Contract
Exhibit
10.2
This
REGISTRATION RIGHTS AGREEMENT dated March 10, 2010 (the “Agreement”) is
entered into by and among Avis Budget Car Rental, LLC, a Delaware limited
liability company and Avis Budget Finance, Inc., a Delaware corporation
(together, the “Company”), the
guarantors listed in Schedule 1 hereto (the “Guarantors”), Banc of
America Securities LLC (the “Representative”), and
the other initial purchasers listed on Schedule 2 hereto (collectively, with the
Representative, the “Initial
Purchasers”).
The
Company, the Guarantors and the Initial Purchasers are parties to the Purchase
Agreement dated March 5, 2010 (the “Purchase Agreement”),
which provides for the sale by the Company to the Initial Purchasers of
$450,000,000 aggregate principal amount of the Company’s 9 5/8% Senior Notes due
2018 (the “Securities”) which
will be guaranteed on an unsecured senior basis by each of the
Guarantors. As an inducement to the Initial Purchasers to enter into
the Purchase Agreement, the Company and the Guarantors have agreed to provide to
the Initial Purchasers and their direct and indirect transferees the
registration rights set forth in this Agreement. The execution and
delivery of this Agreement is a condition to the closing under the Purchase
Agreement.
In
consideration of the foregoing, the parties hereto agree as
follows:
1.
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Definitions. As used in this Agreement, the
following terms shall have the following
meanings:
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“Additional Guarantor”
shall mean any subsidiary of the Company that executes a Guarantee under the
Indenture after the date of this Agreement.
“Business Day” shall
mean any day that is not a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to remain
closed.
“Closing Date” shall
mean March 10, 2010.
“Company” shall have
the meaning set forth in the preamble and shall also include the Company’s
successors.
“Exchange Act” shall
mean the Securities Exchange Act of 1934, as amended from time to
time.
“Exchange Dates” shall
have the meaning set forth in Section 2(a)(ii) hereof.
“Exchange Offer” shall
mean the exchange offer by the Company and the Guarantors of Exchange Securities
for Registrable Securities pursuant to Section 2(a) hereof.
“Exchange Offer
Registration” shall mean a registration under the Securities Act effected
pursuant to Section 2(a) hereof.
“Exchange Offer Registration
Statement” shall mean an exchange offer registration statement on Form
S-4 (or, if applicable, on another appropriate form) and all amendments and
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supplements
to such registration statement, in each case including the Prospectus contained
therein or deemed a part thereof, all exhibits thereto and any document
incorporated by reference therein.
“Exchange Securities”
shall mean senior notes issued by the Company and guaranteed by the Guarantors
under the Indenture containing terms identical to the Securities (except that
the Exchange Securities will not be subject to restrictions on transfer or to
any increase in annual interest rate for failure to comply with this Agreement)
and to be offered to Holders of Securities in exchange for Securities pursuant
to the Exchange Offer.
“Free Writing
Prospectus” means each free writing prospectus (as defined in Rule 405
under the Securities Act) prepared by or on behalf of the Company or used or
referred to by the Company in connection with the sale of the
Securities.
“Guarantees” shall
mean the guarantees of the Securities and Exchange Securities by the Guarantors
under the Indenture.
“Guarantors” shall
have the meaning set forth in the preamble and shall also include any
Guarantor’s successors and any Additional Guarantors.
“Holders” shall mean
the Initial Purchasers, for so long as they own any Registrable Securities, and
each of their successors, assigns and direct and indirect transferees who become
owners of Registrable Securities under the Indenture; provided that for purposes
of Sections 4 and 5 of this Agreement, the term “Holders” shall include
Participating Broker-Dealers.
“Indemnified Person”
shall have the meaning set forth in Section 5(c) hereof.
“Indemnifying Person”
shall have the meaning set forth in Section 5(c) hereof.
“Indenture” shall mean
the Indenture relating to the Securities dated as of March 10, 2010 among the
Company, the Guarantors and The Bank of Nova Scotia Trust Company of New York,
as Trustee, and as the same may be amended from time to time in accordance with
the terms thereof.
“Initial Purchasers”
shall have the meaning set forth in the preamble.
“Inspector” shall have
the meaning set forth in Section 3(a)(xiii) hereof.
“Issuer Information”
shall have the meaning set forth in Section 5(a) hereof.
“Majority Holders”
shall mean the Holders of a majority of the aggregate principal amount of the
outstanding Registrable Securities; provided that whenever the consent or
approval of Holders of a specified percentage of Registrable Securities is
required hereunder, any Registrable Securities owned directly or indirectly by
the Company or any of its affiliates shall not be counted in determining whether
such consent or approval was given by the Holders of such required percentage or
amount; and provided, further, that if the Company shall issue any additional
Securities under the Indenture prior to consummation of the Exchange Offer or,
if applicable, the effectiveness of any Shelf Registration Statement, such
additional Securities and
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the
Registrable Securities to which this Agreement relates shall be treated together
as one class for purposes of determining whether the consent or approval of
Holders of a specified percentage of Registrable Securities has been
obtained.
“Participating
Broker-Dealers” shall have the meaning set forth in Section 4(a)
hereof.
“Person” shall mean an
individual, partnership, limited liability company, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
“Prospectus” shall
mean the prospectus included in a Registration Statement, including any
preliminary prospectus, and any such prospectus as amended or supplemented by
any prospectus supplement, including a prospectus supplement with respect to the
terms of the offering of any portion of the Registrable Securities covered by a
Shelf Registration Statement, and by all other amendments and supplements to
such prospectus, and in each case including any document incorporated by
reference therein.
“Purchase Agreement”
shall have the meaning set forth in the preamble.
“Registrable
Securities” shall mean the Securities; provided that the Securities shall
cease to be Registrable Securities when (i) a Registration Statement with
respect to such Securities has become effective under the Securities Act and
such Securities have been exchanged or disposed of pursuant to such Registration
Statement, (ii) such Securities become eligible to be sold pursuant to Rule 144
under the Securities Act by a Person that is not an “affiliate” (within the
meaning of Rule 405 under the Securities Act) of the Company or any Guarantor,
(iii) such Securities are sold under circumstances in which any legend borne by
such Securities relating to restrictions on transferability thereof, under the
Securities Act or otherwise, is removed by the Company or (iv) such Securities
cease to be outstanding.
