EXHIBIT 10.5
[EXECUTION COPY]
FOURTEENTH AMENDMENT, WAIVER AND CONSENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTEENTH AMENDMENT, WAIVER AND CONSENT TO AMENDED AND RESTATED
CREDIT AGREEMENT, dated as of June 28, 2002 (this "Amendment"), is made by and
among BUDGET GROUP, INC., a Delaware corporation (the "Borrower"), the Lenders
(such capitalized term and all other capitalized terms not otherwise defined
herein shall have the meanings provided for in Article I below) parties hereto
and CREDIT SUISSE FIRST BOSTON, as administrative agent (in such capacity, the
"Administrative Agent") for the Lenders.
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Agents have heretofore
entered into that certain Amended and Restated Credit Agreement, dated as of
June 19, 1998 (as amended by the First Amendment to Amended and Restated Credit
Agreement dated as of September 11, 1998, the Second Amendment to Amended and
Restated Credit Agreement dated as of March 18, 1999, the Third Amendment to
Amended and Restated Credit Agreement dated as of December 22, 1999, the Fourth
Amendment and Waiver to Amended and Restated Credit Agreement dated as of
September 30, 2000, the Fifth Amendment to Amended and Restated Credit
Agreement, dated as of January 10, 2001, the Sixth Amendment to Amended and
Restated Credit Agreement, dated as of February 9, 2001, the Seventh Amendment
and Consent to Amended and Restated Credit Agreement, dated as of June 19, 2001,
the Eighth Amendment and Consent to Amended and Restated Credit Agreement, dated
as of July 31, 2001, the Ninth Amendment, Waiver and Consent to Amended and
Restated Credit Agreement dated as of December 20, 2001, the Tenth Amendment,
Waiver and Consent to Amended and Restated Credit Agreement dated as of February
7, 2002, the Eleventh Amendment, Waiver and Consent to Amended and Restated
Credit Agreement dated as of March 7, 2002, the Twelfth Amendment, Waiver and
Consent to Amended and Restated Credit Agreement dated as of April 8, 2002, and
the Thirteenth Amendment, Waiver and Consent to Amended and Restated Credit
Agreement dated as of May 31, 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 Thirteenth Amendment; and
WHEREAS, the requisite Lenders are willing, on and subject to the terms
and conditions set forth below (including, without limitation, the amendments to
the Credit Agreement provided for herein), to grant the waivers and consents
provided below (the Credit Agreement, as amended and otherwise modified pursuant
to the terms of this Amendment, being referred to as the "Amended Credit
Agreement");
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the Borrower and the requisite Lenders hereby agree
as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Definitions. The following terms (whether or not
underscored) when used in this Amendment shall have the following meanings (such
meanings to be equally applicable to the singular and plural forms thereof):
"Administrative Agent" is defined in the preamble.
"Amended Credit Agreement" is defined in the third recital.
"Amendment" is defined in the preamble.
"Borrower" is defined in the preamble.
"Credit Agreement" is defined in the first recital.
SECTION 1.2. Other Definitions. Terms for which meanings are provided
in the Amended Credit Agreement are, unless otherwise defined herein or the
context otherwise requires, used in this Amendment with such meanings.
ARTICLE II
AMENDMENTS, WAIVERS AND CONSENTS
SECTION 2.1. Amendments. Subject to the satisfaction of the conditions
set forth in Article III, the Credit Agreement is hereby amended in accordance
with this Section 2.1.
SECTION 2.1.1. Amendments to Section 1.1 ("Defined Terms") of the
Credit Agreement. Section 1.1 of the Credit Agreement is hereby amended by
inserting in such Section the following definitions in the appropriate
alphabetical order:
"`Fourteenth Amendment' means the Fourteenth Amendment, Waiver
and Consent to Amended and Restated Credit Agreement, dated as of June
28, 2002, among the Borrower, the Lenders parties thereto and the
Administrative Agent."
