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EXHIBIT 10.1
BUDGET GROUP CAPITAL TRUST
UP TO 6,900,000 HIGH TIDES(SM)
(Liquidation Amount $50
per HIGH TIDE)
Guaranteed to the extent set forth in the Guarantee
Agreement by, and Convertible into
Class A Common Stock of, Budget Group, Inc.
REGISTRATION RIGHTS AGREEMENT
June 19, 1998
Credit Suisse First Boston Corporation
Xxxxxxx, Xxxxx & Co.
X.X. Xxxxxx Securities Inc.
ABN AMRO Chicago Corporation
BT Alex. Xxxxx Incorporated
XxXxxxxx & Company Securities, Inc.
NationsBanc Xxxxxxxxxx Securities LLC
c/o Credit Suisse First Boston Corporation
As Representative of the Several Purchasers
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Dear Sirs:
Budget Group Capital Trust, a statutory business trust formed under
the laws of the State of Delaware (the "Trust") by Budget Group, Inc., a
Delaware corporation (the "Company"), proposes to issue and sell to Credit
Suisse First Boston Corporation and the other initial purchasers (collectively,
the "Purchasers") named in Schedule A to the Purchase Agreement dated June 16,
1998 (the "Purchase Agreement"), among the Purchasers, the Company and the
Trust, upon the terms set forth in the Purchase Agreement, up to 6,000,000 (or
up to 6,900,000 to the extent the over-allotment option is exercised in full)
of its Remarketable Term Income Deferrable Equity Securities (HIGH TIDES),
liquidation amount $50 per security (the "HIGH TIDES") (the "Initial
Placement"). The proceeds of the sale by the Trust of the HIGH TIDES and the
Common Securities of the Trust, liquidation amount $50 per Common Security (the
"Common
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Securities"), are to be invested in the HIGH TIDES Debentures Due 2028 of the
Company issued pursuant to the Indenture dated June 19, 1998 between the
Company and The Bank of New York, as Trustee (the "HIGH TIDES Debentures")
having an aggregate principal amount equal to the aggregate liquidation amount
of the HIGH TIDES and the Common Securities. As an inducement to you to enter
into the Purchase Agreement and in satisfaction of a condition to your
obligations thereunder, the Trust and the Company agree with you, (i) for the
benefit of the Purchasers and (ii) for the benefit of the registered holders
from time to time of the HIGH TIDES, the HIGH TIDES Debentures and the Class A
Common Stock, par value $.01 per share (such as Class A Common Stock and any
other shares issuable in place of or in addition to such shares pursuant to the
antidilution provisions of the HIGH TIDES Debentures, being referred to as the
"Common Stock"), of the Company issuable upon conversion of the HIGH TIDES or
the HIGH TIDES Debentures (collectively, together with the Guarantee by the
Company of the HIGH TIDES, the "Securities"), including the Purchasers (each of
the foregoing a "Holder" and together the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in or pursuant to the
Purchase Agreement or, if not defined therein, in the Confidential Offering
Circular dated June 16, 1998, in respect of the HIGH TIDES or, if not defined
therein, in the Amended and Restated Declaration of Trust dated as of June 19,
1998 (the "Declaration") relating to the Trust. As used in this Agreement, the
following capitalized defined terms shall have the following meanings:
"Act" or "Securities Act" means the Securities Act of 1933,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Affiliate" of any specified person means any other person
which, directly or indirectly, is in control of, is controlled by, or is under
common control with, such specified person. For purposes of this definition,
control of a person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such person whether by contract or
otherwise; the terms "controlling" and "controlled" have meanings correlative
to the foregoing.
"Applicable Rate" means the rate at which the HIGH TIDES
accrue distributions and the HIGH TIDES Debentures accrue interest. From the
date of original issuance of the
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HIGH TIDES to (but excluding) the Reset Date the Applicable Rate shall be 6
1/4% per annum. Beginning with and after the Reset Date, the Applicable Rate
shall be the Term Rate. The Applicable Rate will be increased upon the
occurrence of a Registration Default, as set forth in Section 7(a) hereof.
"Business Day" means any day other than (i) a Saturday or
Sunday, (ii) a day on which banking institutions in The City of New York are
authorized or required by law or executive order to remain closed or (iii) a
day on which the corporate trust office of the Debenture Trustee or the
Property Trustee is closed for business.
"Closing Date" has the meaning given such term in the
Purchase Agreement.
"Commission" means the Securities and Exchange Commission.
