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EXHIBIT 10.41
FOURTH AMENDMENT AND WAIVER TO AMENDED
AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT AND WAIVER TO AMENDED AND RESTATED CREDIT
AGREEMENT, dated as of September 30, 2000 (this "Amendment and Waiver"), 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, and as
further amended, supplemented, amended and restated or otherwise modified, the
"Credit Agreement");
WHEREAS, the Borrower has suffered certain losses from its operations
in Europe, the Middle East and Africa and desires the amendment and/or waiver of
certain provisions of the Credit Agreement in connection therewith;
WHEREAS, the Required Lenders are willing, on and subject to the terms
and conditions set forth below (including, without limitation, an increase in
the Applicable Margin and the reduction of certain "basket" amounts in the
Credit Agreement), to amend and waive certain provisions of the Credit Agreement
as provided below (the Credit Agreement, as amended and otherwise modified
pursuant to the terms of this Amendment and Waiver, 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 I.1. Certain Definitions. The following terms (whether or not
underscored) when used in this Amendment and Waiver 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 and Waiver" is defined in the preamble.
"Borrower" is defined in the preamble.
"Credit Agreement" is defined in the first recital.
SECTION I.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 and Waiver with such
meanings.
ARTICLE II
WAIVER AND AMENDMENTS TO CREDIT AGREEMENT
SECTION II.1. Waiver. (a) Subject to the satisfaction of the conditions
set forth in Article III, the Lenders hereby waive, from the date hereof until
(and including) January 31, 2001, compliance by the Borrower with the provisions
of clauses (b) and (c) of Section 8.2.4 of the Credit Agreement with respect to
the third Fiscal Quarter of the 2000 Fiscal Year.
(b) Clause (a) of this Section 2.1 shall be limited precisely as
written and relates solely to noncompliance by the Borrower with the provisions
of clauses (b) and (c) of Section 8.2.4 of the Credit Agreement in the manner
and to the extent set forth above, and nothing in this Amendment and Waiver
shall be deemed to constitute a waiver of compliance by the Borrower with
respect to (A) clauses (b) and (c) of Section 8.2.4 of the Credit Agreement for
any period other than the third Fiscal Quarter of the 2000 Fiscal Year or (B)
any other term, provision or condition of the Credit Agreement or any other
instrument or agreement referred to therein or relating thereto or prejudice any
right or remedy that the Administrative Agent or any Lender may now have or may
have in the future under or in connection with the Credit Agreement or any other
instrument or agreement referred to therein or relating thereto.
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SECTION II.2. Amendments. Subject to the satisfaction of the conditions
set forth in Article III, effective as of the date hereof, the Credit Agreement
is hereby amended in accordance with this Section 2.2.
SECTION II.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 definitions in
the appropriate alphabetical order:
"Domestic Subsidiary" means any Subsidiary of the
Borrower other than a Foreign Subsidiary.
"Excluded EMEA Losses" means, with respect to each of
the four-consecutive-Fiscal-Quarter periods ending on the last
day of the third Fiscal Quarter of the 2000 Fiscal Year and
the last day of the fourth Fiscal Quarter of the 2000 Fiscal
Year, any net loss for such period in respect of the
operations of the Borrower and its Subsidiaries conducted in
Europe, the Middle East and Africa, as separately reported by
the Borrower (with such detail as the Administrative Agent may
reasonably request) in the financial statements to be
furnished to the Lenders pursuant to clauses (a) and (b) of
Section 8.1.1 following the effectiveness of the Fourth
Amendment and determined in a manner consistent with the
accounting principles applied in the preparation of the
financial statements furnished to the Lenders pursuant to
Section 8.1.1 prior to the effectiveness of the Fourth
Amendment, to the extent the aggregate amount of such loss for
any such period does not exceed $90,000,000.
"Fourth Amendment" means the Fourth Amendment and
Waiver to Amended and Restated Credit Agreement, dated as of
September 30, 2000, among the Borrower, the Lenders parties
thereto and the Agents.
"Loan Commitment Amount" means, on any date,
$50,000,000, as such amount may be reduced from time to time
pursuant to Section 2.2.3.
