EXHIBIT D TO
CREDIT AGREEMENT
FORM OF PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of July 30, 1997, made by each of the
signatories hereto (together with any other entity that may become a party
hereto, the "Pledgors"), in favor of THE CHASE MANHATTAN BANK, as
administrative agent (in such capacity, the "Administrative Agent") for the
lenders (the "Lenders") from time to time parties to the Credit Agreement,
dated as of July 30, 1997 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among Avis Rent A Car System, Inc., a
Delaware corporation (the "Borrower"), Avis Rent A Car, Inc., a Delaware
corporation ("Avis"), the Lenders, the Administrative Agent and Xxxxxx
Commercial Paper Inc., a Delaware corporation, as syndication agent for the
Lenders (the "Syndication Agent"), and the other Secured Parties (as defined
herein).
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have severally
agreed to make Loans to the Borrower upon the terms and subject to the
conditions set forth therein, to be evidenced by the notes issued by the
Borrower under the Credit Agreement; and
WHEREAS, it is a condition precedent to the obligation of the Lenders
to make their respective Loans to the Borrower that each Pledgor (other than
the Borrower) guarantee payment and performance of the Borrower's obligations
under the Credit Agreement, the notes and the other Credit Documents; and
WHEREAS, in satisfaction of such condition, each Pledgor (other than
the Borrower) has entered into a Guarantee of even date herewith (as amended,
supplemented or otherwise modified from time to time, the "Guarantee") for the
benefit of the Administrative Agent and the Secured Parties; and
WHEREAS, it is a further condition precedent to the obligation of the
Lenders to make their respective Loans to the Borrower under the Credit
Agreement that each Pledgor shall have executed and delivered this Pledge
Agreement to secure payment and performance of such Pledgor's obligations under
the Guarantee.
NOW, THEREFORE, in consideration of the premises and to induce the
Administrative Agent and the Lenders to enter into the Credit Agreement and to
induce the Lenders to make their respective Loans to the Borrower, each Pledgor
hereby agrees with
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the Administrative Agent, for the benefit of the Secured Parties, as follows:
1. Defined Terms. (a) Unless otherwise defined herein, terms defined
in the Credit Agreement and used herein shall have the meanings given to them
in the Credit Agreement.
(b) The following terms shall have the following meanings:
"Agreement": this Pledge Agreement, as the same may be amended,
modified or otherwise supplemented from time to time.
"Code": the Uniform Commercial Code from time to time in effect in the
State of New York.
"Collateral": the Pledged Stock and all Proceeds.
"Collateral Account": any account established to hold money Proceeds,
maintained under the sole dominion and control of the Administrative Agent,
subject to withdrawal by the Administrative Agent for the account of the
Secured Parties only as provided in paragraph .
"Issuers": the collective reference to the companies identified on
Schedule 2 attached hereto as the issuers of the Pledged Stock; individually,
each an "Issuer."
"Obligations": as defined in the Guarantee.
"Pledged Stock": the shares of capital stock listed on Schedule 2
hereto, together with all stock certificates, options or rights of any nature
whatsoever in respect of Capital Stock of any Issuer that may be issued or
granted by such Issuer to any Pledgor while this Agreement is in effect
(provided that in no event shall any Pledgor be required to pledge more than
65% of the Capital Stock of any Foreign Subsidiary pursuant to this Agreement).
"Proceeds": all "proceeds" as such term is defined in Section 9-306(1)
of the Uniform Commercial Code in effect in the State of New York on the date
hereof and, in any event, shall include, without limitation, all dividends or
other income from the Pledged Stock, collections thereon or distributions with
respect thereto.
"Secured Obligations": with respect to any Pledgor, the collective
reference to (a) the Obligations and (b) all obligations and liabilities of
such Pledgor which may arise under or in connection with this Agreement or any
other Credit Document to which such Pledgor is a party, in each case whether on
account of reimbursement obligations, fees, indemnities, costs, expenses
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or otherwise (including, without limitation, all reasonable fees and
disbursements of counsel to the Administrative Agent or to the Lenders that are
required to be paid by such Pledgor pursuant to the terms of this Agreement or
any other Credit Document).
"Secured Parties" means the collective reference to the Administrative
Agent, the Syndication Agent, the Lenders (including, without limitation, the
CE Issuing Bank and the WC Issuing Bank).
"Securities Act": the Securities Act of 1933, as amended.
