Exhibit 4.6
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT dated April 19, 2006 (the "Agreement") is
entered into by and among Avis Budget Car Rental, LLC, a Delaware limited
liability company and Avis Budget Finance, Inc., a Delaware corporation
(together, the "Company"), the guarantors listed in Schedule 1 hereto (the
"Guarantors"), J.P. Morgan Securities Inc. ("JPMorgan"), and the other initial
purchasers listed on Schedule 2 hereto (collectively, with JPMorgan, the
"Initial Purchasers").
The Company, the Guarantors and the Initial Purchasers are parties to the
Purchase Agreement dated April 11, 2006 (the "Purchase Agreement"), which
provides for the sale by the Company to the Initial Purchasers of
(i) $375,000,000 aggregate principal amount of the Company's 7.625% Senior
Notes due 2014 (the "2014 Notes"), $250,000,000 in aggregate principal amount
of the Company's Floating Rate Senior Notes due 2014 (the "Floating Rate
Notes"), and $375,000,000 aggregate principal amount of the Company's 7.750%
Senior Notes due 2016 (together with the 2014 Notes and the Floating Rate
Notes, the "Securities") which will be guaranteed on an unsecured senior basis
by each of the Guarantors. As an inducement to the Initial Purchasers to enter
into the Purchase Agreement, the Company and the Guarantors have agreed to
provide to the Initial Purchasers and their direct and indirect transferees the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have
the following meanings:
"Additional Guarantor" shall mean any subsidiary of the Company that
executes a Subsidiary Guarantee under the Indenture after the date of this
Agreement.
"Business Day" shall mean any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by
law to remain closed.
"Closing Date" shall mean April 19, 2006.
"Company" shall have the meaning set forth in the preamble and shall also
include the Company's successors.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Exchange Dates" shall have the meaning set forth in Section 2(a)(ii) hereof.
"Exchange Offer" shall mean the exchange offer by the Company and the
Guarantors of Exchange Securities for Registrable Securities pursuant to
Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the Securities
Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Fonn S-4 (or, if applicable, on another appropriate
form) and all amendments and supplements to such registration statement, in
each case including the Prospectus contained therein or deemed a part thereof,
all exhibits thereto and any document incorporated by reference therein.
"Exchange Securities" shall mean senior notes issued by the Company and
guaranteed by the Guarantors under the Indenture containing terms identical to
the Securities (except that the Exchange Securities will not be subject to
restrictions on transfer or to any increase in annual interest rate for failure
to comply with this Agreement) and to be offered to Holders of Securities in
exchange for Securities pursuant to the Exchange Offer.
"Free Writing Prospectus" means each free writing prospectus (as defined in
Rule 405 under the Securities Act) prepared by or on behalf of the Company or
used or referred to by the Company in connection with the sale of the
Securities.
"Guarantors" shall have the meaning set forth in the preamble and shall also
include any Guarantor's successors and any Additional Guarantors.
"Holders" shall mean the Initial Purchasers, for so long as they own any
Registrable Securities, and each of their successors, assigns and direct and
indirect transferees who become owners of Registrable Securities under the
Indenture; provided that for purposes of Sections 4 and 5 of this Agreement,
the term "Holders" shall include Participating Broker-Dealers.
"Indemnified Person" shall have the meaning set forth in Section 5(c) hereof.
"Indemnifying Person" shall have the meaning set forth in Section 5(c)
hereof.
"Indenture" shall mean the Indenture relating to the Securities dated as of
April 19, 2006 among the Company, the Guarantors and The Bank of Nova Scotia
Trust Company, as trustee, and as the same may be amended from time to time in
accordance with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the preamble.
"Inspector" shall have the meaning set forth in Section 3(a)(xiii) hereof.
"Issuer Information" shall have the meaning set forth in Section 5(a) hereof.
"JPMorgan" shall have the meaning set forth in the preamble.
"Majority Holders" shall mean the Holders of a majority of the aggregate
principal amount of the outstanding Registrable Securities; provided that
whenever the
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consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, any Registrable Securities owned directly or
indirectly by the Company or any of its affiliates shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage or amount; and provided, further, that if the Company shall
issue any additional Securities under the Indenture prior to consummation of
the Exchange Offer or, if applicable, the effectiveness of any Shelf
Registration Statement, such additional Securities and the Registrable
Securities to which this Agreement relates shall be treated together as one
class for purposes of determining whether the consent or approval of Holders of
a specified percentage of Registrable Securities has been obtained.
"Participating Broker-Dealers" shall have the meaning set forth in
Section 4(a) hereof.
"Person" shall mean an individual, partnership, limited liability company,
corporation, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration Statement,
including any preliminary prospectus, and any such prospectus as amended or
supplemented by any prospectus supplement, including a prospectus supplement
with respect to the terms of the offering of any portion of the Registrable
Securities covered by a Shelf Registration Statement, and by all other
amendments and supplements to such prospectus, and in each case including any
document incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Registrable Securities" shall mean the Securities; provided that the
Securities shall cease to be Registrable Securities (i) when a Registration
Statement with respect to such Securities has become effective under the
Securities Act and such Securities have been exchanged or disposed of pursuant
to such Registration Statement, (ii) when such Securities are eligible to be
sold pursuant to Rule 144(k) (or any similar provision then in force, but not
Rule 144A) under the Securities Act, (iii) such Security is sold pursuant to
Rule 144 under circumstances in which any legend borne by such Security
relating to restrictions on transferability thereof, under the Securities Act
or otherwise, is removed by the Company or (iv) when such Securities cease to
be outstanding.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company and the Guarantors with this
Agreement, including without limitation: (i) all SEC, stock exchange or
National Association of Securities Dealers, Inc. registration and filing fees,
(ii) all fees and expenses incurred in connection with compliance with state
securities or blue sky laws (including reasonable fees and disbursements of not
more than one counsel for any Underwriters or Holders (whose counsel shall be
selected by the Holders of a majority in aggregate principal amount of
Registrable Securities to be registered in the applicable Registration
Statement) in connection with blue sky qualification of any Exchange Securities
or Registrable Securities), (iii) all expenses of any Persons in preparing or
assisting in preparing, word
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processing, printing and distributing any Registration Statement, any
Prospectus and any amendments or supplements thereto, any underwriting
agreements, securities sales agreements or other similar agreements and any
other documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, (v) all fees and disbursements relating
to the qualification of the Indenture under applicable securities laws,
(vi) the fees and disbursements of the Trustee and its counsel, (vii) the fees
and disbursements of counsel for the Company and the Guarantors and, in the
case of a Shelf Registration Statement, the fees and disbursements of one
counsel for the Holders (which counsel shall be selected by the Majority
Holders and which counsel may also be counsel for the Initial Purchasers), and
(viii) the fees and disbursements of the independent public accountants of the
Company and the Guarantors, including the expenses of any special audits or
"comfort" letters required by or incident to the performance of and compliance
with this Agreement, but excluding any and all fees and expenses of advisors or
counsel to the Underwriters (other than fees and expenses set forth in clause
(ii) above) or the Holders and underwriting discounts and commissions,
brokerage commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities by a Holder pursuant to any Registration
Statement.