(b) by amending the definition of "Applicable Commitment Fee"
set forth in such Section by deleting the last sentence thereof and
substituting therefor the following sentence:
"Notwithstanding anything to the contrary in this definition,
the Applicable Commitment Fee for the period from the date of
the effectiveness of the Fourth Amendment to the date on which
the Administrative Agent receives the Compliance Certificate
for the Fiscal Quarter ending on or about March 31, 2001 shall
mean 50.0 basis points."
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(c) by amending the definition of "Applicable Margin" set
forth in such Section by deleting the last sentence thereof and
substituting therefor the following sentence:
"Notwithstanding anything to the contrary in this definition,
the Applicable Margin with respect to any Loan of any type for
the period from the date of the effectiveness of the Fourth
Amendment to the date on which the Administrative Agent
receives the Compliance Certificate for the Fiscal Quarter
ending on or about March 31, 2001 shall mean (x) 300 basis
points with respect to each Loan made or maintained as a
Eurocurrency Loan or (y) 200 basis points with respect to each
Loan made or maintained as an ABR Loan."
(d) by amending the definition of "Borrowing Base Amount" by
(i) inserting the following proviso at the end of clause (b) thereof:
"; provided that in no event shall the amount added to the Borrowing
Base Amount pursuant to this clause (b) exceed $31,000,000" and (ii)
deleting the reference in clause (d) thereof to "35%" and substituting
therefor "25%";
(e) by amending clause (a) of the definition of "Net Worth"
set forth in such Section by inserting immediately following the term
"Permitted 1999/2000 Restructuring Expenses" the phrase "and (without
duplication), solely for the purposes of clause (a) of Section 8.2.4,
Excluded EMEA Losses"; and
(f) by amending the definition of "Permitted Business
Acquisition" set forth in such Section by:
(i) deleting the reference in clause (a)(ii) thereof
to "$150,000,000" and substituting therefor "$25,000,000";
(ii) deleting the parenthetical in clause (a)(ii)
thereof "(provided that the portion thereof payable in cash
does not exceed $75,000,000)" and substituting therefor the
parenthetical "(provided that, following the effectiveness of
the Fourth Amendment, the portion thereof comprised of (x)
Indebtedness assumed or incurred in connection therewith
(exclusive of Vehicle Debt) and (y) the payment of cash shall
not exceed $6,000,000 in the aggregate over the term of this
Agreement)"; and
(iii) inserting the following new clause (c):
"(c) such Business Acquisition is not of an
Affiliate (or of assets of an Affiliate) of the
Person consummating such Business Acquisition".
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SECTION II.2.2. Amendment to Section 2.1.3 of the Credit Agreement.
Section 2.1.3 of the Credit Agreement is hereby amended in its entirety to read
as follows:
"SECTION 2.1.3. Lenders Not Permitted or Required To Make
Loans or Issue Letters of Credit Under Certain Circumstances. No Lender
shall be permitted or required to
(a) make any Loan if, after giving effect thereto,
the aggregate outstanding principal amount of all Loans
(i) of all Lenders, together with all Letter
of Credit Outstandings, would exceed the least of (A)
the Commitment Amount, (B) the then existing
Borrowing Base Amount and (C) during the period from
November 1, 2000 to (and including) January 31, 2001,
$465,300,000, or
(ii) of such Lender, together with its
Percentage of all Letter of Credit Outstandings,
would exceed such Lender's Percentage of the least of
(A) the Commitment Amount, (B) the then existing
Borrowing Base Amount and (C) during the period from
November 1, 2000 to (and including) January 31, 2001,
$465,300,000, or
(iii) of all Lenders would exceed the Loan
Commitment Amount; or
(iv) of such Lender would exceed such
Lender's Percentage of the Loan Commitment Amount; or
(b) issue (in the case of the Issuer) any Letter of
Credit if, after giving effect thereto
(i) all Letter of Credit Outstandings,
together with the aggregate outstanding principal
amount of all Loans of all Lenders would exceed the
least of (A) the Commitment Amount, (B) the then
existing Borrowing Base Amount and (C) during the
period from November 1, 2000 to (and including)
January 31, 2001, $465,300,000, or
(ii) such Lender's Percentage of all Letter
of Credit Outstandings, together with the aggregate
outstanding principal amount of all Loans of such
Lender would exceed such Lender's Percentage of the
least of (A) the Commitment Amount, (B) the then
existing Borrowing Base Amount and (C) during the
period from November 1, 2000 to (and including)
January 31, 2001, $465,300,000."
