Exhibit 10.28
UNDERTAKING
THIS UNDERTAKING (this "Undertaking"), executed and delivered on
this 30th day of June, 1999, by Avis Fleet Leasing and Management Corporation
("Acquiror Sub"), a Texas corporation and a wholly owned subsidiary of Avis Rent
A Car, Inc., a Delaware corporation ("Acquiror"), in favor of PHH Corporation, a
Maryland corporation ("Parent"), and PHH Holdings Corporation, a Texas
corporation and wholly owned subsidiary of Parent ("Holdings").
W I T N E S S E T H:
WHEREAS, Acquiror, Acquiror Sub, Parent and Holdings are parties to
the Agreement and Plan of Merger and Reorganization (the "Merger Agreement"),
dated as of May 22, 1999, as amended by the Amendment to the Agreement and Plan
of Merger and Reorganization, dated as of June 30, 1999, providing for the
merger of Acquiror Sub and Holdings (the "Merger") pursuant to the Texas
Business Corporation Act (the "TBCA"), on the terms and subject to the
conditions set forth therein (capitalized terms not otherwise defined herein
shall have the respective meanings assigned to such terms in the Merger
Agreement);
WHEREAS, as a material part of the Merger Consideration, the Merger
Agreement requires that Acquiror Sub undertake to assume and to agree to
perform, pay or discharge or cause to be performed, paid or discharged the
Transferred Liabilities allocated to, assumed by and vested in Acquiror Sub in
the Merger, including, without limitation, the Assumed Obligations (as
hereinafter defined).
NOW, THEREFORE, in consideration of these premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Acquiror Sub agrees as follows:
1. Subject to the terms and conditions contained in Section 517 of
the Merger Agreement, Acquiror Sub hereby undertakes, assumes and agrees to
perform, pay or discharge in accordance with their terms, to the extent not
heretofore
performed, paid or discharged, all liabilities and obligations of Holdings set
forth on Schedule I hereto (the "Assumed Obligations").
2. From and after the date hereof, at the request of Holdings,
Acquiror shall, and shall cause the Acquiror Sub Surviving Corporation to, take
such action to more effectively assume and vest in the Acquiror Sub Surviving
Corporation the Assumed Obligations, including, without limitation, executing
such documents, instruments and agreements with third parties as may be
reasonably necessary for the Acquiror Sub Surviving Corporation to assume all of
Holdings' obligations under each of the Assumed Obligations; provided, however,
that any such obligations relating to the Holdings Indebtedness shall terminate
upon the repayment in full of the Intercompany Indebtedness.
3. This Undertaking shall be governed by the laws of the State of
New York, without regard to the principles of conflicts of law thereof.
4. This Undertaking shall be enforceable against the successors and
assigns of Acquiror Sub and shall inure to the benefit of the successors and
assigns of Parent and Holdings.
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IN WITNESS WHEREOF, this Undertaking has been duly executed and
delivered by the undersigned duly authorized officer of Avis Fleet Leasing and
Management Corporation on the date first above written.
AVIS FLEET LEASING AND MANAGEMENT
CORPORATION
By: __________________________________
Name:
Title:
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