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EXHIBIT 10.22
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BUDGET RENT A CAR CORPORATION, as Issuer
TEAM RENTAL GROUP, INC., as Guarantor
(to be renamed BUDGET GROUP, INC.)
9.57% Guaranteed Senior Notes due 2007
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SENIOR NOTE PURCHASE AGREEMENT
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Dated as of April 25, 1997
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Table of Contents
Page
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1. THE NOTES AND GUARANTEES; THE ACQUISITION, ETC.................................................................1
1.1. The Notes...........................................................................................1
1.2. The Guarantees......................................................................................1
1.3. The Acquisition and the Transactions................................................................2
2. SALE AND PURCHASE OF NOTES.....................................................................................3
3. CLOSING........................................................................................................3
4. CONDITIONS TO CLOSING..........................................................................................4
4.1. Representations and Warranties......................................................................4
4.2. Performance; No Default.............................................................................4
4.3. Compliance Certificates.............................................................................4
4.4. Opinions of Counsel.................................................................................5
4.5. Subsidiary Guarantees...............................................................................5
4.6. Purchase Permitted by Applicable Law, etc...........................................................5
4.7. Sale of Notes to Other Purchasers...................................................................6
4.8. Payment of Special Counsel Fees.....................................................................6
4.9. Private Placement Number............................................................................6
4.10. Changes in Corporate Structure.....................................................................6
4.11. Contemporaneous Transactions.......................................................................6
4.12. Proceedings and Documents..........................................................................7
5. REPRESENTATIONS AND WARRANTIES OF THE OBLIGORS.................................................................8
5.1. Organization; Power and Authority...................................................................8
5.2. Authorization, etc..................................................................................8
5.3. Disclosure..........................................................................................9
5.4. Organization and Ownership of Shares of Subsidiaries; Affiliates....................................9
5.5. Financial Statements...............................................................................10
5.6. Compliance with Laws, Other Instruments, etc.......................................................11
5.7. Governmental Authorizations, etc...................................................................11
5.8. Litigation; Observance of Agreements, Statutes and Orders..........................................12
5.9. Taxes..............................................................................................12
5.10. Title to Property; Leases.........................................................................13
5.11. Licenses, Permits, etc............................................................................13
5.12. Compliance with ERISA.............................................................................13
5.13. Private Offering by the Obligors..................................................................15
5.14. Use of Proceeds; Margin Regulations...............................................................15
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5.15. Existing Debt; Future Liens.......................................................................16
5.16. Foreign Assets Control Regulations, etc...........................................................16
5.17. Status Under Certain Statutes.....................................................................16
5.18. Environmental Matters.............................................................................16
5.19. Solvency..........................................................................................18
5.20. Other Transaction Documents.......................................................................18
6. REPRESENTATIONS OF THE PURCHASER..............................................................................19
6.1. Purchase of Notes..................................................................................19
6.2. Source of Funds....................................................................................19
7. INFORMATION AS TO OBLIGORS....................................................................................21
7.1. Financial and Business Information.................................................................21
7.2. Officer's Certificate..............................................................................25
7.3. Inspection.........................................................................................26
8. PREPAYMENT OF THE NOTES.......................................................................................27
8.1. Required Prepayments...............................................................................27
8.2. Optional Prepayments...............................................................................27
8.3. Prepayment in Connection with a Change of Control..................................................28
8.4. Allocation of Partial Prepayments..................................................................29
8.5. Maturity; Surrender, etc...........................................................................29
8.6. Purchase of Notes..................................................................................29
8.7. Make-Whole Amount..................................................................................29
9. AFFIRMATIVE COVENANTS.........................................................................................31
9.1. Compliance with Law................................................................................31
9.2. Insurance..........................................................................................32
9.3. Maintenance of Properties..........................................................................32
9.4. Payment of Taxes and Claims........................................................................32
9.5. Corporate Existence, etc...........................................................................33
9.6. Lines of Business..................................................................................33
9.7. Additional Subsidiary Guarantees...................................................................34
10. NEGATIVE COVENANTS...........................................................................................34
10.1. Incurrence of Non-Vehicle Debt; Subsidiary Debt...................................................34
10.2. Liens............................................................................................ 36
10.3. Limitation on Sale and Leaseback Transactions.....................................................39
10.4. Maintenance of Consolidated Shareholders' Equity..................................................40
10.5. Asset Sales.......................................................................................40
10.6. Merger, Consolidation, Amalgamation, etc..........................................................41
10.7. Restricted Payments...............................................................................43
10.8. Transactions with Affiliates......................................................................43
11. EVENTS OF DEFAULT............................................................................................44
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12. REMEDIES ON DEFAULT, ETC.....................................................................................47
12.1. Acceleration......................................................................................47
12.2. Other Remedies....................................................................................48
12.3. Rescission........................................................................................48
12.4. No Waivers or Election of Remedies, Expenses, etc.................................................49
13. PARENT GUARANTEE.............................................................................................49
13.1. Guarantee.........................................................................................49
13.2. Subrogation and Contribution......................................................................52
13.3. Continuing Guarantee..............................................................................52
14. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES................................................................52
14.1. Registration of Notes.............................................................................52
14.2. Transfer and Exchange of Notes....................................................................53
14.3. Replacement of Notes..............................................................................53
15. PAYMENTS ON NOTES............................................................................................54
15.1. Place of Payment..................................................................................54
15.2. Home Office Payment...............................................................................54
16. EXPENSES, ETC................................................................................................55
16.1. Transaction Expenses..............................................................................55
16.2. Survival..........................................................................................56
17. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.................................................56
18. AMENDMENT AND WAIVER.........................................................................................56
18.1. Requirements......................................................................................56
18.2. Solicitation of Holders of Notes..................................................................57
18.3. Binding Effect, etc...............................................................................58
18.4. Notes held by Obligors, etc.......................................................................58
19. NOTICES......................................................................................................58
20. REPRODUCTION OF DOCUMENTS....................................................................................59
21. CONFIDENTIAL INFORMATION.....................................................................................59
22. SUBSTITUTION OF PURCHASER....................................................................................61
23. MISCELLANEOUS................................................................................................61
23.1. Successors and Assigns............................................................................61
23.2. Construction......................................................................................61
23.3. Jurisdiction and Process; Waiver of Jury Trial....................................................62
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23.4. Indemnification...................................................................................63
23.5. Payments Due on Non-Business Days.................................................................63
23.6. Severability......................................................................................64
23.7. Accounting Terms; Pro Forma Computations..........................................................64
23.8. Counterparts......................................................................................64
23.9. Governing Law.....................................................................................64
Exhibit 1.1 -- Form of 9.57% Guaranteed Senior Note due
2007
Exhibit 1.2 -- Form of Subsidiary Guarantee
Exhibit 4.4(a) -- Form of Opinion of Special Counsel for the
Parent
Exhibit 4.4(b) -- Form of Opinion of Counsel for the Parent
Exhibit 4.4(c) -- Form of Opinion of Counsel for the Company
Exhibit 4.4(d) -- Form of Opinion of Special Counsel for the
Purchasers
Schedule A -- Names and Addresses of Purchasers
Schedule B -- Defined Terms
Schedule 5.3 -- Disclosure Documents
Schedule 5.4 -- Subsidiaries
Schedule 5.5 -- Financial Statements
Schedule 5.8 -- Litigation
Schedule 5.11 -- Licenses, etc.
Schedule 5.15 -- Existing Debt
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BUDGET RENT A CAR CORPORATION
TEAM RENTAL GROUP, INC.
9.57% Guaranteed Senior Notes due 2007
As of April 25, 1997
TO EACH OF THE PURCHASERS LISTED IN
THE ATTACHED SCHEDULE A:
Ladies and Gentlemen:
BUDGET RENT A CAR CORPORATION, a Delaware corporation (the "COMPANY"),
and TEAM RENTAL GROUP, INC. (to be renamed BUDGET GROUP, INC.), a Delaware
corporation (the "PARENT" and, together with the Company, individually an
"OBLIGOR" and collectively the "OBLIGORS"), jointly and severally agree with
you as follows:
1. THE NOTES AND GUARANTEES; THE ACQUISITION, ETC.
1.1. THE NOTES.
The Company has duly authorized the issue and sale of $165,000,000
aggregate principal amount of its 9.57% Guaranteed Senior Notes due 2007 (the
"NOTES"), each such note to be in the form set out in Exhibit 1.1. As used
herein, the term "NOTES" shall mean all notes originally delivered pursuant to
this Agreement and the Other Agreements referred to below and all notes
delivered in substitution or exchange for any such note and, where applicable,
shall include the singular number as well as the plural. Certain capitalized
and other terms used in this Agreement are defined in Schedule B; references to
a "Schedule" or an "Exhibit" are, unless otherwise specified, to a Schedule or
an Exhibit attached to this Agreement.
1.2. THE GUARANTEES.
(a) After giving effect to the consummation of the Acquisition
described below, the Parent will own beneficially and of record all of the
issued and outstanding capital stock of the Company. The Notes and the
obligations of the Company under this
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Agreement and under the Other Agreements will be unconditionally guaranteed by
the Parent pursuant to a parent guarantee contained in Section 13 of this
Agreement and the Other Agreements (the "PARENT GUARANTEE").
(b) The obligations of the Obligors hereunder and under the Other
Agreements (including without limitation under the Parent Guarantee) and the
Notes will be unconditionally guaranteed by certain of the Parent's
Subsidiaries pursuant to subsidiary guarantees substantially in the form of
Exhibit 1.2 (individually a "SUBSIDIARY GUARANTEE" and collectively the
"SUBSIDIARY GUARANTEES", which terms shall include after the date of the
Closing all additional Subsidiary Guarantees from time to time executed and
delivered pursuant to Section 9.7).
1.3. THE ACQUISITION AND THE TRANSACTIONS.
Pursuant to the Common Stock Purchase Agreement, dated as of January
13, 1997, between the Parent and Xxxx X. Xxxxx, the Budget Stock Purchase
Agreement, dated as of January 13, 1997, between the Company and the Parent and
the Preferred Stock Purchase Agreement, dated as of January 13, 1997, between
Ford Motor Company ("FORD") and the Parent (as each such Agreement as
supplemented and amended to and including the date of this Agreement,
collectively, the "STOCK PURCHASE AGREEMENTS"), the Parent agreed to acquire
all of the capital stock of the Company and purchase certain Debt of the
Company for approximately $275,000,000 in cash and the issuance of shares of a
new series of convertible Preferred Stock of the Parent (the "ACQUISITION").
In connection with the Acquisition, (a) the Parent intends to issue
Class A Shares pursuant to a registered public offering for gross cash proceeds
of at least $150,000,000, (b) the Parent intends to issue $45,000,000 aggregate
principal amount of its Series B Convertible Notes pursuant to the Series B
Note Purchase Agreements, (c) the Parent intends to amend the terms of its 7.0%
Convertible Subordinated Notes due 2003 pursuant to a Supplemental Agreement to
the Series A Note Purchase Agreements and to amend and restate the Registration
Rights Agreement dated as of December 18, 1996 between the Parent and the
holders of the Series A Convertible Notes and to include the holders of the
Series B Convertible Notes as parties thereto, (d) the Parent intends to
arrange for the refinancing of Debt under various vehicle financing facilities
of the Company and its Subsidiaries including, among others, the Liquidity
Facility and
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a rental car asset-backed commercial paper program through a special purpose,
bankruptcy remote, Wholly Owned Subsidiary of the Company, and (e) the Company,
as borrower, and the Parent, as guarantor, intend to enter into a $300,000,000
Revolving Credit Facility (the issuance of the Notes and the transactions
described in clauses (a) through (e) above are collectively the
"TRANSACTIONS").
2. SALE AND PURCHASE OF NOTES.
Subject to the terms and conditions of this Agreement, the Company
will issue and sell to you and you will purchase from the Company, at the
Closing provided for in Section 3, Notes in the aggregate principal amount
specified opposite your name in Schedule A at the purchase price of 100% of the
principal amount thereof. Contemporaneously with entering into this Agreement,
the Company and the Parent are entering into separate senior note purchase
agreements (the "OTHER AGREEMENTS") identical with this Agreement (except for
the principal amounts of Notes to be purchased) with each of the other
purchasers named in Schedule A (the "OTHER PURCHASERS"), providing for the sale
at such Closing to each of the Other Purchasers of Notes in the principal
amount specified opposite its name in Schedule A. Your obligation hereunder and
the obligations of the Other Purchasers under the Other Agreements are several
and not joint obligations and you shall have no obligation under any Other
Agreement and no liability to any Person for the performance or non-performance
by any Other Purchaser thereunder.
3. CLOSING.
The sale and purchase of the Notes to be purchased by you and the
Other Purchasers shall occur at the offices of Xxxxx, Xxxxx & Xxxxx, 0000
Xxxxxxxx, Xxx Xxxx, XX 00000, at 10:00 a.m., New York time, at a closing (the
"CLOSING") on April 29, 1997 or on such other Business Day thereafter on or
prior to May 15, 1997 as may be agreed upon by the Obligors and you and the
Other Purchasers. At the Closing the Company will deliver to you the Notes to
be purchased by you in the form of a single Note (or such greater number of
Notes in denominations of at least $500,000 as you may request) dated the date
of the Closing and registered in your name (or in the name of your nominee),
against delivery by you to the Company or its order of immediately available
funds in the amount of
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the purchase price therefor by wire transfer of immediately available funds for
the account of Budget Rent A Car Corporation to account number 00000000 at
Credit Suisse First Boston, New York, New York, ABA number 000000000.
If at the Closing the Company shall fail to tender such Notes to you
as provided above in this Section 3, or any of the conditions specified in
Section 4 shall not have been fulfilled to your satisfaction, you shall, at
your election, be relieved of all further obligations under this Agreement,
without thereby waiving any rights you may have by reason of such failure or
such nonfulfillment.
4. CONDITIONS TO CLOSING.
Your obligation to purchase and pay for the Notes to be sold to you at
the Closing is subject to the fulfillment to your satisfaction, prior to or at
the Closing, of the following conditions:
4.1. REPRESENTATIONS AND WARRANTIES.
The representations and warranties of the Obligors in this Agreement
shall (except as affected by the transactions contemplated hereby) be correct
when made and at the time of the Closing (including without limitation at the
time of the Closing after giving effect to the consummation of the Acquisition
and the Transactions).
4.2. PERFORMANCE; NO DEFAULT.
Each Obligor shall have performed and complied with all agreements and
conditions contained in this Agreement required to be performed or complied
with by it prior to or at the Closing and after giving effect to the issue and
sale of the Notes (and the application of the proceeds thereof as contemplated
by Section 5.14) and the consummation of the Acquisition and the Transactions,
no Default or Event of Default shall have occurred and be continuing.
4.3. COMPLIANCE CERTIFICATES.
(a) Officer's Certificates. Each Obligor shall have delivered to you
an Officer's Certificate, dated the date of the Closing, certifying that the
conditions specified in Sections 4.1, 4.2, 4.10 and 4.11 have been fulfilled.
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(b) Secretary's Certificates. Each Obligor and Subsidiary Guarantor
shall have delivered to you a certificate of its Secretary or an Assistant
Secretary certifying as to the resolutions attached thereto and other corporate
proceedings relating to the authorization, execution and delivery of this
Agreement, the Other Agreements, the Notes and the respective Subsidiary
Guarantees, as applicable.
4.4. OPINIONS OF COUNSEL.
You shall have received opinions in form and substance satisfactory to
you, dated the date of the Closing (a) from King & Spalding, special counsel
for the Parent, and Xxxxxxx X. Xxxxxxxx, counsel to the Parent, and Xxxxxx X.
Xxxxxx, Senior Vice President and General Counsel of the Company, substantially
in the respective forms set forth in Exhibits 4.4(a), 4.4(b) and 4.4(c) and
covering such other matters incident to the transactions contemplated hereby as
you or your counsel may reasonably request (and the Obligors hereby instruct
their counsel to deliver such opinions to you) and (b) from Xxxxxxx Xxxx &
Xxxxxxxxx, your special counsel in connection with such transactions,
substantially in the form set forth in Exhibit 4.4(d) and covering such other
matters incident to such transactions as you may reasonably request.
4.5. SUBSIDIARY GUARANTEES.
A Subsidiary Guarantee, dated as of a date on or before the date of
the Closing, shall have been executed and delivered by each Subsidiary
identified as a Subsidiary Guarantor in Schedule 5.4 (individually a
"SUBSIDIARY GUARANTOR" and collectively the "SUBSIDIARY GUARANTORS") in the
form hereinabove recited and shall be in full force and effect.
4.6. PURCHASE PERMITTED BY APPLICABLE LAW, ETC.
On the date of the Closing, your purchase of Notes shall (a)
be permitted by the laws and regulations of each jurisdiction to which you are
subject, without recourse to provisions (such as Section 1405(a)(8) of the New
York Insurance Law) permitting limited investments by insurance companies
without restriction as to the character of the particular investment, (b) not
violate any applicable law or regulation (including without limitation
Regulation G, T or X of the Board of Governors of the Federal Reserve System)
and (c) not subject you to any tax, penalty or liability under or pursuant to
any
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applicable law or regulation, which law or regulation was not in effect on the
date hereof. If requested by you, you shall have received an Officer's
Certificate certifying as to such matters of fact as you may reasonably specify
to enable you to determine whether such purchase is so permitted.
4.7. SALE OF NOTES TO OTHER PURCHASERS.
The Company shall sell to the Other Purchasers and the Other
Purchasers shall purchase the Notes to be purchased by them at the Closing as
specified in Schedule A.
4.8. PAYMENT OF SPECIAL COUNSEL FEES.
Without limiting the provisions of Section 16.1, the Obligors shall
have paid the reasonable fees, charges and disbursements of your special
counsel referred to in Section 4.4 to the extent reflected in a statement of
such counsel rendered to the Company at least one Business Day prior to the
Closing.
4.9. PRIVATE PLACEMENT NUMBER.
A Private Placement Number issued by Standard & Poor's CUSIP Service
Bureau (in cooperation with the Securities Valuation Office of the National
Association of Insurance Commissioners) shall have been obtained for the Notes.
4.10. CHANGES IN CORPORATE STRUCTURE.
Neither Obligor shall have changed its jurisdiction of incorporation
or, except for the Acquisition, been a party to any merger or consolidation or
succeeded to all or any substantial part of the liabilities of any other entity
at any time following the date of the most recent financial statements referred
to in Schedule 5.5.
4.11. CONTEMPORANEOUS TRANSACTIONS.
Each of the Transaction Documents shall be in full force and effect
and none of the Transaction Documents shall have been supplemented, amended or
modified (by waiver or otherwise) to any substantial extent without your prior
written consent; and the following additional conditions shall have been
satisfied:
(a) the Parent shall have acquired the outstanding capital stock of
the Company to be acquired by it and issued
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to Ford shares of Preferred Stock initially convertible into not more
than 4,500,000 Class A Shares, all pursuant to the Stock Purchase
Agreements;
(b) the Parent shall have issued Class A Shares in a registered public
offering and shall have received at least $150,000,000 aggregate gross
cash proceeds in respect of such offering;
(c) the terms of the Parent's 7.0% Convertible Subordinated Notes due
2003 shall have been amended pursuant to a Supplemental Agreement to the
Series A Note Purchase Agreements and the Parent shall have issued
$45,000,000 aggregate principal amount of the Series B Convertible Notes
pursuant to the Series B Note Purchase Agreements, such documents to be
substantially in the respective forms heretofore furnished to you;
(d) the Parent and the Company and the other parties thereto shall
have entered into the Revolving Credit Facility, in form and substance
satisfactory to you, and the Company shall have satisfied the conditions
precedent to the initial credit extension thereunder; and
(e) the Company and one or more of its Subsidiaries shall have entered
into the Liquidity Facility and other arrangements providing for the
refinancing of Vehicle Debt as hereinabove described.
You shall have received a true and complete copy of each certificate, opinion
or other writing then or theretofore delivered to any party to the Transaction
Documents pursuant thereto.
4.12. PROCEEDINGS AND DOCUMENTS.
All corporate and other proceedings in connection with the
transactions contemplated by this Agreement and all documents and instruments
incident to such transactions shall be satisfactory to you and your special
counsel, and you and your special counsel shall have received all such
counterpart originals or certified or other copies of such documents as you or
they may reasonably request.
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5. REPRESENTATIONS AND WARRANTIES OF THE OBLIGORS.
The Obligors jointly and severally represent and warrant to you as
hereinafter set forth. Unless the context otherwise requires all
representations and warranties set forth herein shall be deemed to be given
with respect to the Parent and its Subsidiaries or Significant Subsidiaries, as
the case may be, after giving effect to the consummation of the Acquisition and
the Transactions on the date of the Closing.
5.1. ORGANIZATION; POWER AND AUTHORITY.
Each Obligor is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation, and is duly
qualified as a foreign corporation and is in good standing in each jurisdiction
in which such qualification is required by law, other than those jurisdictions
as to which the failure to be so qualified or in good standing could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Each Obligor has the corporate power and authority to own or
hold under lease the properties it purports to own or hold under lease, to
transact the business it transacts and proposes to transact, to execute and
deliver this Agreement and the Other Agreements and (in the case of the
Company) the Notes and to perform the provisions hereof and thereof.
5.2. AUTHORIZATION, ETC.
This Agreement and the Notes have been duly authorized by all
necessary corporate action on the part of the Company, and this Agreement
constitutes, and upon execution and delivery thereof each Note will constitute,
a legal, valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, except as such enforceability may be
limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally and
(b) general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). This Agreement has been duly
authorized by all necessary corporate action on the part of the Parent and this
Agreement constitutes a legal, valid and binding obligation of the Parent
enforceable against the Parent in accordance with its terms, except as such
enforceability may be limited as aforesaid.
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5.3. DISCLOSURE.
The Parent, through its agent, Credit Suisse First Boston Corporation,
has delivered to you a copy of a Preliminary Prospectus (subject to completion)
dated April 18, 1997 (the "PROSPECTUS") relating to the issue and sale of
6,500,000 Class A Shares in connection with the Acquisition pursuant to a
registration statement under the Securities Act. The Prospectus fairly
describes, in all material respects, the business and principal properties of
the Parent and its Subsidiaries, the Acquisition and the Transactions. This
Agreement, the Prospectus, the documents, certificates or other writings
delivered to you by or on behalf of the Obligors in connection with the
transactions contemplated hereby and described in Schedule 5.3 (together with
the Prospectus, the "DISCLOSURE DOCUMENTS"), and the financial statements
listed in Schedule 5.5, taken as a whole, do not contain any untrue statement
of a material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading. Since December 31, 1996, there has been no change in
the financial condition, operations, business, properties or prospects of the
Obligors and their respective Subsidiaries, each taken as a whole, except
changes disclosed in the Disclosure Documents or in the financial statements
listed in Schedule 5.5 and other changes that individually or in the aggregate
could not reasonably be expected to have a Material Adverse Effect.
5.4. ORGANIZATION AND OWNERSHIP OF SHARES OF SUBSIDIARIES; AFFILIATES.
(a) Schedule 5.4 contains (except as noted therein) complete and
correct lists of the Parent's (i) Subsidiaries, showing, as to each Subsidiary,
the correct name thereof, the jurisdiction of its organization, the percentage
of shares of each class of its capital stock or similar equity interests
outstanding owned by the Parent and each other Subsidiary and whether it is a
Subsidiary Guarantor or a Significant Subsidiary, (ii) Affiliates, other than
Subsidiaries, and (iii) directors and senior officers, in each case after
giving effect to the Acquisition. All Subsidiaries that are not designated as
Significant Subsidiaries in Schedule 5.4, if combined into a single Subsidiary,
would not constitute a Significant Subsidiary.
(b) All of the outstanding shares of capital stock or
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similar equity interests of each Significant Subsidiary shown in Schedule 5.4
as being owned by the Parent and its Subsidiaries have been validly issued, are
fully paid and nonassessable and are owned by the Parent or another Subsidiary
free and clear of any Lien, other than as listed on Schedule 5.4.
(c) Each Significant Subsidiary identified in Schedule 5.4 is a
corporation duly organized, validly existing and in good standing (to the
extent such concepts are recognized in such jurisdictions) under the laws of
its jurisdiction of organization, and is duly qualified as a foreign
corporation and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to which
the failure to be so qualified or in good standing could not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect.
Each such Significant Subsidiary has the corporate power and authority to own
or hold under lease the properties it purports to own or hold under lease and
to transact the business it transacts and proposes to transact and, as to each
Subsidiary Guarantor, to execute and deliver and perform its obligations under
its respective Subsidiary Guarantee.
(d) No Significant Subsidiary is a party to, or otherwise subject to
any legal restriction or any agreement (other than this Agreement, the
agreements listed in Schedule 5.4 and customary limitations imposed by
corporate law statutes) restricting the ability of such Significant Subsidiary
to pay dividends out of profits or make any other similar distributions of
profits to the Parent or any of its Subsidiaries that owns outstanding shares
of capital stock or similar equity interests of such Significant Subsidiary.
5.5. FINANCIAL STATEMENTS.
Each Obligor has delivered to you copies of the financial statements
of each Obligor and its respective Subsidiaries listed in Schedule 5.5. All of
said financial statements (including in each case the related schedules and
notes) fairly present in all material respects the consolidated financial
position of each Obligor and its respective Subsidiaries before giving effect
to the Acquisition and the Transactions or the pro forma consolidated financial
position of the Parent and its Subsidiaries after giving effect to the
Acquisition and the Transactions, as the case may be, as of the
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respective dates specified in such Schedule and the consolidated results or pro
forma consolidated results, as the case may be, of their operations and cash
flows, as applicable, for the respective periods so specified and have been
prepared in accordance with GAAP consistently applied throughout the periods
involved except as set forth in the notes thereto.
5.6. COMPLIANCE WITH LAWS, OTHER INSTRUMENTS, ETC.
The execution, delivery and performance by the Company of this
Agreement and the Notes, by the Parent of this Agreement, by the Subsidiary
Guarantors of their respective Subsidiary Guarantees and by the Parent, the
Company or any Subsidiary of any Transaction Document to which it is a party,
will not (i) contravene, result in any breach of, or constitute a default
under, or result in the creation of any Lien in respect of any property of the
Company, the Parent or any other Significant Subsidiary under, any indenture,
mortgage, deed of trust, loan, purchase or credit agreement, lease or any other
material agreement or instrument to which the Company, the Parent or any other
Significant Subsidiary is bound or by which the Company, the Parent or any
other Significant Subsidiary or any of their respective properties may be bound
or affected, (ii) contravene the charter or bylaws of the Company, the Parent
or any other Significant Subsidiary, (iii) conflict with or result in a breach
of any of the terms, conditions or provisions of any order, judgment, decree,
or ruling of any court, arbitrator or Governmental Authority applicable to the
Company, the Parent or any other Significant Subsidiary or (iv) violate any
provision of any statute or other rule or regulation of any Governmental
Authority applicable to the Company, the Parent or any other Significant
Subsidiary.
5.7. GOVERNMENTAL AUTHORIZATIONS, ETC.
No consent, approval or authorization of, or registration, filing or
declaration with, any Governmental Authority is required in connection with the
execution, delivery or performance by the Company of this Agreement or the
Notes, by the Parent of this Agreement or by the Subsidiary Guarantors of their
respective Subsidiary Guarantees.
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5.8. LITIGATION; OBSERVANCE OF AGREEMENTS, STATUTES AND ORDERS.