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SECTION II.2.3. Amendment to Section 2.2 of the Credit Agreement.
Section 2.2 of the Credit Agreement is hereby amended by inserting the following
new Section 2.2.3:
"SECTION 2.2.3. Corresponding Reductions. Any reduction of the
Commitment Amount which reduces the Commitment Amount below the then
current amount of the Loan Commitment Amount shall result in an
automatic and corresponding reduction of the Loan Commitment Amount to
the amount of the Commitment Amount, as so reduced, without any further
action on the part of the Administrative Agent, the Lenders or
otherwise."
SECTION II.2.4. Amendment to Section 3.1 of the Credit Agreement.
Clause (b) of Section 3.1 of the Credit Agreement is hereby amended by deleting
the reference in subclause (A) thereof to "Commitment Amount" and substituting
therefor "Loan Commitment Amount".
SECTION II.2.5. Amendment to Section 6.2 of the Credit Agreement.
Section 6.2 of the Credit Agreement is hereby amended by inserting the following
new Section 6.2.4:
"SECTION 6.2.4. Compliance Certificate. With respect to each
Credit Extension requested during the period commencing with the first
day following the last day of the fourth Fiscal Quarter of the 2000
Fiscal Year and ending on (and including) January 31, 2001 and each
Credit Extension requested to be made during such period, the
Administrative Agent shall have received a Compliance Certificate,
executed by an Authorized Officer of the Borrower, showing (in
reasonable detail and with appropriate calculations and computations
(and, if applicable, projections and assumptions) in all respects
satisfactory to the Administrative Agent) compliance with the financial
covenants set forth in Section 8.2.4 with respect to the fourth Fiscal
Quarter of the 2000 Fiscal Year."
SECTION II.2.6. Amendment to Section 8.1.1 of the Credit Agreement.
Section 8.1.1 of the Credit Agreement is hereby amended by retitling clause (n)
thereof as clause (o) and inserting the following new clause (n):
"(n) (i) as soon as available and in any event no later than
December 15, 2000, the Borrower's plan to address the losses being
suffered by its operations in Europe, the Middle East and Africa,
including a timetable for the actions set forth therein, in such detail
as the Administrative Agent may reasonably request, and (ii) as soon as
available and in any event (notwithstanding anything to the contrary
herein) no later than January 15, 2001, an annual budget for the 2001
Fiscal Year, prepared on a monthly basis for such Fiscal Year
containing consolidated and consolidating projected statements of
earnings and cash flow of the Borrower and its Subsidiaries consistent
with the financial statements previously furnished to the Lenders
pursuant to clauses (a) and (b) of this Section; and"
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SECTION II.2.7. Amendment to Section 8.1.5 of the Credit Agreement.
Section 8.1.5 of the Credit Agreement is hereby amended by adding the following
sentences at the end thereof:
"In addition to, and without limiting the effect of the foregoing
provisions of this Section, (i) the Administrative Agent shall be
permitted to engage consultants (other than ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) reasonably
acceptable to the Required Lenders to review the Borrower's calculation
of the Borrowing Base Amount as of September 30, 2000 (or as of any
later date) and the documents to be furnished pursuant to clause (n) of
Section 8.1.1, (ii) the Borrower will, and will cause each of its
Subsidiaries to, permit such consultants to have access to their
respective books, records, officers and accountants for the purpose of
completing their engagement and otherwise cooperate with such
consultants in completing their engagement, and (iii) the Borrower
shall pay any fees and out-of-pocket expenses of such consultants for
such engagement that are incurred in connection with the provisions of
this sentence (it being understood that, assuming timely delivery of
the documents required to be delivered by the Borrower pursuant to
clause (n) of Section 8.1.1 and compliance by the Borrower and its
Subsidiaries with the terms of this Section, such engagement should,
unless otherwise consented to by the Borrower, end on January 31, 2001
and not require the engagement by such consultants or their own
accountants). The Borrower shall be consulted as to the identity of
such consultants."
