SEPARATION AGREEMENT
dated as of
July 30th, 1997
between
HFS Car Rental, Inc.
and
Avis Rent A Car, Inc.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS..................................................... 2
Section 1.1 Definitions............................... 2
ARTICLE II
TRANSFER OF CAR RENTAL BUSINESS................................. 7
Section 2.1 Transfer of Assets........................ 7
Section 2.2 Assignment and Assumption of
Liabilities........................... 8
Section 2.3 Transfers Not Effected Prior to the
Separation Date....................... 8
Section 2.4 No Representations or Warranties;
Consents.............................. 9
Section 2.5 Conveyancing and Stock Assumption
Instruments........................... 10
ARTICLE III
THE SEPARATION.................................................. 10
Section 3.1 Cooperation Prior to the
Separation............................ 10
Section 3.2 Conduct of Car Rental Business
Pending Separation.................... 11
Section 3.3 Holdings Board Action; Conditions
Precedent to the Separation........... 11
ARTICLE IV
INDEMNIFICATION................................................. 13
Section 4.1 ARAC Indemnification of
Holdings.......................... 13
Section 4.2 Holdings Indemnification of ARAC.......... 13
Section 4.3 Notice and Payment of Claims.............. 14
Section 4.4 Notice and Defense of Third-Party
Claims................................ 14
Section 4.5 Insurance Proceeds........................ 16
Section 4.6 Contribution.............................. 17
Section 4.7 Subrogation............................... 17
Section 4.8 No Third-Party Beneficiaries.............. 17
Section 4.9 Remedies Cumulative....................... 18
Section 4.10 Survival of Indemnities................... 18
Section 4.11 After-Tax Indemnification
Payments.............................. 18
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ARTICLE V
CERTAIN ADDITIONAL MATTERS...................................... 18
Section 5.1 Intercompany Payables/
Receivables........................... 18
Section 5.2 Ancillary Agreements...................... 19
Section 5.3 ARAC Officers and Board of
Directors............................. 19
Section 5.4 ARAC Certificate of Incorporation
and By-laws........................... 19
Section 5.5 Credit Facilities......................... 19
Section 5.6 Insurance Policies and Claims
Administration........................ 19
ARTICLE VI
ACCESS TO INFORMATION........................................... 22
Section 6.1 Provision of Corporate Records............ 22
Section 6.2 Access to Information..................... 22
Section 6.3 Litigation Cooperation.................... 22
Section 6.4 Reimbursement............................. 23
Section 6.5 Retention of Records...................... 23
Section 6.6 Confidentiality........................... 23
Section 6.7 Mail...................................... 24
ARTICLE VII
MISCELLANEOUS................................................... 25
Section 7.1 Termination............................... 25
Section 7.2 Expenses.................................. 25
Section 7.3 Notices................................... 25
Section 7.4 Amendment and Waiver...................... 26
Section 7.5 Counterparts.............................. 26
Section 7.6 Governing Law; Jurisdiction;
Forum................................. 26
Section 7.7 Entire Agreement.......................... 26
Section 7.8 Parties in Interest....................... 27
Section 7.9 Tax Disaffiliation Agreement.............. 27
Section 7.10 Further Assurances and Consents........... 27
Section 7.11 Exhibits and Schedules.................... 28
Section 7.12 Legal Enforceability...................... 28
Section 7.13 Dispute Resolution........................ 28
Section 7.14 Titles and Headings....................... 29
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Schedule 1 - Direct Car Rental Subsidiaries
Schedule 2 - Franchise Agreements
Schedule 3 - Guarantees
Schedule 4 - WizCom Transferred Assets
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SEPARATION AGREEMENT
SEPARATION AGREEMENT ("Agreement") dated as of July 30th, 1997
by and between HFS Car Rental, Inc., a Delaware corporation, and an indirect
wholly owned subsidiary of HFS Incorporated (together with its successors and
permitted assigns, "Holdings"), and Avis Rent A Car, Inc., a Delaware
corporation (together with its successors and permitted assigns, "ARAC").
RECITALS
WHEREAS, ARAC and certain of its subsidiaries currently
conduct the business of owning and managing car rental operations under the
service xxxx and tradename "Avis" (the "Car Rental Business") primarily through
certain subsidiaries of ARAC (the "Direct Car Rental Subsidiaries"), their
respective subsidiaries and joint ventures, all as identified on Schedule 1
hereto (collectively, the "Car Rental Subsidiaries");
WHEREAS, ARAC is presently a direct wholly owned subsidiary of
Holdings established for the purposes of taking title to the capital stock and
associated goodwill of the Direct Car Rental Subsidiaries and certain assets
associated with the Car Rental Business, and assuming certain liabilities
associated with the Car Rental Business, all as specified herein, such that ARAC
will own substantially all of the assets, business and operations currently
conducted by the Car Rental Business other than the System (as defined herein)
and the business of granting franchise rights or licenses with respect to the
operation of Avis car rental locations under the System and the Proprietary
Marks (as defined herein);
WHEREAS, the Board of Directors of Holdings has determined
that it is in the best interest of Holdings and the stockholder of Holdings to
conduct a public offering (the "Separation") of approximately 75% of ARAC Common
Stock; and
WHEREAS, the parties have determined that it is necessary and
desirable to set forth the principal corporate transactions required to effect
the Separation and to set forth other agreements that will govern certain other
matters following such Separation.
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual agreements, provisions and covenants contained in this Agreement, the
parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. As used herein, the following terms
have the following meanings:
"Action" means any claim, suit, arbitration, inquiry,
proceeding or investigation by or before any court, governmental or regulatory
or administrative agency or commission or any other tribunal.
"Affiliate" of any specified person means any other person
that, directly or indirectly, controls, is controlled by or is under direct or
indirect common control with such specified person.
"Agreement" has the meaning specified in the
Recitals.
"Ancillary Agreements" means the Master License Agreement, the
Computer Services Agreement, the Reservation Agreement, the Employee Benefits
and Other Employment Matters Allocation Agreement, the Lease Agreements, the
Cost Sharing Agreement, and the Tax Disaffiliation Agreement.
"ARAC" has the meaning specified in the Recitals.
"ARAC Bylaws" means the bylaws of ARAC in the form filed as an
exhibit to the Form S-1.
"ARAC Certificate" means the restated certificate of
incorporation of ARAC in the form filed as an exhibit to the Form S-1.
"ARAC Common Stock" means the outstanding shares of common
stock, par value $.01 per share, of ARAC.
"ARAC Liabilities" means all of (i) the Liabilities of ARAC
under this Agreement, (ii) the Assumed Liabilities, (iii) the Liabilities of
ARAC arising after the Separation Date and (iv) any liabilities for Taxes for
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which HFS Incorporated is entitled to indemnification from ARAC pursuant to the
Tax Disaffiliation Agreement.
"ARAC Transferred Assets" has the meaning specified in
Section 2.1.
"Assumed Liabilities" means the Liabilities arising directly
or indirectly from the operation of the Car Rental Business or the ownership or
use of assets (including the ARAC Transferred Assets) or other activities in
connection therewith whether arising before, on or after the Separation Date,
including but not limited to any Liabilities arising or in connection with or
related to (i) information contained in or omitted from the Form S-1, (ii) any
Liabilities set forth or referenced in the audited financial statements of ARAC
included in the Form S-1, (iii) all litigation relating to the Car Rental
Business, including any liability arising from the franchise agreements arising
prior to the Separation Date and (iv) the Wizard Note pursuant to the Wizard
Note Assumption and Release Agreement between Wizard Co., and ARAC and Reserve
Claims Management Co. dated as of the date hereof. Notwithstanding the
foregoing, the Assumed Liabilities shall not include (i) operating leases under
which Holdings remains liable, and (ii) liabilities related to alleged acts of
illegal discrimination against customers in the Car Rental Business which are
alleged to have occurred prior to the Separation Date.
"Car Rental Business" has the meaning specified in the first
recital of this Agreement.
"Car Rental Subsidiaries" has the meaning specified in the
first recital of this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission.
"Computer Services Agreement" means the Computer Services
Agreement dated as of the date hereof between WizCom and Rent A Car, pursuant to
which WizCom has granted ARAC rights to use the Wizard System in the conduct of
its car rental business and pursuant to which WizCom receives fees in exchange
therefor as such agreement may be amended
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from time to time.
"Cost Sharing Agreement" means the Cost Sharing Agreement
dated as of the date hereof between WizCom and ARAC, providing for certain
matters relating to the sharing of space and support services, as such agreement
may be amended from time to time.
"Covered Claims" means any claim that is of a type covered by
insurance or self insurance of Holdings as in effect on the Separation Date and
that is a type of claim specified as a covered claim on Schedule 5.6(a).
"Direct Car Rental Subsidiaries" has the meaning specified in
the first recital of this Agreement.
"Employee Benefits Agreement" means the Employment Benefits &
Other Employment Matters Allocation Agreement dated as of the date hereof
between Holdings, HFS and ARAC, providing for certain matters relating to the
allocation of employee benefits and related matters, as such agreement may be
amended from time to time.
"Fleet Financing Program" means the approximately $3.5
billion asset-backed fleet financing program of ARAC being structured jointly
by Chase Securities Inc. and Xxxxxx Brothers Inc.
"Form S-1" means the registration statement on Form S-1 filed
by ARAC with the Commission to effect the registration of the ARAC Common Stock
pursuant to the Securities Act, as such registration statement may be amended
from time to time.
"Franchise Agreements" means all franchise agreements to which
Holdings or any Car Rental Subsidiary is a party, pursuant to which
Holdings(either directly or through any such Car Rental Subsidiary) has granted
franchise rights with respect to the operation of Avis car rental facilties, and
in exchange therefor, receives franchise fees, royalties, license fees and
service fees.
"Guarantees" means the guarantees of Holdings listed on
Schedule 3 hereto.
"HFS" means HFS Incorporated, a Delaware
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corporation.
"Holdings" has the meaning specified in the Recitals.
"Holdings Liabilities" means all of (i) the Liabilities of
Holdings under this Agreement, (ii) the Liabilities of Holdings (other than any
ARAC Liabilities), arising after the Separation Date, (iii) liabilities related
to alleged acts of illegal discrimination against customers in the Car Rental
Business which are alleged to have occurred prior to the Separation Date, and
(iv) any liabilities for Taxes as for which ARAC is entitled to indemnification
from HFS Incorporated pursuant to the Tax Disaffiliation Agreement.