(c) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and section and paragraph
references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2. Pledge; Grant of Security Interest. Each Pledgor hereby delivers to
the Administrative Agent, for the benefit of the Secured Parties, all of such
Pledgor's Pledged Stock and hereby grants to Administrative Agent, for the
benefit of the Secured Parties, a first security interest in the Collateral, as
collateral security for the prompt and complete payment and performance when
due (whether at the stated maturity, by acceleration or otherwise) of the
Secured Obligations.
3. Stock Powers. Concurrently with the delivery to the Administrative
Agent of each certificate representing one or more shares of Pledged Stock to
the Administrative Agent, the relevant Pledgor shall deliver an undated stock
power covering such certificate, duly executed in blank by such Pledgor with.
4. Representations and Warranties. Each Pledgor represents and
warrants that:
(a) such Pledgor has the corporate power and authority and the legal
right to execute and deliver, to perform its obligations under, and to grant
the security interest in the Collateral pursuant to, this Agreement and has
taken all necessary corporate action to authorize its execution, delivery and
performance of, and grant of the security interest in the Collateral pursuant
to, this Agreement.
(b) This Agreement constitutes a legal, valid and binding obligation
of such Pledgor, enforceable in accordance with its terms, and upon delivery to
the Administrative Agent of the stock
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certificates evidencing such Pledgor's Pledged Stock, the security interest
created pursuant to this Agreement will constitute a valid, perfected first
priority security interest in the Collateral, enforceable in accordance with
its terms against all creditors of such Pledgor and any Persons purporting to
purchase any Collateral from such Pledgor, except in each case as
enforceability may be affected by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
(c) The execution, delivery and performance of this Agreement will not
violate any provision of any Requirement of Law or Contractual Obligation of
such Pledgor and will not result in the creation or imposition of any Lien on
any of the properties or revenues of such Pledgor pursuant to any Requirement
of Law or Contractual Obligation of such Pledgor, except the security interest
created by this Agreement.
(d) No consent or authorization of, filing with, or other act by or in
respect of, any arbitrator or Governmental Authority and no consent of any
other Person (including, without limitation, any stockholder or creditor of
such Pledgor), is required in connection with the execution, delivery,
performance, validity or enforceability of this Agreement except where the
failure to obtain the same would not result in a Material Adverse Effect.
(e) No litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of such
Pledgor, threatened by or against such Pledgor or against any of its properties
or revenues with respect to this Agreement or any of the transactions
contemplated hereby as to which there is a reasonable possibility of an adverse
determination, which individually, or in the aggregate, would have a Material
Adverse Effect.
(f) The shares of Pledged Stock constitute all the issued and
outstanding shares of all classes of the capital stock of each domestic Issuer
(and 65% of all classes of the capital stock of each foreign Issuer).
(g) All the shares of the Pledged Stock have been duly and validly
issued and are fully paid and nonassessable.
(h) Such Pledgor is the record and beneficial owner of, and has good
and marketable title to, such Pledgor's Pledged Stock, free of any and all
Liens or options in favor of, or claims of,
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any other Person, except the security interest created by this Agreement.
5. Covenants. Each Pledgor covenants and agrees with the
Administrative Agent and the Secured Parties that, from and after the date of
this Agreement until this Agreement is terminated and the security interests
created hereby are released:
(a) If such Pledgor shall, as a result of its ownership of the Pledged
Stock, become entitled to receive or shall receive any stock certificate
(including, without limitation, any certificate representing a stock dividend
or a distribution in connection with any reclassification, increase or
reduction of capital or any certificate issued in connection with any
reorganization), option or rights, whether in addition to, in substitution of,
as a conversion of, or in exchange for any shares of the Pledged Stock, or
otherwise in respect thereof, such Pledgor shall accept the same as the agent
of the Administrative Agent and the Secured Parties, hold the same in trust for
the Administrative Agent and the Secured Parties and deliver the same forthwith
to the Administrative Agent in the exact form received, duly indorsed by such
Pledgor to the Administrative Agent, if required, together with an undated
stock power covering such certificate duly executed in blank by such Pledgor,
to be held by the Administrative Agent, subject to the terms hereof, as
additional collateral security for the Secured Obligations. Any sums paid upon
or in respect of the Pledged Stock upon the liquidation or dissolution of any
Issuer shall be paid over to the Administrative Agent to be held by it
hereunder as additional collateral security for the Secured Obligations, and in
case any distribution of capital shall be made on or in respect of the Pledged
Stock or any property shall be distributed upon or with respect to the Pledged
Stock pursuant to the recapitalization or reclassification of the capital of
any Issuer or pursuant to the reorganization thereof, the property so
distributed shall be delivered to the Administrative Agent to be held by it
hereunder as additional collateral security for the Secured Obligations. If any
sums of money or property so paid or distributed in respect of the Pledged
Stock shall be received by such Pledgor, such Pledgor shall, until such money
or property is paid or delivered to the Administrative Agent, hold such money
or property in trust for the Secured Parties, segregated from other funds of
such Pledgor, as additional collateral security for the Secured Obligations.
