GUARANTEE, dated
as of June 26, 2009 (this “ Guarantee ”),
is by Apollo Investment Fund VI, L.P., Apollo Overseas Partners VI,
L.P., Apollo Overseas Partners (Delaware) VI, L.P., Apollo Overseas
Partners (Delaware892) VI, L.P. and Apollo Overseas Partners
(Germany) VI, L.P. (together, the “ Guarantors
”, and each a “ Guarantor ”), in favor of
Wright Express Corporation, a Delaware corporation (the “
Company ”).
1.
GUARANTEE . To induce the Company to enter into that certain
Tax Receivable Prepayment Agreement, dated as of June 26, 2009
(as amended, supplemented or otherwise modified from time to time,
the “ Agreement ”), by and between the Company
and Realogy Corporation, a Delaware corporation (“
Realogy ”), the Guarantors each guarantee to the
Company on the terms and subject to the conditions hereinafter set
forth the due and punctual payment by Realogy of any amounts due to
the Company under clauses (a), (b), (c) and (d) of
Section 7.1 of the Agreement, in accordance with the terms of
the Agreement (the “ Realogy Obligations ”).
Solely to the extent that the underlying Realogy Obligation in
respect of which a claim is made hereunder arises under
Section 7.1(c) of the Agreement and such underlying Realogy
Obligation is invalidated in connection with the related challenge
to the validity of the transactions contemplated by the Agreement,
this guarantee shall be construed, without duplication, as an
indemnity in respect of, and hold-harmless of the Company and its
Affiliates (as defined in the Agreement) against, any Damages (as
defined in the Agreement) rather than a guarantee to the extent
necessary to preserve the Company’s ability to seek recovery
from each Guarantor hereunder in respect of such underlying Realogy
Obligation notwithstanding the invalidity of the underlying Realogy
Obligation.
2.
CONDITIONS TO ENFORCEMENT RIGHT .
(a) The
Company may not seek to enforce this Guarantee and shall have no
rights hereunder unless:
(i)
with respect to Realogy Obligations arising under Section 7.1
of the Agreement in respect of the matters described in clause
(a) of that Section, the Company shall have obtained a trial
court judgment against Realogy in respect of such claim on or
before June 26, 2011 (or Realogy shall have admitted in
writing its liability in respect of such claim, with the express
written consent of each Guarantor, on or before June 26, 2011)
and Realogy shall have failed for any reason to make payment in
full of such judgment or settlement liability within ten (10) days
after written demand by the Company to Realogy therefor (a copy of
which written demand shall have been provided to each Guarantor, it
being understood that no such notice shall be required if the
giving of such notice is barred or stayed by law);
(ii)
with respect to Realogy Obligations arising under Section 7.1
of the Agreement in respect of the matters described in clause
(b) of that Section, the Company shall have received a Final
Determination establishing that the Company is liable for taxes
resulting from any cancellation of indebtedness income recognized
by the Company for federal, state or local income tax purposes as a
result of the transactions contemplated by the Agreement on or
before June 26, 2011 and Realogy shall have failed for any
reason to meet its payment obligations under Section 7.1(b) of the
Agreement within ten (10) days after written demand by the
Company to Realogy therefor (a copy of which written demand shall
have been provided to each Guarantor, it being understood that no
such demand shall be required if the giving of such demand is
barred or stayed by law);
(iii)
subject to clause (b) of this Section 2, with respect to
Realogy Obligations arising under Section 7.1 of the Agreement
in respect of the matters described in clause (c) of that
Section, the Company shall have been named as a defendant in an
action in respect of such claim on or before June 26, 2011 and
shall have promptly (and in any event within ten (10) days of
receiving notice thereof) given notice of such suit to Realogy in
accordance with the Agreement and to each Guarantor at the same
time (it being understood that no such notice shall be required if
the giving of such notice is barred or stayed by law);
and
(iv)
subject to clause (c) of this Section 2, with respect to
Realogy Obligations arising under Section 7.1 of the Agreement
in respect of the matters described in clause (d) of that
Section, the Company shall have been named as a defendant in an
action in respect of such claim on or before June 26, 2011 and
shall have promptly (and in any event within ten (10) days of
receiving notice thereof) given notice of such suit to Realogy in
accordance with the Agreement and to each Guarantor at the same
time (it being understood that no such notice shall be required if
the giving of such notice is barred or stayed by law).