"Common Stock" has the meaning set forth in the first
paragraph to this Agreement.
"Company" has the meaning set forth in the first paragraph to
this Agreement.
"Debenture Trustee", "Guarantee Trustee" and "Property
Trustee" each means The Bank of New York.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Guarantee" means the guarantee by the Company of the HIGH
TIDES pursuant to a Guarantee Agreement dated as of June 19, 1998 between the
Company and the Guarantee Trustee.
"HIGH TIDES" has the meaning set forth in the first paragraph
to this Agreement.
"HIGH TIDES Debentures" has the meaning set forth in the
first paragraph to this Agreement.
"Holder" and "Holders" each has the meaning set forth in the
first paragraph to this Agreement.
"Initial Placement" has the meaning set forth in the first
paragraph to this Agreement.
"Managing Underwriters" means the investment banker or
investment bankers and manager or managers that
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shall administer an underwritten offering, if any, as set forth in Section 6
hereof.
"Prospectus" means the prospectus included in any Shelf
Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the Act),
with respect to the terms of the offering of any portion of the Securities
covered by such Shelf Registration Statement, as amended or supplemented by all
amendments (including post-effective amendments) and supplements to the
Prospectus.
"Purchase Agreement" has the meaning set forth in the first
paragraph to this Agreement.
"Purchasers" has the meaning set forth in the first paragraph
to this Agreement.
"Registrable Securities" has the meaning specified in the
Indenture.
"Registration Default" has the meaning given to
such term in Section 7(a) hereof.
"Remarketing Agent" has the meaning specified in
the Indenture.
"Reset Date" means June 15, 2005 (or, if such day is not a
Business Day, the next succeeding Business Day), or such earlier day as may be
determined by the Remarketing Agent, in its sole discretion, for settlement of
a successful remarketing.
"Securities" means the HIGH TIDES, the HIGH TIDES Debentures,
the Common Stock and the Guarantee, individually and collectively.
"Shelf Registration" means a registration effected pursuant to
Section 2 hereof.
"Shelf Registration Period" has the meaning set forth in
Section 2(b) hereof.
"Shelf Registration Statement" means a "shelf" registration
statement of the Trust and the Company pursuant to the provisions of Section 2
hereof filed with the Commission which covers some or all of the Securities, as
applicable, on an appropriate form under Rule 415 under the Act, or any similar
rule that may be adopted by the
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Commission, amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Suspension Period" has the meaning set forth in Section 7(b)
hereof.
"Term Rate" means the rate established by the Remarketing
Agent (as defined in the Indenture) in connection with the Remarketing (as
defined in the Indenture) at which interest will accrue on the HIGH TIDES
Debentures and distributions will accrue on the HIGH TIDES on and after the
Reset Date.
"Trust" has the meaning set forth in the first paragraph to
this Agreement.
"Trustee" means the Guarantee Trustee, the Debenture Trustee
or the Property Trustee, as applicable.
"Underwriter" means any underwriter of Securities in
connection with an offering thereof under a Shelf Registration Statement.
2. Shelf Registration. (a) The Trust and the Company
shall as promptly as practicable prepare and, not later than the 60th day
following the Closing Date, shall file with the Commission and thereafter shall
each use their best efforts to cause to be declared effective under the Act as
soon as practicable, but in no event later than the 120th day following the
Closing Date, a Shelf Registration Statement relating to the offer and sale of
the Securities by the Holders from time to time in accordance with the methods
of distribution elected by such Holders and set forth in such Shelf
Registration Statement.
(b) The Trust and the Company shall each use its best
efforts (i) to keep the Shelf Registration Statement continuously effective in
order to permit the Prospectus forming part thereof to be usable by Holders
until resale of the Securities is permitted pursuant to Rule 144(k) under the
Securities Act or any successor rule or regulation thereto after the date the
Shelf Registration Statement is declared effective or such shorter period that
will terminate upon the earlier of the following: (A) when all the HIGH TIDES
covered by the Shelf Registration Statement have been sold pursuant to the
Shelf Registration Statement, (B) when all HIGH TIDES Debentures issued to
Holders in respect of HIGH TIDES that had not been sold pursuant to the
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Shelf Registration Statement have been sold pursuant to the Shelf Registration
Statement or (C) when all shares of Common Stock issued upon conversion of any
such HIGH TIDES or any such HIGH TIDES Debentures that had not been sold
pursuant to the Shelf Registration Statement have been sold pursuant to the
Shelf Registration Statement (in any such case, such period being called the
"Shelf Registration Period") and (ii) after the effectiveness of the Shelf
Registration Statement, promptly upon the request of any Holder to take any
action reasonably necessary to register the sale of any Securities of such
Holder and to identify such Holder as a selling securityholder.
