AMENDMENT
AMENDMENT TO AGREEMENT AND PLAN OF MERGER AND REORGANIZATION, dated
as of June 30, 1999, by and among PHH CORPORATION, a Maryland corporation
("Parent"), PHH HOLDINGS CORPORATION, a Texas corporation and a wholly owned
subsidiary of Parent ("Holdings"), AVIS RENT A CAR, INC., a Delaware corporation
("Acquiror"), and AVIS FLEET LEASING AND MANAGEMENT CORPORATION, a Texas
corporation and a wholly owned subsidiary of Acquiror ("Acquiror Sub").
WHEREAS, Parent, Holdings, Acquiror and Acquiror Sub are parties to
an Agreement and Plan of Merger and Reorganization, dated as of May 22, 1999
(the "Merger Agreement"), providing for the acquisition by Acquiror Sub of the
Business (as defined in the Merger Agreement) pursuant to a merger of Holdings
and Acquiror Sub in accordance with Article Five of the Texas Business
Corporation Act;
WHEREAS, capitalized terms used but not otherwise defined herein
shall have the meanings ascribed to them in the Merger Agreement;
WHEREAS, Section 11.2 of the Merger Agreement provides that the
Merger Agreement may be amended by a written instrument executed by each of the
parties thereto; and
WHEREAS, the parties desire to amend the Merger Agreement as
provided herein.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein and in
the Merger Agreement, the parties hereto agree as follows:
1. Amendment to References to Xxxxxx Express Corporation. All
references in the Merger Agreement and the schedules and exhibits thereto to
Xxxxxx Express Corporation, a Delaware corporation, are hereby amended to refer
to "Xxxxxx Express LLC," a Delaware limited liability company, to reflect the
merger of Xxxxxx Express Corporation into Xxxxxx Express LLC, effective June 21,
1999.
2. Amendment to References to Cendant Business Answers (Europe) PLC.
All references in the Merger Agreement and the schedules and exhibits thereto to
Cendant Business Answers (Europe) PLC, a public company registered in England
and Wales, are hereby amended to refer to "Cendant Business Answers (Europe)
Ltd.," a company registered in England and Wales, with limited liability, to
reflect the name change of Cendant Business Answers (Europe) PLC into Cendant
Business Answers (Europe) Ltd., effective June 28, 1999.
3. Amendment to References to PHH Vehicle Management Services PLC.
All references in the Merger Agreement and the schedules and exhibits thereto to
PHH Vehicle Management Services PLC, a public company registered in England and
Wales, are hereby amended to refer to "PHH Vehicle Management Services Ltd.," a
company registered in England
and Wales, with limited liability, to reflect the name change of PHH Vehicle
Management Services PLC into PHH Vehicle Management Services Ltd., effective
June 25, 1999.
4. Amendment to References to All Star Petrol Card Ltd. All
references in the Merger Agreement and the schedules and exhibits thereto to All
Star Petrol Card Ltd., a company registered in England and Wales, with limited
liability, are hereby amended to refer to "Cendant Business Answers Ltd.," a
company regis tered in England and Wales, with limited liability, to reflect the
name change of All Star Petrol Card Ltd. into Cendant Business Answers Ltd.,
effective June 17, 1999.
5. Amendment to Section 2.3(b)(iii) of the Merger Agreement. Section
2.3(b)(iii) of the Merger Agreement is hereby amended to insert on the second
line thereof the word "estimated" immediately prior to the words "Intercompany
Indebtedness."
6. Amendment to Section 3.3 of the Merger Agreement. Section 3.3 of
the Merger Agreement is hereby amended to insert the following at the end
thereof:
"(c) FAH Company, Inc., a Delaware corporation ("FAH") owns no assets
other than the Class A Preferred Units of Xxxxxxx Funds LLC and has no
liabilities or obligations other than (i) arising out of the ownership thereof
under the terms of the Xxxxxxx Funds LLC Limited Liability Company Agreement and
the rights and obligations of the parties thereunder, as to which FAH has no
material liabilities and (ii) in connection with the pending sale thereof which
pending sale does not create any material liabilities (other than the
obligations to deliver the securities to the purchaser thereof).