"Registration Statement" shall mean any registration statement of the
Company and the Guarantors that covers any of the Exchange Securities or
Registrable Securities pursuant to the provisions of this Agreement and all
amendments and supplements to any such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein or deemed a part thereof, all exhibits thereto and any document
incorporated by reference therein.
"SEC" shall mean the United States Securities and Exchange Commission.
"Securities" shall have the meaning set forth in the preamble.
"Securities Act" shall mean the Securities Act of 1933, as amended from time
to time. "Shelf Additional Interest Date" shall have the meaning set forth in
Section 2(d) hereof. "Shelf Effectiveness Period" shall have the meaning set
forth in Section 2(b) hereof. "Shelf Registration" shall mean a registration
effected pursuant to Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration statement
of the Company and the Guarantors that covers all or a portion of the
Registrable Securities (but no other securities unless approved by a majority
of the Holders whose Registrable Securities are to be covered by such Shelf
Registration Statement) on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein or deemed a part thereof, all exhibits thereto and any document
incorporated by reference therein.
"Shelf Request" shall have the meaning set forth in Section 2(b) hereof.
"Subsidiary Guarantees" shall mean the guarantees of the Securities and
Exchange Securities by the Guarantors under the Indenture.
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"Staff" shall mean the staff of the SEC.
"Target Registration Date" shall have the meaning set forth in Section 2(d)
hereof
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as amended
from time to time.
"Trustee" shall mean the trustee with respect to the Securities under the
Indenture.
"Underwriter" shall have the meaning set forth in Section 3(e) hereof
"Underwritten Offering" shall mean an offering in which Registrable
Securities are sold to an Underwriter for reoffering to the public.
2. Registration Under the Securities Act. (a) To the extent not prohibited
by any applicable law or applicable interpretations of the Staff, the Company
and the Guarantors shall use their reasonable best efforts to (i) cause to be
filed with the SEC an Exchange Offer Registration Statement covering an offer
to the Holders to exchange all the Registrable Securities for Exchange
Securities and (ii) have such Registration Statement remain effective until 180
days after the last Exchange Date for use by one or more Participating
Broker-Dealers. The Company and the Guarantors shall commence the Exchange
Offer promptly after the Exchange Offer Registration Statement is declared
effective by the SEC and use their reasonable best efforts to complete the
Exchange Offer not later than 45 days after such effective date.
The Company and the Guarantors shall commence the Exchange Offer by mailing
the related Prospectus, appropriate letters of transmittal and other
accompanying documents to each Holder stating, in addition to such other
disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and
that all Registrable Securities validly tendered and not properly withdrawn
will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at
least 20 Business Days from the date such notice is mailed) (the "Exchange
Dates");
(iii) that any Registrable Security not tendered will remain outstanding
and continue to accrue interest but will not retain any rights under this
Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged
pursuant to the Exchange Offer will be required to (A) surrender such
Registrable Security, together with the appropriate letters of transmittal,
to the institution and at the address (located in the Borough of Manhattan,
The City of New York) and in the manner specified in the notice, or
(B) effect such exchange otherwise in compliance with the applicable
procedures of the depositary for such Registrable
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Security, in each case prior to the close of business on the last Exchange
Date; and
(v) that any Holder will be entitled to withdraw its election, not later
than the close of business on the last Exchange Date, by (A) sending to the
institution and at the address (located in the Borough of Manhattan, The
City of New York) specified in the notice, a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the principal
amount of Registrable Securities delivered for exchange and a statement that
such Holder is withdrawing its election to have such Securities exchanged or
(B) effecting such withdrawal in compliance with the applicable procedures
of the depositary for the Registrable Securities.
As a condition to participating in the Exchange Offer, each Holder will be
required to represent to the Company and the Guarantors prior to the
consummation of the Exchange Offer (which representation may be contained in
the letter of transmittal contemplated by the Exchange Offer Registration
Statement) that (i) any Exchange Securities to be received by it will be
acquired in the ordinary course of its business, (ii) at the time of the
commencement of the Exchange Offer it is not engaged in, and does not intend to
engage in, and has no arrangement or understanding with any Person to
participate in the distribution (within the meaning of the Securities Act) of
the Exchange Securities in violation of the provisions of the Securities Act,
(iii) it is not an "affiliate" (within the meaning of Rule 405 under the
Securities Act) of the Company or any Guarantor and (iv) if such Holder is a
broker-dealer that will receive Exchange Securities for its own account in
exchange for Registrable Securities that were acquired as a result of
market-making or other trading activities, then such Holder will deliver a
Prospectus (or, to the extent permitted by law, make available a Prospectus to
purchasers) in connection with any resale of such Exchange Securities.
As soon as practicable after the last Exchange Date, the Company and the
Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof
validly tendered and not properly withdrawn pursuant to the Exchange Offer;
and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation
all Registrable Securities or portions thereof so accepted for exchange by
the Company and issue, and cause the Trustee to promptly authenticate and
deliver to each Holder, Exchange Securities equal in principal amount to the
principal amount of the Registrable Securities validly tendered by such
Holder and accepted for exchange pursuant to the Exchange Offer.
The Company and the Guarantors shall use their reasonable best efforts to
complete the Exchange Offer as provided above and shall comply with the
applicable requirements of the Securities Act, the Exchange Act and other
applicable laws and regulations in connection with the Exchange Offer. The
Exchange Offer shall not be
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subject to any conditions, other than that the Exchange Offer does not violate
any applicable law or applicable interpretations of the Staff.