"Holdings Transferred Assets" has the meaning
specified in Section 2.1.
"Lease Agreements" means the Lease Agreements and Sublease
Agreements, as the case may be, between WizCom and Rent A Car providing for the
allocation of the executive and other offices of ARAC and WizCom, as such
agreements may be amended from time to time.
"Liabilities" means any and all claims, debts, liabilities and
obligations, absolute or contingent, matured or not matured, liquidated or
unliquidated, accrued or not accrued, known or unknown, whenever arising,
including all costs and expenses (including reasonable attorney's fees) relating
thereto under any law, rule, regulation, action, order or consent decree of any
Governmental entity or any award of any arbitrator of any kind, and those
arising under any contract, commitment or undertaking.
"Loss" has the meaning specified in Section 4.1.
"Master License Agreement" means the Master License Agreement
dated as of the date hereof between Rent A Car and Holdings pursuant to which
Holdings has granted franchise rights to Rent A Car with respect to the
operation of Avis car rental facilities, and in exchange therefor receives
royalties, license fees and service fees, as amended from time to time.
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"New Credit Facilities" means a revolving credit facility in
the amount of up to $125 million, a term loan facility in the amount of $120
million and a $225 million standby letter of credit facility, each with the
Chase Manhattan Bank, as agent, and the other lenders thereto.
"Rent A Car" means Avis Rent A Car System, Inc., a wholly
owned subsidiary of ARAC.
"Reservation Agreement" means the Reservation Services
Agreement dated as of the date hereof between HFS and Rent A Car pursuant to
which HFS is to provide certain reservation services to Rent A Car, as amended
from time to time.
"Securities Act" means the Securities Act of 1933, as
amended.
"Separation" has the meaning specified in the third recital
of this Agreement.
"Separation Date" means the date determined by the Board of
Directors of Holdings as the date on which the Separation shall be effected,
which is contemplated to occur on or about September 22, 1997.
"System" shall have the meaning given to such term in the
Master License Agreement.
"Tax" or "Taxes" shall have the meaning given to such term in
the Tax Disaffiliation Agreement.
"Tax Disaffiliation Agreement" means the Tax Disaffiliation
Agreement dated as of the date hereof between HFS Incorporated and ARAC
providing for certain tax related matters, as such agreement may be amended from
time to time.
"Wizard Note" means the note, dated October 1996, made by
Wizard Co., Inc. in the principal amount of $194,100,000.
"WizCom" means WizCom International, Ltd., a Delaware
corporation and an indirect wholly owned subsidiary of HFS.
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"WizCom Transferred Assets" means the assets and agreements
identified on Schedule 4 hereto which were intended to be transferred on
October 16, 1996 in connection with the acquisition of ARAC by HFS
Incorporated.
ARTICLE II
TRANSFER OF CAR RENTAL BUSINESS
Section 2.1 Transfer of Assets. (a) Prior to the Separation
Date, Holdings shall take or shall cause to be taken all actions necessary to
cause the transfer, assignment, delivery and conveyance to ARAC of all of
Holdings' and its subsidiaries' rights, title and interest in the assets listed
below (collectively, the "ARAC Transferred Assets"):
(i) the shares of common stock and preferred stock, if any, of
the Direct Car Rental Subsidiaries owned by Holdings as set forth on
Schedule 1 hereto; and
(ii) all books, records and files of, or relating exclusively
to, the Car Rental Business; provided, however, that Holdings shall
retain access to such books, records and files to the extent required
to carry out its obligations under the Master License Agreement.
(b) Prior to the Separation Date, ARAC shall take or shall
cause to be taken all actions necessary to cause the transfer, assignment and
conveyance to Holdings or its subsidiaries or affiliates of all of ARAC's and
its subsidiaries, rights, title and interest in the assets
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listed below (collectively, the "Holdings Transferred Assets"):
(i) the System;
(ii) the Franchise Agreements identified on
Schedule 2 hereto;
(iii) the WizCom Transferred Assets; and
(iv) all books, records and files of, or relating to, the
System, the Franchise Agreements identified on Schedule 2 hereto and
the WizCom Transferred Assets; provided, however, that ARAC shall
retain access to such books, records and files to the extent required
to carry out its obligations under the Master License Agreement.
Section 2.2 Assignment and Assumption of Liabilities. Except
as set forth in one or more of the Ancillary Agreements, from and after the
Separation Date, (i) ARAC shall, and/or shall cause its subsidiaries to, assume,
pay, perform and discharge in due course all of the ARAC Liabilities, and (ii)
Holdings shall, and/or shall cause its subsidiaries to, assume, pay, perform and
discharge in due course all of the Holdings Liabilities.
Section 2.3 Transfers Not Effected Prior to the Separation
Date. To the extent any transfers contemplated by this Article II shall not have
been fully effected prior to the Separation Date, Holdings and ARAC shall
cooperate to effect such transfers as promptly as possible following the
Separation Date. Nothing herein shall be deemed to require the transfer of any
assets or the assumption of any Liabilities that by their terms or by operation
of law cannot be transferred or assumed; provided, however, that Holdings and
ARAC and their respective subsidiaries and Affiliates shall cooperate in seeking
to obtain any necessary consents or approvals for the transfer of all assets and
Liabilities as contemplated by this Article II. In the event that any such
transfer of assets or Liabilities has not been consummated effective as of the
Separation Date, the party retaining such asset or Liability shall thereafter
hold such assets in trust for the use and benefit of the party entitled thereto
(at the expense of the party entitled thereto) and retain such
8
Liability for the account of the party to whom such Liability is to be assumed
pursuant hereto, and take such other actions as may be reasonably required in
order to place the parties, insofar as reasonably possible, in the same position
as would have existed had such asset been transferred, or such Liability been
assumed as contemplated hereby. As and when any such asset or Liability becomes
transferable, such transfer and assumption shall be effected forthwith. Holdings
and ARAC agree that, as of the Separation Date, each party hereto shall be
deemed to have acquired complete and sole beneficial ownership over all of the
assets, together with all of the rights, powers and privileges incidental
thereto, that such party is entitled to acquire pursuant to the terms of this
Agreement.
Section 2.4 No Representations or Warranties; Consents. Each
of the parties hereto understands and agrees that no party hereto is, in this
Agreement or in any other agreement or document contemplated by this Agreement
or otherwise, representing or warranting in any way as to the value or freedom
from encumbrance of, or any other matter concerning, any assets of such party,
or as to the legal sufficiency to convey title to an asset transferred pursuant
to this Agreement or an Ancillary Agreement, including, without limitation, any
conveyancing or assumption instruments. It is also agreed and understood that
there are no warranties whatsoever, express or implied, given by either party to
this Agreement, as to the condition, quality, merchantability or fitness of any
of the assets, businesses or other rights transferred or retained by the
parties, as the case may be, and all such assets, businesses and other rights
shall be "as is, where is" and "with all faults" (provided that the absence of
warranties given by the parties shall not negate the allocation of Liabilities
under this Agreement and shall have no effect on any manufacturers, sellers, or
other third party warranties that are intended to be transferred with such
assets). Similarly, each party hereto understands and agrees that no party
hereto is, in this Agreement or in any other agreement or document contemplated
by this Agreement or otherwise, representing or warranting in any way that the
obtaining of any consents or approvals, the execution and delivery of any
amendatory agreements and the taking of any filings or applications contemplated
by this Agreement will satisfy the provisions
9
of any or all applicable laws or judgments or other instruments or agreements
relating to such assets.
Notwithstanding the foregoing, the parties shall use their
good faith efforts to obtain all consents and approvals, to enter into all
reasonable amendatory agreements and to make all filings and applications
contemplated by this Agreement, and shall take all such further actions as shall
be deemed reasonably necessary to preserve for each of Holdings and ARAC, to the
greatest extent reasonably feasible, consistent with this Agreement, the
economic and operational benefits of the allocation of assets provided for in
this Agreement. In case at any time after the Separation Date any further action
is necessary or desirable to carry out the purposes of this Agreement, the
proper officers and directors of each party to this Agreement shall take all
such necessary or desirable action, provided that any financial cost shall be
borne by the party receiving the benefit of the action.
Section 2.5 Conveyancing and Stock Assumption Instruments. In
connection with the asset and stock transfers and the assumptions of Liabilities
contemplated by this Agreement, the parties shall execute, or cause to be
executed by the appropriate entities, conveyancing and assumption instruments,
including appropriate releases and novations, in such forms as the parties shall
reasonably agree, including deeds as may be appropriate, the assignment of
trademarks and franchise rights, and the assignment and assumption of existing
lease agreements. Any transfer of capital stock shall be effected by means of
delivery of stock certificates and executed stock powers and notation on the
stock record books of the corporations, or other legal entities involved and, to
the extent required by applicable law, by notation on public registries.
ARTICLE III
THE SEPARATION
Section 3.1 Cooperation Prior to the Separation.
(a) Holdings and ARAC have prepared the Form S-1 which sets
forth disclosure concerning ARAC, the Separation and other matters. Holdings
and ARAC shall each use
10
reasonable efforts to cause the Form S-1 to become effective under the
Securities Act.
(b) Holdings and ARAC shall cooperate in preparing, filing
with the Commission and causing to become effective any registration statements
or amendments thereto that are appropriate to reflect the establishment of or
amendments to any employee benefit and other plans contemplated by the Employee
Benefits Agreement.
(c) Holdings and ARAC shall take all such action as may be
necessary or appropriate under the securities or blue sky laws of the states or
other political subdivisions of the United States in connection with the
transactions contemplated by this Agreement.
(d) ARAC has prepared and filed a preliminary listing
application with and will pursue the approval of the application to permit
listing of the ARAC Common Stock on, the New York Stock Exchange.
Section 3.2 Conduct of Car Rental Business
Pending Separation.
(a) Prior to the Separation Date, the Car Rental Business
shall be operated by Holdings and ARAC and its subsidiaries for the sole benefit
of Holdings and its stockholder.
(b) Prior to the Separation Date, ARAC shall have no
operations or conduct any business except as a holding company for Rent A Car
and Reserve Claims Management Co. and in preparation for the consummation of the
transactions contemplated by this Agreement.