(b) With
respect to Realogy Obligations arising under Section 7.1 of
the Agreement in respect of the matters described in clause
(c) of that Section after the occurrence and during the
continuance of a Bankruptcy Event (as defined below) with respect
to Realogy, the date set forth in clause (a)(iii) of this
Section 2 shall be extended until the latest date provided in
section 546(a) of the Bankruptcy Code for the commencement of
avoidance actions in or with respect to such Bankruptcy Event
(including any extensions thereto or tolling thereof, other than
extensions or tolling requested by or at the motion of the Company
or any of its affiliates).
(c) With
respect to Realogy Obligations arising under Section 7.1 of
the Agreement in respect of the matters described in clause
(d) of that Section after the occurrence and during the
continuance of a Bankruptcy Event (as defined below) with respect
to Avis Budget Group, Inc. (“ ABG ”), the date
set forth in clause (a)(iv) of this
-2-
Section 2
shall be extended until the latest date provided in section 546(a)
and section 550(f) of the Bankruptcy Code for the commencement of
avoidance actions in or with respect to such Bankruptcy Event
(including any extensions thereto or tolling thereof, other than
extensions or tolling requested by or at the motion of the Company
or any of its affiliates).
(i)
“ Bankruptcy Event ” as used herein means a
voluntary or involuntary case under Title 11 of the United States
Code (the “Bankruptcy Code”) filed on or before
June 26, 2011 by or against Realogy or ABG; and
(ii)
“ Final Determination ” as used herein shall
have the meaning ascribed to Determination in Section 1313(a) of
the Internal Revenue Code of 1986, as amended, or similar provision
of state, local or foreign law, as applicable, or any other event
that finally and conclusively establishes the amount of any
liability for tax.
(e) Notwithstanding
anything to the contrary in this Agreement, each Guarantor’s
obligations with respect to Section 7.1 of the Agreement in
respect of matters described in clause (d) of that Section
shall terminate at such time as any Guarantor delivers to the
Company written documentation demonstrating that Realogy has been
rated BB (or any higher rating) by Standard & Poor’s
Rating Services, a division of the McGraw Hill Companies,
Inc.
3. CAP ON
OBLIGATIONS . Notwithstanding anything else in this Agreement
to the contrary, the maximum obligations of the Guarantors
collectively under this Guarantee shall not exceed $51,000,000.00,
it being understood that the Company shall not be entitled to
recover more than $51,000,000.00 in total under this
Guarantee.
4.
CHANGES IN REALOGY OBLIGATIONS, CERTAIN WAIVERS . Each
Guarantor agrees that the obligations of such Guarantor hereunder
shall not be released or discharged, in whole or in part, or
otherwise affected by the following, all of which are waived:
(a) except as provided in Section 2 of this Guarantee, the
failure of the Company to assert any claim or demand or to enforce
any right or remedy against Realogy or any other entity or person
interested in the transactions contemplated by the Agreement;
(b) any amendment or modification of any of the terms or
provisions of the Agreement or any other agreement evidencing,
securing or otherwise executed in connection with the Agreement,
that does not affect the Realogy Obligations or the
Guarantors’ liability with respect thereto; (c) any
change in the corporate existence, structure or ownership of
Realogy or any other entity or person interested in the
transactions contemplated by the Agreement; (d) any
insolvency, bankruptcy, reorganization or other similar proceeding
(a “ Bankruptcy ”) affecting Realogy or any
other entity or person interested in the transactions contemplated
in the Agreement; (e) the existence of any c
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