(b) Without the prior written consent of the Administrative Agent,
such Pledgor will not (1) vote to enable, or take any other action to permit,
any Issuer to issue any stock or other equity securities of any nature or to
issue any other securities convertible into or granting the right to purchase
or exchange for any stock or other equity securities of any nature of any
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Issuer, (2) sell, assign, transfer, exchange, or otherwise dispose of, or grant
any option with respect to, the Collateral, (3) create, incur or permit to
exist any Lien or option in favor of, or any claim of any Person with respect
to, any of the Collateral, or any interest therein, except for the security
interests created by this Agreement or (4) enter into any agreement or
undertaking restricting the right or ability of such Pledgor or the
Administrative Agent to sell, assign or transfer any of the Collateral.
(c) Such Pledgor shall maintain the security interest created by this
Agreement as a first, perfected security interest and shall defend such
security interest against claims and demands of all Persons whomsoever. At any
time and from time to time, upon the written request of the Administrative
Agent, and at the sole expense of such Pledgor, such Pledgor will promptly and
duly execute and deliver such further instruments and documents and take such
further actions as the Administrative Agent may reasonably request for the
purposes of obtaining or preserving the full benefits of this Agreement and of
the rights and powers herein granted. If any amount payable under or in
connection with any of the Collateral shall be or become evidenced by any
promissory note, other instrument or chattel paper, such note, instrument or
chattel paper shall be immediately delivered to the Administrative Agent, duly
endorsed in a manner satisfactory to the Administrative Agent, to be held as
Collateral pursuant to this Agreement.
(d) Such Pledgor shall pay, and save the Administrative Agent and the
Secured Parties harmless from, any and all liabilities with respect to, or
resulting from any delay in paying, any and all stamp, excise, sales or other
taxes which may be payable or determined to be payable with respect to any of
the Collateral or in connection with any of the transactions contemplated by
this Agreement.
6. Cash Dividends; Voting Rights. Unless an Event of Default shall
have occurred and be continuing and the Administrative Agent shall have given
notice to the relevant Pledgor of the Administrative Agent's intent to exercise
its corresponding rights pursuant to Section below, such Pledgor shall be
permitted to receive all cash dividends paid in the normal course of business
of the Issuer[s] and consistent with past practice, to the extent permitted in
the Credit Agreement, in respect of the Pledged Stock and to exercise all
voting and corporate rights with respect to the Pledged Stock; provided,
however, that no vote shall be cast or corporate right exercised or other
action taken which, in the Administrative Agent's reasonable judgment, would
impair the Collateral or which would be inconsistent with or result in any
violation of any provision
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of the Credit Agreement, the notes, this Agreement or any other Credit
Document.
7. Rights of the Secured Parties and the Administrative Agent. (a) All
money Proceeds received by the Administrative Agent hereunder, upon the
occurrence and during the continuance of an Event of Default, shall be held by
the Administrative Agent for the benefit of the Secured Parties in a Collateral
Account. All Proceeds while held by the Administrative Agent in a Collateral
Account (or by the Pledgor in trust for the Administrative Agent and the
Secured Parties) shall continue to be held as collateral security for all the
Secured Obligations and shall not constitute payment thereof until applied as
provided in paragraph .
