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EXHIBIT 10.2
, dated June 19, 1998
(this "Agreement"), among (i) Budget Group, Inc., a
Delaware Corporation (the "Company"), (ii) Budget
Group Capital Trust, a Delaware business trust (the
"Issuer Trust"), (iii) The Bank of New York, as
Tender Agent, (iv) Xxxxx X. Xxxxx, Xxxxxx X. Xxxxxx
and Xxxxxxx X. Xxxxxx, as Administrative Trustees,
and (v) Credit Suisse First Boston Corporation, a
Massachusetts corporation (together with its
successors and assigns, the "Remarketing Agent").
RECITALS
WHEREAS the Issuer Trust is a statutory business trust that
has been created under Delaware law and exists pursuant to the Trust Agreement
(as defined below) and a certificate of trust filed with the Delaware Secretary
of State; and
WHEREAS the Issuer Trust is issuing on today's date or has
heretofore issued $300,000,000 (or up to $345,000,000 to the extent the
over-allotment option is exercised in full) aggregate Liquidation Amount (as
defined below) of Remarketable Term Income Deferable Equity Securities (the
"HIGH TIDES") representing preferred undivided beneficial interests in the
assets of the Issuer Trust and has used the proceeds of the HIGH TIDES,
together with the proceeds of $9,278,400 (or up to $10,670,150 to the extent
the over-allotment option is exercised in full) aggregate Liquidation Amount of
its Common Securities (as defined in the Trust Agreement) of the Issuer Trust,
to purchase $309,278,400 (or up to $355,670,150 to the extent the
over-allotment option is exercised in full) aggregate principal amount of HIGH
TIDES Debentures Due 2028 (the "HIGH TIDES Debentures") issued by the Company
pursuant to the Indenture (as defined below);
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NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions. (a) The following terms shall have the
meanings indicated below:
"Additional Amounts" has the meaning specified in the
Indenture.
"Administrative Trustees" has the meaning specified in the
definition of Trust Agreement in this Section 1.
"Broker-Dealer" has the meaning assigned to such term in
Section 5.
"Broker-Dealer Agreement" means an agreement between the
Remarketing Agent and a Broker-Dealer in substantially the form of Annex 1.
"Business Day" means a day other than (a) a Saturday or
Sunday, (b) 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 (c) a day
on which the Property Trustee's or Debenture Trustee's Corporate Trust Office
(as defined in the Trust Agreement with respect to the Property Trustee and in
the Indenture with respect to the Debenture Trustee) is closed for business.
"Cause" means any one of the following events or circumstances
shall have occurred and be continuing: (i) the bankruptcy or insolvency of the
Remarketing Agent; or (ii) the Remarketing Agent shall cease to be registered as
a broker-dealer under the Exchange Act.
"Commission" means the Securities and Exchange Commission or
any successor thereto.
"Common Stock" has the meaning assigned to such term in the
Indenture.
"Common Stock Offering" has the meaning specified in the
Indenture.
"Company" has the meaning assigned to such term in the
preamble to this Agreement.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Quotation Agent as having a maturity comparable to the
Remaining Life that would be utilized, at the time of selection and in
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accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the Remaining Life. If no
United States Treasury security has a maturity which is within a period from
three months before to three months after the Reset Date, the two most closely
corresponding United States Treasury securities shall be used as the Comparable
Treasury Issue, and the rate being calculated shall be interpolated or
extrapolated on a straight-line basis, rounding to the nearest month using such
securities.
"Comparable Treasury Price" means (A) the arithmetic mean of
five Reference Treasury Dealer Quotations, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (B) if the Debenture
Trustee obtains fewer than five such Reference Treasury Dealer Quotations, the
arithmetic mean of all such Reference Treasury Dealer Quotations.
"Convertible Remarketing" has the meaning specified in Section
2(d).
"Debenture Trustee" means The Bank of New York, as Trustee
under the Indenture (including its successors as Debenture Trustee thereunder).
"Disclosure Documents" means the Registration Statement, or if
the Registration Statement is not required to be filed with the Commission
pursuant to Section 2(b), the Nonregistered Offering Documents, including any
preliminary offering document or Preliminary Prospectus, as applicable, and as
each may be amended or supplemented.
"Effective Time" means the date and time as of which the
Registration Statement or its most recent post-effective amendment is declared
effective by the Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
"Failed Final Remarketing" has the meaning specified in
Section 2(d).
"Final Remarketing" has the meaning specified in Section 2(d).
"Final Remarketing Period" means the period beginning on the
Business Day immediately following the Initial Remarketing Termination Date and
ending on the day which is three Business Days (or such shorter period as shall
be agreed to by the Remarketing Agent) prior to
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June 15, 2005 (or, if such day is not a Business Day, the next succeeding
Business Day).
"Global Security Certificate" has the meaning assigned to (i)
the term "Global Preferred Securities" in the Trust Agreement if the Subject
Securities are HIGH TIDES or (ii) the term "Global Security" in the Indenture if
the Subject Securities are HIGH TIDES Debentures.
"HIGH TIDES" has the meaning assigned to such term in the
recitals to this Agreement.
"HIGH TIDES Debentures" has the meaning assigned to such term
in the recitals to this Agreement.
"Indenture" means the Indenture, dated as of June 19, 1998,
between the Company and the Debenture Trustee, as such indenture may from time
to time be amended, modified or supplemented.
"Initial Failed Remarketing" has the meaning specified in
Section 2(d).
"Initial Remarketing" has the meaning specified in Section
2(d).
"Initial Remarketing Period" means the period beginning on the
first Business Day following the Tender Notification Date and ending on June 1,
2005 (or, if such day is not a Business Day, the next succeeding Business Day).
"Initial Remarketing Termination Date" means June 1, 2005 (or,
if such day is not a Business Day, the next succeeding Business Day).
"Interest" means all quarterly payments, interest on quarterly
payments not paid on the applicable Interest Payment Date and Additional
Amounts, as applicable.
"Interest Payment Date" has the meaning specified in the
Indenture and the Trust Agreement.
"Issuer Trust" has the meaning assigned to such term in the
preamble to this Agreement.
"Liquidation Amount" means, with respect to a HIGH TIDES or
Common Security, its stated liquidation amount of $50.