(a) Except as disclosed in Schedule 5.8, there are no actions, suits
or proceedings pending or, to the knowledge of the Obligors, threatened against
or affecting the Parent or any Significant Subsidiary or any property of the
Parent or any Significant Subsidiary in any court or before any arbitrator of
any kind or before or by any Governmental Authority except actions, suits or
proceedings (none of which directly or indirectly involves the Acquisition or
the Transactions) that, individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect.
(b) Neither the Parent nor any Significant Subsidiary is in default
under any term of any agreement or instrument to which it is a party or by
which it is bound, or any order, judgment, decree or ruling of any court,
arbitrator or Governmental Authority or is in violation of any applicable law,
ordinance, rule or regulation (including without limitation Environmental Laws)
of any Governmental Authority, which default or violation, individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect.
5.9. TAXES.
The Parent and its Significant Subsidiaries have filed all tax returns
that are required to have been filed in any jurisdiction, and have paid all
taxes shown to be due and payable on such returns and all other taxes and
assessments levied upon them or their properties, assets, income or franchises,
to the extent such taxes and assessments have become due and payable and before
they have become delinquent, except for any taxes and assessments (a) the
amount of which is not individually or in the aggregate Material or (b) the
amount, applicability or validity of which is currently being contested in good
faith by appropriate proceedings and with respect to which the Parent or a
Significant Subsidiary, as the case may be, has established adequate reserves
in accordance with GAAP. The Parent believes that the charges, accruals and
reserves on the books of the Parent and its Subsidiaries in respect of Federal,
state or other taxes for all fiscal periods are adequate.
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5.10. TITLE TO PROPERTY; LEASES.
The Parent and its Significant Subsidiaries have good and marketable
title to their respective real properties and own sufficient title to their
respective other properties that individually or in the aggregate are Material,
including all such properties reflected in the most recent audited balance
sheet listed on Schedule 5.5 or purported to have been acquired by the Parent
or any Significant Subsidiary after the date of said balance sheet (except as
sold or otherwise disposed of in the ordinary course of business), either
before or after giving effect to the Acquisition, in each case free and clear
of Liens not permitted by this Agreement. All leases that individually or in
the aggregate are Material are valid and subsisting and are in full force and
effect in all Material respects.
5.11. LICENSES, PERMITS, ETC.
Except as disclosed in Schedule 5.11,
(a) the Parent and its Significant Subsidiaries own or possess all
licenses, permits, franchises, authorizations, patents, copyrights,
proprietary software, service marks, trademarks and trade names, or
rights thereto, that individually or in the aggregate are Material,
without known conflict with the rights of others;
(b) to the best knowledge of the Obligors, no product of the Parent
infringes in any Material respect any license, permit, franchise,
authorization, patent, copyright, proprietary software, service xxxx,
trademark, trade name or other right owned by any other Person; and
(c) to the best knowledge of the Obligors, there is no Material
violation by any Person of any right of the Parent or any of its
Significant Subsidiaries with respect to any patent, copyright,
proprietary software, service xxxx, trademark, trade name or other right
owned or used by the Parent or any of its Subsidiaries.
5.12. COMPLIANCE WITH ERISA.
(a) The Obligors and each of their ERISA Affiliates have operated and
administered each Plan in compliance with all applicable laws except for such
instances of noncompliance as have not resulted in and could not reasonably be
expected to
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result in a Material Adverse Effect. Neither of the Obligors nor any of their
ERISA Affiliates has incurred any liability pursuant to Title I or IV of ERISA
or the penalty or excise tax provisions of the Code relating to any Plan other
than such liabilities as would not be individually or in the aggregate
Material, and to the Obligors' knowledge, no event, transaction or condition
has occurred or exists that could reasonably be expected to result in the
incurrence of any such liability by an Obligor or any of its ERISA Affiliates,
or in the imposition of any Lien on any of the rights, properties or assets of
either Obligor or any of its ERISA Affiliates, in either case pursuant to Title
I or IV of ERISA or to such penalty or excise tax provisions or to section
401(a)(29) or 412 of the Code, other than such liabilities or Liens as would
not be individually or in the aggregate Material.
(b) The present value of the aggregate benefit liabilities under each
of the Plans (other than Multiemployer Plans), determined as of the end of such
Plan's most recently ended plan year on the basis of the actuarial assumptions
specified for funding purposes in such Plan's most recent actuarial valuation
report, did not exceed the aggregate current value of the assets of such Plan
allocable to such benefit liabilities, except as described in the financial
statements included in the Prospectus. The term "BENEFIT LIABILITIES" has the
meaning specified in section 4001 of ERISA and the terms "CURRENT VALUE" and
"PRESENT VALUE" have the meaning specified in section 3 of ERISA.
(c) The Obligors and their ERISA Affiliates have not incurred
withdrawal liabilities (and are not subject to contingent withdrawal
liabilities) under section 4201 or 4204 of ERISA in respect of Multiemployer
Plans that individually or in the aggregate are Material.
(d) The expected postretirement benefit obligation (determined as of
the last day of the Parent's most recently ended fiscal year in accordance with
Financial Accounting Standards Board Statement No. 106, without regard to
liabilities attributable to continuation coverage mandated by section 4980B of
the Code) of the Parent and its Subsidiaries is not Material.
(e) The execution and delivery of this Agreement and the Parent
Guarantee and the issuance and sale of the Notes at the Closing hereunder will
not involve any transaction that is
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subject to the prohibitions of section 406 fof ERISA or in connection with
which a tax could be imposed pursuant to section 4975(c)(1)(A)-(D) of the Code.
The representation by the Obligors in the first sentence of this Section
5.12(e) is made in reliance upon and subject to the accuracy of your
representation in Section 6.2 as to the sources of the funds used to pay the
purchase price of the Notes to be purchased by you.
5.13. PRIVATE OFFERING BY THE OBLIGORS.
Neither Obligor nor anyone acting on its behalf has offered the Notes,
the Parent Guarantee, the Subsidiary Guarantees or any similar securities for
sale to, or solicited any offer to buy any of the same from, or otherwise
approached or negotiated in respect thereof with, any person other than you,
the Other Purchasers and not more than six other Institutional Investors, each
of which has been offered the Notes at a private sale for investment. Neither
Obligor nor anyone acting on its behalf has taken, or will take, any action
that would subject the issuance or sale of the Notes or the issuance of the
Parent Guarantee or the Subsidiary Guarantees to the registration requirements
of Section 5 of the Securities Act.
5.14. USE OF PROCEEDS; MARGIN REGULATIONS.
The Company will use the net proceeds of the sale of the Notes to
repay Debt of the Company and for general corporate purposes of the Company. No
part of the proceeds from the sale of the Notes hereunder will be used, and no
part of the proceeds of such Debt was used, directly or indirectly, for the
purpose of buying or carrying any margin stock within the meaning of Regulation
G of the Board of Governors of the Federal Reserve System (12 CFR 207), or for
the purpose of buying or carrying or trading in any securities under such
circumstances as to involve the Company or the Parent in a violation of
Regulation X of said Board (12 CFR 224) or to involve any broker or dealer in a
violation of Regulation T of said Board (12 CFR 220). Margin stock does not
constitute any of the consolidated assets of the Parent and its Subsidiaries
and the Parent does not have any present intention that margin stock will
constitute more than 20% of the value of such assets. As used in this Section,
the terms "MARGIN STOCK" and "PURPOSE OF BUYING OR CARRYING" shall have the
meanings assigned to them in said Regulation G.
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5.15. EXISTING DEBT; FUTURE LIENS.
(a) Schedule 5.15 sets forth a complete and correct list of all
outstanding Debt of the Parent and its Subsidiaries as of March 31, 1997, and
all Debt of the Parent and its Subsidiaries to be outstanding as of the date of
the Closing after giving effect to the Acquisition and the Transactions.
Neither the Parent nor any Subsidiary is in default, and no waiver of default
is currently in effect, in the payment of any principal or interest on any such
Debt, and no event or condition exists with respect to any such Debt exceeding
$1,000,000 in unpaid principal amount that would permit (or that with the
giving of notice or the lapse of time, or both, would permit) one or more
Persons to cause such Debt to become due and payable before its stated maturity
or before its regularly scheduled dates of payment.
(b) Except as disclosed in Schedule 5.15, neither the Parent nor any
Subsidiary has agreed or consented to cause or permit in the future (upon the
happening of a contingency or otherwise) any of its property, whether now owned
or hereafter acquired, to be subject to a Lien not permitted by Section 10.2.
5.16. FOREIGN ASSETS CONTROL REGULATIONS, ETC.
Neither the sale of the Notes by the Company hereunder nor its use of
the proceeds thereof will violate the Trading with the Enemy Act, as amended,
or any of the foreign assets control regulations of the United States Treasury
Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling
legislation or executive order relating thereto.
5.17. STATUS UNDER CERTAIN STATUTES.
Neither the Parent nor any Subsidiary is subject to regulation under
the Investment Company Act of 1940, as amended, the Public Utility Holding
Company Act of 1935, as amended, the Interstate Commerce Act, as amended, or
the Federal Power Act, as amended.
5.18. ENVIRONMENTAL MATTERS.
The operations of the Parent and its Subsidiaries comply with all
Environmental Laws and all other applicable Requirements of Law concerning
environmental health and safety, except where the failure so to comply
individually and in the
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aggregate could not reasonably be expected to have a Material Adverse Effect.
In addition to and without limiting the foregoing, except for matters
that individually or in the aggregate could not reasonably be expected to have
a Material Adverse Effect:
(a) neither the Parent nor any Significant Subsidiary, nor any
property or operations currently owned or leased by the Parent or any
Significant Subsidiary, is subject to, and no property or operations
formerly owned or leased by the Parent or any Significant Subsidiary
during such period of ownership or lease were to either Obligor's
knowledge subject to, any Order from or agreement with any court,
arbitrator or Governmental Authority of competent jurisdiction or subject
to any judicial or docketed administrative proceeding respecting (x) any
Environmental Law or any other environmental or health or safety
Requirement of Law, (y) any action required to clean up, remove, treat or
in any other way address Hazardous Materials in the environment or (z)
any written claim under any Environmental Law arising from the release or
threatened release of Hazardous Materials into the environment;
(b) all necessary authorizations, consents, permissions, licenses and
agreements required by Environmental Laws (collectively "ENVIRONMENTAL
CONSENTS") have been lawfully obtained by the Parent and its
Subsidiaries, and all Environmental Consents are valid and subsisting and
are in full force and effect;
(c) the Parent and its Significant Subsidiaries have complied in all
material respects with all conditions attaching to Environmental Consents
(whether such conditions are expressly imposed or implied by statute) and
neither Obligor is aware of any circumstances which would render it
impossible for the Parent or any Significant Subsidiary to comply with
such conditions in the future;
(d) neither the Parent nor any Significant Subsidiary has received any
written notice, Order, correspondence or communication from any
Governmental Authority in respect of any Environmental Consent revoking,
suspending, modifying or varying the same, or threatening to do so, and
neither
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Obligor knows of any reason for any Environmental Consent to be revoked,
suspended, modified or varied;
(e) neither the Parent nor any Significant Subsidiary has received any
written communication in any form from any Governmental Authority in
respect of any violation of any Environmental Law; and neither Obligor is
aware of any circumstances which would be reasonably expected to give
rise to such a communication being received, or of any intention on the
part of any competent authority to deliver any such communication;
(f) to either Obligor's knowledge, no site owned or occupied by the
Parent or any Subsidiary has been used for the deposit of waste during
the ownership or occupation of the Parent or any Subsidiary except for
such usage in accordance with Environmental Law or pursuant to all
requisite material consents thereunder;
(g) to either Obligor's knowledge, all Hazardous Materials produced in
the course of the businesses of the Parent and its Subsidiaries have been
lawfully disposed of; and
(h) to either Obligor's knowledge, the Parent and its Subsidiaries
have at all times supplied to the competent authorities such information
as is required by Environmental Laws, and all such information given was
correct at the time such information was supplied.
5.19. SOLVENCY.
Each Obligor is, and after giving effect to the issuance of the Notes
and the consummation of the Acquisition and the Transactions on the date of the
Closing will be, a "solvent institution", as said term is used in Section
1405(c) of the New York Insurance Law, whose "obligations . . . are not in
default as to principal or interest", as said terms are used in said Section
1405(c).
5.20. OTHER TRANSACTION DOCUMENTS.
The Parent has furnished or otherwise made available to you true and
correct copies of the Stock Purchase Agreements and other Transaction Documents
to which you are not a party, in each case, in the form of the most recent
drafts (which are
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substantially final) or as originally executed, as the case may be, and there
have been no amendments or waivers to any such originally executed Transaction
Documents or the exhibits or schedules thereto and there will be no substantial
changes before execution of any such Transaction Documents not yet executed, or
amendments or waivers in respect thereof, in any such case other than those as
to which you shall have been advised in writing prior to the Closing.
The representations and warranties of the Parent and its Subsidiaries
contained in such other Transaction Documents (executed and to be executed) are
(or upon execution thereof will be) true and correct.
6. REPRESENTATIONS OF THE PURCHASER.
6.1. PURCHASE OF NOTES.
You represent that you are purchasing the Notes for your own account
or for one or more separate accounts maintained by you or for the account of
one or more pension or trust funds and not with a view to the distribution
thereof, provided that the disposition of your or their property shall at all
times be within your or their control. You understand that the Notes have not
been registered under the Securities Act and may be resold only if registered
pursuant to the provisions of the Securities Act or if an exemption from
registration is available, except under circumstances where neither such
registration nor such an exemption is required by law, and that the Company is
not required to register the Notes.
6.2. SOURCE OF FUNDS.
You represent that at least one of the following statements is an
accurate representation as to each source of funds (a "SOURCE") to be used by
you to pay the purchase price of the Notes to be purchased by you hereunder:
(a) the Source is an "insurance company general account", as such term
is defined in Prohibited Transaction Exemption ("PTE") 95-60 (issued July
12, 1995), and there is no plan with respect to which the aggregate
amount of such general account's reserves and liabilities for the
contracts held by or on behalf of such plan and all other plans
maintained by the same employer (and affiliates thereof as defined in
section V(a)(1) of PTE 95-60) or by the same
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employee organization (in each case determined in accordance with PTE
95-60) exceeds or will exceed 10% of the total of all reserves and
liabilities of such general account (determined in accordance with PTE
95-60, exclusive of separate account liabilities, plus any applicabl
surplus) as of the date of the Closing; or
(b) the Source is either (i) an insurance company pooled separate
account, within the meaning of PTE 90-1 (issued January 29, 1990), or
(ii) a bank collective investment fund, within the meaning of the PTE
91-38 (issued July 12, 1991) and, except as you have disclosed to the
Obligors in writing pursuant to this paragraph (b) at least one Business
Day prior to the Closing, no employee benefit plan or group of plans
maintained by the same employer or employee organization beneficially
owns more than 10% of all assets allocated to such pooled separate
account or collective investment fund and the general conditions in
Section III of PTE 90-1 and PTE 91-38 have been satisfied; or
(c) the Source constitutes assets of an "investment fund" (within the
meaning of Part V of the QPAM Exemption) managed by a "qualified
professional asset manager" or "QPAM" (within the meaning of Part V of
the QPAM Exemption), no employee benefit plan's assets that are included
in such investment fund, when combined with the assets of all other
employee benefit plans established or maintained by the same employer or
by an affiliate (within the meaning of Section V(c)(1) of the QPAM
Exemption) of such employer or by the same employee organization and
managed by such QPAM, exceed 20% of the total client assets managed by
such QPAM, the conditions of Part I(c) and (g) of the QPAM Exemption are
satisfied, neither the QPAM nor a person controlling or controlled by the
QPAM (applying the definition of "control" in section V(e) of the QPAM
Exemption) owns a 5% or more interest in the Parent and (i) the identity
of such QPAM and (ii) the names of all employee benefit plans whose
assets are included in such investment fund have been disclosed to the
Obligors in writing pursuant to this paragraph (c) at least one Business
Day prior to the Closing; or
(d) the Source is a governmental plan; or
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(e) the Source is one or more employee benefit plans, or a separate
account or trust fund comprised of one or more employee benefit plans,
each of which has been identified to the Obligors in writing pursuant to
this paragraph (e) at least one Business Day prior to the Closing; or
(f) the Source does not include assets of any employee benefit plan,
other than a plan exempt from the coverage of ERISA.
As used in this Section 6.2, the terms "EMPLOYEE BENEFIT PLAN", "GOVERNMENTAL
PLAN" and "SEPARATE ACCOUNT" shall have the respective meanings assigned to
such terms in section 3 of ERISA.
7. INFORMATION AS TO OBLIGORS.
7.1. FINANCIAL AND BUSINESS INFORMATION.
The Obligors shall deliver to each holder of Notes that is an
Institutional Investor:
(a) Quarterly Statements -- as soon as available and in any event
within 60 days after the end of each quarterly fiscal period in each
fiscal year of the Parent (other than the last quarterly fiscal period of
each such fiscal year), duplicate copies of
(i) consolidating and consolidated balance sheets of the
Parent and its Subsidiaries as at the end of such quarter,
(ii) consolidating and consolidated statements of income of
the Parent and its Subsidiaries for such quarter, and
(iii) in the case of the first quarter, consolidated
statements of cash flows and changes in shareholders' equity of the
Parent and its Subsidiaries for such quarter and, in the case of the
second and third quarters, consolidated and consolidating statements
of income and consolidated statements of cash flows and changes in
shareholders' equity for the portion of the fiscal year ending with
such quarter,
setting forth in each case (for consolidated statements) in comparative
form the consolidated figures for the
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corresponding periods in the previous fiscal year, all in reasonable
detail, prepared in accordance with GAAP applicable to quarterly
financial statements generally, and certified by a Senior Financial
Officer of the Parent as fairly presenting, in all material respects, the
financial position of the companies being reported on and their results
of operations and cash flows, subject to changes resulting from year-end
adjustments, provided that delivery within the time period specified
above of copies of the Parent's Quarterly Report on Form 10-Q prepared in
compliance with the requirements therefor and filed with the Securities
and Exchange Commission shall be deemed to satisfy the requirements of
this Section 7.1(a);
(b) Annual Statements -- as soon as available and in any event within
105 days after the end of each fiscal year of the Parent, duplicate
copies of
(i) consolidating and consolidated balance sheets of the
Parent and its Subsidiaries as at the end of such year, and
(ii) consolidating and consolidated statements of income and
consolidated statements of cash flows and changes in shareholders'
equity of the Parent and its Subsidiaries for such year,
setting forth in each case (for consolidated statements) in comparative
form the consolidated figures for the previous fiscal year, all in
reasonable detail, prepared in accordance with GAAP, and such
consolidated statements to be accompanied by
(A) a report thereon of independent public accountants of
recognized national standing, which report shall include an opinion
that such consolidated financial statements present fairly, in all
material respects, the financial position of the companies being
reported upon and their results of operations and cash flows and have
been prepared in conformity with GAAP, and that the examination of
such accountants in connection with such financial statements has been
made in accordance with generally accepted auditing standards, and
that such audit provides a reasonable basis for such opinion in the
circumstances, and
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(B) a certificate of such accountants stating that they have
reviewed this Agreement and stating further whether, in making their
audit, they have become aware of any condition or event that then
constitutes a Default or an Event of Default, and, if they are aware
that any such condition or event then exists, specifying the nature
and period of the existence thereof (it being understood that such
accountants shall not be liable, directly or indirectly, for any
failure to obtain knowledge of any Default or Event of Default unless
such accountants should have obtained knowledge thereof in making an
audit in accordance with generally accepted auditing standards or did
not make such an audit),
provided that the delivery within the time period specified above of the
Parent's Annual Report on Form 10-K for such fiscal year (together with
the Parent's annual report to shareholders, if any, prepared pursuant to
Rule 14a-3 under the Exchange Act) prepared in accordance with the
requirements therefor and filed with the Securities and Exchange
Commission, together with the accountant's certificate described in
clause (B) above, shall be deemed to satisfy the requirements of this
Section 7.1(b);
(c) SEC and Other Reports -- promptly upon their becoming available,
one copy of (i) each financial statement, report, notice or proxy
statement sent by the Parent or any Subsidiary generally to its
shareholders or to its creditors (other than the Parent or another
Subsidiary), and (ii) each regular or periodic report, each registration
statement (without exhibits except as expressly requested by such
holder), and each prospectus and all amendments thereto filed by the
Parent or any Subsidiary with the Securities and Exchange Commission and
of all press releases and other statements made available generally by
the Parent or any Subsidiary to the public concerning developments that
are Material;
(d) Notice of Default or Event of Default -- promptly, and in any
event within five days after a Responsible Officer of either Obligor
becoming aware of the existence of any Default or Event of Default or
that any Person has given any notice or taken any action with respect to
a claimed default hereunder or that any Person has given any notice or
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taken any action with respect to a claimed default of the type referred
to in Section 11(g), a written notice specifying the nature and period of
existence thereof and what action the Obligors are taking or propose to
take with respect thereto;
(e) ERISA Matters -- promptly, and in any event within five days after
a Responsible Officer of either Obligor becoming aware of any of the
following, a written notice setting forth the nature thereof and the
action, if any, that the Obligors or an ERISA Affiliate propose to take
with respect thereto:
(i) with respect to any Plan, any reportable event, as
defined in section 4043(b) of ERISA and the regulations thereunder,
for which notice thereof has not been waived pursuant to such
regulations as in effect on the date hereof; or
(ii) the taking by the PBGC of steps to institute, or the
threatening by the PBGC of the institution of, proceedings under
section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan, or the receipt by an Obligor or any
ERISA Affiliate of a notice from a Multiemployer Plan that such action
has been taken by the PBGC with respect to such Multiemployer Plan; or
(iii) any event, transaction or condition that could result
in the incurrence of any liability by an Obligor or any ERISA
Affiliate pursuant to Title I or IV of ERISA or the penalty or excise
tax provisions of the Code relating to employee benefit plans, or in
the imposition of any Lien on any of the rights, properties or assets
of an Obligor or any ERISA Affiliate pursuant to Title I or IV of
ERISA or such penalty or excise tax provisions, if such liability or
Lien, taken together with any other such liabilities or Liens then
existing, could reasonably be expected to have a Material Adverse
Effect;
(f) Notices from Governmental Authority -- promptly, and in any event
within 30 days of receipt thereof, copies of any notice to the Parent or
any Subsidiary from any federal or state Governmental Authority relating
to any
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order, ruling, statute or other law or regulation that could reasonably
be expected to have a Material Adverse Effect; and
(g) Requested Information -- with reasonable promptness, such other
data and information relating to the business, operations, affairs,
financial condition, assets or properties of the Parent or any of its
Subsidiaries or relating to the ability of the Parent to perform its
obligations hereunder, the ability of the Company to perform its
obligations hereunder and under the Notes or the ability of a Subsidiary
Guarantor to perform its obligations under its respective Subsidiary
Guarantee, in each case as from time to time may be reasonably requested
by any such holder of Notes.
Unless at the time the Obligors are subject to Section 13 or 15(d) of
the Exchange Act, the Parent shall deliver, with reasonable promptness after a
written request therefor by any holder of a Note or a prospective transferee of
a Note, information satisfying the requirements of subsection (d)(4)(i) of Rule
144A of the Securities and Exchange Commission under the Securities Act or any
similar rule then in effect.
7.2. OFFICER'S CERTIFICATE.
Each set of financial statements delivered to a holder of Notes
pursuant to Section 7.1(a) or Section 7.1(b) shall be accompanied by a
certificate of a Senior Financial Officer of the Parent setting forth:
(a) Covenant Compliance -- the information (including detailed
calculations) required in order to establish whether the Obligors were in
compliance with the requirements of Sections 10.1 through 10.7,
inclusive, during the quarterly or annual period covered by the
statements then being furnished (including with respect to each such
Section, where applicable, the calculations of the maximum or minimum
amount, ratio or percentage, as the case may be, permissible under the
terms of such Sections, and the calculation of the amount, ratio or
percentage then in existence); and
(b) Default -- a statement that such Senior Financial Officer has
reviewed the relevant terms hereof and has made, or caused to be made,
under his or her supervision, a review
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of the transactions and conditions of the Parent and its Subsidiaries
from the beginning of the quarterly or annual period covered by the
statements then being furnished to the date of the certificate and that
such review shall not have disclosed the existence during such period of
any condition or event that constitutes a Default or an Event of Default
or, if any such condition or event existed or exists (including, without
limitation, any such event or condition resulting from the failure of the
Parent or any Subsidiary to comply with any Environmental Law),
specifying the nature and period of existence thereof and what action the
Obligors shall have taken or propose to take with respect thereto.
7.3. INSPECTION.
The Parent shall permit the representatives of each holder of Notes
that is an Institutional Investor:
(a) No Default -- if no Default or Event of Default then exists, at
the expense of such holder and upon reasonable prior notice to the
Parent, to visit the principal executive offices of the Parent and the
Company, to discuss the affairs, finances and accounts of the Parent and
its Subsidiaries with the officers of the Parent and the Company, and
(with the consent of the Parent, which consent will not be unreasonably
withheld) its independent public accountants, and (with the consent of
the Parent, which consent will not be unreasonably withheld) to visit the
other offices and properties of the Parent and each Subsidiary, all at
such reasonable times and as often as may be reasonably requested in
writing; and
(b) Default -- if a Default or Event of Default then exists, at the
expense of the Obligors, to visit and inspect any of the offices or
properties of the Parent or any Subsidiary, to examine all their
respective books of account, records, reports and other papers, to make
copies and extracts therefrom, and to discuss their respective affairs,
finances and accounts with their respective officers, employees and
independent public accountants (and by this provision the Parent
authorizes said accountants to discuss the affairs, finances and accounts
of the Parent and its Subsidiaries), all at such times and as often as
may be requested.
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8. PREPAYMENT OF THE NOTES.
In addition to the payment of the entire unpaid principal amount of
the Notes at the final maturity thereof, the Company will make required, and
may make optional, prepayments in respect of the Notes as hereinafter provided.
8.1. REQUIRED PREPAYMENTS.
On April 29, 2001 and on each April 29 thereafter to and including
April 29, 2006 the Company will prepay $23,575,000 principal amount (or such
lesser principal amount as shall then be outstanding) of the Notes, together
with accrued interest thereon to the date of such prepayment, without premium
and allocated as provided in Section 8.4, provided that upon any partial
prepayment of the Notes pursuant to Section 8.2 or 8.3, the principal amount of
each required prepayment of the Notes becoming due under this Section 8.1 on
and after the date of such prepayment shall be reduced in the same proportion
as the aggregate unpaid principal amount of the Notes is reduced as a result of
such prepayment.
8.2. OPTIONAL PREPAYMENTS.
The Company may, at its option and upon notice as provided below,
prepay at any time all (subject to the last paragraph of this Section 8.2), or
from time to time any part of, the Notes (in a minimum amount of $10,000,000
and otherwise in integral multiples of $1,000,000), at the principal amount so
prepaid, together with interest accrued thereon to the date of such prepayment,
plus the Make-Whole Amount determined for the prepayment date with respect to
such principal amount. The Company will give each holder of Notes written
notice of each optional prepayment under this Section 8.2 not less than 30 days
and not more than 60 days prior to the date fixed for such prepayment. Each
such notice shall specify the date fixed for such prepayment (which shall be a
Business Day), the aggregate principal amount of the Notes to be prepaid on
such date, the principal amount of Notes held by such holder to be prepaid
(determined in accordance with Section 8.4) and the interest to be paid on the
prepayment date with respect to such principal amount being prepaid.