(b) If an Event of Default shall occur and be continuing and the
Administrative Agent shall give notice of its intent to exercise such rights to
the relevant Pledgor, (1) the Administrative Agent shall have the right to
receive any and all cash dividends paid in respect of the applicable Pledged
Stock and make application thereof to the Secured Obligations as provided in
paragraph 8(a), and (2) all shares of the Pledged Stock shall be registered in
the name of the Administrative Agent or its nominee, and the Administrative
Agent or its nominee may thereafter exercise (A) all voting, corporate and
other rights pertaining to such shares of the Pledged Stock at any meeting of
shareholders of the applicable Issuer or otherwise and (B) any and all rights
of conversion, exchange, subscription and any other rights, privileges or
options pertaining to such shares of the Pledged Stock as if it were the
absolute owner thereof (including, without limitation, the right to exchange at
its discretion any and all of the Pledged Stock upon the merger, consolidation,
reorganization, recapitalization or other fundamental change in the corporate
structure of such Issuer, or upon the exercise by such Pledgor or the
Administrative Agent of any right, privilege or option pertaining to such
shares of the Pledged Stock, and in connection therewith, the right to deposit
and deliver any and all of the Pledged Stock with any committee, depositary,
transfer agent, registrar or other designated agency upon such terms and
conditions as the Administrative Agent may determine), all without liability
except to account for property actually received by it, but the Administrative
Agent shall have no duty to such Pledgor to exercise any such right, privilege
or option and shall not be responsible for any failure to do so or delay in so
doing.
8. Remedies. (a) If an Event of Default shall have occurred and be
continuing, at any time at the Administrative Agent's election, the
Administrative Agent may apply all or any part of the Proceeds held in any
Collateral Account in payment of
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the Secured Obligations, to the extent available for distribution, in the
following order of priority:
First: to the Administrative Agent for any unpaid fees and expenses
and then to any Secured Party which has theretofore advanced or paid any
such fees, an amount equal to the amount thereof so advanced or paid by
such Secured Party and for which such Secured Party has not been reimbursed
prior to such date, and, if such moneys shall be insufficient to pay such
amounts in full, then ratably (without priority of any one over any other)
to such Secured Parties in proportion to the unpaid amounts thereof on such
distribution date;
Second: to the Secured Parties in an amount equal to the unpaid
principal or face amount of, and unpaid interest on, and premium or fees,
if any, in respect of, the Secured Obligations then outstanding whether or
not then due and payable, including, without limitation, the aggregate
undrawn amounts available to be drawn (assuming compliance with all
conditions to drawing) under all Letters of Credit, and, if such moneys
shall be insufficient to pay such amounts in full, then ratably (without
priority of any one over any other) to the Secured Parties in proportion to
the unpaid amounts thereof on such date;
Third: to the Secured Parties, amounts equal to all other sums which
constitute Secured Obligations, including without limitation the costs and
expenses of the Secured Parties and their representatives which are due and
payable and which constitute Secured Obligations as of such date, and, if
such moneys shall be insufficient to pay such sums in full, then ratably to
the Secured Parties in proportion to such sums; and
Fourth: any surplus then remaining shall be paid to the Pledgors or
their successors or assigns or to whomsoever may be lawfully entitled to
receive the same or as a court of competent jurisdiction may direct.
(1) The term "unpaid" as used in clause Second of subsection 8(a)
refers:
(A) in the absence of a bankruptcy proceeding with respect to the
relevant Pledgor(s), to all amounts of Secured Obligations outstanding as
of a distribution date, whether or not such amounts are fixed or
contingent, and
(B) during the pendency of a bankruptcy proceeding with respect to the
relevant Pledgor(s), to all amounts allowed by the bankruptcy court in
respect of Secured
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Obligations, as a basis for distribution (including estimated amounts,
if any, allowed by the bankruptcy court in respect of contingent claims),
to the extent that prior distributions (whether actually distributed or set
aside pursuant to subsection 8(a)(2)) have not been made in respect thereof.
(2) If any Secured Party shall be entitled to receive any moneys
pursuant to clause Second of subsection 8(a) in respect of the unliquidated,
unmatured or contingent portion of the outstanding Secured Obligations
(including, without limitation, obligations under then outstanding Letters of
Credit), then the Administrative Agent shall invest such moneys in obligations
of the kinds referred to in Permitted Investments maturing within three months
after they are acquired by the Administrative Agent and shall hold all such
amounts so distributable, and all such investments and the net proceeds
thereof, in trust solely for such Secured Party and for no other purpose until
(i) such Secured Party shall have notified the Administrative Agent that all or
part of such unliquidated, unmatured or contingent claim shall have become
matured or fixed, in which case the Administrative Agent shall distribute from
such investments and the proceeds thereof an amount equal to such matured or
fixed claim to such Secured Party for application to the payment of such
matured or fixed claim, and shall promptly give notice thereof to the Borrower
or (ii) all or part of such unliquidated, unmatured or contingent claim shall
have been extinguished, whether as the result of an expiration without drawing
of any Letter of Credit, payment of amounts secured or covered by any Letter of
Credit other than by drawing thereunder, or otherwise, in which case (x) such
Secured Party shall, as soon as practicable thereafter, notify the
Administrative Agent and (y) such investments, and the proceeds thereof, shall
be redistributed in accordance with subsection 8.(a) taking into account such
extinguishment.