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"Market Event" means the occurrence of (i) a change in U.S. or
international financial, political or economic conditions or currency exchange
rates or exchange controls as would, in the sole judgment of Remarketing Agent,
be likely to prejudice materially the success of the Remarketing, issue, sale or
distribution of the Subject Securities, or (ii) (A) any change, or any
development or event involving a prospective change, in the condition (financial
or other), business, properties or results of operations of the Company or its
subsidiaries which, in the sole judgment the Remarketing Agent, is material and
adverse and makes it impractical or inadvisable to proceed with completion of
the Remarketing or the sale of and payment for the Subject Securities; (B) any
downgrading in the rating of the Subject Securities or any other debt securities
of the Company by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Securities Act), or any public
announcement that any such organization has under surveillance or review its
rating of the Subject Securities or any other debt securities of the Company
(other than an announcement with positive implications of a possible upgrading,
and no implication of a possible downgrading, of such rating); (C) any
suspension or limitation of trading in securities generally on the New York
Stock Exchange, or any setting of minimum prices for trading on such exchange,
or any suspension of trading of any securities of the Company on any exchange or
in the over-the-counter market; (D) any banking moratorium declared by U.S.
Federal or New York authorities; or (E) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war by
Congress or any other substantial national or international calamity or
emergency if, in the sole judgment of the Remarketing Agent, the effect of any
such outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the Remarketing or the
sale of and payment for the Subject Securities.
"Maximum Rate" means a rate per annum equal to the Treasury
Rate plus 6%.
"Nonconvertible Remarketing" has the meaning specified in
Section 2(d).
"Nonregistered Offering Documents" has the meaning specified
in Section 6(a).
"No Registration Opinion" means an opinion of Securities
Counsel that the securities issuable in the Remarketing do not need to be
registered under the
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Securities Act and that no other filing of any kind is required to be made with
the Commission as a condition to the sale of such securities, which No
Registration Opinion shall be reasonably satisfactory to the Remarketing Agent
and its counsel.
"Notice of Purchasers" means a notice delivered by the
Remarketing Agent on the Reset Date to (i) the Tender Agent if the Subject
Securities are not evidenced by a Global Security Certificate on the Reset Date
or (ii) The Depository Trust Company if the Subject Securities are evidenced by
a Global Security Certificate on the Reset Date, in either case naming the
parties who will purchase the Subject Securities from the Remarketing Agent.
"Offering Circular" means the Confidential Offering Circular,
dated June 16, 1998, relating to the initial offer and sale of the HIGH TIDES.
"Par Amount" means $50 per Subject Security.
"Paying Agent" has the meaning specified in the Trust
Agreement.
"Primary Treasury Dealer" has the meaning specified in the
definition of Quotation Agent in this Section 1.
"Preliminary Prospectus" means each prospectus included in the
Registration Statement, or amendment thereof, before it becomes effective under
the Securities Act and any prospectus which may be filed by the Company with the
Commission pursuant to Rule 424(a) (or any successor applicable rule) of the
rules and regulations under the Securities Act (the "Rules and Regulations") in
connection with the Registration Statement.
"Property Trustee" has the meaning specified in the definition
of Trust Agreement in this Section 1.
"Prospectus" means the final prospectus which will be filed
with the Commission pursuant to Rule 424(b) (or any successor applicable rule)
of the Rules and Regulations and deemed to be a part of the Registration
Statement at the time of its effectiveness under the Securities Act pursuant to
paragraph (b) of Rule 430A (or any successor applicable rule) of the Rules and
Regulations.
"Quotation Agent" means Credit Suisse First Boston Corporation
and its successors; provided, however, that if Credit Suisse First Boston
Corporation shall cease to be a
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primary United States Government securities dealer in The City of New York (a
"Primary Treasury Dealer"), the Company shall substitute therefor another
Primary Treasury Dealer.
"Reference Treasury Dealer" means (i) the Quotation Agent and
(ii) any other Primary Treasury Dealer selected by the Debenture Trustee after
consultation with
the Company.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer, the arithmetic mean, as determined by the
Debenture Trustee of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Debenture Trustee by such Reference Treasury Dealer at 5:00
p.m., New York City time, on the third Business Day preceding the Reset Date.
"Registration Statement" means a registration statement
covering the securities to be issued in the Remarketing filed with the
Commission pursuant to the Securities Act, including any amendments thereto and
any document or other information incorporated by reference therein.
"Remaining Life" means the period beginning on (and
including) the Reset Date and ending on June 15, 2028.
"Remarketing" has the meaning specified in the
recitals to this Agreement.
"Remarketing Agent" has the meaning assigned to such term in
the preamble to this Agreement (including any successor Remarketing Agent).
"Remarketing Conditions" means the following factors: (i)
short-term and long-term market rates and indices of such short-term and
long-term rates, (ii) market supply and demand for short-term and long-term
securities, (iii) yield curves for short-term and long-term securities
comparable to the Subject Securities, (iv) industry and financial conditions
which may affect the Subject Securities, (v) the number of Subject Securities
to be remarketed, (vi) the number of potential purchasers, (vii) the current
ratings by nationally recognized statistical rating organizations of long-term
subordinated debt of the Company and of other outstanding capital securities of
the Company's trust subsidiaries, (viii) the number of shares of Common Stock,
if any, into which the Subject Securities will be convertible and (ix) the
length and type of call protections, if any.
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"Remarketing Notice" has the meaning specified in Section
2(d).
"Reset Date" means June 15, 2005, or, if such date 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.
"Rules and Regulations" has the meaning specified in the
definition of Preliminary Prospectus in this Section 1.
"Securities Act" means the Securities Act of 1933, as amended
from time to time.
"Securities Counsel" means counsel experienced in matters
relating to securities law.
"Subject Securities" means (i) the HIGH TIDES if, on the Reset
Date, the HIGH TIDES Debentures have not been distributed to holders of HIGH
TIDES in connection with a liquidation or dissolution of the Issuer Trust or
(ii) otherwise, the HIGH TIDES Debentures.
"Tender Agent" means (i) the Property Trustee if the Subject
Securities are HIGH TIDES or (ii) the Debenture Trustee if the Subject
Securities are HIGH TIDES Debentures.
"Tender Notification Date" means Friday, May 20, 2005 or, if
such day is not a Business Day, the next succeeding Business Day.
"Term Call Protections" has the meaning assigned to such term
in Section 2(c).