"`Fourteenth Amendment Effective Date' means the date the
Fourteenth Amendment became effective in accordance with its terms."
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SECTION 2.1.2. Amendment to Section 7.6 ("No Material Adverse Change;
Absence of Undisclosed Liabilities") of the Credit Agreement. Section 7.6 of the
Credit Agreement is hereby amended by amending and restating such Section to
read in its entirety as follows:
"SECTION 7.6. No Material Adverse Change. Except as disclosed
by the Borrower pursuant to reports on Form 10-Q and Form 10-K filed
with the Securities and Exchange Commission on or prior to May 15,
2002, there has been no material adverse change in the business,
property, operations, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower and its Subsidiaries, taken as
a whole, since December 31, 1997.".
SECTION 2.1.3. Amendment to Article VII ("REPRESENTATIONS AND
WARRANTIES") of the Credit Agreement. Article VII of the Credit Agreement is
hereby amended by deleting in its entirety Section 7.20 of the Credit Agreement.
SECTION 2.1.4. Omnibus Amendment to Credit Agreement and Loan
Documents. In respect of, and solely in respect of, the reduction of the Stated
Amount of any Enhancement Letter of Credit, each Section, clause or provision of
the Credit Agreement and each other Loan Document (other than the Enhancement
Letter of Credit Application and Agreements, the Enhancement Letters of Credit
and annexes or exhibits to the Enhancement Letter of Credit Application and
Agreements or the Enhancement Letters of Credit) that contains a representation
and warranty shall be deemed to have been deleted and the words "[INTENTIONALLY
OMITTED]" shall be deemed to have been inserted in lieu thereof.
SECTION 2.2. Waivers and Consents. Subject to the satisfaction of the
conditions set forth in Article III, the Lenders, as of the date hereof, hereby:
(a) so long as an Interest Payment Notice has not been given
and an Acceleration Event has not occurred, waive, until the earliest
of (x) July 15, 2002, (y) the giving of an Interest Payment Notice by
the Borrower and (z) the occurrence of an Acceleration Event,
compliance by the Borrower with the provisions of Section 8.2.4 of the
Credit Agreement with respect to the fourth Fiscal Quarter of the 2001
Fiscal Year and the first and second Fiscal Quarters of the 2002 Fiscal
Year;
(b) so long as an Interest Payment Notice has not been given
and an Acceleration Event has not occurred, waive, until the earliest
of (x) July 15, 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 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
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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; and
(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) July 15, 2002, (y) the giving of an Interest Payment Notice by
the Borrower and (z) the occurrence of an Acceleration Event, to the
Borrowing Base Amount calculated as of the last day of June 2002 to be
less than the aggregate unpaid principal amount of all Loans and Letter
of Credit Outstandings outstanding during the period in which such
Borrowing Base Amount is in effect under the terms of the Credit
Agreement, without requiring any mandatory prepayments and/or cash
collateralization under clause (b) of Section 3.1.1 of the Credit
Agreement; provided that the Borrowing Base Amount is not less than
$280,000,000 as of the last day of June 2002.
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 "Fourteenth 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
July 1, 2002, without setoff, deduction or counterclaim, a non-refundable
amendment, consent and waiver fee to the
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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 (19(th) Floor), telecopy number 000-000-0000 at or prior to
5:00 p.m., New York time, on June 28, 2002 (as such time may be extended by the
Borrower), in the amount of 10 basis points of such Lender's Commitment as of
the date hereof.