“Registration
Expenses” shall mean any and all expenses incident to performance of or
compliance by the Company and the Guarantors with this Agreement, including
without limitation: (i) all SEC, stock exchange or Financial Industry Regulatory
Authority, Inc. registration and filing fees, (ii) all fees and expenses
incurred in connection with compliance with state securities or blue sky laws
(including reasonable fees and disbursements of not more than one counsel for
any Underwriters or Holders (whose counsel shall be selected by the Holders of a
majority in aggregate principal amount of Registrable Securities to be
registered in the applicable Registration Statement) in connection with blue sky
qualification of any Exchange Securities or Registrable Securities), (iii) all
expenses of any Persons in preparing or assisting in preparing, word processing,
printing and distributing any Registration Statement, any Prospectus and any
amendments or supplements thereto, any underwriting agreements, securities sales
agreements or other similar agreements and any other documents relating to the
performance of and compliance with this Agreement, (iv) all rating agency fees,
(v) all fees and disbursements relating to the qualification of the Indenture
under applicable securities laws, (vi) the fees and disbursements of the Trustee
and its counsel, (vii) the fees and disbursements of counsel for the Company and
the Guarantors and, in the case of a Shelf Registration Statement, the fees and
disbursements of one counsel for the Holders (which counsel shall be selected by
the Majority Holders and which counsel may also be counsel for the Initial
Purchasers), and (viii) the fees and disbursements of the independent public
accountants of the Company and the Guarantors,
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including
the expenses of any special audits or “comfort” letters required by or incident
to the performance of and compliance with this Agreement, but excluding any and
all fees and expenses of advisors or counsel to the Underwriters (other than
fees and expenses set forth in clause (ii) above) or the Holders and
underwriting discounts and commissions, brokerage commissions and transfer
taxes, if any, relating to the sale or disposition of Registrable Securities by
a Holder pursuant to any Registration Statement.
“Registration
Statement” shall mean any registration statement of the Company and the
Guarantors that covers any of the Exchange Securities or Registrable Securities
pursuant to the provisions of this Agreement and all amendments and supplements
to any such registration statement, including post-effective amendments, in each
case including the Prospectus contained therein or deemed a part thereof, all
exhibits thereto and any document incorporated by reference
therein.
“Representative” shall
have the meaning set forth in the preamble.
“SEC” shall mean the
United States Securities and Exchange Commission.
“Securities” shall
have the meaning set forth in the preamble.
“Securities Act” shall
mean the Securities Act of 1933, as amended from time to time.
“Shelf Additional Interest
Date” shall have the meaning set forth in Section 2(d)
hereof.
“Shelf Effectiveness
Period” shall have the meaning set forth in Section 2(b)
hereof.
“Shelf Registration”
shall mean a registration effected pursuant to Section 2(b) hereof.
“Shelf Registration
Statement” shall mean a “shelf” registration statement of the Company and
the Guarantors that covers all or a portion of the Registrable Securities (but
no other securities unless approved by a majority of the Holders whose
Registrable Securities are to be covered by such Shelf Registration Statement)
on an appropriate form under Rule 415 under the Securities Act, or any similar
rule that may be adopted by the SEC, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein or deemed a part thereof, all
exhibits thereto and any document incorporated by reference
therein.
“Shelf Request” shall
have the meaning set forth in Section 2(b) hereof.
“Staff” shall mean the
staff of the SEC.
“Target Registration
Date” shall have the meaning set forth in Section 2(d)
hereof.
“Trust Indenture Act”
shall mean the Trust Indenture Act of 1939, as amended from time to
time.
“Trustee” shall mean
the trustee with respect to the Securities under the Indenture.
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“Underwriter” shall
have the meaning set forth in Section 3(e) hereof.
“Underwritten
Offering” shall mean an offering in which Registrable Securities are sold
to an Underwriter for reoffering to the public.
2.
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Registration Under the
Securities Act. (a) To the extent not
prohibited by any applicable law or applicable interpretations of the
Staff, the Company and the Guarantors shall use their reasonable best
efforts to (i) cause to be filed with the SEC an Exchange Offer
Registration Statement covering an offer to the Holders to exchange all
the Registrable Securities for Exchange Securities and (ii) have such
Registration Statement remain effective until 180 days after the last
Exchange Date for use by one or more Participating
Broker-Dealers. The Company and the Guarantors shall commence
the Exchange Offer promptly after the Exchange Offer Registration
Statement is declared effective by the SEC and use their reasonable best
efforts to complete the Exchange Offer not later than 45 days after such
effective date.
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The
Company and the Guarantors shall commence the Exchange Offer by mailing the
related Prospectus, appropriate letters of transmittal and other accompanying
documents to each Holder stating, in addition to such other disclosures as are
required by applicable law, substantially the following:
(i) that the
Exchange Offer is being made pursuant to this Agreement and that all Registrable
Securities validly tendered and not properly withdrawn will be accepted for
exchange;
(ii) the dates
of acceptance for exchange (which shall be a period of at least 20 Business Days
from the date such notice is mailed) (the “Exchange
Dates”);
(iii) that any
Registrable Security not tendered will remain outstanding and continue to accrue
interest but will not retain any rights under this Agreement, except as
otherwise specified herein;
(iv) that any
Holder electing to have a Registrable Security exchanged pursuant to the
Exchange Offer will be required to (A) surrender such Registrable Security,
together with the appropriate letters of transmittal, to the institution and at
the address (located in the Borough of Manhattan, The City of New York) and in
the manner specified in the notice, or (B) effect such exchange otherwise in
compliance with the applicable procedures of the depositary for such Registrable
Security, in each case prior to the close of business on the last Exchange Date;
and
(v) that any
Holder will be entitled to withdraw its election, not later than the close of
business on the last Exchange Date, by (A) sending to the institution and at the
address (located in the Borough of Manhattan, The City of New York) specified in
the notice, a telegram, telex, facsimile transmission or letter setting forth
the name of such Holder, the principal amount of Registrable Securities
delivered for exchange and a statement that such Holder is withdrawing its
election to have such Securities exchanged or (B) effecting such withdrawal in
compliance with the applicable procedures of the depositary for the Registrable
Securities.
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As a
condition to participating in the Exchange Offer, each Holder will be required
to represent to the Company and the Guarantors prior to the consummation of the
Exchange Offer (which representation may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement) that (i)
any Exchange Securities to be received by it will be acquired in the ordinary
course of its business, (ii) at the time of the commencement of the Exchange
Offer it is not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any Person to participate in the distribution
(within the meaning of the Securities Act) of the Exchange Securities in
violation of the provisions of the Securities Act, (iii) it is not an
“affiliate” (within the meaning of Rule 405 under the Securities Act) of the
Company or any Guarantor and (iv) if such Holder is a broker-dealer that will
receive Exchange Securities for its own account in exchange for Registrable
Securities that were acquired as a result of market-making or other trading
activities, then such Holder will deliver a Prospectus (or, to the extent
permitted by law, make available a Prospectus to purchasers) in connection with
any resale of such Exchange Securities.