3. Registration Procedures. In connection with any Shelf
Registration Statement, the following provisions shall apply:
(a) The Trust and the Company shall furnish to the
Purchasers, prior to the filing thereof with the Commission, a copy of
any Shelf Registration Statement, and each amendment thereof and each
amendment or supplement, if any, to the Prospectus included therein
and shall each use its best efforts to reflect in each such document,
when so filed with the Commission, such comments as the Purchasers
reasonably may propose.
(b) The Trust and the Company shall take such action as
may be necessary so that (i) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming part thereof and any
amendment or supplement thereto (and each report or other document
incorporated therein by reference in each case) complies in all
material respects with the Securities Act and the Exchange Act and the
respective rules and regulations thereunder, (ii) any Shelf
Registration Statement and any amendment thereto does not, when it
becomes effective, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) any
Prospectus forming part of any Shelf Registration Statement, and any
amendment or supplement to such Prospectus, does not, during the Shelf
Registration Period, include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements, in the light of the circumstances under which they were
made, not misleading.
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(c) (1) The Company shall advise the Purchasers and the
Holders and, if requested by the Purchasers or any such Holder,
confirm such advice in writing:
(i) when a Shelf Registration Statement and any
amendment thereto has been filed with the Commission and when
the Shelf Registration Statement or any post-effective
amendment thereto has become effective; and
(ii) of any request by the Commission for amendments
or supplements to the Shelf Registration Statement or the
Prospectus included therein or for additional information.
(2) The Trust and the Company shall advise the Purchasers
and the Holders and, if requested by the Purchasers or any such
Holder, confirm such advice in writing:
(i) of the issuance by the Commission of any stop
order suspending the effectiveness of the Shelf Registration
Statement or the initiation of any proceedings for that
purpose;
(ii) of the receipt by the Trust or the Company of
any notification with respect to the suspension of the
qualification of the Securities included therein for sale in
any state or the initiation or threatening of any proceeding
for such purpose; and
(iii) of the happening, during the Shelf Registration
Period, of any event that requires the making of any changes
in the Shelf Registration Statement or the Prospectus so
that, as of such date, the Registration Statement and the
Prospectus do not contain an untrue statement of a material
fact and do not omit to state a material fact required to be
stated therein or necessary to make the statements therein
(in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading (which advice
shall be accompanied by an instruction to suspend the use of
the Prospectus until the requisite changes have been made).
(d) Each of the Trust and the Company shall use its best
efforts to prevent the issuance, and if issued
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to obtain the withdrawal, of any order suspending the effectiveness of
any Shelf Registration Statement at the earliest possible time.
(e) The Trust and the Company shall furnish to each Holder
of Securities included within the coverage of any Shelf Registration
Statement, without charge, at least one copy of such Shelf
Registration Statement and any post-effective amendment thereto
(including any reports or other documents incorporated therein by
reference), including financial statements and schedules, and, if the
Holder so requests in writing, all exhibits (including those
incorporated by reference).
(f) The Trust and the Company shall, during the Shelf
Registration Period, deliver to each Holder of Securities included
within the coverage of any Shelf Registration Statement, without
charge, as many copies of the Prospectus (including each preliminary
Prospectus) included in such Shelf Registration Statement and any
amendment or supplement thereto as such Holder may reasonably request;
and each of the Trust and the Company consents to the use of the
Prospectus or any amendment or supplement thereto by each of the
selling Holders of Securities in connection with the offering and sale
of the Securities covered by the Prospectus or any amendment or
supplement thereto during the Shelf Registration Period.
(g) Prior to any offering of Securities pursuant to any
Shelf Registration Statement, the Trust and the Company shall register
or qualify or cooperate with the Holders of Securities included
therein and their respective counsel in connection with the
registration or qualification of such Securities for offer and sale
under the securities or blue sky laws of such states as any such
Holders reasonably request in writing and do any and all other acts or
things necessary or advisable to enable the offer and sale in such
states of the Securities covered by such Shelf Registration Statement;
provided, however, that neither the Trust nor the Company will 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 to taxation in any such
jurisdiction where it is not then so subject.