"Term Conversion Ratio" has the meaning assigned to such term
in Section 2(c).
"Term Provisions" has the meaning specified in Section 2(c).
"Term Rate" has the meaning assigned to such term in Section
2(c).
"Treasury Rate" means (i) the yield, under the heading which
represents the average for the week immediately prior to the date of
calculation, appearing in the most recently published statistical release
designated H.15(519) or any successor publication which is published weekly by
the Federal Reserve and which establishes yields
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on actively traded United States Treasury securities adjusted to constant
maturity under the caption "Treasury Constant Maturities," for the maturity
corresponding to the Remaining Life (if no maturity is within three months
before or after the Remaining Life, yields for the two published maturities
most closely corresponding to the Remaining Life shall be determined and the
Treasury Rate shall be interpolated or extrapolated from such yields on a
straight-line basis, rounding to the nearest month) or (ii) if such release (or
any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum equal to
the semiannual equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
the Reset Date. The Treasury Rate shall be calculated by the Remarketing Agent
on the third Business Day preceding the Reset Date.
"Trust Agreement" means the Amended and Restated Declaration
of Trust, dated as of June 19, 1998, among the Company, as Depositor, The Bank
of New York, as Property Trustee (the "Property Trustee"), The Bank of New York
(Delaware), as Delaware Trustee (the "Delaware Trustee"), Xxxxx X. Xxxxx,
Xxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx as Administrative Trustees (the
"Administrative Trustees") and the holders from time to time of undivided
beneficial interests in the assets of the Issuer Trust, as such agreement may
from time to time be amended, modified or supplemented.
(b) Capitalized terms used herein and not otherwise
defined but defined in the Trust Agreement or Indenture shall have the meanings
assigned to such terms in the Trust Agreement or Indenture, as applicable.
2. Acceptance and Performance of Duties. The Remarketing
Agent, the Company, the Administrative Trustees on behalf of the Issuer Trust
and the Tender Agent agree as follows:
(a) The Remarketing Agent will perform the duties and
obligations of Remarketing Agent for the Remarketed Securities as specified in
the Trust Agreement (if the Tendered Securities are the HIGH TIDES), the
Indenture (if the Tendered Securities are the HIGH TIDES Debentures) and in
this Agreement in good faith and in compliance with the provisions of
applicable laws.
(b) The Remarketing Agent will use its best efforts to
remarket all Subject Securities tendered or
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deemed tendered for sale; provided, however, that the Remarketing Agent will
not be obligated to attempt to remarket such Subject Securities, or to
determine the Term Rate pursuant to Section 2(c) below, if (A) in the
Remarketing Agent's judgment any (i) Disclosure Document provided by the Issuer
Trust or the Company in connection with the Remarketing or (ii) document
publicly disclosed (including in a filing pursuant to the Exchange Act) by or
on behalf of the Issuer Trust or the Company, includes any untrue statement of
a material fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, unless the Remarketing Agent is satisfied in its sole
discretion that such statement or omission has been properly corrected, (B)
unless the Company provides a No Registration Opinion to the Remarketing Agent
prior to the Tender Notification Date, the Company and the Trust (if
applicable) shall have failed to have the Registration Statement declared
effective by the Commission on or prior to the Tender Notification Date and
remain effective at least through and including the Reset Date, provided that
the Registration Statement may be declared effective later than the Tender
Notification Date if the Company provides an opinion of Securities Counsel to
the Remarketing Agent to the effect that such Registration Statement need not
become effective until the date the Initial Remarketing Period is required to
commence and the Remarketing Agent consents to such delay or (C) the Company
fails to comply with the requirements set forth in Section 6(c) of this
Agreement. Each Subject Security will be remarketed only at a purchase price
equal to 101% of its Par Amount. The Remarketing Agent may, but except as
provided in Section 11 shall not be obligated to, purchase tendered Subject
Securities for its own account.
(c) The Remarketing Agent has agreed to use its best
efforts to remarket all Subject Securities tendered for Remarketing on the
Tender Notification Date. The Remarketing Agent will establish, effective
beginning on the Reset Date, (i) the rate (the "Term Rate") per annum at which
Interest will accrue on the Subject Securities, (ii) the number of shares of
Common Stock, if any, into which each Subject Security may be converted (the
"Term Conversion Ratio") and (iii) the price, manner and time, if any, at which
the Subject Securities may be redeemed from the proceeds of a Common Stock
Offering (the "Term Call Protections" and together with the Term Rate and the
Term Conversion Ratio, the "Term Provisions"). The Remarketing Agent will use
its best efforts to establish the Term Provisions most favorable to the Company
consistent with the successful remarketing of Subject Securities tendered
there-
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for at a price equal to 101% of the aggregate Par Amount thereof; provided that
each Subject Security will have the same Term Provisions; provided that the
Term Provisions may not permit the Company to redeem the Subject Securities for
a price less than the aggregate Par Amount thereof plus any accrued and unpaid
Interest thereon; and, provided further, that if no Subject Security is
tendered for remarketing on the Tender Notification Date, the Remarketing will
not take place (although the Remarketing will not be deemed to have failed),
and the Remarketing Agent will set the Term Provisions in a manner consistent
with the Remarketing Notice that it believes, in its sole discretion, would
result in a price per Subject Security equal to 101% of its Par Amount.
(d) The remarketing process will commence on the first
Business Day following the Tender Notification Date and will be conducted on
the following schedule and in the
following manner:
At Least 40 Days (May 6, The Issuer Trust shall cause a notice (the
2005), But Not More Than "Remarketing The Issuer Trust shall cause a
60 Days (April 16, 2005) notice (the "Remarketing Notice") to be
Prior to June 15, 2005: sent to holders of the Subject Securities
stating whether it intends to remarket the
Subject Securities as securities which will
be convertible into Common Stock of the
Company (a "Convertible Remarketing") or
which will be nonconvertible (a
"Nonconvertible Remarketing").
