EXHIBIT 10.2
EXECUTION COPY
THIS INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE, dated as
of March 29, 2002 (this "Instrument") among BUDGET GROUP, INC., a Delaware
corporation (the "Company") in its capacities as issuer (the "Issuer") under the
Indenture (as hereinafter defined) and as depositor (the "Depositor") under the
Trust Agreement (as hereinafter defined), and WILMINGTON TRUST COMPANY, a
Delaware banking corporation, as successor trustee under the Indenture and as
successor property trustee under the Trust Agreement (the "Successor Trustee"),
THE BANK OF NEW YORK, a New York banking corporation, as resigning indenture
trustee under the Indenture (the "Resigning Indenture Trustee") and resigning
property trustee under the Trust Agreement (the "Resigning Property Trustee" and
together with the Resigning Indenture Trustee, the "Resigning Trustees" and each
individually a "Resigning Trustee").
WITNESSETH:
WHEREAS, (i) the Issuer and the Resigning Indenture Trustee entered
into that certain Indenture dated as of June 19, 1998 (the "Indenture"); (ii)
the Depositor, the Resigning Indenture Trustee, the Resigning Property Trustee
and the other Administrative Trustees named therein entered into that certain
Amended and Restated Declaration of Trust dated as of June 19, 1998, relating to
the Budget Group Capital Trust (the "Trust Agreement" and together with the
Indenture, the "Agreements"); and
WHEREAS, (i) Section 6.10(b) of the Indenture provides that the
Resigning Indenture Trustee may resign at any time by giving written notice
thereof to the Issuer, (ii) Section 5.6(e) of the Trust Agreement provides that
the Resigning Property Trustee may resign at any time by giving written notice
thereof to the Depositor and the Trust (the aforementioned provisions are
collectively referred to herein as the "Resignation Provisions"); and
WHEREAS, each Resigning Trustee, pursuant to the applicable
Resignation Provisions, has given such written notice to the relevant parties on
March 14, 2002 and March 14, 2002, a copy of each such notice of which is
attached hereto as Exhibit A, which resignation shall create a vacancy in the
office of the applicable trustee; and
WHEREAS, (i) Section 6.10(e) of the Indenture provides that the
Issuer shall promptly appoint a successor to fill a vacancy in the office of
Indenture Trustee under the Indenture, (ii) Section 5.6(f) of the Trust
Agreement provides that the holders of the Common Securities shall promptly
appoint a successor to fill the vacancy in the office of Property Trustee; and
WHEREAS, the Resigning Trustee was appointed Delaware Trustee,
Registrar and Paying Agent by the relevant parties under the applicable
Agreements; and
WHEREAS, the relevant parties wish to appoint the Successor Trustee
as Successor Delaware Trustee, Successor Property Trustee, Successor Registrar
and Successor Paying Agent under the applicable Agreements; and
WHEREAS, the Successor Trustee is willing to accept such
appointments on the terms and conditions set forth herein and under the
applicable Agreements; and
WHEREAS, the Successor Trustee is qualified to act as such successor
under the applicable Agreements.
NOW, THEREFORE, pursuant to the provisions of the Agreements and in
consideration of the premises and the covenants herein contained, it is agreed
among the parties hereto as follows:
1. The Company, as Issuer and Depositor hereby accepts the resignation of
the Resigning Trustee and its resignation as Delaware Trustee, Registrar and
Paying Agent and, pursuant to the authority vested in it by the Resignation
Provisions, hereby appoints the Successor Trustee as successor to the Resigning
Trustee under the Agreements, with all the estate, properties, rights, powers,
trusts, duties and obligations heretofore vested in such Resigning Trustee under
the relevant Agreement. The Successor Trustee designates it corporate trust
office presently located at Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, as the office or agency in Wilmington, Delaware,
where High Tides Debentures (as defined in the Indenture) may be presented for
payment, registration of transfer and exchange and as the office where notices
and demands to or upon (i) the Issuer in respect of the Indenture or the High
Tides Debentures may be served and (ii) where Trust Securities (as defined in
the Indenture) may be presented for payment, registration of transfer and
exchange and as the office where notices and demands to or upon the Trust in
respect of the Trust Agreement or the Trust Securities may be served. The
Resigning Trustee's resignation shall be effective as of the opening of business
on the date first above written upon the execution and delivery hereof by each
of the parties hereto.