Each such notice of prepayment shall be accompanied by a certificate
of a Senior Financial Officer of an Obligor as to the estimated Make-Whole
Amount due in connection with such
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prepayment (calculated as if the date of such notice were the date of the
prepayment), setting forth the details of such computation. Two Business Days
prior to such prepayment of Notes, the Company shall deliver to each holder of
the Notes a certificate of a Senior Financial Officer of an Obligor specifying
the calculation of such Make-Whole Amount as of the specified prepayment date.
Notwithstanding the foregoing, until the earlier of (i) a public
offering and sale of the Exchange Parent Convertible Notes pursuant to a demand
registration under the Registration Rights Agreement and (ii) the prepayment or
conversion of all outstanding Parent Convertible Notes, the Company may not
make any prepayment of Notes pursuant to this Section 8.2 if, after giving
effect thereto, the aggregate unpaid principal amount of the Notes at the time
outstanding would be less than $23,000,000.
8.3. PREPAYMENT IN CONNECTION WITH A CHANGE OF CONTROL.
Promptly and in any event within five Business Days after the
occurrence of a Change of Control, either Obligor will give written notice
thereof to the holders of all outstanding Notes, which notice shall (a) refer
specifically to this Section 8.3, (b) describe the Change of Control in
reasonable detail and specify the Change of Control Prepayment Date and the
Response Date (as respectively defined below) in respect thereof and (c) offer
to prepay all Notes at the price specified below on the date therein specified
(the "CHANGE OF CONTROL PREPAYMENT DATE"), which shall be a Business Day not
less than 30 nor more than 60 days after the date of such notice. Each holder
of a Note will notify the Company of such holder's acceptance (indicating the
aggregate principal amount of Notes to be prepaid) or rejection of such offer
by giving written notice of such acceptance or rejection to the Company at
least five Business Days prior to the Change of Control Prepayment Date (the
"RESPONSE DATE"). The failure by any such holder to respond in writing to such
offer on or before the Response Date shall be deemed to be a rejection of such
offer by such holder in respect of such Change of Control.
On the Change of Control Prepayment Date the Company will prepay all
of the Notes held by the holders as to which such offer has been accepted, at
the principal amount of each such Note, together with interest accrued thereon
to the Change of Control Prepayment Date, plus a premium equal to 1% of such
principal amount.
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If any holder of Notes shall reject such offer, such holder shall be
deemed to have waived its rights under this Section 8.3 to require prepayment
of all Notes held by such holder in respect of such Change of Control but not
in respect of any subsequent Change of Control.
8.4. ALLOCATION OF PARTIAL PREPAYMENTS.
In the case of each partial prepayment of the Notes pursuant to
Section 8.1 or 8.2, the principal amount of the Notes to be prepaid shall be
allocated among all the Notes at the time outstanding in proportion, as nearly
as practicable, to the respective unpaid principal amounts thereof.
8.5. MATURITY; SURRENDER, ETC.
In the case of each prepayment of Notes pursuant to this Section 8,
the principal amount of each Note to be prepaid shall mature and become due and
payable on the date fixed for such prepayment, together with interest on such
principal amount accrued to such date and the applicable Make-Whole Amount or
premium, if any. From and after such date, unless the Company shall fail to pay
such principal amount when so due and payable, together with the interest and
Make-Whole Amount or premium, if any, as aforesaid, interest on such principal
amount shall cease to accrue. Any Note paid or prepaid in full shall be
surrendered to the Company upon request and cancelled and shall not be
reissued, and no Note shall be issued in lieu of any prepaid principal amount
of any Note.
8.6. PURCHASE OF NOTES.
Neither Obligor will, nor will either Obligor permit any Affiliate to,
purchase, redeem, prepay or otherwise acquire, directly or indirectly, any of
the outstanding Notes except upon the payment or prepayment of the Notes in
accordance with the terms of this Agreement and the Notes.
8.7. MAKE-WHOLE AMOUNT.
The term "MAKE-WHOLE AMOUNT" means, with respect to any Note, an
amount equal to the excess, if any, of the Discounted Value of the Remaining
Scheduled Payments with respect to the Called Principal of such Note over the
amount of such Called Principal, provided that the Make-Whole Amount may in no
event be
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less than zero. For the purposes of determining the Make-Whole Amount, the
following terms have the following meanings:
"CALLED PRINCIPAL" means, with respect to any Note, the
principal of such Note that is to be prepaid pursuant to Section 8.2
or has become or is declared to be immediately due and payable
pursuant to Section 12.1, as the context requires.
"DISCOUNTED VALUE" means, with respect to the Called
Principal of any Note, the amount obtained by discounting all
Remaining Scheduled Payments with respect to such Called Principal
from their respective scheduled due dates to the Settlement Date with
respect to such Called Principal, in accordance with accepted
financial practice and at a discount factor (applied on the same
periodic basis as that on which interest on the Notes is payable)
equal to the Reinvestment Yield with respect to such Called Principal.
"REINVESTMENT YIELD" means, with respect to the Called
Principal of any Note, 0.75% over the yield to maturity implied by (i)
the yields reported, as of 10:00 A.M. (New York City time) on the
second Business Day preceding the Settlement Date with respect to such
Called Principal, on the display designated as "Page 500" on the
Telerate Access Service (or such other display as may replace Page 500
on Telerate Access Service) for actively traded U.S. Treasury
securities having a maturity equal to the Remaining Average Life of
such Called Principal as of such Settlement Date, or (ii) if such
yields are not reported as of such time or the yields reported as of
such time are not ascertainable by interpolation as provided below,
the Treasury Constant Maturity Series Yields reported, for the latest
day for which such yields have been so reported as of the second
Business Day preceding the Settlement Date with respect to such Called
Principal, in Federal Reserve Statistical Release H.15 (519) (or any
comparable successor publication) for actively traded U.S. Treasury
securities having a constant maturity equal to the Remaining Average
Life of such Called Principal as of such Settlement Date. Such implied
yield will be determined, if necessary, by (a) converting U.S.
Treasury xxxx quotations to bond-equivalent yields in accordance with
accepted financial practice and (b) interpolating linearly between (1)
the actively traded U.S. Treasury security with a maturity
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closest to and greater than the Remaining Average Life and (2) the
actively traded U.S. Treasury security with a maturity closest to and
less than the Remaining Average Life.
"REMAINING AVERAGE LIFE" means, with respect to any Called
Principal, the number of years (calculated to the nearest one-twelfth
year) obtained by dividing (i) such Called Principal into (ii) the sum
of the products obtained by multiplying (a) the principal component of
each Remaining Scheduled Payment with respect to such Called Principal
by (b) the number of years (calculated to the nearest one-twelfth
year) that will elapse between the Settlement Date with respect to
such Called Principal and the scheduled due date of such Remaining
Scheduled Payment.
"REMAINING SCHEDULED PAYMENTS" means, with respect to the
Called Principal of any Note, all payments of such Called Principal
and interest thereon that would be due after the Settlement Date with
respect to such Called Principal if no payment of such Called
Principal were made prior to its scheduled due date, provided that if
such Settlement Date is not a date on which interest payments are due
to be made under the terms of the Notes, then the amount of the next
succeeding scheduled interest payment will be reduced by the amount of
interest accrued to such Settlement Date and required to be paid on
such Settlement Date pursuant to Section 8.2 or 12.1.
"SETTLEMENT DATE" means, with respect to the Called Principal
of any Note, the date on which such Called Principal is to be prepaid
pursuant to Section 8.2 or has become or is declared to be immediately
due and payable pursuant to Section 12.1, as the context requires.
9. AFFIRMATIVE COVENANTS.
The Obligors jointly and severally covenant that so long as any of the
Notes are outstanding:
9.1. COMPLIANCE WITH LAW.
The Parent will and will cause each of its Subsidiaries to comply with
all laws, ordinances or governmental rules or regulations to which each of them
is subject, including without limitation Environmental Laws, and will obtain
and maintain in
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effect all licenses, certificates, permits, franchises and other governmental
authorizations necessary to the ownership of their respective properties or to
the conduct of their respective businesses, in each case to the extent
necessary to ensure that non-compliance with such laws, ordinances or
governmental rules or regulations or failures to obtain or maintain in effect
such licenses, certificates, permits, franchises and other governmental
authorizations could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
9.2. INSURANCE.
The Parent will and will cause each of its Subsidiaries to maintain,
with financially sound and reputable insurers, insurance with respect to their
respective properties and businesses against such casualties and contingencies,
of such types, on such terms and in such amounts (including deductibles,
co-insurance and self-insurance, if adequate reserves are maintained with
respect thereto) as is customary in the case of entities of established
reputations engaged in the same or a similar business and similarly situated.
9.3. MAINTENANCE OF PROPERTIES.
The Parent will and will cause each of its Subsidiaries to maintain
and keep, or cause to be maintained and kept, their respective properties in
good repair, working order and condition (other than ordinary wear and tear),
so that the business carried on in connection therewith may be properly
conducted at all times, provided that this Section shall not prevent the Parent
or any Subsidiary from discontinuing the operation and the maintenance of any
of its properties if such discontinuance is desirable in the conduct of its
business and the Parent has concluded that such discontinuance could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
9.4. PAYMENT OF TAXES AND CLAIMS.
The Parent will and will cause each of its Subsidiaries to file all
tax returns required to be filed in any jurisdiction and to pay and discharge
all taxes shown to be due and payable on such returns and all other taxes,
assessments, governmental charges, or levies imposed on them or any of their
properties, assets, income or franchises, to the extent such taxes and
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assessments have become due and payable and before they have become delinquent
and all claims for which sums have become due and payable that have or might
become a Lien on properties or assets of the Parent or any Subsidiary, provided
that neither the Parent nor any Subsidiary need pay any such tax or assessment
or claim if (i) the amount, applicability or validity thereof is contested by
the Parent or such Subsidiary on a timely basis in good faith and in
appropriate proceedings, and the Parent or a Subsidiary has established
adequate reserves therefor in accordance with GAAP on the books of the Parent
or such Subsidiary or (ii) the nonpayment of all such taxes and assessments in
the aggregate could not reasonably be expected to have a Material Adverse
Effect.
9.5. CORPORATE EXISTENCE, ETC.
Subject to Section 10.6, each Obligor will at all times preserve and
keep in full force and effect its corporate existence. Subject to Sections 10.5
and 10.6, the Parent will at all times preserve and keep in full force and
effect the corporate existence of each of its Subsidiaries (unless merged into
the Parent or a Subsidiary) and all rights and franchises (as franchisee) of
the Parent and its Subsidiaries unless, in the good faith judgment of the
Parent, the termination of or failure to preserve and keep in full force and
effect such corporate existence, right or franchise could not, individually or
in the aggregate, have a Material Adverse Effect.
9.6. LINES OF BUSINESS.
The Parent and its Subsidiaries will at all times continue to be
engaged solely in the business of (a) renting worldwide for general use
passenger automobiles, vans and light trucks, (b) selling in the United States
late model automobiles and (c) franchising the foregoing business to other
Persons, and other business activities as may be incidental or related to the
foregoing (including without limitation the ownership and operation of parking
lots, the ownership and rental of recreational vehicles and the ownership and
operation of limousine services, taxi fleets or car dealerships). Without
limiting the foregoing, the Parent will not engage in any business activity
other than its continuing ownership of all of the shares of capital stock of
the Company and its compliance with its obligations under this Agreement and
the other Transaction Documents.
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9.7. ADDITIONAL SUBSIDIARY GUARANTEES.
Concurrently with the initial incurrence of any Debt by any Subsidiary
of the Parent (as a direct obligor or guarantor) under the Revolving Credit
Facility or under any extension, renewal or replacement of the Revolving Credit
Facility (including without limitation by such Subsidiary becoming a guarantor
under the Revolving Credit Facility or any such extension, renewal or
replacement), the Company will cause such Subsidiary to execute and deliver to
the holders of the Notes a Subsidiary Guarantee in the form hereinabove recited
and will furnish each such holder with a counterpart of such executed
Subsidiary Guarantee, together with an opinion of King & Spalding or other
counsel reasonably satisfactory to the Required Holders (which opinion shall be
reasonably satisfactory to the Required Holders and may be subject to customary
exceptions, qualifications and limitations under the circumstances) to the
effect that such Subsidiary Guarantee has been duly authorized, executed and
delivered by such Subsidiary and is valid, binding and enforceable in
accordance with its terms; provided, however, that the Company will not permit
any Subsidiary to incur such Debt (as a direct obligor or guarantor) unless the
holders of the Notes shall have received assurances reasonably satisfactory to
the Required Holders that, as between the lenders under the Revolving Credit
Facility or such extension, renewal or replacement and the holders from time to
time of the Notes, all Debt of such Subsidiary under the Revolving Credit
Facility or such extension, renewal or replacement and under its respective
Subsidiary Guarantee is and shall be (except to the extent such Debt is
secured) pari passu with the Debt of such Subsidiary under its Subsidiary
Guarantee.
10. NEGATIVE COVENANTS.
The Obligors jointly and severally covenant that so long as any of the
Notes are outstanding:
10.1. INCURRENCE OF NON-VEHICLE DEBT; SUBSIDIARY DEBT.
(a) The Parent will not and will not permit any Subsidiary to create,
assume, incur, guarantee or otherwise become liable in respect of any
Non-Vehicle Debt unless immediately after giving effect thereto and to the
application of the proceeds of such Non-Vehicle Debt
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(i) the Pro Forma Non-Vehicle Interest Coverage Ratio is at
least (A) 2.0 to 1 on any date of determination to and including
December 31, 1999 and (B) 3.0 to 1 on any date thereafter, and
(ii) the Non-Vehicle Leverage Ratio does not exceed (A) 6.3
to 1 on any date of determination to and including December 31, 1998,
(B) 5.0 to 1 on any date thereafter to and including December 31, 1999
(C) 4.0 to 1 on any date thereafter to and including Xxxxxxxx 00,
0000, (X) 3.5 to 1 on any date thereafter to and including December
31, 2001 and (E) 3.0 to 1 on any date thereafter.
(b) The Parent will not permit any Subsidiary (other than the
Company) to create, assume, incur, guarantee or otherwise become liable in
respect of any Non-Vehicle Debt except
(i) Debt secured by Liens permitted by clauses (a) through
(m) of Section 10.2,
(ii) Debt owing to the Company or another Wholly-Owned
Subsidiary,
(iii) Debt of a Subsidiary outstanding as of the date such
Subsidiary was acquired or otherwise becomes a Subsidiary (and not
created in anticipation thereof), and
(iv) other Debt, provided that immediately after giving
effect to the incurrence of such other Debt the sum (without
duplication) of (A) the aggregate amount of Debt (including
Capitalized Lease Obligations) of the Parent and its Subsidiaries
secured by Liens permitted by Section 10.2(n) plus (B) the aggregate
amount of Non-Vehicle Debt of all Subsidiaries (other than the Debt of
the Company and Debt permitted by subclause (i), (ii) or (iii) above)
plus (C) the aggregate Attributable Debt in connection with all sale
and leaseback transactions of the Parent and its Subsidiaries entered
into after the date of the Closing in accordance with the provisions
of Section 10.3(d), does not exceed 15% of Consolidated Adjusted
Assets.
For purposes of this Section 10.1(b), a Subsidiary shall be deemed to have
incurred Debt in respect of any obligation previously owed to the Parent or to
a Wholly-Owned Subsidiary on the date the obligee ceases for any reason to be
the Parent or a Wholly-Owned Subsidiary.
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10.2. LIENS.
The Parent will not and will not permit any Subsidiary to create,
assume, incur or suffer to exist any Lien upon or with respect to any property
other than Vehicles and Excluded Receivables (as such term is defined in the
Revolving Credit Facility as in effect on the date of the Closing) relating to
the financing of Vehicles, whether now owned or hereafter acquired, provided
that nothing in this Section 10.2 shall prohibit
(a) Liens on any airport concession agreements or permits to secure
Debt incurred in the ordinary course of business to finance tenant
improvements used in connection with concession agreements or permits
subject to such Lien;
(b) Liens on claims against persons renting vehicles, persons damaging
vehicles or persons issuing applicable insurance coverage for such
persons arising under insurance policies entered into in the ordinary
course of business consistent with past practice;
(c) Liens securing the Revolving Credit Facility (including any Swaps
entered into thereunder), provided that such Liens shall not cover any
property or assets other than as described in Schedule 5.15;
(d) other Liens in respect of property of the Parent or a Subsidiary
existing on the date of the Closing or arising under an agreement in
effect on the date of the Closing, in each case as described in Schedule
5.15;
(e) Liens in respect of property (including Capital Lease Obligations)
acquired by the Parent or a Subsidiary after the date of the Closing,
which are existing at the time of acquisition of such property or created
at the time of or within 180 days after the acquisition of such property
to secure Non-Vehicle Debt assumed or incurred to finance all or any part
of the purchase price or the completion of construction of such property,
provided that in any such case
(i) no such Lien shall extend to or cover any other property
of the Parent or such Subsidiary, as the case may be, and
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(ii) the aggregate principal amount of Debt secured by all
such Liens in respect of any such property shall not exceed the cost
of such property and any improvements then being financed;
(f) in the case of any Person that after the date of the Closing
becomes a Subsidiary or is consolidated with or merged with or into the
Parent or a Subsidiary or sells, leases or otherwise disposes of all or
substantially all of its property to the Parent or a Subsidiary, Liens
existing at the time such Person becomes a Subsidiary or is so
consolidated or merged or effects such sale, lease or other disposition
of property (and not created in anticipation thereof), provided that in
any such case no such Lien shall extend to or cover any other property of
the Parent or such Subsidiary, as the case may be;
(g) Liens securing Non-Vehicle Debt owed by a Subsidiary to the
Company or to a Wholly-Owned Subsidiary;
(h) any Lien relating to any extension, renewal or replacement of any
Non-Vehicle Debt secured by a Lien permitted by clauses (a) through (g)
above, provided in each case that the outstanding principal amount (or
then accreted value) of Non-Vehicle Debt secured thereby is not increased
and such Lien does not extend to or cover any other property except as
otherwise permitted by this Section 10.2;
(i) Liens arising in favor of the United States government or any
state thereof or any foreign government or any political subdivision of
any of the foregoing to secure partial, progress, advance or other
payments pursuant to any contract or statute;
(j) Liens incurred or deposits made in the ordinary course of business
(and not created in connection with the incurrence of Debt) in connection
with workers' compensation, unemployment insurance and other types of
social security or to secure the performance of tenders, statutory
obligations, bids, leases, government contracts, performances and return
of money bonds and similar obligations;
(k) Liens incidental to the normal conduct of the business of the
Parent or any Subsidiary or the ownership of its property (including
without limitation minor survey
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exceptions, title defects, minor encumbrances, easements,
reservations, rights of others for rights-of-way, zoning or other
restrictions as to the use of real property), which are not created in
connection with the incurrence of Debt and which do not individually or
in the aggregate materially adversely affect the value or usefulness of
such property in the operation of the business of the Parent and its
Subsidiaries taken as a whole;
(l) Liens for taxes, assessments or other governmental charges which
are not yet due and payable or the payment of which is not at the time
required by Section 9.4;
(m) Liens of or resulting from any judgment rendered by a court of
competent jurisdiction properly reserved (other than judgments and awards
which if not discharged would result in a Default under Section 11(j)),
the appeal of which the Parent or a Subsidiary is prosecuting in good
faith and by appropriate proceedings; and
(n) Liens which would otherwise not be permitted by clauses (a)
through (h) of this Section 10.2, securing additional Non-Vehicle Debt of
the Company or another Subsidiary, provided that after giving effect
thereto the sum (without duplication) of (i) the aggregate amount of Debt
(including Capitalized Lease Obligations) of the Parent and its
Subsidiaries secured by such Liens permitted by this Section 10.2(n) plus
(ii) the aggregate amount of Non-Vehicle Debt of Subsidiaries (other than
the Company and Debt permitted by subclauses (i), (ii) and (iii) of
Section 10.1(b)) plus (iii) the aggregate Attributable Debt in connection
with all sale and leaseback transactions of the Parent and its
Subsidiaries entered into after the date of the Closing in accordance
with the provisions of Section 10.3(d), does not exceed 15% of
Consolidated Adjusted Assets.
For purposes of this Section 10.2 any Lien existing in respect of property at
the time such property is acquired or in respect of property of a Person at the
time such Person is acquired, consolidated or merged with or into the Parent or
a Subsidiary shall be deemed to have been created at that time.
Notwithstanding the foregoing, the Parent will not and will not permit
any Subsidiary to create, assume or suffer to
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exist any Lien upon or with respect to any trademarks, software systems,
reservations systems or other intellectual property (or rights in respect of
any thereof), whether now owned or hereafter acquired.
10.3. LIMITATION ON SALE AND LEASEBACK TRANSACTIONS.
The Parent will not and will not permit any Subsidiary to sell, lease,
transfer or otherwise dispose of (collectively, a "TRANSFER") any asset (other
than Vehicles) on terms whereby the asset or a substantially similar asset is
or may be leased or reacquired by the Parent or any Subsidiary, unless either
(a) the lease is between the Company and another Wholly-Owned
Subsidiary or between such other Wholly-Owned Subsidiaries, or
(b) the Company or a Subsidiary could create a Lien under clauses (c)
through (h) of Section 10.2 on such asset to secure Non-Vehicle Debt in
an amount at least equal to the Attributable Debt in respect of such
transaction, or
(c) the net proceeds realized from the transfer are applied by the
Company within 180 days after the receipt thereof to (i) the repayment of
unsubordinated Non-Vehicle Debt of the Company or the Parent (which
repayment may, but need not, include prepayment of Notes pursuant to
Section 8.2 and shall, in case of a prepayment of the Revolving Credit
Facility, result in the permanent reduction of the commitments of the
lenders thereunder by an amount at least equal to the principal amount
repaid) or (ii) the purchase of non-current assets for use in the
business of the Company, or
(d) after giving effect to such transaction and the incurrence of
Attributable Debt in respect thereof, the sum (without duplication) of
(i) the aggregate amount of Debt (including Capitalized Lease
Obligations) of the Parent and its Subsidiaries secured by such Liens
permitted by Section 10.2(n) plus (ii) the aggregate amount of
Non-Vehicle Debt of Subsidiaries (other than Debt of the Company and Debt
permitted by subclauses (i), (ii) and (iii) of Section 10.1(b)) plus
(iii) the aggregate Attributable Debt in connection with all sale and
leaseback transactions of the Parent and its Subsidiaries entered into
after the date of the Closing (other than transactions permitted by
clauses
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(a), (b) and (c) above), does not exceed 15% of Consolidated Adjusted
Assets.
Notwithstanding the foregoing, the Parent will not and will not permit
any Subsidiary to enter into any transaction covered by this Section involving
any trademarks, software systems, reservations systems or other intellectual
property (or rights in respect of any thereof), whether now owned or hereafter
acquired.
10.4. MAINTENANCE OF CONSOLIDATED SHAREHOLDERS' EQUITY.
The Parent will not at any time permit Consolidated Shareholders'
Equity to be less than the sum of (a) $294,500,000 plus (b) 50% of Consolidated
Net Income for each fiscal year (beginning with the fiscal year ending on
December 31, 1997) for which Consolidated Net Income is positive.
10.5. ASSET SALES.
The Parent will not and will not permit any Subsidiary to, directly or
indirectly, sell, transfer, lease (as lessor), otherwise dispose of any
property or assets (an "ASSET SALE") other than
(a) Asset Sales in the ordinary course of business; or
(b) other Asset Sales, provided that in each case
(i) immediately before and after giving effect thereto, (A)
no Default or Event of Default shall have occurred and be continuing,
and (B) the Company would be permitted to incur at least $1 of
additional Non-Vehicle Debt under Section 10.1(a), and
(ii) the aggregate net book value of property or assets
disposed of in such Asset Sale and all other Asset Sales by the Parent
and its Subsidiaries during the immediately preceding twelve months
does not exceed 15% of Consolidated Adjusted Assets (as of the last
day of the quarterly accounting period ending on or most recently
prior to the last day of such twelve month period),
and provided further that for purposes of clause (ii) above there
shall be excluded the net book value of property or
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assets disposed of in an Asset Sale if and to the extent such Asset
Sale is made for cash, payable in full upon the completion of such Asset
Sale, and an amount equal to the net proceeds realized upon such Asset
Sale is applied by the Parent or such Subsidiary, as the case may be,
within 180 days after the effective date of such Asset Sale (x) to
reinvest (through capital expenditures or acquisitions) in property or
assets for use in the business of the Parent and its Subsidiaries or (y)
to repay unsubordinated Non-Vehicle Debt of the Company or the Parent
(which repayment may, but need not, include prepayment of Notes pursuant
to Section 8.2 and shall, in case of a repayment of the Revolving Credit
Facility, result in the permanent reduction of the commitments of the
lenders thereunder by an amount at least equal to the principal amount
repaid) or, in the case of Asset Sales of Vehicles, to repay Vehicle
Debt.
Nothing in this Section 10.5 shall limit the ability of the Parent to
distribute shares of capital stock of any Subsidiary to the shareholders of the
Parent, provided that such distribution is permitted by Section 10.7 and after
giving effect of such action the Parent owns beneficially at least 80% of the
capital stock of such Subsidiary.
10.6. MERGER, CONSOLIDATION, AMALGAMATION, ETC.
The Parent will not and will not permit the Company or any Subsidiary
Guarantor to consolidate, amalgamate or merge with any other corporation or
convey, transfer or lease all or substantially all of its assets in a single
transaction or series of transactions to any Person except:
(a) a Subsidiary Guarantor may consolidate, amalgamate or merge with
any other corporation or convey or transfer all or substantially all of
its assets to
(i) a solvent corporation organized and existing under the
laws of the United States or any State thereof, provided that
(x) the continuing, surviving, successor or
acquiring corporation (the "SURVIVING CORPORATION"), shall
have (A) executed and delivered to each holder of a Note its
assumption of the due and punctual performance and observance
of the all obligations of such Subsidiary
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Guarantor under its Subsidiary Guarantee and (B)
caused to be delivered to each holder of a Note an opinion of
counsel reasonably satisfactory to the Required Holders to
the effect that all agreements or instruments effecting such
assumption are enforceable in accordance with their terms and
comply with the terms hereof, and
(y) immediately before and after giving effect to
such transaction, no Default or Event of Default shall have
occurred and be continuing and the Company would be permitted
to incur at least $1 of additional Non-Vehicle Debt under
Section 10.1(a), or
(ii) any Person in an Asset Sale involving all of the
outstanding stock or all or substantially all of the assets of such
Subsidiary, in either case subject to the limitations of Section 10.5;
(b) the Company may consolidate, amalgamate or merge with any other
corporation or convey or transfer all or substantially all of its assets
to a solvent corporation organized and existing under the laws of the
United States or any State thereof, provided that
(i) the surviving corporation (if not the Company) shall have
(A) executed and delivered to each holder of a Note its assumption of
the due and punctual performance and observance of all obligations of
the Company under this Agreement, the Other Agreements and the Notes
and (B) caused to be delivered to each holder of a Note an opinion of
counsel reasonably satisfactory to the Required Holders to the effect
that all agreements or instruments effecting such assumption are
enforceable in accordance with their terms and comply with the terms
hereof, and
(ii) immediately before and after giving effect to such
transaction, (A) no Default or Event of Default shall have occurred
and be continuing and (B) the Company would be permitted to incur at
least $1 of additional Non-Vehicle Debt under Section 10.1(a); and
(c) the Parent may consolidate, amalgamate or merge with any other
corporation or convey or transfer all or
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substantially all of its assets to a solvent corporation organized and
existing under the laws of the United States or any State thereof,
provided that
(i) the surviving corporation (if not the Parent) shall have
(A) executed and delivered to each holder of a Note its assumption of
the due and punctual performance and observance of all obligations of
the Parent under this Agreement and the Other Agreements (including
without limitation the Parent Guarantee) and (B) caused to be
delivered to each holder of a Note an opinion of counsel reasonably
satisfactory to the Required Holders to the effect that all agreements
or instruments effecting such assumption are enforceable in accordance
with their terms and comply with the terms hereof, and
(ii) immediately before and after giving effect to such
transaction, (A) no Default or Event of Default shall have occurred
and be continuing and (B) the Company would be permitted to incur at
least $1 of Non-Vehicle Debt under Section 10.1(a).