(b) In the event that (i) the Company and the Guarantors determine that the
Exchange Offer Registration provided for in Section 2(a) above is not available
or may not be completed as soon as practicable after the last Exchange Date
because it would violate any applicable law or applicable interpretations of
the Staff, (ii) the Exchange Offer is not for any other reason completed by
May 29, 2007 or (iii) upon receipt of a written request (a "Shelf Request")
from any Initial Purchaser representing that it holds Registrable Securities
that are or were ineligible to be exchanged in the Exchange Offer, the Company
and the Guarantors shall use their reasonable best efforts to cause to be filed
as soon as practicable after such determination, date or Shelf Request, as the
case may be, a Shelf Registration Statement providing for the sale of all the
Registrable Securities by the Holders thereof and to have such Shelf
Registration Statement become effective.
In the event that the Company and the Guarantors are required to file a
Shelf Registration Statement pursuant to clause (iii) of the preceding
sentence, the Company and the Guarantors shall use their reasonable best
efforts to file and have become effective both an Exchange Offer Registration
Statement pursuant to Section 2(a) with respect to all Registrable Securities
and a Shelf Registration Statement (which may be a combined Registration
Statement with the Exchange Offer Registration Statement) with respect to
offers and sales of Registrable Securities held by the Initial Purchasers after
completion of the Exchange Offer.
The Company and the Guarantors agree to use their reasonable best efforts to
keep the Shelf Registration Statement continuously effective for (i) two years
from the Closing Date or, if different, such other time with respect to
non-affiliates then referred to in Rule 144(k) under the Securities Act (or any
similar rule then in force, but not Rule 144A), or (ii) such shorter period
that will terminate when all the Registrable Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement (the "Shelf Effectiveness Period"). The Company and the Guarantors
further agree to supplement or amend the Shelf Registration Statement and the
related Prospectus if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement or by the Securities Act or by any other rules and
regulations thereunder or if reasonably requested by a Holder of Registrable
Securities with respect to information relating to such Holder, and to use
their reasonable best efforts to cause any such amendment to become effective,
if required, and such Shelf Registration Statement and Prospectus to become
usable as soon as thereafter practicable. The Company and the Guarantors agree
to furnish to the Holders of Registrable Securities copies of any such
supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in
connection with any registration pursuant to Section 2(a) or Section 2(b)
hereof. Each Holder shall pay all underwriting discounts and commissions,
brokerage commissions
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and transfer taxes, if any, relating to the sale or disposition of such
Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof
will not be deemed to have become effective unless it has been declared
effective by the SEC. A Shelf Registration Statement pursuant to Section 2(b)
hereof will not be deemed to have become effective unless it has been declared
effective by the SEC or is automatically effective upon filing with the SEC as
provided by Rule 462 under the Securities Act.
In the event that either the Exchange Offer is not completed or the Shelf
Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii)
hereof, has not become effective on or prior to May 29, 2007 (the "Target
Registration Date"), the interest rate on the Registrable Securities will be
increased by (i) 0.25% per annum for the first 90-day period immediately
following the Target Registration Date and (ii) an additional 0.25% per annum
with respect to each subsequent 90-day period, in each case until the Exchange
Offer is completed or the Shelf Registration Statement, if required hereby,
becomes effective or the Securities become freely tradable under the Securities
Act, up to a maximum increase of 0.50% per annum. In the event that the Company
receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf
Registration Statement required to be filed thereby has not become effective by
the later of (x) May 29, 2007 or (y) 90 days after delivery of such Shelf
Request (such later date, the "Shelf Additional Interest Date"), then the
interest rate on the Registrable Securities will be increased by (i) 0.25% per
annum for the first 90-day period payable commencing from one day after the
Shelf Additional Interest Date and (ii) an additional 0.25% per annum with
respect to each subsequent 90-day period, in each case until the Shelf
Registration Statement becomes effective or the Securities become freely
tradable under the Securities Act, up to a maximum increase of 0.50% per annum.
If the Shelf Registration Statement, if required hereby, has become
effective and thereafter either ceases to be effective or the Prospectus
contained therein ceases to be usable, in each case whether or not permitted by
this Agreement, at any time during the Shelf Effectiveness Period, and such
failure to remain effective or usable exists for more than 75 days (whether or
not consecutive) in any 12-month period, then the interest rate on the
Registrable Securities will be increased commencing on the 75th day in such
12-month period by (i) 0.25% per annum for the first 90-day period immediately
following such 75th day, and (ii) an additional 0.25% per annum with respect to
each subsequent 90-day period, up to a maximum increase of 0.50% per annum, and
ending on such date that the Shelf Registration Statement has again become
effective or the Prospectus again becomes usable.
(e) Notwithstanding anything to the contrary contained herein, the increased
interest rate described in Section 2(d) above is the sole and exclusive remedy
available to Holders due to a registration default, so long as the Company and
the Guarantors are acting in good faith hereunder, including, without
limitation, with respect to satisfying their obligations.
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(f) The Company represents, warrants and covenants that it (including its
agents and representatives) will not prepare, make, use, authorize, approve or
refer to any "free-writing prospectus" (as defined in Rule 405 under the
Securities Act) in connection with the Securities or the Exchange Securities,
other than any communication pursuant to Rule 134 under the Securities Act or
any document constituting an offer to sell or solicitation of an offer to buy
the Securities or the Exchange Securities that falls within the exception from
the definition of prospectus in Section 2(a)(10)(a) of the Securities Act.