SECTION II.2.8. Additional Amendments to Section 8.1 of the Credit
Agreement. Section 8.1 of the Credit Agreement is hereby further amended by
inserting the following new Sections 8.1.11 and 8.1.12:
"SECTION 8.1.11. Additional Collateral. As soon as practicable
following the effectiveness of the Fourth Amendment and in any event
prior to November 30, 2000 (or, in the case of interests in real
property, December 29, 2000), the Borrower shall, and shall cause each
of its Subsidiaries that is not an SPC, Foreign Subsidiary or
Non-Material Subsidiary to, cause the Administrative Agent, for the
benefit of the Secured Parties, to have a first priority perfected
security interest in all of the property (real and personal, tangible
and intangible) owned by the Borrower and each such Subsidiary (subject
to Liens permitted hereunder and exceptions agreed to by the
Administrative Agent based on the value to the Secured Parties of any
such security interest and the cost to the Borrower and its
Subsidiaries of providing such security interest), and, following such
respective dates, the Borrower shall, and shall cause each such
Subsidiary, to cause the Administrative Agent, for the benefit of the
Secured Parties, to have a first priority security interest (subject to
Liens permitted hereunder) in such property owned from time to time by
the Borrower and each such Subsidiary. In order to effect the terms of
the preceding sentence, the Borrower and its Subsidiaries shall execute
and deliver to the Administrative Agent such agreements, instruments
and documents as it may reasonably request, including amendments and/or
supplements to the Borrower Security Agreement
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and the Subsidiary Security Agreement, mortgages and/or deeds of trust,
search reports on Form UCC-11, title insurance reports, financing
statements on Form UCC-1 and, in the Administrative Agent's reasonable
discretion, legal opinions, in each case in form and substance
reasonably satisfactory to the Administrative Agent.
SECTION 8.1.12. Borrowing Base. As soon as practicable
following the effectiveness of the Fourth Amendment and in any event
prior to December 15, 2000, the Borrower shall furnish to the
Administrative Agent a written proposal to amend the definition of
"Borrowing Base Amount" that would replace all or a material portion of
the Net Worth component set forth in clause (d) of the definition
thereof with specified assets not otherwise included in the
determination of the Borrowing Base Amount with respect to which the
Administrative Agent, for the benefit of the Secured Parties, would
have a perfected, first priority security interest."
SECTION II.2.9. Amendment to Section 8.2.2 ("Indebtedness") of the
Credit Agreement. Section 8.2.2 of the Credit Agreement is hereby amended by:
(a) deleting the reference in clause (i) thereof to
"$100,000,000" and substituting therefor "$40,000,000"; and
(b) deleting the reference in clause (v) thereof to
"$50,000,000" and substituting therefor "$25,000,000".
SECTION II.2.10. Amendment to Section 8.2.4 ("Financial Condition") of
the Credit Agreement. Section 8.2.4 of the Credit Agreement is hereby amended by
amending clause (a) thereof by inserting immediately following the term
"Permitted 1999/2000 Restructuring Expenses" the phrase "and (without
duplication) Excluded EMEA Losses".
SECTION II.2.11. Amendment to Section 8.2.5 ("Investments") of the
Credit Agreement. Section 8.2.5 of the Credit Agreement is hereby amended by:
(a) deleting the reference in clause (g) thereof to
"$35,000,000" and substituting therefor "(x) for each Fiscal Year up to
and including the 1999 Fiscal Year, $35,000,000, (y) for the 2000
Fiscal Year, $30,000,000, and (z) for each Fiscal Year thereafter,
$10,000,000";
(b) deleting the reference in clause (g) thereof to
"$75,000,000" and substituting therefor "$65,000,000";
(c) deleting the reference in clause (k) thereof to
"$35,000,000" and substituting therefor "$32,000,000"; and
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(d) renumbering clause (ii) of the proviso to Section 8.2.5 as
clause (iii) and inserting the following new clause (ii) to such
proviso:
"(ii) no Investment proposed to be made
after November 1, 2000 that would otherwise be
permitted hereunder, including any Investment that
would be permitted under clause (f), (g), (i) or (k),
shall be permitted to be made to the extent the
amount of such Investment that would be utilized,
directly or indirectly, in connection with the
operations conducted by the Borrower and its
Subsidiaries in Europe, the Middle East and Africa
would exceed, when taken together with the aggregate
amount of all other such Investments made after
November 1, 2000, $20,000,000; and"
SECTION II.2.12. Amendments to Section 8.2.6 ("Restricted Payments,
etc.") of the Credit Agreement. Section 8.2.6 of the Credit Agreement is hereby
amended by deleting subclauses (i) and (ii) of the proviso to clause (a) of such
Section in their entirety.
