This SECOND
AMENDMENT TO THE SERIES 2008-1 SUPPLEMENT (this “
Amendment ”), dated as of December 23, 2008, amends
the Series 2008-1 Supplement (the “ Series 2008-1
Supplement ”), dated as of February 15, 2008, as amended
by the First Amendment thereto, dated as of October 27, 2008, and
is among AVIS BUDGET RENTAL CAR FUNDING (AESOP) LLC, a special
purpose limited liability company established under the laws of
Delaware (“ ABRCF ”),
AVIS BUDGET CAR RENTAL, LLC , a
limited liability company established under the laws of Delaware,
as administrator (the “ Administrator ”),
JPMORGAN CHASE BANK, N.A., a national banking association, as
administrative agent (the “ Administrative Agent
”), the several commercial paper conduits listed on Schedule
I thereto (each a “ CP Conduit Purchaser ”), the
several banks set forth opposite the name of each CP Conduit
Purchaser on Schedule I thereto (each an “ APA Bank
” with respect to such CP Conduit Purchaser), the several
agent banks set forth opposite the name of each CP Conduit
Purchaser on Schedule I thereto (each a “ Funding
Agent ” with respect to such CP Conduit Purchaser), THE
BANK OF NEW YORK MELLON TRUST COMPANY, N.A. (as successor in
interest to The Bank of New York), a national banking association,
as trustee (in such capacity, the “ Trustee ”)
and as agent for the benefit of the Series 2008-1 Noteholders (in
such capacity, the “ Series 2008-1 Agent ”), to
the Second Amended and Restated Base Indenture, dated as of June 3,
2004, between ABRCF and the Trustee (as amended, modified or
supplemented from time to time, exclusive of Supplements creating a
new Series of Notes, the “ Base Indenture
”). All capitalized terms used herein and not otherwise
defined herein shall have the respective meanings provided therefor
in the Definitions List attached as Schedule I to the Base
Indenture (as amended through the date hereof) or the Series 2008-1
Supplement, as applicable.
WHEREAS, pursuant to Section 12.2 of the
Base Indenture, any Supplement thereto may be amended with the
consent of ABRCF, the Trustee and each affected Noteholder of the
applicable Series of Notes, so long as such amendment only affects
the Noteholders of such Series of Notes;
WHEREAS, the parties desire to amend the Series 2008-1 Supplement
to (i) extend the Scheduled Expiry Date; (ii) replace Schedule I
thereto with a new Schedule I; (iii) increase the Series 2008-1
Maximum Invested Amount; (iv) add a requirement to reduce the
Series 2008-1 Invested Amount with the proceeds of the issuance of
certain Series of Notes; (v) add a Controlled Amortization Period;
(vi) add certain Amortization Events and (vii) modify a covenant
with respect to ABRCF Vehicle purchasing patterns; and
WHEREAS,
ABRCF has requested the
Trustee, the Series 2008-1 Agent, the Administrator, the
Administrative Agent and each Series 2008-1 Noteholder to, and,
upon the effectiveness of this Amendment, ABRCF, the Trustee, the
Series 2008-1 Agent, the Administrator, the Administrative Agent
and the Series 2008-1 Noteholders have agreed to, amend certain
provisions of the Series 2008-1 Supplement as set forth
herein;
NOW, THEREFORE, it
is agreed:
1.
Amendments of Definitions . The following defined
terms, as set forth in Article I(b) of the Series 2008-1
Supplement, are hereby amended and restated in their entirety as
follows:
““ Commitment Amount ” means, with respect
to the APA Banks incuded in any Purchaser Group, an amount equal to
102% of the Maximum Purchaser Group Invested Amount with respect to
such Purchaser Group.”
““ CP Rate Period ” means, with respect to
any CP Tranche, a period of days not to exceed 270 days commencing
on a Business Day selected in accordance with Section 2.7(b);
provided that (x) if a CP Rate Period would end on a day
that is not a Business Day, such CP Rate Period shall end on the
next succeeding Business Day and (y) during the Series 2008-1
Controlled Amortization Period and the Series 2008-1 Rapid
Amortization Period, each CP Rate Period shall end on or prior to
the next succeeding Distribution Date.”