(b) If an Event of Default shall occur and be continuing, the
Administrative Agent, on behalf of the Secured Parties, may exercise, in
addition to all other rights and remedies granted in this Agreement and in any
other instrument or agreement securing, evidencing or relating to the Secured
Obligations, all rights and remedies of a secured party under the Code. Without
limiting the generality of the foregoing, the Administrative Agent, without
demand of performance or other demand, presentment, protest, advertisement or
notice of any kind (except any notice required by law referred to below) to or
upon any Pledgor or any other Person (all and each of which demands, defenses,
advertisements and notices are hereby waived), may in such circumstances
forthwith collect, receive, appropriate and realize upon the Collateral, or any
part thereof, and/or may forthwith sell,
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assign, give option or options to purchase or otherwise dispose of and deliver
the Collateral or any part thereof (or contract to do any of the foregoing), in
one or more parcels at public or private sale or sales, in the over-the-counter
market, at any exchange, broker's board or office of the Administrative Agent
or any Secured Party or elsewhere upon such terms and conditions as it may deem
advisable and at such prices as it may deem best, for cash or on credit or for
future delivery without assumption of any credit risk. The Administrative Agent
or any Secured Party shall have the right upon any such public sale or sales,
and, to the extent permitted by law, upon any such private sale or sales, to
purchase the whole or any part of the Collateral so sold, free of any right or
equity of redemption in the relevant Pledgor, which right or equity is hereby
waived or released. The Administrative Agent shall apply any Proceeds from time
to time held by it and the net proceeds of any such collection, recovery,
receipt, appropriation, realization or sale, after deducting all reasonable
costs and expenses of every kind incurred in respect thereof or incidental to
the care or safekeeping of any of the Collateral or in any way relating to the
Collateral or the rights of the Administrative Agent and the Secured Parties
hereunder, including, without limitation, reasonable attorneys' fees and
disbursements of counsel to the Administrative Agent, to the payment in whole
or in part of the Secured Obligations, in such order as the Administrative
Agent may elect, and only after such application and after the payment by the
Administrative Agent of any other amount required by any provision of law,
including, without limitation, Section 9-504(1)(c) of the Code, need the
Administrative Agent account for the surplus, if any, to the relevant Pledgor.
To the extent permitted by applicable law, each Pledgor waives all claims,
damages and demands it may acquire against the Administrative Agent or any
Secured Party arising out of the exercise by them of any rights hereunder. If
any notice of a proposed sale or other disposition of Collateral shall be
required by law, such notice shall be deemed reasonable and proper if given at
least 10 days before such sale or other disposition.
(c) Each Pledgor waives and agrees not to assert any rights or
privileges which it may acquire under Section 9-112 of the Code. The Pledgors
shall remain liable for any deficiency if the proceeds of any sale or other
disposition of Collateral are insufficient to pay the Secured Obligations and
the fees and disbursements of any attorneys employed by the Administrative
Agent or any Secured Party to collect such deficiency.
9. Registration Rights; Private Sales. (a) If the Administrative Agent
shall determine to exercise its right to sell any or all of the Pledged Stock
pursuant to paragraph hereof, and if in the opinion of the Administrative Agent
it is necessary or advisable to have the Pledged Stock, or that portion
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thereof to be sold, registered under the provisions of the Securities Act, the
relevant Pledgor will cause the Issuer thereof to (1) execute and deliver, and
cause the directors and officers of such Issuer to execute and deliver, all
such instruments and documents, and do or cause to be done all such other acts
as may be, in the opinion of the Administrative Agent, necessary or advisable
to register the Pledged Stock, or that portion thereof to be sold, under the
provisions of the Securities Act, (2) to use its best efforts to cause the
registration statement relating thereto to become effective and to remain
effective for a period of one year from the date of the first public offering
of the Pledged Stock, or that portion thereof to be sold, and (3) to make all
amendments thereto and/or to the related prospectus which, in the opinion of
the Administrative Agent, are necessary or advisable, all in conformity with
the requirements of the Securities Act and the rules and regulations of the
Securities and Exchange Commission applicable thereto. Such Pledgor agrees to
cause such Issuer to comply with the provisions of the securities or "Blue Sky"
laws of any and all jurisdictions which the Administrative Agent shall
designate and to make available to its security holders, as soon as
practicable, an earnings statement (which need not be audited) which will
satisfy the provisions of Section 11(a) of the Securities Act.
