Exhibit 4.55
REGISTRATION RIGHTS AGREEMENT
between
ANC RENTAL CORPORATION
and
XXXXXX COMMERCIAL PAPER INC.,
as Administrative Agent
Dated as of September 28, 2001
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") IS made
and entered into as of September 28, 2001, between ANC Rental Corporation, a
Delaware corporation (the "COMPANY") and Xxxxxx Commercial Paper Inc., as
administrative agent (the "ADMINISTRATIVE AGENT").
RECITALS
WHEREAS, Xxxxxx and the Company are parties to an Amended and
Restated Senior Loan Agreement dated as of June 30, 2000 (the "SENIOR LOAN
AGREEMENT"), among the Company, Xxxxxx Brothers Inc., as arranger, Xxxxxx
Commercial Paper Inc., as syndication agent and Xxxxxx Commercial Paper Inc., as
administrative agent;
WHEREAS, the Company has requested that the Administrative
Agent enter into the Sixteenth Amendment dated as of September 28, 2001 (the
"AMENDMENT"), to and under the Senior Loan Agreement;
WHEREAS, in order to induce the Administrative Agent to enter
into the Amendment, the Company has also agreed to the registration rights set
forth in this Agreement;
WHEREAS, pursuant to Warrant Agreements dated as of the date
hereof (the "WARRANT AGREEMENTS"), between the Company and the Bank of New York,
as Warrant Agent, the Company is issuing to LB I Group, Inc. Warrants to
purchase 5,102,178 shares of Common Stock of the Company (the "WARRANTS"),
comprised of (i) warrants to purchase 3,660,221 shares, being issued in exchange
for an equal number of warrants previously issued to LB I Group, Inc. and (ii)
warrants to purchase 1,441,957 shares, which constitutes 2.5% of the Common
Stock outstanding on a fully diluted basis on the date hereof; and
WHEREAS, the execution of this Agreement is a condition to the
execution of the Amendment by the Lenders.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
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1. DEFINITIONS.
Capitalized terms used herein without definition have the
meanings assigned to them in the Senior Loan Agreement. As used in this
Agreement, the following capitalized terms shall have the following meanings:
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
HOLDER INDEMNIFIED PARTIES: See Section 7(a) hereof.
INDEMNIFYING PARTY: See Section 7(c) hereof.
LIQUIDATED DAMAGES: See Section 3(b)(ii) hereof.
NASD: National Association of Securities Dealers, Inc.
OTHER HOLDERS: The holders of Other Securities.
OTHER SECURITIES: All common equity of the Company, the
holders of which have registration rights with respect to such common equity
(other than the Registrable Securities).
PERSON: Any individual, partnership, limited liability
company, corporation, trust, joint stock company, business trust, joint venture,
or unincorporated organization, or a government or agency or political
subdivision thereof.
PROSPECTUS: The prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by such Registration Statement and by all other amendments and
supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus.
REGISTRABLE SECURITIES: The Registrable Warrants and the
Registrable Warrant Shares; PROVIDED that a security ceases to be a Registrable
Security when it is no longer a Transfer Restricted Security.
REGISTRANT INDEMNIFIED PARTIES: See Section 7(b) hereof.
REGISTRATION EXPENSES: See Section 6 hereof.
REGISTRABLE WARRANT SHARES: All Warrant Shares issuable to the
holders of Warrants upon exercise of such Warrants.
REGISTRABLE WARRANTS: All Warrants originally issued pursuant
to the Warrant Agreements.
REGISTRATION DEFAULT: See Section 3(b)(ii) hereof.
REGISTRATION STATEMENT: Any registration statement of the
Company which covers any of the Registrable Securities, including the
Prospectus, amendments and
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supplements to such Registration Statement, including post-effective amendments,
all exhibits and all material incorporated by reference in such Registration
Statement.
SEC: The Securities and Exchange Commission.
SECURITIES ACT: The Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder, as the same may be amended
from time to time.
SHELF REGISTRATION: See Section 3(b)(i) hereof.
TRANSFER RESTRICTED SECURITY: The Registrable Securities upon
original issuance thereof; PROVIDED that a Registrable Security is no longer a
Transfer Restricted Security when such Registrable Security is sold to the
public or eligible for sale to the public without restriction under Rule 144(k).
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
WARRANT SHARES: The shares of capital stock of the Company
issuable to the holders of Warrants upon exercise of the Warrants, together with
any other securities that may in the future become issuable upon exercising the
Warrants.
2. SECURITIES SUBJECT TO THIS AGREEMENT.
(a) REGISTRABLE SECURITIES. The securities entitled to the
benefits of this Agreement are the Registrable Securities.