As soon
as practicable after the last Exchange Date, the Company and the Guarantors
shall:
(i) accept
for exchange Registrable Securities or portions thereof validly tendered and not
properly withdrawn pursuant to the Exchange Offer; and
(ii) deliver,
or cause to be delivered, to the Trustee for cancellation all Registrable
Securities or portions thereof so accepted for exchange by the Company and
issue, and cause the Trustee to promptly authenticate and deliver to each
Holder, Exchange Securities equal in principal amount to the principal amount of
the Registrable Securities validly tendered by such Holder and accepted for
exchange pursuant to the Exchange Offer.
The
Company and the Guarantors shall use their reasonable best efforts to complete
the Exchange Offer as provided above and shall comply with the applicable
requirements of the Securities Act, the Exchange Act and other applicable laws
and regulations in connection with the Exchange Offer. The Exchange
Offer shall not be subject to any conditions, other than that the Exchange Offer
does not violate any applicable law or applicable interpretations of the
Staff.
(b) In the
event that (i) the Company and the Guarantors determine that the Exchange Offer
Registration provided for in Section 2(a) above is not available or may not be
completed as soon as practicable after the last Exchange Date because it would
violate any applicable law or applicable interpretations of the Staff, (ii) the
Exchange Offer is not for any other reason completed by April 19, 2011 or (iii)
upon receipt of a written request (a “Shelf Request”) from
any Initial Purchaser representing that it holds Registrable Securities that are
or were ineligible to be exchanged in the Exchange Offer, the Company and the
Guarantors shall use their reasonable best efforts to cause to be filed as soon
as practicable after such determination, date or Shelf Request, as the case may
be, a Shelf Registration Statement providing for the sale of all the Registrable
Securities by the Holders thereof and to have such Shelf Registration Statement
become effective.
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In the
event that the Company and the Guarantors are required to file a Shelf
Registration Statement pursuant to clause (iii) of the preceding sentence, the
Company and the Guarantors shall use their reasonable best efforts to file and
have become effective both an Exchange Offer Registration Statement pursuant to
Section 2(a) with respect to all Registrable Securities and a Shelf Registration
Statement (which may be a combined Registration Statement with the Exchange
Offer Registration Statement) with respect to offers and sales of Registrable
Securities held by the Initial Purchasers after completion of the Exchange
Offer.
The
Company and the Guarantors agree to use their reasonable best efforts to keep
the Shelf Registration Statement continuously effective (i) until the expiration
of the time period referred to in Rule 144(b)(i) under the Securities Act or
(ii) for such shorter period that will terminate when all the Registrable
Securities covered by the Shelf Registration Statement (x) have been sold
pursuant to the Shelf Registration Statement or (y) cease to be outstanding (the
“Shelf Effectiveness
Period”). The Company and the Guarantors further agree to
supplement or amend the Shelf Registration Statement and the related Prospectus
if required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration Statement or
by the Securities Act or by any other rules and regulations thereunder or if
reasonably requested by a Holder of Registrable Securities with respect to
information relating to such Holder, and to use their reasonable best efforts to
cause any such amendment to become effective, if required, and such Shelf
Registration Statement and Prospectus to become usable as soon as thereafter
practicable. The Company and the Guarantors agree to furnish to the
Holders of Registrable Securities copies of any such supplement or amendment
promptly after its being used or filed with the SEC.
(c) The
Company and the Guarantors shall pay all Registration Expenses in connection
with any registration pursuant to Section 2(a) or Section 2(b)
hereof. Each Holder shall pay all underwriting discounts and
commissions, brokerage commissions and transfer taxes, if any, relating to the
sale or disposition of such Holder’s Registrable Securities pursuant to the
Shelf Registration Statement.
(d) An
Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not
be deemed to have become effective unless it has been declared effective by the
SEC. A Shelf Registration Statement pursuant to Section 2(b) hereof
will not be deemed to have become effective unless it has been declared
effective by the SEC or is automatically effective upon filing with the SEC as
provided by Rule 462 under the Securities Act.
In the
event that either the Exchange Offer is not completed or the Shelf Registration
Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not
become effective on or prior to April 19, 2011 (the “Target Registration
Date”), the interest rate on the Registrable Securities will be increased
by (i) 0.25% per annum for the first 90-day period immediately following the
Target Registration Date and (ii) an additional 0.25% per annum with respect to
each subsequent 90-day period, in each case until the Exchange Offer is
completed or the Shelf Registration Statement, if required hereby, becomes
effective or the Securities become freely tradable under the Securities Act, up
to a maximum increase of 0.50% per annum. In the event that the
Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf
Registration Statement required to be filed thereby has not become effective by
the later of (x) April 19, 2011 or (y) 90 days after delivery of such Shelf
Request (such later date, the “Shelf
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Additional Interest
Date”), then the interest rate on the Registrable Securities will be
increased by (i) 0.25% per annum for the first 90-day period payable commencing
from one day after the Shelf Additional Interest Date and (ii) an additional
0.25% per annum with respect to each subsequent 90-day period, in each case
until the Shelf Registration Statement becomes effective or the Securities
become freely tradable under the Securities Act, up to a maximum increase of
0.50% per annum.
If the
Shelf Registration Statement, if required hereby, has become effective and
thereafter either ceases to be effective or the Prospectus contained therein
ceases to be usable, in each case whether or not permitted by this Agreement, at
any time during the Shelf Effectiveness Period, and such failure to remain
effective or usable exists for more than 75 days (whether or not consecutive) in
any 12-month period, then the interest rate on the Registrable Securities will
be increased commencing on the 75th day
in such 12-month period by (i) 0.25% per annum for the first 90-day period
immediately following such 75th day,
and (ii) an additional 0.25% per annum with respect to each subsequent 90-day
period, up to a maximum increase of 0.50% per annum, and ending on such date
that the Shelf Registration Statement has again become effective or the
Prospectus again becomes usable.
(e) Notwithstanding
anything to the contrary contained herein, the increased interest rate described
in Section 2(d) above is the sole and exclusive remedy available to Holders due
to a registration default, so long as the Company and the Guarantors are acting
in good faith hereunder, including, without limitation, with respect to
satisfying their obligations.
(f) The
Company represents, warrants and covenants that, unless it obtains the prior
consent of counsel for the Majority Holders or the consent of the managing
underwriter(s) in connection with any Underwritten Offering of Registrable
Securities, it (including its agents and representatives) will not prepare,
make, use, authorize, approve or refer to any “free writing prospectus” (as
defined in Rule 405 under the Securities Act) in connection with the Securities
or the Exchange Securities, other than any communication pursuant to Rule 134
under the Securities Act or any document constituting an offer to sell or
solicitation of an offer to buy the Securities or the Exchange Securities that
falls within the exception from the definition of prospectus in Section
2(a)(10)(a) of the Securities Act.