Notwithstanding the foregoing, any Subsidiary may consolidate,
amalgamate or merge with the Company (provided the Company is the surviving
corporation) or any other Wholly-Owned Subsidiary or convey, transfer or lease
all or substantially all of its assets in a single transaction or series of
transactions to the Company or any other Wholly-Owned Subsidiary.
10.7. RESTRICTED PAYMENTS.
The Parent will not, directly or indirectly, make or declare any
Restricted Payment unless after giving effect to any such action, (a) no
Default or Event or Default shall have occurred and be continuing, and (b) the
Company would be permitted to incur at least $1 of additional Non-Vehicle Debt
under Section 10.1(a).
10.8. TRANSACTIONS WITH AFFILIATES.
The Parent will not and will not permit any Subsidiary to enter into
directly or indirectly any Material transaction or Material group of related
transactions (including without limitation the purchase, lease, sale or
exchange of properties of any kind or the rendering of any service) with any
Affiliate
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(other than the Parent or the Company or a Wholly-Owned Subsidiary), except
upon fair and reasonable terms no less favorable to the Parent or such
Subsidiary than would be obtainable in a comparable arm's-length transaction
with a Person not an Affiliate. As used in this Section, "MATERIAL" means
material to (i) the Parent, (ii) the Company or (iii) the Parent and its
Subsidiaries taken as a whole.
11. EVENTS OF DEFAULT.
An "EVENT OF DEFAULT" shall exist if any of the following conditions
or events shall occur and be continuing:
(a) default in the payment of any principal or Make-Whole Amount or
premium, if any, on any Note when the same becomes due and payable,
whether at maturity or at a date fixed for prepayment or by declaration
or otherwise; or
(b) default in the payment of any interest on any Note, and such
default shall have continued for more than 10 days after such payment
becomes due and payable; or
(c) default in the performance of or compliance with any term
contained in Section 7.1(d), 10.1, 10.2, 10.3, 10.5, 10.6, 10.7 or 10.8;
or
(d) default in the performance of or compliance with any term
contained in Section 10.4, and such default shall have continued for a
period of 30 days after a Responsible Officer of either Obligor obtains
knowledge thereof (if and so long as the Parent is proceeding diligently
and in good faith, by issuing equity securities or otherwise, to remedy
such default during such 30-day period); or
(e) default in the performance of or compliance with any term
contained in this Agreement (other than those referred to in paragraphs
(a), (b), (c) and (d) of this Section 11) and such default is not
remedied within 30 days after a Responsible Officer of either Obligor
obtains knowledge of such default; or
(f) any representation or warranty made in writing by or on behalf of
either Obligor or any Subsidiary Guarantor or by any officer of either
Obligor or any Subsidiary Guarantor in this Agreement or any Subsidiary
Guarantee or in any writing furnished in connection herewith or therewith
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proves to have been false or incorrect in any material respect on the
date as of which made; or
(g) (i) the Parent or any Subsidiary is in default (as principal or as
guarantor or other surety) in the payment of any principal of or premium
or interest on any Debt (other than the Notes) that is outstanding in an
aggregate principal amount of at least $10,000,000 beyond any period of
grace provided with respect thereto, or (ii) the Parent or any Subsidiary
is in default in the performance of or compliance with any term of any
evidence of any Debt in an aggregate outstanding principal amount of at
least $10,000,000 or of any mortgage, indenture or other agreement
relating thereto or any other condition exists, and as a consequence of
such default or condition such Debt has become, or has been declared (or
one or more Persons are entitled to declare such Debt to be), due and
payable before its stated maturity or before its regularly scheduled
dates of payment, or (iii) as a consequence of the occurrence or
continuation of any event or condition (other than the passage of time or
the right of the holder of Debt to convert such Debt into equity
interests), (x) the Parent or any Subsidiary has become obligated to
purchase or repay Debt before its regular maturity or before its
regularly scheduled dates of payment in an aggregate outstanding
principal amount of at least $10,000,000, or (y) one or more Persons have
the right to require the Parent or any Subsidiary to purchase or repay
such Debt; or
(h) the Parent or any Subsidiary (i) is generally not paying, or
admits in writing its inability to pay, its debts as they become due,
(ii) files, or consents by answer or otherwise to the filing against it
of, a petition for relief or reorganization or arrangement or any other
petition in bankruptcy, for liquidation or to take advantage of any
bankruptcy, insolvency, reorganization, moratorium or other similar law
of any jurisdiction, (iii) makes an assignment for the benefit of its
creditors, (iv) consents to the appointment of a custodian, receiver,
trustee or other officer with similar powers with respect to it or with
respect to any substantial part of its property, (v) is adjudicated as
insolvent or to be liquidated, or (vi) takes corporate action for the
purpose of any of the foregoing; or
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(i) a court or governmental authority of competent jurisdiction enters
an order appointing, without consent by the Parent or any Subsidiary, a
custodian, receiver, trustee or other officer with similar powers with
respect to it or with respect to any substantial part of its property, or
constituting an order for relief or approving a petition for relief or
reorganization or any other petition in bankruptcy or for liquidation or
to take advantage of any bankruptcy or insolvency law of any
jurisdiction, or ordering the dissolution, winding-up or liquidation of
the Parent or any such Subsidiary, or any such petition shall be filed
against the Parent or any such Subsidiary and such petition shall not be
dismissed within 60 days; or
(j) a final judgment or judgments for the payment of money aggregating
in excess of $10,000,000 are rendered against one or more of the Parent
and its Subsidiaries which judgments are not, within 60 days after entry
thereof, bonded, paid, discharged or stayed pending appeal, or are not
discharged within 60 days after the expiration of such stay; or
(k) the Parent Guarantee or any Subsidiary Guarantee shall cease to be
in full force and effect as an enforceable instrument or the Parent or
any Subsidiary Guarantor (or any Person at its authorized direction or on
its behalf) shall assert in writing that the Parent Guarantee or the
Subsidiary Guarantee of such Subsidiary Guarantor, as the case may be, is
unenforceable in any material respect; or
(l) if (i) any Plan shall fail to satisfy the minimum funding
standards of ERISA or the Code for any plan year or part thereof or a
waiver of such standards or extension of any amortization period is
sought or granted under section 412 of the Code, (ii) a notice of intent
to terminate any Plan shall have been or is reasonably expected to be
filed with the PBGC or the PBGC shall have instituted proceedings under
ERISA section 4042 to terminate or appoint a trustee to administer any
Plan or the PBGC shall have notified the Parent or any ERISA Affiliate
that a Plan may become a subject of any such proceedings, (iii) the
aggregate "amount of unfunded benefit liabilities" (within the meaning of
section 4001(a)(18) of ERISA) under all Plans, determined in accordance
with Title IV of ERISA, shall exceed $10,000,000, (iv) the Parent or any
ERISA
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Affiliate shall have incurred or is reasonably expected to incur
any liability pursuant to Title I or IV of ERISA or the penalty or excise
tax provisions of the Code relating to employee benefit plans, or (v) the
Parent or any ERISA Affiliate withdraws from any Multiemployer Plan; and
any such event or events described in clauses (i) through (v) above,
either individually or together with any other such event or events,
could reasonably be expected to have a Material Adverse Effect; or
(m) the Company shall cease to be a Wholly-Owned Subsidiary of the
Parent.
As used in Section 11(l), the terms "EMPLOYEE BENEFIT PLAN" and
"EMPLOYEE WELFARE BENEFIT PLAN" shall have the respective meanings
assigned to such terms in section 3 of ERISA.
12. REMEDIES ON DEFAULT, ETC.
12.1. ACCELERATION.
(a) If an Event of Default with respect to the Parent or the Company
described in paragraph (h) or (i) of Section 11 has occurred, all the
Notes then outstanding shall automatically become immediately due and
payable.
(b) If any other Event of Default has occurred and is continuing, the
Required Holders may at any time at its or their option, by notice or
notices to the Company, declare all the Notes at the time outstanding to
be immediately due and payable.
(c) If any Event of Default described in paragraph (a) or (b) of
Section 11 has occurred and is continuing, any holder or holders of Notes
at the time outstanding affected by such Event of Default may at any time,
at its or their option, by notice or notices to the Company, declare all
the Notes held by it or them to be immediately due and payable.
Upon any Notes becoming due and payable under this Section 12.1,
whether automatically or by declaration, such Notes will forthwith mature and
the entire unpaid principal amount of such Notes, plus (x) all accrued and
unpaid interest thereon and (y) the Make-Whole Amount determined in respect of
such principal amount (to the full extent permitted by applicable law), shall
all be immediately due and payable, in each and every case without presentment,
demand, protest or further notice, all of
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which are hereby waived. The Obligors acknowledge, and the parties hereto
agree, that each holder of a Note has the right to maintain its investment in
the Notes free from repayment by the Company (except as herein specifically
provided) and that the provision for payment of a Make-Whole Amount by the
Company in the event that the Notes are prepaid or are accelerated as a result
of an Event of Default, is intended to provide compensation for the deprivation
of such right under such circumstances.
12.2. OTHER REMEDIES.
If any Default or Event of Default has occurred and is continuing, and
irrespective of whether any Notes have become or have been declared immediately
due and payable under Section 12.1, the holder of any Note at the time
outstanding may proceed to protect and enforce the rights of such holder by an
action at law, suit in equity or other appropriate proceeding, whether for the
specific performance of any agreement contained herein or in any Note, or for
an injunction against a violation of any of the terms hereof or thereof, or in
aid of the exercise of any power granted hereby or thereby or by law or
otherwise.
12.3. RESCISSION.
At any time after any Notes have been declared due and payable
pursuant to paragraph (b) or (c) of Section 12.1, the Required Holders, by
written notice to the Company, may rescind and annul any such declaration and
its consequences if (a) the Company has paid all overdue interest on the Notes,
all principal of and Make-Whole Amount or premium, if any, on any Notes that
are due and payable and are unpaid other than by reason of such declaration,
and all interest on such overdue principal and Make-Whole Amount and premium,
if any, and (to the extent permitted by applicable law) any overdue interest in
respect of the Notes, at the Default Rate, (b) all Events of Default and
Defaults, other than the non-payment of amounts that have become due solely by
reason of such declaration, have been cured or have been waived pursuant to
Section 18, and (c) no judgment or decree has been entered for the payment of
any monies due pursuant hereto or to the Notes. No rescission and annulment
under this Section 12.3 will extend to or affect any subsequent Event of
Default or Default or impair any right consequent thereon.
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12.4. NO WAIVERS OR ELECTION OF REMEDIES, EXPENSES, ETC.
No course of dealing and no delay on the part of any holder of any
Note in exercising any right, power or remedy shall operate as a waiver thereof
or otherwise prejudice such holder's rights, powers or remedies. No right,
power or remedy conferred by this Agreement or by any Note upon any holder
thereof shall be exclusive of any other right, power or remedy referred to
herein or therein or now or hereafter available at law, in equity, by statute
or otherwise. Without limiting the obligations of the Obligors under Section
16, the Company will pay to the holder of each Note on demand such further
amount as shall be sufficient to cover all costs and expenses of such holder
incurred in any enforcement or collection under this Section 12, including
without limitation reasonable attorneys' fees, expenses and disbursements.
13. PARENT GUARANTEE.
13.1. GUARANTEE.
(a) Guaranteed Obligations. The Parent hereby unconditionally and
irrevocably guarantees, as primary obligor and not merely as surety,
(i) the punctual payment when due, whether at stated
maturity, by prepayment, by acceleration or otherwise, of all
obligations of the Company arising under this Agreement, the Other
Agreements and the Notes, whether for principal, interest (including
without limitation interest on any overdue principal, Make-Whole
Amount and premium, if any, and interest at the rate specified in the
Notes and interest accruing or becoming owing both prior to and
subsequent to the commencement of any bankruptcy, reorganization or
similar proceeding involving either Obligor), Make-Whole Amount and
premium, if any, fees, expenses, indemnification or otherwise, and
(ii) the due and punctual performance and observance by the
Company of all covenants, agreements and conditions on its part to be
performed and observed under this Agreement, the Other Agreements and
the Notes.
The obligations guaranteed by this Parent Guarantee are sometimes called the
"GUARANTEED OBLIGATIONS".
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Without limiting the generality of the foregoing, this Parent
Guarantee guarantees, to the extent provided herein, the payment of all amounts
which constitute part of the Guaranteed Obligations and would be owed by any
other Person to any holder of a Note but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving such Person.
(b) Guarantee Absolute. This Parent Guarantee constitutes a present
and continuing guarantee of payment and not of collectibility and the
Parent guarantees that the Guaranteed Obligations will be paid strictly
in accordance with the terms of this Agreement, the Other Agreements and
the Notes, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of
any holder of a Note with respect thereto. The obligations of the Parent
under this Parent Guarantee are independent of the Guaranteed
Obligations, and a separate action or actions may be brought and
prosecuted against the Parent to enforce this Parent Guarantee,
irrespective of whether any action is brought against the Company or any
other Person liable for the Guaranteed Obligations or whether the Company
or any other such Person is joined in any such action or actions. The
liability of the Parent under this Parent Guarantee shall be primary,
absolute, irrevocable, and unconditional irrespective of:
(i) any lack of validity or enforceability of any Guaranteed
Obligation, this Agreement, the Other Agreements, the Notes, any
Subsidiary Guarantee or any agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of,
or in any other term of, all or any of the Guaranteed Obligations, or
any other amendment or waiver of or any consent to departure from this
Agreement, the Other Agreements, the Notes, any Subsidiary Guarantee
or this Parent Guarantee;
(iii) any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of or
consent to departure by the Parent or other Person liable, or any
other guarantee, for all or any of the Guaranteed Obligations;
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(iv) any manner of application of collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of
sale or other disposition of any collateral or any other assets of the
Company or any other Subsidiary;
(v) any change, restructuring or termination of the corporate
structure or existence of the Company or any other Subsidiary; or
(vi) any other circumstance (including without limitation any
statute of limitations) that might otherwise constitute a defense,
offset or counterclaim available to, or a discharge of, the Company or
the Parent.
This Parent Guarantee shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any of the
Guaranteed Obligations is rescinded or must otherwise be returned by any holder
of a Note, or any other Person upon the insolvency, bankruptcy or reorganization
of the Company or otherwise, all as though such payment had not been made.
(c) Waivers by the Parent. The Parent hereby irrevocably
waives, to the extent permitted by applicable law:
(i) promptness, diligence, presentment, notice of
acceptance and any other notice with respect to any of the Guaranteed
Obligations and this Parent Guarantee;
(ii) any requirement that any holder of a Note or any
other Person protect, secure, perfect or insure any Lien or any
property subject thereto or exhaust any right or take any action
against the Company or any other Person or any collateral;
(iii) any defense, offset or counterclaim arising by
reason of any claim or defense based upon any action by any holder of a
Note;
(iv) any duty on the part of any holder of a Note to
disclose to the Parent any matter, fact or thing relating to the
business, operation or condition of any Person and its assets now known
or hereafter known by such holder; and
(v) any rights by which it might be entitled to require
suit on an accrued right of action in respect of any
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of the Guaranteed Obligations or require suit against the Company or
the Parent or any other Person.
13.2. SUBROGATION AND CONTRIBUTION
The Parent shall not assert, enforce, or otherwise exercise (a) any
right of subrogation to any of the rights, remedies, powers, privileges or
liens of any holder of a Note or any other beneficiary against the Company or
any other obligor on the Guaranteed Obligations or any collateral or other
security, or (b) any right of recourse, reimbursement, contribution,
indemnification, or similar right against the Company, and the Parent hereby
waives any and all of the foregoing rights, remedies, powers, privileges and
the benefit of, and any right to participate in, any collateral or other
security given to any holder of a Note or any other beneficiary to secure
payment of the Guaranteed Obligations, until such time as the Guaranteed
Obligations have been paid in full.
13.3. CONTINUING GUARANTEE
This Parent Guarantee is a continuing guarantee of payment and
performance and shall (a) remain in full force and effect until payment in full
of the Guaranteed Obligations and all other amounts payable under this Parent
Guarantee, (b) be binding upon the Parent, its successors and assigns and (c)
inure to the benefit of and be enforceable by any holder of a Note and its
successors, transferees and assigns.
14. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
14.1. REGISTRATION OF NOTES.
The Company shall keep at its principal executive office a register
for the registration and registration of transfers of Notes. The name and
address of each holder of one or more Notes, each transfer thereof and the name
and address of each transferee of one or more Notes shall be registered in such
register. Prior to due presentment for registration of transfer, the Person in
whose name any Note shall be registered shall be deemed and treated as the
owner and holder thereof for all purposes hereof, and the Company shall not be
affected by any notice or knowledge to the contrary. The Company shall give to
any holder of a Note that is an Institutional Investor promptly upon request
therefor, a complete and correct copy of the names and addresses of all
registered holders of Notes.
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14.2. TRANSFER AND EXCHANGE OF NOTES.
Upon surrender of any Note at the principal executive office of the
Company for registration of transfer or exchange (and in the case of a
surrender for registration of transfer, duly endorsed or accompanied by a
written instrument of transfer duly executed by the registered holder of such
Note or his attorney duly authorized in writing and accompanied by the address
for notices of each transferee of such Note or part thereof), within five
Business Days thereafter the Company shall execute and deliver, at the
Company's expense (except as provided below), one or more new Notes (as
requested by the holder thereof) in exchange therefor, in an aggregate
principal amount equal to the unpaid principal amount of the surrendered Note.
Each such new Note shall be payable to such Person as such holder may request.
Each such new Note shall be dated and bear interest from the date to which
interest shall have been paid on the surrendered Note or dated the date of the
surrendered Note if no interest shall have been paid thereon. The Company may
require payment of a sum sufficient to cover any stamp tax or governmental
charge imposed in respect of any such transfer of Notes. Notes shall not be
transferred in denominations of less than $500,000, provided that if necessary
to enable the registration of transfer by a holder of its entire holding of
Notes, such Note may be in a denomination of less than $500,000.
You agree that the Company shall not be required to register the
transfer of any Note to any Person (other than your nominee) or to any separate
account maintained by you unless the Obligors receive from the transferee a
representation to the Obligors (and appropriate information as to any separate
accounts or other matters) to the same or similar effect with respect to the
transferee as is contained in Section 6.2 or other assurances reasonably
satisfactory to the Obligors that such transfer does not involve a prohibited
transaction (as such term is used in Section 5.12(e). You shall not be liable
for any damages in connection with any such representations or assurances
provided to the Obligors by any transferee.
14.3. REPLACEMENT OF NOTES.
Upon receipt by the Company of evidence reasonably satisfactory to it
of the ownership of and the loss, theft, destruction or mutilation of any Note
(which evidence shall be, in the case of an Institutional Investor, notice from
such
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Institutional Investor of such ownership and such loss, theft, destruction
or mutilation), and
(a) in the case of loss, theft or destruction, of indemnity reasonably
satisfactory to it (provided that if the holder of such Note is, or is a
nominee for, an original Purchaser or any other Institutional Investor,
such Person's own unsecured agreement of indemnity shall be deemed to be
satisfactory), or
(b) in the case of mutilation, upon surrender and cancellation
thereof, within five Business Days thereafter the Company at its own
expense shall execute and deliver, in lieu thereof, a new Note, dated and
bearing interest from the date to which interest shall have been paid on
such lost, stolen, destroyed or mutilated Note or dated the date of such
lost, stolen, destroyed or mutilated Note if no interest shall have been
paid thereon.
15. PAYMENTS ON NOTES.
15.1. PLACE OF PAYMENT.
Subject to Section 15.2, payments of principal, Make-Whole Amount and
premium, if any, and interest becoming due and payable on the Notes shall be
made at the principal office of Citibank, N.A. in New York City. The Company
may at any time, by notice to each holder of a Note, change the place of
payment of the Notes so long as such place of payment shall be either the
principal office of the Company in New York City or the principal office of a
bank or trust company in New York City.
15.2. HOME OFFICE PAYMENT.
So long as you or your nominee shall be the holder of any Note, and
notwithstanding anything contained in Section 15.1 or in such Note to the
contrary, the Company will pay all sums becoming due on such Note for
principal, Make-Whole Amount and premium, if any, and interest by the method
and at the address specified for such purpose below your name in Schedule A, or
by such other method or at such other address as you shall have from time to
time specified to the Company in writing for such purpose, without the
presentation or surrender of such Note or the making of any notation thereon,
except that upon written request of the Company made concurrently with or
reasonably promptly after payment or prepayment in full of any Note, you shall
surrender such Note for cancellation, reasonably
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promptly after any such request, to the Company at the principal executive
office of the Parent or at the place of payment most recently designated by the
Company pursuant to Section 15.1. Prior to any sale or other disposition of any
Note held by you or your nominee you will, at your election, either endorse
thereon the amount of principal paid thereon and the last date to which
interest has been paid thereon or surrender such Note to the Company in
exchange for a new Note or Notes pursuant to Section 14.2. The Company will
afford the benefits of this Section 15.2 to any Institutional Investor that is
the direct or indirect transferee of any Note purchased by you under this
Agreement and that has made the same agreement relating to such Note as you
have made in this Section 15.2.
16. EXPENSES, ETC.
16.1. TRANSACTION EXPENSES.
Whether or not the transactions contemplated hereby are consummated,
the Obligors jointly and severally agree to pay all reasonable costs and
expenses (including reasonable attorneys' fees of your special counsel and, if
reasonably required, local or other counsel) incurred by you and each Other
Purchaser or holder of a Note in connection with such transactions and in
connection with any amendments, waivers or consents under or in respect of this
Agreement or the Notes or any Subsidiary Guarantee (whether or not such
amendment, waiver or consent becomes effective), including without limitation:
(a) the costs and expenses incurred in enforcing or defending (or determining
whether or how to enforce or defend) any rights under this Agreement or the
Notes or any Subsidiary Guarantee, or in responding to any subpoena or other
legal process or informal investigative demand issued in connection with this
Agreement or the Notes or any Subsidiary Guarantee, or by reason of being a
holder of any Note, and (b) the costs and expenses, including financial
advisors' fees, incurred in connection with the insolvency or bankruptcy of the
Parent, the Company or any other Subsidiary or in connection with any work-out
or restructuring of the transactions contemplated hereby and by the Notes. The
Obligors will pay, and will save you and each other holder of a Note harmless
from, all claims in respect of any fees, costs or expenses if any, of brokers
and finders (other than those retained by you).
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In furtherance of the foregoing, on the date of the Closing the
Obligors will pay or cause to be paid the reasonable fees and disbursements and
other charges (including estimated unposted disbursements and other charges as
of the date of the Closing) of your special counsel which are reflected in the
statement of such special counsel submitted to either Obligor on or prior to
the date of the Closing. The Obligors will also pay, promptly upon receipt of
supplemental statements therefor, reasonable additional fees, if any, and
disbursements and other charges of such special counsel in connection with the
transactions hereby contemplated (including disbursements and other charges
unposted as of the date of the Closing to the extent such disbursements and
other charges exceed estimated amounts paid as aforesaid).
16.2. SURVIVAL.
The obligations of the Obligors under this Section 16 will survive the
payment or transfer of any Note, the enforcement, amendment or waiver of any
provision of this Agreement or the Notes, and the termination of this
Agreement.
17. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein shall survive the
execution and delivery of this Agreement and the Notes, the purchase or
transfer by you of any Note or portion thereof or interest therein and the
payment of any Note, and may be relied upon by any subsequent holder of a Note,
regardless of any investigation made at any time by or on behalf of you or any
other holder of a Note. All statements contained in any certificate or other
instrument delivered by or on behalf of either Obligor pursuant to this
Agreement shall be deemed representations and warranties of the Obligors under
this Agreement. Subject to the preceding sentence, this Agreement and the Notes
embody the entire agreement and understanding between you and the Obligors and
supersede all prior agreements and understandings relating to the subject
matter hereof.
18. AMENDMENT AND WAIVER.
18.1. REQUIREMENTS.
This Agreement and the Notes may be amended, and the observance of any
term hereof or of the Notes may be waived
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(either retroactively or prospectively), with (and only with) the written
consent of the Obligors and the Required Holders, except that (a) no amendment
or waiver of any of the provisions of Section 1, 2, 3, 4, 5, 6 or 22, or any
defined term (as it is used therein), will be effective as to you unless
consented to by you in writing, (b) no such amendment or waiver may, without
the written consent of the holder of each Note at the time outstanding affected
thereby, (i) subject to the provisions of Section 12 relating to acceleration
or rescission, change the amount or time of any prepayment or payment of
principal of, or change the rate or the time of payment or method of
computation of interest or of the Make-Whole Amount or premium, if any, on, the
Notes, (ii) change the percentage of the principal amount of the Notes the
holders of which are required to consent to any such amendment or waiver, or
(iii) amend any of Sections 8, 9.7, 11(a), 11(b), 12, 13, 18 or 21 and (c) no
amendment of the third paragraph of Section 8.2 shall be effective without the
written consent of the holders of all Parent Convertible Notes at the time
outstanding.
18.2. SOLICITATION OF HOLDERS OF NOTES.
(a) Solicitation. The Obligors will provide each holder of the Notes
(irrespective of the amount of Notes then owned by it) with sufficient
information, sufficiently far in advance of the date a decision is
required, to enable such holder to make an informed and considered
decision with respect to any proposed amendment, waiver or consent in
respect of any of the provisions hereof or of the Notes. The Obligors
will deliver executed or true and correct copies of each amendment,
waiver or consent effected pursuant to the provisions of this Section 18
to each holder of outstanding Notes promptly following the date on which
it is executed and delivered by, or receives the consent or approval of,
the requisite holders of Notes.
(b) Payment. Neither of the Obligors will directly or indirectly pay
or cause to be paid any remuneration, whether by way of supplemental or
additional interest, fee or otherwise, or grant any security, to any
holder of Notes as consideration for or as an inducement to the entering
into by any holder of Notes of any waiver or amendment of any of the
terms and provisions hereof unless such remuneration is concurrently
paid, or security is concurrently granted, on the same terms, ratably to
each holder of Notes then outstanding even if such holder did not consent
to such waiver or amendment.
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18.3. BINDING EFFECT, ETC.