2. The applicable Resigning Trustee represents and warrants to the
Successor Trustee that:
(a) $300,000,000 of High Tides Debentures remains outstanding as
of the effective date hereof in respect of the Indenture and
$300,000,000 of Trust Securities remains outstanding as of the
effective date hereof in respect of the Trust Agreement.
(b) It has made, or promptly will make available to the applicable
Successor Trustee the documents listed on Exhibit B hereto.
The notices to holders of Trust Securities listed on Exhibit B
constitute all notices delivered by the Resigning Property
Trustee to such holders.
(c) No covenant or condition contained in the Agreements has been
waived by the applicable Resigning Trustee or, to the best of
the knowledge of the Responsible Officers of the applicable
Resigning Trustee, by the holders of the percentage in
aggregate principal amount of the High Tides
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Debentures required by the Indenture or by the holders of the
requisite liquidation amount of Trust Securities required by
the Trust Agreement, as the case may be, to effect any such
waiver.
(d) As of the effective date of this Instrument, the Resigning
Trustee in such capacity, will hold no property under the
Agreements.
(e) This Instrument has been duly authorized, executed and
delivered on behalf of the Resigning Trustee and constitutes
its legal, valid and binding obligation.
(f) Each person who authenticated the High Tides Debentures or the
Trust Securities was duly elected, qualified and acting as an
officer of the applicable Resigning Trustee and empowered to
authenticate the High Tides Debentures or the Trust
Securities, as the case may be, at the respective times of
such authentication and the signature of such person or
persons appearing on such High Tides Debentures or Trust
Securities, as the case may be, is each person's genuine
signature.
(g) To the best of the knowledge of the Responsible Officers of
the Resigning Trustees' Corporate Trust and Agency Group, no
event has occurred and is continuing which is, or after notice
or lapse of time would become an Event of Default under
Section 5.01 of the Indenture or Section 1.01 of the Trust
Agreement.
3. The Successor Trustee represents and warrants to the Company and the
Resigning Trustee that:
(a) It is qualified to act as Indenture Trustee and Property
Trustee, under the provisions of the relevant Agreements to
which it will become subject.
(b) This Instrument has been duly authorized, executed and
delivered on behalf of such Successor Trustee and constitutes
its legal, valid and binding obligation.
4. The Successor Trustee hereby accepts its appointment under the
applicable Agreements and accepts the trusts created trusts thereby, and assumes
all rights, powers, duties and obligations of such Resigning Trustee thereunder.
The Successor Trustee will perform the applicable trusts and will exercise the
applicable rights, powers, duties, and obligations upon the terms and conditions
set forth in the applicable agreements.
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5. The Successor Trustee hereby accepts the designation of its corporate
trust offices set forth in Section 1 hereto as the office or agency: (i) where
the High Tides Debentures may be presented for payment, registration of transfer
and exchange and as the office where notices and demands to or upon the Issuer
in respect of the Indenture or the High Tides Debentures may be served, and (ii)
where the Trust Securities may be presented for payment, registration of
transfer and exchange and as the office where notices and demands to or upon the
Trust in respect of the Trust Agreement and the Trust securities may be served.
6. The Resigning Trustee hereby confirms, assigns, transfers and sets over
to the applicable Successor Trustee upon the trusts expressed in the Agreements,
any and all moneys and all the rights, powers, trusts, duties and obligations
which the Resigning Trustee now holds under and by virtue of the Agreements. The
Resigning Indenture Trustee acknowledges that it relinquishes any lien it may
have upon all property or funds held or collected by it to secure any amounts
due it pursuant to the provision of Section 6.07 of the Indenture.
7. The Company, as Issuer and Depositor, hereby joins in the execution
hereof for the purpose of more fully and certainly vesting in and confirming to
each Successor Trustee, said rights, powers, duties, trusts and obligations.