(h) Unless the applicable Securities shall be in
book-entry only form, the Trust and the Company shall
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cooperate with the Holders of Securities to facilitate the timely
preparation and delivery of certificates representing Securities to be
sold pursuant to any Shelf Registration Statement free of any
restrictive legends and in such permitted denominations and registered
in such names as Holders may request in connection with the sale of
Securities pursuant to such Shelf Registration Statement.
(i) Upon the occurrence of any event contemplated by
Section 3(c)(1)(ii) or 3(c)(2)(iii) above, the Trust and the Company
shall promptly prepare a post-effective amendment to any Shelf
Registration Statement or an amendment or supplement to the related
Prospectus or file any other required document so that, as thereafter
delivered to purchasers of the Securities included therein, the
Prospectus will not include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. If the Trust or the Company notifies the Holders of
the occurrence of any event contemplated by Section 3(c)(2)(iii)
above, the Holders shall suspend the use of the Prospectus until the
requisite changes to the Prospectus have been made.
(j) Not later than the effective date of any Shelf
Registration Statement hereunder, the Trust and the Company shall
provide a CUSIP number for the HIGH TIDES and, in the event of and at
the time of any distribution thereof to Holders, the HIGH TIDES
Debentures, registered under such Shelf Registration Statement, and
provide the applicable Trustee with certificates for such Securities,
in a form eligible for deposit with The Depository Trust Company.
(k) The Trust and the Company shall use their best efforts
to comply with all applicable rules and regulations of the Commission
and shall make generally available to their security holders or
otherwise in accordance with Section 11(a) of the Securities Act as
soon as practicable after the effective date of the applicable Shelf
Registration Statement an earning statement satisfying the provisions
of Section 11(a) of the Securities Act.
(l) The Trust and the Company shall cause the Indenture,
the Declaration and the Guarantee to be qualified under the Trust
Indenture Act in a timely manner.
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(m) The Trust and the Company may require each Holder of
Securities to be sold pursuant to any Shelf Registration Statement to
furnish to the Trust and the Company such information regarding the
Holder and the distribution of such Securities as the Trust and the
Company may from time to time reasonably require for inclusion in such
Shelf Registration Statement.
(n) The Trust and the Company shall, if requested,
promptly incorporate in a Prospectus supplement or post-effective
amendment to a Shelf Registration Statement, such information as the
Managing Underwriters reasonably agree should be included therein and
to which the Trust and the Company do not reasonably object and shall
make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after they are
notified of the matters to be incorporated in such Prospectus
supplement or post-effective amendment.
(o) The Trust and the Company shall enter into such
customary agreements (including underwriting agreements in customary
form) to take all other appropriate actions in order to expedite or
facilitate the registration or the disposition of the Securities, and
in connection therewith, if an underwriting agreement is entered into,
cause the same to contain indemnification provisions and procedures
substantially identical to those set forth in Section 5 hereof (or
such other customary provisions and procedures acceptable to the
Managing Underwriters, if any) with respect to all parties to be
indemnified pursuant to Section 5 hereof.
(p) The Trust and the Company shall (i) make reasonably
available for inspection by the Holders of Securities to be registered
thereunder, any underwriter participating in any disposition pursuant
to such Shelf Registration Statement, and any attorney, accountant or
other agent retained by such Holders or any such underwriter, all
relevant financial and other records, pertinent corporate documents
and properties of the Trust and the Company and its subsidiaries as
shall be requested in connection with the discharge of their due
diligence obligations; (ii) cause the Company's officers, directors
and employees and any relevant Trustees to supply at the Company's
expense all relevant information reasonably requested by such Holders
or any such underwriter, attorney, accountant or agent in connection
with any such Shelf Registration
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Statement as is customary for similar due diligence examinations;
provided, however, that any information that is designated in writing
by the Trust and the Company in good faith as confidential at the time
of delivery of such information shall be kept confidential by such
Holders or any such underwriter, attorney, accountant or agent, unless
such disclosure is made in connection with a court proceeding or
required by law, or such information becomes available to the public
generally or through a third party without an accompanying obligation
of confidentiality; and provided further that the foregoing inspection
and information gathering shall, to the greatest extent possible, be
coordinated on behalf of the Holders and the other parties entitled
thereto by one counsel designated by and on behalf of such Holders and
other parties; (iii) make such representations and warranties to the
Holders of Securities registered thereunder and the underwriters, if
any, in form, substance and scope as are customarily made by the
issuers to underwriters in primary underwritten offerings and covering
matters as are customarily covered in representations and warranties
requested in primary underwritten offerings including, but not limited
to, those set forth in the Purchase Agreement; (iv) obtain opinions of
counsel to the Trust and the Company and updates thereof (which
counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the Managing Underwriters, if any)
addressed to each selling Holder and the underwriters, if any,