Section 3.3 Holdings Board Action; Conditions Precedent to the
Separation. Holdings' Board of Directors shall, in its discretion, establish any
appropriate procedures in connection with the Separation. In no event shall the
Separation occur unless the following conditions shall, unless waived by
Holdings in its sole discretion, have been satisfied:
(a) all necessary regulatory approvals and consents of third
parties shall have been received;
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(b) the Form S-1 shall have been declared effective under the
Securities Act;
(c) the Fleet Financing Program and the New Credit Facilities
shall be available;
(d) ARAC's Board of Directors, as named in the Form S-1 shall
have been elected by Holdings, as sole stockholder of ARAC, and the
ARAC Certificate and ARAC Bylaws shall be in effect;
(e) the ARAC Common Stock shall have been approved for listing
on the New York Stock Exchange, subject to official notice of issuance;
(f) Holdings' Board of Directors shall have formally approved
the Separation and shall not have abandoned, deferred or modified the
Separation at any time prior to the Separation Date;
(g) the transactions contemplated by Sections 2.1 and 2.2 and
Article V shall have been consummated in all material respects and each
of the Ancillary Agreements, in form and substance satisfactory to
Holdings, shall have been executed by the parties thereto and each of
the transactions contemplated by the Ancillary Agreements to be
consummated on or prior to the Separation Date shall have been
consummated;
(h) no preliminary or permanent injunction or other order,
decree or ruling issued by a court of competent jurisdiction or by a
government, regulatory or administrative agency or commission, and no
statute, rule, regulation or executive order promulgated or enacted by
any governmental authority, shall be in effect preventing the
consummation of the Separation; and
(i) Holdings shall have been released from any liabilities,
Guarantees or other obligations with respect to any indebtedness or
otherwise of ARAC or its Subsidiaries;
provided, that the satisfaction of such conditions shall not create any
obligation on the part of Holdings to effect the Separation or in any way limit
Holdings' power of
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termination set forth in Section 7.1 or alter the consequences of any such
termination from those specified in such Section.
ARTICLE IV
INDEMNIFICATION
Section 4.1 ARAC Indemnification of Holdings. Except as
otherwise expressly provided in any of the Ancillary Agreements, from and after
the Separation Date, ARAC and its subsidiaries (the "ARAC Indemnitors") shall
jointly and severally indemnify, defend and hold harmless HFS, Holdings and
their respective subsidiaries, and each of their respective directors, officers,
employees, agents and Affiliates and each of the heirs, executors, successors
and assigns of any of the foregoing (the "Holdings Indemnitees") from and
against any and all damage, loss, liability and expense (including, without
limitation, reasonable expenses of investigation and reasonable attorneys' fees
and expenses in connection with any or all such investigations or any and all
Actions or threatened Actions) (collectively, "Losses") incurred or suffered by
any of the Holdings Indemnitees and arising out of or related to the ARAC
Liabilities. Losses shall include but not be limited to: (i) all amounts
required to be reimbursed to an insurer for insurance proceeds previously paid
by such insurer as a result of a Loss; (ii) all deductible amounts required to
be paid under any insurance policy before coverage attaches for a Loss; (iii)
all amounts paid to third parties in excess of insurance coverage; (iv) all
other amounts not paid by insurers in connection with Losses; and (v) the cost
of any action against insurers to obtain insurance coverage. Notwithstanding the
foregoing, Losses shall not include expenditures made prior to the Separation.
Section 4.2 Holdings Indemnification of ARAC. Except as
otherwise expressly provided in any of the Ancillary Agreements, from and after
the Separation Date, Holdings and its subsidiaries (the "Holdings Indemnitors")
shall indemnify, defend and hold harmless ARAC and its subsidiaries, and each of
their respective directors, officers, employees, agents and Affiliates and each
of the heirs, executors, successors and assigns of any of the foregoing (the
"ARAC Indemnitees") from and against any and
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all Losses incurred or suffered by any of the ARAC Indemnitees and arising out
of or related to the Holdings Liabilities.
Section 4.3 Notice and Payment of Claims. If any Holdings
Indemnitee or ARAC Indemnitee (the "Indemnified Party") determines that it is
or may be entitled to indemnification by the ARAC Indemnitors or the Holdings
Indemnitors, as the case may be (the "Indemnifying Party"), under this Article
IV (other than in connection with any Action subject to Section 4.4), the
Indemnified Party shall deliver to the Indemnifying Party a written notice
specifying, to the extent reasonably practicable, the basis for its claim for
indemnification and the amount for which the Indemnified Party reasonably
believes it is entitled to be indemnified. After the Indemnifying Party shall
have been notified of the amount for which the Indemnified Party seeks
indemnification, the Indemnifying Party shall, within 30 days after receipt of
such notice, either (i) pay the Indemnified Party such amount in cash or other
immediately available funds (or reach agreement with the Indemnified Party as
to a mutually agreeable alternative payment schedule) or (ii) object to the
claim for indemnification or the amount thereof by giving the Indemnified Party
written notice setting forth the grounds therefor. Any objection shall be
resolved in accordance with Section 7.13. If the Indemnifying Party does not
give such notice within such 30-day period, the Indemnifying Party shall be
deemed to have acknowledged its liability for such claim and the Indemnified
Party may exercise any and all of its rights under applicable law to collect
such amount.
Section 4.4 Notice and Defense of Third-Party Claims.
Promptly following the earlier of (A) receipt of written notice of the
commencement by a third party of any Action against or otherwise involving any
Indemnified Party or (B) receipt of written information from a third party
alleging the existence of a claim against an Indemnified Party, in either case,
with respect to which indemnification may be sought pursuant to this Agreement
(a "Third-Party Claim"), the Indemnified Party shall give the Indemnifying
Party prompt written notice thereof. The failure of the Indemnified Party to
give notice as provided in this Section 4.4 shall not relieve the Indemnifying
Party of its obligations under this agreement, except to the extent that the
Indemnifying Party is prejudiced by
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such failure to give notice. Such notice shall describe the Third-Party Claim in
reasonable detail and shall indicate the amount of the Loss that has been or
will be sustained by the Indemnified Party.
(a) Within 30 days after receipt of such notice, the Indemnifying Party
may by giving written notice thereof to the Indemnified Party, (i) acknowledge
liability for and at its option elect to assume the defense of such Third-Party
Claim at its sole cost and expense or (ii) object to the claim of
indemnification for such Third-Party Claim setting forth the grounds therefor.
Any objection shall be resolved in accordance with Section 7.13. If the
Indemnifying Party does not within such 30-day period give the Indemnified Party
such notice, the Indemnifying Party shall be claimed to have acknowledged its
liability for such Third-Party Claim.
(b) Any defense of a Third-Party Claim as to which the Indemnifying
Party has elected to assume the defense shall be conducted by attorneys employed
by the Indemnifying Party and reasonably satisfactory to Holdings in the case of
Holdings Indemnitees and ARAC in the case of ARAC Indemnitees. The Indemnified
Party shall have the right to participate in such proceedings and to be
represented by attorneys of its own choosing at the Indemnified Party's sole
cost and expense; provided that if the defendants or parties against which
relief is sought in any such claim include both the Indemnifying Party and one
or more Indemnified Parties and, in the reasonable judgment of Holdings in the
case of Holdings Indemnitees and ARAC in the case of ARAC Indemnitees, a
conflict of interest between such Indemnified Parties and such Indemnifying
Party exists in respect of such claim, such Indemnified Parties shall have the
right to employ one firm of counsel selected by Holdings for Holdings
Indemnities or ARAC for ARAC Indemnities and in that event the reasonable fees
and expenses of such separate counsel (but not more than one separate counsel
reasonably satisfactory to the Indemnifying Party) shall be paid by such
Indemnifying Party.
(c) If the Indemnifying Party assumes the defense of a Third-Party
Claim, the Indemnifying Party may settle or compromise the claim without the
prior written consent of the Indemnified Party; provided that without the prior
written consent of Holdings in the case of Holdings
15
Indemnitees and ARAC in the case of ARAC Indemnitees, the Indemnifying Party may
not agree to any such settlement unless as a condition to such settlement the
Indemnified Party receives a written release from any and all liability relating
to such Third-Party Claim and such settlement or compromise does not include any
remedy or relief to be applied to or against the Indemnified Party, other than
monetary damages for which the Indemnifying Party shall be responsible
hereunder.
(d) If the Indemnifying Party does not assume the defense of a
Third-Party Claim for which it has acknowledged liability for indemnification
under this Article IV, Holdings in the case of Holdings Indemnitees and ARAC in
the case of ARAC Indemnitees may pursue the defense of such Third-Party Claim
and choose one firm of counsel in connection therewith. The Indemnifying Party
is required to reimburse Holdings or ARAC, as the case may be, on a current
basis for its reasonable expenses of investigation, reasonable attorney's fees
and reasonable out-of-pocket expenses incurred by Holdings in the case of
Holdings Indemnitees and ARAC in the case of ARAC Indemnitees in defending
against such Third-Party Claim and the Indemnifying Party shall be bound by the
result obtained with respect thereto, provided that the Indemnifying Party shall
not be liable for any settlement effected without the consent of the
Indemnifying Party, which consent shall not be unreasonably withheld.
(e) The Indemnifying Party shall pay to the Indemnified Party in cash
the amount for which the Indemnified Party is entitled to be indemnified (if
any) no later than the later of (i) the date on which the Indemnified Party
makes any payment in satisfaction (partial or otherwise) of the Third-Party
Claim or (ii) the date on which such Indemnifying Party's objection, if any, to
its responsibility for indemnification under this Article IV has been resolved
pursuant to section 7.13 or by settlement or compromise or the final
nonappealable judgment of a court of competent jurisdiction.
Section 4.5 Insurance Proceeds. The amount that any
Indemnifying Party is or may be required to pay to any Indemnified Party
pursuant to this Article IV shall be reduced (including, without limitation,
retroactively) by any insurance proceeds or other amounts actually recovered by
or on behalf of such Indemnified Parties in reduction of
16
the related Loss. If an Indemnified Party shall have received the payment
required by this Agreement from an Indemnifying Party in respect of a Loss and
shall subsequently actually receive insurance proceeds, or other amounts in
respect of such Loss as specified above, then such Indemnified Party shall pay
to such Indemnifying Party a sum equal to the amount of such insurance proceeds
or other amounts actually received after deducting therefrom all of the
Indemnifying Party's costs and expenses associated with such Loss.