Friday, April 20, 2005 Each outstanding Subject Security shall be
through the Tender deemed to have been tendered for
Notification Date remarketing unless the holder thereof has
(Friday, May 20, 2005, given irrevocable notice to the contrary to
or if such day is not a the Tender Agent (which the Tender Agent
Business Day, the next will promptly remit to the Remarketing
succeeding Business Agent). Such irrevocable notice, which may
Day): be telephonic or written, must be
delivered not earlier than 30 days prior to
the Tender Notification Date, and not later
than 5:00 p.m., New York City time, on the
Tender Notification Date. A
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holder's notice of an election to retain
Subject Securities must state the number of
Subject Securities to be retained (which
must be all of the Subject Securities
represented by the applicable certificate,
unless such certificate is a Global
Security Certificate), the number of the
certificate representing the Subject
Securities not to be deemed to have been so
tendered and the number of Subject
Securities represented by such certificate.
Any transferee of a Subject Security for
which such notice has been provided shall
be bound thereby. The failure by a holder
of Subject Securities to give timely notice
of an election to retain all (or, in the
case of a Global Security Certificate, any
part) of such holder's Subject Securities
will constitute the irrevocable tender for
sale in the Remarketing of all the Subject
Securities it holds. A holder of Subject
Securities which has not duly given notice
that it will not tender and retain its
Subject Securities will cease to have any
further rights with respect to such Subject
Securities upon the successful remarketing
thereof, except the right of such holder to
receive an amount equal to (i) from the
proceeds of the Remarketing, or in the
event of a Failed Final Remarketing or upon
the occurrence of certain Market Events,
from the Company, 101% of the aggregate
liquidation amount thereof,
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plus (ii) from the Company, any accrued and
unpaid Inter est thereon to (but excluding)
the Reset Date.
Beginning the First The Remarketing Agent will commence a
Business Day Following Convertible Remarketing or a
the Tender Notification Nonconvertible Remarketing, as the case may
Date: be (in either case, an "Initial
Remarketing"), in accordance with the terms
of this Agreement and pursuant to the
instructions set forth in the Remarketing
Notice. The Remarketing Agent will
determine, and upon request make available
to interested persons nonbinding indications
of, the Term Provisions based upon
then-current Remarketing Conditions. The
Remarketing Agent will solicit and receive
orders from prospective investors to
purchase tendered Subject Securities. The
Initial Remarketing shall be deemed to have
failed (an "Initial Failed Remarketing") if
(i) despite using its best efforts, the
Remarketing Agent is unable to establish,
prior to the Initial Remarketing Termination
Date, a Term Rate which is less than or
equal to the Maximum Rate, (ii) the
Remarketing Agent is excused from
Remarketing the Subject Securities because
of (a) the failure by the Company or the
Issuer Trust to satisfy a condition in this
Agreement or (b) the occurrence of a Market
Event or (iii) there is no Remarketing Agent
on the first day of the Initial Remarketing
Period.
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Remainder of the The Remarketing Agent will continue, if
Initial Remarketing necessary, using its best efforts to
Period: remarket the Subject Securities tendered
for remarketing as described above,
adjusting the non-binding indications of
the Term Provisions necessary to establish
the Term Provisions most favorable to the
Company consistent with remarketing all
Subject Securities tendered therefor at
101% of the Par Amount, until the Initial
Remarketing is completed or is deemed to
have failed. See the definition of an
Initial Failed Remarketing above. Promptly
upon determination of the Term Provisions,
the Remarketing Agent will communicate such
Term Provisions to the Tender Agent, which
will communicate such Term Provisions to
the Issuer Trustees (if the Issuer Trust
has not liquidated), the Issuer Trust (if
the Issuer Trust has not liquidated), the
Debenture Trustee, the Paying Agent, the
Company and each holder (if any) which
timely elected not to tender all of its
Subject Securities for remarketing, by
delivery of a written notice or by
telephone promptly confirmed by telecopy or
writing.
Beginning the First If the Initial Remarketing fails because
Business Day Following the Remarketing Agent was not able to
an Initial Failed establish a Term Rate less than or equal to
Remarketing (if the Maximum Rate prior to the Initial
applicable): Remarketing Termination Date, the
Remarketing Agent will commence a second
remarketing (the "Final Remarketing"),
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which will be a Convertible Remarketing if
the Initial Remarketing was a Nonconvertible
Remarketing and a Nonconvertible Remarketing
if the Initial Remarketing was a Convertible
Remarketing. The Remarketing Agent will
determine, and upon request make available
to interested persons nonbinding indications
of, the Term Provisions based upon
then-current Remarketing Conditions. The
Remarketing Agent will solicit and receive
orders from prospective investors to
purchase tendered Subject Securities. The
Final Remarketing will be deemed to have
failed (a "Failed Final Remarketing") if (i)
despite using its best efforts, the
Remarketing Agent is still not able to
establish a Term Rate less than or equal to
the Maximum Rate prior to the expiration of
the Final Remarketing Period, or (ii) the
Remarketing Agent is excused from
Remarketing the Subject Securities because
of (a) the failure by the Company or the
Issuer Trust to satisfy a condition in this
Agreement or (b) the occurrence of a Market
Event.
Remainder of the Final The Remarketing Agent will continue, if
Remarketing Period (if necessary, to use its best efforts to
applicable): remarket the Subject Securities, as
described above, adjusting the non-binding
indications of the Term Provisions as
necessary to establish the Term Provisions
most favorable to the Company consistent
with remarketing all Subject Securities
tendered therefor
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at 101% of the Par Amount until the Final
Remarketing is completed or is deemed to
have failed. See the definition of a Failed
Final Remarketing above. If the Remarketing
Agent is able to establish a Term Rate less
than or equal to the Maximum Rate during
the Final Remarketing Period, it will
promptly communicate such Term Provisions
to the Tender Agent, which will communicate
such Term Provisions to the Issuer Trustees
(if the Issuer Trust has not liquidated),
the Issuer Trust (if the Issuer Trust has
not liquidated), the Debenture Trustee, the
Paying Agent, the Company and each holder
(if any) which timely elected not to tender
all of its Subject Securities for
remarketing, by delivery of a written
notice or by telephone promptly confirmed
by telecopy or writing.