covering such matters and with such exceptions as are customarily
covered or taken in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such Holders and
underwriters (it being agreed that the matters to be covered by such
opinion shall include, without limitation, as of the date of the
opinion and as of the effective date of the Shelf Registration
Statement or most recent post-effective amendment thereto, as the case
may be, a statement by such counsel regarding the absence from such
Shelf Registration Statement and the prospectus included therein, as
then amended or supplemented, including the documents incorporated by
reference therein, of an untrue statement of a material fact or the
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading);
(v) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
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subsidiary of the Company or of any business acquired by the Company
for which financial statements and financial data are, or are required
to be, included in the Shelf Registration Statement), addressed to
each such Holder of Securities registered thereunder and the
underwriters, if any, in customary form and covering matters of the
type customarily covered in "cold comfort" letters in connection with
primary underwritten offerings; and (vi) deliver such documents and
certificates as may be reasonably requested by any such Holders and
the Managing Underwriters, if any, including those to evidence
compliance with Section 3(i) and with any customary conditions
contained in the underwriting agreement or other agreement entered
into by the Trust and the Company. The foregoing actions set forth in
clauses (iii), (iv), (v) and (vi) of this Section 3(p) shall be
performed at (A) the effectiveness of such Shelf Registration
Statement and each post-effective amendment thereto and (B) each
closing under any underwritten offering to the extent required under
any related underwriting or similar agreement.
(q) Each of the Trust and the Company will use its best
efforts to cause the Common Stock relating to such Shelf Registration
Statement to be listed on each securities exchange, over-the-counter
market, or respective counterpart if any, on which any shares of
Common Stock are then listed.
(r) The Trust and the Company shall, in the event that any
broker-dealer registered under the Exchange Act shall underwrite any
Securities or participate as a member of an underwriting syndicate or
selling group or "assist in the distribution" (within the meaning of
the Rules of Fair Practice and the By-Laws of the National Association
of Securities Dealers, Inc. ("NASD")) thereof, whether as a Holder of
such Securities or as an underwriter, a placement or sales agent or a
broker or dealer in respect thereof, or otherwise, assist such
broker-dealer in complying with the requirements of such Rules and
By-Laws, including, without limitation, by (A) if such Rules or
By-Laws, including Schedule E thereto, shall so require, engaging a
"qualified independent underwriter" (as defined in such Schedule) to
participate in the preparation of the Shelf Registration Statement
relating to such Securities, to exercise usual standards of due
diligence in respect thereto, (B) indemnifying any such qualified
independent underwriter to the extent of the
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indemnification of underwriters provided in Section 5 hereof and (C)
providing such information to such broker-dealer as may be required in
order for such broker-dealer to comply with the requirements of the
Rules of Fair Practice of the NASD.
(s) The Trust and the Company shall use their best efforts
to take all other steps necessary to effect the registration, offering
and sale of the Securities covered by the Shelf Registration Statement
contemplated hereby.
4. Registration Expenses. Except as otherwise provided in
Section 6, the Company shall bear all fees and expenses incurred in connection
with the performance of the obligations of the Company and the Trust under
Sections 2 and 3 hereof and shall bear, or reimburse the Purchasers or the
Holders for, the reasonable fees and disbursements of one counsel designated in
connection with the filing of the Shelf Registration Statement, up to a maximum
of $50,000. Notwithstanding anything to the contrary herein contained, each
holder of Securities shall pay all registration expenses to the extent required
by applicable law.
5. Indemnification and Contribution. (a) In connection
with any Shelf Registration Statement, the Trust and the Company, jointly and
severally, agree to indemnify and hold harmless the Purchasers, each Holder of
HIGH TIDES covered thereby (including the Purchasers) and each person who
controls the Purchasers or any such Holder within the meaning of either the
Securities Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Securities Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Shelf Registration Statement as originally filed
or in any amendment thereof, or in any preliminary prospectus or Prospectus, or
in any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that (i) the Company
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and the Trust will not be liable in any case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished
to the Company by or on behalf of the Purchasers or any such Holder
specifically for inclusion therein and (ii) the foregoing indemnity, with
respect to any untrue statement or alleged untrue statement or omission or
alleged omission made in any preliminary prospectus relating to a Shelf
Registration Statement, shall not inure to the benefit of any Holder (or any
person controlling such Holder) from whom the person asserting any such loss,
claim, damage or liability purchases any of the Securities that are the subject
thereof if such person did not receive a copy of the final prospectus (or the
final prospectus as supplemented) at or prior to the written confirmation of
the sale of such Securities to such person and the untrue statement or alleged
untrue statement or omission or alleged omission contained in the preliminary
prospectus was corrected in the final prospectus (or the final prospectus as
supplemented). This indemnity agreement will be in addition to any liability
which the Company or the Trust may otherwise have.