Section 4.6 Contribution. If the indemnification provided for
in this Article IV is unavailable to an Indemnified Party in respect of any Loss
arising out of or related to information contained in or omitted from the Form
S-1, then the ARAC Indemnitees, in lieu of indemnifying the Holdings
Indemnitees, shall contribute to the amount paid or payable by the Holdings
Indemnitees as a result of such Loss in such proportion as is appropriate to
reflect the relative fault of ARAC, on the one hand, and Holdings, on the other
hand, in connection with the statements or omissions which resulted in such
Loss. The relative fault of the ARAC Indemnitees on the one hand and of the
Holdings Indemnitees on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information concerning ARAC on the one hand or Holdings on the other hand.
Section 4.7 Subrogation. In the event of payment by an
Indemnifying Party to any Indemnified Party in connection with any Third-Party
Claim, such Indemnifying Party shall be subrogated to and shall stand in the
first place of such Indemnified Party as to any events or circumstances in
respect of which such Indemnified Party may have any right or claim relating to
such Third-Party Claim. Such Indemnified Party shall cooperate with such
Indemnifying Party in a reasonable manner, and at the cost and expense of such
Indemnifying Party, in prosecuting any subrogated right or claim.
Section 4.8 No Third-Party Beneficiaries. This Article IV
shall inure to the benefit of, and be enforceable by Holdings, the Holdings
Indemnitees, ARAC and the ARAC Indemnitees and their respective successors and
permitted assigns. The indemnification provided for by
17
this Article IV shall not inure to the benefit of any other third party or
parties and shall not relieve any insurer who would otherwise be obligated to
pay any claim of the responsibility with respect thereto or, solely by virtue of
the indemnification provisions hereof, provide any subrogation rights with
respect thereto and each party agrees to waive such rights against the other to
the fullest extent permitted.
Section 4.9 Remedies Cumulative. The remedies provided in this
Article IV shall be cumulative and shall not preclude assertion by any
Indemnified Party of any other rights or the seeking of any and all other
remedies against an Indemnifying Party. The procedures set forth in this Article
IV, however, shall be the exclusive procedures governing any indemnity action
brought under this Article IV or otherwise relating to Losses.
Section 4.10 Survival of Indemnities. The obligations of each
of Holdings and ARAC under this Article IV shall survive the sale or other
transfer by it of any assets or businesses or the assignment by it of any
Liabilities, with respect to any Loss of the other related to such assets,
businesses or Liabilities.
Section 4.11 After-Tax Indemnification Payments. Except as
otherwise expressly provided herein or in an Ancillary Agreement,
indemnification payments made by either party under this Article shall give
effect to, and be reduced by the value of, any and all applicable deductions,
losses, credits, offsets or other items for Federal, state or other tax purposes
attributable to the payment of the indemnified liability by the Indemnified
Party.
ARTICLE V
CERTAIN ADDITIONAL MATTERS
Section 5.1 Intercompany Payables/Receivables. All
intercompany amounts payable or receivable by Holdings or ARAC shall be settled
on or before the Separation Date, other than amounts payable or receivable
pursuant to the Ancillary Agreements.
18
Section 5.2 Ancillary Agreements. On the date hereof,
Holdings and ARAC shall execute and deliver the Ancillary Agreements.
Section 5.3 ARAC Officers and Board of Directors. On or prior
to the Separation Date, Holdings shall take and shall cause ARAC to take all
actions necessary to appoint as officers and directors of ARAC those persons
named in the Form S-1 to constitute the officers and directors of ARAC on the
Separation Date.
Section 5.4 ARAC Certificate of Incorporation and By-laws.
Prior to the Separation Date, Holdings shall take all action necessary to cause
the certificate of incorporation and by-laws of ARAC to be amended and restated
substantially in the form attached to the Form S-1 as exhibits thereto.
Section 5.5 Credit Facilities. (a) Prior to the Separation
Date, Holdings and ARAC shall take all necessary action to replace the existing
credit facilities and fleet financing arrangements so as to release Holdings
from any liability or obligation with respect thereto from and after the
Separation Date.
(b) Prior to the Separation Date, Holdings and ARAC shall take
all necessary action to obtain the Fleet Financing Program and the New Credit
Facilities.
(c) Prior to the Separation Date, ARAC and its subsidiaries
shall take all necessary action to release Holdings from any liabilities,
Guarantees, or other obligations with respect to indebtedness or other
obligations of ARAC or its subsidiaries, other than the obligations under the
Ancillary Agreements.
Section 5.6 Insurance Policies and Claims
Administration.
(a) Maintenance of Insurance Coverage Prior to Separation
Date. Holdings and ARAC shall use reasonable efforts to maintain in full force
and effect at all times up to and including the Separation Date its current
property and casualty insurance programs, including, without limitation, primary
and excess general liability, automobile, workers' compensation, property and
crime insurance policies (collectively, the "Policies" and
19
individually, a "Policy"). Holdings and its subsidiaries shall retain with
respect to any Covered Claims as set forth on Schedule 5.6(a) relating to
periods prior to the Separation Date all of their respective rights, benefits
and privileges, if any, under such Policies. To the extent not already provided
for by the terms of a Policy, Holdings shall use reasonable efforts to cause
ARAC and its subsidiaries, as appropriate, to be named as additional insureds
under such Policy in respect of Covered Claims arising or relating to periods
prior to the Separation Date; provided, however, that nothing contain herein
shall be construed to require Holdings or any of its subsidiaries to pay any
additional premium or other charges in respect to, or waive or otherwise limit
any of its rights, benefits or privileges under, any such Policy to effect the
naming of ARAC and its subsidiaries as such additional insureds.
(b) ARAC Responsible for Establishing Insurance Coverage On
and After Separation Date. Commencing on and as of the Separation Date, ARAC and
each of its subsidiaries shall be responsible for establishing and maintaining
its own separate insurance programs (including, without limitation, primary and
excess general liability, automobile, workers, compensation, property, director
and officer liability, fire, crime, surety and other similar insurance policies)
for activities and claims relating to any period on or after the Separation Date
involving ARAC or any of its subsidiaries. Notwithstanding any other agreement
or understanding to the contrary, except as set forth in Section 5.6(c) with
respect to claims administration and financial administration of the Policies,
neither Holdings nor any of its subsidiaries shall have any responsibility for
or obligation to ARAC or its subsidiaries relating to liability and casualty
insurance matters for any period, whether prior to, at or after the Separation
Date.
(c) Administration and Procedure. (i) ARAC or a subsidiary of
ARAC, as appropriate, shall be responsible for the claims administration and
financial administration of all Policies for Covered Claims relating to the
assets, ownership or operation prior to the Separation Date of the Car Rental
Business; provided, however, that such retention by ARAC of the Policies and the
responsibility for claims administration and financial administration of the
Policies are in no way intended to limit, inhibit or preclude any right to
insurance coverage for any Covered Claims under
20
the Policies by Holdings. ARAC or a subsidiary thereof, as appropriate, shall be
responsible for all administrative and financial matters relating to insurance
policies established and maintained by ARAC and its subsidiaries for claims
relating to any period on or after the Separation Date involving ARAC or any of
its subsidiaries.
(ii) ARAC shall notify Holdings of any Covered Claim relating to ARAC or a
subsidiary thereof under one or more of the Policies relating to a period prior
to the Separation Date, and ARAC agrees to cooperate and coordinate with
Holdings concerning any strategy Holdings may reasonably elect to pursue to
secure coverage and payment for such Covered Claim by the appropriate insurance
carrier. Notwithstanding anything contained herein, in any other agreement or
applicable Policy or any understanding to the contrary, ARAC or an appropriate
subsidiary thereof assumes responsibility for, and shall pay to the appropriate
insurance carriers or otherwise, any premiums, retrospectively-rated premiums,
defense costs, indemnity payments, deductibles, retentions or other charges, as
appropriate (collectively, "Insurance Charges"), whenever arising, which shall
become due and payable under the terms and conditions of any applicable Policy
in respect of any liabilities, losses, claims, actions or occurrences, whenever
arising or becoming known, involving or relating to any of the assets,
businesses, operations or liabilities of ARAC or any of its subsidiaries, to the
extent set forth in Section 5.6(a) and any such charges that relate to the
period after the Separation Date. To the extent that the terms of any applicable
Policy provide that Holdings or a subsidiary thereof, as appropriate, shall have
an obligation to pay or guarantee the payment of any Insurance Charges, Holdings
or such subsidiary shall be entitled to demand that ARAC or a subsidiary thereof
make such payment directly to the person or entity entitled thereto. In
connection with any such demand, Holdings shall submit to ARAC or a subsidiary
thereof a copy of any invoice received by Holdings or a subsidiary pertaining to
such Insurance Charges, together with appropriate supporting documentation, if
available. In the event that ARAC or its subsidiary fails to pay any Insurance
Charges when due and payable, whether at the request of the party entitled to
payment or upon demand by Holdings or a subsidiary of Holdings, Holdings or a
subsidiary of Holdings may (but
21
shall not be required to) pay such Insurance Charges for and on behalf of ARAC
or its subsidiary and, thereafter, ARAC or its subsidiary shall forthwith
reimburse Holdings or such subsidiary of Holdings for such payment.
ARTICLE VI
ACCESS TO INFORMATION
Section 6.1 Provision of Corporate Records. Each of Holdings
and ARAC shall arrange as soon as practicable following the Separation Date for
the provision to the other of existing corporate governance documents (e.g.
minute books, stock registers, stock certificates, documents of title, etc.) in
its possession relating to the other or to its business and affairs.
Section 6.2 Access to Information. From and after the
Separation Date, each of Holdings and ARAC shall afford the other, including its
accountants, counsel and other designated representatives, reasonable access
(including using reasonable efforts to give access to persons or firms
possessing information) and duplicating rights during normal business hours to
all records, books, contracts, instruments, computer data and other data and
information in such party's possession relating to the business and affairs of
the other (other than data and information subject to an attorney/client or
other privilege), insofar as such access is reasonably required by the other
party including, without limitation, for audit, accounting and litigation
purposes, as well as for purposes of fulfilling disclosure and reporting
obligations.
Section 6.3 Litigation Cooperation. Each of Holdings and ARAC
shall use reasonable efforts to make available to the other, upon written
request, its officers, directors, employees and agents as witnesses to the
extent that such persons may reasonably be required in connection with any
legal, administrative or other proceedings arising out of the business of the
other prior to the Separation Date in which the requesting party may from time
to time be involved.
22
Section 6.4 Reimbursement. Each party providing witnesses
under Section 6.3 to the other shall be entitled to receive from the recipient,
upon the presentation of invoices therefor, payment for all out-of-pocket costs
and expenses as may be reasonably incurred in providing such witnesses.