(b) HOLDERS OF REGISTRABLE SECURITIES. A Person is deemed to
be a holder (a "HOLDER") of Registrable Securities whenever such Person owns
Registrable Securities of record or has provided evidence reasonably
satisfactory to the Company that such Person has the right to acquire such
Registrable Securities, whether or not such acquisition has actually been
effected and disregarding any legal restrictions upon the exercise of such
right. This Agreement will inure to the benefit of and be binding upon
subsequent holders of Registrable Securities, if any, as provided in Section
10(e) hereof.
3. REGISTRATION RIGHTS.
(a) PIGGYBACK RIGHTS. (i) PIGGYBACK RIGHTS. If the Shelf
Registration Statement has not been declared effective and the Company at any
time after the date hereof proposes to register warrants or common stock
(including any offerings of common stock together with preferred stock) under
the Securities Act (other than a registration on Form S-4 or S-8, or any
successor or other forms promulgated for similar purposes, a registration
statement filed in order to register common stock with respect to an acquisition
or which constituted a part of or all the consideration for an acquisition or a
registration with respect to an employee benefit plan), other than pursuant to
Section 3(b), whether or not for sale for its own account, it will, at each such
time, give prompt written notice (no later than 15 days prior to effectiveness
of the related registration
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statement) to the Holders of its intention to do so and of the rights of the
Holders under this Section 3(a). Upon the written request of any Holder made
within 7 days after the receipt of any such notice (which request shall specify
the number of Registrable Securities intended to be disposed of by such Holder),
the Company will use its reasonable efforts to effect the registration under the
Securities Act of all Registrable Securities which the Company has been so
requested to register by the Holders; PROVIDED that (A) if, at any time after
giving written notice of its intention to register any securities and prior to
the effective date of the registration statement filed in connection with such
registration, the Company or any other holder of securities that initiated such
registration (an "INITIATING HOLDER") shall determine for any reason not to
proceed with the proposed registration of the securities to be sold by it, the
Company or such Initiating Holder may, at its election, give written notice of
such determination to the Holders and, thereupon, the Company shall be relieved
of its obligation to register any Registrable Securities in connection with such
registration (but not from its obligation to pay the Registration Expenses
incurred in connection therewith), or the Company may elect to delay the
registration, and (B) if such registration involves an underwritten offering,
the holders of Registrable Securities requesting to be included in the
registration must sell their Registrable Securities to the underwriters selected
by the Company or the Initiating Holders, as the case may be, on the same terms
and conditions as apply to the Company or the Initiating Holders, as the case
may be, with, in the case of a combined primary and secondary offering, such
differences, including any with respect to indemnification and liability
insurance, as may be customary or appropriate in combined primary and secondary
offerings. If a registration requested pursuant to this Section 3(a)(i) involves
an underwritten public offering, any Holder requesting to be included in such
registration may elect, in writing prior to the effective date of the
registration statement filed in connection with such registration, not to
register all or any portion of such securities in connection with such
registration.
(ii) EXPENSES. The Company will pay all Registration Expenses
in connection with each registration of Registrable Securities requested
pursuant to this Section 3(a).
(iii) PRIORITY IN PIGGYBACK REGISTRATIONS. If a requested
registration pursuant to this Section 3(a) involves an underwritten offering and
the managing underwriter advises the Company in writing that, in its opinion,
the number of securities requested to be included in such registration
(including securities of the Company which are not Registrable Securities)
exceeds the number that can be sold in such offering at a price acceptable to
the Company or is such as to adversely affect the success of the offering, the
Company will include in such registration (a) first, the securities the Company
proposes to sell and (b) second, the number of such Registrable Securities and
Other Securities to be included in such registration shall be allocated so that
the number of securities to be registered for each requesting Holder or Other
Holders will equal the product of (x) the total number of Registrable Securities
or Other Securities held by such
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Holder or Other Holders and (y) a fraction (I) the numerator of which is the
number of Registrable Securities and Other Securities which the managing
underwriter advises can be sold at a price acceptable to the Company and (II)
the denominator of which is the total number of Registrable Securities and Other
Securities held by all requesting Holders and requesting Other Holders (provided
that any securities hereby allocated to any such Holder or Other Holder that
exceed such Holder's or Other Holder's request shall be reallocated among the
remaining requesting Holders and requesting Other Holders in like manner)
provided that securities included pursuant to Other Holders' demand registration
rights need not be so reduced.
