Letter of
Credit') and/or (bb) the Irrevocable Letter of
Credit No. TS-07001428, issued on February 10, 2000
(the 'Series 1999-3 Letter of Credit'); (y) no such
newly issued Enhancement Letter of Credit shall have
been issued in reliance on this subclause (i)(C)(1)
and (z) such increased, existing Enhancement Letter
of Credit shall be the Irrevocable Letter of Credit
No. TS-07001811, dated November 29, 2001 (the
'Series 2001-3 Letter of Credit')), and
(2) the issuance of a new subordinated
class of notes under an existing medium term note
program, (x) the terms and conditions (including the
collateral being provided therefor) of such newly
issued subordinated class of notes shall be
satisfactory in all respects to the Lender Committee
Members holding a majority of the Commitment Amount
held in the aggregate by them and (y) the aggregate
Stated Amount of such newly issued Enhancement
Letters of Credit and such increases to such
increased, existing Enhancement Letters of Credit
shall not exceed $30,000,000, and".
SECTION 2.1.3. Amendment to Section 8.1.17 ("Restructuring Plan,
etc.") of the Credit Agreement. Section 8.1.17 of the Credit Agreement is
hereby amended by amending and restating such Section to read in its entirety
as follows:
"SECTION 8.1.17. Restructuring Plan, etc. The Borrower shall
furnish, or shall cause to be furnished, to each Lender on or prior to
June 14, 2002, its definitive plan (the "Restructuring Plan") (a) for
restructuring the Indebtedness of it and its Subsidiaries, (b) for
obtaining financing for the acquisition (or refinancing) of Vehicles
necessary to meet its business plan, and (c) for meeting its liquidity
needs, 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.".
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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) June 28, 2002, (y) the giving of an Interest Payment Notice by
the Borrower and (z) the occurrence of an Acceleration Event,
compliance by the Borrower with the provisions of Section 8.2.4 of the
Credit Agreement with respect to the fourth Fiscal Quarter of the 2001
Fiscal Year and the first Fiscal Quarter of the 2002 Fiscal Year;
(b) so long as an Interest Payment Notice has not been given
and an Acceleration Event has not occurred, waive, until the earliest
of (x) June 28, 2002, (y) the giving of an Interest Payment Notice by
the Borrower and (z) the occurrence of an Acceleration Event, the
Default arising under Section 9.1.5(a) of the Credit Agreement as a
result of the failure of the Borrower to pay interest on its Senior
Notes on April 1, 2002 or its Series B Notes on April 29, 2002;
(c) consent to the Borrowing Base Amount calculated as of the
last day of April 2002 to be less than the aggregate unpaid principal
amount of all Loans and Letter of Credit Outstandings outstanding
during the period in which such Borrowing Base Amount is in effect
under the terms of the Credit Agreement, without requiring any
mandatory prepayments and/or cash collateralization under clause (b)
of Section 3.1.1 of the Credit Agreement;
(d) so long as an Interest Payment Notice has not been given
and an Acceleration Event has not occurred, consent, until the
earliest of (x) June 28, 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
May 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 May 2002;
(e) on or following the date on which (i) the Borrower and a
creditworthy entity (the "Acquirer") seeking to acquire all or
substantially all of the equity of a reorganized Borrower (or all or
substantially all of the assets of the Borrower and its Subsidiaries)
have executed and delivered a letter of intent (the "Letter of
Intent") that contains (A) the terms set forth on Schedule I hereto or
(B) such other terms which are acceptable to the Administrative Agent
and the Required Lenders and (ii) the Borrower has furnished a true
and complete copy thereof to the Administrative Agent, consent to
payments to the four officers identified in the Borrower Letter in
amounts not exceeding the amounts set forth therein, which payments
shall not exceed in the aggregate $774,250;
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(f) on or following the date on which (i) the Borrower and
the Acquirer have executed and delivered definitive, binding and
effective documentation reflecting (A) the terms of the Letter of
Intent or (B) such other terms which are acceptable to the
Administrative Agent and the Required Lenders and (ii) the Borrower
has furnished true and complete copies thereof to the Administrative
Agent, together with, in the case such documentation would not
otherwise require the acceptance of the Administrative Agent and the
Required Lenders described in the immediately preceding subclause
(f)(i)(B), a certificate of an Authorized Officer of the Borrower in
form and substance reasonably satisfactory to the Administrative Agent
stating that the terms of such documentation do not conflict in any
material respect with the terms of the Letter of Intent that relate to
the class of items set forth on Schedule I hereto, 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;
(g) waive compliance by the Borrower with the provisions of
Section 8.1.16 of the Credit Agreement to the extent, and only to the
extent, such provisions apply to BTI (UK) Plc, Budget Leasing Ltd. and
Polyhire Ltd.;
(h) so long as an Interest Payment Notice has not been given,
an Event of Default has not occurred and an Acceleration Event has not
occurred, waive compliance by the Borrower with the provisions of
clause (g) of Section 8.2.5 of the Credit Agreement to the extent, and
only to the extent, necessary to permit the Borrower and its
