|
Exhibit
10.40(a)
CONFORMED COPY
AMENDMENT NO. 1 TO MASTER
MOTOR VEHICLE OPERATING
LEASE AGREEMENT
dated as of February 15,
2008
between
CENTRE POINT FUNDING,
LLC,
as Lessor,
BUDGET TRUCK RENTAL,
LLC,
as Administrator
as Lessee
and
AVIS BUDGET CAR RENTAL,
LLC,
as Guarantor
AMENDMENT NO.
1
TO MASTER MOTOR VEHICLE
OPERATING LEASE AGREEMENT
This AMENDMENT NO. 1 TO
MASTER MOTOR VEHICLE OPERATING LEASE AGREEMENT , dated
February 15, 2008 (this “ Amendment ”) is
between CENTRE POINT FUNDING, LLC (f/k/a Budget Truck Funding, LLC)
(“ BTF ”), a Delaware limited liability company,
as lessor (the “ Lessor ”), BUDGET TRUCK RENTAL,
LLC, a Delaware limited liability company (“ BTR
”), as lessee (the “ Lessee ”) and as
administrator (the “ Administrator ”), and AVIS
BUDGET CAR RENTAL, LLC, a Delaware limited liability company
(“ ABCR ”), as guarantor (the “
Guarantor ”).
RECITALS:
WHEREAS , the Lessor
entered into that certain Master Motor Vehicle Operating Lease
Agreement (the “ Lease ”), dated as of
May 11, 2006, among the Lessor, the Administrator, as Lessee,
and the Guarantor pursuant to which the Lessor leases to the
Lessee, and the Lessee leases from the Lessor, the BTF Trucks set
forth on Attachments A to the Lease for use in the daily rental
business of the Lessee;
WHEREAS , the
Guarantor has guaranteed the obligations of the Lessee under the
Lease pursuant to Section 22 of the Lease;
WHEREAS , the parties
hereto wish to amend the Lease as provided herein;
WHEREAS , pursuant to
Section 24 of the Lease, the Lease may be modified or amended
in accordance the requirements of such Section, and pursuant
thereto the Trustee and the Required Noteholders, as required, have
consented in writing to the amendments effected by this Amendment;
and
WHEREAS , this
Amendment has been duly authorized by all necessary limited
liability company action on the part of BTF;
NOW, THEREFORE , in
consideration of the premises and the agreements, provisions and
covenants herein contained, the parties hereto agree as
follows:
2
ARTICLE I
Definitions
Section 1.1. Terms
Defined in Series Supplement or Base Indenture .
Unless otherwise specified herein, capitalized terms used herein
(including the preamble and recitals hereto) shall
have the meanings ascribed to such terms in the Lease or the
Definitions List attached as Annex 1 to the Base Indenture, dated
as of May 11, 2006 (the “ Base Indenture
”), between the Lessor, as issuer, and The Bank of New York
Trust Company, N.A., as Trustee, as such Definitions List may from
time to time be amended in accordance with the Base
Indenture.
ARTICLE II.
Amendments
Section 2.1.
Amendments to Table of Contents . The Table of Contents
is hereby amended by the addition of the following at the end
thereof:
“ATTACHMENT D Form of
Sublease”
Section 2.2.
Amendments to Article 2: General Agreement .
Section 2(b) is hereby amended as follows:
(a) by amending and restating
clause (ii) in its entirety to read as follows:
“(ii) all BTF Trucks
which, notwithstanding that this Agreement and any Sublease is
intended to convey only a leasehold interest, are determined to be
owned by the Lessee or any Permitted Sublessee, and all
Certificates of Title with respect to the BTF
Trucks;”
(b) by amending and restating
clauses (iii) in its entirety to read as follows:
“(iii) all right, title
and interest of the Lessee or any Permitted Sublessee in and to any
proceeds from the sale of BTF Trucks which, notwithstanding that
this Agreement and any Sublease is intended to convey only a
leasehold interest, are determined to be owned by the Lessee or any
Sublessee, including all monies due in respect of such BTF Trucks,
whether payable as the purchase price of such BTF Trucks or as
fees, expenses, costs, indemnities, insurance recoveries or
otherwise;”
(c) by adding the following
new clause (v):
“(v) the rights of the
Lessee under any Sublease, as the same may be amended, modified or
supplemented from time to time in accordance with its terms,
including, without limitation, (a) all monies, if any, due and
to become due to the Lessee from any Permitted Sublessee under or
in connection with any Sublease, whether payable as rent, fees,
expenses, costs, indemnities, insurance recoveries, damages for the
breach of any Sublease or otherwise, (b) all rights, remedies,
powers, privileges and claims of the Lessee against any other party
under or with respect to any Sublease (whether arising pursuant to
the terms of such Sublease or otherwise available to the Lessee at
law or in equity), including the right to enforce any Sublease
and
3
to give or withhold any and all
consents, requests, notices, directions, approvals, extensions or
waivers under or with respect to any Sublease or the obligations
and liabilities of any party thereunder, (c) all liens and
property from time to time purporting to secure payment of the
obligations and liabilities of any Permitted Sublessee arising
under or in connection with any Sublease, together with any
documents or agreements describing any collateral securing such
obligations or liabilities and (d) all guarantees, insurance
and other agreements or arrangements of whatever character from
time to time supporting or securing payment of such obligations and
liabilities of any Permitted Sublessee pursuant to any
Sublease;”; and
(d) by renumbering the
existing clauses “(v)” and “(vi)” so that
they are now clauses “(vi)” and
“(vii)”.
Section 2.3.
Amendments to Section 7 : BTF Truck Use
.
Section 7 is hereby
amended and restated in its entirety to read as follows:
“ BTF TRUCK USE
. So long as no Lease Event of Default, Liquidation Event of
Default or Limited Liquidation Event of Default has occurred
(subject, however, to Section 2.5 hereof), the Lessee
may use BTF Trucks leased hereunder in its regular course of
business, including subleasing BTF Trucks to Permitted Sublessees
in accordance with this Section 7. Such use shall be confined
solely to the United States, and the principal place of business or
rental office of the Lessee with respect to the BTF Trucks shall be
located in the United States. The Administrator shall promptly and
duly execute, deliver, file and record all such documents,
statements, filings and registrations and take such further actions
as the Lessor or the Trustee shall from time to time reasonably
request in order to establish, perfect and maintain the
Lessor’s rights to and interest in the BTF Trucks and the
Certificates of Title as against the Lessee or any third party in
any applicable jurisdiction and to establish, perfect and maintain
the Trustee’s Lien on the BTF Trucks and the Certificates of
Title as a perfected first lien in any applicable jurisdiction. The
Lessee may, at its sole expense, change the place of principal
location of any BTF Trucks. Notwithstanding the foregoing, no
change of location shall be undertaken unless and until
(x) all actions necessary to maintain the Lien of the Trustee
on such BTF Trucks and the Certificates of Title with respect to
such BTF Trucks shall have been taken and (y) all legal
requirements applicable to such BTF Trucks shall have been met or
obtained. Following the occurrence of a Lease Event of Default, a
Limited Liquidation Event of Default or a Liquidation Event of
Default, the Lessee shall advise the Lessor in writing where all
BTF Trucks leased hereunde
|