(b) SHELF REGISTRATION. (i) FILING OF SHELF REGISTRATION. The
Company shall use its reasonable best efforts to file a "shelf" registration
statement (the "SHELF REGISTRATION STATEMENT") on any appropriate form pursuant
to Rule 415 (or similar rule that may be adopted by the SEC) under the
Securities Act (a "SHELF REGISTRATION") in no event later than the date that is
15 days following the receipt of a written request from the Administrative Agent
or Holders of a majority in aggregate principal amount of the Registrable
Securities (the "FILING DATE") to permit resales of all of the Registrable
Securities. The Company agrees to use its reasonable best efforts to cause such
Shelf Registration to become effective as soon as practicable after the filing
thereof and in no event later than 105 days after the receipt of such written
request (the "EFFECTIVE DATE"), and thereafter to keep it continuously effective
for the period that will terminate upon the earlier of the date on which (1) all
the Registrable Securities covered by the Shelf Registration have been sold
pursuant to such Shelf Registration or are eligible to be sold to the public
without restriction pursuant to Rule 144(k) and (2) no Registrable Securities
remain outstanding and (3) three years after the Initial Maturity Date. The
Company shall not be required to file more than one Shelf Registration
Statement, subject to the provisions set forth in Section 5 hereof.
(ii) LIQUIDATED DAMAGES. If (A) a Registration Statement has
not been declared effective by the SEC on or prior to the date that is 105 days
after the receipt of a written request under Section 3(b)(i) or (B) a
Registration Statement is filed and declared effective but shall thereafter
cease to be effective or fail to be usable for its intended purpose for more
than 45 days (including, without limitation, by reason of a stop order or
suspension) within the time period required for effectiveness in subsection (A)
above without being succeeded promptly by a post-effective amendment that cures
such failure and is promptly declared effective (each such event referred to in
clauses (A) and (B), a "REGISTRATION DEFAULT"), the Registrants agree to pay
liquidated damages ("LIQUIDATED DAMAGES") to each holder of Registrable
Securities from and including the day following the Registration Default to but
excluding the day on which the Registration Default has been cured: (1) during
the first 90-day period during which a Registration Default shall have occurred
and be continuing, in an amount equal to $0.05 per Warrant Share for each week
or portion thereof that the Registration Default continues following the
occurrence of such Registration Default, (2) with respect to each subsequent
90-day period thereafter
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during which a Registration Default shall have occurred and be continuing, such
amount shall increase by an additional $0.05 per Warrant Share held by such
Holder for each week or portion thereof until all Registration Defaults have
been cured; provided that in no event shall the aggregate Liquidated Damages
pursuant to this clause exceed $0.50 per Warrant Share per week. All Liquidated
Damages shall be calculated based on the actual number of days elapsed and a 360
day year, and all accrued Liquidated Damages shall be paid by wire transfer of
immediately available funds or by federal funds check on each Interest Payment
Date, as defined in the Indenture. Following the cure of all Registration
Defaults relating to the Registrable Securities, the accrual of Liquidated
Damages will cease. The Company shall not pay Liquidated Damages for more than
one Registration Default at any one time. Except as provided in Section 7
hereof, no holder of Registrable Securities shall be entitled to any damages for
a Registration Default beyond the Liquidated Damages provided for herein.
All obligations of the Company set forth in the preceding
paragraph that are outstanding with respect to any Registrable Security at the
time such security ceases to be a Registrable Security shall survive until such
time as all such obligations have been paid in full.
4. HOLD-BACK AGREEMENTS.
(a) RESTRICTIONS ON PUBLIC SALE BY HOLDER OF REGISTRABLE
SECURITIES. Each Holder of Registrable Securities agrees, if requested by the
managing underwriters in an underwritten offering not to effect any public sale
or distribution of the Warrants or Warrant Shares or securities of the Company
of the same class as the securities included in such Registration Statement,
including a sale pursuant to Rule 144 under the Securities Act (except as part
of such underwritten registration), during the 7-day period prior to, and during
the 90-day period beginning on, the closing date of each underwritten offering
made pursuant to such Registration Statement, to the extent timely notified by
the Company or the managing underwriters.
The foregoing provisions of the preceding paragraph shall not
apply to any holder of Registrable Securities if such holder is prevented by
applicable statute or regulation from entering any such agreement; PROVIDED,
HOWEVER, that any such holder shall undertake, in its request to participate in
any such underwritten offering, not to effect any public sale or distribution of
any Registrable Securities held by such holder and covered by a Registration
Statement commencing on the date of sale of the Registrable Securities unless it
has provided 90 days prior written notice of such sale or distribution to the
underwriter or underwriters.