Reset Date: New holders must deliver the purchase price
for the remarketed securities in same-day
funds to the Remarketing Agent and the
Remarketing Agent, will deliver such
purchase price to the Tender Agent (in like
funds). Payments to tendering holders who
hold Subject Securities in the form of one
or more Global Security Certificates will
be made in the manner provided in the
Offering Circular under "Description of
HIGH TIDES -- Form, Book Entry Procedures
and Transfer." Tendering holders who hold
Subject Securities in certificated form
(other than in
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the form of Global Security Certificates)
must deliver their certificates properly
endorsed for transfer to the Tender Agent
by 2:30 p.m. on the Reset Date (or any
succeeding date) to receive payment of the
purchase price for their Subject
Securities. Subject to compliance with the
preceding two sentences, the Tender Agent
will pay former holders the proceeds of the
Remarketing of their Subject Securities by
the Remarketing Agent. In the event of a
Failed Final Remarketing, the Company will
be required to redeem all outstanding HIGH
TIDES Debentures on the Reset Date at 101%
of the aggregate principal amount thereof,
plus accrued and unpaid Interest thereon,
and, if the HIGH TIDES are still held by
the Property Trustee, the Property Trustee
shall concurrently apply the proceeds of
such redemption to redeem a Like Amount of
HIGH TIDES in accordance with the
provisions of the Trust Agreement. On and
after the Reset Date, the terms of all
Subject Securities, whether or not tendered
for remarketing, will be modified by the
Term Provisions, as the same shall be
established by the Remarketing Agent. If
the Subject Securities are not held by The
Depository Trust Company or its nominee in
the form of one or more Global Security
Certificates, certificates representing
remarketed Subject Securities will be
issued to the purchasers thereof,
irrespective of whether the
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certificates formerly representing such
Subject Securities have been delivered to
the Tender Agent.
3. Representations, Warranties, Covenants and Agreements
of the Company and the Remarketing Agent. (a) The Company represents, warrants,
covenants and agrees with the Remarketing Agent as follows:
(i) the Company has full power and authority to enter into
this Agreement and will have full power and authority to enter into
any agreements which it may enter into in connection with the
Remarketing; this Agreement and the transactions contemplated hereby
have been, and each other such agreement and the transactions
contemplated thereby will be, duly authorized, executed and delivered
by the Company; and this Agreement is, and each such other agreement
will be at the Reset Date, a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms;
(ii) the consummation of the transactions contemplated
herein do not now, and the consummation of the transactions
contemplated in any other agreement entered into by the Company in
connection with the Remarketing will not, at the Reset Date, conflict
with or constitute a breach of, or a default under, or result in the
creation or imposition of any lien, charge or other encumbrance upon
any property or assets of the Issuer Trust, the Company or any of the
Company's subsidiaries pursuant to any contract, indenture,
declaration of trust, deed of trust, mortgage, loan agreement, note,
lease or other instrument or agreement to which the Issuer Trust, the
Company or any of its subsidiaries is or will be a party or by which
it or any of them may be bound, or to which any of the property or
assets of any of them is or will be subject, nor will such actions
result in any violation of the provisions of the by-laws of the
Company or any of its subsidiaries or any statute (including the
Securities Act, the Exchange Act and state securities laws) or any
order, rule or regulation of any court or governmental agency or body
(including the Commission) which has or will have jurisdiction over
the Company or any of its subsidiaries or any of their material
property or assets except for a conflict, breach, default, lien,
charge or encumbrance which could not reasonably be
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expected to have a material adverse effect on the consummation of the
transactions contemplated herein or therein;
(iii) all required consents, rulings and approvals of
governmental authorities (other than "Blue Sky" authorities) required
in connection with the execution and delivery by the Company of this
Agreement and any agreement entered into by the Company in connection
with the transactions contemplated by any Disclosure Documents, and
the performance by the Company of its obligations hereunder and
thereunder, have been obtained and are in full force and effect or, at
the Reset Date, will have been obtained and be in full force and
effect;
(iv) except as disclosed in the Disclosure Documents,
neither the Company nor any of its subsidiaries is or, at the Reset
Date, will be (i) in violation of its by-laws, (ii) in default in any
respect, and no event has occurred or will have occurred which, with
notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition
contained in any contract, indenture, declaration of trust, deed of
trust, mortgage, loan agreement, note, lease or other instrument or
agreement to which it is or will be bound or to which any of its
properties or assets is or will be subject or (iii) in violation of
any law, ordinance, governmental rule, regulation or court decree to
which it or its property or assets may be subject;
(v) the Disclosure Documents, including as provided in
Section 3(x), will not, at the Effective Time and thereafter through
and including the Reset Date, 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;
provided that no representation or warranty is made as to information
contained in or omitted from the Disclosure Documents in reliance upon
and in conformity with written information furnished to the Company by
the Remarketing Agent specifically for inclusion therein;
(vi) the financial statements of the Company contained (or
incorporated by reference) in the Disclosure Documents will present
fairly the financial position of the Company as of the dates
indicated, and the results of operations and changes
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20
in financial position of the Company for the periods covered, in
conformity with generally accepted accounting principles applied on a
consistent basis, except as otherwise set forth therein;
(vii) after the date of the most recent financial statements
of the Company contained (or incorporated by reference) in the
Disclosure Documents, there will not have been any material adverse
change in the condition (financial or other), stockholders' equity,
results of operations or business of the Company and its subsidiaries,
except as disclosed in the Disclosure Documents;
(viii) except as disclosed in the Disclosure Documents, there
will be no legal or governmental proceedings pending at the Reset Date
to which the Company or any of its subsidiaries is a party or of which
any material property or assets of the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, might have a material adverse
effect on the condition (financial or other), stockholders' equity,
results of operations or business of the Company and its subsidiaries,
taken as a whole;
(ix) any description of a contract, indenture, declaration
of trust, deed of trust, mortgage, loan agreement, note, lease or
other instrument or agreement contained in the Disclosure Documents
will be, at the Effective Time and thereafter through and including
the Reset Date, true, complete and correct; and
(x) If the Registration Statement is filed, the
Registration Statement at the Effective Time will conform to the
requirements of the Securities Act and the Rules and Regulations and
will not 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 the Prospectus, as of
the Effective Time and thereafter through and including the Reset
Date, will conform to the requirements of the Securities Act and the
Rules and Regulations and will not include any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that no representation
or warranty is made as to information contained in or
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omitted from any Preliminary Prospectus, the Registration
Statement or the Prospectus in reliance upon and in conformity
with written information furnished to the Company by the
Remarketing Agent specifically for inclusion therein.