3.
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Registration
Procedures. (a) In connection with
their obligations pursuant to Section 2(a) and Section 2(b) hereof, the
Company and the Guarantors shall as soon as practicable (unless otherwise
stated below):
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(i) prepare
and file with the SEC a Registration Statement on the appropriate form under the
Securities Act, which form (x) shall be selected by the Company and the
Guarantors, (y) shall, in the case of a Shelf Registration, be available for the
sale of the Registrable Securities by the Holders thereof and (z) shall comply
as to form in all material respects with the requirements of the applicable form
and include all financial statements required by the SEC to be filed therewith;
and use their reasonable best efforts to cause such Registration Statement to
become effective and remain effective for the applicable period in accordance
with Section 2 hereof;
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(ii) prepare
and file with the SEC such amendments and post-effective amendments to each
Registration Statement as may be necessary to keep such Registration Statement
effective for the applicable period in accordance with Section 2 hereof and
cause each Prospectus to be supplemented by any required prospectus supplement
and, as so supplemented, to be filed pursuant to Rule 424 under the Securities
Act; and keep each Prospectus current during the period described in Section
4(3) of and Rule 174 under the Securities Act that is applicable to transactions
by brokers or dealers with respect to the Registrable Securities or Exchange
Securities;
(iii) in the
case of a Shelf Registration, upon written request, furnish to each Holder of
Registrable Securities, to counsel for the Initial Purchasers, to counsel for
all such Holders and to each Underwriter of an Underwritten Offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus or preliminary prospectus, and any amendment or supplement thereto,
as such Holder, counsel or Underwriter may reasonably request in writing in
order to facilitate the sale or other disposition of the Registrable Securities
thereunder; and the Company and the Guarantors consent to the use of such
Prospectus, preliminary prospectus and any amendment or supplement thereto in
accordance with applicable law by each of the Holders of Registrable Securities
and any such Underwriters in connection with the offering and sale of the
Registrable Securities covered by and in the manner described in such
Prospectus, preliminary prospectus or any amendment or supplement thereto in
accordance with applicable law;
(iv) use their
reasonable best efforts to register or qualify the Registrable Securities under
all applicable state securities or blue sky laws of such jurisdictions as any
Holder of Registrable Securities covered by a Registration Statement shall
reasonably request in writing by the time the applicable Registration Statement
becomes effective; cooperate with such Holders in connection with any filings
required to be made with the Financial Industry Regulatory Authority, Inc.; and
use their reasonable best efforts to do any and all other acts and things that
may be reasonably necessary or advisable to enable each Holder to complete the
disposition in each such jurisdiction of the Registrable Securities owned by
such Holder; provided that neither the Company nor any Guarantor shall be
required to (1) qualify as a foreign corporation or other entity or as a dealer
in securities in any such jurisdiction where it would not otherwise be required
to so qualify, (2) file any general consent to service of process in any such
jurisdiction, (3) subject itself to taxation in any such jurisdiction if it is
not so subject, or (4) make any changes to its incorporating or organizational
documents or limited liability agreement, if applicable, or any other agreement
between it and its stockholders or members, if any;
(v) notify
counsel for the Initial Purchasers and, in the case of a Shelf Registration,
notify each Holder of Registrable Securities and counsel for such Holders
promptly and, if requested by any such Holder or counsel, confirm such advice in
writing (1) when a Registration Statement has become effective, when any
post-effective amendment thereto has been filed and becomes effective and when
any amendment or supplement to the Prospectus has been filed, (2) of any request
by the SEC or any state securities authority for amendments and supplements to a
Registration Statement or Prospectus or for additional information after the
Registration Statement has become
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effective,
(3) of the issuance by the SEC or any state securities authority of any stop
order suspending the effectiveness of a Registration Statement or the initiation
of any proceedings for that purpose, including the receipt by the Company of any
notice of objection of the SEC to the use of a Shelf Registration Statement or
any post-effective amendment thereto pursuant to Rule 401(g)(2) under the
Securities Act, (4) if, between the applicable effective date of a Shelf
Registration Statement and the closing of any sale of Registrable Securities
covered thereby, the representations and warranties of the Company or any
Guarantor contained in any underwriting agreement, securities sales agreement or
other similar agreement, if any, relating to an offering of such Registrable
Securities cease to be true and correct in all material respects or if the
Company or any Guarantor receives any notification with respect to the
suspension of the qualification of the Registrable Securities for sale in any
jurisdiction or the initiation of any proceeding for such purpose, (5) of the
happening of any event during the period a Shelf Registration Statement is
effective that makes any statement made in such Shelf Registration Statement or
the related Prospectus untrue in any material respect or that requires the
making of any changes in such Shelf Registration Statement or Prospectus in
order to make the statements therein, with respect to a Prospectus, in the light
of the circumstances under which such statements were made, not misleading, and
(6) of any determination by the Company or any Guarantor that a post-effective
amendment to a Registration Statement or any amendment or supplement to the
Prospectus would be appropriate;
(vi) use their
reasonable best efforts to obtain the withdrawal of any order suspending the
effectiveness of a Registration Statement or, in the case of a Shelf
Registration, the resolution of any objection of the SEC pursuant to Rule
401(g)(2), including by promptly filing an amendment to such Shelf Registration
Statement on the proper form, and provide notice promptly to each Holder of the
withdrawal of any such order or such resolution;
(vii) in the
case of a Shelf Registration, furnish to each Holder of Registrable Securities,
without charge, at least one conformed copy of each Registration Statement and
any post-effective amendment thereto (without any documents incorporated therein
by reference or exhibits thereto, unless requested);
(viii) in the
case of a Shelf Registration, cooperate with the Holders of Registrable
Securities to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any restrictive
legends and enable such Registrable Securities to be issued in such
denominations and registered in such names (consistent with the provisions of
the Indenture) as such Holders may reasonably request at least three Business
Days prior to the closing of any sale of Registrable Securities made by such
Holders;
(ix) in the
case of a Shelf Registration, upon the occurrence of any event contemplated by
Section 3(a)(v)(5) hereof, use their reasonable best efforts to prepare and file
with the SEC a supplement or post-effective amendment to such Shelf Registration
Statement or the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
(or, to the
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extent
permitted by law, made available) to purchasers of the Registrable Securities,
such Prospectus will not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; and the Company
shall notify the Holders of Registrable Securities to suspend use of the
Prospectus as promptly as practicable after the occurrence of such an event, and
such Holders hereby agree to suspend use of the Prospectus until the Company and
the Guarantors have amended or supplemented the Prospectus to correct such
misstatement or omission;
(x) a
reasonable time prior to the filing of any Registration Statement, any
Prospectus, any amendment to a Registration Statement or amendment or supplement