8. The Resigning Trustees hereby agree, upon the request of any Successor
Trustee, to execute, acknowledge and deliver such further instruments of
conveyance and assurance and to do such other things as may be required for more
fully and certainly vesting and confirming in such Successor Trustee all of the
properties, rights, powers, duties and obligations of such Successor Trustee
under the applicable Agreements.
9. Promptly after the execution and delivery of this Instrument, the
Company shall cause a notice, the form of which is annexed hereto as Exhibit C,
to be sent to each holder of High Tide Debentures and Trust Securities, as the
case may be, and to the agent or representative for the holders of all
Designated Senior Debt.
10. This Instrument does not constitute a waiver or assignment by the
Resigning Trustee of any compensation, reimbursement, expenses or indemnity to
which it is or may be entitled pursuant to the Agreements nor does it constitute
a waiver by the Issuer or Depositor of any defenses available to it in respect
of any such compensation, reimbursement or indemnification obligation. The
Issuer acknowledges its obligation set forth in Section 6.07 of the Indenture to
indemnify the Resigning Indenture Trustee for, and to hold the Resigning
Indenture Trustee harmless against, any loss, liability and expense incurred
without negligence or bad faith on the part of the Resigning Indenture Trustee
and arising out of or in connection with the acceptance or administration of the
Trusts evidenced by the Indenture (which obligations shall survive the execution
and delivery hereof); it being understood and agreed that the foregoing shall
not be deemed to create any additional obligations of the Issuer beyond those
set forth in the Indenture. The Depositor acknowledges its obligations set forth
in Section 10.4 of the Trust Agreement to indemnify the Resigning Property
Trustee against, any loss, liability and expense incurred without negligence or
willful misconduct on the part of the Resigning Property Trustee or arising out
of or in connection with the exercise or performance of their duties under the
Trust Agreement (which obligations shall survive the execution and delivery
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hereof); It being understood and agreed that the foregoing shall not be deemed
to create any additional obligations of the Depositor beyond those set forth in
the Trust Agreement. The Successor Trustee shall be entitled to compensation for
its services as provided on Schedule A, attached hereto. The Issuer acknowledges
and reaffirms its obligations to the Successor Trustee as set forth in Section
6.07 of the Indenture and the Depositor acknowledges and reaffirms its
obligations to the Successor Trustee as set forth in Section 10.4 of the Trust
Agreement, which obligations shall survive the execution hereof.
11. Terms not otherwise defined in this Instrument shall have the
definitions given thereto in the Agreements.
12. The effect and meaning of this Instrument and the rights of all
parties hereunder shall be governed by, and construed in accordance with, the
laws of the State of Delaware, without regard to choice-of-law principles of the
law of such state that would require the application of the laws of a
jurisdiction other than such state.
13. This Instrument may be countersigned in any number of counterparts,
each executed counterpart constituting an original but together only one
instrument.
14. By execution and delivery hereof, Budget Group Capital Trust, as sole
holder of the Common Securities issued under the Trust Agreement, hereby
consents to the appointment of the Successor Trustee as successor to the
Resigning Property Trustee hereunder.
This Agreement and the resignations, appointments and acceptances effected
hereby shall be effective as of the close of business on March 29, 2002.
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IN WITNESS WHEREOF, the parties have caused this Instrument to be duly
executed all as of the day and year first above written.
BUDGET GROUP, INC.
as Issuer and Depositor
By: /s/ Xxxxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President & Treasurer
THE BANK OF NEW YORK, as
Resigning Delaware Trustee
By: /s/ Xxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
WILMINGTON TRUST COMPANY, as
Successor Indenture Trustee and Successor
Property Trustee, Successor Delaware Trustee,
Successor Registrar and Successor Paying Agent
By: /s/ Xxxxxx Xxxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
Acknowledged and Agreed:
BUDGET GROUP CAPITAL, INC.,
as Sole Holder of the Common Securities
By: /s/ Xxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxx
Title: Administrative Trustee
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EXHIBIT A
Resignation Letter
Reference is made to that certain Amended and Restated Declaration of
Trust dated as of June 19, 1998 (the "Trust Agreement"), among Budget Group,
Inc., as depositor and debenture issuer, and the Trustees named therein.