Any amendment or waiver consented to as provided in this Section 18
applies equally to all holders of Notes and is binding upon them and upon each
future holder of any Note and upon the Obligors without regard to whether such
Note has been marked to indicate such amendment or waiver. No such amendment or
waiver will extend to or affect any obligation, covenant, agreement, Default or
Event of Default not expressly amended or waived or impair any right consequent
thereon. No course of dealing between the Obligors and the holder of any Note
nor any delay in exercising any rights hereunder or under any Note shall
operate as a waiver of any rights of any holder of such Note. As used herein,
the term "THIS AGREEMENT" and references thereto shall mean this Agreement as
it may from time to time be amended or supplemented.
18.4. NOTES HELD BY OBLIGORS, ETC.
Solely for the purpose of determining whether the holders of
the requisite percentage of the aggregate principal amount of Notes then
outstanding approved or consented to any amendment, waiver or consent to be
given under this Agreement or the Notes, or have directed the taking of any
action provided herein or in the Notes to be taken upon the direction of the
holders of a specified percentage of the aggregate principal amount of Notes
then outstanding, Notes directly or indirectly owned by the Company, the Parent
or any of their respective Affiliates shall be deemed not to be outstanding.
19. NOTICES.
All notices and communications provided for hereunder shall be in
writing and sent (a) by telecopy if the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery service
(charges prepaid), or (b) by a recognized overnight delivery service (with
charges prepaid). Any such notice must be sent:
(i) if to you or your nominee, to you or it at the address
specified for such communications in Schedule A, or at such other
address as you or it shall have specified to the Obligors in writing,
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64
(ii) if to any other holder of any Note, to such holder at
such address as such other holder shall have specified to the Obligors
in writing,
(iii) if to the Company, to the Company at 0000 Xxxxxxxxxx
Xxxx, Xxxxx, Xxxxxxxx 00000, to the attention of Xxxxxx Xxxxxxxx, or
at such other address as the Company shall have specified to the
holder of each Note in writing, or
(iv) if to the Parent, to the Parent at 000 Xxxxx Xxxxxx,
Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxx 00000, to the attention of Xxxxxx
Xxxxxxxx, or at such other address as the Parent shall have specified
to the holder of each Note in writing.
Notices under this Section 19 will be deemed given only when actually received.
20. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications that may hereafter be
executed, (b) documents received by you at the Closing (except the Notes
themselves), and (c) financial statements, certificates and other information
previously or hereafter furnished to you, may be reproduced by you by any
photographic, photostatic, microfilm, microcard, miniature photographic or
other similar process and you may destroy any original document so reproduced.
Each Obligor agrees and stipulates that, to the extent permitted by applicable
law, any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding (whether or not the
original is in existence and whether or not such reproduction was made by you
in the regular course of business) and any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
This Section 20 shall not prohibit either Obligor or any other holder of Notes
from contesting any such reproduction to the same extent that it could contest
the original, or from introducing evidence to demonstrate the inaccuracy of any
such reproduction.
21. CONFIDENTIAL INFORMATION.
For the purposes of this Section 21, "CONFIDENTIAL INFORMATION" means
information delivered to you by or on behalf
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65
of the Parent or any Subsidiary in connection with the transactions
contemplated by or otherwise pursuant to this Agreement that is proprietary in
nature and that was clearly marked or labeled or otherwise adequately
identified when received by you as being confidential information of the Parent
or such Subsidiary, provided that such term does not include information that
(a) was publicly known or otherwise known to you prior to the time of such
disclosure, (b) subsequently becomes publicly known through no act or omission
by you or any person acting on your behalf, (c) otherwise becomes known to you
other than through disclosure by the Parent or any Subsidiary or (d)
constitutes financial statements delivered to you under Section 7.1 that are
otherwise publicly available. You will maintain the confidentiality of such
Confidential Information in accordance with procedures adopted by you in good
faith to protect confidential information of third parties delivered to you,
provided that you may deliver or disclose Confidential Information to (i) your
directors, officers, trustees, employees, agents, attorneys and affiliates (to
the extent such disclosure reasonably relates to the administration of the
investment represented by your Notes), (ii) your financial advisors and other
professional advisors whose duties require them to hold confidential the
Confidential Information substantially in accordance with the terms of this
Section 21, (iii) any other holder of any Note, (iv) any Institutional Investor
to which you sell or offer to sell such Note or any part thereof or any
participation therein (if such Person has agreed in writing prior to its
receipt of such Confidential Information to be bound by the provisions of this
Section 21), (v) any Person from which you offer to purchase any security of
the Parent (if such Person has agreed in writing prior to its receipt of such
Confidential Information to be bound by the provisions of this Section 21),
(vi) any federal or state regulatory authority having jurisdiction over you,
(vii) the National Association of Insurance Commissioners or any similar
organization, or any nationally recognized rating agency that requires access
to information about your investment portfolio or (viii) any other Person to
which such delivery or disclosure may be necessary or appropriate (w) to effect
compliance with any law, rule, regulation or order applicable to you, (x) in
response to any subpoena or other legal process, (y) in connection with any
litigation to which you are a party or (z) if an Event of Default has occurred
and is continuing, to the extent you may reasonably determine such delivery and
disclosure to be necessary or appropriate in the enforcement or for the
protection of the
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66
rights and remedies under your Notes and this Agreement. Each holder of a Note,
by its acceptance of a Note, will be deemed to have agreed to be bound by and
to be entitled to the benefits of this Section 21 as though it were a party to
this Agreement. On reasonable request by the Obligors in connection with the
delivery to any holder of a Note of information required to be delivered to
such holder under this Agreement or requested by such holder (other than a
holder that is a party to this Agreement or its nominee), such holder will
enter into an agreement with the Obligors embodying the provisions of this
Section 21.
22. SUBSTITUTION OF PURCHASER.
You shall have the right to substitute any one of your Affiliates as
the purchaser of the Notes that you have agreed to purchase hereunder, by
written notice to the Obligors, which notice shall be signed by both you and
such Affiliate, shall contain such Affiliate's agreement to be bound by this
Agreement and shall contain a confirmation by such Affiliate of the accuracy
with respect to it of the representations set forth in Section 6. Upon receipt
of such notice, wherever the word "you" is used in this Agreement (other than
in this Section 22), such word shall be deemed to refer to such Affiliate in
lieu of you. In the event that such Affiliate is so substituted as a purchaser
hereunder and such Affiliate thereafter transfers to you all of the Notes then
held by such Affiliate, upon receipt by the Obligors of notice of such
transfer, wherever the word "you" is used in this Agreement, such word shall no
longer be deemed to refer to such Affiliate, but shall refer to you, and you
shall have all the rights of an original holder of the Notes under this
Agreement.
23. MISCELLANEOUS.
23.1. SUCCESSORS AND ASSIGNS.
All covenants and other agreements contained in this Agreement by or
on behalf of any of the parties hereto bind and inure to the benefit of their
respective successors and assigns (including without limitation any subsequent
holder of a Note) whether so expressed or not.
23.2. CONSTRUCTION.
Each covenant contained herein shall be construed (absent express
provision to the contrary) as being independent
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67
of each other covenant contained herein, so that compliance with any one
covenant shall not (absent such an express contrary provision) be deemed to
excuse compliance with any other covenant. Where any provision herein refers to
action to be taken by any Person, or which such Person is prohibited from
taking, such provision shall be applicable whether such action is taken
directly or indirectly by such Person.
23.3. JURISDICTION AND PROCESS; WAIVER OF JURY TRIAL.
(a) Each Obligor irrevocably submits to the non-exclusive in personam
jurisdiction of any New York State or federal court sitting in the Borough of
Manhattan, The City of New York, over any suit, action or proceeding arising out
of or relating to this Agreement or the Notes. To the fullest extent permitted
by applicable law, each Obligor irrevocably waives and agrees not to assert, by
way of motion, as a defense or otherwise, any claim that it is not subject to
the in personam jurisdiction of any such court, any objection that it may now or
hereafter have to the laying of the venue of any such suit, action or proceeding
brought in any such court and any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum.
(b) Each Obligor consents to process being served in any suit, action
or proceeding of the nature referred to in Section 23.3(a) by mailing a copy
thereof by registered or certified mail, postage prepaid, return receipt
requested, to such Obligor at its address specified in Section 19 or at such
other address of which you shall then have been notified pursuant to said
Section. Each Obligor agrees that such service upon receipt (i) shall be deemed
in every respect effective service of process upon it in any such suit, action
or proceeding and (ii) shall, to the fullest extent permitted by applicable law,
be taken and held to be valid personal service upon and personal delivery to
such Obligor. Notices hereunder shall be conclusively presumed received as
evidenced by a delivery receipt furnished by the United States Postal Service or
any reputable commercial delivery service.
(c) Nothing in this Section 23.3 shall affect the right of any holder
of a Note to serve process in any manner permitted by law, or limit any right
that the holders of any of the Notes may have to bring proceedings against an
Obligor in the courts of any appropriate jurisdiction or to enforce in any
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68
lawful manner a judgment obtained in one jurisdiction in any other jurisdiction.
(D) EACH PARTY HERETO WAIVES TRIAL BY JURY IN ANY ACTION BROUGHT ON OR
WITH RESPECT TO THIS AGREEMENT, THE OTHER AGREEMENTS, THE NOTES OR ANY OTHER
DOCUMENT EXECUTED IN CONNECTION HEREWITH OR THEREWITH.
23.4. INDEMNIFICATION.
Each of the Obligors agrees, to the fullest extent permitted by
applicable law, to indemnify, exonerate and hold you and each of your officers,
directors, employees and agents (collectively the "INDEMNITEES" and
individually an "INDEMNITEE") free and harmless from and against any and all
actions, causes of action, suits, losses, liabilities and damages, and expenses
in connection therewith, including without limitation reasonable counsel fees
and disbursements (collectively the "INDEMNIFIED LIABILITIES") incurred by the
Indemnitees or any of them as a result of, or arising out of, or relating to,
any transaction financed or to be financed in whole or in part directly or
indirectly with proceeds from the sale of any of the Notes or the execution,
delivery, performance or enforcement of this Agreement, any other Transaction
Document or any instrument contemplated hereby by any of the Indemnitees,
except as to any Indemnitee for any such Indemnified Liabilities arising on
account of such Indemnitee's gross negligence or willful misconduct; and if and
to the extent the foregoing undertaking may be unenforceable for any reason,
each of the Obligors agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law. The obligations of each of the Obligors under this Section
shall survive payment or conversion of the Notes.
23.5. PAYMENTS DUE ON NON-BUSINESS DAYS.
Anything in this Agreement or the Notes to the contrary
notwithstanding (but without limiting the requirement in Section 8.2 that
notice of any optional prepayment specify a Business Day as the date fixed for
such prepayment), any payment of principal of or Make-Whole Amount or premium,
if any, or interest on any Note that is due on a date other than a Business Day
shall be made on the next succeeding Business Day without including the
additional days elapsed in the computation of the interest payable on such next
succeeding Business Day.
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23.6. SEVERABILITY.
Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the fullest extent permitted by applicable law) not
invalidate or render unenforceable such provision in any other jurisdiction.
23.7. ACCOUNTING TERMS; PRO FORMA COMPUTATIONS.
All accounting terms used herein which are not expressly defined in
this Agreement have the meanings respectively given to them in accordance with
GAAP. Except as otherwise specifically provided herein, all computations made
pursuant to this Agreement shall be made in accordance with GAAP and all
balance sheets and other financial statements with respect thereto shall be
prepared in accordance with GAAP. Except as otherwise specifically provided
herein, any consolidated financial statement or financial computation shall be
done in accordance with GAAP.
23.8. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall be an original but all of which together shall constitute one
instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
23.9. GOVERNING LAW.
This Agreement and the Notes shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws
of the State of New York excluding 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.
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If you are in agreement with the foregoing, please sign the form of
agreement in the space below provided on a counterpart of this Agreement and
return it to the Parent, whereupon the foregoing shall become a binding
agreement between you and the Parent. On or before the date of the Closing the
Parent will cause the Company to execute counterparts of this Agreement,
whereupon the foregoing shall also become a binding agreement between you and
the Company.
Very truly yours,
TEAM RENTAL GROUP, INC.
By /s/ [unreadable]
------------------------------------
Title: President
BUDGET RENT A CAR CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Title: Vice President & Treasurer
The foregoing is hereby
agreed to as of the
date first above written.
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
By /s/ Xxxx X. Xxxxxxx
------------------------
Title:
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If you are in agreement with the foregoing, please sign the form of
agreement in the space below provided on a counterpart of this Agreement and
return it to the Parent, whereupon the foregoing shall become a binding
agreement between you and the Parent. On or before the date of the Closing the
Parent will cause the Company to execute counterparts of this Agreement,
whereupon the foregoing shall also become a binding agreement between you and
the Company.
Very truly yours,
TEAM RENTAL GROUP, INC.
By /s/ [unreadable]
------------------------------------
Title: President
BUDGET RENT A CAR CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Title: Vice President & Treasurer
The foregoing is hereby
agreed to as of the
date first above written.
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA
By /s/ Xxxxx X. Xxxxxx
----------------------------------
Title: Director-Private Placements
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If you are in agreement with the foregoing, please sign the form of
agreement in the space below provided on a counterpart of this Agreement and
return it to the Parent, whereupon the foregoing shall become a binding
agreement between you and the Parent. On or before the date of the Closing the
Parent will cause the Company to execute counterparts of this Agreement,
whereupon the foregoing shall also become a binding agreement between you and
the Company.
Very truly yours,
TEAM RENTAL GROUP, INC.
By /s/ [unreadable]
------------------------------------
Title: President
BUDGET RENT A CAR CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Title: Vice President & Treasurer
The foregoing is hereby
agreed to as of the
date first above written.
NEW YORK LIFE INSURANCE COMPANY
By /s/ [unreadable]
-------------------------
Title: Investment Manager
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If you are in agreement with the foregoing, please sign the form of
agreement in the space below provided on a counterpart of this Agreement and
return it to the Parent, whereupon the foregoing shall become a binding
agreement between you and the Parent. On or before the date of the Closing the
Parent will cause the Company to execute counterparts of this Agreement,
whereupon the foregoing shall also become a binding agreement between you and
the Company.
Very truly yours,
TEAM RENTAL GROUP, INC.
By /s/ [unreadable]
------------------------------------
Title: President
BUDGET RENT A CAR CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Title: Vice President & Treasurer
The foregoing is hereby
agreed to as of the
date first above written.
NEW YORK LIFE INSURANCE COMPANY AND ANNUITY CORPORATION
By /s/ [unreadable]
-------------------------
Title: Investment Manager
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74
If you are in agreement with the foregoing, please sign the form of
agreement in the space below provided on a counterpart of this Agreement and
return it to the Parent, whereupon the foregoing shall become a binding
agreement between you and the Parent. On or before the date of the Closing the
Parent will cause the Company to execute counterparts of this Agreement,
whereupon the foregoing shall also become a binding agreement between you and
the Company.
Very truly yours,
TEAM RENTAL GROUP, INC.
By /s/ [unreadable]
------------------------------------
Title: President
BUDGET RENT A CAR CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Title: Vice President & Treasurer
The foregoing is hereby
agreed to as of the
date first above written.
XXXX XXXXXXX VARIABLE LIFE INSURANCE COMPANY
By /s/ [unreadable]
------------------------
Title: Vice President
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If you are in agreement with the foregoing, please sign the form of
agreement in the space below provided on a counterpart of this Agreement and
return it to the Parent, whereupon the foregoing shall become a binding
agreement between you and the Parent. On or before the date of the Closing the
Parent will cause the Company to execute counterparts of this Agreement,
whereupon the foregoing shall also become a binding agreement between you and
the Company.
Very truly yours,
TEAM RENTAL GROUP, INC.
By /s/ [unreadable]
------------------------------------
Title: President
BUDGET RENT A CAR CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Title: Vice President & Treasurer
The foregoing is hereby
agreed to as of the
date first above written.
AMERICAN GENERAL LIFE AND ACCIDENT INSURANCE COMPANY
By /s/ Xxxxx X. Xxxxxx
-------------------------
Title: Investment Officer
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If you are in agreement with the foregoing, please sign the form of
agreement in the space below provided on a counterpart of this Agreement and
return it to the Parent, whereupon the foregoing shall become a binding
agreement between you and the Parent. On or before the date of the Closing the
Parent will cause the Company to execute counterparts of this Agreement,
whereupon the foregoing shall also become a binding agreement between you and
the Company.
Very truly yours,
TEAM RENTAL GROUP, INC.
By /s/ [unreadable]
------------------------------------
Title: President
BUDGET RENT A CAR CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Title: Vice President & Treasurer
The foregoing is hereby
agreed to as of the
date first above written.
THE VARIABLE ANNUITY LIFE INSURANCE COMPANY
By /s/ Xxxxx X. Xxxxxx
--------------------------
Title: Investement Officer
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If you are in agreement with the foregoing, please sign the form of
agreement in the space below provided on a counterpart of this Agreement and
return it to the Parent, whereupon the foregoing shall become a binding
agreement between you and the Parent. On or before the date of the Closing the
Parent will cause the Company to execute counterparts of this Agreement,
whereupon the foregoing shall also become a binding agreement between you and
the Company.
Very truly yours,
TEAM RENTAL GROUP, INC.
By /s/ [unreadable]
------------------------------------
Title: President
BUDGET RENT A CAR CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Title: Vice President & Treasurer
The foregoing is hereby
agreed to as of the
date first above written.
THE FRANKLIN LIFE INSURANCE COMPANY
By /s/ Xxxxx X. Xxxxxx
--------------------------
Title: Investment Officer
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If you are in agreement with the foregoing, please sign the form of
agreement in the space below provided on a counterpart of this Agreement and
return it to the Parent, whereupon the foregoing shall become a binding
agreement between you and the Parent. On or before the date of the Closing the
Parent will cause the Company to execute counterparts of this Agreement,
whereupon the foregoing shall also become a binding agreement between you and
the Company.
Very truly yours,
TEAM RENTAL GROUP, INC.
By /s/ [unreadable]
------------------------------------
Title: President
BUDGET RENT A CAR CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Title: Vice President & Treasurer
The foregoing is hereby
agreed to as of the
date first above written.
XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY
By /s/ [unreadable]
------------------------
Title: Vice President
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If you are in agreement with the foregoing, please sign the form of
agreement in the space below provided on a counterpart of this Agreement and
return it to the Parent, whereupon the foregoing shall become a binding
agreement between you and the Parent. On or before the date of the Closing the
Parent will cause the Company to execute counterparts of this Agreement,
whereupon the foregoing shall also become a binding agreement between you and
the Company.
Very truly yours,
TEAM RENTAL GROUP, INC.
By /s/ [unreadable]
------------------------------------
Title: President
BUDGET RENT A CAR CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Title: Vice President & Treasurer
The foregoing is hereby
agreed to as of the
date first above written.
AMERICAN LIFE AND CASUALTY INSURANCE COMPANY
By /s/ [unreadable]
------------------------
Title: AVP
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80
If you are in agreement with the foregoing, please sign the form of
agreement in the space below provided on a counterpart of this Agreement and
return it to the Parent, whereupon the foregoing shall become a binding
agreement between you and the Parent. On or before the date of the Closing the
Parent will cause the Company to execute counterparts of this Agreement,
whereupon the foregoing shall also become a binding agreement between you and
the Company.
Very truly yours,
TEAM RENTAL GROUP, INC.
By /s/ [unreadable]
------------------------------------
Title: President
BUDGET RENT A CAR CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Title: Vice President & Treasurer
The foregoing is hereby
agreed to as of the
date first above written.
WESTERN MUTUAL LIFE INSURANCE COMPANY
By /s/ [unreadable]
------------------------
Title: AVP
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81
If you are in agreement with the foregoing, please sign the form of
agreement in the space below provided on a counterpart of this Agreement and
return it to the Parent, whereupon the foregoing shall become a binding
agreement between you and the Parent. On or before the date of the Closing the
Parent will cause the Company to execute counterparts of this Agreement,
whereupon the foregoing shall also become a binding agreement between you and
the Company.
Very truly yours,
TEAM RENTAL GROUP, INC.
By /s/ [unreadable]
------------------------------------
Title: President
BUDGET RENT A CAR CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Title: Vice President & Treasurer
The foregoing is hereby
agreed to as of the
date first above written.
BENEFICIAL STANDARD LIFE INSURANCE COMPANY
By /s/ [unreadable]
------------------------
Title: AVP
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If you are in agreement with the foregoing, please sign the form of
agreement in the space below provided on a counterpart of this Agreement and
return it to the Parent, whereupon the foregoing shall become a binding
agreement between you and the Parent. On or before the date of the Closing the
Parent will cause the Company to execute counterparts of this Agreement,
whereupon the foregoing shall also become a binding agreement between you and
the Company.
Very truly yours,
TEAM RENTAL GROUP, INC.
By /s/ [unreadable]
------------------------------------
Title: President
BUDGET RENT A CAR CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Title: Vice President & Treasurer
The foregoing is hereby
agreed to as of the
date first above written.
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
By Lincoln Investment Management, Inc., Its Attorney-In-Fact
By /s/ Xxxxx X. Patch
------------------------
Title: Vice President
83
If you are in agreement with the foregoing, please sign the form of
agreement in the space below provided on a counterpart of this Agreement and
return it to the Parent, whereupon the foregoing shall become a binding
agreement between you and the Parent. On or before the date of the Closing the
Parent will cause the Company to execute counterparts of this Agreement,
whereupon the foregoing shall also become a binding agreement between you and
the Company.
Very truly yours,
TEAM RENTAL GROUP, INC.
By /s/ [unreadable]
------------------------------------
Title: President
BUDGET RENT A CAR CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Title: Vice President & Treasurer
The foregoing is hereby
agreed to as of the
date first above written.
FIRST PENN-PACIFIC LIFE INSURANCE COMPANY
By Lincoln Investment Management, Inc., Its Attorney-In-Fact
By /s/ Xxxxx X. Patch
------------------------
Title: Vice President
84
If you are in agreement with the foregoing, please sign the form of
agreement in the space below provided on a counterpart of this Agreement and
return it to the Parent, whereupon the foregoing shall become a binding
agreement between you and the Parent. On or before the date of the Closing the
Parent will cause the Company to execute counterparts of this Agreement,
whereupon the foregoing shall also become a binding agreement between you and
the Company.
Very truly yours,
TEAM RENTAL GROUP, INC.
By /s/ [unreadable]
------------------------------------
Title: President
BUDGET RENT A CAR CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Title: Vice President & Treasurer
The foregoing is hereby
agreed to as of the
date first above written.
THE LINCOLN NATIONAL HEALTH & CASUALTY INSURANCE COMPANY
By Lincoln Investment Management, Inc., Its Attorney-In-Fact
By /s/ Xxxxx X. Patch
------------------------
Title: Vice President
85
If you are in agreement with the foregoing, please sign the form of
agreement in the space below provided on a counterpart of this Agreement and
return it to the Parent, whereupon the foregoing shall become a binding
agreement between you and the Parent. On or before the date of the Closing the
Parent will cause the Company to execute counterparts of this Agreement,
whereupon the foregoing shall also become a binding agreement between you and
the Company.
Very truly yours,
TEAM RENTAL GROUP, INC.
By /s/ [unreadable]
------------------------------------
Title: President
BUDGET RENT A CAR CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Title: Vice President & Treasurer
The foregoing is hereby
agreed to as of the
date first above written.
THE TRAVELERS INSURANCE COMPANY
By /s/ Xxxxxx Xxxxxxxxxxxx
-----------------------------------
Title: Assistant Investment Officer
86
If you are in agreement with the foregoing, please sign the form of
agreement in the space below provided on a counterpart of this Agreement and
return it to the Parent, whereupon the foregoing shall become a binding
agreement between you and the Parent. On or before the date of the Closing the
Parent will cause the Company to execute counterparts of this Agreement,
whereupon the foregoing shall also become a binding agreement between you and
the Company.
Very truly yours,
TEAM RENTAL GROUP, INC.
By /s/ [unreadable]
------------------------------------
Title: President
BUDGET RENT A CAR CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Title: Vice President & Treasurer
The foregoing is hereby
agreed to as of the
date first above written.
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By /s/ Xxxx X. Xxxxx
------------------------
Title: Managing Director
87
If you are in agreement with the foregoing, please sign the form of
agreement in the space below provided on a counterpart of this Agreement and
return it to the Parent, whereupon the foregoing shall become a binding
agreement between you and the Parent. On or before the date of the Closing the
Parent will cause the Company to execute counterparts of this Agreement,
whereupon the foregoing shall also become a binding agreement between you and
the Company.
Very truly yours,
TEAM RENTAL GROUP, INC.
By /s/ [unreadable]
------------------------------------
Title: President
BUDGET RENT A CAR CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Title: Vice President & Treasurer
The foregoing is hereby
agreed to as of the
date first above written.
THE AETNA CASUALTY AND SURETY COMPANY
By /s/ Jordan X. Xxxxxxx
------------------------
Title: Vice President
88
If you are in agreement with the foregoing, please sign the form of
agreement in the space below provided on a counterpart of this Agreement and
return it to the Parent, whereupon the foregoing shall become a binding
agreement between you and the Parent. On or before the date of the Closing the
Parent will cause the Company to execute counterparts of this Agreement,
whereupon the foregoing shall also become a binding agreement between you and
the Company.
Very truly yours,
TEAM RENTAL GROUP, INC.
By /s/ [unreadable]
------------------------------------
Title: President
BUDGET RENT A CAR CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Title: Vice President & Treasurer
The foregoing is hereby
agreed to as of the
date first above written.
METROPOLITAN LIFE INSURANCE
By /s/ [unreadable]
-------------------------------
Title: Assistant Vice President
89
SCHEDULE A
This Schedule A shows the names and addresses of the
Purchasers under the foregoing Senior Note Purchase Agreement and the Other
Agreements referred to therein and the respective principal amounts of Notes to
be purchased by each.
Name and Address of Purchaser Principal Amount
----------------------------- ----------------
NEW YORK LIFE INSURANCE COMPANY $20,000,000
(1) All payments on account of the Notes shall be made by wire or
intrabank transfer of immediately available funds prior to 12:00
noon (New York time) on the due date to Xxxxxx Guaranty Trust
Company of Xxx Xxxx, Xxx Xxxx, XX 00000, ABA No. 000-000-000,
for credit to the account of New York Life Insurance Company,
General Account No. 000-00-000 with sufficient information
(including issuer, interest rate, maturity, PPN and whether
payment is of principal, premium or interest) to identify the
source and application of such funds.
(2) Address for advice of any unscheduled
or optional payments:
New York Life Insurance Company
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Treasury Department, Securities Income
Section, Room 209
Telecopy No.: (000) 000-0000
(3) Address for all other communications:
New York Life Insurance Company
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Investment Department, Private
Finance Group, Xxxx 000
Telecopy No.: (000) 000-0000
with a copy of any notice
of Default or Event of Default to:
New York Life Insurance Company
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx xx xxx Xxxxxxx Xxxxxxx,
Xxxxxxxxxx Xxxxxxx, Xxxx 0000
Telecopy No.: (000) 000-0000
(4) Tax Identification Number: 00-0000000
90
Name and Address of Purchaser Principal Amount
----------------------------- ----------------
NEW YORK LIFE INSURANCE AND ANNUITY $10,000,000
CORPORATION
(1) All payments on account of the Notes shall be made by wire or
intrabank transfer of immediately available funds prior to 12:00 noon
(New York time) on the due date to Chase Manhattan Bank, New York,
New York, ABA No. 000-000-000, for credit to the account of New York
Life Insurance and Annuity Corporation General Account No.