Subsidiaries to make Investments in Budget France S.A. (the Borrower
hereby agreeing to use its best efforts to make such Investments in
the form of loans) in order to avert such Subsidiary from being
determined to be insolvent by the administrator thereof and in order
to obtain the approval of such administrator in respect of the
franchising of the operations of Budget and its Subsidiaries in
France; provided, however, that the aggregate amount of such
Investments made after the Thirteenth Amendment Effective Date shall
not exceed $3,000,000;
(i) so long as an Interest Payment Notice has not been given,
an Event of Default has not occurred and an Acceleration Event has not
occurred, (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, transfer or conveyance on or
subsequent to the Thirteenth Amendment Effective Date of assets
located in the United States and having a fair market value not
exceeding $3,000,000; and (ii) waive compliance by the Borrower with
the provisions limiting the aggregate fair market value of assets that
may be sold, transferred or conveyed pursuant to clause (c)(ii) of
Section 8.2.10 of the Credit Agreement or in the proviso to such
clause to the extent the fair market value of such assets sold,
transferred or conveyed on or subsequent to the Thirteenth Amendment
Effective Date do not exceed $3,000,000; provided, however, that the
proceeds of any such sale, transfer or conveyance of such assets shall
be immediately deposited in a cash collateral account maintained with
the Administrative Agent (the
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"Asset Proceeds Cash Collateral Account") as security for the Secured
Obligations (as defined in the Security Agreements), and the Borrower
and its Subsidiaries shall have no right to withdraw any funds from
such account except to the extent that the Borrower has provided to
the Administrative Agent a certificate, executed by the chief
financial or accounting officer of the Borrower, certifying that (A)
no Default then exists and (B) 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; provided, that 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, transfer or conveyance; and
(j) so long as an Interest Payment Notice has not been given,
an Event of Default has not occurred and an Acceleration Event has not
occurred, (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, transfer or conveyance of master
franchise rights relating to the operations of the Borrower and its
Subsidiaries in France, Germany and the United Kingdom, together with
any existing assets and/or leaseholds needed for the conduct of such
operations, including relevant airport concession agreements; 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, however, that the proceeds
of any such sale, transfer or conveyance of such master franchise
rights or assets, other than the portion of such proceeds required to
be retained in the relevant Subsidiary of the Borrower in order to
avert the insolvency of such Subsidiary or to satisfy the reasonable
costs of winding up and/or liquidating such Subsidiary, shall be
immediately deposited in the Asset Proceeds Cash Collateral Account as
security for the Secured Obligations (as defined in the Security
Agreements), and the Borrower and its Subsidiaries shall have no right
to withdraw any funds from such account except to the extent that the
Borrower has provided to the Administrative Agent a certificate,
executed by the chief financial or accounting officer of the Borrower,
certifying that (A) no Default then exists and (B) 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; provided, that, 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, transfer or
conveyance (it being understood and agreed that franchise or royalty
payments by the acquirers of such master franchises in the United
Kingdom and Germany shall be paid to Budget Rent-A-Car International,
Inc.).
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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 "Thirteenth 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 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 3.4. Fees and Expenses. (a) Amendment, Consent and Waiver Fee.
The Borrower shall have paid in cash no later than 1:00 p.m., New York time on
June 3, 2002, without setoff, deduction or counterclaim, a non-refundable
amendment, consent and waiver fee to the Administrative Agent for the pro rata
account of each Lender that has executed and delivered (including delivery by
way of facsimile) a copy of this Amendment to the attention of Xxxxxxx Xxx at
Mayer, Brown, Xxxx & Maw, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (00xx Xxxxx),
telecopy number 000-000-0000 at or prior to 5:00 p.m., New York time, on May
31, 2002 (as such time may be extended by the Borrower), in the amount of 20
basis points of such Lender's Commitment as of the date hereof.
(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 Thirteenth 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).
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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 Credit Agreement (excluding, however, those contained in
Section 7.6, Section 7.7 and Section 7.20 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
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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 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. After giving effect to
this Amendment, each Obligor is in compliance with all the terms and conditions
of the Credit Agreement and the other Loan Documents to be observed or
performed by it thereunder, and no Default has occurred and is continuing.