(b) RESTRICTIONS ON SALE OF SECURITIES BY THE COMPANY AND
OTHERS. The Company agrees (1) not to effect any public or private offer, sale
or distribution of any of its equity securities similar to the Warrants,
including a sale pursuant to Regulation D under the Securities Act (other than
any such sale or distribution of such securities in
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connection with any merger or consolidation by the Company or any subsidiary of
the Company or the acquisition by the Company or a subsidiary of the Company of
the capital stock or substantially all the assets of any other Person or in
connection with any employee stock option or other benefit plan), during the
7-day period prior to, and during the 90-day period beginning with, the
effectiveness of a Registration Statement filed under Section 3(a) (other than a
shelf registration statement filed pursuant to Rule 415 under the Securities Act
and not including capital stock being sold by the Company under such
Registration Statement) to the extent timely notified in writing by a Holder or
Holders which individually or in the aggregate hold a majority of the then
outstanding Registrable Securities or the managing underwriters in an
underwritten offering (except as part of such if permitted, or pursuant to
registrations on Forms S-4 or S-8 or any successor form to such registration
Forms) and (2) during the aforementioned period to use its reasonable best
efforts to cause each holder of each of its privately placed equity securities
similar to the Warrants purchased from the Company at any time on or after the
date of this Agreement to agree not to effect any public sale or distribution of
any such securities during such period, including a sale pursuant to Rule 144
under the Securities Act (except as part of such registration, if permitted).
5. REGISTRATION PROCEDURES.
If and whenever the Company is required to file a Registration
Statement pursuant to Section 3(b) hereof, the Company will use its reasonable
best efforts to effect such registration to permit the sale of such Registrable
Securities in accordance with the intended method or methods of distribution
thereof, and pursuant thereto the Company will, as expeditiously as possible,
use reasonable best efforts to:
(a) prepare and file with the SEC, within the time period
provided in Section 3, a Shelf Registration Statement or Shelf Registration
Statements relating to such registration on any appropriate form under the
Securities Act, which form shall be available for the sale of the Registrable
Securities in accordance with the intended method or methods of distribution
thereof and shall include all financial statements (including, if applicable,
financial statements of any Person which shall have guaranteed any indebtedness
of the Company) required by the SEC to be filed therewith, cooperate and assist
in any filings required to be made with the NASD, and use its reasonable best
efforts to cause such Registration Statement to become effective within such
time period; PROVIDED that before filing a Registration Statement or any
amendments or supplements thereto with respect to the Registrable Securities,
the Company will furnish to the holders of the Registrable Securities covered by
such Registration Statement and the underwriters, if any, drafts of all such
documents proposed to be filed (without exhibits or schedules), which documents
will be subject to the review by such holders and underwriters, and the Company
will not file any Registration Statement or any amendments or supplements
thereto to which the holders of a majority of the Registrable Securities or such
managing underwriters, if any shall reasonably object within 4 business days
unless required by law in the reasonable judgment of the Company;
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(b) prepare and file with the SEC such amendments and
post-effective amendments to the Registration Statement as may be necessary to
keep the Registration Statement effective to allow any holder to sell its
Registrable Securities thereunder for the applicable period set forth in Section
3; PROVIDED, HOWEVER, the Company shall not be required to file a post-effective
amendment to the Registration Statement to include holders as selling
securityholders thereunder unless either (i) requested by a holder or holders of
at least 25% of the Registrable Securities or (ii) six months after (A) the
initial filing of the Registration Statement or (B) the latest such
post-effective amendment thereto; cause the Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Securities Act as required; and comply in all material
respects with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities covered by such Registration Statement
during the applicable period in accordance with the intended method or methods
of distribution by the sellers thereof set forth in such Registration Statement
or supplement to the Prospectus;
(c) notify the selling holders of Registrable Securities and
the managing underwriters, if any, promptly, and (if requested by any such
Person) confirm such advice in writing, (1) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and, with
respect to the Registration Statement or any post-effective amendment, when the
same has become effective, (2) of any request by the SEC for amendments or
supplements to the Registration Statement or the Prospectus or for additional
information, (3) of the issuance by the SEC of any stop order which the Company
has knowledge of suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose, (4) if at any time the
representations and warranties of the Company contemplated by paragraph (n)
below cease to be true and correct in any material respect, (5) of the receipt
by the Company of any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose and (6) of the
Company's becoming aware that the Prospectus (including any document
incorporated therein by reference), as then in effect, includes an untrue
statement of material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances under which such statement was made;
(d) use their reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of the Registration Statement at the
earliest possible moment;
(e) if reasonably requested by the managing underwriter or
underwriters or a holder of Registrable Securities being sold in connection with
an underwritten offering, promptly incorporate in a Prospectus supplement or
post-effective amendment such information as the managing underwriter or
underwriters or the holders of a
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majority of the Registrable Securities being sold agree should be included
therein relating to the plan of distribution with respect to such Registrable
Securities, including, without limitation, information with respect to the