The Trust and the Company, jointly and severally, also agree
to indemnify or contribute to Losses (as defined below) of, as provided in
Section 5(d), any underwriters of Securities registered under the Shelf
Registration Statement, their officers, directors, employees and agents and
each person who controls such underwriters on substantially the same basis as
that of the indemnification of the Purchasers and the selling Holders provided
in this Section 5(a) and shall, if requested by any Holder, enter into an
underwriting agreement reflecting such agreement, as provided in Section 3(o)
and Section 6 hereof.
(b) Each Holder of Securities covered by a Shelf
Registration Statement (including the Purchasers) severally agrees to indemnify
and hold harmless (i) the Trust and the Company, (ii) each of the directors of
the Company, (iii) each of its officers who signs such Shelf Registration
Statement and (iv) each person who controls the Trust or the Company within the
meaning of either the Securities Act or the Exchange Act to the same extent as
the foregoing indemnity from the Trust and the Company, but only in respect of
written information relating to such Holder furnished to the Company by or on
behalf of such Holder specifically for inclusion in the documents referred to
in the foregoing indemnity. This indemnity agreement will be
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in addition to any liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section 5 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 5, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve the indemnifying party from any liability it may have to any
indemnified party otherwise than under paragraph (a) or (b) above. In case any
such action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of such indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section 5 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action.
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section 5 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, then each applicable indemnifying party,
in lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses") to
which such indemnified party may be subject in such proportion as is
appropriate to reflect the relative benefits received by such indemnifying
party, on the one hand, and such indemnified party, on the other hand, from
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the Initial Placement and the Shelf Registration Statement which resulted in
such Losses; provided, however, that in no case shall the Purchasers or any
subsequent Holder of any Securities be responsible, in the aggregate, for any
amount in excess of the amount by which the net proceeds received by such
Holders from the sale of the Securities pursuant to the Registration Statement
exceeds the amount of damages which such Holders have otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the indemnifying party and the
indemnified party shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Relative fault
shall be determined by reference to whether any alleged untrue statement or
omission relates to information provided by the indemnifying party, on the one
hand, or by the indemnified party, on the other hand. The parties agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), 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. For purposes of this Section 5, each person who controls a
Holder within the meaning of either the Securities Act or the Exchange Act
shall have the same rights to contribution as such Holder, and each person who
controls the Company or the Trust within the meaning of either the Securities
Act or the Exchange Act, each officer of the Company who shall have signed the
Shelf Registration Statement and each director of the Company shall have the
same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section 5 will remain in full
force and effect, regardless of any investigation made by or on behalf of any
Holder or the Company or the Trust or any of the officers, directors,
employees, agents or controlling persons referred to in Section 5 hereof, and
will survive the sale by a Holder of Securities covered by the Shelf
Registration Statement. The obligations of the
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Trust and the Company under this Section shall be in addition to any liability
that the Trust and the Company may otherwise have.
6. Underwritten Offering. If, pursuant to written notice
delivered to the Company by the holders of a majority in aggregate liquidation
amount of the HIGH TIDES, a majority in aggregate principal amount of the HIGH
TIDES Debentures or a majority of holders of the Common Stock, as the case may
be, registered pursuant to a Shelf Registration, such holders so elect, the
offer and sale of any such HIGH TIDES, HIGH TIDES Debentures and/or Common
Stock may be effected in the form of an underwritten offering. In any such
underwritten offering, the investment banker or bankers and manager or managers
that will administer the offering will be selected by, and the underwriting
arrangements with respect thereto will be approved by, the Company; provided,
however, that such investment bankers and managers and underwriting
arrangements must be reasonably satisfactory to the Holders of a majority of
the Securities to be included in such offering. The Company shall not, in any
event, be obligated to arrange for more than one underwritten offering during
the Shelf Registration Period. No Holder may participate in any underwritten
offering contemplated hereby unless (i) such Holder (a) agrees to sell such
Holder's Securities in accordance with any approved underwriting arrangements,
(b) completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents
required under the terms of such approved underwriting arrangements and (ii) at
least 20% of the outstanding Securities are included in such underwritten
offering. The Holders participating in any underwritten offering shall be
responsible for any expenses customarily borne by selling securityholders,
including underwriting discounts and commissions and fees and expenses of
counsel to the selling securityholders and shall reimburse the Trust and the
Company for the fees and disbursements of their counsel, their independent
public accountants and any printing expenses incurred in connection with such
underwritten offering. Notwithstanding the foregoing or the provisions of
Section 3(n) hereof, upon receipt of a request from the Managing Underwriter or
a representative of Holders of a majority of the Securities outstanding to
prepare and file an amendment or supplement to the Shelf Registration Statement
and Prospectus in connection with an underwritten offering, the Company may
delay the filing of any such amendment or supplement for up to 90 days if the
Company in good faith has a valid business reason for such delay.