““ Fee Letter ” means the letter dated the
date hereof from ABRCF addressed to the Administrative Agent and
each of the CP Conduit Purchasers, the Funding Agents and the APA
Banks setting forth certain fees payable from time to time to the
Purchaser Groups, as such letter may be amended or replaced from
time to time; provided , however , that solely with
respect to the Purchaser Group of which Citibank, N.A. is a member,
“Fee Letter” shall mean the letter dated the Second
Amendment Effective Date from ABRCF addressed to the members of
such Purchaser Group and the related Funding Agent setting forth
certain fees payable from time to time to such Purchaser Group,
until such letter is cancelled in accordance with its
terms.”
““ Maximum Purchaser Group Invested Amount
” means, with respect to any Purchaser Group, an amount equal
to the product of (i) the amount set forth opposite the name of the
CP Conduit Purchaser included in such Purchaser Group on
Schedule I, as such amount may be increased or reduced from
time to time as provided in Section 2.6 (but which for the
avoidance of doubt shall not include any reductions made pursuant
to clause (ii) of this definition) and (ii) (x) from the Series
2008-1 Second Amendment Effective Date to but excluding August 1,
2009, 100%, (y) from and including August 1, 2009 to but excluding
September 1, 2009, 75% and (z) from and including September 1, 2009
to but excluding the Scheduled Expiry Date, 50%. The Maximum
Purchaser Group Invested Amount with respect to each Non-Extending
Purchaser Group shall be reduced to zero on the Scheduled Expiry
Date with respect to such Purchaser Group.”
““
Monthly Funding Costs ” means, with respect to each
Series 2008-1 Interest Period and any Purchaser Group, the sum
of:
(a) for each day during
such Series 2008-1 Interest Period, (i) with respect to a Match
Funding CP Conduit Purchaser, the aggregate amount of Discount
accruing on all outstanding Commercial Paper issued by, or for the
benefit of, such Match Funding CP Conduit Purchaser to fund the CP
Conduit Funded Amount with respect to such Match Funding CP Conduit
Purchaser on such day or (ii) with respect to a Pooled Funding CP
Conduit Purchaser, the aggregate amount of Discount accruing on or
otherwise in respect of the Commercial Paper issued by, or for the
benefit of, such Pooled Funding CP Conduit Purchaser allocated, in
whole or in part, by the Funding Agent with respect to such Pooled
Funding CP Conduit Purchaser, to fund the purchase or maintenance
of the CP Conduit Funded Amount with respect to such Pooled Funding
CP Conduit Purchaser; plus
(b)
for each day during such
Series 2008-1 Interest Period, the sum of:
(i)
the product of (A) the
portion of the APA Bank Funded Amount with respect to such
Purchaser Group allocated to the Floating Tranche with respect to
such Purchaser Group on such day times (B) the Alternate
Base Rate plus the Applicable Margin on such day,
divided by (C) 365 (or 366, as the case may be)
plus
(ii)
the product of (A) the portion
of the APA Bank Funded Amount with respect to such Purchaser Group
allocated to Eurodollar Tranches with respect to such Purchaser
Group on such day times (B) the weighted average Adjusted
LIBO Rate with respect to such Eurodollar Tranches plus the
Applicable Margin on such day in effect with respect thereto
divided by (C) 360; plus
(c)
for each day during such
Series 2008-1 Interest Period, the product of (A) the CP Conduit
Funded Amount with respect to such Purchaser Group on such day
times (B) the Program Fee Rate on such day divided by
(C) 360; plus
(d) for each day during such
Series 2008-1 Interest Period, the product of (A) the Purchaser
Group Invested Amount with respect to such Purchaser Group on such
day and (B) the Incremental Term Financing Fee Rate on such day
divided by (C) 360.”
““ Past Due Rent Payment ” is defined in
Section 3.2(g).”
““ Scheduled Expiry Date ” means, with
respect to any Purchaser Group, November 20, 2009, as such date may
be extended in accordance with Section 2.6(b).”