Capitalized terms used herein and not defined shall have the meanings assigned
to such terms in the Trust Agreement.
This letter will serve as the notice of resignation of the Property
Trustee pursuant to Section 5.6 of the Trust Agreement, to become effective in
accordance with and pursuant to the terms of the Trust Agreement.
Very truly yours,
THE BANK OF NEW YORK
as Property Trustee
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
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Resignation Letter
Reference is made to that certain Indenture dated as of June 19, 1998 (the
"Indenture"), between Budget Group, Inc., as issuer, and The Bank of New York,
as indenture trustee (the "Trustee"). Capitalized terms used herein and not
defined shall have the meanings assigned to such terms in the Indenture.
This letter will serve as the Trustee's notice of resignation pursuant to
Section 6.10 of the Indenture, to become effective in accordance with and
pursuant to the terms of the Indenture.
Very truly yours,
THE BANK OF NEW YORK
as Indenture Trustee
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
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EXHIBIT B
List of Documents
1. Indenture dated as of June 19, 1998, between the Issuer and the Resigning
Indenture Trustee.
2. Amended and Restated Declaration of Trust dated as of June 19, 1998 among
the Depositor, the Resigning Property Trustee, the Resigning Delaware
Trustee and the Administrative Trustees named therein.
3. Files of Closing documents.
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EXHIBIT C
[COMPANY LETTERHEAD]
NOTICE OF APPOINTMENT
OF SUCCESSOR TRUSTEE
To the Holders of Budget Group, Inc HIGH TIDES Debentures due 2028
NOTICE IS HEREBY GIVEN, pursuant to Section 6.10 of the Indenture dated as of
June 19, 1998 by and between Budget Group, Inc. (the "Company") and The Bank of
New York, as Trustee, that The Bank of New York has resigned as Trustee under
the Indenture.
Pursuant to Section 6.11, of the Indenture, Wilmington Trust Company, a banking
corporation and trust company duly organized and existing under the laws of the
State of Delaware, has accepted appointment as successor Trustee under the
Indenture. The Corporate Trust Office of Wilmington Trust Company is located at
Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
The Bank of New York's resignation as Trustee and Wilmington Trust Company's
appointment as successor Trustee were effective as of the close of business on
March __, 2002.
Dated: New York, New York
_____ __, 2002
Very truly yours,
Budget Group, Inc.
By:______________________
Name:
Title:
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To the Holders of
BUDGET GROUP CAPITAL TRUST
6 1/4% CONVERTIBLE PREFERRED SECURITIES
REMARKETABLE TERM INCOME DEFERRABLE EQUITY SECURITIES (HIGH TIDES)
(LIQUIDATION AMOUNT $50 PER HIGH TIDE)
GUARANTEED BY, AND CONVERTIBLE INTO CLASS A COMMON STOCK OF,
BUDGET GROUP, INC.
NOTICE IS HEREBY GIVEN that BUDGET GROUP, INC. (the "Company") has
received a notice of resignation from THE BANK OF NEW YORK, as Property Trustee
(the "Resigning Property Trustee") under the Trust Agreement dated as of June
19, 1998 (the "Trust Agreement"), such resignation to be effective March __,
2002. Capitalized terms used and not defined shall have the meanings set forth
in the Trust Agreement.
NOTICE IS HEREBY FURTHER GIVEN that pursuant to Section 5.6 of the Trust
Agreement, the Holders of the Common Securities have appointed WILMINGTON TRUST
COMPANY ("Wilmington"), as successor Property Trustee under the Trust Agreement.
Wilmington has, pursuant to Section 5.6 of the Trust Agreement, accepted such
appointment to be effective March __, 2002. The address of the Corporate Trust
Office of Wilmington is set forth below. Said office has also been designated as
the office or agency of the Issuer where notices and demands to or upon the
Issuer in respect of the Securities and the Agreement may be served. Securities
being sent to the successor Property Trustee for payment, registration of
transfer or exchange should be sent to the following address:
Wilmington Trust Company
Xxxxxx Square North, 0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Issuer Services
Dated: _____ __, 2002 BUDGET GROUP, INC.