(b) The Remarketing Agent represents, warrants, covenants
and agrees with the Company that if it shall not have received a No
Registration Opinion and the Registration Statement shall not be effective on
the Tender Notification Date (or such later date as may be provided in Section
2(b)), the Remarketing Agent will offer and sell the Subject Securities only in
compliance with the federal and state securities laws applicable to
unregistered sales of securities in effect at the time of the Remarketing.
4. Fees and Expenses. (a) The Company agrees to pay to
the Remarketing Agent upon settlement of the transactions contemplated by the
Remarketing (i) as compensation for its services hereunder, a fee equal to 1%
of the aggregate Par Amount of outstanding Subject Securities on the Reset
Date, plus (ii) all out-of-pocket expenses reasonably incurred by the
Remarketing Agent in connection with the performance of its duties; provided
that if both the Initial Remarketing and the Final Remarketing fail, the
Company shall not be required to pay any fees to, or reimburse any
out-of-pocket expenses of, the Remarketing Agent.
(b) The Remarketing Agent acknowledges and agrees that the
performance of its duties hereunder will be without charge to holders or
purchasers of the Subject Securities other than the Company.
5. Broker-Dealer Participation. The Remarketing Agent
shall enter into Broker-Dealer Agreements with all broker-dealers
("Broker-Dealers"), if any, which it selects to have participate in the
remarketing process; provided that (i) such Broker-Dealers agree to comply with
the terms of this Agreement, including the terms of Section 3(b) of this
Agreement, (ii) any fees or commissions paid to the Broker-Dealers shall be
paid by the Remarketing Agent out of the fees it is paid pursuant to Section
4(a), and (iii) the Remarketing Agent agrees to provide to the Company an
executed copy of each Broker-Dealer Agreement. None of the Remarketing Agent,
the Issuer Trust and the Company shall be responsible for the out-of-pocket
expenses of such Broker-Dealers or for ensuring compliance by such
Broker-Dealers with the terms of this Agreement (except, with
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respect to the Remarketing Agent, as specifically set forth in the
Broker-Dealer Agreement).
6. Disclosure Documents and Other Information. (a) If (i)
the Registration Statement is not required to be filed with the Commission
pursuant to the provisions of Section 2(b) of this Agreement and (ii) the
Remarketing Agent determines that it is necessary or desirable to use a
disclosure document in connection with the performance of its obligation to
remarket the Subject Securities, the Remarketing Agent will notify the Company
and the Company will provide to the Remarketing Agent prior to the Tender
Notification Date at the Company's expense a disclosure document or documents
reasonably satisfactory to the Remarketing Agent and its counsel in respect of
the Subject Securities (collectively, and including any documents or other
information incorporated by reference therein, the "Nonregistered Offering
Documents"). The Company will supply the Remarketing Agent at the Company's
expense with such number of copies of the Disclosure Documents as the
Remarketing Agent reasonably requests from time to time. The Company will
supplement and amend the Disclosure Documents so that at all times they will
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements in the Disclosure Documents, in the light
of the circumstances under which they were made, not misleading.
(b) The Company and the Issuer Trust each agrees to
furnish to the Remarketing Agent (i) as promptly as practicable after they are
available, all regular and periodic reports, if any, which the Company or the
Issuer Trust files with the Commission under the Exchange Act and all reports
which the Company or the Issuer Trust provides generally to holders of its
publicly held securities and (ii) from time to time, such other information
concerning the Company and the Issuer Trust as the Remarketing Agent may
reasonably request.
(c) The Company will provide the Remarketing Agent with
such certificates, opinions of counsel, accountants' letters and other support
for the information contained in any Disclosure Documents as the Remarketing
Agent and its counsel may reasonably request.
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(d) If the Registration Statement is filed with the
Commission, the Company agrees that it will:
(i) prepare the Registration Statement in conformity with
the requirements of the Securities Act and the Rules and Regulations;
(ii) cause the Registration Statement to become effective
prior to the Tender Notification Date (or such later date as may be
permitted in accordance with the provisions of Section 2(b));
(iii) prepare the Prospectus in a form approved by the
Remarketing Agent and file the Prospectus in accordance with Rule
424(b) (or any successor applicable rule) under the Securities Act and
Rule 430A(a)(3) (or any successor applicable rule) under the
Securities Act; make no further amendment or any supplement to the
Registration Statement or to the Prospectus except as permitted
herein; advise the Remarketing Agent, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and furnish the
Remarketing Agent with copies thereof; advise the Remarketing Agent,
promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending
the use of any Preliminary Prospectus or the Prospectus, of the
suspension of the qualification of the securities covered by such
Registration Statement for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amending or supplementing
of the Registration Statement or the Prospectus or for additional
information; and in the event of the issuance of any stop order or of
any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification,
promptly use its reasonable best efforts to obtain its withdrawal;
(iv) furnish promptly to the Remarketing Agent and to
counsel for the Remarketing Agent a signed copy of the Registration
Statement as originally filed with the Commission, and each amendment
thereto filed with the Commission, including all consents and exhibits
filed therewith;
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(v) deliver promptly to the Remarketing Agent such number
of the following documents as the Remarketing Agent shall reasonably
request: (1) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto (in
each case excluding exhibits) and (2) each Preliminary Prospectus, the
Prospectus and any amended or supplemented Prospectus; and, if the
delivery of a prospectus is required at any time after the Effective
Time in connection with the offering or sale of the securities covered
by the Registration Statement and if at such time any events shall
have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary to amend or supplement the
Prospectus in order to comply with the Securities Act, notify the
Remarketing Agent and, upon its request, prepare and furnish without
charge to the Remarketing Agent as many copies as the Remarketing
Agent may from time to time reasonably request of an amended or
supplemented Prospectus which will correct such statement or omission
or effect such compliance;
(vi) file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Remarketing
Agent, be required by the Securities Act or requested by the
Commission;
(vii) prior to filing with the Commission any amendment to
the Registration Statement or supplement to the Prospectus or any
Prospectus pursuant to Rule 424 (or any applicable successor rule) of
the Rules and Regulations, furnish a copy thereof to the Remarketing
Agent and counsel for the Remarketing Agent;
(viii) as soon as practicable after the Effective Time, make
generally available to the Company's security holders and deliver to
the Remarketing Agent an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
(or any applicable successor section) of the Securities Act and the
Rules and
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Regulations (including, at the option of the Company, Rule 158 (or any
applicable successor rule));
(ix) promptly from time to time take such action as the
Remarketing Agent may request to qualify the securities covered by the
Registration Statement for offering and sale under the securities laws
of such jurisdictions as the Remarketing Agent may request and to take
all steps necessary to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of the Subject
Securities; provided, however, that in connection therewith the
Company will not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction where
it is not so qualified; and
(x) use its best effort to have the Subject Securities
listed on any securities exchange or quoted in any automated
inter-dealer quotation system reasonably requested by the Remarketing
Agent.