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7. Changes to the Applicable Rate Under Certain
Circumstances. (a) The Applicable Rate at which interest is paid on the HIGH
TIDES Debentures (including in respect of amounts accruing during any Deferral
Period), and distributions are paid on the HIGH TIDES shall be adjusted as
follows, if any of the following events occur (each such event in clauses (i)
through (iii) below, a "Registration Default"):
(i) if a Shelf Registration Statement is not filed with
the Commission on or prior to the 60th day following the Closing Date;
(ii) if the Shelf Registration Statement is not declared
effective on or prior to the 120th day following the Closing Date;
(iii) if (A) after the Shelf Registration Statement is
declared effective, such Shelf Registration Statement ceases to be
effective prior to the end of the Shelf Registration Period (except as
permitted in paragraph (b) of this Section 7) or (B) such Shelf
Registration Statement or the related Prospectus ceases to be usable
in connection with resales of Securities covered by such Shelf
Registration Statement prior to the end of the Shelf Registration
Period (except as permitted in paragraph (b) of this Section 7)
because either (1) any event occurs as a result of which the related
Prospectus forming part of such Shelf Registration Statement would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in light of the
circumstances in which they were made not misleading or (2) it shall
be necessary to amend such Shelf Registration Statement, or supplement
the related Prospectus, to comply with the Securities Act or the
Exchange Act or the respective rules thereunder.
The Applicable Rate will increase following the occurrence of
each Registration Default set forth in clauses (i), (ii) and (iii) above from
and including the next day following each such Registration Default, in each
case by .50% per annum of the principal amount or liquidation amount, as
applicable, of the Securities without prejudice to any other claim that any
Holder may have for any failure by the Company to obtain or maintain continuous
effectiveness of a Shelf Registration Statement in accordance with the terms of
this Registration Agreement. The increase in the Applicable Rate attributable
to each Registration Default shall cease to be effective from the
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date such Registration Default is cured, and the Applicable Rate shall be
reduced at such time to the Applicable Rate in effect immediately prior to such
Registration Default; provided, however, in the event a Registration Default
occurs prior to the Reset Date and is cured on or after the Reset Date, the
Applicable Rate shall be the Term Rate from the date such Registration Default
is cured.
(b) Notwithstanding anything in Section 7(a) to the
contrary, the Company may prohibit offers and sales of Registrable Securities
at any time if
(i) (A) it is in possession of material non-public
information, (B)(x) the Board of Directors of the Company or (y) the
Chief Financial Officer and the General Counsel of the Company,
determine in good faith that disclosure of such material non-public
information at such time would not be in the best interests of the
Company, and (C)(x) the Chief Executive Officer of the Company or (y)
the Chief Financial Officer and the General Counsel of the Company,
determine that such prohibition is necessary in order to avoid a
requirement to disclose such material non-public information; or
(ii) the Company has made a public announcement relating to
an acquisition or business combination transaction including the
Company and/or one or more of its Subsidiaries (A) that is material to
the Company and its Subsidiaries taken as a whole (and for such
purpose no transaction shall be deemed material unless, on a pro forma
basis and after giving effect thereto, consolidated assets or
consolidated revenues of the Company and its Subsidiaries as of the
end of or for the most recently completed fiscal year would be
increased by at least 20%) and (B) the Board of Directors of the
Company or the Chief Executive Officer or the Chief Financial Officer
of the Company determines in good faith that offers and sales of
Registrable Securities prior to the consummation of such transaction
(or such earlier date as the Board of Directors or the Chief Executive
Officer or the Chief Financial Officer of the Company shall determine)
is not in the best interests of the Company;
provided that during any period of prohibition neither the Company nor any
other Person to whom the Company shall have given registration rights with
respect to shares of Common Stock shall be entitled to make offers and sales of
Common Stock pursuant to a registration statement filed under the
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Securities Act, other than pursuant to an employee stock purchase plan, stock
option or other employee benefit plan or a dividend re-investment plan of the
Company (each period during which any prohibition of offers and sales of
Registrable Securities is in effect pursuant to clause (i) or (ii) of this
Section 7(b) is referred to herein as a "Suspension Period").