““
Series 2008-1 Invested Percentage ” means as of any
date of determination:
(a)
when used with respect to Principal Collections, the percentage
equivalent (which percentage shall never exceed 100%) of a
fraction the numerator of which shall be equal to the sum of
the Series 2008-1 Invested Amount and the Series 2008-1
Overcollateralization Amount, determined during the Series
2008-1 Revolving Period as of the end of the immediately preceding
Business Day, or, during the Series 2008-1 Rapid Amortization
Period or the Series 2008-1 Controlled Amortization Period,
as of the end of the Series 2008-1 Revolving Period, and the
denominator of which shall be the greater as of the end of the
immediately preceding Business Day of (I) the Aggregate Asset
Amount and (II) the sum of the numerators used to determine
(i) invested percentages for allocations with respect to Principal
Collections (for all Series of Notes and all classes of such Series
of Notes) and (ii) overcollateralization percentages for
allocations with respect to Principal Collections (for all
Series of Notes that provide for credit enhancement in the form of
overcollateralization); and
(b)
when used with respect to Interest Collections, the percentage
equivalent (which percentage shall never exceed 100%) of a
fraction the numerator of which shall be the Accrued Amounts
with respect to the Series 2008-1 Notes on such date of
determination, and the denominator of which shall be the
aggregate Accrued Amounts with respect to all Series of Notes on
such date of determination.”
““
Series 2008-1 Lease Interest Payment Deficit ” means
on any Distribution Date an amount equal to the excess, if any, of
(a) the aggregate amount of Interest Collections which pursuant to
Section 3.2(a), (b), (c) or (d) would have been allocated to the
Series 2008-1 Accrued Interest Account if all payments of Monthly
Base Rent required to have been made under the Leases from and
excluding the preceding Distribution Date to and including such
Distribution Date were made in full over (b) the aggregate amount
of Interest Collections which pursuant to Section 3.2(a), (b), (c)
or (d) have been allocated to the Series 2008-1 Accrued Interest
Account (excluding any amounts paid into the Series 2008-1 Accrued
Interest Account pursuant to the proviso in Sections 3.2(c)(ii) and
3.2(d)(ii)) from and excluding the preceding Distribution Date to
and including such Distribution Date.”
““
Series 2008-1 Limited Liquidation Event of Default ”
means, so long as such event or condition continues, any
event or condition of the type specified in clauses (a) through (i)
or clause (m) of Article IV; provided , however ,
that any event or condition of the type specified in clauses (a)
through (i) or clause (m) of Article IV shall not constitute a
Series 2008-1 Limited Liquidation Event of Default if the Trustee
shall have received the written consent of each of the Series
2008-1 Noteholders waiving the occurrence of such Series
2008-1 Limited Liquidation Event of Default.”
““
Series 2008-1 Monthly Lease Principal Payment Deficit
” means on any Distribution Date an amount equal to the
excess, if any, of (a) the aggregate amount of Principal
Collections which pursuant to Section 3.2(a), (b), (c) or (d) would
have been allocated to the Series 2008-1 Collection Account if all
payments required to have been made under the Leases from and
excluding the preceding Distribution Date to and including such
Distribution Date were made in full over (b) the aggregate amount
of Principal Collections which pursuant to Section 3.2(a), (b), (c)
or (d) have been allocated to the Series 2008-1 Collection Account
(without giving effect to any amounts paid into the Series 2008-1
Accrued Interest Account pursuant to the proviso in Sections
3.2(c)(ii) and/or 3.2(d)(ii)) from and excluding the preceding
Distribution Date to and including such Distribution
Date.”
““
Series 2008-1 Moody’s Highest Enhancement Rate ”
means, as of any date of determination, the greater of (a) 55.00%
and (b) the sum of (i) 55.00% and (ii) the highest, for any
calendar month within the preceding twelve calendar months, of the
greater of (x) an amount (not less than zero) equal to 100%
minus the Measurement Month Average for the immediately
preceding Measurement Month and (y) an amount (not less than zero)
equal to 100% minus the Market Value Average as of the
Determination Date within such calendar month (excluding the Market
Value Average for any Determination Date which has not yet
occurred).”
““
Series 2008-1 Moody’s Intermediate Enhancement Rate
” means, as of any date of determination, 55.00%.”
““
Series 2008-1 Moody’s Lowest Enhancement Rate ”
means, as of any date of determination, 20.00%.”
““
Series 2008-1 Past Due Rent Payment ” is defined in
Section 3.2(g).”
““ Series 2008-1 Required Liquidity Amount
” means, with respect to any Distribution Date, an amount
equal to 12.50% of the Series 2008-1 Invested Amount on such
Distribution Date (after giving effect to any payments of principal
to be made on the Series 2008-1 Notes on such Distribution
Date).”
““
Series 2008-1 Revolving Period ” means the period from
and including, the Series 2008-1 Closing Date to the earlier of (x)
the commencement of the Series 2008-1 Rapid Amortization
Period and (y) the commencement of the Series 2008-1 Controlled
Amortization Period.”