7. Indemnification. (a) The Company will indemnify and
hold harmless the Remarketing Agent against any losses, claims, damages or
liabilities, joint or several, to which the Remarketing Agent may become
subject, under the Securities Act or the Exchange Act 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 any material fact contained in any Disclosure Document, or any amendment or
supplement thereto, or arise out of or are based upon the 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, and will reimburse the Remarketing Agent for any legal or
other expenses reasonably incurred by the Remarketing Agent in connection with
investigating or defending any such loss, claim, damage liability or action as
such expenses are incurred; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any Disclosure Document in
reliance upon and in conformity with written information furnished to the
Company by the Remarketing Agent specifically for use therein.
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(b) The Remarketing Agent will indemnify and hold harmless
the Company and the Issuer Trust against any losses, claims, damages or
liabilities to which the Company or the Issuer Trust may become subject, under
the Securities Act or the Exchange Act 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 any material
fact contained in the Disclosure Documents, or any amendment or supplement
thereto, or arise out of or are based upon the omission or the 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 to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnish to
the Company or the Issuer Trust by the Remarketing Agent specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Company or the Issuer Trust in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under
this Section 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 subsection (a) or (b) above, notify the indemnifying
party of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party otherwise than under subsection (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 the 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 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
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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) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Remarketing Agent on the other from the
Remarketing of the Subject Securities in accordance with this Agreement or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and the Remarketing Agent on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Remarketing
Agent on the other shall be deemed to be in the same proportion as the
aggregate outstanding Liquidation Amount (if the Subject Securities are HIGH
TIDES) or principal amount (if the Subject Securities are HIGH TIDES
Debentures) bear to the fees received by the Remarketing Agent from the Company
under this Agreement. The relative fault 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 or the Remarketing Agent and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which
is the subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), the Remarketing Agent shall not be required to contribute any
amount in excess of the amount
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by which the aggregate outstanding Liquidation Amount (if the Subject
Securities are HIGH TIDES) or principal amount (if the Subject Securities are
HIGH TIDES Debentures) of the Subject Securities remarketed exceeds the amount
of any damages which the Remarketing Agent has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission.
(e) The obligations of the Company under this Section
shall be in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls the Remarketing Agent within the meaning of the Securities Act or the
Exchange Act; and the obligations of the Remarketing Agent under this Section
shall be in addition to any liability which the Remarketing Agent may otherwise
have and shall extend, upon the same terms and conditions, to each person, if
any, who controls the Company within the meaning of the Securities Act or the
Exchange Act.
8. Remarketing Agent's Liabilities. The Remarketing Agent
shall incur no liability to the Company, the Debenture Trustee, the Property
Trustee, the Administrative Trustees, the Delaware Trustee, the Tender Agent or
any holder of Subject Securities for its actions as Remarketing Agent pursuant
to the terms hereof and of the Trust Agreement or Indenture without gross
negligence or in the absence of wilful misconduct. The undertaking of the
Remarketing Agent to remarket any Subject Securities shall be on a "best
efforts" basis.
9. Termination. This Agreement will terminate upon the
earliest to occur of the following: (i) the written agreement of all parties
hereto; (ii) the date that no HIGH TIDES Debenture is outstanding; and (iii)
the day immediately following the Reset Date. The provisions of Sections 7, 8,
11 and 12 hereof will continue in effect as to actions prior to the date of
termination, and each party will pay to the others any amounts owing at the
time of termination.
10. Resignation and Removal; Appointment of Successor. (a)
The Remarketing Agent may resign at any time hereunder by giving at least 30
days' written notice thereof to the Company and the Tender Agent. No successor
need have accepted its appointment for such resignation to be effective.
(b) The Remarketing Agent may be removed at any time for
Cause by the holders of a majority in aggregate Par Amount of the Subject
Securities outstanding, by
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written notice to the Remarketing Agent, the Tender Agent and the Company. No
successor need have accepted its appointment for such removal to be effective.
(c) If the Remarketing Agent resigns or is removed in
accordance with Section 10(b), the Company will use its best efforts to appoint
as the successor Remarketing Agent hereunder an investment bank, broker, dealer
or other organization which, in the judgment of the Company, is qualified to
remarket the Subject Securities and to establish the Term Provisions. If the
Company fails to so appoint a successor Remarketing Agent reasonably promptly,
in light of the proximity of the Tender Notification Date, or if such successor
fails to accept such appointment, the holders of not less than 25% in aggregate
Par Amount of the Subject Securities outstanding, by written notice to the
Tender Agent and the Company, may appoint a successor Remarketing Agent which
is an investment bank, broker, dealer or other organization qualified to
remarket the Subject Securities and to establish the Term Provisions; provided
that for purposes of determining the holders of not less than 25% in aggregate
Par Amount of the Subject Securities outstanding, Subject Securities owned by
the Company, the Issuer Trust or any trustee or administrator of the Issuer
Trust or any affiliate of any of the foregoing shall be disregarded and deemed
not to be outstanding.
(d) A successor Remarketing Agent shall accept its
appointment by executing and delivering a written instrument of acceptance to
the Tender Agent and the Company.
(e) The provisions of Sections 7, 8, 11 and 12 hereof will
continue in effect as to actions of the Remarketing Agent prior to the date of
resignation or removal, and the Remarketing Agent will pay to and have the
right to receive from the other parties hereto any amounts owing at the time of
such event.
(f) The Tender Agent shall provide written notice of each
resignation and each removal of the Remarketing Agent and each appointment of a
successor Remarketing Agent and such successor's acceptance thereof by
first-class mail, postage prepaid, to the holders of the Subject Securities as
their names and addresses appear in the applicable register.