(b) Such Pledgor recognizes that the Administrative Agent may be
unable to effect a public sale of any or all the Pledged Stock, by reason of
certain prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will be obliged
to agree, among other things, to acquire such securities for their own account
for investment and not with a view to the distribution or resale thereof. Such
Pledgor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The
Administrative Agent shall be under no obligation to delay a sale of any of the
Pledged Stock for the period of time necessary to permit the Issuer thereof to
register such securities for public sale under the Securities Act, or under
applicable state securities laws, even if such Issuer would agree to do so.
(c) Such Pledgor further agrees to use its best efforts to do or cause
to be done all such other acts as may be necessary to make such sale or sales
of all or any portion of the Pledged Stock pursuant to this Section valid and
binding and in compliance with any and all other applicable Requirements of
Law. Such Pledgor further agrees that a breach of any of the covenants
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contained in this Section will cause irreparable injury to the Administrative
Agent and the Lenders, that the Administrative Agent and the Lenders have no
adequate remedy at law in respect of such breach and, as a consequence, that
each and every covenant contained in this Section shall be specifically
enforceable against such Pledgor, and such Pledgor hereby waives and agrees not
to assert any defenses against an action for specific performance of such
covenants except for a defense that no Event of Default has occurred and is
continuing under the Credit Agreement.
10. Irrevocable Authorization and Instruction to Issuer. Each Pledgor
hereby authorizes and instructs each applicable Issuer to comply with any
instruction received by it from the Administrative Agent in writing that (a)
states that an Event of Default has occurred and is continuing and (b) is
otherwise in accordance with the terms of this Agreement, without any other or
further instructions from such Pledgor, and such Pledgor agrees that each
applicable Issuer shall be fully protected in so complying.
11. Administrative Agent's Appointment as Attorney-in-Fact. (a) Upon
the occurrence and during the continuance of an Event of Default, each Pledgor
hereby irrevocably constitutes and appoints the Administrative Agent and any
officer or agent of the Administrative Agent, with full power of substitution,
as its true and lawful attorney-in-fact with full irrevocable power and
authority in the place and stead of such Pledgor and in the name of such
Pledgor or in the Administrative Agent's own name, from time to time in the
Administrative Agent's discretion, for the purpose of carrying out the terms of
this Agreement, to take any and all appropriate action and to execute any and
all documents and instruments which may be necessary or desirable to accomplish
the purposes of this Agreement, including, without limitation, any financing
statements, endorsements, assignments or other instruments of transfer.
(b) Each Pledgor hereby ratifies all that said attorneys shall
lawfully do or cause to be done pursuant to the power of attorney granted in
paragraph . All powers, authorizations and agencies contained in this Agreement
are coupled with an interest and are irrevocable until this Agreement is
terminated and the Security Obligations are paid in full.
12. Duty of Administrative Agent. The Administrative Agent's sole duty
with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the Code or otherwise,
shall be to deal with it in the same manner as the Administrative Agent deals
with similar securities and property for its own account, except that the
Administrative Agent shall have no obligation to invest funds
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held in any Collateral Account and may hold the same as demand deposits.
Neither the Administrative Agent, any Secured Party nor any of their respective
directors, officers, employees or agents shall be liable for failure to demand,
collect or realize upon any of the Collateral or for any delay in doing so or
shall be under any obligation to sell or otherwise dispose of any Collateral
upon the request of any Pledgor or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof.
13. Execution of Financing Statements. Pursuant to Section 9-402 of
the Code, each Pledgor authorizes the Administrative Agent to file financing
statements, upon providing notice to such Pledgor, with respect to the
Collateral without the signature of such Pledgor in such form and in such
filing offices as the Administrative Agent reasonably determines appropriate to
perfect the security interests of the Administrative Agent under this
Agreement. A carbon, photographic or other reproduction of this Agreement shall
be sufficient as a financing statement for filing in any jurisdiction.