3. Registration Procedures. (a) In connection with their obligations
pursuant to Section 2(a) and Section 2(b) hereof, the Company and the
Guarantors shall as soon as practicable (unless otherwise stated below):
(i) prepare and file with the SEC a Registration Statement on the
appropriate form under the Securities Act, which form (x) shall be selected
by the Company and the Guarantors, (y) shall, in the case of a Shelf
Registration, be available for the sale of the Registrable Securities by the
Holders thereof and (z) shall comply as to form in all material respects
with the requirements of the applicable form and include all financial
statements required by the SEC to be filed therewith; and use their
reasonable best efforts to cause such Registration Statement to become
effective and remain effective for the applicable period in accordance with
Section 2 hereof;
(ii) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period in accordance
with Section 2 hereof and cause each Prospectus to be supplemented by any
required prospectus supplement and, as so supplemented, to be filed pursuant
to Rule 424 under the Securities Act; and keep each Prospectus current
during the period described in Section 4(3) of and Rule 174 under the
Securities Act that is applicable to transactions by brokers or dealers with
respect to the Registrable Securities or Exchange Securities;
(iii) in the case of a Shelf Registration, upon written request, furnish
to each Holder of Registrable Securities, to counsel for the Initial
Purchasers, to counsel for all such Holders and to each Underwriter of an
Underwritten Offering of Registrable Securities, if any, without charge, as
many copies of each Prospectus or preliminary prospectus, and any amendment
or supplement thereto, as such Holder, counsel or Underwriter may reasonably
request in writing in order to facilitate the sale or other disposition of
the Registrable Securities thereunder; and the Company and the Guarantors
consent to the use of such Prospectus, preliminary prospectus and any
amendment or supplement thereto in accordance with applicable law by each of
the Holders of Registrable Securities and any such Underwriters in
connection with the offering and sale of the Registrable Securities covered
by and in the manner described in such Prospectus, preliminary prospectus or
any amendment or supplement thereto in accordance with applicable law;
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(iv) use their reasonable best efforts to register or qualify the
Registrable Securities under all applicable state securities or blue sky
laws of such jurisdictions as any Holder of Registrable Securities covered
by a Registration Statement shall reasonably request in writing by the time
the applicable Registration Statement becomes effective; cooperate with such
Holders in connection with any filings required to be made with the National
Association of Securities Dealers, Inc.; and use their reasonable best
efforts to do any and all other acts and things that may be reasonably
necessary or advisable to enable each Holder to complete the disposition in
each such jurisdiction of the Registrable Securities owned by such Holder;
provided that neither the Company nor any Guarantor shall be required to
(1) qualify as a foreign corporation or other entity or as a dealer in
securities in any such jurisdiction where it would not otherwise be required
to so qualify, (2) file any general consent to service of process in any
such jurisdiction, (3) subject itself to taxation in any such jurisdiction
if it is not so subject, or (4) make any changes to its incorporating or
organizational documents or limited liability agreement, if applicable, or
any other agreement between it and its stockholders or members, if any;
(v) notify counsel for the Initial Purchasers and, in the case of a Shelf
Registration, notify each Holder of Registrable Securities and counsel for
such Holders promptly and, if requested by any such Holder or counsel,
confirm such advice in writing (1) when a Registration Statement has become
effective, when any post-effective amendment thereto has been filed and
becomes effective and when any amendment or supplement to the Prospectus has
been filed, (2) of any request by the SEC or any state securities authority
for amendments and supplements to a Registration Statement or Prospectus or
for additional information after the Registration Statement has become
effective, (3) of the issuance by the SEC or any state securities authority
of any stop order suspending the effectiveness of a Registration Statement
or the initiation of any proceedings for that purpose, including the receipt
by the Company of any notice of objection of the SEC to the use of a Shelf
Registration Statement or any post-effective amendment thereto pursuant to
Rule 401(g)(2) under the Securities Act, (4) if, between the applicable
effective date of a Shelf Registration Statement and the closing of any sale
of Registrable Securities covered thereby, the representations and
warranties of the Company or any Guarantor contained in any underwriting
agreement, securities sales agreement or other similar agreement, if any,
relating to an offering of such Registrable Securities cease to be true and
correct in all material respects or if the Company or any Guarantor receives
any notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose, (5) of the happening of any event during the
period a Shelf Registration Statement is effective that makes any statement
made in such Shelf Registration Statement or the related Prospectus untrue
in any material respect or that requires the making of any changes in such
Shelf Registration Statement or Prospectus in order to make the statements
therein, with respect to a Prospectus, in the light of the circumstances
under which such statements were made, not misleading, and (6) of any
determination by the Company or any Guarantor that a post-effective
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amendment to a Registration Statement or any amendment or supplement to the
Prospectus would be appropriate;
(vi) use their reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement or, in the
case of a Shelf Registration, the resolution of any objection of the SEC
pursuant to Rule 401(g)(2), including by promptly filing an amendment to
such Shelf Registration Statement on the proper form, and provide notice
promptly to each Holder of the withdrawal of any such order or such
resolution;
(vii) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment thereto (without any
documents incorporated therein by reference or exhibits thereto, unless
requested);
(viii) in the case of a Shelf Registration, cooperate with the Holders of
Registrable Securities to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing
any restrictive legends and enable such Registrable Securities to be issued
in such denominations and registered in such names (consistent with the
provisions of the Indenture) as such Holders may reasonably request at least
three Business Days prior to the closing of any sale of Registrable
Securities made by such Holders;
(ix) in the case of a Shelf Registration, upon the occurrence of any
event contemplated by Section 3(a)(v)(5) hereof, use their reasonable best
efforts to prepare and file with the SEC a supplement or post-effective
amendment to such Shelf Registration Statement or the related Prospectus or
any document incorporated therein by reference or file any other required
document so that, as thereafter delivered (or, to the extent permitted by
law, made available) to purchasers of the Registrable Securities, such
Prospectus will not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and
the Company shall notify the Holders of Registrable Securities to suspend
use of the Prospectus as promptly as practicable after the occurrence of
such an event, and such Holders hereby agree to suspend use of the
Prospectus until the Company and the Guarantors have amended or supplemented
the Prospectus to correct such misstatement or omission;
(x) a reasonable time prior to the filing of any Registration Statement,
any Prospectus, any amendment to a Registration Statement or amendment or
supplement to a Prospectus (other than any document that is to be
incorporated by reference into a Registration Statement or a Prospectus
after initial filing of a Registration Statement and doesn't name the
