FIRST AMENDMENT TO ASSET AND STOCK PURCHASE AGREEMENT
EXHIBIT 10.72
FIRST AMENDMENT TO
ASSET AND STOCK PURCHASE AGREEMENT
FIRST AMENDMENT TO ASSET AND STOCK PURCHASE AGREEMENT, dated as of
September 10, 2002 (the "FIRST AMENDMENT"), by and among Budget Group, Inc., a
Delaware corporation ("SELLER"), the Subsidiaries of Seller listed on SCHEDULE 1
(collectively with Seller, "SELLER PARTIES"), Cendant Corporation, a Delaware
corporation ("PARENT"), and Cherokee Acquisition Corporation, a Delaware
corporation ("BUYER").
WHEREAS, Parent, Cherokee and Seller Parties have entered into the
Asset and Stock Purchase Agreement, dated as of August 22, 2002 (the "PURCHASE
AGREEMENT"); and
WHEREAS, Parent, Cherokee and Seller Parties desire to amend the
Purchase Agreement as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, the parties agree as follows:
1. DEFINED TERMS. Capitalized terms used but not defined in this
First Amendment shall have the respective meanings assigned thereto in the
Purchase Agreement.
2. AMENDMENT TO THE PURCHASE AGREEMENT.
(a) The definition of the term "Cash Purchase Price" in
SECTION 1.1 OF THE PURCHASE AGREEMENT is hereby amended by replacing
"$107,500,000" with "$110,000,000."
(b) SECTION 2.5(a)(vi) OF THE PURCHASE AGREEMENT is hereby
amended by adding", or on account of the fees and expenses, including the fees
and expenses of attorneys and professionals, of the Indenture Trustees of (i)
the 9 1/8% Senior Notes Due 2006, (ii) the 6.85% Convertible Subordinated Notes,
Series B, Due 2007 and (iii) the Remarketable Term Income Deferrable Equity
Securities Due 2028" after the words "Additional DIP Asset-Backed Financing" in
the fourteenth line thereof.
(c) SECTION 8.6(b)(i) OF THE PURCHASE AGREEMENT is hereby
amended by adding the following proviso at the end of such Section:
"; PROVIDED, FURTHER, that if Buyer terminates this Agreement pursuant
to SECTIONS 8.3(a) or 8.3(b) and Buyer's recovery is not limited to
$3,500,000 by virtue of the immediately preceding proviso (i) or (ii)
above, Buyer shall be entitled to receive (A) 23.34% of the
Termination Amount (I.E., $ 3,500,000) within two Business Days of
such termination and (B)
76.66% of the Termination Amount (I.E., $11,500,000) upon the closing
of an Alternative Transaction or (C) if no Alternative Transaction
closes, such additional amount, not to exceed $11,500,000, as the
Bankruptcy Court determines pursuant to a Final Order compensates
Buyer and Parent for their reasonable pre-Petition and post-Petition
attorneys', accountants' and financial advisors' fees and expenses)
incurred in connection with the transaction contemplated by this
Agreement (including their due diligence with respect to the Debtors,
the Acquired Assets and the Assumed Liabilities, the drafting and
negotiation of this Agreement (including the schedules and exhibits
hereto and the Seller Parties Disclosure Schedule) and the Ancillary
Agreements), such reasonableness to be determined from the point of
view of a reasonable potential buyer of the Acquired Business after
taking into account the actual payment of the $3,500,000 referred to
above."
3. CONTINUING EFFECT OF PURCHASE AGREEMENT. Except as specifically
amended pursuant to this First Amendment, the provisions of the Purchase
Agreement are and shall remain in full force.
4. COUNTERPARTS. This First Amendment may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
the executed counterparts taken together shall be deemed to be one originally
executed document.
5. GOVERNING LAW. Except to the extent the mandatory provisions of
the Bankruptcy Code apply, this First Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York applicable to
contracts made and to be performed entirely in such state without regard to
principles of conflicts or choice of laws or any other law that would make the
laws of any other jurisdiction other than the State of New York applicable
hereto.
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IN WITNESS WHEREOF, Parent, Cherokee and Seller Parties have caused
this First Amendment to be signed by their respective officers thereunto duly
authorized, all as of the date first written above.
BUDGET GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
CHEROKEE ACQUISITION
CORPORATION
By: /s/ Xxxx X. Xxxx
------------------------------
Name: Xxxx X. Xxxx
Tile: Secretary
CENDANT CORPORATION
By: /s/ Xxxx X. Xxxx
------------------------------
Name: Xxxx X. Xxxx
Title: Executive Vice President, Law
and Corporate Secretary
BGI AIRPORT PARKING, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
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BGI SHARED SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
BGI SHARED SERVICES, LLC
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
VEHICLE RENTAL ACCESS
COMPANY, LLC
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
PREMIER CAR RENTAL LLC
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
4
AUTO RENTAL SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
RYDER TRS, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
RYDER MOVE MANAGEMENT, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
MASTERING THE MOVE REALTY, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
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THE MOVE SHOP, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
RYDER RELOCATION SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
BUDGET STORAGE CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
BUDGET RENT A CAR CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
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CONTROL RISK CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
XXXXXX XXXXXX INSURANCE AGENCY,
INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
BUDGET RENT-A-CAR
INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
BUDGET CAR SALES, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
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TCS PROPERTIES, LLC
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
IN MOTORS VI, LLC
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
VALCAR RENTAL CAR SALES, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
DIRECTORS ROW MANAGEMENT
COMPANY, LLC
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
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TEAM CAR SALES OF SOUTHERN
CALIFORNIA, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
TEAM CAR SALES OF SAN DIEGO,
INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
TEAM CAR SALES OF RICHMOND,
INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
TEAM CAR SALES OF PHILADEPHIA,
INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
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TEAM CAR SALES OF DAYTON, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
TEAM CAR SALES OF CHARLOTTE,
INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
XXXXXX XXXXXX FORD, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
XXXX XXXX FORD, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
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XXXXXX CHRYSLER PLYMOUTH
DODGE JEEP EAGLE, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
BUDGET SALES CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
RESERVATION SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
TEAM REALTY SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
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TEAM HOLDINGS CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
BUDGET RENT-A-CAR SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
BUDGET-RENT-A-CAR OF ST.LOUIS,
INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
BUNGET-RENT-A-CAR OF THE
MIDWEST, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
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BVM, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
DAYTON AUTO LEASE COMPANY,
INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
MOSIANT CAR SALES, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
NYRAC INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
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BUDGET RENT A CAR CARIBE
CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
BUDGET FLEET FINANCE
CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
TRANSPORTATION AND STORAGE
ASSOCIATES
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
BRAC CREDIT CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
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TEAM FLEET SERVICES
CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
BUDGET RENT A CAR ASIA-PACIFIC,
INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
BUDGET RENT A CAR OF JAPAN, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
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