14. Authority of Administrative Agent. Each Pledgor acknowledges that
the rights and responsibilities of the Administrative Agent under this
Agreement with respect to any action taken by the Administrative Agent or the
exercise or non-exercise by the Administrative Agent of any option, voting
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as between the Administrative
Agent and the Secured Parties, be governed by the Credit Agreement and by such
other agreements with respect thereto as may exist from time to time among
them, but, as between the Administrative Agent and the Pledgors, the
Administrative Agent shall be conclusively presumed to be acting as agent for
the Secured Parties with full and valid authority so to act or refrain from
acting, and neither the Pledgors nor any Issuer shall be under any obligation,
or entitlement, to make any inquiry respecting such authority.
15. Notices. All notices, requests and demands to or upon the
Administrative Agent or any Pledgor hereunder shall be effected in the manner
provided for in subsection 11.01 of the Credit Agreement; provided that any
such notice, request or demand to or upon any Pledgor shall be addressed to
such Pledgor at its notice address set forth on Schedule 1 hereto.
16. Severability. 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, and any such prohibition or
unenforceability in any
14
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
17. Amendments in Writing; No Waiver; Cumulative Remedies. (a) None of
the terms or provisions of this Agreement may be waived, amended, supplemented
or otherwise modified except by a written instrument executed by each affected
Pledgor and the Administrative Agent, provided that any provision of this
Agreement may be waived by the Administrative Agent and the Secured Parties in
a letter or agreement executed by the Administrative Agent or by telex or
facsimile transmission from the Administrative Agent.
(b) Neither the Administrative Agent nor any Secured Party shall by
any act (except by a written instrument pursuant to paragraph hereof), delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Default or Event of Default or in any
breach of any of the terms and conditions hereof. No failure to exercise, nor
any delay in exercising, on the part of the Administrative Agent or any Secured
Party, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Administrative Agent or
any Secured Party of any right or remedy hereunder on any one occasion shall
not be construed as a bar to any right or remedy which the Administrative Agent
or such Secured Party would otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
18. Section Headings. The section headings used in this Agreement are
for convenience of reference only and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
19. Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of each Pledgor and shall inure to the benefit of the
Administrative Agent and the Secured Parties and their successors and assigns.
20. Governing Law. This Agreement shall be governed by, and construed
and interpreted in accordance with, the law of the State of New York.
15
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement
to be duly executed and delivered as of the date first above written.
AVIS RENT A CAR, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Title: Executive Vice President and
Chief Financial Officer
AVIS RENT A CAR SYSTEM, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Title: Executive Vice President and
Chief Financial Officer
AVIS INTERNATIONAL, LTD.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Title: Vice President and Treasurer
AVIS ASIA AND PACIFIC, LIMITED
By: /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------------------
Title: Vice President and Tax Counsel
AVIS CARIBBEAN, LIMITED
By: /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------------------
Title: Vice President and Tax Counsel
AVIS ENTERPRISES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Title: Vice President and Treasurer
ACKNOWLEDGEMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the Pledge
Agreement dated as of July __, 1997, made by [Name of Pledgor] for the benefit
of The Chase Manhattan Bank, as Administrative Agent (the "Pledge Agreement").
The undersigned agrees for the benefit of the Administrative Agent and the
Secured Parties as follows:
1. The undersigned will be bound from the date hereof by the terms of
the Pledge Agreement and will comply with such terms insofar as such terms are
applicable to the undersigned.
2. The undersigned will notify the Administrative Agent promptly in
writing of the occurrence of any of the events described in paragraph of the
Pledge Agreement.
3. The terms of paragraph of the Pledge Agreement shall apply to it,
mutatis mutandis, with respect to all actions that may be required of it under
or pursuant to or arising out of Section of the Pledge Agreement.
[NAME OF ISSUER]
By
--------------------------------------
Title
-----------------------------------
Address for Notices:
----------------------------------------
----------------------------------------
Telex:
----------------------------------
Fax:
------------------------------------
Date:
--------------
SCHEDULE 1
TO PLEDGE AGREEMENT
ADDRESSES OF PLEDGORS
SCHEDULE 2
TO PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
Stock
Class of Certificate No. of
Issuer Stock* No. Shares
------------------ ------------ --------------- ------------
--------------
* Stock is assumed to be common stock unless otherwise indicated.