Section 6.5 Retention of Records. Except as otherwise required
by law or agreed to in writing, each party shall, and shall cause each of its
respective subsidiaries to, retain all information relating to the other party's
business in accordance with the past practice of such party. Notwithstanding the
foregoing, except as provided in the Tax Disaffiliation Agreement, any party may
destroy or otherwise dispose of any information at any time, providing that,
prior to such destruction or disposal, (a) such party shall provide no less than
30 days prior written notice to the other party, specifying the information
proposed to be destroyed or disposed of and (b) if the recipient of such notice
shall request in writing prior to the scheduled date for such destruction or
disposal that any of the information proposed to be destroyed or disposed of be
delivered to such requesting party, the party proposing the destruction or
disposal shall promptly arrange for the delivery of such of the information as
was requested at the expense of the requesting party.
Section 6.6 Confidentiality. Each party shall hold and shall
cause its directors, officers, employees, agents, consultants and advisors to
hold, in strict confidence, unless compelled to disclose by judicial or
administrative process or, in the opinion of its counsel, by other requirements
of law, all information (other than any such information relating solely to the
business or affairs of such party) concerning the other party (except to the
extent that such information can be shown to have been (a) in the public domain
through no fault of such party, (b) later lawfully acquired on a
non-confidential basis from other sources by the party to which it was
furnished, (c) information that typically would have been disclosed by Holdings
or ARAC, as the case may be, in the ordinary course of business consistent with
past practice or (d) information that may be disclosed pursuant to any Ancillary
Agreement). Neither party shall release or disclose any such information to any
other person, except
23
its auditors, attorneys, financial advisors, bankers and other consultants and
advisors who shall be advised of and agree to comply with the provisions of this
Section 6.6; provided, that with respect to the matters identified on Schedule
6.6 hereof, no information may be disclosed by either party under any
circumstance without the prior written consent of the other party hereto.
Section 6.7 Mail. After the Separation Date, each of Holdings
and ARAC may receive mail, telegrams, packages and other communications property
belonging to the other. Accordingly, at all times after the Separation Date,
each of Holdings and ARAC authorizes the other to receive and open all mail,
telegrams, packages and other communications received by it and not
unambiguously intended for the other party or any of the other party's officers
or directors specifically in their capacities as such, and to retain the same to
the extent that they relate to the business of the receiving party or, to the
extent that they do not relate to the business of the receiving party and do
relate to the business of the other party, or to the extent that they relate to
both businesses, the receiving party shall promptly contact the other party by
telephone for delivery instructions and such mail, telegrams, packages or other
communications (or, in case the same relate to both businesses, copies thereof)
shall promptly be forwarded to the other party in accordance with its delivery
instructions. The foregoing provisions of this Section 6.7 shall constitute full
authorization to the postal authorities, all telegraph and courier companies and
all other persons to make deliveries to Holdings or ARAC, as the case may be,
addressed to either of them or to any of their officers or directors
specifically in their capacities as such. The provisions of this Section 6.7 are
not intended to and shall not be deemed to constitute an authorization by either
Holdings or ARAC to permit the other to accept service of process on its behalf,
and neither party is or shall be deemed to be the agent of the other for service
of process purposes or for any other purpose.
24
ARTICLE VII
MISCELLANEOUS
Section 7.1 Termination. This Agreement may be terminated and
the Separation deferred, modified or abandoned at any time prior to the
Separation Date by and in the sole discretion of the Board of Directors of
Holdings without the approval of ARAC. In the event of such termination, no
party shall have any liability to any other party pursuant to this Agreement.
Section 7.2 Expenses. Except as specifically provided in this
Agreement or in an Ancillary Agreement, all costs and expenses incurred in
connection with the interpretation, execution, delivery and implementation of
this Agreement and with the consummation of the transactions contemplated by
this Agreement shall be paid by the party incurring the expense. The
determination of who has incurred an expense shall be made by the Chief
Financial Officer of Holdings or HFS, which determination shall be binding and
final upon each of the parties hereto and not subject to further review. In
addition, it is understood and agreed that ARAC shall pay the legal, filing,
accounting, printing and other out-of-pocket expenditures in connection with (i)
the preparation, printing and filing of the Form S-1, (ii) obtaining the Fleet
Financing Program and (iii) obtaining the New Credit Facilities.
Section 7.3 Notices. All notices and communications under this
Agreement shall be in writing and any communication or delivery hereunder shall
be deemed to have been duly given when received addressed as follows:
If to Holdings, to:
HFS Car Rental, Inc.
c/o HFS Incorporated
0 Xxxxxx Xxx
Xxxxxxxxxx, XX 00000
Attn: General Counsel
Telecopy Number: (000) 000-0000
25
If to ARAC, to:
Avis Rent A Car, Inc.
000 Xxx Xxxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
Attn: General Counsel
Telecopy Number: (000) 000-0000
Any party may, by written notice so delivered to the other parties, change the
address to which delivery of any notice shall thereafter be made.
Section 7.4 Amendment and Waiver. This Agreement may not be
altered or amended, nor may rights hereunder be waived, except by an instrument
in writing executed by the party or parties to be charged with such amendment or
waiver. No waiver of any terms, provision or condition of or failure to exercise
or delay in exercising any rights or remedies under this Agreement, in any one
or more instances shall be deemed to be, or construed as, a further or
continuing waiver of any such term, provision, condition, right or remedy or as
a waiver of any other term, provision or condition of this Agreement.
Section 7.5 Counterparts. This Agreement may be executed in
one or more counterparts each of which shall be deemed an original instrument,
but all of which together shall constitute but one and the same Agreement.
Section 7.6 Governing Law; Jurisdiction; Forum. This Agreement
shall be construed in accordance with, and governed by, the laws of the State of
New York, without regard to the conflicts of law rules of such state. Each party
hereto expressly submits and consents in advance to the non-exclusive
jurisdiction of the State and Federal courts sitting in the City of New York,
Borough of Manhattan, State of New York, in any action to enforce an arbitration
agreement or award, or action seeking a pre-arbitral injunction, pre-arbitral
attachment or other order in aid of arbitration, and hereby waives any claim
that any such state or federal court is an inconvenient or improper forum.
Section 7.7 Entire Agreement. This Agreement including the
schedules hereto, together with the Ancillary Agreements, constitute the entire
understanding of the parties hereto with respect to the subject matter hereof,
26
superseding all negotiations, prior discussions and prior agreements and
understandings relating to such subject matter. To the extent that the
provisions of this Agreement are inconsistent with the provisions of any
Ancillary Agreements, the provisions of such Ancillary Agreement shall prevail.
Section 7.8 Parties in Interest. Neither of the parties hereto
may assign its rights or delegate any of its duties under this Agreement without
the prior written consent of each other party. This Agreement shall be binding
upon, and shall inure to the benefit of, the parties hereto and their respective
successors and permitted assigns. Nothing contained in this Agreement, express
or implied, is intended to confer any benefits, rights or remedies upon any
person or entity other than Holdings and ARAC, and Holdings Indemnitees and ARAC
Indemnitees under Article IV hereof.
Section 7.9 Tax Disaffiliation Agreement. Notwithstanding any
other provision of this Agreement to the contrary, any and all matters relating
to Taxes shall be exclusively governed by the Tax Disaffiliation Agreement.
Section 7.10 Further Assurances and Consents. In addition to
the actions specifically provided for elsewhere in this Agreement, each of the
parties hereto will use its reasonable efforts to (i) execute and deliver such
further instruments and documents and take such other actions as any other party
may reasonably request in order to effectuate the purposes of this Agreement and
to carry out the terms hereof and (ii) take, or cause to be taken, all actions,
and to do, or cause to be done, all things, reasonably necessary, proper or
advisable under applicable laws, regulations and agreements or otherwise to
consummate and make effective the transactions contemplated by this Agreement,
including, without limitation, using its reasonable efforts to obtain any
consents and approvals and to make any filings and applications necessary or
desirable in order to consummate the transactions contemplated by this
Agreement; provided that no party hereto shall be obligated to pay any
consideration therefor (except for filing fees and other similar charges) to any
third party from whom such consents, approvals and amendments are
27
requested or to take any action or omit to take any action if the taking of or
the omission to take such action would be unreasonably burdensome to the party
or its business.
Section 7.11 Exhibits and Schedules. The Exhibits and
Schedules shall be construed with and as an integral part of this Agreement to
the same extent as if the same had been set forth verbatim herein.
Section 7.12 Legal Enforceability. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. Without prejudice
to any rights or remedies otherwise available to any party hereto, each party
hereto acknowledges that damages would be an inadequate remedy for any breach of
the provisions of this Agreement and agrees that the obligations of the parties
hereunder shall be specifically enforceable.
Section 7.13 Dispute Resolution. (a) Resolution of any and all
disputes arising out of or relating to this Agreement or any of the Ancillary
Agreements, whether based on contract, tort, statute or otherwise, including,
but not limited to, disputes over arbitrability (collectively, "Disputes") shall
be exclusively governed by and settled in accordance with the provisions of this
Section 7.13; provided, however, that nothing contained herein shall preclude
either party from seeking or obtaining (a) injunctive relief or (b) equitable or
other judicial relief to enforce the provisions hereof or to preserve the status
quo pending resolution of Disputes hereunder.
(b) Holdings or ARAC (each a "Party") may commence proceedings
hereunder by delivering a written notice to the other Party providing a
reasonable description of the Dispute to the other (the "Demand").
(c) Within 10 days following receipt by a Party of a Demand,
the Dispute shall be referred to representatives of the parties for resolution,
each party being represented by a senior executive officer who has no direct
operational responsibility for the matters
28
contemplated by this Agreement (the "Representatives"). The Representatives
shall promptly meet in a good faith effort to resolve the Dispute. If the
Representatives do not agree upon a resolution within thirty (30) calendar days
after receipt by a Party of a Demand, each of Holdings and ARAC shall be free to
exercise the remedies available to them under Section 7.13(d).