000-0-00000, with sufficient information (including issuer, interest
rate, maturity, PPN and whether payment is of principal, premium or
interest) to identify the source and application of such funds.
(2) Address for advice of any unscheduled or
optional payments:
New York Life Insurance and Annuity Corporation
c/o New York Life Insurance Company
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Treasury Department,
Securities Income
Section, Room 209
Telecopy No.: (000) 000-0000
(3) Address for all other communications:
New York Life Insurance and Annuity Corporation
c/o New York Life Insurance Company
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Investment Department,
Private Finance Group,
Room 206
Telecopy No.: (000) 000-0000
(4) Tax Identification Number: 00-0000000
A-2
91
Name and Address of Purchaser Principal Amount
----------------------------- ----------------
TEACHERS INSURANCE AND ANNUITY ASSOCIATION $30,000,000
OF AMERICA
(1) All payments on account of the Notes shall be made in immediately
available funds prior to 12:00 noon (New York time) on the due date by
electronic funds transfer through the Automated Clearing House System
(identifying each payment as "Budget Group, Inc., PPN 119008A*1, 9.57%
Guaranteed Senior Notes due 2007 (principal or interest or premium)")
to:
The Chase Manhattan Bank
ABA No. 000-000-000
New York, New York
Account of: Teachers Insurance and Annuity Association of America
Account Number: 000-0-000000
On Order of: Budget Group, Inc.
(2) Contemporaneous with the above electronic funds transfer payment,
written confirmation of each such payment setting forth: (a) the full
name, private placement number, interest rate and maturity date of the
Notes; (b) allocation of payment between principal, interest, premium
and any special payment; and (c) the name and address of the bank from
which such electronic funds transfer was sent shall be delivered,
mailed or faxed to:
Teachers Insurance and Annuity Association
of America
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Securities Accounting Division
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
A-3
92
(3) All other communications shall be
delivered or mailed to:
Teachers Insurance and Annuity Association
of America
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Securities Division, Private Placements
Xxxxx Xxxxxx
Telephone Number: (000) 000-0000
General Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
(4) Taxpayer I.D. Number: 00-0000000
A-4
93
Name and Address of Purchaser Principal Amount
----------------------------- ----------------
THE NORTHWESTERN MUTUAL LIFE $22,500,000
INSURANCE COMPANY
(1) All payments on account of the Notes shall be made by wire
transfer of immediately available funds to the account of The
Northwestern Mutual Life Insurance Company, at Account No.
00-000-000 at Bankers Trust Company, 16 Wall Street, Insurance
Xxxx - 0xx Xxxxx, Xxx Xxxx, XX 00000, ABA #000-000-000 with
sufficient information to identify the source and application
of such funds including the PPN: 119008A*1 for the Notes.
(2) Address for all notices in respect
of payments:
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Investment Operations
Fax: 000-000-0000
(3) Address for all other communications:
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Securities Department
Fax: 000-000-0000
(4) Tax Identification No.: 00-0000000
A-5
94
Name and Address of Purchaser Principal Amount
----------------------------- ----------------
XXXX XXXXXXX MUTUAL LIFE INSURANCE $8,500,000
COMPANY 5,000,000
(1) All payments on account of the Series B Notes or other obligations in
accordance with the provisions thereof shall be made by bank wire
transfer of immediately available funds for credit not later than 12
noon, Boston time, to:
The First National Bank of Boston,
ABA No. 000000000
Xxxxxx, XX 00000
Account of: Xxxx Xxxxxxx Mutual Life Insurance Company
Private Placement Collection Account
Account Number: 541-55417
On Order of: Budget Rent a Car Corporation
PPN: 119008A*1
(2) Contemporaneous with the above wire
transfer, advice setting forth:
(a) the full name, interest rate and maturity date of the Notes or
other obligations,
(b) allocation of payment between principal and interest and any
special payment, and
(c) name and address of the bank (or trustee) from which such wire
transfer was sent shall be delivered or mailed to:
Xxxx Xxxxxxx Mutual Life Insurance Company
Xxxx Xxxxxxx Place
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Securities Accounting
Division T-10
A-6
95
(3) All notices with respect to prepayments, both scheduled and
unscheduled, whether partial or in full, and notice of maturity shall
be delivered or mailed to:
Xxxx Xxxxxxx Mutual Life Insurance Company
Xxxx Xxxxxxx Place
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Securities Accounting Division T-10
(4) All other communications which shall include, but not be limited to,
financial statements and certificates of compliance with financial
covenants, shall be delivered or mailed to:
Xxxx Xxxxxxx Mutual Life Insurance Company
Xxxx Xxxxxxx Place
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Bond and Corporate Finance Department T-57
(5) A copy of foregoing notices relating to change in issuer's name,
address or principal place of business or location of collateral and a
copy of any legal opinions shall be delivered or mailed to:
Xxxx Xxxxxxx Mutual Life Insurance Company
Xxxx Xxxxxxx Place
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Investment Law Division, T-50
(6) Tax Identification No.: 000000000
A-7
96
Name and Address of Purchaser Principal Amount
----------------------------- ----------------
XXXX XXXXXXX VARIABLE LIFE INSURANCE $1,500,000
COMPANY
(1) All payments on account of the Series B Notes or other obligations in
accordance with the provisions thereof shall be made by bank wire
transfer of immediately available funds for credit not later than 12
noon, Boston time, to:
The First National Bank of Boston,
ABA No. 000000000
Xxxxxx, XX 00000
Account of: Xxxx Xxxxxxx Mutual Life Insurance Company
Private Placement Collection Account
Account Number: 541-55417
On Order of: Budget Rent a Car Corporation
PPN: 119008A*1
(2) Contemporaneous with the above wire
transfer, advice setting forth:
(a) the full name, interest rate and maturity date of the Notes or
other obligations,
(b) allocation of payment between principal and interest and any
special payment, and
(c) name and address of the bank (or trustee) from which such wire
transfer was sent shall be delivered or mailed to:
Xxxx Xxxxxxx Mutual Life Insurance Company
Xxxx Xxxxxxx Place
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Securities Accounting
Division T-10
A-8
97
(3) All notices with respect to prepayments, both scheduled and
unscheduled, whether partial or in full, and notice of maturity shall
be delivered or mailed to:
Xxxx Xxxxxxx Mutual Life Insurance Company
Xxxx Xxxxxxx Place
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Securities Accounting
Division T-10
(4) All other communications which shall include, but not be limited to,
financial statements and certificates of compliance with financial
covenants, shall be delivered or mailed to:
Xxxx Xxxxxxx Mutual Life Insurance Company
Xxxx Xxxxxxx Place
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Bond and Corporate
Finance Department T-57
(5) A copy of foregoing notices relating to change in issuer's name,
address or principal place of business or location of collateral and a
copy of any legal opinions shall be delivered or mailed to:
Xxxx Xxxxxxx Mutual Life Insurance Company
Xxxx Xxxxxxx Place
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Investment Law Division, T-50
(6) Tax Identification No.: 00-0000000
A-9
98
Name and Address of Purchaser Principal Amount
----------------------------- ----------------
AMERICAN GENERAL LIFE AND ACCIDENT $5,000,000
INSURANCE COMPANY
(1) All payments by wire transfer of immediately available funds, with
sufficient information (including PPN 119008A*1, interest rate,
maturity date, interest amount, principal amount and premium amount, if
applicable) to identify the source and application of such funds, to:
ABA#000000000
State Street Bank and Trust Company
Xxxxxx, XX 00000
Re: American General Life and
Accident Insurance Company
AC-0125-934-0
OBI = 119008A*1 and description of payment
Fund Number PA 10
(2) All notices of payments and written confirmations of such wire
transfers, to:
American General Life and Accident
Insurance Company and PA 10
c/o State Street Bank and Trust Company
Insurance Services Custody (AH2)
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxxx, XX 00000
Facsimile Number: (000) 000-0000
A-10
99
(3) All communications (including
payment notices), to:
American General Life and Accident Insurance Company
c/o American General Corporation
Attn: Investment Xxxxxxxx Xxxxxxxxxx, X00-00
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
Overnight Mail Address:
0000 Xxxxx Xxxxxxx
Xxxxxxx, XX 00000-0000
Facsimile Number: (000) 000-0000
(4) Tax I.D. Number: 00-0000000
A-11
100
Name and Address of Purchaser Principal Amount
----------------------------- ----------------
THE VARIABLE ANNUITY LIFE INSURANCE $5,000,000
COMPANY
(1) All payments by wire transfer of immediately available funds, with
sufficient information (including PPN 119008A*1, interest rate,
maturity date, interest amount, principal amount and premium amount, if
applicable) to identify the source and application of such funds, to:
ABA#000000000
State Street Bank and Trust Company
Xxxxxx, XX 00000
Re: The Variable Annuity Life
Insurance Company
AC-0125-821-9
OBI = 119008A*1 and description of payment
Fund Number PA 54
(2) All notices of payments and written confirmations of such wire
transfers, to:
The Variable Annuity Life Insurance Company and PA 54
c/o State Street Bank and Trust Company
Insurance Services Custody (AH2)
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxxx, XX 00000
Facsimile Number: (000) 000-0000
A-12
101
(3) All communications (including
payment notices), to:
The Variable Annuity Life Insurance Company
c/o American General Corporation
Attn: Investment Xxxxxxxx
Xxxxxxxxxx, X00-00
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
Overnight Mail Address:
0000 Xxxxx Xxxxxxx
Xxxxxxx, XX 00000-0000
Facsimile Number: (000) 000-0000
(4) Tax I.D. Number: 00-0000000
A-13
102
Name and Address of Purchaser Principal Amount
----------------------------- ----------------
THE FRANKLIN LIFE INSURANCE COMPANY $5,000,000
(1) All payments by wire transfer of immediately available funds, with
sufficient information (including PPN 119008A*1, interest rate,
maturity date, interest amount, principal amount and premium amount, if
applicable) to identify the source and application of such funds, to:
ABA#000000000
State Street Bank and Trust Company
Xxxxxx, XX 00000
Re: The Franklin Life Insurance
Company
AC-2492-440-9
OBI = 119008A*1 and description of payment
Fund Number PA 37
(2) All notices of payments and written
confirmations of such wire
transfers, to:
The Franklin Life Insurance Company and PA 37
c/o State Street Bank and Trust Company
Insurance Services Custody (AH2)
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxxx, XX 00000
Facsimile Number: (000) 000-0000
(3) All communications (including
payment notices), to:
The Franklin Life Insurance Company
c/o American General Corporation
Attn: Investment Xxxxxxxx Xxxxxxxxxx, X00-00
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
A-14
103
Overnight Mail Address:
0000 Xxxxx Xxxxxxx
Xxxxxxx, XX 00000-0000
Facsimile Number: (000) 000-0000
(4) Tax I.D. Number: 00-0000000
A-15
104
Name and Address of Purchaser Principal Amount
----------------------------- ----------------
AMERICAN LIFE AND CASUALTY INSURANCE COMPANY $5,000,000
(1) All payments by wire transfer of immediately available funds
to:
Bankers Trust Company
New York, NY
ABA #: 000-000-000
DDA #: 00000000
Account #: 00000000
FFC: American Life & Casualty
Insurance Company, Account #: 99810
with sufficient information to identify the source and
application of such funds, including the PPN:
119008A*1 of the Notes.
(2) Address for delivery of securities:
Bankers Trust Company
00 Xxxx Xxxxxx
Xxxxxx Xxxxx, Window 62
Account #: 00000000
FFC: American Life & Casualty
Insurance Company, Account #: 99810
(3) Address for all notices:
Conseco Capital Management, Inc.
c/o American Life & Casualty Insurance Company
X.X. Xxx 0000
Xxxxxx, XX 00000
Attn: Account Documentation Dept.
with a copy to:
Conseco, Inc.
c/o American Life & Casualty Insurance Company
X.X. Xxx 0000
Xxxxxx, XX 00000
Attn: Investment Accounting
(4) Tax Identification No.: 00-0000000
A-16
105
Name and Address of Purchaser Principal Amount
----------------------------- ----------------
BENEFICIAL STANDARD LIFE INSURANCE COMPANY $5,000,000
(1) All payments by wire transfer of immediately available funds
to:
Bankers Trust Company
New York, NY
ABA #: 000-000-000
DDA #: 00000000
Account #: 00000000
FFC: Beneficial Standard Life
Insurance Company, Account #: 99820
with sufficient information to identify the source and
application of such funds, including the PPN: 119008A*1 of
the Notes.
(2) Address for delivery of securities:
Bankers Trust Company
00 Xxxx Xxxxxx
Xxxxxx Xxxxx, Window 62
Account #: 00000000
FFC: Beneficial Standard Life Insurance Company, Account #:
99820
(3) Address for all notices:
Conseco Capital Management, Inc.
c/o Beneficial Standard Life Insurance Company
X.X. Xxx 0000
Xxxxxx, XX 00000
Attn: Account Documentation Dept.
with a copy to:
Conseco, Inc.
c/o Beneficial Standard Life Insurance Company
X.X. Xxx 0000
Xxxxxx, XX 00000
Attn: Investment Accounting
(4) Tax Identification No.: 00-0000000
A-17
106
Name and Address of Purchaser Principal Amount
----------------------------- ----------------
WESTERN NATIONAL LIFE INSURANCE COMPANY $5,000,000
(1) All payments by wire transfer of immediately available funds
to:
State Street
ABA #: 011-000-028
DDA #: 00000000
Account #: 0000-000-0
FFC: Alert # 15 Western National Life,
Account #: WE1B
with sufficient information to identify the source and
application of such funds, including the PPN: 119008A*1 of
the Notes.
(2) Address for delivery of securities:
Chase Bank
Acct: State Street Bank & Trust Company
4 New York Plaza
Ground Floor/Receive Window
Xxx Xxxx, XX 00000
Attn: WE1B
(3) Address for all notices:
Conseco Capital Management, Inc.
x/x Xxxxx # 00 Xxxxxxx Xxxxxxxx Life
X.X. Xxx 0000
Xxxxxx, XX 00000
Attn: Account Documentation Dept.
with a copy to:
Conseco, Inc.
x/x Xxxxx # 00 Xxxxxxx Xxxxxxxx Life
X.X. Xxx 0000
Xxxxxx, XX 00000
Attn: Investment Accounting
and
A-18
107
Western National Life
x/x Xxxxx # 00 Xxxxxxx Xxxxxxxx Life
000 Xxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
(4) Tax Identification No.: 00-0000000
A-19
108
Name and Address of Purchaser Principal Amount
----------------------------- ----------------
THE LINCOLN NATIONAL LIFE INSURANCE $7,350,000
COMPANY
(1) All payments by wire transfer of immediately available funds
to:
Bankers Trust Company
New York, New York
ABA #000000000
Private Placement Processing
Account No.: 00-000-000
For the Accounts of:
- The Lincoln National Life Insurance
Company (UIN)
Custody Account No. 98127 - Note in
original principal amount of
$1,650,000
- The Lincoln National Life Insurance Company (IOB)
Custody Account No. 98201 - Note in
original principal amount of $800,000
- The Lincoln National Life Insurance Company (IAL)
Custody Account No. 98194 - Note in original principal
amount of $2,300,000
- The Lincoln National Life Insurance Company (IAD)
Custody Account No. 98195 - Note in original
principal amount of $800,000
- The Lincoln National Life Insurance Company (GAI)
Custody Account No. 98208 - Note in original principal
amount of $1,800,000
with sufficient information to identify the source and
application of such funds, including the PPN: 119008A*1 of
the Notes.
A-20
109
(2) Address for delivery of securities:
Bankers Trust Company
00 Xxxx Xxxxxx, 0xx Xxxxx, Window #44
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxxxxx, Mail Stop 4049
(3) Address for all notices in respect
of payment:
Bankers Trust Company
Attn: Private Placement Xxxx
X.X. Xxx 000, Xxxxxxx Xxxxx Xxxxxxx
Xxx Xxxx, XX 00000
(4) Address for all other communications:
Lincoln Investment Management, Inc.
000 Xxxx Xxxxx Xxxxxx
Renaissance Square
Fort Xxxxx, IN 46802
Attn: Investments/Private Placements
(5) Tax Identification No.: 00-0000000
A-21
110
Name and Address of Purchaser Principal Amount
----------------------------- ----------------
FIRST PENN-PACIFIC LIFE INSURANCE COMPANY $1,650,000
(I/N/X XXXX & CO)
(1) All payments by wire transfer of immediately available funds
to:
The Chase Manhattan Bank N.A.
New York, NY
ABA #: 021 00 0021
Chase NYC/CTR/BNF
A/C #000-0-000000
For the Account of: First Penn-Pacific
Life Insurance Company
with sufficient information to identify the source and application of
such funds, including the PPN: 119008A*1 of the Notes.
(2) Address for delivery of securities:
The Chase Manhattan Bank
4 New York Plaza
Ground Floor Window
Xxx Xxxx, XX 00000
For Acct: G05996 First Penn-Pacific
Life Insurance Company
Attn: Xxxxx Xxxxxx
(3) Address for all notices in respect of payment and all other
communications:
Lincoln Investment Management, Inc.
000 Xxxx Xxxxx Xxxxxx
Renaissance Square
Fort Xxxxx, IN 46802
Attn: Investments/Private Placements
(4) Tax Identification No.: 00-0000000
A-22
111
Name and Address of Purchaser Principal Amount
----------------------------- ----------------
LINCOLN NATIONAL HEALTH & CASUALTY $1,000,000
INSURANCE COMPANY
(1) All payments by wire transfer of immediately available funds
to:
The Chase Manhattan Bank N.A.
New York, NY
ABA #: 021 00 0021
Chase NYC/CTR/BNF
A/C #000-0-000000
For the Account of: Lincoln Natl
Health & Casualty Ins Company
Custody Account No. G06323
with sufficient information to identify the source and application of
such funds, including the PPN: 119008A*1 of the Notes.
(2) Address for delivery of securities:
The Chase Manhattan Bank
4 New York Plaza
Ground Floor Window
Xxx Xxxx, XX 00000
For Acct: G06323 Lincoln Natl Health & Casualty Ins Co
Attn: Xxxxx Xxxxxx
(3) Address for all notices in respect of payment and all other
communications:
Lincoln Investment Management, Inc.
000 Xxxx Xxxxx Xxxxxx
Renaissance Square
Fort Xxxxx, IN 46802
Attn: Investments/Private Placements
(4) Tax Identification No.: 00-0000000
A-23
112
Name and Address of Purchaser Principal Amount
----------------------------- ----------------
MASSACHUSETTS MUTUAL LIFE INSURANCE $8,750,000
COMPANY
(1) All payments on account of the Notes shall be made by crediting in the
form of bank wire transfer of Federal or other immediately available
funds (identifying each payment as Budget Rent a Car Corporation, 9.57%
Guaranteed Senior Notes due 2007, interest and principal) to:
Citibank, N.A.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
ABA No. 000000000
For MassMutual Long Term Pool
Account No. 4067-3488
Each with telephone advice of payment to the Securities Custody and
Collection Department of Massachusetts Mutual Life Insurance Company at
(000) 000-0000
(2) All notices and communications to be addressed to:
Massachusetts Mutual Life
Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Securities Investment Division
(3) Notices with respect to payments and corporate actions to be addressed
as provided in clause (2) above:
Attention: Securities Custody and Collection Department F 381
(4) Tax Identification Number: 00-0000000
A-24
113
Name and Address of Purchaser Principal Amount
----------------------------- ----------------
THE TRAVELERS INSURANCE COMPANY $6,250,000
(I/N/O TRAL & CO.)
(1) All payments on account of the Notes shall be made by wire
transfer of federal or other immediately available funds prior
to 12:00 noon (New York time) on the due date to The Travelers
Insurance Company--Consolidated Private Placement Account No.
000-0-000000 at The Chase Manhattan Bank, Xxx Xxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, ABA# 021-000021, with sufficient
information (including interest rate and maturity) to identify
the source and application of such funds, including the PPN:
119008A*1 of the Notes.
(2) Address for all notices in respect of payment:
Xxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attn: Securities Department-
Cashier
(3) Address for all other communications:
Xxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attention: Securities Department-
Private Placements
Telecopy: (000) 000-0000
(4) Tax Identification No.: 00-0000000
A-25
114
Name and Address of Purchaser Principal Amount
----------------------------- ----------------
THE AETNA CASUALTY AND SURETY COMPANY $5,000,000
(I/N/O TRAL & CO.)
(1) All payments on account of the Notes shall be made by wire
transfer of federal or other immediately available funds prior
to 12:00 noon (New York time) on the due date to The Travelers
Insurance Company--Consolidated Private Placement Account No.
000-0-000000 at The Chase Manhattan Bank, Xxx Xxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, ABA# 021-000021, with sufficient
information (including interest rate and maturity) to identify
the source and application of such funds, including the PPN:
119008A*1 of the Notes.
(2) Address for all notices in respect of payment:
The Aetna Casualty and Surety Company
Xxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attn: Securities Department-
Cashier - 10PB
(3) Address for all other communications:
The Aetna Casualty and Surety Company
Xxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attention: Securities Department-
Private Placements-9PB
Telecopy: (000) 000-0000
(4) Tax Identification No.: 00-0000000
A-26
115
Name and Address of Purchaser Principal Amount
----------------------------- ----------------
METROPOLITAN LIFE INSURANCE COMPANY $7,500,000
(1) All payments on account of the Notes shall be made by wire transfer of
Federal or other immediately available funds to its Account No.
002-2-410591 at The Chase Manhattan Bank, Metropolitan Branch, 00 Xxxx
00xx Xxxxxx, Xxx Xxxx, XX 00000, ABA #000000000, with sufficient
information setting forth (i) the name of the Company, (ii) the
maturity date, (iii) the PPN: 119008A*1 of the Notes, (iv) the amount
of principal, interest and premium, if any, and (v) the due date of the
payment being made.
(2) Address for all notices:
Metropolitan Life Insurance Company
000 Xxxxxxx Xxxxxx
P.O. Box 633
Convent Station, NJ 07961-0633
Attn: Vice President-Private Placement Unit
Telecopy: (000) 000-0000
(3) Tax Identification Number: 00-0000000
A-27
116
SCHEDULE B
DEFINED TERMS
As used herein, the following terms have the respective
meanings set forth below or set forth in the Section hereof following such term:
"ACQUISITION" is defined in Section 1.3.
"ADJUSTED EBIT" for any period means Consolidated Net Income
plus all amounts deducted in the computation thereof on account of (a)
Consolidated Non-Vehicle Interest Charges and (b) income taxes.
"ADJUSTED EBITDA" for any period means Adjusted EBIT plus all
amounts deducted in the computation of Consolidated Net Income for such period
on account of depreciation and amortization expenses not relating to Vehicles.
"AFFILIATE" means, at any time, (a) with respect to any
Person, any other Person that at such time directly or indirectly through one or
more intermediaries Controls, or is Controlled by, or is under common Control
with, such first Person, and (b) with respect to the Parent, any Person
beneficially owning or holding, directly or indirectly, 10% or more of any class
of voting or equity interests of the Parent or any Subsidiary or any corporation
of which the Parent and its Subsidiaries beneficially own or hold, in the
aggregate, directly or indirectly, 10% or more of any class of voting or equity
interests. As used in this definition, "CONTROL" means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities, by
contract or otherwise. Unless the context otherwise clearly requires, any
reference to an "Affiliate" is a reference to an Affiliate of the Parent.
"ATTRIBUTABLE DEBT" means, as to any particular lease relating
to a sale and leaseback transaction, the total amount of rent (discounted
semiannually from the respective due dates thereof at the interest rate implicit
in such lease) required to be paid by the lessee under such lease during the
remaining term thereof. The amount of rent required to be paid under any such
lease for any such period shall be (a) the total amount of the rent payable by
the lessee with respect to such period after excluding amounts required to be
paid on account of maintenance
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and repairs, insurance, taxes, assessments, utilities, operating and labor costs
and similar charges plus (b) without duplication, any guaranteed residual value
in respect of such lease to the extent such guarantee would be included in
indebtedness in accordance with GAAP.
"BASE INDENTURE" is defined in the Revolving Credit Facility
as in effect on the date of the Closing.
"BUSINESS DAY" means any day other than a Saturday, a Sunday
or a day on which commercial banks in New York City are required or authorized
to be closed.
"CAPITAL LEASE" means, at any time, a lease with respect to
which the lessee is required concurrently to recognize the acquisition of an
asset and the incurrence of a liability in accordance with GAAP.
"CAPITALIZED LEASE OBLIGATIONS" means with respect to any
Person, all outstanding obligations of such Person in respect of Capital Leases,
taken at the capitalized amount thereof accounted for as a liability in
accordance with GAAP.
"CHANGE OF CONTROL" means such time as
(i) a "person" or "group" (within the meaning of Sections
13(d) and 14(d)(2) of the Exchange Act), excluding any "person" or
"group" of which Xxxxxxx Xxxxxx, Xxxx X. Xxxxxxx or Xxxxxxx X. Xxxxxxx,
or their controlled Affiliates, are a substantial part (and for such
purpose Messrs. Xxxxxx, Xxxxxxx and Xxxxxxx, and their controlled
Affiliates, shall not be deemed to be a substantial part of such person
or group unless in the aggregate they own beneficially at least 15% of
the total then outstanding voting power of the Voting Stock of the
Parent), (A) becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act) of more than 50% of the total then outstanding
voting power of the Voting Stock of the Parent or (B) has the right or
the ability by voting right, contract or otherwise to elect or
designate for election a majority of the entire board of directors of
the Parent;
(ii) (A) the Parent consolidates with or merges into any other
Person or conveys, transfers, sells or leases all or substantially all
of its assets as an entirety to any Person or (B) any Person merges
into the Parent, in either event pursuant to a transaction in which
Voting Stock of the
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Parent representing more than 50% of the total voting power of the
Parent outstanding immediately prior to the effectiveness thereof is
reclassified or changed into or exchanged for cash, securities or other
property; provided that any consolidation, merger, conveyance,
transfer, sale or lease between the Parent and any of its Subsidiaries
(including without limitation the reincorporation of the Parent in
another jurisdiction) shall be excluded from the operation of this
clause (ii);
(iii) during any period of two consecutive years, (A)
individuals who at the beginning of such period constituted the board
of directors of the Parent (together with any new directors whose
election by such board of directors, or whose nomination for election
by the shareholders of the Parent, as the case may be, was approved by
a vote of 66 2/3% of the directors then still in office who were either
directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any
reason to constitute a majority of the board of directors of the Parent
then in office, and (B) Xxxxxxx Xxxxxx, Xxxx X. Xxxxxxx or Xxxxxxx X.
Xxxxxxx, or their controlled Affiliates, cease to beneficially own at
least 15% of the outstanding voting power of the Voting Stock of the
Parent; or
(iv) a "Change of Control" under the Convertible Note
Agreements or the Revolving Credit Facility shall have occurred.
Notwithstanding the foregoing, a Change of Control shall not be deemed to have
occurred by virtue of the Parent's or any of its employee benefit or stock
plan's filing (or being required to file after the lapse of time) a Schedule 13D
or 14D-1 (or any successor or similar schedule, form or report under the
Exchange Act) as a result of the Parent or any such plan becoming the beneficial
owner of shares of capital stock of the Parent entitling such person to exercise
a majority of the total voting power of the Voting Stock of the Parent.
"CLASS A SHARES" means the Class A Common Stock, $.01 par
value per share, of the Parent.