amount of Registrable Securities being sold to such managing underwriter or
underwriters, the purchase price being paid therefor by such underwriters and
any other terms of the underwritten (or best efforts underwritten) offering of
the Registrable Securities to be sold in such offering; and make all required
filings of such Prospectus supplement or post-effective amendment as soon as
notified of the matters to be incorporated in such Prospectus supplement or
post-effective amendment;
(f) furnish to each selling holder of Registrable Securities
and each managing underwriter, if any, without charge, if requested, at least
one copy of the Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, all documents incorporated therein
by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities
and the underwriters, if any, without charge, if requested, as many copies of
the Prospectus (including each preliminary Prospectus) and any amendment or
supplement thereto as such Persons may reasonably request; the Company consents
to the use (subject to the limitations set forth in the last paragraph of this
Section 5) of the Prospectus or any amendment or supplement thereto by each of
the selling holders of Registrable Securities and the underwriters, if any, in
connection with the offering and sale of the Registrable Securities covered by
the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities,
register or qualify or cooperate with the selling holders of Registrable
Securities, the underwriters, if any, and their respective counsel in connection
with the registration or qualification of such Registrable Securities for offer
and sale under the securities or blue sky laws of such jurisdictions as any such
seller or underwriter reasonably requests in writing and do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of such Registrable Securities; PROVIDED that the Company will not
be required to qualify generally to do business in any jurisdiction where it is
not then so qualified or to take any action which would subject it to general
service of process or taxation in any such jurisdiction where it is not then so
subject;
(i) cooperate with the selling holders of Registrable
Securities and the managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing such Registrable
Securities to be sold and not bearing any restrictive legends; and enable such
Registrable Securities to be in such denominations and registered in such names
as such managing underwriters may request at least two business days prior to
any sale of such Registrable Securities to the underwriters;
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(j) use its reasonable best efforts to cause the Registrable
Securities covered by the applicable Registration Statement to be registered
with or approved by such other U.S. governmental agencies or U.S. authorities as
may be necessary to enable the seller or sellers thereof or the underwriters, if
any, to consummate the disposition of such Registrable Securities (subject to
the proviso contained in clause (h) above and other than the NASD registration
which shall be the responsibility of the lead underwriter);
(k) upon the occurrence of any event contemplated by paragraph
(c)(6) above, prepare a supplement or post-effective amendment to the related
Registration Statement or the related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the holders of the Registrable Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein not misleading in light of the
circumstances then existing;
(l) use its reasonable best efforts to cause all Registrable
Securities covered by a Registration Statement to be listed on each securities
exchange on which similar securities issued by the Company are then listed if
such listing is permitted under the rules of such exchange and if requested by
the Holders of a majority of such Registrable Securities or the managing
underwriters, if any;
(m) not later than the effective date of the Registration
Statement, provide a CUSIP number for all Registrable Securities and provide the
transfer agent with printed certificates for the Registrable Securities which
are in a form eligible for deposit with The Depository Trust Company;
(n) enter into such agreements (including an underwriting
agreement) and take all such other actions in connection therewith in order to
expedite or facilitate the disposition of such Registrable Securities which, in
the opinion of the Registrants, are reasonably required, and in such connection,
whether or not an underwriting agreement is entered into and whether or not the
registration is an underwritten registration (1) make such representations and
warranties (with reasonable exceptions) to the holders of such Registrable
Securities and the underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in primary underwritten offerings;
(2) obtain opinions of counsel to the Company addressed to the underwriters, if
any, covering the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably requested by
the underwriters; (3) obtain "comfort" letters and updates thereof from the
Company's independent certified public accountants addressed to such
underwriters, if any, and to the extent that such independent certified public
accounts agree, addressed to such Holders, such letters to be in customary form
and covering matters of the type customarily covered in "cold comfort" letters
by underwriters in connection with primary underwritten offerings; (4) if an
underwriting agreement is entered into, include indemnification provisions in
such underwriters' customary form; and (5) the Company shall deliver such
documents and certificates as
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may be requested by the holders of a majority of the Registrable Securities
being sold and the managing underwriters, if any, to evidence compliance with
paragraph (k) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company. The above
shall be done at each closing under such underwriting agreement or as and to the
extent required thereunder. In the case of a nonunderwritten offering, the
Company shall deliver to the Selling Holders such of the foregoing items as are
customary in a secondary offering to be delivered to selling securityholders;
and
(o) make available at reasonable times during normal business
hours for inspection by any underwriter participating in any disposition of such
Registrable Securities, and any attorney or accountant retained by such
underwriters, if any, all financial and other records, pertinent corporate
documents and properties of the Company as may be reasonably necessary to enable
them to exercise their due diligence responsibilities, and provide reasonable
access to appropriate officers of the Company in connection with such due
diligence responsibilities.