By:
---------------------------
Name:
Title:
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SCHEDULE A
BUDGET GROUP, INC.
SCHEDULE OF FEES
TO ACT AS
SUCCESSOR INDENTURE, PROPERTY AND DELAWARE TRUSTEE, REGISTRAR & PAYING AGENT
HIGH TIDES DEBENTURES DUE 2028
NOTE:
Subject to a legal and administrative review of the governing documents and
acceptable indemnification for our fees and expenses from a creditworthy entity.
Out of pocket expenses (including outside counsel's fees and expenses in
connection with the closing and in connection with any post-closing matters) are
additional and are billed separately within 30 days from closing. Wilmington
Trust requests that whenever possible, the Initial Fee and the first year's
Annual Administration Fee be paid on the closing date by wire transfer per the
following wire transfer instructions: Wilmington Trust Company, Wilmington,
Delaware; ABA No. 000000000; for credit to the account of Corporate Trust
Administration - Income Account; Account No. 9974-0 (Income); Attn: Xxxxx
Xxxxxx; Ref: Trustee Fees and Expenses for [transaction name]. Thereafter, the
Annual Administration Fee is due and payable annually in advance on each
anniversary of the closing date. Transaction Fees are due and payable annually
in arrears. All fees are non-refundable and will not be prorated in the event of
an early termination of the Trust. In the event that the transaction does not
close, Wilmington Trust reserves the right to be paid its Initial Fee. All fees
quoted are guaranteed for a period of 90 days.
AS INDENTURE, PROPERTY & DELAWARE TRUSTEE
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Initial Charge: (payable in advance) Waived
Covers the acceptance of a Trust created or modified by an Indenture or
Resolution ("Instrument").
These charges include a complete study of drafts of Instruments and all
supporting documents in connection therewith, conferences until a final
Instrument is agreed upon, execution of the final Instrument and authentication
of securities in either temporary or definitive form.
Annual Administration Charges: (payable in advance) $ 10,000.00
Covers normal administration functions including the maintenance of
administrative records, duties in connection with the security provisions of the
Instrument, and the consideration and decision with respect to various normal
administrative questions. The Trustee reserves the right to determine which
services may be considered "normal".
Default Administration Charges: (if applicable)
Charges are accrued at an hourly rate, as follows:
Vice President $375.00 per hour
Assistant Vice President $290.00 per hour
Financial Services Officer $225.00 per hour
Covers default administration functions including the maintenance of
administrative records, duties in connection with the security provisions of the
Instrument, and the consideration and decision with respect to various default
administrative questions.
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AS REGISTRAR AND PAYING AGENT
Annual Charge: (payable in advance) Waived
Annual Account Maintenance Fee Waived
(Accounts maintained at beginning of each billing period plus all accounts
opened during period)
Covers maintenance of securityholders' name and address file, recording
certificate transactions, correspondence with and research for securityholders,
payment of interest, placement, maintenance and removal of stop transfer
protection, replacement of lost or stolen certificates, examination and passing
upon legal transfers and maintaining all control records, including one audit
confirmation.
Transaction Fees:
a. Purchase, sale, withdrawal, maturities
calls and puts of domestic securities $15.00
b. Physical delivery of domestic securities $50.00
c. Purchase of Eurodollar certificate of deposit $65.00
d. Principal amortizing securities
(per pool/per month) $10.00
e. Wire charge (per transfer)
Outgoing* $25.00
Incoming* $10.00
Transfer or Re-registration Fee: $1,000
Termination Fee: To be determined**
E-Room Technology To be determined(1)
*Transfers made by associate banks may result in additional wire charges.
**Wilmington Trust reserves the right to charge a fee relating to the
termination of the Trust and the final distribution of the property held by the
trust; such fee to be determined at the time of termination.
(1) Wilmington Trust will provide a confidential `cyber-room' service on the
internet with 24x7 worldwide access to manage transaction related documents
during pre-closing, closing and post closing. Service can be secured via a
separate agreement and is not contingent upon Wilmington Trust's participation
in the transaction.
AGREED TO & ACCEPTED _____________________
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DATE _____________________
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