(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 Fourteenth 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).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. Representations and Warranties. In order to induce the
requisite Lenders and the Administrative Agent to enter into this Amendment, the
Borrower hereby represents and warrants to the Administrative Agent, the Issuer
and each Lender, as of the date hereof, as follows:
(a) the representations and warranties set forth in Article
VII of the Amended Credit Agreement (excluding, however, those
contained in Section 7.7 of the Amended Credit Agreement) and in each
other Loan Document are, in each case, true and correct (unless stated
to relate solely to an earlier date, in which case such representations
and warranties are true and correct as of such earlier date);
(b) except as disclosed by the Borrower pursuant to reports on
Form 10-Q and Form 10-K filed with the Securities and Exchange
Commission on or prior to May 15, 2002, there has been no material
adverse change in the business, property, operations, assets,
liabilities, condition (financial or otherwise) or prospects of the
Borrower and its Subsidiaries, taken as a whole, since December 31,
1997;
(c) except as disclosed by the Borrower to the Agents, the
Issuer and the Lenders pursuant to Section 7.7 of the Amended Credit
Agreement
(i) no labor controversy, litigation, arbitration or
governmental investigation or proceeding is pending or, to the
best knowledge of the Borrower, threatened against the
Borrower or any of its Subsidiaries which might materially
adversely affect the Borrower's consolidated business,
operations, assets, revenues, properties or prospects or which
purports to affect the legality, validity or enforceability of
this Agreement, the Notes or any other Loan Document; and
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(ii) no development has occurred in any labor
controversy, litigation, arbitration or governmental
investigation or proceeding disclosed pursuant to Section 7.7
of the Amended Credit Agreement which might materially
adversely affect the consolidated businesses, operations,
assets, revenues, properties or prospects of the Borrower and
its Subsidiaries;
(d) after giving effect to this Amendment, no Default has
occurred and is continuing, and neither the Borrower nor any of its
Subsidiaries nor any other Obligor is in material violation of any law
or governmental regulation or court order or decree;
(e) this Amendment has been duly authorized, executed and
delivered by the Borrower and constitutes a legal, valid and binding
obligation of the Borrower, enforceable against it in accordance with
its terms, except to the extent the enforceability hereof may be
limited by (i) the effect of bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
or affecting the rights and remedies of creditors generally and (ii)
the effect of general principles of equity, whether enforcement is
considered in a proceeding in equity or at law; and
(f) the execution, delivery and performance by the Borrower
and its Subsidiaries of this Amendment and each other Loan Document
executed or to be executed by any of them in connection therewith are
within the Borrower's and each such Subsidiary's corporate powers, have
been duly authorized by all necessary corporate action, and do not (i)
contravene the Borrower's or such Subsidiary's Organic Documents, (ii)
contravene any contractual restriction, law or governmental regulation
or court decree or order binding on or affecting the Borrower or such
Subsidiary or (iii) result in, or require the creation or imposition
of, any Lien (other than the Liens created under the Loan Documents in
favor of the Administrative Agent for the benefit of the Secured
Parties) on any of the Borrower's or such Subsidiary's properties.
SECTION 4.2. Full Disclosure. Except as corrected by written
information delivered to the Agents and the Lenders reasonably prior to the date
on which this representation is made, all factual information heretofore or
contemporaneously furnished by the Borrower in writing to any Agent, the Issuer
or any Lender for purposes of or in connection with this Amendment or any
transaction contemplated hereby is true and accurate in every material respect
and such information is not incomplete by omitting to state any material fact
necessary to make such information not misleading. All projections delivered to
any Agent or any Lender by or on behalf of the Borrower have been prepared in
good faith by the Borrower and represent the best estimates of the Borrower, as
of the date hereof, of the reasonably expected future performance of the
businesses reflected in such projections.
SECTION 4.3. Compliance with Amended Credit Agreement. After giving
effect to this Amendment, each Obligor is in compliance with all the terms and
conditions of the Amended Credit Agreement and the other Loan Documents to be
observed or performed by it thereunder, and no Default has occurred and is
continuing.
