EXHIBIT 10.1
EXECUTION COPY
AGREEMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE, dated as of March
29, 2002, by and among Budget Group, Inc., a corporation duly organized and
existing under the laws of the State of Delaware and having its principal office
at 000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxx 00000 (the "Company"),
The Bank of New York, a banking corporation duly organized and existing under
the laws of the State of New York and having its principal corporate trust
office at 0 Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, as resigning Trustee
("Resigning Trustee"), and Xxxxx Fargo Bank Minnesota, National Association, a
national banking association duly organized and existing under the laws of the
United States of America and having its principal corporate trust office at
Sixth Street and Marquette Avenue (MAC # N9303-120), Xxxxxxxxxxx, XX 00000, as
successor Trustee ("Successor Trustee").
RECITALS:
WHEREAS, the Company's 9 1/8% Senior Notes Due 2006 (the "Securities"),
issued in the original aggregate principal amount of $400,000,000, of which
there remains outstanding the aggregate principal amount of $400,000,000, were
authorized and issued pursuant to an Indenture, dated as of April 13, 1999, by
and among the Company and Resigning Trustee (the "Indenture");
WHEREAS, Section 7.08 of the Indenture provides that the Trustee may at
any time resign by giving notice of such resignation to the Company;
WHEREAS, Section 7.08 of the Indenture provides that, if the Trustee shall
resign, the Company shall promptly appoint a successor Trustee;
WHEREAS, Section 7.08 of the Indenture provides that any successor Trustee
appointed in accordance therewith shall deliver to the Company and the retiring
Trustee a written acceptance of its appointment, and thereupon the resignation
of the retiring Trustee shall become effective and such successor Trustee shall
become vested with all rights, powers and duties of the Trustee under the
Indenture;
WHEREAS, Section 7.08 of the Indenture provides that the retiring Trustee
shall, upon receipt of the successor Trustee's acceptance of appointment,
promptly transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided for in Section 7.07 of the Indenture;
WHEREAS, Resigning Trustee was appointed Registrar and Paying Agent under
the Indenture;
WHEREAS, Resigning Trustee desires to resign as Trustee, Registrar and
Paying Agent under the Indenture;
WHEREAS, the Company desires to appoint Successor Trustee as Trustee,
Registrar and Paying Agent under the Indenture to succeed Resigning Trustee
thereunder; and
WHEREAS, Successor Trustee is willing to accept such appointment as
Trustee, Registrar and Paying Agent under the Indenture;
NOW, THEREFORE, the Company, Resigning Trustee and Successor Trustee, for
and in consideration of the premises and of other good valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, hereby consent and
agree as follows:
ARTICLE I
RESIGNING TRUSTEE
SECTION 1.1. Pursuant to Section 7.08 of the Indenture, Resigning Trustee
hereby notifies the Company that Resigning Trustee is hereby resigning as
Trustee under the Indenture. Resigning Trustee hereby also resigns as Registrar
and Paying Agent under the Indenture.
SECTION 1.2. Resigning Trustee hereby represents and warrants to Successor
Trustee that:
(a) No covenant or condition contained in the Indenture has been waived
by Resigning Trustee or, to the best of the knowledge of the
responsible officers of Resigning Trustee's Corporate Trust Group,
by the Holders of the percentage in aggregate principal amount of
the Securities required by the Indenture to effect any such waiver.
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(b) There is no action, suit or proceeding pending or, to the best of
the knowledge of the responsible officers assigned to Resigning
Trustee's Corporate Trust Group, threatened against Resigning
Trustee before any court or any governmental authority arising out
of any action or omission by Resigning Trustee as Trustee, Registrar
or Paying Agent under the Indenture.
(c) As of the effective date of this Agreement, Resigning Trustee will
hold no property under the Indenture.
(d) Pursuant to the Indenture, the currently authorized and issued
aggregate principal amount of the Securities described in the first
recital of this Agreement, which is outstanding as of the effective
date hereof, was duly executed and authenticated.
(e) Each person who so authenticated the Securities was, at the time of
such authentication, duly elected, qualified and acting as an
officer of the Trustee under the Indenture and empowered to
authenticate the Securities, and the signature of such person or
persons appearing on such Securities is each such person's genuine
signature.
