AMENDMENT NO. 1 TO MASTER MOTOR VEHICLE OPERATING LEASE AGREEMENTEquipment Lease Agreement |
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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:
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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
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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 Lessors 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 Trustees 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 hereunder as of such date are principally located. The Lessee shall not knowingly use any BTF Trucks or knowingly permit the same to be used for any unlawful purpose. The Lessee shall use reasonable precautions to prevent loss or damage to BTF Trucks. The Lessee shall comply with all applicable statutes, decrees, ordinances and regulations regarding acquiring, titling, registering, leasing, insuring and disposing of BTF Trucks and shall take reasonable steps to ensure that operators are licensed. The Lessee and the Lessor agree that the Lessee shall perform, at the Lessees own expense, such BTF Truck preparation and conditioning services with respect to BTF Trucks leased by the Lessee hereunder as are customary. The Lessor or the Trustee or any authorized representative of the Lessor or the Trustee may during reasonable business hours from time to time, without disruption of the Lessees business, subject to applicable law, inspect BTF Trucks and registration certificates, Certificates of Title and related documents covering BTF Trucks wherever the same be located. In addition to its normal daily
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rental operations, the Lessee may sublease BTF Trucks to a Permitted Sublessee provided that (i)






