EXHIBIT 10.42
TENTH AMENDMENT, WAIVER AND CONSENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS TENTH AMENDMENT, WAIVER AND CONSENT TO AMENDED AND RESTATED CREDIT
AGREEMENT, dated as of February 7, 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, 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 Ninth Amendment and to obtain certain related additional waivers
and consents from the requisite Lenders; 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:
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:
"'Tenth Amendment' means the Tenth Amendment, Waiver and Consent to
Amended and Restated Credit Agreement, dated as of February 7, 2002, among
the Borrower, the Lenders parties thereto and the Administrative Agent."
"Tenth Amendment Effective Date" means the date the Tenth Amendment
became effective in accordance with its terms.
SECTION 2.1.2. Amendment to Section 4.2 ("Issuances and Extensions") of
the Credit Agreement. Section 4.2 of the Credit Agreement is hereby amended by:
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(i) deleting the reference to $8,000,000 in the last sentence
thereof (which sentence was added pursuant to Section 2.1.3 of the
Ninth Amendment) and substituting therefor $16,000,000, and
(ii) deleting the reference to "$3,500,000" in the last sentence
thereof and substituting therefor the following: "(A) prior to the
Tenth Amendment Effective Date, $3,500,000 or (B) on or following
the Tenth Amendment Effective Date, $5,250,000 (so long as,
concurrently with each increase of the aggregate Stated Amount of
such General Letters of Credit in excess of such $3,500,000, the
aggregate Stated Amount of all other Letters of Credit is reduced
dollar-for-dollar in an amount equal to such increase)".
SECTION 2.1.3. Amendment to Section 8.1.17 ("Preliminary Plan") of the
Credit Agreement. Section 8.1.17 of the Credit Agreement is hereby amended by
amending and restating such Section in its entirety as follows:
SECTION 8.1.17. Restructuring Plan. The Borrower shall furnish, or
shall cause to be furnished, to each Lender on or prior to February 25,
2002, its plan (i) for restructuring the Indebtedness of it and its
Subsidiaries, (ii) for obtaining financing for the acquisition (or
refinancing) of Vehicles necessary to meet its business plan, and (iii)
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.
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) waive, until (and including) March 8, 2002, compliance by the
Borrower with the provisions of clause (d) of Section 8.2.4 of the Credit
Agreement with respect to the fourth Fiscal Quarter of the 2001 Fiscal
Year;
(b) consent to the Borrowing Base Amount calculated as of the last
day of December 2001 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;
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(c) consent, until (and including) March 8, 2002, to the Borrowing
Base Amount calculated as of the last day of January 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 $260,000,000 as of the last day of
January 2002; and
(d) consent that the 13-Week Consolidated Cash Flow Projections for
the period commencing with the week ending February 1, 2002, as furnished
to the Lenders on February 7, 2002, shall satisfy the requirement in
clause (p) of Section 8.1.1 of the Credit Agreement to provide a 13-Week
Consolidated Cash Flow Projection on or prior to February 8, 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 "Tenth 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. The Administrative Agent (and all other
Persons entitled thereto) 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).
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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
and 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 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 hereof may be limited by (i) the effect
of bankruptcy, insolvency, reorganization,
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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 Tenth Amendment Effective Date
through and including March 8, 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.
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
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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, ▇▇▇▇ & Maw, counsel for the Administrative
Agent, and Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, 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.
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
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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.
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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:
BANK OF MONTREAL
By
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Name:
Title:
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THE BANK OF NEW YORK
By
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Name:
Title:
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:
S-2
BANKERS TRUST COMPANY
By
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Name:
Title:
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:
S-3
CREDIT INDUSTRIEL ET COMMERCIAL
By
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Name:
Title:
By
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Name:
Title:
COMMERZBANK AKTIENGESELLSCHAFT,
CHICAGO BRANCH
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:
▇-▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ 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:
THE FUJI BANK, LIMITED
By
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Name:
Title:
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IMPERIAL BANK
By
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Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By
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Name:
Title:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By
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Name:
Title:
NATEXIS BANQUE
By
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Name:
Title:
By
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Name:
Title:
S-6
▇▇▇ CAPITAL FUNDING L.P.
By: Highland Capital Management, L.P., as
Collateral Manager
By
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Name:
Title:
SATELLITE DISTRESSED CREDITS FUND, LLC
By: Satellite Asset Management, L.P., its
Investment Manager
By
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Name:
Title:
SOUTHERN PACIFIC BANK
By
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Name:
Title:
SUMITOMO MITSUI BANKING CORPORATION
By
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Name:
Title:
S-7
SUNTRUST BANK
By
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Name:
Title:
DK ACQUISITION PARTNERS LP
By
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Name:
Title:
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