(d) The Parties hereby agree to submit all Disputes not
resolved by negotiation pursuant to Section 7.13(c) for resolution by
arbitration under the terms hereof, which arbitration shall be final, conclusive
and binding upon the parties, their successors and assigns. Except as expressly
provided otherwise in this Agreement, the arbitration shall be conducted in New
York, New York by three arbitrators (the "Panel") in accordance with the
JAMS/Endispute Comprehensive Arbitration Rules and Procedures then in effect as
amended herein. The arbitration shall be governed by the United States
Arbitration Act, 9 U.S.C. ss. 1, et seq. Notwithstanding the foregoing (a) each
Party shall have the right to examine the books and records of the other Party
that are reasonably related to the Dispute; (b) each Party shall provide to the
other, reasonably in advance of any hearing, copies of all documents which a
Party intends to present in such hearing; (c) each party shall be allowed to
conduct reasonable discovery through written requests for information, document
requests, requests for stipulation of fact, and depositions, the nature and
extent of which discovery shall be determined by the Panel, taking into account
the needs of the Parties and the desirability of making discovery expeditious
and cost effective. The Panel shall complete all hearings not later than ninety
(90) days after its appointment. The award shall be in writing and shall specify
the facts and law on which it is based. The arbitrators shall not be empowered
to award to any party any consequential damages, lost profits or punitive
damages in connection with any Dispute and each party hereby irrevocably waives
any right to recover such damages. Judgment upon any award may be entered in any
court having jurisdiction thereof.
Section 7.14 Titles and Headings. Titles and headings to
sections herein are inserted for convenience of reference only and are not
intended to be a part of or to affect the meaning or interpretation of this
Agreement.
29
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement on the day and year first above written.
HFS CAR RENTAL, INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------
Name:
Title:
AVIS RENT A CAR, INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------
Name:
Title:
30
Schedule 1
AVIS RENT A CAR, INC.
SUBSIDIARIES
Avis Rent A Car, Inc. f/k/a Delaware
Rental Car System Holdings, Inc.
Subsidiaries (100% owned):
Avis Rent A Car System, Inc. Delaware
Subsidiaries (100% owned):
1. Avis International, Ltd. Delaware
Subsidiaries (100% owned):
( a ) Avis Management Pty. Limited Australia
Subsidiary (100% owned):
-We Try Harder Pty. Limited Australia
-Chaconne Pty. Limited Australia
-W.T.H. Pty. Limited Australia
Subsidiaries:
-Auto Accident Consultants Pty. Australia
Limited (100% owned)
-W.T.H. Fleet Leasing Pty. Limited Australia
(ownership shared with parent)
-Avis Services Pty. Ltd. Australia
(100% owned)
( b ) Avis Management Services, Limited Delaware
( c ) Arbitra S.A. Argentina
( d ) Avis Caribbean, Limited Delaware
Subsidiaries (100% owned):
-Avis Rent A Car de Puerto Rico, Inc. Puerto Rico
-Virgin Islands Enterprises, Inc. Virgin Islands
( e ) Avis Asia and Pacific, Limited Delaware
Subsidiary (100% owned)
-Avis Rent A Car Limited New Zealand
subsidiary (100% owned)
- Altra Auto Rental Limited New Zealand
( f ) WTH Canada, Inc. Canada
Subsidiary (100% owned):
-Aviscar Inc. Canada
subsidiary ( 100% owned)
- Avis Services Canada, Inc. Canada
( g ) Avis Rent A Car (Hong Kong) Ltd. Hong Kong
Subsidiaries (less than 100% owned):
National Car Rentals (Private) Limited
(29% owned)* Singapore
Sistem Sewa Kereta Malaysia Sdn. Bhd.
(25% owned)* Malaysia
-----------
*By agreement with Avis Europe Limited ("AEL"), shares in these
companies will be transferred to AEL as soon as the other shareholders
consent to such transfer.
32
Avis International, Ltd.
Subsidiaries (less than 100% owned):
West Indies Car Rental Limited (49% owned) Jamaica
2. Avis Enterprises, Inc. f/k/a Avis Leasing Corporation Delaware
Subsidiaries (100% owned)
( a ) Avis Service, Inc. Delaware
( b ) Avis Lube, Inc. Delaware
3. Pathfinder Insurance Company Colorado
4. PF Claims Management, Ltd. Delaware
5. Avis Leasing Corporation Delaware
6. Zam, Inc. West Virginia
7. Global Excess & Reinsurance Ltd. Bermuda
8. Constellation Reinsurance Company Limited Barbados
9. We Try Harder Japan Co., Ltd. Japan
10. Servicios Avis S.A. Mexico
11. Avis Rent A Car Limited Fiji
12. Avis Rent A Car Sdn. Bhd. Malaysia
13. Avis Rent A Car Sdn. Bhd. Singapore
14. Avis Rent A Car Limited Vanuatu
33
Avis Rent A Car, Inc. f/k/a
Rental Car System Holdings, Inc.
Subsidiaries (less than 100% owned):
Reserve Claims Management Co. f/k/a Avis Leasing Delaware
International, Ltd.
00
XXXXX XXXXXXXX
Xxxxxx Xxxx Xxxxxx Xxxxxxxx Sdn. Bhd.
00 Xxxxx Xxxxxx Xxxxxx
00000 Xxxxx Xxxxxx
Malaysia
Capitalization: Authorized: 5,000,000
Issued: 2,000,000
Shareholders: Avis Rent A Car (Hong Kong) Ltd. 25%
Melewar Leisure Sdn. Bhd. 75%
West Indies Car Rental Ltd.
0 Xxxxxx Xxxx
Xxxxxxxx 0
Xxxxxxx, Xxxx Xxxxxx
Capitalization Authorized: 100,000 shares> at $0.10
Issued: 100,000 shares> Jamaican
Shareholders: Hilsons Limited: 50,000
Avis International, Ltd. 49,000
Xxxxx Xxxxxx Mais, Esq. 1,000
National Car Rentals (Private) Limited
000 Xxxxx Xxxxxxx Xxxx
Xxxxxxxxx 0409
Capitalization Authorized: 900,000 ordinary shares at $1.00
Issued: 810,000
Shareholders: Avis Rent A Car (Hong Kong) Ltd. 234,000
Goodwood Hotels Corporation (Pte) Ltd. 180,000
Xxxxxx Xxx Pte. Ltd. 63,000
Straits Steamship Co. Ltd. 333,000
35
Schedule 2
TERRITORIES OF OTHER SYSTEM LICENSEES
AVIS RENT A CAR SYSTEM, INC.
FRANCHISED LICENSEE LOCATIONS
REVISED 7/1/97
"1955" Type Franchise Agreements 292
"1992" Type Franchise Agreements 17
Letter Agreements (1955) Type 3
Agency Agreements (1955) Type 1
"1955" Type Truck Franchise Agreements 000
XXXX-XXXXX XXXX XXXX
0 Xxxxxxxxxx, XX Sep-59 B
Anniston, AL Nov-69 C
Tuscaloosa, AL Mar-66 B
Columbus, GA Xxx-00 X
0 Xxxxxx, XX Xxx-00 X
0 Xxxxxxxxxx, XX Apr-56 B
Decatur, AL Feb-64 B
Florence, AL Xxx-00 X
0 Xxxxxx, XX May-63 C
Point Clear, AL Xxx-00 X
0 Xxxxxxxxxx, XX Oct-51 B
Columbia, SC Oct-59 B
Camden, SC Sep-61 B
Sumter/Selma, AL Xxx-00 X
00
Xxxxxxxxxx, XX Feb-79 C
Macon, GA May-96 New Agreement
Greenwood, SC May-96 New Agreement
6 Little Rock, AR Xxx-00 X
Xx Xxxxxx, XX May-68 B
Fayetteville, AR Oct-70 C
Fort Xxxxx, AR Sep-64 B
Harrison, AR Jun-75 C
Hot Springs, AR Jan-62 B
Jonesboro, AR Dec-61 C
Pine Bluff, AR Xxx-00 X
Xxxxxxxxx, XX Xxx-00 X
Xxxxxxxxx, XX May-72 C
Savannah, GA Jan-87 B
Midland, TX Dec-90 B
Abilene, TX Dec-90 B
San Angelo, TX Xxx-00 X
Xxxxxx, XX Xxx-00 X
Xxxxxx, XX Xxx-00 X
0 Xxx Xxxxxxx, XX Jan-53 C