(g) Any corporation or other entity into which the
Remarketing Agent may be merged or converted or with which it may be
consolidated, or any corporation resulting
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from any merger, conversion or consolidation to which the Remarketing Agent may
be a party, or any corporation succeeding to all or substantially all of the
business of the Remarketing Agent, shall be the successor of the Remarketing
Agent hereunder, without the execution or filing of any paper or any further
act on the part of any of the parties hereto.
11. Dealing in Subject Securities by Remarketing Agent.
The Remarketing Agent, either as principal or agent, may buy, sell, own, hold
and deal in Subject Securities, and may join in any action which any owner of
the Subject Securities may be entitled to take with like effect as if it did
not act in any capacity hereunder. Except as provided in the next succeeding
sentence, the Remarketing Agent is under no obligation at any time to purchase
Subject Securities. If the Term Rate is established by the Remarketing Agent
but on the Reset Date the Remarketing Agent is unable to consummate the sale of
one or more Subject Securities tendered for remarketing, the Remarketing Agent
shall purchase such Subject Securities on the Reset Date for 101% of their
aggregate Par Amount; provided that if the inability of the Remarketing Agent
to consummate the sale of one or more Subject Securities tendered for
remarketing is due to the occurrence of a Market Event, the Company shall be
required to cause the redemption of such Subject Securities on the Reset Date
for 101% of their aggregate par amount, plus any accrued and unpaid Interest
thereon to but excluding the Reset Date. The Remarketing Agent agrees that the
purchase of Subject Securities for its own account or the account of its
affiliates will be upon terms no more favorable to it than those pertaining to
the purchase of Subject Securities in the market (which shall be determined by
the Remarketing Agent in its sole discretion) in general at the time of such
purchase and that neither it nor its affiliates will elect to retain Subject
Securities on the Reset Date if the Subject Securities could be remarketed
pursuant to this Agreement on terms more favorable to the Issuer Trust or the
Company than the terms upon which the Remarketing Agent or such affiliates
would continue to hold it. The Remarketing Agent, either as principal or agent,
may also engage in or be interested in any financial or other transaction with
the Issuer Trust or the Company and may act as depository, trustee or agent for
any committee or body of owners of Subject Securities or other obligations of
the Issuer Trust or the Company as freely as if it had no obligations hereunder
or under the Trust Agreement or Indenture.
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12. Records. The Remarketing Agent agrees to keep books
and records relating to its activities as Remarketing Agent in accordance with
standard industry practice.
13. Purchase and Sales by Company. While the Company and
its affiliates may from time to time purchase, hold and sell Subject
Securities, the Company and the Remarketing Agent acknowledge that neither the
Company nor any affiliate of the Company may acquire or bid to acquire Subject
Securities on the Reset Date or submit orders in the Remarketing. The
Remarketing Agent agrees that it will not knowingly remarket any Subject
Securities to the Company or any of its affiliates.
14. Communication of Remarketing Conditions. The
Remarketing Agent agrees, upon request from time to time by any holder of
Subject Securities and to the extent the Remarketing Agent deems advisable, to
advise such holder of current Remarketing Conditions.
15. Notices. Unless otherwise provided herein, all
notices, requests, demands and formal actions hereunder shall be in writing
and mailed or sent by facsimile transmission or delivered, as follows:
If to the Company:
Budget Group, Inc.
000 Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxx 00000
Attention: Secretary
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
If to the Tender Agent:
The Bank of New York, as Tender Agent
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
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If to the Issuer Trust:
c/o Budget Group, Inc.
Attention: Secretary
000 Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
If to the Remarketing Agent:
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Transactions Advisory Group -
Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Each of the above parties may, by written notice given
hereunder to the others, designate any further or different addresses or
telecopier numbers to which subsequent notices, certificates, requests or other
communications shall be sent. In addition, the parties hereto may agree to any
other means by which subsequent notices, certificates, requests or other
communications may be sent.
16. Successors and Assigns. This Agreement shall be
binding upon, inure to the benefit of and be enforceable by, the respective
successors and assigns of the Company, the Issuer Trust, the Tender Agents the
Remarketing Agent and the holders of the Subject Securities.
17. The Tender Agent. In serving as the Tender Agent
hereunder, the Debenture Trustee shall be entitled to the protections and
benefits of Sections 6.01(d), 6.03, 6.06 and 12.07 of the Indenture and the
Property Trustee shall be entitled to the protections and benefits of Sections
3.09, 3.10 and 10.04 of the Trust Agreement.
18. Entire Agreement. Except as otherwise provided herein,
this Agreement contains the entire agreement between the parties relating to
the subject matter hereof, and there are no other representations,
endorsements, promises, agreements or understandings, oral, written or
inferred, among the parties.
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19. Descriptive Headings. The descriptive headings of the
several sections of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
20. Amendment; Waiver. (a) This Agreement shall not be
deemed or construed to be modified, amended, rescinded, canceled or waived, in
whole or in part, except by a written instrument signed by a duly authorized
representative of each of the Company, the Tender Agent the Administrative
Trustees and the Remarketing Agent.
(b) Failure of any party to exercise any right or remedy
under this Agreement in the event of a breach hereof by the other party shall
not constitute a waiver of any such right or remedy with respect to any
subsequent breach.
21. Severability. If any clause, provision or section of
this Agreement shall be ruled invalid or unenforceable by any court of
competent jurisdiction, the invalidity or unenforceability of such clause,
provision or section shall not affect any of the remaining clauses, provisions
or sections hereof.
22. Execution in Counterparts. This Agreement may be
executed in several counterparts, each of which shall be deemed an original and
all of which shall constitute but
34
one and the same instrument. It shall not be necessary in making proof of this
Agreement to produce or account for more than one such counterpart signed by
the party against which enforcement of this Agreement is sought.
35
35
23. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES HERETO SHALL BE
GOVERNED BY, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
BUDGET GROUP, INC.,
by /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chairman and CEO
BUDGET GROUP CAPITAL TRUST,
by /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Administrative
Trustee
by /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Administrative
Trustee
by /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Administrative
Trustee
by /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Administrative
Trustee
36
THE BANK OF NEW YORK, as Tender
Agent,
by /s/ Xxxx Xx Xxxxxx
-----------------------------------
Name: Xxxx Xx Xxxxxx
Title: Assistant Vice President
CREDIT SUISSE FIRST BOSTON
CORPORATION,
by /s/ X.X. Xxxxx
-----------------------------------
Name: X. X. Xxxxx
Title: Managing Director