Holders of Registrable Securities in their capacity as such), provide copies
of such document to the Initial Purchasers and their counsel (if the Initial
Purchasers holds any Registrable Securities) (and, in the case of a Shelf
Registration Statement, to the Holders of Registrable Securities and their
counsel) and make such of the representatives of the
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Company and the Guarantors as shall be reasonably requested by the Initial
Purchasers or their counsel (if the Initial Purchasers holds any Registrable
Securities) (and, in the case of a Shelf Registration Statement, the Holders
of Registrable Securities or their counsel) available for discussion of such
document; and the Company and the Guarantors shall not, at any time after
initial filing of a Registration Statement, use or file any Prospectus, any
amendment of or supplement to a Registration Statement or a Prospectus
(other than any document that is to be incorporated by reference into a
Registration Statement or a Prospectus and doesn't name the Holders of
Registrable Securities in their capacity as such), of which the Initial
Purchasers and their counsel (if the Initial Purchasers holds any
Registrable Securities) (and, in the case of a Shelf Registration Statement,
the Holders of Registrable Securities and their counsel) shall not have
previously been advised and furnished a copy or to which the Initial
Purchasers or their counsel (if the Initial Purchasers hold any Registrable
Securities) (and, in the case of a Shelf Registration Statement, the Holders
of Registrable Securities or their counsel) shall reasonably object within
five Business Days after receipt thereof, unless the Company believes such
Prospectus, amendment or supplement to a Prospectus is required by
applicable law;
(xi) obtain a CUSIP number for all Exchange Securities or Registrable
Securities, as the case may be, not later than the initial effective date of
a Registration Statement covering such Exchange Securities or Registrable
Securities;
(xii) cause the Indenture to be qualified under the Trust Indenture Act
in connection with the registration of the Exchange Securities or
Registrable Securities, as the case may be; cooperate with the Trustee and
the Holders to effect such changes to the Indenture as may be required for
the Indenture to be so qualified in accordance with the terms of the Trust
Indenture Act; and execute, and use their reasonable best efforts to cause
the Trustee to execute, all documents as may be required to effect such
changes and all other forms and documents required to be filed with the SEC
to enable the Indenture to be so qualified in a timely manner;
(xiii) in the case of a Shelf Registration, make available for inspection
by a representative of the Holders of a majority of the outstanding
aggregate principal amount of the Registrable Securities to be included in
such Shelf Registration (an "Inspector"), any Underwriter participating in
any disposition pursuant to such Shelf Registration Statement, any attorneys
and one firm of accountants designated by such Holders and any attorneys
(but not more than one counsel acting for all such Holders) and accountants
designated by such Underwriter, at reasonable times and in a reasonable
manner, all pertinent financial and other records, documents and properties
of the Company and its subsidiaries, and cause the respective officers,
directors and employees of the Company and the Guarantors to supply all
information reasonably requested by any such Inspector, Underwriter,
attorney or accountant to conduct reasonable investigation within the
meaning of Section 11 of the Securities Act in connection
12
with a Shelf Registration Statement; provided that the foregoing
investigation and information gathering shall be coordinated on behalf of
such parties by one counsel designated by and on behalf of such parties; and
provided further that if any such information is identified by the Company
or any Guarantor as being confidential or proprietary, each Person receiving
such information shall take such actions as are reasonably necessary to
protect the confidentiality of such information to the extent such action is
otherwise not inconsistent with, an impairment of or in derogation of the
rights and interests of any Inspector, Holder or Underwriter);
(xiv) in the case of a Shelf Registration, use their reasonable best
efforts to cause all Registrable Securities to be listed on any securities
exchange or any automated quotation system on which similar securities
issued or guaranteed by the Company or any Guarantor are then listed if
requested by the Majority Holders, to the extent such Registrable Securities
satisfy applicable listing requirements;
(xv) if reasonably requested by any Holder of Registrable Securities
covered by a Shelf Registration Statement, promptly include in a Prospectus
supplement or post-effective amendment such information with respect to such
Holder as such Holder reasonably requests to be included therein and make
all required filings of such Prospectus supplement or such post-effective
amendment promptly after the Company has received notification of the
matters to be so included in such filing;
(xvi) in the case of a Shelf Registration, enter into such customary
agreements, including, but not limited to, an underwriting agreement which
contains indemnities substantially similar to those contained in the
Purchase Agreement, and take all such other actions in connection therewith
(including those requested by the Holders of a majority in principal amount
of the Registrable Securities covered by the Shelf Registration Statement)
in order to expedite or facilitate the disposition of such Registrable
Securities including, but not limited to, an Underwritten Offering and in
such connection, (1) to the extent possible, make such representations and
warranties to the Holders and any Underwriters of such Registrable
Securities with respect to the business of the Company and its subsidiaries
and the Registration Statement, Prospectus and documents incorporated by
reference or deemed incorporated by reference, if any, in each case, in
form, substance and scope as are customarily made by issuers to underwriters
in Underwritten Offerings and confirm the same if and when required by the
applicable underwriting agreement, (2) obtain opinions of counsel to the
Company and the Guarantors (which counsel and opinions, in fonn, scope and
substance, shall be reasonably satisfactory to such Underwriters and their
counsel) addressed to each Underwriter of Registrable Securities, in
customary form subject to customary limitations, assumptions and exclusions
and covering the matters customarily covered in opinions requested in
Underwritten Offerings, (3) obtain "comfort" letters from the independent
certified public accountants of the Company and the Guarantors (and, if
necessary, any other certified public
13
accountant of any subsidiary of the Company or any Guarantor, or of any
business acquired by the Company or any Guarantor for which financial
statements and financial data are or are required to be included in the
Registration Statement) addressed to each selling Holder (to the extent
permitted by applicable professional standards) and Underwriter of
Registrable Securities, such letters to be in customary form and covering
matters of the type customarily covered in "comfort" letters in connection
with Underwritten Offerings, including but not limited to financial
information contained in any preliminary prospectus or Prospectus and
(4) deliver such documents and certificates as may be reasonably requested
by the Holders of a majority in principal amount of the Registrable
Securities being sold or the Underwriters, and which are customarily
delivered in Underwritten Offerings, to evidence the continued validity of
the representations and warranties of the Company and the Guarantors made
pursuant to clause (1) above and to evidence compliance with any customary
conditions contained in the applicable underwriting agreement; and
(xvii) so long as any Registrable Securities remain outstanding, cause
each Additional Guarantor upon the creation or acquisition by the Company of
such Additional Guarantor, to execute a counterpart to this Agreement in the
form attached hereto as Annex A and to deliver such counterpart to the
Initial Purchasers no later than five Business Days following the execution
thereof.