Arcadia, CA Oct-79 C
Alhambra, CA Oct-79 C
Azusa, CA Oct-79 C
Bakersfield, CA Oct-78 B
Xxxxxxx Xxxxx, XX Xxx-00 X
Xxxxxx, XX Xxx-00 X
00
Xxxxxxx, XX Jan-56 C
Coronado, CA May-56 C
Culver City, CA Jun-61 C
Disneyland, CA Aug-61 X
Xxxxxxxx, XX Xxx-00 X
Xxxxxxxx, XX Oct-79 X
Xxxxxxxx, XX Xxx-00 X
Xxxxxxxxx, XX Jan-56 C
Lennox, CA Dec-77 C
Long Beach, CA Jan-56 C
Marina Del Rey, CA Xxx-00 X
Xxxxxxxx, XX Xxx-00 X
Xxxxxxxxxx, XX Oct-79 C
Monterey Parks, CA Oct-79 X
Xxxxxxxxx, XX Xxx-00 X
Xxxxxx, XX Xxx-00 X
Xxxx Xxxxxx, XX Xxx-00 X
Xxxx Xxxxxxx, XX May-56 X
Xxxxxxxx, XX Xxx-00 X
Xxxx Xxxxxx, XX Oct-79 C
Ridgecrest, CA Sep-72 B%
Xxx Xxxxx, Xx Xxx-00 X
Xxxxx Xxxxxxx, XX Jan-56 C
Santa Monica, CA Xxx-00 X
Xxxxx Xxxx, XX Jun-61 C
Thousand Oaks, CA Jan-75 C
00
Xxx Xxxx, XX Xxx-00 X
Xxxxxxx, XX Mar-61 X
Xxxxxx, XX Xxx-00 X
Xxxxxxxxxxx, XX Sep-72 B
West Covina, CA Oct-79 X
Xxxxxxxx, XX Xxx-00 X
Xxxx, XX Jul-80 B
Las Vegas, NV Jan-56 B
Barstow, CA Xxx-00 X
0 XxXxxxxxxxxxx, XX Jul-93 C
0 Xx. Xxxxxx Xxxxxx, XX Xxx-00 X
Xxxxxxxxx, XX Xxx-00 X
00 Xxxxxxxx, XX Xxx-00 X
00 Xxxxxxxxx, XX Xxx-00 X
00 Xxxxxxxxxx, XX Xxx-00 X
00 Xxxxxxxxxx, XX Xxx-00 X
00 Xxxxxxxxxx, XX Xxx-00 X
00 Xxxxx Xxxxxx, XX Xxx-00 X
00 Xxxxxxxxx, XX May-68 C
Dubuque, IA Jan-75 X
Xxxxxxxx, XX Xxx-00 X
Xxxxxx, XX Jan-87 B
Bloomington, IL Jan-87 C
Champaign, IL Jan-87 B
Decatur, IL Jan-87 B
Pekin, IL Xxx-00 X
00
Xxxxxxxxxxx, XX Jan-87 B
Danville, IL Jan-87 B
17 Dex Moines, IA Xxx-00 X
00 Xxxxx Xxxx, XX May-90 C
00 Xxxxx Xxxxxx, XX Xxx-00 X
00 Xxxxxx, XX Xxx-00 X
Xxxx, XX Xxx-00 X
Xxxxx Xxxx, XX Feb-96 C
Independence, KS Dec-95 New Agreement
Topeka, KS Dec-95 New Agreement
McPherson, KS Xxx-00 Xxx Xxxxxxxxx
00 Xxxxxx Xxxx, XX Xxx-00 X
Xxxxxxx, XX Xxx-00 X
00 Xxxxxxxxx, XX Xxx-00 X
Xxxxxxxxx, XX Xxx-00 X
00 Xxxxxxxxxx, XX Jan-78 C
Gulfport, MS Xxx-00 X
00 Xxxxxxxxxx, XX Aug-54 B
Monroe, LA Xxx-00 X
00 Xxxxxxx Xxxx, XX Xxx-00 X
00 Xxxxxx, XX Aug-71 C
Salt Ste. Xxxxx, MI Xxx-00 X
00 Xxxxxxx, XX Apr-56 C
00 Xxxx Xxxxxxxx, XX Jun-60 C
29 Kalamazoo, MI Feb-72 C
Xxxxxx, MI Xxx-00 X
00
Xxxxxxxx Xxxx, XX Xxx-00 X
00 Xxxxxxxx, XX Aug-89 C
Charlevoix, MI Jun-91 C
Gaylord, MI Xxx-00 X
00 Xxxxxx, XX Jan-65 B
Rhinelander, WI May-85 C
International Falls, MN Apr-95 New Agreement
Bemidji, MN Apr-95 New Agreement
Hibbing, MN Apr-95 New Agreement
Eveleth, MN Apr-95 New Agreement
Marquette, MI Jun-96 New Agreement
Brainerd, MN Jun-96 New Agreement
32 Rochester, MN Dec-60 B
Stevens Point, WI Aug-81 C
Eau Claire, WI Aug-81 C
Land O'Lakes, WI Aug-81 X
Xxxxxxxxxx, XX Xxx-00 X
Xxxxxx, XX Aug-81 C
00 Xxxxxxxxxxx, XX Xxx-00 X
Xxxxxxx, XX Apr-78 C
Joplin, MO Xxx-00 X
00 Xxxxx, XX Jan-87 C
Helena, MT Jan-90 C
Xxxxxxx Xxxx, XX Xxx-00 X
Xxxxx Xxxxx, XX Xxx-00 X
00 Xxxxxxxx, XX Jul-87 C
41
Xxxxxx, MT Jul-87 C
00 Xxxxxxxx, XX Xxx-00 X
Xxxxxxxxx, XX Sep-89 C
Billings, MT Xxx-00 X
00 XxXxxx, XX Xxx-00 X
00 Xxxxxxxxxx, XX Xxx-00 X
Xxxxxxx, XX Apr-78 C
Nashua, NH Jun-75 C
Salem, NH Jun-76 C
Brattleboro, VT Jul-76 C
Merrimack, NH May-82 Letter Agreement
Laconia, NH Oct-82 Letter Agreement
Keene, NH Xxx-00 X
00 Xxxxxxx, XX Nov-64 B
Freehold, NJ Oct-60 B
Lakewood, NJ Oct-60 B
Point Pleasant, NJ Oct-60 B
Port Monmouth, NJ Nov-64 B
Sayreville, NJ Dec-62 B
Toms River, NJ Oct-60 B
Red Bank, NJ Jun-91 B
Eatontown, NJ May-93 New Agreement
Wall, NJ Apr-95 New Agreement
40 Piscataway (Plain), NJ Xxx-00 X
Xxxxxxxx, XX Xxx-00 X
Xxxxx, XX Xxx-00 X
00
Xxxx Xxxxxx, XX Aug-74 (Truck) T
Flemington, NJ Xxx-00 X
Xxxx Xxx, XX Jun-61 T
Hackettstown, NJ Dec-61 B
Linden, NJ Aug-60 B
Madison, NJ May-65 B
Millburn, NJ Aug-74 B
Montclair, NJ Jul-61 B
Morristown, NJ Aug-60 B
New Brunswick, NJ Apr-60 B
Oakland, NJ Aug-74 (Truck) T
Xxxx Hills, NJ Xxx-00 X
Xxxxx Xxxxx, XX Xxx-00 X
Xxxxxx, XX Xxx-00 X
Xxxxxxxxxx, XX Jul-61 B
Ridgewood, NJ Xxx-00 X
Xxxxxx Xxxxx, XX Aug-74 (Truck) T
Somerville, NJ Xxx-00 X
Xxxxxxxxxxx, XX Aug-74 B
Roxbury, NJ Aug-74 X
Xxxxxx, XX Xxx-00 X
Xxxxx, XX Jan-60 B
Port Jervis, NJ Xxx-00 X
Xxxx Xxxxxx, XX Aug-81 C
00 Xxxxxxx, XX Xxx-00 X
Xxxxx Xx, XX Xxx-00 X
00
Xxx Xxxxxx, NM Apr-66 C
Alamogordo, NM Apr-95 New Agreement
42 Albany, NY Dec-64 B
Schenectady, NY Dec-64 B
Xxxx, Watervliet, NY Xxx-00 X
Xxxxxxx, XX Xxx-00 X
Xxxxxxx, XX Oct-95 B
Springfield, VT Aug-96
00 Xxxxxxxxxxx, XX Xxx-00 X
Xxxx Xxxxxx, XX Xxx-00 X
00 Xxxxx Xxxxxx, XX Jan-61 B
Larchmont, NY Jan-61 B
Mamaroneck, NY May-76 B
Rye, Tarrytown, NY Jan-61 B
Scarsdale, NY Jan-61 B
45 Wilmington, NC Nov-71 B%
Florence, SC Sep-74 B%
Xxxxx Xxxxx, XX Xxx-00 X
Xxxxxxxxx, XX Xxx-00 X
Xxxxxxxxxx, XX Xxx-00 X
Xxxxxxx, XX Xxx-00 X
Xxxxxxxxxxxx, XX Xxx-00 X
Xxxxxxxx Xxxx, XX Xxx-00 X
Xxx Xxxx, XX Xxx-00 X
00 Xxxxxxxx, XX Xxx-00 X
00 Xxxxx, XX Oct-71 C
44
48 Grand Forks, ND Xxx-00 X
00 Xxxxxxxxx, XX Xxx-00 X
00 Xxxxx, XX Jan-81 C
Williston, ND Jun-81 C
Aberdeen, SD Xxx-00 X
00 Xxxxxxxxx, XX Xxx-00 X
00 Xxxx, XX Xxx-00 X
00 Xxxx, XX Xxx-00 X
00 Xxxxxxx, XX Xxx-00 X
00 Xxxxxxxxxx, XX Sep-66 B%
Xxxxx Xxxxxxx, XX Xxx-00 Xxx Xxxxxxxxx
Xxxxxxxxxxxxxx, XX Xxx-00 Xxx Xxxxxxxxx
Xxxxxxx, XX Xxx-00 Xxx Xxxxxxxxx
00 Xxxxxxxxx, XX Xxx-00 X
00 Xxx Xxxxxxxxxx, XX Apr-59 B
Monroeville, PA Apr-59 B
Oakmont, PA Feb-61 B
Vandergrift, PA Feb-61 T
Wilkensburg, PA Xxx-00 X
00 Xxxxxxxxxx, XX Jul-88 B
Waltz Xxxxx, PA Feb-92 Agency Agreement
59 Pierre, SD Xxx-00 X
00 Xxxxx Xxxx, XX Xxx-00 X
Xxxxx Xxxxx, XX Xxx-00 X
00 Xxxxxxxxx, XX Apr-81 B%
Greenville, TN Oct-81 C
45
62 Nashville, TN Jun-65 C
Chattanooga, TN Jun-65 C
Knoxville, TN Oct-76 C
Memphis, TN Jun-65 C
Olive Branch, MS Jul-76 C
63 Amarillo, TX Jan-78 B
Lubbock, TX Xxx-00 X
00 Xxxxxx Xxxxxxx, XX Jan-56 B
Brownsville, TX Jan-56 B
Harlingen, TX Jan-56 B
McAllen, TX Jan-56 B
Rockport, TX Apr-81 C
S. Padre Island, TX May-79 C
Victoria, TX Feb-56 B
Laredo, TX Xxx-00 X
00 Xxxxxx, XX Jan-56 B
Austin, TX Apr-56 B
Fort Worth, TX Mar-56 B
San Antonio, TX Xxx-00 X
00 Xxxxx, XX Apr-94 B
00 Xx. Xxxxxx, XX Xxx-00 X
Xxxxx Xxxx, XX Sep-77 C
Page, AZ May-75 C
Vernal, UT Feb-82 C
Ely, NV Mar-82 Letter Agreement
Elko, NV Oct-79 C
46
68 Burlington, VT Xxx-00 X
00 Xxxxxxxx, XX Mar-56 B
Charlottesville, VA Xxx-00 X
Xxxxxxxxxxxxx, XX Jul-65 B
Lynchburg, VA Dec-61 B
Newport, VA May-57 X
Xxxxxxxxxx, XX Xxx-00 X
Xxxxxxxxxx, XX Apr-60 B
Salisbury, MD May-87 B%
Cambridge, Easton, MD May-87 C
Dover, DE May-87 B%
Xxxxxxx, XX Xxx-00 X
00 Xxxxxxx, XX Apr-79 B
Bluefield, WV Xxx-00 X
X. Xxxxxxx Xxxx, XX Dec-81 C
Clarksburg, WV Aug-83 B
Fairmount, WV Aug-83 B
Morgantown, WV Aug-83 B
Columbus, MS Oct-86 C
Paducah, KY Aug-77 C
Greenville, MS Jan-90 C
Longview, TX Feb-90 C
Tyler, TX Feb-90 C
Killeen, TX Xxx-00 X
Xxxxxxx Xxxxxxx, XX Jan-91 C
Temple, TX Mar-91 C
00
Xxxx, XX Xxx-00 X
Xxxxxxx, XX Xxx-00 X
00 Xxxxxxxx, XX Oct-58 X
Xxxxx Xxx, XX Xxx-00 X
Xxxxxxx, XX Jun-72 C
Wisconsin Dells, WI Apr-78 C