7. Amendment to Section 5.17(b) of the Merger Agreement. Section
5.17(b) of the Merger Agreement is hereby amended to insert the following at the
end thereof:
"The payment of Intercompany Indebtedness at Closing pursuant to Section
2.3(b)(iii) hereof shall be based upon Parent's good faith estimate of the
amount of Intercompany Indebtedness as of the Closing Date determined in
accordance with this Section 5.17(b), which estimate shall (i) be provided by
Parent to Acquiror in writing at least two business days prior to the Closing
Date and (ii) separately set forth the amount of such estimated Intercompany
Indebtedness attributable to (x) current taxes (the "Current Tax Amount") and
(y) intercompany indebtedness (the "Intercompany Amount"). The estimated
Intercompany Indebtedness shall be reconciled to the definitive Intercompany
Indebtedness as follows:
(A) Within 15 days following the Closing Date, Parent shall deliver
to Acquiror (the date on which such delivery is made being the "II
Delivery Date") a written statement setting forth the definitive
Intercompany Amount as of the Closing Date, determined in accordance with
this Section 5.17(b). If Acquiror disputes the amount set forth on such
statement, it shall notify Parent within five business days following the
II Delivery Date. Any disputes as to the amount of the definitive
Intercompany Amount not resolved by the tenth business day following the
II Delivery Date shall be resolved
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promptly by mutual agreement of Messrs. Xxxxxxx X. Xxxxxx and Xxxxx X.
Xxxxxxx. Within 5 business days of the II Delivery Date (or such later
date as of which any dispute with respect to the definitive Intercompany
Amount may have been resolved), Parent shall pay to Acquiror Sub, or
Acquiror Sub shall pay to Parent, as appropriate, an amount equal to the
difference between the estimated Intercompany Amount repaid at Closing and
the definitive Intercompany Amount (the "II True-Up"). Any payments made
pursuant to the II True-Up shall be made by wire transfer of immediately
available funds to a single bank account designated by the receiving
party. The amount of such II True-Up payment shall bear interest for the
period from and including the Closing Date to the date on which the II
True-Up payment is made at a rate equal to the 14-day LIBOR rate plus 25
basis points.
(B) Within 150 days following the Closing Date, Parent shall
deliver to Acquiror (the date on which such delivery is made being the "CT
Delivery Date") a written statement setting forth the definitive Current
Tax Amount as of the Closing Date, determined in accordance with this
Section 5.17(b). If Acquiror disputes the amount set forth on such
statement, it shall notify Parent within ten business days following the
CT Delivery Date. Any disputes as to the amount of the definitive Current
Tax Amount not resolved by the tenth business day following the CT
Delivery Date shall be resolved promptly by mutual agreement of Messrs.
Xxxxxxx X. Xxxxxx and Xxxxx X. Xxxxxxx. Within ten business days of the CT
Delivery Date (or such later date as of which any dispute with respect to
the definitive Current Tax Amount may have been resolved), Parent shall
pay to Acquiror Sub, or Acquiror Sub shall pay to Parent, as appropriate,
an amount equal to the difference between the estimated Current Tax Amount
repaid at Closing and the definitive Current Tax Amount (the "CT
True-Up"). Any payments made pursuant to the CT True-Up shall be made by
wire transfer of immediately available funds to a single bank account
designated by the receiving party. The amount of such CT True-Up payment
shall bear interest for the period from and including the Closing Date to
the date on which the CT True-Up payment is made at a rate equal to the
90-day LIBOR rate plus 25 basis points."