SECTION II.2.13. Amendment to Section 8.2.7 ("Capital Expenditures,
etc.") of the Credit Agreement. Section 8.2.7 of the Credit Agreement is hereby
amended by:
(a) deleting the dollar amount "$70,000,000" opposite Fiscal
Year 2000 and substituting therefor "$60,000,000", and
(b) deleting clause (b) of such Section in its entirety.
SECTION II.2.14. Amendment to Section 8.2.9 (Consolidation, Merger,
etc.) of the Credit Agreement. Section 8.2.9 of the Credit Agreement is hereby
amended by deleting clause (a) thereof and substituting therefor the following:
"(a) (i) any Domestic Subsidiary may liquidate or dissolve
voluntarily into and may merge with and into, the Borrower or any
Domestic Subsidiary that is a Wholly Owned Subsidiary of the Borrower,
and the assets or stock of any Domestic Subsidiary may be purchased or
otherwise acquired by the Borrower or any Domestic Subsidiary that is a
Wholly Owned Subsidiary of the Borrower and (ii) any Foreign Subsidiary
may liquidate or dissolve voluntarily into, and may merge with and
into, any Foreign Subsidiary that is a Wholly Owned Subsidiary of the
Borrower, and the assets or stock of any Foreign Subsidiary may be
purchased or otherwise acquired by any Foreign Subsidiary that is a
Wholly Owned Subsidiary of the Borrower; and"
SECTION II.2.15. Amendment to Section 8.2.10 (Asset Dispositions, etc.)
of the Credit Agreement. Section 8.2.10 of the Credit Agreement is hereby
amended by inserting in the first
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line of clause (c) thereof the phrase "to a Person not an Affiliate of the
Person consummating such sale, transfer or conveyance" after the words "such
sale, transfer or conveyance is".
ARTICLE III
CONDITIONS TO EFFECTIVENESS
This Amendment and Waiver, 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 III.1. Execution of Counterparts. The Administrative Agent
shall have received counterparts of this Amendment and Waiver, duly executed and
delivered on behalf of the Borrower and each of the Required Lenders.
SECTION III.2. Closing Date Certificate. The Administrative Agent shall
have received, with counterparts for each Lender, a certificate, dated the date
hereof, 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 III.3. 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 III.4. Amendment Fee. The Administrative Agent shall have
received the amendment fees due and payable pursuant to Section 5.4.
SECTION III.5. Fees and Expenses. The Administrative Agent shall have
received all fees and expenses due and payable pursuant to Section 5.5 (to the
extent then invoiced) and pursuant to the Credit Agreement (including all
previously invoiced fees and expenses).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION IV.1. Representations and Warranties. In order to induce the
Required Lenders and the Administrative Agent to enter into this Amendment and
Waiver, the Borrower
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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 7.7 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);
(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;
(d) this Amendment and Waiver 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
(e) the execution, delivery and performance by the Borrower
and its Subsidiaries of this Amendment and Waiver 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
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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 IV.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 and Waiver 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 IV.3. Compliance with Credit Agreement. As of the execution and
delivery of this Amendment and Waiver, 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.
ARTICLE V
MISCELLANEOUS
SECTION V.1. Full Force and Effect; Limited Amendment and Waiver.
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 and waivers set forth herein shall be limited
precisely as provided for herein to the provisions expressly amended herein or
waived 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 V.2. Loan Document Pursuant to Credit Agreement. This Amendment
and Waiver 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
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any representation or warranty or covenant or agreement contained in this
Amendment and Waiver shall be deemed to be an Event of Default for all purposes
of the Credit Agreement and the other Loan Documents.
SECTION V.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 V.4. Amendment Fee. Upon satisfaction of the condition set
forth in Section 3.1, the Borrower shall pay, without setoff, deduction or
counterclaim, a non-refundable amendment fee for the account of each Lender that
has executed and delivered (including delivery by way of facsimile) a copy of
this Amendment and Waiver to the attention of ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ at ▇▇▇▇▇, ▇▇▇▇▇
& ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (19th floor), telecopy number
▇▇▇-▇▇▇-▇▇▇▇ at or prior to noon, New York time, on November 14, 2000 in the
amount of 1/4 of 1% of such Lender's Commitment. The aggregate amount of such
amendment fee shall be paid at or prior to noon, New York time, on November 16,
2000 to the Administrative Agent for the pro rata account of the Lenders
entitled to receive such amendment fee.