to a Prospectus (other than any document that is to be incorporated by reference
into a Registration Statement or a Prospectus after initial filing of a
Registration Statement and doesn’t name the Holders of Registrable Securities in
their capacity as such), provide copies of such document to the Initial
Purchasers and their counsel (if the Initial Purchasers holds any Registrable
Securities) (and, in the case of a Shelf Registration Statement, to the Holders
of Registrable Securities and their counsel) and make such of the
representatives of the Company and the Guarantors as shall be reasonably
requested by the Initial Purchasers or their counsel (if the Initial Purchasers
holds any Registrable Securities) (and, in the case of a Shelf Registration
Statement, the Holders of Registrable Securities or their counsel) available for
discussion of such document; and the Company and the Guarantors shall not, at
any time after initial filing of a Registration Statement, use or file any
Prospectus, any amendment of or supplement to a Registration Statement or a
Prospectus (other than any document that is to be incorporated by reference into
a Registration Statement or a Prospectus and doesn’t name the Holders of
Registrable Securities in their capacity as such), of which the Initial
Purchasers and their counsel (if the Initial Purchasers holds any Registrable
Securities) (and, in the case of a Shelf Registration Statement, the Holders of
Registrable Securities and their counsel) shall not have previously been advised
and furnished a copy or to which the Initial Purchasers or their counsel (if the
Initial Purchasers hold any Registrable Securities) (and, in the case of a Shelf
Registration Statement, the Holders of Registrable Securities or their counsel)
shall reasonably object within five Business Days after receipt thereof, unless
the Company believes such Prospectus, amendment or supplement to a Prospectus is
required by applicable law;
(xi) obtain a
CUSIP number for all Exchange Securities or Registrable Securities, as the case
may be, not later than the initial effective date of a Registration Statement
covering such Exchange Securities or Registrable Securities;
(xii) cause the
Indenture to be qualified under the Trust Indenture Act in connection with the
registration of the Exchange Securities or Registrable Securities, as the case
may be; cooperate with the Trustee and the Holders to effect such changes to the
Indenture as may be required for the Indenture to be so qualified in accordance
with the terms of the Trust Indenture Act; and execute, and use their reasonable
best efforts to cause the Trustee to execute, all documents as may be required
to effect such changes and all other forms and documents required to be filed
with the SEC to enable the Indenture to be so qualified in a timely
manner;
11
(xiii) in the
case of a Shelf Registration, make available for inspection by a representative
of the Holders of a majority of the outstanding aggregate principal amount of
the Registrable Securities to be included in such Shelf Registration (an “Inspector”), any
Underwriter participating in any disposition pursuant to such Shelf Registration
Statement, any attorneys and one firm of accountants designated by such Holders
and any attorneys (but not more than one counsel acting for all such Holders)
and accountants designated by such Underwriter, at reasonable times and in a
reasonable manner, all pertinent financial and other records, documents and
properties of the Company, the Guarantors and their subsidiaries, and cause the
respective officers, directors and employees of the Company and the Guarantors
to supply all information reasonably requested by any such Inspector,
Underwriter, attorney or accountant to conduct reasonable investigation within
the meaning of Section 11 of the Securities Act in connection with a Shelf
Registration Statement; provided that the foregoing investigation and
information gathering shall be coordinated on behalf of such parties by one
counsel designated by and on behalf of such parties; and provided further that
if any such information is identified by the Company or any Guarantor as being
confidential or proprietary, each Person receiving such information shall take
such actions as are reasonably necessary to protect the confidentiality of such
information to the extent such action is otherwise not inconsistent with, an
impairment of or in derogation of the rights and interests of any Inspector,
Holder or Underwriter);
(xiv) in the
case of a Shelf Registration, use their reasonable best efforts to cause all
Registrable Securities to be listed on any securities exchange or any automated
quotation system on which similar securities issued or guaranteed by the Company
or any Guarantor are then listed if requested by the Majority Holders, to the
extent such Registrable Securities satisfy applicable listing
requirements;
(xv) if
reasonably requested by any Holder of Registrable Securities covered by a Shelf
Registration Statement, promptly include in a Prospectus supplement or
post-effective amendment such information with respect to such Holder as such
Holder reasonably requests to be included therein and make all required filings
of such Prospectus supplement or such post-effective amendment promptly after
the Company has received notification of the matters to be so included in such
filing;
(xvi) in the
case of a Shelf Registration, enter into such customary agreements, including,
but not limited to, an underwriting agreement which contains indemnities
substantially similar to those contained in the Purchase Agreement, and use its
reasonable best efforts to take all such other actions in connection therewith
(including those requested by the Holders of a majority in principal amount of
the Registrable Securities covered by the Shelf Registration Statement) in order
to expedite or facilitate the disposition of such Registrable Securities
including, but not limited to, an Underwritten Offering and in such connection,
(1) to the extent possible, make such representations and warranties to the
Holders and any Underwriters of such Registrable Securities with respect to the
business of the Company, the Guarantors and their subsidiaries and the
Registration Statement, Prospectus and documents incorporated by reference or
deemed incorporated by reference, if any, in each case, in form, substance and
scope as are customarily made by issuers and guarantors to underwriters in
Underwritten Offerings
12
and
confirm the same if and when required by the applicable underwriting agreement,
(2) obtain opinions of counsel to the Company and the Guarantors (which counsel
and opinions, in form, scope and substance, shall be reasonably satisfactory to
such Underwriters and their counsel) addressed to each Underwriter of
Registrable Securities, in customary form subject to customary limitations,
assumptions and exclusions and covering the matters customarily covered in
opinions requested in Underwritten Offerings, (3) obtain “comfort” letters from
the independent certified public accountants of the Company and the Guarantors
(and, if necessary, any other certified public accountant of any subsidiary of
the Company or any Guarantor, or of any business acquired by the Company or any
Guarantor for which financial statements and financial data are or are required
to be included in the Registration Statement) addressed to each selling Holder
(to the extent permitted by applicable professional standards) and Underwriter
of Registrable Securities, such letters to be in customary form and covering
matters of the type customarily covered in “comfort” letters in connection with
Underwritten Offerings, including but not limited to financial information
contained in any preliminary prospectus or Prospectus and (4) deliver such
documents and certificates as may be reasonably requested by the Holders of a
majority in principal amount of the Registrable Securities being sold or the
Underwriters, and which are customarily delivered in Underwritten Offerings, to
evidence the continued validity of the representations and warranties of the
Company and the Guarantors made pursuant to clause (1) above and to evidence
compliance with any customary conditions contained in the applicable
underwriting agreement; and
(xvii) so long
as any Registrable Securities remain outstanding, cause each Additional
Guarantor upon the creation or acquisition by the Company of such Additional
Guarantor, to execute a counterpart to this Agreement in the form attached
hereto as Annex A and to deliver such counterpart to the Initial Purchasers no
later than five Business Days following the execution thereof.