Without limiting the effect of any of the representations and warranties of
this Article IV, the Borrower has no reason to believe that it and its
Subsidiaries will not be in compliance with all the terms and conditions of the
Credit Agreement and the other Loan Documents during the period from the
Thirteenth Amendment Effective Date through and including June 28, 2002,
including the covenant that each lessee under a Lease will make all payments
required to be made by it thereunder on the date such payments are required to
be made thereunder and that each such lessee will comply in all respects with
each of its other obligations thereunder.
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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, counsel for the Administrative
Agent, and Wachtell, Lipton, Xxxxx & Xxxx, special restructuring 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.
SECTION 5.6. 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.
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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. 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 5.9. 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 5.10. 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
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Name:
Title:
CREDIT SUISSE FIRST BOSTON, as a Lender and
the Administrative Agent
By
------------------------------------------
Name:
Title:
By
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Name:
Title:
BANK OF AMERICA, N.A.
By
------------------------------------------
Name:
Title:
THE BANK OF NEW YORK
By
------------------------------------------
Name:
Title:
S-1
THE BANK OF NOVA SCOTIA
By
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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:
DEUTSCHE BANK TRUST COMPANY
AMERICAS (formerly known as Bankers Trust
Company)
By
------------------------------------------
Name:
Title:
S-2
BNP PARIBAS
By
------------------------------------------
Name:
Title:
By
------------------------------------------
Name:
Title:
PB CAPITAL CORPORATION
By
------------------------------------------
Name:
Title:
By
------------------------------------------
Name:
Title:
CERBERUS PARTNERS L.P.
By
------------------------------------------
Name:
Title:
S-3
CREDIT INDUSTRIEL ET COMMERCIAL
By
------------------------------------------
Name:
Title:
By
------------------------------------------
Name:
Title:
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-4
ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN AG
By
------------------------------------------
Name:
Title:
By
------------------------------------------
Name:
Title:
FLEET BANK, N.A.
By
------------------------------------------
Name:
Title:
COMERICA BANK (as successor to Imperial Bank
by merger)
By
------------------------------------------
Name:
Title:
S-5
GENERAL ELECTRIC CAPITAL
CORPORATION
By
------------------------------------------
Name:
Title:
S-6
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By
------------------------------------------
Name:
Title:
NATEXIS BANQUE
By
------------------------------------------
Name:
Title:
By
------------------------------------------
Name:
Title:
XXX CAPITAL FUNDING L.P.
By: Highland Capital Management, L.P., as
Collateral Manager
By
------------------------------------------
Name:
Title:
SOUTHERN PACIFIC BANK
By
------------------------------------------
Name:
Title:
S-7
SUNTRUST BANK
By
-----------------------------------------------
Name:
Title:
DK ACQUISITION PARTNERS LP
By
-----------------------------------------------
Name:
Title:
HCM/Z SPECIAL OPPORTUNITIES LLC
(formerly known as HZ Special Opportunities
LLC)
By: Highbridge Capital Management, LLC
By
-------------------------------------------
Name:
Title:
R2 TOP HAT, LTD.
By Amalgamated Gadget, L.P., as Investment
Manager
By Scepter Holdings, Inc., its General Partner
By
------------------------------------------
Name:
Title:
MSD PORTFOLIO L.P. - INVESTMENTS
By
-----------------------------------------------
Name: Xxxx X. Xxxxxx
Title: General Counsel of General Partner
S-8
SCHEDULE I
To Thirteenth Amendment
Letter of Intent Requirements:
1) A commitment to provide up to $150 million of credit enhancement and/or
liquidity (in the form of equity of otherwise) during the pendency of the
Borrower's Chapter 11 proceeding in order to enable the Borrower and its
Subsidiaries to purchase and/or lease new Vehicles to appropriate levels
during such period.
2) No requirement of the Lenders or the Issuer to increase their exposure
(contingent or otherwise) to the Borrower and its Subsidiaries.
3) The Credit Agreement will be terminated, and all amounts payable
thereunder repaid and all letters of credit issued thereunder terminated
and returned to the Issuer (or cash collateralized or backstopped by other
letters of credit, in each case pursuant to arrangements satisfactory to
the Issuer and the Required Lenders), upon the effective date of a plan of
reorganization for Budget Group, Inc. and its Domestic Subsidiaries under
Chapter 11 ("Chapter 11") of the Bankruptcy Reform Act of 1978, as
amended, or the closing of a sale of all or substantially all of the
assets of the Borrower and its Subsidiaries pursuant to Section 363 of
such Act, as applicable.
4) To the extent a due diligence condition is included, it is limited to
specifically enumerated items.
5) No financing condition.