"CLOSING" is defined in Section 3.
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"CODE" means the Internal Revenue Code of 1986, as amended
from time to time, and the rules and regulations promulgated thereunder from
time to time.
"COMPANY" means Budget Rent a Car Corporation, a Delaware
corporation.
"CONFIDENTIAL INFORMATION" is defined in Section 21.
"CONSOLIDATED ADJUSTED ASSETS" means, at any date,
Consolidated Assets minus assets of the Parent and its Subsidiaries that secure
Vehicle Debt (including without limitation cash, short-term investments and
receivables relating to Vehicle Debt), and assets that secure the Revolving
Credit Facility (including without limitation all assets of the type that could
secure the Revolving Credit Facility whether or not actually securing the
Revolving Credit Facility on such date).
"CONSOLIDATED ASSETS" means, at any date, the total assets of
the Parent and its Subsidiaries which would be shown as assets on a consolidated
balance sheet of the Parent and its Subsidiaries as of such date prepared in
accordance with GAAP, after eliminating all amounts properly attributed to
Vehicles and to minority interests, if any, in the stock and surplus of
Subsidiaries.
"CONSOLIDATED NET INCOME" for any period means the net income
(or loss) of the Parent and its Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP, excluding
(a) the proceeds of any life insurance policy,
(b) any gains arising during such period from (i) the sale or
other disposition of any assets (other than current assets), (ii) any
write-up of assets, (iii) the acquisition of outstanding securities of
the Parent or any Subsidiary, or (iv) any other extraordinary item,
(c) any amount representing any interest in the undistributed
earnings of any other Person (other than a Subsidiary),
(d) any earnings, prior to the date of acquisition, of any
Person acquired in any manner, and any earnings of any Subsidiary prior
to its becoming a Subsidiary,
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(e) any earnings of a successor to or transferee of the assets
of the Parent or a Subsidiary prior to its becoming such successor or
transferee,
(f) any deferred credit (or amortization of a deferred credit)
arising from the acquisition of any Person, and
(g) any losses during such period from any sales,
dispositions, write-downs, acquisitions or extraordinary items of the
types described in clause (b) above (but only to the extent of any
gains of such types during such period).
"CONSOLIDATED NON-VEHICLE DEBT" means, at any date, all
Non-Vehicle Debt of the Parent and its Subsidiaries determined on a consolidated
basis in accordance with GAAP.
"CONSOLIDATED NON-VEHICLE INTEREST CHARGES" means for any
period the sum for the Parent and its Subsidiaries, determined on a consolidated
basis in accordance with GAAP, of all amounts on account of interest on
Non-Vehicle Debt which would be deducted in computing Consolidated Net Income or
capitalized (including imputed interest in respect of Capitalized Lease
Obligations and amortization of Debt discount and expense).
"CONSOLIDATED SHAREHOLDERS' EQUITY" means the total
shareholders' equity of the Parent and its Subsidiaries as determined on a
consolidated basis in accordance with GAAP minus (a) any amounts included in
shareholders' equity attributable to treasury stock, capital stock subscribed
for and unissued and other contra-equity accounts and (b) minority interests, if
any, in the stock and surplus of Subsidiaries.
"CONSOLIDATED VEHICLE DEBT" means, at any date, all Vehicle
Debt of the Parent and its Subsidiaries determined on a consolidated basis in
accordance with GAAP.
"CONVERTIBLE NOTE AGREEMENTS" means collectively the Series A
Note Purchase Agreements and the Series B Note Purchase Agreements and, after an
indenture has been executed and delivered by the Parent pursuant to the Series A
Note Purchase Agreements and the Series B Note Purchase Agreements, such term
shall then include such indenture as supplemented and amended from time to time.
"DEBT" with respect to any Person means, at any time, without
duplication,
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(a) its liabilities for borrowed money or its mandatory
purchase, redemption or other retirement obligations in respect of
mandatorily redeemable Preferred Stock,
(b) its liabilities for the deferred purchase price of
property acquired by such Person (excluding accounts payable arising in
the ordinary course of business and not overdue but including all
liabilities created or arising under any conditional sale or other
title retention agreement with respect to any such property),
(c) its Capitalized Lease Obligations,
(d) all liabilities for borrowed money secured by any Lien
with respect to any property owned by such Person (whether or not it
has assumed or otherwise become liable for such liabilities),
(e) all its liabilities in respect of letters of credit or
instruments serving a similar function issued or accepted for its
account by banks and other financial institutions (whether or not
representing obligations for borrowed money),
(f) Swaps of such Person, and
(g) any Guaranty of such Person with respect to liabilities of
a type described in any of clauses (a) through (f) above.
Debt of any Person shall include all obligations of such Person of the character
described in clauses (a) through (g) above to the extent such Person remains
legally liable in respect thereof notwithstanding that any such obligation is
deemed to be extinguished under GAAP.
"DEFAULT" means an event or condition the occurrence or
existence of which would, with the giving of notice or the lapse of time, or
both, become an Event of Default.
"DEFAULT RATE" means that rate of interest that is the greater
of (i) 11.57% per annum and (ii) 2% above the rate of interest publicly
announced by Citibank, N.A. from time to time at its principal office in New
York City as its prime rate.
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"ENVIRONMENTAL LAWS" means any and all Federal, state, local,
and foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including but
not limited to those related to hazardous substances or wastes, air emissions
and discharges to waste or public systems.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the rules and regulations promulgated
thereunder from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that is treated as a single employer together with the Parent
(both before and after giving effect to the Acquisition) under section 414 of
the Code.
"EVENT OF DEFAULT" is defined in Section 11.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time.
"EXCHANGE PARENT CONVERTIBLE NOTES" means the Exchange Notes
as defined in the Convertible Note Agreements.
"FORD" is defined in Section 1.3.
"GAAP" means generally accepted accounting principles as in
effect from time to time.
"GOVERNMENTAL AUTHORITY" means
(a) the government of
(i) the United States of America or any State or any
other political subdivision of any thereof, or
(ii) any jurisdiction in which the Parent or any
Subsidiary conducts all or any part of its business, or which
asserts jurisdiction over any properties of the Parent or any
Subsidiary, or
(b) any entity exercising executive, legislative,
judicial, regulatory or administrative functions of, or pertaining to,
any such government.
Schedule B
000
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"XXXXXXXX" means, with respect to any Person, any obligation
(except the endorsement in the ordinary course of business of negotiable
instruments for deposit or collection) of such Person guaranteeing or in effect
guaranteeing any Debt, dividend or other obligation of any other Person in any
manner, whether directly or indirectly, including without limitation obligations
incurred through an agreement, contingent or otherwise, by such Person:
(a) to purchase such Debt or obligation or any property
constituting security therefor;
(b) to advance or supply funds (i) for the purchase or payment
of such Debt or obligation, or (ii) to maintain any working capital or
other balance sheet condition or any income statement condition of any
other Person or otherwise to advance or make available funds for the
purchase or payment of such Debt or obligation;
(c) to lease properties or to purchase properties or services
primarily for the purpose of assuring the owner of such Debt or
obligation of the ability of any other Person to make payment of the
Debt or obligation; or
(d) otherwise to assure the owner of such Debt or obligation
against loss in respect thereof.
In any computation of the Debt or other liabilities of the obligor under any
Guaranty, the Debt or other obligations that are the subject of such Guaranty
shall be assumed to be direct obligations of such obligor.
"HAZARDOUS MATERIAL" means any and all pollutants, toxic or
hazardous wastes or any other substances that might pose a hazard to health or
safety, the removal of which may be required or the generation, manufacture,
refining, production, processing, treatment, storage, handling, transportation,
transfer, use, disposal, release, discharge, spillage, seepage, or filtration of
which is or shall be restricted, prohibited or penalized by any applicable law
(including without limitation asbestos, urea formaldehyde foam insulation and
polycholorinated biphenyls).
"HOLDER" means, with respect to any Note, the Person in whose
name such Note is registered in the register maintained by the Company pursuant
to Section 14.1.
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"INSTITUTIONAL INVESTOR" means (a) any original purchaser of a
Note, (b) any holder of a Note holding (together with one or more of its
Affiliates) more than $1,000,000 aggregate principal amount of the Notes then
outstanding, or (c) any bank, trust company, savings and loan association or
other financial institution, any pension plan, any investment company, any
insurance company, any broker or dealer, or any other similar financial
institution or entity, regardless of legal form.
"LIEN" means, with respect to any Person, any mortgage, lien,
pledge, charge, security interest or other encumbrance, or any interest or title
of any vendor, lessor, lender or other secured party to or of such Person under
any conditional sale or other title retention agreement or Capital Lease, upon
or with respect to any property or asset of such Person (including in the case
of stock, stockholder agreements, voting trust agreements and all similar
arrangements).
"LIQUIDITY FACILITY" means the Liquidity Agreement dated as of
April 29, 1997 between Budget Funding Corporation, a special purpose, bankruptcy
remote Delaware corporation and a Wholly-Owned Subsidiary of the Company, and
Credit Suisse First Boston, as Administrative Agent, and the other lenders named
therein, as supplemented and amended from time to time.
"MAKE-WHOLE AMOUNT" is defined in Section 8.7.
"MATERIAL" means material in relation to the business,
operations, affairs, financial condition, assets, properties or prospects of the
Parent and its Subsidiaries taken as a whole.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
(a) the business, operations, affairs, financial condition, assets or properties
of the Parent and its Subsidiaries taken as a whole after giving effect to the
Acquisition and the Transactions, (b) the ability of the Company to perform its
obligations under this Agreement and the Notes or the ability of the Parent to
perform its obligations under this Agreement or (c) the validity or
enforceability of this Agreement, the Notes, the Parent Guarantee or any
Subsidiary Guarantee.
"MULTIEMPLOYER PLAN" means any Plan that is a "multiemployer
plan" (as such term is defined in section 4001(a)(3) of ERISA).
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"NON-VEHICLE DEBT" means with respect to any Person all Debt
of such Person other than Vehicle Debt (but in any event shall include all Debt
of such Person in respect of letters of credit or other instruments relating to
the issuance of Vehicle Debt); provided that Non-Vehicle Debt shall also include
the following obligations (to the extent the same would otherwise be included as
Vehicle Debt): the sum of (a) with respect to each Vehicle owned by TFFC or any
other SPC and leased to the Company or any Subsidiary of the Company, the amount
by which all obligations of the Company or such Subsidiary with respect to such
Vehicle, when added to all rental payments previously made by the Company or
such Subsidiary and the next regularly scheduled rental payment to be made by
the Company or such Subsidiary with respect to such Vehicle, exceeds the
aggregate Depreciation Charges (as defined in the Base Indenture) with respect
to such Vehicle plus any fair market value adjustment with respect to such
Vehicle provided for in the documents relating to the lease of such Vehicle plus
(b) with respect to each Vehicle owned by the Company or any Subsidiary of the
Company (other than TFFC or another SPC), the amount by which all obligations of
the Company or said Subsidiary with respect to such Vehicle exceeds the amount
by which (i) the aggregate Capitalized Cost (as defined in the Base Indenture)
of such Vehicle exceeds (ii) the aggregate Depreciation Charges (as so defined)
accrued with respect to such Vehicle plus any fair market value adjustment with
respect to such Vehicle provided for the documents relating to the financing
arrangements applicable to such Vehicle.
"NON-VEHICLE LEVERAGE RATIO" means as of any date the ratio of
(i) Consolidated Non-Vehicle Debt as of such date to (ii) Adjusted EBITDA for
the period of four consecutive fiscal quarters ending on or immediately prior to
such date.
"NOTES" is defined in Section 1.1.
"OBLIGORS" is defined in the first paragraph of this Agreement.
"OFFICER'S CERTIFICATE" means a certificate of a Senior
Financial Officer of an Obligor or of any other officer of an Obligor whose
responsibilities extend to the subject matter of such certificate.
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"ORDER" means any written order, writ, injunction, decree,
judgment, award, penalty, determination, direction or demand.
"OTHER AGREEMENTS" is defined in Section 2.
"OTHER PURCHASERS" is defined in Section 2.
"PARENT" means Team Rental Group, Inc. (to be renamed Budget
Group, Inc. on or about the date of the Closing), a Delaware corporation.
"PARENT CONVERTIBLE NOTES" means collectively the Series A
Convertible Notes and the Series B Convertible Notes, and such term shall also
include the Exchange Parent Convertible Notes under an indenture.
"PARENT GUARANTEE" is defined in Section 1.2.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA or any successor thereto.
"PERSON" means an individual, partnership, corporation,
limited liability company, association, trust, unincorporated organization, or a
government or agency or political subdivision thereof.
"PLAN" means an "employee benefit plan" (as defined in section
3(3) of ERISA) that is or, within the preceding five years, has been established
or maintained, or to which contributions are or, within the preceding five
years, have been made or required to be made, by the Parent or any ERISA
Affiliate or with respect to which the Parent or any ERISA Affiliate may have
any liability.
"PREFERRED STOCK", as applied to any corporation, means shares
of such corporation that shall be entitled to preference or priority over any
other shares of such corporation in respect of either the payment of dividends
or the distribution of assets upon liquidation, or both.
"PRO FORMA NON-VEHICLE INTEREST COVERAGE RATIO" means as of
any date the ratio of (i) pro forma Adjusted EBIT for the period of four fiscal
quarters ending on or immediately prior to such date to (ii) pro forma
Consolidated Non-Vehicle Interest Charges for such period; and for purposes of
this definition each
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pro forma computation shall include adjustments (without limitation as to other
appropriate pro forma adjustments in accordance with generally accepted
financial practice, such as adjustments in actual interest costs to give effect
to borrowing costs of the acquiring person) giving effect to all acquisitions
and dispositions, and all incurrences and refinancings of Debt, made during the
period with respect to which such computation is being made as if such
acquisitions, dispositions, incurrences or refinancings, as the case may be,
were made on the first day of such period , and any such adjustment for earnings
with respect to an acquisition shall be based solely upon the amount of reported
earnings in accordance with GAAP attributable to the Person or the assets so
acquired.
"PROPERTY" or "PROPERTIES" means, unless otherwise
specifically limited, real or personal property of any kind, tangible or
intangible, inchoate or otherwise.
"PROSPECTUS" is defined in Section 5.3.
"PTE" is defined in Section 6.2.
"QPAM EXEMPTION" means Prohibited Transaction Class Exemption
84-14 issued on March 13, 1984 by the United States Department of Labor.
"REGISTRATION RIGHTS AGREEMENT" means the Amended and Restated
Registration Rights Agreement dated as of April 29, 1997 between the Parent and
the holders of the Parent Convertible Notes.
"REQUIRED HOLDERS" means, at any time, the holders of at least
66 2/3% in unpaid principal amount of the Notes at the time outstanding.
"REQUIREMENT OF LAW" means, as to any Person, each law, rule
or regulation, including Environmental Laws and ERISA, or Order, decree or other
determination of an arbitrator or a court or other Governmental Authority
applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject.
"RESPONSIBLE OFFICER" means any Senior Financial Officer of an
Obligor and any other officer of an Obligor with responsibility for the
administration of the relevant portion of this Agreement.
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"RESTRICTED PAYMENT" means
(a) the declaration of any dividend on, or the incurrence of
any liability to make any other payment or distribution in respect of,
any shares or equity interests of any class of the Parent (other than
one payable solely in shares of its common stock),
(b) any payment or distribution on account of the purchase,
redemption or other retirement of any shares or equity interests of any
class of the Parent, or of any warrant, option or other right to
acquire such shares or equity interests, and
(c) any payment or distribution on account of the principal of
or premium, if any, with respect to Debt of the Company, the Parent or
any Subsidiary Guarantor that is subordinated to the Notes, the Parent
Guarantee or a Subsidiary Guarantee other than mandatory sinking fund
or other retirement payments required by the terms thereof.
The amount of any Restricted Payment in property shall be deemed to be the
greater of its fair value (as determined by the board of directors of the
Parent) and its net book value.
"REVOLVING CREDIT FACILITY" means the $300,000,000 Credit
Agreement dated as of April 29, 1997 among the Company, as borrower, the Parent,
as guarantor, the financial institutions listed thereon, as lenders, Credit
Suisse First Boston, as co-syndication agent and administrative agent, and
NationsBanc Capital Markets, Inc., as co-syndication agent and documentation
agent, as supplemented and amended from time to time.
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time.
"SENIOR FINANCIAL OFFICER" of an Obligor means the chief
financial officer, principal accounting officer, treasurer or comptroller of
such Obligor.
"SERIES A CONVERTIBLE NOTES" means the 7.0% Convertible
Subordinated Notes, Series A, due 2007 (originally issued as 7.0% Convertible
Subordinated Notes due 2003) of the Parent.
"SERIES A NOTE PURCHASE AGREEMENTS" means the several Note
Purchase Agreements dated as of December 1, 1996 between the
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Parent and the purchasers named in Schedule I thereto, as supplemented and
amended from time to time, relating to the issue and sale of $80,000,000
aggregate principal amount of the Series A Convertible Notes.
"SERIES B CONVERTIBLE NOTES" means the 6.85% Convertible
Subordinated Notes, Series B, due 2007 of the Parent.
"SERIES B NOTE PURCHASE AGREEMENTS" means the several Note
Purchase Agreements dated as of April 25, 1997 between the Parent and the
Purchasers name in Schedule I thereto, as supplemented and amended from time to
time, relating to the issue and sale of $45,000,000 aggregate principal amount
of the Series B Convertible Notes.
"SIGNIFICANT SUBSIDIARY" means, at any date, any Subsidiary
that constitutes a "Significant Subsidiary" of the Parent (after giving effect
to the Acquisition), as such term is defined in Rule 1-02(w) of Regulation S-X
promulgated under the Securities Act, and in any event shall include the Company
and each Subsidiary Guarantor.
"SPC" means Budget Funding Corporation, TFFC and any other
bankruptcy-remote Subsidiary of the Company formed for the specific purpose of
issuing highly-rated commercial paper, medium-term notes or other securities in
connection with the financing of Vehicles or for the specific purpose of owning
such Vehicles and leasing such Vehicles to the Company and its other
Subsidiaries, in each case pursuant to a structured financing or securitization
program.
"STOCK PURCHASE AGREEMENTS" is defined in Section 1.3.
"SUBSIDIARY" means, as to any Person, any corporation or other
business entity a majority of the combined voting power of all Voting Stock of
which is owned by such Person or one or more of its Subsidiaries or such Person
and one or more of its Subsidiaries. Unless the context otherwise clearly
requires, any reference to a "Subsidiary" is a reference to a Subsidiary of the
Parent, including the Company.
"SUBSIDIARY GUARANTEE" is defined in Section 1.2.
"SUBSIDIARY GUARANTOR" is defined in Section 4.5.
Schedule B
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"SWAPS" means, with respect to any Person, payment obligations
with respect to interest rate swaps, currency swaps and similar obligations
obligating such Person to make payments, whether periodically or upon the
happening of a contingency. For the purposes of this Agreement, the amount of
the obligation under any Swap shall be the amount determined in respect thereof
as of the end of the then most recently ended fiscal quarter of such Person,
based on the assumption that such Swap had terminated at the end of such fiscal
quarter, and in making such determination, if any agreement relating to such
Swap provides for the netting of amounts payable by and to such Person
thereunder or if any such agreement provides for the simultaneous payment of
amounts by and to such Person, then in each such case, the amount of such
obligation shall be the net amount so determined.
"TFFC" means Team Fleet Financing Corporation, a Delaware
corporation and Wholly-Owned Subsidiary of the Company.
"TRANSACTIONS" is defined in Section 1.3.
"TRANSACTION DOCUMENTS" means this Agreement, the Other
Agreements, the Subsidiary Guarantees, the Stock Purchase Agreements, the Series
A Note Purchase Agreements, the Series B Note Purchase Agreements, the
Registration Rights Agreement, the Underwriting Agreement, the Liquidity
Facility and the Revolving Credit Facility.
"UNDERWRITING AGREEMENT" means the Underwriting Agreement
dated April 23, 1997 between the Company and Credit Suisse First Boston
Corporation, ABN AMRO Chicago Corporation, Alex. Xxxxx & Sons Incorporated and
XxXxxxxx & Company Securities, Inc., as representatives of the several
underwriters named in Schedule A thereto, relating to the issuance and sale of
Class A Shares pursuant to the public offering described in the Prospectus.
"VEHICLE DEBT" means with respect to any Person all Debt
relating solely to the financing of any Vehicle and secured thereby (and by
related collateral). Any Debt in respect of a Vehicle financed under the
Revolving Credit Facility and any obligation included as Non-Vehicle Debt
pursuant to the proviso to the definition of the term "Non-Vehicle Debt" shall
not be deemed to be Vehicle Debt.
Schedule B
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"VEHICLES" means all existing and hereafter acquired motor
vehicle inventory of the Company and its Subsidiaries, consisting of passenger
automobiles, light trucks and vans, whether held for sale, lease or rental
purposes.
"VOTING STOCK" means, with respect to any Person, any shares
of stock or other equity interests of any class or classes of such Person whose
holders are entitled under ordinary circumstances (irrespective of whether at
the time stock or other equity interests of any other class or classes shall
have or might have voting power by reason of the happening of any contingency)
to vote for the election of a majority of the directors, managers, trustees or
other governing body of such Person.
"WHOLLY-OWNED SUBSIDIARY" means, at any time, any Subsidiary
all of the equity interests (except directors' qualifying shares) and voting
interests of which are owned by any one or more of the Parent and the Parent's
other Wholly-Owned Subsidiaries at such time.
Schedule B
132
EXHIBIT 1.1
[FORM OF NOTE]
BUDGET RENT A CAR CORPORATION
9.57% GUARANTEED SENIOR NOTE DUE 2007
No. [_____] New York, New York
$[_______] [Date]
PPN: 119008A*1
FOR VALUE RECEIVED, the undersigned, BUDGET RENT A CAR
CORPORATION (the "COMPANY"), a Delaware corporation, hereby promises to pay to
[_____________________], or registered assigns, the principal sum of [ ] DOLLARS
on April 29, 2007, with interest (computed on the basis of a 360-day year of
twelve 30-day months) (a) from the date hereof on the unpaid balance thereof at
the rate of 9.57% per annum, payable semiannually on April 29 and October 29 in
each year, until the principal hereof shall have become due and payable, and (b)
on any overdue payment of principal, any overdue payment of interest (to the
extent permitted by applicable law) and any overdue payment of any premium or
Make-Whole Amount (as defined in the Note Agreements referred to below), payable
semiannually as aforesaid (or, at the option of the registered holder hereof, on
demand) at a rate per annum from time to time equal to the greater of (i) 11.57%
and (ii) 2% above the rate of interest publicly announced by Citibank, N.A. from
time to time at its principal office in New York City as its prime rate.
Payments of principal of, interest on and any premium or
Make-Whole Amount with respect to this Note are to be made in lawful money of
the United States of America at said principal office of Citibank, N.A. in New
York City or at such other place as the Company shall have designated by written
notice to the holder of this Note as provided in the Note Agreements referred to
below.
This Note is one of an issue of Senior Notes issued pursuant
to separate Senior Note Purchase Agreements dated as of April 25, 1997 (as from
time to time amended, the "NOTE AGREEMENTS") between the Company and Team Rental
Group, Inc. (to be renamed Budget Group, Inc.) and the respective Purchasers
133
named therein and is entitled to the benefits thereof. This Note is also
entitled to the benefits of a Parent Guarantee included in the Note Agreements
and certain Subsidiary Guarantees executed and delivered from time to time
pursuant to the Note Agreements. Each holder of this Note will be deemed, by its
acceptance hereof, to have agreed to the confidentiality provisions set forth in
Section 21 of the Note Agreements.
This Note is a registered Note and, as provided in the Note
Agreements, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
The Company will make required prepayments of principal on the
dates and in the amounts specified in the Note Agreements. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Agreements, but not otherwise.
If an Event of Default, as defined in the Note Agreements,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable premium or Make-Whole Amount) and with the effect provided in the
Note Agreements.
This Note shall be construed and enforced in accordance with,
and the rights of the Company and the holder hereof shall be governed by, the
laws of the State of New York, excluding 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.
BUDGET RENT A CAR CORPORATION
By
---------------------------
Title:
134
EXHIBIT 1.2
GUARANTEE AGREEMENT
GUARANTEE AGREEMENT dated as of ______________ made by
________________________, a _________________ corporation (the "GUARANTOR"), in
favor of the holders from time to time of the Notes referred to below
(collectively the "OBLIGEES").
WHEREAS, Budget Rent a Car Corporation, a Delaware corporation
(the "COMPANY"), and Team Rental Group, Inc. (to be renamed Budget Group, Inc.),
a Delaware corporation (the "PARENT" and, together with the Company,
individually an "OBLIGOR" and collectively the "OBLIGORS"), have entered into
several Senior Note Purchase Agreements dated as of April 25, 1997 (as amended
or otherwise modified from time to time, collectively the "NOTE AGREEMENTS" and
terms defined therein and not otherwise defined herein are being used herein as
so defined) with the institutional purchasers listed in Schedule A thereto,
providing for the issuance and sale of $165,000,000 aggregate principal amount
of the Company's 9.57% Guaranteed Senior Notes due 2007 (the "NOTES");
WHEREAS, the Parent has unconditionally guaranteed the Notes
and the obligations of the Company under the Note Agreements pursuant to a
parent guarantee (the "PARENT GUARANTEE") contained in Section 13 of the Note
Agreements; and
WHEREAS, it is a [condition precedent to the purchase of the
Notes by such purchasers under/requirement of] the Note Agreements that the
Guarantor shall execute and deliver this Guarantee Agreement;
NOW, THEREFORE, in consideration of the premises the Guarantor
hereby agrees as follows:
SECTION 1. Guarantee. The Guarantor unconditionally and
irrevocably guarantees, as primary obligor and not merely as surety,
A. the punctual payment when due, whether at stated maturity,
by prepayment, by acceleration or otherwise, of all obligations of the
Obligors arising under the Note Agreements (including without
limitation the Parent Guarantee) and the Notes, including all
extensions,
GUARANTEE AGREEMENT
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modifications, substitutions, amendments and renewals thereof, whether
for principal, interest (including without limitation interest on any
overdue principal, premium, Make-Whole Amount, and interest at the rate
specified in the Notes and interest accruing or becoming owing both
prior to and subsequent to the commencement of any proceeding against
or with respect to either Obligor under any applicable Debtor Relief
Laws as defined below), Make-Whole Amount or premium, if any, fees,
expenses, indemnification or otherwise, and
B. the due and punctual performance and observance by the
Obligors of all covenants, agreements and conditions on their part to
be performed and observed under the Note Agreements and the Notes;
(all such obligations are called the "GUARANTEED OBLIGATIONS"); provided that
the aggregate liability of the Guarantor hereunder in respect of the Guaranteed
Obligations shall not exceed at any time the lesser of (1) the amount of the
Guaranteed Obligations and (2) the maximum amount for which the Guarantor is
liable under this Guarantee Agreement without such liability being deemed a
fraudulent transfer under applicable Debtor Relief Laws (as hereinafter
defined), as determined by a court of competent jurisdiction. As used herein,
the term "DEBTOR RELIEF LAWS" means any applicable liquidation, conservatorship,
bankruptcy, moratorium, rearrangement, insolvency, reorganization or similar
debtor relief laws affecting the rights of creditors generally from time to time
in effect.