(b) In the
case of a Shelf Registration Statement, the Company may require each Holder of
Registrable Securities to furnish to the Company such information regarding such
Holder and the proposed disposition by such Holder of such Registrable
Securities as the Company and the Guarantors may from time to time reasonably
request in writing. The Company and the Guarantors shall be entitled
to refuse to include for registration the Registrable Securities held by any
Holder who fails to comply with such request and provide the requested
information after being given 15 Business Days notice of such request to the
extent such information is required by applicable law to be included in the
Shelf Registration Statement, and such Holder shall not be entitled to
additional interest pursuant to Section 2(d) above.
(c) In the
case of a Shelf Registration Statement, each Holder of Registrable Securities
covered in such Shelf Registration Statement agrees that, upon receipt of any
notice from the Company and the Guarantors of the happening of any event of the
kind described in Section 3(a)(v)(3), (5), or (6) hereof, such Holder will
forthwith discontinue disposition of Registrable Securities pursuant to the
Shelf Registration Statement until such Holder’s receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(a)(ix) hereof, or
until it is advised in writing by the Company that the use of the Prospectus may
be resumed, and, if so directed by the Company and the Guarantors, such Holder
will deliver to the Company
13
and the
Guarantors all copies in its possession, other than permanent file copies then
in such Holder’s possession, of the Prospectus covering such Registrable
Securities that is current at the time of receipt of such notice.
(d) If the
Company and the Guarantors shall give any notice pursuant to Section 3(c) hereof
to suspend the disposition of Registrable Securities pursuant to a Shelf
Registration Statement, the Company and the Guarantors shall extend the period
during which such Shelf Registration Statement shall be maintained effective
pursuant to this Agreement by the number of days equal to the number of days in
the period from and including the date of the giving of such notice to and
including the date when the Holders of such Registrable Securities shall have
received copies of the supplemented or amended Prospectus necessary to resume
such dispositions. The Company and the Guarantors may give any such
notice pursuant to Section 3(c) only twice during any 365-day period and any
such suspensions shall not exceed 75 days in any 365-day period and there shall
not be more than two suspensions in effect during any 365-day
period.
(e) In the
case of an Underwritten Offering, the investment bank or investment banks and
manager or managers (each an “Underwriter”) that
will administer the offering will be selected by the Holders of a majority of
the outstanding aggregate principal amount of the Registrable Securities
included in such offering, subject to the Company’s consent, which consent shall
not be unreasonably withheld. Such Holders shall be responsible for
all underwriting commissions and discounts in connection
therewith. No Holder of Registrable Securities may participate in any
Underwritten Offering unless such Holder (i) agrees to sell such Holder’s
Registrable Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements, provided that the Holders are given 15 Business Days
notice of such requests.
(f) Notwithstanding
anything contained herein, the Holders may only sell their Registrable
Securities in an Underwritten Offering with the Company’s consent, which may be
granted or withheld in the Company’s sole discretion.
4.
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Participation of
Broker-Dealers in Exchange
Offer. (a) The Staff has taken the
position that any broker-dealer that receives Exchange Securities for its
own account in the Exchange Offer in exchange for Securities that were
acquired by such broker-dealer as a result of market-making or other
trading activities (a “Participating
Broker-Dealer”) may be deemed to be an “underwriter” within the
meaning of the Securities Act and must deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale of such
Exchange Securities.
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The
Company and the Guarantors understand that it is the Staff’s position that if
the Prospectus contained in the Exchange Offer Registration Statement includes a
plan of distribution containing a statement to the above effect and the means by
which Participating Broker-Dealers may resell the Exchange Securities, without
naming the Participating Broker-Dealers or specifying the amount of Exchange
Securities owned by them, such Prospectus may be delivered by Participating
Broker-Dealers (or, to the extent permitted by law, made available to
purchasers) to satisfy their prospectus delivery obligation under the Securities
Act in
14
connection
with resales of Exchange Securities for their own accounts, so long as the
Prospectus otherwise meets the requirements of the Securities Act.
(b) In light
of the above, and notwithstanding the other provisions of this Agreement, the
Company and the Guarantors agree to use their reasonable best efforts to amend
or supplement the Prospectus contained in the Exchange Offer Registration
Statement for a period of up to 180 days after the last Exchange Date (as such
period may be extended pursuant to Section 3(d) of this Agreement (in the case
of a Shelf Registration Statement that is combined with an Exchange Offer
Registration Statement)), if requested by the Initial Purchasers or by one or
more Participating Broker-Dealers, in order to expedite or facilitate the
disposition of any Exchange Securities by Participating Broker-Dealers
consistent with the positions of the Staff recited in Section 4(a)
above. The Company and the Guarantors further agree that
Participating Broker-Dealers shall be authorized to deliver such Prospectus (or,
to the extent permitted by law, make available) during such period in connection
with the resales contemplated by this Section 4. The Participating
Broker-Dealers shall not be authorized by the Company to deliver and shall not
deliver such Prospectus after such period in connection with the resales
contemplated by this Section 4.
(c) The
Initial Purchasers shall have no liability to the Company, any Guarantor or any
Holder with respect to any request that they may make pursuant to Section 4(b)
above.
5.