A Suspension Period shall commence on and include the date on
which the Company provides written notice to holders of Registrable Securities
that offers and sales of Registrable Securities cannot be made in accordance
with this Section 7(b) and shall end on the date on which each such holder of
Registrable Securities either receives copies of a prospectus supplement, or is
advised in writing by the Company that offers and sales of Registrable
Securities and use of the Prospectus may be resumed; provided, however, that
all Suspension Periods pursuant to clause (i) of this Section 7 in the
aggregate shall not exceed 60 days during any period of twelve consecutive
calendar months (nor more than 20 consecutive days for any one Suspension
Period) and each Suspension Period shall be followed by at least ten Business
Days during which no Suspension Period is in effect.
(c) A Registration Default referred to in Section
7(a)(iii) shall be deemed not to have occurred and be continuing in relation to
the Shelf Registration Statement or the related Prospectus if (i) such
Registration Default has occurred solely as a result of (x) the filing of a
post-effective amendment to such Shelf Registration Statement to incorporate
annual audited financial information with respect to the Company where such
post-effective amendment is not yet effective and needs to be declared
effective to permit Holders to use the related Prospectus or (y) the occurrence
of other material events or developments with respect to the Trust or the
Company that would need to be described in such Registration Statement or the
related Prospectus and (ii) in the case of clause (y), the Trust and the
Company are proceeding promptly and in good faith to amend or supplement such
Registration Statement and related Prospectus to describe such events;
provided, however, that in any case, if such Registration Default occurs for a
continuous period in excess of 45 days, the Applicable Rate shall increase by
.50% per annum of the principal amount or the liquidation amount, as
applicable, in accordance with paragraph (a) above from the first day of such
45-day period until the date on which such Registration Default is cured.
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8. Miscellaneous.
(a) No Inconsistent Agreements. The Trust and the Company
have not, as of the date hereof, entered into, nor shall they on or after the
date hereof, enter into, any agreement with respect to their securities or
otherwise that is inconsistent with the rights granted to the Holders herein 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,
qualified, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, unless the Trust and the Company have
obtained the written consent of the Purchasers.
(c) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telex, telecopier, or air courier guaranteeing overnight
delivery:
(1) if to a Holder, at the most current address given by
such Holder to the Company in accordance with the provisions of this
Section 8(c), which address initially is, with respect to each Holder,
the address of such Holder maintained by the Registrar under the
Indenture, with respect to the HIGH TIDES Debentures, or the
Declaration, with respect to the HIGH TIDES, with a copy in a like
manner to Credit Suisse First Boston Corporation;
(2) if to the Purchasers, initially at the address set
forth in the Purchase Agreement; and
(3) if to the Trust or the Company, initially at its
address set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given when received.
The Purchaser or the Trust and the Company by notice to the
other may designate additional or different addresses for subsequent notices or
communications.
(d) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of the
parties and the Holders, including, without the need for an express assignment
or any consent by the Trust or the Company thereto, subsequent Holders of
Securities. The Trust and the Company hereby
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agree to extend the benefits of this Agreement to any Holder of Securities and
any such Holder may specifically enforce the provisions of this Agreement as if
an original party hereto.
(e) 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.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed in said State.
(h) Severability. In the event that any one of more of the
provisions contained herein, or the application thereof in any circumstances,
is held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
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Please confirm that the foregoing correctly sets forth the
agreement between the Company, the Trust and you.
Very truly yours,
BUDGET GROUP CAPITAL TRUST, by
BUDGET GROUP, INC. as
Depositor
by /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: CFO
BUDGET GROUP INC.,
by /s/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
Title:Chairman and CEO
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The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION, Acting on
behalf of itself and as the
Representative of the
several Purchasers
by /s/ X.X. Xxxxx
-------------------------------------------
Name: X.X. Xxxxx
Title: Managing Director