(f) This Agreement has been duly authorized, executed and delivered on
behalf of Resigning Trustee and constitutes its legal, valid and
binding obligation.
(g) No event has occurred and is continuing which is, or after notice or
lapse of time would become, an Event of Default under the Indenture.
(h) Interest on the Securities has been paid through October 1, 2001.
SECTION 1.3. Resigning Trustee hereby assigns, transfers, delivers and
confirms to Successor Trustee all right, title and interest of Resigning Trustee
in and to the trust under the Indenture, all the rights, powers and duties of
the Trustee under the Indenture and all property and money held by such
Resigning Trustee under the Indenture. Resigning Trustee shall execute and
deliver such further instruments and shall do such other things as Successor
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Trustee may reasonably require so as to more fully and certainly vest and
confirm in Successor Trustee all the rights, powers and duties hereby assigned,
transferred, delivered and confirmed to Successor Trustee as Trustee, Registrar
and Paying Agent under the Indenture.
SECTION 1.4. Resigning Trustee shall deliver to Successor Trustee, as of
or immediately after the effective date hereof, all of the documents listed on
Exhibit A hereto.
ARTICLE II
THE COMPANY
SECTION 2.1. The Company hereby certifies that the Company is, and the
officer of the Company who has executed this Agreement is, duly authorized to:
(a) accept Resigning Trustee's resignation as Trustee, Registrar and Paying
Agent under the Indenture; (b) appoint Successor Trustee as Trustee, Registrar
and Paying Agent under the Indenture; and (c) execute and deliver such
agreements and other instruments as may be necessary or desirable to effectuate
the succession of Successor Trustee as Trustee, Registrar and Paying Agent under
the Indenture.
SECTION 2.2. The Company hereby accepts the resignation of Resigning
Trustee as Trustee, Registrar and Paying Agent under the Indenture. Pursuant to
Section 7.08 of the Indenture, the Company hereby appoints Successor Trustee as
Trustee under the Indenture, to succeed to, and hereby vests Successor Trustee
with, all the rights, powers and duties of the Resigning Trustee under the
Indenture as Trustee from the effective date of its appointment forward. The
Company hereby also appoints Successor Trustee as Registrar and Paying Agent
under the Indenture from the effective date of its appointment forward.
SECTION 2.3. The Company hereby represents and warrants to Resigning
Trustee and Successor Trustee that:
(a) The Company is a corporation duly and validly organized and existing
pursuant to the laws of the State of Delaware.
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(b) The Indenture was validly and lawfully executed and delivered by the
Company; the Indenture has not been amended or modified; the
Indenture is in full force and effect; and the Securities are
validly issued securities of the Company.
(c) The Company has not waived any covenant or condition contained in
the Indenture.
(d) No event has occurred and is continuing which is, or after notice or
lapse of time would become, an Event of Default under the Indenture.
(e) There is no action, suit or proceeding pending or, to the best of
the Company's knowledge, threatened in writing against the Company
before any court or any governmental authority arising out of any
action or omission by the Company under the Indenture.
(f) This Agreement has been duly authorized, executed and delivered on
behalf of the Company and constitutes its legal, valid and binding
obligation.
(g) All conditions precedent relating to the appointment of Xxxxx Fargo
Bank Minnesota, National Association as successor Trustee, Registrar
and Paying Agent under the Indenture have been complied with by the
Company.
ARTICLE III
SUCCESSOR TRUSTEE
SECTION 3.1. Successor Trustee hereby represents and warrants to Resigning
Trustee and to the Company that:
(a) Successor Trustee is qualified and eligible under Section 7.10 of
the Indenture to act as Trustee under the Indenture.
(b) This Agreement has been duly authorized, executed and delivered on
behalf of Successor Trustee and constitutes its legal, valid and
binding obligation.
SECTION 3.2. (a) Pursuant to Section 7.08 of the Indenture, Successor
Trustee hereby accepts its appointment as successor Trustee under the Indenture
and accepts the rights, powers and duties of Resigning
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Trustee as Trustee under the Indenture and with respect to all property and
money held or to be held under the Indenture, upon the terms and conditions set
forth therein, as Trustee under the Indenture from the effective date of its
appointment forward. Successor Trustee hereby accepts its appointment as
Registrar and Paying Agent under the Indenture.