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Indemnification and
Contribution. (a) The Company and each
Guarantor, jointly and severally, agree to indemnify and hold harmless (i)
each Initial Purchaser and each Holder, their respective affiliates,
directors and officers and each Person, if any, who controls any Initial
Purchaser or any Holder within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation,
legal fees and other expenses incurred in connection with any suit, action
or proceeding or any claim asserted, as such fees and expenses are
incurred), joint or several, that arise out of, or are based upon, (1) any
untrue statement or alleged untrue statement of a material fact contained
in any Registration Statement or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary in
order to make the statements therein not misleading, or (2) any untrue
statement or alleged untrue statement of a material fact contained in any
Prospectus, any Free Writing Prospectus used in violation of this
Agreement or any “issuer information” (“Issuer
Information”) filed or required to be filed pursuant to Rule 433(d)
under the Securities Act, or any omission or alleged omission to state
therein a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, in each case except insofar as such losses, claims, damages or
liabilities arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and
in conformity with any information relating to any Initial Purchaser or
information relating to any Holder furnished to the Company in writing
through the Representative or any selling Holder respectively expressly
for use therein. In connection with any Underwritten Offering
permitted by Section 3, the Company and the Guarantors, jointly and
severally, will also indemnify the Underwriters, if any, selling brokers,
dealers and similar securities industry professionals participating in the
distribution, their respective affiliates and each Person who controls
such Persons(within the meaning of the Securities Act and the Exchange
Act) to the same extent as provided above with respect to the
|
15
indemnification of the Holders, if requested in connection with
any Registration Statement, any Prospectus, any Free Writing Prospectus or any
Issuer Information.)
(b) Each
Holder agrees, severally and not jointly, to indemnify and hold harmless the
Company, the Guarantors, the Initial Purchasers and the other selling Holders,
the directors of the Company and the Guarantors, each officer of the Company and
the Guarantors who signed the Registration Statement and each Person, if any,
who controls the Company, the Guarantors, any Initial Purchaser and any other
selling Holder within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the indemnity set forth in
paragraph (a) above, but only with respect to any losses, claims, damages or
liabilities that arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to such Holder furnished to the Company
in writing by or on behalf of such Holder expressly for use in any Registration
Statement and any Prospectus.
(c) If any
suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any Person
in respect of which indemnification may be sought pursuant to either paragraph
(a) or (b) above, such Person (the “Indemnified Person”)
shall promptly notify the Person against whom such indemnification may be sought
(the “Indemnifying
Person”) in writing; provided that the failure to notify the Indemnifying
Person shall not relieve it from any liability that it may have under paragraph
(a) or (b) above except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and
provided, further, that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have to an Indemnified Person
otherwise than under paragraph (a) or (b) above. If any such
proceeding shall be brought or asserted against an Indemnified Person and it
shall have notified the Indemnifying Person thereof, the Indemnifying Person
shall retain counsel reasonably satisfactory to the Indemnified Person (who
shall not, without the consent of the Indemnified Person, be counsel to the
Indemnifying Person) to represent the Indemnified Person and any others entitled
to indemnification pursuant to this Section 5 that the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such
proceeding and shall pay the fees and expenses of such counsel related to such
proceeding, as incurred. In any such proceeding, any Indemnified
Person shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Person unless (i)
the Indemnifying Person and the Indemnified Person shall have mutually agreed to
the contrary; (ii) the Indemnifying Person has failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the
Indemnified Person shall have reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those
available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying
Person shall not, in connection with any proceeding or related proceeding in the
same jurisdiction, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all Indemnified Persons, and that
all such fees and expenses shall be reimbursed as they are
incurred. Any such separate firm (x) for any Initial Purchaser, its
affiliates, directors and officers and any control Persons of such Initial
Purchaser shall be
16
designated
in writing by the Representative, (y) for any Holder, its directors and officers
and any control Persons of such Holder shall be designated in writing by the
Majority Holders and (z) in all other cases shall be designated in writing by
the Company. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify each Indemnified Person from and against
any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
Indemnified Person shall have requested that an Indemnifying Person reimburse
the Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by the Indemnifying Person of such
request; (ii) the Indemnifying Person shall not have reimbursed the Indemnified
Person in accordance with such request prior to the date of such settlement and
(iii) the Indemnified Person shall have given at least 30 days prior written
notice of its intention to settle. No Indemnifying Person shall,
without the written consent of the Indemnified Person, effect any settlement of
any pending or threatened proceeding in respect of which any Indemnified Person
is or could have been a party and indemnification could have been sought
hereunder by such Indemnified Person, unless such settlement (A) includes an
unconditional release of such Indemnified Person, in form and substance
reasonably satisfactory to such Indemnified Person, from all liability on claims
that are the subject matter of such proceeding and (B) does not include any
statement as to or any admission of fault, culpability or a failure to act by or
on behalf of any Indemnified Person.
(d) If the
indemnification provided for in paragraphs (a) and (b) above is unavailable to
or insufficient to hold harmless an Indemnified Person in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying
Person under such paragraph, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantors from the offering of the Securities and the Exchange
Securities, on the one hand, and by the Holders from receiving Securities or
Exchange Securities registered under the Securities Act, on the other hand, or
(ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) but also the relative fault of the Company
and the Guarantors on the one hand and the Holders on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and the Guarantors
on the one hand and the Holders on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company and the Guarantors on the one
hand or by the Holders on the other and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
(e) The
Company, the Guarantors and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 5 were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount paid or
payable by an Indemnified Person as a result of the losses, claims,
17
damages
and liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such Indemnified Person in connection with investigating,
preparing to defend, or defending any such action or
claim. Notwithstanding the provisions of this Section 5, in no event
shall a Holder be required to contribute any amount in excess of the amount by
which the total price at which the Securities or Exchange Securities sold by
such Holder exceeds the amount of any damages that such Holder has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. 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. The Holders’ obligations to contribute
pursuant to this Section 5 are several in proportion to the respective principal
amount of the Registrable Securities held by each Holder and not
joint.
(f) The
remedies provided for in this Section 5 are not exclusive and shall not limit
any rights or remedies that may otherwise be available to any Indemnified Person
at law or in equity.
(g) The
indemnity and contribution provisions contained in this Section 5 shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of the Initial Purchasers
or any Holder or any Person controlling any Initial Purchaser or any Holder, or
by or on behalf of the Company or the Guarantors or the officers or directors of
or any Person controlling the Company or the Guarantors, (iii) acceptance of any
of the Exchange Securities and (iv) any sale of Registrable Securities pursuant
to a Shelf Registration Statement .
6.
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General.
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(a) No Inconsistent
Agreements. The Company and the Guarantors represent, warrant
and agree that (i) the rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
any other outstanding securities issued or guaranteed by the Company or any
Guarantor under any other agreement and (ii) neither the Company nor any
Guarantor has entered into, or on or after the date of this Agreement will enter
into, any agreement that is inconsistent with the rights granted to the Holders
of Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof.
(b) 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 hereof may not be given
unless the Company and the Guarantors have obtained the written consent of
Holders of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement,
waiver or consent ; provided that no amendment, modification, supplement, waiver
or consent to any departure from the provisions of Section 5 hereof shall be
effective as against any Holder of Registrable Securities unless consented to in
writing by such Holder. Any amendments, modifications, supplements,
waivers or consents pursuant to this Section 6(b) shall be by a writing executed
by each of the parties hereto.