““ Series 2008-1 Standard & Poor’s
Intermediate Enhancement Rate ” means, as of any date of
determination, the greater of (a) 49.25% and (b) the sum of (i)
49.25% and (ii) the highest, for any calendar month within the
preceding twelve calendar months, of the greater of (x) an amount
(not less than zero) equal to 100% minus the Measurement
Month Average for the immediately preceding Measurement Month and
(y) an amount (not less than zero) equal to 100% minus the
Market Value Average as of the Determination Date within such
calendar month (excluding the Market Value Average for any
Determination Date which has not yet occurred).”
““ Series 2008-1 Standard & Poor’s Lowest
Enhancement Rate ” means, as of any date of
determination, 34.00%.”
2.
Additional Definitions . The following defined terms
are hereby added in their entirety, in appropriate alphabetical
order, to Article I(b) of the Series 2008-1 Supplement as
follows:
““
Consolidated EBITDA ” has the meaning set forth in the
Credit Agreement”
““
Consolidated Leverage Ratio ” has the meaning set
forth in the Credit Agreement.”
““
Credit Agreement ” means the Credit Agreement, dated
as of April 19, 2006, among Avis Budget Holdings, LLC, as Borrower,
ABCR, as Borrower, the subsidiary borrowers referred to therein,
the several lenders referred to therein, JPMorgan Chase, as
Administrative Agent, Deutsche Bank Securities Inc., as Syndication
Agent, each of Bank of America, N.A., Calyon New York Branch and
Citicorp USA, Inc., as Documentation Agents and Wachovia Bank,
National Association, as Co-Documentation Agent, as amended by the
First Amendment thereto dated as of December 23, 2008 but without
giving effect to any further amendment thereto made subsequent to
the Series 2008-1 Second Amendment Effective Date unless such
amendment has been approved in writing by the Requisite
Noteholders.”
““ Eligible Term Notes ” shall mean any
Series of Notes issued by ABRCF pursuant to the Base Indenture
subsequent to the Series 2008-1 Second Amendment Effective Date and
prior to the Scheduled Expiry Date that are term notes with an
expected final payment date not less than 24 months after the date
of issuance of such Notes.”
““ Incremental Term Financing Fee Rate ”
is defined in the Fee Letter.”
““
Reduction Amount ” is defined in Section
2.5(e).”
““
Replacement Credit Agreement ” means any credit
agreement or similar facility entered into by Avis Budget Holdings,
LLC, ABCR and/or any affiliate of either entity, that refinances or
replaces the Credit Agreement without giving effect to any
amendment thereto that is not approved in writing by the Requisite
Noteholders.”
““
Series 2008-1 Commitment Reduction Percentage ” means,
as of any date of determination, the percentage equivalent of a
fraction, the numerator of which is equal to the Series 2008-1
Maximum Invested Amount as of such date and the denominator of
which is equal to the sum of the Series 2008-1 Maximum Invested
Amount and the Series 2002-2 Maximum Invested Amount (as such term
in defined in the Series 2002-2 Supplement) as of such date, in
each case without giving effect to any reductions in such amount on
such date.”
““ Series 2008-1 Controlled Amortization Amount
” means (i) with respect to the Related Month ending August
31, 2009, the excess, if any, of (x) the Series 2008-1 Invested
Amount as of August 1, 2009 over (y) the Series 2008-1 Maximum
Invested Amount as of August 1, 2009, (ii) with respect to the
Related Month ending September 30, 2009, the excess, if any, of (x)
the Series 2008-1 Invested Amount as of September 1, 2009 over (y)
the sum of (1) the Series 2008-1 Maximum Invested Amount as of
September 1, 2009 and (2) the aggregate amount of Principal
Collections allocated to the Series 2008-1 Collection Account
pursuant to Section 3.2(b)(ii) during the Related Month ended
August 31, 2009 that have not been used to make a Decrease and
(iii) with respect to the Related Month ending October 31,
2009, the excess of (x) the Series 2008-1 Maximum Invested Amount
as of October 1, 2008 over (y) the aggregate amount of Principal
Collections allocated to the Series 2008-1 Collection Account
pursuant to Section 3.2(b)(ii) during the Related Month ended
September 30, 2009 that have not been used to make a
Decrease.”