(b) Within a reasonable time after the effective date of this Agreement,
Successor Trustee shall cause a notice, substantially in the form of Exhibit B
annexed hereto, to be sent to each Holder of the Securities in accordance with
Section 7.08 of the Indenture.
SECTION 3.3. References in the Indenture to "corporate trust office" or
other similar terms shall be deemed to refer to the corporate trust office of
Successor Trustee at Xxxxx Fargo Bank Minnesota, National Association, Corporate
Trust Services (MAC # N9303-120), Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, XX 00000, or any other office of Successor Trustee at which, at any
particular time, its corporate trust business shall be administered.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1. Capitalized terms used but not otherwise defined herein shall
have the respective meanings assigned to them in the Indenture.
SECTION 4.2. This Agreement and the resignation, appointment and
acceptance effected hereby shall be effective as of the close of business on the
date first set forth herein above; provided, that the resignation of Resigning
Trustee and the appointment of Successor Trustee as Registrar and Paying Agent
under the Indenture shall be effective 10 business days after the date first
above written.
SECTION 4.3. Notwithstanding the resignation of Resigning Trustee effected
hereby, the Company shall remain obligated under Section 7.07 of Indenture to
compensate, reimburse and indemnify Resigning Trustee in connection with its
prior trusteeship under the Indenture. The Company also acknowledges its
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obligations to Successor Trustee as set forth in Section 7.07 of the Indenture,
which obligations shall survive the execution hereof.
SECTION 4.4. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York but without giving effect to
applicable principles of conflicts of law to the extent that the application of
the laws of another jurisdiction would be required thereby.
SECTION 4.5. This Agreement may be executed in any number of counterparts,
each of which shall be an original, but such counterparts shall together
constitute but one and the same instrument.
SECTION 4.6. The Company, Resigning Trustee and Successor Trustee hereby
acknowledge receipt of an executed and acknowledged counterpart of this
Agreement and the effectiveness hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement of
Resignation, Appointment and Acceptance to be duly executed as of the day and
year first above written.
Company: BUDGET GROUP, INC.
By: /s/ Xxxxxxxxx X. Xxxxxx
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Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President & Treasurer
Resigning Trustee: THE BANK OF NEW YORK
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
Successor Trustee: XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
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EXHIBIT A
To the best of the ability of Resigning Trustee, documents to be delivered to
Successor Trustee:
1. Copy of the most recent of each of the SEC reports delivered by the
Company pursuant to the Indenture, if any.
2. The executed Indenture.
3. File of Closing Documents.
4. Copy of the most recent Compliance Certificate delivered pursuant to
the Indenture, if any.
5. Certified List of Holders as of the date of this Agreement,
certificate detail and all "stop transfers" and the reason for such
"stop transfers" (or, alternatively, if there are a substantial
number of registered Holders, the computer tape reflecting the
identity of such Holders).
6. Copies of any official notices sent by the Trustee to all the
Holders of the Securities pursuant to the terms of the Indenture
during the past twelve months and a copy of the most recent
Trustee's Annual Report to Holders.
7. Such other documents as Successor Trustee may reasonably require in
order to transfer the appointment to it.
EXHIBIT B
NOTICE
To the Holders of Budget Group, Inc.'s (the "Company") 9 1/8% Senior Notes Due
2006 (the "Securities"):
NOTICE IS HEREBY GIVEN, pursuant to the Indenture, dated as of April 13, 1999
(the "Indenture"), by and between 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 7.08 of the Indenture, the Company has appointed Xxxxx Fargo
Bank Minnesota, National Association ("Xxxxx Fargo"), a national banking
association duly organized and existing under the laws of the United States of
America, as successor Trustee under the Indenture, which appointment has been
accepted and become effective. The corporate trust office of Xxxxx Fargo is
located at Corporate Trust Services (MAC # N9303-120), Xxxxx Xxxxxx xxx
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, XX 00000.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as successor Trustee
Dated: ________________, 2002