(b) In the case of a Shelf Registration Statement, the Company may require
each Holder of Registrable Securities to furnish to the Company such
information regarding such Holder and the proposed disposition by such Holder
of such Registrable Securities as the Company and the Guarantors may from time
to time reasonably request in writing. The Company and the Guarantors shall be
entitled to refuse to include for registration the Registrable Securities held
by any Holder who fails to comply with such request and provide the requested
information after being given 15 Business Days notice of such request to the
extent such information is required by applicable law to be included in the
Shelf Registration Statement, and such Holder shall not be entitled to
additional interest pursuant to Section 2(d) above.
(c) In the case of a Shelf Registration Statement, each Holder of
Registrable Securities covered in such Shelf Registration Statement agrees
that, upon receipt of any notice from the Company and the Guarantors of the
happening of any event of the kind described in Section 3(a)(v)(3), (5), or
(6) hereof, such Holder will forthwith discontinue disposition of Registrable
Securities pursuant to the Shelf Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(a)(ix) hereof, or until it is advised in writing by the Company that
the use of the Prospectus may be resumed, and, if so directed by the Company
and the Guarantors, such Holder will deliver to the Company and the Guarantors
all copies in its possession, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Registrable Securities
that is current at the time of receipt of such notice.
14
(d) If the Company and the Guarantors shall give any notice pursuant to
Section 3(c) hereof to suspend the disposition of Registrable Securities
pursuant to a Shelf Registration Statement, the Company and the Guarantors
shall extend the period during which such Shelf Registration Statement shall be
maintained effective pursuant to this Agreement by the number of days equal to
the number of days in the period from and including the date of the giving of
such notice to and including the date when the Holders of such Registrable
Securities shall have received copies of the supplemented or amended Prospectus
necessary to resume such dispositions. The Company and the Guarantors may give
any such notice pursuant to Section 3(c) only twice during any 365-day period
and any such suspensions shall not exceed 75 days in any 365-day period and
there shall not be more than two suspensions in effect during any 365-day
period.
(e) In the case of an Underwritten Offering, the investment bank or
investment banks and manager or managers (each an "Underwriter") that will
administer the offering will be selected by the Holders of a majority of the
outstanding aggregate principal amount of the Registrable Securities included
in such offering, subject to the Company's consent, which consent shall not be
unreasonably withheld. Such Holders shall be responsible for all underwriting
commissions and discounts in connection therewith. No Holder of Registrable
Securities may participate in any Underwritten Offering unless such Holder
(i) agrees to sell such Holder's Registrable Securities on the basis provided
in any underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements, provided that the
Holders are given 15 Business Days notice of such requests.
(f) Notwithstanding anything contained herein, the Holders may only sell
their Registrable Securities in an Underwritten Offering with the Company's
consent, which may be granted or withheld in the Company's sole discretion.
4. Participation of Broker-Dealers in Exchange Offer. (a) The Staff has
taken the position that any broker-dealer that receives Exchange Securities for
its own account in the Exchange Offer in exchange for Securities that were
acquired by such broker-dealer as a result of market-making or other trading
activities (a "Participating Broker-Dealer") may be deemed to be an
"underwriter" within the meaning of the Securities Act and must deliver a
prospectus meeting the requirements of the Securities Act in connection with
any resale of such Exchange Securities.
The Company and the Guarantors understand that it is the Staff's position
that if the Prospectus contained in the Exchange Offer Registration Statement
includes a plan of distribution containing a statement to the above effect and
the means by which Participating Broker-Dealers may resell the Exchange
Securities, without naming the Participating Broker-Dealers or specifying the
amount of Exchange Securities owned by them, such Prospectus may be delivered
by Participating Broker-Dealers (or, to the extent permitted by law, made
available to purchasers) to satisfy their prospectus delivery obligation under
the Securities Act in connection with resales of Exchange Securities for
15
their own accounts, so long as the Prospectus otherwise meets the requirements
of the Securities Act.
(b) In light of the above, and notwithstanding the other provisions of this
Agreement, the Company and the Guarantors agree to use their reasonable best
efforts to amend or supplement the Prospectus contained in the Exchange Offer
Registration Statement for a period of up to 180 days after the last Exchange
Date (as such period may be extended pursuant to Section 3(d) of this Agreement
(in the case of a Shelf Registration Statement that is combined with an
Exchange Offer Registration Statement)), if requested by the Initial Purchasers
or by one or more Participating Broker-Dealers, in order to expedite or
facilitate the disposition of any Exchange Securities by Participating
Broker-Dealers consistent with the positions of the Staff recited in
Section 4(a) above. The Company and the Guarantors further agree that
Participating Broker-Dealers shall be authorized to deliver such Prospectus
(or, to the extent permitted by law, make available) during such period in
connection with the resales contemplated by this Section 4. The Participating
Broker-Dealers shall not be authorized by the Company to deliver and shall not
deliver such Prospectus after such period in connection with the resales
contemplated by this Section 4.
(c) The Initial Purchasers shall have no liability to the Company, any
Guarantor or any Holder with respect to any request that they may make pursuant
to Section 4(b) above.