18
(c) Notices. All
notices and other communications provided for or permitted hereunder shall be
made in writing by hand-delivery, registered first-class mail, telex,
telecopier, or any courier guaranteeing overnight delivery (i) if to a Holder,
at the most current address given by such Holder to the Company by means of a
notice given in accordance with the provisions of this Section 6(c), which
address initially is, with respect to the Initial Purchasers, the address set
forth in the Purchase Agreement; (ii) if to the Company and the Guarantors,
initially at the Company’s address set forth in the Purchase Agreement and
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 6(c); and (iii) to such other persons at their
respective addresses as provided in the Purchase Agreement and thereafter at
such other address, notice of which is given in accordance with the provisions
of this Section 6(c). 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 telexed; when receipt is
acknowledged, if telecopied; and on the next Business Day if timely delivered to
an air courier guaranteeing overnight delivery. Copies of all such
notices, demands or other communications shall be concurrently delivered by the
Person giving the same to the Trustee, at the address specified in the
Indenture.
(d) Successors and
Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors, assigns and transferees of each of the parties,
including, without limitation and without the need for an express assignment,
subsequent Holders; provided that nothing herein shall be deemed to permit any
assignment, transfer or other disposition of Registrable Securities in violation
of the terms of the Purchase Agreement or the Indenture. If any
transferee of any Holder shall acquire Registrable Securities in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all the terms of this Agreement, and by taking and holding such
Registrable Securities such Person shall be conclusively deemed to have agreed
to be bound by and to perform all of the terms and provisions of this Agreement
and such Person shall be entitled to receive the benefits hereof. The
Initial Purchasers (in their capacity as Initial Purchasers) shall have no
liability or obligation to the Company or the Guarantors with respect to any
failure by a Holder to comply with, or any breach by any Holder of, any of the
obligations of such Holder under this Agreement.
(e) Third Party
Beneficiaries. Each Holder shall be a third party beneficiary
to the agreements made hereunder between the Company and the Guarantors, on the
one hand, and the Initial Purchasers, on the other hand, and shall have the
right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the rights of other
Holders hereunder.
(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, are not a part
of this Agreement and shall not limit or otherwise affect the meaning
hereof.
19
(h) Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(i) Entire Agreement;
Severability. This Agreement contains the entire agreement
between the parties relating to the subject matter hereof and supersedes all
oral statements and prior writings with respect thereto. If any term,
provision, covenant or restriction contained in this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable or against
public policy, the remainder of the terms, provisions, covenants and
restrictions contained herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated. The Company, the
Guarantors and the Initial Purchasers shall endeavor in good faith negotiations
to replace the invalid, void or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the invalid,
void or unenforceable provisions.
20
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
AVIS
BUDGET CAR RENTAL, LLC
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By
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/s/
Xxxxxxxx Xxxxxxx
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Name: Xxxxxxxx
Xxxxxxx
Title: Vice
President and Treasurer
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AVIS
BUDGET FINANCE, INC.
|
||
By
|
/s/
Xxxxxxxx Xxxxxxx
|
|
Name: Xxxxxxxx
Xxxxxxx
Title: Vice
President and Treasurer
|
|
||
By
|
/s/
Xxxxxxxx Xxxxxxx
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|
Name: Xxxxxxxx
Xxxxxxx
Title: Vice
President and Treasurer
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AVIS
BUDGET HOLDINGS, LLC
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||
By
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/s/
Xxxxxxxx Xxxxxxx
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Name: Xxxxxxxx
Xxxxxxx
Title: Vice
President and Treasurer
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AB
CAR RENTAL SERVICES, INC.
ARACS
LLC
AVIS
ASIA AND PACIFIC, LIMITED
AVIS
CAR RENTAL GROUP, LLC
AVIS
CARIBBEAN, LIMITED
AVIS
ENTERPRISES, INC.
AVIS
GROUP HOLDINGS, LLC
AVIS
INTERNATIONAL, LTD.
AVIS
OPERATIONS, LLC
AVIS
RENT A CAR SYSTEM, LLC
PF
CLAIMS MANAGEMENT, LTD.
PR
HOLDCO, INC.
WIZARD
CO., INC.
WIZARD
SERVICES, INC.
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By
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/s/
Xxxxxxxx Xxxxxxx
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Name: Xxxxxxxx
Xxxxxxx
Title: Vice
President and Treasurer
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BGI
LEASING, INC.
BUDGET
RENT A CAR SYSTEM, INC.
BUDGET
TRUCK RENTAL LLC
RUNABOUT,
LLC
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By
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/s/
Xxxxx X. Xxxxxxx
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Name: Xxxxx
X. Xxxxxxx
Title: Executive
Vice President, ChiefFinancial Officer and
Treasurer
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Confirmed
and accepted as of the date first above written:
By
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BANC
OF AMERICA SECURITIES LLC
For
itself and on behalf of the
several
Initial Purchasers
/s/
Xxxxxxx X. Xxxxxx
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Authorized Signatory
Annex
A
Counterpart to Registration
Rights Agreement
The
undersigned hereby absolutely, unconditionally and irrevocably agrees as a
Guarantor (as defined in the Registration Rights Agreement, dated as of March
10, 2010 by and among the Company, a Delaware limited liability company, the
guarantors party thereto and Banc of America Securities LLC, on behalf of itself
and the other Initial Purchasers) to be bound by the terms and provisions of
such Registration Rights Agreement.
IN
WITNESS WHEREOF, the undersigned has executed this counterpart as of
_______________.
[NAME]
By:___________________________
Name:
Title:
Schedule
1
AB Car
Rental Services, Inc.
ARACS
LLC
Avis Asia
and Pacific, Limited
Avis
Budget Holdings, LLC
Avis Car
Rental Group, LLC
Avis
Caribbean, Limited
Avis
Enterprises, Inc.
Avis
Group Holdings, LLC
Avis
International, Ltd.
Avis
Operations, LLC
Avis Rent
A Car System, LLC
BGI
Leasing, Inc.
Budget
Rent A Car System, Inc.
Budget
Truck Rental LLC
PF Claims
Management, Ltd.
PR
Holdco, Inc.
Runabout,
LLC
Wizard
Co., Inc.
Wizard
Services, Inc.
Schedule
2
Barclays
Capital Inc.
Banc of
America Securities LLC
Credit
Agricole Securities (USA) Inc.
Citigroup
Global Markets Inc.
Deutsche
Bank Securities Inc.
X.X.
Xxxxxx Securities Inc.
RBS
Securities Inc.
Scotia
Capital (USA) Inc.
Xxxxx
Fargo Securities, LLC