Menominee, MI Jan-73 X
Xxxxxxxx Xxx, XX Xxx-00 X
XxXxxxxx, XX Mar-85 C
72 Casper, WY Jul-65 C
Laramie, WY Jul-76 C
Riverton, WY Dec-69 B
Cody, WY Xxx-00 X
00 Xxxxxxxx, XX Jul-78 B
Gillette, WY Jul-78 B%
00 Xxxxxxxxx, XX Apr-56 B%
Fairbanks, AK Apr-56 B%
Juneau, AK Apr-56 B%
Kodiak, AK Apr-56 B%
00 Xxxxx, XX Xxx-00 X
00 Xxxxx, XX Feb-69 T
48
ARACS LICENSEES - CAR RENTAL
Country Expiration
Caribbean Licensee Name Address Date
Anguilla Apex Car Rental, Ltd. X.X. Xxx 00, Xxx Xxxxxx, Xxxxxxxx 00 DEC 02
Antigua Xxxxx Enterprises, Ltd. X.X. Xxx 000, Xx. Xxxx'x 00 DEC 00
Xxxxx XXXX, X.X. X.X. Xxx 000, Xxxxxxxxxx 31 DEC 98
Bahamas Windsor Servicentor, Ltd. Xxx Xxxx Xxx, X.X. Xxx XX 00000, Xxxxxx YTY
Bonaire Drive Yourself(Bonaire), N.V. Strocofa, Zeelandia, Curacao 31 DEC 97
Cayman Brac T&D Auto Rentals X.X. Xxx 000, Xxxxxxxxxx, Xxxxx Xxxxxx, 00 DEC 00
Xxxxxx Xxxxxxx
Xxxxxxx Xxxxx Yourself (Curacao), N.V. Stracoba, Zeelandia 31 DEC 97
Dominica X.X. Xxxxxxxxxxxx & Co., Ltd. X.X. Xxx 000, Xxxxxx 00 DEC 99
Dominican Rep. Servicolt C. por A. X.X. Xxx 000-0, Xxxxx Xxxxxxx 00 DEC 97
French Guiana Cefber, S.A.R.L. 7, lot La Desireee, 97351, Matoury 31 DEC 00
Grand Cayman Xxxxx Xxxxxx/Xxxxxxx Xxxxxx X.X. Xxx 000, Xxxxxxx Xxxx, Xxxxxxxxxx 31 DEC 01
(Partnership)
Grenada Spice Isle Rentals, Ltd. X.X. Xxx 00, Xx. Xxxxxx'x 00 DEC 00
Guadeloupe Cie. Generade de Location, S.A.R.L. Rue F. Forest, X.X. Xxxxx 31 DEC 00
Haiti Soc. Haitienne de Commerce X.X. Xxx 00000, Xxxxxxxxxxx 31 DEC 99
Martinique Cie.Martiniquaise de Locations, S.A.R.L. Auto GM 2I La Lezarde, 97232, Lamenting 31 DEC 00
Nevis Holiday Car Rentals, Ltd. X.X. Xxx 00, Xxxxxxxxxx, Xx. Kitts, W.I. 31 DEC 00
Providenciales Provo Auto Supply, Ltd. P.O. Box, Providenciales, Turks & Caicos 31 DEC 00
St. Barthelemy Xxxxxx X. Xxxxx X.X. Xxx 000, 00000 Xx. Xxxx 31 DEC 99
St. Eustatius Mercury Transport (Statia), N.V. Lampweg #1 31 DEC 00
St. Xxxx V.I. V.I. Miscellaneous Services, Inc. X.X. Xxx 0000, Xxxx Xxx, Xx. Xxxx, XXXX 00000 31 DEC 00
St. Kitts Holiday Car Rentals, Ltd. X.X. Xxx 00, Xxxxxxxxxx 00 XXX 00
Xx. Xxxxx Sun Drive Rentals, Ltd. X.X. Xxx 0000, Xxxxxxxx 00 XXX 00
Xx. Xxxxxxx Mercury Transport, N.V. X.X. Xxx 0000, Xxxxxxxxxxxx 00 XXX 00
Xx. Xxxxxxx Systems Car Rental Paul's Ave. Kingstown, St. Xxxxxxx 31 DEC 02
Tortola, B.V.I. Auto Parts & Sales, Ltd. X.X. Xxx 000, Xxxx Xxxx 00 DEC 98
Central America
Belize Eco Rental, Ltd. X.X. Xxx 0000, Xxxxxxxxx Xx., Xxxxxxxxx 00 DEC98
Costa Rica Linea de Accion, S.A. Agencia Mazda, La Uruca, San Xxxx YTY
Guatemala Arrendadora de Guatemala 00 Xxxxx 0-00 Xxxx 0 Xxxxxxxxx Xxxx 31DEC01
Honduras Arrandadora de Vehiculos, S.A. X.X. Xxx 0000, Xxxxxxxxxxx 00XXX00
Xxxxxx Comercial Arriete S.A. Apartado 656, 97000 Merida, Yucatan 31JAN07
Panama Rent A Car Panamena, S.A. Distribuidora Xxxxx, Via Xxxxx Xxxxxxx 31DEC01
Xxxxx 00 xx Xxxxxxx, Xxxxxx
Xxxxx Xxxxxxx
Xxxxx Servic, S.A. Xxx Xxxxx 0000, Xxxxxxxx 00XXX00
Xxxxxxxx Autosolving Xxxxxxx 00 - Xx. 000 - 00, Xxxxxx 00XXX00
Xxxxxxx Turismo, Carros y Botes Cia., Ltda. X.X. Xxx 0000, Xxxxxxxxx 00XXX00
Xxxx Vea Peru, S.A. Ave. Xxxxxx Xxxxx Este 5235, Lima 12 31DEC98
Suriname Para Rent A Car, Ltd. Xxxx X'xxxxxxxxxx 00, Xxxxxxxxxx, Xxxxxxxx 00XXX00
Xxxxxxx Urucar, S.A. Yaguaron 1527, Montevideo 30SEP99
Venezuela Dorado Rent A Car, C.A. Ave. Libertador Esq. Ave. Principal 31DEC01
xx Xxxxx Xxxxx, Caracas
2
Schedule 3
GUARANTEES
1. Guaranty dated December 31, 1996 in favor of Scotiabank de Puerto
Rico with respect to the obligations of Avis Rent A Car de Puerto Rico,
Inc.
2. Guaranty dated 31 August 1995 in favor of the Participants and
Agents under a Xxxx Facility Agreement dated 15 April 1994, as amended by
the Amendment Agreement dated 31 August 1995 with respect to the
obligations of W.T.H. Pty. Limited. 3. Letter of Guarantee* dated May 14,
1996 in favor of OCBC Bank (Malaysia) Berhad with respect to the
obligations of Sister Sewa Kereta (but not exceeding 25% of such
obligations). 4. Deed of Guarantee and Indemnity* dated February 15, 1990
in favor of Malayan Banking Berhad with respect to the obligations of
Sister Sewa Kereta (but not exceeding 40% of such obligations).
------------
*Obligations of Avis, Inc. to be assumed by Avis Investment Services
Limited ("AIS") by Agreement dated 4 April, 1997 among AIS, Avis Rent
A Car (Hong Kong) Limited and Avis Rent A Car System, Inc.
Schedule 4
WIZCOM TRANSFERRED ASSETS
(i) All Wizard System Agreements
(ii) All Computer Services Agreements
(iii) All Homepage Agreements
(iv) The following proprietary software:
Fleet System:
Fleet Distribution Model
Fleet Planning
Field Fleet Reporting System
Title Tracking Request
Electronic Repair Order
Fleet Receivables
Invoice System
Fleet Reporting System
Make Model Database
Pre-Delivery Inspection
Vehicle On-Line Transaction System
Purchase Order Database
Vehicle Order Database
Vehicle Order Status
Department of Sanitation System
Fleet Reconciliation System
Group Rate Depreciation System
Xxxxxx County Tax System
Insurance System
Licensee Reporting System
Vehicle Damage Claims
SALES AND MARKETING SYSTEM
Pricing Model
IRDB
Coupon Reporting
Worldwide Prestige Insurance
Chairman's Tracking System
CEO Tracking System
Automated Fulfillment System
Brochure Request System
Wizard Credit Link
CAW Corporate Awards System
PSI (for Preferred Supplier Agreements)
Sales Incentive System
EMP Sales Employee Database
STC Sales STC Database
FINANCIAL MANAGEMENT SYSTEM
Accounts Payable (AP)
General Ledger (GL)
Money Management System (MMS)
Time and Attendance (TAA)
Rental Agreement Processing
Rental Number System
Balance Forward System
Register Miscellaneous Reporting
Open Item System
Travel Agency System
Cash Application System
Invoicing
Licensee Chargebacks
Country Company database
Club Red
Preferred Supplier
AIM
International Direct Sell
User Rental File
Europe File
Wizard Licensee Billing
BIL
Roll and Slide Reporting
Currency Data Base
Open Rental System
Bonus System
Direct Billing System
Daily Business Reporting
YIELD MANAGEMENT SYSTEM
Yield Management
Data Extraction and Conditioning
Product Forecasting
Revenue Optimization
Graphical User Interface
Supply and Demand
Availability by Length of Rental (AVLLOR)
Turndowns and Denials
Reservation and Rental History
Rate Opportunity System
Yield Management Price
Elasticity System
Rateshop System
Business Mix
Global Distribution System Rate Maintenance
Rate Availability
MISCELLANEOUS SYSTEMS
Coupon Tracking System
Worldwide Reporting System
Consumer Sales Incentive
Personal Liability and Property Damage Insurance Reserve
Operating Lease Commitment Reporting Facility
Treasury Debt Reporting Facility
Interactive Personnel System
Name Risk System
Credit Club Risk
Standard Interline Passenger Procedure (SIPP)