5. Indemnification and Contribution. (a) The Company and each Guarantor,
jointly and severally, agree to indemnify and hold harmless (i) each Initial
Purchaser and each Holder, their respective affiliates, directors and officers
and each Person, if any, who controls any Initial Purchaser or any Holder
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted, as such fees and expenses are incurred), joint or several, that arise
out of, or are based upon, (1) any untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary in order to make the statements therein not misleading, or (2) any
untrue statement or alleged untrue statement of a material fact contained in
any Prospectus, any Free Writing Prospectus used in violation of this Agreement
or any "issuer information" ("Issuer Information") filed or required to be
filed pursuant to Rule 433(d) under the Securities Act , or any omission or
alleged omission to state therein a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, in each case except insofar as such losses, claims,
damages or liabilities arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to any Initial Purchaser or
information relating to any Holder furnished to the Company in writing through
JPMorgan or any selling Holder respectively expressly for use therein. In
connection with any Underwritten Offering permitted by Section 3, the Company
and the Guarantors, jointly and severally, will also indemnify the
Underwriters, if any, selling brokers, dealers
16
and similar securities industry professionals participating in the
distribution, their respective affiliates and each Person who controls such
Persons(within the meaning of the Securities Act and the Exchange Act) to the
same extent as provided above with respect to the indemnification of the
Holders, if requested in connection with any Registration Statement, any
Prospectus, any Free Writing Prospectus or any Issuer Information.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company, the Guarantors, the Initial Purchasers and the other
selling Holders, the directors of the Company and the Guarantors, each officer
of the Company and the Guarantors who signed the Registration Statement and
each Person, if any, who controls the Company, the Guarantors, any Initial
Purchaser and any other selling Holder within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
indemnity set forth in paragraph (a) above, but only with respect to any
losses, claims, damages or liabilities that arise out of, or are based upon,
any untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with any information relating to such Holder
furnished to the Company in writing by or on behalf of such Holder expressly
for use in any Registration Statement and any Prospectus.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnification may be sought pursuant to either
paragraph (a) or (b)above, such Person (the "Indemnified Person") shall
promptly notify the Person against whom such indemnification may be sought (the
"Indemnifying Person") in writing; provided that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have
under this Section 5 except to the extent that it has been materially
prejudiced (through the forfeiture of substantive rights or defenses) by such
failure; and provided, further, that the failure to notify the Indemnifying
Person shall not relieve it from any liability that it may have to an
Indemnified Person otherwise than under this Section 5. If any such proceeding
shall be brought or asserted against an Indemnified Person and it shall have
notified the Indemnifying Person thereof; the Indemnifying Person shall retain
counsel reasonably satisfactory to the Indemnified Person (who shall not,
without the consent of the Indemnified Person, be counsel to the Indemnifying
Person) to represent the Indemnified Person and any others entitled to
indemnification pursuant to this Section 5 that the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such
proceeding and shall pay the fees and expenses of such counsel related to such
proceeding, as incurred. In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to
the contrary; (ii) the Indemnifying Person has failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the
Indemnified Person shall have reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those
available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by
17
the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood and agreed that the Indemnifying
Person shall not, in connection with any proceeding or related proceeding in
the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all Indemnified Persons,
and that all such fees and expenses shall be reimbursed as they are incurred.
Any such separate firm (x) for any Initial Purchaser , its affiliates,
directors and officers and any control Persons of such Initial Purchaser shall
be designated in writing by JPMorgan, (y) for any Holder, its directors and
officers and any control Persons of such Holder shall be designated in writing
by the Majority Holders and (z) in all other cases shall be designated in
writing by the Company. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the Indemnifying Person agrees to indemnify each Indemnified Person from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person
shall have requested that an Indemnifying Person reimburse the Indemnified
Person for fees and expenses of counsel as contemplated by this paragraph, the
Indemnifying Person shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into
more than 30 days after receipt by the Indemnifying Person of such request;
(ii) the Indemnifying Person shall not have reimbursed the Indemnified Person
in accordance with such request prior to the date of such settlement and
(iii) the Indemnified Person shall have given at least 30 days prior written
notice of its intention to settle. No Indemnifying Person shall, without the
written consent of the Indemnified Person, effect any settlement of any pending
or threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnification could have been sought hereunder by such
Indemnified Person, unless such settlement (A) includes an unconditional
release of such Indemnified Person, in form and substance reasonably
satisfactory to such Indemnified Person, from all liability on claims that are
the subject matter of such proceeding and (B) does not include any statement as
to or any admission of fault, culpability or a failure to act by or on behalf
of any Indemnified Person.
(d) If the indemnification provided for in paragraphs (a) and (b) above is
unavailable to or insufficient to hold harmless an Indemnified Person in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable
by such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Guarantors from the offering of the
Securities and the Exchange Securities, on the one hand, and by the Holders
from receiving Securities or Exchange Securities registered under the
Securities Act , on the other hand, or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) but also the relative fault of the Company and the Guarantors on the one
hand and the Holders on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative fault of the
Company and the Guarantors on the one hand and the Holders on the other shall
be determined by reference to, among other
18
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company and the Guarantors on the one hand or by
the Holders on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) The Company, the Guarantors and the Holders agree that it would not be
just and equitable if contribution pursuant to this Section 5 were determined
by pro rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) above. The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such Indemnified Person in connection with
investigating, preparing to defend, or defending any such action or claim.
Notwithstanding the provisions of this Section 5 , in no event shall a Holder
be required to contribute any amount in excess of the amount by which the total
price at which the Securities or Exchange Securities sold by such Holder
exceeds the amount of any damages that such Holder has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute pursuant to this
Section 5 are several in proportion to the respective principal amount of the
Registrable Securities held by each Holder and not joint.
(f) The remedies provided for in this Section 5 are not exclusive and shall
not limit any rights or remedies that may otherwise be available to any
Indemnified Person at law or in equity.
(g) The indemnity and contribution provisions contained in this Section 5
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Initial Purchasers or any Holder or any Person controlling any Initial
Purchaser or any Holder, or by or on behalf of the Company or the Guarantors or
the officers or directors of or any Person controlling the Company or the
Guarantors, (iii) acceptance of any of the Exchange Securities and (iv) any
sale of Registrable Securities pursuant to a Shelf Registration Statement .
6. General.
(a) No Inconsistent Agreements. The Company and the Guarantors represent,
warrant and agree that (i) the rights granted to the Holders hereunder do not
in any way conflict with and are not inconsistent with the rights granted to
the holders of any other outstanding securities issued or guaranteed by the
Company or any Guarantor under any other agreement and (ii) neither the Company
nor any Guarantor has entered into, or on or after the date of this Agreement
will enter into, any agreement that is inconsistent with
19
the rights granted to the Holders of Registrable Securities in this Agreement
or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given
unless the Company and the Guarantors have obtained the written consent of
Holders of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement,
waiver or consent ; provided that no amendment, modification, supplement,
waiver or consent to any departure from the provisions of Section 5 hereof
shall be effective as against any Holder of Registrable Securities unless
consented to in writing by such Holder . Any amendments, modifications,
supplements, waivers or consents pursuant to this Section 6(b) shall be by a
writing executed by each of the parties hereto.