8. Amendments to Article V of the Merger Agreement. The Merger
Agreement is hereby amended to insert therein new Section 5.24 and new Section
5.25 to read as follows:
"5.24 Kobrick Mutual Fund. Promptly upon receipt of payment thereof,
Acquiror shall cause FAH to remit and pay over to Parent all Unpaid
Priority Earnings on the Class A Preferred Units of Xxxxxxx Funds LLC
accrued from October 1, 1998 through June 30, 1999."
"5.25 Proposed Transaction Regarding PHH Dublin Unlimited. Parent and
Acquiror agree that, following the Closing Date, they will negotiate in
good faith, and endeavor to reach mutual agreement on, the terms of a
purchase by Acquiror or an affiliate of
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Acquiror (other than Acquiror Sub) of all of Parent's direct and indirect
interests in PHH Dublin Unlimited."
9. Amendment to Schedule I of the Merger Agreement. Schedule I of
the Merger Agreement, which sets forth the list of Transferred Companies, is
hereby amended to add to the end thereof the following:
"FAH Company, Inc. Delaware"
"PHH Treasury Services Ltd. England and Wales"
10. Amendment to Schedule II of the Merger Agreement. Schedule II of
the Merger Agreement, which sets forth the Transferred Assets, including the
names of the Directly Transferred Companies, is hereby amended to add to the end
of the list of Directly Transferred Companies the following:
"FAH Company, Inc."
"PHH Treasury Services Ltd."
11. Amendment to Schedule III of the Merger Agreement. Schedule III
of the Merger Agreement, which lists the Holdings Retained Assets, is hereby
amended to add to the end thereof "Cendant Relocation Holdings Ltd."
12. Amendment to Schedule 3.4(a) of the Disclosure Schedules.
Schedule 3.4(a) of the Disclosure Schedules to the Merger Agreement is hereby
amended to add to the end thereof the following:
"FAH Company, 2,800 Common Stock PHH Holdings
Inc. Corporation"
---------------------------------------------------------------
8,000 Series A PHH Holdings
Preferred Stock Corporation"
--------------------------------------------
Warrant to Purchase PHH Holdings
8,000 shares of Corporation"
Common Stock
--------------------------------------------
"PHH Treasury 1 Cendant Business
Services Ltd. Answers (Europe)
Ltd.
13. Amendment to Schedule 3.6(b) of the Disclosure Schedules.
Schedule 3.6(b) of the Disclosure Schedules to the Merger Agreement is hereby
amended to delete the last sentence of the first entry thereon and, in lieu
thereof, to insert the following sentence: "The remaining $2,800,000 of the
earn-out payment has been withheld pending the resolution of certain issues
concerning tax filings."
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14. Transfer of Warrant. Holdings hereby transfers unto Acquiror Sub
all of its right, title and interest in and to the Warrant for the Purchase of
8,000 Shares of Common Stock of FAH.
15. Representations and Warranties. Each of the parties hereto
represents and warrants that it has all requisite corporate power and authority
to execute and deliver this Amendment, to perform its obligations hereunder and
consum mate the transactions contemplated hereby. The execution and delivery by
such party of this Amendment, and the consummation by it of the transactions
contemplated hereby have been duly authorized by all requisite corporate action
on the part of such party. This Amendment has been duly executed and delivered
by such party, and (assuming the valid authorization, execution and delivery
thereof by the other parties thereto) the Merger Agreement, as amended by this
Amendment, constitutes a valid and binding agreement of such party, enforceable
against it in accordance with its terms, except that (a) such enforcement may be
subject to bankruptcy, reorganization, fraudulent conveyance, moratorium,
insolvency and other laws now or hereafter in effect relating to or affecting
creditors' rights and (b) enforcement thereof, including, among other things,
the remedy of specific performance and injunctive and other forms of equitable
relief, may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
16. Except as specifically amended hereby, the terms and conditions
of the Merger Agreement shall continue and remain in full force and effect.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed or caused this
Amendment to be executed as of the date first written above.
PHH CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
PHH HOLDINGS CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
AVIS RENT A CAR, INC.
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
AVIS FLEET LEASING AND
MANAGEMENT CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
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