(p) make appropriate officers of the Company available at
reasonable times during normal business hours to such holders and underwriters
for meetings with prospective purchasers of the Registrable Securities and
prepare and present to potential investors customary "road show" material in a
manner consistent with other new issuances of other securities similar to the
Registrable Securities.
The Company may require each seller of Registrable Securities
as to which any registration is being effected to furnish to the Company such
information regarding the distribution of such securities as the Company may
from time to time reasonably request in writing.
Each holder of Registrable Securities agrees by acceptance of
such Registrable Securities that, upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 5(c)(3), (5) or (6)
hereof that, in the reasonable judgment of the Company, it is advisable to
suspend use of the prospectus for a discrete period of time due to pending
corporate developments, public filings with the SEC or similar events, such
holder will forthwith discontinue disposition of Registrable Securities until
such holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(k) hereof, or until it is advised in writing (the
"ADVICE") by the Company that the use of such Prospectus may be resumed, and has
received copies of any additional or supplemental filings which are incorporated
by reference in such Prospectus, and, if so directed by the Company such holder
will deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such holder's possession, of such Prospectus
covering such Registrable Securities current at the time of receipt of such
notice. The Company shall use its reasonable best efforts to insure that the use
of the prospectus may be resumed as soon as practicable, and
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in any event shall not be entitled to require the Holder to suspend use of any
prospectus for more than an aggregate of sixty (60) business days in any
twelve-month period.
6. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all (i)
registration and filing fees, fees and expenses associated with filings required
to be made with the NASD (including, if applicable, the fees and expenses of any
"qualified independent underwriter" and its one counsel as may be required by
the rules and regulations of the NASD), (ii) fees and expenses of compliance
with securities or blue sky laws (including reasonable fees and disbursements of
counsel for the underwriters or selling holders in connection with blue sky
qualifications of the Registrable Securities and determination of their
eligibility for investment under the laws of such jurisdictions as the managing
underwriters or holders of a majority of the Registrable Securities being sold
may reasonably designate), (iii) printing expenses (including expenses of
printing certificates for the Registrable Securities in a form eligible for
deposit with The Depository Trust Company and of printing prospectuses),
messenger, telephone and delivery expenses, (iv) reasonable fees and
disbursements of counsel for the Company and the Company's independent certified
public accountants (including the expenses of any special audit and "comfort"
letters required by or incident to such performance), and (v) the cost of
securities acts liability insurance if the Company so desires (all such expenses
being herein called "REGISTRATION EXPENSES") will be borne by the Company
regardless whether the Registration Statement becomes effective. The Company, in
any event, will pay the Company's own internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), and the expense of any annual audit.
(b) in connection with the any Registration Statement
hereunder, the Company will reimburse the selling Holders of Registrable
Securities being registered in such registration for the reasonable legal fees
and disbursements of one counsel chosen by the selling Holders of a majority of
such Registrable Securities (which shall be reasonably acceptable to the
Company).
7. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless, to the full extent permitted by law, each holder of
Registrable Securities, their officers and directors and each Person who
controls such holder (within the meaning of the Securities Act) (the "HOLDER
INDEMNIFIED PARTIES") against all losses, claims, damages, liabilities and
expenses reasonably incurred by such party in connection with any actual or
threatened action arising out of or based upon any untrue or alleged untrue
statement of a material fact contained in any Registration Statement, Prospectus
or preliminary Prospectus or any omission or alleged omission to
13
state therein a material fact required to be stated therein or necessary to make
the statements therein (in the case of a Prospectus or a preliminary Prospectus,
in light of the circumstances under which such statement was made) not
misleading, except insofar as the same arise out of or are based upon any such
untrue statement or omission made in reliance on and in conformity with any
information furnished in writing to the Company by any underwriter or any holder
or any of their counsel or other representatives expressly for use therein;
PROVIDED, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or expense arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission in the preliminary Prospectus or Prospectus, if such untrue
statement or alleged untrue statement or omission or alleged omission is
completely corrected in the Prospectus or an amendment or supplement to the
Prospectus, as applicable, and the Holder thereafter fails to deliver such
Prospectus or Prospectus as so amended or supplemented, as applicable, prior to
or concurrently with the sale of the Registrable Securities to the person
asserting such loss, claim, damage, liability or expense after the Company had
furnished such holder with a sufficient number of copies of the same. The
Company shall also indemnify underwriters, their officers and directors and each
Person who controls such Persons (within the meaning of the Securities Act) to
the same extent as provided above with respect to the indemnification of the
Holder Indemnified Parties, if requested.