(c) Notices. All notices and other communications provided for orpermitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, telex, telecopier, or any courier guaranteeing overnight delivery (i) if
to a Holder, at the most current address given by such Holder to the Company by
means of a notice given in accordance with the provisions of this Section 6(c),
which address initially is, with respect to the Initial Purchasers, the address
set forth in the Purchase Agreement; (ii) if to the Company and the Guarantors,
initially at the Company's address set forth in the Purchase Agreement and
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 6(c); and (iii) to such other persons at their
respective addresses as provided in the Purchase Agreement and thereafter at
such other address, notice of which is given in accordance with the provisions
of this Section 6(c) . All such notices and communications shall be deemed to
have been duly given: at the time delivered by hand, if personally delivered;
five Business Days after being deposited in the mail, postage prepaid, if
mailed; when answered back, if telexed; when receipt is acknowledged, if
telecopied; and on the next Business Day if timely delivered to an air courier
guaranteeing overnight delivery. Copies of all such notices, demands or other
communications shall be concurrently delivered by the Person giving the same to
the Trustee, at the address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit of and
be binding upon the successors, assigns and transferees of each of the parties,
including, without limitation and without the need for an express assignment,
subsequent Holders; provided that nothing herein shall be deemed to permit any
assignment, transfer or other disposition of Registrable Securities in
violation of the terms of the Purchase Agreement or the Indenture. If any
transferee of any Holder shall acquire Registrable Securities in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all the terms of this Agreement, and by taking and holding such
Registrable Securities such Person shall be conclusively deemed to have agreed
to be bound by and to perform all of the terms and provisions of this Agreement
and such Person shall be entitled to receive the benefits hereof. The Initial
Purchasers (in their capacity as Initial Purchasers) shall have no liability or
obligation to the Company or the
20
Guarantors with respect to any failure by a Holder to comply with, or any
breach by any Holder of, any of the obligations of such Holder under this
Agreement.
(e) Third Party Beneficiaries. Each Holder shall be a third party
beneficiary to the agreements made hereunder between the Company and the
Guarantors, on the one hand, and the Initial Purchasers , on the other hand,
and shall have the right to enforce such agreements directly to the extent it
deems such enforcement necessary or advisable to protect its rights or the
rights of other Holders hereunder.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only, are not a part of this Agreement and shall not limit or
otherwise affect the meaning hereof.
(h) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(i) Entire Agreement; Severability. This Agreement contains the entire
agreement between the parties relating to the subject matter hereof and
supersedes all oral statements and prior writings with respect thereto. If any
term, provision, covenant or restriction contained in this Agreement is held by
a court of competent jurisdiction to be invalid, void or unenforceable or
against public policy, the remainder of the terms, provisions, covenants and
restrictions contained herein shall remain in full force and effect and shall
in no way be affected, impaired or invalidated. The Company, the Guarantors and
the Initial Purchasers shall endeavor in good faith negotiations to replace the
invalid, void or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, void or
unenforceable provisions.
21
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
AVIS BUDGET CAR RENTAL, LLC
AVIS BUDGET FINANCE, INC.
By /s/ David B. Wyshner
-----------------------------
Name: David B. Wyshner
Title: Executive Vice President,
Chief Financial Officer and
Treasurer
AVIS BUDGET HOLDINGS, LLC
By /s/ David B. Wyshner
-----------------------------
Name: David B. Wyshner
Title: Executive Vice President,
Chief Financial Officer and
Treasurer
AVIS ASIA AND PACIFIC, LIMITED
AVIS CAR RENTAL GROUP, LLC
AVIS CARIBBEAN, LIMITED
AVIS ENTERPRISES, INC.
AVIS GROUP HOLDINGS, LLC
AVIS INTERNATIONAL, LTD.
AVIS LEASING CORPORATION
AVIS RENT A CAR SYSTEM, LLC
PF CLAIMS MANAGEMENT, LTD.
By /s/ David B. Wyshner
-----------------------------
Name: David B. Wyshner
Title: Chief Financial Officer
CENDANT CAR RENTAL OPERATIONS
SUPPORT, INC.
WIZARD CO., INC.
By /s/ David B. Wyshner
-----------------------------
Name: David B. Wyshner
Title: Treasurer
ARACS LLC
AVIS OPERATIONS, LLC
By /s/ Robert E. Muhs
-----------------------------
Name: Robert E. Muhs
Title: Vice President and Assistant
Secretary
BGI LEASING, INC.
BUDGET RENT A CAR SYSTEM, INC.
By /s/ David Blaskey
-----------------------------
Name: David Blaskey
Title: President,
BUDGET TRUCK RENTAL LLC
By /s/ David Blaskey
-----------------------------
Name: David Blaskey
Title: Senior Vice President,
Confirmed and accepted as of the date first above written:
J.P. MORGAN SECURITIES INC.
For itself and on behalf of
the several InitialPurchasers
By /s/ Authorized Signatory
-------------------------
Authorized Signatory
Annex A
Counterpart to Registration Rights Agreement
The undersigned hereby absolutely, unconditionally and irrevocably agrees as
a Guarantor (as defined in the Registration Rights Agreement, dated as of
April 19, 2006 by and among the Company, a Delaware limited liability company,
the guarantors party thereto and J.P. Morgan Securities Inc., on behalf of
itself and the other Initial Purchasers) to be bound by the teiins and
provisions of such Registration Rights Agreement.
IN WITNESS WHEREOF, the undersigned has executed this counterpart as of
__________.
[NAME]
By:
-----------------------------
NAME:
Title:
Schedule 1
Avis Budget Holdings, LLC
ARACS LLC
Avis Asia and Pacific, Limited
Avis Car Rental Group, LLC
Avis Caribbean, Limited
Avis Enterprises, Inc.
Avis Group Holdings, LLC
Avis International, Ltd.
Avis Leasing Corporation
Avis Operations, LLC
Avis Rent A Car System, LLC
BGI Leasing, Inc.
Budget Rent A Car System, Inc.
Budget Truck Rental LLC
Cendant Car Rental Operations Support, Inc. PF Claims Management, Ltd.
Wizard Co., Inc.
Schedule 2
Deutsche Bank Securities Inc.
Banc of America Securities LLC
Citigroup Global Markets Inc.
Wachovia Capital Markets, LLC
Barclays Capital Inc.
Calyon Securities (USA), Inc.
Credit Suisse Securities (USA) LLC
Daiwa Securities America Inc.
Goldman, Sachs & Co.
Mitsubishi UFJ Securities International plc
Greenwich Capital Markets, Inc.
Scotia Capital (USA) Inc.
The Williams Capital Group, L.P.