““
Series 2008-1 Controlled Amortization Period ” means
the period commencing at the opening of business on August 1, 2009
(or, if such day is not a Business Day, the Business Day
immediately preceding such day) and continuing to the earliest of
(i) the commencement of the Series 2008-1 Rapid Amortization
Period, (ii) the date on which the Series 2008-1 Notes are fully
paid and (iii) the termination of the Indenture.”
““ Series 2008-1 Maximum Eligible Term Notes
Commitment Reduction Amount ” means, as of any date of
determination, an amount equal to the excess, if any, of (x)
$750,000,000 over (y) the sum of (i) the aggregate amount by which
the Series 2008-1 Maximum Invested Amount has been reduced in
accordance with the second sentence of Section 2.6(c) prior to such
date and (ii) the aggregate amount by which the Series 2002-2
Maximum Invested Amount (as such term is defined in the Series
2002-2 Supplement) has been reduced in accordance with the second
sentence of Section 2.6(c) of the Series 2002-2 Supplement prior to
such date.”
““ Series 2008-1 Maximum Eligible Term Notes
Principal Reduction Amount ” means, as of any date of
determination, an amount equal to the excess, if any, of (x)
$750,000,000 over (y) the sum of (i) the sum of the amounts
allocated to the Series 2008-1 Excess Collection Account in
accordance with the terms of Section 2.5(e) prior to such date and
(ii) the sum of the amounts allocated to the Series 2002-2 Excess
Collection Account (as such term is defined in the Series 2002-2
Supplement) in accordance with the terms of Section 2.5(e) of the
Series 2002-2 Supplement prior to such date.”
““ Series 2008-1 Principal Reduction Percentage
” means, as of any date of determination, the percentage
equivalent of a fraction, the numerator of which is equal to the
Series 2008-1 Invested Amount as of such date and the denominator
of which is equal to the sum of the Series 2008-1 Invested Amount
and the Series 2002-2 Invested Amount (as such term in defined in
the Series 2002-2 Supplement) as of such date, in each case without
giving effect to any payments of principal on such date.”
““ Series 2008-1 Rapid Amortization Period
” means the period beginning at the earlier to occur of (a)
the close of business on the Business Day immediately preceding the
date on which the Expiry Date with respect to each Purchaser Group
shall have occurred and (b) the close of business on the Optional
Termination Date and ending upon the earliest to occur of (i) the
date on which the Series 2008-1 Notes are fully paid, (ii) the
termination of the Indenture and (iii) the Series 2008-1
Termination Date.”
3.
Deletion of Definition . The following defined term,
as set forth in Article I(b) of the Series 2008-1 Supplement, is
hereby deleted in its entirety: “Series 2008-1 Amortization
Period”.
4.
Amendment to Section 2.5 . (a) Section 2.5(a) of the
Series 2008-1 Supplement is hereby deleted in its entirety and
replaced with the following text in lieu thereof:
“(a) On any Business Day prior
to the occurrence of an Amortization Event, upon the written
request of ABRCF or the Administrator on behalf of ABRCF, the
Series 2008-1 Invested Amount may be reduced (a “
Decrease ”) by the Trustee’s withdrawing (as set
forth in such request) (x) funds on deposit in the Series 2008-1
Excess Collection Account on such Business Day in an amount not to
exceed the amount of such funds on deposit therein on such Business
Day and/or (y) if such Business Day is during the Series 2008-1
Controlled Amortization Period, funds on deposit in the Series
2008-1 Collection Account on such Business Day in an amount not to
exceed the amount of such funds on deposit therein on such Business
Day that were allocated to the Series 2008-1 Notes pursuant to
Section 3.2(b)(ii) on or prior to such Business Day which have not
previously been withdrawn therefrom pursuant to either this clause
(y) to make a Decrease or pursuant to Section 3.5(a) to be paid to
the holders of the Series 2008-1 Notes, and, in each case,
depositing such funds into the Series 2008-1 Distribution Account
and distributing such funds to the Administrative Agent on such
Business Day in accordance with Section 3.5(b); provided
that ABRCF shall have given the Administrative Agent (with a
copy to the Trustee) irrevocable written notice (effective upon
receipt) of the amount of such Decrease prior to 9:30 a.m.
(New York City time) on the second Business Day prior to such
Decrease, in the case of any such Decrease in an amount less than
$200,000,000, and prior to 9:30 a.m. (New York City time) on a
Business Day that is at least ten days prior to such Decrease, in
the case of any such Decrease in an amount of $200,000,000 or more;
provided , further , that any such Decrease shall be
in an amount equal to $10,0
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