(b) INDEMNIFICATION BY HOLDER OF REGISTRABLE SECURITIES. In
connection with the Registration of Registrable Securities, each holder of
Registrable Securities will furnish to the Company in writing such information
and affidavits as the Company reasonably requests for use in connection with any
Registration Statement or Prospectus and agrees to, severally and not jointly,
indemnify and hold harmless, to the full extent permitted by law, the Company,
its directors, managers and officers and each Person who controls the Company
(within the meaning of the Securities Act) (the "REGISTRANT INDEMNIFIED
PARTIES") against any losses, claims, damages, liabilities and expenses
resulting from any untrue statement of a material fact contained in any
Registration Statement or Prospectus or any omission of a material fact required
to be stated in the Registration Statement or Prospectus or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, to the extent, but only to the extent, that such untrue
statement or omission relates to a holder and is made in reliance on and in
conformity with any information or affidavit furnished in writing by or on
behalf of such holder to the Company specifically for inclusion in such
Registration Statement or Prospectus. In no event shall the liability of any
selling holder of Registrable Securities hereunder be greater in amount than the
dollar amount of the proceeds received by such holder upon the sale of the
Registrable Securities giving rise to such indemnification obligation. The
Registrant Indemnified Parties shall be entitled to receive indemnities from
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution of Registrable Securities to the
same extent above with respect to information or affidavit furnished in writing
by
14
or on behalf of such Persons as provided specifically for any Prospectus or
Registration Statement.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person
entitled to indemnification hereunder will (i) give prompt notice to the Company
or holder of Registrable Securities, as the case may be (in either case, as
applicable, an "INDEMNIFYING PARTY"), of any claim with respect to which it
seeks indemnification and (ii) permit such Indemnifying Party to assume the
defense of such claim with counsel reasonably satisfactory to such Person;
PROVIDED, HOWEVER, that any Person entitled to indemnification hereunder shall
have the right to employ separate counsel and to participate in the defense of
such claim, but the fees and expenses of such counsel shall be at the expense of
such Person unless (a) the Indemnifying Party has agreed to pay such fees or
expenses, (b) the Indemnifying Party has failed to assume the defense of such
claim or (c) in the reasonable judgment of any such Person, based upon written
advice of its counsel, a conflict of interest may exist between such Person and
the Indemnifying Party with respect to such claims and the representation of
both would be inappropriate (in which case, if the Person notifies the
Indemnifying Party in writing that such Person elects to employ separate counsel
at the expense of the Indemnifying Party, the Indemnifying Party shall not have
the right to assume the defense of such claim on behalf of such Person). If such
defense is not assumed by the Indemnifying Party, the Indemnifying Party will
not be subject to any liability for any settlement made without its consent (but
such consent will not be unreasonably withheld). No Indemnifying Party will be
required to consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Person entitled to indemnification a release from all
liability in respect to such claim or litigation. Any Indemnifying Party who is
not entitled to, or elects not to, assume the defense of a claim will not be
obligated to pay the reasonable fees and expenses of more than one counsel for
all Persons entitled to indemnification by such Indemnifying Party with respect
to such claim in any one jurisdiction, unless in the reasonable judgment of such
Person a conflict of interest may exist between such Person and any other Person
entitled to indemnification hereunder with respect to such claim and the
representation of both would be inappropriate, in which event the Indemnifying
Party shall be obligated to pay the reasonable fees and expenses of such
additional counsel or counsels, but only of one such additional counsel for each
group of similarly situated Persons in any one jurisdiction.
(d) CONTRIBUTION. If for any reason the indemnification
provided for in the preceding paragraphs (a) and (b) is unavailable to a Person
entitled to indemnification or is insufficient to hold it harmless as
contemplated by the preceding paragraphs (a) and (b), then the Indemnifying
Party shall contribute to the amount paid or payable by such Person as a result
of such loss, claim, damage or liability in such proportion as is appropriate to
reflect not only the relative benefits received by such Person and the
Indemnifying Party, but also the relative fault of such Person and the
Indemnifying Party,
15
as well as any other relevant equitable considerations, PROVIDED that no holder
of Registrable Securities shall be required to contribute an amount greater than
the dollar amount of the proceeds received by such holder of Registrable
Securities with respect to the sale of any securities. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
8. RULE 144.
The Company covenants that it will file the reports required
to be filed by it under the Securities Act and the Exchange Act and the rules
and regulations adopted by the SEC thereunder (or, if it is not required to file
such reports, it will, upon the request of any holder of Registrable Securities,
make publicly available other information so long as necessary to permit sales
pursuant to Rule 144 under the Securities Act), and it will take such further
reasonable action requested by a holder of Registrable Securities, all to the
extent required from time to time to enable such holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (a) Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or (b) any similar rule or regulation
hereafter adopted by the SEC. Upon the request of any holder of Registrable
Securities, the Company will deliver to such holder a written statement as to
whether it has complied with such information and filing requirements.