The Guarantor also agrees to pay, in addition to the amount
stated above, any and all reasonable expenses (including reasonable counsel fees
and expenses) incurred by any Obligee in enforcing any rights under this
Guarantee Agreement or in connection with any amendment of this Guarantee
Agreement.
Without limiting the generality of the foregoing, this
Guarantee Agreement guarantees, to the extent provided herein, the payment of
all amounts which constitute part of the Guaranteed Obligations and would be
owed by any other Person to any Obligee but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving such Person.
GUARANTEE AGREEMENT
136
3
SECTION 2. Guarantee Absolute. The obligations of the
Guarantor under Section 1 of this Guarantee Agreement constitute a present and
continuing guaranty of payment and not of collectibility and the Guarantor
guarantees that the Guaranteed Obligations will be paid strictly in accordance
with the terms of the Note Agreements and the Notes, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of any Obligee with respect thereto. The obligations
of the Guarantor under this Guarantee Agreement are independent of the
Guaranteed Obligations, and a separate action or actions may be brought and
prosecuted against the Guarantor to enforce this Guarantee Agreement,
irrespective of whether any action is brought against either Obligor or any
other Person liable for the Guaranteed Obligations or whether an Obligor or any
other such Person is joined in any such action or actions. The liability of the
Guarantor under this Guarantee Agreement shall be primary, absolute,
irrevocable, and unconditional irrespective of:
A. any lack of validity or enforceability of any Guaranteed
Obligation, the Note Agreements, the Parent Guarantee, any Note or any agreement
or instrument relating thereto;
B. any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations, or any
other amendment or waiver of or any consent to departure from the Note
Agreements, the Parent Guarantee, any Note or this Guarantee Agreement;
C. any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of or consent to
departure by the Guarantor or other Person liable, or any other guarantee, for
all or any of the Guaranteed Obligations;
D. any manner of application of collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of sale or
other disposition of any collateral or any other assets of the Parent or any
other Subsidiary;
E. any change, restructuring or termination of the corporate
structure or existence of the Parent, the Company or any other Subsidiary; or
GUARANTEE AGREEMENT
137
4
F. any other circumstance (including without limitation any
statute of limitations) that might otherwise constitute a defense, offset or
counterclaim available to, or a discharge of, the Parent, the Company or the
Guarantor.
This Guarantee Agreement shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any of the
Guaranteed Obligations is rescinded or must otherwise be returned by any
Obligee, or any other Person upon the insolvency, bankruptcy or reorganization
of an Obligor or otherwise, all as though such payment had not been made.
SECTION 3. Waivers. The Guarantor hereby irrevocably
waives, to the extent permitted by applicable law:
A. promptness, diligence, presentment, notice of acceptance
and any other notice with respect to any of the Guaranteed Obligations and this
Guarantee Agreement;
B. any requirement that any Obligee or any other Person
protect, secure, perfect or insure any Lien or any property subject thereto or
exhaust any right or take any action against either Obligor or any other Person
or any collateral;
C. any defense, offset or counterclaim arising by reason of
any claim or defense based upon any action by any Obligee;
D. any duty on the part of any Obligee to disclose to the
Guarantor any matter, fact or thing relating to the business, operation or
condition of any Person and its assets now known or hereafter known by such
Obligee; and
E. any rights by which it might be entitled to require suit on
an accrued right of action in respect of any of the Guaranteed Obligations or
require suit against the Obligors or the Guarantor or any other Person.
SECTION 4. Waiver of Subrogation and Contribution. The
Guarantor shall not assert, enforce, or otherwise exercise (A) any right of
subrogation to any of the rights, remedies, powers, privileges or liens of any
Obligee or any other beneficiary against the Company, the Parent or any other
obligor on the Guaranteed Obligations or any collateral or other security, or
(B) any right of recourse, reimbursement,
GUARANTEE AGREEMENT
138
5
contribution, indemnification, or similar right against the Company or the
Parent, and the Guarantor hereby waives any and all of the foregoing rights,
remedies, powers, privileges and the benefit of, and any right to participate
in, any collateral or other security given to any Obligee or any other
beneficiary to secure payment of the Guaranteed Obligations, until such time as
the Guaranteed Obligations have been paid in full.
SECTION 5. Representations and Warranties. The Guarantor
hereby represents and warrants as follows:
A. The Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation. The execution, delivery and performance of this
Guarantee Agreement have been duly authorized by all necessary action
on the part of the Guarantor.
B. The execution, delivery and performance by the Guarantor of
this Guarantee Agreement will not (i) contravene, result in any breach
of, or constitute a default under, or result in the creation of any
Lien in respect of any property of the Guarantor or any Subsidiary of
the Guarantor under, any indenture, mortgage, deed of trust, loan,
purchase or credit agreement, lease, corporate charter or by-laws, or
any other material agreement or instrument to which the Guarantor or
any Subsidiary of the Guarantor is bound or by which the Guarantor or
any Subsidiary of the Guarantor or any of their respective properties
may be bound or affected, (ii) conflict with or result in a breach of
any of the terms, conditions or provisions of any order, judgment,
decree, or ruling of any court, arbitrator or Governmental Authority
applicable to the Guarantor or any Subsidiary of the Guarantor or (iii)
violate any provision of any statute or other rule or regulation of any
Governmental Authority applicable to the Guarantor or any Subsidiary of
the Guarantor.
C. The Guarantor and the Obligors are members of the same
consolidated group of companies and are engaged in related businesses
and the Guarantor will derive substantial direct and indirect benefit
from the execution and delivery of this Guarantee Agreement.
GUARANTEE AGREEMENT
139
6
SECTION 6. Amendments, Etc. No amendment or waiver of any
provision of this Guarantee Agreement and no consent to any departure by the
Guarantor therefrom shall in any event be effective unless the same shall be in
writing and signed by the Required Holders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided that no amendment, waiver or consent shall, unless in
writing and signed by all Obligees, (i) limit the liability of or release the
Guarantor hereunder, (ii) postpone any date fixed for, or change the amount of,
any payment hereunder or (iii) change the percentage of Notes the holders of
which are, or the number of Obligees, required to take any action hereunder.
SECTION 7. Addresses for Notices. All notices and other
communications provided for hereunder shall be in writing and (A) by telecopy if
the sender on the same day sends a confirming copy of such notice by a
recognized overnight delivery service (charges prepaid), or (B) by a recognized
overnight delivery service (with charges prepaid). Such notice if sent to the
Guarantor shall be addressed to the Parent at the address of the Parent set
forth in the Note Agreements or at such other address as the Guarantor may
hereafter designate by notice to each holder of Notes, or if sent to any holder
of Notes, shall be addressed to it as set forth in the Note Agreements. Any
notice or other communication herein provided to be given to the holders of all
outstanding Notes shall be deemed to have been duly given if sent as aforesaid
to each of the registered holders of the Notes at the time outstanding at the
address for such purpose of such holder as it appears on the Note register
maintained by the Company in accordance with the provisions of Section 14.1 of
the Note Agreements. Notices under this Section 7 will be deemed given only when
actually received.
SECTION 8. No Waiver; Remedies. No failure on the part of
any Obligee to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 9. Continuing Guarantee. This Guarantee Agreement
is a continuing guarantee of payment and performance and shall (A) remain in
full force and effect until payment in
GUARANTEE AGREEMENT
140
7
full of the Guaranteed Obligations and all other amounts payable under this
Guarantee Agreement, (B) be binding upon the Guarantor, its successors and
assigns and (C) inure to the benefit of and be enforceable by the Obligees and
their successors, transferees and assigns.
SECTION 10. Jurisdiction and Process; Waiver of Jury Trial.
The Guarantor irrevocably submits to the non-exclusive in personam jurisdiction
of any New York State or federal court sitting in the Borough of Manhattan, The
City of New York, over any suit, action or proceeding arising out of or relating
to this Guarantee Agreement. To the fullest extent permitted by applicable law,
the Guarantor irrevocably waives and agrees not to assert, by way of motion, as
a defense or otherwise, any claim that it is not subject to the in personam
jurisdiction of any such court, any objection that it may now or hereafter have
to the laying of the venue of any such suit, action or proceeding brought in any
such court and any claim that any such suit, action or proceeding brought in any
such court has been brought in an inconvenient forum.
The Guarantor consents to process being served in any suit,
action or proceeding of the nature referred to in this Section by mailing a copy
thereof by registered or certified mail, postage prepaid, return receipt
requested, to the Guarantor at its address specified in Section 7 or at such
other address of which you shall then have been notified pursuant to said
Section. The Guarantor agrees that such service upon receipt (i) shall be deemed
in every respect effective service of process upon it in any such suit, action
or proceeding and (ii) shall, to the fullest extent permitted by applicable law,
be taken and held to be valid personal service upon and personal delivery to the
Guarantor. Notices hereunder shall be conclusively presumed received as
evidenced by a delivery receipt furnished by the United States Postal Service or
any recognized courier or overnight delivery service.
Nothing in this Section 10 shall affect the right of any
holder of a Note to serve process in any manner permitted by law, or limit any
right that the holders of any of the Notes may have to bring proceedings against
the Guarantor in the courts of any appropriate jurisdiction or to enforce in any
lawful manner a judgment obtained in one jurisdiction in any other jurisdiction.
GUARANTEE AGREEMENT
141
8
THE GUARANTOR WAIVES TRIAL BY JURY IN ANY ACTION BROUGHT ON
OR WITH RESPECT TO THIS GUARANTEE AGREEMENT OR ANY OTHER DOCUMENT EXECUTED IN
CONNECTION HEREWITH.
SECTION 11. Governing Law. This Guarantee Agreement shall be
construed and enforced in accordance with, and the rights of the Guarantor and
the Obligees shall be governed by, the laws of the State of New York excluding
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.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee
Agreement to be duly executed and delivered as of the date first above written.
[GUARANTOR]
By
----------------------------
Title:
GUARANTEE AGREEMENT
142
EXHIBIT 4.4(a), 4.4(b) and 4.4(c)
OPINIONS OF COUNSEL FOR THE OBLIGORS
The following opinions are to be provided by counsel for the
Obligors (allocated among such counsel as appropriate), subject to customary
assumptions, limitations and qualifications. All capitalized terms used herein
without definition shall have the meanings ascribed thereto in the Agreements.
1. The Company is a corporation duly organized and validly
existing under the laws of the State of Delaware and has all requisite power and
authority to own or hold under lease the property it purports to own or hold
under lease, to carry on its business as now being conducted and to execute and
deliver the Agreements and to perform the provisions thereof. The Company has
duly qualified and is authorized to do business in each jurisdiction where such
qualification and authorization is necessary.
2. The Parent is a corporation duly organized and validly
existing under the laws of the State of Delaware and has all requisite power and
authority to own or hold under lease the property it purports to own or hold
under lease, to carry on its business as now being conducted and to execute and
deliver the Agreements and the Notes and to perform the provisions thereof. The
Parent has duly qualified and is authorized to do business in each jurisdiction
where such qualification and authorization is necessary.
3. Each Significant Subsidiary so designated in Schedule 5.4
of the Agreements (other than the Company) is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation or organization and is duly qualified as a foreign corporation and
is in good standing in each jurisdiction in which such qualification is required
by law, except where the failure to be so qualified or in good standing could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Each such Significant Subsidiary has all requisite corporate
power and authority to own or hold under lease the property it purports to own
or hold under lease and to carry on its business as now being conducted and, in
the case of the
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Subsidiary Guarantors, to execute and deliver its respective Subsidiary
Guarantee and perform the provisions thereof.
4. The Agreements have been duly authorized, executed and
delivered by the Obligors and constitute legal, valid and binding agreements of
the Obligors, enforceable against the Obligors in accordance with their terms.
5. The Notes being purchased by you today have been duly
authorized, executed and delivered by the Company and constitute legal, valid
and binding obligations of the Company, enforceable against the Company in
accordance with their respective terms.
6. The Subsidiary Guarantees have been duly authorized,
executed and delivered by the respective Subsidiary Guarantors and constitute
legal, valid and binding obligations of such Subsidiary Guarantors, enforceable
against such Subsidiary Guarantors in accordance with their respective terms.
7. No consent, approval or authorization of, or declaration,
registration or filing with, any Governmental Authority is required to be
obtained or made as a condition to the validity of the execution and delivery by
the Obligors of the Agreements, by the Company of said Notes or by the
Subsidiary Guarantors of said Subsidiary Guarantees or for the performance by
the Obligors or the Subsidiary Guarantors of their respective obligations
thereunder.
8. It was not necessary in connection with the offering, sale
and delivery of said Notes, the Parent Guarantee or said Subsidiary Guarantees,
under the circumstances contemplated by the Agreements, to register said Notes,
the Parent Guarantee or said Subsidiary Guarantees under the Securities Act or
to qualify an indenture in respect of the Notes under the Trust Indenture Act of
1939, as amended.
9. The execution, delivery and performance by the Parent of
the Agreements, by the Company of the Agreements and the Notes and by the
Subsidiary Guarantors of their respective Subsidiary Guarantees will not (i)
contravene, result in any breach of, or constitute a default under, or result in
the creation of any Lien in respect of any property of the Company or any
Significant Subsidiary under, any indenture, mortgage, deed of trust, loan,
purchase or credit agreement, lease, corporate charter or by-laws, or any other
agreement or instrument known to
144
3
such counsel to which the Parent or any Significant Subsidiary is bound or by
which the Parent or any Significant Subsidiary or any of their respective
properties may be bound or affected, (ii) conflict with or result in a breach of
any of the terms, conditions or provisions of any order, judgment, decree or
ruling of any court, arbitrator or Governmental Authority applicable to the
Parent or any Significant Subsidiary or (iii) violate any provision of any
statute or other rule or regulation of any Governmental Authority applicable to
the Parent or any Significant Subsidiary.
10. Neither the Parent nor any Subsidiary is subject to
regulation under the Investment Company Act of 1940, as amended, the Public
Utility Holding Company Act of 1935, as amended, or the Federal Power Act, as
amended.
11. None of the transactions contemplated by the Agreements
(including without limitation the use of the proceeds from the sale of the
Notes) will violate or result in a violation of Section 7 of the Exchange Act,
or any regulations issued pursuant thereto, including without limitation
Regulations G, T and X of the Board of Governors of the Federal Reserve System
(12 CFR, Part 207, Part 220 and Part 224, respectively).
12. There are no actions, suits or proceedings pending, or to
the knowledge of such counsel threatened, against or affecting the Parent or any
Subsidiary or any property of the Parent or any Subsidiary in any court or
before any arbitrator of any kind or before or by any Governmental Authority,
except actions, suits or proceedings which (a) individually do not in any manner
draw into question the Acquisition or the Transaction Documents or the validity
of the Agreements, the Subsidiary Guarantees or the Notes and (b) in the
aggregate could not reasonably be expected to have a Material Adverse Effect.
* * * *
This opinion is given solely for your benefit, and for the
benefit of the institutional investor holders from time to time of the Notes
purchased by you today, in connection with the closing held today of the
transactions contemplated by the Agreements, and may not be relied upon by any
other person for any purpose without our prior written consent.
145
EXHIBIT 4.4(d)
FORM OF OPINION OF WF&G
April __, 1997
Re: Budget Rent a Car Corporation
9.57% Guaranteed Senior Notes due 2007
To the several Purchasers listed
in Schedule A to the within-
mentioned Note Agreements
Ladies and Gentlemen:
We have acted as your special counsel in connection with the
issuance by Budget Rent a Car Corporation (the "Company") of its 9.57%
Guaranteed Senior Notes due 2007 in an aggregate principal amount of
$165,000,000 (the "Notes") and the purchases by you pursuant to the several
Senior Note Purchase Agreements made by you with the Company and Team Rental
Group, Inc. (the "Parent") under date of April 25, 1997 (the "Note Agreements")
of Notes in the respective aggregate principal amounts specified in Schedule A
to the Note Agreements. All capitalized terms used herein without definition
shall have the meanings ascribed thereto in the Note Agreements.
We have examined such corporate records of the Obligors and
the Subsidiary Guarantors, agreements and other instruments, certificates of
officers and representatives of the Obligors and the Subsidiary Guarantors,
certificates of public officials, and such other documents, as we have deemed
necessary in connection with the opinions hereinafter expressed. In such
examination we have assumed the genuineness of all signatures, the authenticity
of documents submitted to us as originals and the conformity with the authentic
originals of all documents submitted to us as copies. As to questions of fact
material to such opinions we have, when relevant facts were not independently
established, relied upon the representations set forth in the Note Agreements
146
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and upon certifications by officers or other representatives of the Obligors and
the Subsidiary Guarantors.
In addition, we attended the closing held today at the office
of Xxxxx, Xxxxx & Xxxxx at which you purchased and made payment for Notes in the
respective aggregate principal amounts to be purchased by you, all in accordance
with the Note Agreements.
Based upon the foregoing and having regard for legal
considerations that we deem relevant, we render our opinion to you pursuant to
Section 4.4(b) of the Note Agreements as follows:
1. Each of the Obligors is a validly existing corporation in
good standing under the laws of the State of Delaware and has the corporate
power to execute and deliver the Note Agreements, the Parent Guarantee (in the
case of the Parent) and the Notes (in the case of the Company) and to perform
its respective obligations thereunder.
2. Each of the Subsidiary Guarantors identified as such in
Schedule 5.4 to the Note Agreements is a validly existing corporation in good
standing under the laws of its respective jurisdiction of incorporation and has
the corporate power to execute and deliver its respective Subsidiary Guarantee
and to perform its respective obligations thereunder. [DELAWARE INCORPORATION IS
ASSUMED]
3. The Note Agreements have been duly authorized, executed and
delivered by the Obligors and the Note Agreements constitute legal, valid and
binding agreements of the Obligors, enforceable against the Obligors in
accordance with their terms.
4. The Notes being purchased by you today have been duly
authorized, executed and delivered by the Company and constitute legal, valid
and binding obligations of the Company, enforceable against the Company in
accordance with their terms.
5. The Subsidiary Guarantees have been duly authorized,
executed and delivered by the respective Subsidiary Guarantors and constitute
legal, valid and binding agreements of the respective Subsidiary Guarantors.
6. No consent, approval or authorization of, or declaration,
registration or filing with, any New York or Federal Governmental Authority is
required to be obtained or made as a
147
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condition to the validity of the execution and delivery by the Obligors of the
Note Agreements, by the Company of said Notes or by the Subsidiary Guarantors of
their respective Subsidiary Guarantees delivered today pursuant to Section 4.5
of the Note Agreements or for the performance by the Company, the Parent or said
Subsidiary Guarantors of their respective obligations thereunder.
7. It was not necessary in connection with the offering, sale
and delivery of said Notes, the Parent Guarantee or said Subsidiary Guarantees,
under the circumstances contemplated by the Note Agreements, to register said
Notes, the Parent Guarantee or said Subsidiary Guarantees under the Securities
Act of 1933, as amended, or to qualify an indenture in respect of the Notes
under the Trust Indenture Act of 1939, as amended.
8. The opinions of even date herewith of King & Spalding,
special counsel for the Parent, Xxxxxxx X. Xxxxxxxx, counsel to the Parent, and
Xxxxxx X. Xxxxxx, Senior Vice President and General Counsel of the Company,
delivered to you pursuant to Section 4.4(a) of the Note Agreements, are
satisfactory to us in form and scope with respect to the matters specified
therein and we believe that you are justified in relying thereon.
The opinions expressed above are subject to the exception
that (a) the enforceability of any agreement or instrument in accordance with
its terms may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting the enforcement of
creditors' rights generally and (ii) general equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity or at law)
and (b) the enforceability of indemnity provisions contained in the Note
Agreements may be subject to limitations based upon public policy
considerations.
We express no opinion as to Section 23.3 of the Note
Agreements insofar as said Section relates to (a) the subject matter
jurisdiction of the United States District Court for the Southern District of
New York to adjudicate any controversy relating to the Note Agreements, the
Notes or any other document related thereto, (b) the waiver of inconvenient
forum with respect to proceedings in such United States District Court or (c)
the waiver of the right to jury trial.
148
-4-
We are members of the bar of the State of New York and do
not herein intend to express any opinion as to any matters governed by any laws
other than Federal laws, the laws of the State of New York and the General
Corporation Law of the State of Delaware.
This opinion is given solely for your benefit and for the
benefit of institutional investor holders from time to time of the Notes
purchased by you today, in connection with the closing held today of the
transactions contemplated by the Note Agreements, and may not be relied upon by
any other person for any purpose without our prior written consent.
Very truly yours,
149
SENIOR NOTE PURCHASE AGREEMENT
SCHEDULE 5.4
EXISTING SUBSIDIARIES OF THE COMPANY
See attached schedules.
Significant Subsidiaries:
Budget Car Sales, Inc.
Budget Rent a Car Systems, Inc.
Budget Funding Corporation
Budget Fleet Finance Corporation
Budget Rent a Car International, Inc.
BTI (U.K.) plc
Team Fleet Financing Corporation
Directors and Officers of the Company:
See attachment.
Subsidiary Guarantors:
See attachment.
150
Existing Subsidiaries of the Company
Name Jurisdiction of Incorporation
---- -----------------------------
Budget Rent a Car Corporation Delaware
Budget Car Sales, Inc. (formerly "Team Car Sales") Indiana
Team Car Sales of Charlotte, Inc. Delaware
Team Car Sales of Dayton, Inc. Delaware
Team Car Sales of Philadelphia, Inc. Delaware
Team Car Sales of Richmond, Inc. Delaware
Team Car Sales of San Diego, Inc. Delaware
Team Car Sales of Southern California, Inc. Delaware
ValCar Rental Car Sales, Inc. Indiana
IN Motors VI, LLC(1) Indiana
TCS Properties, LLC Indiana
Budget Rent a Car Systems, Inc. Delaware
Budget Funding Corporation Delaware
Budget Fleet Finance Corporation Delaware
BRAC of New York, Inc. Delaware
Long Island Car & Truck Rental, Inc.(2) Delaware
NYRAC, Inc. New York
Rebound Services, Inc. Delaware
Diversified Services, Inc. Delaware
Automated Transportation, Inc. California
Expert Leasing, Inc. Florida
Rapid Rentals, Inc. District of Columbia
Xxxxxxx Car Sales, Inc. Louisiana
151
Existing Subsidiaries of the Company (Cont'd)
Name Jurisdiction of Incorporation
---- -----------------------------
Budget Rent a Car of New Orleans, Inc. Louisiana
Westeam Enterprises, Inc. California
MacKay Car & Truck Rentals, Inc. North Carolina
Metro West, Inc. Delaware
Xxx-Al, Inc. California
Dayton Auto Lease Company, Inc. Ohio
Xxx Xxxxxx, Inc. Ohio
Arizona Rent a Car Systems, Inc. Delaware
Capital City Leasing, Inc. Florida
Team Rental of Connecticut, Inc. Delaware
Team Rental of Cincinnati, Inc. Delaware
Team Rental of Ft. Xxxxx, Inc. Delaware
Fort Xxxxx Rental Group, Inc. Delaware
Team Rental of Philadelphia, Inc. Delaware
Team Rental of Pittsburgh, Inc. Delaware
Team Rental of Rochester, Inc. Delaware
Team Rental of Southern California, Inc. Delaware
BRAC SOCAL Funding Corporation Delaware
Team Rental of New York, Inc. New York
VPSI, Inc. Delaware
Team Claims Services, Inc. Florida
Budget Rent a Car International, Inc. Delaware
Budget Rent a Car Espana, S.A. Spain
152
Existing Subsidiaries of the Company (Cont'd)
Name Jurisdiction of Incorporation
---- -----------------------------
Budget Rent a Car Ltd., Ireland London, England
BRACELET, S.A. Spain
Societe Financiere et de Participation Tours, France
Budget France, S.A. Tours, France
BTI (U.K.) plc London, England
BTI (Gatwick) Limited London, England
BTI (Stansted) Limited London, England
BTI (London) Limited London, England
BTI (Marble Arch) Limited London, England
BTI (Slough) Limited London, England
BTI (Heathrow) Limited London, England
Budget Rent a Car Australia Pty. Ltd. Victoria, Australia
Budget Rent a Car Pty. Ltd. Victoria, Australia
Budget Rent a Car Limited Auckland, New Zealand
Budget Rent a Car Operations Pty. Ltd. Victoria, Australia
Target Rent a Car Limited Wellington, New Zealand
Budget Lease Mgmt (Car Sales) Limited Auckland, New Zealand
Budget Locacao de Veiculos Ltda. Sao Paulo, Brazil
Budget Rent a Car Asia-Pacific, Inc. Delaware
Budget Rent a Car of Japan, Inc. Delaware
Budget Rent a Car of Canada Limited Ottawa, Ontario
Control Risk Corporation Illinois
Xxxxxx Xxxxxx Insurance Agency, Inc. California
153
Existing Subsidiaries of the Company (Cont'd)
Name Jurisdiction of Incorporation
---- -----------------------------
Reservation Services, Inc. Texas
200-214 N. Michigan Ave, Inc. Illinois
BRAC Reinsurance Company, Ltd. Bermuda
BBAC Credit Corporation Delaware
Compass Computer Services, Inc.(3) Delaware
Budget Sales Corporation Delaware
Team Fleet Financing Corporation Delaware
Team Realty Services, Inc. Delaware
Team Fleet Services Corporation Delaware
-----------------------
(1) 1% owned by Budget Car Sales, Inc.; 1% owned by Budget Rent a Car
Corporation, and 98% owned by ValCar Rental Car Sales, Inc.
(2) A 72% owned subsidiary of BRAC of New York, Inc.
(3) A 50% owned subsidiary of Budget Rent a Car Corporation.
154
SUBSIDIARY GUARANTORS
Capital City Leasing, Inc.
Dayton Auto Lease Company, Inc.
Xxx Xxxxxx,, Inc.
Ft. Xxxxx Rental Group, Inc.
Xxx-Al, Inc.
Mackay Car & Truck Rentals, Inc.
Metro West, Inc.
Team Car Sales of Charlotte, Inc.
Team Car Sales of Dayton, Inc.
Team Car Sales of Philadelphia, Inc.
Team Car Sales of Richmond. Inc.
Team Car Sales of San Diego, Inc.
Team Fleet Services Corporation
Team Realty Services, Inc.
Team Rental of Cincinnati, Inc.
Team Rental of Connecticut, Inc.
Team Rental of Philadelphia, Inc.
Team Rental of Pittsburgh, Inc.
Team Rental of Southern California, Inc.
Tranex Rentals of New York, Inc.
Westeam Enterprises, Inc.
Team Car Sales of Southern California, Inc.
Team Rental of Ft. Xxxxx, Inc.
Team Rental of Rochester, Inc.
VPSI, Inc.
Arizona Rent-A-Car Systems, Inc.
IN Motors VI, LLC
TCS Properties, LLC
Budget Car Sales, Inc. (formerly Team Car Sales, Inc.)
ValCar Rental Car Sales, Inc.
Budget Rent a Car Systems, Inc.
NYRAC, Inc.
Diversified Services, Inc.
Rapid Rentals, Inc.
Budget Rent a Car of New Orleans, Inc.
Budget Rent a Car International, Inc.
Control Risk Corporation
Xxxxxx Xxxxxx Insurance Agency, Inc.
Reservation Services, Inc.
BRAC Credit Corporation
BRAC of New York, Inc.
Automated Transportation, Inc.
155
Xxxxxxx Car Sales, Inc.
Budget Sales Corporation
Budget Rent a Car Corporation of Canada Limited
