Exhibit 10.4
AMENDMENT TO THE TAX SHARING
AGREEMENT
This Amendment, executed
July 8, 2008 and effective as of July 28, 2006 (this
“ Amendment ”), to the Tax Sharing
Agreement, entered into as of July 28, 2006 (as may be amended
from time to time, the “ Agreement ”), by
and between Avis Budget Group, Inc., a Delaware corporation,
formerly known as Cendant Corporation (“
Cendant ”), Realogy Corporation, a Delaware
corporation (“ Realogy ”), Wyndham
Worldwide Corporation, a Delaware corporation (“
Wyndham ”) and Travelport Inc., a Delaware
corporation (“ Travelport ”). Capitalized
terms used but not defined herein shall have the meanings ascribed
to them in the Agreement.
WHEREAS , Section 13.6 of the Agreement provides
that no amendment to the Agreement shall be effective unless it
shall be in writing and signed by each Party to the
Agreement;
WHEREAS , Section 1.3(c)(ii) of the Agreement
provides that if a Travelport Sale occurs, any and all rights and
obligations of and to Travelport pursuant to the Agreement will be
terminated and deemed null and void and be of no further force or
effect;
WHEREAS , Travelport was sold to TDS Investor
Corporation, formerly known as TDS Investor LLC, pursuant to the
Purchase Agreement, dated as of June 30, 2006, as amended on
August 23, 2006, between Cendant and Travelport, on the one
hand, and TDS Investor Corporation, on the other hand;
and
WHEREAS , Cendant, Realogy and Wyndham (together, the
“Parties”) wish to amend the Agreement as provided in
this Amendment.
NOW, THEREFORE
, in consideration of the mutual
premises and covenants set forth herein and for other good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, and intending to be legally bound, the Parties
hereby agree as follows:
1. Amendment to
Section 1.1 . Section 1.1 of the Agreement is hereby
amended by adding the following defined term after subsection
(11).
“(11A) “ Assume
” has the meaning set forth in Section 3.1
.”
2. Amendment to
Section 1.1 . Section 1.1 of the Agreement is hereby
amended by adding the following defined term after subsection
(12).
“(12A) “ Avis
Australia ” means Avis Management Pty.
Ltd.”
3. Amendment to
Section 1.1(15) (definition of “CCRG Audit Sharing
Percentage”) . Section 1.1(15) of the Agreement is
hereby amended as follows:
(a) Delete “and” at the
end of subsection (i)(II).
(b) Add “and” at the end
of subsection (i)(III).
(c) Add new subsection (i)(IV) which
shall state “the aggregate amount of disallowed deduction,
loss or credit directly attributable to any (x) election by or
on behalf of Avis Australia and any Subsidiary thereof that is
engaged in the Vehicle Rental Business to claim accelerated
depreciation for Australian Income Tax purposes or (y) any
Refund received by Cendant pursuant to
Section 4.1(e).”
4. Amendment to
Section 1(16) (definition of “CCRG Entities”)
. Section 1.1(16) is hereby amended as follows:
(a) Delete “.” at the
end of such definition.
(b) Add “and Avis Australia
and its Subsidiaries that are engaged in the Vehicle Rental
Business, provided , however , that solely for
purposes of Income Taxes for the taxable years ended
December 31, 2005 and December 31, 2006, Avis Australia
and such Subsidiaries shall not be treated as CCRG
Entities.”
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5. Amendment to
Section 1.1(31) (definition of “Cendant Shared
Entities”) . Section 1.1(31) of the Agreement is
hereby amended as follows:
(a) Delete “and” at the
end of subsection (iii).
(b) Delete “.” at the
end of subsection (iv) and insert “;
and”
(c) Add subsection (v), which shall
state “Avis Australia and its Subsidiaries that are engaged
in the Vehicle Rental Business, provided , however ,
that Avis Australia and such Subsidiaries shall be treated as
Cendant Shared Entities solely for purposes of Income Taxes for the
taxable years ended December 31, 2005 and December 31,
2006.”
6. Amendment to
Section 1.1 . Section 1.1 of the Agreement is hereby
amended by adding the following defined terms after subsection
(45).
“(45A) “ Excess 2006
Avis Australia Income Tax Refund ” shall mean, with
respect to the taxable year ended December 31, 2006 of Avis
Australia and its Subsidiaries that are engaged in the Vehicle
Rental Business, the excess, if any, of (i) the amount of the
Refund for Income Taxes received by Avis Australia and such
Subsidiaries for such taxable year over (ii) the amount of the
Refund for Income Taxes, if any, that hypothetically would have
been received by Avis Australia and such Subsidiaries for such
taxable year assuming (x) that Avis Australia and such
Subsidiaries did not elect to claim accelerated depreciation for
Australian Income Tax purposes for such year and (y) the same
facts and using the same methods, rate(s), elections (other than
the election to claim accelerated depreciation), conventions and
practices used in determining the actual Income Tax liability of
Avis Australia and such Subsidiaries and the amount of such Refund
for such Income Taxes for such taxable year set forth in clause
(i) of this definition.
7. Amendment to
Section 1.1(98) . Section 1.1(98) (definition of
“Pre-2007 Shared Entity Audit Other Adjustments”) of
the Agreement is hereby amended as follows:
(a) Delete subsection (i),
and
(b) Add new subsection
(i) which shall state:
“the aggregate amount of
income and gain set forth in clause (i)(I), the aggregate amount of
disallowed deduction, loss or credit (and increased income and
gain) set forth in clause (i)(II), the aggregate amount of income
and gain (and disallowed deduction, loss or credit) set forth in
clause (i)(III), and the aggregate amount of disallowed deduction,
loss or credit set forth in clause (i)(IV), of the definition of
the defined term “CCRG Audit Sharing
Percentage”
8. Amendment to
Section 1.1(99) . Section 1.1(99) (definition of
“Pre-2007 Shared Entity Audit Tax Amount”) of the
Agreement is hereby amended by adding the following sentence at the
end of such definition:
“For the avoidance of doubt,
Pre-2007 Shared Entity Audit Tax Amount shall include any
additional amount of Tax required to be paid (including the
disallowance of a Refund) resulting from the disallowance of any
deduction, loss or credit directly attributable to any election by
or on behalf of Avis Australia and any Subsidiary thereof that is
engaged in the Vehicle Rental Business to claim accelerated
depreciation for Australian Income Tax purposes.”
9. Amendment to
Section 2.1 . The second sentence of
Section 2.1(a)(i) is hereby replaced and amended in its
entirety with the following:
“Such Pre-2007 Cendant Shared
Entity Tax Returns shall be prepared in a manner consistent with
the past practice of each Cendant Shared Entity unless otherwise
required by applicable Law, provided , however , that
Cendant shall be permitted to file Income Tax Returns for Avis
Australia and its Subsidiaries that are engaged in the Vehicle
Rental Business for taxable year ended December 31, 2006
claiming accelerated depreciation.”
10. Amendment to
Section 3.1 . Section 3.1(a) of the Agreement is
hereby amended by replacing the words “be liable for”
with “accept, assume (or, as applicable, retain) and perform,
discharge and fulfill, in accordance with their respective terms
(“ Assume ”)”.
11. Ame