9. PARTICIPATION IN UNDERWRITTEN OFFERINGS.
No holder of Registrable Securities may participate in any
underwritten registration unless such holder (a) agrees to sell such holder's
Transfer Restricted Securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all customary questionnaires, powers
of attorney, indemnities, underwriting agreements, lock-up letters and other
documents reasonably required under the terms of such underwriting arrangements.
10. MISCELLANEOUS.
(a) REMEDIES. Each holder of Registrable Securities, in
addition to being entitled to exercise all rights provided herein or granted by
law, including recovery of damages, in connection with the breach by the Company
of its obligations to register the Registrable Securities will be entitled to
specific performance of its rights under this Agreement. The Company agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and agrees to waive
the defense in any action for specific performance that a remedy at law would be
adequate.
16
(b) NO INCONSISTENT AGREEMENTS. The Company will not on or
after the date of this Agreement enter into any agreement with respect to its
securities which is inconsistent with the rights granted to the holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the holders of Registrable Securities
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Company's securities under any other
agreements.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions of this
Agreement may not be given unless the Company has obtained the written consent
of holders of a majority of the outstanding Registrable Securities (excluding
Registrable Securities held by the Company or one of its affiliates).
(d) NOTICES. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, facsimile or air courier guaranteeing overnight delivery:
(i) if to a holder of Registrable Securities, at the most
current address given by such holder to the Company in accordance with the
provisions of this Section 8(d), which address initially is (A) with respect to
each Interim Lender, the address set forth next to such Interim Lender's name in
the Senior Loan Agreement and (B) with respect to LB I Group, Inc., c/o Lehman
Commercial Paper Inc., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxx Xxxxx, with a copy (which will not constitute notice hereunder) to
Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx X. Xxxxxx, Esq.; and
(ii) if to the Company, initially to it at the address set
forth in the Senior Loan Agreement and thereafter at such other address, notice
of which is given in accordance with the provisions of this Section 8(d), with a
copy (which will not constitute notice hereunder) to Fried Xxxxx Xxxxxx Xxxxxxx
& Xxxxxxxx, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx
Xxxx Jacob, Esq.
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid if mailed; when
answered back, if delivered by facsimile; and on the next business day if timely
delivered, postage prepaid, to an air courier guaranteeing overnight delivery.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto, including without limitation and without the need for an express
assignment, subsequent holders of Registrable Securities.
17
(f) COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) LEGEND. Any certificate representing Warrants (or any
other securities exercisable for or convertible into or exchangeable for
Warrants) shall bear the following legend until such time as it is no longer
applicable:
"THE WARRANTS REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
REGISTRATION RIGHTS AGREEMENT BETWEEN ANC RENTAL CORPORATION (THE
"COMPANY") AND XXXXXX COMMERCIAL PAPER INC., A COPY OF WHICH IS ON FILE
WITH THE SECRETARY OF THE COMPANY. NO TRANSFER, SALE, ASSIGNMENT,
PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT IN ACCORDANCE WITH
THE PROVISIONS OF SUCH REGISTRATION RIGHTS AGREEMENT. THE HOLDER OF
THIS CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND
BY ALL OF THE PROVISIONS OF SUCH REGISTRATION RIGHTS AGREEMENT."
(i) NEW YORK LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK. EACH PARTY HERETO HEREBY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY FOR PURPOSES
OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT
AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM. EACH PARTY HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(i) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of any such
18
provision in any jurisdiction in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(j) ENTIRE AGREEMENT. This Agreement is intended by the
parties as a final expression of their agreement with respect to the subject
matter contained herein and intended to be a complete and exclusive statement of
the agreement and understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein with respect to
the registration rights granted by the Company with respect to the Registrable
Securities. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
IN WITNESS WHEREOF, the parties have executed this
Registration Rights Agreement as of the date first written above.
ANC RENTAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Treasurer
XXXXXX COMMERCIAL PAPER INC.
By:
-------------------------------------
Name:
Title:
19
IN WITNESS WHEREOF, the parties have executed this
Registration Rights Agreement as of the date first written above.
ANC RENTAL CORPORATION
By:
-------------------------------------
Name:
Title:
XXXXXX COMMERCIAL PAPER INC.
By: /s/ G. Xxxxxx Xxxxx
-------------------------------------
Name: G. Xxxxxx Xxxxx
Title: Authorized Signatory
20