SECTION V.5. 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
Waiver and the documents and transactions contemplated hereby, including the
reasonable fees and disbursements of Mayer, Brown, and ▇▇▇▇▇, as counsel for the
Administrative Agent.
SECTION V.6. Headings. The various headings of this Amendment and
Waiver are inserted for convenience only and shall not affect the meaning or
interpretation of this Amendment and Waiver or any provisions hereof.
SECTION V.7. Execution in Counterparts. This Amendment and Waiver 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.
SECTION V.8. Cross-References. References in this Amendment and Waiver
to any Article or Section are, unless otherwise specified or otherwise required
by the context, to such Article or Section of this Amendment and Waiver.
SECTION V.9. Severability. Any provision of this Amendment and Waiver
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 and Waiver or affecting the validity or enforceability of such
provision in any other jurisdiction.
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SECTION V.10. Successors and Assigns. This Amendment and Waiver shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
SECTION V.11. GOVERNING LAW. THIS AMENDMENT AND WAIVER 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]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Waiver 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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
CREDIT SUISSE FIRST BOSTON, as a Lender
and the Administrative Agent
By: /s/ ▇▇▇▇ ▇'▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇ ▇'▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Asst. Vice President
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
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15
BANK OF HAWAII
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
BANK OF MONTREAL
By:
--------------------------------------------
Name:
Title:
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
--------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. ▇▇▇▇▇
--------------------------------------------
Name: F.C.H. ▇▇▇▇▇
Title: Senior Manager Loan Operations
THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Attorney-in-Fact
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BANK POLSKA KASA OPIEKI S.A. - PEKAO
S.A. GROUP, NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
BANK UNITED
By: /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Director Commercial Syndication
BANKERS TRUST COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
BNP PARIBAS
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Director
BANQUE WORMS CAPITAL CORPORATION
By:
--------------------------------------------
Name:
Title:
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17
BHF (USA) CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Portfolio Management
CHASE MANHATTAN BANK, N.A.
By:
--------------------------------------------
Name:
Title:
CREDIT INDUSTRIEL ET COMMERCIAL
By: /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
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18
COMMERZBANK AKTIENGESELLSCHAFT,
CHICAGO BRANCH
By: /s/ J. ▇▇▇▇▇▇▇ Shortly /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------------
Name: J. ▇▇▇▇▇▇▇ Shortly ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President Assistant Treasurer
CREDIT AGRICOLE INDOSUEZ
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Senior Relationship Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President, Manager
CREDIT LYONNAIS CHICAGO BRANCH
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: First Vice President
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
▇-▇
▇▇
▇▇▇▇▇ ▇▇▇▇ DER OESTERREICHISCHEN
SPARKASSEN AG
By: /s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇. Flunnion
------------------------------------------------
Name: ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇. Flunnion
Title: Asst. Vice President First Vice President
FLEET BANK, N.A.
By:
------------------------------------------------
Name:
Title:
THE FUJI BANK, LIMITED
By:
------------------------------------------------
Name:
Title:
IMPERIAL BANK
By:
------------------------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------------------
Name: W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Duly Authorized Signatory
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▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇. ▇▇▇▇▇▇▇▇▇
Title: Director
NATEXIS BANQUE
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. van Tulder
------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. van Tulder
Title: V. President V. President and Manager
Leveraged Finance Multinational Group
SATELLITE DISTRESSED CREDITS FUND,
LLC
By: Satellite Asset Management, L.P., its
Investment Manager
By:
---------------------------------------------
Name:
Title:
SOUTHERN PACIFIC BANK
By: /s/ Mun ▇▇▇▇▇ ▇▇▇
------------------------------------------------
Name: Mun ▇▇▇▇▇ ▇▇▇
Title: Vice President
THE SUMITOMO BANK, LIMITED, NEW
YORK BRANCH
By: /s/ ▇▇▇▇▇▇ ▇. Tata
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. Tata
Title: Senior Vice President
▇-▇
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ FLORIDA, N.A.
By:
------------------------------------------------
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By:
------------------------------------------------
Name:
Title:
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