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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. Release. The Borrower hereby releases, waives and forever
relinquishes all claims, demands, obligations, liabilities and causes of action
of whatever kind or nature, whether known or unknown, which it has, may have, or
might assert at the time of execution of this Amendment against the
Administrative Agent, the Lenders, the Issuer and/or their respective parents,
affiliates, participants, officers, directors, employees, agents, attorneys,
accountants, consultants, predecessors, successors and assigns (collectively,
the "Lender Group"), directly or indirectly, which occurred, existed, was taken,
permitted or begun prior to the execution of this Amendment, arising out of,
based upon, or in any manner connected with (i) any transaction, event,
circumstance, action, failure to act or occurrence of any sort or type, whether
known or unknown, with respect to the Credit Agreement, any other Loan Document
and/or the administration thereof or the obligations created thereby, (ii) any
discussions, commitments, negotiations, conversations or communications with
respect to the restructuring, modification or collection of any obligations or
commitments related to the Credit Agreement, any other Loan Document and/or the
administration thereof or the obligations created thereby, or (iii) any matter
related to the foregoing.
SECTION 5.11. GOVERNING LAW. THIS AMENDMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers or general partners (or their respective
officers) thereunto duly authorized as of the day and year first above written.
BUDGET GROUP, INC.
By
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Name:
Title:
CREDIT SUISSE FIRST BOSTON, as a Lender and
the Administrative Agent
By
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Name:
Title:
By
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Name:
Title:
BANK OF AMERICA, N.A.
By
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Name:
Title:
THE BANK OF NEW YORK
By
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Name:
Title:
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THE BANK OF NOVA SCOTIA
By
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Name:
Title:
THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH
By
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Name:
Title:
BANK POLSKA KASA OPIEKI S.A. - PEKAO
S.A. GROUP, NEW YORK BRANCH
By
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Name:
Title:
WASHINGTON MUTUAL BANK, F.A. (as
successor in interest to BANK UNITED)
By
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Name:
Title:
DEUTSCHE BANK TRUST COMPANY
AMERICAS (formerly known as Bankers Trust
Company)
By
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Name:
Title:
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BNP PARIBAS
By
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Name:
Title:
By
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Name:
Title:
PB CAPITAL CORPORATION
By
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Name:
Title:
By
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Name:
Title:
CERBERUS PARTNERS L.P.
By
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Name:
Title:
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CREDIT INDUSTRIEL ET COMMERCIAL
By
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Name:
Title:
By
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Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By
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Name:
Title:
By
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Name:
Title:
CREDIT LYONNAIS CHICAGO BRANCH
By
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Name:
Title:
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XXXXXXXX XXXX XX, XXX XXXX AND
GRAND CAYMAN BRANCHES
By
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Name:
Title:
By
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Name:
Title:
ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN AG
By
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Name:
Title:
By
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Name:
Title:
FLEET BANK, N.A.
By
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Name:
Title:
COMERICA BANK (as successor to Imperial Bank
by merger)
By
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Name:
Title:
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GENERAL ELECTRIC CAPITAL
CORPORATION
By
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Name:
Title:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By
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Name:
Title:
NATEXIS BANQUE
By
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Name:
Title:
By
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Name:
Title:
XXX CAPITAL FUNDING L.P.
By: Highland Capital Management, L.P., as
Collateral Manager
By
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Name:
Title:
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SOUTHERN PACIFIC BANK
By
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Name:
Title:
SUNTRUST BANK
By
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Name:
Title:
DK ACQUISITION PARTNERS LP
By X.X. Xxxxxxxx & Co., its General Partner
By
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Name:
Title:
HCM/Z SPECIAL OPPORTUNITIES LLC
(formerly known as HZ Special Opportunities
LLC)
By: Highbridge Capital Management, LLC
By
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Name:
Title:
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R2 TOP HAT, LTD.
By Amalgamated Gadget, L.P., as Investment
Manager
By Scepter Holdings, Inc., its General Partner
By
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Name:
Title:
MSD PORTFOLIO L.P. - INVESTMENTS
By
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Name: Xxxx X. Xxxxxx
Title: General Counsel of General Partner
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